HL Deb 12 June 1958 vol 209 cc796-804

3.22 p.m.

Amendments reported (according to Order).

Clause 4 [Variation of orders registered in magistrates' courts]:

THE LORD CHANCELLOR moved, in subsection (2) (a), after "order" to insert: (other than jurisdiction in a case where a party to the order is not present in England when the application for variation is made)". The noble and learned Viscount said: My Lords, it may be convenient if your Lordships consider Amendments 1 and 2 together, because they deal with the same point. In general, a magistrates' court has no jurisdiction to hear a complaint where one of the parties resides outside England and Wales. In the High Court there is no such limitation and it is possible to deal with the situation by substituted service. Your Lordships will see that Clause 4 (2) (a) of the Bill enables a magistrates' court to exercise the same jurisdiction to vary any rate of payment specified in a High Court order registered under it which would otherwise be exercisable by the High Court. It was intended to enable magistrates' courts to apply the same principles as the High Court, and it is not intended to increase their jurisdiction with regard to these registered orders. A very different position arises, which I will deal with in a moment, with regard to attachment of earnings orders under a later part of the Bill. It is to safeguard this position that these Amendments are moved. I should draw your Lordships' attention to the fact that the second Amendment introduces a sub-paragraph (b), and it would be convenient, as a matter of arrangement of the Bill, if in line 25 after "court" there were inserted (a). I beg to move the first Amendment.

Amendment moved— Page 4, line 39, after ("order ") insert the said words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I have already described this Amendment to your Lordships. I beg to move.

Amendment moved— Page 5, line 26, at end insert ("; or (b) at a time when a party to the order is not present in England").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 17 [Prohibition of committal more than once in respect of same arrears]:

THE LORD CHANCELLOR

My Lords, this Amendment paves the way for the new clause with the side note "Powers of magistrates to review committals, etc." I beg to move.

Amendment moved— Page 16, line 11, after ("warrant") insert ("(other than a warrant of which the issue is postponed under paragraph (ii) of subsection (5) of section (Powers of magistrates to review committals, etc.) of this Act)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, after Clause 17 to insert the following new clause:

Powers of magistrates to review committals, etc.

".—(1) Where, for the purpose of enforcing a maintenance order, a magistrates' court has exercised its power under subsection (2) of section sixty-five of the Magistrates' Courts Act, 1952, or this section to postpone the issue of a warrant of commitment and under the terms of the postponement the warrant falls to be issued, then—

  1. (a) the warrant shall not be issued except in pursuance of subsection (2) or paragraph (a) of subsection (3) of this section; and
  2. (b) the clerk of the court shall give notice to the defendant stating that if the defendant considers there are grounds for not issuing the warrant he may make an application to the court in the prescribed manner requesting that the warrant shall not be issued and stating those grounds.

(2) If no such application is received by the clerk of the court within the prescribed period, any justice of the peace acting for the same petty sessions area as the court may issue the warrant of commitment at any time after the expiration of that period; and if such an application is so received any such justice may, after considering the statements contained in the application—

  1. (a) if he is of opinion that the application should be further considered, refer it to the court;
  2. (b) if he is not of that opinion, issue the warrant forthwith;
and when an application is referred to the court under this subsection, the clerk of the court shall give to the defendant and the person in whose favour the maintenance order in question was made notice of the time and place appointed for the consideration of the application by the court.

(3) On considering an application referred to it under the last foregoing subsection the court shall, unless in pursuance of subsection (6) of this section it remits the whole of the sum in respect of which the warrant could otherwise be issued, either—

  1. (a) issue the warrant; or
  2. (b) further postpone the issue thereof until such time and on such conditions, if any, as the court thinks just; or
  3. (c) if in consequence of any change in the circumstances of the defendant the court considers it appropriate so to do, order that the warrant shall not be issued in any event.

(4) A defendant who is for the time being imprisoned or otherwise detained under a warrant of commitment issued by a magistrates' court for the purpose of enforcing a maintenance order, and who is not detained otherwise than for the enforcement of such an order, may make an application to the court in the prescribed manner requesting that the warrant shall be cancelled and stating the grounds of the application; and thereupon any justice of the peace acting for the same petty sessions area as the court may, after considering the statements contained in the application—

  1. (a) if he is of opinion that the application should be further considered, refer it to the court;
  2. (b) if he is not of that opinion, refuse the application;
and when an application is referred to the court under this subsection, the clerk of the court shall give to the person in charge of the prison or other place in which the defendant is detained and the person in whose favour the maintenance order in question was made notice of the time and place appointed for the consideration of the application by the court.

(5) On considering an application referred to it under the last foregoing subsection, the court shall, unless in pursuance of the next following subsection it remits the whole of the sum in respect of which the warrant was issued or such part thereof as remains to be paid, either—

  1. (a) refuse the application; or
  2. (b) if the court is satisfied that the defendant is unable to pay, or to make any payment or further payment towards, the sum aforesaid and if it is of opinion that in all the circumstances of the case the defendant ought not to continue to be detained under the warrant, order that the warrant shall cease to have effect when the person in charge of the prison or other place aforesaid is informed of the making of the order;
and where the court makes an order under paragraph (b) of this subsection, it may if it thinks fit also—
  1. (i) fix a term of imprisonment in respect of the sum aforesaid or such part thereof as remains to be paid, being a term not exceeding so much of the term of the previous warrant as, after taking into account any 799 reduction thereof by virtue of the next following subsection, remained to be served at the date of the order; and
  2. (ii) postpone the issue of a warrant for the commitment of the defendant for that term until such time and on such conditions, if any, as the court thinks just.

(6) On considering an application under this section in respect of a warrant or a postponed warrant, the court may, if the maintenance order in question is an affiliation order or an order enforceable as an affiliation order, remit the whole or any part of the sum due under the order and where the court remits the sum or part of the sum in respect of which the warrant was issued or the postponed warrant could have been issued, section sixty-seven of the Magistrates' Courts Act, 1952 (which provides that on payment of the sum for which imprisonment has been ordered by a magistrates' court the order shall cease to have effect and that on payment of part of that sum the period of detention shall be reduced proportionately) shall apply as if payment of that sum or part had been made as therein mentioned.

(7) Where notice of the time and place appointed for the consideration of an application is required by this section to be given to the defendant or the person in whose favour the maintenance order in question was made and the defendant or, as the case may be, that person does not appear at that time and place, the court may proceed with the consideration of the application in his absence.

(8) A notice required by this section to be given by the clerk of a magistrates' court to any person shall be deemed to be given to that person if it is sent by registered post addressed to him at his last known address, notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person."

The noble and learned Viscount said: My Lords, this Amendment is a somewhat lengthy new clause which I ask your Lordships to add to the Bill. The new clause, together with the consequential Amendments put down to Clause 17 and to the Title, is the outcome of careful consideration of the Amendment moved in Committee by the noble Lord, Lord Silkin, and also of the speech of my noble and learned friend Lord Merriman: I think it meets substantially the points which they had in mind. I do not want to go into the earlier history of this subject, because it has a history in another place and also here. I wish to make only one point, because I want the noble Lord, Lord Silkin, to understand the importance we attach to the arguments which be advanced.

In another place the Opposition based their argument on cases where the warrant had been issued and where the man was in prison. In such cases the court must have already decided that the man's wilful default justified imprisonment, and there can be no more than a very few cases in which a court would be justified in reversing the position when the man was in prison. As I say, I am not going into the matter in detail. There is an administrative procedure for dealing with certain of these cases. That is one point—as a matter of fact we have dealt with it. But in Committee in your Lordships' House the noble Lord, Lord Silkin, based his argument on a different type of case. As I understood him, he was more concerned with the case where the issue of a warrant had been postponed—that is, where the man was still at liberty—and in this type of case there is, if he will allow me to say so, force in the argument that at any rate the warrant should not he issued automatically.

At present, once the man has failed to comply with the conditions of postponement, the warrant may be issued without anyone hearing the man's explanation of his failure. The man's circumstances may have significantly changed, as the noble Lord said in Committee, or the man might have failed, through no fault of his own, to comply with the conditions of postponement. This feature of the existing system was criticised by the Royal Commission on Marriage and Divorce, who recommended that the defaulter should be notified, before the issue of a suspended warrant, that unless he applied to the court within a specified time the warrant would be issued. The Government accept this recommendation, and the effect of this new clause will be to implement it.

Subsections (1) to (3) of the clause contain the substantive provisions, which are that if the defaulter, having been notified that the warrant falls to be issued, applies within the prescribed period, and a justice of the peace is of opinion that the application should be further considered, the court may, as an alternative to immediate issue, further postpone the issue of the warrant or, cancel the warrant altogether, if changed circumstances make that course appropriate. If no application is received, the justice may issue the warrant. In short, these subsections not only deal with the main defect of the present system as recognised by the Royal Commission, but also provide, in an exceptional case, for the complete cancellation of a suspended commitment.

The new clause also provides for the discharge of a warrant of commitment that had been issued and executed. These are the warrants with which the Committee in another place were concerned and which were also the concern of my noble and learned friend Lord Merriman. My noble and learned friend will see that that position is dealt with also, because under subsection (4) the imprisoned defaulter is enabled to apply for the cancellation of the warrant. The application is at first considered by a single justice, and if he refers it to the court, the court may discharge or suspend the warrant. I did say on the last occasion that I thought that in a perfect world it would have been better to do this in a Magistrates' Courts Bill, but I received such broadsides from both noble Lords I have mentioned on that occasion that I have adopted the course of meeting them in the new clause before the House.

There is just one point that I should like to make to my noble and learned friend the President of the Probate, Divorce and Admiralty Division. Lord Merriman suggested in Committee that a provision on the lines of the proposed Amendment could be embodied in Section 74 of the Magistrates' Court Act, 1952, which contains enforcement provisions special to affiliation orders and orders enforceable as affiliation orders. We considered that suggestion, but we felt that it was not possible to adopt it, since maintenance orders, as defined in the Bill, cover a slightly wider field than affiliation orders and orders enforceable as affiliation orders.

There is only one other provision of the clause which, I should tell your Lordships, gave me very serious thought but which I felt ought to be in the clause. I refer to subsection (8), which provides for any notice sent under the new clause to be sent by registered post to the party at his last known address, and the notice will then be deemed to have been sent, notwithstanding that it is returned as undelivered or, for any other reason, is not received by the person to whom it is sent. In these proceedings for the suspension and cancellation of a warrant it is desirable that the application should be considered quickly and that any hearing should not be delayed by a need to prove service; and in the case of the notice sent to the defaulter about a suspended commitment it is essential that he should not be able to prevent the issue of the warrant by the expedient of refusing a registered letter containing the notice or by merely changing his address.

There are two safeguards. One is that if the notice was returned information would be given to the justice, and it would then be for him to exercise his discretion whether to issue the warrant forthwith or cause further inquiries to be made. Also, of course, there is, as I have informed the House, the provision in subsection (4) by which anyone who is in prison can apply for his discharge. In the ordinary way I should have hesitated over this but, as your Lordships in my profession will know, since the case of Beer v. Davies it is necessary that there should be such a provision. While the provision may be deemed restrictive, the whole object of this clause is one that is ameliorating and giving greater rights, and I think that, as we are giving greater rights which noble Lords desire, we are entitled to keep this safeguard against the possibility of the person whose troubles are being ameliorated abusing the position. I could not think of any better way of doing it, and I hope that your Lordships will take it that I have tried to meet noble Lords, with such skill as I have, and that I have met the substance of their point after the consideration I have given it. I beg to move.

Amendment moved— After Clause 17, insert the said new clause. —(The Lord Chancellor.)

3.35 p.m.

LORD SILKIN

My Lords, I should like to thank the noble and learned Viscount for so carefully and conscientiously carrying out the undertaking which he gave on Committee that he would discuss my Amendment with the Home Secretary, without committing himself as to what would be the outcome. I am very pleased indeed that they have both seen their way to accept the principle of the Amendment which I then put down. Without going into the merits of the case once more, I am sure that the whole House will agree that if it is possible to keep out of prison people who would otherwise go there, it is desirable; and in this case the purpose of the Amendment and the purpose of this new clause is to keep out of prison people who ought not to be there. Therefore there is nothing but good in this new clause.

There were difficulties and I fully appreciate them. One was that this Amendment would be more appropriate in another Bill—either as part of another Bill or as an Amendment to an Act. But while appreciating that point, I thought it was even more important that we should not send one single person to prison who would otherwise not go—and I made that point very strongly. There were also difficulties of drafting. Noble Lords who have looked at this Amendment will appreciate that those difficulties were real and genuine. But with some experience of our Parliamentary draftsmen and their skill I had no doubt at all that even a difficult Amendment of this kind would not be beyond their powers, especially as they were assisted by the noble and learned Viscount. So I am most grateful for all the trouble that has been taken. I am quite sure that as the result of the introduction of this new clause this is a much better Bill.

LORD MERRIMAN

My Lords, I, too, should like to express my thanks to the Lord Chancellor and to the Home Secretary for the consideration given to this matter, and I would add that I am completely content and satisfied that subsection (4) of this clause meets the point which I raised in Committee.

THE LORD CHANCELLOR

My Lords, I think I can say one word of thanks to both noble Lords who have spoken. This is essentially the sort of point where it is extremely valuable to the administration of justice to get the views of Members of your Lordships' House with the varying experience which the two noble Lords have. I should like to express my personal gratitude not only for the care with which they developed the point but also for the way in which they have accepted the Amendment.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, after subsection (2), to insert: (3) It is hereby declared that a magistrates' court has jurisdiction to hear a complaint by or against a person residing outside England for the discharge or variation of an attachment of earnings order made by a magistrates' court; and where such a complaint is made against a person residing outside England, then—

  1. (a) if he resides in Scotland or Northern Ireland, section fifteen of the Maintenance Orders Act, 1950 (which relates to the service of process on persons residing in those countries) shall have effect in relation to the complaint as it has effect in relation to the proceedings therein mentioned; and
  2. (b) if the said person resides outside the United Kingdom and does not appear at the time and place appointed for the hearing of the complaint but it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed, that the complainant has taken such steps as may be prescribed to give to the said person notice of the complaint and of the time and place aforesaid, the court may, if it thinks it reasonable in all the circumstances to do so, proceed to hear and determine the complaint at the time and place appointed for he hearing or for any adjourned hearing in like manner as if the said person had then appeared."

The noble and learned Viscount said: My Lords, this is the Amendment to which I made a passing reference in dealing with the first Amendment, and it arises from the fact that I mentioned that a magistrates' court has in general no jurisdiction to hear a complaint where one of the parties resides outside England and Wales. In dealing with orders for attachment of earnings one must clearly reconsider that position, because if this Amendment were not carried a wife might procure an order of attachment of her husband's earnings and then leave the country, and it would be impossible for the husband to have any alteration made in that order, despite violent changes of circumstances. I do not think that that is a position we should tolerate, and therefore I ask your Lordships to accept this Amendment. I beg to move.

Amendment moved— Page 17, line 9, at end insert the said subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, Amendments 6, 7 and 8 are all consequential Amendments, and, with your Lordships' permission, I will move them en bloc.

Amendments moved—

Page 21, line 7, after ("Act") insert (", except paragraph (a) of subsection (3) of section nineteen")

Page 21, line 8, after ("eighteen") insert ("the said paragraph (a),")

In the Title

Line 10, after ("1952") insert ("; to make provision for the review of committals to prison by magistrates' courts for failure to comply with maintenance orders;").—(The Lord Chancellor.)

On Question, Amendments agreed to.