§ Consideration of amendments on Report resumed on Clause 5.
Baroness Elles moved Amendment No. 23:
Page 4, line 19, at end insert:
("(6A) Any person required by the Secretary of State to provide information under subsection (6) above shall be entitled to appeal against this requirement where that person has reasonable grounds for withholding that information and the circumstances of the case fall within those prescribed pursuant to subsection (7) below.").
§ The noble Baroness said: My Lords, I introduce this amendment with some considerable optimism in that for the first time we have an amendment which already has some sympathy for it. That sympathy was expressed by the noble and learned Lord, Lord Simon of Glaisdale. I hope that his intentions will have influence with my noble friend on the Front Bench.
§ The main consideration in presenting this amendment is to include the main principle that if discretion is used by an official we must give a right to the individual to appeal against the exercise of that discretion. That is a principle which in law and human rights noble Lords would be willing to accept. I am concerned with the principle and not so much with the wording of this amendment.
§ During the discussion in Committee on Clause 22 a great deal was said about failure to co-operate without good cause; a somewhat Orwellian phrase which reminded me of Big Brother. In fact what we are now faced with is that we have no acceptable grounds for failure to disclose information as required. They have not been spelt out. Presumably there will be regulations prescribing the grounds, albeit widely drawn because it has already been said that it will be 437 difficult—understandably difficult—to prescribe circumstances narrowly. When a definition is widely drawn it automatically leads to the fact that the officials who have to implement the regulations are given discretion in their implementation. The removal of Clause 22 and the absence of any penalty in the Bill, so far as I am aware, for the failure to provide information required may well result in further pressure—this is what many of us are afraid of—on the claimant in order to force the claimant to provide the information required under Clause 5.
I now refer to the report of the Public Accounts Committee, Session 1989–90. Under the heading on page vi, On the Department of Social Security's procedures for obtaining maintenance, paragraph (xi) states:
We recommend, too, that the Department monitor the way in which this work is undertaken to ensure that the pressure on offices to achieve a substantial increase in maintenance recoveries does not lead to undue pressure being put on lone parents to co-operate in liable relatives work".
We must be aware that quite clearly there has been pressure because that comment would not have appeared in the report if it had not been based on evidence which was put before the committee.
§ Further, evidence has been sent to us from the Child Poverty Action Group (CPAG) which, as we all know, is a highly respected NGO that has been working in this field for many years. The group has put together examples of lone parents being put under undue pressure to co-operate in pursuing maintenance. Such examples were provided by the citizens' advice bureaux. I have with me a few selective examples. They cover the whole of the country; so it is not just one particular area or office where there may be some officials who have taken a different line from others.
Without taking too much of your Lordships' time, perhaps I may cite one or two examples, many of which have been adumbrated by noble Lords during today's debates. One example comes from the East Midlands. It concerns a divorced lone parent whose former husband visits her daily but refuses to give her his address. The income support payment has been stopped for the second time because the lone parent will not (or cannot) give the husband's address. A further example comes from Scotland. I have note of an extract from a letter which was sent by a local DSS officer to a lone parent on income support. It states:
There may be changes soon in the law concerning maintenance for children".
It goes on to ask the lone parent to fill in the form,
to help me decide what further action is needed".
A handwritten addition to the letter states:
Please note, failure to reply may result in loss of benefit".
As I said, such examples have been sent to us by the CPAG and there are also further examples from other highly respected organisations, such as the National Council for One-Parent Families which deals in that area. Therefore, this is not a figment of the imagination; it is something which is actually happening, where a kind of pressure is being put on women for failure to provide the necessary information.
§ I believe that we have all recognised during the course of our debates on the Bill—and this applies to Members on all sides of the House—that this is a unique Bill. It deals with state benefit departments acting on information from claimants which directly affects not the claimant personally, but a third party; namely, the absent parent. That is the difficulty with the Bill. We have the state interfering in a relationship between two people who have been emotionally and financially tied for some time or even, perhaps, a short time. Nevertheless, it is state interference in a very delicate and dangerous area of relationships.
§ That is one of the difficulties with regard to providing information. The right reverend Prelate the Bishop of Guildford covered that aspect by saying that the vulnerability of women in this particular situation leads to enormous difficulties when we expect her—or sometimes him —to give the required information. Such refusal may be due to the fact that the woman does not have the information; or she may refuse to give it because she knows perfectly well that, as a result of giving it, she could find herself in a violent situation. Indeed those of us who have families, or who have friends with children, know only too well of such situations where perhaps the husband leaves home. The wife, being so anxious for a reconciliation in the hope that the husband will return, might hesitate to give the information believing that it could put pressure on the man and then prevent him —in her eyes, at any rate—from returning to the family home.
§ Of course we could go on discussing endless examples. However, the fact is that there are many such situations happening day by day in cities all over the country which show that the matter must be handled with extreme delicacy and great discretion. That means that the regulations which will be produced must also deal with this aspect of enabling the officer in charge to use his discretion. The latter point brings me back to my main principle: if discretion is used by an official, there must be a right of appeal for the claimant who finds herself (or himself) in the position of being pressurised by a particular official for failure to give the information required.
§ I make one further technical point. I hope that my noble friend the Minister who is to reply will be able to tell me something about the role of the child support officer. Is such an officer acting in the capacity of an adjudication officer or as an official? For example, if a claimant has an objection about the way in which a child support officer has acted, would an appeal go through that officer to a senior officer in the agency who would then act as an adjudication officer? Further, would it then be possible to appeal through that adjudication officer to a court which could, possibly, be the proposed child support appeal tribunal which I understand is included in some amendments on the Marshalled List?
§ In conclusion, I very much hope that noble Lords will agree that this is an essential protection of the rights of the subject. I should point out that it also acts as a form of monitoring on the acts of officials. Everyone knows about the excellent work which 439 officials carry out and the great sympathy which they show in the many cases with which they have to deal, some of which are very difficult. I believe that it would give them support if they knew that, if they took a wrong decision and did something which exceeded the bounds of normal conduct, there would be the right of appeal for the claimant. In addition, the provision would give the claimant a certain power and strength to be able to face the difficult problems involved in giving the required information. I beg to move.
§ 8.30 p.m.
§ Lord Mishcon
My Lords, I do not think that the case for the amendment could have been better put. I do not intend to detract from what has been said. I should simply like to express my support for it.
§ Lord McGregor of Durris
My Lords, I wholly agree with the remarks made by the noble Lord, Lord Mishcon. I am also most grateful to the noble Baroness, Lady Elles, for tabling the amendment. I should like to say a few words in an attempt to general se the grounds upon which one might rest an objection to the principles of the Bill for which she wishes.o permit an appeal.
The Bill completely neglects the sensibilities of the women concerned. I believe that it ignores what have been traditional feelings of delicacy and modesty in respect.of invading the intimacies of the ways in which our fellow citizens exercise their reproductive powers. I have a very strong objection to a situation in which officials can dabble their fingers in—and I am using a phrase of Virginia Woolf—the stuff of other people's souls.
In my view, the point can be generalised in the way in which Isaiah Berlin deals with certain aspects of human rights. I shall paraphrase his words. He says that all Inen—I believe that he includes womenkind in that word—whatever power governs them, have an absolute right to refuse to behave inhumanly and that there are frontiers within which men and women should be inviolable. Those frontiers are defined in terms of rules so long and widely accepted that their observance has entered into the very conception of what it s to be a normal human being. He also says that normal human beings could not break these rules easily without a qualm of revulsion.
I feel more than a qualm of revulsion for a Bill which gives servants of the state powers to inquire into matters in respect of which women should be inviolable. We should not permit the agency to cross this particular frontier. That is a general principle, the breach of which in the Bill I found profoundly shocking. I strongly support what the noble Baroness, Lady Elles, says in respect of appeals. I hope the Government will accept what the noble and learned Lord, Lard Simon of Glaisdale, said in respect of another amendment: that a good cause stated in writing would be that "These inquiries offend against my sensibilities".
§ Lord Henley
I deal first with one point made by my noble friend Lady Elles. I should like to say a word or two about the current system of income support. Under the current arrangements, the payment of 440 income support does not depend on co-operation in seeking maintenance. If my noble friend knows of any cases where this appears to have happened, I will be happy to investigate them and will be the first to do so.
Turning to the amendment itself, it seeks to provide a right of appeal under the obligation imposed on a caring parent under Clause 5. We feel there is no need for a right of appeal in such circumstances. Clause 5 imposes an obligation to provide information but does not provide for any penalty or sanction if that caring parent refuses on whatever ground to comply with the obligation. If a caring parent receiving income support, family credit or any other prescribed benefit refuses unreasonably to co-operate in obtaining maintenance, we have provided for that person's benefit to be reduced under the former Clause 22. That benefit reduction would have carried with it a right of appeal to a social security appeals tribunal which would have considered all the relevant facts of the appeal, including any refusal to provide information. That clause was removed at Committee stage.
As the proposed benefit reduction does not form part of the Bill we do not feel there is a need for the associated appeal rights. One might ask why we feel there must continue to be an obligation to provide information under Clause 5 when there is nothing we can do if the caring parent simply refuses to co-operate. We still believe that Clause 5 serves a useful purpose even without the benefit reduction in cases where there is no good cause, as set out in the previous Clause 22. It makes clear the Government's view that a caring parent should also do what she can to help obtain maintenance from the absent parent. It reminds her of her responsibility for her children and also gives my right honourable friend the Secretary of State authority to take the initiative in seeking maintenance.
I turn to the question raised by my noble friend about the role of the child support officer. The child support officer is not an adjudication officer. When considering questions of whether there is good cause he merely forms an opinion.
§ Lord Stoddart of Swindon
Before the noble Lord, Lord Henley, leaves the first point, do I understand him to say that because Clause 22 has been removed and there is no penalty for refusing to comply with Clause 5, it is not the Government's intention to bring back Clause 22 at any stage of the Bill? It is important to know the answer to that question. If the Government intend to bring back Clause 22, is the noble Lord saying that the amendment by his noble friend Lady Elles is necessary for the purpose of the Bill? That is what he seems to be saying, and it leaves the Committee in a cleft stick or on the horns of a dilemma.
§ 8.45 p.m.
§ Lord Henley
My Lords, the noble Lord is an old hand both in this House (though not as old a hand as I am) and in another place. He knows very well the convention that we do not speculate as to what another place might do with the Bill. What I will say is that if another place should decide to bring back 441 Clause 22, which contains a sanction, there would be a need for a right of appeal. All I am saying is that we are discussing the Bill as it was amended by your Lordships' House at Committee stage. At the moment there is no benefit sanction and therefore I see no need for an appeal. But I cannot speculate on what another place might do.
§ Lord Simon of Glaisdale
My Lords, perhaps the noble Lord would allow me to intervene. He said there was no need for an appeal. He has said that any appeal would be merely to an administrative tribunal. Does he think that is equivalent to an appeal to a court when the question to be decided is one of good cause or reasonableness?
§ Lord Henley
My Lords, I did not say that. I said that under Clause 22 there was a right of appeal and that appeal would go to a social security appeals tribunal. The noble and learned Lord knows perfectly well that with some regularity there are appeals on points of law to the commissioner from social security appeals tribunals.
I told my noble friend that the child support officer is not an adjudication officer when considering the question whether or not there is good cause and he merely forms an opinion. I go on to say that when there was a Clause 22 in the Bill (at the moment there is not) the benefit decision would have been taken by an adjudication officer. I hope I have satisfied my noble and learned friend that as the Bill stands at the moment there is no need for an appeal. There is no benefit sanction in Clause 5, and therefore an appeal process would not be necessary. In the light of that, I hope my noble friend will accept there is little point in having such a right and she will feel able to withdraw her amendment.
§ Lord Mishcon
Before the noble Lord the Minister sits down, I wonder whether he and the House would permit me to add something. As I was so brief before, perhaps I deserve a little recompense. I am afraid that so far I have not understood the Minister's reasoning. I will tell him why that is so to give him an opportunity of dealing with my remarks with his usual courtesy.
At the present moment under the Bill and before we reach the stage of the amendment moved by the noble Baroness, Lady Elles, there is a firm duty imposed on an applicant. The words are mandatory. They mean that if an officer decides somebody has in his view unreasonably failed to carry out a duty imposed upon her under the Bill that officer will be entitled to make a note on the records that the person has unreasonably refused to give the information which under the Bill she is required to do. As I understood the noble Baroness in moving her amendment so eloquently, she asked that there should be a right of appeal to some superior authority from that officer who could say it was wrong to put on the record that the applicant did not obey the injunction under the Bill and she was quite reasonable having regard to her grounds in not doing so. Therefore, with great respect, the Minister is wrong when he says that the position under the Bill at the moment is that there is no need for an appeal 442 because there is no sanction. The sanction will be that there is something on the record which is contrary to the interests of the applicant and her character.
§ Lord Henley
My Lords, I do not accept what the noble Lord said. All I have said is that, as it stands, Clause 5 imposes an obligation, but I stressed that there is nothing that we can do if the caring parent refuses to co-operate. With no Clause 22, there is no need for an appeal. There is only need for an appeal if there is a Clause 22. If there should be a Clause 22, that may be the time to consider whether an appeal process is necessary. I do not accept what the noble Lord said. Without Clause 22 there is no need for an appeal.
§ Lord Mishcon
My Lords, I do not want to be unduly persistent because that would be rude to the Minister and to the House. The Minister must realise that he has not answered the point that I made. Does he agree that the officer would be entitled to put on the record that the applicant has not carried out the duty imposed on her under the Act? That is something contrary to her interests and to her good character. It is that against which an appeal should lie. Will the Minister please answer the question?
§ Lord Henley
My Lords, with all due respect, I answered the question. I stressed that if the caring parent refused to comply with the obligation, it would have no effect on her. This is not the right place for an appeal. There should be an appeal only if there is a benefit sanction. I am sure that the noble Lord will accept that.
§ Baroness Elles
My Lords, perhaps I may intervene in this interesting exchange of views between the noble Lord, Lord Mishcon, and my noble friend the Minister. I disagree with my noble friend. I do not believe that he has studied subsections (6) and (7) very carefully. We have spent a considerable time discussing subsection (6) (b) which states that a person under a duty imposed by subsection (1) shall,comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information that he requires".The person is under a duty to comply. We do not know what will be in the regulations.
Those of us who from time to time have had to look at social security Acts, whether they date from the 1970s or the 1980s, will be aware that in the regulations there is always a clause which allows for disentitlement or disallowance in certain cases. One of the problems with the Bill—I understand to some extent why—is that we do not know what will be included in the regulations. We do not know that there will not be a disentitlement to income support in certain circumstances where a claimant refuses to give certain information for one reason or another. We have only to look at subsection (7) which provides:The obligation to provide information which is imposed by subsection (6) shall not apply in such circumstances as may be prescribed".We do not know what those circumstances are. We have not been told what they are. We do not know 443 whether sanctions will be put into the regulations. We have referred to "circumstances", but what will be prescribed?
I am sorry to say to my noble friend that I disapprove of the way he has answered the amendment because a claimant should have the right to be able to make an appeal. That is essential. During this afternoon we have discussed the situations that women especially find themselves in. A Government who pretend to be, and nearly always are, fair and show human understanding and humanity will be slipping in their standards if they do not allow an appeal in this case. I am sorry to say that, but I feel strongly that this is one amendment that could have been considered fairly, especially in the light of the total ignorance in which the Chamber is being kept as to the circumstances which will be prescribed and the regulations which will be adopted. Having said that, of course I have no option but to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 24 not moved.]
§ Lord Carter moved Amendment No. 25:
Page 4, line 22, at end insert:
("(aa) shall not apply where the Secretary of State is satisfied that the person to whom it would otherwise apply had reached an understanding with the absent parent that they would not be asked to contribute to I he upkeep of the child, and").
§ The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendment No. 27. This is a matter which has been brought to my attention. The aim of the amendment is to ensure that where a child is born before the Act becomes law and the parents have come to an understanding that the father will not contribute financially to the upkeep of the child, the mother should not be obliged to give details of the father.
§ The cases with which the amendment deals are those where the parents were not married, and the mother, finding herself pregnant, wished to continue with the pregnancy although the father felt that he could not take that responsibility at that time. When making her decision to continue with the pregnancy, the mother did not feel it right to call upon the father for financial support. We have all known of teenage pregnancies where that has been the case.
§ In such cases the mother will feel that she is breaking an agreement if she becomes unemployed and is called upon to provide information for the agency to enable it to track down the father. Until the Act is in force, the mother will be acting within her rights to come to such an agreement with the father. Without the amendment, the Act, in effect, will have a retrospective effect. The mother's agreement with the father will become invalid as a result of the Act. Although, as we are aware, she will not now lose benefit if she does not co-operate, she might find herself having to face difficult interviews with the agency which might upset herself and her children. As I said, she would have to break an agreement that had been reached with the father before the Act became 444 law. The wording of the amendment may not be perfect, but the point is an important one which should be taken into account. I beg to move.
§ Earl Russell
My Lords, on behalf of these Benches I offer our support to the amendment. It is a sensible and practical proposal. The noble Lord, Lord Carter, is right about the retrospective effect of the clause. When I had just arrived here, I remember listening to the noble Earl, Lord Halsbury, who said that the Chamber did not like retrospective legislation. That is true and should be true.
As it happens, when the Bill was first published I had occasion to rearrange a tutorial to find the time to be here. As a result, I fell briefly into conversation about the Bill. I discovered that the pupil concerned was a divorced, single parent in precisely the position described by the noble Lord, Lord Carter. She said that were her own arrangements to be retrospectively upset it would cause her considerable dismay. I do not believe that she is the only case.
§ Lord Henley
My Lords, the noble Lord, Lord Carter, said that the wording of the amendment was not perfect. As I shall show, it is defective in some ways. I am not entirely sure of the noble Lord's intentions.
The amendments seek to remove the obligation to provide information imposed by subsection (6) of this clause where the Secretary of State is satisfied that the parents of a child have reached an agreement for the absent parent not to pay maintenance for the child provided the child was born before April 1992. There are several interested parties where child maintenance is an issue. The parents clearly have an interest and so does the child. Indeed, as we have often said, the interests of the child must come first. Where the caring parent is in receipt of income support, family credit or any other prescribed benefit, the taxpayer also has an interest, as the amount of benefit is affected by any maintenance paid.
Is it acceptable that parents should be able to agree that the absent parent should not pay maintenance, even though he may well be able to afford to do so? It may be acceptable to the absent parent. The caring parent may not gain anything in the short-term from the payment of maintenance if she is receiving income support (but not if she is receiving family credit or the proposed disability working allowance), although in the longer term both she and her children could lose out. Certainly it is unacceptable to taxpayers, many of whom have their own children to support and who would argue that it is wrong to expect them to support other people's children as well merely because the parents decide between themselves that maintenance should not be paid; and if the amendment is accepted this would increase the risk of collusion between the parents to avoid the payment of maintenance. There is also the practical problem of how the Secretary of State is to be satisfied that a private agreement genuinely exists if the caring parent is unwilling to give any information about the absent parent.
It could be argued that placing a time-limit on when paragraph (aa) should apply gets over these problems, as it is accepted that once Clause 5 and the 445 maintenance formula become effective then parents should not be able to reach these private agreements. However, even if one accepts that existing private agreement not to pay maintenance should take precedence over an absent parent's duty to pay maintenance if he can afford to do so, and I do not accept that, Amendments Nos. 25 and 27 mean that the proposed exemption will apply to any child born before April 1992, regardless of when the parents separate. So we could have a situation where a child is born in March 1992, his parents separate in 2002 when he is 10 and because they have agreed that the absent parent should not pay maintenance the child support agency will not be able to pursue maintenance. I cannot believe that this is what the noble Lord had in mind in these amendments. In view of all this, I hope that he will feel able to withdraw his amendment.
§ 9 p.m.
§ Lord Mishcon
My Lords, before the Minister sits down, may I ask him to remember so far as he possibly can at the next stage of the Bill that he used the words —I hope I quote him accurately —"We have all agreed that the interests of the child under this Bill must come first"? Is that an accurate record of what he said? If it is an accurate record, will he remember it at Third Reading when an amendment stating that the interests of the child under this Bill must come first will undoubtedly be moved?
§ Lord Henley
My Lords, the noble Lord is as wily as ever and is trying to box me into a corner so as to cause my noble and learned friend some problems. The mere fact that I used those words at the Dispatch Box does not necessarily mean, as the noble Lord will well know, that they are suitable words for the Bill.
§ Lord Carter
My Lords, it is all rather extraordinary. It was only about an hour or two ago that the noble Lord got cross with me when I made that point. I shall look at Hansard to see what he said, but according to my memory he said, "I should make it clear to the noble Lord, Lord Carter, that it is not the intention of the Bill that the welfare of the child should be paramount". He seems to have changed his mind in the last two hours.
§ Lord Henley
My Lords, this is Report stage, but I hope I did not say that. I can check Hansard tomorrow and make sure that that is correct.
§ Lord Carter
My Lords, let us all read Hansard tomorrow. It will make some extremely interesting reading. The wording of the amendment was not intended to produce the result that the noble Lord gave as an example of the parents with the child born in March 1992. I said that the cases with which this amendment would deal were where the parents were not married, and the mother, on finding herself pregnant, wished to continue with the pregnancy, whereas the father felt he could not take that responsibility at that time. That was the intention. If we could get the wording of the amendment correct it would avoid the retrospective effect that the Act will have on these pregnancies.
446 It seems that we cannot change the mind of the Government at this time, but I reserve the right to come back at Third Reading on this point because we have not yet had the answer that we should have in the cases I have described. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 26 and 27 not moved.]
Lord Mishcon moved Amendment No. 28:
Leave out Clause 6 and insert the following new clause:
§ ("Right of child to apply for assessment
§ —(1) A child, where the Secretary of State is satisfied that the child has sufficient understanding, may apply to the Secretary of State for maintenance assessment to be made with respect to him if no such application has been made by a person who is, with respect to that child, a person with care.
§ (2) Subsection (1) does not apply in any case where section 5 applies.
§ (3) Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care, the absent parent with respect to whom the assessment was made or the child concerned applies to him under this subsection, arrange for—
- (a) the collection of the child support maintenance payable in accordance with the assessment;
- (b) the enforcement of the obligation to pay child support maintenance in accordance with the assessment.
§ (4) Where the application under subsection (3) for the enforcement of the obligation mentioned in subsection (3) (b) authorises the Secretary of State to take steps to enforce that obligation whenever he considers it necessary to do so, the Secretary of State may act accordingly.
§ (5) Where a child has asked the Secretary of State to proceed under this section, the person with care of the child shall, so far as that person reasonably can—
- (a) give the Secretary of State such information as the Secretary of State considers necessary to enable—
- (i) the absent parent to be traced (where that is necessary);
- (ii) the amount of child support maintenance payable by the absent parent; and
- (b) in particular, comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information that he requires.
§ (6) The child who has made the application (but not the person having care of him) may at any time request the Secretary of State to cease acting under this section (but subject to any regulations made under subsection (8)).
§ (7) The obligation to provide information which is imposed by subsection (5)—
- (a) shall not apply in such circumstances as may be prescribed by the Secretary of State; and
- (b) may, in such circumstances as may be so prescribed, be waived by the Secretary of State.
§ (8) The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.").
§ The noble Lord said: My Lords, I can take this shortly. At Second Reading I asked the noble and learned Lord the Lord Chancellor a question. We were providing in the Bill that Scotland should retain a procedure under which a child could make an application under this legislation. I asked why Scotland, and not England and Wales. Understandably, because there were a number of questions asked at Second Reading, the noble and learned Lord did not have time to answer that 447 question, but he answered it at the Committee stage when an amendment in precisely these terms was put down.
The noble and learned Lord's answer was—and I am paraphrasing it; I hope he thinks I do it fairly—that there were differences in procedure between Scotland and south of the Border; that that had been so for a long time; that what was suitable for Scotland might not necessarily be suitable south of the Border; and that this Bill was not meant in any event to be a Bill amending matrimonial law. That was much better done by a matrimonial Bill if it were to be done at all. He also dealt perfectly fairly with the way in which this was utilised in Scotland, and told us that it was rarely used by younger children and was mostly used by those IA ho were having the benefit of higher education.
All those replies are intelligible but they do not go to the root of the matter. If a Scottish child has that right, then I would hope that if it had a benefit, children south of the Border should have it. If on the other hand it is not utilised at all and is of no real benefit, then one wonders why in this Bill one has to go to the special trouble of seeing that Scotland retains it and that Scottish children have the benefit of it.
I would ask the noble and learned Lord to consider, by moving this amendment at this stage, whether it would riot be a good idea, without in any way harming matrimonial law reform, that we take advantage of the opportunity of giving children on both sides of the Border precisely the same rights—and if it is a worthless right, then why take the trouble to retain it under this Bill? We would be able to have a little bit of uniformity where uniformity could be useful. That is why I have brought this amendment forward at this stage. I beg to move.
§ Earl Russell
My Lords, we need not go down the road of arguing a case for uniformity between England and Scotland. Differences between the legal systems of the countries are long-standing, deep and a matter of national pride. I do not think the case for this amendment rests on a case for uniformity between those two countries: it rests on the fact that it meets a real need. It is proverbial that to lose one parent might happen to anyone but to lose two savours of carelessness. Equally to quarrel with two parents savours of carelessness. But carelessness has happened before and it will happen again. There may be times when fie only way the child is going to get maintenance is through the amendment which the noble Lard, Lord Mishcon, has moved. There may not be very many of those cases but they are entitled to our cansideration. I support the amendment.
§ The Lord Chancellor
My Lords, the remarks that I made earlier in the proceedings have been fairly mentioned by the noble Lord, Lord Mishcon. Therefore I need not repeat them. Since we last discussed this matter I have given it some further thought. I remain of the view that this Bill is not a vehicle for a change of this kind. As I sought to explain, at present in Scotland girls of 12 and over and boys of 14 and over may themselves seek aliment from 448 a parent. They are minors in Scottish nomenclature. Children under those respective ages are described as pupils and they do not have that right.
In England and Wales that right generally vests in the parent or guardian of the child or the person who has custody of him. I believe that answers the point made by the noble Earl. This amendment would overturn both approaches by allowing a child of "sufficient understanding" to apply for a formula award whether or not the child is a "qualifying child" in the terms of the Bill. I am not sure whether that effect was necessarily intended. It may be a detail of the amendment which has still to be considered.
As I explained in Committee, this Bill is intended to improve the assessment, collection and enforcement of maintenance for children. That apart, our intention is to leave the structure of family law in both jurisdictions as undisturbed as possible. As I have already said, we do not believe that this Bill is a proper vehicle for conferring new rights on children in Scotland and in England and Wales that are different in principle from their rights of action at the moment. Accordingly we have followed the established principles of each jurisdiction in limiting child applications in Scotland to minors—that is, those presently able to apply to the courts there—and in England and Wales by excluding child applicants.
If such fundamental changes as this amendment would cause are to be made in either or both jurisdictions, that could only follow a very thorough review of the matter. In my view it should be a general reform covering applications to the courts as well as through the agency. We do not wish to introduce unnecessary subtleties into the law. Why should the general principle about the extent to which a child can make applications not be a general rule, rather than state that in a particular type of child maintenance application a child can apply if he is of "sufficient understanding" but in all other cases he must be 18 years-old? That would seem to introduce an anomaly into the general law. I believe it was the noble and learned Lord, Lord Devlin, who said that a system that cannot demonstrate reasonable logicality is unlikely to survive. The more illogicalities and unprincipled distinctions there are, the more difficult it is for the legal system to be regarded as such.
Indeed one of the peculiar if unlooked for effects of this amendment is that applications for additional awards would be bound by different rules to those rules which apply in respect of the formula applications. We have considerable doubts as regards the practicality of the amendment. It bases the test of standing or entitlement to apply on whether a child has "sufficient understanding". That may be a perfectly reasonable provision when considering whether a child's views should be taken into account, but to make that a test of whether a child can apply for an award would be extremely difficult. Until the child applies and until the application is entertained, there is no machinery for deciding that matter. It is an awkward kind of test to use as the initiating test for a legal process. At the very least to establish whether a 449 child is of "sufficient understanding" would require interviewing the child and other measures. That would have to take place before the action was competent.
There is concern that, with the latitude that such a broad test would give, a parent with care might for example attempt to use even quite a young child to apply for maintenance rather than do it himself, perhaps as a way of deflecting or reducing the other parent's expected hostility.
I should like to mention one aspect of this question which is of a general nature. Those who have experience in this field, as many of your Lordships have, realise the danger of doing anything which makes children pawns in disputes between their parents, setting them up to do what the parents would not be willing to do themselves.
As I mentioned earlier, the amendment is technically defective because it would appear to allow children who are not qualifying children to seek a formula award. I do not believe that I need to go into that aspect.
I strongly submit to your Lordships that it is a sound principle in preparing legislation of this kind to follow the general principles of the legal systems affected by the legislation in respect of standing to sue, or title to sue or whatever is the appropriate phrase. Accordingly, I hope that in the light of those observations the noble Lord may feel able to withdraw his amendment.
§ The Earl of Kinnoull
My Lords, before the noble Lord, Lord Mishcon, decides what he wishes to do perhaps I may mention the fact that he described the right in Scotland as a worthless right. Can the noble and learned Lord the Lord Chancellor say whether in his view it is a worthless right? I am sure that it is not. Secondly, can he say whether there has been any recent application that has proven the case that it is of use in Scotland?
§ The Lord Chancellor
My Lords, the position in Scotland, as I explained on the previous occasion, is that the right applies to older children as well as to younger children. So far as I know, extremely little use is made of it but such use as is made of it is in respect of the older children. In the Bill the situation in respect of older children is different. Therefore, in so far as the right exists in Scotland it is not in respect of younger children, which is the area in which the test would be important in this case, that the right has proved valuable.
§ Lord Mishcon
My Lords, so that there should be no misapprehension as to what I thought I said, perhaps I may make abundantly clear what I was trying to put over. It is this. If it was a worthless right in Scotland, why take the trouble to legislate to continue with it? If it was a worthwhile right, why should not children south of the Border enjoy it? The noble Earl is kind enough to nod his head, presumably as an intimation that I have now made myself clear. I am sorry if I did not do so before.
The noble and learned Lord has correctly pointed out a technical slip in the amendment which I had not 450 noticed before and which I now recognise. He dealt with it perfectly fairly on the basis of principle and not on the basis of any technicality.
I still find it difficult to understand why the question that I have just put, because of the noble Earl's intervention, does not still apply. However, there is no point in pursuing the matter. The noble and learned Lord is very powerfully in charge of legislation which deals with matrimonial affairs. If he takes the view that it is inappropriate in a Bill of this kind to deal with the matters that I raised, only because of Clause 6 of the Bill, I do not believe that it would be worthwhile to press the matter further. We have noted what the noble and learned Lord has said and I ask leave to withdraw this particular amendment.
§ Amendment, by leave, withdrawn.
§ 9.15 p.m.
§ Clause 7 [Role of the courts with respect to maintenance for children]:
Lord Mishcon moved Amendment No. 29
Page 6, line 15, at end insert:
("()This section shall not prevent the court from exercising any power which it has to make a maintenance order in relation to a child if the order is made as part of a final order in ancillary relief proceedings in which capital is provided for housing the dependent children.").)
§ The noble Lord said: My Lords, I should like to express my regret that the noble Lord, Lord Meston, is not in his place because he is a powerful advocate when it comes to dealing with procedural matters in divorce proceedings. That is one of the questions which is raised by the amendment.
§ Perhaps I may remind the House that we dealt with the matter at Committee stage. It is customary and very useful in matrimonial proceedings that where there is a family home it forms part of a bargain which the court is usually happy to sanction. The matrimonial home goes into the settlement. In the normal case the children stay there with their mother. That means that their security is not further ruined. It is sufficiently damaging that one parent has presumably left that matrimonial home. At least there is the security that the bedroom that the children know, which was their bedroom, is still their bedroom and that the family home is still their home.
§ It is customary for orders of that kind to be made where a father, for example, who has an interest in the equity of the house transfers that to the mother and, as a result, the maintenance that he is required to pay both to the wife and to the children is lessened because of that arrangement, which the court puts into effect by way of an order. Those orders have a certain name with which I need not weary the House. I merely recall the fact that they have a name so that the House realises that they are fairly common orders for the court to make and orders that the court encourages.
§ The worry of the noble Lord, Lord Meston, and I —others participated in the worry—was that there did not seem to be any provision whereby, if you adopted formulae which were fairly inflexible, you could take into account the fact that a father had transferred his interest in the equity to the mother or into trust for the benefit of the children, or whatever course might have been adopted. That would be discouraged if the Bill 451 became an Act and a very desirable social measure, which is usually taken in those cases where it is possib e, would be removed. We therefore regretted it and showed our regret by putting down amendments which are in similar terms to that which I now move, while speaking also to Amendment No. 34.
§ When we put forward our case the noble and learned Lord the Lord Chancellor listened to it with some sympathy, but could not agree with it because he said that there were two aspects that he wanted the House to consider. Where there was a transfer of properly the award to the children would be reduced to reflect the absent parent's loss of that property. He said that if the house goes to the caring parent and the children it will reduce their housing costs and that, in turn, will emphasise the reduction in the award which will be payable under the formula. In other words, the parent will realise that that is the fact and this beneficial transfer of property—the family home—will therefore take place.
§ The organisation that looks after lone parents is very interested in the Lord Chancellor's reply and respectfully disagrees with it for a statistical reason which I shall now give. I am sure that the noble and learned Lord will take it into account. Recent research which has been funded by Rowntree, based on 4,000 cases and undertaken by the Family and Community Dispute Research Centre at the University of Newcastle, shows that most lone parents who take over the family home have high costs to meet as they take over a mortgage which was formerly paid from two or one-and-a-half incomes. The housing costs of the majority of those lone parents were increased, not decreased, by the property transfer. The effect of that aspect of the transfer would therefore be to increase the maintenance award rather than to decrease it.
§ The noble and learned Lord the Lord Chancellor also claimed that the maintenance awarded would be reduced in the sense that the absent parent's housing costs are taken into account in working out maintenance. Again, that argument was looked at by that worthy organisation which is so concerned about the matter. It says in reply that while there would be some reduction in the award through this mechanism, it would not be sufficient. In addition, some absent parents may find that they are unable to take out mortgages as they will have no capital. Others will find that the reduction in the award does not correspond to the increased payments necessary to buy a house without capital. The research points out that the White Paper gives an example of a case of property transfer in example 7. The home that is transferred is worth £40,000 in equity. Initially the father rents a property and pays £35 rent and £64 maintenance. However. when he buys a property his housing costs increase by £55 a week to £90, but his maintenance is reduced by only £27 a week to £37. If it is realised by absent fathers that they will still be paying considerable weekly cash maintenance payments, as well as losing their equity, there will be resistance to property transfers.
§ The noble and learned Lord made one other point in answer to the amendment. He said that it would lead to an increase in benefit payments because lone 452 parents would receive lower maintenance awards and that would not be fair to taxpayers, many of whom do not own houses. The organisation says, "We have considered that carefully". It points out, first, that where a property transfer leads to lower housing costs for the lone parent, that would reduce benefit payments.
§ Secondly, they believe that the unamended Bill, if not amended by these provisions, would lead to fewer property transfers and therefore more calls on local authority provision and to more homelessness. That in itself would lead to a greater burden on taxpayers. At present the national total of council housing is shrinking at a rate of 140,000 units a year. At the same time homelessness and the use of crisis accommodation would cause further disruption for the children of the family who would already be dealing with the effects of the relationship breakdown of the parents.
§ It is true that overall the children of divorced parents are already disadvantaged in terms of housing tenure. Research carried out by the Department of Environment labour force survey in 1986 indicates that whereas between 70 per cent. and 76 per cent. of married parents are owner occupiers, depending on age, only 21 per cent. to 45 per cent. of divorced lone parents are owner occupiers depending on age. I am indebted to that worthy organisation for briefing me as they may have done other Members of your Lordships' House so completely with regard to the answers that the noble and learned Lord the Lord Chancellor gave on the last occasion. I hope that this further anxiety of this organisation, which is expressed too by other organisations, will make the noble and learned Lord think again about these amendments and agree to them. I beg to move.
§ 9.30 p.m.
§ The Lord Chancellor
My Lords, the group of amendments allows the court or the agency to adjust the amount of maintenance which the formula would otherwise produce in certain circumstances. When similar amendments were discussed in Committee, as the noble Lord said, the anxiety underlying them was explained as, first, a wish to achieve fairness for an absent parent which some noble Lords believed would not be achieved if the formula were applied in these cases without some discretion or modification; and, secondly, to allow the parents flexibility in settling financial arrangements on divorce including securing a home for the children.
I explained then—and I shall make some comment on the responses that the noble Lord has made—that the Government believe that the formula will produce a fair result without such amendments, and that it will be sufficiently flexible as it stands to take reasonable account of property transfer, and in particular the provision of a home for the children.
The examples given by the noble Lord, Lord Mishcon, provided to him by the organisation from which he obtained information, suggest that there is a flexibility in the formula. For example, in the first circumstance that he mentioned there had been a transfer of a substantial mortgage in addition to a transfer of equity in the house. The arrangement was 453 that the caring parent should pay the mortgage instalments. If that is correct the formula will take account of that situation. The absent parent will not have a mortgage responsibility to meet and therefore there will be a reduction in his expenditure. The general consequence will be that that factor will tend to increase the payment for maintenance that he must make. The second example illustrated the opposite circumstance and again the formula will broadly produce the right result.
There is no question of the matter being exact in every case; a good deal depends on the way in which the parties arrange their affairs. I repeat, that one of the difficulties now faced by property owners on divorce is the great uncertainty about the final arrangements. No clear rule is laid down about what the courts will do. I have received more than one letter from Members of Parliament raising questions about that difficulty. On balance, the letters suggest that the constituents believe that the courts are too hard on husbands and that they penalise them in the settlement and in the transfer of the order to too great an extent.
One of the great advantages of the formula is that when one knows the circumstances one will know the exact situation. The transfer of valuable house property in favour of the caring parent and children will reduce their expenses. The replacement of those assets for the husband to give him a place in which to live will increase his costs and reduce the amount that he will have to pay. Therefore the formula will result in the right balance. If, on the other hand, he retains the property and the wife and children must incur house costs in order to set themselves up, his housing costs may be reduced to that extent depending on the size of the mortgage which must always be taken into account. As a result he will have to pay more under the formula and that will help to compensate for the additional housing costs which the circumstance gives to the wife and children.
The Government believe that the formula as at present constructed should already produce a fair amount of maintenance. Any attempt to take special further account of property transfers would often result in double counting and would be unfair to the child and to the caring parent. I should also stress that Amendment No. 29 would severely erode a major objective of the Bill; namely, the provision of a certain and predictable award which cannot be attacked as being unfair or being a result of a bias on the part of the court either for or against husbands and wives. The Government believe that it is right that where children are concerned awards of maintenance should be consistent and predictable. A main purpose of the formula is to achieve that.
The matters which the noble Lord raised are obviously rather detailed. I tried to follow them as he put them to me but I shall study further what he said to see whether I missed any matters. I believe that I followed the general thrust of what he was saying. At present I commend the provisions as they are without the amendment. I shall look carefully at what the noble Lord said as a result of the communications 454 which he has received. I shall take account of those and shall see whether anything further needs to be done.
§ Lord Mishcon
My Lords, I am most grateful to the noble and learned Lord for his last remarks. I intend to make only a few concluding remarks.
The noble and learned Lord mentioned people writing to their Members of Parliament and Members of Parliament had passed on those letters to him. Most noble Lords will agree that husbands who are content with an order of the court do not write to their Members of Parliament to say so. Only those with a grievance do so. I should be very surprised if any letters reach the noble and learned Lord which praise the court or express contentment with a situation.
The other point which I wish to make—and I know that the noble and learned Lord will not think it unfair —is that so often we hear from those putting forward legislation, as we on this side of the House would want to say if we were putting forward legislation, that flexibility is so important because circumstances vary. It is rather strange to hear the defence, "We cannot be flexible because we must be certain and there must be the certainty of the formula". It seems to me that that does not amount to a consistent argument in regard to legislation especially when, as I understand it, it would be extremely difficult to import flexibility afterwards by way of regulation which went against the principles of the Bill.
This is the stage at which we either decide to alter those principles and the basis on which calculations are made or we do not. As I said at the outset of my concluding remarks, the noble and learned Lord was good enough to say that he will consider the points which I rehearsed, having obtained them from the organisation to which I referred. I am sure that that organisation will be as grateful as I am that the noble and learned Lord has promised to consider those points and see whether they cause him to alter his view. I am sure that the noble and learned Lord will have the courtesy, if possible, to let me have any observations which he has before Third Reading so that I can consider whether it would be appropriate to table further amendments at Third Reading. In those circumstances, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 30 not moved.]
§ [Amendment No. 31 not moved.]
§ Clause 9 [Maintenance assessments]:
§ [Amendment No. 32 not moved.]
Lord Houghton of Sowerby moved Amendment No. 33:
Page 7, line 17, leave out ("support").
§ The noble Lord said: My Lords, I am not sure that Amendment No. 32 is in order because I cannot make sense of it.
As regards Amendment No. 33, I am confused about the difference between maintenance and child support maintenance. Clause 9(2) states:
The amount of child support maintenance to be fixed by any maintenance assessment shall be determined in accordance with the provisions of Part I of Schedule 1
§ What is the difference between maintenance and child support maintenance? In the maintenance enforcement Bill that we passed in January there seemed to be no doubt that we talked of "child maintenance". Why has "child support maintenance" suddenly come into it? Is it a bit of gloss like the pictures on the document accompanying the Bill to say that children are special? Why use three words to deal with what after all is maintenance or child maintenance?
§ "Maintenance" is a statutory word; "child support maintenance" is something we are creating in the Bill. It is thy; same thing but has a different name. Does child support maintenance come out of a maintenance assessment which is not a child maintenance assessment? What is it? Throughout the Bill we see this confusion between a maintenance assessment which k then apparently turned into a child support maintenance payment or determination. We should clear the matter up.
§ I allowed Amendment No. 12 to pass because I was so exhausted with all the other work I was doing. I was attempting to arrange for the defeat of the Government on Tuesday in addition to working on the Bill. I found that to be a great strain for a man of my years. Therefore I allowed Amendment No. 12 to pass. But the point arises here. I am not sure whether it is worth pursuing. But it should be cleared up if we are to leave the Bill in any kind of intelligible order. I beg to move.
§ The Lord Chancellor
My Lords, the effect of the amendment would be to provide that the amount of child maintenance,to be fixed by any maintenance assessment shall be determined in accordance with the provisions of Part 1 of Schedule 1".I do not believe it is a point of vital importance. If the noble Lord will allow me, I shall ask parliamentary counsel a) look at the matter specifically. I suspect that we may be able to make it even simpler.
§ Lord Houghton of Sowerby
My Lords, I am obliged to the noble and learned Lord. I hope we can sort the matter out later on. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 34 not moved.]
Lord Stoddart of Swindon moved Amendment No. 35:
Page 7, line 19, at end insert:
("() in fixing the amount of child support maintenance payable, account shall be taken of the cost to the absent parent of maintaining contact with the child.").
§ The noble Lord said: My Lords, during the debate at Committee stage I stressed that costs of access could in many instances be very high and quite prohibitive. Long distances may be involved resulting not only in high travel costs but also in many instances overnight costs in respect not only of the visiting parent but also of the children. Eating out costs also may be incurred in some circumstances and they are high.
§ Unfortunately in too many cases access costs are so high as to be beyond the means of the non-resident parent, with the result that contact with the children is 456 lost. Surely that is not what we want. Society increasingly recognises the value of maintaining contact with both parents after divorce or separation. Indeed, the Bill is about each parent being responsible for the financial maintenance of the children and demands the interest of both parents for that purpose.
§ The National Association of Citizens Advice Bureaux, which supports the amendment, made an interesting point in its briefing note wherein it quotes evidence published by the Family Policy Studies Centre in March of this year which shows that almost half the fathers of children who live alone with their mothers have lost contact with these children. In total, 750,000 children have lost contact with their father. As the National Association of Citizens Advice Bureaux has pointed out, if access costs are not included in exempt income, more children may lose contact with their fathers. That would be a very sad result.
§ Since the Committee stage I have received information from Families Need Fathers which not only shows how high access costs can be but also draws attention to a further disadvantage suffered by visiting parents in relation to concessionary rail fares. An example is that of a man whose wife moved from London to Cornwall and who had to spend over £200 on rail travel to collect and return his children over the Easter holiday. That is because family rail card concessions are not available on those portions of the journey where the parent is travelling alone.
§ The matter was taken up with British Rail. It was proposed that where all the tickets for a holiday were purchased at one time a concession could be made, which seems absolutely reasonable. However, BR InterCity said that it would be impossible to control the provision and it would be open to fraud. So the visiting parent is further disadvantaged by being unable to get concessionary fares to visit his children although the cost may be very high and, as I have said, quite prohibitive.
§ During our debate at Committee stage I felt that the noble Lord, Lord Henley, was unsympathetic. He did not seem to think that this was a very important matter. I sincerely hope that he has thought better of it since because it is important. If we want to ensure that children have access to both parents, and if we believe that that is important, I hope that the noble Lord will accept my amendment. If he does not I hope that he has much better news for me than he had at Committee stage. I beg to move.
§ 9.45 p.m.
§ Lord Carter
My Lords, I am pleased to support this amendment in the name of my noble friend Lord Stoddart. As my name is attached to Amendments Nos. 96 to 99, I shall speak to those too as they are in a group. My noble friend has already covered extremely well the point about access costs. The whole group of amendments to increase the exempt income for assessable income purposes is necessary because maintenance agreements which are made on such a basis are more likely to be realistic and are therefore more likely to be paid regularly. That is extremely important.
457 In this group there are the three items to be exempted from the assessable income: the work-related expenses (for example, travel expenses); the costs we have already heard about incurred in maintaining access to children—travel to the children's home, overnight accommodation and so on; and the cost of the community charge liability after deduction of the appropriate rebates and reductions, in so far as we can keep up with the rebates and reductions which the Government are introducing. The above costs are either unavoidable (that is, community charge), or help incentives to work (that is, the work-related expenses), or to maintain family relationships as in the access costs. We feel that all three expenses should be recognised as having sufficient importance to justify exemption.
Amendment No. 96 is to increase the exempt income of the absent parent by introducing an allowance for work expenses. Obviously the impact of such a change would be greatest on the low-paid absent parents. In addition to increasing exempt income to cover work expenses, we believe that it is right to include the community charge in the exempt income for obvious reasons. The introduction of a protected income is essential for those on the lowest incomes or with large financial responsibilities. If there is to be an incentive to work, the protected income needs to include work-related expenses.
In Committee the noble Lord, Lord Henley, said:In fairness to the children, exempt income should only include essential expenditure".—[Official Report, 19/3/91; col. 560.]Obviously we agree with that statement, but the question of what is essential remains. In our view, if an absent parent is prevented from working because he does not have enough remaining income to cover his work expenses, those expenses must be regarded as essential. A similar argument can be made in relation to access costs and to community charge payments. Those liabilities are all essential and yet without this amendment they will not be covered in primary legislation.
Before I sit down I should say that the noble Baroness, Lady Elles, has asked me to move Amendment No. 99 for her. She is not in her place as she has a previous engagement this evening.
§ Earl Russell
My Lords, I too should like to offer support for this group of amendments. They involve what I think is the important general principle that when we talk about rates being proportionate to income we ought to be thinking not about gross income but about disposable income. Two people on the same gross income are not, in fact, equally well off if their circumstances differ widely.
I know this runs against prevailing philosophy which is, on the whole, one gathers, all against the recognition of allowances. That is a mistake. That is not treating like with like. If one does not make allowances for necessary expenses one is treating two people who are not equally well off as if they were.
The point about access is vital. It would certainly defeat the declared object of the White Paper if, by the process of getting maintenance for the child, we were 458 to deprive it of the chance of communication with its father. That would be a very sad result. I should like to ask any of us who attended our party conferences during the past year what sort of sum that cost us. It is the sort of sum that would make a fairly considerable difference to someone who may be, after the deduction that the absent parent is paying under the formula, somewhere fairly near income support. We are dealing with quite considerable sums.
The point about work-related expenses is equally important. Work-related expenses are something which do not fall equally on one profession with another. That view is one in which, in my academic capacity, I ought to declare an interest. I know something about work-related expenses. The extent to which they are reimbursed by employers also varies very sharply from profession to profession. As we are at present living in the most expensive capital city in Europe to travel about, our work expenses tend to be quite considerable.
At the Committee stage I said that I would not dwell on the amendments about the community charge benefit and that I would give the Government the benefit of the doubt. I am glad to find that I was right to do so. The community charge is like King Charles II; it is an unconscionable time dying. We are dealing with something which will be here until 1993, possibly until 1994 because it is more important to get it right than to do it quickly. Therefore, even though the community charge is to disappear, in the interim some hardship may be created if we do not take account of it.
§ Lord Henley
My Lords, I apologise if the noble Lord, Lord Stoddart, thought I was unsympathetic at Committee stage. I certainly did not intend to be and I hope I will not come over as unsympathetic today. Perhaps I may deal with one specific problem. As I understood from the groupings, originally we were dealing with Amendments Nos. 35 and 96 to 99. I may have misheard the noble Lord, Lord Carter. Did he also intend to take in Amendments Nos. 100 to 102 and 103, and bring in the work-related expenses'?
§ Lord Carter
My Lords, I think that Amendments Nos. 96 to 99 are in connection with the absent parent and Amendments Nos. 100 to 103 deal with the caring parent. That is the way we grouped them on the list.
§ Lord Henley
My Lords, I am not sure whether the noble Lord wishes to discuss all those amendments now, even though they have been split from their groupings.
§ Lord Henley
My Lords, in that case, I shall deal with Amendments Nos. 35 and 96 to 99.
The White Paper made clear that exempt income for both the parent with care and the absent parent represents the income which the parent keeps for his or her own essential expenses and as such has first priority over maintenance. It is deducted from the total of his or her net income—I emphasise the word "net"—before any consideration is given to maintenance. So, in fairness to the children, exempt income 459 should only include essential expenditure. Maintenance payments under the formula will represent only about 25 per cent. to 30 per cent. of a parent's net income allowing the parent to make choices about other expenditure, but after maintenance is paid.
We accept that in some cases these expenses may be genuine and heavy but the issue is whether it would be right to give them precedence over the child's right to basic maintenance —I am certainly glad that the noble Lord,:Lord Carter, accepts that point—rather than the parent having to meet them from remaining income. We do not believe that including expenses, such as has been suggested, with or in exempt income is putting the interests of the child first. In the case where the child maintains contact with both parents, the absent parent will normally incur costs in looking after the child during such time as the child is with that parent. We are considering how best to take account of those costs under the provisions of Clause 33, with which we shall deal later, which gives the Secretary of State the power to change the amount of maintenance payable in special cases.
I shell now deal briefly with Amendment No. 99 which i3 tabled in the name of my noble friend Lady Elles. It seeks to add to the provision for exempt income a parent's "reasonable personal expenses". Exempt income already covers parents' essential personal expenses. Therefore, to add this expenditure would be to double the provision.
We believe that the provisions to be made in exempt income should he restricted to what is essential in order to ensure proper recognition of the needs of the child. Maintenance will form only a third or less of net income and there is the safeguard of the protected level of income.
As noble Lords will know, details of the maintenance calculation are to be set out in regulations. We will reflect on all the points made today and those made in Committee about exempt and protected income when we come to consider the precise definitions of these terms. In the meantime, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Stoddart of Swindon
My Lords, I must say that I am most unhappy with that response. I am quite sure that the Minister does not wish to appear unsympathetic; indeed I am certain that he is not. However, it must be said that his words were unsympathetic. I regret that fact. In my view, he and the Government must understand that one of the basic rights of children is access to both parents. That is a most important consideration. It is only right that a child should know his or her father and mother. If we make it very difficult for one parent or the other to obtain access to the children, then the development of the children may be at risk. Indeed, in most cases, it will certainly not help their development.
The Minister must understand that these high costs often, although not always, arise through no fault of the non-resident parent. For example, a wife—or even a husband—may decide to move to another part of the country which is far away. Indeed the parent concerned may decide to move to another country. 460 There is nothing on God's earth that the non-resident parent can do about such a situation. He or she has to pick up the tab of the visiting costs.
What I am asking for in the amendment is some recognition of that and some sympathy for it. I had hoped the noble Lord, Lord Henley, would have grasped the point between Committee stage and Report. Clearly, he has not; or perhaps other people with whom he is associated have not. I have certainly grasped it, and I hope other noble Lords have done so.
Late and regrettable though it is, I feel I have a duty to test the feeling of the House.
§ 10.1 p.m.
§ On Question, Whether the said amendment (No. 35) shall be agreed to?
§ Their Lordships divided: Contents, 9; Not-Contents, 25.
|Division No. 3|
|Carter, L.||McNair, L.|
|Ezra, L.||Mishcon, L.|
|Houghton of Sowerby, L.||Russell, E. [Teller.]|
|Lockwood, B.||Stoddart of Swindon, L. [Teller.]|
|McGregor of Durris, L.|
|Annaly, L.||Hesketh, L.|
|Astor, V.||Hooper, B.|
|Belstead, L.||Kinnoull, E.|
|Brougham and Vaux, L.||Long, V. [Teller.]|
|Caithness, E.||Mackay of Clashfern, L.|
|Carnock, L.||Morris, L.|
|Cavendish of Furness, L.||Portsmouth, E.|
|Craigmyle, L.||Reay, L.|
|Denham, L. [Teller]||Shrewsbury, E.|
|Elliot of Harwood, B.||Skelmersdale, L.|
|Ferrers, E.||Waddington, L.|
|Fraser of Carmyllie, L.||Willoughby de Broke, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 10.9 p.m.
§ Schedule 1 [Maintenance Assessments]:
§ Lord Carter moved Amendment No. 93:
Page 30, line 27, at end insert:
("() such further amount or amounts (if any) with respect to a disabled child as may be prescribed.").
§ The noble Lord said: My Lords, I shall speak also to Amendment No. 85. The purpose of the amendments is to provide for the costs of a disabled child in the maintenance arrangements. It is an amendment that we debated in Committee. We received some encouragement from the Minister's response and so we have tabled the amendment again. It seeks to augment the maintenance formula proposed in the Bill to make it sufficiently flexible to meet the needs of disabled children more adequately.
In Committee, the Minister recognised the need to give careful consideration to the complex issues raised in attempting to include in the Bill children with disabilities. At col. 562 of Hansard on 19th March he said:
We are carefully considering all those views. Our aim is to do what is in the best interests of children while being fair to the parent paying maintenance. We do not wish to exclude
disabled children from the improved system of child maintenance but we recognise that there are other complex issues here which may be more appropriate for the courts".
On a different amendment but a related issue at col. 347 on 14th March he said:
It would undoubtedly be right to recognise in some way the extra costs they may incur because of their disabilities when calculating their ability to pay maintenance, and we are considering how best to do this".
That was in connection with disabled parents, but there is the recognition of the extra costs of disability.
§ The principle of inclusion is particularly important as this Bill is of special relevance to children with disabilities. First, the OPCS survey showed that they are much more likely than other children to grow up in a single parent family. The OPCS survey found that 19 per cent. of their sample of families with a disabled child were headed by a single parent compared with 13 per cent. of the general population. The same survey confirmed that the parents of disabled children are less likely to be in paid employment than other parents. When they are employed they are lower paid. There are three factors relating to poverty—unemployment, low pay and single parenthood—which are more likely to occur in the families of disabled children and therefore put them at risk of having financial resources which are inadequate for their needs.
§ I am sure that the Minister will not wish to go over the debate we had on the Disability Living Allowance and Disability Working Allowance Bill on the extra costs of disability, but there is an agreement. The OPCS surveys revealed the extra costs of disability, and many other organisations have also produced their own evidence of this. There is no doubt that there are extra costs of disability, in particular for disabled children.
§ It is beyond doubt that these costs are great and have an important bearing on the well-being of a disabled child and on the family, including other children. Because the position is impossible some means have to be found to ensure that adequate maintenance is made available within the framework of the Bill, and that is the suggestion that has been devised in this amendment. The intention has been to use a form of words that ensures a minimum extra amount to be awarded to children with disabilities in all cases without attempting to limit the award to that specific amount, so as to admit a variation in the light of the great differences in need and circumstances that are experienced by disabled children.
§ In our view the amendment combines the necessary powers of flexibility with the fundamental acknowledgment of the special needs of the disabled child. It potentially transforms the will to include all children within the same legislation and administrative procedures into a reality. There is a flexibility in the amendment which is intended to reduce the likelihood of parents having frequent recourse to any appeals procedure attached to the agency. That in itself will make it a cost-effective measure. I beg to move.
§ Earl Russell
My Lords, we too would like to support this amendment. It seems to be a simple and commonsense amendment. Disability carries with it extra costs. Those costs need recognition. As 462 technology improves, the number of things that can be done to make it easier for disabled people to live a normal life goes up and up, but of course those things carry costs with them. I think it is in the public interest to incur those costs because it makes it easier for disabled people to live as nearly as possible a normal life in the community, and in the end to work, which is for the benefit of the gross national product and ultimately the Treasury. The OPCS have calculated the costs themselves at £6.54 per child on average, and £12.53 per child in cases of severe disability. As the House knows well, the OPCS figures have been attacked by a great many people with specialist knowledge of the area as being a good deal too low. I shall not go into that; but, one way or another, disability carries costs. If the formula does not recognise that, it is being consistent at the expense of accuracy. That would be a pity.
§ 10.15 p.m.
§ Lord Henley
My Lords, rather than dealing directly with the amendment, it might help if I tell my noble kinsman Lord Russell and the noble Lord, Lord Carter, exactly where we are at the moment. I believe that the noble Lord and my noble kinsman will recall that we were not minded, where a child was disabled, to include the available allowances in the maintenance requirement. The White Paper invited comments from all interested parties. We are considering all the views carefully, and particularly the views of my noble kinsman and the noble Lord.
This is an important issue and it is right that careful thought should be given to how best to protect the interests of these children. Officials from the Department of Social Security have met some of the main organisations involved in this field to discuss this issue. That was a constructive and helpful meeting. Our aim is to do what is in the best interests of children while being fair to the parent paying maintenance. We do not wish to exclude disabled children from the improved system of child maintenance. The issues are complex and may require a discretion that, possibly, is more appropriate to the courts. I hope that with that brief resume of the position, the noble Lord will feel able to withdraw his amendment.
§ Lord Carter
My Lords, before I withdraw the amendment, will the Minister help the House by telling us what timescale is involved with this issue? Is it possible that by the time the Bill reaches another place, the Government may suggest a provision on this issue?
§ Lord Henley
My Lords, I cannot promise to produce anything between now and Third Reading. I stress that these are complex issues. It would be rash of me to make promises as one does not know at what speed the Bill will progress through another place. However, one lives in hope in that regard.
§ Lord Carter
My Lords, that is the kind of reply I expected. I also live in hope. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.463
Lord Simon of Glaisdale moved Amendment No. 94:
Page 31, line 32, leave out paragraph 4.
§ The noble and learned Lord said: My Lords, this amendment is intended to draw attention to the nature of Schedule 1, which is an extraordinary schedule. It is the very quintessence of bureaucratic legislation. In Committee the noble Lord, Lord Mishcon, quite rightly did not table an amendment to delete Schedule 1 as that would clearly have been a wrecking amendment, nor did he seek to speak on the question that Schedule 1 should stand part of the Bill. In all the circumstances, it seemed right that speakers on the Cross-Benches and Back-Benches should follow suit. Anyone who is in the position of the noble Lord on this Bil1 has not only the task of leading the critical scrutiny of the Bill but also of pacing the proceedings so far as they relate to that scrutiny.
§ Therefore, before I tabled this amendment, I obtained the approbation of the noble Lord, Lord Mishcon. However, I shall deal with the amendment as briefly as I can although a whole volume could be written on the first schedule. Perhaps I may say by way of introduction that I referred to its incomprehensibility when I spoke on Second Reading. My noble friend Lord Henderson of Brompton pointed out rightly that the Renton Committee had approved of the use of this type of fractional formula. So it had, but it added the proviso: so far as they are capable of being understood by those who are affected. It was particularly in the context of revenue statutes that the Renton Committee gave its approval. A revenue statute containing this type of formula would be examined by chartered accountants, solicitors and counsel with special training in such matters. Here, however, the people who are affected are the young couple whose marriage has broken up and, in Scotland, the child—a child over the age of 14 in the case of a male and 12 in the case of a female. My noble and learned friend will correct me if I have the Scottish position wrong.
§ Looking at Schedule 1 can anyone possibly say that it is capable of being understood by those who are affected. by it? It is and has to be taken on trust by a court. The language is not directed to the public at all. It is directed to the child support officer.
§ In ancient Rome there was a famous saying, "Lucullus dines with Lucullus". Lucullus was the great sybarite but his choicest of meals were kept for his own consumption, so that "Lucullus dines with Lucullus" was the very height of sybaritism. So we can say of this schedule, "Sir Humphrey writes for Sir Humphrey". It is understandable by nobody except the civil servant who publishes it and the civil servant who administers it. It is too bad if the unfortunate wife or husband cannot understand it. They must take it on trust.
§ Having said that, I directed the amendment narrowly to a part of the schedule dealing with the alternative formula—lines 38 and 39 of page 31. The formula runs like this (AE being the additional element):
§ AE (1 - G) x A x R.
§ That must appear almost as simple as the famous formula in which Einstein encapsulated his theory of 464 special relativity, a most misleading simplicity in both cases because one has to translate the G, the A and the R.
§ I shall not take your Lordships through all the intermediate steps. However, finally—not finally but I gave up in despair at this point—it works out like this: 1=MR/((N—E)+(M—E))x(0 to 1) (where (0 to 1) is a figure between zero and one which may be prescribed by the Secretary of State).
§ My noble and learned friend dwelt on the certainty of the formulaic approach. How much certainty is there when you have a final multiplication factor which can be prescribed by the Secretary of State? However, that is not the end of it because the whole of that fraction must be multiplied by A, which works out[...] PM/(N—E)+(M—E). as That formula too is then to be multiplied by (N—E).
§ Your Lordships might think that that should be the end of the matter, but you would be disappointed; because one must then go on to multiply by R, which is on page 31, line 34, and again that figure is between zero and one as may be prescribed. I have not got anywhere near the end of the possible formulae, but that is already 10 separate symbols, several of them repeated, and that is what is presented to the private citizen whose rights are affected. I can only say that it seems to be absolutely shameless bureaucracy to legislate in that way. I beg to move.
§ Lord Mishcon
My Lords, perhaps I should make a confession. If a former distinguished President of the Family Division, as it now is, and a very distinguished former Lord of Appeal in Ordinary cannot work out that formula, but the Department of Social Security can, I am beaten on my argument that the courts should take over the whole of the Bill.
§ Lord Stoddart of Swindon
My Lords, I sympathise with my noble friend and everyone else who has to deal with the Bill. It is essential for us to be sure that the Government know what it is all about. I therefore wonder whether the noble Lord, Lord Henley, who is to reply, can take us through it with one or two examples to show how it would work. I think that that is the only way that someone with my non-mathematical mind will be able to understand the matter. I only understand people on the ground and how it affects them and how much cash they have in their pockets or in the bank. To prove himself and to instil confidence in your Lordships that he knows what he is talking about, perhaps the noble Lord would take us through a couple of examples.
§ Baroness Faithfull
My Lords, are the parents to understand this? Who will explain it to them and how will they understand it?
§ 10.30 p.m.
§ Lord Houghton of Sowerby
My Lords, may we call this "Children's Hour" and seek to make some sense of it? Frankly, we should adjourn now until we can read all this in Hansard. It will take the Hansard 465 writers and producers until tomorrow morning to get it straight and then it might be a little more intelligible. Of all the legislative gibberish, my Lords, I doubt whether there is anything to compare with the speech of my noble and learned friend who sits behind me. It really is incredible. What about the citizen's rights? What about intelligibility? Where do the children come into the issue? Some of them could probably find the answer more quickly than their parents.
What are we expected to do with this formula? If we leave it out—which we could well do—the Bill would be so mutilated that it would have no engine. Alternatively, we can withdraw it which means that we come back to the matter on another day when it can be made more intelligible.
Quite frankly, this is not serious legislation; and this is not a serious hour for it. If we are to stay much longer, we shall want to enjoy the debate, and there will have to be some fun. I have never enjoyed anything more than all-night sittings in the House of Commons—the fun we had during the night, my Lords. We had some star turns. The late Lord Hale was the speediest talker in the House of Commons. He could rise to his feet and keep us in raptures of laughter when reciting a story about Lancashire lads who got into trouble. We were quite sorry when the dawn came. But there is nothing so exciting as that in this Chamber. I have not heard such talents from noble Lords and noble Baronesses present as would give us some entertainment for the remainder of the night—and it is getting on that way.
To conclude on a serious note, what does my noble friend expect us to do? I ask the noble and learned Lord on the Woolsack what he considers we ought to do. What does the Opposition Whip consider we ought to do? It is all very well to have self-regulation but someone has to tell us how we get through this Marshalled List. What hour do we continue until? Do we continue to the end of the sheet? Do we adjourn when we are tired and fed up? Do we stay until somebody says that we can go? We are just working our way through the amendments by putting our noses in the right direction.
I am serious on this point. Next week we shall uphold the reputation of the House of Lords in a very big way. Yet here we are frittering our reputation away in this manner. Thank God the television cameras are not switched on. However, other records are being taken of our proceedings and can be quoted. Earlier today we were talking about children weeping on television. If that is linked with this debate tonight, many people will consider that we are crazy.
I believe that I have said enough to indicate that I am greatly disturbed at the state of affairs in your Lordships' House.
§ Lord Henley
My Lords, the noble Lord offers me an interesting challenge: to sit here all night. I certainly would not object to that, although I do not know about other noble Lords. I suspect that the noble Lord himself would not like to sit here all night. I can tell the noble Lord that I believe that there has been some informal understanding that we shall not 466 sit much later. We can probably complete this amendment, and possibly one or two more, depending on the time.
The noble Lord, Lord Stoddart of Swindon, offered me a very interesting challenge. I am afraid that at this time of night I shall turn it down. It might help if I write to the noble Lord, and to the noble and learned Lord, Lord Simon, setting out in greater detail some explanation of how the clause works. I do not intend to speak to the merits of the amendment because that was not a matter to which the noble and learned Lord turned his mind.
My noble friend Lady Faithfull was worried that no one would be able to understand the provision. I thank the noble Lord, Lord Mishcon, for agreeing that the department should be managing these affairs because it can understand them—
§ Lord Henley
My Lords, I take seriously everything that the noble Lord says. There was a time when the Department of Health was known as the Department of Stealth and Total Obscurity, but I hope that we have moved beyond that. I do not accept that the paragraph of the schedule is so complicated. I am sure that we shall be able to write to the noble Lords and explain its meaning—
§ Lord Mishcon
My Lords, I am sure that the Minister will write the letter personally; but difficulty may arise if it is sent to only one Member of the House. If we undertook to arrange for a blackboard and easel to be in the Chamber on Monday would the Minister feel it appropriate to take us through the schedule? All noble Lords would then have the benefit of his explanation.
§ Lord Henley
My Lords, as the noble Lord knows, the rules of this House preclude the use of exhibits as is the case in another place. The use of a blackboard would not be appropriate in dealing with the problem. I shall write to the noble Lords—
§ Lord Carter
My Lords, there are 10 equations in the schedule and each is related to the others. Can the Minister produce the full expression in one equation? I believe that it is possible because they are all subsidiary.
§ Lord Henley
My Lords, I believe that will be difficult if not impossible. It is important to return to the amendment. It deals with the additional element which the noble Lords wish to have explained, and in particular the equations. I have offered to write to the noble and learned Lord, and I shall send copies to the noble Lords, Lord Stoddart, Lord Mishcon and to any other noble Lord.
The intention is to set out the details of the formula in regulations. That will include what should be the appropriate deduction rate and how the additional element might be calculated. The aim is to ensure that children receive a fair and continuing share in parents' prosperity. As a result of the light-hearted remarks made during the debate, I accept that some noble Lords believe that there is some complexity in the 467 paragraph. For that reason, I have offered to write to them. Paragraph 4 sets out the basic principles of the calculation of the additional element. It might be that at this hour of night the noble and learned Lord and other noble Lords find it more difficult to grasp the complexities. That is another reason why I shall write to them. The deduction rate will be different from that applying for the maintenance requirement. It will apply to the assessable income left once the maintenance requirement is met. However, the alternative formula described in subparagraph 3 will mean that this will be subject to a maximum and that no extra maintenance will be due under the formula.
It would not be right for me to go further at present. I hope that the noble and learned Lord will accept the fact that I agreed that the issue is complex. The noble Lord, Lord Mishcon, asked that I should write the letter myself—
§ Lord Mishcon
My Lords, I had anticipated that the Minister would write the letter only because he has been so clear in his explanation of the schedule.
§ Lord McGregor of Durris
My Lords, I realise how difficult this must be for the Minister. Is it not possible for the only mathematician in the House to take us by the hard on Monday and explain the formula to us?
§ The Lord Chancellor
My Lords, nothing would give me more pleasure. If we need to have a seminar of that kind, I shall be happy to conduct it. I am sure that my noble friend will be able to provide a worked example with factors in it showing how this can be applied which noble Lords will be able to study at leisure. However, if that fails, I shall be delighted to set up a seminar, although possibly not in the Chamber, having regard to its rules, to work through an example with your Lordships. These calculations are rather simple. It is easy to make them difficult. It is because they are much easier in formula form than in words that, on this occasion, we have chosen to use a formula. I do not believe that the calculations are very difficult.
§ Baroness Faithfull
My Lords, Will my noble and learned friend draw up something which parents can read and understand?
§ Lord Chancellor
My Lords I could apply the formula to a parent's circumstances. That is the purpose of the computer. It is very easy to make calculations on the computer and when one has a computer, it is possible to make far more calculations than we could make in the time available to us in our heads or even on a piece of paper. This formula can embrace so many different circumstances. There must be a degree of structure about it. It is a question of being sufficiently numerate in order to apply the formula. If parents are numerate, they can do that. If they are not, they may not be able to make the calculation themselves but the agency computer will readily give them the information, much more readily, as the noble Lord, Lord Mishcon said, than a clerk of the court would be able to do.
§ Lord Mishcon
My Lords, although there has been a certain amount of amusement as regards this 468 amendment, we are dealing with a serious subject. How will the father, who has to pay, and the mother, who is expecting the payment, be able to tell from the schedule whether the assessed amount is correct? That is the situation with which we are dealing. We are dealing with little citizens in need of support. The real question is not whether this House can understand the formula or the noble and learned Lord, who has a distinguished past in the area of mathematics, can explain the formula, but whether the recipient and the payer can understand whether or not the amount is correct.
§ The Lord Chancellor
My Lords, the steps which need to be taken involve multiplication, addition and subtraction of given quantities. Anyone who wishes to take the trouble could follow that through. I anticipate that people will entrust the calculation to the computer. Perhaps your Lordships are not afflicted with overdraft interest on your bank accounts. However, I imagine that although the calculation is understood, not many of your Lordships check it. If it is checked, that is with the help of a calculating machine or other equipment of that kind. The reason that this is an administrative matter is because it is a calculation applied to given facts.
§ Lord Simon of Glaisdale
My Lords, I am most grateful to those noble Lords who have contributed to this discussion. My noble and learned friend, as the noble Lord, Lord Mishcon, pointed out, is a famous mathematician. He probably holds this whole series of formulae in his mind. But neither he nor the noble Lord, Lord Henley pretended for a moment that this schedule could be understood by the people who are affected by it. They are typically the people described in Example 3 in the White Paper. It is a young husband whose marriage has broken up and whose income is £160 a week. His wife must manage out of that and out of what she receives from child maintenance.
There is a famous account which, if I have it wrong, will perhaps be corrected by the noble Earl, Lord Russell. Marie Antoinette, on hearing a cry for bread said, "Let them eat cake". If Mary, the young wife in Example 3, cries out for bread, the answer that will come from the department will be, "Let her eat formulae".
Finally, it is a disgrace to legislate in this way. It is not parliamentary democracy; it is bureaucratic ukase. Instead of the law regulating these matters it is the agency. The law, as we have seen repeatedly in these discussions, takes primary cognisance of individual rights; bureaucracy takes primary cognisance of social order. Each has its place. If either usurps part of the place of the other, it is very much to our disadvantage socially. That is what is unhappily happening in this Bill in a most grave way.
With regard to the amendment, the noble Lord, Lord Henley, was quite right in pointing out that it will do no conceivable good simply to remove paragraph 4. The whole of Schedule 1 in its viciousness can remain, and Schedule 4, dealing with 469 the additional element, does not do very much more harm. However, it has drawn attention to the issues with which we are concerned.
The noble Lord, Lord Henley, with his usual courtesy, offered to write to me to explain the schedule at greater length. Much as I enjoy receiving letters from him, I am not sure that I am entirely entranced by having Schedule 1 explained at greater length.
§ 10.45 p.m.
§ Lord Henley
My Lords, perhaps the noble and learned Lord will allow me to intervene. It was only paragraph 4 that I promised to explain to him. But if he would like me to explain the whole of Schedule 1, I shall undertake to do that.
§ Lord Simon of Glaisdale
My Lords, I am grateful, though I believe I can excuse the noble Lord; I am not sure that I am even all that enthusiastic about having paragraph 4 explained at greater length.
In view of what has happened I shall ask leave to withdraw the amendment. We shall have to return some time later to pull together all the bureaucratic elements in the Bill. The noble Lord, Lord Mishcon, his mathematical wit sharpened by Schedule 1, estimated that there were 94 regulating-making powers in the Bill. Counting again, he told us that only 12 were subject to the affirmative resolution. We shall have to take that and the jurisdiction of the courts into account. We shall have to take into account the massive recruitment of civil servants; that of the inspectors with powers of entry and to levy distress. Those factors are whittling away at the common law safeguards of the law of distress. All those matters will fall for final determination and discussion, no doubt at Third Reading.
In withdrawing my amendment I ask your Lordships to bear in mind what this Bill is doing by way of legislation to people in humble circumstances, not all of whom are of the highest educational standards. A series of formulae are being laid down which they cannot possibly understand and they are being asked to take it or leave it. As the noble Lord, Lord Mishcon, said, how can they possibly check their rights? But individual rights do not matter in this context. I beg leave to withdraw the amendment.
§ The Lord Chancellor
My Lords, is it your Lordships pleasure that this amendment be withdrawn? The amendment is, by leave, withdrawn.
§ Lord Houghton of Sowerby
My Lords, no! What does the rule say about "by leave of the House" when the leave of the House is not sought and, as far as I am concerned at this moment, it is not given? I can understand that the noble and learned Lord, Lord Simon of Glaisdale, has had enough of this amendment, but I doubt whether the rest of us feel that we are at a suitable stage in the debate on it to let it drop and to go on to something else. Not until we understand more about what we have been discussing for the past 15 minutes shall we be in a fit state to proceed with the Bill.
§ Baroness Faithfull
My Lords, does the noble Lord, Lord Houghton, agree that none of us is in a fit state to discuss this formula or understand it at this time? Speaking for myself, I would like to go home and to return fresh on Monday when this matter can be explained to me in words of one syllable so that I can understand it. I do not think I can take in anything more tonight.
§ The Lord Chancellor
My Lords, the Question is that Amendment No. 94 be agreed to? If the noble Lord, Lord Houghton, does not wish leave to be granted for it to be withdrawn, the Question is that Amendment No. 94 be agreed to? As many as are of that opinion will say "Content". To the contrary, "Not-Content".
§ Amendment negatived.
§ Moved accordingly and, on Question, Motion agreed to.
§ House adjourned at seven minutes before eleven o'clock.