HL Deb 06 June 1991 vol 529 cc832-8

8.57 p.m.

Viscount Astor

My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered.—(Viscount Astor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

[References are to Bill 69 as first printed for the Commons.]

1 Clause 2, page 4, line I, leave out 'subsection (l)(a) above' and insert 'this section'.

2 Page 5, line 16, at end insert—

'(7A) The Secretary of State may by regulations confer on magistrates' courts, in addition to their powers under paragraphs (a) to (d) of subsection (3) above, the power (the "additional power") to order that payments under a qualifying maintenance order be made by the debtor to the creditor or the clerk of a magistrates' court (as the regulations may provide) by such method of payment as may be specified in the regulations.

(7B) Any reference in any enactment to paragraphs (a) to (d) of subsection (3) above (but not a reference to any specific paragraph of that subsection) shall be taken to include a reference to the additional power, and the reference in subsection (7C) below to the additional power shall be construed accordingly.

(7C) Regulations under subsection (7A) above may make provision for any enactment concerning, or connected with, payments under maintenance orders to apply, with or without modifications, in relation to the additional power.

(7D) The power of the Secretary of State to make regulations under subsection (7A) above shall be exercisable by statutory instrument and any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.

Viscount Astor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2 en bloc. Amendment No. 2, which is the principal amendment, was introduced by the Government in another place in order to ensure that the Bill's provisions continue to be responsive to banking practices. The amendment specifically secures that all the provisions which apply under the Bill to any method of payment listed in the Bill would equally apply to any method of payment which is added later. The amendment adds that extra touch of flexibility to the Bill. I am certain that your Lordships will appreciate that the more methods that are available to the courts the more the courts can tailor their decisions to the individual circumstances of any case before them. Furthermore, the more convenient that we can make the paying of maintenance the more likely that maintenance owed will be paid.

Amendment No. 1 is a minor consequential amendment to Clause 2 and is required because Amendment No. 2 refers to a "qualifying maintenance order". The definition of that phrase must therefore be applied to all of Clause 2 and Amendment No. 1 fulfils that purpose. I commend the amendments to the House.

Moved, That the House do agree with the Commons in their Amendments Nos. I and 2.—(Viscount Astor.)

Lord Morris of Castle Morris

My Lords, I have read what was said in the sittings of Standing Committee B in another place on this subject, and I have listened with great care to what the noble Viscount said in your Lordships' House this evening. Nothing that I have either read or heard has caused me in any way to waver from my opinion that these two amendments are very helpful and sensible. We support them.

On Question, Motion agreed to.

COMMONS AMENDMENT

3 After Clause 7, insert the following new Clause:—

' . After section 94 of the Magistrates' Courts Act 1980 (effect of committal on arrears) there shall be inserted the following section—

"Interest on arrears.

94A.—(l) The Secretary of State may by order provide that a magistrates' court, on the hearing of a complaint for the enforcement, revocation, revival, variation or discharge of an English maintenance order, may order that interest of an amount calculated at the prescribed rate shall be paid on so much of the sum due under the order as they may determine.

(2) In subsection (1) above "the prescribed rate" means such rate of interest as the Secretary of State may by order prescribe.

(3) An order under this section may make provision for the manner in which and the periods by reference to which interest is to be calculated.

(4) Where, by virtue of subsection (1) above, a magistrates' court orders the payment of interest on any sum due under a maintenance order

  1. (a) then if it orders that the whole or any part of the interest be paid by instalments that order shall be regarded as an instalments order for the purposes of section 95 below and that section shall accordingly apply in relation to it; and
  2. (b) the whole of the interest shall be enforceable as a sum adjudged to be paid by the maintenance order

(5) In this section—

"English maintenance order" means—

  1. (a) a qualifying maintenance order made by a magistrates' court, other than an order made by virtue of Part II of the Maintenance Orders (Reciprocal Enforcement) Act 1972; or
  2. (b) an order made by the High Court or a county court (other than an order deemed to be made by the High Court by virtue of section 1(2) of the Maintenance Orders Act 1958) and registered under Part I of that Act of 1958 in a magistrates' court;

"qualifying maintenance order" has the same meaning as it has in section 59 above,

(6) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument made with the concurrence of the Treasury and any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.".'.

Viscount Astor

My Lords, I beg to move that the House do agree with the Commons Amendment No. 3. Perhaps I may speak also to Amendment No. 8.

I should like to take Amendment No. 3 first as Amendment No. 8 is ancillary to it. This new clause will enable the Home Secretary, with the concurrence of the Treasury, to give magistrates' courts a discretionary power to order that interest be paid, at a specified rate, on the whole or any part of maintenance arrears. Such a power will act as an additional sanction against default. This power is in line with enforcement powers contained in the Child Support Bill. The new clause avoids the administrative problem of continuous calculations of interest by providing that the interest be set at a fixed sum. Further, magistrates' courts will have the power to apply the same method of payment to the interest ordered as they may prescribe for the arrears themselves.

Amendment No. 8 prevents imprisonment being imposed if the only amount outstanding is interest. All other enforcement powers will be applicable. This limitation on the court's enforcement powers is considered advisable since sending a debtor to prison, when he has complied with the substantive element of the order by paying the arrears, would be too severe a penalty and an inappropriate use of prison resources. I commend these amendments to the House.

Moved, That the House do agree with the Commons in their Amendment No. 3.—(Viscount Astor.)

Lord Morris of Castle Morris

My Lords, it has been agreed on all sides and at all stages of the passage of this Bill that when a debtor fails to face up to his responsibilities, he should be obliged to do so. In nature, I see no reason why this kind of debt should be different from any other kind of debt in attracting to itself the need to pay interest. However, I should be grateful if the noble Viscount could enlarge in any way on the methods by which the rate of interest may be calculated.

Section 94A(1) refers to "the prescribed rate". In subsection (2) that rate is defined as: such rate of interest as the Secretary of State may by order prescribe". Are there any precedents or guidelines or does the Secretary of State have absolute carte blanche?

When this matter was discussed in Standing Committee B on 12th March 1991, the honourable Member for Hull West inquired whether it would be the overdraft rate which would be set and whether the rates would be different if the debtor had to pay by instalments. From my perusal of the record, I cannot find any answer to that question. Perhaps the noble Viscount is able to help me on that.

Viscount Astor

My Lords, I am not able to give a complete answer. The power to make an order allowing interest to be charged on arrears of maintenance in a magistrates' court is similar to an enabling provision contained in the County Courts Act 1984 which is also not yet brought into effect. Regulations under the order will prescribe the rate of interest which has not yet been decided. The rate will be set with the concurrence of the Treasury. I am unable to go further than that. However, I hope that that satisfies the noble Lord, Lord Morris.

Lord Morris of Castle Morris

My Lords, I am grateful to the noble Viscount for his elucidation of what must remain a mystery.

On Question, Motion agreed to.

COMMONS AMENDMENTS

4 Schedule 2, page 30, line 39, leave out 'this Act' and insert 'sections 59, 59B and 60 above'.

5 line 43, leave out 'and as a magistrates' court maintenance order'.

6 line 42, leave out 'and section 76 below'.

Viscount Astor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 6 en bloc. These amendments are technical amendments only. They are required because, where a magistrates' court enforces a lump sum maintenance order, which has subsequently been ordered to be paid by instalments, it actually enforces the original lump sum order and not the instalment order. These amendments clarify this position in the Bill which might otherwise be ambiguous. I commend these amendments to the House.

Moved, That the House do agree with the Commons in their Amendments Nos. 4 to 6 en bloc.—(Viscount Astor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

7 Schedule 2, page 31, line 4, leave out 'applicant for the' and insert 'person who applied for the maintenance'.

Viscount Astor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. This amendment is a minor drafting amendment consequential to, and having the same effect as, other amendments which were made when we considered this Bill during its Report stage.

The amendment is necessary to complete the process of ensuring that the Bill's wording applies not only to the original maintenance application but also to subsequent applications for variation or enforcement of the maintenance order. For this reason it is more accurate to use the phrase "person who applied" than the word "applicant". I commend this amendment to the House.

Moved, That the House do agree with the Commons in their Amendment No. 7—(Viscount Astor.)

On Question, Motion agreed to.

COMMONS AMENDMENT

8 Schedule 2, page 31, line 17, after 'above' insert 'or

(c) where the sum to which the default relates comprises only interest which the defendant has been ordered to pay by virtue of section 94A( 1) below.'.

Viscount Astor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.

Moved, That the House do agree with the Commons in their Amendment No. 8.—(Viscount Astor.)

On Question, Motion agreed to.

The Deputy Speaker (Lord Airedale)

My Lords, in calling Amendment No. 9, I must point out that there is a misprint in the Marshalled List. Half way down page 4 at line 23 the word "purposes" should read "proposes".

COMMONS AMENDMENT

9 Schedule 2, page 31, line 17, at end insert—

'7A. For section 95 of that Act (power to remit arrears) there shall be substituted the following section—

"Remission of arrears and manner in which arrears to be paid

95. (1) On the hearing of a complaint for the enforcement, revocation, revival, variation or discharge of a magistrates' court maintenance order, a magistrates' court may remit the whole or any part of the sum due under the order.

(2) If, on the hearing of a complaint for the enforcement, revocation, revival, variation or discharge of a magistrates' court maintenance order, a magistrates' court orders that the whole or any part of the sum due under the order be paid by instalments (an "instruments order"), then—

  1. (a) if the maintenance order is an English maintenance order, the court shall at the same time exercise one of its powers under paragraphs (a) to (d) of section 59(3) above in relation to the instalments order;
  2. (b) if the maintenance order is a non-English maintenance order, the court shall at the same time exercise one of its powers under subsection (3) below in relation to the instalments order.

(3) The powers of the court referred to in subsection (2)(b) above are—

  1. (a) the power to order that payments under the order be made directly to the clerk of the court or the clerk of any other magistrates' court;
  2. (b) the power to order that payments under the order be made to the clerk of the court, or to the clerk of any other magristrates' court, by such method of payment falling within section 59(6) above as may be specified;
  3. (c) the power to make an attachment of earnings order under the Attachment of Earnings Act 1971 to secure payments under the order.

(4) The court may in the course of any proceedings concerning an instalments order or the magistrates' court maintenance order to which it relates vary the instalments order by exercising—

  1. (a) in respect of an English maintenance order, one of the powers referred to in subsection (2)(a) above;
  2. (b) in respect of a non-English maintenance order, one of its powers under subsection (3) above.

(5) In respect of an English maintenance order, subsections (4), (5) and (7) of section 59 above shall apply for the purposes of subsections (2)(a) and (4)(a) above as they apply for the purposes of that section.

(6) In respect of a non-English maintenance order—

  1. (a) subsection (4) of section 59 above shall apply for the purposes of subsections (2)(b) and (4)(b) above as they apply for the purposes of that section but as if for paragraph (a) there were substituted—
    1. "(a) the court proposes to exercise its power under paragraph (b) of section 95(3) below;"; and
  2. (b) in deciding which of the powers under subsection (3) above it is to exercise the court shall have regard to any representations made by the debtor (within the meaning of section 59 above).

(7) In this section—

"English maintenance order" has the same meaning as it has in section 94A above;

"non-English maintenance order" means—

  1. (a) a maintenance order registered in, or confirmed by, a magistrates' court—
    1. (i) under the Maintenance Orders (Facilities for Enforcement) Act 1920;
    2. (ii) under Part II of the Maintenance Orders Act 1950;
    3. (iii) under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972; or
    4. (iv) under Part I of the Civil Jurisdiction and Judgments Act 1982;
  2. (b) an order deemed to be made by the High Court by virtue of section 1(2) of the Maintenance Orders Act 1958 and registered under Part I of that Act in a magistrates' court; or
  3. (c) a maintenance order made by a magistrates' court by virtue of Part II of the Maintenance Orders (Reciprocal Enforcement) Act 1972.".'.

Viscount Astor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. This amendment rectifies an omission in the Bill by ensuring that a method of payment can be specified by a magistrates' court in respect of arrears of maintenance ordered to be paid by instalments.

This amendment was introduced by the Government in another place in response to a letter which they received from the noble and learned Lord, Lord Simon. Although he is not here this evening, I should like to take this opportunity to thank him for his perceptiveness in spotting this lacuna in the Bill. I commend this amendment to the House.

Moved, That the House do agree with the Commons in their Amendment No. 9.—(Viscount Astor.)

Lord Morris of Castle Morris

My Lords, this has proved a remarkable Bill in that, even in my limited experience, the tail is so much longer, more vigorous and more active than the dog. The schedules to the Bill outweigh the clauses by a considerable extent. Nevertheless, despite the length and complexity of the amendment, after perusing it most carefully, we are quite happy with it and wish to support it.

On Question, Motion agreed to.