ADMINISTRATION OF JUSTICE BILL [H.L.] (Hansard, 27 January 1970)

HL Deb 27 January 1970 vol 307 cc266-89 266

§ 2.48 p.m.

§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Administration of Justice Bill, has consented to place her interest, so far as it is concerned on behalf of the Crown, at the disposal of Parliament for the purposes of the Bill. I beg to move that this Bill be now read a third time.

§ Moved, That the Bill be now read 3^a. —(The Lord Chancellor.)

§ On Question, Bill read 3^a.

267

§ THE LORD CHANCELLOR moved Amendment No. 1: After Clause 3, insert the following new clause:

§ Power of judges of Commercial Court to lake arbitrations

§ "..—(l) A judge of the Commercial Court may, if in all the circumstances he thinks fit, accept appointment as sole arbitrator, or as umpire, by or by virtue of an arbitration agreement within the meaning of the Arbitration Act 1950, where the dispute appears to him to be of a commercial character.

§ (2) A judge of the Commercial Court shall not accept appointment as arbitrator or umpire unless the Lord Chief Justice has informed him that, having regard to the state of business in the High Court and at assizes, he can be made available to do so.

§ (3) The fees payable for the services of a judge as arbitrator or umpire shall be taken in the High Court.

§ (4) Schedule (Application of Arbitration Act 1950 to judge-arbitrators) to this Act shall have effect for modifying, and in certain cases replacing, provisions of the Arbitration Act 1950 in relation to arbitration by judges and, in particular, for substituting the Court of Appeal for the High Court in provisions of that Act whereby arbitrators and umpires, their proceedings and awards are subject to control and review by the court.

§ (5) Any jurisdiction which is exercisable by the High Court in relation to arbitrators and umpires otherwise than under the Arbitration Act 1950 shall, in relation to a judge of the Commercial Court appointed as arbitrator or umpire, be exercisable instead by the Court of Appeal."

§ The noble and learned Lord said: My Lords, I beg to move the first Amendment. It is the only Amendment of substance to-day, the others being largely drafting or technical. Last summer I issued a public statement as to the likely contents of this Bill. I then said that power might also be taken to enable the judges to sit as arbitrators, in which case it would be necessary to amend the Arbitration Act 1950 so as to provide for taking to the Court of Appeal direct an appeal from the judge's award; and that it might be desirable to postpone the conferring of this power until the new court had been established for some time. Your Lordships may remember that on the Report stage of the Bill I expressed regret that I was not then able to introduce the necessary Amendment, that technical difficulties still had to be overcome.

§ My Lords, the natural place for the decision of any dispute between citizens 268 or corporations is the courts or some special tribunal; but for some years, although we have a Commercial Court, commercial disputes have to a large extent left the Commercial Court and are decided largely by arbitration. More than one of my predecessors has been concerned at this, and in 1962 the noble and learned Viscount, Lord Kilmuir, organised a Commercial Court Users' Conference. It was extremely representative. Among the commodity organisations represented were the Incorporated Oil Seed Association, the London Cattle Food Trade Association, the London Corn Trade Association Ltd., the Baltic Mercantile and Shipping Exchange, and the National Federation of Corn Trade Associations Ltd. Chambers of Commerce were represented by the Association of British Chambers of Commerce and the London Chamber of Commerce. Indus-trial federations and councils were represented by the Federation of British Industries and the Society of Motor Manufacturers and Traders; banking, by a committee of the London Clearing Bankers; underwriters and insurers, by Lloyd's, the Institute of London Underwriters, Liverpool Underwriters' Association, the British Insurance Association, Freight, Demurrage and Defence Associations. In regard to shipowners, chartering interests were represented by the Baltic Mercantile and Shipping Exchange and the Institute of Chartered Shipbrokers. Shippers' interests were represented by the British Shippers' Council; and shipowning interests by the Chamber of Shipping of the United Kingdom, the Liverpool Steam Ship Owners' Association, the North of England Shipowners' Association, the Cardiff and Bristol Channel Incorporated Shipowners' Association. The ports, docks and harbours were represented by the Dock and Harbour Authorities' Association. So it was in every way a representative body.

§ They said, first of all, that it was essential from their point of view that the Commercial Court should continue; that there were three reasons why they tended first to have arbitrations. One was that they did not like our rigid rules of evidence. They said that there is little opportunity to engage in oral disputes; that in cases where one person is telling the truth and another is not, the issue is mainly decided on documents: and that 269 some of the documents were not technically admissible in evidence, whereas this is a possibility in an arbitration. Secondly, they liked the more informal atmosphere of an arbitration, with no cross-examination in public; and thirdly, that the fact is that an arbitration award is very much easier than a judgment to enforce abroad —that is to say, our international agreements are much wider in the case of arbitral awards than in the case of judgments.

§ On the question of evidence, they state in the Report: Too often an objection by one party to the admission of evidence in this manner is not due to a genuine desire to cross-examine, but is designed merely to cause delay and create difficulties for the opponent. We recommend, therefore, that a Commercial Judge should have power to admit in evidence unsworn statements and documents, which are not at present strictly admissible in spite of the objection of one of the parties.

§ In practice, that is largely carried out now and has been for some years. If you take an objection that something is not admissable in evidence the judge in the Commercial Court says, "But, Mr. Gardiner, this is the Commercial Court. Surely you are not taking a point on the law of evidence, are you?" So that, in practice, one gets shamed out of it.

§ Then they said: One of the important reforms of the practice of the Commercial Court, upon which we are all agreed, is that the Commercial Judge should have power, upon the application of both parties, to sit in private as an Arbitrator. We are of opinion that this practice would greatly enhance the attraction of the Court to the commercial community, as it would meet the objection of that community, to which we have already referred, to the publicity and formality of proceedings in open Court. They also said that it might be that such power already existed but, if it did not, the necessary statutory provision should be made. They went on: We are also advised that the Judge's award would be enforceable in many countries which are parties to the Geneva Convention. 1927; this advantage over a High Court judgment is a matter to which we attach very great importance. Then, as an illustration of the prevalence of arbitration in commerce they said: … we take the Baltic Mercantile and Shipping Exchange. Nearly 80 per cent. of the world's chartering of ships is still done on this Market, but it is subject to fierce and increasing competition from foreign Markets, notably New Yok, Paris, Hamburg and Japan. The great majority of Charterparties negotiated on the Baltic Exchange contain the stipulation that 270 any dispute arising under the Charterparty shall be referred to Arbitration in London. We attach great importance to the maintenance of of this type of arbitration clause in Charter-parties. Foreign Owners or Charterers who operate on this London Market could not, we are advised by the Chartering Brokers, be induced to agree, under their Charterparties, to settle their disputes in London otherwise than by Arbitration.

§ So, my Lords, for these reasons it has seemed right to the Government to include in this Bill a provision enabling commercial judges to sit as arbitrators. There is nothing technically to stop them from doing so in any case, and from time to time requests are made for a judge to act as an arbitrator in a particular case. Naturally, he seeks the advice of the Lord Chancellor of the time as to whether or not he should do this, and the answer is usually not. In 1964, for example, a particular judge was invited to arbitrate in a dispute between two ships, one of which was flying the American flag and the oilier the Russian flag. In 1969, another judge was asked whether he would act as chairman of a standing panel of arbitrators for disputes arising between two large European airlines. Sometimes, however, the Lord Chancellor has thought it right that a judge should accede to such requests. For example, in 1949 Lord Radcliffe acted as an umpire in a dispute between the Sheikh of Qatar and the Iraq Petroleum Company.

§ My Lords, the whole of English legal history shows—and perhaps particularly Lord Mansfield's reforms of the 18th century—and modern experience confirms, that it is to the long-term interest of the development of the legal system, and of the country, that the courts should go as far as they can to meet the requirements of commerce. It is therefore desirable to cultivate the business and commercial side of the High Court's activities on both national and international grounds, especially in the latter case if the United Kingdom were to join the Common Market. This, my Lords, is in a sense a long-term reform, because there will be an ordinary form of commencement order, and I must make it clear that it is quite impossible to put this reform into operation at once, the reason being that we can do with less work in the courts and not more; for at the present time the courts are under very great pressure with continuingly increasing criminal work and 271 civil work. But when we implement—as I hope that we shall do before long— the recommendations of the Royal Commission on Assizes and Quarter Sessions, it will, I hope, have a very real effect on the state of business and the ability of judges to dispose of it, and it may then be possible to put this reform into operation.

§ My Lords, subsections (1) and (2) of the new clause accordingly provide that a judge can act either as an arbitrator—that is, one arbitrator—or as an umpire, where there are two other arbitrators. The subsections set out the five conditions on which an order may be made. First, the judge must be satisfied that it is a proper case for him to act as an arbitrator in. Secondly, he can act only either as sole arbitrator or as an umpire. Thirdly, the dispute has to be referred to the judge-arbitrator under, or by virtue of, an arbitration agreement within the meaning of the Arbitration Act 1950; that is to say, there must be a written agreement to submit present or future differences to arbitration.

§ Fourthly, the dispute has to appear to the judge to be a commercial dispute; and, fifthly, under subsection (2) the Lord Chief Justice must have informed the judge that his duties in the High Court and at assizes allow him to be made available to take the arbitration. It is not of course intended that this shall be done in every case. The judge in every case will apply his mind to whether or not it is a proper case, but it is intended that at intervals, particularly perhaps in October, at the beginning of the new law year, the Chief Justice will look at the state of business in the Queen's Bench Division as a whole and will then either tell the commercial judge or judges that he is afraid that, owing to the state of business, they cannot act as an arbitrator, or that they can.

§ My Lords, subsection (3) provides that fees shall be payable as they are with actions: the amount will have to be determined. Perhaps in connection with this first Amendment I may refer to Amendments Nos. 8 and 12. Amendment No. 8 introduces a new Schedule which concerns the application to such arbitration actions of the existing Arbitration Act 1950. In general, it applies 272 the provisions of the Act to such arbitrations, although, obviously, there are some points on which differences will have to be made. I do not suppose that your Lordships will want me to go all through the new Schedule: it is largely technical.

§ Perhaps the most important change is this. Under the Arbitration Act 1950, it is open to an arbitrator either to state a case—that is to say, to set out a point of law for determination by the court— or to state his award in the form of a special case, which comes to the same thing; and the point of law at issue is then decided by a High Court judge. The High Court judge may himself be an arbitrator, and clearly it would not be right that there should be an appeal from one High Court judge to another. So it is proposed that the appeal decision on a case stated, or on an award stated in the form of a special case, should go to the Court of Appeal, And the Schedule deals with technical points of that kind. Amendment No. 12 is simply the necessary amendment to the Title, if your Lordships approve this Amendment. I beg to move.

VISCOUNT COLVILLE OF CULROSS
My Lords, the noble and learned Lord has explained, in the great detail that I think necessary, reasons underlying this Amendment, and I see nothing in it that is at all exceptional. The discussions in the earlier stages of the Bill indicate, I think, that Clause 3, as we now have it, is of a somewhat experimental nature. For instance, under subsection (3)(b), there is the power to sit in private, which probably caused a few eyebrows to be raised, though there are clearly good reasons for it, particularly when trade secrets are involved. I imagine that Clause 3 is to be brought into force at once and is not to wait for later views. It seems to me self-evident that it will have to come in as a whole or not at all.
But I would ask the noble and learned Lord this question. If the new clause is finally brought into force, does he think that the power of the court to sit in private as a court is likely to be reduced? I imagine that that is probably so. It may be that this power, while backed by all the arguments from the Conference in 1962, has the added advantage of decreasing the number of 273 times when technically a High Court Judge as such sits in private. This is a small point and otherwise I welcome this new clause and Schedule and the Amendment to the Title.

§ THE LORD CHANCELLOR
My Lords, I am much obliged for what the noble Viscount has said. Clause 3 cannot come into operation at once, because rules will have to be made. I anticipate that it will be very little used in fact, except in arbitration.

§ On Question, Amendment agreed to.

§ 3.3 p.m.

§ VISCOUNT COLVILLE OF CULROSS moved Amendments Nos. 2 and 3.

§ Page 9, line 42, leave out (" and ") and insert ("then— (a) if ")

§ Page 10, line 3, at end insert (" and (b) if it appears to the court that there is already in force in respect of the debtor an attachment of earnings order made to secure the payment of another judgment debt, the court shall consider whether the case is one in which an administration order should be made.")

§ The noble Viscount said: My Lords, I know that the noble and learned Lord the Lord Chancellor said that his was the only important Amendment, but I consider that this one is quite important, too. I must immediately thank the noble and learned Lord and his officials for helping me with the drafting, so as to get the matter right. This is one of those matters which the noble and learned Lord and I discussed between ourselves, but it is a matter of wide importance and other noble Lords will be interested—at least I hope so. The point of the Amendment is to try to deal with multiple attachments of earnings orders. The noble and learned Lord said on Report stage that he was prepared to accept an Amendment which directed the county courts to consider, when a second attachment of earnings order came before them, whether or not they should make an administration order bringing the two together and enabling them to be treated as one, if necessary, by a single attachment order or by one of the other procedures that follow on an administration order.

§ I have only one disappointment about this Amendment. I certainly hope that it will go into the Bill but. for technical reasons, it does not go so far as I would hope. The noble and learned Lord said 274 that the court could not bring in an attachment order for maintenance that had been made by any court, because that could not be proved in administration order procedure. In any case, I do not believe it is proper or good practice to make further attachments of earnings, at any rate, not for a large sum, when already there is an order which is going to take a large proportion of the debtor's free earnings. Leaving that aside, I had hoped that it would be impossible to include under this provision attachment orders that might have been made by magistrates' courts—for instance, orders for fines or costs that had not been paid or for legal aid contributions.

§ I do not know whether there have been many cases of multiple orders of this sort. Since 1967, magistrates' courts have had powers to make attachment orders for these purposes, but in future we may well have cases—indeed, one of the Schedules to the Bill provides for it— in which a magistrates' court's attachment order will be in force at the same time as a civil debt order issued by the county court. All the civil debt orders are now capable of being dealt with by the county court, because it will know about them. A register will be kept and a copy of any other orders will be sent to the local county court where the debtor lives, so that there will be a complete register in that county court office. That is an admirable tilling. I think that the difficulty in this Bill—it is one we plainly cannot deal with in this House and I hope that it may be considered in another place—is that there is no machinery at all for an equivalent consolidation of orders made by magistrates' courts. I must confess that it was not a point I thought of and I am grateful to those who suggested it to me. I hope that it may be further considered.

§ With regard to the county court, this is a comparatively simple matter, because in most cases, if not all, the county court is going to be the home court which will be dealing with the whole process of attachment of earnings. But under the magistrates' court procedure attachment of earnings orders can be made anywhere in England and Wales. Orders may follow each other and may come from different parts of the country. Apart from anything else, the employer will have to send 275 small sums of money each week to different courts, which will be tiresome and expensive for him, and it may be that after the employer's deductions are made the amounts paid over to the courts will be smaller, which will be a disadvantage to the debtor. Above all, one of the difficulties is going to be that when the magistrates impose an order, they will not necessarily know that another magistrates's court order has already been made. If they do not know it they have no way of bringing together the earlier order and the one they are proposing; so if they decide that there is room for a second order, this will have to run consequentially upon the previous order.

§ I understand that there are difficulties about bringing the two together. There is some question whether the court which originally imposed the fine, or the costs originally given against a debtor, should not be paid off first. On the other hand, these are all debts to the local or the social authorities and have priority. It is worth considering whether, these being payments to the State as a whole, there may not be something to be said for allowing the orders to be amalgamated and for a magistrates' court which is considering the imposition of a second or subsequent order to see whether it should not incorporate a previous order and so be able to discharge it. It will take a lot of research and further consideration and fresh Amendments to the Bill. But I am concerned about this.

§ With the help of the noble and learned Lord, the county court side of it ought now to be much simpler than it was. He has explained what is going to happen, and we have Amendments which will implement this simplification. But we have not done anything about magistrates' courts. I do not expect the noble and learned Lord to say a great deal about this point to-day, but I hope that he will consider it and that perhaps his colleagues in another place will be able to introduce Amendments to facilitate the working of the Bill over the whole field and to try to get something on the lines envisaged for the enforcement office. I think that the enforcement office will be able to deal with various magistrates' courts orders, in default of having one order, but we should see whether we cannot devise temporary machinery for this purpose to take the 276 place of the enforcement office. At any rate, the Amendment now before the House is not on this broad subject, but is a relatively simple matter. The noble and learned Lord said that he would agree to it on the last occasion, and I hope that he has not changed his mind. I beg to move.

§ THE LORD CHANCELLOR
Does the noble Viscount wish to take Amendments Nos. 2 and 3 together?

VISCOUNT COLVILLE OF CULROSS
Yes.

§ LORD LEATHERLAND
My Lords, the case put by the noble Viscount, Lord Colville of Culross, was so sensible and appealing that it appeared to me as though nothing more needed to be said. But when he proceeded to expand his Amendments to cover the magistrates' courts my mind went back to a number of cases with which I have had to deal when presiding over a magistrates' court. We frequently find that when a man is fined he says: "I cannot pay the fine for a long time, because I already have fines which have been imposed on me at Bow Street, Marlborough Street, somewhere in Surrey and somewhere in Kent." We then have to give him an inordinate period in which to pay the fine, or we say that we will adjourn the case for six months. That is easily done by the magistrates themselves.
But when we come to consolidating quite a number of fines or maintenance orders under one attachment order, then I think we may be in difficulty. I have known a case where a man deserted his wife and an attachment order was made for payment of so much a week. If subsequently that man rendered himself liable to two or three fines, as was the case in this instance, then if those fines, instead of being postponed, as was done in our court, were consolidated with an attachment order on the man's wages, that might double the amount of wages to be attached, and it might well make it impossible for the wife to receive the full amount of maintenance in respect of which the man's wages have been attached.

VISCOUNT COLVILLE OF CULROSS
If I may interrupt the noble Lord, I am afraid I did not make myself clear. I accepted that an attachment of earnings order for maintenance must be dealt with 277 separately. But supposing you have a series of attachment orders for costs, fines or legal aid contributions, nothing to do with maintenance, it is in that case that I have asked for consolidation.

§ LORD LEATHERLAND
My Lords, the noble Viscount has nearly met my point. It would obviously be unfair to the wife if her right to maintenance were to be diluted in some way because of subsequent fines or costs being attached. But the noble Viscount still says that he would leave it to the magistrates to decide whether there should be an attachment in respect of the subsequent fine in addition to the original attachment for the wife's maintenance. However, I do not think the difference between us is wide enough to cause any trouble, and in view of the explanation, that is all I have to say.

§ THE LORD CHANCELLOR
My Lords, I apologise first for trying to take the noble Viscount's Amendment away from him. I have pleasure in advising my noble friends to accept these Amendments. There is no difference between us in principle. When the noble Viscount put down his Amendment on the Report stage of the Bill I indicated my agreement with it in principle, although I said that as it would include maintenance claims it was not possible to accept it in its then form. The noble Viscount, I think, accepts the position that it is not possible to consolidate, if I may put it colloquially, those payments with ordinary debts for the reason which he has given, because maintenance does not constitute a provable debt for the purpose of an administration order. Now he says, in effect: whether you can combine fines and ordinary debts, could not at least fines be consolidated?
I am not at all unsympathetic. I think, in general, I agree with the noble Viscount that the more single administration orders can be made in respect of numerous debts of different kinds, the better. But there are practical difficulties in applying this to the case of a fine, because even if it constitutes a provable debt, an administration order would not free the debtor from liability from the fine or discharge him from process in default of payment. Moreover, under an administration order all creditors rank pari passu and it would be impossible to 278 afford the fine priority as under Schedule 4 to the Bill.
However, discussions are taking place with the Home Office on the possibility of having a procedure for consolidating two or more attachment orders against the debtor in respect of fines. There are practical difficulties in the way of doing this, and it is by no means certain that the number of cases in which the procedure might operate would make it worth while. Attachment of earnings for the enforcement of fines has been in operation since the beginning of 1968 when the Criminal Justice Act 1967 came into force, and no trouble seems to have arisen in practice from the making of two or more orders against the same debtor. All I can say, therefore, without being too optimistic about it, is that such discussions are taking place. There is no difference here between us in principle; it is purely a question of practical application.

§ On Question, Amendments agreed to.

§ 3.16 p.m.

§ THE LORD CHANCELLOR moved Amendment No. 4:

§ After Clause 23, insert the following new clause:

§ Effect of administration order made otherwise than on application of debtor

§ "Where under section 10(9) of this Act a county court makes an administration order in respect of a person's estate, it shall, for the purposes of the Bankruptcy Act 1914, be an act of bankruptcy by him."

§ THE LORD CHANCELLOR
My Lords, the purpose of this new clause is to prevent a creditor being deprived of his right to bring bankruptcy proceedings against the debtor by the making of an administration order under Clause 10(9).
Section 20(3) of the Administration of Justice Act 1965 provides that so long as an administration order is in force a creditor shall not be entitled, without the leave of the court, to present a bankruptcy petition against the debtor unless his debt exceeds £100 and the petition is presented within 28 days after the creditor received notice of the proceedings. At the present time an administration order can be made only on the application of the debtor and Section 21 of the Act of 1965 provides that the making of such an application shall be treated as an act of bankruptcy. A creditor who wishes to avail himself of the 279 right conferred by Section 20(3) to present a bankruptcy petition can therefore rely on the act of bankruptcy constituted by the making of the request for the administration order. Bankruptcy proceedings may often be more appropriate than an administration order, especially where the debtor's liabilities are substantial, because bankruptcy ensures strict control over the debtor's assets and preserves the priority of creditors such as the Inland Revenue and rating authorities who, under an administration order, would simply rank pari passu with the other creditors.
The effect of Clause 10(9), which enables the court to make an administration order of its own motion on an application for an attachment of earnings order, would often be to take away a creditor's right to bring bankruptcy proceedings under Section 20(3) of the Act of 1965, since there would be no application by the debtor on which the creditor could rely as an act of bankruptcy. By encouraging the court to make an administration order Lord Colville's Amendments to Clause 10(9) would tend to increase the number of cases in which this difficulty would arise. The new clause accordingly provides that the making of an administration order under Clause 10(9) shall itself constitute an act of bankruptcy by the debtor. There is a precedent for treating something done otherwise than by the debtor as an act of bankruptcy by him, for Section l(l)(e) of the Bankruptcy Act 1914 provides that a debtor commits an act of bankruptcy if execution has been levied on his goods and goods have been either sold or held by the sheriff for twenty-one days. I beg to move.

§ On Question, Amendment agreed to.

§ Clause 34 [Recovery of costs and compensation awarded by magistrates, assizes, quarter sessions, etc.]:

§ THE LORD CHANCELLOR moved Amendment No. 5: Page 26, line 19, leave out ("a sum adjudged to be paid") and insert ("if the order were for the payment of money recoverable ")

§ The noble and learned Lord said: My Lords, this is a small technical point. The purpose of the Amendment is to make it clear that costs ordered to be 280 paid by the prosecutor in criminal proceedings—that is to say where the prosecution has failed and the prosecutor is ordered to pay costs—and costs ordered in appeals to quarter sessions in civil proceedings are enforceable as judgment debts. At the Report stage of the Bill the noble Viscount, Lord Colville, suggested that if a person did not pay costs awarded against him in such a case, it would be necessary for the creditor to go back to the magistrates' court and get another order before the costs could be enforced. I do not think that even as Clause 34(2) is at present drafted this would be necessary, as the subsection provides for these costs to be enforceable as a sum adjudged to be paid summarily as a civil debt". That is to say, the creditor is in the position of someone who has already obtained judgment in the magistrates' court.

§ There is never any harm done by making something which is clear, clearer still, and to make the position clear beyond doubt the Amendment provides for the sum to be enforceable, as if the order were for the payment of money recoverable summarily as a civil debt. This brings it squarely within the definition of "judgment debt" in Clause 9(3)(b), and has the effect that if there is a failure to make payment the creditor can, for example, apply to the county court for an attachment of earnings order without first going back to the magistrates' court to obtain judgment. I beg to move.

VISCOUNT COLVILLE OF CULROSS
My Lords, this may be a small technical point, but all the same I am grateful to the noble and learned Lord. It was no doubt my fault for not having fully taken in the purport of lines 19 and 20 on page 26 as they appeared on the Amendment List last time. I had not understood this, and I suppose it is conceivable that there may be somebody else in the British Isles in due course who also will not have understood it in that way. This Amendment makes it perfectly clear and has the side benefit, as the noble and learned Lord has said, of bringing the drafting into line with the earlier subsection, which must be a good thing if it is contained in the same Bill. Therefore, I am glad to see this Amendment 281 on the Paper, and I hope it will be accepted.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR moved Amendment No. 6: After Clause 40, insert the following new clause:

§ Amendments relating to guardianship of minors

§ ".—(1) Any order made under section 4(2) of the Family Law Reform Act 1969 (maintenance for persons between 13 and 21 who have been subject to an order under the Guardianship of Infants Acts) may be varied or discharged by a subsequent order made on the application of any person by or to whom payments were required to be made under the previous order.

§ (2) In the Guardianship of Infants Act 1886—

(a) in section 5, the words from "and in every case" onwards (costs in custody proceedings); and
(b) in section 11 (rules of procedure) paragraph (a) and, in paragraph (c), the words "England or",

§ shall cease to have effect.

§ (3) Subsection (1) of this section shall be deemed to have come into operation at the same time as section 4 of the said Act of 1969."

§ The noble and learned Lord said: My Lords, with this Amendment may I ask your Lordships to consider also Amendments Nos. 10 and 11. The purpose of these Amendments, which may conveniently, I think, be taken together, is to take the opportunity of this Bill to tidy up three small technical anomalies in the Statute Law relating to the guardianship of infants. A Bill to consolidate this branch of the law is being drafted and is likely to be introduced in the near future; and the existence of these anomalies was discovered in the course of its preparation. It is perhaps one of the advantages of an Administration of Justice Bill that if there are points which ought to be put right in relation to the administration of justice, even though those points are not related to the main objects of the Bill, which in the case of this Bill are a reconstitution of the Divisions of the High Court and the beginnings of the implementation of the Payne Committee Report on judgment debts and mortgage possession actions, they can be put right. It is clearly sensible to put them right before the consolidation is made. They are so minor and technical that I do not think the 282 House will wish me to take up further time with them, but if any noble Lord has any points to raise, or questions to ask, I shall be happy to answer them. I beg to move.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR moved No. 7: After Clause 40, insert the following new clause:

§ Minor amendments relating to 1969 c. 54 and certain transitional cases under that Act

§ ".—(1) In sections 2(4) and 104 of the Act of 1952 the references to sections 20 and 21 of that Act (which are repealed by the Act of 1969 and replaced by section 6 of that Act) shall be construed as references to the said section 6; and for the purposes of section 126(5) of the Act of 1952 and section 70(3) of the Act of 1969 (which relate to proof of age) the said section 6 shall be deemed to be a provision of the Act of 1952 and not the Act of 1969.

§ (2) The following paragraph shall be inserted after paragraph 1 of Schedule 4 to the Act of 1969 (transitional provisions and savings):— 1A—(1) Where—

(a) before the date when section 1 of this Act comes into force any child or young person (hereafter in this paragraph referred to as ' the relevant infant') has been brought before a juvenile court under section 62. of the Children and Young Persons Act 1933 or has been brought before such a court by virtue of a provision of section 40 or 40A of the Education Act 1944; and
(b) immediately before that date that court has neither made any order which it had power to make in respect of the relevant infant under the said section 62 nor dismissed the case,

nothing in paragraph 13 of Schedule 5 to this Act nor in any provision of Schedule 6 thereto shall prevent the proceedings before that court in respect of the relevant infant being continued; but the court shall in those proceedings have power to make any order which it has power to make in proceedings under section 1 of this Act and shall not have power to make any other order, and subsections (3), (4) and (5) of the said section 1 and subsections (10) and (13) of section 2 of this Act shall have effect accordingly with any necessary modifications.

§ (2) For the purposes of subsection (12) of the said section 2, any order made in respect of the relevant infant by virtue of subparagraph (1) of this paragraph shall be deemed to be made under section 1 of this Act.

§ (3) Any record of a finding of the fact that the relevant infant is in need of care or protection made in pursuance of section 5 of the Children and Young Persons Act 1938 in any such proceedings as are referred to in sub-paragraph (1) of this paragraph shall, notwithstanding the repeal of the said 283 section 5 by this Act, be admissible as evidence of that fact in those proceedings.

§ (3) In this section 'the Act of 1952' and 'the Act of 1969' mean respectively the Magistrates' Courts Act 1952 and the Children and Young Persons Act 1969".

§ The noble and learned Lord said: My Lords, this is, in a sense, a Home Office Amendment. Subsection (1) of the new clause makes two amendments to the Magistrates' Courts Act 1952 which are consequential on the Children and Young Persons Act 1969. Subsection (2) adds a new transitional provision to the 1969 Act. When Part I of that Act comes into force, the existing law on care, protection or control proceedings, and on proceedings in the juvenile court under the Education Act 1944, will be repealed, and those proceedings will be replaced by care proceedings under Section 1 of the 1969 Act. The transitional provision inserted by subsection (2) deals with the situation where proceedings have started under the old law but have not been completed on the day on which Part I of the Act comes into force. It enables the court to continue proceedings under the old law, thus avoiding starting again, but provides that any order which the court makes shall be an order under the 1969 Act and not an order under the old law, such as an approved school order or fit person order, since these orders will then have been abolished. I can go again into further detail if any noble Lord would like me to do so. I hope the House thinks that what is provided for here is a sensible thing to do. I beg to move.

VISCOUNT COLVILLE OF CULROSS
My Lords, I suppose these are two subsections which ought to have been in the Children and Young Persons Act but for some reason they escaped the very acute scrutiny of those who draft these things. They really are consequential Amendments to that Act, in which case I cannot think that there is anything at all wrong with them.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR moved Amendment No. 8: After Schedule 2, insert the following new schedule—

§ APPLICATION OF ARBITRATION ACT 1950 TO JUDGE-ARBITRATORS

§ 1. In this Schedule—

(a) "the Act" means the Arbitration Act 1950;
(b) "arbitration agreement" has the same meaning as in the Act; and
(c) "judge-arbitrator" and "judge-umpire" mean a judge of the Commercial Court appointed as arbitrator or, as the case may be, as umpire or by virtue of an arbitration agreement.

§ 2. In section 1 of the Act (authority of arbitrator to be irrevocable except by leave of the court), in its application to a judge-arbitrator or judge-umpire, the Court of Appeal shall be substituted for the High Court.

§ 3. The power of the High Court under section 7 of the Act (vacancy among arbitrators supplied by parties) to set aside the appointment of an arbitrator shall not be exercisable in the case of the appointment of a judge-arbitrator.

§ 4. Section 8(3) of the Act (power of High Court to order umpire to enter immediately on reference as sole arbitrator) shall not apply to a judge-umpire; but a judge-umpire may, on the application of any party to the reference and notwithstanding anything to the contrary in the arbitration agreement, enter on the reference in lieu of the arbitrators and as if he were the sole arbitrator.

§ 5.—(1) The powers conferred on the High Court or a judge thereof by section 12(4), (5) and (6) of the Act (summoning of witnesses, interlocutory orders, etc.) shall be exercisable in the case of a reference to a judge-arbitrator or judge-umpire as in the case of any other reference to arbitration, but shall in any such case be exercisable also by the judge-arbitrator or judge-umpire himself.

§ (2) Anything done by an arbitrator or umpire in the exercise of powers conferred by this paragraph shall be done by him in his capacity as judge of the High Court and have effect as if done by that court; but nothing in this paragraph prejudices any power vested in the arbitrator or umpire in his capacity as such.

§ 6. Section 13(2) and (3) of the Act (extension of time for making award; provision for ensuring that reference is conducted with reasonable dispatch) shall not apply to a reference to a judge-arbitrator or judge-umpire; but a judge-arbitrator or judge-umpire may enlarge any time limited for making his award (whether under the Act or otherwise), whether that time has expired or not.

§ 7.—(1) Section 18(4) of the Act (provision enabling a party in an arbitration to obtain an order for costs) shall apply, in the case of a reference to a judge-arbitrator, with the omission of the words from "within fourteen days" to "may direct".

§ (2) The power of the High Court to make declarations and orders for the purposes of section 18(5) of the Act (charging order for solicitor's costs) shall be exercisable in the case of an arbitration by a judge-arbitrator or judge-umpire as in the case of any other arbitration, but shall in any such case be exercisable also by the judge-arbitrator or judge-umpire himself.

§ (3) A declaration or order made by an arbitrator or umpire in the exercise of the 285 power conferred by the last foregoing subparagraph shall be made by him in his capacity as judge of the High Court and have effect as if made by that court.

§ 8.—(1) Section 19 of the Act (power of High Court to order delivery of award on payment of arbitrators' fees into court) shall not apply with respect to the award of a judge-arbitrator or judge-umpire.

§ (2) A judge-umpire may withhold his award until the fees payable to the arbitrators have been paid into the High Court.

§ (3) Arbitrators' fees paid into court under this paragraph shall be paid out in accordance with rules of court, subject to the right of any party to the reference to apply (in accordance with the rules) for any fee to be taxed, not being a fee which has been fixed by written agreement between him and the arbitrator.

§ (4) A taxation under this paragraph may be reviewed in the same manner as a taxation of the costs of an award.

§ (5) On a taxation under this paragraph, or on a review thereof, an arbitrator shall be entitled to appear and be heard.

§ 9.—(1) In sections 21(1) and (2), 22 and 23 of the Act (special case, remission and setting aside of awards, etc.), in their application to a judge-arbitrator or judge-umpire, and to a reference to him and to his award thereon, the Court of Appeal shall be substituted for the High Court.

§ (2) A decision of the Court of Appeal on a case stated by a judge-arbitrator or judge-umpire under section 21 of the Act (as amended by this paragraph) shall be deemed to be a judgment of that court for the purposes of section 3 of the Appellate Jurisdiction Act 1876 (appeal to House of Lords); but no appeal shall lie from any such decision without the leave of the Court of Appeal or the House of Lords.

§ 10.—(1) Section 24(2) of the Act (removal of issue of fraud for trial in the High Court) shall not apply to an agreement under or by virtue of which a judge-arbitrator or judge-umpire has been appointed; nor shall leave be given by the High Court under that subsection to revoke the authority of a judge-arbitrator or judge-umpire.

§ (2) Where, on a reference of a dispute to a judge-arbitrator or judge-umpire, it appears to the judge that the dispute involves the question whether a party to the dispute has been guilty of fraud, he may, so far as may be necessary to enable that question to be determined by the High Court, order that the agreement by or by virtue of which he was appointed shall cease to have effect and revoke his authority as arbitrator or umpire.

§ (3) An order made by a judge-arbitrator or judge-umpire under this paragraph shall have effect as if made by the High Court.

§ 11. Section 25 of the Act (powers of court on remove 1 of arbitrator or revocation of arbitration agreement) shall be amended as follows: —

(a) after the words "the High Court" where they first occur in subsection (1), where they occur for the first and second time 286 in subsection (2), and in subsections (3) and (4), there shall be inserted the words "or the Court of Appeal"; and
(b) after those words where they occur for the second time in subsection (1) and for the third time in subsection (2) there shall be inserted the words "or the Court of Appeal, as the case may be".

§ 12. The leave required by section 26 of the Act (enforcement in High Court) for an award on an arbitration agreement to be enforced as mentioned in that section may, in the case of an award by a judge-arbitrator or a judge-umpire, be given by the judge-arbitrator or judge-umpire himself.

§ The noble and learned Lord said: My Lords, this is the Amendment to which I spoke when I was moving Amendment No. 1. I beg to trove.

§ On Question, Amendment agreed to.

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

§ THE LORD CHANCELLOR moved Amendment No. 9: Page 39, line 10, leave out ("under") and insert ("within the meaning of").

§ The noble and learned Lord said: My Lords, this is a drafting Amendment. Under paragraph 3(c)(ii) of Schedule 4 the attachable earnings of a debtor are not to include amounts deductible in pursuance of a request by the debtor for the purposes of a superannuation scheme under the Wages Councils Act 1959. That Act does not, however, provide for the making of superannuation schemes. It enables wages councils to fix remuneration and provides that the word "remuneration"shall include any deduction made at the request of the worker for the purposes of a superannuation scheme.

§ "Superannuation scheme" is defined in Section 24, which says: 'superannuation scheme means any enactment, rules, deed or other instrument, providing for the payment of annuities or lump sums to the persons with respect to whom the instrument has effect on their retirement at a specified age or on becoming incapacitated at some earlier age, or to the personal representatives or the widows, relatives or dependants of such persons on their death or otherwise, whether with or without any further or other benefits. The reference in paragraph 3(c)(ii) of Schedule 4 to the Bill to a set superannuation scheme under the Wages Councils Act 1959 is intended only as a reference to this definition. Accordingly, it would be more appropriate to refer to a superannuation scheme "within the meaning 287 of" the Act of 1959. This is the expression used in the Schedule to the Maintenance Orders Act 1958, on which paragraph 3(c)(ii) is based. My Lords, I beg to move.

§ On Question, Amendment agreed to.

§ Schedule 10 [Enactments repealed]:

§ THE LORD CHANCELLOR
My Lords, this Amendment, No. 10, is the one to which I spoke when addressing your Lordships on Amendment No. 6. I beg to move.

§ Amendment moved— Page 50, line 12, column 3, at beginning insert—("In section 5 the words from "and in every case" onwards.")—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
My Lords, the same applies in the case of this Amendment. I beg to move.

§ Amendment moved— Page 50, line 21, column 3, at end insert— ("In section 11, paragraph (a), and, in paragraph (c), the words "England or".")—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ In the Title:

§ THE LORD CHANCELLOR
My Lords, I spoke to this Amendment, No. 12, when asking your Lordships to consider Amendment No. 1. It simply concerns the alteration in the Title necessitated by the provision for judge-arbitrators. I beg to move.

§ Amendment moved— Line 2, at end insert ("to enable High Court judges to accept appointment as arbitrator or umpire under an arbitration agreement").— (The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
My Lords, I beg to move that the privilege Amendment be agreed to.

§ Moved accordingly, and, on Question, Amendment (Privilege) agreed to.

§ 3.32 p.m.

§ THE LORD CHANCELLOR
My Lords, I beg to move that this Bill do now pass. I am grateful to all noble Lords who have shown an interest in the 288 Bill. I am sure that it has been desirable to rearrange in a more logical way the Divisions of the High Court of Justice. I have no doubt that it has been right to set up a Family Division of that Court. Although I am as disappointed as some other noble Lords not to have been able to carry out all the recommendations of the Payne Committee on the enforcement of judgments, I am sure we were right to make a start on the essentials, notably the abolition of imprisonment for debt and the constitution of attachment of earnings orders. I am particularly grateful for the assistance given throughout by the noble Viscount, Lord Colville of Culross. The remaining provisions of the Bill are, I am sure, sound.
It is not for me to commit the Government to what their legislation for next Session will be, but clearly a high candidate for priority must be an Administration of Justice Bill to implement the recommendations of the Royal Commission on Assizes and Quarter Session: because all the work continues to increase. There are not enough judges; there are not enough courts, in particular, and the time of the judges is undoubtedly being wasted by our present very inefficient system for the administration of justice throughout the country. As the Report has been so widely welcomed, not only by the public but by the judges, the Bar, solicitors, and everybody I think who knows something about the subject, I hope that I can hold out reasonable hopes that these recommendations will be implemented next year. My Lords, I beg to move.

§ Moved, That the Bill do now pass.— (The Lord Chancellor.)

VISCOUNT COLVILLE of CULROSS
My Lords, the noble and learned Lord has made some comments about legislation which may be introduced next Session. He rightly says that he does not know; and I do not know, either, who will be introducing it. But if we may leave aside the Beeching Report, because that is not the subject matter of this Bill (it may be that the House would like to have a debate on it before the end of this Session; it may be that the matter should be left for the Second Reading of a Bill), I do not want to say any more on this particular Bill except on 289 Part II. It has aroused very little controversy, and what there was at any rate incipient in my mind was rapidly quashed by the noble and learned Lord the Lord Chief Justice by his speech on Second Reading.
On Part II, if we have not made very substantial changes in the drafting (there have, I think, been some of some importance), what has been achieved and is of very great use—and perhaps Members of another place will also find it useful when they are considering the matter— is the explanation and exploration of some of the administrative details. These of course will be the factors; that affect people much more closely than the skeleton of the scheme, which is all the Bill itself contains.
As I have said before, I am grateful to the noble and learned Lord for his explanations. They will have done a great deal to avoid further controversy and to show that, as I myself believe to be the case, this is a workable scheme, provided that the numbers of extra staff, and the premises that the noble and learned Lord has estimated as being likely, do prove to be enough to deal with what will certainly be a different type, or at any rate a different scale, of investigatory work by the registrars, and to some extent by the clerks of magistrates' courts (although they do it already), compared to anything with which they have hitherto had to cope. Particularly the county court registrars (the numbers were given, I think, during the Committee stage) are going to find themselves hard pressed; and whether this system works will depend upon their ability to get out of the debtors, through the statements that are required to be made under the Bill, the necessary information. I believe that on paper it should now be workable, and I hope that when it comes to the test that will not prove to be wrong.

§ On Question, Bill passed, and sent to the Commons.