HL Deb 08 May 1958 vol 209 cc131-55

4.51 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.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair]

Clause 1 agreed to.

Clause 2 [Registration of orders]:

THE LORD CHANCELLOR (VIS-COUNT KILMUIR)

I will not detain your Lordships long on this Amendment and the next one, because they are really drafting Amendments applying to this Bill the provisions for registration and enforcement in one part of the United Kingdom of maintenance orders made in another part of the United Kingdom which are already in force in other legislation. If any of your Lordships have any points and would like the details I will give them, but I think the general purpose is sufficient. I beg to move.

Amendment moved— Page 3, line 41, after ("Part II") insert ("and a maintenance order ").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move the next Amendment.

Amendment moved— Page 3, line 42, at end insert (" and a maintenance order to which this Part of this Act applies.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Enforcement of registered orders]:

THE LORD CHANCELLOR

This Amendment, too, is little more than drafting; in fact, I wondered whether the noble Lord, Lord Silkin, would say that we were being too puristic in making it. However, I think he understands that the Amendment brings the drafting into line with Section 18 (6) of the Maintenance Orders Act, 1950, and it was desired that there should be no difficulties raised by this clause. I beg to move.

Amendment moved— Page 4, line 20, leave out (" regard") and insert (" respect ").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clauses 4 and 5 agreed to.

Clause 6: Powers of courts to make orders attaching the earnings of defaulters under maintenance orders.

(2) The court shall not make an attachment of earnings order if the defendant satisfies the court that the failure to make payments in accordance with the maintenance order in question was not due to his wilful refusal or culpable neglect.

(3) An attachment of earnings order shall— (a) specify the normal deduction rate, that is to say, the rate at which, after taking into account any right or liability of the defendant to deduct income tax from payments made under the related maintenance order, the court making or varying the attachment of earnings order thinks it reasonable that the earnings to which that order relates should be applied in meeting the defendant's liabilities under the maintenance order, not exceeding the rate appearing to that court to be necessary for the purpose of—

  1. (i) satisfying the requirements of the maintenance order (including the payment within a reasonable period of any arrears); and
  2. (ii) securing payment within a reasonable period of any costs incurred in proceedings relating to the maintenance order which are payable by the defendant;

THE LORD CHANCELLOR

As noble Lords opposite will know, this Amendment was one which their colleagues in another place were anxious to put into the Bill, and, indeed, it would have appeared were it not for one of those occurrences which happen in the best regulated Houses of Parliament. But I believe that, apart from the fact that it was desired by both Parties in another place, your Lordships will think that on its merits it is entitled to some consideration. The words, it appears to the court that the failure of the defendant", are, of course, less strong than the original words, "the defendant satisfies the court that the failure". I think, broadly, it is equitable that the words should meet this situation where the defendant does not appear at court himself and it still appears in his favour that he has not committed the defaults which are set out in the clause. These words also meet the situation where the court might have directed a probation officer, under Section 60 of the Magistrates' Courts Act, 1952, to report an investigation into the means of the party, and the probation officer's report might clearly show the absence of wilful and culpable neglect. For all these reasons, I think it is the better form of words, and I hope your Lordships agree. I beg to move.

Amendment moved— Page 7, line 5, leave out (" the defendant satisfies the court that the failure") and insert ("it appears to the court that the failure of the defendant").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

Perhaps, for the convenience of your Lordships, I might address the Committee on Amendments 5, 6 and 7, and then they can be put separately. They are drafting Amendments with the purpose of removing any possible doubt that an attachment of earnings order is designed to cover not only the liabilities under the maintenance order when the attachment order is made but also the future liabilities; that is, the current payments as they arise. We wanted this point to be perfectly clear, and the paragraph, as amended, will refer to "from time to time in satisfying the requirements of the maintenance order" and securing payment of the sums falling due from time to time under the maintenance order". I beg to move.

Amendment moved— Page 7, line 15, leave out ("in meeting the defendant's liabilities under") and insert ("from time to time in satisfying the requirements of").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Amendment moved— Page 7, line 19, leave out from beginning to ("and") in line 21 and insert— ("(i) securing payment of the sums falling due from time to time under the maintenance order;").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Amendment moved— Page 7, line 23, after ("of") insert ("any sums already due and unpaid tinder the maintenance order and").—(The Lord Chancellor.)

On Question, Amendment agreed to.

On Question, Whether Clause 6, as amended, shall stand part of the Bill?

5.0 p.m.

LORD McCORQUODALE OF NEWTON

I should like to say one or two words on the question that this clause stand part. The clause places a heavy obligation on employers. I would not suggest for one moment, however, that, in general, employers of all sections and classes are not in favour of the principles of the Bill and hope to see them carried out successfully, and the objects we all have at heart attained. But it does behove us, I think, to see that these obligations are made both easy to understand and also simple to operate.

The word "employer" tends to conjure up the picture of large establishments and many hundreds of employees, and of complete sections or departments for calculating wages. In actual fact, however, the vast majority of employers in this country are very small employers. There is the working farmer, with one or two hands; there is the small shop, with one or two assistants; there is the small factory, where the employer is his own salesman, his own manager, his own payer and worker-out of the wages of the half-a-dozen or fewer employees in his establishment. On all these the heavy obligation rests to calculate what we are setting forth in this clause. I suggest that if we asked employers of that sort even to read this clause and the Schedule that goes with it, let alone to understand it, we might get some quite caustic remarks. After all, these men have had considerable headaches in understanding and filling in the necessary forms for P.A.Y.E., and we are now laying upon them the duty of understanding the difference between protected earnings, attachment orders and the like.

Under the Bill as it now stands, and assuming that only one attachment is made in respect of a single man—and there is always the possibility that more than one attachment order may be made; and that is provided for in this Bill—a system of appropriate charges is set up in regard to the earnings of the man in question. I wonder whether, just for one moment, I might go through these charges to show your Lordships what I mean. First of all, income tax, through P.A.Y.E., has to be paid to the State, and National Insurance contributions and superannuation contributions paid also to the State by means of stamps; secondly, the amount of so-called protected earnings has to be paid to the defendant; thirdly, any arrears of protected earnings have to be calculated and paid to the defendant; fourthly, the normal deductions under the attachment order in this clause have to be paid over to the court officer; fifthly, any arrears of deductions under the attachment order, provided the protected earnings are secured, have also to be paid over to the court officer and, lastly, anything that is left over out of the man's earnings is paid over to the defendant. Those are some of the obligations we are laying upon these small employers.

Protected earnings are supposed to cover the man's ordinary needs, but there are certain other things that may be legally deducted from him under the Truck Act, Sections 1, 2 and 3, which lay down that certain deductions may be made from a man's earnings. Those may well have to be taken into account, although I am not going to consider them at the moment. Furthermore, the earnings of the man may fluctuate greatly, and that will lead to endless complications. The man may change his job frequently, if he is in the building trade or something of that sort, and more calculations have to be made, especially if he is out of work for a short time. It is interesting to note that if he is out of work and drawing unemployment pay or sickness benefit, neither of those come under the jurisdiction of this Act. Indeed, exemption of such benefits might well mean that while the man is getting sickness benefit he would be better off—and his wife certainly worse off—than if he was in work. I go through those items only to show that we are placing on the small employer considerable obligations, and we should do all we can—and I hope the Lord Chancellor and his Department will do all they can—to make these obligations work as easily as possible, for unless that is done the Bill will fail.

I would suggest, first of all, that there should be the closest co-operation between the court officer and the employer. I think we might go even further—and I would put this, if I may. to the Lord Chancellor—that definite guidance should be given by the court officer to the employer, and especially to the small employer, on what should be paid to him (the court officer) and what should be paid to the defendant. It seems to me that under the Bill the court officer will know the approximate earnings of the man—that is laid down. I should like to ask that arrangements should be made so that the employer, and especially the small employer, could go to the court and be told what he has to do, and the sums of money to be paid over should be worked out for him. Most courts—indeed, I think, all courts—have court officers who are versed in this type of work, and it would seem to me that some arrangement of that sort is absolutely necessary if we are to get everybody working and to make this Bill the success we hope it will be.

5.8 p.m.

THE LORD CHANCELLOR

May I preface what I have to say by thanking my noble friend Lord McCorquodale of Newton for coming and putting this point to us. I am conscious of the co-operation which the employers of this country have given in the initiation of this Bill. I hope my noble friend will convey to his colleagues in the Employers' Federation my gratitude for the attitude that they have taken. There is one consolation which I tried to bring out on Second Reading, and that is that in the immortal words of Captain Marryat, "the baby is only a little one". When compared with the number of 23 million people who are now in work, the number of attachment orders likely to be made is a very small one and relatively infinitesimal. But that does not meet my noble friend's point, and I put it only as a consolation.

I want to make clear that the employer will first of all receive the order, but when he receives it he will also receive an explanatory pamphlet explaining in simple terms what he has to do. If he still has difficulties, the officer designated as the officer required to receive the money will, I am sure, do his utmost to assist him. I believe that this is a subject on which everyone will think it right that I should ask the magistrates and their clerks to do their utmost to help. It is not an interference; it is just making the will of Parliament work smoothly, and I shall certainly do that. So I hope by those two methods, by the pamphlet and by the special assistance which I shall ask the magistrates' courts to give, that my noble friend's point will be met. I hope that he and anyone who finds that there are any teething troubles of any kind will not hesitate to mention them to me, and I will do my utmost to see they are put right.

LORD CRAIGMYLE

Before we leave this point, I would point out that there is, or used to be, some limitation of the power of the court to attach the wages of a merchant seaman for debt. Is there any such protection in this clause?

The LORD CHANCELLOR

I am not absolutely certain what my noble friend Lord Craigmyle has in mind, but I used to be very familiar in my early days with the position at the outset of a voyage when the seaman signed the Articles and there were various provisions (I think arranged with the Ministry of Transport, not with the Ministry of Labour) by which it was made difficult for what we used to call (in unparliamentary language) "crimps" and the like, to get the money out of the seamen. I can assure my noble friend Lord Craigmyle that these provisions are not affected by the Bill, which is limited to the question of the person who does not pay under a maintenance order made against him. I think my noble friend can rest content that the merchant seamen, in whom, on both sides of his family, he has such a great interest, apart from his own, will not suffer under the position created by the Bill. I can tell him that the Bill will not apply attachment to merchant seamen.

LORD McCOROUODALE OF NEWTON

May I, by leave of the House, thank the noble and learned Viscount the Lord Chancellor for the assurance he has given? There is very real anxiety, as I know, over this matter amongst many people, and the points he has made will give great satisfaction. We will certainly avail ourselves, if we may, of his invitation to keep in close touch with his Department when this Bill becomes law.

LORD SILKIN

Before we part with this clause, I should like to express my appreciation of the remarks of the noble Lord, Lord McCorquodale of Newton. I am very glad indeed to hear that the employers are anxious to co-operate and that they will do their best to make the Bill a success. As the noble Lord knows, fears were expressed, not that they would not co-operate, but that the man against whom the attachment order was made might be penalised by the employers. I was therefore delighted to hear from the noble Lord, by implication, that that will not be the case. If it were so to any extent, the magistrates might well hesitate to make an attachment order, in so far as they had the power to exercise discretion.

I did not quite agree about the difficulty in which employers, and particularly small employers, are going to find themselves. I have found that the small man is quite intelligent and quite able to grasp even complicated points of this kind. One would have expected that they would have found themselves in great difficulty about "Pay-as-you-earn", but in fact they have taken it all in their stride. I suggest that this will be a good education for the small employers, getting them to take an intelligent interest in these matters and to understand them; and I am sure they will respond. I do not myself anticipate any difficulty at all on the part of the employers, especially as they do not have to understand every word of Clause 6 of this Bill; they will get the explanation, and if they are in any difficulty they always have their lawyers to fall back on. May I also express my gratitude to the noble and learned Viscount for the Amendment he has moved and which was, in fact, intended to have been accepted in another place. I hope that he will be equally kind to a later Amendment when I come to move it.

Clause 6, as amended, agreed to.

Clause 7 [Powers of courts to make attachment of earnings orders in proceedings under other Acts]:

5.18 p.m.

THE LORD CHANCELLOR

The purpose of this Amendment makes clear what Clause 7 is designed to do; that is, to enable a court to make an attachment of earnings order when general enforcement proceedings are brought under the existing law. Your Lordships will remember that, so far as magistrates' courts are concerned, those proceedings are described in paragraph (b) as proceedings … to enforce payment of any sum ordered to be paid by a maintenance order which is, or is enforceable as, an affiliation order. Practically all maintenance orders are enforceable as an affiliation order, hut there are a small number which are not. and the Amendment is designed to catch these up. I beg to move.

Amendment moved— Page 8, line 26, leave out from ("order") to end of line 27.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

Before a court can make an attachment of earnings order under the general provisions of Clause 6, it has to appear to it that the defendant has earnings which can be attached. I am sure your Lordships will all see the sense of that, and this Amendment inserts a similar provision in Clause 7, under which an attachment of earnings order can be made in ordinary enforcement proceedings. I beg to move.

Amendment moved— Page 8, line 31, after ("unpaid") insert ("and that the defendant is a person to whom earnings fall to be paid,").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

5.20 p.m.

LORD SILKIN moved, after Clause 7, to insert the following new clause:

Discharge of committal orders by magistrates' courts

". Notwithstanding anything in any other enactment, a magistrates' court may at any time discharge an order which it has made for the committal of any person to prison for failure to comply with a maintenance order."

The noble Lord said: I beg to move the new clause standing in my name. I think I can do so quite shortly, because the noble and learned Viscount will be aware of the case that I want to try to make. An Amendment in identical terms was moved, I think, in another place, and was rejected.

The short point is simply that in the view of myself and of my friends in another place and here, magistrates ought to be in a position, having made a committal order, to revoke it at any time if circumstances change before the committal order has been enforced. That seems to me plain common sense. All kinds of things might happen between the time of the committal order being made and the time when it is actually put into force. The whole of the circumstances may have changed; they may have become such that, if the new circumstances had been before the magistrates, they would never have made an order at all. Yet, by some trick of the law—I can only think of it as that—once the committal order has been made magistrates have no power to revoke it: the heavens may fall but the order has to be carried out. That seems to me to be an absurdity.

I am not quite sure, but I believe that the reason given in another place was not that the Amendment has not merits but that it would involve the amendment of the Magistrates' Courts Act (it is of general application) and that while it might be appropriate in another context it is not appropriate in this Bill. That is a good legalistic argument, if that is the argument; it involves a desire to tidy our legislation. But if we fail to do this in this Bill it means that some men will go to prison because an order will have been made against them which would not otherwise have been made. I do not want to exaggerate the case, but we should find some men in prison who ought not to be there. So I appeal to the noble and learned Viscount, if I am right in my view as to the objection to the Amendment, to set aside these legalistic niceties. By all means amend the general law, but at any rate put in this clause or something like it. Probably my wording is all wrong, but let us put in some words that meet the case, so that magistrates will have the power, if circumstances change, to revoke a committal order which they have already made. I beg to move.

Amendment moved— After Clause 7 insert the said new clause.—(Lord Silkin.)

LORD MERRIMAN

I should like to say a word in support of Lord Silkin's new clause. Like him, I have read the debates in another place. So far as I know, nobody disputed the merits of magistrates' having power to set aside a commitment order that they had made. But it appears that it was felt that by doing this—and I quote we would be leaving still outstanding commitments for other kinds of debts by the magisstrates' courts. With the greatest respect, that is really nonsense. In the Magistrates' Courts Act itself civil debts are dealt with in one set of sections, and maintenance orders (included, as the Lord Chancellor has already said, in the category of orders enforceable as if they were affiliation orders) are dealt with in a separate set of sections, beginning with Section 74. I do not propose to go through the details. Suffice it to say that in this particular Bill and in the next Amendment which is to be moved by the Lord Chancellor, the whole of Section 74 is being revised in two extremely important particulars. The first is that magistrates shall not make a commitment order in respect of a wife's maintenance order if the proper remedy is the new method of the attachment of earnings. There is nothing like that in connection with civil debts, which are dealt with in the other category, or in the Magistrates' Courts Act as it now stands.

The second important Amendment which is being made is that whereas, as the law stands, when a man goes to prison in respect of arrears of maintenance the imprisonment wipes out the arrears, that situation is being expressly abolished by an Amendment about to be moved by my noble and learned friend the Lord Chancellor. In future, if this Bill becomes law, imprisonment will not—as, indeed, it ought not to—wipe out the arrears. That is an absurdity which has prevailed for a long time. It is, of course, entirely contrary to the rule under the Debtors Act, which expressly says that commitment shall not wipe out the debt, with the result that at this moment the Divorce Division may make an order for £5 a week maintenance, the man may be committed and serve his sentence, yet the debt still remains. If, on the other hand, the magistrates make an order for the sane amount and the man serves his committal period, the debt is cancelled. That cannot be right. It certainly cannot be right in connection with a Bill which is drastically revising the whole method of benefiting wives under maintenance orders by attaching earnings and making the registration of attachment transferable from the High Court to the magistrates' court, and vice versa.

Like the noble Lord, Lord Silkin, I do not attach great importance to the wording of the Amendment as it stands, but if the Lord Chancellor could see his way to saying that further consideration of this matter would be given before the Report stage, I suggest that the tidiest way in which to do this would be to insert in the new clause which the Lord Chancellor is about to propose a provision to the desired effect. When one considers that magistrates at any time have power to remit arrears when a complaint is brought before them, that alone would illustrate one set of circumstances in which it is absurd to leave the commitment order standing if the arrears themselves are wiped out. I suggest that this particular reform would tidy up the whole thing, and that the proper place for it is in the clause which the Lord Chancellor is about to move.

5.29 p.m.

THE LORD CHANCELLOR

The soul of a Lord Chancellor would have to be very dead if he disregarded an appeal from the noble Lord opposite and from my noble and learned friend the President of the Probate, Divorce and Admiralty Division, with his great experience of these matters. I should like both noble Lords to appreciate that great consideration has been given to this point, and if I state the difficulties that we have seen it is not because I will not consider it again—I shall be pleased to do what both noble Lords have asked me to do, and discuss it again with my right honourable friend the Home Secretary. I thought, however, that it would be useful if on the Committee stage I stated our difficulties so that both noble Lords could see them in print as they appear to me, and perhaps help us on some of those that have given us most trouble.

I believe that the main argument made below by the honourable and right honourable friends of the noble Lord, Lord Silkin—and one which he has implicitly blessed—is a very strong one in the context of this Bill, for they say that since one of the main objects of the Bill is to keep men out of prison, it is logical that magistrates' courts should have power to discharge an order that has been made committing a person to prison. Examples were then shown of where that could be done. It is undoubtedly right that as many defaulters as possible should be kept out of prison, but the difficulty which has been found is that where that involves giving to a court a completely open discretion they might be concerned to discharge a warrant of commitment.

On the question of those affected, I should like to put this to noble Lords: cases which involve the fact that when Part II of the Bill comes into operation there may be defaulters in prison with attachable earnings and that the proposed new Bill will enable a court to get them out and make an attachment of earnings order, will surely be held up till the Bill comes into operation; because, as your Lordships will see from Clause 19 (3), the Bill comes into operation on a day to be appointed by the Secretary of State. And after the publicity which has been given and the various points which will be drawn to the attention of justices, it seems inconceivable that where a man is in regular employment, and therefore amenable to attachment, a court would not either adjourn the case or make a suspended commitment. If the commitment has been suspended before the appointed day, there need be no difficulty about making a subsequent attachment to earnings order which, by Clause 8 of the Bill, would have the effect of cancelling the suspended commitment.

The Home Office have considered this point and I am told that the class of case upon which this argument depends will be very small. Not only that; there is an existing method of dealing with them. It is the practice of the Secretary of State to give instructions for a defaulter to be released from prison if it is established that the woman wants that done and the court agrees. Such instructions are already given from time to time where a woman "forgives" the debt, and my right honourable friend the Home Secretary says that in cases where the woman so wishes and the court agrees, the necessary instructions will be given.

Your Lordships might say that while that is all very well, it is an extra-statutory procedure and that you would prefer to see it in the Act. Again, as your Lordships will have seen from the debates in another place, the Home Office are anxious that the provisions should apply not only to maintenance default but also to civil debt and existing provisions relating to imprisonment for non-payment of fines, which would be affected as well. As your Lordships will know and as the two noble Lords who have spoken on this Amendment know very well, the reasons are complex and technical and stem from the need for any power to discharge a warrant of commitment to include a power to discharge a suspended commitment as well; and if it is right to be able to get a man out of prison it is also right to remove from over his head the threat of prison.

It seemed very difficult to accept that if a discretionary power to discharge were simply added to the present power to issue a warrant after a suspended commitment—which in a sense is also discretionary—one would have the extremely odd result that a court would be given a discretion to interfere with something which is already discretionary. Before a new power of the kind suggested could be given, the present power to suspend the issue of a warrant of commitment (which in any event is not drafted in entirely satisfactory terms) would require careful reconsideration and almost certainly would have to be recast in different terms.

For these reasons my right honourable friend the Home Secretary was anxious to approach the matter in the other way: to begin with Section 65 of the Magistrates' Courts Act and to make the Amendment fit all the cases dealt with in that Act. If any alteration were to be made in the existing arrangements to replace section 65 by some new and different provision which would deal, though not necessarily in the same way, with all warrants of commitment, whether for maintenance, civil debts or fine default, that could properly be done only in a general Magistrates' Courts Bill.

I should be grateful if my noble and learned friend Lord Merriman would consider this difficulty which is put to me—not to-night but between now and the Report stage: that owing to the way in which the existing Section 65 is drafted, it would be difficult to amend it satisfactorily in respect of maintenance default only because (and this is a real practical point) the result might be to produce a statutory framework confusing to the lay justices who have to administer this branch of the law. Those who have considered this matter in the Home Office and elsewhere would therefore prefer to prepare the ground, first, by making an amendment to the existing general provisions in Section 65 of the Magistrates' Courts Act relating to the suspension of warrants of commitment; and, secondly, by providing for discharge out of custody by a magistrates' court not only in cases of maintenance orders but also in civil debt cases generally. They felt that the proper vehicle for so far-reaching an amendment was a Magistrates' Courts Bill.

I have put these difficulties to your Lordships only for consideration. Having done so, I should like to consider, on the other hand, what was said by the noble Lord, Lord Silkin, and suggested by my noble and learned friend Lord Merriman, and I shall certainly do so. I hope noble Lords will not press this matter at the moment but will give me an opportunity of discussing it with my right honourable friend Mr. Butler before the Report stage.

5.40 p.m.

LORD SILKIN

The noble and learned Viscount has quite properly put the difficulties that confront him in accepting the principle of this Amendment. I hope I am not being impertinent or offensive if I say that it gives me the impression that he was not himself greatly impressed with these difficulties. Here we have a real grievance, and the noble and learned Viscount did not attempt to justify the anomaly that exists. A man has been committed to prison. He has been defiant and said, "I am jolly well not going to pay and I am going to prison", and a committal order is made. Perhaps he is in irregular work and finds himself in some difficulty. He then goes away and thinks it over, and possibly gets a regular job, and makes up his mind that he will pay and he is prepared to have an attachment order made against his wages. The law says, "Never mind about all that. You have got to go to prison and"—as it stood before the next Amendment—" that wipes out your debt. We insist on your going to prison and we insist on your wiping out the debt. "That is absurd, and I am sure that the noble and learned Viscount will not allow this injustice to continue merely because he cannot find a way of dealing with it in this Bill.

May I say, as I was going to say on the next Amendment, that I congratulate the Government on the ingenuity with which they have been able to find their way round the difficulties which confronted the other place in connection with the matters dealt with in the next series of Amendments. They have found a way Out, and, if my memory serves me well, I think they used all the same arguments used for this Amendment as a reason for not being able to do anything in the matters dealt with in the next one. They have been exceedingly ingenious, when pushed to it, in finding a solution there, and I have no doubt at all that, with equal ingenuity, they will find a way of dealing with this difficulty. However, the noble and learned Viscount has agreed to consider the matter, and I therefore beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 8 to 15, agreed to.

THE LORD CHANCELLOR moved, after Clause 15 to insert the following new clause:

Amendment of 15 & 16 Geo. 6. and 1 Eliz. 2. c. 55. s. 74

".—(1) Section seventy-four of the Magistrates' Courts Act, 1952 (which relates to the enforcement of payments under affiliation orders and orders enforceable as affiliation orders) shall have effect, in relation to complaints under that section made on or after the date on which this section comes into operation and to proceedings in pursuance of such complaints, as if for subsections (3) to (7) thereof there were substituted the following subsections, that is to say—

"(3) In relation to complaints under this section, section forty-seven of this Act shall not apply and section forty-eight thereof shall have effect as if the words 'if evidence has been received on a previous occasion were omitted.

(4) Where at the time and place appointed for the hearing or adjourned hearing of a complaint under this section the complainant appears but the defendant does not, the court may proceed in his absence:

Provided that the court shall not begin to hear the complaint in the absence of the defendant unless either it is proved to the satisfaction of the court, on oath, or in such other manner as may be prescribed, that the summons was served on him within what appears to the court to be a reasonable time before the hearing or adjourned hearing or the defendant has appeared on a previous occasion to answer the complaint,

(5) If a complaint under this section is substantiated on oath, any justice of the peace acting for the same petty sessions area as a court having jurisdiction to hear the complaint may issue a warrant for the defendant's arrest, whether or not a summons has been previously issued.

(6) A magistrates' court shall not impose imprisonment in respect of a default to which a complaint under this section relates unless the court has inquired in the presence of the defendant whether the default was due to the defendant's wilful refusal or culpable neglect, and shall not impose imprisonment as aforesaid if it is of opinion that the default was not so due; and, without prejudice to the foregoing provisions of this subsection, a magistrates' court shall not impose imprisonment as aforesaid—

  1. (a) in a case in which the court has power to make an attachment of earnings order under the Maintenance Orders Act. 1958, unless the court is of opinion that it is inappropriate to make such an order;
  2. (b) in any case, in the absence of the defendant;

(7) Notwithstanding anything in subsection (3) of section sixty-four of this Act, the period for which a defendant may be committed to prison under a warrant of commitment issued in pursuance of a complaint under this section shall not exceed six weeks.

(8) The imprisonment or other detention of a defendant under a warrant of commitment issued as aforesaid shall not operate to discharge the defendant from his liability to pay the sum in respect of which the warrant was issued."

(2) Subsections (7) and (8) of the said section seventy-four as amended by the foregoing subsection shall have effect in relation to a warrant of commitment issued on or after the date on which this section comes into operation in pursuance of a complaint under that section made before that date (not being a warrant of which the issue was postponed before that date by virtue of section sixty-five of the said Act of 1952) as those subsections have effect in relation to a warrant of commitment issued in pursuance of such a complaint made after that date."

The noble and learned Viscount said: This Amendment has already been spoken to by Lord Silkin in very generous terms. The history is that during the passage of the Bill through the Commons it was strongly represented that a logical consequence of Part I of the Bill was that imprisonment imposed by a magistrates' court in default of maintenance payments should be subject to a maximum term of six weeks and should not extinguish the liability to pay arrears. This would bring the magistrates' court provisions into line with the High Court and county court provisions. At present, imprisonment imposed by a magistrates' court is subject to a maximum term of three months if the amount of the default is more than £20, and wipes out the arrears. And it was said that it would be anomalous to have provisions applying to a High Court order in the High Court which were fundamentally different from those applying if an order were registered in a magistrates' court under Part I of the Bill.

There are strong arguments in favour of bringing the provisions into line with those for the High Court and county court. I am not going to go through them in detail, but the Royal Commission on Marriage and Divorce recommended that imprisonment should not wipe out arrears, subject to the man's not being committed more than once in respect of the same arrears. Strong arguments were advanced in another place, and strong arguments will now appeal to your Lordships from the consideration which you have been good enough to give to this Bill. My right honourable friend the Home Secretary, after careful consideration of the arguments of both sides, gave an undertaking in the Commons on Report that, after the necessary consultation, Government Amendments would be put down in your Lordships' House to reduce the maximum term to six weeks and to provide that imprisonment did not wipe out arrears. I mentioned that on the Second Reading when the noble Lord, Lord Silkin, raised the matter.

The method to which the noble Lord, Lord Silkin, has referred has been by dealing with Section 74 of the Magistrates' Courts Act, 1952; and I draw attention to the new subsection (6) only because some Amendments of the noble Lord, Lord Silkin, deal with that subject matter. The new subsection (6) precludes the imposing of imprisonment unless the court has inquired, in the defendant's presence, whether the default was due to his wilful refusal or culpable neglect and is of opinion that the default is so due. The new subsection also precludes the imposing of imprisonment where attachment of earnings order could be made and is appropriate, or in the absence of the defendant. The second new clause (if I might mention it now, and then I need not take up more of your Lordships' time) will have the effect of preventing a man from being imprisoned more than once in respect of the same arrears.

Amendment moved—

After Clause 15, insert the said new clause. —(The Lord Chancellor.)

LORD SILKIN moved, as an Amendment to the Amendment, in subsection (6) of the proposed new clause, to omit "in the presence of the defendant". The noble Lord said: I have already welcomed the new clause. Subsection (6) of the new clause provides that the magistrates shall not impose imprisonment unless they are satisfied that the person is in a position to pay (I am paraphrasing) and unless they have made inquiries in the presence of the defendant whether the default was due to the defendant's wilful refusal or culpable neglect, and shall not impose imprisonment in the absence of the defendant. Earlier provisions of this clause lay down that the case may be dealt with in the absence of the defendant if there is evidence on oath that the order has been served on him and, therefore, that he has had ample notice. That evidence has to be on oath, and therefore there will he no doubt in the minds of the court that the defendant is aware of the proceedings.

Then the new clause goes on to say that the defendant, being aware of the proceedings, shall not be committed to prison unless he is present. It seems to me that any defendant, wishing to avoid imprisonment, can take the simple expedient of not being present. There is nothing to make him attend: he is not committing any act of contempt of court if he does not attend. The proceedings may take place in his absence—this clause contemplates that—but they will be fruitless because he is not present. Unless there is something in the new clause which I have not followed, it seems to me that it is self-destructive in this respect. I realise that in the majority of cases it would not be necessary because attachment proceedings would be a satisfactory alternative, but I should be grateful if the noble and learned Viscount would explain how he gets over this dilemma. Although in certain circumstances The new clause contemplates imprisonment, nevertheless the order cannot be made except in the presence of the defendant; and, as I say, the defendant can simply not turn up and thereby avoid a committal order against him. Both this Amendment and my next cover the same point. I beg to move.

Amendment to Amendment moved— In subsection (6), line 3 of the proposed new clause, leave out ("in the presence of the defendant.").—(Lord Silkin.)

5.52 p.m.

THE LORD CHANCELLOR

I think that it will be convenient, and I believe it was implicit in what the noble Lord, Lord Silkin, said, if I deal with both his Amendments to the Amendment together.

The effect of accepting them would be to dispense with the requirements of the new subsection (6), that the defendant should be present when the court inquires whether the default was due to his wilful refusal or culpable neglect, and that the court shall not impose imprisonment in the defendant's absence. The present subsection (3) of Section 74, the section which we are amending, requires the defendant's presence throughout the proceedings. The new subsection (6) is designed to restrict the need for the defendant's presence to those parts of the proceedings for which it is strictly necessary, now that there is to be power to make an attachment of earnings order in ordinary enforcement proceedings—namely, when the court is inquiring into the reasons for the default and when imprisonment is being imposed.

We feel that the first point—that is, when the court inquires whether the fault was due to wilful refusal or culpable neglect—stems from the essentially inquisitorial nature of the proceedings. It is fundamental to them that a defaulter who has not been wilfully refusing or culpably neglectful should not be imprisoned for his default. To ensure this, it is essential to have the man there. Many defaulters are of such a type that, if it were left to them to go to court and explain that the arrears had accrued through no fault of their own, they would simply not be there to do so. I know very well from my experience in the Law Courts that that is so; and in such a case the difficulty is that when a defendant does not conic (I am sorry to use a double negative but it is the only way I can explain it) the court will almost certainly not be of the opinion that the default was not due to wilful refusal or culpable neglect. In other words, because he did not come they would probably think it was.

If the noble Lord's first Amendment was accepted, the court would not be prevented from imposing imprisonment. As at present, the court should be required to inquire in the defendant's presence in every case. I feel that committal to prison is a more serious step than attaching earnings, and it has been thought right that, before this step was taken, the court should see the man and find out what explanation he has to give. The provision will operate primarily for the protection of the mart. The court will have power under the new subsection (5) to have the man arrested, but the warrant of arrest can be endorsed for bail if the court sees fit and the court can, in suitable cases, issue a summons instead of a warrant. These are powers which the court has under the present section.

The necessity for retaining paragraph (b) of the new subsection (6) stems from the general undesirability of a court's imposing imprisonment without first hearing what the man has to say by way of showing why he should not be deprived of his liberty. Here again, we feel that it would be insufficient to leave it to the man to turn up: the court should be obliged to have the man there, as I think the noble Lord had in mind. The first requirement will cover the point in many cases, since where the court has inquired into the reason for the default and not found it to be innocent, it may thereupon decide what action to take. But there may be cases where, after so finding, the court adjourns—for example, to hear evidence on a claim by the defendant that he has earnings which could be attached as an alternative to imprisonment. Therefore paragraph (b), which the noble Lord, Lord Silkin, proposes to leave out, is necessary to ensure that at the adjourned hearing imprisonment is not imposed in the defendant's absence. Where the court has not been satisfied immediately after the inquiry that imprisonment is unavoidable, it seems particularly desirable to ensure that the man should be able to say why it can still be avoided.

There is another aspect which the noble Lord raised. He will see that where only paragraph (b) bites, the defendant need not be present in person, since by Section 99 of the Magistrates' Courts Act an absent party represented by counsel 07 solicitor is deemed not to be absent. But, of course, the difficulty, as I think the noble Lord will agree, is that in this type of case it is likely to be uncommon for the defendant to be represented. I have endeavoured to deal with these points, and again I hope that the noble Lord will not press his Amendment. It is difficult to hold the scales even on this point, but that is what we are trying to do. I will consider carefully what the noble Lord has said in his speech, and I hope that he will not press the Amendment to the Amendment.

LORD SILKIN

Of course, on the promise which the noble and learned Viscount gives, which he always carries out, to consider the matter again, I will gladly not press the Amendment. But the noble and learned Viscount appears not to have followed my point. It is a very simple one: if a man cannot be imprisoned unless he is present, if he does not turn up the court cannot imprison him, so that the sanction of imprisonment is valueless. There is no way of getting the defendant to the court. He certainly will not instruct solicitor or counsel to represent him, and he will not come himself if there is the slightest danger of his being imprisoned. Therefore, what is the point of all this?

THE LORD CHANCELLOR

I understand that a warrant can be issued and he can be brought before the court.

LORD MERRIMAN

Subsection (5) says that he can be arrested and brought before the court.

THE LORD CHANCELLOR

That is the point. I think I did mention it in my speech, but I apologise to the noble Lord, Lord Silkin, if I did not make it clear. As my noble and learned friend Lord Merriman says, it is covered by subsection (5).

LORD SILKIN

I do think it needs looking at again: I am not altogether satisfied. However, I will look at it again. and if the noble and learned Viscount will do the same, maybe we can arrive at something satisfactory. I beg leave to withdraw the Amendment to the Amendment.

Amendment to Amendment, by leave, withdrawn.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is the Amendment I mentioned as carrying out part of the purpose which we all had in mind. I beg to move.

Amendment moved—

After Clause 15, insert the following new clause:

Prohibi[...]ion of committal more than once in respect of same arrears

".Where a defendant has been imprisoned or otherwise detained under an order or warrant of commitment issued in respect of his failure to pay a sum due under a maintenance order, then, notwithstanding anything in this Act. no such order or warrant shall thereafter be issued in respect of that sum or any part thereof.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

6.2 p.m.

THE LORD CHANCELLOR moved, after Clause 15, to insert the following new clause:

Revocation and variation of Orders in Council under 10 & 11 Geo. 5. c. 33, s. 12

". Her Majesty may by Order in Council revoke or vary any Order in Council made under section twelve of the Maintenance Orders (Facilities for Enforcement) Act, 1920 (which provides for the extension of that Act by Order in Council to certain oversea territories), and an Order under this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient for the purposes of that Act."

The noble and learned Viscount said: It may he for the convenience of the Committee if I deal with Amendments Nos. 13, 16, 17 and 18 together. They all arise out of the position under the Maintenance Orders (Facilities for Enforcement) Act, 1920, which provides for the registration and enforcement in this country of Commonwealth maintenance orders and for the sending for enforcement in a Commonwealth country of an English order. The Commonwealth countries concerned are those parts of Her Majesty's Dominions or those British Protectorates to which the Act is extended by an Order in Council under Section 12 of the Act; and Section 12 enables an Order in Council to be made where Her Majesty is satisfied that reciprocal provisions have been made by the Legislature of the country concerned. There are now forty-four such Orders in Council, and their total effect is not particularly easy to follow, especially where Orders relate to different parts of what is now one country, such as Ghana. Since there is no power to vary or revoke these Orders in Council, consolidation is not possible, although it is clearly desirable. The Amendments will give the necessary powers. I beg to move.

Amendment moved— After Clause 15, insert the said new clause.—The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 16 [Special provisions as to magistrates' courts]:

THE LORD CHANCELLOR

I beg to move.

Page 16, line 23, at end insert—— ("() A complaint for an attachment of earnings order may be heard notwithstanding that the complaint was not made within the six months allowed by section one hundred and four of the Magistrates' Courts Act, 1952.")— (The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This is on a different point and not in the group which I mentioned. Your Lordships will see that this Amendment has been put down for the avoidance of doubt. It is to deal with the general rule of law, the principle of res judicata, that a court cannot re-hear a matter which it has already decided. It is just possible that this principle might be held to prevent an attachment of earnings order from recovering an amount for which a complaint has previously been dismissed; and yet, for instance, the defaulter might have subsequently found regular employment and an attachment of earnings order could appropriately be made. I think, in the circumstances, it is a reasonable step to take. I beg to move.

Amendment moved— Page 16, line 23, at end insert— ("(6) For the avoidance of doubt it is hereby declared that a complaint may be made to enforce payment of a sum due and unpaid under a maintenance order notwithstanding that a previous complaint has been made in respect of that sum or a part thereof and whether or not an order was made in pursuance of the previous complaint.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 16, as amended, agreed to.

Clauses 17 and 18 agreed to.

Clause 19 [Short title, extent, commencement and repeals]:

THE LORD CHANCELLOR

This is a consequential Amendment. I beg to move.

Amendment moved— Page 19, line 7, after ("except") insert ("section (Revocation and variation of Orders in Council under 10 & 11 Geo. 5. c. 33, s. 12) and").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 19, as amended, agreed to.

Schedule agreed to.

THE Title:

THE LORD CHANCELLOR

I beg to move the first Amendment in the Title.

Amendment moved— Line 5, after ("orders;") insert ("to make provision").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move.

Amendment moved— Line 8, after ("orders;") insert ("to amend section seventy-four of the Magistrates' Courts Act, 1952, and to enable Orders in Council under section twelve of the Maintenance Orders (Facilities for Enforcement) Act, 1920, to be revoked or varied;").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Title, as amended, agreed to.

House resumed.