Maintenance Orders (Reciprocal Enforcement) Bill [H.L.] (Hansard, 22 June 1992)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that this Bill be now read a second time.
This is a Bill whose purpose is to amend the procedural arrangements for handling maintenance orders for reciprocal enforcement in magistrates' courts in England and Wales. Until the amendment is made, a number of people in England and Wales wanting to claim maintenance abroad, or those from outside the United Kingdom wanting to claim maintenance from people here, will be unable to obtain maintenance for themselves and for their children to which they are entitled. We need to put this situation right, and this Bill provides a prompt remedy.
Reciprocal enforcement of maintenance orders allows for maintenance ordered by a court to be paid even though the payer and payee live in different countries. For example, an English court may make a maintenance order to benefit a woman living in England but there is no way that it can be enforced by that English court if the payer lives abroad. However, the payer can be obliged to pay maintenance by order of a court in his home country. International co-operation on the reciprocal enforcement of maintenance orders means that maintenance debtors and creditors who live in different countries can be treated in much the same way as if they lived within the same jurisdiction. The process is entirely reciprocal and is governed by a number of international conventions which the United Kingdom has ratified.
Reciprocal enforcement cases in England and Wales are always heard in the magistrates' court.
Reciprocal enforcement of maintenance orders has a long history, and the need for reciprocal enforcement arrangements has become ever more pressing. Better communications have meant that families are now more likely to be dispersed around the world than ever before. In 1920, arrangements were put in place for the first time whereby maintenance orders made in countries which were part of what was then the British Empire could be recognised in the United Kingdom and vice versa. This was a remarkably progressive step for the time. By comparison, it was not until 1950, 30 years later, that the complete recognition and enforcement of maintenance orders between the different legal jurisdictions of England and Wales, Scotland and Northern Ireland became possible.
Since 1920 there has been considerable progress, and there are now well over 100 different foreign jurisdictions with which the United Kingdom has reciprocal enforcement arrangements. The primary legislation governing the reciprocal enforcement of 344 maintenance orders is the Maintenance Orders (Facilities for Enforcement) Act 1920 and the Maintenance Orders (Reciprocal Enforcement) Act 1972. The underlying principle of these Acts was that as far as possible a person claiming maintenance to or from abroad should not be disadvantaged as against claimants where the respondent lives in the same jurisdiction. As a result, the legislation provides for reciprocal enforcement maintenance cases to proceed before magistrates' courts in the same way as claims where both parties are in the United Kingdom. When this legislation was drafted, the procedure for seeking maintenance before magistrates' courts in England and Wales where both parties were in this country was by way of complaint. It was therefore intended that reciprocal enforcement cases should also proceed by way of complaint. The 1920 and 1972 Acts used the terminology of the complaint procedure.
The procedure for seeking maintenance in magistrates' courts was entirely altered with the coming into force of the Children Act 1989 on 14th October 1991. The Children Act removed the system under which claims for maintenance where both parties lived in the United Kingdom proceeded by way of complaint. It substituted a new procedure, by way of application. However, there was no consequential change to the legislation governing the procedure to be followed in reciprocal enforcement cases. The effect is that magistrates' courts have no jurisdiction to process these cases. They cannot use the complaints procedure because its operation depends on there being a complaints procedure in place for United Kingdom cases, and this is no longer the situation. Nor is it possible for these cases to be processed using the new application procedure, as the 1920 and 1972 Acts expressly refer to the complaints procedure.
It is not the intention of this Bill to break new ground. Its purpose is, very simply, to bring the foreign applications into line with our new domestic procedure and all applications for the enforcement of maintenance will, so far as possible, be dealt with in the same way irrespective of whether both parties live in this country or one lives abroad. I should make it clear that the Bill applies only to England and Wales: there is not a parallel problem in Scotland and Northern Ireland because the relevant provisions of the Children Act do not apply there.
The four clauses of the Bill do nothing more than deal with commencement, introduce the schedules and establish the Short Title. The main provisions of the Bill are found in Schedule 1, which is in two parts. Part I amends the Maintenance Orders (Facilities for Enforcement) Act 1920. Sections 3 and 4 of the 1920 Act contain references to summonses and defences —terms which refer to the complaint procedure. Paragraphs 1 and 2 of the schedule replace these with references to notices of hearing and grounds for opposing the confirmation of an order, which reflect the terminology used in our new procedures. Paragraph 3 of the schedule disapplies those amendments with regard to the 1920 Act's application in Northern Ireland, where, as I have explained, no new provision is required.
345 Part II of Schedule 1 effects similar amendments to the Maintenance Orders (Reciprocal Enforcement) Act 1972. Again, specific references to the complaint procedure have been replaced by references to applications, with consequential amendments; but the existing provisions of the 1972 Act have been reproduced for the purposes of the Act's application in Northern Ireland. There are certain other features of this part of the schedule which I should bring to your Lordships' attention.
First, paragraphs 7 and 12 extend the rule-making powers under Parts I and II of the 1972 Act, to allow for the same scope as the rule-making powers contained in Section 93 of the Children Act 1989. This accords with the general principle of ensuring that, so far as possible, these applications will be dealt with in the same way as applications where both parties are resident in England and Wales.
Your Lordships will also notice that paragraph 8 of Schedule 1 incorporates amendments made by the Maintenance Enforcement Act 1991, which will require a court to specify the method by which maintenance must be paid. The new Section 28B inserted by the schedule preserves the present position whereby applications concerning reciprocal enforcement are heard only in a magistrates' court, by disapplying the provisions made under the Children Act 1989 which enable applications under that Act to be transferred to a county court or the High Court. The second schedule to the Bill is concerned only with consequential repeals.
This is a modest Bill which I am sure your Lordships will readily support. The numbers of individuals affected by the present inability of the magistrates' courts to deal with certain categories of reciprocal maintenance claims is not large: fewer than 1,000 a year. But it is clearly necessary to restore their rights. It is also important that the United Kingdom should set a good example in meeting its international obligations. We must not allow our reciprocal enforcement arrangements, which have been carefully nurtured over the past 70 years, to seize up. The Bill will prevent that outcome. I commend it to the House.

§ Lord Hailsham of Saint Marylebone
My Lords, perhaps I may put one point to my noble and learned friend on the Woolsack. I fully agree about the urgent necessity to pass this legislation—I am sure that no one will disagree with that—but I am a little concerned about the situation of the unfortunate practitioner who will have to read this Act, as it will be, and then apply it to a series of cognate Acts dating back to 1920. The Bill contains several important alterations to the actual phraseology of those Acts.
It is the case that the particular alterations are contained in the schedules. In fact, the Bill is composed almost entirely of schedules with two or three purely formal enacting clauses at the beginning. Will my noble and learned friend consider the possibility either of following this piece of legislation with a consolidating Act, as to which there might be 346 difficulties owing to the absence of a Northern Ireland and Scottish application, or of at least seeing his way to ensuring that the consolidated provisions so far as regards England and Wales are included in the forthcoming edition of the Statutes Revised. I do not think that the practitioner applying these provisions will find it at all easy to do so.

§ Lord Mishcon
My Lords, it is always a joy to follow the noble and learned Lord, Lord Hailsham, especially if one is able to agree with the theme that he has just addressed. I am sure that the noble and learned Lord will join me in thanking the noble and learned Lord the Lord Chancellor for his clear exposition of the Bill. All your Lordships will agree that the reciprocal arrangements in regard to the enforcement of maintenance are a necessity in this day and age and are to be welcomed. Therefore, in regard to the spirit of the legislation, none of us, as the noble and learned Lord indicated, will have any dispute with the noble and learned Lord the Lord Chancellor. But following on from what the noble and learned Lord, Lord Hailsham, said about the difficulties of the practitioner, I am covered with bewilderment as a legislator, if I may so humbly refer to myself in that way, in your Lordships' House. I have given notice of my bewilderment to the noble and learned Lord and it is directed in this way.
The noble and learned Lord, Lord Hailsham, rightly said that the Bill is largely made up of schedules. What it does is something of an elementary kind. First, it affects only magistrates' courts. Secondly, it applies the provisions of the recent Children Act in regard to procedure—we are only interested here in procedure—on a reciprocal basis, if I may use that shorthand. I am amazed as a humble legislator that where one deals with a question of procedure only and where one brings into that procedure the procedure that was enacted in the Children Act 1989 one has to do it by primary legislation, going through the whole process of a Second Reading and all the other proceedings that have to take place in your Lordships' House. Have we slipped up in some way? I am not interested in pointing out an error; I am only interested in seeing that if there is an error, it is not repeated. Should we have given power under the Children Act 1989 by regulation to apply it in such circumstances or to alter the procedure in a which your Lordships might approve when a regulation comes forward?
I have stood at this Dispatch Box many a time trying to invoke the priority of primary legislation as against secondary legislation. On this occasion, I must say that I miss from his place the familiar and very affectionately regarded noble Lord, Lord Renton. However, as I said, it is extraordinary that we must have primary legislation purely saying, "Look, what we enacted in the Children Act should apply in regard to procedure to these reciprocal cases, whether from the United Kingdom to the outside or from outside to the United Kingdom". I hope that the noble and learned Lord can tell us why that is necessary. If it is 347 necessary, can we not learn a lesson on this occ2asion and ensure that somehow or other our legislative procedure sees to it that it does not happen again?

§ The Lord Chancellor
My Lords, I am grateful that the substance of what the Bill wishes to do has met with such universal and so clearly expressed approval.
The matters with which I have to deal are primarily questions. First, why must we deal with a matter which is eminently procedural by this method? The first answer to that is the terms of the reciprocal enforcement legislation are perhaps more precise than one would have wished in specifying the procedure by which such matters were to be given effect.
Of course, if how that might cause difficulty had been as fully appreciated then as it is now, it would have been possible to propose some amendments of the reciprocal enforcement legislation in the Children Act. However, noble Lords who were concerned with that legislation will remember that the jurisdiction arrangements of the Act were dealt with at quite a late stage of the procedure. It was a very important stage and one which I would certainly not have liked to have forgone for the sake of ensuring that it was absolutely complete.
The result is that primary legislation in a different field of the reciprocal enforcement maintenance provisions was not amended by the Children Act. There may be scope—and this is a matter for the future—in sometimes having rather wider clauses in such legislation to permit procedural changes in other legislation. But, as your Lordships know, I occasionally find myself in difficulties about the width of such clauses rather than their narrowness. In this case, it is the narrowness of the clause in the Children Act which causes the problem.
So far as concerns the points made by my noble and learned friend Lord Hailsham, the amendments are framed on the basis that if one had copies of the two principal Acts dealing with reciprocal enforcement, it is comparatively easy to amend them. The practitioner who has those Acts could do it in that way. I hope that the Statutes In Force, which are not quite as up-to-date as I should like to see, will cope with that particular problem. I shall certainly seek to examine that aspect.
I do not believe that problems of consolidation will be very serious. I shall also certainly examine that as a possibility. But my primary answer is that the practitioner will find the amendments, and the way that they have been framed, as the best possible method of actually effecting the amendments to the procedure with which he is familiar. From that point of view, the Bill is designed with the ease of the practitioner in mind.
In view of the general acceptance of the Bill, it is with confidence that I repeat my Motion that the Bill should now be read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.