§ 4.36 p.m.
§ Consideration of amendments on Report resumed.
§ Clause 10 [Interim maintenance assessments]:
Lord Simon of Glaisdale moved Amendment No. 36:
Page 7, line 28, leave out from beginning to end of line 29
§ The noble and learned Lord said: My Lords, this amendment is yet another attempt to shorten the Bill and therefore to shorten the statute book, which has been growing so alarmingly and so quickly. New volumes are extremely expensive. This is an attempt to cut out a few of what seem to me at first sight to be unnecessary words.
§ This clause is concerned with interim maintenance assessments, and it is in a totally familiar form. The Minister takes powers in a permissive form to make regulations very generally. In this case he takes a power to make regulations as to interim maintenance. The clause continues in a familiar way, that in particular he may make regulations; in other words, the particularity being within the generality. There is a saying that "The opera ain't over until the fat lady sings", so I do not think the Report stage is over until the Minister has had an opportunity of saying how desirable, even if not necessary—my noble and learned friend always said "strictly necessary"—the form of drafting is. But in the Children Bill, in the Courts and Legal Services Bill, and again here my noble and learned friend has explained that although the particular provision is not strictly necessary it is nevertheless desirable to apprise Parliament of what sort of regulations are intended.
Your Lordships will see from subsection (3) that:
The regulations may, in particular, make provision as to—(a) the procedure to be followed in making an interim maintenance assessment; and
(b) the basis on which the amount of child support maintenance … is to be calculated".
How much does that really convey to Parliament? Why should we continue to countenance this absurd and lengthy method of drafting? There is another particular curiosity about the clause. The general regulations in subsection (2) are subject to the affirmative resolution procedure. However, subsection (3) containing the particularities of subsection (2) is subject only to the negative procedure. I shall be grateful if the Minister will deal with that discrepancy.
I suggest that the clause should read:
The Secretary of State may by regulations make provision as to
the particulars in subsection (3) (a) and (b). In other words, I suggest deleting the words "interim maintenance assessment". It is difficult to see at first sight what that provision could contain that is not contained in subsection (3).
§ I understand that the noble Lord, Lord Henley, has been kind enough to write to me about the matter. I have been on the move and unfortunately have not been able to see the letter. However, I am grateful to him for writing. The fact that the letter has not been scrutinised by me is entirely my fault.505
§ It is in the interest of doing something, even only a little, to squeeze out of the statute book excessive and unnecessary verbiage that I beg to move.
§ Lord Meston
My Lords, I support the amendment. I recall that the noble and learned Lord made a similar point in Committee. It was a good point then and it is a good point now. The best that can be said for the words that he wishes to delete is that they appear as a result of an abundance of unnecessary caution in case the Secretary of State can think of anything else about which he wishes to regulate.
§ Lord Henley
My Lords, the noble and learned Lord has returned to a subject that he raised in Committee. I undertook to write to him and I did so on 27th March. I understand that the letter was posted and that it is not necessarily the fault of the noble and learned Lord that he has not received it. I sent a copy to the noble Lord, Lord Mishcon, which I hope he has received. The noble Lord also looks blank. To lose one letter might be a mistake, but to lose two might be carelessness. I shall try to discover what has happened to the letters—
§ Lord Mishcon
My Lords, the fact that I look blank ought not to occasion any reaction in the noble Lord.
§ Lord Henley
My Lords, I take the noble Lord's word for that. I shall look into the matter as the letter might assist in our deliberations.
As ever, the noble and learned Lord, Lord Simon, is anxious about the clarity of our legislation and the efficiency of its drafting. He seeks to confine regulations under the clause to matters detailed in subsection (3) (a) and (b) which give examples of the issues which the regulations might cover. In Committee I gave a full description of the purposes to which interim maintenance assessments would be put. It is not necessary for me unduly to delay our proceedings on Report by repeating that..
The main purpose of the regulations is to provide for circumstances where the procedures required for interim maintenance assessments will differ from those for assessments made with complete information. Clause 39, the interpretation clause, provides that interim maintenance assessments will be regarded in the same way as maintenance assessments at every point where they appear in the Bill except where prescribed differently in regulations.
Clause 10(3) (a) and (b) give two clear examples where interim maintenance assessments will be different from maintenance assessments made with complete information. However, it may be necessary to prescribe for other matters such as appeals where the procedure system will need to be different in order to prevent that system being used merely as a delaying tactic. We also believe that there will be differences in the procedures for collection and enforcement. All those issues are still being worked through.
I undertake to keep the noble and learned Lord informed of our deliberations on the matter. I shall ensure that my letter of 27th March reaches him and that copies are sent to the noble Lords, Lord Mishcon and Lord Meston. If we find that circumstances in 506 which interim maintenance assessments will differ from maintenance assessments can be expressly detailed in this subsection of the Bill, we shall be prepared to think seriously about doing so. However, we do not wish unnecessarily to clutter the Bill, and I am sure that the noble and learned Lord will not wish us to do so.
The noble and learned Lord, Lord Simon, asked why subsection (2) is subject to the affirmative procedure while subsection (3) is subject to the negative procedure. Subsection (2) contains the power to make the regulations but subsection (3) does not. It merely stresses what in particular the regulations may cover. If after reading my letter of 27th March the noble and learned Lord has further comments to make, he might wish to return to the matter at a later stage.
§ 4.45 p.m.
§ Lord Simon of Glaisdale
My Lords, I am grateful to the noble Lord, Lord Meston, for his support. I am also grateful to the noble Lord, Lord Henley, for his reply. There is some residuum in the words which I seek to delete; namely, that enforcement may be different. Surely, if enforcement of an interim maintenance assessment is so important, your Lordships should be told in what respect it differs from the enforcement provisions of maintenance assessments.
The Minister mentioned a further issue. Rather than clog up the statute book in this way, surely it would be better to inform Parliament when it is asked to pass what is, in effect, a skeleton and enabling Bill what the regulations will contain. If they are sufficiently important to merit the affirmative resolution procedure, they are sufficiently important for Parliament to be advised of their contents.
In Committee I suggested that Parliament might see the amendments in draft. My noble and learned friend said that that would not be possible until the power to make the regulations had been enacted. However, that runs quite contrary to the assurance which your Lordships were given that the regulations under what was then Clause 23, which was subsequently removed from the Bill by your Lordships' decision, would be shown before the Bill left your Lordships' House. Therefore, I reiterate that when we have a Bill like this which depends on its regulation making power—the noble Lord, Lord Mishcon, counted 92 powers and there will be more before we have finished because my noble and learned friend has tabled amendments to add more powers—the least that can be given constitutionally is to let Parliament see what those regulations will be. There is no reason why they should not be published in draft well ahead of the power being given by the statute coming into force.
Finally, many years ago I was interested in a Bill of Mr. Duncan Sandys when he was president of the Board of Trade. It was an iron and steel Bill. I went to him with an amendment to add a provision making a friendly gesture towards competition which was entirely consonant with government policy. However, he had pared down that Bill until every word had been carefully weighed. He was not prepared to see it 507 diluted. With very great respect, I urge Ministers to go through Bills in that way to see what can be expunged and to see whether a particular vague provision like this cannot be more adequately dealt with elsewhere in the Bill.
As I ventured to say on the very first amendment which I moved, words which are plainly unnecessary—and I gather that the noble Lord, Lord Henley, would say this is not such a case—should be expunged. Where it is arguable, a judgment must be made. However, that judgment should not be on each occasion to leave the words in the Bill, as the noble Lord, Lord Meston, said, to make assurance doubly but quite unnecessarily sure.
§ With those observations, which I make with all humility, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 [Information required by Secretary of State]:
Lord Mishcon moved Amendment No. 37:
Page 8, line 35, leave out subsection (3).
The noble Lord said: My Lords, on the last occasion in Committee, my noble friend Lord Prys-Davies moved an amendment in precisely the same terms. The object of the exercise is to expunge from the Bill the following power which is to be given to the Secretary of State under it:
The Secretary of State may by regulations make provision authorising the disclosure by him or by child support officers, in such circumstances as may be prescribed, of such information held by them for purposes of this Act as may be prescribed".
Your Lordships will be very jealous of the fact that confidential information is given to a government department and then the power is given to the government department and to its employees to disclose information without saying to whom and with what limitation.
On this amendment which was before your Lordships in Committee, the noble and learned Lord the Lord Chancellor gave a very frank response. As I understood him, he assented to the idea that there must be confidentiality. He then used the words which caused us to have second thoughts about obtaining your Lordships' views on the omission of this clause. He said that there must be confidentiality and said:
Proper safeguards of confidentiality will be maintained".—[Official Report, 19/3/91; col. 576.]
§ On that occasion he did not tell us the limits or bounds within which proper safeguards of confidentiality will be maintained. So that it is on the record, perhaps the noble and learned Lord will prescribe the limits which regulations will spell out so that we all know that confidentiality as we should want it will be observed in regard to this power to disclose. If that is done, I shall ask the usual leave of your Lordships. However, that should be on the record, and I invite the noble and learned Lord to tell us in broad outline how those regulations will be framed in order to see that confidentiality is secured in the way that I have mentioned. I beg to move.
§ The Lord Chancellor
My Lords, there is no question but that confidentiality of information of a personal nature is a matter of considerable anxiety. 508 Officers of the child support agency will be subject to Section 19 of the Social Security Act 1989 which makes it a criminal offence to disclose information without lawful authority. Regulations concerning the disclosure of information will include safeguards to ensure inappropriate disclosure is not made. For example, there will be strict controls on disclosure of information that would help to identify an individual's whereabouts, such as his address or the name of his employer. Such information will not normally be disclosed without the written authority of the individual concerned.
However, it will be necessary to allow some disclosure of information so that appeals may be properly made, to minimise the bureaucratic procedures that clients of the agency will need to follow and to ensure that there is sufficient liaison between the agency and the courts.
An individual can only effectively exercise a right of appeal when he or she is fully aware of the facts on which an assessment has been made. It is intended that all of the information necessary for an individual to understand the assessment will be disclosed. Such disclosure will be the minimum possible information. Names, addresses and employers will not be disclosed. It will be, for example, the number of children, the amount of housing costs or the net earnings. That will be the general situation.
§ Lord Mishcon
My Lords, so far the noble and learned Lord has uttered precisely the same words as are contained at col. 576 of Hansard. I took it for granted that he would not repeat the words which he uttered in Committee but that, as I asked, we should have, as he can give them, particulars of the regulations as he can give them which will protect confidentiality.
§ The Lord Chancellor
My Lords, I find it difficult to set the scene for this without discussing the subject matter as I dealt with it in Committee. If the noble Lord is prepared to take that for granted, perhaps I may tell him that we are not yet in a position to propose draft regulations. He may take it that we shall do our level best to make sure that the amount of information disclosed will be only the necessary amount required for the purpose of making effective appeals or, for example, for allowing the courts properly to—
§ 5 p.m.
§ Lord Simon of Glaisdale
My Lords, I am grateful to my noble and learned friend. This being an area of great sensitivity, is it not a case where Parliament should see exactly where regulations draw the limits? My noble and learned friend is being extremely vague in indicating where those limits should be. I gather that the Ministry has not yet made up its mind on the matter. It is highly desirable that its mind should be made up in an area of such importance, and that Parliament should see the regulations.
§ The Lord Chancellor
My Lords, undoubtedly the regulations will be made by statutory instrument and 509 Parliament will see them. The question is what should be disclosed at this stage or what should be said about disclosure.
I am seeking to say that the subject matter is obviously sensitive; it also involves considerable detail. For example, precisely what will be disclosed to the court is a matter of considerable importance and requires to be specified in detail. At this moment I am not in a position to produce the draft regulations. Even if I were, what is sought here is regulation-making power and it is not possible to restrict that by reference to a specific draft. All I could do with even the more detailed draft is indicate the heads under which the regulations may be made.
I do not believe it is possible for me at this stage to say more than that confidentiality will be set aside only where it is necessary for the purpose of the proper functioning of the system and the giving of the necessary information to the individuals concerned to enable them for example to prosecute their appeal or for the court to consider the situation relative to related applications with which it may have to deal.
I cannot do more than indicate the subject matter of the regulations at this stage. Even were I in a position to produce draft regulations, they would do no more than indicate a possible way in which the power could be used. The idea of having powers is to use them properly in the light of the circumstances at the time the power is exercised. That is the best I can offer at this stage.
Disclosure will be allowed only where it is necessary for the court considering the matter of, for example, spousal or child maintenance outside the scope of the formula or some other matter related to the application, and for the proper understanding by the parties to a determination by the agency of the basis upon which that determination was reached.
§ Lord Mishcon
My Lords, I am extremely disappointed by the reply of the noble and learned Lord. I respect what he says; however, I ask your Lordships to consider precisely what we are doing. By legislation we are saying in Clause 12 that the Secretary of State may make regulations requiring any information or evidence needed for the determination of any application under the Act. We do not have a copy of the regulations; we do not know what information will be sought. If Parliament endows a department and its employees with power to ask for information, at least we must see that the information is kept completely confidential unless there are overpowering reasons for departing from that confidentiality.
Only recently we witnessed the nervousness with which people looked at the powers of government to insist upon the completion of a census form, the assurances that they sought in regard to confidentiality and the answer that was frankly given by the Government in that connection. That is all too recent for us now glibly to accept a clause which demands that information shall be given. The Government even sought to include a sanction in case the information was not forthcoming.
510 When one asks the Government to spell out the confidentiality with which they intend to safeguard the information they force an applicant to give, one is told that, although regulations must be made and that they must be specific if they are to satisfy Parliament, they cannot be produced now, at the Report stage of the Bill.
It is a matter which could regrettably form an undesirable precedent. I do not believe your Lordships will be very happy if we accept the clause without assurances and subsequently Parliament, governed by whatever party it may be—including my own—was able to cite this as a power given to a government department. A person is forced to give information; regulations are produced which say that the Government can pass on that information to third parties. But there is nothing on the face of the Bill to describe the confidentiality with which that information will be treated and the limits of that confidentiality. When Parliament, before proceeding with the Bill, asks what will be in the draft regulations, it is said we can be told in general terms but that the Government cannot be specific.
That is a danger sign. Before the caution of yellow turns to red I shall ask your Lordships' opinion of the amendment. If satisfactory assurances had been given I intended to ask leave to withdraw it. No such assurances have been given and I ask for the decision of the House.
§ 5.7 p.m.
§ On Question, Whether the said amendment (No. 37) shall be agreed to?
§ Their Lordships divided Contents, 68; Not-Contents, 93.511
|Division No. 2|
|Ardwick, L.||Hughes, L.|
|Aylestone, L.||Hutchinson of Lullington, L.|
|Bancroft, L.||Jay, L.|
|Birk, B.||Jeger, B.|
|Blackstone, B.||John-Mackie, L.|
|Bonham-Carter, L.||Kennet, L.|
|Boston of Faversham, L.||Kirkhill, L.|
|Carter, L.||Leatherland, L.|
|Cledwyn of Penrhos, L.||Llewelyn-Davies of Hastoe, B.|
|Clinton-Davis, L.||McGregor of Durris, L.|
|Cocks of Hartcliffe, L.||Mackie of Benshie, L.|
|Craigavon, V.||Masham of Ilton, B.|
|Dean of Beswick, L.||Mason of Barnsley, L.|
|Donaldson of Kingsbridge, L.||Meston, L.|
|Dormand of Easington, L.||Mishcon, L.|
|Ennals, L.||Molloy, L.|
|Ezra, L.||Morris of Castle Morris, L.|
|Falkland, V.||Nicol, B.|
|Foot, L.||Northfield, L.|
|Gallacher, L. [Teller.]||Phillips, B.|
|Galpern, L.||Pitt of Hampstead, L.|
|Gladwyn, L.||Prys-Davies, L.|
|Graham of Edmonton, L. [Teller.]||Robson of Kiddington, B.|
|Russell of Liverpool, L.|
|Grantchester, L.||Seear, B.|
|Halsbury, E.||Sefton of Garston, L.|
|Hampton, L.||Shaughnessy, L.|
|Harris of Greenwich, L.||Simon of Glaisdale, L.|
|Henderson of Brompton, L.||Stedman, B.|
|Hollis of Heigham, B.||Stoddart of Swindon, L.|
|Houghton of Sowerby, L.||Taylor of Blackburn, L.|
|Taylor of Gryfe, L.||Walston, L.|
|Tonypandy, V.||White, B.|
|Underhill, L.||Winchilsea and Nottingham, E.|
|Wallace of Coslany, L.|
|Acton, L.||Lauderdale, E.|
|Alexander of Tunis, E.||Long, V.|
|Ashbourne, L.||Lurgan, L.|
|Astor, V.||Mackay of Clashfern, L.|
|Auckland, L.||Mancroft, L.|
|Belhaven and Stenton, L.||Margadale, L.|
|Bessborough, E.||Merrivale, L.|
|Blatch, B.||Mersey, V.|
|Blyth, L.||Milverton, L.|
|Borthwick, L.||Morris, L.|
|Boyd-Carpenter, L.||Mountevans, L.|
|Brabazon of Tara, L.||Mowbray and Stourton, L.|
|Brigstocke, B.||Munster, E.|
|Brougham and Vaux, L.||Murton of Lindisfarne, L.|
|Butterworth, L.||Nelson, E.|
|Campbell of Alloway, L.||Norrie, L.|
|Carnock, L.||Nugent of Guildford, L.|
|Cavendish of Furness, L.||Oppenheim-Barnes, B.|
|Cawley, L.||Orkney, E.|
|Clanwilliam, E.||Orr-Ewing, L.|
|Cochrane of Cults, L.||Park of Monmouth, B.|
|Cons tan line of Stanmore, L.||Pearson of Rannoch, L.|
|Cullen of Ashbourne, L.||Pender, L.|
|Dacre of Glanton, L.||Peyton of Yeovil, L.|
|Davidson, V. [Teller.]||Rankeillour, L.|
|Denham, L. [Teller.]||Reay, L.|
|Dilhorne, V.||Rees, L.|
|Elibank, L.||Renton, L.|
|Elliott of Morpeth, L.||Rodney, L.|
|Erroll, E.||Saint Albans, D.|
|Ferrers, E.||Selkirk, E.|
|Foley, L.||Sharples, B.|
|Fraser of Kilmorack, L.||Skelmersdale, L.|
|Gardner of Parkes, B.||Strange, B.|
|Greenway, L.||Strathmore and Kinghorne, E.|
|Gridley, L.||Sudeley, L.|
|Hailsham of Saint Marylebone, L.||Swansea, L.|
|Harmsworth, L.||Thurlow, L.|
|Henley, L.||Trefgarne, L.|
|Holderness, L.||Trumpington, B.|
|Hood, V.||Waddington, L.|
|Hooper, B.||Wade of Chorlton, L.|
|Hylton-Foster, B.||Westbury, L.|
|Jeffreys, L.||Wise, L.|
|Johnston of Rockport, L.||Wynford, L.|
|Knollys, V.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Schedule 2 [Provision of Information to Secretary of State]:
§ 5.15 p.m.
Lords Houghton of Sowerby moved Amendment No. 106:
Page 35, line 36, leave out ("an") and insert ("a named").
§ The noble Lord said: My Lords, my comments follow pretty closely those which the House has just heard from the noble and learned Lord, Lord Simon of Glaisdale, and from my noble friend Lord Mishcon. This Bill should have gone to a Select Committee. It needs far closer examination than can be given it by the normal Committee proceedings in your Lordships' House. What astonishes me is that a Bill of this kind, put down for Second Reading on 25th February, attracted fewer than a dozen noble Lords to speak and only two Back-Benchers among my noble friends. My noble friend Lord Stoddart of Swindon and myself were the only two Labour Back-Benchers 512 to speak on a Bill which has far-reaching consequences for a great many people whom we represent.
§ This is a Bill for the pursuit of individuals employing all measures that can possibly be given by Parliament. The Bill is to pursue persons who are wanted in connection with the determination of maintenance support which they are required to make in cases where people are applying for social benefits to live on. The more I go into this Bill the deeper my anxieties grow about it. I have spoken to a number of noble Lords who have said, "The more work we do on this Bill the more questions are raised and the more answers are not available because many of them are going into regulations."
§ The extension of bureaucracy into this field is a very important social measure. When political leaders talk about freedom, yet liberties can be lost casually under conditions of apathy in Parliament, then surely constant vigilance becomes the only safeguard of liberty. We are badly in need of a Bill of Rights. We should know where the limits of the law go and where the limits of bureaucracy can be extended. This time I have left out my main assault on Schedule 2 which I opposed so strongly, and probably at undue length, in Committee because I have discovered things that even I, with my vigilance in these matters, had not fully appreciated.
§ There are two problems. One is the disclosure of information which is provided for up to a point and which is the subject of this amendment to Schedule 2. The other is the practical use of the machinery of the Inland Revenue to implement the purposes of the Bill. I am not going to deal with that aspect. I want to speak about confidentiality because the use of the Inland Revenue so far does not arise under the Bill. In passing I warn the House of the kind of thing in the background to the Bill.
A briefing was sent to noble Lords by the Family Policy Studies Centre. On enforcement, it states:
There may be surprise that the tax system is not being used as a way of making automatic maintenance deductions. It is not known why the Government has decided against following Australia's example where the Child Support Agency is based within the Australian Tax Office and has achieved a high level of compliance".
A memorandum sent to noble Lords by the National Council for One Parent Families urged an amendment on the following lines:
(2) The Secretary of State may order that maintenance will be collected in like manner as Income Tax in order to secure the payment of any amount due from a liable person under the maintenance assessment in question
(3) Maintenance may be collected in like manner as Income Tax so as to secure the payment of—
That is a proposal for the tax system to come fully into play to recover maintenance support payments.
§ There is a danger here which has to be watched. I shall add another fear. I predict that an attempt will be made to transfer to the Inland Revenue the responsibility for the collection of poll tax arrears. The 513 Inland Revenue machinery, both as regards information and its spread of collecting resources, is obviously vulnerable to those elements in public administration for which governments are seeking more effective answers in taxation at source. I shall not pursue that; it does not arise under the Bill, but one cannot help but have anxieties about what may happen.
I turn now to the very small amendment that I propose. I was unaware that Section 59 of the Social Security Act 1986 had already conceded to the Department of Social Security the right to seek from the Inland Revenue information in connection with the assessment or collection of income tax. It provides:
No obligation as to secrecy imposed by statute or otherwise on a person employed in relation to the Inland Revenue shall prevent information obtained in connection with the assessment or collection of income tax from being disclosed to the Secretary of State".
Those are the words employed in Schedule 2. However, the power has already been granted to the Minister in the exercise of his existing powers.
On 9th May 1990 the Financial Secretary to the Treasury in another place in answer to a Written Question said:
Section 59 of the Social Security Act 1986 permits the Inland Revenue to provide information to the Department of Social Security and the Department of Health and Social Services for Northern Ireland, in connection with the operation of the benefit Acts, without breaching their confidentiality obligations. At present the information provided is confined to the details required to account for class 1 national insurance contributions, which the Inland Revenue collects on behalf of the DSS, and details of those known to be self-employed to assist DSS in collecting class 2 national insurance contributions".
He went on to state, and here we come to the relevant aspect:
I have now asked the Inland Revenue to extend the disclosures made under their authority to include the addresses of absent parents and, where appropriate, the names and addresses of their employers, in cases where the absent parent is liable under the Social Security Act 1986 to maintain lone-parent families receiving income support".—[Official Report, Commons, 9/5/90; col. 123.]
That has already been done. It has been done by request of the Financial Secretary to the Treasury to the Board of Inland Revenue under the blanket authority of Section 59 of the Social Security Act 1986. As far as I can tell, there is nothing in the law as it stands at present to prevent the Secretary of State for Social Security asking the Inland Revenue for particulars of the income, wages and other matters relating to persons about whom the social benefit people may wish to have more information.
§ The complication here is that for some reason not clear to me—it may be because a child support agency is to be created—we are putting in the Bill provisions already available to the Secretary of State under Section 59 powers of recovery. Therefore it is not very clear whether Schedule 2 to the Bill refers solely to the child support agency or whether it refers generally. We have two separate authorities here; the Social Security Act which gives authority to the officers of the Department of Social Security and now a Bill to give similar authority to the child support agency.
§ These two provisions have to come together somehow: otherwise, the Secretary of State will 514 operate under Section 59 and the child support agency will operate under Schedule 2 to the Bill. All I can do at the moment is to try, as the main issue has been dealt with in Section 59 of the Social Security Act 1986, to tie down the conditions under which the child support officers may seek information from the Inland Revenue—conditions similar in kind at the present time to those given to the Secretary of State by the Social Security Act 1986.
§ Amendments Nos. 106, 107 and 108, which go together, require that there should be a named person. Disclosure should be given only in regard to a named person. A child support officer, under some kind of authority given by the Inland Revenue, should not be allowed to wander over all the pay-as-you-earn deduction cards to see whether he can find somebody else he is looking for. If we are to have the right of inspection it should be through a named person and a named person only. That is as far as I can take it. If I seek to remove Schedule 2 altogether and the powers that it confers upon the child support officers with the consent of the Board of the Inland Revenue, I still leave the problem that the Secretary of State already has those powers. If he is going to transfer some of his responsibilities for recovery to the child support agency, then quite obviously he will want to transfer his powers of inspection of information in the books of the Inland Revenue. Therefore, so far as concerns the agency, I want to ensure that it is restricted in its rights of inspection to a "named person" and consent is given in writing.
§ Noble Lords may feel that the passion I have about confidentiality of Inland Revenue records is unnecessary. But I must emphasise the fact that it is most important. Indeed, it goes far wider than the issue which we are now considering. The nibbles already exist. For example, in the Social Security Act 1986, the Social Security and Housing Benefits Act 1982, the Charities Act 1960, the Finance Act 1986 and the Finance Act of 1972.
§ Most of the inroads into the confidentiality of Inland Revenue records have been in relation to the collection of taxation. That applies mostly to the freedom of exchange of information between Customs and Excise on VAT and the Inland Revenue on the taxation of companies which may be liable to pay VAT. However, as I have indicated, the danger of the spread already exists. Bit by bit, justified on the grounds of some particular need, we find that the erosion spreads as regards the use of information which is put in the hands of government departments.
§ I have not had sufficient time to explore the law on databanks and disclosure in that connection. However, there is no doubting the fact that the names of citizens are becoming more readily available to a wider range of people. The names are coming from somewhere. Indeed, names and addresses are being sold in blocks, classified as to social status and likely capacity for levels of consumer expenditure. All these things have their dangers from the point of view of the freedom of the citizen in relation to certain confidential matters which he has had to disclose for other statutory purposes.515
§ I hope that I shall receive some sympathy from the noble and learned Lord on Amendments Nos. 106, 107 and 108. I am not dealing at present with Amendment No. 109 because it raises another issue. I beg to move.
§ 5.30 p.m.
§ Lord Simon of Glaisdale
My Lords, I should like to support the noble Lord, Lord Houghton of Sowerby, on the background that he put to the amendment. It has two bases: one was the wider constitutional basis, and the other was the basis upon which we run our system of Inland Revenue. The liberty of our fellow countrymen depends upon a balanced constitution in which powers are separated.
The noble Lord, Lord Houghton of Sowerby, mentioned the massive increase of bureaucracy which is the keynote of this Bill. It means that executive power is being aggrandised at the expense of Parliament, especially in the regulation-making power which takes the place of normal parliamentary legislation, and at the expense of the judiciary. We have not seen the last of that because my noble and learned friend has tabled a most deplorable amendment. It adds to the ouster of the courts which is consummated by Clause 7. It adds to that by making an appeal system not to the courts, which was one of the ways suggested in the Bill, but to an administrative tribunal. All those things, as well as the amassing of information in breach of confidentiality, as we now know, represent an erosion of personal liberty. Even taking one further but massive step, we proceed along that path with very great temerity.
The other aspect concerning the background of the argument put forward by the noble Lord, Lord Houghton of Sowerby, was the nature of our Inland Revenue system. As one who was once responsible in that sphere, I wholeheartedly second what the noble Lord said from his vastly greater experience. Our system of Inland Revenue is, I think, unique. We largely depend on the self-assessment of the taxpayer. That has been so from the beginning. That can exist only if the taxpayer is sure that his confidences to the Inland Revenue will not be betrayed. However, it is precisely betrayal which one finds in the Bill.
Similarly, the Inland Revenue cannot rely upon a frank disclosure by way of self-assessment unless it can assure the taxpayer that it will respect his confidentiality and his confidences. Therefore, although we are from time to time and from step to step concerned in this Bill with small erosions of liberty—more aggrandisements of the executive at the expense of Parliament and of the courts—the issue is, cumulatively, of vast importance, and we take that path at our peril. We would do well to consider carefully the remarks made by the noble Lord, Lord Houghton of Sowerby. It goes very much beyond any detail of this Bill; it goes to the very basis of our constitution and to the very basis upon which we collect tax by way of self-assessment.
§ The Lord Chancellor
My Lords, I feel sure that any matters connected with the Inland Revenue referred to by the noble Lord, Lord Houghton of Sowerby, would 516 be matters to which your Lordships would attend very carefully, especially so when they are reinforced by my noble and learned friend Lord Simon of Glaisdale. However, I have to say that on this occasion I doubt whether the fears expressed by the noble Lord are justified by the terms of the Bill. I say that because the Bill does not permit the use of financial information disclosed to the Inland Revenue. The purpose of the clause which the noble Lord seeks to amend is precisely to delimit what it is that the Secretary of State may use revenue information for and what the revenue may lawfully disclose to the Secretary of State.
As the noble Lord pointed out, under the Social Security Acts there is the possibility of a certain amount of disclosure. What we have done here is not just to push that along, but to use primary legislation to define the position regarding the Inland Revenue. That recognises that we appreciate fully the general matters of principle to which the noble Lord, Lord Houghton of Sowerby, referred and which were touched on by my noble and learned friend Lord Simon of Glaisdale. I utterly reject the idea that the Bill, in any improper way, trenches upon the Inland Revenue system of which those two Members of the House have such intimate knowledge. On the contrary, the clause merely permits Inland Revenue information about the current address or the current employer of the absent parent to be disclosed. It has nothing to do with self-assessment, financial information or anything of that kind. It is a measure of the regard that we have had to the principles to which the noble Lord, Lord Houghton of Sowerby, referred that that point has been the subject of detailed legislation.
Perhaps I may at long last come to the amendment. The noble Lord is seeking to add the words "a named" in front of "absent parent". In other words, it is "a named absent parent". It is impossible to understand how one could obtain the current address of an absent parent without specifying the name of the absent parent. It is clear that the way in which the clause works would require that the absent parent in question would have to be specified so that his current address could be ascertained. Therefore I do not believe that the addition of the words "a named" or anything of that kind would add to or restrict the meaning or affect the practice. As presently drafted, the information could not be obtained unless a name has been supplied.
The powers of the Secretary of State under the social security legislation, to which the noble Lord referred, are given to him only for the purposes of that legislation. We are seeking to give him power for the purposes of this legislation and restrict it, as I have said, to the current address or current employer of the absent parent—not financial information. That is a restricted type of recourse. The noble Lord referred to memoranda that have been submitted which suggested that the revenue could have been more fully used in the exercise. I need not go into that point in detail because we have not gone down that road. There is no basis for the noble Lord's fears about that matter.
517 I hope that the noble Lord, Lord Houghton of Sowerby, will feel reassured by the fact that the type of information in question is information which, to make it effective, would require that it be related to a named person, because the information is restricted as I have said. I hope that in the light of that explanation, the noble Lord may feel able to withdraw the amendment.
§ 5.45 p.m.
§ Lord Houghton of Sowerby
My Lords, I am grateful to the noble and learned Lord for his full explanation. However, perhaps I may draw his attention again to Section 59 (2) of the Social Security Act 1986 which provides that for those who are carrying on a trade, profession or vocation, which is assessable to tax under Case I or II of Schedule D,disclosure under subsection (1) above relating to that trade, profession or vocation shall be limited to information about the commencement or cessation of the trade, profession or vocation, but sufficient information may also be given to identify the persons concerned".That means that if a person is assessed under Cases I or II of Schedule D (trading or professional matters upon which one is assessed on profits orgains) such a person is safeguarded against any request by an officer of the DSS to inquire about his income and personal circumstances in relation to that income. But Section 59(1) does not provide any such safeguard in the case of people who are dealt with under PAYE. They are the workers. Those are the people whose affairs are, or can be, laid bare to the DSS in connection, as the noble and learned Lord said, with the operation of any of the benefit Acts. Means-tested benefits are involved. Everything within the DSS which may require information relating to individuals, can be obtained from that given by the worker to the Inland Revenue in connection with his coding or other matters relating to his tax liability.
A distinction is drawn between one section of taxpayers (the better-off on the whole) who have professional advice all the time and the workers who are at the mercy not just of the system of the Inland Revenue itself, which is widespread and complete, but for the purpose of the operation of any of the benefit Acts. What disturbs me is that under omnibus provisions of Clause 59 of the 1986 Act, the Financial Secretary to the Treasury can go to the Inland Revenue and say, "Under powers granted under Section 59 of the Social Security Act 1976, please make available to officers of my department information about people dealt with under PAYE". He does not have to come to Parliament for any further authority. He does not have to go to any statutory instrument. He goes merely to the Inland Revenue, to which he has no powers to give directions in this matter, and says, "Will you do it?", and apparently it is done.
Under Schedule 2 of the Bill what the Financial Secretary to the Treasury can ask the Inland Revenue to do shall be extended to child support officers. At present, there are two powers side by side: those given to the child support agency, which are limited as I have described, and those given to the Secretary of 518 State and department officials, which are presumably provided for through the action of the Treasury with the Inland Revenue. It means an extension of the area of disclosure under Section 59 of the Social Security Act 1986.
Our safeguards in respect of our personal affairs and our confidentiality are being eroded all the time. Surely one of the conditions of individual liberty is that there are some things that we are not prepared to have disclosed to others. If we are forced to disclose matters relating to our affairs to government departments for statutory purposes, at least some regard should be paid to the extent to which those powers will be granted.
I shall not press Amendments Nos. 106 to 108. Quite honestly, it is futile, unless there is a combined effort on a proposal, to press any amendment in the House on this Bill. However, some day soon there will have to be a major exercise to deal with the position of the Inland Revenue vis-à-vis other elements in our public administration. The erosion of personal liberty within the system of income tax is likely to extend as time goes on.
I do not know how the Inland Revenue will give its authority. If it is left to come under regulations, will it be in writing or by telephone? How this will be carried out is left to a bureaucracy to decide. The question of how it should be dealt with may not even get into regulations nor come to the notice of the House at all. I shall withdraw Amendment No. 106 and not move Amendments Nos. 107 and 108. However, I shall move Amendment No. 109. I beg leave to withdraw Amendment No. 106.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 107 and 108 not moved.]
Lord Houghton of Sowerby moved Amendment No. 109:
Page 35, line 48, at end insert ("whose regulations may provide that no person employed by them who has an objection to being relieved of his declaration of secrecy for this particular purpose shall be required to take part in any disclosure").
§ The noble Lord said: My Lords, the amendment is directed towards a problem which could arise for Inland Revenue staff. At present, information given by the Inland Revenue relates purely to income tax affairs. Now, the Inland Revenue will supply information for other purposes, for the purpose of the social welfare organisations. In certain circumstances, an officer of the Inland Revenue may find that the child support officer seeks a relative, or even a member of the family. He comes into the office asking for information. I wish to safeguard any Inland Revenue officer from being under an obligation to disclose information which may be to the disadvantage of, or may incriminate, anyone where he feels honourably unable to disclose it. This cannot arise unless disclosure outside the department is involved. Inside the department, everyone is concerned with the administration of income tax. No information given inside the office goes further than the other side of the office for income tax purposes.
§ However, now someone may come into the office and ask for information regarding the name and 519 address of a certain person. That person may have a relative or close personal friend in the office. I see no reason why an Inland Revenue officer should be forced to give information, at any rate personally. The responsibility should be shifted elsewhere. He should not be required personally to give information which he feels it undesirable to give, having regard to his oath of secrecy. He may not wish that oath of secrecy to be lifted in this connection. It is an important safeguard to give to people engaged in this task. I beg to move.
§ Lord Simon of Glaisdale
My Lords, I venture to support the amendment for the reasons I advanced on the previous one on which voices were raised. It seems to me to be the minimum that can be expected that the commissioners of Inland Revenue should exonerate from the duty of disclosure those who have been reared in the service conscientiously to respect confidentiality.
I believe that in the first line of the amendment the word "may" ought to be "shall". In other words, it should be mandatory on the commissioners to make a regulation respecting the conscience of their subordinate officers. I hope that, if such an amendment is moved at Third Reading, the noble Lord, Lord Houghton of Sowerby, will regard it favourably. For the reasons that I have advanced previously, as well as those put forward by the noble Lord, Lord Houghton, I hope that the Government will accept this amendment as merely conceding something to perfectly understandable conscientious objections.
§ The Lord Chancellor
My Lords, the noble Lord, Lord Houghton of Sowerby, has explained that in putting.down this amendment he seeks to allow Inland Revenue employees to refuse to disclose information where the board of the Inland Revenue has authorised disclosure. This would be a marked departure from existing legislation involving disclosure of Inland Revenue information. It appears to qualify the board's right to determine whether the public interest overrides the long-held principle of confidentiality in a particular case. Apart from this objection, it would be out of place for such a provision to be put in legislation which does not originate from the Inland Revenue itself.
The board of the Inland Revenue chooses to authorise disclosure only in cases where the balance of public interest is clearly in favour of disclosure and under statutory powers. To have a provision where individual officers decide whether to disclose would undermine the board's power to decide on the circumstances when disclosure may be permitted and on the principle of public interest. It could also lead to inconsistent decisions. There would be nothing in the legislation to prevent requests for information being passed on to another officer who was willing to disclose the information.
In case it has not been completely understood, I wish to emphasise again that the provision only permits disclosure of limited information: the address of the absent parent and the name and address of the absent parent's employer. This information may be needed to trace the absent parent when other means of 520 tracking him down have failed. As I said in answer to a previous amendment, it is merely an extension of an existing provision to permit the Inland Revenue to disclose information to the Department of Social Security to help trace the absent parent where the person with care receives income support. We are not attempting to conceal the proposed use of Inland Revenue information. It will be public knowledge that this information may be obtained by the child support agency.
In my submission, it would be quite inappropriate to lay down in this Bill provisions for the regulation of the Inland Revenue which are not appropriate to the situation. In view of the limited information in question here and the fact that the Inland Revenue's position and authority are preserved by paragraph 1(3) of Schedule 2, I invite the noble Lord not to press the amendment.
§ Lord Houghton of Sowerby
My Lords, once again I thank the noble and learned Lord. I have taken up enough of the time of the House on this matter. All I can say is that there are always abundant reasons for not taking the actions we wish, simple and elementary though they may be. I shall ask leave to withdraw my amendment and strongly recommend the Inland Revenue departmental Whitley Council to take the matter up itself if it wishes to pursue it. That is obviously a remote possibility; it is not worth flogging it indefinitely. The situation may arise in connection with the new duty which may rest upon Inland Revenue officials. It is surely one of the matters that the Inland Revenue departmental Whitley Council may look at and on which it could reach an accommodation. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 [Powers of inspectors]:
§ 6 p.m.
Lord Mishcon moved Amendment No. 38:
Leave out Clause 13.
The noble Lord said: My Lords, at col. 593 of the Official Report of proceedings in your Lordships' House I stated, at Committee stage on 19th March 1991:
At Report stage I shall certainly be moving that this clause does not stand part of the Bill unless an amendment comes forward which the Government are prepared to accept".
The amendment I was referring to related to Clause 13 of the Bill. I hope your Lordships will forgive me if I remind the House of the powers contained in the clause. It gives the power to the Secretary of State to,
appoint inspectors for the purposes of this Act.
(2) For the purpose of acquiring information which the Secretary of State or any child support officer requires for the purposes of this Act, an inspector appointed under this section shall have power—
Your Lordships may wonder what premises may be inspected under the terms of this provision. That is
referred to in Clause 13(3) which states that the premises which may be inspected are any premises at or from which,
- "(a) any person is employed;
- (b) there is being carried on any agency or other business for the introduction or supply to persons requiring them of persons available to do work or provide services; or
- (c) any person carries on any trade, profession, vocation or a business of any kind".
§ At one stage it was suggested that this measure was merely a repetition of a measure contained in another Bill which related to national insurance contributions, maternity claims and other such provisions. Your Lordships may feel that whatever Parliament was minded to do as regards claims made in connection with national insurance contributions or maternity grants it involved at least an examination by the state of what should be investigated in order to ascertain whether a claim was genuine. However, in this Bill Parliament is being asked to sanction (in most cases it is the father of a child or children against whom maintenance is being sought) that at any stage, without obtaining any leave—certainly not from a magistrate and not even from the Secretary of State—an inspector appointed by the department can go to premises where the father is employed and seek such information as he may require for the purposes of the legislation.
§ In Committee I said that this measure was a gross infringement of the liberty of a subject who has committed no crime and has made no claim against the state for any contribution on the basis of which such a contribution may be made. The individual concerned is a father and an inspector wants to find out information about him for the purposes of the legislation. Presumably the purpose of the legislation is to determine what the father concerned is earning and what he can pay by way of maintenance. In Committee I said I could well believe that such a matter could cause grave embarrassment to an employee and may cause him to run the risk of losing his job. I maintained that an inspector will be asked by an employer what right he has to ask for such information. The inspector will also be asked where he comes from. Presumably the inspector will reply that he is an officer of a child support agency. I should have thought that was good enough. However, the inspector is most likely to say that he is making inquiries on the matter of child support as he believes that the father he is inquiring about is the father of the child.
§ Such inquiries may presume that the man concerned is a father and there is a marriage, or that he is a father and there is no marriage. Such inquiries may also presume that he is a father who is married and who has a child of which he has admitted parentage but of which his family, including his wife, have no knowledge. Such a situation could be disastrous. In Committee I asked the Government to table an amendment that would afford some protection to the father. I should have thought a little differently about the matter if the Government had subsequently proposed that the inspector had to ask for leave to make such inquiries from someone high up 522 in the department. I had hoped that the Minister in charge of the department would have to sanction such inquiries before the nosey parker—I hope I may be forgiven for using such an expression—went to a man's place of work. However, the Government will not budge on this issue. They have not tabled any amendment despite the fact that I humbly said I would have to retable the amendment unless some protection is to be afforded to the father.
§ I hope that no party politics are involved in this matter. I should like to believe that if a Labour government had introduced such a provision in a Bill I could have prevented it. I say to Members on the Benches opposite that no party politics should be involved in this matter, and that Parliament must not be allowed to ride roughshod over people in this way, careless of the harm it may cause. A child support officer must not be allowed to enter an employer's premises without seeking leave to do so. I hope that the House will support me on this matter. I hope noble Lords will consider that my noble friends and I were reasonable when we asked the Government at a previous stage of the Bill to offer some measure that would protect fathers. However, the Government have not done so. I beg to move.
§ Lord Meston
My Lords, I entirely support every word that the noble Lord, Lord Mishcon, said. I am reinforced in that view—I do not know whether the noble Lord was similarly reinforced—by the views of the Law Society of Scotland. The powers in this clause appear to be excessive and inappropriate. We must always look critically at any proposal to give powers of entry to public officials. The powers in Clause 13 require particular scrutiny as they give an inspector the power to enter any premises which are covered by the clause—the premises are widely drawn—and,to make such examination and enquiry there as he considers appropriate".The inspector may question people he finds on the premises and he can require any person to furnish,all such information and documents as the inspector may reasonably require".Those powers appear to be additional to the powers granted under Section 58 of the Social Security Act 1986. The inspector can carry out all those provisions without any warrant. All that he has to do is to produce a certificate. As the noble Lord, Lord Mishcon, said, the clause is not directed at the premises of the person alleged to be the father but rather at a third party—an employer or possibly a past employer or an employment agency. Therefore we are talking about a third party's interests and a third party's premises.
As if that was not bad enough, the provision is subject to a criminal sanction, which we find in subsection (12). Any person who obstructs or delays the exercise of those powers or without reasonable excuse refuses or neglects to answer any question, furnish information or produce a document is guilty of an offence. In the absence of a warrant I suggest that it ought to be a good defence for the person whose premises are entered to say, "Mind your own business. Go away. Come back if you want to with a warrant". We should support the amendment.
§ Lord Stoddart of Swindon
My Lords, I should like to congratulate my noble friend upon bringing forward the amendment and on his speech in support of it. There is no doubt that this clause of the Bill is oppressive. Both my noble friend and the noble Lord, Lord Meston, properly made the point that no warrant is required to enter the premises.
My wife is a magistrate, as are many Members of this House. I know that, when the police come to them for a warrant to pursue thieves, murderers, muggers and what not, they want to be satisfied that the police have good cause to enter premises either to search or to interview a miscreant. However, in the case of an ordinary father, whether he is married or not, he may, as my noble friend pointed out, be pursued even to his place of work, causing embarrassment and possible risk to his job.
When I was a young man I went to see the play "An Inspector Calls". I did not believe that that sort of thing could ever happen in this country. But here I find many years later that I am discussing the very same matter in the House of Lords. It can happen here. It is happening here and now. Moreover, the new inspectors are under no constraint as regards obtaining warrants. As we have heard, they may enter premises without anyone's leave at any time of night or day and interview any employer or employee, or any other person, without his or her consent and without notice. He or she may be interviewed alone or in company with somebody else.
Those are almost the powers of the Gestapo, not of a proper investigative agency in a democratic society. It is yet another instance of massive state power being used against ordinary folk where failure to co-operate with the bully boys of the agency can lead to the criminal courts and perhaps, if a person refuses on principle to pay a fine, to prison for contempt of court.
That sounds far-fetched, but it could occur under this clause of the Bill. Thus, even friends and relatives are to criminalised if they refuse to give information to a bullying state agency. Employers will be placed in an impossible situation vis-à-vis their employees. The position of an employee vis-à-vis his employer could be even worse where the agency was pursuing the employer or one of his relatives or friends. Such an employee is damned either way. If he refuses to give information to the inspector he risks being hauled before the courts. On the other hand, if he gives the information demanded by the inspector and such information hurts his employer, he could find his future prospects diminished.
This growing concentration of administrative power puts the individual at a disadvantage and his individual freedom at risk. Time and time again throughout this Bill we have heard of individual freedom being put at risk. I am afraid that this view is not far-retched; these things are happening here and now. The courts, which exist to protect the individual, are being bypassed in the name of administrative convenience. Unfortunately, Parliament, which is supposed to be the protector of individual liberty, seems sometimes to connive with the state to undermine it. Indeed, it seems to me that Parliament, 524 which represents ordinary people and their democratic rights, is becoming an agent of the state in suppressing those rights in Bills of this sort.
A new, softer image is being projected by the Prime Minister, but, though the image may be softer, the reality remains unchanged. This Bill, and this clause in particular, shows that the Government are seemingly careless of individual rights and freedoms, especially when those affected are likely to be ordinary working-class folk without the financial resources to fight the Big Brother state. I feel that, unfortunately, George Orwell was after all right and we are now all animals on the farm.
§ 6.15 p.m.
§ Lord Simon of Glaisdale
My Lords, your Lordships have heard powerful speeches in support of the amendment. It would be supererogatory if I tried to cover the same ground. The deepest constitutional, social and personal arguments are being put forward against the extraordinary powers conferred by the clause. I wish to make only two points.
The first is that there is great danger in our concentrating on a provision immediately in question. If I may say so, my noble and learned friend, with his incomparable dialectic and parliamentary gifts, weaves a web of argument which obscures the enormity of one provision after another. It is very important that at each stage we look back and look forward as well as looking on the provisions themselves. If we look back we see the jurisdiction of the courts ousted in Clause 7. We see traditional confidentiality stripped away. If we look forward we see liability orders and the desperate remedy of distress made available, and not only made available but stripped of all the safeguards which the common law has erected round that drastic remedy.
The other point that I wish to make is this. One of the many valuable aspects of the arguments of the noble Lord Stoddart of Swindon has been to remind us—as we should be reminded constantly—that we are dealing with a human being. He is not, in the old phrase, a wolf's head to be hunted. He is not only a human being but he may be a deeply wronged human being. His wife may have got tired of him, preferred some more romantic figure and gone off with him, taking the children. Then, after what is distastefully called a "quickie" divorce, she may have married her lover. She will naturally wish to build him up as a father figure in the eyes of her children.
I cannot think how many times I have been told when trying to keep contact between a child and his father, "There is nothing I can do. The child has an invincible repugnance to seeing his or her father". One knows that that is not a natural reaction of a child. One suspects the psychological pressures and influences, often unconscious, that are brought to bear.
Let us look back to the father, deprived of his family, cut off from his children, seeing another man being built up in his place. That is the man with whom we are concerned in all these extraordinary measures of enforcement. Of course, he should support his 525 children, but there should be reciprocal rights for him. He should support his children, but not every measure can properly be taken to compel him to do so.
I am glad that the noble Lord has moved the amendment and I am profoundly grateful for the three notable speeches that have been made in support of it.
§ Baroness Elles
My Lords, we have heard some extraordinarily forceful and powerful speeches, not only on this amendment but on previous amendments, from the noble Lord, Lord Houghton of Sowerby, on the question of confidentiality. Without speaking to the generality of Clause 13, I wonder whether my noble and learned friend, with all his great distinction, has analysed some of the subsections in the clause. I should like to ask him whether the Government will look at the detail of the points that I wish to raise.
Subsection (2), for instance, includes the phrase:For the purpose of acquiring information which the Secretary of State or any child support officer requires".That presumably means that any child support officer can ask for any information that he or she considers should be required in order to obtain a maintenance assessment. Any child support officer throughout the country can therefore pass on any information that he deems necessary and can directly require an inspector, without any superior officer to control the act, to do the things that have already been adumbrated by other noble Lords. If you are to ask an inspector to go into premises and perform the acts and duties stated in the clause there must be some superior control over the child support officer with regard to that decision. It is a major decision interfering in the privacy of people who, as we have said throughout the debate, are in a vulnerable position whether they are the caring parent, the absent parent or the children who suffer as a result of those breakdowns. I should have thought that a child support officer must at least have the agreement of a superior officer before asking an inspector to undertake that kind of action.
Similarly, subsection (4)—I shall not go through all the subsections but only deal with three points that struck me as I read through the clause—states:An inspector exercising the powers conferred on him by this section may question, either alone or in the presence of any other person, any person whom he finds on the premises".Does that provision include children? Does it mean that an inspector can go into any office, agency or business and demand of a child of 13, 14 or 15 information of the kind that is required by the child support officer? There should at least be a definition of the word "person" and some other person to whom application can be made if this is an infringement of liberty. The wording should be revised.
My third point relates to subsection (8) which states:the Secretary of State may make arrangements for any of the powers given by this section to be exercised by that inspector".The phrase "that inspector" relates to an inspector from another department. That provision implies the circulation of confidential information from one department to another; yet, as I understand it, there is apparently no control over child support officers asking for that information. I appreciate that they need certain information if they are to make correct 526 maintenance assessments, and we have been through all that before, but surely a child support officer in a support agency should not have the unmitigated and uncontrolled right to ask an inspector to undertake those acts and to require the information in the way outlined in the clause.
I am sure that, if my noble and learned friend looks at the clause in the light of the comments that have been made—I am sure that he has already read it carefully—he will find many points which need much tighter control and drafting. I should be grateful if he would address the problem in the light of the points that I have raised.
§ Baroness Faithfull
My Lords, I should like briefly to ask my noble and learned friend whether he is worried that the clause is out of line with other legislation. Under the Children and Young Persons Act 1933 and the Children Act 1948 any child coming into the care of a local authority must be assessed for payment. The parents are seen, but an appeal is never made to the place of work or anywhere else without the parents' written permission. If the parents will not give written permission and will not pay the amount we must ask a court to say that we may enter a place of work. That can be done only with court agreement.
Under the Children Act 1989, without a court order no one may enter the home of any parent who is said to be abusing or is thought to be abusing. However, as I understand it, no court order is required under this clause. Likewise, under the health Acts, no health visitor may enter a house, if refused entry, without a court order. It therefore seems strange that no court order is required under this Bill whereas it is required under other legislation.
§ Lord Harris of Greenwich
My Lords, I agree with the noble and learned Lord, Lord Simon of Glaisdale, that this section of the Bill confers extraordinary powers on the Executive. One of the problems is that when governments of any political persuasion have been in office for a long time clauses of this kind creep into Bills. I suspect that in the first or second years of office Ministers would have been apprehensive about giving a state agency the kind of powers that are conferred in this clause. It is excessive to say that officials will be given powers of that kind, as described by the noble Baroness, Lady Elles, and others, that no warrant will be needed and that there will be a criminal sanction for non-compliance. Where are we going? We all recognise that the noble and learned lord has a decent regard for civil liberties, but this is a wholly inappropriately drafted clause.
I hope that even at this late hour the noble and learned Lord will agree to consider the points that have been raised—the House has been wholly unanimous on this point—and to look at the matter before Third Reading. It would be a great pity if the clause were to be left in the statute and operated by an agency. I do not suggest that the agency concerned would necessarily behave with gross impropriety, but I simply do not like officials of the state being given powers of that kind.
§ Baroness Seear
My Lords, when the clause states that the inspector may question "any person", does that mean that he can go to any colleague—indeed, the tea lady or any gossip in the company and there are always a great many—to request that information?
§ The Lord Chancellor
My Lords, the purpose of the provision that we are now considering in Clause 13 is to provide information which is required for the purpose of a proper assessment of maintenance support for a person's children and the necessary information that may be required to enforce it. That is the purpose of this measure. If one sets up a system for maintenance, surely it is necessary to have effective powers of enforcement.
The purpose of the powers is only that of acquiring information. With great respect to the noble Lord, Lord Stoddart of Swindon, I believe that when he compared the powers with those of the Gestapo he was guilty of a degree of exaggeration. I suspect that the Gestapo thought that it had considerably greater powers than those of simply obtaining information. With great respect I do not believe that argument on a clause of this kind is assisted materially by what I might refer to as a degree of exaggeration.
The purpose of the clause is quite clear. It is:For the purpose of acquiring information which the Secretary of State or any child support officer requires for the purposes of this Act".In other words, it is information which it is necessary to obtain in order that the purposes of the Act shall be fulfilled. It is not a question of any child support officer thinking of information that he might like to ask of a gossipy tea lady. I should not wish to associate myself with the view that tea ladies are particularly gossipy. I am sure that male messengers are at least as gossipy as tea ladies.
§ Baroness Seear
My Lords, perhaps I may interrupt the noble and learned Lord. I spoke of a tea lady or any gossipy person.
§ 6.30 p.m.
§ The Lord Chancellor
My Lords, I do not know whether the just and generous rule is applied in reverse to that. I do not think that I referred to the noble Baroness's remarks in particular but your Lordships may well think that I had them in mind.
The situation is that the information is information which i3 required. That matter is at the root of the warrant, so to speak. Unless the person requires information for the purposes of the Act, there is no power to do anything of the kind that is required in this provision. So it is not a question of any information that anyone may think of; it is information required for the purposes of this Act. Under the Bill a child support officer is an officer of the Secretary of State, who will be responsible for him and accountable to Parliament for the way in which the powers are exercised.
The next point is that the inspector is to have power "to enter at all reasonable times". The noble Lord, Lord Stoddart, suggested that it could be at any time of the day or night. I question whether that is a reasonable interpretation.
§ Lord Stoddart of Swindon
My Lords, I said that advisedly. I referred advisedly to night or day. It may very well be that when a factory is working nights the only time that the inspector could obtain such information would be during the night.
§ The Lord Chancellor
My Lords, if it is reasonable to go at night, I can understand. But it is not a question of any hour of the day or night unqualified. I can understand if it concerns people who work at night and it is reasonable to go at night—and there is at least a suggestion that sometimes what goes on at night may require investigation. The point is that the qualification is "at all reasonable times" and not just at any hour of the day or night unless the hour of day or night is reasonable.
Subsection (3) states:The premises which may be inspected under this section are any which the inspector concerned has reasonable grounds for supposing to be premises at or from which—"or"
- (a) any person is employed;
- (b) there is being carried on any agency or other business for the introduction or supply to persons requiring them of persons available to do work or provide services" what one might call an employment or work agency—(c) any person carries on any trade, profession, vocation or a business of any kind".That is a restriction in the premises to which this provision applies and it is important.
With regard to the information asked for—and this applies to subsection (4) also—the person is to,furnish to the inspector all such information and documents as the inspector may reasonably require for the purposes mentioned in subsection (2)"—that is to say, for the purposes of this Act—for the purpose of ascertaining the whereabouts of a parent and the amount of maintenance which he or she should pay under the Act.
In considering whether a warrant is necessary—and a great deal has been said about that—it is very important to look at subsection (6) which states:No person shall be required under this section to answer any question or to give any evidence tending to incriminate himself or, in the case of a person who is married, his or her spouse".That differentiates this kind of clause very substantially from anything to do with criminal investigation or applications for a search warrant for the purpose of finding evidence of crime.
The purpose of using another inspector—a matter to which my noble friend Lady Elles referred—is to minimise the amount of inspection that requires to be done in relation to a particular set of premises. For example, if an inspector is going for the purpose of a benefit inspection, it is very reasonable that instead of sending somebody else from the child support agency someone should be sent who is already going there. That is the point of allowing another government department inspector to obtain the necessary information. It is wholly intended to help and to restrict the number of visits that would be required.
The visitor requires to have a certificate of appointment before he enters. That, if one likes, is his warrant. His warrant is the warrant that he is an inspector appointed under this clause for the very limited purposes of the clause. The criminal sanction 529 is only directed against intentionally delaying or obstructing a person. It is intentional delay or obstruction. Subsection (12) (b) requires that it be "without reasonable excuse" in other words, that the person refusing or neglecting to answer the question has a reason for doing so.
I have attempted to answer the detailed points on this provision put by my noble friend Lady Elles.
§ Baroness Elles
My Lords, perhaps I may interrupt my noble and learned friend. I also asked for the definition of "person" in subsection (4). I should mention that before the noble and learned Lord goes on to another argument.
§ The Lord Chancellor
My Lords, I do not think that "person" has been restricted; in other words, it would include a child. I intended to return to that point. A number of matters have been raised which I should have thought were perhaps worthy of special consideration and that is one of them. I have sought to deal in some detail with the general matters raised on the clause by my noble friend to set the clause in context. As I said, the purpose is to ensure that effective means of enforcement are available against absent parents if there is a problem ascertaining their whereabouts or assessing their responsibility. Surely it is vitally important, at least as important as checking on benefits and the payment of national insurance contributions, that parents should be responsible for proper payments in respect of their children. As I have emphasised, the only purpose of this clause is to make that good and nothing more.
I submit to your Lordships that if such a clause is justified (as was implicit in the opening remarks of the noble Lord, Lord Mishcon, with good reason) and such powers exist in relation to social security inspectors for the purposes of benefit, then proper responsibility for one's children is at least as important and effective means of implementation are necessary.
It is vital that the agency has the necessary powers to prevent children being defrauded or I should say deprived of money to which they are entitled. I must not exaggerate when I have been finding fault with the noble Lord, Lord Stoddart of Swindon. It could amount to defrauding the children if one were deliberately hiding away or giving wrong information about one's income. I do not wish to exaggerate the matter, but that is certainly a possible case. Proper powers are required to deal with children being deprived of money to which they are entitled.
It is important that the agency has the means quickly and effectively to obtain the information so that maintenance is put into payment as quickly as possible. I am sure all of your Lordships, or certainly those who have had responsibilities in connection with matters of children and single parent families, know of the agonised cries of single parents who, notwithstanding having a court order, have been unable to get the money to which the court finds they are entitled. To follow up a court order in those circumstances is an executive act in pursuance of that order.
In most cases the information will be obtained by 530 post or by telephone calls, but there will be occasions when a visit is necessary. At the Committee stage my noble friend Lady Faithfull asked whether any approach had been made to employers. I understand that officials in the Department of Social Security have been consulting representatives of self-employed and employers' organisations and that they meet regularly to discuss the proposals in the Bill to ensure that the measures are implemented with the minimum disruption to business. Obviously, that is a matter which we very much wish to have in mind, and it is the reason why, instead of having a series of inspectors for the purposes of this Bill we are seeking to use those who might be involved in any case. The meetings have been constructive and helpful and I understand that there has been no opposition to the idea of using inspectors. Apart from anything else, inspectors may be able to help businesses by visiting employers who do not have the resources to provide the information by letter or telephone at the speed the agency needs it.
At Second Reading, in Committee and today, the noble Lord, Lord Mishcon, expressed concern that the absent parent might be embarrassed by the arrival of inspectors at his workplace. The noble Lord took his concern to the length of declaring that the relationship between the employer and the employee might be jeopardised, and that aspect figured in what he said today.
In most cases the inspector would need to visit the pay section only, and no one outside that section need be aware of the visit, let alone the reason for it. I can assure your Lordships that inspectors operating the powers under this clause would be trained to a high standard, and detailed guidance would be given to them. Your Lordships will appreciate that any question of paternity is one not for the agency but for the court. The agency's powers and duties arise in relation only to someone in respect of whom paternity has been established. The inspectors will use discretion and will not divulge the specific purpose of the visit. In that respect they have techniques available to them which would not be available in the service of an ordinary court writ. If an application is made for an attachment of earnings order, some details of the case are given in the order that is granted.
In Committee the noble Earl, Lord Russell, asked about the problems that could be caused by the visit of an inspector to see the husband where the wife and husband jointly run a business. In such cases the agency will already have attempted to contact the husband by post and he will have had ample opportunity to contact the agency to supply the requested information or to arrange for the interview to take place at a convenient time and place.
I recognise that this is an important clause. It is a difficult one, but it has a very important purpose. It is limited to conferring the powers for that purpose alone. That is perfectly plain from subsection (2).
I ask your Lordships not to give effect to the amendment. Obviously, I shall look closely at all that has been said and consider whether anything in particular should be done by way of amendment. I should especially wish to look at the question of 531 whether subsection (4) requires to be limited in some way, having regard to the point that was made by my noble friend Lady Elles.
In the light of those explanations, and of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.
§ 6.45 p.m.
§ Baroness Seear
My Lords, before the noble and learned Lord sits down, would he agree that the speech just given to us is a classic example of the maxim that the end justifies the means?
§ The Lord Chancellor
My Lords, I would not agree with that at all. I do not know how classical I should like to claim the speech I have just given to be, but it showed that the end is first of all of importance and if the means are properly restricted in relation to the end that justifies the means. I say that these means are extremely reasonable in relation to the end; they are justified. Parliament accepted them some time ago in relation to social security legislation, and I consider that if they are justified for that they are certainly justified for working out effectively the responsibility of a parent to maintain his or her child.
§ Lord Sefton of Garston
My Lords, before the Lord Chancellor sits down, I wonder if he can help me. I hesitate to enter into a debate in which so many noble and learned Lords have taken part, but I am very concerned that I have not yet heard the Lord Chancellor reply to the fundamental principles involved in the arguments. Nobody in this Chamber was quarrelling about the need to obtain information. Nobody was quarrelling about the need to make a father accept his responsibilities for the upkeep of his children. The argument concerns who should carry out the necessary procedures to obtain the information and ultimately to ensure that the parent is accepting his responsibilities. I have not yet heard the Lord Chancellor reply to that argument.
If, in my perhaps uneducated and naive way, I assume that the courts of this land are an extension of Parliament, surely they should decide on behalf of Parliament what decisions should be taken in regard to the individual. I stand to be corrected, but I understood the Lord Chancellor to say that the Secretary of State would appoint the inspectors and therefore ultimately the Secretary of State would be responsible. That may be true, but the damage to the individual concerned, which was outlined, about somebody penetrating his place of work and asking all kinds of questions which might ultimately lead to his dismissal, would already have been done before the Secretary of State got to know about it.
I am very concerned, like everybody else in the country, about the recent abuse trials. There were junior officers concerned, some of whom certainly would not have had the wisdom or experience of the people in our courts. The outcome was tragic not only for those concerned and their children but for the whole of the service. In some cases, the faith in the service 'Alas damaged almost beyond repair.
This is not a matter that should be settled by noble Lords walking through the Lobby, although I would 532 certainly do so in support of the amendment. If the matter is so settled, the result will be an accident of faith. Peers who are not listening to the debate will walk through the Lobby because they are told to do so. This is not a party issue.
I appeal to the noble and learned Lord to say that he will look at the matter again, and will come back on Third Reading in order to reach an agreement. Failure to agree will continue for years to come. The people appointed as inspectors will in some cases show the opprobrium mentioned by my noble friend Lord Stoddart.
§ The Lord Chancellor
My Lords, my remarks about the responsibility of the Secretary of State related to the point made by my noble friend about the level at which decisions are taken. The responsibility for that will lie with the Secretary of State in respect of which he is answerable to Parliament. However, the powers conferred are strictly limited by subsection (2) of the clause. The inspectors will be officers of the state. The state will be charging them with the important duty of ensuring that absent parents properly discharge their financial responsibilities to their children.
That is a perfectly legitimate objective. The means being used for obtaining it are perfectly reasonable. If they are reasonable, as I submit, in respect of the amount of benefit and so forth they are at least as responsible in respect of the important issue of a parent's responsibility for the maintenance of his or her child.
§ Lord Mishcon
My Lords, having heard the noble and learned Lord the Lord Chancellor slightly chastise my noble friend Lord Stoddart, I must not use exaggerated language and I hope that I shall not do so. I did not believe that in this House, which is the nation's safeguard of its liberties, I should hear the noble and learned Lord, whose reputation in the field is unqualified, say what he has said.
The noble and learned Lord said that it was perfectly all right, surely, to give an inspector the right to go to a place of employment without any warrant or approval of a superior officer, let alone the Secretary of State. Having arrived at those premises, he could make anyone whom he met responsible for giving him information for any of the purposes of the Bill. That includes finding out where the person concerned lives, his earnings and whether he has voluntarily accepted overtime. At the end there is a penal clause providing that anyone who fails to give that information might be guilty of an offence.
The issue goes further than that. In seeking to say that the liberty of the subject was very much in his mind and that of those who support the Bill, the noble and learned Lord said, as though it were a great relief, that the person would not be committing a criminal offence and need not give the information if he were incriminating himself. A basic principle of our law, even when giving evidence in a court of law under subpoena, is that one can be relieved of doing so if the giving of that evidence incriminates. Without doubt that is not a defence to this provision.
The noble and learned Lord went on to say that the inspectors have such powers under the Social Security 533 Act 1986. That Act deals with people who are claiming benefits and who, in support of that claim, have given information which the authorities wish to check. As regards this Bill, we are dealing not with someone who has been found to be in arrears perhaps for six months or more, but with someone who may not be in arrears but whose address the authorities cannot discover. An officer acting within his rights for any of the purposes under the Bill can go to the man's place of employment. The man may be living with a lady who is not his wife at an address unknown to the wife. The inspector can say to the employer, "I am an inspector appointed under the Act and I require you to give me information. Where is the man living whom you employ?". The inspector can also ask about the man's earnings, overtime and so forth.
When dealing with the matter in Committee, I tried to adopt a moderate course. I know that the matter is not a political point and no one is trying to make such a point. Noble Lords opposite have supported the amendment. I do not seek to gain a political victory but a victory for the freedom of the subject. That is a completely different matter. If at this late stage the noble and learned Lord said, "I see the force of the argument. I am a protector of the liberty of the subject and of the employee. I do not wish to see the purpose of the Act defeated by somebody losing his job and therefore unable to support his child. I do not wish to run that risk. I am prepared to consider that some authority must be given if only by the Secretary of State", then I would not have achieved everything I had wished for, but at least there would be a break on the issue.
The noble and learned Lord treated the House to a description of inspectors whom he has not met, whom he does not know and whom he will never know. He described them as being people who are discreet and who will behave with the utmost gentility and courtesy. If the noble and learned Lord were giving evidence in a court of law, he might be cross-examined about the basis of his belief.
This is not a party point of view and no one will claim a victory politically or otherwise. If I call a Division, the issue will not be answered, as my noble friend said. Peers will come into the Chamber from various recesses of your Lordships' House, some provided with refreshment and some not, and they will vote without knowing what the amendment is about. I do not want to leave the matter there. I plead with the noble and learned Lord to say that between now and Third Reading he will consider the matter sympathetically and impose some consent before the inspector can use the powers. If it were the Secretary of State, although I should prefer an authority outside the department, I should say that that is a concession and liberty has been safeguarded to some degree. I plead with the noble and learned Lord.
§ 7 p.m.
§ The Lord Chancellor
My Lords, with the leave of the House, in the course of my remarks I said that I would consider carefully all that has been said. Your Lordships know that if I consider anything, I try to do 534 so with as much sympathy as the case appears to require. However, I am not in a position to go further than saying that I shall consider carefully all that has been said. I appreciate the importance of this in considering the way forward.
I am not sure to what extent some of the suggestions may be practical. I am under the impression that these matters are important but I am not prepared to commit myself, and I do not believe it would be right for me to commit myself, to a view that this clause could be substantially modified. I have indicated that I shall consider matters which have been raised. Your Lordships must then decide what action to take in the light of that. I regard those matters as important; but I also regard as vitally important the need for children to receive the appropriate maintenance.
§ Lord Mishcon
My Lords, I am sure that the noble and learned Lord has forgotten what he said before. That was the reason I pleaded in the way I did. He said specifically that he would reconsider subsection (4), which is limited to an inspector exercising the powers conferred on him either alone or in the presence of any other person. That was the point raised by the noble Baroness, Lady Elles. I believe that he is now saying that he is prepared to consider the whole clause and the submissions which I have made. In that case, I thank the noble and learned Lord. If there is to be a concession, I hope that that will be made clear between now and Third Reading. If the noble and learned Lord is unable to make the concession, we shall then have the opportunity to raise the matter on Third Reading.
§ The Lord Chancellor
My Lords, I believe that I said that I would consider all that had been said and in particular the point made by my noble friend Lady Elles. I always seek to consider what your Lordships have said because I regard that as part of my responsibility and because what your Lordships say is well worthy of consideration. However, I wish to make it plain that I am not undertaking that we shall be able to come forward with any concession whatever on Third Reading. I hope that that will be understood and that your Lordships will take such a course as the noble Lord, Lord Mishcon, advises.
§ Lord Mishcon
My Lords, I understand that and would not expect the noble and learned Lord to say more at this stage. I ask only one favour of him; namely, so that all those noble Lords who have spoken in the debate and who feel deeply about this know where they stand, perhaps the noble and learned Lord will be able to inform us before Third Reading as to what is his reaction. We shall then know what course to pursue. I know that the noble and learned Lord will not regard that in any way as a threat or an inducement to him to make a concession. If it was an inducement, I should be glad about that.
§ The Lord Chancellor
My Lords, if it were an inducement, it would not be improper. I shall certainly try to inform the noble Lord and those noble Lords who have spoken in the debate of the position so that it can be considered before Third Reading.
§ Amendment, by leave, withdrawn.
§ Lord Cavendish of Furness
; My Lords, I beg to move that further consideration be now adjourned and suggest that Report stage begin again at 8.5 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.