§ 3.32 p.m.
§ 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 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 newChambers 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—Therefore the idea is as I have said.
- (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".
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 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
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, 121.385
|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.|
|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.|
|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.|
|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 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.]386
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—
§ 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.387
§ 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 theDaily Telegraphof 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 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.396
§ 5 p.m.
Lord Mishconmoved 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 theOfficial Reportof 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.397
§ 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 effectforce 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, 86.407
|Division No. 2|
|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.|
|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.|
|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.|
|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.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.1 p.m.
§ [Amendment No. 12 not moved.]
Lord Cartermoved 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.408
§ 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 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
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 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, 413any 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 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
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 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 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
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".
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 necessaryto 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 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.
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.