Lords Sitting of 25 April 1991

Preamble
The House met at three of the clock(Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Guildford.): The LORD CHANCELLOR on the Woolsack.
The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business I take the opportunity to inform the House that, with the approval of Her Majesty the Queen, I have accepted an invitation from the President of the Bundesrat to visit the Bundesrat in Bonn and to undertake other engagements in Germany on 7th and 8th May. I have also been invited to attend the Conference of European Speakers in Berlin between 9th and 11th May. Accordingly, I trust that the House will grant me leave of absence from Tuesday 7th May to Friday 10th May.

Community Charge Levels
3.1 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What is the highest community charge proposed for the 1991–92 financial year, and by which local authority it is demanded; and what is the lowest proposed community charge, and by which local authority it is demanded.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, before the Budget announcement made by my right honourable friend the Chancellor of the Exchequer, Lambeth had set the highest charge at£590, and Wandsworth the lowest at£136. After the Budget the ranking did not change but the charge set by Lambeth is reduced to£450 and Wandsworth to nil.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that extremely interesting reply. Will she say what explanation there is for that quite extraordinary disparity between one borough and another?
Baroness Blatch: My Lords, it would take too long to give a detailed reply, except to say that on almost every count on financial management and quality of services Wandsworth simply does a better job.
Lord Molloy: My Lords, will the noble Baroness tell the House the specific support that Wandsworth has received from the Government during the past few years which no other borough has had?
Baroness Blatch: My Lords, every charge payer in Lambeth is supported by government support to the tune of£1,557. Lambeth spends considerably above
368
its SSA. As a direct comparison, Wandsworth receives government support of only£1,192 and spends considerably below its SSA.
Lord Jenkins of Hillhead: My Lords, the now somewhat tattered reason for the poll tax was its universality. Can the noble Baroness explain why it is a good thing that no one in Wandsworth should pay anything?
Baroness Blatch: My Lords, under the system that is about to be phased out and the new system that is about to be phased in, the relativities of good, well-run authorities will still be evident.
Baroness Phillips: My Lords, will the Minister inform the House how many schools were closed in Wandsworth and Westminster resulting in a loss of jobs? Do the Government agree that that is a way of saving money?
Baroness Blatch: My Lords, I am not aware of any schools being closed in Wandsworth or Westminster. However, that is another question. It is not part of this Question, which relates to the highest and lowest spenders.
Lord Stoddart of Swindon: My Lords, I live in the Tory-controlled county of Berkshire in the borough of Reading. Because of the high charges in Tory-controlled Berkshire, I pay£476, less of course the£140 that the Government have given for electoral purposes. Is the noble Baroness aware that, if Reading were receiving the same level of grant as Wandsworth, Reading would make a rebate instead of a charge to its charge payers and Wandsworth charge payers would pay considerably more? How does she explain that disparity?
Baroness Blatch: My Lords, I have given the details across the Dispatch Box previously. Reading and Berkshire both spend above their SSAs. I believe that the combined figure is£35. When an authority spends under its SSA not only does it benefit because it spends less but it benefits because the grant that it receives, which is consistent with its SSA, becomes a bonus. When an authority spends above its SSA, not only does it not receive any more grant above the SSA but it also has to charge the charge payer more. The gearing effect of spending above is just as important as the gearing effect of spending down.
Lord Stoddart of Swindon: My Lords, before the noble Baroness gets into trouble from her comrades and colleagues in Berkshire, Berkshire is not spending above the SSA.
Baroness Blatch: My Lords, I shall check the figure. However, I recall answering the question specifically about Reading and Berkshire. Compared with Wandsworth, one of the reasons is that they spend above the SSA.
To answer the question of the noble Lord, Lord Jenkins, all authorities receive grant consistent with their SSA whatever the level of spending. Therefore if they spend down, not only do they have the benefit of spending down but also the benefit of surplus grant,

369
which benefits the charge payer. If they spend above, they have to levy disproportionately on the charge payer.
Lord Harris of Greenwich: My Lords, is the noble Baroness aware that the Government have indicated that it will take them four years to provide 35 more secure places in children's homes to avoid children being remanded into prison service accommodation? Is she aware that 28 of those places have been abolished by the London Borough of Wandsworth? That borough is therefore very nearly responsible for sending a high proportion of children to prison because of its failure to provide adequate accommodation, is it not?
Baroness Blatch: My Lords, the noble Lord cites a very specific detail which I am unable to answer at the Dispatch Box. Clearly I shall consider the matter. I have undertaken a fairly detailed study of the services provided in Wandsworth compared with other authorities which are not so proficient. On most counts Wandsworth comes out on top.
Lord Dean of Beswick: My Lords, since the borough of Lambeth has one of the highest charges, if not the highest, and the borough of Wandsworth, next to it, for some reason has a nil charge, would it not be fair and equitable to amalgamate the two boroughs so that they pay the same in order to achieve the Prime Minister's aim of an equal society?
Baroness Blatch: My Lords, that is far from the Question on the Order Paper. However, the noble Lord might like to put such a question to the people of Lambeth.
Lord Hailsham of Saint Marylebone: My Lords, will my noble friend confirm that, quite apart from other considerations, one of the reasons for the outstanding performance of Wandsworth—an area in which as a former ratepayer and as a resident I must declare an interest—is that it has an internal structure of command which is far superior to that of Lambeth, or for that matter of any other Labour-controlled borough in London?
Baroness Blatch: My Lords, that is absolutely true. The Government have determined that internal management needs consideration. However, Lambeth is probably the worst example of internal management in the whole of local government.
Baroness Hollis of Heigham: My Lords, does the Minister accept that if we compare this year's Budget figures with those of last year the average Tory district council has increased its expenditure by 13.9 per cent., whereas the average for Labour districts is 12 per cent.? Does she also accept that since 1979, had RSG remained at the same level, the average bill would now be£101 per head, unlike the present average poll tax? In other words, the figure is due almost entirely to the Government switching the burden from central taxation to local taxes. Does the Minister also accept that under Labour's Fair Rates the average household would now be benefiting by at least£67 per year?
Baroness Blatch: My Lords, in Labour'sFair Rates the figure is wrong. With an annual rolling revaluation programme involving four factors—capital values, rental values, rebuilding costs and maintenance costs—Fair Rates would be unbelievably bureaucratic and expensive. It is obvious that, with no capping and high-spending local authorities, ratepayers would be much worse off. Conservative authorities in shire districts and counties and in any class of authority are charging their charge payers less. I have the specific figures but I do not have time to give them. In aggregate all Conservative authorities are spending 4 per cent. below SSA and all Labour authorities 3 per cent. above SSA.

British Shipping: Government Support
3.10 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
Whether they are satisfied that their policies have strengthened the capacity of the British merchant fleet to compete internationally.
Lord Cavendish of Furness: My Lords, in recent years the Government have introduced a range of measures to support and improve British shipping. On the one hand, we regulate the industry to ensure that it operates to the highest standards of safety, efficiency and working conditions; on the other hand, we take every opportunity to encourage the removal of restrictions to healthy competition both at home and abroad. It is a continuing process carried out in close consultation with interested parties.
Lord Jay: My Lords, despite that, does the Minister realise that the British merchant fleet has declined disturbingly close to total extinction? That situation is serious nationally from both a defence and economic point of view, and the industry requires more substantial fiscal support than the Government have yet provided.
Lord Cavendish of Furness: My Lords, I accept that the shipping industry has declined. The mid-1980s was a period of deep depression for most of the world's shipping industry. The previous Budget introduced changes that were designed to help the shipping industry and other recent measures have been taken. The joint working party was established by the Government and the British shipping industry in May 1990 and was chaired by the then Secretary of State and Sir Jeffrey Sterling (as he then was). He is now a Member of your Lordships' House. Its report concluded that:
"British shipping is lean and fit. It is a vital national asset. The industry is well placed to take advantage of growth and world trade in the right conditions".
Baroness Fisher of Rednal: My Lords, did the Minister hear the noble Lord, Lord Sterling, speak on television? The noble Lord, Lord Sterling, said that he was amazed to find that the fleet was down to only 64 ships, and that the majority of our exports are being carried in ships sailing under flags of convenience.
Lord Cavendish of Furness: My Lords, according to my figures, we are not down to 64 ships. We come halfway in the league table of trading nations.
Lord Clinton-Davis: My Lords, the Minister is right in saying that the British fleet is lean. However, it is far from fit. Is it not a fact that during the past decade the fleet has declined more rapidly than any of its major competitors? Is it not also a fact that, apart from one issue, the Government have totally ignored the recommendations contained in the joint working party's report? Is that not aiding and abetting the further decline of this precious industry?
Lord Cavendish of Furness: My Lords, I am sorry that the noble Lord takes issue with that distinguished working group. Every recommendation is being pursued.
Lord Clinton-Davis: My Lords, will the Minister indicate in what way they are being pursued? Did the Budget not present a perfectly adequate opportunity to act? The General Council of British Shipping made earnest entreaties to the Government to take urgent action. However, is it not a fact that, apart from accepting one recommendation, the Government in their Budget did nothing to honour the demands being made in the joint working party's report?
Lord Cavendish of Furness: My Lords, the Government believe that subsidies distort economic decisions and are not the way to encourage a healthy and competitive industry. We are working hard in Europe to encourage the reduction of subsidies elsewhere. Other recommendations accepted include the provision of assistance for the costs of Merchant Navy officer training. The scheme was introduced in 1989 under the Merchant Shipping Act 1988 and as a result cadet recruitment has tripled. Assistance was given to the cost of transporting UK crews to vessels in deep sea waters. There has been the simplification of technical registration requirements and surveyor guidelines. Other changes have been made which were part of the recommendations.
Lord Stoddart of Swindon: My Lords, is it correct that if once again the Falkland Islands were invaded by a Fascist dictator we could not mount a proper and successful rescue operation due to the huge reduction in the number of ships?
Lord Cavendish of Furness: My Lords, I am pleased to be able to reassure the noble Lord that in such an unhappy event we should be able to mount that operation.
Baroness Strange: My Lords, does the Minister agree that since the days of King Alfred we have been a maritime nation, that we are proud of our Merchant Navy and we hope that the Government will do all they can to support it?
Lord Cavendish of Furness: My Lords, I accept my noble friend's remarks. We continue to attach great importance to an important national asset.
Lord Molloy: My Lords, the Question asked by my noble friend Lady Fisher referred to the fact that some
372
industrialists are taking advantage of flags of convenience. That method undermines the British commercial fleet. Is anything being done about that activity? Is it necessary? If not, why are some industrialists showing such lack of faith in a British industry?
Lord Cavendish of Furness: My Lords, I agree that moves towards flags of convenience are regrettable and reduce standards. Indications show that as some of those flags of convenience become more responsible, they are declining in numbers.
Lord Jay: My Lords, is it not clear that great anxiety is felt about this issue by many Members of your Lordships' House? Will the Minister represent those anxieties to his senior colleagues?
Lord Cavendish of Furness: My Lords, I well understand the anxiety and I shall be pleased to do as the noble Lord asks.
Lord Greenway: My Lords, despite his recent reply, does the Minister agree that among the serious problems besetting our Merchant Navy is the increasingly important question of manning? Bearing in mind the recent regrettable decision to flag-out four of our container ships to the Bahamas, and to crew them with Filipinos with only the master and chief engineer being British, will the Government consider following in the footsteps of other countries such as Norway and Japan in setting up a training establishment in the Philippines or elsewhere in order to ensure that those crews are trained to the requisite standards?
Lord Cavendish of Furness: My Lords, I understand that steps have been taken to try to sort out the problem. I shall draw that interesting suggestion to the attention of my right honourable friend.

"Inspector Morse" TV Programme
3.18 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether the employment of a baby in the "Inspector Morse" television programme broadcast on Wednesday, 20th March, was within the law; how the child was induced to cry at the appropriate time; and whether the laws relating to the employment of children in entertainment are generally enforced.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, we have contacted the television company responsible for making this series. We are satisfied that it is aware of the legal provisions governing the participation of the child in the programme, and, with the company's assurance, that it complied with the provisions and that the child was in no danger at any time. We understand that the child cried spontaneously during filming. We are not aware of infringements of the law in this area.
Lord Jenkins of Putney: My Lords, is the Minister aware that the Equity films organiser was worried about the incident because he believed that it was, as he put it, going over the top? Is the Minister further aware that there is a wider anxiety because, since the employment of children was legalised, the regulations permitting that are not always enforced? Will the Minister examine that aspect of the matter? There is no use in having regulations in respect of such a sensitive area unless they are carried out.
Baroness Hooper: My Lords, I am aware that there have been anxieties about this film. I understand that the baby who appeared in the programme did not take part in any performance or rehearsal for more than the permitted one hour per day. Apparently, another baby—the equivalent of an understudy—was available to deputise if necessary. Although the baby cried spontaneously during the take, it appears that the scene had to be shot several times because the baby persisted in smiling contentedly. Her mother was present on the set during filming. The effect of the child apparently being held over the top rail of the stairs was contrived and the child was never more than two or three feet above floor level.
Although this may appear amusing, I recognise the seriousness of the noble Lord's anxiety. Numerous provisions are contained in government legislation and local authority byelaws which place detailed restrictions on the hours and conditions of children's employment. The guiding principle behind those provisions is that children may be employed only to the extent that their health, education and general welfare do not suffer. As I said in my original reply, we are not aware of infringements of the law in this area.
Baroness Phillips: My Lords, is the Minister aware that many of us believe that the laughter occasioned by this Question is typical of unthinking people, particularly the Liberal Democrats? If this Question referred to animals, it would be received in reverential silence. However, far too many children are used in the soap operas. As a mother and as a female, I have been anxious about that. Children do not cry naturally unless induced to do so.
Baroness Hooper: My Lords, although I am not a parent, I understand that children sometimes cry without that being induced. However, I recognise the serious aspect of the Question. I can reassure the noble Baroness that an officer of the local education authority may at any time enter any place where a performance is being given, whether licensed or otherwise, and can make inquiries about any child taking part in a performance. That power is also available to the police. A parent or guardian who allows a child to take part in a performance in contravention of the legislation is committing an offence.
Lord Ennals: My Lords, there has been happy laughter on these Benches as well as on the Liberal Democrat Benches. However, does the Minister agree that this is a serious issue? Will she say rather more about the monitoring which applies? Is she satisfied that this issue would have been raised had my noble
374
friend not asked this Question? Is she satisfied about the general system of monitoring, which should ensure that children do not suffer either physically or mentally from this situation?
Baroness Hooper: My Lords, under the wide body of provisions which govern these arrangements, responsibility is placed on the appropriate authorities. Infringements of the many provisions to safeguard children in part-time jobs should be brought to the attention of the local education authority or, in the case of industrial and agricultural employment, to the Health and Safety Executive.
As I said, we are not aware of any infringements and there have been no prosecutions for infringements of the licensing provisions; I have in mind, for example, Section 40(1) of the Children and Young Persons Act 1963.
Lord Jenkins of Putney: My Lords, is the noble Baroness aware that the fact that the Government are not aware of any infringements may well be because there are insufficient inspectors employed to enforce the regulations? Will she investigate the possibility that the existing regulations are not being adequately policed or enforced?
Baroness Hooper: My Lords, as a result of the noble Lord's Question, we have investigated this case. I shall draw the Question and the anxieties which have been raised to the attention of the Department of Education and Science, which is the responsible department. The Department of Health rarely receives any complaints and indeed my department is not a responsible authority in that connection.
Lord De Freyne: My Lords, will my noble friend help us on this matter? I am told that a brace of babies was used in "Coronation Street". They were happy and gurgling all the time for a number of weeks.
Baroness Hooper: My Lords, I am sure that we should all be very sorry if baby actors and actresses, laughing or crying spontaneously, were not permitted to appear on our screens. However, it is important that safeguards and protections should be in place and fully in force.

Census Forms: Delivery and Collection
3.25 p.m.
Lord Stallard Lord Stallard asked Her Majesty's Government:
How many households did not receive a census form by Sunday, 21st April, for the current census.
Baroness Hooper: My Lords, field managers reported that all households located by enumerators received a census form by census day. However, the operation involved the delivery of some 25 million forms. The census offices therefore made arrangements for local and national contact points to be advertised in public places and the press, in case anyone had not received a form by 21st April. Some 7,000 calls had been received by 23rd April from people who had not received a form. Enumerators have since delivered forms to people who phone in.

375
Census enumerators are doing a vital job for their local arms as well as for the country as a whole. I feel sure that the House will agree that they deserve our thanks and support in completing their task.
Lord Stallard: My Lords, I am grateful for that reply, although I fear that that is not the final position. Does the noble Baroness accept that on a local phone-in programme on a London broadcasting station on Sunday, people were phoning in one after the other complaining that they had not received a census form? An officer from the department responsible for the census was brought on to the programme. He gave out a hotline telephone number for the public to use. That number was found to be out of order for the whole of Sunday morning and most of Sunday afternoon. After that it was totally jammed and useless.
Will the Minister accept that since then I have met a number of people who received census forms but who still have them because nobody has been to collect them? I have been trying since last Wednesday week to obtain a form and I still have not obtained one. Therefore, this may be the tip of the iceberg. What credibility can be attached to the results of the census in view of this botched exercise?
Baroness Hooper: My Lords, I said that 25 million forms were issued. I believe that the 7,000 calls received represents less than a tip of an iceberg. The census help lines received some 116,000 inquiries. Some of those dealt with questions on forms and with people who did not wish to complete the forms. As the noble Lord will know, any person refusing to complete the form is liable to be prosecuted and fined. As regards collection of the completed forms, enumerators made a start on Monday of this week. Across the country they have been given until today in order to complete their collection rounds. In some areas, such as London, where experience shows that it is often difficult to find people at home, the timetable allows enumerators until the end of this weekend and it will continue into next week if necessary. As a last resort, people will be supplied with pre-paid envelopes in which to post their forms.
Lord Ennals: My Lords, I thank the Minister for that detailed reply. Does she agree that it is important for the public to know what should happen if their forms have not been collected? Is she aware that I have no complaint, because mine has been collected and the census officer took me through the form point by point as I am a pensioner and would not be able fully to understand the form? However, as the noble Baroness said, I know that many forms have not yet been collected. Will she make quite certain that wide publicity is given to what should be done by those people whose forms have not been collected? Obviously, the effect of this census is dependent on the highest possible proportion of people replying to it.
Baroness Hooper: My Lords, I am delighted to hear that the noble Lord, Lord Ennals, had a good experience in his case. I reaffirm that the collection process is continuing. If an enumerator is unable to make direct personal contact with a householder, in
376
the last resort he will put a stamped addressed envelope through the door for people to post. People should wait for the enumerator to arrive and, failing that, for the stamped addressed envelope to arrive.
Baroness Fisher of Rednal: My Lords, can the noble Baroness give some advice to the noble Lord, Lord Stallard, who has not received his form? He has not returned it because he did not receive it. Will he be prosecuted?
Baroness Hooper: My Lords, I can do better than that. I can give the noble Lord, Lord Stallard, a census form.

Business
Lord Denham: My Lords, it may be for the convenience of the House to know that, subject to the progress of business, the Report stage of the Child Support Bill will be adjourned at about 7 p.m. for about one hour and that during that adjournment the Industrial Training Levy (Engineering Board) Order 1991 and the Social Security (Overlapping Benefits) Amendment Regulations 1991 will be taken.

Llanelli Borough Council (Dafen Estuary) Bill [H.L.]
3.30 p.m.
Read a third time, and passed, and sent to the Commons.

Business of the House: Debate, 1st May
The Lord Privy Seal(Lord Waddington): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Annan set down for 1st May shall be limited to 5 hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules for the Conduct of Short Debates shall apply to the debate with the substitution of "5 hours" for "2½hours" and "25 minutes" for "20 minutes".—(Lord Waddington.)
On Question, Motion agreed to.

Child Support Bill [H.L.]
3.32 p.m.
The Lord Chancellor: My Lords, I beg to move that the Report be now received.
Moved, That the Report be now received—(The Lord Chancellor.)
Lord Mishcon: My Lords, as this is such an important Bill and the Report stage is an important stage in it, perhaps the noble and learned Lord will permit me to mention that the groupings on this occasion are in a bit of a muddle. I do not blame anybody for that. However, I ask noble Lords to look at the groupings list, which is not always the practice, otherwise there may be a lot of confusion. The numbers go backwards and forwards.
On Question, Motion agreed to.
Report received.
Clause 1 [The duty to maintain]:
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 1:
Page I, line 8, leave out ("an absent") and insert ("a separated").
The noble Lord said: My Lords, in the earlier stages I used a number of unpleasant epithets to describe my opinion of the Bill. I do not propose to repeat them but I may find some additional ones.
The Bill reflects in a number of respects a spirit of hostility towards parents who are described as "absent". It is the "absent" parent—usually the father —who is the target of the Bill. Most of us in our experience of life regard the word "absent" as implying some failure, neglect or culpability for not being where we should be. When I went to Sunday school—and I did go to Sunday school—I received prizes for being never absent and never late. That meant that I was never guilty of failure in my duty of attendance at the school. The word "absent" in many connotations in human relations carries with it that unpleasant imputation. I want it removed from the Bill.
I believe at an earlier stage—I have not been able to verify this—the Minister (possibly the noble and learned Lord the Lord Chancellor) asked whether we could think of a better word. On the Marshalled List, in addition to my proposed substitute for the word "absent", are other alternatives. Whatever description is applied to the person regarded as being in default of maintenance support payments for children, it is unlikely to fit everybody. Even the word "absent" does not fully explain the position of many people affected. "Absent" means not being where they were or where they should be, which is at home.
In many cases an absent parent was never there in the first place. Not all children are born to couples who are living together. Many people will be covered by the Bill who have never lived with the mother and child at all. Whatever else those people may be, they are not "absent". A large number of people will be covered by the Bill who are excluded from the home by order of the divorce court. It may be part of the conditions of the granting of the divorce that a parent —probably a divorced husband
—should vacate the marital home. Therefore he is not absent; he is pushed out.
Whatever one takes as the basis, there may be some gaps in the Bill's universal application. However, one word that everybody understands in this connection is the word "separate". We all know that sometimes married men are separated from their wives and that married couples are separated. We do not regard them as being absent; they are separated. They could be estranged but in some cases we are told that they are on perfectly friendly terms when they bust up and settle their differences. Therefore, although they are estranged in the marital sense, they are not actually estranged.
An alternative mentioned by my noble friend Lord Stallard is "non-resident". That is also an appropriate
378
term to use. If we decide to remove the word "absent" we shall have to substitute another word in many places in the Bill. Amendment No. 1 is merely a symbolic amendment to debate the principle of the matter.
I want to emphasise that, notwithstanding the ethos of the Bill, which I believe to be hostile, many people are comparatively innocent victims of circumstances or of their own failure or weakness. They are not wicked people. The incidence of the break-up of marriages and the problem of maintenance support for children has been spreading of late. It is one of the new features of our social and personal lives. If we cannot alter what is happening, we must attempt as far as possible to adjust to it, with some understanding, care and sympathy.
There is much misery among those who will be caught by the measures in the Bill—anguish, tears, the trauma of separation and the wailing of children. There is the breakdown of marriage on a large scale. It is drawn to the attention of your Lordships' House in the Bill because of many cases of failure of support from parents from whom conventionally and in law support might have to come. It reaches the depths of the problem.
I do not want to use an emotive phrase unnecessarily or unfairly, but it is an anti-working class Bill. It may be said that there is no such thing as the working class. Westminster City Council recently discovered that there is when it proposed to sell some council flats which were built on a lease granted by the Grosvenor Estate many years ago for the erection of dwellings for the working classes. The council thought there were no working classes any more and that as soon as tenants left they could doll the flats up and sell them for£85,000 each. However, an action was taken to prevent the council transgressing one of the covenants upon which the dwellings were erected. The court ruled in favour of the Grosvenor Estate. I am a citizen of Westminster, and housing for the working classes in Westminster is now safe.
There are all kinds of things about the Bill which upset me. It is so deeply emotional and yet, if I may say so without giving offence, it is written in the language of bureaucrats and lawyers. I notice that in the Bill as it now stands there is a very large slab of new material, with references to appeals against determinations made by the bureaucracy and without the flexibility that bureaucracy is often given. There is non-discretionary determination and that kind of thing, which are matters not dealt with in this clause.
I am merely trying to surround my amendment with a relationship to the Bill as a whole. I hope that the Government will respond to this desire to find an alternative to the word "absent". The word "separated" is neutral and implies nothing. It means that the parties are no longer together. "Separated" is a word which is well understood and is without prejudice among those of us who have to refer to our friends and relatives, and probably members of our immediate family, as separated from their husbands or wives, or living separately. We understand the word.

379
We do not say that they are "living absent". I do not say that my son is "absent" now from his wife. I say that he is "separated" from his wife.
There is common sense here. Who has decided that "absent" is the correct word? If the Government intend to stick to it and say, "Here we have nailed our description to the mast and we are going to use all our powers of confirming it in the Bill", then surely we are allowed to alter one word in the Bill on a matter of this kind. I beg to move.
Lord Stoddart of Swindon: My Lords, it may be for the con venience of the House if I speak to my Amendment No. 2 at this stage. Like my noble friend Lord Houghton of Sowerby, I am not happy with the Bill. At Second Reading and Committee stage I made criticisms of it. During the debate on my amendments on this subject at Committee stage, the noble and learned Lord the Lord Chancellor invited suggestions to find a pair of words as a substitute for the word "absent" which would encapsulate the necessary idea without using "absent" or "caring".
My noble friend Lord Houghton of Sowerby has put forward his alternative and I now do likewise. In my view the word "non-resident" more accurately reflects the situation in most cases where one parent is not living permanently with the child. It may be thought that too much fuss is being made over words. But words matter. For example, these days we do not refer to the crippled or insane. We describe such unfortunate people as physically or mentally handicapped. They are softer words. We do so rightly because the words "crippled" and "insane" cause offence n at only to the sufferers and their relations but to the wider community. It is certainly true that those words have been dropped in official vocabulary and largely by the general public.
In the terms of this Bill the word "absent" is certainly offensive to those parents who cannot be with their children and often, as my noble friend mentioned, through no desire or fault of their own. They feel stigmatised by the word "absent" used in this context. One can understand why. Quite recently I bought a new Chambers Thesaurus.It is the most modern thesaurus for the ordinary man that one can buy. I took the trouble to look up the word "absent":
"absent adj.absent-minded, absorbed, abstracted, away, bemused, blank, day-dreaming, distracted, distrait(e), dreamy, elsewhere, empty, faraway, gone, heedless, inattentive, lacking, missing, musing, non-existent, not present, oblivious, out, pre-occupied, truant, unavailable, unaware, unconscious, unheeding, unthinking, vacant, vague, wanting, withdrawn wool-gathering".
Under those circumstances, it is no wonder that fathers or parents who for one reason or another cannot live with their children feel stigmatised by the word "absent". There is no doubt that these people are right in feeling that "absent" is a pejorative word.
There s another aspect of the matter which has been brought to my attention relating to the term "unreasonable behaviour". This has a relevance which I shall come to. As stipulated in the Divorce Reform Act 1969, that ground for divorce was intended to be a successor to the ground of cruelty. However, over the past 20 years the term "unreasonable behaviour"
380
has come to mean that the idiosyncrasies of one spouse or another, no matter how trivial, can result in the courts granting a divorce or legal separation.
Under such circumstances, and particularly since the courts apparently regard any challenge as vexatious, many non-resident parents consider themselves not absent but expelled from the family. Therefore, my amendment more accurately describes the real position. I hope that the Government will be able to accept it.
3.45 p.m.
Baroness Phillips: My Lords, I support my noble friend Lord Stoddart of Swindon. At Committee stage I said that the word "absent" was not a good description because, strictly speaking, somebody serving in the Army is an absent parent. When I worked for Army wives, one of the saddest features was that the family had no sooner been moved to Germany than the husband was moved to Northern Ireland. Therefore, strictly speaking, he was an absent parent in the dictionary meaning of the word. Like my noble friend, as an ex-teacher I always look in the dictionary, where one finds some very good jokes. If one wants to speak at a dinner one looks at a dictionary for a definition.
I do not dislike the word "separated" which is preferred by the noble Lord, Lord Houghton. When I sat as a magistrate "separated" had become an acceptable term for people who were separating prior to divorce. It was a word included in legal jargon. It may have got there by accident. Of the words chosen I think "non-resident" can hardly be questioned because it is a simple and very clear explanation which everyone will understand.
Lord Coleraine: My Lords, the noble Lords, Lord Houghton and Lord Stoddart, have pronounced anathema on the words "absent parent". I join with them in doing so as I did at Committee stage. At that time I suggested that the appropriate word might be "non-custodial". I can see that the noble Lord, Lord Houghton, might find that just another example of the lawyers, bureaucrats and anti-working class people getting to work on the Bill. I also see that possibly it implies that the mother who may have care of the child also has custody of the child, which may not he correct at law. I concede that there are objections to the use of the expression "non-custodial". Of the alternatives that have been put before us this afternoon, I join with the noble Baroness, Lady Phillips, in preferring the amendment of the noble Lord, Lord Stoddart. I hope that it will find favour with my noble and learned friend.
The Lord Chancellor: My Lords, this Bill is not intended to be "anti" anyone or any group. The Bill is intended to provide machinery for the support of children, which machinery is appropriate to the particular circumstances of the child's parents. The distinction which the Bill underlines and emphasises is the distinction between someone who has the day-to-day care of the child and is with the child, at least to some extent, from day to day and the person

381
who is not with the child in that way and whose obligation of maintenance will be discharged by making payments for the support of the child.
We have used the word "absent" to describe that person. We have used it without any suggestion that the absence is wrong, unreasonable, inappropriate, unjustifiable or anything of that kind. There is no such suggestion anywhere in the Bill. The word "absent" is intended to describe, briefly, a state of fact. The Bill does not leave it at the word "absent". There is a definition clause in the Bill for this purpose. Clause 2(2) states:
"The parent of any child is an 'absent parent', in relation to him, if—

(a)that parent is not living in the same household with the child; and

(b)the child has his home with a person who is, in relation to him, a person with care".

Therefore the idea is as I have said.
I do not believe that it can reasonably be construed out of the Bill that it is antipathetic to any particular group of people. All classes and descriptions of people have children and have an obligation to maintain and support their children. If they are with the child in family, then one would expect that obligation to be discharged by the ordinary method of looking after the child. However, if the person is not in family with the child, then the obligation should be discharged by means generally of a money payment. The phrase "absent parent" is used in that context.
The noble Lord, Lord Stoddart of Swindon, treated us to a considerable variety of possible meanings for the word "absent" taken out of his recently acquired and valuable possession. However, not all of those would be regarded as equivalent to "absent" in all circumstances. I do not think "absent" necessarily means dreamy. Even if one of your Lordships was not in the House today but was absent, I would not necessarily conclude that that particular noble Lord was dreamy, or even dreaming. One has to adapt the meaning and choose the meaning which is appropriate to the context. What the phrase "absent parent" does is to describe a relationship with a child: the parent is absent from the child.
If I may take the alternative of the noble Lord, Lord Houghton, there is no question of us having a closed mind about this. If any of your Lordships, or anyone else, can come forward with a neat and better phrase, we have extremely open minds to receive suggestions. The only qualification is that the phrase must be better than the one we have.
The first suggestion, of the noble Lord, Lord Houghton of Sowerby, is the one that provides for a separated parent. As the noble Lord himself pointed out, separation implies that the people have previously been together and that a separation between them has been effected. As the noble Lord pointed out, that may not be and very often will not be the true state of the facts. This particular parent may never have been living in family with the child. The noble Lord himself emphasised that. That demonstrates quite plainly that the word "separated" is not a suitable equivalent.
I come now to the suggestion of the noble Lord, Lord Stoddart of Swindon, of "non-resident". I said
382
at the outset that the phrase "absent parent" is intended to indicate a relationship or the absence of a particular type of relationship with the child. "Non-resident" does not carry that context, in my view. I commend that view to your Lordships. Everyone is resident in some sense. "Non-resident" is usually related to being non-resident in a particular place. "Non-resident" in a tax regime, for example, normally means non-resident within the ordinary tax jurisdiction of the United Kingdom. "Non-resident" is not an appropriate phrase to use in respect of the relationship between a child and a parent who is not living in family with the child.
We are retaining an open mind about these matters. The phrase "non-custodial" that my noble friend Lord Coleraine suggested last time is a difficult phrase for the reason which he explained today. While we have an open mind, I fear that for the reasons which I have attempted to give, none of the suggestions which have so far been made attracts us as being better than the one we have ourselves made. For those reasons, while leaving open the quest, I hope your Lordships may feel that for the moment we should adhere to what is in the Bill. I invite the noble Lord, Lord Houghton of Sowerby, to consider withdrawing his amendment.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, and only because with his usual generosity he invited suggestions from noble Lords if they had any, it occurred to me while he was speaking—I hope this is helpful—that if we describe the parent as the "financially responsible parent" it carries with it no opprobrium. It has in fact the meaning within the Act of the parent who is financially responsible. I should have thought that that might be of assistance. I merely proffer it for the noble and learned Lord's consideration and for the consideration of my noble friend.
The Lord Chancellor: My Lords, as usual the noble Lord, Lord Mishcon, has made a suggestion which is well worthy of consideration. He will recall that in somewhat similar circumstances he helped us out of a difficulty of expression in relation to the Children Act, which I still gratefully remember. This particular suggestion, if I may offer a comment on it immediately, would imply that this was the only financially responsible parent in respect of that child. The parent with whom the child is living also has a financial responsibility for the child. Therefore the parent who is absent is not unique in being financially responsible. What perhaps is a little unique about him or her is that the responsibility is discharged only, if at all, by the payment of money. That is of course a result by way of the Bill.
I thank the noble Lord for making a constructive suggestion. At the present moment it does not attract me as necessarily being one that on deliberation we would accept. However, I am very grateful for it.
Lord Coleraine: My Lords, with the leave of the House, and before my noble and learned friend sits down, does he not agree that one objection to the use of the phrase "absent parent" is that so often the absent parent is in fact present? That is a state of

383
affairs which we in the law should seek to foster. Therefore there are objections to the use of the expression "absent parent".
The Lord Chancellor: My Lords, I understand that. It is very difficult unless one writes a compendium about the circumstances. One would then have to repeat it throughout the Bill. The phrase we are looking for is one that will be conveniently repeated throughout the Bill without transgressing principles about the length of the Bill which no doubt we shall have in mind all the time. The problem is that the person in question is predominantly absent. I hope he is not absent all the time. Indeed the fewer absent parents there are, all the better as far as I am concerned. I am sure that your Lordships would agree with that. We want to see parents and children together so far as possible. But, as I say, the predominant state of affairs is that the parent is absent. Therefore, that seems to be a reasonable description, although it does not apply at all times.
Lord Houghton of Sowerby: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his explanation. Of course, he approaches the matter in terms which are well understood by lawyers. But, with the greatest respect, I submit that his language will not be understood by ordinary people. We have before us a Bill which applies in the main to a certain section of the community. Those people will understand words which apply to their condition in the context of common place language. In other words, the word they will understand is not "absent", nor is it "absentee"; it is "separated". They understand that word. These terms will be used by officials. An official may say, "You are an absent parent". The person may well say, "I am not the absent parent". Then the official will say, "But you are at least separated". The person concerned will understand that and will say, "Yes, I am of course separated".
There are occasions when we must ensure that the law is worded in the language of the common people so that they can understand it. This issue is an example of that need. Moreover, the issue has been nagging at some of us for so long and it seems to be so symbolic of what we believe to be the underlying purpose of the Bill that it has now almost become a point of principle. We must at least get the "buzz" word—namely, "absent"—replaced by a word which is more commonly understood. I think that we should try to get this bee out of our bonnets. I propose to test the opinion of the House.
On Question, amendment negatived.
4 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 2:
Page 1, line 8, leave out ("an absent") and insert ("a non-resident").
The noble Lord said: My Lords, I have already spoken to this amendment. Nevertheless, I shall move it formally. I believe that the words which I have
384
suggested are relevant; indeed, as the noble and learned Lord pointed out, they have a relevance because Clause 2(2) states that:
"The parent of any child is an 'absent parent', in relation to him, if—
(a) that parent is not living in the same household with the child".
The wording of that subsection seems to support my amendment. In my view, the House should come to some conclusion on the matter. Therefore, I intend to test the opinion of the House. I beg to move.
The Lord Chancellor: My Lords, I have already commented upon this amendment. It is possible that a child could be in a situation of separation to some extent from both parents. However, in my view, the important aspect is the relationship between the parent and the child. The phrase "absent parent" emphasises that fact. Strictly speaking, a person is not a non-resident. Such a person may or may not reside with the child, but the term "non-resident" does not suggest a relationship with the child. I should have thought that "non-resident" would relate much more to a particular place.
Therefore, while I appreciate the noble Lord's suggestion, I believe that the wording we have is better. I do not think that I can elaborate further on the matter. The noble Lord must take the course of action which commends itself to him in this connection.
Lord Houghton of Sowerby: My Lords, I believe that this amendment has the merit of meeting the point made earlier by the noble and learned Lord; namely, that we are dealing with a person who is not charged with the daily care of the child. In a sense, that is quite distinctive. I hope that the House will support the amendment.
4.5 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 10; Not-Contents, 121.

Division No.1

CONTENTS

Bottomley, L.

Northbourne, L.

Cocks of Hartcliffe, L.

Northfield, L.

Coleraine, L.

Phillips, B.

Houghton of Sowerby, L. [Teller.]

Stoddart of Swindon, L. [Teller.]

Mulley, L.

Strabolgi, L.

NOT-CONTENTS

Acton, L.

Brougham and Vaux, L.

Aldington, L.

Butterworth, L.

Alexander of Tunis, E.

Caldecote, V.

Allen of Abbeydale, L.

Campbell of Alloway, L.

Alport, L.

Campbell of Croy, L.

Arran, E.

Carnock, L.

Astor, V.

Cavendish of Furness, L.

Attlee, E.

Clanwilliam, E.

Auckland, L.

Cockfleld, L.

Belhaven and Stenton, L.

Colnbrook, L.

Bellwin, L.

Constantine of Stanmore, L.

Bessborough, E.

Cork and Orrery, E.

Birdwood, L.

Cottesloe, L.

Blatch, B.

Cox, B.

Blyth, L.

Craigavon, V.

Boyd-Carpenter, L.

Dacre of Glanton, L.

Brigstocke, B.

Darcy (de Knayth), B.

385

De Freyne, L.

Mountevans, L.

Denham, L.[Teller.]

Mountgarret, V.

Downshire, M.

Mowbray and Stourton, L.

Ellenborough, L.

Moyne, L.

Elles, B.

Munster, E.

Elliot of Harwood, B.

Murton of Lindisfarne, L.

Erroll of Hale, L.

Nelson, E.

Faithfull, B.

Norrie, L.

Fisher, L.

Nugent of Guildford, L.

Foley, L.

Palmer, L.

Fortescue, E.

Park of Monmouth, B.

Fraser of Carmyllie, L.

Pearson of Rannoch, L.

Gainford, L.

Pender, L.

Geddes, L.

Platt of Writtle, B.

Gridley, L.

Polwarth, L.

Guildford, Bp.

Porritt, L.

Hailsham of Saint Marylebone, L.

Quinton, L.

Rankeillour, L.

Halsbury, E.

Reay, L.

Havers, L.

Sainsbury, L.

Henderson of Brompton, L.

St. John of Fawsley, L.

Henley, L.

Selborne, E.

Hesketh, L.

Sempill, Ly.

Holderness, L.

Shaughnessy, L.

Hood, V.

Skelmersdale, L.

Hooper, B.

Stedman, B.

Hylton-Foster, B.

Strathcarron, L.

Ilchester, E.

Strathclyde, L.

James of Holland Park, B.

Strathmore and Kinghorne, E.

Jeffreys, L.

Swansea, L.

Kimball, L.

Terrington, L.

King of Wartnaby, L.

Teviot, L.

Knollys, V.

Thomas of Gwydir, L.

Lauderdale, E.

Trefgarne, L.

Lloyd-George of Dwyfor, E.

Trumpington, B.

Long, V. [Teller.]

Ullswater, V.

Lyell, L.

Vaux of Harrowden, L.

Mackay of Clashfern, L.

Waddington, L.

Malmesbury, E.

Wade of Chorlton, L.

Manchester, Bp.

Westbury, L.

Merrivale, L.

Wharton, B.

Mersey, V.

Willoughby de Broke, L.

Morris, L.

Wilson of Langside, L.

Mottistone, L.

Winterbottom, L.

Resolved in the negative, and amendment disagreed to according.
4.13 p.m.
[Amendment No. 3 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
Page I, line 13, leave out from ("Act") to end of line 15 and insert ("requires the making of periodical payments, it shall be the duty of the absent parent with respect to whom the assessment was made to make those payments.").
The noble and learned Lord said: My Lords, this is a technical amendment designed to clarify and improve the accuracy of the clause. I am grateful to the noble Lord, Lord Houghton of Sowerby, because it was he who tabled a similar amendment in Committee, and pointed out that in order to conform with the high standards that he was describing for us a little while ago, the Bill required to be a little fuller than it was. I undertook at that time to look again at the clause and to seek the views of Parliamentary Counsel. Counsel has redrafted the clause, and the amendment seeks to reflect that, under the provisions of the Bill, it is possible to have a maintenance assessment made which has a value of zero. In those cases no payment of maintenance will be required. The amendment seeks to make that plain. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 5 and 6 not moved.]
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 7:
Page 1, line 15, at end insert:
("(4) In the case of a child conceived by artificial insemination, the term "parent" includes—

(a)the husband or male partner of the woman who bears the child, where he has given his written consent to artificial insemination; or

(b)where no husband or male partner has given his written consent to artificial insemination, the donor of the sperm; or

(c)in any case where the person granted a licence under section 16 of the Human Fertilisation and Embryology Act 1990 to provide treatment services has refused to name the donor, that person.").

The noble Lord said: My Lords, the amendment seeks to regularise the position in relation to the so-called virgin births, and to provide equality of treatment for fathers. The Bill is based upon the premise that the prime responsibility for maintaining children lies with the parents and not the state. Hence, the Bill creates a separate and powerful agency to collect maintenance payments, mainly from fathers.
Since the publication of the Bill, it has come to light that certain clinics are administering AID to single women who have no male partner and intend not to have one. As a result, there will be only one parent with financial responsibility. However, there is a father involved—the donor of the sperm—but because he wishes merely to perpetuate his genes, without any human relationship with the mother of his child and without any responsibility for the child's upbringing, he is to escape all financial responsibility for the child's nurture and care.
In contrast, the father who has had sexual contact with the mother, perhaps on one occasion only or where there has been a failure of contraception, is to be pursued with the utmost vigour for the maintenance of his child. If he refuses to accept financial responsibility, he risks going to gaol. Surely that cannot be right. A father is a father irrespective of the method used to fertilise a woman's ovum, and there is no case for different treatment. The Government seem content to countenance different treatment. They appear to be supporting the view that when men donate sperm they are not fathers and they escape all responsibility, including financial responsibility.
The noble Lord, Lord Henley, was good enough to write to me on the subject, and I thank him for that. He confirmed that a man who donates sperm for treatment purposes does so confidentially, and that his identity is to be kept secret. He makes the point that Section 33 of the Human Fertilisation and Embryology Act 1990 makes it an offence to disclose information about donors. He also implied in his letter that so-called virgin births would be rare, and that in any event the mother would be liable for the child's maintenance. I hope that he agrees that that is a fair summary of what he said. He also told me that the new draft code of practice will advise treatment centres that in cases where there is no legal father particular attention is to be paid to the prospective mother's ability to meet the child's needs throughout its childhood.
I do not blame the noble Lord for trying to soothe my fears on the subject, but how can we be so certain that cases of so-called virgin births will be rare? How can we be certain of that? His honourable friend, Mrs. Virginia Bottomley, the Minister for Health, confirmed that they would not be banned. She has already confirmed that. Therefore, there will be no legal restraint. In my view, the numbers of partnerless conceptions will become significant—certainly if the British Pregnancy Advisory Service has its way.
Let me quote a couple of paragraphs from a report in the Daily Telegraph of 13th March 1990 under the heading, No Change in Virgin Birth Clinic Policy:
"The British Pregnancy Advisory Service, at the centre of a row for providing artificial insemination for a virgin who did not wish to have intercourse, will not change its policy of allowing single women to receive donor insemination.
A spokesman said: 'We will continue to offer non-discriminatory, non-judgmental counselling and appropriate treatment to all women seeking help with fertility control."'
Clearly the assurance that the noble Lord, Lord Henley, felt able to give me is going to be undermined by the British Pregnancy Advisory Service, because they envisage that there will be virgin birth on demand if that report is correct and is to be treated in the way that BPAS mean. This is not the occasion to go into the ethics and morals of virgin births. But it is the time to consider whether childbirth by unnatural means—and I say that advisedly—might throw a greater burden on the state.
This brings me to my second point. How are we to ensure that the prospective mother will be able to meet the child's needs throughout its childhood? That is a period of 16 years—16 long years. It is as much as most people can do to manage week by week or month by month. A year of financial planning is a lifetime for many people. How then can the mother's financial viability be guaranteed for 16 years? Of course it cannot possibly be. In a good many cases a large proportion of the cost of bringing up the child will fall upon the taxpayer because the father is protected by law from having to meet his responsibility. The state will not be able to tackle the father in this case.
There is another aspect of this matter that the Government seem to have ignored. When they say that the code of practice will advise treatment centres to pay particular attention to the ability of the prospective mother to meet the child's needs throughout its childhood, will there not be an accusation that it is only rich women who can be allowed lo enjoy a partnerless conception? Will there not be an almost irresistible demand that all women, irrespective of means, should be given the facility of a virgin conception? The implications of that for the Treasury and the taxpayer are enormous. The Government had better start to give the matter some serious and deep consideration.
They have to consider whether it is reasonable to expect the taxpayer to pick up the bill for women who decide not to share their children and their financial responsibility for them with a male partner. This is granting a special status and privilege to women and men who indulge in the virgin birth syndrome. My amendment seeks to equalise the position and to
388
ensure that the taxpayer is in the same position whether a child is conceived naturally or through AID.
I realise that this is not an easy subject, particularly since we seem to have conflicting legislation on the subject of child care and financial responsibility. I shall be interested to hear the views of noble Lords and in particular those of the Government at the end of the debate. I beg to move.
Baroness Phillips: My Lords, I should like to support my noble friend, although I would not presume to add anything to his eloquent words. The argument advanced is one that is heard often, that this would be a very unusual and rare case. I recall in the racial discrimination legislation that one of your Lordships asked, in a slightly facetious way, "Would this mean that I could not advertise for a French cook?" Of course everybody laughed and thought it was funny. In fact, this was how this law worked out. Some unfortunate person said that they wanted a Scottish servant, and they were told that they had contravened this law.
This seems to me to be practically the same. Maybe it will be rare; but if the law is open for it to be deliberately flouted—and, as the noble Lord said, there is contradictory evidence in the matter—then it is at this moment that we should consider it in this Bill. I think your Lordships know my opinion of the embryology Bill. When we started that, we started all sorts of problems. This is only the first one. On the ethics and the morals of it, I have nothing to say at all that is different; but if it is going to mean, as the noble Lord explained, that there will be even a few cases, then it is necessary at this point in the Bill to put that matter right.
The Lord Chancellor: My Lords, this is a difficult matter. The noble Lord, Lord Stoddart of Swindon, and the noble Baroness, Lady Phillips, have spoken of it in an appropriate way, if I may say so. The sentiment behind the amendment is to ensure that there is always somebody liable to support a child who has been born as a result of artificial conception, and that there will be two people, two parents, liable in every case.
One has to go back to the Human Fertilisation and Embryology Act of last year and its effects on this Bill, because the issue that is at the heart of this amendment was an issue that your Lordships had to face in the Bill that preceded that Act. I shall have to deal in a little detail on how that matter was resolved. My noble friend Lord Henley, in the letter to which the noble Lord, Lord Stoddart of Swindon, referred, has explained this; but because it has been raised here, I ought to try to do it as best I can for the benefit—I hope it is for the benefit—of the House as a whole.
These were matters on which there was quite a wide difference of opinion at various stages. Your Lordships may remember that I tried to find an amendment that commended itself generally to the House in this area, and eventually an amendment was incorporated in the Bill that passed through this House.

389
If this amendment were accepted, it would have the effect that in cases of artificial insemination the husband or male partner of the mother would be liable to maintain the child if—but only if—he had given written consent to the artificial insemination. Where no husband or male partner had given such consent, the donor of the sperm would be liable, and where a person licensed under the Human Fertilisation and Embryology Act 1990 to carry out infertility treatment refused to name the donor, that person would be liable. If the doctor who carried out the treatment refused to name the donor, he would be liable under paragraph (c) of the amendment.
The Human Fertilisation and Embryology Act 1990 sets out the legal status of children conceived by artificial means and their parents. People treated as parents by that Act are so treated for all purposes in law. It follows therefore that the provisions of this Bill will apply to such people exactly as they do to natural parents.
The noble Baroness, Lady Phillips, expressed her views on the 1990 Act. I perfectly understand her views. However without that Act there would be no control in this area at all. The Act introduced stringent controls, although I realise there were differences of opinion concerning the controls. Under the 1990 Act, the husband of a married woman will be treated as the father of the child unless he shows that he did not consent to the treatment. The noble Lord's amendment is slightly restrictive from that point of view. Where an unmarried woman presents for treatment together with a male partner, that man will be treated as the father. There is no requirement that consent be in writing, and by adding such a condition the noble Lord's amendment would make it easier for the male partner receiving treatment which resulted in a child to avoid liability in such cases, even though in law he is the father. The noble Lord's amendment goes against the aim that he mentioned in that regard.
Another feature of the 1990 Act is that it expressly protects from becoming fathers those who make donations in accordance with the statutory scheme. It would be wrong for somebody who had in a public spirited act donated sperm for the treatment of others, on the understanding that he would not have any parental status or liability, to be forced to maintain a child born as a result. That would be the effect of paragraph (b) of the noble Lord's amendment and, in view of the provisions of the 1990 Act, I must urge your Lordships to resist it.
I should perhaps add that the protection of donors against becoming fathers does not apply to donations made outside the scheme established by the Human Fertilisation and Embryology Act, so that, for example, a man who donated sperm for the artificial insemination of an unmarried woman which was carried out at home and not under the regulations of the Act might very well be liable to support a child born as a result.
Under the 1990 Act, a man who donates sperm does so confidentially and his identity is not disclosed. The Act makes it an offence for any member or employee of the authority to disclose information
390
about the donor. That in itself is, in my view, sufficient reason to resist paragraph (c) of the noble Lord's amendment—the paragraph that makes a doctor liable—quite apart from the manifest injustice which would be caused by making the doctor who treated the woman liable for the maintenance of the child.
The 1990 Act deals not only with artificial insemination, but also with egg and embryo donation. Dealing first with the position where the mother is a married woman, there is a presumption in the common law of England and Wales that a child born to a married couple is a child of that marriage. If for some reason that presumption is rebutted, for example by showing that the husband is not the child's genetic father, as would be the case if the child was born as a result of donation, then Section 28 of the 1990 Act provides that the mother's husband will still be treated as the father unless he can show that he did not consent to the mother undergoing treatment. In the case of a mother who is single but presents for treatment together with a man, that man will, in law, be the father.
Nothing in the 1990 Act prevents an unmarried woman without a partner from receiving treatment to enable her to carry a child. Such a woman's child would be legally fatherless, and only the mother would be liable for his or her maintenance. That is the essential point to which the noble Lord's amendment is directed. As my noble friend Lord Henley wrote in his letter to the noble Lord, Lord Stoddart, we expect such cases to be few in number. As your Lordships may remember, proposals to restrict treatment to married women were debated in this House and in another place, and were rejected. However, the Act makes it a condition of all treatment licences that a woman should not be treated unless account has been taken of the welfare of the child, including the child's need for a father—that is part of the statutory framework of the Act—and the draft code of practice, which the Human Fertilisation and Embryology Authority has recently published for consultation, advises that treatment centres should pay particular attention to the prospective mother's ability to meet the child's needs throughout his or her childhood.
As the noble Lord, Lord Stoddart of Swindon, has said, it is quite a tall order to be satisfied about a woman's ability to meet the child's needs throughout his or her childhood. That fact in itself will make it highly unlikely that there will be many cases of the kind that concern the noble Lord, Lord Stoddart, as the theory is that treatment will only be given if the child's welfare, including his maintenance needs, is reasonably secure.
This is a difficult area. However, I believe that the answer to the question posed by the amendment is to be found in the terms in which this House and another place agreed to settle the embryology arrangements. To attempt to undo these arrangements from the point of view of maintenance or support would not be appropriate. I hope that, in the light of that explanation, the noble Lord will feel able to withdraw his amendment.
4.30 p.m.
Baroness Elles: My Lords, before my noble and learned friend sits down, I hope he will consider an amendment along the lines that those organisations which counsel single women who wish to give birth in the way we have been discussing should be responsible in law for the maintenance of the child. I read an excerpt from a report issued by the British Pregnancy Advisory Service. I am not referring to the document that the noble Lord, Lord Stoddart, mentioned. The report I read stated that in a recent case of treatment the agency had taken fully into account the welfare of the child. How is it possible, before a child is born to a young, single woman, for an agency to take into account faithfully and honestly the moral and financial situation of the child? I know that the noble Barones3, Lady Phillips, and I took issue with my noble and learned friend on the point of naming a father in such a situation. I believe an agency which does not operate within the terms of the human fertilisat on Act should be made liable for the child, as such agencies give advice to young women who may be unaware of the real facts and difficulties of life. Someone must take the responsibility for giving this advice and allowing such women to undertake this form of birth.
I should be grateful if my noble and learned friend would give consideration to inserting a provision in the Bill which takes account of the principle of the amendment of the noble Lord, Lord Stoddart. As my noble and learned friend has said, that amendment is defective in its drafting. However, the principle is one that we should consider very closely and we should insert a provision into the Bill which takes that principle into account.
The Lord Chancellor: My Lords, the settlement—I hope I may refer to it in such a way—that was ultimately reached in the Human Fertilisation and Embryology Act was the subject of a Division in this House. This House voted on whether there should be an exclus on in this kind of case. It was a free vote and I, on behalf of the Government, took a neutral stance.
The Government took a view on whether there should be a compulsion to name the father, as such a step had consequences in terms of maintenance. As I said earlier, if artificial insemination is carried out outside the terms of the embryology Act, the protection of the Act will not apply. Accordingly, the donor may well become liable. The organisations which offer treatment within the terms of the Act will be obliged to observe the system set up under the Act. They will need to observe the factors which are mentioned in the statute which take account of the welfare or the child, including the child's need for a father. That is the obligation which this House and the other place have placed upon the people providing the treatment. Therefore, in those circumstances the absence of a father will be a very important issue to be examined and advised upon before the treatment goes ahead.
Lord Stoddart of Swindon: My Lords, I thank my noble friend Lady Phillips and the noble Baroness,
392
Lady Elles, for their comments on the amendment, which I consider extremely helpful. I also thank the noble and learned Lord the Lord Chancellor for the manner in which he dealt with the amendment.
This is an important matter. There is no question about that. It is my belief that we shall have to give it a great deal more thought because, unfortunately, the Human Fertilisation and Embryology Act was discussed in isolation from and before this Bill. Had we discussed the two in tandem we might as a House have been able to handle the matter in a manner which would have been satisfactory and acceptable to us all. However, because they were handled at different times some thought needs to be given to the matter.
I appreciate fully that the noble and learned Lord said that the welfare of the children is to come first and that the need for a father will be taken into account in that regard. I understand that that will form part of the code of practice. However, my understanding is that it will not be obligatory under the code of practice for the clinic or agency to refuse AID to a virgin on those grounds. It will still be able to do so. The British Pregnancy Advisory Service has made clear that it certainly will do so. It envisages virgin birth being available on demand. Therefore I feel that we need to give a great deal of attention to the matter.
Clearly it would be absurd for me to press the amendment this afternoon. I tabled it on the basis that I still believe that we need a deep and wide discussion of the matter and that we need to give it a great deal of thought. This debate will have assisted in that process. I know that the noble and learned Lord the Lord Chancellor will take the matter very seriously and give it his own consideration. I hope that the Government will also consider the matter in the light of what has been said and in the light of what has happened since the passing of the Human Fertilisation and Embryology Act because the matter needs attention. I hope that my amendment will have assisted in that regard. Having said that, I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
4.45 p.m.
Clause 2 [Meaning of certain terms in this Act]:
[Amendments Nos. 8 and 9 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 10:
Page 2, line 4, leave out from ("child") to ("and") in line 5.
The noble and learned Lord said: My Lords, this is one of a series of amendments which I ventured to put down with a view to streamlining the Bill and reducing its verbosity. The Bill is unfortunately no exception to the prolixity that animates all modern statutes. That prolixity was remarked on by the Renton Committee on preparation of legislation which made various recommendations whereby that prolixity could be curbed and curtailed. Nevertheless, in the year when the Renton Committee reported, in 1975, there were three volumes of the statute book. Ten years later, in 1985, the number had swollen to five volumes although with fewer statutes in them. In other words, the prolixity had vastly increased rather than being diminished. Since then the format of the statute book

393
has been enlarged—very inconveniently: it is now taller. That enabled the number of volumes to be reduced from five to three. The number has now risen again to five. So the tendency goes on.
Nor is it merely the statutes themselves which have expanded. In a debate in your Lordships' House some 16 months ago the noble Lord, Lord Mishcon, drew attention to the concurrent and fantastic growth in the volume of secondary legislation. Therefore, I hope that your Lordships will agree that whatever can be done to curtail that prolixity and streamline the language of this and any other statute will be welcome.
The amendment proposes that the words in brackets in lines 4 and 5 on page 2:
"(whether exclusively or in conjunction with any other person)"
should be omitted because they are totally unnecessary. The provision unarguably means exactly the same whether or not those words are there.
Your Lordships will remember that the subsection is concerned with the definition of a "person with care" and not a parent with care. The ostensible object of the words in brackets was this. It was said that there is a very common situation. When a young wife has her marriage disrupted it is natural for her to return to her parents. It is natural for her mother to help with the children. She may undertake all the day-time work so that the mother of the children can go to work herself. She may, for example, take the children to school or, if they are very small, she may help with all the domestic duties in relation to the children. In other words, the day-to-day care of a child may be shared. The fantastic fear is that unless those words are included in the Bill it might be argued that a person with day-to-day care must be a person with exclusive care.
When a statutory provision falls for interpretation there are certain fundamental rules on which the process of interpretation proceeds. They are known to the draftsman who uses them as a code to signify the intention of Parliament to whoever has to interpret the statute. The first of those fundamental rules, which is called the golden rule, is that one looks at the words of the statute itself. It is a corollary of that rule that you do not read in words that are not there. Perhaps your Lordships will consider the provision with the words in brackets left out. In order to argue that there must be exclusive care, it is necessary to read into that paragraph the word "exclusive" which is not there, and that is quite unacceptable.
There is a second canon of construction, scarcely less fundamental, which goes by the technical name of the mischief rule. It means that, in interpretation, you look to see what the object of the Act is and whether the interpretation sought to be put on the words fits in with that object. That object should appear in the Long Title. Unfortunately, with the modern practice with Long Titles, it does not appear so that one must then look at the statute itself as a whole. There can be no doubt as to what its thrust is; namely, to enable maintenance to be better provided for the kind of child in question. You do not better provide for such a child by reading "exclusive" into paragraph (b). On the
394
contrary, you eliminate from the benefits of the Bill a great number—perhaps the greater number—of children in question; for example, those where the mother's mother—the grandmother—helps with the day-to-day care of the child.
In my respectful submission, either of those approaches is conclusive. Those words are not necessary to prevent an argument that day-to-day care means exclusive day-to-day care. However, one can go even further because you find over and over again in the Bill that shared day-to-day care is envisaged. It is envisaged on the very page in question, on the very next page and in many other places. If your Lordships would be good enough to look down to line 16, subsection (5), you will see that it states:
"For the purposes of this Act there may be more than one person with care in relation to the same qualifying child".
If one looks up to the head of the page, one sees in subsection (3) that a "person with care" is one:
"who usually provides day to day care for the child".
In other words, the statute states on this very page that there may be more than one person providing day-to-day care for that child.
When I proposed the amendment in Committee, my noble and learned friend demurred to it and rejected it. When I asked him to consider the matter further—a matter which, I contest, seems to me clear beyond question—he sat stony-faced. I subsequently wrote to him about the matter on 18th March. I have not heard from him since. Your Lordships will remember the famous description of Mephistopheles as the spirit that always says no. It is partly because this is a very plain case of construction and partly to give my noble and learned friend the chance of extricating himself from that doleful category, that I put down the amendment. With confidence, I beg to move.
The Lord Chancellor: My Lords, my desire to avoid appropriately being described as Mephistopheles will have to rest on other bases than the acceptance of this amendment at this juncture. Your Lordships know that I have from time to time said yes in relation to other matters.
The question of what is clear beyond all argument is a difficult question. Our feeling in providing the clause was that it was not clear beyond all doubt, without those words emphasising it, that a person who provided day-to-day care could do so in conjunction with any other person. There is a concept of uniqueness about care in the sense of the parents' care for the child. It is true that in this context we are talking wider than parents, but the original concept comes from the concept of the parents' care for the child. We therefore wanted to make it clear and, as the noble and learned Lord said, it is implicit in all that goes after, that more than one person can have the care. This is the definitions section. We wanted to make it clear that it did not apply only to a person who had the exclusive care of the child.
My noble and learned friend said that if the provision did not include the word "exclusive", it could not mean that. He has much longer experience than I have of listening to argument on statutory

395
construction, but even I have often heard it said that, if Parliament meant it, it would have said it. The argument must be addressed.
I accept my noble and learned friend's question about the matter, and I agree that it is a matter of judgment, but our judgment is that it is wise. As the noble Lord, Lord Houghton of Sowerby, said, the Bill is not directed only to lawyers. We want to use as plain and clear language as possible. We thought it right to emphasise that matter.
I am sorry if my noble and learned friend thought me stony-faced. I would not wish to have that description applied either, but I always hope that I make it clear that I shall consider arguments. Although I have answered anything that he has said today which is new, I shall certainly consider whether it affects what we should do. However, we have not been persuaded so far and, for the reasons that I have given to. your Lordships, it is important to make it plain in the definitions section. That is what the bracketed phrase endeavours to do.
Lord Simon of Glaisdale: My Lords, at least my noble and learned friend has now said that he will consider the matter. I had hoped that he would say that he would give favourable consideration. He did not deal with any of my three arguments; namely, first, that it is inadmissible to read in the word "exclusive" if the words sought to be left out are left out. Indeed, my noble and learned friend reinforced that point. He said that he has heard many times the argument that, if Parliament had meant to say it, it would have written it into the statute. So, if Parliament had meant to say exclusive day-to-day care, it would have written it into the statute. My noble and learned friend rightly reinforced the first of my arguments.
The second is that the mischief rule utterly excludes reading in the word "exclusive". The third is that the provision to which I referred on this very page of the Bill envisages day-to-day care being shared but nevertheless states that the person is a "person with care".
Unfortunately I have the feeling that the draftsman has been given instructions by the sponsoring department—it is not that of my noble and learned friend—at all costs to keep any possibility of application to the courts away from those provisions. It is no doubt to counter in advance the most fantastic and far-fetched arguments that every "t" is crossed and "i" dotted. With great respect, that is not the way to legislate. If we do so, we shall continue the process that I described of the statute book steadily swelling until not only is it unmanageable but incomprehensible.
As my noble and learned friend said that he will give further consideration to the issue, it would be churlish if I were to do other than to ask your Lordships' leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 11:
Page 2, line 6, at end insert:
("(3A) For the purposes of this Act a "child support officer" means a person exercising functions specified in sections (Powers of the Court with respect to maintenance) and 11 below").
The noble Lord said: I speak also to Amendments Nos. 30 and 31. The noble and learned Lord, Lord Simon of Glaisdale, has treated the House to an exposition with regard to the non-use of words that are unnecessary. In addressing the House I intend to adopt that maxim and to be extremely brief. When there is a long debate on a principle, in advancing that principle I do not believe that it helps the House to repeat verbatim what was said at Committee.
At Committee stage I spoke to two principles based largely on matters that I believe will commend themselves to the House. First, it is important that this House and indeed Parliament keep the foundations for an eventual family court sound and secure so that upon that foundation we may one day establish the cherished family court for dealing with matrimonial matters. That is an urgent matter in our age when we consider the unfortunate number of family disputes and broken homes. Secondly, as a result of legislation we do not wish to have a breach of the principle that the doors of our courts are open to every citizen regardless of his means.
Perhaps I may quote what I said at the end of the debate at Committee stage. At col. 337 of the Official Report of 14th March, I stated:
"In our amendments we have said that those who wish to go to the agency will do so, but they have the right to go to court if they wish to do so. They have the rights of all other citizens. That strikes me as being such an important principle that at this hour of the evening"—
it was after half past six—
"I am not prepared to risk that important principle by taking this matter to a Division. It must await a further stage of this Bill for us to do so".
We have reached that stage at this moment.
The amendments that are presented again at this Report stage provide the following. First, we want to build on the family court principle of keeping family matters within one court if possible, a principle that we carried through in the Children Bill with the help, the courage, enthusiasm and ability of the noble and learned Lord the Lord Chancellor. We also wish to preserve the agency idea, because, if noble Lords will forgive the expression, I believe that we are stuck with it. Therefore, the first amendment ensures that employees of the agency will be deemed to be employees of the court. To that extent we shall preserve in some degree the principle of the Family Division. Persons will be looked after by court employees and not by employees of the Department of Social Security.
I do not repeat—I promised that I would not, although others may do so with great effect—the reasons that many noble Lords did not like the idea of this issue being under the sole supervision of the Department of Social Security. Under the provisions of the Bill people will think they have to go to that department and walk into its atmosphere, however pleasant the employees try to make it.
The second principle is to be found in Amendments Nos. 30 and 31. We tried to get round what we believe is a wrong principle in the Bill; namely, that the doors of the court are shut to the poorest of our citizens who are forced to take advantage of the Bill. The Bill provides that they have to go to the agency and to the Department of Social Security. They are barred from going to the court while other citizens still have the right to do so. If I were to say no more, I believe that the two principles that I have enunciated are precious to the House and to the nation. We ought to secure those principles by these amendments.
My concluding words refer to certain observations that the noble and learned Lord made at Committee stage. He thought that calculations for administering benefit were more appropriate to a government department than to our law courts. I am sure that he would be the first to say—even though magistrates' courts do not come under his supervision but under that of the Home Office—that quite a few magistrates' courts already work with computers and do not have difficulty in that connection.
We have been told that it will cost£30 million to set up the agency. I wonder whether we are being presented with an opportunity to do something that I know the noble and learned Lord wishes to do. Our county courts, for example, are being given important administrative work under the Children Act. They are being called upon to carry out increasingly more work as a result of their increased jurisdiction. It would be a wonderful opportunity if we could spend anything like£30 million to obtain the kind of employees in our courts who can deal with the large amount of responsible work that the courts have been given.
The courts must continue to deal with many aspects of family dispute. I believe that we are being provided with the wonderful opportunity of spending some of that money to obtain proper employees for the courts to carry out those responsibilities well. Perhaps in doing so we shall bring nearer the advent of the family court which is so much desired by so many of us who have at heart the keeping together of families, caring for children and getting rid of some of the worst aspects of the divorce rate which we deplore. I beg to move.
5.15 p.m.
Lord McGregor of Durris: My Lords, my comments are no more than a footnote to the powerful case made by the noble Lord, Lord Mishcon, although they may be somewhat long. On Second Reading the noble and learned Lord the Lord Chancellor was asked by the noble and learned Lord, Lord Simon of Glaisdale, whether the agency could be married to a family court. He said:
"I do not preclude the possibility at some time in the future of wishing to alter the responsibility for the agency".—[Official Report, 25/2/91; col. 834.]
I fear that, as structured, the agency will make impossible its attachment to a family court, its development into a family court or its association with a family court. I hold that view for the reasons set out clearly and presciently by the Finer Committee on One-Parent Families some 15 years ago.
398
One of that committee's fundamental reasons for recommending a family court was to bring the private law of family maintenance into a new and effective relationship with the public law of social security. That is precisely one of the aims of the agency. However, the committee saw that task in the setting not merely of dealing with maintenance. It considered that maintenance could not be separated from a whole range of other welfare functions which a family court ought to discharge.
The committee paid great attention to the officers of the court and how the functions could be provided. It began by stating that any attempt in a family court to expand and systematise the welfare function carried risks as well as potential advantages. It saw risks to the judicial nature of the work which family courts should carry out. The committee stated:
"The court must remain, and must be seen to remain, impartial. This is of particular importance now that…governmental agencies of various kinds have powers and duties imposed on them which bring them into the proceedings, either as interested parties or as advisers".
The committee recommended that professional staff serving the court, including any who were responsible for assisting the court to reach sound conclusions on welfare issues, must be answerable to the court for what they did and how they did it. It stated that the aim must be to make adjudication and welfare march hand in hand. It believed that in that way a highly beneficial synthesis between law and social welfare could be established.
The one thing that none of the clients—if that is the right description—of the new agency will see it as being is impartial. It will be seen as being part and parcel of the social security authorities. Therefore one must ask: why remove from the court these developing functions and turn them into an administrative process?
Noble Lords may recollect that some 20 years ago, under pressure from the Treasury, which disliked the high proportion of expenditure on civil legal aid which was absorbed by divorce, the Lord Chancellor's Department promoted a system of do-it-yourself postal divorce. In practice it took from the courts and put into the administrative area a whole series of functions. That may have been a sensible development and it saved a good deal of money. However, it established a principle which if pushed to lengths could be exceedingly undesirable. The agency created under the Bill furthers that process by handing over to the administrators the determination of the maintenance of children in respect of a large category of people.
Given the irrationality of separating the maintenance of children from the maintenance of their mothers, that cannot be a stable situation. Once established, large numbers of people will be pointing out that the two aspects should go together. I can make sense of the notion of the agency, which I dislike intensely, if it is the Government's purpose to move larger areas of family law from the courts to the administration. I imagine that the next stage will see the moving of the whole area of maintenance not only of children but of mothers. I dread that prospect. However, one can make sense of the Bill in that way.

399
On Second Reading and in Committee some of the legal implications of the Bill were mentioned which flow from the discrimination, referred to by the noble Lord, Lord Mishcon, which will exist between those on income support and those who may still go to the courts if they so wish. Today's Independent carries a letter from a leading group of academic family lawyers under the chairmanship of Mr. Eekelaar. That was a relatively short letter which I shall attempt to summarise. It deplores the fact that under the Bill parents will not have the option to go to the courts if they on income support but will be required—indeed, compelled—to use the agency.
Those academic lawyers point to a whole series of practical consequences which will follow from that. Those include the fact that parties in disagreement over a divorce settlement will need to have child support liability and other aspects of the settlement relating to a whole range of issues from property to children's residence determined by separate institutions using different procedures and at different times, thus adding to costs of delay.
Child support will become non-negotiable. Financial settlement, even if approved by the court as dictated by the formula, will not prevent the agency subsequently making a full child support order. That will inhibit people from reaching sensible private agreements.
This is not the place in which to go into any details in this area. I merely say that one purpose of the three amendments which we are considering is to remove that sort of practical difficulty by retaining the option for patents to go either to the agency or to the courts. In the short term, there are good practical reasons for that. In the long term, it seems to me that if we are to hope for a family court we must now preserve the jurisdiction of the courts in that area.
Baroness Faithfull: My Lords, I spoke at great length both on Second Reading and in Committee on this matter. I shall not repeat the arguments because my noble and learned friend the Lord Chancellor well knows what they are.
I support both the noble Lord, Lord Mishcon, and the noble Lord, Lord McGregor, in all that they have said. I wish to make two points. First, to have the agency based exclusively on social security is counter to the Local Authority Social Services Act 1970 which laid down the rule and the precept that there should be one door on which to knock. If people with many problems have to go to several offices, life becomes very difficult. If a parent who is looking after several children finds it necessary to go to a social security office and then on to a court which might be miles away, dragging the children along, that can cause real difficulties.
I declare an interest because I am chairman of the Family Courts Consortium. I support very strongly the movement which we seek in this country towards family courts. All the other points which I wished to make have been made by the noble Lords, Lord Mishcon and Lord McGregor.
Lord Coleraine: My Lords, from these Benches I support what the noble Lord, Lord Mishcon, said. We
400
recently heard the noble and learned Lord, Lord Simon of Glaisdale, suggesting that the departmental brief on this Bill was to make sure that the courts had nothing to do with the support of children. Clause 7 is certainly an example of that tendency, if tendency there is. I deplore any move which postpones the arrival of unified family courts. To my mind this clause seems to do that.
I did not speak on these amendments in Committee but I recall that my noble and learned friend the Lord Chancellor drew largely on a letter received from the chairwoman of the National Council for One Parent Families. Having read what she said, he said he could distinguish very clearly between the interests of the Law Society and the interests of a practising solicitor who has devoted her attention to the interests of one parent families. The chairwoman in question was a practising solicitor in that sphere. I am a practising solicitor but I do not practise in that sphere.
However, the lady said:
"I have been forced to the conclusion that the whole issue of child maintenance must be removed from the courts for both assessment and collection purposes. The Courts have self-evidently failed to ensure that reasonable levels of child maintenance are paid by absent parents on a regular basis".
If the courts have the jurisdiction, of course, they will
be able to apply the formula which the Bill provides so that levels of maintenance will be the same as those provided by the child support agency. From reading the briefings of the organisations like the National Council for One Parent Families it seems they have read the Government's proposal papers which promise very large sums to mothers whose husbands are absent. In this House we have not looked at those figures but I should be surprised if they prove to be practical to operate.
It is quite clear that the courts could just as well be able to operate the formula as would the child support agency. We should support this amendment as preserving a move towards family courts which we all wish to see come about.
Lord Simon of Glaisdale: My Lords, I am very glad that the noble Lord, Lord Mishcon, has returned again to the question of family courts and maintained once more what seems to me a fundamental principle; that is, that the doors of the court should not be closed to any citizen.
In Committee the noble Lord, Lord Mishcon, put forward—and he has adverted to it again today—an entirely reasonable proposal; namely, that the agency and the courts should have a concurrent jurisdiction. That is born out by the point made by the noble Lord, Lord McGregor, supported by the noble Baroness, Lady Faithfull; namely, that it is not possible to separate child maintenance from spousal maintenance. They must be considered at the same time. The noble Baroness pointed out the practical difficulties experienced by a mother claiming maintenance who may have to go miles to the local ministry office and then go elsewhere for her maintenance.
In a letter I wrote on 27th March to my noble and learned friend I explained how the provision would work. I took what he had said was a typical case in the White Paper of a young husband, a young father, earning£160 per week. By the application of the

401
formula he is liable to pay£46 for the maintenance of his two young children. That leaves him with£114. I put to my noble and learned friend a circumstance that is unhappily all too frequent nowadays; namely, a case of wife battering. The wife leaves because she has been ill-treated by the husband. She has to go perforce to some sheltered place and probably goes on to her mother. She claims maintenance for herself. I should think that any magistrates' court—and it is the magistrates' court which must deal with the matter—would say, "Why should a woman treated in that way be relegated to a lower standard of living than that of her brutal husband? Why should not he share his residual income of£114 with his ill-treated wife?" If that is done it brings the husband's income to below the level of exemption that is fixed by the formula and makes a complete nonsense of all the social arguments, such as they are, which lie behind the formula.
I shall not repeat what I said in Committee. I strongly support the concept of a family court. I am very glad that the noble Lord, Lord Mishcon, brought the matter up again. I support as strongly as I can the very reasonable proposal that there should be concurrent jurisdiction of the agency and the courts of law, which would be particularly valuable were both spousal and child maintenance claimed by the same mother.
5.30 p.m.
Lord Henderson of Brompton: My Lords, I was unfortunately absent—I believe that is the preferred word in the context of this Bill—during the Committee stage. However, the noble and learned Lord the Lord Chancellor will remember from Second Reading that I dislike the Bill. Quite frankly, I find it repulsive.
I support these amendments as an essential amelioration of the Bill, which, as the noble Lord, Lord Mishcon, said, we are stuck with—or words to that effect—and for all the reasons so eloquently stated today by all those who have so far taken part in the debate. I find the Bill repulsive particularly because, as I see it, parents who sign a document provided to them by the agent, who is called the child support officer, thereby by their own hand disapply and forfeit their rights in the courts. They do that by what seems to me to be in effect force majeure;in this case a mixture of a bribe and a threat.
The Lord Chancellor: My Lords, I demonstrated in connection with the Children Act that I believe in moving towards a uniform jurisdiction which will provide an appropriate system of family justice in this country. The noble Lord, Lord Mishcon, in speaking to these amendments, was kind enough to say something along those lines.
I would not be proposing this Bill to the House if I thought that it was not consistent with that approach. The reason I say that is this. In my view the variety of agencies, including a great number of courts, that have had to address the problem of child
402
maintenance over the years found it extremely difficult to reach any consistency in their awards. No noble Lord with experience in these matters can doubt that.
Lord Simon of Glaisdale: My Lords, perhaps the noble and learned Lord would allow me to intervene. Does he not agree that the inconsistency may be due to the infinite variety of circumstances that arise in those cases?
The Lord Chancellor: No, my Lords. I do not agree with that at all. If noble Lords examine the circumstances referred to in the papers that preceded the Bill it will be found that that is not an adequate explanation. It is one that is normally given for inconsistencies, but the standard of inconsistency goes far beyond what could reasonably be explained by reference to the circumstances.
The circumstances are indeed varied, which is the reason that any formula assessment will be complicated; it must deal with a great variety of circumstances. We believe—the amendments do not challenge this—that a formula assessment is the only way to reach over the large number of cases involved—something of the order of 2 million to 3 million—a reasonable degree of consistency.
That kind of application of a complicated formula to a set of facts is typically something best done by an administrative machinery. There is no judicial requirement; there is no requirement, generally speaking, for deciding disputed facts between parties or making decisions. If there is in any specific case, then some form of judicial adjudication is required. In the generality of cases what is in issue is the application of a formula to a given set of facts. I believe that the agency is the right way to approach the matter. It is not very different in its principles from the way in which social security benefits are calculated in the great variety of circumstances in which they are required to be paid. That is the first point.
The second point is that the courts do not possess the investigative machinery by which to follow up parents that are liable, first, to find out where they are and, secondly, to enforce the obligations that arise upon them, unless definite information is available to the court. Those who have practised in this field, like the lady to whom I referred earlier, often complain of the difficulty involved in that process.
Lord Mishcon: My Lords, before the noble and learned Lord leaves that point perhaps he will kindly indicate to the House why there is no legislation which makes the whole of child maintenance, regardless of the means of the parents, subject to administrative machinery and a formula. Why does the provision relate only to the poorer sections of our community?
The Lord Chancellor: My Lords, it is utterly incorrect to suggest that it relates only to the poorer sections of our community. That is not right. It is a misunderstanding of the Bill. We provide that for all cases in which an application for maintenance is made the maintenance is to be estimated on the basis of the formula where the formula can apply. Therefore there may be a situation in which people of quite substantial means disputing the maintenance of children are

403
required to submit their case to the agency and the formula. I utterly repudiate the idea that the doors of the curt are closed only to a particular section of the community in relation to a particular question. Parliament has repeatedly made special provision for dealing with special questions outside the court. The Industrial Tribunal is a good example of that. It was thought that that kind of issue was best addressed in a forum different from the court.
The application of a formula to a set of facts where the formula is settled under this Bill and regulations made under it is an administrative matter which is best dealt with by an administrative agency. Having regard to the: variety of circumstances, that is the only way in which reasonable consistency will be obtained. The number of cases in which this kind of issue arises is, as I say, of the order of 2 million or 3 million. That is a very large number in comparison with the number of cases that the ordinary courts and the courts dealing with family matters can cope with in the course of a year. Instead of promoting the interests of the family court and developing the family jurisdiction, if this kind of administrative work is put into the courts instead of being dealt with effectively by a suitable agency of the kind here described, the courts will be damaged irreparably by having to do work for which they are not really suited.
Baroness Faithfull: My Lords, I do not understand. The Department of Social Security has had child maintenance officers. What have they been doing all these years? Why have they not been collecting over these years? Will they do any better after this legislation? That is what is puzzling many of us. I suspect that there has been a shortage of social security and child maintenance officers because they have been taken from their jobs. That is why we have this enormous number of people who have not been paid.
5.45 p.m.
The Lord Chancellor: My Lords, the obligation on the absent parent to maintain was a matter which, generally speaking, was enforced in the courts. The amount of money that the courts were prepared to order in these cases was often extremely small; sometimes it was vanishingly small. One of the objects of the Bill is to introduce consistency in that matter and to make the arrangements fair and consistent between the various people subject to them. The difficulty to which my noble friend has referred is an illustration of the point I am trying to make. The assessment and the enforcement of an obligation of this kind require more machinery than the courts can properly have or effectively exercise.
The noble Lord, Lord Mishcon, has accepted that the agency should go ahead under the Bill. These amendments do not prevent that. A dual system is required. If the agency is to be effective it must be set up fully, with all the resources required for it.
I would love to have£30 million, or whatever may be available, for the work of the courts. But I am certain that if I had the duty of enforcing the maintenance obligation through the courts,£30
404
million would be used up by them. I would need a good deal more money. It is not as though I were offered£30 million in order to do nothing extra. The offer would be contingent on doing this work. The point is that this work is much more effectively and better done by an agency. If the work were put to the courts the result would be to flood them with operations for which they are singularly unsuited.
One of the ways in which we have been able to improve the situation in the county court, where a great many summonses are issued, is to use a computer production centre at Northampton where that kind of repetitive work can be done. This proposed operation is very much larger and affects the country as a whole. The structure envisaged for the agency is a suitable structure. The amendments accept that the agency is necessary. Unless that work is given to the agency and the people required to use the enforcement machinery for ordinary maintenance arrangements are asked to use the agency, we are creating a complete waste of appropriate machinery.
I shall look at the amendments themselves. The noble Lord, Lord Mishcon, took the line of general principles rather than looking at the detail of the amendments. As I have said, as I understand the amendments the aim is to give the courts powers in parallel with that of the child support officers in the agency to assess maintenance under the formula. Subsections (1) and (2) of the new clause would allow the child or either parent to seek maintenance from the courts under the existing statutory powers rather than under the formula. So you would have not only two different agencies—one the court and the other the statutory agency seeking enforcement—but you would also have two different systems for assessment.
Subsections (4) and (5) appear to be intended to prevent a child support officer assessing the formula for maintenance where the formula would produce an additional element above the basic maintenance requirement or an addition to the formula award for educational purposes. All such cases at all levels would have to go to the court. The agency is required to be used only by those who in any event have business with social security. There is no suggestion of sending them away to some different arrangement altogether. The child support officer will be operating in consequence of the person applying for social security.
Where a person wishes to apply for maintenance under the formula where there was no social security payment involved —that is, the voluntary situation —we would be offering the appropriate service to that person also. That person would be dealt with in exactly the same way as a person on social security. As to ease and efficiency, in very many cases there will be no connected court proceedings at all especially in two-thirds of the cases (which is an estimated 2 million in number) where assessment is being annually reviewed. It is one of the difficulties of the present system that the maintenance arrangements have to be reviewed because in the nature of things the circumstances of people change.
Can one imagine the burden on the courts of an annual review in as many as 2 million cases? That would swamp the courts with utterly unsuitable

405
responsibilities. Even in those cases where there are connected court proceedings, there may also be benefits in payment, as I have said. It may be as efficient and convenient to deal with the assessment within the Secretary of State's machinery as it would he to have it dealt with entirely separately from the benefit issues in the courts. Perhaps most compellingly in terms of efficient and effective administration, we could have no idea how many people would opt for a court and how many for the agency if there were a choice. The result would be that in providing for assessments in both institutions one would have to devote nearly double the resources to the job if we were to be sure of a reasonable standard of service for parents and children in both the courts and the agency. That seems an absolute formula for waste.
There is a further difficulty in organisational terms. The agency and related services provided by the Secretary of State will play a major part in investigating the means of the parties and other circumstances relevant to the case as well as in simply applying the formula to the facts, once established. These investigative activities are not, in the Government's view, suitable for the courts. Yet without them, either the parties who went to the courts would not enjoy the full range of services envisaged by the Bill or they would in any event have to use the agency and connected services for some purposes, even if ultimately the court applied the formula.
In addition to arguments about effective administration, there is a danger that loading what are largely administrative tasks onto the courts will distract them from their essential role in family proceedings of providing adjudication in cases where it is needed. I believe that that is absolutely fundamental. Instead of advancing the case, in practice, for a family court, if your Lordships were to pass these amendments you would do, in my humble view, exactly the opposite.
In the light of those arguments, the Government are convinced, as I hope are your Lordships, that concentrating assessments and related services in the agency will be the best way of producing a satisfactory service to those people who have long required it. I am sure that my noble friend Lady Faithfull, as well as many others, knows perfectly well that many people have sought to get maintenance for their children from the other partner who has gone away and have found it extremely difficult to do so. Even with a court order it can be extremely difficult actually to get the money and to trace the person in question.
In my judgment therefore there is very good reason for not going along with this. If the House wishes to adopt the very principles that the noble Lord, Lord Mishcon, set out and to go forward to a family court, the last thing it should want to do is put upon the courts which are likely to handle that business a totally unsuitable and huge burden. If we want to keep the courts open for the people of this country generally, we can do that best if we take away from them unsuitable tasks and leave them open for all
406
those who require them for the task for which they are suited. I hope the House will feel able not to give effect to these amendments.
Lord Mishcon: My Lords, the House will appreciate without doubt the reason for the noble and learned Lord's reputation as a great advocate. One of the strengths of a great advocate is that when he has a weak case he makes it sound extremely strong. I thought that the last remarks of the noble and learned Lord would have justified us taking a course that I do not believe would appeal to this House or to him; namely, that we should have a look at all the things the courts do and, if we find that a government department can do them rather better, we should take that administration and those powers away from the courts. What a dangerous precedent, especially when the noble and learned Lord did not answer one principle. If he is right, why do the wealthier in our society who wish to obtain a maintenance order for their children go to the one court which deals with all the other matters, including the maintenance of the wife? If that is wrong, why is it not wrong for them? These are important amendments on a matter of principle. I hope that the House will realise that when we divide.
5.53 p.m.
On Question, Whether the said amendment (No. 11) shall be agreed to?
Their Lordships divided: Contents, 48; Not-Contents, 86.

Division No. 2

CONTENTS

Acton, L.

Lovell-Davis, L.

Addington, L.

McGregor of Durris, L.

Aylestone, L.

Malmesbury, E.

Blackstone, B.

Mishcon, L.

Bottomley, L.

Morris of Castle Morris, L.

Carter, L.

Nicol, B.

Cledwyn of Penrhos, L.

Northfield, L.

Darcy (de Knayth), B.

Phillips, B.

Elliot of Harwood, B.

Pitt of Hampstead, L.

Ennals, L.

Rea, L.

Ewart-Biggs, B.

Robson of Kiddington, B.

Faithfull, B.

Rochester, L.

Falkland, V. [Teller.]

Russell, E.

Gallacher, L.

Serota, B.

Gladwyn, L.

Shannon, E.

Graham of Edmonton, L.

Simon of Glaisdale, L. [Teller]

Stoddart of Swindon, L.

Henderson of Brompton, L.

Tordoff, L.

Hollis of Heigham, B.

Turner of Camden, B.

Houghton of Sowerby, L.

Underhill, L.

Hughes, L.

White, B.

Jeger, B.

Williams of Elvel, L.

John-Mackie, L.

Wilson of Langside, L.

Lawrence, L.

Winterbottom, L.

Longford, E.

NOT-CONTENTS

Alexander of Tunis, E.

Brougham and Vaux, L.

Ampthill, L.

Butterworth, L.

Arran, E.

Caithness, E.

Astor, V. [Teller.]

Campbell of Alloway, L.

Auckland, L.

Carnock, L.

Belhaven and Stenton, L.

Cavendish of Furness, L.

Belstead, L.

Clanwilliam, E.

Blatch, B.

Colville of Culross, V.

Blyth, L.

Colwyn, L.

Boyd-Carpenter, L.

Constantine of Stanmore, L.

Brigstocke, B.

Cox, B.

407

Craigavon, V.

Mountevans, L.

Denham, L.

Mountgarret, V.

Elliott of Morpeth, L.

Munster, E.

Erroll of Hale, L.

Murton of Lindisfarne, L.

Ferrers, E.

Napier and Ettrick, L.

Fisher, L.

Nelson, E.

Flather, B.

Onslow, E.

Foley, L.

Oppenheim-Barnes, B.

Fraser of Carmyllie, L.

Orkney, E.

Gainford, L.

Park of Monmouth, B.

Greenhill of Harrow, L.

Pearson of Rannoch, L.

Gridley, L.

Pender, L.

Grimthorpe, L.

Platt of Writtle, B.

Hailsham of Saint Marylebone, L.

Plummer of St. Marylebone, L.

Polwarth, L.

Henley L.

Rankeillour, L.

Hesketh, L.

Reay, L.

Holderness, L.

Renton, L.

Hooper, B.

Saint Albans, D.

Hylton Foster, B.

Seccombe, B.

Jeffreys, L.

Skelmersdale, L.

Joseph, L.

Strathcarron, L.

Kitchener, E.

Strathclyde, L.

Lauderdale, E.

Strathmore and Kinghorne, E.

Long, V. [Teller.]

Swansea, L.

Lyell, L.

Swinfen, L.

Mackay of Clashfern, L.

Thomas of Gwydir, L.

Mancroft, L.

Trumpington, B.

Merrivale, L.

Ullswater, V.

Mersey. V.

Vaux of Harrowden, L.

Monson, L.

Waddington, L.

Morris, L.

Wade of Chorlton, L.

Mottistone, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.1 p.m.
[Amendment No. 12 not moved.]
Lord Carter Lord Carter moved Amendment No. 13:
After Clause 2, insert the following new clause:
("Duty to consider welfare of child
Where the Secretary of State or any of his officers, exercise any of the powers and duties conferred by this Act, the welfare of the child shall be taken into account.").
The noble Lord said: My Lords, the amendment seeks to introduce into the Bill a duty to consider the welfare of the child. We discussed the issue in Committee and the noble and learned Lord the Lord Chancellor made objections to the wording which was put forward in the amendment at that stage where we introduced the concept of the "paramountcy" of the welfare of the child. We have accepted the argument put forward by the noble and learned Lord and have changed the wording. We hope that it will now be acceptable to the Government.
The intention of the amendment is to ensure quite simply that the child is the focus of concern in the operation of any arrangements for child support. We have removed the concept of paramountcy that we had before. In responding to the amendment which we discussed in Committee, the noble and learned Lord expressed support for the principle involved. However, he also voiced concern that to incorporate that principle into the Bill would distort the balance between the interests of the child and of others affected. The amendment takes account of the point which was made in Committee and seeks to ensure that the child's welfare is properly safeguarded in those areas of administrative decision-making which are covered by the Bill.
We believe that there are various aspects of the Bill which could in certain circumstances run counter to the best interests of children, especially those aspects which place the caring parents—usually the mothers —under a compulsion to supply information to child support officials. Those responsibilities could subject the caring parents to stress and tension and in some cases could even expose them, or their children, to threats of physical harm. In that context we feel that it is unarguable that the welfare of the child should take precedence over other considerations.
Perhaps I may remind the noble and learned Lord of what he said in Committee. He said:
"I do not wish to push the issue to one side. It may be possible to introduce something which would show that the whole idea of maintenance is for the benefit of the child. I shall consider whether we can do something of that nature". [Official Report, 14/3/91; col. 341.]
I am sure that the Government cannot now object to the way we have reworded the amendment. It provides the opportunity for them to express their undoubted support for the principle which was expressed in Committee by the noble and learned Lord. I beg to move.
Earl Russell: My Lords, I am happy to support the amendment on behalf of the Liberal Democrat Benches. It was put forward in Committee, as the noble Lord, Lord Carter, said, in a different form of words. That form was taken from the Children Act 1989 and it provided that the interests of the child should be paramount. It was put to us that the word "paramount" was a little strong. We considered that case and, as will be seen, we have given way to it.
However, it seems to me that that concession calls for an equal and opposite concession. Throughout the proceedings on the Bill we have been informed of the interest of the taxpayer. That is a good and genuine interest and we accept the point. Nevertheless, it seems to me that the interest of the taxpayer is not paramount either; it is a good interest but one which has to compete, as does anything in the real world, with many other conflicting interests. Therefore, it would be most valuable to have it spelt out in the Bill that the interests of the child—which is, after all, where we started—should be one of those interests. As I said, I am happy to support the amendment.
The Lord Chancellor: My Lords, as I made clear —this has already been referred to—when we discussed the matter in Committee, the underlying object of the Bill is to provide for the welfare of children and one of the most important aspects which affect them; namely, maintenance, or the payment of money for maintenance where the parent in question is absent from the child and is not the person who has care of the child.
The amendment acknowledges, very fairly, some of the argument that I put forward in Committee. It has been modified to take account of what I said. However, it still imposes a duty on the Secretary of State, or any of his officers, to take account of the welfare of the child in exercising any of the powers or duties conferred by this Act.
In Committee I promised to consider whether we could incorporate into the Bill a declaration of some

409
kind that the whole object of the Bill in relation to maintenance was to promote the welfare of the child, in the way I have just outlined. We have considered the matter carefully and sought the advice of parliamentary counsel. However, we have concluded that the correct way to look at the issue is to acknowledge the fact that the whole purpose of the Bill is, self-evidently, to benefit the child in that it provides for the assessment of the parents' financial liability for their children. It also makes arrangements for the collection and, if necessary, the enforcement of payments to meet that liability. The Bill is designed to advance the welfare of children. Indeed, Clause 1 speaks specifically in terms of parents' "duty to maintain" their children. I believe that a more explicit provision would be difficult to frame in a way that does not undercut the main structure.
Perhaps I may illustrate my point in relation to this amendment. The amendment proposed would in effect require the officers of the child support agency to take into account the welfare of the child when exercising any of their powers or duties under the Bill. In the case of Clause 5—and also in connection with Clause 22 which was removed in Committee—I can see that in such a situation the welfare of the child may be important if, for example, the result of requiring information would be to involve the child in threats of violence or actual violence, and so on. However, when it comes to deciding the amount of maintenance, one would apply the formula. In that situation, one has to take it that Parliament has provided a formula which is the proper one to serve the welfare of the child. Therefore, at that stage to say that the child support officer has to take account of the welfare of the child would only confuse that officer in what he is trying to do.
There is no questioning the fact that the most effective method to serve the interest of a child in this connection is to secure regular payments of maintenance for the benefit of the child. Not only do they provide a recognition of the responsibilities family members owe to each other, they also offer a basis of portable income on which the person caring for the child can build so as to enhance the independence of herself and of the household.
The formula takes proper account of the financial needs of children, both in terms of direct cost based on their age and in terms of the cost of their care. That is all done in pursuance of the welfare of the child. However, it is not right to have an additional factor as regards a child's welfare in that connection. Where one has a formula applying to the circumstances, the duty is simply to apply that formula and obtain the result. The nature of the formula, the allowances made and so on, have regard not only to the equity as between parents and children—which is important —but also to the equity as between the parents, if there are two parents who are separated.
I hope that the noble Lord will realise that we have examined the issue most carefully and that the aim of securing the welfare of the child is achieved by introducing a formula based on objective criteria rather than on discretion and enforcement provision
410
to ensure that parents meet their liabilities. In the light of that explanation I hope that the noble Lord will feel able to withdraw the amendment.
Lord Carter: My Lords, I find that a very disappointing answer. It may be that the answer given by the noble and learned Lord shows why we need this amendment to the Bill. The amendment is very clear; it says that:
"the welfare of the child shall be taken into account".
That phrase is well known in law and is in many statutes. I remind the noble and learned Lord that there is an injunction on the Secretary of State for Social Security to take into account the rate of inflation when considering child benefit. That has not meant that child benefit has increased every year as inflation has risen.
The Lord Chancellor: My Lords, with the leave of the House, in deciding what the formula should be one might take account of the rate of inflation, but that does not mean that one has to give full effect to it. It means that that is a factor which affects the application of and the amounts in the formula. The point I am trying to make is that the welfare aspect does not affect the application of the formula which has already been worked out taking all that into account. So that has already been done in this system. The effect of the noble Lord's amendment is to reintroduce that factor after it has already been taken into account when at least a lot of the duties of the Secretary of State and his officers simply involve applying a formula.
Lord Carter: My Lords, if that is the case surely the noble and learned Lord should have come back to say he was not happy with the wording. We would have been entirely happy to remove the phrase, "exercise any of the powers and duties" and perhaps reworded it to take into account those powers and duties where the welfare of the child should be taken into account.
This stage of the Bill is not the time or place to advance the argument any further. I find it hard to understand the argument put forward by the noble and learned Lord. I should like to repeat what he said in Committee:
"I do not wish to push the issue to one side. It may be possible to introduce something which would show that the whole idea of maintenance is for the benefit of the child. I shall consider whether we can do something of that nature".—[Official Report, 14/3/91; col. 341.]
I find the answer very disappointing. I felt that we were on the way to receiving the support of the Government. We shall certainly wish to return to it at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Clause 3 [Child support maintenance]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 14:
Page 2, line 29, leave out from ("if") to ("arrange") in line 31, and insert ("so requested by either of the persons mentioned in subsection (1)").
The noble and learned Lord said: My Lords, perhaps I may propose this amendment and speak

411
also to Amendments Nos. 15, 16, 17 and 18. Again, this is an attempt to shorten and render less cumbrous the wording of the Bill. I had a shot at it in Committee and two objections were raised on the basis that my redraft did not cover two contingencies. One was so unlikely—namely, the wife obtaining a maintenance order and the husband seeking to enforce it against himself —that it illustrated one of the prevailing vices of current drafting, that is, trying to cover every situation however unlikely it might be. The other objection, although it was not hard pressed, seemed to he one which ought to be met because it provided a means whereby a recalcitrant father could evade his responsibilities. Therefore, I had another shot at a redraft which I sent to my noble and learned friend on 27th March, suggesting that he might have it vetted by the draftsman. I have recently heard from my noble and learned friend that he has sent it to the draftsman but is not in a position yet to pronounce on the matter. With your Lordships' permission, I should like merely to read how the provision will stand under the amendments. Subsection (3) will read:
"Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if so requested by either of the persons mentioned in subsection (1), arrange for",
and so forth. Subsection (4) will read:
"Where a request for the enforcement of the obligation mentioned in subsection (3) (b)",
and so forth. At line 40, it will read:
"A person who applies to or requests the Secretary of State as aforesaid",
and so forth. Subsection (6) will read:
"Any person who has applied or made request to the Secretary of State under this section",
and so forth.
The total saving in mere words is nine. That may seem to your Lordships to be comparatively little, but with the bloated condition of the statute book even the smallest tapping of the dropsical fluid gives some relief. I hope that it will receive favourable consideration by my noble and learned friend. I venture to think that it is much simpler than the wording of the clause as it now stands. It also meets the two objections put forward by the draftsman to the draft I submitted in Committee. I beg to move.
The Lord Chancellor: My Lords, I am extremely grateful to my noble and learned friend for raising these amendments and for the trouble he has taken to improve them in the light of the discussion we had in Committee. As I said in the letter to which he referred, I have asked parliamentary counsel to take account of them. I rather think the result may be a fairly substantial reordering of the clause to try to make it simpler on the lines that my noble and learned friend suggested. Parliamentary counsel has not finished his work in time to enable us to do anything about it at this stage. If I undertake to come back to this at a later stage of the Bill, perhaps my noble and learned friend will feel able to withdraw his amendment. I believe the effect of his having proposed it will be to improve the drafting of the clause.
Lord Simon of Glaisdale: My Lords, what my noble and learned friend has said is sufficient at any rate to take him out of the train of Mephistopheles. I am
412
grateful for his favourable response by way of consideration of the matter, and in the circumstances I ask your Lordships for leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 to 18 not moved.]
Clause 5 [Applications by those receiving benefit]:
Lord Carter Lord Carter moved Amendment No. 19:
Page 3, line 32, leave out ("family credit or any other benefit of a prescribed kind") and insert ("or family credit").
The noble Lord said: My Lords, the purpose of the amendment is to exclude the disability working allowance as a prescribed benefit for the purposes of the Bill. The authorisation of the Secretary of State to take action to recover child support maintenance from the absent parent would include income support or family credit but exclude the DWA. It is a point we discussed in Committee. We have tabled the amendment again to find out from the Government how they see the DWA working in relation to the Bill. As I said, the intention is that the DWA should not be included in the prescribed benefits. That would entail that someone who is caring for a child and receiving that benefit is obliged to authorise the Secretary of State to take action under the Bill to recover child support maintenance from the absent parent of the child being cared for.
I shall not repeat all the arguments put forward in Committee. The DWA is a benefit designed to encourage disabled people to try out employment and to top up the earnings of a disabled person in recognition of his or her disadvantage in obtaining a job. It would be a recognition by the Government of the disadvantage faced by some disabled people in the employment market. When we discussed this issue in Committee we discussed the fact that the allowance is designed to help disabled people and to put them on an equal footing with able-bodied people. We feel therefore that it should not be included in the list of prescribed benefits but should be considered in the same way as the earnings of able-bodied people. Disabled people who are working and claiming DWA, like able-bodied people who are working, have the choice of whether to make a claim for child maintenance from the absent parent.
I am sure that the Minister will not need reminding of what he said in Committee but, nevertheless, I shall remind him. He said:
"It would be right for me to turn now to the disability working allowance because that was a benefit that both noble Lords mentioned, and it is one, I have to say, that we are minded to include, but we would not be able to include it in the wording of the Bill at the moment because … the disability working allowance does not exist because the Bill has not yet received Royal Assent".—[Official Report, 14/3/91; col. 347.]
If the relevant Bill were to receive Royal Assent before we reach Third Reading, is it the Government's intention to include the DWA in the list of prescribed benefits? If that is not the case, how do the Government intend to include it in the list? I beg to move.
Earl Russell: My Lords, on behalf of the Liberal Democrat Benches, I am happy to support the amendment. We accept the assurance that my noble kinsman gave in Committee that the words,

413
"any other benefit of a prescribed kind",
are not intended to apply to housing benefit, community charge benefit or any of the contributory benefits. I entirely agree with what he said. Those assurances have considerable moral force; but as he conceded, they do not have legal force. This is not the last government there will ever be in the history of this country. If we put those words on the statute book, they may be used by other governments in other circumstances with other priorities. The words are a great deal too general.
I also agree strongly with the noble Lord, Lord Carter. I cannot see the case for including the DWA. All my noble kinsman said about that allowance in Committee was that it was included because it is a contributory benefit. There is a suppressed logic behind that, but I must confess that I cannot follow what it is. I should be rather glad to hear.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, I can start by correcting my noble kinsman. I am sure that I never said that the DWA was a contributory benefit.
Earl Russell: My Lords, I misread my notes. I beg my noble kinsman's pardon. He said an income-related benefit.
Lord Henley: My Lords, I thank my noble kinsman for that apology. As the noble Lord, Lord Carter, said, we discussed this amendment in Committee. I am not sure that I can take the matter much further. I opposed the amendment then, and I see no reason to do otherwise now. I announced in Committee, because the DWA was not included, that we intended to extend the provisions of the clause to cover the DWA. The noble Lord, Lord Carter, put forward reasons as to why he thinks that is wrong. I still believe that it is right that the provisions of the new system should apply to caring parents who are receiving that benefit. Parents who are disabled are, in principle, subject to the same responsibilities for their children as other parents. We believe that it is right in principle to treat disabled parents in the same way as other parents while making provision for the practical differences in their situation.
Like income support and family credit, the DWA will be paid because the caring parent's income is insufficient to meet the needs of her family, often because of the failure of the absent parent to pay maintenance for his children. There is a strong case for treating it in the same way as the other two specified income-related benefits for the purpose of this clause. As I said in Committee, obviously we cannot add the DWA to the list of specified benefits in Clause 5 because it will not exist until the disability Bill receives Royal Assent.
The noble Lord, Lord Carter, rightly pressed me as to whether we would include the DWA in the list of prescribed benefits if the Bill had received Royal Assent before this Bill had completed its passage through both Houses. I should rather not speculate on that question because it involves another place. As
414
likely as not, this Bill will be in another place before the disability Bill receives Royal Assent. Certainly it is a point that I shall consider.
The noble Lord asked whether we would include any other benefit of a prescribed kind; in other words, are we prepared to have on the face of the Bill merely income support, family credit and the DWA. As I said in Committee, we have no intention at the moment of extending the provision to any contributory benefit or any other benefit such as war pensions, attendance allowance or mobility allowance. I confirm that intention today.
As I explained in Committee, we feel that it is important to retain the option to add to those two benefits and the DWA, as I said, by means of regulations. As both noble Lords will be aware, benefits change over the years. Income support replaced supplementary benefit and family credit replaced family income supplement. At some later date it may become necessary to replace the current benefits with something more appropriate to the needs of that time. Clause 5 as currently drafted would enable us to ensure that it applied to the successor benefits without having to amend primary legislation.
I shall repeat the assurance I gave in Committee. We have no intention of adding any benefit at the moment other than the DWA. I hope that with that assurance the noble Lord will be prepared to withdraw the amendment.
Lord Carter: My Lords, before I do I must say that I found the answer disappointing. I still do not understand the remarks the Minister made in Committee when he said that it would undoubtedly be right to recognise in some way the extra cost that disabled people might incur because of their disabilities when calculating their ability to pay maintenance and that the Government were considering how best to do that. We shall have to take that into account when we discuss later amendments relating to allowances for disabled children. It was a disappointing answer. I am afraid that it is the answer I expected. It was a little helpful because it indicated what the Government's timetable might be. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 20:
Page 3, line 39, after ("without") insert ("unreasonable").
The noble Lord said: My Lords, if the amendment is not accepted I should wish to express my amazement to the House. On a previous occasion we dealt with the duty of an applicant under Clause 5; namely:
"Where income support, family credit or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of the parent of a qualifying child she shall",
and the words that follow indicate that the mother should give authority to the Secretary of State to do certain things. Then comes the subsection:
"That authorisation shall be given, without delay, by completing and returning to the Secretary of State an application".
The noble Earl, Lord Russell, moved an amendment because of the meaningless nature of the duty. What does "without delay" mean? He proposed that the

415
application should be submitted within 28 days. That was I hen dealt with on the basis that in some cases 28 days might be reasonable and in some cases 28 days might be unreasonable. I suggested that the matter might be closed by the use of the words in this amendment; namely, that the delay should not be "unreasonable"—"without unreasonable delay". I beg to move.
6.30 p.m.
Earl Russell: My Lords, I am happy to support this amendment, which is a considerable improvement on the one I moved in Committee, for which I am grateful to the, noble Lord. Among the circumstances which might account for a not unreasonable delay I would ment on only the quite probable one of post-natal depression.
Lord Simon of Glaisdale: My Lords, when the noble Lord replies I wonder whether he could tell your Lordships if the words "without delay" have ever been construed? In Committee I ventured to suggest that they might be taken to mean the same as "immediately", which has been construed as "within a reasonable time". It might help the noble Lord, Lord Mishcon, if he knew the answer to that question.
Lord Henley: My Lords, the present wording of the clause requires caring parents to return the form without delay, and the amendment seeks to make it clear that the return of the form should be "without unreasonable delay". I promised the noble Lord, Lord Mishcon, that I would consider this matter after his intervention on the amendment of my noble kinsman Lord Russell, which, as he said, was for 28 days, when he asked whether I would consider adding the word "unreasonable".
Following on from what the noble and learned Lord has said, as yet I do not have any authority that I can quote. Perhaps the noble and learned Lord might have such an authority. I was to some extent going to rely on what the noble and learned Lord said in Committee, when he said that in his view including the word "unreasonable" in the phrase "without delay' would not add anything to it.
Lord Mishcon: My Lords, he did not say that.
Lord Henley: My Lords, I think the noble Lord will find that the noble and learned Lord suggested that the courts would construe—
Lord Simon of Glaisdale: My Lords, if the noble Lord would allow me, it was the merest suggestion and guess. I should like to have the authoritative answer.
Lord Henley: My Lords, I have no authority that I know of in the courts. The noble and learned Lord put it as a guess, but I have taken advice from our own lawyers, and they also would suggest that a court would construe "without delay" as meaning "without unreasonable delay". In the light of what the noble and learned Lord said earlier about brevity, I hope that he might prefer our interpretation of "without delay" as being better than "without unreasonable delay".
416
I have no legal authority that I can quote, but our advice is that "unreasonable" would be unnecessary. I hope, therefore, that the noble Lord, Lord Mishcon, will feel that it is not necessary to press his amendment. I shall certainly undertake to have another look at it between now and Third Reading, some two weeks off, but I honestly do not think that the word "unreasonable" would add anything in terms of how the courts would interpret such words as are here.
Lord Houghton of Sowerby: My Lords, is there not a formula in widespread use in all forms of bureaucracy in the country? The words are, "as soon as possible".
Lord Henley: My Lords, with the leave of the House, and if I may remind the noble Lord that it is Report stage and I have spoken, what I was trying to say was that we felt that "without delay" would be interpreted as "without unreasonable delay".
Lord Mishcon: My Lords, it is difficult for me to rise and get to the Dispatch Box in a complete physical state and certainly in an acceptable mental one after having heard the noble Lord the Minister, for whom we all have not only respect but great affection. I do not want to minimise that respect or affection by anything that I say, but we have come to something in this House. It was admitted in the discussion that took place at Committee stage that nobody quite knew what the words "without delay" would mean. Therefore, in order to make sure that one knew what the words meant, somebody must not be guilty of "unreasonable delay".
The whole machinery of government has been creaking away in the interval on whether one could accept "without unreasonable delay". No alternative words are put forward, and the creaking comes over to the House at this moment and at this late hour in a way that makes one wonder whether there is anything one could say by way of amendment to this Bill that is going to be agreed to, however right it may be. I cannot remember one concession so far. All that one ever gets is, "Further consideration will be given", "Chats will take place with the draftsmen", and so on.
I say to the Government, and I mean this with every sincerity, that if an argument is advanced to improve the Bill please let it not be said by the Government, "We dare not agree to this because we are conceding something to someone who does not sit on our Benches". This is not the way for this revising Chamber to work. The noble Lord the Minister asks me to allow further consideration to be given to what I said at Committee and said to this amendment. In return of courtesy I will allow it by withdrawing this amendment. But is it right that this should go forward at Third Reading?
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 21:
Page 4, leave out lines 16 to 19.
The noble Earl said: My Lords, I also have enjoyed many debates with my noble kinsman. My noble kinsman therefore knows perfectly well that there is at least one area in which we disagree deeply and

417
profoundly, and I think will continue to do so, and that concerns the proper methods of drafting legislation. I think I should read the words that this amendment proposes to delete. The clause in the Bill imposes a duty to:
"comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information he requires".
It is a pretty sweeping form of words. Not only is it a pretty sweeping form of words; it is also probably redundant. We already have in subsection (6) -(a) a duty to provide the information necessary to enable:

"(i) the absent parent to be traced;

(ii) the amount of child support maintenance payable by the absent parent to be assessed; and

(iii) that amount to be recovered from the absent parent".

My noble kinsman was asked in Committee the reasonable question, "What do the Government want that is not covered by subsection (6) (a)?" He did not have an answer to that; he may have one now. If he has I shall listen to it with care. What he said on 14th March at col. 382 of Hansard was:
"The mere fact that we cannot think of some category to go into the Bill is a reason why the provision should be kept open. There is always the possibility that such an eventuality might be considered in regulation".
In other words, my noble kinsman was saying that this is a Micawber clause. It is there just in case something turns up.
No doubt when something turns up Parliament, if necessary, will be capable of approving the necessary powers, but before Parliament approves anything it ought to know what it is approving. Since the Minister himself does not know what he is asking us to approve, I do not see how we can. He says that regulations would come before the House, and then he says at that point Parliament would have a chance to comment on them. That telltale word "comment" gives away the whole of the case I want to argue here.
If Parliament is to approve something, it often needs not merely to comment on it but also to vote on it. If we let this power go forward, we will have approved we know not what. By the time we have found out what it is, it will be too late to say that we did not mean to do so. The clause is like the proverbial five reasons for drinking:
Drink…a friend, or being dry,
Or lest we should be by and by,
Or any other reason why.
When my noble kinsman can elaborate on what some other reason may mean, I shall consider the matter as seriously as I can. Until I know what that reason is, I do not think that the Government's provision should be in the Bill. I beg to move.
Lord Stoddart of Swindon: My Lords, I support the amendment. As the noble Earl said, the clause is so sweeping as to be almost frightening. This Bill has already been criticised by noble Lords on all sides of the House. It has been criticised on many grounds but mainly because it sets up an administrative organisation to deal with matters which should properly be dealt with by the courts. This clause contains provisions designed to force information from mothers in particular. If the mothers refuse to give that information they are to be clobbered as a
418
result; or rather they were to have been clobbered until we knocked out Clause 22 of the original Bill. Frankly I do not like this kind of provision. Clause 5(6) (b) states that a parent will,
"comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information that he requires".
My guess is that the regulations will be made not by affirmative instrument but rather by negative instrument. Therefore, there will be no automaticity —if that is the right word—as regards the matter being debated. We shall have to search for the negative instrument and table an amendment to it. Perhaps the Minister will tell us whether the regulations are to be made by negative or by affirmative instrument.
Such sweeping provisions in Bills are not good enough. I believe the Government have been warned on many occasions that a future government might even nationalise a whole range of organisations by a simple little statement such as this one. The Government should beware of trying to introduce a whole range of regulations without real and proper discussion. They should beware of asking Parliament and this House to approve such regulations when the House has no idea of the provisions they may contain.
6.45 p.m.
Lord Henley: My Lords, I suspect, both from speeches made in Committee and from speeches made today by my noble kinsman and the noble Lord, Lord Stoddart, that some misunderstanding has arisen as regards the nature of the clause. I apologise to the House because I suspect that I caused some of that misunderstanding.
It appears to be argued that subsection (6)(a) will give the Secretary of State all the power he needs to obtain such information as is necessary. There appear to be fears that all subsection (6)(b) does is to give the Secretary of State the power to ask for further information which may be totally irrelevant to the pursuit of maintenance. I should like to reassure the House that that is not the case. Rather than widening the scope of the information that we can seek in subsection (6)(a), subsection (6)(b) imposes limits on it. Subsection (6)(b) does not provide extra powers to those in subsection (6)(a); it provides for regulations to set out what is required of subsection (6)(a). Regulations will make clear what categories of information we can ask about, and that should be helpful for all concerned parties. Without subsection (6)(b), subsection (6)(a) would give the Secretary of State powers but there would be no need for the Secretary of State to make regulations to set out what the powers were. In effect, he could just operate under his powers.
We feel that regulations are the proper place for the categories to be set out, as it is far easier to add to or amend the categories if these are in secondary, rather than primary, legislation. Although we intend the categories to be as comprehensive as possible, we cannot guarantee that another kind of information which we would wish to use may not become available at some later date.
It is clear from the wording of subsection (6)(b) that the information to be obtained must be for the

419
purposes of subsection (6); that is, to obtain maintenance from the absent parent. That would limit the categories of information that we could cover in regulations.
If subsection (6)(a) stood alone there might be more force in the fears that my noble kinsman and the noble Lord have expressed. As I said, I feel that subsection (6) (b) acts as a limiting factor on subsection (6) (a) in that it stipulates that there must be regulations.
Lord Mishcon: My Lords, this is a matter of great importance. Before the noble Lord discusses any other point I hope he will be kind enough to consider the following matter. The noble Lord said that subsection (6)(b) of Clause 5 of the Bill limits the Secretary of State in regard to the categories of information that he can ask of an applicant. I believe that is what the Minister said and I see that he is nodding assent to that.
I pray in aid the assistance of the noble and learned Lord, Lord Simon of Glaisdale, on the matter of subsection (6). If what the Minister said is correct there would be absolutely no meaning in the word "and". The limiting words would be contained in subsections (6)(a) or (b) which would state words to the effect that the information required under subsection (6)(a) shall be limited to certain categories. We would then know what the categories were. However, as I understand the clause, it states under subsection (6)(a) that a person is under a duty to,
"give the Secretary of State such information as the Secretary of State considers necessary"
to enable certain things to happen. Subsection (6)(b) states that, in addition, the person is to,
"comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information that he requires".
The Secretary of State does not have to make regulations. He may do so if he wishes. There is nothing to say that the Secretary of State must make those regulations. The imposition of this clause is to make the applicant give the Secretary of State,
"such information as the Secretary of State considers necessary".
There is an additional power for the Secretary of State to make regulations, if he wishes, as regards,
"the categories of information that he requires".
The clause does not even state that the categories of information have to be limited. It merely states that the regulations are made,
"for the purposes of this subsection".
I do not understand what the Minister has said. However, that may be my fault.
Lord Henley: My Lords, I hope that it is the noble Lord's fault, but I may be wrong. The noble Lord quite rightly said that the subsection provides only that tin Secretary of State may make regulations. I was trying to say that without subsection (6) (b) there would be no power whatever for the Secretary of State to make regulations. In other words, under subsection (6) (a) it would be left entirely to the Secretary of State to obtain such information as he considered necessary by whatever means he decided. Subsection (6) (b) limits twat power.
420
It is probably best if I say that we shall return to the matter if we find that the present drafting does not quite meet our intentions. However, we feel that it provides a limitation by giving the Secretary of State the power to make regulations. Otherwise, he could act without regulations, if the noble Lord follows me.
Lord Mishcon: I hope that the noble Lord will kindly permit me to add this point. Under subsection (6)(a) the person is under a duty to give the information which the Secretary of State considers necessary. I am saying that there is no obligation for the Secretary of State to make regulations for the purpose of limiting what is required under subsection (6)(a). As a result of the use of the conjunction "and", he can make regulations if he sees fit to define the categories of information that he wants. He does not have to do so, and subsection (6)(a) gives him that power in any event. Therefore, how can subsection (6)(b) be a limiting factor? I do not understand it.
Lord Henley: Subparagraph (6)(a) gives him the power to do so but without making regulations that would come before this House. That is what we consider to be the limiting factor.
As I said, we shall consider possible drafting amendments if we feel that the drafting as it now stands does not meet our intention as I have expressed it. I believe that we have gone beyond the confusion that arose in relation to a similar or the same amendment at Committee stage in that I hope that the noble Lord and my noble kinsman understand our intention. This does not widen the power of the Secretary of State to do anything. Instead, it imposes limits on him requiring that he must do these things by regulation.
I hope with that assurance my noble kinsman will not feel it necessary to press the amendment. We shall certainly have a look at the matter to see whether the present wording is necessary or could be better expressed—and I note what the noble Lord, Lord Mishcon, said about the word "and". On that basis, I hope that my noble kinsman will withdraw the amendment.
Lord Simon of Glaisdale: I hope that I am in order in intervening. We have been discussing the new subsection (6) (a) and therefore I hope that I am not intervening on Report after the noble Lord the Minister has made his speech. I merely desire to say that it seems to me that the noble Lord, Lord Mishcon, is right in his interpretation. Paragraph (b) must be something over and above paragraph (a) because of the word "and". It gives the Secretary of State power to make further requirements by regulation.
As the Minister is looking restive and as he has gone so far as to say that the drafting will be reconsidered, perhaps I may point out another oddity. As the noble Lord, Lord Stoddart, pointed out, the main power under subsection (6) is subject to the negative procedure but when we come to subsection
(7) that is subject to the affirmative procedure.

421
Perhaps while the matter is being looked at—and it seems to me that the noble Lord, Lord Mishcon, is right—that aspect could also be considered.
Lord Henley: My Lords, with the leave of the House and with all due respect to the noble and learned Lord, I suspect that he was slightly out of order for Report stage, but because there has been some confusion in relation to the clause, his intervention is permissible in the circumstances.
As I said, we shall have another look at the matter. I have tried to set out what we consider to be the intention of subsection (6) (b) and how we thought that it imposed limitations on the Secretary of State's power. It may be that the noble Lord, Lord Mishcon, whose drafting skills are greater than my own, is right. However, I have assured the noble Lord and my noble kinsman that we shall take the matter away.
Earl Russell: My Lords, I am very grateful to my noble kinsman for that answer. It has made me think quite hard. I listened with a great deal of care to what he said about the restrictive force of the subsection and about the power to make regulations which would not arise without the inclusion of those words. I also listened with great care to what was said by the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Simon of Glaisdale. I have many times regretted that I am not a lawyer. This is one of them. However, in the light of what my noble kinsman said, and in the light in particular of his promise to look at the drafting before Third Reading, I can do no other than beg leave to withdraw the amendment with thanks for its consideration and optimism about its result.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 22:
Page 4, line 19, at end insert:
("(c) or make a statement to the effect that there arc valid reasons for not providing the information required and describe the reasons.").
The noble Earl said: My Lords, the amendment deals with a right to appeal for those on whom a duty rests under Clause 5. It attempts to give a proper right of appeal, to give definition to it and to lay down grounds under which it may be exercised.
The question of grounds is important. In paragraph 10 of its second report on this issue the Social Security Advisory Committee dealt with the Government's arguments that its assurance about being willing to accept good cause unspecified would be sufficient. The Committee said:
"We do not accept this, not least because we are told that the Department does not intend to spell out the circumstances in which good cause would apply beyond rape and incest".
The Committee was not satisfied. I, too, am not satisfied. In particular, I find it very difficult to see how any proper appeal could be conducted without grounds being stated which would justify the mother in refusing to comply with the demand to give information.
How can one make an appeal if one does not have any clear grounds on which to base one's appeal? It seems that one of three things must happen: as we go along, case law will make clear what grounds of appeal are regarded as acceptable; no exemptions will
422
in practice be allowed; or decisions will be internally inconsistent. One of those three must be the case. Any except the third, which I believe we would join in deploring, would have the effect of blocking what appears to be the argument of the Government that if the grounds were known fathers would go and commit whatever offence was specified as a ground in order to avoid paying maintenance. I find that a rather curious line of argument. Grounds must be spelt out, and a right of appeal must be spelt out.
In relation to rape and incest, I fully accept that it is the Government's intention to make an exception and that a woman whose child is the result of rape or incest will not be compelled to name the father. If that is their intention —and I welcome the fact that it is —I simply cannot understand why they are not prepared to put it in the Bill.
The other case, the Government's attitude to domestic violence, is rather more complicated. My noble kinsman dealt with the matter at some length in Committee. He said that the mother would not be compelled to name the father if:
"we are satisfied that there has been a history of violence". —[Official Report, 14/3/91; Col. 386.]
That gave rise to considerable discussion on which my noble kinsman commented (at col. 388):
"What I said was that there had to be evidence".
In other words, it seems that they were not prepared to accept the woman's word that domestic violence had taken place. The effect is to put very heavy pressure on any woman who is the victim of domestic violence to call the police immediately in order to have witnesses while the bruises are still fresh upon her. That may lead to the destruction of marriages which could otherwise have been saved. It seems an unnecessary, severe effect.
As bruises fade and as their causes may be disputed, it is normal that in most cases the only way that domestic violence can be shown is by the woman's word. If the woman's word is not to be acceptable evidence of domestic violence, the Government are in effect saying that domestic violence is not a sufficient excuse for not naming the father.
I am not being fanciful. There have been cases, including one recorded recently by a citizens' advice bureau in Staffordshire, of a mother who claimed maintenance and found her house was wrecked by the father and his friend. In the end the child had to be taken into care because he was so upset by all this that he started sniffing solvents. That is not a case of children coming first.
That is why we felt it necessary to spell out that the child's interests should be taken into account. If there is not to be a clear, spelt out, accepted exemption for victims of domestic violence, more cases like that will happen. The Bill will encourage them to go on.
My noble kinsman may perhaps say that, if we make violence an exemption, the woman will be encouraged to allege it where it has not taken place. I think that he would be unwise to go down that line of argument because if he did he would be admitting that, for whatever reasons, there are a great many mothers so reluctant to comply with the provisions of

423
the Bill that they would allege something very shaming to themselves rather than go ahead and comply. If that were the case, the Bill would be unworkable anyway.
I think that the Bill will be unworkable if the amendment is not accepted. If it is not accepted, it will cause a great deal of suffering and physical injury which otherwise would not take place. I beg to move.
7 p.m.
Lord Houghton of Sowerby: My Lords, those of us who are old enough to remember will see the ghost of Sir Gordon Hewitt stalking around the Chamber at this moment. He was Lord Chief Justice and he prophesied all this; and what he did not prophesy, George Orwell did.
Wherever we go now in enabling legislation, we find traces of hidden tyranny. When people say that part of the function of the House of Lords is to scrutinise legislation, I say, "You can say that again". When you have thought of everything that you might need, the word goes round, "Well, in case we can't think of anything else at any time or, in case we do, we must have a final embracing clause which enables us to bring forward anything else".
It seems to me to raise matters of considerable importance in relation to the mode of compiling our statute law. Having gone through this myself at different times, I wonder about the process of scrutiny of Bills and who takes responsibility for what. It seems to me that what is put in the Bill is put in by the draftsmen; what the draftsmen have put in, the Ministers read out to us; and that is how the Bill is constructed. There should be far more discipline imposed upon draft legislation, especially enabling legislation, which is becoming more embracing all the time. That is the mischief here. We have never finished with it. It is either a kind of progressive disease leading down a very undesirable path or it is part of the creeping paralysis of the legislation of today. However, either way, it is a serious matter. We come up against it constantly and we find it in the Bill. It is written in the Bill all over the place.
Baroness Faithfull: My Lords, I rise to support the amendment. As the noble Earl, Lord Russell, said, its purpose is to specify the circumstances in which there are valid reasons for not naming the absent parent. I shall not rehearse the arguments made by the noble Earl, hut perhaps I may add two more.
First, when women are in trouble like that, they often go to an organisation such as the citizens' advice bureau or to the social services department or probation department. It is difficult for the people working in those departments wisely and sensitively to help and advise a woman in trouble unless they know exactly what the circumstances are and it is laid down what the woman should or should not say.
Secondly, as was mentioned in the last debate, we must sometimes think about the men. I have dealt with cases in which a woman has become pregnant by a man who has wanted to marry her but she has not wanted to marry him. He has later gone off and married someone else, but he has not told his wife that
424
he has had an illegitimate child. If the woman has to name him, a second family will therefore be wrecked or there will be great disharmony in that family.
I therefore support the amendment for two reasons. But, speaking as a social worker, unless one knows exactly what the circumstances are and they are laid down by statute, it is difficult wisely and rightly to advise people coming to you for help.
Lord Simon of Glaisdale: My Lords, it seems to me that something of that kind is needed. It must be open to the woman required to give information to show that she has good cause for not providing it. Those causes will be of infinite variety. She may not know who the father of the child is. I gave an example of that in Committee. On the other hand, she may know and think that the circumstances in relation to her family render it extremely undesirable for her to give the information which might put a man from whom she had good reason to wish to sever herself in touch with her and her children again. I am inclined to think that it would be a mistake to try to enumerate all those circumstances because they could be infinite in their variety. I should like to see something to the effect that the woman can show good cause in writing why she should not provide the information.
The question of good cause is essentially a matter for a court of law; it is not a matter for the Secretary of State or any of his millions. Every day the law courts deal with matters of what amounts to good cause. It is essentially the kind of matter that courts in England and Wales and, I think, also in Scotland—and, I am sure, in America—deal with habitually.
We have not yet come to the amendment in the name of the noble Baroness, Lady Elles. It seems to me that something of that kind is also needed, but it should be provided that the appeal should be to a court of law, which should be a court designated by the Lord Chancellor according to the circumstances of the case. I must make it clear that in principle I support the amendment.
Lord Coleraine: My Lords, I sympathise with the thinking behind the amendments, but I wonder whether, in the case of an application for maintenance where the child in question has been born as the result of a rape, there is any way that the clause can be put into a practicable form. I believe we all accept that where a child was born of rape there is no conceivable reason why that should not be a good ground for not providing information. We all know how difficult it is for a woman to prove rape even when she has been to the police immediately after the rape, named the man, and shown her bruises and her soiled clothing. In this case we could be dealing with an event not less than nine months it may be nine years—after the rape took place but where the woman has not complained at the time because she kept the rape secret. If she had complained there would be no question but that she had known the father.
In such a case one can see grave difficulties for the Secretary of State, through his child support officer, never being satisfied that the rape had taken place. He would ask all the usual questions that might have been asked of the woman years before in criminal

425
proceedings. By the nature of her situation, she would decline to answer them because she does not propose to name the alleged rapist. There seems no way in which a child support officer could be satisfied that the rape had taken place. It is conceivable that the difficulty could be overcome if there were to be some obligation on the woman to tell the child support officer, under veil of secrecy, the name and the circumstances. He would then have the opportunity to investigate. However, I do not consider that a realistic suggestion.
I believe that there are grave difficulties in establishing that rape could be a reason for not being required to give information. I hope that when my noble friend replies to the debate he will state how he views this issue.
7.15 p.m.
Lord Stoddart of Swindon: My Lords, in replying to Amendment No. 13, moved by my noble friend Lord Carter, the noble and learned Lord the Lord Chancellor said that the Bill was about the welfare of the child and that therefore we did not need my noble friend's amendment. I begged to disagree with the noble and learned Lord then. There is nothing in this Bill about the welfare of children. There is nothing in the Long Title, although in the financial resolution there is much wording about saving £400 million.
How can the Bill concern the welfare of children when it contains Clause 5? Unless the amendment now before the House, or a similar amendment, is agreed to it is not only the wife but the children who may be put at risk. For example, if a wife is under duress from this new department to disclose the name of her husband, and her husband says, "Madam, if you disclose that name I shall come and give you and your kids a good hiding", then what? The children are at risk. They are as much, or perhaps more, at risk than the wife who is under duress and is being pressurised to give information which she may be frightened to give.
That is why this is a bad and dangerous Bill. It seeks to intervene between families and to create for families dangers which would not otherwise exist. I hope that the Government will review their attitude to the Bill. It is not about child welfare. It is not about a better life for children. It is about squeezing both parents for information and money to save the Treasury £400 million. Therefore, I sincerely hope that the Government will have second thoughts about the Bill and perhaps go so far as even to accept the amendment.
The Lord Bishop of Guildford: My Lords, I speak in support of the amendment, or wording along those lines.
It is important that we recognise that the women in question are usually in a state of some emotional turmoil. It is difficult for them to deal rationally and in a detached way with the situation in which they find themselves. I believe that it is the experience of most people who deal with the breakdown of human relationships, that people in such circumstances
426
cannot view them in proper perspective. I am sure that all noble Lords are very much in support of seeking to ensure that men accept full responsibility for their wayward activities. I certainly wish to encourage that. Indeed, I go so far as to say that we need to put pressure on men to do that.
However, the danger is that the Bill puts pressure on the wrong person and at the wrong point. This clause, unamended, puts yet further pressure on a woman who is already in considerable emotional difficulty. As the noble Lord said, it merely puts increased pressure on the child because of the additional pressure on the mother. I am gravely disturbed that a Bill on child support puts children even more at risk.
I hope that the Government will think carefully before pressing ahead without amendments which give women the opportunity to indicate that there are good reasons why they should not provide the information required. I hope that we shall be careful before we go much further down this road.
Lord Carter: My Lords, I was pleased to put my name to the amendment. I do not wish to add to the arguments that already have been expressed extremely well, though I had intended to make the point that was made most powerfully by my noble friend Lord Stoddart.
I remind noble Lords that when we discussed Amendment No. 13 the noble and learned Lord the Lord Chancellor said that it is self-evident that the intention of the Bill is to promote the welfare of the child. I suggest that the attitude the Government take to this group of amendments will show the House how self-evident is that intention.
Lord Henley: My Lords, I totally reject the argument of the noble Lords, Lord Stoddart and Lord Carter, that the Bill is not about the welfare of the child. It is in the long-term interests of the child that the caring parent is in receipt of maintenance.
Perhaps I may deal with the group of amendments in two halves, referring first to Amendment No. 22 and then Amendments Nos. 24 and 26. I assume that it is the wish of the House that because these amendments propose three separate ways of dealing with the same problem they should be decided upon individually rather than as a group. In other words, any decision on the first would not necessarily bind on the second. I do not know whether that meets with the wishes of the House, but they seem to be totally separate amendments dealing with the same issue.
Amendment No. 22 would mean that a caring parent could avoid the obligation quite simply by saying that there are good reasons why she should not provide the information, and stating those reasons. I do not believe that such a provision is right. There is no provision to consider whether the reasons are good reasons. The parent merely has to say what the reasons are.
A caring parent could not be exempted from the obligation to provide information simply because she says she has good reasons not to provide the information, even if she then goes on to give those reasons. We believe it is right that there should be

427
some consideration of the reasons. Subsection (7) of the clause gives the Secretary of State power to make regulations which set out the circumstances in which the obligation need not be applied or can be waived. I hope that the noble Earl will agree to withdraw Amendment No. 22.
I shall speak to Amendments Nos. 24 and 26 together, when I hope to be more sympathetic. Essentially they appear to try to achieve the same objective; that is, to set out on the face of the Bill more detail about what should constitute good cause for not complying with the obligation to provide information —in particular, that violence, rape, incest and any other form of unlawful sexual intercourse should count as good cause. We have already said that where there has been rape or incest, or where the Secretary of State is satisfied on the evidence available that there has been a history of violence—I must repeat that his being satisfied that there has been a history of violence does not mean that he must have witness or that bruises must show but that it is a question of belief —or where the parent has a well-founded fear that seeking maintenance will put her or the child at risk of violence, then these will be accepted as good cause.
Both today and in Committee I listened carefully to everything that was said about the need to be more forthcoming about putting good cause on the face of the Bill. We understand the concerns that have been expressed. We have looked into the possibility of meeting those concerns but have concluded that it is not possible to frame a suitable amendment. There are a number of problems. Rape, incest and violence are criminal offences. It is possible that in making an administrative decision on good cause the Secretary of State might run the risk of it being said that he had come to an opinion that a criminal offence had taken place where there had been no conviction or where a trial NA as pending. A further difficulty is that in framing primary legislation the aim is to be precise. However, that means that there is a greater risk of the definition being too narrow and inflexible for our purposes.
We accept that this is a sensitive and difficult area. We must balance the need to protect the caring parent and her children where there is a genuine risk against the danger of wilful manipulation of the system to avoid the payment of maintenance. We do not wish to do anything that might increase the risks to the caring parent and child. I am grateful to the noble Lords for tabling the amendments. I do not believe that we are far apart on the issue. I also thank noble Lords who have spoken in the debate for their helpful comments. I propose that we should take away the amendments for further consideration to ascertain the best way forward. I hope that with that assurance the noble Earl will withdraw the amendment.
Earl Russell: My Lords, I thank my noble kinsman for that reply. I express my gratitude for the support that I have received from all quarters of the House. I wish to take up the point made by the noble and learned Lord, Lord Simon of Glaisdale. I agree that amendments should not try to enumerate all the causes. For that reason Amendment No. 26 states:
"prescribed circumstances shall include".
428
I hope that that meets his important point.
I listened with great care to the comments of the noble Lord, Lord Coleraine. I was not certain on which side he was speaking. It appeared that many of the points he made about practicalities were against the whole force of the Bill—
Lord Coleraine: My Lords, the noble Earl has kindly given way. I concede that the points that I made were to a large extent against the practicality of Clause 5 of the Bill.
Earl Russell: My Lords, I thank the noble Lord. His comment meets the point that I was making and I believe that I had read him correctly. It is difficult to work the procedure and that is one reason why we believe it to be bad.
I was grateful in particular for the intervention of the right reverend Prelate the Bishop of Guildford. My wife has done some work for a refuge for battered women. I have heard about the depth of the emotion involved but I am not sure that I can comprehend it. It is precisely for that reason that we believe that the detail must be spelt out on the face of the Bill. The area generates very deep fear. If that fear is not entirely satisfied women will not co-operate with the Bill. I entirely agree with the noble Lord, Lord Coleraine, about the impracticality of a procedure of telling the name sub rosa. That procedure was used and gave rise to the Staffordshire case on which I dwelt a moment ago.
I confess that I had intended to press the amendments to a Division. However, I warmly welcome the offer of further consideration. On the understanding that should that further consideration be unsympathetic I should be entitled to bring back the amendments and press them to a Division on Third Reading, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Long: My Lords, I beg to move that further consideration on Report be now adjourned until 25 minutes past 8 o'clock.
Moved accordingly, and, on Question, Motion agreed to.

Atomic Weapons Establishment Bill
7.26 p.m.
Brought from the Commons; read a first time, and to be printed.

Ports Bill
Brought from the Commons; read a first time, and to be printed.

Industrial Training Levy (Engineering Board) Order 1991
7.28 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater)The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater) rose to move, That the draft order laid before the House on 21st March be approved. [15th Report from the Joint Committee].
The noble Viscount said: My Lords, the proposals before your Lordships seek authority for the Engineering Industry Training Board to raise a levy on the employers in the engineering construction and steel erection industries to finance the running costs of the board and to fund a range of training initiatives, including a grants scheme. The proposals do not relate to engineering manufacturing as that part of the engineering industry will move to independent training arrangements around the middle of this year.
The basis of the proposals is a levy of 1.5 per cent. on the payroll of site employers in the industry, although no levy will be paid on the first £50,000, and a levy of 2 per cent. on all payments made by employers for sub-contract labour. Additionally there is a levy of 1 per cent. on the payroll of head office establishments with more than 30 employees. Those head offices which train satisfactorily will, however, be exempt from all but a small non-exemptible levy. Because of these provisions 40 per cent. of firms will pay no levy at all and a further 8 per cent. only a small amount towards the board's operating costs. The proposals have the support of the employers as required by the Industrial Training Act 1982 and have the full support of the board.
Your Lordships will know that the Government thought long and hard about their decision to retain statutory arrangements for these sectors of the EITB. In principle we believe that independent employer-led arrangements which have the full support of employers offer the best way forward for industrial training. In general the track record of compulsion through statutory levies in raising the quality and quantity of training is not a good one. However, we have retained the statutory principle in the case of this part of the industry because of strong support from employers. The engineering construction industry has particular characteristics which create peculiar problems for training. The mobile nature of its workforce, both geographically and between employers, together with the large scale use of sub-contract and self employed labour produce a unique set of circumstances in this sector of the engineering industry.
We consulted widely with the industry about the EITB. There was a widespread and strongly held view that independent arrangements should be set up for engineering manufacturing but that statutory arrangements needed to be retained for engineering construction.
We were persuaded to accept these proposals and intend laying an order before Parliament around the middle of the year which will remove engineering manufacturing from the scope of the EITB and define
430
the boundaries of engineering construction. At the same time the board will be renamed the Engineering Construction ITB to reflect this change.
We are concerned though to ensure that statutory burdens on firms are kept to a minimum and that firms which train appropriately are rewarded. To this end we have asked the new board to replace its head office exemption scheme by a voluntary code of practice based on the investors in people initiative, to raise the exclusion level for small firms and to review the effects of its grant scheme on training employers. My right honourable friend the Secretary of State will be looking to the new board to address these issues in 1991–92.
We intend to keep a close watching brief on the new board. Its powers to raise a levy will be exceptional, and the Government, like your Lordships, must be convinced that they are necessary to preserve the basis of training in the engineering construction industry. The Government have decided, because of the peculiar nature of the industry, to continue with a statutory board for the time being.
The Government continue to believe, as set out in the 1989 White Paper, that the most effective incentive for companies to train is a knowledge and understanding of the skill needs, not centralised regulation based on statutory powers.
I believe it is right for 1991 that the House should approve the proposals before it. I beg to move.
Moved, That the draft order laid before the House on 21st March be approved. [15th Report from the Joint Committee]. —(Viscount Ullswater.)
Baroness Turner of Camden: My Lords, I rise to thank the noble Viscount for explaining with his usual lucidity the meaning of the Industrial Training Levy (Engineering Board) Order now before your Lordships. As it stands, it is non-controversial because it is the product of consultation among all those involved.
However, I can hardly let this opportunity pass without expressing some regret from this side of the House that the EITB as originally constituted has ceased to play the statutory role which it once played. I made that point yesterday in the debate on unemployment, and I repeat it today. I believe that, with its grant and levy-raising powers, had the EITB not been in existence during the period in which it was in existence, a number of important initiatives in the industry would not have been taken. I am still anxious that those initiatives will not be pursued by the successor body.
I note that the new system is to be watched and I am glad about that. I am glad also that the Government have accepted, after due consideration, that the engineering construction industry is rather different and has special needs and requirements. For that reason, the grant and levy arrangements will continue to apply. There will be a new board, as I understand it, concerned only with the construction engineering industry in the near future. We shall all watch very carefully to see how that arrangement works.
Your Lordships will be aware that from this side of the House we wish to ensure that there is a good system of training in this very important industry. We

431
are concerned lest under the employer-led, voluntary system there may be a situation in which large employers will carry out their share of training but that other employers, who do not spend money on training, will poach those trained by other people. That situation existed widely before there were industrial training boards. We hope that we shall not see a return to that.
Having said that, as I said earlier, this is a non-controversial order. On those grounds, I offer no opposition from these Benches.
Earl Russell: My Lords, in the absence of my noble friend Lord Rochester, on behalf of the Liberal Democrat Benches, we offer no opposition to this measure.
Viscount Ullswater: My Lords, I thank the noble Baroness and the noble Earl for their support for the order. These proposals are particular to the engineering construction industry. They represent no change in the Government's view that independent, employer-led and employer-supported arrangements are preferable to compulsion. The engineering training authority, supported by employers in the engineering manufacturing industry, will now take forward the training initiatives for that sector of the industry. It has the full support of the employers whereas the EITB lacked that support.
The engineering construction industry is different from most if not all other industries and it needs to be treated accordingly, as I explained. I commend the order to the House.
On Question, Motion agreed to.
7.37 p.m.

Social Security (Overlapping Benefits) Amendment Regulations 1991
Earl Russell Earl Russell rose to move, That an humble Address be presented to Her Majesty praying that the order (S.I. 1991/547) be annulled.
The noble Earl said: My Lords, it's that man again! This is another consequence of the chaos in which the government programme has been thrown by the election for Eastbourne of my honourable friend Mr. Bellotti.
The concession extending child benefit—the extra pound for the first child—was extremely welcome. It cost £360 million gross. I believe that that is the correct figure although I shall be happy to be corrected if I am wrong. Before my noble kinsman says it for me, I accept that that must be paid for.
However, it seems to me that it is being paid for several times over. In the Budget, the Chancellor of the Exchequer saved £360 million—the same sum—by freezing the married couple's allowance. In our opinion, that is the right way to do it. However, I must confess to some regret that the freeze on child benefit lasted throughout the time that I had teenage children and the freeze on the married couple's allowance is introduced as soon as I had no dependent children. However, if my married couple's allowance is frozen
432
to subsidise the costs of bringing up my noble kinsman's daughters, that is entirely proper and is right in any country which cares about its posterity.
Also, there is the saving on statutory sick pay. That was £100 million reduced to £98 million because of the concession on small businesses. In this order there is a claw back of the £1 increase from any families claiming guardians' allowance, child special allowance, invalidity benefit, widows' benefit, retirement pension, severe disablement allowance and invalid care allowance. I believe that affects something over 200,000 families. I have heard no figure for the amount of savings resulting from these regulations. I should like to hear such a figure from the Minister. However, I cannot believe that the savings from these regulations are sufficiently significant to justify such a conspicuous piece of meanness.
However, we have not yet finished with the savings. There is also the freezing of one-parent benefit covering 1.5 million families. I believe that amounts to £6.8 million gross although it is difficult to calculate the net figure. Therefore I believe that the Government have overdone it. They do not need these regulations for the stated purpose because the cost of child benefit increase has already been met.
In addition, I cannot follow the logic of my noble kinsman and the Government. I do not see why, on the ground that they are overlapping, people should not receive both benefits. They overlap only in the sense that they are given to the same people. They are paid for different reasons. If people have two different and entirely logically separate reasons for receiving benefit, there may be a case for them receiving both. Child benefit is paid in respect of the child. As the Secretary of State repeated when he increased it, it is paid because of the cost of children. Invalidity benefit is paid in respect of illness; severe disablement allowance is paid in respect of the disability, and so forth.
I cannot see why, because the child costs the family more, it follows that the disability does not cost the family more. If the Government are saying that all families with children therefore should not receive disability benefits, that is a more far-reaching argument than I believe they are yet prepared to come forward to justify.
I cannot understand the logic by which, if one has two claims for benefit, one may receive only one of them. It does not make sense to me. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the order (S.I.1991/547) be annulled.—(Earl Russell.)
7.41 p.m.
Lord Carter: My Lords, I am grateful to the noble Earl for his Motion against the regulations. He began by saying, "It's that man again". I presume he was referring to the programme "ITMA". I believe both he and I are old enough to remember it, though I am not sure that the Minister is. However, I remind both the noble Earl and the Minister that there was a character in it called Mona Lott. Perhaps the Minister may wish to apply it to his noble kinsman.

433
I do not wish to add a great deal to what the noble Earl has already said. From time to time in the past we have discussed the increase of £1 a week in child benefit for the eldest child. I have made the point a number of times, and I do not apologise for repeating it. It produces a situation where the rich family with one child receives exactly the same increase in its total weekly income as the poor family just above benefit level with three or four children. To add to that injustice we now have this group, in excess of 200,000 families, who do not even see the increase in their weekly income because of this unfair and what I can only describe as miserly clawback. We read that the party opposite describes itself as "The party of the family" and speaks of a caring society; I wonder how it squares that with this kind of action.
The point regarding one-parent benefit which was frozen was well made by the noble Earl. The Secretary of State, Mr. Newton, justified the £1 extra benefit by saying:
"As the extra £l … will go to every family and will indeed be larger than the retail prices increase would have been in one-parent benefit—which is itself defined as an increase for the eldest eligible child—I decided that, on this occasion, it would not be right to make a separate increase in that benefit as well".—[Official Report, Commons, 27/2/91; col. 987–8.]
The freezing of the one-parent benefit is particularly unfair to those families who would also lose out from the clawing back of the extra £1. I am sure when the Minister replies he will say that it has always been done that way; the £1 has always been deducted from dependency allowances. But the increase due in October will not be subject to a clawback. The £1 will not be clawed back from the child dependency increase and other benefits, and the rates of income-related benefits will also be adjusted to enable all families to benefit in full from the rise in child benefit. If that can be done in October, why not in April? What is the justification for the difference in treatment on each occasion? I shall he interested to hear the Minister's reply.
7.45 p.m.
Lord Henley: My Lords, before I explain the purpose of the regulations that we are discussing, I should point out that they do not establish new principles or indeed do anything to break with the approach adopted by all governments since 1948 in relation to child dependency increases and child-related benefits. I stress that it is only child dependency increases and not child-related benefits. My noble kinsman seemed to take them on to invalidity benefits, but it is only if there are child dependency increases in those that they would be affected.
The regulations amend the overlapping benefits regulations which provide for adjustments between benefits where an individual is entitled to more than one benefit serving the same purpose at the same time. The amendment concerns the benefits payable in respect of children, such as guardian's allowance, and the increases of benefits such as invalidity benefit or widow's benefit which are payable where a beneficiary is supporting a child. The amendment provides for an
434
equivalent reduction of these child-related benefits where they are in payment for the only, elder or eldest child in respect of whom the £1 increase in child benefit has become payable since 8th April. The amendment secures the same result that would have been achieved by the operation of the normal formula used for the annual uprating of these increases and child-related benefits. The formula provides for any increase in child benefit to be taken into account when setting the new rates of child dependency increases and child-related benefits.
Since 1975 there has been a legislative requirement for an annual review of rates of benefit and provision has also been made for any increase in benefits for children to be adjusted to reflect any increase in child benefit.
In the course of reviewing the rates of benefits, my right honourable friend the Secretary of State is required to look at the rate of child dependency increases and also guardian's allowance and child's special allowance which are payable at the same rate as child dependency increases. He is also required to consider the rate of child benefit and if he decides that an increase in child benefit is appropriate, he is empowered to make a reduction in child dependency increases and child-related benefits.
The linkage between child benefit and benefits payable for children has been operated on the basis of formulae which enable an increase in child benefit to trigger a change in benefits payable for children. The current formula, which was first used by the last Labour Government in 1977, has applied continuously to the annual increases of benefit since 1980. It involves calculating what the child dependency increase would be if the general uprating percentage were applied and then deducting from that amount any cash increase in child benefit. The formula also applies to establishing the new rates of guardian's allowance and child's special allowance. It is therefore possible when setting these rates to reflect by the operation of the formula the combined effect of the uprating increase and any reduction considered to be appropriate.
The use of the formula has meant that in years which have seen no increase in child benefit, beneficiaries have had the full percentage rise in their child dependency increase. Equally, the formula achieves an intention which has been shared by all those responsible for the social security scheme since 1948. This common intention has been that increases of benefit to be paid to those supporting dependent children should take account of payments made for children on a universal basis whether such payments have been originally in the form of family allowances or subsequently child benefit. The formula makes it possible to adjust the constituent parts of overall child support.
The operation of the formula has been simple in practical terms up to now because, since 1978, there has been, on the one hand, a single rate of child benefit for all children and, on the other hand, one rate of long-term benefit increases for children and, until their abolition in 1984, one rate of short-term benefit increases for children. Since the legislation provides

435
for a single rate for benefits applicable to children, it has been a straightforward matter to increase that rate by the general uprating percentage and then to take off the actual amount of any increase in child benefit.
However, the creation of two rates of child benefit has raised a problem in implementing the formula because of the fact that the main legislation is currently framed in terms of a single rate of child depencdency increase. The £1 per week increase in child benefit for the only, elder or eldest child in a family from April this year while the rate of child benefit payable for the other children in a family remains uncharged creates a higher and a standard rate of child benefit. The increased amount of child benefit does not apply to all children and application of the uprating formula to establish the new rates of increases and benefits for children would necessitate the creation of two different rates for those benefits. However, such a reintroduction of different rates would require the amendment of main legislation and it was rot possible to achieve this by the time the new rates of benefit would become payable. Therefore we have adopted a different means of taking the increase in child benefit into account and thereby to achieve what would normally be the result of using the uprating formula.
As I have explained, the overlapping benefits adjustment that we have introduced is designed to secure exactly the same result as would have been achieved by the operation of the child dependency increase uprating formula. We consider that it secures a fair level of support for each child and achieves the aim of recognising the natural interdependence between payments available in respect of children. The effect of the regulations is that a beneficiary receiving both child benefit and a child dependency increase or a child related benefit will receive the same total amount of £17.95 per week in child support for each child whichever of the two rates of child benefit is in payment for each particular child.
The noble Lord, Lord Carter, asked why there is an adjustment on account of the April increase in child benefit but there will not be as regards the October increase announced by my right honourable friend the Chancellor of the Exchequer in the Budget. The October increase in child benefit has been specifically designed to give extra help to all families regardless of whether they are receiving other benefits. In addition, the adjustments take account of the April increase in child benefit and were part of the uprating formula for child dependency increases of benefit, guardian's allowance and the child's special allowance. As these benefits are not being increased in October, they are not relevant to the October increase in child benefit. I repeat that there is nothing sinister in these regulations. They are doing nothing new other than continuing exactly the same approach as has been adopted by all governments of whatever persuasion in relation to child dependency increases since 1948. Therefore, I hope that the noble Earl will feel able to withdraw his Prayer.
Lord Carter: My Lords, the noble Lord said that a clawbacl; will not take place because that factor was not taken into account when the child dependency
436
rates were last up-rated. Does that mean that it will not be taken into account when the benefits are up-rated next April?
Lord Henley: My Lords, when they are up-rated next April I believe that they will be considered in exactly the same way as they were this April. In other words, and as I have explained, the policy intention which has been in existence since 1948 will continue.
Earl Russell: My Lords, I apologise to my noble kinsman and the noble Lord, Lord Carter, for keeping them from their dinner. I thank my noble kinsman very warmly for that reply. It will need careful study. I shall go away and read it with great care. It seemed to add up to: "We have always done it this way". That is not really an answer. To these Benches the proposition that both Labour and Conservative Governments have both got it wrong is one that holds no terrors whatever. Nevertheless, I beg leave to withdraw my Motion.
Motion, by leave, withdrawn.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.52 to 8.25 p.m.]

Child Support Bill [H.L.]
Consideration of amendments on Report resumed on Clause 5.
Baroness Elles Baroness Elles moved Amendment No. 23:
Page 4, line 19, at end insert:
("(6A) Any person required by the Secretary of State to provide information under subsection (6) above shall be entitled to appeal against this requirement where that person has reasonable grounds for withholding that information and the circumstances of the case fall within those prescribed pursuant to subsection (7) below.").
The noble Baroness said: My Lords, I introduce this amendment with some considerable optimism in that for the first time we have an amendment which already has some sympathy for it. That sympathy was expressed by the noble and learned Lord, Lord Simon of Glaisdale. I hope that his intentions will have influence with my noble friend on the Front Bench.
The main consideration in presenting this amendment is to include the main principle that if discretion is used by an official we must give a right to the individual to appeal against the exercise of that discretion. That is a principle which in law and human rights noble Lords would be willing to accept. I am concerned with the principle and not so much with the wording of this amendment.
During the discussion in Committee on Clause 22 a great deal was said about failure to co-operate without good cause; a somewhat Orwellian phrase which reminded me of Big Brother. In fact what we are now faced with is that we have no acceptable grounds for failure to disclose information as required. They have not been spelt out. Presumably there will be regulations prescribing the grounds, albeit widely drawn because it has already been said that it will be

437
difficult—understandably difficult—to prescribe circumstances narrowly. When a definition is widely drawn it automatically leads to the fact that the officials who have to implement the regulations are given discretion in their implementation. The removal of Clause 22 and the absence of any penalty in the Bill, so far as I am aware, for the failure to provide information required may well result in further pressure—this is what many of us are afraid of—on the claimant in order to force the claimant to provide the information required under Clause 5.
I now refer to the report of the Public Accounts Committee, Session 1989–90. Under the heading on page vi, On the Department of Social Security's procedures for obtaining maintenance, paragraph (xi) states:
"We recommend, too, that the Department monitor the way in which this work is undertaken to ensure that the pressure on offices to achieve a substantial increase in maintenance recoveries does not lead to undue pressure being put on lone parents to co-operate in liable relatives work".
We must be aware that quite clearly there has been pressure because that comment would not have appeared in the report if it had not been based on evidence which was put before the committee.
Further, evidence has been sent to us from the Child Poverty Action Group (CPAG) which, as we all know, is a highly respected NGO that has been working in this field for many years. The group has put together examples of lone parents being put under undue pressure to co-operate in pursuing maintenance. Such examples were provided by the citizens' advice bureaux. I have with me a few selective examples. They cover the whole of the country; so it is not just one particular area or office where there may be some officials who have taken a different line from others.
Without taking too much of your Lordships' time, perhaps I may cite one or two examples, many of which have been adumbrated by noble Lords during today's debates. One example comes from the East Midlands. It concerns a divorced lone parent whose former husband visits her daily but refuses to give her his address. The income support payment has been stopped for the second time because the lone parent will not (or cannot) give the husband's address. A further example comes from Scotland. I have note of an extract from a letter which was sent by a local DSS officer to a lone parent on income support. It states:
"There may be changes soon in the law concerning maintenance for children".
It goes on to ask the lone parent to fill in the form,
"to help me decide what further action is needed".
A handwritten addition to the letter states:
"Please note, failure to reply may result in loss of benefit".
As I said, such examples have been sent to us by the CPAG and there are also further examples from other highly respected organisations, such as the National Council for One-Parent Families which deals in that area. Therefore, this is not a figment of the imagination; it is something which is actually happening, where a kind of pressure is being put on women for failure to provide the necessary information.
I believe that we have all recognised during the course of our debates on the Bill—and this applies to Members on all sides of the House—that this is a unique Bill. It deals with state benefit departments acting on information from claimants which directly affects not the claimant personally, but a third party; namely, the absent parent. That is the difficulty with the Bill. We have the state interfering in a relationship between two people who have been emotionally and financially tied for some time or even, perhaps, a short time. Nevertheless, it is state interference in a very delicate and dangerous area of relationships.
That is one of the difficulties with regard to providing information. The right reverend Prelate the Bishop of Guildford covered that aspect by saying that the vulnerability of women in this particular situation leads to enormous difficulties when we expect her—or sometimes him —to give the required information. Such refusal may be due to the fact that the woman does not have the information; or she may refuse to give it because she knows perfectly well that, as a result of giving it, she could find herself in a violent situation. Indeed those of us who have families, or who have friends with children, know only too well of such situations where perhaps the husband leaves home. The wife, being so anxious for a reconciliation in the hope that the husband will return, might hesitate to give the information believing that it could put pressure on the man and then prevent him —in her eyes, at any rate—from returning to the family home.
Of course we could go on discussing endless examples. However, the fact is that there are many such situations happening day by day in cities all over the country which show that the matter must be handled with extreme delicacy and great discretion. That means that the regulations which will be produced must also deal with this aspect of enabling the officer in charge to use his discretion. The latter point brings me back to my main principle: if discretion is used by an official, there must be a right of appeal for the claimant who finds herself (or himself) in the position of being pressurised by a particular official for failure to give the information required.
I make one further technical point. I hope that my noble friend the Minister who is to reply will be able to tell me something about the role of the child support officer. Is such an officer acting in the capacity of an adjudication officer or as an official? For example, if a claimant has an objection about the way in which a child support officer has acted, would an appeal go through that officer to a senior officer in the agency who would then act as an adjudication officer? Further, would it then be possible to appeal through that adjudication officer to a court which could, possibly, be the proposed child support appeal tribunal which I understand is included in some amendments on the Marshalled List?
In conclusion, I very much hope that noble Lords will agree that this is an essential protection of the rights of the subject. I should point out that it also acts as a form of monitoring on the acts of officials. Everyone knows about the excellent work which

439
officials carry out and the great sympathy which they show in the many cases with which they have to deal, some of which are very difficult. I believe that it would give them support if they knew that, if they took a wrong decision and did something which exceeded the bounds of normal conduct, there would be the right of appeal for the claimant. In addition, the provision would give the claimant a certain power and strength to be able to face the difficult problems involved in giving the required information. I beg to move.
8.30 p.m.
Lord Mishcon: My Lords, I do not think that the case for the amendment could have been better put. I do not intend to detract from what has been said. I should simply like to express my support for it.
Lord McGregor of Durris: My Lords, I wholly agree with the remarks made by the noble Lord, Lord Mishcon. I am also most grateful to the noble Baroness, Lady Elles, for tabling the amendment. I should like to say a few words in an attempt to general se the grounds upon which one might rest an objection to the principles of the Bill for which she wishes.o permit an appeal.
The Bill completely neglects the sensibilities of the women concerned. I believe that it ignores what have been traditional feelings of delicacy and modesty in respect.of invading the intimacies of the ways in which our fellow citizens exercise their reproductive powers. I have a very strong objection to a situation in which officials can dabble their fingers in—and I am using a phrase of Virginia Woolf—the stuff of other people's souls.
In my view, the point can be generalised in the way in which Isaiah Berlin deals with certain aspects of human rights. I shall paraphrase his words. He says that all Inen—I believe that he includes womenkind in that word—whatever power governs them, have an absolute right to refuse to behave inhumanly and that there are frontiers within which men and women should be inviolable. Those frontiers are defined in terms of rules so long and widely accepted that their observance has entered into the very conception of what it s to be a normal human being. He also says that normal human beings could not break these rules easily without a qualm of revulsion.
I feel more than a qualm of revulsion for a Bill which gives servants of the state powers to inquire into matters in respect of which women should be inviolable. We should not permit the agency to cross this particular frontier. That is a general principle, the breach of which in the Bill I found profoundly shocking. I strongly support what the noble Baroness, Lady Elles, says in respect of appeals. I hope the Government will accept what the noble and learned Lord, Lard Simon of Glaisdale, said in respect of another amendment: that a good cause stated in writing would be that "These inquiries offend against my sensibilities".
Lord Henley: I deal first with one point made by my noble friend Lady Elles. I should like to say a word or two about the current system of income support. Under the current arrangements, the payment of
440
income support does not depend on co-operation in seeking maintenance. If my noble friend knows of any cases where this appears to have happened, I will be happy to investigate them and will be the first to do so.
Turning to the amendment itself, it seeks to provide a right of appeal under the obligation imposed on a caring parent under Clause 5. We feel there is no need for a right of appeal in such circumstances. Clause 5 imposes an obligation to provide information but does not provide for any penalty or sanction if that caring parent refuses on whatever ground to comply with the obligation. If a caring parent receiving income support, family credit or any other prescribed benefit refuses unreasonably to co-operate in obtaining maintenance, we have provided for that person's benefit to be reduced under the former Clause 22. That benefit reduction would have carried with it a right of appeal to a social security appeals tribunal which would have considered all the relevant facts of the appeal, including any refusal to provide information. That clause was removed at Committee stage.
As the proposed benefit reduction does not form part of the Bill we do not feel there is a need for the associated appeal rights. One might ask why we feel there must continue to be an obligation to provide information under Clause 5 when there is nothing we can do if the caring parent simply refuses to co-operate. We still believe that Clause 5 serves a useful purpose even without the benefit reduction in cases where there is no good cause, as set out in the previous Clause 22. It makes clear the Government's view that a caring parent should also do what she can to help obtain maintenance from the absent parent. It reminds her of her responsibility for her children and also gives my right honourable friend the Secretary of State authority to take the initiative in seeking maintenance.
I turn to the question raised by my noble friend about the role of the child support officer. The child support officer is not an adjudication officer. When considering questions of whether there is good cause he merely forms an opinion.
Lord Stoddart of Swindon: Before the noble Lord, Lord Henley, leaves the first point, do I understand him to say that because Clause 22 has been removed and there is no penalty for refusing to comply with Clause 5, it is not the Government's intention to bring back Clause 22 at any stage of the Bill? It is important to know the answer to that question. If the Government intend to bring back Clause 22, is the noble Lord saying that the amendment by his noble friend Lady Elles is necessary for the purpose of the Bill? That is what he seems to be saying, and it leaves the Committee in a cleft stick or on the horns of a dilemma.
8.45 p.m.
Lord Henley: My Lords, the noble Lord is an old hand both in this House (though not as old a hand as I am) and in another place. He knows very well the convention that we do not speculate as to what another place might do with the Bill. What I will say is that if another place should decide to bring back

441
Clause 22, which contains a sanction, there would be a need for a right of appeal. All I am saying is that we are discussing the Bill as it was amended by your Lordships' House at Committee stage. At the moment there is no benefit sanction and therefore I see no need for an appeal. But I cannot speculate on what another place might do.
Lord Simon of Glaisdale: My Lords, perhaps the noble Lord would allow me to intervene. He said there was no need for an appeal. He has said that any appeal would be merely to an administrative tribunal. Does he think that is equivalent to an appeal to a court when the question to be decided is one of good cause or reasonableness?
Lord Henley: My Lords, I did not say that. I said that under Clause 22 there was a right of appeal and that appeal would go to a social security appeals tribunal. The noble and learned Lord knows perfectly well that with some regularity there are appeals on points of law to the commissioner from social security appeals tribunals.
I told my noble friend that the child support officer is not an adjudication officer when considering the question whether or not there is good cause and he merely forms an opinion. I go on to say that when there was a Clause 22 in the Bill (at the moment there is not) the benefit decision would have been taken by an adjudication officer. I hope I have satisfied my noble and learned friend that as the Bill stands at the moment there is no need for an appeal. There is no benefit sanction in Clause 5, and therefore an appeal process would not be necessary. In the light of that, I hope my noble friend will accept there is little point in having such a right and she will feel able to withdraw her amendment.
Lord Mishcon: Before the noble Lord the Minister sits down, I wonder whether he and the House would permit me to add something. As I was so brief before, perhaps I deserve a little recompense. I am afraid that so far I have not understood the Minister's reasoning. I will tell him why that is so to give him an opportunity of dealing with my remarks with his usual courtesy.
At the present moment under the Bill and before we reach the stage of the amendment moved by the noble Baroness, Lady Elles, there is a firm duty imposed on an applicant. The words are mandatory. They mean that if an officer decides somebody has in his view unreasonably failed to carry out a duty imposed upon her under the Bill that officer will be entitled to make a note on the records that the person has unreasonably refused to give the information which under the Bill she is required to do. As I understood the noble Baroness in moving her amendment so eloquently, she asked that there should be a right of appeal to some superior authority from that officer who could say it was wrong to put on the record that the applicant did not obey the injunction under the Bill and she was quite reasonable having regard to her grounds in not doing so. Therefore, with great respect, the Minister is wrong when he says that the position under the Bill at the moment is that there is no need for an appeal
442
because there is no sanction. The sanction will be that there is something on the record which is contrary to the interests of the applicant and her character.
Lord Henley: My Lords, I do not accept what the noble Lord said. All I have said is that, as it stands, Clause 5 imposes an obligation, but I stressed that there is nothing that we can do if the caring parent refuses to co-operate. With no Clause 22, there is no need for an appeal. There is only need for an appeal if there is a Clause 22. If there should be a Clause 22, that may be the time to consider whether an appeal process is necessary. I do not accept what the noble Lord said. Without Clause 22 there is no need for an appeal.
Lord Mishcon: My Lords, I do not want to be unduly persistent because that would be rude to the Minister and to the House. The Minister must realise that he has not answered the point that I made. Does he agree that the officer would be entitled to put on the record that the applicant has not carried out the duty imposed on her under the Act? That is something contrary to her interests and to her good character. It is that against which an appeal should lie. Will the Minister please answer the question?
Lord Henley: My Lords, with all due respect, I answered the question. I stressed that if the caring parent refused to comply with the obligation, it would have no effect on her. This is not the right place for an appeal. There should be an appeal only if there is a benefit sanction. I am sure that the noble Lord will accept that.
Baroness Elles: My Lords, perhaps I may intervene in this interesting exchange of views between the noble Lord, Lord Mishcon, and my noble friend the Minister. I disagree with my noble friend. I do not believe that he has studied subsections (6) and (7) very carefully. We have spent a considerable time discussing subsection (6) (b) which states that a person under a duty imposed by subsection (1) shall,
"comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information that he requires".
The person is under a duty to comply. We do not know what will be in the regulations.
Those of us who from time to time have had to look at social security Acts, whether they date from the 1970s or the 1980s, will be aware that in the regulations there is always a clause which allows for disentitlement or disallowance in certain cases. One of the problems with the Bill—I understand to some extent why—is that we do not know what will be included in the regulations. We do not know that there will not be a disentitlement to income support in certain circumstances where a claimant refuses to give certain information for one reason or another. We have only to look at subsection (7) which provides:
"The obligation to provide information which is imposed by subsection (6) shall not apply in such circumstances as may be prescribed".
We do not know what those circumstances are. We have not been told what they are. We do not know

443
whether sanctions will be put into the regulations. We have referred to "circumstances", but what will be prescribed?
I am sorry to say to my noble friend that I disapprove of the way he has answered the amendment because a claimant should have the right to be able to make an appeal. That is essential. During this afternoon we have discussed the situations that women especially find themselves in. A Government who pretend to be, and nearly always are, fair and show human understanding and humanity will be slipping in their standards if they do not allow an appeal in this case. I am sorry to say that, but I feel strongly that this is one amendment that could have been considered fairly, especially in the light of the total ignorance in which the Chamber is being kept as to the circumstances which will be prescribed and the regulations which will be adopted. Having said that, of course I have no option but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 24 not moved.]
Lord Carter Lord Carter moved Amendment No. 25:
Page 4, line 22, at end insert:
("(aa) shall not apply where the Secretary of State is satisfied that the person to whom it would otherwise apply had reached an understanding with the absent parent that they would not be asked to contribute to I he upkeep of the child, and").
The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendment No. 27. This is a matter which has been brought to my attention. The aim of the amendment is to ensure that where a child is born before the Act becomes law and the parents have come to an understanding that the father will not contribute financially to the upkeep of the child, the mother should not be obliged to give details of the father.
The cases with which the amendment deals are those where the parents were not married, and the mother, finding herself pregnant, wished to continue with the pregnancy although the father felt that he could not take that responsibility at that time. When making her decision to continue with the pregnancy, the mother did not feel it right to call upon the father for financial support. We have all known of teenage pregnancies where that has been the case.
In such cases the mother will feel that she is breaking an agreement if she becomes unemployed and is called upon to provide information for the agency to enable it to track down the father. Until the Act is in force, the mother will be acting within her rights to come to such an agreement with the father. Without the amendment, the Act, in effect, will have a retrospective effect. The mother's agreement with the father will become invalid as a result of the Act. Although, as we are aware, she will not now lose benefit if she does not co-operate, she might find herself having to face difficult interviews with the agency which might upset herself and her children. As I said, she would have to break an agreement that had been reached with the father before the Act became
444
law. The wording of the amendment may not be perfect, but the point is an important one which should be taken into account. I beg to move.
Earl Russell: My Lords, on behalf of these Benches I offer our support to the amendment. It is a sensible and practical proposal. The noble Lord, Lord Carter, is right about the retrospective effect of the clause. When I had just arrived here, I remember listening to the noble Earl, Lord Halsbury, who said that the Chamber did not like retrospective legislation. That is true and should be true.
As it happens, when the Bill was first published I had occasion to rearrange a tutorial to find the time to be here. As a result, I fell briefly into conversation about the Bill. I discovered that the pupil concerned was a divorced, single parent in precisely the position described by the noble Lord, Lord Carter. She said that were her own arrangements to be retrospectively upset it would cause her considerable dismay. I do not believe that she is the only case.
Lord Henley: My Lords, the noble Lord, Lord Carter, said that the wording of the amendment was not perfect. As I shall show, it is defective in some ways. I am not entirely sure of the noble Lord's intentions.
The amendments seek to remove the obligation to provide information imposed by subsection (6) of this clause where the Secretary of State is satisfied that the parents of a child have reached an agreement for the absent parent not to pay maintenance for the child provided the child was born before April 1992. There are several interested parties where child maintenance is an issue. The parents clearly have an interest and so does the child. Indeed, as we have often said, the interests of the child must come first. Where the caring parent is in receipt of income support, family credit or any other prescribed benefit, the taxpayer also has an interest, as the amount of benefit is affected by any maintenance paid.
Is it acceptable that parents should be able to agree that the absent parent should not pay maintenance, even though he may well be able to afford to do so? It may be acceptable to the absent parent. The caring parent may not gain anything in the short-term from the payment of maintenance if she is receiving income support (but not if she is receiving family credit or the proposed disability working allowance), although in the longer term both she and her children could lose out. Certainly it is unacceptable to taxpayers, many of whom have their own children to support and who would argue that it is wrong to expect them to support other people's children as well merely because the parents decide between themselves that maintenance should not be paid; and if the amendment is accepted this would increase the risk of collusion between the parents to avoid the payment of maintenance. There is also the practical problem of how the Secretary of State is to be satisfied that a private agreement genuinely exists if the caring parent is unwilling to give any information about the absent parent.
It could be argued that placing a time-limit on when paragraph (aa) should apply gets over these problems, as it is accepted that once Clause 5 and the

445
maintenance formula become effective then parents should not be able to reach these private agreements. However, even if one accepts that existing private agreement not to pay maintenance should take precedence over an absent parent's duty to pay maintenance if he can afford to do so, and I do not accept that, Amendments Nos. 25 and 27 mean that the proposed exemption will apply to any child born before April 1992, regardless of when the parents separate. So we could have a situation where a child is born in March 1992, his parents separate in 2002 when he is 10 and because they have agreed that the absent parent should not pay maintenance the child support agency will not be able to pursue maintenance. I cannot believe that this is what the noble Lord had in mind in these amendments. In view of all this, I hope that he will feel able to withdraw his amendment.
9 p.m.
Lord Mishcon: My Lords, before the Minister sits down, may I ask him to remember so far as he possibly can at the next stage of the Bill that he used the words —I hope I quote him accurately —"We have all agreed that the interests of the child under this Bill must come first"? Is that an accurate record of what he said? If it is an accurate record, will he remember it at Third Reading when an amendment stating that the interests of the child under this Bill must come first will undoubtedly be moved?
Lord Henley: My Lords, the noble Lord is as wily as ever and is trying to box me into a corner so as to cause my noble and learned friend some problems. The mere fact that I used those words at the Dispatch Box does not necessarily mean, as the noble Lord will well know, that they are suitable words for the Bill.
Lord Carter: My Lords, it is all rather extraordinary. It was only about an hour or two ago that the noble Lord got cross with me when I made that point. I shall look at Hansard to see what he said, but according to my memory he said, "I should make it clear to the noble Lord, Lord Carter, that it is not the intention of the Bill that the welfare of the child should be paramount". He seems to have changed his mind in the last two hours.
Lord Henley: My Lords, this is Report stage, but I hope I did not say that. I can check Hansard tomorrow and make sure that that is correct.
Lord Carter: My Lords, let us all read Hansard tomorrow. It will make some extremely interesting reading. The wording of the amendment was not intended to produce the result that the noble Lord gave as an example of the parents with the child born in March 1992. I said that the cases with which this amendment would deal were where the parents were not married, and the mother, on finding herself pregnant, wished to continue with the pregnancy, whereas the father felt he could not take that responsibility at that time. That was the intention. If we could get the wording of the amendment correct it would avoid the retrospective effect that the Act will have on these pregnancies.
446
It seems that we cannot change the mind of the Government at this time, but I reserve the right to come back at Third Reading on this point because we have not yet had the answer that we should have in the cases I have described. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 26 and 27 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 28:
Leave out Clause 6 and insert the following new clause:
("Right of child to apply for assessment
—(1) A child, where the Secretary of State is satisfied that the child has sufficient understanding, may apply to the Secretary of State for maintenance assessment to be made with respect to him if no such application has been made by a person who is, with respect to that child, a person with care.
(2) Subsection (1) does not apply in any case where section 5 applies.
(3) Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care, the absent parent with respect to whom the assessment was made or the child concerned applies to him under this subsection, arrange for—

(a) the collection of the child support maintenance payable in accordance with the assessment;

(b) the enforcement of the obligation to pay child support maintenance in accordance with the assessment.

(4) Where the application under subsection (3) for the enforcement of the obligation mentioned in subsection (3) (b) authorises the Secretary of State to take steps to enforce that obligation whenever he considers it necessary to do so, the Secretary of State may act accordingly.
(5) Where a child has asked the Secretary of State to proceed under this section, the person with care of the child shall, so far as that person reasonably can—

(a) give the Secretary of State such information as the
Secretary of State considers necessary to enable—

(i) the absent parent to be traced (where that is necessary);

(ii) the amount of child support maintenance payable by the absent parent; and

(b) in particular, comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information that he requires.

(6) The child who has made the application (but not the person having care of him) may at any time request the Secretary of State to cease acting under this section (but subject to any regulations made under subsection (8)).
(7) The obligation to provide information which is imposed by subsection (5)—

(a) shall not apply in such circumstances as may be prescribed by the Secretary of State; and

(b) may, in such circumstances as may be so prescribed, be waived by the Secretary of State.

(8) The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.").
The noble Lord said: My Lords, I can take this shortly. At Second Reading I asked the noble and learned Lord the Lord Chancellor a question. We were providing in the Bill that Scotland should retain a procedure under which a child could make an application under this legislation. I asked why Scotland, and not England and Wales. Understandably, because there were a number of questions asked at Second Reading, the noble and learned Lord did not have time to answer that

447
question, but he answered it at the Committee stage when an amendment in precisely these terms was put down.
The noble and learned Lord's answer was—and I am paraphrasing it; I hope he thinks I do it fairly—that there were differences in procedure between Scotland and south of the Border; that that had been so for a long time; that what was suitable for Scotland might not necessarily be suitable south of the Border; and that this Bill was not meant in any event to be a Bill amending matrimonial law. That was much better done
by a matrimonial Bill if it were to be done at all. He also dealt perfectly fairly with the way in which this was utilised in Scotland, and told us that it was rarely used by younger children and was mostly used by those IA ho were having the benefit of higher education.
All those replies are intelligible but they do not go to the root of the matter. If a Scottish child has that right, then I would hope that if it had a benefit, children south of the Border should have it. If on the other hand it is not utilised at all and is of no real benefit, then one wonders why in this Bill one has to go to the special trouble of seeing that Scotland retains it and that Scottish children have the benefit of it.
I would ask the noble and learned Lord to consider, by moving this amendment at this stage, whether it would riot be a good idea, without in any way harming matrimonial law reform, that we take advantage of the opportunity of giving children on both sides of the Border precisely the same rights—and if it is a worthless right, then why take the trouble to retain it under this Bill? We would be able to have a little bit of uniformity where uniformity could be useful. That is why I have brought this amendment forward at this stage. I beg to move.
Earl Russell: My Lords, we need not go down the road of arguing a case for uniformity between England and Scotland. Differences between the legal systems of the countries are long-standing, deep and a matter of national pride. I do not think the case for this amendment rests on a case for uniformity between those two countries: it rests on the fact that it meets a real need. It is proverbial that to lose one parent might happen to anyone but to lose two savours of carelessness. Equally to quarrel with two parents savours of carelessness. But carelessness has happened before and it will happen again. There may be times when fie only way the child is going to get maintenance is through the amendment which the noble Lard, Lord Mishcon, has moved. There may not be very many of those cases but they are entitled to our cansideration. I support the amendment.
The Lord Chancellor: My Lords, the remarks that I made earlier in the proceedings have been fairly mentioned by the noble Lord, Lord Mishcon. Therefore I need not repeat them. Since we last discussed this matter I have given it some further thought. I remain of the view that this Bill is not a vehicle for a change of this kind. As I sought to explain, at present in Scotland girls of 12 and over and boys of 14 and over may themselves seek aliment from
448
a parent. They are minors in Scottish nomenclature. Children under those respective ages are described as pupils and they do not have that right.
In England and Wales that right generally vests in the parent or guardian of the child or the person who has custody of him. I believe that answers the point made by the noble Earl. This amendment would overturn both approaches by allowing a child of "sufficient understanding" to apply for a formula award whether or not the child is a "qualifying child" in the terms of the Bill. I am not sure whether that effect was necessarily intended. It may be a detail of the amendment which has still to be considered.
As I explained in Committee, this Bill is intended to improve the assessment, collection and enforcement of maintenance for children. That apart, our intention is to leave the structure of family law in both jurisdictions as undisturbed as possible. As I have already said, we do not believe that this Bill is a proper vehicle for conferring new rights on children in Scotland and in England and Wales that are different in principle from their rights of action at the moment. Accordingly we have followed the established principles of each jurisdiction in limiting child applications in Scotland to minors—that is, those presently able to apply to the courts there—and in England and Wales by excluding child applicants.
If such fundamental changes as this amendment would cause are to be made in either or both jurisdictions, that could only follow a very thorough review of the matter. In my view it should be a general reform covering applications to the courts as well as through the agency. We do not wish to introduce unnecessary subtleties into the law. Why should the general principle about the extent to which a child can make applications not be a general rule, rather than state that in a particular type of child maintenance application a child can apply if he is of "sufficient understanding" but in all other cases he must be 18 years-old? That would seem to introduce an anomaly into the general law. I believe it was the noble and learned Lord, Lord Devlin, who said that a system that cannot demonstrate reasonable logicality is unlikely to survive. The more illogicalities and unprincipled distinctions there are, the more difficult it is for the legal system to be regarded as such.
Indeed one of the peculiar if unlooked for effects of this amendment is that applications for additional awards would be bound by different rules to those rules which apply in respect of the formula applications. We have considerable doubts as regards the practicality of the amendment. It bases the test of standing or entitlement to apply on whether a child has "sufficient understanding". That may be a perfectly reasonable provision when considering whether a child's views should be taken into account, but to make that a test of whether a child can apply for an award would be extremely difficult. Until the child applies and until the application is entertained, there is no machinery for deciding that matter. It is an awkward kind of test to use as the initiating test for a legal process. At the very least to establish whether a

449
child is of "sufficient understanding" would require interviewing the child and other measures. That would have to take place before the action was competent.
There is concern that, with the latitude that such a broad test would give, a parent with care might for example attempt to use even quite a young child to apply for maintenance rather than do it himself, perhaps as a way of deflecting or reducing the other parent's expected hostility.
I should like to mention one aspect of this question which is of a general nature. Those who have experience in this field, as many of your Lordships have, realise the danger of doing anything which makes children pawns in disputes between their parents, setting them up to do what the parents would not be willing to do themselves.
As I mentioned earlier, the amendment is technically defective because it would appear to allow children who are not qualifying children to seek a formula award. I do not believe that I need to go into that aspect.
I strongly submit to your Lordships that it is a sound principle in preparing legislation of this kind to follow the general principles of the legal systems affected by the legislation in respect of standing to sue, or title to sue or whatever is the appropriate phrase. Accordingly, I hope that in the light of those observations the noble Lord may feel able to withdraw his amendment.
The Earl of Kinnoull: My Lords, before the noble Lord, Lord Mishcon, decides what he wishes to do perhaps I may mention the fact that he described the right in Scotland as a worthless right. Can the noble and learned Lord the Lord Chancellor say whether in his view it is a worthless right? I am sure that it is not. Secondly, can he say whether there has been any recent application that has proven the case that it is of use in Scotland?
The Lord Chancellor: My Lords, the position in Scotland, as I explained on the previous occasion, is that the right applies to older children as well as to younger children. So far as I know, extremely little use is made of it but such use as is made of it is in respect of the older children. In the Bill the situation in respect of older children is different. Therefore, in so far as the right exists in Scotland it is not in respect of younger children, which is the area in which the test would be important in this case, that the right has proved valuable.
Lord Mishcon: My Lords, so that there should be no misapprehension as to what I thought I said, perhaps I may make abundantly clear what I was trying to put over. It is this. If it was a worthless right in Scotland, why take the trouble to legislate to continue with it? If it was a worthwhile right, why should not children south of the Border enjoy it? The noble Earl is kind enough to nod his head, presumably as an intimation that I have now made myself clear. I am sorry if I did not do so before.
The noble and learned Lord has correctly pointed out a technical slip in the amendment which I had not
450
noticed before and which I now recognise. He dealt with it perfectly fairly on the basis of principle and not on the basis of any technicality.
I still find it difficult to understand why the question that I have just put, because of the noble Earl's intervention, does not still apply. However, there is no point in pursuing the matter. The noble and learned Lord is very powerfully in charge of legislation which deals with matrimonial affairs. If he takes the view that it is inappropriate in a Bill of this kind to deal with the matters that I raised, only because of Clause 6 of the Bill, I do not believe that it would be worthwhile to press the matter further. We have noted what the noble and learned Lord has said and I ask leave to withdraw this particular amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Clause 7 [Role of the courts with respect to maintenance for children]:
Lord Mishcon Lord Mishcon moved Amendment No. 29
Page 6, line 15, at end insert:
("()This section shall not prevent the court from exercising any power which it has to make a maintenance order in relation to a child if the order is made as part of a final order in ancillary relief proceedings in which capital is provided for housing the dependent children.").)
The noble Lord said: My Lords, I should like to express my regret that the noble Lord, Lord Meston, is not in his place because he is a powerful advocate when it comes to dealing with procedural matters in divorce proceedings. That is one of the questions which is raised by the amendment.
Perhaps I may remind the House that we dealt with the matter at Committee stage. It is customary and very useful in matrimonial proceedings that where there is a family home it forms part of a bargain which the court is usually happy to sanction. The matrimonial home goes into the settlement. In the normal case the children stay there with their mother. That means that their security is not further ruined. It is sufficiently damaging that one parent has presumably left that matrimonial home. At least there is the security that the bedroom that the children know, which was their bedroom, is still their bedroom and that the family home is still their home.
It is customary for orders of that kind to be made where a father, for example, who has an interest in the equity of the house transfers that to the mother and, as a result, the maintenance that he is required to pay both to the wife and to the children is lessened because of that arrangement, which the court puts into effect by way of an order. Those orders have a certain name with which I need not weary the House. I merely recall the fact that they have a name so that the House realises that they are fairly common orders for the court to make and orders that the court encourages.
The worry of the noble Lord, Lord Meston, and I —others participated in the worry—was that there did not seem to be any provision whereby, if you adopted formulae which were fairly inflexible, you could take into account the fact that a father had transferred his interest in the equity to the mother or into trust for the benefit of the children, or whatever course might have been adopted. That would be discouraged if the Bill

451
became an Act and a very desirable social measure, which is usually taken in those cases where it is possib e, would be removed. We therefore regretted it and showed our regret by putting down amendments which are in similar terms to that which I now move, while speaking also to Amendment No. 34.
When we put forward our case the noble and learned Lord the Lord Chancellor listened to it with some sympathy, but could not agree with it because he said that there were two aspects that he wanted the House to consider. Where there was a transfer of properly the award to the children would be reduced to reflect the absent parent's loss of that property. He said that if the house goes to the caring parent and the children it will reduce their housing costs and that, in turn, will emphasise the reduction in the award which will be payable under the formula. In other words, the parent will realise that that is the fact and this beneficial transfer of property—the family home—will therefore take place.
The organisation that looks after lone parents is very interested in the Lord Chancellor's reply and respectfully disagrees with it for a statistical reason which I shall now give. I am sure that the noble and learned Lord will take it into account. Recent research which has been funded by Rowntree, based on 4,000 cases and undertaken by the Family and Community Dispute Research Centre at the University of Newcastle, shows that most lone parents who take over the family home have high costs to meet as they take over a mortgage which was formerly paid from two or one-and-a-half incomes. The housing costs of the majority of those lone parents were increased, not decreased, by the property transfer. The effect of that aspect of the transfer would therefore be to increase the maintenance award rather than to decrease it.
The noble and learned Lord the Lord Chancellor also claimed that the maintenance awarded would be reduced in the sense that the absent parent's housing costs are taken into account in working out maintenance. Again, that argument was looked at by that worthy organisation which is so concerned about the matter. It says in reply that while there would be some reduction in the award through this mechanism, it would not be sufficient. In addition, some absent parents may find that they are unable to take out mortgages as they will have no capital. Others will find that the reduction in the award does not correspond to the increased payments necessary to buy a house without capital. The research points out that the White Paper gives an example of a case of property transfer in example 7. The home that is transferred is worth £40,000 in equity. Initially the father rents a property and pays £35 rent and £64 maintenance. However. when he buys a property his housing costs increase by £55 a week to £90, but his maintenance is reduced by only £27 a week to £37. If it is realised by absent fathers that they will still be paying considerable weekly cash maintenance payments, as well as losing their equity, there will be resistance to property transfers.
The noble and learned Lord made one other point in answer to the amendment. He said that it would lead to an increase in benefit payments because lone
452
parents would receive lower maintenance awards and that would not be fair to taxpayers, many of whom do not own houses. The organisation says, "We have considered that carefully". It points out, first, that where a property transfer leads to lower housing costs for the lone parent, that would reduce benefit payments.
Secondly, they believe that the unamended Bill, if not amended by these provisions, would lead to fewer property transfers and therefore more calls on local authority provision and to more homelessness. That in itself would lead to a greater burden on taxpayers. At present the national total of council housing is shrinking at a rate of 140,000 units a year. At the same time homelessness and the use of crisis accommodation would cause further disruption for the children of the family who would already be dealing with the effects of the relationship breakdown of the parents.
It is true that overall the children of divorced parents are already disadvantaged in terms of housing tenure. Research carried out by the Department of Environment labour force survey in 1986 indicates that whereas between 70 per cent. and 76 per cent. of married parents are owner occupiers, depending on age, only 21 per cent. to 45 per cent. of divorced lone parents are owner occupiers depending on age. I am indebted to that worthy organisation for briefing me as they may have done other Members of your Lordships' House so completely with regard to the answers that the noble and learned Lord the Lord Chancellor gave on the last occasion. I hope that this further anxiety of this organisation, which is expressed too by other organisations, will make the noble and learned Lord think again about these amendments and agree to them. I beg to move.
9.30 p.m.
The Lord Chancellor: My Lords, the group of amendments allows the court or the agency to adjust the amount of maintenance which the formula would otherwise produce in certain circumstances. When similar amendments were discussed in Committee, as the noble Lord said, the anxiety underlying them was explained as, first, a wish to achieve fairness for an absent parent which some noble Lords believed would not be achieved if the formula were applied in these cases without some discretion or modification; and, secondly, to allow the parents flexibility in settling financial arrangements on divorce including securing a home for the children.
I explained then—and I shall make some comment on the responses that the noble Lord has made—that the Government believe that the formula will produce a fair result without such amendments, and that it will be sufficiently flexible as it stands to take reasonable account of property transfer, and in particular the provision of a home for the children.
The examples given by the noble Lord, Lord Mishcon, provided to him by the organisation from which he obtained information, suggest that there is a flexibility in the formula. For example, in the first circumstance that he mentioned there had been a transfer of a substantial mortgage in addition to a transfer of equity in the house. The arrangement was

453
that the caring parent should pay the mortgage instalments. If that is correct the formula will take account of that situation. The absent parent will not have a mortgage responsibility to meet and therefore there will be a reduction in his expenditure. The general consequence will be that that factor will tend to increase the payment for maintenance that he must make. The second example illustrated the opposite circumstance and again the formula will broadly produce the right result.
There is no question of the matter being exact in every case; a good deal depends on the way in which the parties arrange their affairs. I repeat, that one of the difficulties now faced by property owners on divorce is the great uncertainty about the final arrangements. No clear rule is laid down about what the courts will do. I have received more than one letter from Members of Parliament raising questions about that difficulty. On balance, the letters suggest that the constituents believe that the courts are too hard on husbands and that they penalise them in the settlement and in the transfer of the order to too great an extent.
One of the great advantages of the formula is that when one knows the circumstances one will know the exact situation. The transfer of valuable house property in favour of the caring parent and children will reduce their expenses. The replacement of those assets for the husband to give him a place in which to live will increase his costs and reduce the amount that he will have to pay. Therefore the formula will result in the right balance. If, on the other hand, he retains the property and the wife and children must incur house costs in order to set themselves up, his housing costs may be reduced to that extent depending on the size of the mortgage which must always be taken into account. As a result he will have to pay more under the formula and that will help to compensate for the additional housing costs which the circumstance gives to the wife and children.
The Government believe that the formula as at present constructed should already produce a fair amount of maintenance. Any attempt to take special further account of property transfers would often result in double counting and would be unfair to the child and to the caring parent. I should also stress that Amendment No. 29 would severely erode a major objective of the Bill; namely, the provision of a certain and predictable award which cannot be attacked as being unfair or being a result of a bias on the part of the court either for or against husbands and wives. The Government believe that it is right that where children are concerned awards of maintenance should be consistent and predictable. A main purpose of the formula is to achieve that.
The matters which the noble Lord raised are obviously rather detailed. I tried to follow them as he put them to me but I shall study further what he said to see whether I missed any matters. I believe that I followed the general thrust of what he was saying. At present I commend the provisions as they are without the amendment. I shall look carefully at what the noble Lord said as a result of the communications
454
which he has received. I shall take account of those and shall see whether anything further needs to be done.
Lord Mishcon: My Lords, I am most grateful to the noble and learned Lord for his last remarks. I intend to make only a few concluding remarks.
The noble and learned Lord mentioned people writing to their Members of Parliament and Members of Parliament had passed on those letters to him. Most noble Lords will agree that husbands who are content with an order of the court do not write to their Members of Parliament to say so. Only those with a grievance do so. I should be very surprised if any letters reach the noble and learned Lord which praise the court or express contentment with a situation.
The other point which I wish to make—and I know that the noble and learned Lord will not think it unfair —is that so often we hear from those putting forward legislation, as we on this side of the House would want to say if we were putting forward legislation, that flexibility is so important because circumstances vary. It is rather strange to hear the defence, "We cannot be flexible because we must be certain and there must be the certainty of the formula". It seems to me that that does not amount to a consistent argument in regard to legislation especially when, as I understand it, it would be extremely difficult to import flexibility afterwards by way of regulation which went against the principles of the Bill.
This is the stage at which we either decide to alter those principles and the basis on which calculations are made or we do not. As I said at the outset of my concluding remarks, the noble and learned Lord was good enough to say that he will consider the points which I rehearsed, having obtained them from the organisation to which I referred. I am sure that that organisation will be as grateful as I am that the noble and learned Lord has promised to consider those points and see whether they cause him to alter his view. I am sure that the noble and learned Lord will have the courtesy, if possible, to let me have any observations which he has before Third Reading so that I can consider whether it would be appropriate to table further amendments at Third Reading. In those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 30 not moved.]
[Amendment No. 31 not moved.]
Clause 9 [Maintenance assessments]:
[Amendment No. 32 not moved.]
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 33:
Page 7, line 17, leave out ("support").
The noble Lord said: My Lords, I am not sure that Amendment No. 32 is in order because I cannot make sense of it.
As regards Amendment No. 33, I am confused about the difference between maintenance and child support maintenance. Clause 9(2) states:
"The amount of child support maintenance to be fixed by any maintenance assessment shall be determined in accordance with the provisions of Part I of Schedule 1"
What is the difference between maintenance and child support maintenance? In the maintenance enforcement Bill that we passed in January there seemed to be no doubt that we talked of "child maintenance". Why has "child support maintenance" suddenly come into it? Is it a bit of gloss like the pictures on the document accompanying the Bill to say that children are special? Why use three words to deal with what after all is maintenance or child maintenance?
"Maintenance" is a statutory word; "child support maintenance" is something we are creating in the Bill. It is thy; same thing but has a different name. Does child support maintenance come out of a maintenance assessment which is not a child maintenance assessment? What is it? Throughout the Bill we see this confusion between a maintenance assessment which k then apparently turned into a child support maintenance payment or determination. We should clear the matter up.
I allowed Amendment No. 12 to pass because I was so exhausted with all the other work I was doing. I was attempting to arrange for the defeat of the Government on Tuesday in addition to working on the Bill. I found that to be a great strain for a man of my years. Therefore I allowed Amendment No. 12 to pass. But the point arises here. I am not sure whether it is worth pursuing. But it should be cleared up if we are to leave the Bill in any kind of intelligible order. I beg to move.
The Lord Chancellor: My Lords, the effect of the amendment would be to provide that the amount of child maintenance,
"to be fixed by any maintenance assessment shall be determined in accordance with the provisions of Part 1 of Schedule 1".
I do not believe it is a point of vital importance. If the noble Lord will allow me, I shall ask parliamentary counsel a) look at the matter specifically. I suspect that we may be able to make it even simpler.
Lord Houghton of Sowerby: My Lords, I am obliged to the noble and learned Lord. I hope we can sort the matter out later on. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 35:
Page 7, line 19, at end insert:
("() in fixing the amount of child support maintenance payable, account shall be taken of the cost to the absent parent of maintaining contact with the child.").
The noble Lord said: My Lords, during the debate at Committee stage I stressed that costs of access could in many instances be very high and quite prohibitive. Long distances may be involved resulting not only in high travel costs but also in many instances overnight costs in respect not only of the visiting parent but also of the children. Eating out costs also may be incurred in some circumstances and they are high.
Unfortunately in too many cases access costs are so high as to be beyond the means of the non-resident parent, with the result that contact with the children is
456
lost. Surely that is not what we want. Society increasingly recognises the value of maintaining contact with both parents after divorce or separation. Indeed, the Bill is about each parent being responsible for the financial maintenance of the children and demands the interest of both parents for that purpose.
The National Association of Citizens Advice Bureaux, which supports the amendment, made an interesting point in its briefing note wherein it quotes evidence published by the Family Policy Studies Centre in March of this year which shows that almost half the fathers of children who live alone with their mothers have lost contact with these children. In total, 750,000 children have lost contact with their father. As the National Association of Citizens Advice Bureaux has pointed out, if access costs are not included in exempt income, more children may lose contact with their fathers. That would be a very sad result.
Since the Committee stage I have received information from Families Need Fathers which not only shows how high access costs can be but also draws attention to a further disadvantage suffered by visiting parents in relation to concessionary rail fares. An example is that of a man whose wife moved from London to Cornwall and who had to spend over £200 on rail travel to collect and return his children over the Easter holiday. That is because family rail card concessions are not available on those portions of the journey where the parent is travelling alone.
The matter was taken up with British Rail. It was proposed that where all the tickets for a holiday were purchased at one time a concession could be made, which seems absolutely reasonable. However, BR InterCity said that it would be impossible to control the provision and it would be open to fraud. So the visiting parent is further disadvantaged by being unable to get concessionary fares to visit his children although the cost may be very high and, as I have said, quite prohibitive.
During our debate at Committee stage I felt that the noble Lord, Lord Henley, was unsympathetic. He did not seem to think that this was a very important matter. I sincerely hope that he has thought better of it since because it is important. If we want to ensure that children have access to both parents, and if we believe that that is important, I hope that the noble Lord will accept my amendment. If he does not I hope that he has much better news for me than he had at Committee stage. I beg to move.
9.45 p.m.
Lord Carter: My Lords, I am pleased to support this amendment in the name of my noble friend Lord Stoddart. As my name is attached to Amendments Nos. 96 to 99, I shall speak to those too as they are in a group. My noble friend has already covered extremely well the point about access costs. The whole group of amendments to increase the exempt income for assessable income purposes is necessary because maintenance agreements which are made on such a basis are more likely to be realistic and are therefore more likely to be paid regularly. That is extremely important.

457
In this group there are the three items to be exempted from the assessable income: the work-related expenses (for example, travel expenses); the costs we have already heard about incurred in maintaining access to children—travel to the children's home, overnight accommodation and so on; and the cost of the community charge liability after deduction of the appropriate rebates and reductions, in so far as we can keep up with the rebates and reductions which the Government are introducing. The above costs are either unavoidable (that is, community charge), or help incentives to work (that is, the work-related expenses), or to maintain family relationships as in the access costs. We feel that all three expenses should be recognised as having sufficient importance to justify exemption.
Amendment No. 96 is to increase the exempt income of the absent parent by introducing an allowance for work expenses. Obviously the impact of such a change would be greatest on the low-paid absent parents. In addition to increasing exempt income to cover work expenses, we believe that it is right to include the community charge in the exempt income for obvious reasons. The introduction of a protected income is essential for those on the lowest incomes or with large financial responsibilities. If there is to be an incentive to work, the protected income needs to include work-related expenses.
In Committee the noble Lord, Lord Henley, said:
"In fairness to the children, exempt income should only include essential expenditure".—[Official Report, 19/3/91; col. 560.]
Obviously we agree with that statement, but the question of what is essential remains. In our view, if an absent parent is prevented from working because he does not have enough remaining income to cover his work expenses, those expenses must be regarded as essential. A similar argument can be made in relation to access costs and to community charge payments. Those liabilities are all essential and yet without this amendment they will not be covered in primary legislation.
Before I sit down I should say that the noble Baroness, Lady Elles, has asked me to move Amendment No. 99 for her. She is not in her place as she has a previous engagement this evening.
Earl Russell: My Lords, I too should like to offer support for this group of amendments. They involve what I think is the important general principle that when we talk about rates being proportionate to income we ought to be thinking not about gross income but about disposable income. Two people on the same gross income are not, in fact, equally well off if their circumstances differ widely.
I know this runs against prevailing philosophy which is, on the whole, one gathers, all against the recognition of allowances. That is a mistake. That is not treating like with like. If one does not make allowances for necessary expenses one is treating two people who are not equally well off as if they were.
The point about access is vital. It would certainly defeat the declared object of the White Paper if, by the process of getting maintenance for the child, we were
458
to deprive it of the chance of communication with its father. That would be a very sad result. I should like to ask any of us who attended our party conferences during the past year what sort of sum that cost us. It is the sort of sum that would make a fairly considerable difference to someone who may be, after the deduction that the absent parent is paying under the formula, somewhere fairly near income support. We are dealing with quite considerable sums.
The point about work-related expenses is equally important. Work-related expenses are something which do not fall equally on one profession with another. That view is one in which, in my academic capacity, I ought to declare an interest. I know something about work-related expenses. The extent to which they are reimbursed by employers also varies very sharply from profession to profession. As we are at present living in the most expensive capital city in Europe to travel about, our work expenses tend to be quite considerable.
At the Committee stage I said that I would not dwell on the amendments about the community charge benefit and that I would give the Government the benefit of the doubt. I am glad to find that I was right to do so. The community charge is like King Charles II; it is an unconscionable time dying. We are dealing with something which will be here until 1993, possibly until 1994 because it is more important to get it right than to do it quickly. Therefore, even though the community charge is to disappear, in the interim some hardship may be created if we do not take account of it.
Lord Henley: My Lords, I apologise if the noble Lord, Lord Stoddart, thought I was unsympathetic at Committee stage. I certainly did not intend to be and I hope I will not come over as unsympathetic today. Perhaps I may deal with one specific problem. As I understood from the groupings, originally we were dealing with Amendments Nos. 35 and 96 to 99. I may have misheard the noble Lord, Lord Carter. Did he also intend to take in Amendments Nos. 100 to 102 and 103, and bring in the work-related expenses'?
Lord Carter: My Lords, I think that Amendments Nos. 96 to 99 are in connection with the absent parent and Amendments Nos. 100 to 103 deal with the caring parent. That is the way we grouped them on the list.
Lord Henley: My Lords, I am not sure whether the noble Lord wishes to discuss all those amendments now, even though they have been split from their groupings.
Lord Carter: No, my Lords; I do not wish to do so.
Lord Henley: My Lords, in that case, I shall deal with Amendments Nos. 35 and 96 to 99.
The White Paper made clear that exempt income for both the parent with care and the absent parent represents the income which the parent keeps for his or her own essential expenses and as such has first priority over maintenance. It is deducted from the total of his or her net income—I emphasise the word "net"—before any consideration is given to maintenance. So, in fairness to the children, exempt income

459
should only include essential expenditure. Maintenance payments under the formula will represent only about 25 per cent. to 30 per cent. of a parent's net income allowing the parent to make choices about other expenditure, but after maintenance is paid.
We accept that in some cases these expenses may be genuine and heavy but the issue is whether it would be right to give them precedence over the child's right to basic maintenance —I am certainly glad that the noble Lord,:Lord Carter, accepts that point—rather than the parent having to meet them from remaining income. We do not believe that including expenses, such as has been suggested, with or in exempt income is putting the interests of the child first. In the case where the child maintains contact with both parents, the absent parent will normally incur costs in looking after the child during such time as the child is with that parent. We are considering how best to take account of those costs under the provisions of Clause 33, with which we shall deal later, which gives the Secretary of State the power to change the amount of maintenance payable in special cases.
I shell now deal briefly with Amendment No. 99 which i3 tabled in the name of my noble friend Lady Elles. It seeks to add to the provision for exempt income a parent's "reasonable personal expenses". Exempt income already covers parents' essential personal expenses. Therefore, to add this expenditure would be to double the provision.
We believe that the provisions to be made in exempt income should he restricted to what is essential in order to ensure proper recognition of the needs of the child. Maintenance will form only a third or less of net income and there is the safeguard of the protected level of income.
As noble Lords will know, details of the maintenance calculation are to be set out in regulations. We will reflect on all the points made today and those made in Committee about exempt and protected income when we come to consider the precise definitions of these terms. In the meantime, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Stoddart of Swindon: My Lords, I must say that I am most unhappy with that response. I am quite sure that the Minister does not wish to appear unsympathetic; indeed I am certain that he is not. However, it must be said that his words were unsympathetic. I regret that fact. In my view, he and the Government must understand that one of the basic rights of children is access to both parents. That is a most important consideration. It is only right that a child should know his or her father and mother. If we make it very difficult for one parent or the other to obtain access to the children, then the development of the children may be at risk. Indeed, in most cases, it will certainly not help their development.
The Minister must understand that these high costs often, although not always, arise through no fault of the non-resident parent. For example, a wife—or even
a husband—may decide to move to another part of the country which is far away. Indeed the parent concerned may decide to move to another country.
460
There is nothing on God's earth that the non-resident parent can do about such a situation. He or she has to pick up the tab of the visiting costs.
What I am asking for in the amendment is some recognition of that and some sympathy for it. I had hoped the noble Lord, Lord Henley, would have grasped the point between Committee stage and Report. Clearly, he has not; or perhaps other people with whom he is associated have not. I have certainly grasped it, and I hope other noble Lords have done so.
Late and regrettable though it is, I feel I have a duty to test the feeling of the House.
10.1 p.m.
On Question, Whether the said amendment (No. 35) shall be agreed to?
Their Lordships divided: Contents, 9; Not-Contents, 25.

Division No. 3

CONTENTS

Carter, L.

McNair, L.

Ezra, L.

Mishcon, L.

Houghton of Sowerby, L.

Russell, E. [Teller.]

Lockwood, B.

Stoddart of Swindon, L. [Teller.]

McGregor of Durris, L.

NOT-CONTENTS

Annaly, L.

Hesketh, L.

Astor, V.

Hooper, B.

Belstead, L.

Kinnoull, E.

Brougham and Vaux, L.

Long, V. [Teller.]

Caithness, E.

Mackay of Clashfern, L.

Carnock, L.

Morris, L.

Cavendish of Furness, L.

Portsmouth, E.

Craigmyle, L.

Reay, L.

Denham, L. [Teller]

Shrewsbury, E.

Elliot of Harwood, B.

Skelmersdale, L.

Ferrers, E.

Waddington, L.

Fraser of Carmyllie, L.

Willoughby de Broke, L.

Henley, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.9 p.m.
Schedule 1 [Maintenance Assessments]:
Lord Carter Lord Carter moved Amendment No. 93:
Page 30, line 27, at end insert:
("() such further amount or amounts (if any) with respect to a disabled child as may be prescribed.").
The noble Lord said: My Lords, I shall speak also to Amendment No. 85. The purpose of the amendments is to provide for the costs of a disabled child in the maintenance arrangements. It is an amendment that we debated in Committee. We received some encouragement from the Minister's response and so we have tabled the amendment again. It seeks to augment the maintenance formula proposed in the Bill to make it sufficiently flexible to meet the needs of disabled children more adequately.
In Committee, the Minister recognised the need to give careful consideration to the complex issues raised in attempting to include in the Bill children with disabilities. At col. 562 of Hansard on 19th March he said:
"We are carefully considering all those views. Our aim is to do what is in the best interests of children while being fair to the parent paying maintenance. We do not wish to exclude

461
disabled children from the improved system of child maintenance but we recognise that there are other complex issues here which may be more appropriate for the courts".
On a different amendment but a related issue at col. 347 on 14th March he said:
"It would undoubtedly be right to recognise in some way the extra costs they may incur because of their disabilities when calculating their ability to pay maintenance, and we are considering how best to do this".
That was in connection with disabled parents, but there is the recognition of the extra costs of disability.
The principle of inclusion is particularly important as this Bill is of special relevance to children with disabilities. First, the OPCS survey showed that they are much more likely than other children to grow up in a single parent family. The OPCS survey found that 19 per cent. of their sample of families with a disabled child were headed by a single parent compared with 13 per cent. of the general population. The same survey confirmed that the parents of disabled children are less likely to be in paid employment than other parents. When they are employed they are lower paid. There are three factors relating to poverty—unemployment, low pay and single parenthood—which are more likely to occur in the families of disabled children and therefore put them at risk of having financial resources which are inadequate for their needs.
I am sure that the Minister will not wish to go over the debate we had on the Disability Living Allowance and Disability Working Allowance Bill on the extra costs of disability, but there is an agreement. The OPCS surveys revealed the extra costs of disability, and many other organisations have also produced their own evidence of this. There is no doubt that there are extra costs of disability, in particular for disabled children.
It is beyond doubt that these costs are great and have an important bearing on the well-being of a disabled child and on the family, including other children. Because the position is impossible some means have to be found to ensure that adequate maintenance is made available within the framework of the Bill, and that is the suggestion that has been devised in this amendment. The intention has been to use a form of words that ensures a minimum extra amount to be awarded to children with disabilities in all cases without attempting to limit the award to that specific amount, so as to admit a variation in the light of the great differences in need and circumstances that are experienced by disabled children.
In our view the amendment combines the necessary powers of flexibility with the fundamental acknowledgment of the special needs of the disabled child. It potentially transforms the will to include all children within the same legislation and administrative procedures into a reality. There is a flexibility in the amendment which is intended to reduce the likelihood of parents having frequent recourse to any appeals procedure attached to the agency. That in itself will make it a cost-effective measure. I beg to move.
Earl Russell: My Lords, we too would like to support this amendment. It seems to be a simple and commonsense amendment. Disability carries with it extra costs. Those costs need recognition. As
462
technology improves, the number of things that can be done to make it easier for disabled people to live a normal life goes up and up, but of course those things carry costs with them. I think it is in the public interest to incur those costs because it makes it easier for disabled people to live as nearly as possible a normal life in the community, and in the end to work, which is for the benefit of the gross national product and ultimately the Treasury. The OPCS have calculated the costs themselves at £6.54 per child on average, and £12.53 per child in cases of severe disability. As the House knows well, the OPCS figures have been attacked by a great many people with specialist knowledge of the area as being a good deal too low. I shall not go into that; but, one way or another, disability carries costs. If the formula does not recognise that, it is being consistent at the expense of accuracy. That would be a pity.
10.15 p.m.
Lord Henley: My Lords, rather than dealing directly with the amendment, it might help if I tell my noble kinsman Lord Russell and the noble Lord, Lord Carter, exactly where we are at the moment. I believe that the noble Lord and my noble kinsman will recall that we were not minded, where a child was disabled, to include the available allowances in the maintenance requirement. The White Paper invited comments from all interested parties. We are considering all the views carefully, and particularly the views of my noble kinsman and the noble Lord.
This is an important issue and it is right that careful thought should be given to how best to protect the interests of these children. Officials from the Department of Social Security have met some of the main organisations involved in this field to discuss this issue. That was a constructive and helpful meeting. Our aim is to do what is in the best interests of children while being fair to the parent paying maintenance. We do not wish to exclude disabled children from the improved system of child maintenance. The issues are complex and may require a discretion that, possibly, is more appropriate to the courts. I hope that with that brief resume of the position, the noble Lord will feel able to withdraw his amendment.
Lord Carter: My Lords, before I withdraw the amendment, will the Minister help the House by telling us what timescale is involved with this issue? Is it possible that by the time the Bill reaches another place, the Government may suggest a provision on this issue?
Lord Henley: My Lords, I cannot promise to produce anything between now and Third Reading. I stress that these are complex issues. It would be rash of me to make promises as one does not know at what speed the Bill will progress through another place. However, one lives in hope in that regard.
Lord Carter: My Lords, that is the kind of reply I expected. I also live in hope. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 94:
Page 31, line 32, leave out paragraph 4.
The noble and learned Lord said: My Lords, this amendment is intended to draw attention to the nature of Schedule 1, which is an extraordinary schedule. It is the very quintessence of bureaucratic legislation. In Committee the noble Lord, Lord Mishcon, quite rightly did not table an amendment to delete Schedule 1 as that would clearly have been a wrecking amendment, nor did he seek to speak on the question that Schedule 1 should stand part of the Bill. In all the circumstances, it seemed right that speakers on the Cross-Benches and Back-Benches should follow suit. Anyone who is in the position of the noble Lord on this Bil1 has not only the task of leading the critical scrutiny of the Bill but also of pacing the proceedings so far as they relate to that scrutiny.
Therefore, before I tabled this amendment, I obtained the approbation of the noble Lord, Lord Mishcon. However, I shall deal with the amendment as briefly as I can although a whole volume could be written on the first schedule. Perhaps I may say by way of introduction that I referred to its incomprehensibility when I spoke on Second Reading. My noble friend Lord Henderson of Brompton pointed out rightly that the Renton Committee had approved of the use of this type of fractional formula. So it had, but it added the proviso: so far as they are capable of being understood by those who are affected. It was particularly in the context of revenue statutes that the Renton Committee gave its approval. A revenue statute containing this type of formula would be examined by chartered accountants, solicitors and counsel with special training in such matters. Here, however, the people who are affected are the young couple whose marriage has broken up and, in Scotland, the child—a child over the age of 14 in the case of a male and 12 in the case of a female. My noble and learned friend will correct me if I have the Scottish position wrong.
Looking at Schedule 1 can anyone possibly say that it is capable of being understood by those who are affected. by it? It is and has to be taken on trust by a court. The language is not directed to the public at all. It is directed to the child support officer.
In ancient Rome there was a famous saying, "Lucullus dines with Lucullus". Lucullus was the great sybarite but his choicest of meals were kept for his own consumption, so that "Lucullus dines with Lucullus" was the very height of sybaritism. So we can say of this schedule, "Sir Humphrey writes for Sir Humphrey". It is understandable by nobody except the civil servant who publishes it and the civil servant who administers it. It is too bad if the unfortunate wife or husband cannot understand it. They must take it on trust.
Having said that, I directed the amendment narrowly to a part of the schedule dealing with the alternative formula—lines 38 and 39 of page 31. The formula runs like this (AE being the additional element):
AE (1 - G) x A x R.
That must appear almost as simple as the famous formula in which Einstein encapsulated his theory of
464
special relativity, a most misleading simplicity in both cases because one has to translate the G, the A and the R.
I shall not take your Lordships through all the intermediate steps. However, finally—not finally but I gave up in despair at this point—it works out like this:
1=MR/((N—E)+(M—E))x(0 to 1)
(where (0 to 1) is a figure between zero and one which may be prescribed by the Secretary of State).
My noble and learned friend dwelt on the certainty of the formulaic approach. How much certainty is there when you have a final multiplication factor which can be prescribed by the Secretary of State? However, that is not the end of it because the whole of that fraction must be multiplied by A, which works out
PM/(N—E)+(M—E). as
That formula too is then to be multiplied by (N—E).
Your Lordships might think that that should be the end of the matter, but you would be disappointed; because one must then go on to multiply by R, which is on page 31, line 34, and again that figure is between zero and one as may be prescribed. I have not got anywhere near the end of the possible formulae, but that is already 10 separate symbols, several of them repeated, and that is what is presented to the private citizen whose rights are affected. I can only say that it seems to be absolutely shameless bureaucracy to legislate in that way. I beg to move.
Lord Mishcon: My Lords, perhaps I should make a confession. If a former distinguished President of the Family Division, as it now is, and a very distinguished former Lord of Appeal in Ordinary cannot work out that formula, but the Department of Social Security can, I am beaten on my argument that the courts should take over the whole of the Bill.
Lord Stoddart of Swindon: My Lords, I sympathise with my noble friend and everyone else who has to deal with the Bill. It is essential for us to be sure that the Government know what it is all about. I therefore wonder whether the noble Lord, Lord Henley, who is to reply, can take us through it with one or two examples to show how it would work. I think that that is the only way that someone with my non-mathematical mind will be able to understand the matter. I only understand people on the ground and how it affects them and how much cash they have in their pockets or in the bank. To prove himself and to instil confidence in your Lordships that he knows what he is talking about, perhaps the noble Lord would take us through a couple of examples.
Baroness Faithfull: My Lords, are the parents to understand this? Who will explain it to them and how will they understand it?
10.30 p.m.
Lord Houghton of Sowerby: My Lords, may we call this "Children's Hour" and seek to make some sense of it? Frankly, we should adjourn now until we can read all this in Hansard. It will take the Hansard

465
writers and producers until tomorrow morning to get it straight and then it might be a little more intelligible. Of all the legislative gibberish, my Lords, I doubt whether there is anything to compare with the speech of my noble and learned friend who sits behind me. It really is incredible. What about the citizen's rights? What about intelligibility? Where do the children come into the issue? Some of them could probably find the answer more quickly than their parents.
What are we expected to do with this formula? If we leave it out—which we could well do—the Bill would be so mutilated that it would have no engine. Alternatively, we can withdraw it which means that we come back to the matter on another day when it can be made more intelligible.
Quite frankly, this is not serious legislation; and this is not a serious hour for it. If we are to stay much longer, we shall want to enjoy the debate, and there will have to be some fun. I have never enjoyed anything more than all-night sittings in the House of Commons—the fun we had during the night, my Lords. We had some star turns. The late Lord Hale was the speediest talker in the House of Commons. He could rise to his feet and keep us in raptures of laughter when reciting a story about Lancashire lads who got into trouble. We were quite sorry when the dawn came. But there is nothing so exciting as that in this Chamber. I have not heard such talents from noble Lords and noble Baronesses present as would give us some entertainment for the remainder of the night—and it is getting on that way.
To conclude on a serious note, what does my noble friend expect us to do? I ask the noble and learned Lord on the Woolsack what he considers we ought to do. What does the Opposition Whip consider we ought to do? It is all very well to have self-regulation but someone has to tell us how we get through this Marshalled List. What hour do we continue until? Do we continue to the end of the sheet? Do we adjourn when we are tired and fed up? Do we stay until somebody says that we can go? We are just working our way through the amendments by putting our noses in the right direction.
I am serious on this point. Next week we shall uphold the reputation of the House of Lords in a very big way. Yet here we are frittering our reputation away in this manner. Thank God the television cameras are not switched on. However, other records are being taken of our proceedings and can be quoted. Earlier today we were talking about children weeping on television. If that is linked with this debate tonight, many people will consider that we are crazy.
I believe that I have said enough to indicate that I am greatly disturbed at the state of affairs in your Lordships' House.
Lord Henley: My Lords, the noble Lord offers me an interesting challenge: to sit here all night. I certainly would not object to that, although I do not know about other noble Lords. I suspect that the noble Lord himself would not like to sit here all night. I can tell the noble Lord that I believe that there has been some informal understanding that we shall not
466
sit much later. We can probably complete this amendment, and possibly one or two more, depending on the time.
The noble Lord, Lord Stoddart of Swindon, offered me a very interesting challenge. I am afraid that at this time of night I shall turn it down. It might help if I write to the noble Lord, and to the noble and learned Lord, Lord Simon, setting out in greater detail some explanation of how the clause works. I do not intend to speak to the merits of the amendment because that was not a matter to which the noble and learned Lord turned his mind.
My noble friend Lady Faithfull was worried that no one would be able to understand the provision. I thank the noble Lord, Lord Mishcon, for agreeing that the department should be managing these affairs because it can understand them—
Lord Mishcon: My Lords, the Minister should not take me seriously.
Lord Henley: My Lords, I take seriously everything that the noble Lord says. There was a time when the Department of Health was known as the Department of Stealth and Total Obscurity, but I hope that we have moved beyond that. I do not accept that the paragraph of the schedule is so complicated. I am sure that we shall be able to write to the noble Lords and explain its meaning—
Lord Mishcon: My Lords, I am sure that the Minister will write the letter personally; but difficulty may arise if it is sent to only one Member of the House. If we undertook to arrange for a blackboard and easel to be in the Chamber on Monday would the Minister feel it appropriate to take us through the schedule? All noble Lords would then have the benefit of his explanation.
Lord Henley: My Lords, as the noble Lord knows, the rules of this House preclude the use of exhibits as is the case in another place. The use of a blackboard would not be appropriate in dealing with the problem. I shall write to the noble Lords—
Lord Carter: My Lords, there are 10 equations in the schedule and each is related to the others. Can the Minister produce the full expression in one equation? I believe that it is possible because they are all subsidiary.
Lord Henley: My Lords, I believe that will be difficult if not impossible. It is important to return to the amendment. It deals with the additional element which the noble Lords wish to have explained, and in particular the equations. I have offered to write to the noble and learned Lord, and I shall send copies to the noble Lords, Lord Stoddart, Lord Mishcon and to any other noble Lord.
The intention is to set out the details of the formula in regulations. That will include what should be the appropriate deduction rate and how the additional element might be calculated. The aim is to ensure that children receive a fair and continuing share in parents' prosperity. As a result of the light-hearted remarks made during the debate, I accept that some noble Lords believe that there is some complexity in the

467
paragraph. For that reason, I have offered to write to them. Paragraph 4 sets out the basic principles of the calculation of the additional element. It might be that at this hour of night the noble and learned Lord and other noble Lords find it more difficult to grasp the complexities. That is another reason why I shall write to them. The deduction rate will be different from that applying for the maintenance requirement. It will apply to the assessable income left once the maintenance requirement is met. However, the alternative formula described in subparagraph 3 will mean that this will be subject to a maximum and that no extra maintenance will be due under the formula.
It would not be right for me to go further at present. I hope that the noble and learned Lord will accept the fact that I agreed that the issue is complex. The noble Lord, Lord Mishcon, asked that I should write the letter myself—
Lord Mishcon: My Lords, I had anticipated that the Minister would write the letter only because he has been so clear in his explanation of the schedule.
Lord McGregor of Durris: My Lords, I realise how difficult this must be for the Minister. Is it not possible for the only mathematician in the House to take us by the hard on Monday and explain the formula to us?
The Lord Chancellor: My Lords, nothing would give me more pleasure. If we need to have a seminar of that kind, I shall be happy to conduct it. I am sure that my noble friend will be able to provide a worked example with factors in it showing how this can be applied which noble Lords will be able to study at leisure. However, if that fails, I shall be delighted to set up a seminar, although possibly not in the Chamber, having regard to its rules, to work through an example with your Lordships. These calculations are rather simple. It is easy to make them difficult. It is because they are much easier in formula form than in words that, on this occasion, we have chosen to use a formula. I do not believe that the calculations are very difficult.
Baroness Faithfull: My Lords, Will my noble and learned friend draw up something which parents can read and understand?
Lord Chancellor: My Lords I could apply the formula to a parent's circumstances. That is the purpose of the computer. It is very easy to make calculations on the computer and when one has a computer, it is possible to make far more calculations than we could make in the time available to us in our heads or even on a piece of paper. This formula can embrace so many different circumstances. There must be a degree of structure about it. It is a question of being sufficiently numerate in order to apply the formula. If parents are numerate, they can do that. If they are not, they may not be able to make the calculation themselves but the agency computer will readily give them the information, much more readily, as the noble Lord, Lord Mishcon said, than a clerk of the court would be able to do.
Lord Mishcon: My Lords, although there has been a certain amount of amusement as regards this
468
amendment, we are dealing with a serious subject. How will the father, who has to pay, and the mother, who is expecting the payment, be able to tell from the schedule whether the assessed amount is correct? That is the situation with which we are dealing. We are dealing with little citizens in need of support. The real question is not whether this House can understand the formula or the noble and learned Lord, who has a distinguished past in the area of mathematics, can explain the formula, but whether the recipient and the payer can understand whether or not the amount is correct.
The Lord Chancellor: My Lords, the steps which need to be taken involve multiplication, addition and subtraction of given quantities. Anyone who wishes to take the trouble could follow that through. I anticipate that people will entrust the calculation to the computer. Perhaps your Lordships are not afflicted with overdraft interest on your bank accounts. However, I imagine that although the calculation is understood, not many of your Lordships check it. If it is checked, that is with the help of a calculating machine or other equipment of that kind. The reason that this is an administrative matter is because it is a calculation applied to given facts.
Lord Simon of Glaisdale: My Lords, I am most grateful to those noble Lords who have contributed to this discussion. My noble and learned friend, as the noble Lord, Lord Mishcon, pointed out, is a famous mathematician. He probably holds this whole series of formulae in his mind. But neither he nor the noble Lord, Lord Henley pretended for a moment that this schedule could be understood by the people who are affected by it. They are typically the people described in Example 3 in the White Paper. It is a young husband whose marriage has broken up and whose income is £160 a week. His wife must manage out of that and out of what she receives from child maintenance.
There is a famous account which, if I have it wrong, will perhaps be corrected by the noble Earl, Lord Russell. Marie Antoinette, on hearing a cry for bread said, "Let them eat cake". If Mary, the young wife in Example 3, cries out for bread, the answer that will come from the department will be, "Let her eat formulae".
Finally, it is a disgrace to legislate in this way. It is not parliamentary democracy; it is bureaucratic ukase. Instead of the law regulating these matters it is the agency. The law, as we have seen repeatedly in these discussions, takes primary cognisance of individual rights; bureaucracy takes primary cognisance of social order. Each has its place. If either usurps part of the place of the other, it is very much to our disadvantage socially. That is what is unhappily happening in this Bill in a most grave way.
With regard to the amendment, the noble Lord, Lord Henley, was quite right in pointing out that it will do no conceivable good simply to remove paragraph 4. The whole of Schedule 1 in its viciousness can remain, and Schedule 4, dealing with

469
the additional element, does not do very much more harm. However, it has drawn attention to the issues with which we are concerned.
The noble Lord, Lord Henley, with his usual courtesy, offered to write to me to explain the schedule at greater length. Much as I enjoy receiving letters from him, I am not sure that I am entirely entranced by having Schedule 1 explained at greater length.
10.45 p.m.
Lord Henley: My Lords, perhaps the noble and learned Lord will allow me to intervene. It was only paragraph 4 that I promised to explain to him. But if he would like me to explain the whole of Schedule 1, I shall undertake to do that.
Lord Simon of Glaisdale: My Lords, I am grateful, though I believe I can excuse the noble Lord; I am not sure that I am even all that enthusiastic about having paragraph 4 explained at greater length.
In view of what has happened I shall ask leave to withdraw the amendment. We shall have to return some time later to pull together all the bureaucratic elements in the Bill. The noble Lord, Lord Mishcon, his mathematical wit sharpened by Schedule 1, estimated that there were 94 regulating-making powers in the Bill. Counting again, he told us that only 12 were subject to the affirmative resolution. We shall have to take that and the jurisdiction of the courts into account. We shall have to take into account the massive recruitment of civil servants; that of the inspectors with powers of entry and to levy distress. Those factors are whittling away at the common law safeguards of the law of distress. All those matters will fall for final determination and discussion, no doubt at Third Reading.
In withdrawing my amendment I ask your Lordships to bear in mind what this Bill is doing by way of legislation to people in humble circumstances, not all of whom are of the highest educational standards. A series of formulae are being laid down which they cannot possibly understand and they are being asked to take it or leave it. As the noble Lord, Lord Mishcon, said, how can they possibly check their rights? But individual rights do not matter in this context. I beg leave to withdraw the amendment.
The Lord Chancellor: My Lords, is it your Lordships pleasure that this amendment be withdrawn? The amendment is, by leave, withdrawn.
Lord Houghton of Sowerby: My Lords, no! What does the rule say about "by leave of the House" when the leave of the House is not sought and, as far as I am concerned at this moment, it is not given? I can understand that the noble and learned Lord, Lord Simon of Glaisdale, has had enough of this amendment, but I doubt whether the rest of us feel that we are at a suitable stage in the debate on it to let it drop and to go on to something else. Not until we understand more about what we have been discussing for the past 15 minutes shall we be in a fit state to proceed with the Bill.
Baroness Faithfull: My Lords, does the noble Lord, Lord Houghton, agree that none of us is in a fit state to discuss this formula or understand it at this time? Speaking for myself, I would like to go home and to return fresh on Monday when this matter can be explained to me in words of one syllable so that I can understand it. I do not think I can take in anything more tonight.
The Lord Chancellor: My Lords, the Question is that Amendment No. 94 be agreed to? If the noble Lord, Lord Houghton, does not wish leave to be granted for it to be withdrawn, the Question is that Amendment No. 94 be agreed to? As many as are of that opinion will say "Content". To the contrary, "Not-Content".
Noble Lords: Not Content.
The Lord Chancellor: My Lords, I think that the "Not Contents" have it.
Amendment negatived.
Lord Reay: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly and, on Question, Motion agreed to.
House adjourned at seven minutes before eleven o'clock.