HL Deb 21 March 1991 vol 527 cc772-81

6.25 p.m.

House again in Committee on Clause 29.

Lord McGregor of Durris moved Amendment No. 113:

Page 22, line 5, after ("to ") insert ("an award of costs against the court or the person levying distress and ").

The noble Lord said: The amendment seeks to deal with what seems to be an omission in Clause 29(8) (d). The clause provides that if distress is wrongfully levied, the absent parent may recover his goods if they have been distrained or obtain an award of compensation if they have been sold. The amendment would have the effect of enabling that absent parent to obtain also an order for costs against the court or the bailiff who had wrongfully levied the distress. I beg to move.

The Lord Chancellor

The clause provides for enforcement action by distraint where the liable person has not made maintenance payments following an assessment and a demand for payment and subsequent to the obtaining of a liability order from a magistrates' court. The amendment is to that part of Clause 29 which sets out what matters may be provided for in the regulations—another illustration of the possible value of such provisions. The subsection of the clause which the amendment seeks to change provides for an appeal to the court against distraint action by the liable person. The appeal may be against distraint that has taken place or has been attempted. As the clause is drafted at present, compensation may be awarded on a successful appeal if it were found that the distraint was wrongly carried out or carried out against the wrong person. The court will also be able to decide on the disposal of goods distrained if they have not yet already been disposed of. Those provisions are modelled on existing legislation for distress action in the Courts and Legal Services Act 1990 and do not introduce any novel powers; they merely carry forward into the Bill the powers which the courts already have in respect of appeals against distress action. The effect of the amendment would be to provide in the regulations that the court would award costs against itself and against the Secretary of State in addition to compensation. Compensation can be awarded in such circumstances through the existing court processes if the action which is in question was as a result of an error either by the court or the person levying distraint.

We believe that the provisions for compensation provided for in existing legislation which will apply to the Bill are sufficient to deal with incorrect actions of distraint. As the Bill makes clear in this subsection, an appeal against a distraint action will be to the courts and the regulations will make provision as to powers of the courts in awarding such compensation.

I hope that the noble Lord may feel able to withdraw the amendment in the light of that explanation. In that situation, the person levying the distress is the Secretary of State rather than the bailiff.

Lord Prys-Davies

Perhaps I may ask the noble and learned Lord just one question. Who will levy distress on behalf of the Secretary of State? Will it be a servant of the agency acting in the course of his employment or a certificated bailiff? I ask that because the NCC has recently severely criticised the use of certificated bailiffs.

The other question does not arise under this amendment but under Clause 29. Does the reference to "special damage " in subsection (6) also include the costs of the aggrieved party? I should be grateful if the noble and learned Lord could throw some light on these matters.

The Lord Chancellor

The question of costs will be regarded as incidental. On the powers dealing with an appeal, the person authorised to execute the distraint would be a certificated bailiff; that is, a person certificated for that purpose, not an employee of the Secretary of State in the ordinary case.

I am aware of the views of the National Consumer Council in relation to certificated bailiffs in other connections. These matters will have to be considered. I should have thought it would be better for the person who is responsible for exercising these powers to have been certificated under the provisions. No doubt even people who are certificated can have their conduct further improved and perhaps some action needs to be considered on that. However, I believe that this is the appropriate way for enforcement to be taken.

Lord Simon of Glaisdale

Following the question put by the noble Lord, Lord Prys-Davies, I was going to ask about "special damage ". Perhaps it is more convenient to do so now in view of the recent colloquy than wait for the Motion that the clause stand part.

What is involved here? It may be a term of art. My recollection is that a bailiff may, when exercising distress, knock down the front door. However, that recollection may be derived from Pickwick Papers rather than any textbook of law. Does "special damage " mean damage over and above what a bailiff may. in the course of executing the distress, cause legitimately or at any rate without complaint by the person against whom distress is levied? Before my noble and learned friend answers, perhaps I may also ask what is the meaning of "and no more " in line 40.

The Lord Chancellor

My understanding of the phrase "special damage " is the ordinary meaning, that it is not a question of general damages but of pointing out a specific loss that the person has incurred. When the provision says: special damage (and no more)

it means to restrict the matter to that. I sympathise with my noble and learned friend in sometimes finding it difficult to know whether one has picked up one's information from a textbook of law or Pickwick Papers. However, the situation is that the bailiff cannot break down the front door under the powers given to certificated bailiffs in our law.

Lord McGregor of Durris

I am grateful to the noble and learned Lord for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Clause 30 agreed to.

6.30 p.m.

Clause 31 [Enforcement of liability orders by diligence: Scotland]:

The Lord Advocate (Lord Fraser of Carmyllie) moved Amendment No. 113A:

Page 22, line 29, at end insert ("and, in connection therewith, for the opening of shut and lockfast places ").

The noble and learned Lord said: A Scottish court order includes authority for commissioned officers of court to open shut and lockfast places in order to carry out a poinding. This amendment will make clear that a liability order also provides that authority. As noble Lords will be aware, this is a well-established procedure and subject to proper controls, such as the giving of advance notice to the debtor. It is in the best interests of the maintenance debtor and the maintenance creditor that the law on this matter should be clearly stated, hence the amendment. I beg to move.

On Question, amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32 [Commitment to prison]:

Lord Stoddart of Swindon moved Amendment No. 114:

Page 23, line 15, at end insert: ("(5A) No warrant may be issued under this section without a Social Services report on the likely effect on the children, including any other children residing with the liable parent. ").

The noble Lord said: I do not wish on this amendment to enter into a debate on the whole question of the imprisonment of liable fathers or mothers. I shall make my remarks brief as I have already commented under Clause 27.

I cannot believe that the Government want a liable parent to be committed to prison without the court first having had the opportunity to consider a social services report. There is not only the financial effects on the children but the whole ethos of the children's lives where a father has been sent to prison. It is not only the father of the maintained children but the children of the second family with which a father or mother may live. It may well be that the noble and learned Lord the Lord Chancellor will tell me that the matter is already covered under the existing court procedures. However, it is not clear to me that it is. Frankly, it must be made quite clear that we shall not send defaulting liable parents to prison without first having considered all the effects, particularly those on the children of one, two or even more families. I beg to move.

The Lord Chancellor

I shall respect the noble Lord's wish to avoid getting involved in the full debate about imprisonment in response to this amendment. However, what is envisaged in Clause 32 is very much a last resort situation. It is obligatory on the court, before there is any question of granting a warrant under subsection (2), to inquire into the means of the liable person and whether there has been a wilful refusal or culpable neglect on his part. That is a wide inquiry.

In this case, it is a requirement that it should be done in the presence of the liable person. In other words, he must come to the court and the court will have a full opportunity of inquiring into his circumstances. It will not be possible to grant any warrant under this provision unless the court is satisfied that having regard to his means there has been a wilful refusal or culpable neglect on his part.

The noble Lord may feel satisfied that that is an immediate inquiry with the liable person present. All the circumstances in which he has refused to pay will be examined in the inquiries. If there are other matters into which the magistrates wish to inquire before granting a warrant, they will have full discretion to do so. However, the Committee will appreciate that there is no obligation on the magistrates to grant a warrant, even if they are satisfied that one may be justified. They merely have a power to grant a warrant, but they have wide discretion in the matter. I therefore believe that all the circumstances of a case can be made available to the court.

It is also worth reminding the Committee that it is intended that the formula should take full account of all the responsibilities of the liable parent in the manner prescribed. I hope that is sufficient comment at this stage. Obviously we shall have to consider the matter fully in connection with the full debate on imprisonment.

Lord Stoddart of Swindon

I am afraid that I am not at all happy with that reply. The powers, and indeed the abilities of magistrates, are simply not adequate to examine all the circumstances—irrespective of what has happened before—which must necessarily be examined before a person is sent to prison. They will not be able to reach a proper conclusion unless an independent body, such as a social services department, has undertaken a proper inquiry. As far as I can ascertain, there is no provision in the Bill for such an inquiry. A court is not a suitable place—I refer to the matters that I outlined in my opening remarks—for such an inquiry to take place.

I do not know whether I shall press the amendment but I feel unhappy about the reply that the noble and learned Lord has given. It is not satisfactory and I ask him to bear in mind that we may be sending a person to prison. We would by that action take him away from his children. We would take away the opportunity for him to work —irrespective of whether he contributes to maintenance—and we would confine him to a prison where he will get into bad company and perhaps emerge as an even worse person than when he went in. That too may have an effect on his children from a former marriage and on the children of a present marriage. It is essential that we do everything we can to ensure that all the circumstances of a case are known. I believe that only through an inquiry conducted by a social services department can we be sure that that will happen.

Baroness Faithfull

It is a little difficult to take a decision on this matter until we have heard the big debate on the subject of prisons. Some of us will have suggestions to make as regards alternatives to prison. If those suggestions were accepted, this provision would not be necessary. I say that although my suggestion may not be accepted. Nevertheless we need to hear all the arguments before we take a decision on this provision.

Lord Simon of Glaisdale

I have a query which arises out of something that my noble and learned friend said. He said that the formula will take account of all liabilities. I have been trying to find out how far an order for spousal maintenance affects the formula. I am not asking my noble and learned friend to reply to that query now. However, I should be grateful if before the next stage I could be apprised of where the formula takes account of spousal maintenance and how it affects Example 3 of Volume One of the White Paper.

6.45 p.m.

The Lord Chancellor

I believe I said that liabilities would be taken into account in accordance with the formula—that is certainly the phrase I had in mind—because the formula is intended to take account of a person's expenses and that kind of thing. As regards spousal maintenance, I must have failed to explain to my noble and learned friend how I envisaged this provision working. The formula is designed to ascertain in respect of a particular case, in the given circumstances to which the formula is applied, the amount of child maintenance that is payable. The money that is left over from child maintenance is available for spousal maintenance. The ordinary powers of the court to operate on that, having regard to the amount of the child maintenance, will continue. It will be for the court to determine, in the light of the responsibilities of the liable absent parent for the children, what sum, if any, should be paid by the absent parent in respect of spousal maintenance.

As I have already said, there is an element of maintenance for the caring parent in the formula in respect of the cost of caring for the child. That is part of the maintenance award in respect of the child. However, in as far as spousal maintenance is required over and above that, it will be fixed by the court in accordance with the law presently operated by the court, having regard to the responsibilities for maintenance determined under the formula. I would expect a court to have information about that at the time that the spousal maintenance was finally fixed.

Lord Simon of Glaisdale

I am grateful to my noble and learned friend for that reply. I now understand the position rather better, but I confess that I still do not understand it fully. The element in maintenance relating to the expenses of a caring parent who cannot herself work is very small. I again refer to what my noble and learned friend termed the typical case that is mentioned in Example 3. I believe that in that example the father was left with £92. Of that a certain amount is represented by the exempt element. I have forgotten how much that is, but I believe it is about £46. Can the court make such an order as it considers just out of the father's £92 in the case of a wife who has, to all intents and purposes, no means and is bound to the house to look after the children, or is it restricted to the difference between the exempt element and the £92? Finally, when an order is made, are not all the computations thrown out kaleidoscopically?

The Lord Chancellor

No, that is not the result. In calculating the amount that is payable in respect of maintenance, the exempt income has to come into play at the first stage of the calculations. One then discovers the result of the calculation.

Lord Simon of Glaisdale

I am sorry to interrupt my noble and learned friend. When he refers to the calculation, is he referring to the impact of the formula or the calculations made by the justices?

The Lord Chancellor

I am trying to explain in broad terms how I understand the formula to work. The detail of the formula has been examined in respect of Schedule 1. First of all one applies the formula. The exempt income comes into the calculation in determining the amount of maintenance payable by the father—to take the typical case—in respect of the child. Let us say that there is one child, or two children, in the typical example to which my noble and learned friend referred. The exempt income is then used for the purpose of determining the maintenance award. Once the maintenance award is determined, one knows what the free income of the father will be after providing maintenance. The court will then be able to make an award out of that free income in respect of spousal maintenance to the mother.

The principles upon which the court will work are the principles upon which the court works now in determining how much should be given by way of spousal maintenance. The court will know for the future the element of spousal or carer's maintenance which is included in the formula award. It will have regard to that in making the award. However, the award of spousal maintenance operates on the money that is left after the award of maintenance for the child or children in respect of the formula has been taken into account.

Lord Prys-Davies

Assuming that the formula has been correctly understood by the official and correctly applied, it could nevertheless lead to an unjust result —which is an issue that we discussed the other day in Committee. In those circumstances, should the courts not have before them evidence of that unjust result for the liable parent? If it has led to hardship, is it not very likely that the social service report would pick up that fact so that the evidence would be before the court when deciding whether or not to issue commitment? Unless there is such a fallback position, it would appear that there is no means of adjusting the situation until new regulations are made in order to correct a defect in the formula which was not foreseen when the formula was drafted.

The Lord Chancellor

The purpose of the formula, and the reason for having a formula, is to provide a just result in all cases. I admit that it is possible that even the formula may not be 110 per cent. perfect and a situation might arise which would call for modification of the formula. However, the underlying purpose of the formula is to attain a just result in all cases. I hope that the cases in which it would not do so would be extremely rare.

I have to point out that if the formula produces, for example, a larger payment than justice should require, that would become evident in an inquiry such as is proposed in Clause 32. The circumstances that have to be inquired into relate to whether there has been a deliberate failure to pay which is a wilful refusal and culpable neglect on the part of the parent. That can only be determined on the basis that money is available and the refusal to pay is a wilful refusal, the circumstances otherwise being in favour of payment. The objective is only to deal with the person who, having had a proper award made, then says, "No, I understand all about it but I am just not going to pay that money for my children". That is a typical case which the provision is intended to cover.

We have to proceed on the basis that the purpose of the formula is to attain justice. The thrust of the whole system is to achieve justice by means of the formula. That is why it needs to be very detailed and take account of the great variety of circumstances which may arise. One has a choice between such a system, which applies to a great number of cases—3 million in all,, both new and variation cases—and a discretion, which it is impossible to apply consistently. The formula aims at consistency and where it applies, it ought to produce the right answer.

Accordingly, I submit to the Committee that it is not right in this system to seek modification of the formula. One is looking for an ultimate sanction which is properly protected against misuse. That is where the inquiry in the person's presence into his means is a necessary preliminary to any exercise of that power.

Lord Stoddart of Swindon

We have had a longer debate on the amendment than I had anticipated; but the matter has aroused considerable interest. While I understand perfectly what the noble and learned Lord the Lord Chancellor said about applying the formula and that the formula is meant to be fair, as I showed earlier in our debate, the formula could be very unfair to many liable parents, especially where they have high costs of access.

It may very well be that the child support officer making the assessment might think that he has made a fair assessment under the formula; but because of the associated costs, it is impossible for the maintenance to he paid in accordance with the formula. My noble friend Lord Prys-Davies made the point that injustice could result from applying the formula. The amendment is intended to introduce an independent authority such as the social services to provide the court with an independent view as to whether or not there had been wilful refusal to pay.

Having said that, and bearing in mind what the noble Baroness, Lady Faithfull, said, although I am very tempted to do so, it would be wrong to press the amendment. There is an opportunity to come back to the matter at Report stage if we are not satisfied with what is brought forward. I have to say to the noble and learned Lord, whom I very much like and respect and who I know is very sensitive about these issues, that I remain very unhappy about the matter. With those words, I shall beg leave to withdraw the amendment—at least for the time being.

Amendment, by leave, withdrawn.

Lord McGregor of Durris moved Amendment No. 115:

Page 23, line 27, at end insert: ("Pending the making of such regulations section 79(2) and (3) of the Magistrates' Courts Act 1980 and the rules made thereunder shall apply.").

The noble Lord said: My noble friend Lord Meston has been driven from the Chamber in pain to the dentist and has asked me to move the amendment on his behalf.

Clause 32 provides for commitment to prison, which remains the sanction for non-payment of maintenance orders unless the High Court or county court judgment summons procedure is invoked under the Magistrates' Courts Act 1980. The draftsman of the Bill clearly had the 1980 Act in mind when producing Clause 32. Subsection (10) applies Section 80 of the Act whereby the debtor can be required to turn out his pockets or his or her handbag. For some reason subsection (8) provides only for the possibility that regulations may be made similar to the provisions of Section 79 of the 1980 Act. Section 79 provides for release from custody on payment and for pro rata reductions in the sentence to be served when part payments are received. It is not clear why this part of the clause does not unconditionally allow for such a provision to be written into the Bill. Amendment No. 115 incorporates Section 79 until regulations are made, and in case they never are.

Amendment No. 116 incorporates Section 94 of the 1980 Act, which prevents arrears accruing while the debtor is in custody, unless the court otherwise directs in an extreme case. It also incorporates Section 95, which gives a power to the court on hearing an enforcement application to remit arrears wholly or in part. It is to be expected that courts would adhere to the practice of usually remitting stale arrears which are more than 12 months old. If arrears and interest under Clause 33 are allowed to accrue while the debtor is in custody and probably not in receipt of income, any payments which he makes during that period will or should be applied in or towards the discharge of the continuing maintenance assessment, with the result that the arrears which sent him to prison might never get cleared and might even lead to the possibility of a second imprisonment for the same arrears. It is all the more important that the courts have some discretion and control at this stage, because prison for this sort of debt is intended in theory to be coercive rather than punitive.

Secondly, imprisonment does not automatically clear the slate. Thirdly, the formulae in the Bill are very inflexible and should be subject to court control and modification when the last resort is used or invoked. Finally, if prison is to be retained, only the most recalcitrant should be vulnerable; but that is a point which the noble and learned Lord has made repeatedly.

Given the provision for interest and the absence of any power to remit arrears under the Bill as presently drafted, do the Government see arrears of child support being provable in bankruptcy, unlike periodical maintenance payments at present? I beg to move.

The Lord Chancellor

I shall deal with Amendment 115 at this moment. We intend to have regulations which, among other things, mirror the provisions of the Magistrates' Court Act and the rules made under them. As the noble Lord, Lord McGregor of Durris, has said, the intention of this clause is coercive and not punitive. The idea is to persuade the person in question to perform his maintenance obligations and therefore I do not think that the full form of the magistrates' courts provisions is so appropriate. There, there is a pro rata reduction because there is a penalty in question which is being redeemed, as it were, in part from day to day by the service of a period of imprisonment.

We have in mind regulations which would be more appropriate to this subject matter and would deal with the situation on the same general lines but tailored more to the particular situation. There is no question of Clause 32 being brought into force until the regulations are made to come into force with it on this aspect of the matter. The point made by the noble Lord will be covered in the regulations. That is probably better than trying to incorporate the less appropriate provisions of the Magistrates' Courts Act.

Lord McGregor of Durris

I am grateful to the noble and learned Lord for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Reay

My Lords, it might be a convenient moment to break now. Perhaps I may suggest that the Committee does not resume its deliberations before five minutes past eight. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.