ADMINISTRATION OF JUSTICE BILL [H.L.]

HL Deb 20 January 1970 vol 307 cc13-61

3.2 p.m.

THE LORD CHANCELLOR

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 1 [Redistribution of business among divisions of the High Court]:

THE LORD CHANCELLOR moved Amendment No. 1: Page 2, line 23, leave out ("senior") and insert ("principal").

The noble and learned Lord said: My Lords, I beg to move the first Amendment standing in my name on the Order Paper. I am afraid that after the excitement of the Insolvency Services (Accounting and Investment) Bill your Lordships may find the Report stage of this Bill rather dull, but I shall do my best.

The first Amendment arises in this way. The Supreme Court of Judicature (Consolidation) Act 1925 was a straight consolidation. The chief probate registrar was referred to in some of the Acts consolidated as "the senior probate registrar" and in others as "the principal probate registrar"; and I am afraid that that habit has been followed so far in this Bill. That does not seem at all sensible. It would be right, I think, to choose what his title should be, and to stick to it. As between, those two titles, "the senior probate registrar" suggests that the one who has been longest in office will always be appointed as the chief registrar, and that might not be desirable. Therefore the object of this Amendment is to fix his title as "principal probate registrar". While dealing with this Amendment, perhaps I may mention Amendments Nos. 32 to 36 inclusive, which have exactly the same object. I beg to move the first Amendment.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 2A: After Clause 3, insert the following new Clause:

The Vice-Chancellor

".—(1) The Lord Chancellor may, from among the puisne judges for the time being attached to the Chancery Division of the High Court, nominate one of them to be Vice-Chancellor, who shall be responsible to the Lord Chancellor (as president of the Chancery Division) for the organisation and management of the business of the division.

(2) The Vice-Chancellor shall be included among the persons with power under section 99(4) of the Supreme Court of Judicature (Consolidation) Act 1925 to make rules of court; and in that subsection—

1. (a) for the words 'and four other judges' there shall be substituted the words ' the Vice-Chancellor and three other judges'; and
2. (b) for the words 'The four' there shall be substituted the words 'The three'."

The noble and learned Lord said: My Lords, Amendment No. 2A concerns another question of a title. In the Court of Appeal and in each of the Divisions of the High Court there must necessarily always be a judge who is responsible for the management and administration of that Division—which judges are to take which cases; what is to happen if a judge is ill, and so forth. In the Court of Appeal this is the Master of the Rolls; in the Queen's Bench Division it is the Lord Chief Justice; in the Probate, Divorce and Admiralty Division it is the President. In the Chancery Division, the judge who has this responsibility has no special name. The Lord Chancellor has always been the President of the Chancery Division and, of course, used to sit in the Lord Chancellor's Court. And for times when he could not sit, from as early as 1813 there was a Vice-Chancellor; and at subsequent periods there have been as many as three Vice-Chancellors.

The fact that the judge responsible has no name is somewhat awkward. In the profession he is referred to as the senior judge of the Chancery Division; but sometimes he is not. In fact he has not been for a good many years, because Mr. Justice Lloyd Jacob, whose recent death we all deplore, was, strictly, the senior judge of the Chancery Division, but he was the patents judge, dealing only with patents and trade marks, and therefore not having great experience of the ordinary work of the Division. Therefore, another judge—Mr. Justice Cross (until he became a Lord Justice), and since then Mr. Justice Buckley—has acted in this capacity. So the only object of this Amendment is to find an appropriate title by which the judge who is responsible for the administrative work of the Division should be called, and "Vice-Chancellor" seems the obvious title.

The second part of the Amendment provides that the Vice-Chancellor shall be ex-officio a member of the Rule Committee. Here again, the only object is to regularise the existing position. The existing statutory provision is: Rules of court may be made by the Lord Chancellor together with any four or more of the following persons, namely, the Lord Chief Justice, the Master of the Rolls, the President of the Probate Division, and four other judges of the Supreme Court, two practising barristers being members of the General Council of the Bar, and two practising solicitors of whom one shall be a member of the Council of the Law Society and the other a member of the Law Society and also of a provincial Law Society. Accordingly, what is proposed is that the Vice-Chancellor should be added, but in order not to disturb the composition "the four other judges" will become "the three other judges". In fact, of course, some rules may relate only to the Chancery Division, and in practice the senior judge of the Chancery Division has always been a member of the Rule Committee. So this will do no more than regularise the existing provision. My Lords, I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I welcome this new clause. It seems rather pleasant to revive the old title of "Vice-Chancellor", which graced the Law Reports for over half a century, at any rate, in the 1800s. This is obviously the right name for the senior judge—the principal judge, should I say? —in the Chancery Division. The rest of the new clause, in subsection (2), is pure machinery, which I think is also entirely to be welcomed.

On Question, Amendment agreed to.

3.10 p.m.

THE LORD CHANCELLOR moved Amendment No. 3: After Clause 4, insert the following new clause:

Court of Appeal (criminal division)

".—(1) A court of the criminal division of the Court of Appeal shall, for the purpose of exercising any of its jurisdiction, be duly constituted if it consists of an uneven number of judges, not being less than three.

(2) A court of the said division shall be duly constituted if it consists of two judges, but not for the purpose—

1. (a)of determining an appeal; or
2. (b)of determining an application for leave to appeal to the House of Lords; or
3. (c)of refusing an application for leave to appeal to the criminal division, other than an application which has been refused by a single judge under section 31 of the Criminal Appeal Act 1968.

(3) In section 45(2) of the said Act of 1968 (which defines "single judge", for the purposes of sections 31 and 44 of the Act, as meaning any judge of the Court of Appeal or of the Queen's Bench Division of the High Court) the words "of the Queen's Bench Division of" shall be omitted.

(4) In section 83(1) of the Criminal Justice Act 1967 (which enables the Secretary of State to make regulations about legal aid in criminal cases and, by paragraph (b), enables a court's powers in relation to legal aid to be made exercisable by a member or officer of the court) that paragraph shall have effect in relation to the criminal division of the Court of Appeal as if for the reference to a person entitled to sit as a member of the court there were substituted a reference to any judge of the court or of the High Court."

The noble and learned Lord said: My Lords, we now come to a somewhat more complicated matter. This is a new clause which affects the functioning of the Criminal Division of the Court of Appeal in two ways: first, by permitting a court of two judges to dispose of certain matters which can currently be disposed of only by a court consisting of at least three judges; and, secondly, by making it clear that the "single judge" powers under the Criminal Appeal Act 1968 may be exercised by any High Court Judge.

Under the Criminal Appeal Act 1966, which transferred to the Court of Appeal the jurisdiction previously exercised by the Court of Criminal Appeal, a court of the Criminal Division must consist of at least three judges. On this point there are two distinctions between the Act of 1966 and the Criminal Appeal Act 1907 which originally established the Court of Criminal Appeal: one, there is now no statutory requirement that the court must consist of an uneven number of judges; and, two, no express provision is now made for the constitution of the court when dealing with an application as distinct from an appeal. However, in both these matters the Criminal Division has invariably followed the practice of the Court of Criminal Appeal and the full court always sits with an uneven number of judges, never less than three.

Under Sections 31 and 44 of the Criminal Appeal Act 1968, which consolidated and now governs the exercise of the Criminal Division's jurisdiction, certain powers of the Criminal Divsion can be exercised by a single judge, whether of the Court of Appeal or of the Queen's Bench Division. These powers do not extend to the determination of an appeal or of an application for leave to appeal to the House of Lords, but do cover a number of ancillary matters, of which far the most important is the giving of leave to appeal to the Criminal Division, whether against conviction or sentence. The present position is that there are only three cases in which there is an absolute right of appeal to the Court of Appeal in a criminal case. One is where the appeal is solely on a point of law; the second is where the trial judge certifies that it is a case fit for the consideration of the Court of Appeal; and the third is where a case is referred to that Court by the Home Secretary. In all other cases leave has to be obtained.

Under Section 31 of the Act of 1968, a single judge can grant or refuse leave to appeal. If he grants leave, the appeal comes before the full court of three judges in the normal way, and the new clause does not in any way affect that. But if a single judge refuses leave, the appellant has a statutory right under Section 31 to renew his application before the full court, whose decision is final. Thus, if the full court refuses leave to appeal—whether after prior refusal by a single judge or at first instance—the appellant has exhausted his rights. An application for leave to appeal made to a single judge is dealt with in private and not at a formal sitting of the court. It is also normally dealt with on the papers; that is to say, on an examination of the notice of application (which will include the grounds of appeal), the relevant trial documents, a transcript of the essential parts of the shorthand note taken at the trial and other vital documents such as probation and borstal reports and other matters relevant to sentence. These papers, which may be voluminous, are considered by the single judge, who frequently has at the same time to consider related applications; for example, legal aid, bail pending appeal, and so on. If the judge refuses leave to appeal, these ancillary applications will also be re-fused; if leave is granted, or if the judge decides to refer the principal application to the full court, they will be dealt with as appropriate.

Refusal of leave to appeal by a single judge may, as I have already explained, lead to renewal before the full court in which case the papers in the case have to be studied by each of the three judges constituting the court. When the judges look at these papers—and the noble and learned Lord the Lord Chief Justice can explain all this better than I can—they do not simply pay attention (nor does a single judge simply pay attention) to the grounds of the appeal which the man sets out; because in the large majority of cases the man has done his own form of application and, not unnaturally, he does not really know what a point of law is: they read all the summing up and the papers in the case to see whether there is any ground, whether it is contained in the notice of application or not; whether the summing up omits anything that it ought to have contained, or whether there has been any misdirection or any misreception of evidence and so on. And this occupies a considerable amount of time.

Refusal of leave to appeal by a single judge may lead to a renewal before the full court, in which case, as I have said, the papers have to be considered by all three judges. There is a well-established practice that if any one member of the full court thinks that there is an arguable case, leave is given. Thus, where the papers go before a single judge in the first instance, the appellant will succeed in getting leave if any one out of four judges comes to the conclusion that there is an arguable case. Where the application goes straight to the full court he will succeed if one out of the three are of that opinion.

The justification for the present proposal, that in those and other cases of ancillary jurisdiction and interlocutory matters the court may consist of two judges, is that this latter principle gives a wide enough right of appeal without involving unnecessary expenditure of the judges' time. The main effect of the proposal is that if an application has been refused by a single judge and is then renewed to the full court, a court of two judges should have power to determine the question of leave to appeal finally. If either of these two judges thinks that there is an arguable case, the current practice of the court will ensure that leave is given; so that the applicant will get his leave if one out of three judges considers that there is a case worth arguing.

My Lords, the practical advantage of the proposal is considerable. Every time an application is renewed after refusal by a single judge, three judges have to examine the papers for the purpose of seeing whether there is an arguable case. The reading of these papers imposes a considerable burden on the judges: for example, the business of the full court in 1969 meant the examination by the judges of 8,013 sets of papers. If a two-judge court could have dealt with those applications which had pre viously been refused by a single judge, 1,108 fewer sets of papers would have had to be read. This would have represented an appreciable saving in judges' time and the time so saved could more usefully have been expended in doing "single-judge" work. Few people, I venture to suggest, appreciate how much work judges have to do out of court; and this question of reading papers in applications for leave to appeal means, I know, that many judges have to take work home for the weekend, to spend literally most of the weekend reading vast piles of these papers.

The volume of criminal appeals has greatly increased over the past five years and shows no sign of diminishing. We did not help, I think, in this respect by two provisions of the Criminal Justice Act. When that Act was passed, the Criminal Division of the Court of Appeal could increase the sentence where there was an appeal against sentence; and secondly, in most cases the time occupied did not count against sentence. It seemed to us that both these things were rather unfair. It was very unusual for the court, in fact, to increase a sentence; but it did mean in the case of every appeal against sentence that one had to warn the man that there was a possibility that if he appealed against sentence it might not only not be reduced but might be increased. In occasional cases one had to say, "You are just as likely to get it increased as reduced." Secondly, so far as loss of time was concerned, it did not really seem fair that a man should spend an additional period in prison because he dared to exercise his legal right to appeal.

But the result of curing those two in-justices, as I think they were, is that there is now virtually nothing to lose by appealing. The numbers of appeals, mostly in person, have accordingly increased enormously. In 1965, when the Donovan Committee on the Court of Criminal Appeal reported, the number of new cases registered was 3,449. The numbers in 1966, 1967 and 1968 were 4,451, 6,932 and 8,714. For 1969, the figure was 9,698. There are many, and often substantiated, complaints about the interval which normally elapses before an application to the Criminal Division is disposed of. The noble and learned Lord, the Lord Chief Justice, has made it clear that the difficulties facing the courts stem from the sheer volume of applications most of which—probably about three-quarters—are absolutely hopeless from the start. Nevertheless, each application has to be examined by a judge before it can be said whether there is an arguable case, and the consequential demand on the Judiciary puts a considerable strain on it The two-judge court would ease that strain without involving any undue restriction on the right of appeal.

It may be remembered that in 1965 the Donovan Committee considered a related proposal; namely, that all applications for leave to appeal should be heard by a two-judge court, sitting in private, whose decision would be final. The Committee rejected this proposal (paragraph 240) on the grounds, first, that it represented a serious restriction on the right of appeal; secondly, that final decisions of such importance should not be reached in private; and, thirdly, that the saving in judge power, though significant, would not be enough to outweigh these disadvantages. The present proposal, however, is very different. It does not involve a private hearing; it still allows the applicant to succeed if one out of three judges thinks that he has an arguable case. Thirdly, the need for not wasting judges' time is greater now than it was in 1965. It is accordingly proposed that a two-judge court, while not able finally to determine an appeal, shall be able to deal with applications for leave to appeal, and with a number of ancillary matters.

Putting it at its lowest, it is very doubtful whether a High Court judge, other than a judge of the Queen's Bench Division, has jurisdiction to exercise these powers, and the second part of the new clause provides that any High Court judge shall be able to act as the single judge for the purpose of an application for leave to appeal. The Act of 1968 provides in terms that the powers are exercisable by a judge of the court or of the Queen's Bench Division of the High Court. Although under Section 7 of the Judicature Act 1925 a judge of any division can, if so requested by the Lord Chancellor, sit as an additional judge in the Court of Appeal, it is very far from clear whether this would enable a judge of the Chancery or Probate Divi sions to do single-judge work, as distinct from sitting in the full court.

My Lords, it is most desirable that all judges of the High Court should be able to do this work and thus relieve the current strain on the Queen's Bench judges. In the first place, most of the judges of the Probate Division have considerable criminal experience and regularly deal with criminal cases on assizes. They go on circuit and while on circuit are not limited to divorce cases; they can also hear common law cases, and crime. Ten of them have held recorderships before being appointed to the Bench. Seven are chairmen, or deputy chairmen, of quarter sessions, and an eighth was deputy chairman until last year. Moreover, those who in due course become Lords Justices of Appeal are likely to be invited from time to time to sit in the Criminal Division, and experience of single-judge work will keep them familiar with the court's practice. The main advantage to be gained is the relief of the very heavily burdened Queen's Bench judges and the consequentially greater facility for bringing applications quickly before a single judge.

My Lords, before I formally move this Amendment may I say that, as this is the last Amendment to be moved under Part I of the Bill, I am disappointed not to be able to move an Amendment to provide that the judges of the Commercial Court may sit as arbitrators. I am hoping to do so on the Third Reading of the Bill, but I thought that I should mention the point now. On the whole, I should prefer, even if it were the Third Reading, to move an Amendment in your Lordships' House, rather than it should be moved in another place where this House would have had no opportunity to consider it. My Lords, I beg to move.

3.25 p.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, I am sure that the House will be grateful to the noble and learned Lord the Lord Chancellor for his extremely full explanation of what is not, on its face, a very easy matter. As I understood his argument, the main job of the two-judge court will be simply to deal with applications which have already been refused by the single judge. I do not know whether there are other jobs for the two-judge court, but I did not think so from listening to the noble and learned Lord.

The LORD CHANCELLOR

My Lords, I did not want to go into too much detail, but the two-judge court will, in effect, be able to do everything except those things which are excluded by subsection (2) of the new clause.

Viscount COLVILLE of CULROSS

Then, my Lords, there is a strange wording, which I do not altogether understand, in subsection (2)(c) of this new clause. I can understand that the two-judge court can either grant or refuse leave to appeal to the Criminal Division of the Court of Appeal where a single judge has already dealt with the matter and has refused leave. But what, apparently, they can also do is to grant an application for leave to appeal which is made to the Criminal Division in the first instance without its having gone first to the judge. The only thing they are not allowed to do is refuse leave to appeal when it comes up at first instance. My Lords, how does the court know at the beginning of the hearing of an application for leave to appeal to the Criminal Division, which has not already been to the single judge, whether they are going to grant or refuse that leave? If they are going to refuse it, they have to get another judge; if they are going to grant it, as I understand, they can do so with two judges. That seems a little strange and I wonder why the word"refusing"rather than"dealing with"appears at the beginning of subsection (2)(c). If the noble and learned Lord could explain that it would allay my doubts about the correctness of this particular draft.

I should have thought that the general case which the noble and learned Lord has put forward is a perfectly sound one. If the noble and learned Lord the Lord Chief Justice—and, of course, the noble and learned Lord the Lord Chancellor— thinks that this will provide all the protection that an appellant needs, I certainly do not want to disagree with them. I should like the noble and learned Lord to answer that point at some time.

The other thing that seems a little alarming is the statistics he gave us about the number of appeals since the provisions in the Criminal Justice Act 1967. He told us of the restraints and the danger to the appellant which had been removed. But what 1 seem to recall having been included in the Criminal Justice Act 1967 is a provision whereby a person who has been convicted by assizes or quarter sessions and who wishes to appeal to the Criminal Division can get, as he previously could not, legal aid to draft his appeal. It would seem that the effect of that has been almost entirely nil. It may be that some people have applied for legal aid and have been told by their counsel that they have no case, and then they have simply appealed on their own. But the statistics seemed to suggest that legal aid had not been granted in these cases, and that the prisoners, as they did before, have proceeded to sit down in their cells and write out whatever formula they were able to get hold of to constitute an appeal to the Criminal Division. I believe that this was intended to be avoided by the provisions in the 1967 Act, and I wonder whether that has fallen rather flat and has been much more disappointing in its effect than we hoped at the time. I should be very interested to know whether the noble and learned Lord has any information on that subject.

The LORD CHANCELLOR

My Lords, as we have the great advantage of the presence of the noble and learned Lord the Lord Chief Justice, I should like to wait to hear what he may say.

3.29 p.m.

Lord PARKER of WADDINGTON

My Lords, I welcome the Amendment introduced by this new clause. The work of the Queen's Bench judges has increased so enormously over the last ten years that anything that can be sensibly done to ease the strain would be worth while. When I say, "ease the strain ", I do not mean that they should have less to do, but that they should be able to use their time to do the other, more necessary, work. In connection with Clause 4, I felt constrained to explain, on Second Reading, the difficulties the judges were having in dealing with work, both civil and criminal, on assize. The difficulties in London are no less great. If I may take civil work, the figure of Queen's Bench writs issued in 1969 was 96,000, as compared with 76,000 for 1968—a sensational increase in civil litigation of 20,000 plaints in the Queen's Bench alone.

To take another matter, the interlocutory work which a judge has to deal with in chambers, whereas until recently that work could be done by one judge, now most of the time it is necessary to have two judges to cope with that work. Again, take the criminal work in London. It is often necessary now to have two judges available to deal with bar applications alone, something which was unheard of two or three years ago.

When we come to applications for leave to appeal, as the noble and Jearned Lord the Lord Chancellor has said, these applications have increased enormously. The figures for 1969 are now available and they show, within one or two, 9,700 applications to the Criminal Division of the Court of Appeal, as against 8,700 in 1968, an increase of almost 1,000 in one year; and I have little doubt that in the current year applications will reach the five-figure range. Nor is it a question that appellants are just becoming more appellate-minded, because the Criminal Statistics issued by the Home Office (which I am afraid are always months behind) show that for the first quarter of 1969 there was an increase of 25 per cent, over the corresponding period in 1968 of persons found guilty of indictable offences. In other words, if that increase continues, the potential number of appellants to the Criminal Division of the Court of Appeal, will rise by 25 per cent., so that the five-figure range of applications is almost a certainty.

Last year, the full Court of Appeal dealt with some 2,671 cases and 7,287 were channelled or routed to a single judge. May I make this position plain? Nothing short of a full court of the Criminal Division, consisting of three judges, can refuse an application. Of course, we could not deal with those numbers; we should have to sit in division after division of the Court of Appeal. Therefore, it is necessary to route or channel as many of these applications as possible to what we refer to as a single judge—a different judge, of course, among those who are available—exercising the powers of the full court.

But if the single judge refuses leave to appeal, then the prisoner has an absolute right to come to the full court of three. The result is that last year judges had to read, as single judges, no fewer than 7,287 applications—and, I may add, most of that in their spare time. On these figures, it is clear that a number of the cases dealt with in the Criminal Division of the Court of Appeal will be these renewed applications. In 1968, they numbered 1,100. The figures for 1969 are not out but they are clearly going to be more, and in 1970, more still. So that if it is possible to save one judge reading 1,100, 1,200 or 1,300 of these cases, it may well be that over a year there will be almost a saving of one judge. Clearly that is desirable, if it can be done without prejudice to the prospects of the appellants.

I venture to think that there is no prejudice. As I have said, the theory is that only three judges can refuse an application. Traditionally, if any one of those three thinks that there is a case to be argued, leave to appeal is given, and accordingly, but for this routing or channelling to the single judge, a prisoner would have his papers read and considered by three judges. The effect of channelling these cases to the single judge is that the mar has the advantage of his case being considered by four judges—the single judge who has refused the application and then, when he comes to the full court, by three judges.

I venture to think that there is no reason why a man should have his case considered by more than three judges, which is what is provided for by Statute and what happens time after time now with the cases that are not routed to the single judge. Many are not cases where a man is privately represented. They may be cases of short sentences, and sending them to the single judge would only delay matters so that when they came finally to be dealt with the prisoners would have served their sentences. Accordingly, what this Amendment does is to provide what a man alone is entitled to—the opinion of three judges, because it is only by reason of this convenient arrangement of using the single judge that he now gets the opinion of four judges. I welcome this Amendment, because I think that it will enable the judges to do more of the work, whether civil or criminal, which is really needed to be done.

Before I sit down, may I refer to what the noble Viscount, Lord Colville of Culross, said on the question of the use being made of legal aid in regard to advice on appeal. As the noble Viscount said, it is not working well. We took a sample from the Inner London Sessions. We found that only about 5 per cent, of prisoners made use of the new arrangements whereby they are entitled to the advice of solicitor and to have the grounds of appeal settled by counsel, if there are any. A form letter has now been circulated, which prisoners get as soon as they arrive in prison, informing them of their rights under legal aid to advice, solicitor and counsel, and setting out, below a perforated line, a draft letter to the solicitor. All the prisoner has to do is to fill in the name of his solicitor and sign his own name; then he can get advice. That arrangement has only been working for about a month, and all I can say at the moment is that it has possibilities. I put it no higher than that.

The real difficulty is the prison rule called Rule 52. Under this rule a prisoner is entitled to special treatment, which means visits and letters, as soon as he puts in an application. Human nature being what it is, a prisoner, under the shock of his conviction, wanting to see his family and to have visits and letters, puts in his application at once, without consulting his solicitor or counsel. I think that in the last resort the only thing to do will be to change prison Rule 52, to provide, as an act of humanity, that for X days (be it 7, 14 or 21) a man should get special treatment, should be able to see his family and have letters, and that thereafter the special treatment should cease, unless he can produce some opinion of solicitor or counsel that he has an arguable case on appeal. I would say in answer to the noble Viscount that only in that way can use be made of these legal aid arrangements.

THE LORD CHANCELLOR

My Lords, I think that the noble and learned Lord the Lord Chief Justice has answered most of the points raised by the noble Viscount. The answer to the first point is that the reason for giving these powers to a two-judge court, under subsection (2)(c), is that a renewed refusal application might be coupled with an ancillary first instance application which the two-judge court must be able to deal with if it decides to grant leave, for example, for legal aid: and there are other matters.

With regard to legal aid itself, as the noble and learned Lord the Lord Chief Justice knows, I am as much concerned as he is. We thought at the time of the Criminal Justice Act that any flood of appeals on the ground that there was now really no deterrent would be prevented, because under the recommendations of the Committee of which Lord Justice Widgery was chairman they would get legal aid. At that time legal aid worked very well until you went into the dock, and then it broke down. The purpose was that it should be extended so as to cover advice on the question of appeal. We felt then that they would be advised in proper cases: "This is absolutely hopeless; there is no ground for appeal." That simply has not happened. As the noble and learned Lord, the Lord Chief Justice, said, it has given us considerable concern. It may be—I do not know—partly because solicitors do not realise that legal aid does go on to cover advice and appeal. But the main difficulty seems to be that the men do not know, in spite of the notices in their cells, and insist on filling up—it may be a tradition of their prison —the notices of application themselves. They are now given that notice which tells them that they have this right, and of the other steps of which the noble and learned Lord the Lord Chief Justice has spoken, which we hope will bring about the desired result.

On Question, Amendment agreed to.

3.42 p.m.

Clause 5 [Restriction on power of committal under Debtors Act 1869]:

Clause 6 [Restriction on magistrates' power of committal for civil debt]:

Clause 7 [Courts with power to attach earnings]:

THE LORD CHANCELLOR moved Amendments Nos. 4 to 10:

Page 5, line 30, leave out ("Part I of"). Clause 6. page 5, line 38, leave out ("enforceable as a fine") and insert ("treated (by any enactment relating to the collection or enforcement of fines, costs, compensation or forfeited recognizances) as so adjudged to be paid"). Page 6, line 2, leave out ("Part I of"). Page 6, line 4, leave out from beginning to ("or") in line 5. Clause 7, page 6, line 29, leave out from second ("order") to end of line 31. Clause 7, line 37, after ("costs") insert ("compensation "). Clause 7, line 39, leave out from beginning to ("or") in line 41.

The noble and learned Lord said: My Lords, if no noble Lord objects, I should like to move together Amendments Nos. 4 to 10, and also to speak to Amendments, Nos. 15, 22, 28, 37, 39, 40, 43, 44, 45, 46 and 48. The main purpose of these Amendments is to remove an anomaly in the law relating to costs in criminal cases and thereby implement a recommendation of the Payne Committee. This I am afraid, is very technical. Costs awarded by assizes and quarter sessions may, under the present law, be enforced cither in the same manner as an order for payment of costs made by the High Court in a civil case or as sums adjudged to be paid summarily as a civil debt; but in the case of costs awarded by the Court of Appeal only the former method is available. The Bill, as at present drafted, provides for these provisions to be repealed and for all these costs to be enforceable in a magistrates' court as sums adjudged summarily to be paid as civil debts. Clause 32 in its present form sets out in subsection (1) a list of all those costs enforceable in this way and in subsections, (2) and (3) provides that they shall be recoverable only as sums adjudged by a magistrates' court to be paid as civil debts, except that where it is desired to use a method of enforcement that is not available in the magistrates' court, proceedings may be taken in the High Court or the county courts.

The Bill has to provide for committal to prison to be available for the enforcement of all criminal costs. It was necessary, therefore, since committal for failure to pay civil debts was being abolished, to have another list of criminal costs which would be enforceable as civil debts after the Bill becomes law. This other list, therefore, appears in Part II of Schedule 3 and includes both the list in Clause 32(1) and other costs already enforceable only as sums adjudged summarily to be paid as civil debts. Clause 6, which deals with committals, refers to this list in subsection (2)(b). The inclusion of these two lists in the Bill is not very satisfactory, and in considering how to simplify these pro-visions it became clear that the Costs in Criminal Cases Act 1952 contains an anomaly. Costs awarded against an accused in a magistrates' court are enforced as a fine (Section 10(3)(a)), but those awarded by assizes or quarter sessions are enforceable as civil debts (Section 10(1)), as are those awarded on appeal.

This anomaly led as to think, as did the Payne Committee (in paragraphs 275–276 of their Report), that, by whatever court they are awarded, costs against an accused person should be enforceable as sums adjudged to be paid on a conviction, and costs against a prosecutor as sums adjudged to be paid as civil debts. This has enabled the draftsman to dispense (in the Amendments) with the two lists of costs in Clause 32 and Schedule 3, and to produce a greatly simplified Clause 32 in which the provisions as to costs are set out in the first two subsections. References to criminal costs are also deleted from Clauses 6 (committals) and 7 (attachment of earnings) since costs awarded against an accused now fall within the general words"sum adjudged to be paid by a conviction "; and this involves a consequential Amendment to Clause 11. Subsection (5) of the new Clause 32 applies the provisions of The Magistrates' Courts Act 1952 relating to the transfer of the enforcement of fines from one court to another in England and Wales, and from a court in England and Wales to a court in Scotland, to an enforcement of costs in criminal cases as well.

Part II of Schedule 3 is deleted, and the new Schedule (to be inserted after Schedule 7) sets out in Part I the costs to be enforced as a sum adjudged to be paid on conviction and in Part II the costs to be enforced as sums adjudged to be paid as civil debts. The opportunity is taken to include compensation in Part I and, as the Payne Committee recommended, costs awarded in non-criminal matters at quarter sessions (for example, affiliation and licensing) in Part II. There are consequential Amendments (deleting the references to Part I of Schedule 3) in Clauses 5, 6 and 8. The relevant Amendments to Schedule 9 repeal the references in existing legislation to the recovery of costs and compensation which are replaced by the provisions of the new Clause 32 and the new Schedule. I beg to move Amendments Nos. 4, 5, 6, 7, 8, 9 and 10.

3.48 p.m.

VISCOUNT COLVILLE of CULROSS

My Lords, I suspect that I may not be the only noble Lord in this House who would rather like to read that on paper. It is an exceedingly involved matter. I know the purpose lying behind it, but I have to confess that I have not worked out all the details. What I understand to be the case is that there will still be power to commit to prison for failure to pay costs in criminal cases in any court, and that there will also be power to make an attachment of earnings order for them, as well as for costs in civil cases, for instance, at quarter sessions. I am not quite certain how that is so. But I can see the paragraph in Clause 7 which deals with the power to make an attachment of earnings order for what will now become costs enforceable as if they were payable as a fine on conviction. I expect it is there somewhere, but I am not altogether certain where. I do not know whether the noble and learned Lord has the answer to that now, but if not, perhaps he would be so kind, as he often is, to write to me about it.

The other thing that arises, a much more general point, is that if one tries to look up how you enforce any order— for instance, as to costs at quarter sessions—one has to look at about 153 Acts spread over a period from about 1840 to the present day. To start with, the Long Title of this Bill does not give anybody any clue that we are altering the whole system whereby quarter sessions costs can be recovered, and I am wondering whether we ought not to do that. But one is still faced with the difficulty of the mass of legislation which governs the jurisdiction of quarter sessions—it is entirely statutory jurisdiction—and one has to go to and fro through the Acts. So perhaps this is a case for consolidation fairly soon. One must remember what is, at any rate to my mind, the anomaly—it may be an anomaly that Payne supports, but I do not know about that—that costs in a civil case at quarter sessions will still have to be recovered summarily as a civil debt, because that is one of the exceptions under these provisions that we are now debating. I have no idea whether this is a good thing or not. The effect of it is that if the man does not pay you have to go back to the magistrates' court and get another order. The costs have already been awarded by quarter sessions, after hearing both sides if necessary, but you cannot do anything about them without going back to a different magistrates' court—because the magistrates knew nothing whatever about this—before you can actually get an order presumably to do any of the things provided for under this Bill, such as, for instance, an attachment of earnings.

Perhaps that is the only way it can be done; perhaps it is not right that quarter sessions should be entitled to deal with the matter in the first instance, but I would ask the noble and learned Lord to look at that point again. I cannot see why the magistrates should have to deal with what is really an extraneous civil matter and is nothing to do with them at all—an order made by quarter sessions. I do not know whether they are the right people to whom the matter should go, or whether, if we must have another court to look into it, it ought not to go, as with all the other civil matters, to the county court. It is a matter which I would ask the noble and learned Lord to look at again, but I do not wish to press it this afternoon, for obvious reasons. Otherwise—so long as I can understand it when I have reread it—it sounds to me as though it is a very good alteration to the Bill.

The LORD CHANCELLOR

My Lords, I will certainly read what the noble Viscount has said. I think what he said, broadly speaking, was right, and if there is any point I will write to him about it. I quite agree with him that there is an urgent need for the consolidation of the Magistrates' Courts Acts in particular. Indeed the main object of one of the Amendments I shall be coming to later is simply to facilitate that consolidation.

On Question, Amendments agreed to.

Clause 8 [Application for order and conditions of court's power to make it]:

THE LORD CHANCELLOR moved Amendments Nos. 11 and 12.

Page 7, line 46, leave out from beginning to ("required") in line 5 on page 8 and insert ("it must appear to the court that the debtor has failed to make one or more payments").

Page 8, line 14, leave out from ("then") to ("may") in line 15 and insert ("subject to subsection (4A) below, the court ")

The noble and learned Lord said: My Lords, if no noble Lord objects may I move together Amendments Nos. 11 and 12, and refer also to Amendment No. 14? Clause 8(3)(a), as drafted, provides that if a court is to make an attachment of earnings order to secure maintenance payments on the application of the creditor, it must appear to it that the debtor has failed to make one or more payments under the maintenance order and that his failure is due to wilful refusal or culpable neglect. The onus is placed upon the applicant (who may be the woman beneficiary or, in a magistrates' court, the justices' clerk) to prove that the default is due to the debtor's wilful refusal or culpable neglect to pay. The default can be proved relatively easily by reference, for example, to the accounts of the collecting office, but the applicant would find it very difficult to prove anything about the reasons for the default. Accordingly Section 6(2) of the Maintenance Orders Act 1958, which is the parallel provision, placed the onus upon the debtor to prove that the default was not due to his wilful refusal or culpable neglect. It is not intended to alter this part of the 1958 Act procedure.

These Amendments therefore restore the onus of proof from applicant to debtor in a maintenance case and make a consequential amendment. Clause 8(3), as amended, gives the circumstances in which a court has power to make an attachment of earnings order on the application of the creditor in all types of case, and the new subsection (4A) limits this power in maintenance cases. The amendment of Clause 8(4) is consequential upon the replacement of Clause 8(3)(a) by the words in the first Amendment. I beg to move.

3.55 p.m.

VISCOUNT COLVILLE of CULROSS

Again, my Lords, I should have thought this was an improvement. There does not appear to have been anything wrong with the onus of proof under the 1958 Act; and, indeed, common sense suggests that that was the right way to do it. These Amendments, as I understand it, merely restore the onus to where it was instead of making a change, as the Bill in its present form does. I would therefore support them.

On Question, Amendments agreed to.

THE LORD CHANCELLOR moved Amendment No. 13: Page 8, line 16, leave out ("related").

The noble and learned Lord said: My Lords, this is a drafting Amendment. The court which is enforcing payments under a maintenance order may make, as an alternative to imprisonment, an attachment of earnings order to secure payments under the order. The word "related" is unnecessary; the definite article indicates well enough that the order referred to is that mentioned earlier in the subsection. I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 14:

Page 8, line 19, at end insert— ("(4A) The court shall not, except on the application of the debtor, make an attachment of earnings order to secure payments under a maintenance order if it appears to it that the debtor's failure to make payments in accordance with the maintenance order is not due to his wilful refusal or culpable neglect.")

The noble and learned Lord said: My Lords, your Lordships will remember that I dealt with this Amendment when moving Nos. 11 and 12. I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 15: Page 8, line 23, leave out ("Part I of").

The noble and learned Lord said: My Lords, your Lordships may remember that I mentioned this Amendment in dealing with Amendment No. 1. I beg to move.

On Question, Amendment agreed to.

3.57 p.m.

VISCOUNT COLVILLE of CULROSS moved Amendment No. 16:

Page 9, line 6, at end insert— ("() Where an application is made to a county court for an attachment of earnings order to secure the payment of a judgment debt, and another attachment of earnings order has already been made in respect of the debtor, under any of the provisions of section 7 of this Act, and has not been discharged, the court shall consider whether it shall exercise its powers under subsection (8) above.").

The noble Viscount said: My Lords, I make another attempt—and this time it seems to me to be the mildest of attempts that could possibly be made—to deal with the question of multiple attachment of earnings orders. I do not wish for a moment to reiterate all the arguments that went on at the Committee stage about the difficulties that could arise when there is more than one attachment of earnings order made against the same debtor. The difficulties are not only those of the employer of that debtor; they also affect the creditors, or the other people who are due money for one reason or another, in that their orders of precedence get changed from time to time under the provisions of Schedule 4 if somebody with priority gets a further attachment of earnings order after them.

The noble and learned Lord, in answer to one of my Amendments on the Committee stage, said that he thought it very likely, if there was more than one attachment of earnings order, that the county court would make an administration order. That, of course, has the great advantage of not only dealing with attachment of earnings orders which have already been made, but of collecting all the information about any other debts the man may have. It allows the registrar to administer any funds into which he comes by means of a single attachment of earnings order, which can follow it, to pay off the creditors and other persons pro rata and, I think, in priority if necessary. This is an admirable arrangement, and is one which I very much hope will come into force.

Under subsection (8) of Clause 8 the court is now given power to make an administration order of its own volition as it thinks fit. I thought that it was possibly worth going a little further with this, because I can well understand that there may be cases where the county court would not think it necessary to make an administration order for a case where there are just two attachment of earnings orders. But the moment there are more than that I should have thought they really ought to have the duty imposed upon them to consider this, and I think they probably ought to consider it even if there are only two, if the employer, in order to comply with the attachment of earnings order that has already been made, and the one which is now being dealt with by the county court, is going to have to send money to different places.

One of the main things that appears in this Bill is that there are two sources of attachment of earnings orders. There will be the county court—and this will practically always be the same court, because as I understand it all these matters are going to"home"on the county court for the area in which the debtor lives. But there will also be magistrates' courts concerned, and these could be placed anywhere in England and Wales. I am not sure there could not be attachment of earnings orders from other parts of the British Isles as well, but I leave that aside for the moment. Any magistrates' court in England and Wales can make one of these orders, and the employer is then going to have to deal, not only with the home county court, but possibly with one or more magistrates' courts in other parts of the British Isles. This could affect, I suppose, fines or driving penalties and matters of that kind, if they are not paid.

There are particular people—and I make no disparaging references about them in general—whose jobs require them to move about. One thinks instantly of people in the building trades and of civil engineers, and those who work in that industry, of course, must go and do their work wherever the building job is to be found. If they get into trouble, then they will be fined or they will have orders made in the magistrates' court wherever it is they happen to be at the time. And still the employer, if he is going to comply with the attachment of earnings order, is going to have to send 5s. to Durham and 7s. 6d. to Cornwall and another 2s. 6d.—because that is all there is left above protected earnings—to Merioneth. After all that has been done, he is going to have to deal, under Schedule 4, with a county court attachment of earnings order for 7s. 6d. a week, or something of that sort. Without in any way wishing—and I do not—to protect the employers in difficulties over matters of this kind, I should have thought that these were cases of the kind where the county court ought to think of an administration order. Orders can be discharged, of course, the moment they no longer need to run.

I should have hoped that the noble and learned Lord would at any rate go so far to accept that what is really no more than advice should, as I propose, be given to the county court; that this is a useful process which is going to clear up debt, and not only debt within the jurisdiction of the county court but also other debts or costs or fines, or whatever they may be, before magistrates' courts and quarter session now; and that the courts ought to take advantage of their new jurisdiction to try to bring the whole matter together in the simplified form, where there can be no doubt that the registrar will get the priorities right and people will get their money paid in the proper order. And, incidentally, of course, anybody else who has not been bright enough to prove a judgment debt and get an attachment of earnings order on his own account will be brought in, too, and will not be deferred behind some less meritorious civil creditor.

If the noble and learned Lord does not like my drafting, this is nothing new and I am not particularly proud of it. I hope, however, that he will be able to say that he will look at this matter with some favour. If he does not want this provision in the Bill, perhaps he can deal with it administratively. But I hope he can reinforce what he said on the Committee stage about this administration order power, in order to simplify the whole procedure and the whole workability of this very important new change which we now have. My Lords, I beg to move.

THE LORD CHANCELLOR

My Lords, I have a great deal of sympathy with the object of this Amendment. One is anxious to lessen, so far as possible, the burden on employers of orders of this kind, and I hope that where there are more than one, and certainly where there are a number of debts, an administration order will be made. I agree with the noble Viscount. Of course it is unusual, where a court has a power, to put into an Act of Parliament a direction that it must consider in every case using that power. But this power to make administration orders has been little used, and we want to encourage its use. I think that in the circumstances of the case it is justified.

Therefore, I would accept the proposal, subject only to this: that I think there must be some redrafting of the Amendment because one cannot literally do it in every case. There are very few exceptions; but, for example, where the first debt is a maintenance and the second is an ordinary debt, maintenance is not provable as a debt; it does not constitute a provable debt for the purposes of the administration order. So a case of that kind would have to be excluded. But I agree with the Amendment in principle, and if the noble Viscount in prepared to withdraw his Amendment at this stage I hope to produce or to discuss with him a privilege draft for the Third Reading. I have no doubt it can be done, and that in principle it is right.

VISCOUNT COLVILLE of CULROSS

My Lords, I am very grateful indeed to the noble and learned Lord. This is a most pleasant surprise, and I hope this proposal is something which really will be as useful as I think both he and I believe it will be. I understand entirely about the drafting, and if a maintenance order cannot be included—it is of course a running matter and it will go on for as long as the wife remains unmarried or some other reason crops up for it to be stopped—let us at any rate (I do not know whether this is possible) ensure that magistrates' courts' fines and things of that kind are brought in. I believe that there are futher merits in dealing with the matter in this way: the county courts will have to be told by the magistrates' courts what are the fines imposed if an attachment of earnings order has followed nonpayment of them. So we shall add to the reliability of the register that the county court is keeping. I see no reason why those priority debts should not be included in the administration order, unless of course the County Courts Act does not allow it. At any rate, I hope this will be something which brings progress in this matter. I am delighted to beg leave to withdraw this Amendment now, and I look forward to discussions with the noble and learned Lord upon it between now and the Third Reading.

Amendment, by leave, withdrawn.

Clause 9 [Effect and contents of order]:

THE LORD CHANCELLOR

My Lords, Clause 9(7) designates who shall be the collecting officer in the various courts for the purposes of an attachment of earnings order. It may be that after the order has been made it would be more convenient—because, for example, the beneficiary has moved to a different area—for the collecting officer to be the clerk of the magistrates' court in that area. For the avoidance of doubt this Amendment makes it clear that the initial nomination of a collecting officer can be changed and that the general power to vary an attachment of earnings order under Clause 12 extends to a variation of the order in this respect. My Lords, I beg to move.

Amendment moved— Page 10, line 9, at end insert ("(subject to later variation of the order under section 12 of this Act)")—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendments Nos. 18 and 19:

Page 10, line 16, at end insert ("the clerk either of that court or of another magistrates' court specified in the order").

Page 10, leave out lines 17 to 21.

The noble and learned Lord said: My Lords, if no noble Lord objects, I will move Amendments Nos. 18 and 19 together. These are linked and drafting Amendments. It is intended that when a magistrates' court makes an attachment of earnings order the collecting officer should either be the clerk of the court making the order or the clerk of another magistrates' court. The court will specify the clerk of another court where, for example, payments under a maintenance order are already being paid to the clerk of another court by virtue of an order under Section 52(1) of the Magistrates' Courts Act 1952. In such a case the first part of subsection (7)(c), as drafted, would not achieve this object, because payment is required to be made to another court, not by the relevant adjudication (that is, the maintenance order), but by the order under Section 52(1) of the 1952 Act. These Amendments remove this difficulty and at the same time simplify the subsection. My Lords, I beg to move.

On Question, Amendments agreed to.

Clause 10 [Compliance with order by employer]:

4.9 p.m.

THE LORD CHANCELLOR moved Amendments Nos. 20 and 21:

Page 10, line 38, at end insert ("or such other sum as may be prescribed by order made by the Lord Chancellor").

Page 10, line 45, at end insert— ("(5) An order of the Lord Chancellor under subsection (4)(a) above—

1. (a) may prescribe different sums in relation to different classes of cases;
2. (b) may be varied or revoked by a subsequent order made under that paragraph: and
3. (c) shall be made by statutory instrument subject to annulment by resolution of either House of Parliament.").

The noble and learned Lord said: My Lords, if no noble Lord objects, I will move Amendments Nos. 20 and 21 together. The object of the first of these Amendments is to enable the Lord Chancellor to raise by order the sum of one shilling which, under Clause 10(4) of the Bill, the employer is entitled to retain for himself out of the balance of the debtor's earnings every time he makes a deduction in compliance with an attachment of earnings order. The sum of one shilling is intended as a payment towards the employer's clerical and administrative costs.

It has been suggested that it is insufficient to cover the expense which an employer may incur in making arrangements to start and continue the deductions in accordance with the order. Under section 13(3) of the Maintenance Orders Act 1958, however, the sum which an employer is entitled to retain when he makes a deduction from the debtor's wages is only sixpence. The Payne Committee did not recommend that there should be any change in this sum when attachment of earnings becomes available for the recovery of ordinary civil debts. They said, in paragraph 606 of their Report: In view of the fact that employers are already used to dealing with deductions for income tax and national insurance without payment, we have concluded on balance that the employer should continue to deduct 6d. from each payment as at least a contribution to postage and incidental expenses. Nevertheless, the Bill takes account of the fall in the value of money since 1958 by doubling the sum of sixpence and allowing the employer to retain one shilling every time he makes a deduction from the debtor's wages, even if he is allowed, under Clause 9(1)(b), to pay the money into court at less frequent intervals.

The first Amendment recognises that in the event of a further fall in the value of money or similar occurrence it may become desirable in the future to raise the sum of one shilling, and it enables the Lord Chancellor to do this from time to time by order. The second Amendment enables such an order to prescribe different sums in relation to different classes of cases. It might, for example, be thought appropriate to allow the employer to retain a larger sum where, so to speak, the traffic would bear it. If a judgment debt of, say, £100 fell to be satisfied by deduction of £4 a week from the debtor's wages, there might be sufficient justification for allowing the employer to retain more than in the case of a judgment debt of £10 to be satisfied by deductions of 10s. a week. The second Amendment also enables an order to be varied or revoked by a subsequent order and makes it subject to the Negative Resolution procedure.

My Lords, when I saw representatives of the Confederation of British Industry they said (and one can understand it) that they took a rather different view about assisting in the collection of tax for the Government, charging only something very nominal, and on the other hand doing work for creditors in collecting their debts. Secondly, they said something which I myself have always thought; and that is that, with the changes in the value of money, I believe that nearly every sum of money mentioned in an Act of Parliament ought to be capable of being varied by order. Otherwise, the years go on and on; some sum of money becomes quite inappropriate, and there are difficulties in finding legislative time for a change. The C.B.I. representatives also pointed out—I think fairly enough— that until this started it was rather difficult for them to provide costings showing what work this provision did impose on them financially. For all those reasons this seemed to be a sensible course to take, and I hope that your Lordships will approve of it. I beg to move.

VISCOUNT COLVILLE of CULROSS

My Lords, I am extremely glad that the noble and learned Lord is proposing this change. In my view, it would not have been right—and indeed the Government have not sought to do so—to shelter behind paragraph 606 of the Payne Report: because one has only to look on the other side of the page, at paragraph 609, to see that the Committee are there saying that it would be intolerable for any employer to have to comply with more than one attachment of earnings order for any particular employee, and that their scheme, taken as a whole, involves the enforcement office consolidating all these things so that no employer ever has to deal with more than one. Now it is plain, for reasons which we have argued at least once, if not twice, that there is at any rate a risk of an employer having to deal with more than one order, and of course there are all these other points which the noble and learned Lord has made and with which I entirely agree.

The only footnote I would add to what he has said is to consider whether the cases in which the noble and learned Lord is taking power to change the amount of one shilling, which at the present moment is in the Bill, might not include cases where there are multiple orders being paid at the same time. It may be all right if the employer knows that the complete amount of unprotected earnings that he is going to deduct in the course of a week has to be set on some priority, and an old attachment of earnings order for a civil debt simply goes into suspense until the magistrates' fine, or whatever it is, is paid off. But where the employer has to do little bits to one and little bits to another, then I think he is entitled to a larger sum and I hope that the noble and learned Lord will in fact introduce words to bring this into effect from the very beginning.

On Question, Amendments agreed to.

Clause 11 [Interrelation with alternative remedies open to creditor]:

THE LORD CHANCELLOR

My Lords, I beg to move Amendment No. 22.

Amendment moved— Page 11, line 16, leave out (" (c) or id) ") and insert (" or (c)")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 16 [Power of court to determine whether particular payments are earnings.]:

THE LORD CHANCELLOR moved Amendment No. 23: Page 14, line 35, leave out from ("secure") to end of line 39 and insert ("payments under a magistrates' court maintenance order, the collecting officer")

The noble and learned Lord said: My Lords, this is a drafting Amendment. The clerk of a magistrates' court who is specified as the collecting officer with respect to an attachment of earnings order made to secure maintenance payments will be able, on the request of the beneficiary under the related order, to apply for the court to decide whether particular payments are earnings. Where an attachment of earnings has been made, the clerk specified in an order under Section 52(1) of the 1952 Act or Section 19(2) of the Maintenance Orders Act 1950 to receive payments under the related maintenance order will, by virtue of Clause 9(7)(c) of the Bill, be the collecting officer for the attachment of earnings order. It is simpler to refer to him as such, as the Amendment does. I beg to move.

On Question, Amendment agreed to.

Clause 18 [Enforcement provisions.]:

THE LORD CHANCELLOR

My Lords, this Amendment is put down simply to correct a drafting error. Clause 18(2)(b) makes it an offence for a person served with an attachment of earnings order to fail to give notice to the court if the debtor is not in his employment or subsequently ceases to be in his employment. Clause 18(4)(b) provides that it shall be a defence for the person charged with such an offence to prove that he did not know, and could not reasonably be expected to know—and I quote from the clause as it is now— "that the debtor was in his employment". Obviously the Bill ought to read "was not in his employment", and the Amendment accordingly provides for the insertion of the word "not". I beg to move.

Amendment moved— Page 17, line 4, after ("was") insert ("not").—(The Lord Chancellor.)

On Question, Amendment agreed to.

4.18 p.m.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 25: After Clause 18, insert the following new clause:

Power of Court to restrain or avoid transactions intended to defeat certain claims

".—(1) Where—

1. (a) the High Court or a county court is empowered by this Part of this Act to 44 make an attachment of earnings order and it appears to the court that the debtor has no or insufficient earnings to secure the payment required by the relevant adjudication; or
2. (b) a county court has jurisdiction under section 5(6) of this Act to commit to prison a person who makes default in payment of a debt or instalment of a debt; and
3. (c) in either case it appears to the court that the debtor or person is or has been in possession or the owner of any property,

the court may, without prejudice to its power to make any other order in addition under any other enactment or under law, make an order under subsection (2) below.

(2)—(a) If it is satisfied that the debtor or person, with the intention of defeating the claim before the court, is about to make any disposition of or transfer out of the jurisdiction or otherwise deal with any such property, make such order as it thinks fit restraining him from so doing or otherwise for protecting the claim; or

(b) if it is satisfied that the debtor or person, with the intention aforesaid, has made a disposition to which this paragraph applies make an order setting aside the disposition and give such consequential directions as it thinks fit.

(3) An application for an order under subsection (2) above may be made in the proceedings for the relevant adjudication or for the enforcement of the debt or at any other time—

1. (a) in the circumstances described in subsection (l)(a) above after the relevant adjudication; and
2. (b) in the circumstances described in subsection (1)(b) above after the person makes default in payment of the debt or any instalment of the debt.

(4) Paragraph (b) of subsection (2) above applies to any disposition made by the debtor or person up to one year before the date of the order made under that paragraph, not being a disposition made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any such intention as aforesaid on the part of the debtor or person making the disposition.

(5) Rules of court may make provision for—

1. (a) the making of applications under this section;
2. (b) ensuring that the court may compel the attendance of the debtor or person at the court before the order is made against him;
3. (c) giving power to the court to discharge any order made under this section.

(6) In this section—

1. (a) "the relevant adjudication "and" the debtor" have the meanings assigned to them by section 7(5) of this Act; and
2. (b)"disposition" does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description whether made by instrument or otherwise."

The noble Viscount said: My Lords, it is, at any rate, some comfort to me to know that the noble and learned Lord has not a monopoly of complicated new clauses. I apologise for this one. The difference, of course, between our new clauses is that those proposed by the noble and learned Lord are always correctly drafted, whereas mine are invariably full of major drafting howlers. At any rate, I hope that the purport of what I have put down may be clear to those who have thought fit to read it.

Noble Lords may remember that on the Committee stage of the Bill I raised a point on the Question, Whether the clause should stand part of the Bill, about the self-employed and those to whom attachment of earnings orders cannot be applied because they do not have any earnings as set out and defined in Clause 19. Some of my friends who are self-employed came to me afterwards and said that that was a very anti-social thing to do. Nevertheless, I think it is a matter that Parliament ought to attend to, and the noble and learned Lord admitted, in answer to that point, that there was not anything that could be done—I think he meant under this Bill as it is drafted— about the self-employed. Of course there are things which can be done about them, and my new clause is a suggestion about powers that one might think it right to give the court. I do not in any way claim that this is the right way to do it, but I think it is essential that one should put forward something constructive, rather than merely complain that the Bill does nothing about the self-employed.

The situation is that inevitably there will be people who run up debts and do not pay them, and who have not got any earnings. One has to look at the armoury that the courts have at the present moment to deal with these people, and the remedies available to the creditors. There are two matters which seem to me to be worthy of consideration. One of them arises in the Payne Report itself, in the recommendations summarised in paragraph 1260. It has to do with the prevention of debtors from disposing of the object of the debt after in order has been made, without the court's having any power to prevent them from doing it. For example, a person may buy jewellery but does not pay. He then buys an airline ticket to some faraway place, and there is the very strong supposition that the jewellery is in his pocket. The court has little power to deal with it.

Moreover, I think that there must be cases, and indeed paragraph 677 really recognises this fact, where when it comes to execution and the bailiffs arrive and say, "We will take that sideboard and this set of chairs"—it being the husband's debt—the wife says, "You cannot do that. They are mine". As I understand it, the bailiffs cannot go further; if a claim is made by a wife or daughter or son, execution cannot be levied on those goods. I have no doubt that on occasion the claim is completely bogus. The Payne Committee Report agree that spurious but superficially unimpeachable claims are made by somebody who lives in the house, other than the debtor, to the goods intended to be seized. It occurred to me that if one combined, the recommendations of the Payne Committee in paragraph 1260—or some of them; some could be dealt with by rules of court, as I have suggested in the Amendment— with the type of provision which is found in the Matrimonial Proceedings and Property Bill, and indeed it occurs in bankruptcy, too, whereby the court can set aside what is plainly almost a fraudulent disposition of the property made in order specifically to avoid paying the debt, then we should have gone some way to deal with these difficulties.

There are garnishee proceedings, but they are difficult and complicated. I do not know whether those might be better, but when I looked at them I found they were so complicated that I did not think I could draft Amendments on them at all. This, I thought, was something that I could just tackle, and I have used bits of the machinery of the Bill we have just sent to another place; but I have left some of those provisions out, because it seems to me that, for instance, one ought not to make the presumption, as occurs under that Bill, that a disposition has been made fraudulently; one should make the creditor prove it before the court would avoid the disposition.

Nevertheless, whether the noble and learned Lord likes this or not, this seems to me to be an opportunity when I could ask him to tell us a little more about how the Government's mind is moving on those parts of the Payne Committee Report which make recommendations to deal with people who are not going to be caught by attachment of earnings. I shall not leave the Chamber in floods of tears if this Amendment is not accepted or if neither of the suggestions in it is pursued at all, but I do believe that with a change of this importance, when the final sanction of imprisonment is being taken away and nothing put in its place for those people not in receipt of earnings, except the old matters of execution, which have their difficulties, and garnishee proceedings which are not being simplified, we must, as a responsible House of Parliament, consider a little further whether we are not leaving a large loophole in the law.

I do not know whether the noble and learned Lord has any ideas, whether anything can be done under this Bill or under administrative procedures or rules or anything else, whereby we can make things less easy for those not caught by attachment of earnings orders to get away with it, now that there is no longer a threat of imprisonment. There may not be very many; nevertheless, there is the reprieve from the existing threat and nothing put in its place. I do not put the matter any more seriously than that; but I have set out a possible scheme whereby something could be done. I should like to know the noble and learned Lord's reactions, but much more whether he has his own constructive suggestions to accompany this Bill and make it a more complete system. I beg to move.

4.25 p.m.

THE LORD CHANCELLOR

My Lords, I have a lot of sympathy with the noble Viscount's views. We both agreed at an earlier stage of the Bill that the abolition of imprisonment for debt and substitution of attachment of earnings was probably going to be less effective in relation to the self employed. We had in mind, I think, a particular kind of self employed, because as one who has been self employed nearly all his life I hope it will not be thought that because people are self employed they are necessarily dishonest. All we meant, I think, is that type of self employed person whose dealings are nearly all in cash and it is very difficult to find out what his earnings are and what he has done with his money. I do not feel that effective steps can be taken, or that this proposed Amendment is really right, or that we are likely to be able to do more until we get the enforcement office. There are some five reasons for this, the first of which is that the Payne Committee's recommendations were not directed specifically to self-employed debtors. There is no grounds for supposing that self-employed debtors are more prone than other debtors to make dispositions of their property with intent to defeat their creditors, or that the proposed powers would provide an effective method of recovering judgment debts from self-employed persons. The main difficulty really is that they trade on a cash basis.

Secondly, while Clause 16 of the Matrimonial Proceedings and Property Bill provides for disposition in certain cases being annulled, it is not a true analogy. A wife has a prima facie right to be maintained by her husband, and her husband should not be able to defeat this right by disposing of his property. An ordinary civil creditor is in a different position. Although he has obtained judgment for his debt he may have a less meritorious claim than a person to whom the debtor has disposed, or is about to dispose, of his property. He may, for example, have put pressure on the debtor to buy goods which he could not really afford. It is true that the making of an order would be discretionary, but the court might have difficulty in refusing an order where the conditions specified in the new clause were satisfied.

Thirdly, the new clause goes beyond the recommendations of the Payne Committee, since they did not propose that there should be any power to set aside a disposition already made. Such a power already exists in Section 172 of the Law of Property Act 1925 (re-enacting the old Statute of Elizabeth I) which provides that every voluntary conveyance of property made with intent to defraud creditors shall be voidable at the instance of any person thereby prejudiced, and also in various sections of the Bankruptcy Act 1914 dealing with the avoidance of voluntary dispositions. The Payne Committee did not propose that there should be any additional power, for example, to levy execution against a husband on goods claimed by his wife (paragraph 677 of the Report).

Fourthly, the Payne Committee clearly envisaged that the power to restrain the debtor from disposing of his property or otherwise to control his assets should be exercised under the auspices of the enforcement office. Thus, although an order might be obtained on the application of an individual creditor, the benefit would ensue to all creditors seeking to obtain, through the enforcement office, satisfaction of their judgments against the debtor. It would be premature, therefore, to introduce a clause on the lines of that proposed at the present stage of the Implementation of the Payne Committee's recommendation;.

Lastly, there are already several ways in which a judgment creditor may effectively prevent the debtor from disposing of his assets with intent to defeat the creditor's claim. If the assets consist of land or stocks and shares, the creditor may obtain a charge on them, whether he obtained his judgment in the High Court or a county court. If the assets consist of chattels, he can issue execution against the debtor's goods and then the writ or warrant will bind the property in the goods of the debtor as from the time when the writ or warrant is delivered to the sheriff or bailiff—that is, pursuant to Section 26 of the Sale of Goods Act 1893. If a third party claims any of the goods, the issue can be determined by interpleader proceedings. The Payne Committee recommended (in paragraph 705) that, to help in reducing the number of spurious claims, a claimant should be required to support his claim by affidavit. This recommendation can be carried out by rule without legislation. Where the debtor has debts owing to him, they can be attached by garnishee proceedings. Some minor changes in procedure recommended by the Payne Committee in this connection (paragraph 727) could also be carried out by rule.

It seems clear, therefore, that the Amendment would do little to provide an effective new remedy against the self-employed debtor. Any proposal to impose further controls on the assets of debtors generally ought, I suggest, to be deferred until a later stage in the implementation of the Payne Committee's recommendations. The nature of the powers to be conferred on the court will require much closer consideration than has been possible since the publication of the Committee's Report. In particular, account will have to be taken of their impact on the law of bankruptcy, especially as in many cases bankruptcy may afford a more effective remedy than piecemeal control of the debtor's assets. Therefore, while I sympathise with the noble Viscount's intention in putting down this Amendment, I hope that he will not press it to a Division for the reasons which I have ventured to give.

VISCOUNT COLVILLE OF CULROSS

No, my Lords, of course I shall not press it to a Division, because it was intended to be a probing matter. The noble and learned Lord mentioned two of the Payne Committee's recommendations, I think Nos. 707 and 727, which can be carried out administratively. I cannot remember the first reference, but at any rate it was in regard to the necessity for an affidavit for a third party to claim the goods upon which execution is sought to be raised in interpleader actions. Then, of course, one has the changes in garnishee procedure. On the face of them, these are tied up with the enforcement office. Is the noble and learned Lord saying that he will be able to introduce these changes in rules as soon as we get this Bill into force of law, or shall we have to wait even for Recommendation 727 before we have any rules made? Are we going to have to wait for the enforcement office before we have any rules under Recommendation No. 727? I hope that we can at least have these two rule-making matters dealt with, even if we do not have an enforcement office. I think it is useful to have set out the list of remedies that the creditor has in these cases. I expect that all practitioners know about them except me. At any rate, it is enlightening for me to know the range of remedies. Could the noble and learned Lord tell me whether he propones or intends to make these rules?

THE LORD CHANCELLOR

My Lords, there are a good many recommendations which could be carried out by rule, but I have not come to any conclusion about that yet. I have not considered them because this Bill will have to become law first. I have not yet considered how far they will be dependent on the enforcement office.

VISCOUNT COLVILLE OF CULROSS

My Lords, before withdrawing this Amendment all I ask is that the noble and learned Lord will give special consideration to the making of these rules which are going to make it a little less complicated and difficult for people to get back their just debts from people who cannot be attached in regard to their earnings. This, I think, is the whole point of the discussion which has taken place on this Amendment. I hope that the noble and learned Lord will give special consideration to that matter. With those words, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 21 [Other provisions for interpretation of Part II]:

4.34 p.m.

THE LORD CHANCELLOR moved Amendment No. 26:

Page 20, line 8, at end insert— ("(5) This Part of this Act, so far as it relates to magistrates' courts, and Part III of the Act of 1952 shall be construed as if this Part were contained in that Part.")

The noble and learned Lord said: This is a technical Amendment. Part III of the Magistrates' Courts Act 1952 relates to the enforcement of sums adjudged to be paid by magistrates' courts, and the Amendment will enable the attachment of earnings provisions to operate in the case of fines, the enforcement of which has been transferred from one court to another under the provisions set out in Part III of the 1952 Act.

Without for a moment criticising anybody, this is not my favourite Amendment. In the form in which it is, it reads: This Part of this Act, so far as it relates to magistrates' courts, and Part III of the Act of 1952 shall be construed as if this Part were contained in that Part.

I am told that it is in that form because it will facilitate the consolidation of the Magistrates' Courts Acts, which is needed and which I know the noble Viscount has already referred to.

Before I move this Amendment formally, as this is the last Amendment to Part II may I give notice of a further Amendment to be moved on Third Reading of the Bill. In relation to Part II, my noble friend Lord Lloyd of Hampstead wanted at some stage in the Bill to include a provision against harass- ment as generally recommended by the Payne Committee. We know that this is a real evil, and I have said that if a practical Amendment could be worked out I should be happy to support it. Steps have been taken in this regard and there are in existence drafts. We are not yet satisfied with them but I hope to have one with which I may be satisfied by the Third Reading. I thought I should say that before leaving this Part of the Bill on the Report stage. I beg to move.

On Question, Amendment agreed to.

Clause 29 [County court to have exclusive jurisdiction to hear action by mortgagee for possession of dwelling-house in certain cases]:

THE LORD CHANCELLOR moved Amendment No. 27:

Page 24, line 3, at end insert— ("(3) Nothing in this section shall be taken as affecting the jurisdiction of any court to hear and determine an action which is pending in that court at the date on which this section comes into force.")

The noble and learned Lord said: My Lords, Clause 29 gives the county court exclusive jurisdiction to hear an action by a mortgagee for possession of a dwelling-house where the property is situated outside Greater London and the action is within the jurisdiction of the county court; that is, where the net annual value of the property for rating does not exceed £400. The Amendment merely provides that this conferment of exclusive jurisdiction shall not affect the jurisdiction of any court to continue to hear a case pending at the date on which the section comes into force. I beg to move.

On Question, Amendment agreed to.

Clause 32 [Procedure for recovery of criminal costs]:

THE LORD CHANCELLOR moved Amendment No. 28: Leave out Clause 32 and insert the following new clause:

Recovery of costs and compensation awarded by magistrates, assizes, quarter sessions, etc.

".—(1) In the cases specified in Part I of Schedule (Enforcement of orders for costs, compensation, etc.) to this Act (being cases where, in criminal proceedings, a court makes an order against the accused for the payment of costs, compensation, etc.) any sum required to be paid by such an order as is there mentioned shall be treated, for the purposes of collection and enforcement, as if it had been adjudged to be paid on a conviction by a magistrates' court, being—

1. (a)where the order is made by a magisstrates' court, that court; and
2. (b)in any other case, such magistrates' court as may be specified in the order.

(2) In the cases specified in Part II of the said Schedule (being cases where a court makes an order against the prosecutor in criminal proceedings, and certain eases where an order for costs arises out of an appeal to quarter sessions in proceedings which are not criminal) any sum required to be paid by such an order as is there mentioned shall be enforceable as a sum adjudged to be paid summarily as a civil debt.

(3) Without prejudice to the foregoing subsections, but subject to subsection (4) below, in the casts specified in Schedule (Enforcement of orders for costs, compensation, etc.) to this Act any sum required to be paid by such an order as is there mentioned shall be enforceable by the High Court or a county court (otherwise than by issue of a writ of fieri facias or other process against goods or by imprisonment or attachment of earnings) as if the sum were due in pursuance of a judgment or order of the High Court or county court, as the case may be.

(4) Subsection (3) above shall not authorize the enforcement by a county court of payment of any sum exceeding the limit for the time being in force under section 40 of the County Courts Act 1959 on the amount of any penalty recoverable by statute in a county court.

(5) In the Magistrates' Courts Act 1952—

1. (a)in section 72(1) (transfer of fine order in England and Wales) and in section 72A(1)(the same as between England and Scotland), for the words from the beginning to "the offender" there shall be substituted in each case the words "Where a magistrates' court has, or is treated by any enactment as having, adjudged a person by a conviction to pay a sum and it appears to the court that the person"; and
2. (b) in section 72(2) (enforcement functions or transfer of fine in England and Wales), for the words "the convicting court" there shall be substituted the words"the court which made the order ".

(6) In section 32(2) of the Courts-Martial (Appeals) Act 1968 (enforcement of order for costs against unsuccessful appellant or applicant for leave to appeal to that court) for paragraph (a) there shall be substituted the following: — (a) in the same manner as an order for costs made by the criminal division of the Court of Appeal under section 25 of the Criminal Appeal Act 1968; or".

The noble and learned Lord said: My Lords, I dealt with this Amendment when speaking to Amendment No. 1. I beg to move.

On Question. Amendment agreed to.

Clause 37 [Deputy county court registrar not to act as such in certain circumstances]:

4.38 p.m.

THE LORD CHANCELLOR moved Amendments Nos. 29 and 30:

Page 28, line 34, leave out ("29(1)") and insert ("29").

Page 28, line 38, leave out from ("shall") to end of line 44 and insert (" have effect, and be deemed always to have had effect, as if after subsection (1) thereof there were inserted— (1A) Subsection (1) of this section shall not apply to a deputy registrar, but a deputy registrar shall not act as such in relation to any proceedings in which he is, either by himself or his partner, directly or indirectly engaged as a solicitor or agent for any party." ")

The noble and learned Lord said: My Lords, with your Lordships' permission, may I move these two Amendments together. Their object is to make Clause 37 retrospective. Section 29(1) of the County Courts Act provides that no officer of a county court shall be engaged as a solicitor or agent for any party to any proceedings in that court. Subsection (2) makes contravention of the section punishable on summary conviction, with a fine not exceeding £50.

Clause 37(1) of the Bill provides that Section 29(1) shall cease to apply to a deputy registrar, but prohibits the deputy registrar from acting as such in relation to proceedings in which he is engaged as a solicitor for any party to the proceedings. Subsection (2) makes contravention of this new provision punishable like an offence under Section 29(1), with a fine not exceeding £50. Deputy registrars are appointed to act in the unavoidable absence (through illness or otherwise) of county court registrars. They are normally appointed by the registrar for whom they are to act, with the approval of the judge of the court, and must be solicitors of at least seven years' standing.

A deputy registrar may sit as such only occasionally, and for obvious reasons it is very difficult to find solicitors with suitable experience who are prepared to give up all county court work for themselves and their firms, as appears to be required by the section as it now stands. For many years, therefore, it has been found impossible strictly to enforce Section 29(1). Clause 37 brings the law into line with the prevailing practice, which is to prevent deputy county court registrars, like deputy district registrars, from carrying out their official duties in relation to cases in which they or their partners have been engaged as solicitors. The publication of the Bill has, however, drawn attention to the width of the prohibition contained in Section 29(1). There is a danger that a disgruntled litigant may try to prosecute a deputy registrar for having contravened the section even though the deputy registrar has never acted as such in proceedings in which he has been engaged as a solicitor. In these circumstances solicitors may be reluctant to act as deputy registrars until the Bill becomes law. This could lead to much inconvenience and delay at times when the registrar is unavoidably absent.

The draft Amendments accordingly provide that Section 29 shall have effect "and be deemed always to have had effect" as if there were inserted in it a subsection making a deputy registrar liable only if he has acted as such in relation to any proceedings in which he is engaged as a solicitor or agent for any party. The penalty for contravention of this prohibition will be that set out in Section 29(2), and accordingly the reference in the first line of the clause to Section 29(1) is replaced by a reference to the whole of Section 29. Thus the Amendments do no more than ensure that no adverse effect is produced by bringing the law into line with the prevailing practice. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I think that Parliament should look very carefully when giving indemnities, particularly indemnities in respect of criminal proceedings, for something that may already have happened. I listened very carefully to what the noble and learned Lord said, but I do not know whether there are known to him, or to his Department, any specific cases to which this indemnity would apply, or whether this is just a precaution because attention has been drawn to the situation by the proposals in the Bill. If there are any known cases which would be covered by this indemnity, then I think that Parliament ought to know about them before we pass a clause in a Bill which would take away criminal liability for something that has already been done. Can the noble and learned Lord tell us about this?

THE LORD CHANCELLOR

My Lords, I believe that there is one disgruntled litigant who is threatening proceedings against a deputy registrar. On the other hand, there would be actually nothing to stop him, because until this Bill receives Royal Assent the law will remain unchanged. So he can take his proceedings now.

On Question, Amendments agreed to.

4.44 p.m.

THE LORD CHANCELLOR moved Amendment No. 31: After Clause 37, insert the following new Clause:

Extension of power to make rules, etc. for purposes of Rent Act 1968

". Section 106 of the Rent Act 1968 (which empowers the Lord Chancellor or, when the Great Seal is in commission, any Lord Commissioner to make rules and give directions for the purpose of giving effect to the provisions of that Act specified in subsection (3) of that section) shall be amended as follows:

1. (a) in subsection (1), the words 'Subject to subsection (3) below ' shall be inserted at the beginning and the words ' specified in subsection (3) below' shall be omitted;
2. (b) for subsection (3) there shall be substituted—

(3) The power conferred by subsection (1) above shall not be exercisable in relation to the provisions of Part IV or VI of this Act other than section 51(2)'.

The noble and learned Lord said: My Lords, before moving Amendment No. 31, and also speaking, if I may, to Amendment No. 49, I should say that I believe there is a mistake in the printing of Amendment No. 31, in that the reference to "the Rent Act" should be to "the Rent Act 1968".

VISCOUNT COLVILLE OF CULROSS

Yes.

THE LORD CHANCELLOR

My Lords, the first Amendment enlarges the powers conferred on the Lord Chancellor by Section 106 of the Rent Act 1968 to make rules for the purposes of giving effect to the provisions of that Act. The Amendment to the Long Title is consequential. The rule-making powers are at present confined to the provisions of the 1968 Act listed in subsection (3) of Section 106 and the Amendments will widen them to cover the whole of the Act except for two Parts which do not contain anything that can give rise to proceedings in the courts.

Section 106 is intended to enable the Lord Chancellor to make rules regulating any proceedings in the courts brought under or in connection with the 1968 Act. Although the language used—"for the purpose of giving effect to the provisions of this Act"—is very general, the powers have been used only to regulate court procedure, and it is intended to continue 1o do so. Proceedings may be brought under, or in connection with, a large number of provisions in Parts I to III, V, and VII to IX. Part IV, which concerns registration of rents under regulated tenancies, cannot give rise to any court proceedings except for a reference to rates apportioned by the county court in Section 51. Apart from Section 51 (which is expressly mentioned in the amended section), Part IV is accordingly excluded from the rulemaking powers; and so is Part VI which relates to furnished lettings. Jurisdiction over these lettings is vested in rent tribunals whose procedure is governed by regulations made by the Minister of Housing under Section 83.

It is clearly convenient that one set of rules should govern all court proceedings under the Act. At present this cannot be achieved because Section 106 applies only to some of the proceedings. The Act of 1968 consolidated the earlier Rent Acts, which did not follow a logical pattern in conferring rulemaking powers on the Lord Chancellor. Such powers were first conferred by Section 17 of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, supplemented by Section 6 of the Rent and Mortgage Interest Restrictions Act 1939 and attracted by Section 19 of the Rent Act 1957. Broadly speaking, they concern what are now controlled tenancies and all matters relating to them. Corresponding powers were not, however, conferred by the Rent and Mortgage Interest Restrictions (Amendment) Act 1933 and the Rent Act 1965. In the latter case there was some reason to think that they had been conferred by the provisions of Section 1 which generally attracted the earlier Rent Acts to all tenancies brought into regulation by the 1965 Act, but a close examination of the terms of this section undertaken in the course of the 1968 consolidation has revealed that the words used do not have the effect of attracting the rulemaking powers.

The practical consequences of this partial coverage of Rent Act proceedings by Section 106 are unsatisfactory and confusing. Rules can be made concerning most, though not all, matters concerning controlled tenancies; they cannot be made concerning any matters affecting regulated tenancies. Controlled tenancies are those of premise having a rateable value not exceeding £40 in London, or £30 elsewhere, which have subsisted since 1957, while regulated tenancies are all other residential tenancies of properties having a rateable value of up to £400, in London, or £200 elsewhere. The codes governing the continuation, termination and renewal of these two types of tenancies are largely identical except for the level of rents payable and the methods of ascertaining them. For example, in relation to controlled tenancies questions on apportionment of rates or rateable values, on amounts due for services or furniture, and on succession to protection on the death of a tenant are covered by Section 106; identical issues arising on regulated tenancies are not. Apart from the distinction between controlled and regulated tenancies there are also other shortcomings—for example, the recovery of overpaid rent under Sections 33 and 62 of the 1968 Act falls within Section 106, while, under Section 91, proceedings for the recovery of rent paid unlawfully in advance do not. The Amendment will remedy all these defects and enable rules to be made regulating all court proceedings under the 1968 Act.

Rules made under powers conferred by the sections which Section 106 consolidates are still in force, preserved by transitional provisions in the 1968 Act. They are the Rent Restriction Rules 1957. The Rules are now out of date and need to be updated, but it would not be satisfactory to make further rules covering only part of the Rent Act proceedings. The result would be most confusing for the courts and for the legal professions. A revision of the rules must therefore await enactment of the new clause. It is intended to bring these up to date, with adaptations and references appropriate to the 1968 Act, as soon as the new clause comes into force. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I am sorry to be asking so many questions, but the Rent Act 1968 was of course a consolidation measure— and about time, too—and nobody could possibly be blamed for having failed to spot anomalies in the mass of legislation which it put together and cleared up. I imagine that this is almost something that could have been done by the Joint Committee on Consolidation Bills had it been produced by the noble and learned Lord's Department as one of the changes to be made under the relevant Statute; but it was not. The only thing that worries me is who is this very curious person who is allowed to make the rules, as well as the noble and learned Lord himself. Who is the Lord Commissioner "when the Great Seal is in commission", and what sort of rules does he make? Does he do it with the rule-making Committee and the noble and learned Lord together, or does he go away and make some entirely separate rules? It seems to me possible that this is an out-of-date procedure which was retained simply because there was a Consolidation Bill producing the 1968 Rent Act, and that this is something which, if we are going to amend the Act, we ought to bring up to date. I certainly do not understand the procedure. It is ignorance on my part, but as we have a chance of changing this I wonder whether the noble and learned Lord can justify continuation of this odd and unusual power.

THE LORD CHANCELLOR

My Lords, I am sorry to say that this is something which I do not know and I shall have to write to the noble Viscount. As he knows, I cannot go abroad and take the Great Seal with me and I cannot leave it here unless it can be applied. Therefore, whenever I go out of the country Lords Commissioners have to be appointed as Commissioners of the Great Seal. I took it that this was one of the Lords Commissioners, but what provision this came from, I am not sure. I should be interested myself to know, and I will certainly ascertain it and write to the noble Viscount.

On Question, Amendment agreed to.

Schedule 2 [Amendment of enactments consequential on Section 1]:

THE LORD CHANCELLOR moved Amendments Nos. 32 to 36:

Page 31, line 46, leave out ("senior") and insert ("principal")

Page 33, leave out line 5.

Page 34, line 43, leave out ("senior") and insert (" principal ")

Page 35, line 2, leave out from (" (1)") to (" and ") in line 5 and insert (" for the words from "senior" to"principal probate registrar ", where last occurring, substitute the words "principal registrar of the Family Division and, subject to the provisions of this section, if that registrar"")

Page 35, line 6, leave out ("senior") and insert ("principal").

The noble and learned Lord said: My Lords, your Lordships may remember that I spoke to Amendments Nos. 32 to 36 when dealing with Amendment No. 1. I beg to move.

On Question, Amendments agreed to.

Schedule 3 [Debts subject to special enforcement provisions in Part II]:

THE LORD CHANCELLOR moved Amendment No. 37: Page 36, leave out lines 35 to 43 and lines 1 to 17 on page 37.

The noble and learned Lord said: My Lords, your Lordships may remember that I spoke to this Amendment when moving Amendment No. 4. I beg to move.

On Question, Amendment agreed to.

Schedule 4 [Deductions by employer under attachment of earnings order]:

4.52 p.m.

THE LORD CHANCELLOR moved Amendment No. 38: Page 39, line 14, leave out from ("is") to end of line 16 and insert ("made to secure the payment of a judgment debt or payments under an administration order as if the earnings to which it relates were the residue of the debtor's earnings after the making of any deduction to comply with an order having priority by virtue of sub-paragraph (a) of this paragraph; and (c) if there are two or more orders to which subparagraph (b) of this paragraph applies, comply with paragraph 7 above in respect of those orders.").

The noble and learned Lord said: My Lords, the object of this Amendment is to make it clear how an employer is to deal with two attachment of earnings orders against the same debtor where one is to secure the payment of maintenance (or some other liability which has priority) and the other is to secure payment of a judgment debt or payments under an administration order. As it stands, paragraph 8 of Schedule 4 provides that the employer shall deal first with the order in respect of maintenance and deal thereafter with the order in respect of a judgment debt. If the orders specified different protected earnings rates and normal deduction rates, there might be some doubt as to what was meant by the words "deal there-after" with the order in respect of a judgment debt. The effect of the Amendment is to require the employer to deal with this order as if the earnings to which it relates were the residue of the debtors earnings after making any deduction to comply with the order in respect of maintenance. This is the way in which an employer would be required to deal with the second of two orders if they were both in respect of maintenance or both in respect of judgment debts. The Amendment does not, therefore, introduce any new principle to complicate the employer's task. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I still think it is going to be very difficult, even with that clarification. But noble Lords know my views about Schedule 4, and I hope that it will never be used.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendments Nos. 39 and 40: After Schedule 7, insert the following new schedule.