§ 3.27 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [Repeals]:
§ The Lord Chancellor moved Amendment No.1:
§
Page 1, line 12, at beginning insert:
("(1) The amendments set out in Schedule (Consequential amendments) to this Act shall have effect.").
§ The noble and learned Lord said: The amendments to which I shall speak are technical and seek to give effect to the main policy, which I described on Second Reading, in a fairly complicated area. In moving Amendment No. 1 I shall speak also to Amendments Nos. 12 and 15.
§ Amendment No. 1 introduces the consequential amendments to other legislation made necessary by the Bill by providing for the amendments set out in a new schedule to have effect. The new schedule is introduced into the Bill by Amendment No. 15.
§ The amendments made in the Bill to enactments other than the Maintenance Orders (Facilities for Enforcement) Act 1920 and the Maintenance Orders (Reciprocal Enforcement) Act 1972 are few and modest. The proposed amendment in the new schedule to Section 90 of the Domestic Proceedings and Magistrates' Courts Act 1978 is consequent upon the repeal of paragraph 34 of Schedule 2 to that Act by Schedule 2 to the Bill.
991§ The amendments to the Magistrates' Courts (Northern Ireland) Order 1981 are merely consequential.
§ Amendment No. 12 relates to procedure in Northern Ireland only and preserves the existing position under Section 27(9). I beg to move.
§ Lord MishconI do not wish to embarrass anyone, certainly not the noble and learned Lord. However, I wonder where we are from the point of view of our position as legislators in approving the wording and in the modes of passing Acts of Parliament. On Second Reading I ventured to say to your Lordships that I was rather surprised that we were having primary legislation going through all its stages to vary an Act and an order limited to magistrates' courts in order to make the carrying out and making of maintenance orders a matter which would not just cover England and Wales but would also enable them to be made on a reciprocal basis. I said that it seemed amazing to me that we had to have primary legislation going through all its stages in order to do that.
The noble and learned Lord, with his usual courtesy, explained that, had we had the time and had we thought of it when we were dealing with the Children Act, we might have dealt with it then by providing in that Act for this situation. I took it from him, as I am always prepared to take it from him, as a reasonable explanation. It is true that our considerations of the relevant provisions in the Children Act took place extremely late and one understands why a possible omission occurred.
We then considered the Bill on Second Reading, which was only a matter of weeks ago. In regard to this short Bill—although it has a long schedule—we are now faced with 15 amendments to a Bill presented to us on Second Reading only a few weeks ago. I wonder what is happening. Is it the fault of the parliamentary draftsman? Is something going wrong with departmental consideration of Bills? I believe that this Committee is entitled to know, but I hope that I ask the question with courtesy and moderation.
§ The Lord ChancellorAs I sought to explain on Second Reading, the necessity for the Bill arises from the detailed provisions which have been made in respect of maintenance orders in earlier Acts of Parliament. Those arrangements are quite detailed. Once the Bill was published and people had had a chance to consider it against the background of those details it became apparent that further improvements were possible. That is the reason for the amendments. As I say, they are technical but we are dealing with an extremely technical subject.
I believe that there is something to be said for having less detailed legislation on this subject in the first place, but Parliament has legislated on maintenance orders in quite a detailed fashion.
§ Lord MishconI say no more, other than that it is somewhat surprising that the technical matters were not realised to be necessary when the Bill was drafted. 992 However, I have made my point, which the noble and learned Lord has answered. The Committee will now wish to get on with the 15 amendments before us.
§ On Question, amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clauses 3 and 4 agreed to.
§ Schedule 1 [Amendment of the 1920 and 1972 Acts]:
§ The Lord Chancellor moved Amendment No. 2:
§
Page 2, leave out lines 7 to 10 and insert:
("1.—(1) Section 3 (power to make provisional orders of maintenance against persons resident in certain Commonwealth countries) shall be amended as follows.
(2) In subsection (1), for the words "a summons had been duly served on that person and he" there shall be substituted "that person had been resident in England and Wales, had received reasonable notice of the date of the hearing of the application and".
(3) In subsection (3), for the words "duly served with a summons" there shall be substituted "resident in England and Wales, had received reasonable notice of the date of the hearing".
(4) In subsection (4), for the word "rescind" there shall be substituted "revoke".
(5) In subsection (5), for the words "rescind" and "rescinding" there shall be substituted "revoke" and "revoking" respectively.
(6) In subsection (6), for the words from "a summons" to the end there shall be substituted "the person against whom the order is sought to be made been resident in England and Wales and received reasonable notice of the date of the hearing of the application".
(7) After subsection (6), there shall be added—
(7) Where subsection (1) of section 60 of the Magistrates' Courts Act 1980 (revocation, variation etc. of orders for periodical payment) applies in relation to an order made under this section which has been confirmed, that subsection shall have effect as if for the words "by order on complaint," there were substituted "on an application being made, by order".
(8) In this section "revoke" includes "discharge"." ").
§ The noble and learned Lord said: This amendment illustrates the kind of problem with which I have had to cope since the Bill was introduced. The Act, as amended by the Bill as it stands at present, would allow the court jurisdiction to make a provisional maintenance order against someone abroad as if he had been served with notice of the hearing and had been resident in England and Wales. On further consideration once the Bill was published, it became apparent that that requirement was not sufficient to establish the court's jurisdiction under the 1920 Act, as analogous with its jurisdiction in domestic maintenance cases. What is required is to confer jurisdiction under the 1920 Act as if the respondent had been resident in England and Wales and had not only been served with notice of the hearing but also had been given reasonable notice of the date. That is more properly in line with the position when both applicant and respondent are resident in England and Wales.
§ The amendment also makes minor modifications to terminology in Section 3 and provides for a parallel amendment to the 1920 Act as is made to the 1972 Act by virtue of Amendments Nos. 11 and 14, to which I shall speak separately.
993§ Amendment No. 6 relates to procedure in Northern Ireland only and preserves the existing position. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 3:
§
Page 2, line 36, at end insert:
("(7) In subsection (6A), before paragraph (a) there shall be inserted—
(za) as if in subsection (1) for the words "by order on complaint" there were substituted "on an application being made, by order"." ").
§ The noble and learned Lord said: I shall speak also to Amendments Nos. 7, 9 and 13. These amendments all relate to variation and revocation proceedings. The amendments provide that all proceedings for the variation or revocation of maintenance orders to which the 1920 and 1972 Acts apply are to be handled by way of application and not by way of complaint.
§ These amendments are extremely technical but the basic legislation which we are seeking to amend is technical. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 4:
§
Page 2, line 36, at end insert:
(" . After section 4 there shall be inserted—
§
"Variation and revocation of maintenance orders.
4A.—(l) This section applies to—
(2) Where the respondent to an application for the variation or revocation of a maintenance order to which this section applies is residing in a part of Her Majesty's dominions outside the United Kingdom to which this Act extends, a magistrates' court in England and Wales shall have jurisdiction to hear the application (where it would not have such jurisdiction apart from this subsection) if that court would have had jurisdiction to hear it had the respondent been residing in England and Wales.
(3) Where the defendant to a complaint for the variation or revocation of a maintenance order to which this section applies is residing in a part of Her Majesty's dominions outside the United Kingdom to which this Act extends, a court of summary jurisdiction in Northern Ireland shall have jurisdiction to hear the complaint if that court would have had jurisdiction to hear it had the defendant been residing in Northern Ireland.
(4) Where—
the court may proceed to hear and determine the application at the time and place appointed for the hearing or for any adjourned hearing in like manner as if the respondent had appeared at that time and place.(5) Subsection (4) shall apply to Northern Ireland with the following modifications—
(6) In this section "revocation" includes "discharge"." ")
§ The noble and learned Lord said: I shall speak also to Amendment No. 10. These two amendments are concerned with the jurisdiction of magistrates' courts to deal with applications for variation and revocation of maintenance orders to which the two Acts relate. That requires detailed provision along the lines of these amendments. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 5:
§
Page 2, line 36, at end insert:
(" . The provisions of section 7 (application of the Magistrates' Courts Act 1980) shall become subsection (1) of that section and the following subsection shall he added after that subsection—
(2) Without prejudice to the generality of the power to make rules under section 144 of the Magistrates' Courts Act 1980 (magistrates' courts rules), for the purpose of giving effect to this Act such rules may make, in relation to any proceedings brought under or by virtue of this Act, any provision which—
§ The noble and learned Lord said: Amendment No. 5 extends the rule-making power under the 1920 Act to include power to make any provision which may also be made in relation to relevant proceedings under Section 93 of the Children Act. It thus provides the same rule-making power in the 1920 Act as will be provided in Section 18(1A) of the 1972 Act. I hope that that provision will help to avoid this kind of difficulty in future. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 6:
§
Page 2, leave out lines 39 to 41 and insert:
(" "(d) the amendments of section 3(1), (3) and (6) and section 4 made by the Maintenance Orders (Reciprocal Enforcement) Act 1992 shall be disregarded." ").
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 7:
§
Page 3, line 45, at end insert:
(" . In section 5 (variation and revocation of maintenance order made in United Kingdom), after subsection (3) there shall be inserted—
(3A) Where subsection (1) of section 60 of the Magistrates' Courts Act 1980 (revocation, variation etc. of orders for periodical payment) applies in relation to a maintenance order to which this section applies, that subsection shall have effect as if for the words "by order on complaint," there were substituted "on an application being made, by order"." ").
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 8:
§
Page 4, line 3, at end insert:
("( ) In subsection (4), for the words "the court" there shall be substituted "a magistrates' court in Northern Ireland".").
§ The noble and learned Lord said: This amendment restricts the application of Section 7(4) to Northern Ireland. That subsection is required only in cases where the complaints procedure is to be preserved. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendments Nos. 9 and 10:
§
Page 4, line 15, at end insert:
(" . In section 9 (variation and revocation of maintenance order registered in United Kingdom court), in subsection (1ZA) before paragraph (a) there shall be inserted—
(za) as if in subsection (1) for the words "by order on complaint," there were substituted "on an application being made, by order";".").
§
Page 4, line 19, at end insert:
("( ) After subsection (5) there shall be inserted—
(5A) Where the respondent to an application for the variation or revocation of—
is residing in a reciprocating country, a magistrates' court in England and Wales shall have jurisdiction to hear the application (where it would not have such jurisdiction apart from this subsection) if it would have had jurisdiction to hear it had the respondent been residing in England and Wales." ").
§ On Question, amendments agreed to.
§ The Lord Chancellor moved Amendment No. 11:
§
Page 4, line 43, at end insert:
(" . In section 21 (interpretation of Part I), in subsection (1) at the end there shall be added—
"revoke" and "revocation" include discharge".").
§ The noble and learned Lord said: I shall speak also to Amendment No. 14. These amendments modify the interpretation provisions so that the terms "revoke" and "revocation" encompass "discharge", which is the terminology used in the Children Act 1989 for the bringing to an end of a maintenance order for a child or children made under the Act. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendments Nos. 12 to 14:
§
Page 9, line 3, at end insert:
("(11) Payment of sums due under a registered order shall, while the order is registered in a magistrates' court in Northern Ireland, be made in such manner and to such person as may be prescribed, and neither Article 36(1) of the Domestic Proceedings (Northern Ireland) Order 1980 nor Article 85(1) to (7) of the Magistrates' Courts (Northern Ireland) Order 1981 (which relate to the power of a magistrates' court to direct payments to be made to or through the collecting officer of the court or some other person) shall apply in relation to a registered order.").
§
Page 9, line 6, at end insert:
(" .—(1) Section 34 (variation and revocation of orders) shall be amended as follows.
(2) In subsection (1) after the words "Subject to" there shall be inserted "subsection (3A) below and".
(3) After subsection (3) there shall be inserted—
(3A) Where subsection (1) of section 60 of the Magistrates' Courts Act 1980 (revocation, variation etc. of orders for periodical payment) applies in relation to
996
a registered order, that subsection shall have effect as if for the words "by order on complaint," there were substituted "on an application being made, by order".
§
Page 10, line 53, at end insert:
("and at the end there shall be added—
"revoke" and "revocation" include discharge".").
§ On Question, amendments agreed to.
§ On Question, Whether Schedule 1, as amended, shall stand part of the Bill?
§ Lord RentonPerhaps I should reveal that my interest in the Bill arises from the fact that 34 years ago I piloted the first Maintenance Orders Bill through another place. However, on this occasion I feel bound to commend the Government for once on the method used in complicated amendments to Schedule 1. They are all done by the textual method. Sometimes, because of complications, the draftsman prefers to use a non-textual method, and that is less satisfactory. I hope that it is not out of order for me to draw a comparison, however odious, between the method of drafting this Bill, which is so admirable, and the less satisfactory method we discussed last week on a Bill dealing with judicial pensions.
§ The Lord ChancellorThe authorship of the preceding Bill, and the precision with which it was drafted, is part of the explanation for the method required here. I accept with gratitude my noble friend's commendation of the method of drafting here employed. I cannot so readily accept his criticism of last week's Bill. The drafting method must depend to some extent upon the subject matter.
Schedule 1, as amended, agreed to.
§
The Lord Chancellor moved Amendment No. 15:
After Schedule 1, insert the following new schedule:
§ ("SCHEDULE CONSEQUENTIAL AMENDMENTS
§
The Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22)
1. In section 90(3) (b) of the Domestic Proceedings and Magistrates' Courts Act 1978 (which lists the provisions of Schedule 2 to that Act that extend to Northern Ireland), for "paragraphs 12, 13, 14, 33 and 34(a)" there shall be substituted "paragraphs 12, 13, 14 and 33".
§ The Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26))
2.—(l) The Magistrates' Courts (Northern Ireland) Order 1981 shall be amended as follows.
(2) In Article 100 (power of court to make attachment of earnings order), in paragraph (2), in the definition of "prescribed person" for "section 27(9)" there shall be substituted "section 28C(11)".
(3) In Article 101 (making of attachment of earnings order), in paragraph (3) (b) (ii) for "section 27(8)" there shall be substituted "section 28C(10)".").
§ On Question, amendment agreed to.
§ House resumed; Bill reported with amendments.