Child Support Bill [H.L.]

HL Deb 29 April 1991 vol 528 cc539-608

Consideration of amendments on Report resumed. Clause 14 [Periodical assessments]:

Lord Simon of Glaisdale moved Amendment No. 39: Page 10, line 19, leave out ("a maintenance assessment") and insert ("maintenance assessments").

The noble and learned Lord said: My Lords, this is a very short point. It arises from my having I believe, misconstrued subsection (1) of Clause 14 which deals with periodical assessments. It opens with the phrase: The Secretary of State shall make such arrangements as he considers necessary to secure that where a maintenance assessment has been in force for a prescribed period". I read "a maintenance assessment" literally. I thought at first it meant a particular maintenance assessment, but having reread it and the rest of the clause several times, I think it means—the noble and learned Lord will correct me if I am wrong that the Secretary of State may make an order bringing all maintenance assessments to an end after a prescribed period. I therefore propose that instead of "a maintenance assessment" the subsection should read "maintenance assessments". However, that involves a grammatical solecism at the end of the line and it may be that the right phrase is "any maintenance assessment" or "all maintenance assessments". All I can do now is to move the amendment, see the reaction of my noble and learned friend and, if there is any doubt—as I think there may be—ask whether the Government will reconsider the drafting. I beg to move.

The Lord Chancellor

My Lords, the purpose of this subsection is to allow the Secretary of State to make an arrangement for regular review of maintenance assessments. The draftsman has sought to deal with that by taking the singular and providing that where a maintenance assessment has been in force for, let us say, a year the amount of maintenance fixed by that assessment is reviewed by a child support officer. Therefore, if a maintenance assessment has been made on 1st December this year it would be reviewed on 1st December next year; and an assessment made on 1st November would be reviewed on the following 1st November, and so on. The idea is that what is fixed is a period from the making of the particular assessment before that assessment has to be reviewed.

I believe that the clause as drafted has that effect. That is certainly the way I read it. I appreciate, of course, that when one knows what is supposed to be said it often is easier to understand language in that way than if one is reading it without having had anything to do with putting the policy together. I believe that it is reasonably clear. But I shall, of course, be happy to mention the fact to the draftsman.

Lord Simon of Glaisdale

My Lords, my noble and learned friend has made it clear that what it means is assessments. In fact, he used that word. This is one of those cases where one cannot rely upon the Interpretation Act to say that the singular includes the plural. There is a doubt in the matter. It does not seem to me to be a suitable term in this connection. However, my noble and learned friend has said that he will reconsider the matter with the aid of the draftsman. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 40: Page 10, line 28, leave out from ("made") to end of line 29.

The noble and learned Lord said: My Lords, this amendment has been grouped with Amendment No. 43, which raises the same point, and Amendment No. 49, which raises a slightly different, though cognate, point. I shall move the latter separately. Clause 14(3) states: A review shall be conducted under this section as if a fresh application for a maintenance assessment had been made". That seems to me to be all that one needs to say. The following words, by the person in whose favour the original assessment was made", do not, so far as I can see, add anything to the meaning. I beg to move.

The Lord Chancellor

My Lords, I am grateful to my noble and learned friend for raising the matter. It seems to me that the words to which he referred may be surplus. I should like to make certain with parliamentary counsel whether there is any particular reason for the use of that expression, but, unless he gives me some explanation which has not so far occurred to me, I propose to put forward a government amendment to the effect suggested by my noble and learned friend.

Lord Simon of Glaisdale

My Lords, I am much obliged to my noble and learned friend. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.15 p.m.

Clause 15 [Reviews on change of circumstances]:

The Lord Chancellor moved Amendment No. 41: Page 11, line 2, after ("6") insert ("either of them or").

The noble and learned Lord said: My Lords, this technical amendment will make it clear in cases where the application for maintenance is made by a child in Scotland that not only the child but also the absent parent or the person with care may apply for a review on the grounds of a change of circumstances. That brings the provision into line with that in Clause 17(2) (b) and subsection (2) (b) of the proposed new clause about the review of decisions of child support officers. I beg to move.

On Question, amendment agreed to.

Lord Simon of Glaisdale moved Amendment No. 42: Page 11, line 9, leave out from ("different") to end of line 11.

The noble and learned Lord said: My Lords, this amendment raises a point similar to the one I have just made. It arises in subsection (2), which states: An application under this section may be made only on the ground that, by reason of a change of circumstances since the original assessment was made, the amount of child support maintenance payable by the absent parent would be significantly different". Again, that group of words seems to say everything that one wants. So far as I can tell, the words which follow, if it were to be fixed by a maintenance assessment made by reference to the circumstances of the case as at the date of the application", do not add anything to those which preceded them. Therefore, unless those words have a significance which has escaped me, I suggest that they be omitted. I beg to move.

Lord Mishcon

My Lords, in my view there is a difference. I say that because one wants to know what are the circumstances at a fixed date to ascertain whether or not they have differed from those which existed at the date of application. Line 2 of subsection (2) reads, since the original assessment was made". If the noble and learned Lord's amendment was accepted, the subsection would read as though the application had to date from the original assessment. The final words, which the noble and learned Lord seeks to delete, make it clear that the circumstances which are relevant are those which obtain, at the date of the application". Obviously, the date of application is different from the date of the original assessment. I do not know if that is the intention, but that is what it means.

The Lord Chancellor

My Lords, I am grateful to the noble Lord, Lord Mishcon. The idea is to explain the basis upon which the significant difference in an assessment is to be judged. The initial explanation in the provision is thought to be needed to help prevent frequent, perhaps weekly, reassessments being requested by either the absent parent or the person with care.

The clause seeks to strike a balance between not taking account of small changes immediately and the need for a review of circumstances before the next periodic review where, for example, an absent parent loses his job or obtains much better paid employment. The idea is that we must have a change which will reflect itself in a significant difference in the actual amount of child support maintenance payable. In the light of that explanation, I hope that my noble and learned friend will feel able to withdraw the amendment.

Lord Simon of Glaisdale

My Lords, I am most grateful to my noble and learned friend and to the noble Lord, Lord Mishcon. I understand the point which has been made. However, in my submission, that is completely covered by the words "significantly different". That defines the two points which have to be compared. However, it is not the sort of issue upon which to divide or even argue about at this time of night. I intend to withdraw the amendment. I hope that my noble and learned friend will consider the matter, together with the previous amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 43: Page 11, line 16, leave out from ("made") to end of line 17.

The noble and learned Lord said: My Lords, I have just been handed a note which states that this amendment raises exactly the same point as that dealt with in Amendment No. 40. If that is the case, I can rely on my noble and learned friend who said that he would consider it with the draftsman. I beg to move.

The Lord Chancellor

My Lords, I intended to cover this point when my noble and learned friend spoke to this amendment with Amendment No. 40. He may therefore feel able to withdraw the amendment.

Lord Simon of Glaisdale

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 44: Page 11, line 29, leave out paragraph (b).

The noble and learned Lord said: My Lords, I tabled the amendment because I could not see why there should be any date other than the date of the application. I beg to move.

The Lord Chancellor

My Lords, in the amendment, my noble and learned friend seeks to remove that part of subsection (6) which allows the Secretary of State for Social Security to determine in regulations an effective date other than the date of the application for review. That provision is clearly needed as the notification of the change of circumstances can come considerably before or after the change itself. If one knows that at some future date one will lose one's job, that may be notified before it takes place. The paragraph that my noble and learned friend seeks to remove provides that, as will be appropriate in some situations, the assessment may take effect from a date other than the date of the application. For example, as in the illustration I have given, when a change in the person's employment at a future date is known some time in advance. There is a great deal to be said for dealing with the matter in good time. I hope with that explanation my noble and learned friend will feel able to withdraw the amendment.

Lord Simon of Glaisdale

My Lords, that is a completely satisfactory explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 45: After Clause 15, insert the following new clause:

("Review of decisions of child support officers

—(1) Where

1. (a) an application for a maintenance assessment is refused; or
2. (b) an application, under section 15, for the review of a maintenance assessment which is in force is refused, the person who made that application may apply to the Secretary of State for the refusal to be reviewed.

(2) Where a maintenance assessment is in force—

1. (a) the absent parent or person with care with respect to whom it was made; or
2. (b) where the application for the assessment was made under section 6, either of them or the child concerned,

may apply to the Secretary of State for the assessment to be reviewed.

(3) Where a maintenance assessment is cancelled under paragraph 15 of Schedule 1, the appropriate person may apply to the Secretary of State for the cancellation to be reviewed.

(4) Where an application for the cancellation of a maintenance assessment under paragraph 15 of Schedule I is refused, the appropriate person may apply to the Secretary of State for the refusal to be reviewed.

(5) An application under this section which is made after the end of the period of 28 days beginning with the date on which notice of the refusal, assessment, or cancellation in question was given to the applicant shall not be entertained by the Secretary of State unless it is expressed to be made on one or more of the following grounds.

(6) The grounds are that the refusal, assessment or cancellation in question—

1. (a) was made in ignorance of a material fact;
2. (b) was based on a mistake as to a material fact;
544
3. (c) was wrong in law.

(7) The Secretary of State shall arrange for a review under this section to be conducted by a child support officer who played no part in taking the decision which is to be reviewed.

(8) Before conducting any review under this section, the child support officer concerned shall give to such persons as may be prescribed, such notice of the proposed review as may be prescribed.

(9) If a child support officer conducting a review under this section is satisfied that a maintenance assessment or (as the case may be) a fresh maintenance assessment should be made, he shall proceed accordingly.

(10) In making a maintenance assessment by virtue of subsection (9) a child support officer shall, if he is aware of any material change of circumstance since the decision being reviewed was taken, take account of that change of circumstance in making the assessment.

(11) A maintenance assessment which is made by virtue of subsection (9) shall take effect on such date (which may be before the date of the assessment) as may be determined in accordance with regulations made by the Secretary of State.

(12) The Secretary of State may make regulations—

1. (a) as to the manner in which applications under this section are to be made;
2. (b) as to the procedure to be followed with respect to such applications; and
3. (c) with respect to reviews conducted under this section.

(13) In this section "appropriate person" means—

1. (a) the absent parent or person with care with respect to whom the maintenance assessment in question was, or remains, in force; or
2. (b) where the application for that assessment was made under section 6, either of those persons or the child concerned.").

The noble and learned said: My Lords, with this amendment I shall speak also to Amendments Nos. 48, 50, 51, 58, 57, 52, 53, 54, 55 and 56, 46 and 44. The numerical order of those amendments is a little special. I hope that it is in accordance with what was arranged. With Amendment No. 45 are grouped also Government Amendments Nos. 48, 50, 51 and 58. The noble Lord, Lord Mishcon, has tabled Amendment No. 57. My noble and learned friend Lord Simon has tabled Amendments Nos. 52, 53, 54, 55 and 56 and the noble Earl, Lord Russell, has tabled Amendments Nos. 46 and 47, as amendments to Amendment No. 45.

Your Lordships will recall that our White Paper Children Come First set out our intention that the first stage of an appeal against a CSO decision should be an internal review conducted within the child support agency itself but by a child support officer who had not been involved in the original decision. Our intention was to provide that mistakes could be remedied in a quick and straightforward way, without the need for any more formal procedure.

We believe that that method has much to be said for it. A number of noble Lords, however, pointed out in Committee that Clause 17, as printed, might offer scope for misunderstanding: in particular, that it gave the appearance of setting out a much more formal procedure than we have in mind. After reflection, we have concluded that it would be sensible to replace the old clause with a newly drafted clause which is before your Lordships as Amendment No. 45.

This clause would allow any party to a maintenance assessment, or an application for an assessment, to apply for a review of that assessment or of the refusal to make an assessment at all. The right to apply for review is unrestricted so long as the application is made within 28 days of notification of the original decision; if the application is made after that, then it must be made on specific grounds—that the original decision was wrong in law, or that it was based on ignorance or mistake about points of fact. In other words, if one wants to have the decision reviewed generally, it must be done within 28 days.

Although the point of that procedure is that it allows errors to be put right quickly and simply, we need to provide that the parties involved know that the application for review has been made. We also believe that it is an important safeguard that the officer reviewing the decision must be a different person from the one who made the original decision.

In the light of the new amendments, I hope that the noble Lord, Lord Mishcon, and my noble and learned friend Lord Simon will feel able to withdraw their amendments. The noble Earl, Lord Russell, has put down amendments to Amendment No. 45. They seek to provide that after the 28-day period an application for a review should not only be allowed on the grounds that the original decision was based on error or ignorance about a material fact or that it was wrong in law, but also on the grounds that the applicant was prevented from appealing by physical or mental ill health, or absence from the country for professional reasons.

I cannot think of an instance where the assessment would be revised where one of the three grounds had not been satisfied. However, I shall look again at the amendment to see whether a further amendment is required to ensure the right of appeal against the refusal to review where the existence of grounds is in dispute. In other cases, providing they satisfy the grounds, their appeal rights are preserved. In view of that assurance, I hope the noble Earl will withdraw his amendment.

I beg to move.

[Amendments Nos. 46 and 47, as amendments to Amendment No. 45, not moved.]

Lord Mishcon

My Lords, I am not sure whether this is the appropriate stage for me to deal with Amendment No. 57. I say that because the noble and learned Lord mentioned it in the course of his remarks, and grouped it, so far as I could understand, with the amendment that he moved.

My point is a short one. I tried to make it in Committee. I believe that the hour was as late as this or possibly even later when I did so. The only point I made—and I believe that it still applies, despite his amended clause—is that the procedure provides for an appeal in respect of which, without the consent of the parties necessarily, an order can be made that the appeal shall be dealt with in writing. That is all right provided that the parties consent, but I am sure that the noble and learned Lord will have in mind that the parties in proceedings under the Bill will be most likely to be people who are working class. Some of them may have had the benefit of a good education; many of them will not. So far as I can see, unless an amendment I shall move later is accepted, they will not have the benefit of legal aid.

It occurs to me that whereas a parent, or a child if that be the case, can usually express a view vocally, and can possibly be helped to clarify the reasons for the appeal if it is done by word of mouth, the idea of having to put the appeal in writing, maybe unassisted by any expert, will be a severe handicap. The noble and learned Lord may, so far as I am concerned, have his way about an appeal being considered with the grounds in writing. However, in this amendment I ask that that provision be subject to the parties consenting to the grounds being in writing.

8.30 p.m.

The Lord Chancellor

My Lords, strictly speaking, the amendment to Clause 17 of the noble Lord, Lord Mishcon, would be superseded. I expect to leave out Clause 17 of the Bill and replace it with this less formal review procedure. As was pointed out in Committee, the clause looked rather formal. We have tried to make good that difficulty by removing the formality.

Your Lordships will see that in subsection (12) we have produced the possibility of procedural regulations. Perhaps it will suffice for me to say to the noble Lord, Lord Mishcon, that I shall draw to the attention of the Secretary of State the point made in relation to how he may make regulations under subsection (12). It may well be that one would be able to initiate a review under this less formal procedure without much writing at all. One may simply say, "You must have another look at it". The review procedure is intended to be rather informal, particularly within the 28 days.

The noble Lord may be prepared to leave it on the basis that we shall draw this matter to the attention of the Secretary of State for consideration in relation to any regulations he may make under subsection (12) of my new clause. Perhaps that will satisfy the noble Lord.

Lord Mishcon

My Lords, if the noble and learned Lord passes on the point to the Secretary of State, I am sure that he will definitely give it favourable consideration. I am grateful to the noble and learned Lord and in those circumstances I shall ask leave to withdraw my amendment.

Lord Simon of Glaisdale

My Lords, I am completely lost and I know it is my fault. My noble and learned friend is obviously right in that he will move his amendment to leave out Clause 17. I am not sure whether he has spoken to the important amendment substituting an administrative tribunal for the phrase to which exception was taken in Committee; namely, "court or tribunal". The noble Lord, Lord Mishcon, clearly made the point that it should be a court. My amendment was directed to that point. I should be grateful if I could be told what amendment I should speak to now and whether I am in order by intervening at Report stage after my noble and learned friend has replied. Therefore, perhaps I should ask for the indulgence of your Lordships.

The Lord Chancellor

My Lords, the effect of what I have just proposed is to insert after Clause 15 a clause that refers to "review" instead of "appeal" as under the present Clause 17. Therefore, in due course I shall move Amendment No. 58—to which I spoke when I sought to explain what I am trying to do—to leave out Clause 17. On Amendment No. 59 I shall deal with questions about the appeal. That may be the point at which my noble and learned friend could introduce the matter he wishes to raise.

Lord Simon of Glaisdale

My Lords, I am very much obliged to my noble and learned friend. I shall speak briefly to his Amendment No. 45. I wish to make two points, both of which are important in relation to the later amendment dealing with the administrative tribunal. Subsection (6) of the new clause concerns the grounds for refusal, assessment or cancellation. The three grounds are: ignorance of a material fact; mistake as to a material fact; and error of law.

Exactly what is a material fact is a question of law, but we need not debate that because subsection (6) (c) plainly raises a question of law. I wish to ask my noble and learned friend how it is suitable that a question of law should be referred to an official; moreover, an official of co-ordinate jurisdiction and authority to the one who made the assessment which is to be reviewed. The same point will emerge more strikingly when one comes to the attempt to substitute administrative tribunal:; for courts of law.

It has been pointed out on a number of occasions that this is an enabling Bill—a skeleton Bill—and that the real thrust of the measure will appear in regulations. The noble Lord, Lord Mishcon, told us on Second Reading that there were 92 provisions enabling regulations to be made. The new clause of my noble and learned friend adds three provisions, and his later amendment will produce the century.

The Lord Chancellor

My Lords, the purpose of the amendment is to have a review. It is possible that an official may make a mistake in relation to the law. If it can be done, there is no reason why it should not be corrected without going too far.

As regards counting, as I intend to remove Clause 17 one would have to subtract the regulation-making power in that clause if one is totalling the provisions. All I am doing is substituting the power in the new clause for the regulation-making power in the existing Clause 17.

Lord Simon of Glaisdale

My Lords, as may be expected, my noble and learned friend is mathematically quite correct. Perhaps the matter could be reduced to a formula in Schedule 1!

The Lord Chancellor

My Lord, I am greatly obliged to my noble and learned friend. I have no doubt that a suitable formula would be almost as simple as those in Schedule 1.

Lord Mishcon

My Lords, I believe that I do not have to ask the leave of the House to speak. I spoke to an amendment and I am now discussing my own amendment and those moved by the noble and learned Lord. However, in case I am wrong, I hope that I have your Lordships' leave.

I wish to make our position on these Benches quite clear. I do not wish to weary the House by moving hopeless amendments, but in Committee we made clear that we thought that the court ought to have jurisdiction in regard to appeals and that the tribunal was the wrong body for that. We shall have an opportunity to state that quite briefly when the noble and learned Lord 0moves a subsequent amendment.

We realised that the review procedure was a matter for the internal arrangements of the department and we have no quarrel with that, except that we again made it clear that we did not like the idea of a review being carried out by an officer of equal rank to the person who made the original assessment. One had the picture I hope inaccurately—of a colleague walking over to another colleague in the same room or possibly the next room, and saying, "You have been asked to review this matter. I shall explain to you briefly why I made my decision. Do you mind initialling this paper to say that you approve of what I did and said"? That is not a pleasant picture to have in mind when one is considering an appropriate review procedure.

I repeat that I do not wish to weary the House with further amendments, certainly on Report. I ask the noble and learned Lord whether he has considered the matter of a superior rank being required of the reviewing officer. Does he wish to give further consideration to that matter, and is it a suggestion that he could accede to? That information would help me considerably when considering what amendments I wish to table on Third Reading.

The Lord Chancellor

My Lords, this is a matter of internal review with the opportunity of having the original assessment checked by a different child support officer. It will be for the Secretary of State to make the necessary arrangements. I am not sure that the particular difficulty to which the noble Lord referred would necessarily be conclusively avoided by the provision that he has in mind. I have no doubt that the arrangements that the Secretary of State would make would endeavour to secure that the matter was independently looked at by a different child support officer. That is the aim of subsection (7). It might well be conducive to harmony within the department that such an assessment should be conducted by an officer of a superior rank. However, I should not have thought that that was a necessary arrangement to impose on the Secretary of State. After all speed is also important and such further assessment might depend on the way child support officers were deployed, who was available and other such matters. The idea is that another officer will independently check the work already carried out to see whether the assessment should be amended. I have no doubt that sense will prevail as regards the basic arrangements which are the responsibility of the Secretary of State.

Lord Mishcon

My Lords, with the leave of the House, as I understand the noble and learned Lord, he feels that this is not a provision that should appear in primary legislation. However, in the procedure that the Secretary of State lays down, the desirability of having a further check carried out by an officer of superior rank would doubtless be borne in mind. On the basis that that is on the record, I do not ask leave to withdraw the amendment as I did not move it. However, I ask leave to sit down.

The Lord Chancellor

My Lords, I doubt whether that is a matter that I need to put to the House.

On Question, amendment agreed to.

[Amendments Nos. 46 and 47 not moved.]

Clause 16 [Reviews at instigation of child support officers]:

The Lord Chancellor moved Amendment No. 48: Page 11, line 32, leave out ("or 15 or considering an appeal under section 17") and insert (", 15 or (Review of decisions of child support officers)").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 45. I beg to move.

On Question, amendment agreed to.

8.45 p.m.

The Lord Chancellor

My Lords, in calling Amendment No. 49 I remind the House that this amendment has, I believe, already been spoken to with Amendment No. 40. I now call Amendment No. 49 in the name of the noble and learned Lord, Lord Simon of Glaisdale.

Lord Simon of Glaisdale moved Amendment No. 49: Page 11, line 38, leave out from ("assessment") to end of line 40.

The noble and learned Lord said: My Lords, I adverted to this amendment without dealing with it in detail. Although it was grouped with some previous amendments I believe that it involves slightly different points.

Clause 16(1) states that a child support officer, may make a fresh maintenance assessment on the assumption that the person in whose favour the original assessment was made has made a fresh application for a maintenance assessment". I do not understand what those words add to what precedes them. I beg to move.

The Lord Chancellor

My Lords, when we discussed Amendment No. 40 I undertook to explain these points. I believe they have considerable force with respect to parliamentary counsel. I intended to cover this amendment and another amendment that has been referred to when I spoke to Amendment No. 40. With that assurance I hope that my noble and learned friend will feel able to withdraw his amendment.

Lord Renton

My Lords, I, too, have been slightly puzzled, as the noble and learned Lord has, by the words "on the assumption that". I fail to understand how the assumption can be made. It is possible that a person may have made a fresh maintenance assessment on another assumption. There is no question of the assumption having had to be declared. It is certainly unusual for such words to be put in a statute. I wonder whether my noble and learned friend the Lord Chancellor really feels that these words are enforceable, leaving aside the question of whether they are really necessary, which I doubt.

Lord Mishcon

My Lords, I should like—I hope, not foolishly—to make a fresh point. I am not worried that the words may be otiose; rather that they are defective. I hope that the noble and learned Lord will tell me whether I am right or wrong. Clause 16(1) deals with the case of a child support officer not conducting a review under previous clauses of the Bill. The subsection states that the officer is not, considering an appeal under section 17 but is nevertheless satisfied that a maintenance assessment which is in force is defective for one of three reasons stated in the Bill. I should have thought that if a child support officer found the assessment to be defective and he was making a fresh maintenance assessment, the clause would provide that the effective date from which the fresh maintenance assessment ran would be the date of the original maintenance assessment which he is now reviewing as one of the three matters referred to in subsection (1). Instead of that, he is called upon to make the assumption that, the person in whose favour the original assessment was made has made a fresh application for a maintenance assessment". That might well mean that the child support officer has found the original assessment to be defective and wishes to make an order that it is defective. The date from which the order has to run is not the date one would have thought; namely, the date of the original assessment. The words in the Bill appear to suggest he has to undertake this provision on the basis that a fresh application has been made for a maintenance assessment. I wonder what happens to the effectiveness of the maintenance assessment made meanwhile.

The Lord Chancellor

My Lords, I have agreed to look at the matter with parliamentary counsel. I shall put to him all the additional points that have been made. In relation to the last point, the intention is that under the clause the effect of the change will apply as from the date of the new assessment. Normally the new assessment will be effective from the date on which it is made and it will not be backdated. I do not believe that it is the intention that this should be backdated.

Admittedly, the maintenance assessment has been proved to be defective in some way, but the circumstances have come to light later. There has been no review or appeal under the sections that deal with review and appeal and therefore the parties have accepted it; but this matter has come to the notice of the child support officer and he can amend the matter. That is how I understand the situation. However, I shall certainly put the whole matter to parliamentary counsel. I suspect that it is for some such reason that he has, made that assumption.

Lord Mishcon

My Lords, with the leave of the House, I shall make only a brief comment. Since an assessment is in effect, even though it has been found that there has been a mistake of some kind and there is a new assessment, I still wonder whether under the wording of the clause the old assessment is still in being for the interim period. I have made the point, good bad or indifferent, and the noble and learned Lord has been kind enough to say that some consideration will be given to it.

The Lord Chancellor

My Lords, we do not need to dwell too long on the matter. That is the point: for the interim period the old assessment will have remained in force. The idea is not to cancel its effect for that interim period. However, we shall certainly look into the matter further.

Lord Simon of Glaisdale

My Lords, perhaps I may presume to say that I concur with the way in which my noble and learned friend proposes that the procedure should work. The matter has to be looked at again, and the only proper course is to thank noble Lords who have raised various points and ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendments Nos. 50 and 51: Page 11, line 41, leave out ("or considering such an appear,. Page 11, line 43, after ("15") insert ("or (Review of decisions of child support officers)").

The noble and learned Lord said: My Lords, I have spoken to the amendments with Amendment No. 45. With your Lordships' leave I beg to move Amendments Nos. 50 and 51 en bloc.

On Question, amendments agreed to.

Clause 17 [Appeals against maintenance assessments and other decisions]:

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 52: Page 12, line 6, leave out ("the Secretary of State") and insert ("such court as the Lord Chancellor may specify").

The noble and learned Lord said: My Lords, I am in your Lordships' hands. I am not sure whether this is a convenient moment to move this particular amendment. It is very much bound up with the question of a court or administrative tribunal. Perhaps your Lordships may think that it would be better dealt with under my noble and learned friend's new clause. I am very anxious to know how he would like the matter dealt with.

The Lord Chancellor

My Lords, I think that it would 131, right to deal with the matter under the new proposals because, your Lordships having accepted my proposed clause on review, Clause 17 will be deleted by Amendment No. 58 in my name. Therefore it would be more convenient if my noble and learned friend felt able to deal with the questions that he wishes to raise in relation to my proposals regarding appeals.

Lord Simon of Glaisdale

My Lords, I do not know what it would be appropriate for me to say—I imagine, "not moved", and then I can return to the matter if necessary at Third Reading.

[Amendment No. 52 not moved.]

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 53: Page 12, line 18, leave out ("appropriate") and insert ("aggrieved").

The noble and learned Lord said: My Lords, I put down the amendment only because on two or more subsequent occasions the draftsman has used the word "aggrieved" in these circumstances.

The Lord Chancellor

My Lords, as a result of what has gone before, Clause 17 will disappear altogether in a moment. It may therefore be convenient to leave the matter.

Lord Simon of Glaisdale

My Lords, is not my noble and learned friend being rather optimistic?

The Lord Chancellor

My Lords, I am not sure about that. The fact that your Lordships have already agreed Amendment No. 45 rather assumes that. Therefore my optimism is probably well founded. I am inclined to try to make progress if possible, and 1 had assumed that my noble and learned friend might feel able not to move Amendments Nos. 52 to 56 inclusive. There is a point in relation to Amendment No. 53 but that will disappear on my moving—as I hope to do very shortly—Amendment No. 58.

Lord Simon of Glaisdale

My Lords, I respectfully agree with my noble and learned friend. Perhaps it would be most convenient at this stage if I say that I shall not move Amendments Nos. 53 to 56 inclusive.

[Amendments Nos. 53 to 56 not moved.]

Lord Mishcon had given notice of his intention to move Amendment No. 57: Page 13, line 11, after first ("of") insert ("with the consent of the parties to the appeal").

The noble Lord said: My Lords, I have already spoken to the amendment. I ask leave to withdraw it at this stage—indeed, I ask for it not to be moved.

[Amendment No. 57 not moved.]

The Lord Chancellor moved Amendment No. 58: Leave out Clause 17.

The noble and learned Lord said: My Lords, this is the amendment that I have sought to anticipate more than once. I hope that with a degree of confidence I can now move it. I beg to move.

On Question, amendment agreed to.

Clause 18 [Further appeals]:

9 p.m.

The Lord Chancellor moved Amendment No. 59:

Page 13, line 22, leave out from ("on") to end of line 23 and insert ("a review under section (Review of decisions of child support officers) may appeal to a child support appeal tribunal against that decision on one or more of the following grounds. (1A) The grounds are that the decision in question—

1. (a) was made in ignorance of a material fact;
2. (b) was based on a mistake as to a material fact;
3. (c) was wrong in law.")

The noble and learned Lord said: My Lords, in moving Amendment No. 59, I should like to deal with Amendments Nos. 60, 61, 62, 66, 71, 80, 84, 92, 110, 111 and refer also to Amendments Nos. 75, 115, 65, 67, 64, 68 and 69.

I am conscious that I am seeking to deal with a very important subject with a number of government amendments. They all have the same end, and I thought that it would be convenient for the House to consider them together with the amendments to the clause which we are seeking to replace.

We have found the decision about the venue for appeals against decisions made by child support officers a difficult one. The arguments have been finely balanced. In the end we have concluded that the best answer is to set up child support appeal tribunals. These will be specialised, dedicated tribunals. They will be under the aegis of the president of the social security appeals tribunal and medical appeal tribunals. The provisions for that are contained in Amendments Nos. 71 and 110.

Perhaps I may highlight the main arguments that moved us in the direction of specialist tribunals. In many ways the formula reflects the approach which has traditionally been taken to assessing the needs of income-related benefit claimants to cover the living costs of children, and a good deal of expertise in such matters has built up in the tribunals for which the president of the social security appeal tribunals is responsible. In providing that appeals from a child support officer should lie to a tribunal under the president's aegis, we intend to draw on and exploit that expertise for the benefit of children who are looking to an absent parent for support. The tribunals are largely modelled on the existing social security appeal tribunals which are widely regarded as providing a relatively speedy and informal forum in which the parties themselves, either alone or with the help of a friend or adviser, can present an appeal. Equally important, many of the appeals will be of a detailed and technical kind with which tribunals like social security appeal tribunals have become expert at dealing, and we would expect the child support appeal tribunals quickly to develop the same expertise. The tribunal itself will be made up of a legally qualified chairman and two lay persons drawn from local panels and will thus combine legal and technical expertise with local knowledge.

Many would like to see those appeals heard by the courts which hear other family matters. I have to say, however, that in England and Wales at least those courts, for the present, have their hands full in implementing the Children Act and, as I said the other evening, at this stage in the development of the family jurisdiction, I do not think that it would be practical to expect the courts to take on that wholly new type of case, even were it desirable in practice.

Those are the reasons why the Government consider that appeals should go to the new tribunals that I have described. However, the Government realise that it may in the future become desirable to involve the courts. Circumstances change and the pros and cons of allocating appeals to the courts may weigh differently as a result and may weigh very differently when the system has settled down. As many of your Lordships are aware, the Government have embarked upon a rolling programme to review the family justice system, of which the Children Act of 1989 was the first fruit. As part of that programme, the Government intend to review the organisation of family business. It is not possible for me to foresee at this stage what the result of that process will be; but new arrangements may well make it desirable in the future to concentrate appeals in specialist courts together with other family business. Further, experience of how the child support scheme under the Bill operates, especially in relation to connected court proceedings, may lead us to wish to reconsider the position.

To cater for all those possibilities, the new Clause 80 will enable the Lord Chancellor and, in relation to Scotland, the Lord Advocate, to provide, by order, for appeals to go to a court instead of to a tribunal. The detailed provisions of the clause confer the flexibility to do that in relation to certain classes of appeal or circumstances. In relation to England and Wales, the new clause also attracts the flexible powers of allocation and transfer within the court system that were created for children's proceedings by the Children Act 1989 which will apply only to England and Wales when it comes into force in October. The new clause contains power for an order under it to amend primary legislation consequentially. That is necessary because, were a wholly new category of proceedings sent to the courts, a great deal of ancillary provision would need to be made to whatever related primary legislation was in force at the time. At present for example we might wish to amend the Matrimonial and Family Proceedings Act 1984 to put English county court proceedings "family business" within the meaning of the family proceedings rules and/or, if appeals were sent to magistrates' courts, we might want to amend the Magistrates' Courts Act 1980 to make them family proceedings in magistrates' courts. These are essentially ancillary and subordinate provisions under the new main provision. The nature of the amendments required will depend to some extent on the substantive effect of the order, and of course the order may not be made, if at all, until some years in the future, by which time the primary legislation may itself have been amended, added to or replaced. Our new provisions would render Amendments Nos. 67 and 68 irrelevant.

In the social security appeal system, there is provision for further appeals to be made, on a point of law, against decisions of appeal tribunals. Those appeals go to social security commissioners. It seems right that a similar arrangement should be followed here and that there should be specialist commissioners to deal with appeals against child support appeal tribunal decisions. There will continue to be a right of appeal, to the Court of Appeal, against a commissioner's decision. We hope to bring forward a further amendment at Third Reading which will give effect to that proposal. The subsection of Clause 18 referring to further appeals will be replaced and there will be no requirement for the Lord Chancellor to consult the Lord Advocate. That will mean that Amendments Nos. 64, 65 and 69 will not be necessary.

Before I sit down, I should also mention court proceedings for declarations of paternity under Clause 20. The new Clause 80 attracts the Children Act's allocational powers in the same way as I described earlier in relation to appeals. Amendments Nos. 75 and 115 follow from that and I commend them to the House. They refer to the allocation system of the Children Act applying to paternity proceedings under this Act, which will go before a court. The remaining amendments are minor technical provisions. Amendment No. 84 provides for a definition of child support appeal tribunal in Clause 39 which deals with definitions. Amendment No. 92 extends the provisions of the new schedule about the child support appeal tribunals to Northern Ireland. Amendment No. 111 inserts a reference to child support appeal tribunals at the appropriate place in the Tribunals and Enquiries Act 1971 to put them in the jurisdiction of the Council on Tribunals.

The amendments are closely connected. We have modelled the tribunal on the social security appeal tribunals. In Amendment No. 110, we have made provision which makes it plain that, under the Act: A child support appeal tribunal shall consist of a chairman and two other persons... The chairman and the other member of the tribunal must not all be of the same sex.

In other words there must be at least one of each sex in the set of three. I believe that that is an important feature in a tribunal of this kind. As I said earlier in another connection, one hears a lot of complaint particularly from men, that the courts are unfair to men. The noble Lord, Lord Mishcon, responded to that by 3aying that I would not hear from the people who were satisfied. That is generally the experience of people who respond to letters. The point that I was making was not met by that argument. My point was about complaints from men that they felt that the courts were unfair to them. If the sexes are balanced in the tribunal, it may help to eliminate the feeling that there is any kind of bias, depending upon the sex of those who make up the tribunal. I beg to move.

Lord Mishcon

My Lords, it would be an abuse of the time allocated to us for this stage of the Bill if I were to go into any detail in regard to the amendment so clearly moved by the noble and learned Lord. With respect, we should deal with the issues of principle and do it as shortly as possible.

As I see it, these are the issues of principle. First, it ought to be the right of anyone who is deeply affected by an order made against him to be able at some stage by way of appeal to go to our courts of law. Secondly, there should never be any discrimination between citizens to the effect that one section of our community in regard to similar matters has a right to go to a court of law and others do not. Thirdly, there is the principle, with which the noble and learned Lord by implication agreed; namely, that it is desirable that the same court that deals with general matrimonial affairs which may relate to parties should certainly deal with all of them where possible.

I preface my last principle with this plea: please do not set up a tribunal or any organisation under an Act of Parliament in the pious hope that one day it may be divested of its authority. Organisations and tribunals have a habit of holding on to jurisdiction however illogical it may be. I hope that I shall offend nobody if I give as a quick example to your Lordships the jurisdiction that was given to the Home Office in regard to magistrates' courts—alone of all courts—a jurisdiction which still remains despite many arguments that come from other departments (I shall not mention which one may be arguing). It would be so much tidier if all our courts were under the jurisdiction of the Lord Chancellor's Department.

So I adumbrate the last principle. With respect I say, "Don't think that one can airily say that if it doesn't work out well or our courts have more time, then consideration will be given to ending the tribunal's jurisdiction and it will go over to the courts".

In support of those principles, I make the following short points. First, we are depriving a certain section of our citizens from being able to go to the courts on appeal. Some of our citizens have maintenance orders made against them in the courts either by consent or after a tussle in the courts. If things are unreasonable and matters which should have been considered have not been considered by the courts, they have certain rights of appeal. It can be from a registrar to a judge, and it can go even further if matters of law are involved. How odd it is that in this Bill, and not only in this part of the Bill, one sees that one section of the community will only be able to have its appeals heard by a tribunal, respectable though that tribunal may be.

Your Lordships may ask whether they suffer from any additional handicap. Yes, they do. When one is appealing in a court one may have legal aid and will have a legal representative allocated—indeed one may choose one's own—who will argue the case. I think that the noble and learned Lord will reply to me—I hope I am wrong—that that legal aid will not be available to those who appear before the tribunal. I know that he will interrupt me if my forecast, pessimistic though it is, is inaccurate.

The next point that one looks at is the following. As the noble and learned Lord said, it may be desirable that the courts should deal with this matter, but I hope I am not unfairly paraphrasing him if I suggest that he said that the real reason why they are not being given this jurisdiction is because they are full up with cases, especially the duties that they have under the Children Act. Is that a sufficient reason for creating these tribunals and depriving our citizens of certain rights which are available to others, as I have repeatedly said? Would it not be sensible to ensure that the courts are given sufficient judges and registrars to deal with these matters? Would it not be a sensible allocation of money to see that that is done?

I am not aware that the noble and learned Lord has talked about the expense of the tribunals. I assume that they will not be placed in London alone, and that those people who are in the provinces or the rural areas will have the ability to go before a tribunal which is somewhere near them. They would certainly have that facility if they were to go to their local county court or magistrates' court. I should very much like to know the total cost of this, because it may well be that the expenditure of a similar amount of money could give the desirable result which, as I understood it, the noble and learned Lord thought might be the answer to the question.

This is a matter of fundamental constitutional importance. In regard to constitutional matters the citizen relies fundamentally upon your Lordships' House. We have that special duty. I ask noble Lords, even at this late hour, to consider the importance, not of the way in which I have made my submissions—I would not be so arrogant as that—but of the principles behind the submissions that I am making before we just—dare I use the word?—flippantly, and having regard to the time of the evening, agree with these proposals. I repeat that fundamental issues are at stake. I hope that the noble and learned Lord will appreciate that.

9.15 p.m.

Baroness Faithfull

My Lords, I wonder whether I may clarify one point with the noble Lord, Lord Mishcon. Is he saying that the applicant should go through the appeal tribunal and then, if he disagrees with the final appeal tribunal, go to court; or is he saying that he should go to court from the beginning?

Lord Mishcon

My Lords, on the basis that I have not sat down, perhaps I may reply to the noble Baroness by explaining that I meant that it should not be the appeal tribunal at all which deals with these appeals, and that we should not create the appeal tribunals. There ought to be the right to go to a court.

Earl Russell

My Lords, the noble Lord, Lord Mishcon, is quite right. This is a constitutional matter. The exclusion of a group of our citizens from the courts is a matter about which we should think long and hard. On these Benches we are in agreement with the arguments put forward by the noble Lord. In particular, we think that his point about legal aid is vital.

Lord Simon of Glaisdale

My Lords, when the Committee stage of the Bill ended we asked when the Report stage would be. We were told that it had been provisionally fixed for the 25th and 29th of this month, but when in due course we looked at the Order Paper there was no sign of it. Day after day and week after week it did not appear. It did not take much knowledge of Whitehall to know what was happening: two government departments were in disagreement about what should be done at the next stage. Those two government departments were obviously those of my noble and learned friend and the Ministry fostering this Bill. Nor was it in the least difficult to ascertain the point of difference. It had been identified in Committee; it was the words "court or tribunal". My noble and learned friend skilfully kept that issue open. Obviously it had to be decided and was no doubt decided in Cabinet committee. I am sad to say that it was decided adversely to the department of my noble and learned friend. That was doubly unfortunate; first because of the merits and secondly because it meant that, due to the doctrine of collective ministerial responsibility, my noble and learned friend would be bound to defend what had been decided with all the considerable skill and force at his command.

The noble Lord, Lord Mishcon, in his admirable speech has dealt succinctly but effectively with the points at issue. They are points of considerable constitutional significance. The first is the right of an individual to have his rights determined in a court of law. An adjunct to that, as the noble Earl has pointed out, are the rights to representation which can be had before a court of law but not before an administrative tribunal.

We must not minimise the tension that exists between administration and the law; between the bureaucracy and the courts. The courts are traditionally concerned with individual rights. However, the Executive is traditionally concerned with public social order and often the two will be in conflict. They must be held in balance. The courts, with their traditional insistence on considering the individual and his rights, are apt to disrupt the orderly administration—at least as the administrator sees it.

Your Lordships may remember the speeches made, unfortunately, late at night during the Courts and Legal Services Bill by my noble and learned friends the Master of the Rolls and Lord Ackner, dealing with the remedy of judicial review. They spoke of the intense caution that the courts had felt was incumbent upon them in developing that remedy, although it had been widely, indeed universally outside Whitehall, welcomed. The courts were assiduous in not usurping the administrative decision of the Executive. All they did was to ensure that those decisions were made according to law and in the way that Parliament had stipulated. However, in so far as courts have regard to individual rights, and as the noble Lord, Lord Stoddart, has reminded us on many occasions during the passage of this Bill, an infinite variety of circumstance must be taken into account.

A court of law can do that. A formula cannot do that. For example, a formula has no means of weighing what I ventured to labour before your Lordships earlier this evening; namely, the case where the father is an ill-used man. That does not appear in any formula and yet that is a matter, even putting the primacy of childrens' maintenance first, which calls for consideration.

Therefore, the noble Lord, Lord Mishcon, is absolutely right to say that the individual is entitled to have his rights determined in a court of law. There is a big difference. The law, with all its faults, is concerned with people. Bureaucracy, with all its virtues, is concerned with personnel. That is a big divide.

On this Bill it has been remarked consistently by all its critics from all parts of your Lordships' House that it is a monstrous accession of bureaucracy—an aggrandisement. Almost everything was secured up to this moment: legislation by regulation-92 regulating powers; the sacrifice of traditional confidentiality and secrecy even in the role of the Inland Revenue; and the intrusion of inspectors into places of employment, which we are satisfied will be very much to the detriment of the employee. Later we shall see the Executive, the Secretary of State, arming himself with liability orders, deduction orders and the right to enforce them by the remedy of distress. Moreover, that violent remedy has been stripped of all the safeguards which the common law erected in respect of it. Only one aspect is missing in that triumph of bureaucracy; that is, an administrative tribunal. That has now been secured. The success has been completed. Let us regret that.

9.30 p.m.

Lord Renton

My Lords, I hope that I am no less zealous than the noble Lord, Lord Mishcon, and the noble And learned Lord, Lord Simon, in having respect for our constitution and the important part which the courts can play in that. However, here we have to find a means of deciding matters affecting children and their parents. We must consider whether, in practice, those courts which may possibly have had such jurisdiction will be the right people to have it in the first instance in the circumstances envisaged by the amendments moved by my noble and learned friend.

Certainly the Family Division would not be appropriate. It would not have the composition and the machinery for the purpose. There is then the possibility of the county court judges exercising such a jurisdiction. However, as is clear from a paragraph in the new schedule set out in Amendment No. 110, the chairman and other members of the tribunal—and we see from the previous paragraph that there are to be two other members of the tribunal— must not all be of the same sex". Here we are striving to find the sort of tribunal which would be appropriate for deciding these particular cases. Ir the circumstances, and having due regard to constitutional principle, it is right to have tribunals of that kind for this specific work. We must not lose sight of the fact that the courts of record, as lawyers know them to be, retain under the Bill a great deal of jurisdiction of a supervisory kind. That appears to be so from various parts of the Bill which are not under immediate discussion.

I raise one doubt in regard to the amendments spoken to by my noble and learned friend. I agree with what he said on Amendment No. 110 and the new schedule regarding the responsibility of the Lord Chancellor with regard to the appointment of the chairmen. Indeed, the Lord President of the Court of Session comes into the matter also. However, whereas I can go along with the provisions set out for appointment of the chairmen and members of the tribunals, I find it strange that Amendment No. 71 provides for various important legal matters to be decided by the Secretary of State by regulation rather than by the Lord Chancellor.

If we look at Amendment No. 71(3), we find that the Secretary of State is to make provision for the procedure of the tribunals; that is essentially a legal matter on which the responsibility of the Lord Chancellor is expected and respected. Further down we find that the regulations are to make provision in regard to evidence. Evidence is essentially a legal matter for the Lord Chancellor rather than a matter for the Secretary of State.

I do not understand why the responsibility for these new tribunals has been divided in this way. I should have thought, if we are to have them, it would build greater public confidence if the whole matter was placed under the jurisdiction of the Lord Chancellor rather than being divided between the Lord Chancellor and the Secretary of State. For those reasons I cannot go along with the noble Lord, Lord Mishcon on this occasion, although on such legal matters he and I often agree. The Lord Chancellor should be supported, save that he must be asked to consider again whether the Secretary of State should make the regulations.

Lord Mishcon

My Lords, before the noble Lord sits down perhaps he will permit me to intervene. He saw me looking somewhat critical when he said that under the amendments the courts were given certain supervisory powers. I believe he was referring to Amendment No. 80. Those are not supervisory powers. The amendment merely provides that the Lord Chancellor can in fact make an order in regard to England and Wales, as can the Lord Advocate in regard to Scotland, to transfer from the tribunals to the courts if the tribunals are found to be unsatisfactory. There is no supervisory power granted under the amendment. It is purely providing for the alternative. I believe that is right.

Lord Renton

My Lords, I take the point as regards Amendment No. 80, but that is not the whole of the story. The courts will have the power of the judicial review and of orders made in lieu of prerogative writs.

Lord Stoddart of Swindon

My Lords, I wish to make a few remarks basically in support of my noble friend Lord Mishcon and the noble and learned Lord, Lord Simon of Glaisdale. I certainly cannot be so eloquent as they were. I want to emphasise the point that here we seem to have a group of people who are going to be denied access to the courts. All through this Bill it seems that these people—the so-called "absent parents" in particular—are to be treated as social outcasts or social lepers without the access to the courts which other people may very well have. I sincerely hope that the noble and learned Lord will listen very closely to what my noble friend has said.

My noble friend Lord Mishcon also raised the question of the costs of the tribunals. I shall go a little further and ask whether those costs are covered by the estimated £35 million per year which appears in the estimate of the financial effects of the Bill. Does that include the capital costs of £30 million, or will it be additional? Will there be costs in addition to the £30 million for capital? In relation to the effects of the Bill on public sector manpower, will the numbers be increased as a result these amendments?

I turn now to Amendment No. 71. The noble and learned Lord did not respond to my noble friend's challenge about legal aid. It is quite clear that the people appearing before the tribunals are to be denied not only access to the courts but access to proper legal aid as well. Subsection (2) of the new clause states: The Secretary of State may make such regulations with respect to child support appeal tribunals as he considers appropriate", and subsection (3) (c) states: as to the persons entitled to appear and be heard on behalf of any of the parties". I am not a lawyer. Does that mean that provision will be made for people to be legally represented? Perhaps the noble and learned Lord will tell me that.

I now turn to page 11 of the Marshalled List. Under the heading Membership of child support appeal tribunals, paragraph 2(1) of the new schedule states: A child support appeal tribunal shall consist of a chairman and two other persons". The noble and learned Lord the Lord Chancellor referred to that and we thought that that would be fair. The tribunal consists of three people, but here we have a clear case where there is a man and a woman. I can see difficulties arising where you may have two women and one man on a tribunal or two men and one woman. The appellants might feel aggrieved because their sex is not properly represented. Perhaps the noble and learned Lord will give that matter some consideration because in such circumstances problems may very well arise.

On page 13 of the Marshalled List, paragraphs 5(3) and (4) of the proposed new schedule, state: (3) The panel for an area shall be composed of persons appearing to the President to have knowledge or experience of conditions in the area and to be representative of persons living or working in the area. (4) Before appointing members of a panel, the President shall take into consideration any recommendations from such organisations or persons as he considers appropriate". Can the noble and learned Lord tell me what kind of people are going to be appointed to these panels? Can he give me some idea of the range and qualifications of those who are to be called upon to sit on these tribunals, or given the opportunity to do so? For example, will they be residential qualifications? From which organisations will he take recommendations? As a layman in these matters I should very much welcome replies to these questions from the noble and learned Lord.

The Lord Chancellor

My Lords, I think it is important to recollect that we are, at this stage, working on the assumption that the maintenance assessment will be decided on the basis of a formula. Noble Lords who were present towards the concluding stages last Thursday will recall that we had a short discussion about the application of the formula. The noble Lord, Lord Mishcon, will remember what he put on record as a consequence of that consideration.

The situation is that we are deciding, or looking at, a mechanism for deciding the application of a formula for a given set of facts. My noble and learned friend Lord Simon of Glaisdale has been engaging in speculation as to what happened between the Committee and Report stages. I have to say that it is a pure speculation. I have personally considered this very carefully and reached the conclusion that, at least at the beginning of this matter, the considerations are very strongly in favour of a tribunal which will be very like the tribunal which presently decides social security appeals. The application of the formula, the methods by which it will be applied and the nature of the concepts that are involved in the formula, are all strongly allied to the social security system. I believe that in the circumstances such a tribunal, closely allied to the social security appeal tribunal, is suitable.

That brings me immediately to some of the questions that have been raised. Amendment No. 71 is based on the provisions relating to social security appeal tribunals. The Secretary of State makes the appropriate regulations for these. I have not heard any criticism of that. As regards the provision for—

Lord Simon of Glaisdale

My Lords, surely my noble and learned friend must have heard complaints that there is no legal aid before those tribunals?

The Lord Chancellor

My Lords, I am talking about Amendment No. 71 which is dealing with the procedural regulations which apply before these tribunals. I have heard no complaint about these regulations. They are formulated after consultation with the Council on Tribunals.

Amendment No. 71 includes a provision as to the persons entitled to appear and be heard on behalf of any of the parties. I should regard that as an appropriate matter to be dealt with. The situation membership of the tribunals and their cost (covered by the Explanatory Memorandum) is that when the Bill was prepared it was done on the basis that the matter be left open as to whether it should be a tribunal or the court. Obviously, the work has to be done somewhere. The estimated costs are appropriate to cover the tribunal and its membership.

As regards the composition of two women and one man—or the other way about—that is an inevitable consequence of having three members. If one is to get a decision, generally speaking one has to have—although some years ago the Court of Session was a good example to the contrary, generally speaking if one is to get a decision it is necessary to have an odd number of people not odd people, of course, but an odd number of people. Accordingly, the phenomenon about which the noble speaks is unavoidable. However, I regard it as an important attribute of this tribunal that it should have in it the point of view of both sexes in connection with the matter. As the noble Lord, Lord Stoddart of Swindon, pointed out, especially having regard to the organisation which had at least some part in helping him or advising him on the matter namely Families Need Fathers—that aspect must be taken into account.

9.45 p.m.

Lord Mishcon

My Lords, does the noble and learned Lord not realise that there is a little contradiction—I say this with the greatest respect—in his argument? He said first that it was only a formula and therefore a matter of administration which had nothing to do with the courts. However, he went on to say that it was advisable to have a lady and a gentleman on the tribunal because both male and female points of view can be put forward. But is the reaction of a female to a formula any different from that of a male?

The Lord Chancellor

My Lords, I have witnessed different reactions to formulae from different people. I do not say that they are always determined by gender. However, the point is that the formula must be applied. The noble Lord has perhaps slightly altered the emphasis of what I have been saying. A formula requires to be applied to a given state of facts. I believe that it may help to have a tribunal which is constituted in a way that at least shows a degree of affiliation with both sexes that may appear before it. The idea of fairness in applying the formula is important. There is nothing inconsistent with having fairness and a formula, and a formula fairly applied. However, I regard the subject matter as being the application of a formula. I believe that that is analogous to the social security appeal tribunals.

I believe that I have dealt with the main points which were raised as regards the regulations. The noble Lord, Lord Stoddart of Swindon, asked about the source from which the president of the tribunal would choose the members. First, I assume that the president would proceed very much in the same way as one would expect in relation to other tribunals. He will take representations recommending local people from a variety of local bodies; for example, from the citizens' advice bureaux, trade unions, employers' organisations, chambers of commerce, local MPs and the like. The aim will be to ensure that members are widely representative of local communities. I believe that such a process of consultation will produce the kind of membership which we expect from the social security appeal tribunals which, as I said, is satisfactory.

I turn to the court question raised by my noble friend Lord Renton. I am most grateful to him for his support. I believe that he has correctly analysed the nature f the problem and the way forward. First, as my noble and learned friend Lord Simon of Glaisdale clearly pointed out, one of the important developments in our law in recent times has been the development of the doctrine of judicial review under which the courts have a supervisory jurisdiction over all lower tribunals. Of course, this sort of tribunal will be no exception to that process.

Secondly, there is no question of some classes of people wing in the courts on this matter and others not. If the application of the formula is in dispute, anyone will be obliged to go—that is, if he or she wants to appeal—to the tribunal. There is nothing new about setting up specialist tribunals for particular subject matters. An industrial tribunal is a good example.. The reason is that a specialist tribunal deals with specialist subject matter, and that is the basis of the present proposals. It is appropriate that the matter should, the first instance, be committed to a tribunal similar to the present social security appeal tribunals. But I have thought it wise—this is reflected in the amendments—to retain the power, for England and Wales in the Lord Chancellor and for Scotland, the Lord Advocate, to direct some or all of the matters to courts rather than to tribunals, if that appears to be right.

The noble Lord, Lord Mishcon, said that once we set up a tribunal we never take it away. He illustrated that point by reference to the Home Office which is responsible for magistrates' courts. I leave aside the relevancy of the illustration to this issue, but the Government are deliberately making it clear in the Bill that that power is retained to the Lord Chancellor. Your Lordships are aware of what I have said about the nature and number of the applications and the nature of the burden that they would impose. Once things settle down, the burden may become less. At the moment it seems to me to be highly suitable that the appeal should be determined by a tribunal along the lines of the present social security appeal tribunals, modified in the way the amendments suggest, and that the power be reserved in the future as things develop to make new arrangements under which the courts would receive some or all of that jurisdiction.

As I have said, the social security appeal tribunal presently has an appeal to the social security commissioners. I intend to provide a similar right of appeal to commissioners. There is an appeal from them to the Court of Appeal under the present law. So the ultimate jurisdiction of the courts is not ousted. I therefore commend the amendment to your Lordships.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 60 to 62: Page 13, line 24, leave out ("the court") and insert ("a child support appeal tribunal"). Page 13, line 27, leave out ("court") and insert ("tribunal"). Page 13, line 30, leave out ("court") and insert ("tribunal").

The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 59. I beg to move.

On Question, amendments agreed to.

Earl Russell moved Amendment No. 63: Page 13, line 31, at end insert: ("(4A) Alternatively, if it appears to the court that the application of the formula has caused undue hardship or discrimination, the court may make its own assessment. (4B) In cases where the court makes its own assessment it shall have regard to all the circumstances.").

The noble Earl said: My Lords, the amendment deals with a party who, like Odysseus to Ithaca, finally wound his way through the preliminary procedures to a court. When he arrives, he will at present merely find Procrustean lines of a formula. The purpose of the amendment is to give the court a little more power, specifically the power, if it appears to the court that the application of the formula has caused undue hardship or discrimination, to make its own assessment. It is to get away from the mathematical, platonic adherence to a formula.

Throughout the Bill, we have been returning to the question of the formula. The noble and learned Lord the Lord Chancellor has recently used the formula as a reason for justifying the exclusion of the courts. I cannot say that that helps to endear the formula to me: I was already worried enough about it. The application of discretion, particularly in any matter relating to disposable income, is vital, because two people on the same paper income are not equally well off. However many circumstances we take into account in the formula, we shall never be able to foresee all material facts. Foreseeing all material facts and feeding them into the formula is something of which I believe only divine omnipotence would be capable.

In Committee I quoted one example of a formula leaving out what transpired to be a material fact. It was a formula for assessing parental liability to contribute to student grants. It took no account of the fact that the family were living with five in two rooms and thought perfectly reasonably that the priority call on the income was to raise money for a house. That is not the only case of that kind when, so far as I can see, the formula takes no account of the health of the parties. That may cause considerable variations in costs.

The case for some discretion in the administration of the formula seems to me to have become a great deal stronger since we have not succeeded in persuading the Government to allow any variation or discretion in dealing with work-related expenses, access costs or any of the other variables. The noble and learned Lord, Lord Simon of Glaisdale, in what I found an extremely impressive speech, seems to me to have put a great deal of the case in favour of this amendment. He said—and the phrase is memorable—that the courts, with all their defects, deal with people; bureaucracy, with all its virtues, deals with personnel. That is at the heart of why I want scope for the courts and scope for discretion. It seems to me that without it we cannot do justice on the basis of all the material facts. Without all the material facts, what we are doing will not be justice.

The noble and learned Lord the Lord Chancellor has argued the case against this on grounds of consistency. I understand that case. Where it can be truly achieved, consistency is a great virtue and one should aim for it. However, if we achieve an appearance of consistency by treating two cases which are unlike as if they were the same, the appearance of consistency that we get is entirely spurious. I cannot see how justice can be done unless we may have a discretion which allows it to be possible to take into account a material fact which was not foreseen when the formula was drafted. However well the noble and learned Lord and his advisers have carried out their job—and I am sure that they have done their best—they cannot do it all. I beg to move.

The Lord Chancellor

My Lords, the principles of the formula are set out, and there are regulation-making powers in relation to it. The object is to provide a formula which will apply properly to all the circumstances that may be required. That is surely the correct aim of the formula and is one of the reasons why it has an appearance of complexity. The object is to cover all the circumstances as best one can.

The subject is simply to be the maintenance of the children to whom the formula is to apply. It is fairly narrow. In many ways, it is analogous to the provisions that apply in relation to various types of benefit. In my submission, the formula must attempt to provide an answer that will be consistent.

The noble Earl said—and it has been mentioned before—that there are many circumstances. However, a huge number of maintenance obligations arise. If the court is to be asked to exercise a discretion in respect of all these, it must be a question in every case whether there is undue hardship or discrimination, whatever that phrase may mean. Instead of having a formula being applied, without further ado, to sets of circumstances, the possibility of a court assessment in every case would arise. The latter provision has proved to be utterly ineffective in the present law. Accordingly, I submit that the correct way forward is to allow the formula to apply and not to saddle it with court applications in the way this amendment proposes. I hope that in the light of that explanation the noble Earl will feel able to withdraw his amendment.

l0 p.m.

Earl Russell

My Lords, I thank the noble and learned Lord for that reply, which was very much what I might have expected. In passing, I wish to take up a brief defence of the words "undue hardship or discrimination". I hope that the words "undue hardship" are self-explanatory. By those words I meant to suggest situations where the application of the formula might leave people somewhere near or even below subsistence level. By "discrimination" I intended to refer to situations where the application of the formula did not treat like with like because a material circumstance arose which caused a variation in the formula's effect. That is what I was aiming at. I understand what the noble and learned Lord is trying to do. It is a thoroughly platonic aim and is in its way quite admirable. However, I still think that it is utopian. I do not at present intend to divide the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 64: Page 13, line 34, leave out ("after consultation with the Lord Advocate").

The noble and learned Lord said: My Lords, after the momentous debates that your Lordships have had on fundamental constitutional principles—that includes the previous amendment of the noble Earl—I am afraid we now come to a small drafting nonsense—a kind of draftsman's tic. The Bill provides that the noble and learned Lord the Lord Chancellor shall make regulations; but as those regulations will extend to Scotland, it is considered that a reference must be made in the Bill to consultation with the noble and learned Lord the Lord Advocate. That may seem a short phrase and so it is. However, that kind of phrase turns up constantly in the statute book with the result that more and more extremely expensive volumes have to be printed. Those words are completely unnecessary.

The machinery of government takes perfect care of consultation between government departments. I do not suppose that my noble and learned friend would deal with this matter initially, at any rate personally. However, he is the last person to forget that Scotland may be involved in the provision, and therefore that the noble and learned Lord the Lord Advocate ought to be consulted. Whoever draws up these regulations in draft for the approbation of my noble and learned friend, knows perfectly well that the noble and learned Lord the Lord Advocate has to be consulted. If he does not, he can and should be made aware of that fact. If my noble and learned friend thinks his department is so incompetent that the staff may forget that fact, he can arrange for instructions to be posted on the walls of the office.

I have had the benefit and pleasure of working with my noble and learned friend's department in a number of capacities and I still receive great help from his staff. I am confident that they are capable of knowing that they must consult another department where another department is involved. Yet I suppose that the phrase comes up on a computer, like, the phrase "with the consent of the Treasury", line after line, page after page, bursting the volumes. I beg to move.

Lord Renton

My Lords, on this occasion, I agree with the noble and learned Lord, Lord Simon of Glaisdale. I merely remind my noble and learned friend he Lord Chancellor that he is Lord High Chancellor of Great Britain, which includes Scotland.

The Lord Chancellor

My Lords, what my noble friend has just said is true. The minute of Queen Anne concluded that that was the correct title to attribute to the office which I presently have the great honour to hold. However, therein lies a trap in that one might think that the Lord High Chancellor of Great Britain could proceed to make rules about the courts without thinking of anyone else. This formula acknowledges the jurisdiction of the Lord Advocate in this particular matter. It is important to recognise the position of the Scottish law officer, with his responsibility for courts in Scotland, in connection with these regulations.

My noble and learned friend Lord Simon of Glaisdale is correct. The Lord Chancellor's department is extremely efficiently conducted, and would like to take the Lord Advocate along with it. However, there is more to it than that. There is a recognition on the face of the legislation that the Lord Advocate has a proper part in this matter and that the regulations would be sound regulations in the eye of the law only if made after consultation with the Lord Advocate. As your Lordships know, I have been Lord Advocate, and I certainly regard that as important from his point of view.

Lord Simon of Glaisdale

My Lords, every amendment that is put down is the subject of a departmental brief from the Department of Social Security to my noble and learned friend who has charge of the Bill in this House. Each of those briefs ends with the word "accept", "consider" or "reject". Practically every one in this Report stage has unfortunately obviously ended with the word "reject". This is no exception.

My noble and learned friend knows perfectly well that his department will consult any other department which is concerned. It may be the Lord Advocate; it may be the Home Office; it may be the Department of Social Security or whatever. Those words are totally unnecessary. I described them as a drafting tic, and so they are. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishconhad given notice of his intention to move Amendment No. 65: Page 13, line 35, at end insert ("and other interested bodies").

The noble Lord said: My Lords, if it is taken for granted that the noble and learned Lord will consult with the Lord Advocate, I suppose that it can also be taken for granted that he will consult other interested bodies. In connection with my previous amendment in Committee, he undertook so to do. On that basis, I shall not move the amendment.

[Amendment No. 65 not moved.]

The Lord Chancellormoved Amendment No. 66: Page 13, line 36, leave out subsections (6) and (7).

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 59. I beg to move.

On Question, amendment agreed to.

[Amendment No. 67 not moved].

The Lord Chancellor

My Lords, Amendments Nos. 68 and 69 have already been spoken to in connection with Amendment No. 59 and are superseded by the amendments already passed.

[Amendments Nos. 68 and 69 not moved.]

Lord Mishconmoved Amendment No. 70: Page 13, line 40, at end insert: ("(8) Any person who is a party to any appeal pursuant to the provisions of this section shall be eligible for legal advice and assistance in accordance with the provisions of the Legal Aid Act 1988 irrespective of the body which the Lord Chancellor shall direct shall hear any appeal pursuant to subsection (7) above.").

The noble Lord said: My Lords, this will be an appeal to the noble and learned Lord the Lord Chancellor. As your Lordships will see, the amendment provides that any person who is a party to any appeal—we now know that the matter will go to the tribunal about which we have heard a great deal—should be eligible for legal advice and assistance under the Legal Aid Act. It may well be argued that the person who appears before a tribunal, as he will have to do under the provisions of the Bill, will be denied the privilege given to those who appear before our courts on maintenance matters of being eligible for legal aid. Under the present provisions, those people who appear before tribunals set up under the Bill will not be eligible.

It may be said that if we admit the eligibility for legal aid of those who appear before the tribunal, there is an equal argument that they should have legal aid entitlement before the social security tribunals. I shall continue to press that they should have that right, but there is a difference which I hope that the noble and learned Lord will appreciate. We had the edifying experience on the last occasion of discussing the formula which appears in a schedule to the Bill. The House was somewhat amused when the noble and learned Lord, Lord Simon of Glaisdale, proceeded to read out the formula. The noble and learned Lord will remember that we were looking forward to entertainment on this occasion. He, as an eminent mathematician, had promised that he would give an explanation of the formula. We were looking forward to that treat. We have not had it because it has not arisen under the amendments with which we have dealt. The mind of the noble and learned Lord is always clear. But we still wondered whether, even with his explanation, we would walk out of the House feeling that we knew and understood the formula.

What is the position of an applicant here? He will have to argue, as he would not have to do under the social security legislation, about a formula which is literally unintelligible even to those of us who managed to obtain a few passes at O level, whatever the position may be of other people who presumably are such wonderful mathematicians that they cannot even count the number of O levels that they have.

The appellant walks before the tribunal. He is not allowed to go to court; he does not have legal aid; and he cannot afford legal representation. He does not understand the formula in the schedule to the Bill and he cannot obtain any expert advice unless out of sheer charity some organisation helps him. Is that the way that we want to leave even the amendments of the noble and learned Lord in regard to setting up this tribunal in place of the courts where, as I said, legal aid would be available in normal circumstances.

When I first raised this matter I said that I was somewhat pessimistic. Maybe I should not be pessimistic. Perhaps at this hour the noble and learned Lord's heart, which is very much in the right place, will be touched and he will see the justice of the amendment and the injustice of resisting it. I beg to move.

10.15 p.m.

The Lord Chancellor

My Lords, your Lordships will recall agreeing to my Amendment No. 66 which deletes subsections (6) and (7). The amendment of the noble Lord, Lord Mishcon, refers to that subsection (7), so strictly speaking at this stage of the debate it does not have very much content. However, I doubt whether it is superseded since it is directed to come at the very end of the present provision.

Lord Mishcon

My Lords, I almost need legal aid myself to deal with the difficulty which the noble and learned Lord raises. He knows perfectly well that the amendment could not have been worded in any other way. If his amendment had been defeated so that the courts and not the tribunal were the bodies which would hear the appeals, I should have been faulted in my amendment because it would not apply. So all that I could possibly do was to say that legal aid should be granted irrespective of the body which the Lord Chancellor shall direct.

Under the amendments that were passed the noble and learned Lord the Lord Chancellor has given himself the power to direct that the courts in certain circumstances should take over from the tribunals. He would have the power of direction. Although the words "pursuant to subsection (7) above" may not now be quite regular, as he says, there was no other way of wording the amendment. He knows the spirit of the amendment. I merely hope that he will speak to the spirit of it and if subsequently I have to withdraw it because of the words "pursuant to subsection (7)", I shall then know whether or not to return with an amendment at Third Reading.

Earl Russell

My Lords, this is a very important amendment. Whether or not it is technically fully correct, it involves points which must be spoken to. Therefore on behalf of the Liberal Democrat Benches I should like to offer it support.

It is the nature of the Bill that many of the people with which it will deal are people who are on benefit. Those people are not always the ablest advocates of their own cause. What is more, they are not always people who are in the strongest position to undertake a capital debt. At this time of night I do not intend to open up issues arising from the social fund. However, capital debt falling on people who are on social security benefit can be a very grave hardship and not incurring that capital debt may involve submitting to a very grave injustice. It is a dilemma in which I do not want to see people placed.

Lord Stoddart of Swindon

My Lords, I should like to support my noble friend. The grounds for appeal are that the decision in question was made in ignorance of a material fact, was based on a mistake as to a material fact, or was wrong in law.

How is the ordinary little layman like myself to decide without legal advice what is wrong in law? It is necessary for him to have some assistance; otherwise he will be in great difficulty. Or are we saying once again that if you are poor you cannot have proper advice but if you are rich you can? The noble and learned Lord is a fair-minded man, so on that basis alone he should seriously consider agreeing to my noble friend's amendment, and that it be put in order at the third stage of our debate.

The Lord Chancellor

My Lords, I wished to explain the technical position before I read out the amendment so that there was no misunderstanding about it. There may be some question as to precisely whether we are in order.

If I may address myself to the spirit of the matter in the same way as the noble Lord has done, I have to say that if, as I have argued, the appropriate place for ultimate decisions about this matter is a tribunal, then it is right also to say that the appropriate arrangements are those that apply to a tribunal. In tribunals there is provision for appropriate legal advice to be given. I believe that that is the right situation so far as this tribunal is concerned. The general rules of legal aid affecting tribunals would apply to this also. I would regard that as fair in the circumstances of this case, and I hope that the noble Lord will feel that that is so.

Lord Mishcon

My Lords, I endeavoured to the best of my ability to show the unfairness of the position where the noble and learned Lord agreed that courts might be more suitable tribunals to hear these appeals but, because the courts had so much other work to do, we were going to try out this tribunal idea. It may very well be that in future decisions will be transferred from the tribunals to the courts. To put the applicant in a position where, as a result of the administrative necessity to use tribunals rather than the courts because the courts are overcrowded with work, he would not get the benefit of eligibility for legal aid which he would have got in the court, seems to me a transparent injustice.

Furthermore, the noble and learned Lord referred to the fact that those who appear before other tribunals likewise do not have the benefit of having legal aid made available to them. I endeavoured to distinguish this tribunal from other tribunals by virtue of the complexity of various matters. I am most indebted to my noble friend because I missed the point, which I should have taken, that one of the reasons for the appeal may be on a point of law. How the apllicant is supposed to be able to argue a point of law without legal aid I do not know.

Perhaps I may also remind the noble and learned Lord that in 1989 his department issued a report by a lady called Hazel Genn entitled The Effectiveness of Representation at Tribunals. I would invite him—and I do so most respectfully—to read that publication between now and Third Reading and, as a result of reading it and listening to the submissions that I venture to make today, to agree with the amendment at Third Reading. In the meantime, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

The Lord Chancellormoved Amendment No. 71: After Clause 18, insert the following new clause:

("Child support appeal tribunals

.—(1) There shall be tribunals to be known as child support appeal tribunals which shall, subject to any order made under section (Jurisdiction of courts in certain proceedings under this Act), hear and determine appeals under section 18.

(2) The Secretary of State may make such regulations with respect to child support appeal tribunals as he considers appropriate.

(3) The regulations may in particular make provision—

1. (a)as to procedure;
2. (b) for the striking out of appeals for want of prosecution;
3. (c) as to the persons entitled to appear and be heard on behalf of any of the parties;
4. (d) requiring persons to attend and give evidence or to produce documents;
5. (e) about evidence;
6. (f) for authorising the administration of oaths;
7. (g) as to confidentiality;
8. (h) for notification of the result of an appeal to be given to such persons as may be prescribed.

(4) Schedule (Child support appeal tribunals) shall have effect with respect to child support appeals tribunals.").

The noble and learned Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 59. I beg to move.

On Question, amendment agreed to.

Clause 19 [Disputes about parentage]:

Lord Simon of Glaisdalemoved Amendment No. 72: Page 13, line 45, leave out from ("assessment") to ("unless") in line 46.

The noble and learned Lord said: My Lords, the words sought to be deleted appear at the bottom of the page. The amendment raises a point similar to that discussed in respect of an earlier amendment which my noble and learned friend gave an undertaking to consider. I beg to move.

The Lord Chancellor

My Lords, there are distinctions between the amendments. However, I should be happy to undertake to consider with parliamentary counsel all amendments such as this relating to drafting and let the noble and learned Lord know of our views. If he is content with that undertaking it might be of help in respect of time. My noble and learned friend is always willing to talk the matter over with me if necessary and I shall be happy to arrange that.

Lord Simon of Glaisdale

My Lords, I am obliged to my noble and learned friend. My only demur is that I shall be more than 100 miles away. However, I am content to leave the matter entirely in his hands and those of parliamentary counsel. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdalemoved Amendment No. 73: Page 14, line 28, leave out paragraph (a).

The noble and learned Lord said: My Lords, the amendment relates to a Scottish provision. I did not understand why the applicant had to be in Scotland. It may be the mother of the child, the father or the child who is in Scotland. Not being conversant with Scottish family law, I may have got the wrong end of the stick. I tabled the amendment to leave out the requirement that the applicant should be in Scotland. I beg to move.

Lord Renton

My Lords, in English law the word "habitually" would merely cause confusion. In English law the word "resident" is well understood as a term of art. The inclusion of the word "habitually" would give rise to the need for fresh interpretation of the meaning of the term "resident" in the context of this Bill. I am not a Scottish lawyer as is my noble and learned friend the Lord Chancellor. It may be that in Scotland the term "resident" is always preceded by the word "habitually". If that is right the phrase should be allowed to stand provided that the paragraph stands.

The Lord Chancellor

My Lords, it is important to consider all the relevant legislation including Section 5(1) of the Law Reform (Parent and Child) (Scotland) Act 1986. I could go into the matter in detail. However, it may be better to deal with these drafting matters in the way that I have suggested. I shall be happy to send a copy of my letter to the noble Lord, Lord Renton. I imagine that not all noble Lords will wish me to enter into a detailed explanation of the matter at this juncture. If noble Lords insist, I am prepared to do so but it may be convenient to proceed in the way that I have suggested. I should like to take the same course in respect of Amendments Nos. 74, 79 and the various amendments to Clause 28. I hope that my noble and learned friend Lord Simon will be prepared to agree to that.

10.30 p.m.

Lord Simon of Glaisdale

My Lords, not only am I prepared to agree to that, but I am most grateful for it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Reference to court for declaration of parentage]:

[Amendment No. 74 not moved.]

The Lord Chancellormoved Amendment No. 75: Page 15, line 28, leave out from ("means") to end of line 29 and insert ("subject to any provision made under Schedule 11 to the Children Act 1989 (jurisdiction of courts with respect to certain proceedings relating to children) as amended by section (Jurisdiction of courts in certain proceedings under this Act), the High Court, a county court or a magistrates' court.").

On Question, amendment agreed to.

Clause 25 [Regulations about deduction from earnings orders]: [Amendment No. 76 not moved.]

Clause 28 [Enforcement of liability orders by distress]:

[Amendments Nos. 76ZA to 76AB not moved.] Clause 31 [Commitment to prison]:

Lord McGregor of Durrismoved Amendment No. 77: Leave out Clause 31.

The noble Lord said: My Lords, the noble Lord, Lord Houghton of Sowerby, generously suggested that I should speak first on this amendment.

When the Bill was in Committee I rehearsed at undue length the reasons stated by a majority of the members of the Payne Committee and unanimously by the members of the Finer Committee for the abolition of imprisonment for default on maintenance payments. I do not intend to go over that ground again although I was not persuaded by any of the noble and learned Lord's arguments in favour of committal as a method of enforcement. I shall endeavour to be as brief as the importance of the subject permits.

I begin by drawing attention to one curious feature of the Bill. This has been presented as benefiting children. Nevertheless, it seems to me in origin and purpose to have been framed primarily in order to reduce Treasury expenditure on the casualties of broken homes. None of the Bill's critics, inside or outside this House, wishes to make life easier for rogues who have money but who refuse to support their children. However, such people constitute a fringe of the real problem which arises as a result of the conflict between the duty to support one's children and everyone's right to choose and change marital and sexual partners. Accordingly, many fathers contract duties which, with the best will in the world, they cannot discharge fully out of their small or average earnings. There will always be a limit on the amount which a court or administrative agency can squeeze out of men with dual or multiple commitments.

Most one-parent families will always have to paddle in the mire of poverty and debt. However, I have no doubt that the formula which the agency will apply will squeeze too hard with the many disastrous consequences, repeatedly described throughout the passage of the Bill, upon relationships within the families whose incomes and expenditures will be regulated by it.

Against that background, I wonder why the Treasury failed to note the obvious fact that imprisoning maintenance defaulters is an essay in social and financial fatuity. The taxpayer must find £321 per week to cover the costs of keeping the defaulter in prison and must provide additional income support for, probably, the two families to which the prisoner may have been contributing. Further. when he emerges he will have lost his job; his earnings will have diminished, and his accumulating arrears will have become a millstone round his neck and a source of despair.

That is the father who was described by the noble and learned Lord on the third day of Committee as "the typical case"; sent to prison because he was contumacious; having the money but refusing to pay the order for his children. The noble and learned Lord concluded, The only obstacle is obstinacy".—[Official Report, 21/3/91; col. 812.] I doubt whether such a man is typical of anyone outside a law book.

On that view of the utility of the so-called ultimate sanction of committal, the Payne Committee commented, what is required is an effective machinery for recovering money from a debtor who has some earnings, income or assets. If a debtor has money, goods or property, it must not be conceded that it is beyond the power of the court … to attach his wages or assets and realise the sum required to satisfy the debt. If he has no means or assets the threat of imprisonment is futile … We do not understand on what ground the imprisonment of recalcitrant husbands who have the money but refuse to pay their maintenance is to be preferred to action designed to get at their property, assets or earnings".

In 1989 the county courts, in the course of handling more than 2.5 million plaints, dealt with contumacy without any ultimate sanction save the power to commit for wilful disobedience to a court order, which they exercised in that year in 29 instances. Those courts, exercising that jurisdiction, act to get the money, not the person of the debtor.

I shall not weary the House at this hour by listing the objections to the procedure proposed in the Bill, though I must refer to two of them. The agency will apply to a magistrates' court for a committal warrant, which the court will grant just as is done under the present law if satisfied that, there has been wilful refusal or culpable neglect", to pay.

Both the Payne and the Finer Committees concluded that the delicate domestic arithmetic required under that procedure when dealing almost invariably with very poor men, was not compatible with the proper administration of justice when the liberty of the subject was involved. They observed from the statistics, and I do not believe that the position has changed in any respect, that lay magistrates in England are far more likely to commit than are professional judges in England and Scotland in circumstances in which the enforcement of an order is involved, when that order has been contracted under circumstances of emotional stress connected with an intimate personal relationship. Very often it is payment by a man who may in any case be hard put to make ends meet, and that may give rise to further stress in the form of divided loyalties and sense of responsibility in respect of his family arrangements. The man's mind may be affected by anger or unreason. Those are precisely the circumstances in which the law should avoid punitive remedies. But, in combination with the normal civil processes for extracting money where it is available to be extracted, the law should be providing as a service of the court access to the advice, guidance and persuasion of an officer of the court who can help such a man to resolve his problems.

My second reason for rejecting this clause is that the agency will be under great pressure to demonstrate that it is succeeding in collecting more maintenance than the courts ever secured. Its servants will believe that threats or the reality of imprisonment will serve them well for this purpose on the Admiral Byng principle. So I expect that the establishment of the agency will be followed by the herding of men into the summary courts in large numbers for committal proceedings. I cannot discover from the Bill what evidence the agency will give to the court for the purpose or how the details of the review system set out in the Bill will work in practice.

I expect that many of the men affected, whom we know to be multiple debtors and many of whom are illiterate, innumerate and so feckless that they cannot order their lives, will end up in prison under this procedure. Many will be of that character. They need the assistance of the kind of enforcement office recommended by the Payne Committee, but rejected by the then government and rejected again more recently by the Lord Chancellor's review of civil procedure. In practice I fear that we shall return to a situation similar to that operating in the county courts before 1970, when the judgment summons system enabled creditors to decide whether their debtors went to prison. Under the agency I fear that it will be civil servants who decide in practice and reality which and how many maintenance defaulters will go to prison.

I do not understand why we cannot adopt for these people the procedure of the county courts as regards civil debt designed to secure the money and not the person of the debtor. Neither must we forget the discrimination that will arise between the people who live at near subsistence level, who may be taken to court for evading or seeming to evade, its orders, and those who may well succeed in avoiding the payment on their orders by turning to the advice of solicitors and accountants who will help them to turn their income into capital and to set up trusts and the like, if they are so minded. We shall no doubt have a system of licensed contumacy.

At Committee stage, the noble Baroness, Lady Faithfull, suggested a non-custodial penalty. I believe that she may speak along those lines on this amendment. I shall certainly go along with such a proposal, albeit rather unwillingly, provided that there is no suggestion of devising a criminal penalty for what is a civil offence. It is high time that we got rid of this unnecessary relic of the 19th century bastardy laws. I beg to move.

10.45 p.m.

Lord Renton

My Lords, there must be an ultimate sanction for the enforcement of the provisions of the Bill. It is just a question of how it is done. In ordinary civil proceedings no committal order is made unless the debtor has the means to pay, and it is proved that he has the means to pay, but wilfully refuses to do so. The question of means to pay is not specifically mentioned in subsection (3), which is the point at which one might have expected to find it. A simple amendment would put that beyond doubt. It may be that, technically, the expression "wilful refusal" covers the point, but I do not know.

I should have thought that the attachment of earnings legislation would cover many of the cases that we have in mind. It is not mentioned here—perhaps it does not need to be mentioned—but I remind your Lordships that it applied to maintenance. I have reason for remembering because I piloted the first attachment of earnings provisions through another place. This is very close indeed to maintenance. I should have thought that attachment of earnings would in perhaps two-thirds of the cases that arise be the right solution.

Lord Henderson of Brompton

My Lords, I have my name to this amendment. I am sorry to see that the noble Lord, Lord Houghton of Sowerby, is not in his place. I was expecting him to speak before me. I very much wish to support the amendment moved by the noble Lord, Lord McGregor of Durris, who spoke so impressively and not at all at too great a length in Committee. His unique experience of the Payne and Finer Committees amply justified his discourse on that occasion. I should have thought that the interventions in Committee of the noble Baroness, Lady Faithfull, and of the noble Lord, Lord McGregor, would have resulted in some movement by the Government. I am deeply disappointed not to find any concessions from the noble and learned Lord the Lord Chancellor at this stage. But as things have been, they remain.

I should like to bring in at this stage the most impressive but quite short paragraphs of the Woolf Report in its section on fine defaulters. Lord Justice Woolf and his collaborator, His Honour Judge Tumim, said that the number of people in prison at any one time for fine default is now fortunately small. The number at any one time is 520. However, a substantial number in any given year is surely such a great burden on the prison system in terms of admission, processing and releasing the number is around 17,000—that the Bill ought not to add to that burden.

Apart from the burden on the prison system and its great cost, those 17,000 should not be in prison at all. I thought that it was government policy to take those people out of the prison system. One was looking forward to seeing the Bill help the other legislation currently going through Parliament in its aim to reduce the number of people sent to prison. However, that is apparently not the case. Moreover, Woolf cites the findings of the Gloucester probation service in 1983, which stated that, Up to half of all people going to prison in this area got into prison by the back door being committed for fine default". Surely this Bill should be reducing that half to nil, or nearly nil. But that is not so.

Woolf clearly thinks that it is beneficial to introduce the unit fine system, which was very much welcomed by Members of this House in the Criminal Justice Bill. There is also the attachment of earnings order—that is, where a defaulter has earnings; and the noble Lord, Lord Renton, mentioned that point—and even an attachment so far as concerns income support. That is a very drastic measure but, where appropriate, it should be enforced.

I should have thought that the only residual need for a sanction is where a defaulter has deliberately placed his resources beyond the reach of the courts. In that situation, it seems to me that the onus should be on the Government to seek, and legislate for, a non-custodial sanction, such as that called for by the noble Baroness, Lady Faithfull, or sanctions if need be. If the Government are really keen on keeping people out of prison, I believe that that is what they should seek to do.

I found it curious in Committee that the noble and learned Lord the Lord Chancellor said: We are now dealing with a person who has money and is in a position to pay the required maintenance but deliberately refuses to do so".—[Official Report, 21/3/91; col. 813.] He went on at col. 814 to say: It is clear … that you can only have culpable neglect or wilful refusal if the liable person's means are adequate to discharge his obligation of maintenance". The suggestion seemed to be that it was only in those circumstances that fine defaulters were sent to gaol. I simply cannot adjust to that view. With the huge battery of powers bestowed by this Bill on child support officers, it seems to me that they will be the ones who will be guilty of culpable neglect or wilful refusal if, with those huge powers, in a situation where the person is in a position to pay, they fail to extract the money.

As I said, with all the latest legislation which has been going through Parliament in this Session the only residual need is for a sanction which would apply when a defendant has deliberately placed his resources beyond the reach of the courts. It is only in that remote case—I emphasise those words—that a sanction would be needed. Then, if only there was a willingness on the part of the Government, the ultimate sanction should be a non-custodial sanction or sanctions.

With the noble Lord, Lord McGregor of Durris, I believe that the excision of this clause should have the effect of concentrating the mind of the Government to that end; namely, to secure the money and not the person. In other words, the final resort should be non-custodial. Surely that is all we need and want.

Baroness Faithfull

My Lords, no good and nothing positive have ever come out of sending a debtor to prison. I t is expensive. It brings in no money. It never helps the child or the wife. There are two kinds of debtor. There is the one who can pay and ultimately pays. If he does not, as my noble friend Lord Renton said, there are attachment of earnings orders and various other methods of obtaining the money. In my experience, if the man has money he ultimately pays, although he may go to the last ditch.

The real difficulty arises with the people who cannot and do not manage their money. They find themselves in great difficulty. Money aid centres have been set up. I know of one in Birmingham which has been enormously successful in helping men and women who have been unable to manage their money and who have run into terrible debt. Through weekly interviews the centres have helped them put themselves straight. I should have thought that it would be possible through officers of the DSS to use money aid centres as has been done successfully in the past.

In Committee, I put forward another recommendation. Perhaps your Lordships will forgive me if I do not go into that matter which also concerns debtors under the Criminal Justice Bill. I must apologise to my noble and learned friend for not having been to see him. I have an appointment with the Home Office and the Secretary of State for Social Security to discuss the proposal that I made in Committee to set up places where men could work and earn under supervision. I shall bring that subject up at the next stage of the Bill.

Lord Mishcon

My Lords, in addition to all the points that have been so validly made in the debate, what worries me is the effect on the family. It will not be the wife who will apply for the father to be sent to prison because of a wilful refusal; it will be, as was said by the noble Lord, Lord McGregor, at the instance of the state, regardless of the mother's wishes. I wonder what effect it will have on a family if a father tells his child, "Your mother is responsible for sending me to prison". It is a ghastly thing with which to face a family.

The noble and learned Lord said on the last occasion, or has since said in a useful memorandum that he issued, that in the ultimate there are few cases which will end in someone being sent to prison. The very fact that again father on seeing child can say, "Mother is threatening to send me to prison" is bad enough. All aspects of the power the question of our prisons being filled and the fact that we are returning to imprisonment for debt—are important; but if we make the welfare of the child and the family the important part of the Bill, the power should not exist.

11 p.m.

Lord Stoddart of Swindon

My Lords, I shall not speak for long on this subject. I said most of what I wished to say at Committee stage, and do not wish to repeat it. There is no doubt that the noble Lord, Lord McGregor of Durris, put an irresistible case for his amendment. I hope that the noble and learned Lord will accept it.

I do not know where we are going. At present we are discussing the Criminal Justice Bill which seeks to keep people out of prison, yet here we are, putting a provision in a Bill which could result in more imprisonment at a cost of £260 for every prisoner every week. That seems to me an enormous cost for the state to bear.

My noble friend mentioned the effect on the family of a father telling his children that the mother had sent him to prison. However, there is an even worse effect. What is the effect on the child when his playmates and schoolmates get to know that his father has been in prison? He will be taunted and teased in the cruel way that only children can taunt and tease. Again, that will have a detrimental effect on the children. We are supposed to be discussing a Bill not to injure but to help children, the Child Support Bill. Far from helping children, sending the fathers to prison will hinder their development and lead to great difficulties for them.

I repeat this point: how on earth will a father maintain his children when he is in prison? How will he be able, when he comes out of prison, to pay the arrears that have accrued and accumulated while he was in prison? Is it not likely that if the state sends a person to prison, when he comes out he will have no job to return to? Thus he is in an even worse position than before he went in and even more unable to meet the maintenance payments, particularly if he is poor.

It seems to me that in the circumstances we should take seriously the alternatives that have been put forward, particularly that of the noble Baroness, Lady Faithfull. That is a real possibility. We must consider these alternatives. They will meet the case if only the noble and learned Lord the Lord Chancellor would accept what we say, that there are alternatives to imprisoning people, fathers in particular, who cannot, or even in some cases will not, meet their maintenance payments.

Lord Prys-Davies

My Lords, for the reasons given by noble Lords and the noble Baroness, Lady Faithfull, who supported the amendment, I too support it. It should not be beyond the wit of Parliament to devise an alternative to imprisonment. That is our case. We all agree that there is a need for an effective solution, an effective threat, but there ought also to be an alternative to prison. I have not seen the latest statistics about the number of maintenance defaulters who are in prison. I have not seen any recent study into their background. It may well be that there has been none since those referred to by the noble Lord, Lord McGregor.

I assume from what I have been told by the clerk to the magistrates and the registrar of a county court that the defaulters who are in prison probably fall into one of three broad categories: the self-employed, the employed and the unemployed. In the light of the principles explained by the noble and learned Lord the Lord Chancellor in Committee (at cols. 812 and 813 of Hansard for 21st March 1991), I would be surprised and deeply concerned if many of the prisoners were in the third category of those who are unemployed. I would be surprised if the defaulters in prison were employed persons, as the magistrates' courts have readily available to them the remedy of attachment of wages. I could be wrong, but I have a feeling that the problem is presented by the self-employed, some of whom have assets, others of whom do not. To the extent that that is correct, the issue would appear to concern whether there is a realistic prospect of dealing with self-employed defaulters without sending them to prison. I believe that there are a number of alternatives which should at least be explored. We should be in no hurry to include this provision in this Bill.

If the self-employed defaulters have assets, is there any good reason why the magistrates' court should not be empowered to make a charging order or a garnishee order? We might well be told that the magistrates' court does not have that power, but the Bill creates a number of new rights and a number of powers. I should be interested to know whether there are any insurmountable difficulties to giving magistrates the power to make a garnishee or a charging order. If there is an insurmountable difficulty, should not this matter be referred to the county court so that a charging or a garnishee order could be made?

I accept that the situation presented by the self-employed defaulters without assets could be more difficult to handle. In Committee, the noble Baroness, Lady Faithfull, advocated that the courts should be empowered to make a community service order in lieu of imprisonment. We were told by the noble and learned Lord the Lord Chancellor that a community service order must always be made with consent. Hitherto that has been the position, but is there any reason why at least the principle of service to the community should not be subject to different criteria called by a different name? Is there any reason why that principle should not also be available to the magistrates' court when dealing with a self-employed person without assets?

I believe that there is one other possibility. I speak subject to being corrected by the noble Lord, Lord Houghton—if he were present—or by the noble and learned Lord, Lord Simon of Glaisdale. There is the possibility that the arrears could be treated as if they were an income tax charge to be collected by the Inland Revenue.

One is anxious to be as constructive as one can in dealing with this issue. I therefore ask the noble and learned Lord the Lord Chancellor whether we should not pause for a while to study whether there are other possible alternatives, because imprisonment can turn a person sour towards his family and towards his commitment.

The Lord Chancellor

My Lords, we examined this matter in some detail in Committee and it has been raised again today. Noble Lords have been kind enough to refer to my remarks from time to time. I hope that those references have been found to be illuminating. As he usually does, the noble Lord, Lord McGregor of Durris, put the matter briefly and succinctly in referring to rogues who have money and do not want to support their children. That paraphrase of my comments perhaps illustrates the position rather more dramatically. Those are the people we have in mind as requiring the ultimate sanction of imprisonment.

The Bill as drafted makes clear that imprisonment is a last resort. To take up the point mentioned by the noble Lord, Lord Prys-Davies, I have in mind to propose amendments to the Bill to give power to make garnishee or charging orders. It is right that that should be done in the county court and therefore a case would have to be remitted to the county court for that purpose.

As the noble Lord, Lord McGregor of Durris, said, the Payne Committee was keen on a good enforcement agency to extract the money from the debtor. We have adopted that principle in the Bill although the noble Lord, Lord McGregor, does not recognise it as that. The agency is intended to provide effective enforcement of maintenance debts. We have already given powers in the Bill in respect of deductions from earnings orders, distraint, and so on. It is plain that the purpose of the clause we are now considering is a last resort power, as we say in Clause 31

To answer the question of my noble friend, Lord Renton, subsection (2) has to be borne in mind. It reads: On any such application the court shall (in the presence of the liable person) inquire as to—

1. (a) the liable person's means; and
2. (b) whether there has been wilful refusal or culpable neglect on his part".

It is clear, therefore, that the court has to be satisfied that the liable person has means and that it is deliberate or culpable neglect on his part which prevents those means being made available to discharge his responsibilities to his children.

The situation, therefore, is that the Secretary of State applies for the order under this provision. He does so only if he has failed to obtain the money by, for example, distraint. It is only if all other powers have failed that the power of imprisonment is contemplated.

The intention is to replicate the existing law on this matter, though the way in which the clause has been drafted does not do so effectively. At Third Reading, therefore, I shall propose an amendment to make clear that the maximum period of imprisonment is the six weeks which is the present law. That ought to be made plain in any event and I undertake to do that.

Regarding the main point, I believe that it is absolutely clear that imprisonment of people who, for any reason, do not have the money is not at issue. The issue is imprisonment of those who have the money but who do not make it over, either because they do not bother or because they deliberately and wilfully refuse to do so.

Many of your Lordships, including the noble Lord, Lord Henderson of Brompton, have said that there should be an ultimate sanction. I know of no ultimate sanction in such a situation other than the sanction of imprisonment. The noble Lord, Lord Prys-Davies, talked.of community service. It is my understanding that community service requires the consent of the person being placed on community service because it is not lawful for the state to create enforced labour. In other words, one cannot force someone to do such work. The only ultimate enforcement which is available in that situation is some form of custody.

A great deal has been said about the effect of imprisonment on the person placed in custody. The purpose is not to put people in custody but to obtain payment. I hope that the really effective powers that the agency will have will create a situation in which the money is paid, according to the assessment. The noble Lord, Lord McGregor of Durris, spoke of the person who did not have the money, but the purpose of applying the formula is to ensure that the person will have the money required. The purpose of the formula and the protected level of income is designed to secure that money is available. So the formula contains that kind of structure.

Reports on civil debt in recent years have generally agreed that imprisonment for default should be abolished, but there has been a significant exception with regard to maintenance arrears. For example, the McKenzie Report of 1958 in Scotland found overwhelming support for the retention of imprisonment where maintenance was concerned while the Payne Committee, unanimous in its recommendation that imprisonment for civil debt should be abolished, could riot agree on maintenance. The Finer Committee, of which the noble Lord, Lord McGregor of Durris, was a distinguished member, recommended abolition—

Lord McGregor of Durris

Unanimously.

11.15 p.m.

The Lord Chancellor

My Lords, the noble Lord says "unanimously". I was about to say that I find it a little difficult to see precisely what were the grounds for its conclusion.

I should emphasise that in the vast majority of cases, the threat of imprisonment is enough. The most recent figures suggest that the number of people imprisoned in that respect has fallen. In 1989, 480 people were committed immediately by magistrates to prison as compared with 850 in 1985. In 1989 there were approximately 85,000 enforcement proceedings in magistrates' courts in total. That shows just how effective the system was. Again, reverting to the point made by the noble Lord, Lord McGregor, in 1989 there were 183 people committed by the county courts, according to my information, under the Attachment of Earnings Act 1971 in respect of maintenance debts.

We are not concerned here with fine defaults. I can understand the desirability of reducing the number of people who default. One proposal is the unit fine, a rather rudimentary kind of formula applied to fines which should help to tailor the fine to the person's ability to pay. Our formula is a good deal more refined and detailed, but it is tailored to the person's ability to pay.

The powers that will be given to the Secretary of State and the agency to obtain money from people will be strong and effective. The more effective they are, the less likely it will be that one will encounter a rogue of the quality to which the noble Lord, Lord McGregor, referred, who was able to avoid payment.

Accordingly, I regard it as important that the sanction of imprisonment be retained in order that the maintenance cheat will not be allowed to scoff at his responsibilities and to know that he is safe beyond the reach of the courts or his family. I do not believe that it is fair to allow a person of that kind to scoff at the courts while ordinary, law-abiding people are obliged to pay maintenance for their families. The aim is to protect the family and to ensure that such people pay maintenance for their children.

I am certainly not insensible to the concerns of those who wish to prevent imprisonment for maintenance debts being imposed on feckless inadequates. That is a problem which, to the extent that it exists, is addressed in the formulation of the clause. I am certainly willing to consider whether the formulation of the clause requires to be strengthened in that connection. However, that kind of problem cannot be addressed adequately in the context of the Bill and it certainly cannot be addressed, in the Government's view, at the expense of children and the taxpayer by removing what is often the only effective weapon against those selfish and uncaring parents who see no obstacle to dishonourably playing the system and leaving their children to be brought up on other people's money.

I do not believe that it was the intention of the noble Lord, Lord McGregor of Durris, or of any of your Lordships who supported the amendment to accommodate such people—rogues who are unwilling to pay although they have the money. However, if carried, the amendment would protect those very people. That would be unfair to their children and would risk undermining the morale and resolve of caring and responsible parents. It is an important point. I hope that with the amendments that I have undertaken will be moved, your Lordships will feel that they should decline to agree with this one.

Lord McGregor of Durris

My Lords, I am grateful to those noble Lords who supported the amendment. Naturally, I am disappointed that the noble and learned Lord on the Woolsack has moved only a very small distance in respect of offering to strengthen the modes of attachment by giving to magistrates powers to make garnishee and charging orders. I hope very much that he will consider transferring the whole of this enforcement procedure from the magistrates' courts to the county courts. Many of the defects which bother me most lie in the procedures of the magistrates' courts. However, this is not the place to discuss these matters.

On the third day of Committee the noble and learned Lord said that he would consider whether there was anything further that he could do. He has considered. As I said, the result is disappointing. But perhaps it suggests the possibility of further consideration before we reach the next stage in the Bill's passage. I believe that every noble Lord who spoke suggested further consideration. I very much hope that the noble and learned Lord will be willing in the next phase, in consultation with those of his colleagues who are affected, to make a further consideration as to how we can deal with this very disturbing problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 [Arrears of child support maintenance]:

Lord Cartermoved Amendment No. 78: Page 24, line 20, at end insert: ("() In cases where the Secretary of State has assessed the maintenance requirement and determined the amount to be paid by the absent parent and the absent parent has failed to pay, the Secretary of State shall pay to the parent with care that amount of the requisite sum necessary to guarantee the income of the caring parent at least to the level of income support. The Secretary of State shall use his powers under section 3 to recover the whole of the liable sum due from the absent parent and pay on collection any outstanding sums due to the caring parent.").

The noble Lord said: My Lords, if accepted, this amendment would enable the child support agency to provide minimum maintenance payments for a limited period when the absent parent fails to pay. This will result in more security for lone parents and will help to minimise disincentives to work.

Noble Lords will remember that earlier we had a debate on Amendment No. 38 on the powers of inspection. A phrase was used by the noble and learned Lord the Lord Chancellor which I noted. He referred to the agonising problems of lone parents attempting to get maintenance. That would apply equally to lone parents in cases where there was a delay in the payment of maintenance or if the payments lapsed.

No doubt we can all agree that it is of the utmost importance that the payment of maintenance should be enforced both speedily and effectively. Lone parents need certainty in their financial planning. That is especially true of lone parents who receive either family credit, housing benefit or community charge benefit. Those are benefits which are not immediately adjusted to reflect an interruption in maintenance payments.

This amendment provides for a guarantee of receipt of maintenance payments from the agency which are up to at least the level of income support. We can all understand the consequences of a lone parent who receives benefits or a low wage when there are such problems with maintenance payments. For a lone parent who is wondering whether to take a low paid job and claim family credit and housing benefit, the fear that maintenance payments may be interrupted with no ensuing replacements from a guarantee scheme may well be a decisive factor against taking up paid employment. As such there would be here a major disincentive to work.

The aim of the amendment is quite clear. It is to ensure that the lone parent's income is not disrupted where the absent parent fails to pay the agreed maintenance award. Without this amendment, some lone parents would have to live on incomes which are below income support level, and others would be forced to give up their jobs and return to benefit.

It is clear that some form of guarantee of maintenance payments is essential because the effect of the Bill will be to make many lone parents either wholly or partially reliant on maintenance. At the same time, the measures for ensuring enforcement put forward in the Bill contain some weaknesses which we have discussed as we have gone through the Bill. A deduction from an earnings order can be evaded by changing employment, and the proposals contain no effective method of ensuring payment from the self-employed, for own deduction of earnings is not an appropriate measure.

We believe that it would be better to help to keep the lone parent in work and the guarantee of maintenance payments while the problems with maintenance are sorted out. In addition, if the child support agency had to pay the guaranteed maintenance in case of default, it would provide a great incentive to the agency to ensure that the enforcement of maintenance was effective.

I understand that at present in Sweden they operate a guaranteed maintenance system, and the United States has passed some federal legislation to enable the state legislatures to operate such systems. This is a very real problem for the lone parents who will be affected. The amendment attempts to deal with the problem in what we feel is a sensible way. I beg to move.

Earl Russell

My Lords, if this amendment is not accepted, many children will be much worse off as a result of the operation of this Bill. That would be contrary to the object of the exercise. We support the amendment.

Lord Henley

My Lords, many of the child support agency's clients will be in receipt of income support. We are anxious to ensure that their income is disrupted as little as possible by any fluctuations in the amount of maintenance paid. This will be an important factor in deciding on the most appropriate method of collection and payment of maintenance to be used in any particular case. There will be a number of methods of collection of maintenance available, with the most appropriate to a particular case being adopted.

First, we shall be continuing the arrangements for income support claimants where, in some circumstances, benefit is paid gross of any maintenance received, while the Secretary of State collects the maintenance on behalf of the claimant. This ensures that the person with care receives her full income support entitlement.

There will be other methods of collection available which will involve the agency in some form of monitoring role. In the event of a person with care in receipt of benefit not receiving full payment of maintenance, it is intended that the agency will be able to inform the benefit authorities directly, so that the benefit can be adjusted quickly.

Again, I should like to stress the word "quickly". We have quite a good record for the speed with which we deal with claims for income support. The agency will be able to do this through its powers to disclose information in Clause 12(3), which we agreed to retain in the Bill after a Division earlier this afternoon.

This amendment is framed in terms that apply to all parents with care, whatever their circumstances. But if a person with care is not in receipt of benefit, the use of the agency's services is entirely voluntary and it would not be right for the state to intervene if its services were not required. In the same way, it is not right for the taxpayer automatically to take over financial responsibility when an absent parent fails to meet hip liabilities. However, it is right that the state should provide a means by which an assessed maintenance liability can be quickly and effectively enforces should the person with care require that service. This is what the Bill provides.

If such a person with care does not receive sufficient income to support the household while enforcement is being sought, he or she will in the usual way be able to apply for extra support in the form of income support, or family credit, if he or she is working for 16 hours a week or more. Again, I should like to stress the speed with which we hope we can process most income support claims. Our record in this matter is quite good. I hope therefore that in the light of that explanation, the noble Lord will feel able to withdraw his amendment.

Lord Carter

My Lords, it appears that the principle of the guarantee is accepted because of income support being paid gross and the maintenance payment being deducted. I do not think we have had an answer to the question of what happens to the children in the cases where there is a gap, where maintenance has lapsed. I agree that if the department can move quickly enough in these circumstances, the problem need not last for too long. I shall have to read with care what the noble Lord has said. I do not think he has given a complete answer, but at this stage of the debate I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.30 p.m.

Clause 33 [Special cases]:

Lord Simon of Glaisdalemoved Amendment No. 79: Page 24, line 41, at end insert: ("and for the avoidance of doubt it is hereby declared that subsection (1) shall be construed ejusdem generis").

The noble and learned Lord said: My Lords, I apologise that at half-past eleven at night I am moving an amendment which ostensibly concerns a technical canon of statutory construction. I should not do so if in this case it were not of constitutional importance. It is expressed always in the highly elliptical Latin that appears in the amendment. To say that the term means "of the same sort" conveys little of its operation in statutory construction. Based on experience and common sense and the courts' scrutiny of the way in which Parliament proceeds the term is entirely reasonable.

Perhaps I may give your Lordships an example. If in an agricultural statute appear the words "cattle, sheep and other animals" the courts will conclude that although "other animals" is all embracing what was intended was something similar to cattle and sheep—say, domesticated goats—and would not extend, for example, to a tiger. I said that the matter was entirely consonant with common sense and common experience. If the wife of one of your Lordships were to say that she was going shopping and when asked what she was going to buy said, "A blouse, a skirt and other things", you would be surprised and perhaps pained if she returned home in a pantechnicon with a suite of furniture, though that undoubtedly would be covered by "other things".

The courts therefore proceed with common sense. They ask themselves why the draftsman stated "other animals". The answer is that he may have missed one of the domestic agricultural animals that he meant to cover; for example, goats. The courts will also ask why he mentioned cattle and sheep. The only reason for mentioning them rather than allowing them to be covered by "other animals" was to delimit the scope of the provision.

In applying that to the present clause and special cases it proceeds quite valuably to say that the Secretary of State may make regulations covering special cases and it then gives examples. When I raised the matter in Committee I asked whether my noble and learned friend considered whether it led to a situation in which the ejusdem generis rule would apply. Unfortunately, I had not given him notice of the question. Off the cuff he replied—I shall not say characteristically—no. He believed that it would not extend to examples. However, the fact that it is exemplary in form directly suggests that there is a common factor, a genus, embracing all these examples, and that they are intended to limit the generality of the general regulation-making power. For example, a court which would have to consider this on judicial review would conclude that, although the general power to denominate special cases is all embracing, it would not be proper to designate as a special case, for example, where one of the parents was a member of an ethnic minority because it would not be of the same sort as the example.

Since my noble and learned friend's reaction was negative, I thought it would be better to deal with the matter expressly although my view was that the ejusdem generis rule applied. However, I have made it in declaratory form because it is highly undesirable and often very damaging to express in statutory form what the law would otherwise prescribe.

I conceive that only one possible argument can be advanced against this amendment. It is sometimes said, although on no very good authority and the main authority is against it, that the ejusdem generis rule does not operate in reverse; in other words, if one has the very wide term first rather than last, it is sometimes said that the rule does not apply. I have the authorities here but I shall not trouble your Lordships with them at this hour. I beg to move.

The Lord Chancellor

My Lords, my noble and learned friend asked me about this in Committee. I hope that, characteristically, I gave him what I believed to be the correct answer. I hope that that is the characteristic he had in mind rather than suggesting that I always wished to answer him with a no.

The point is that, if my noble and learned friend is right in his construction, the amendment is not necessary. The Bill is not intended to be restricted in that way. These are examples which we have found. They are intended to be useful examples of the type of case which we believe may need to be covered by Clause 33. There may be other cases which we wish to include although they may not be of the same kind.

It may be quite difficult—and I do not believe that my noble and learned friend has addressed this—to say what is the genus of which all these examples form part. The fact that one may be surprised by what happens in the case of one's wife going to the shop will not be a particularly good test. If my wife said that she was going to buy blouses and other things and returned with a pantechnicon full of blouses, I should be fairly surprised about that. It may well be ejusdem generis but the amount may well be considerable. Therefore, I do not believe that that is a very satisfactory test.

These are intended to be useful examples of the type of case which needs to be covered by Clause 33. However, unless it is absolutely essential, I do not wish to be restricted to that type of example. Therefore, unless there is an overwhelming reason for it, I do not feel that this amendment makes a useful contribution to the Bill. I hope that my noble and learned friend, in the light of that explanation—perhaps a little fuller than the one I gave on the first occasion—will feel able to withdraw the amendment.

Lord Simon of Glaisdale

My Lords, it is with no surprise at all that I find my noble and learned friend's brief ends with the word, "Resist". My noble and learned friend says that I have not defined the genus. That is quite true; courts very rarely do. What they say is that something falls clearly outside the genus. The tiger falls clearly outside any genus that might be constituted by cattle and sheep. I gave an example of something that would fall clearly outside; namely, the nomination of a special case where one of the parents is a member of an ethnic minority. My noble and learned friend does not want the generality limited in any way. That is entirely consistent with the whole spirit of the Bill—the gathering of vague powers into the hands of the administration.

My noble and learned friend finally says that if my construction is right the amendment is unnecessary. That is absolutely true. However, it is because he took the other view that I tabled it in a declaratory form. It is because he expressed a doubt that it must be put in. It is, of course, useless at this hour, in the face of the implacable resistance to any modification of any power taken by the Secretary of State under the Bill, to try to call a Division on the amendment. However, the argument stands. I am by no means satisfied with the answer given. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellormoved Amendment No. 80: After Clause 34, insert the following new clause:

("Jurisdiction of courts in certain proceedings under this Act

.—(1) The Lord Chancellor or, in relation to Scotland, the Lord Advocate may by order make such provision as he considers necessary to secure that appeals, or such class of appeals as may be specified in the order—

1. (a) shall be made to a court instead of being made to a child support appeal tribunal; or
2. (b) shall be so made in such circumstances as may be so specified.

(2) In subsection (1), "court" means—

1. (a) in relation to England and Wales and subject to any provision made under Schedule 11 to the Children Act 1989 (jurisdiction of courts with respect to certain proceedings relating to children) the High Court, a county court or a magistrates' court; and
2. (b) in relation to Scotland, the Court of Session or the sheriff.

(3) Schedule 11 to the Act of 1989 shall be amended in accordance with subsections (4) and (5).

(4) The following sub-paragraph shall be inserted in paragraph 1, after sub-paragraph (2)— (2A) Sub-paragraphs (1) and (2) shall also apply in relation to proceedings—

1. (a) under section 20 of the Child Support Act 1991 (reference to court for declaration of parentage); or
2. (b) which are to be dealt with in accordance with an order made under section (Jurisdiction of courts in certain proceedings under this Act) of that Act (jurisdiction of courts in certain proceedings under that Act)".

(5) In paragraphs 1(3) and 2(3), the following shall be inserted after "Act 1976"— (bb) section 18 (appeals) or 20 (reference to court for declaration of parentage) of the Child Support Act 1991;".

(6) Where the effect of any order under subsection (1) is that there are no longer any appeals which fall to be dealt with by child support appeal tribunals, the Lord Chancellor and the Lord Advocate may by order provide for the abolition of those tribunals.

(7) Any order under subsection (1) or (6) may make—

1. (a) such modifications of any provision of this Act or of any other enactment; and
2. (b) such transitional provision,

as the Minister making the order considers appropriate in consequence of any provision made by the order.").

The noble and learned Lord said: My Lords, I spoke to Amendment No. 80 when moving Amendment No. 59. I beg to move.

On Question, amendment agreed to.

Clause 35 [Fees]:

Earl Russellmoved Amendment No. 81: Page 25, line 25, leave out subsection (2) and insert: ("(2) Where an absent parent is on income support they will be zero rated for maintenance purposes.").

The noble Earl said: My Lords, I have tried to be mindful of the time of the House this evening. Before getting up, I said to myself, "Is your journey really necessary?" But it is of the nature of that question that occasionally one must admit the possibility that the answer may be yes. I think we have a case here where it is.

Amendment No. 81 deals with the case of an absent parent on income support who at present is to be assessed to pay 5 per cent. of his income support towards maintenance. The amendment would provide for the absent parent on income support not to be exempt from liability to pay maintenance—there is a principle involved in the liability which we accept—but to be zero-rated. There is a big difference.

The key point is how adequate a benefit income support is. That is something which goes right to the heart of the social security system. The Government's position can only be consistent and workable if they are right in believing, as my noble kinsman frankly stated was his view in Committee, that income support is above subsistence levels. Unless that is the case people who suffer a deduction from their income support are being brought to a level which is too low to be acceptable.

I shall not develop the argument which I have already had with my noble kinsman regarding whether or not income support levels are too low. That is an argument to which we shall doubtless have to return. It is not essential to the amendment. What is essential to the amendment is the argument that income support is a subsistence benefit. That is the assumption clearly made by all those who have been briefing us for the Bill—the National Council for One Parent Families and the National Association of Citizens Advice Bureaux, among others.

I cannot believe that the Government disagree with that. If they thought that income support was above subsistence levels, they would lower it and they have not done so. In practice, I believe that they accept that income support is a subsistence benefit. If being brought below income support is serious for people receiving the full adult rate, it is more serious for those receiving the much lower rate under 25 years of age. That is the lower rate and, as far as I can see, there are no lower costs.

People in that age group may be disproportionately represented among the category of absent parents. If it is serious for the under-25s, it is even more serious for the younger category of 16 and 17 year-olds who are old enough to be capable of coming into the category of absent fathers, and who sometimes do. In that context, we look forward to an announcement when the Government have digested the MORI research on the subject. Failing that, we cannot see any justification for charging maintenance on those who are already on income support. I cannot see that any serious thought has gone into whether they can afford it.

Professors Bradshaw and Millar, whose research underlies a great deal of the Government's thinking on this Bill, have concluded that, there is no reliable information on the capacity of (absent) parents to pay, or to pay more, maintenance". Let us take one example of the kind of case that I have in mind reported by a South Yorkshire citizens advice bureau. A client aged 21 receives benefit of £28.80 a week from which there are deductions for gas of £11.20; rent arrears and water rates, £5.71 per week; and a social fund loan of £1.31 per week. That leaves £10.58 per week out of which £5 per week must be found for an electricity token meter which is recovering a debt. Are we seriously suggesting that it is practical to deduct a further 5 per cent. from that person for paying maintenance? I do not think that it is. If the Government think otherwise, I shall be extremely surprised.

I hope that they have already considered what seems to me to be the very wise observations of the Social Security Advisory Committee on the subject of this amendment. It says: We are concerned that this would add yet another item to the growing list of deductions. The proliferation of these deductions is likely to lead to a large number of items competing for a finite amount or the possibility that creditors' bills are met at the expense of food and other essential items of day-to-day living. We urge the Government to reconsider this proposal which appears punitive and counterproductive".

The point about the proliferation of deductions is one which needs taking. A citizens advice bureau in Devon reports a case of a client who is losing 65 per cent. of income support on deductions for rent, water rates, social fund loans and repayment of past over-payments. It is illogical to have a level of protected income for other parents which is above income support level, and at the same time to say that those on income support can afford to have another £2 deducted from a benefit which is small enough in the first place.

I hope that the Government will consider the recommendation of the Social Security Advisory Committee at paragraph 17, that those already on a reduced benefit should not be made subject to any further deduction. That is a matter that we shall have to discuss further. I beg to move.

Lord Carter

My Lords, I moved this amendment in Committee and was supported on that occasion by the noble Earl, Lord Russell. I am pleased to return the compliment this evening. I shall be brief. We made it clear in Committee that the Government's proposal is extremely harsh on those who are on income support. We feel that those who are on income support have by definition only a subsistence income on which to support themselves and to maintain contact with their children. The Government have turned down amendments to increase allowances for the absent parent in regard to work-related expenses and so on.

In Committee I drew an analogy with zero-rating in the VAT system. The principle of maintenance is an important one. Where the absent parent is on income support the liability for the maintenance should be recognised but the payment should be zero-rated. The child support agency would hold information on the absent parent. When he found work he could then be brought into the system. If payments by absent parents on income support are introduced they should be used only as a method of ensuring that all absent parents are covered by the new system. The useful analogy is with the VAT system. One is in the system but one is zero-rated so that no payment is required. We feel that the Government's proposal in this respect is harsh. I hope that the Minister will be able to tell us that the Government have changed their view since Committee stage.

Lord Henley

My Lords, I very much regret that I shall not be able to move today. I have listened with great care to what my noble kinsman and the noble Lord, Lord Carter, have had to say. However, I feel that there is an important point of principle here. The legal and moral obligations on parents who are in receipt of income support are exactly the same as those on other parents. They are responsible for maintaining their children. It is important that the responsibility for maintenance should be established straight away, not least so that liability can be clearly established in readiness for if and when circumstances change. In principle all parents should make some contribution to their child's maintenance.

Perhaps I may put the picture straight and remind the House of exactly who on income support will be liable to have some small deduction made. We are talking about a small deduction of about £2 a week at 1991 rates. Parents who are sick or disabled and are unable to work will be zero-rated. Those who have dependent children for whom they are also claiming income support will have their liability established but their contributions to maintenance will again be zero-rated so that no deduction from income support will be made in their case. In other words, we are dealing with those who are able and fit to work but have no dependent children.

My noble kinsman said that he did not wish to pursue his argument as to the adequacy of income support levels. I do not think that we can get much further on that. He considered, as did the noble Lord, Lord Carter, that income support is a subsistence benefit. I do not accept that. We do not believe it to be right for all absent parents on income support to be zero-rated. We think it right that an absent parent who is fit and able to work and who does not have responsibility for bringing up children should make a small contribution to the maintenance of his children. Other deductions can be made from income support; for example, to meet arrears of fuel bills and in future towards the payment of fines. The current ceiling on deductions, which is intended to protect claimants from excessive deductions, will continue to apply.

I should like to say a few words about the case cited by my noble kinsman. It concerned someone in the West Country who had faced deductions of some 65 per cent. of income support. I find that somewhat difficult to believe. My noble kinsman made no mention of housing benefit when he mentioned the cost of housing. It would be wrong of me at this stage to comment any further. If my noble kinsman would like me to look at the case I shall certainly do so.

The current ceiling on deductions will continue to apply. The overall maximum deduction for the repayment of debts—to third parties, for the recovery of overpayments, for fines and what we are proposing here—is three times 5 per cent. of the income support applicable amount for a single person aged 25 or over. That is a maximum figure at current benefit rates, as my noble kinsman will quickly work out, of about £6 per week. Deductions for maintenance and fines will also be subject to that ceiling. There will also be a strict order of precedence which ensures that the most essential expenditures have priority.

A deduction for benefit will take its place in that list. I cannot say exactly where it will be in the list because we are still considering the precise details. However, in principle, the deduction from income support as a contribution to maintenance will not take precedence over those expenses which would form part of exempt income for someone who is working and for which deductions from benefit can also be made. It will certainly come after housing and fuel bills.

We do not accept the suggestion that this provision is harsh. It is right that an absent parent's liability should be established. This proposal will ensure that a parent who is fit and able to work while receiving income support is honouring his responsibility for the maintenance of his children in the same way as anyone else. I hope, therefore, that my noble kinsman will feel able to withdraw his amendment.

Earl Russell

My Lords, I thank my noble kinsman for that reply. However, I cannot say that I am satisfied with it. I accept that he has a principle to offer; but most of us have more than one principle. The trouble with principles is that they tend to conflict with each other. What is interesting is what you do when they conflict. We entirely accept the principle that fathers should be responsible for their offspring. That is why we spelt out in our amendment that they should be "zero rated" and not that they should be exempt.

The trouble is that we think there is another principle involved. We believe that people in this country—which, after all, is not yet one of the poorest countries in the world—should not be allowed to fall below subsistence level. Therefore, if the principle that fathers should maintain their offspring brings them below that level, we are of the view that it is unduly single-minded to go ahead and pursue the matter.

I am simply not convinced by my noble kinsman's argument that income support is not a subsistence benefit. This is an issue to which we shall return frequently. It is necessary to point out that we on these Benches, others on this side of the House in general and, I believe, Members in some other quarters of this place, simply do not find that argument acceptable or persuasive.

I listened carefully to what my noble kinsman said about deductions. I thank him warmly for his offer to look into the 65 per cent. case. I shall undertake to see that he receives details of it. We are not convinced that a limitation of deductions to 15 per cent. is effective in all cases, or that the figure of 15 per cent. is acceptable. We believe that this is undercutting the social security system as a whole and bringing it into danger.

I have thought long and hard about what I want to do with the amendment. I have taken advice as to whether I should bring the matter back on Third Reading. I have received the advice that too much is brought back on Third Readings and that I would be unwise to do so. I am not prepared to withdraw the amendment and give way on the matter. I believe that the issue involved is too important. Similarly, I am not prepared to accept the principle that, if it is proper for the He use to be in Session, it is totally improper for the House to divide. In the circumstances, I believe that I nave no option but to seek the opinion of the House.

11.59 p.m.

On Question, Whether the said amendment (No. 81) shill be agreed to?

Their Lordships divided: Contents, 12; Not-Contents, 27.

Division No. 3
CONTENTS
Carter, L. [Teller.]	Prys-Davies, L.
Faithfull B.	Russell, E.
Grey, E.	Seear, B.
Henderson of Brompton, L.	Simon of Glaisdale, L.
McGregor of Durris, L.	Stoddart of Swindon, L.
Mishcon, L.	Tordoff, L. [Teller.]

NOT-CONTENTS
Astor, V.	Hooper, B.
Blatch, B.	Johnston of Rockport, L.
Brabazor of Tara, L.	Mackay of Clashfern, L.
Brougham and Vaux, L.	Mountevans, L.
Cavendish of Furness, L.	Pearson of Rannoch, L.
Craigmyle, L.	Reay, L.
Davidson, V. [Teller.]	Skelmersdale, L.
Denham, L. [Teller.]	Strange, B.
Ferrers, E.	Strathmore and Kinghorne, E.
Fraser of Carmyllie, L.	Trumpington, B.
Gray, L.	Vinson, L.
Harmar-Nicholls, L.	Waddington, L.
Harmsworth, L.	Wynford, L.
Henley, L.

Resolved in the negative, and amendment disagreed to accordingly.

12.5 a.m.

Earl Russellmoved Amendment No. 82:

After Clause 35, insert the following new clause:

("Maintenance disregard for calculation of benefit entitlement

. Where the person with care is in receipt of income support, family credit or housing benefit or such other benefit as the secretary of State may prescribe, such a sum of maintenance as may be prescribed by the Secretary of State shall be disregarded in calculating that person's entitlement to any of these benefits.").

The noble Earl said: On behalf of the dozen voters for the Opposition, I wish to move Amendment No. 82. It deals with the disregard of maintenance for family credits. It was one of the sensible observations of the White Paper that no useful purpose is to be served by taking one family off income support if one puts another family on to it.

If a father who has remarried does not receive a deduction for the maintenance that he pays in the calculation of family credits, then the second family will lose what the first family gains. It will become dependent on income support. There will be a disincentive to work and a good deal of hardship will be created. We think that the present system works reasonably well. As so often, I say to the Government, "If it isn't broken, don't fix it". I beg to move.

Lord Henley

My Lords, I do not feel that there is much to add to what I said in Committee. As the noble Earl knows, we said that there would be maintenance disregard in housing benefit, community charge benefit, disability working allowance and family credit. In passing, I note that the movers have altered their amendment so as to include any other prescribed benefit, just as the Government did when drafting the Bill at some earlier stage. No doubt that was in order to include the disability working allowance. Presumably it would not have been included under the other amendment.

As I explained previously, we considered very carefully whether we should also introduce a maintenance disregard into the income support scheme; but we have concluded that we should not. If there were a maintenance disregard in income support, it would make it harder for the parent to be better off in work. She would need to earn a higher salary to be better off working than on income support. It could discourage her from taking the first steps into work and the achievement of greater independence which we know that parents want.

I wish to make two further points. First, as the House will know, the rules of these social security benefits are set out not in primary legislation but in regulations. The £15 maintenance disregard which the Government have announced will be introduced by amending those regulations, and not by amending primary legislation.

Secondly, it is right for the House to be aware of the not insignificant matter of cost. The extension of the £15 disregard to income support would cost an additional £180 million per year. Resources can only be finite and we believe that the best way to use available resources is to focus them on providing help to parents seeking to continue caring for their children with paid work. We feel that the £15 disregard in family credit, housing benefit, community charge benefit and disability working allowance will achieve this. I hope therefore my noble kinsman will feel able to withdraw his amendment.

Earl Russell

My Lords, I congratulate my noble kinsman on spotting the words concerning any benefit of a prescribed kind. I thank him for pointing that out and I shall try to be more careful in future. I cannot say that I am entirely convinced by the rest of his argument. On the point about costs, I wonder a little whether my noble kinsman has not thrown a boomerang because if those costs are not falling on the Government, they are falling on families who are not going to be able to sustain them. That may carry a great many concealed costs which may be rather greater than those they would incur under the system we are proposing. I am well aware of the cost to the social security budget as I have spoken on that many times. My noble kinsman knows my proposed remedies for that so I shall not go into them at this time of night. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 [Regulations and orders]:

12.15 a.m.

Lord Simon of Glaisdalemoved Amendment No. 83: Page 26, line 20, after ("section") insert ("3(8)").

The noble and learned Lord said: My Lords, this amendment and the next two amendments are concerned with parliamentary control of legislation in the form of regulations. It is deplorable that the business should be so arranged that we should be discussing something of this constitutional importance after midnight.

On Second Reading the noble Lord, Lord Mishcon, informed us that there were 92 regulation-making powers in the Bill. That is far more than the number of clauses in the Bill. Of those only eight were subject to the affirmative resolution procedure. On examination one finds that no regard at all has been paid to what was laid down by the Joint Select Committee on delegated legislation of 1972 to 1973. The committee's recommendation had been accepted by both Houses. That is entirely consonant with the general bureaucratic spirit of this Bill. Your Lordships have today witnessed examples of the ouster of the courts. Here we come back again to the encroachment on parliamentary activity by the Executive.

At Committee stage I ventured to propose a number of amendments under this clause in order to extend the affirmative resolution procedure beyond the eight instances originally fixed. The Bill was already very odd, not merely numerically as I have just pointed out, but in addition the Scottish draftsman had obviously taken a much more proper constitutional view than the English draftsman instructed by the department. One found that in exact counterparts in the Scottish provision the affirmative resolution procedure applied whereas in the English provisions there was the usual downgrading.

I proposed a number of amendments to bring some of the provisions into line with the criteria that the Joint Select Committee had laid down. My noble and learned friend accepted one and was good enough to say that he would consider all the others. Unfortunately the result of that consideration has been almost entirely negative, apart from the case of the amendment that I am now moving. One is bound to point out that that is the minimum that could be conceded because the amendment refers to Clause 3(8), which, unless it was made affirmative, would be an absurd anomaly in relation to Clause 5(7) and Clause 6(7).

Turning to the other amendments, I hope that your Lordships will bear with me if I merely go through them quickly indicating the character of some of them and leaving it to my noble and learned friend, who is apparently not ready to accept them. to say how he can possibly reconcile that attitude with the recommendation of the Joint Select Committee which I brought to your Lordships' attention at Committee stage.

The first item is Clause 23(2) relating to the collection and enforcement of various orders for periodical payment, together with maintenance assessment collection. It is a Henry VIII clause, although not particularly objectionable. Being a Henry VIII clause it falls within the first of the criteria as being a matter of importance, which the Joint Select Committee defined negatively as something that was not trivial or transitional. In addition, it also falls within the second head, in that it involves a charge on the citizen.

Subsections (1) and (2) of Clause 25 concern deductions from earnings orders. That again is not only a matter of intrinsic importance but also falls within the second financial head and ought to be in affirmative form.

The next item is is Clause 27(1), relating to liability orders, which again is a matter involving a charge on the citizen, to adopt the criterion of the Joint Select Committee.

The last but one is Clause 28(7). That again is a Henry VIII clause, so it should clearly be subject to the affirmative resolution procedure. It also concerns the stark remedy of distress, which is a mode of execution by self-help which the common law made subject to many safeguards, many of which have been swept away in the Bill for the convenience of bureaucratic order.

The last is Clause 31(3). I do not have a note of that one, but I ask my noble and learned friend to go through them. If he is not disposed to accept any of them, perhaps he will say why, applying the criteria of the Joint Select Committee, he can justify any such refusal. I beg to move.

The Lord Chancellor

My Lords, I entirely accept the amendment. I have looked carefully at the other amendments to which my noble and learned friend has spoken and have concluded that, where they affect provisions of the Acts of Parliament, they do not substantially affect those provisions. I do not believe that they contain power to impose or increase taxation or other financial burdens on the subject; rather, they produce procedures under which already determined burdens are enforced. I do not think that any of them require that the affirmative resolution procedure should be applied to them. I am mindful that the Select Committee report commented that, if parent Acts require the affirmative procedure instead of the negative for instruments which are likely to be neither sufficiently important nor sufficiently controversial to justify such procedure, there may be needless consumption of parliamentary time.

Lord Simon of Glaisdale

My Lords, my noble and learned friend said that he did not consider those provisions to be substantial without going on to apply the negative test that the Joint Select Committee proposed. It said that anything was substantial which was not trivial or transitional. Obviously, a Henry VIII clause falls into that category. Obviously, the provisions about distress, deduction of earnings and liability orders affect the charge on the individual citizen

I confess that I am not surprised at the attitude of my noble and learned friend because it is entirely consistent with the general attitude that the department has displayed not only in presenting the Bill but in the brief given to Ministers on the various amendments.

In the meantime, I think that I am right to move the first amendment and to ask leave in due course, in view of the late hour and the figures at the recent Division, not to move the remaining amendments.

On Question, amendment agreed to.

[Amendments Nos. 83A and 83AA not moved.]

Clause 39 [Interpretation]:

The Lord Chancellormoved Amendment No. 84:

Page 27, line 7, at end insert: (" "child support appeal tribunal" means a tribunal appointed under section (Child support appeal tribunals);").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 59. I beg to move.

On Question, amendment agreed to.

[Amendment No. 85 not moved.]

Clause 40 [Meaning of "child"]:

Lord Simon of Glaisdalemoved Amendment No. 86: Page 28, line 3, leave out paragraph (b).

The noble and learned Lord said: My Lords, this amendment refers to the definition of a child. I raised this mattter in Committee. The Bill defines a child and then goes on to say that: a person is not a child … if he— (a) is or has been married; (b) has celebrated a marriage which is void; or has celebrated a marriage in respect of which a decree of nullity has been granted".

I question in particular paragraph (a). My noble and learned friend justified it by saying that the subject, the person—who would be someone anywhere between the ages of 12, in Scotland, and 19, in England; anybody within that age who had married—had entered into a new family relationship. That is true. It is self-evident. What is not self-evident is that in acquiring a new family one discards the old one. In this country we do not practise a form of exogamy. We do not say, "Leave thy father and thy mother and the black tents of thy people". On the contrary, when a girl marries she normally remains in contact with her parents.

I suppose it could be said that when she marries she is playing her own part in the partnership, that she looks to her husband for support and that that should be taken to exonerate her father. I do not think that that is always true. But in any case it does not apply to the young husband. I do not know how that is justified.

However, I am not so much concerned with paragraph (a) as with paragraphs (b) and (c). Paragraph (b) states that one is no longer a child if one has gone through a void marriage. I suppose that the one most likely in this context is a marriage that is void for non-age. Perhaps the two young people (the girl under the age of 16 being pregnant) go through a ceremony of marriage. One ought to note that such a marriage can take place validly so far as celebration is concerned. There is a law of celebration abroad, though it is probable but not certain that if one of the parties is domiciled in England the marriage is void.

If the marriage is void—and there are many reasons other than non-age why the marriage might be void—why does the person cease to be a child by statutory definition? The situation is even odder in the case of paragraph (c). So far as I can see the only case that can be covered by paragraph (c) which is not covered by paragraph (b) is a voidable marriage. The only argument that I can possibly think of is that in some cases a void marriage and voidable marriage give a claim to support from the other party to the void or voidable marriage. That will probably be exiguous in many circumstances. It seems to me that it would be sensible to expunge those two limitations and leave the marriage of the child as being sufficient to take the child out of the benefit of the Bill. I beg to move.

12.30 a.m.

The Lord Chancellor

As my noble and learned friend said, this matter was raised at Committee stage, and I endeavoured to persuade him then that this amendment was not needed. The point is that for the purposes of the Bill anyone who had married, whether or not that marriage was void or had subsequently been annulled, would not be regarded as an eligible child, even though they would otherwise qualify by virtue of their age. The thinking behind this is quite simple. If a person has undergone a ceremony of marriage, he or she may, irrespective of whether the legal status of the marriage had later been called into question, be regarded as having left the ambit of parental support and formed with her supposed spouse a new family unit in which it is primarily the other partner who should give any financial support that may be necessary. The fact that a supposed marriage is in law void or is subsequently declared to be null or void does not, as my noble and learned friend has appreciated, prevent the court from having jurisdiction to order inter-spousal maintenance under the Matrimonial Causes Act 1973.

Of course—this is an important point—this does not mean that such children are precluded from seeking maintenance against their parents from the courts. It will then be a matter for the courts, exercising their judicial power, to decide whether in such rare and very unusual circumstances the person should be maintained by the parents or alternatively by the supposed spouse. This is a case which is so exceptional that it would be quite unreasonable for the formula to deal with it. Therefore, it is right that in this case the formula should not apply.

I hope that my noble and learned friend will appreciate that we are not restricting the category of children about which he is concerned from being able to obtain maintenance. What we are doing is excluding them from the provisions of this Bill because the Bill is intended to deal with what, by comparison with these, are reasonably straightforward cases. The circumstances we are now discussing are not straightforward and these seem to us to be appropriate cases for judicial determination.

I hope that in the light of this explanation my noble and learned friend will be prepared to withdraw Amendment No.86 and will not move Amendment No.87.

Lord Simon of Glaisdale

My Lords, I am grateful to my noble and learned friend. He said that in the unusual circumstances the child would be able to claim maintenance against his father. I should be most grateful if my noble and learned friend could explain how that could be done. As I read Clause 7, the court was precluded from considering any such claim, and if it could not be made in a magistrates' court the jurisdiction of which has been excluded expressly by Clause 7, I cannot see how it could be made.

The Lord Chancellor

My Lords, it can be done because the child in question is not a child for the purposes of this Bill. Therefore, the provision of Clause 7 to which my noble and learned friend refers does not apply to him or her.

Lord Simon of Glaisdale

I can conceive that a child in that position, if he is a child in Scotland, could claim against his father; but nobody has a right to claim maintenance against his father under the Matrimonial Causes Act merely because he is a child in the non-statutory sense and not defined by this Bill. It is true that the mother could claim on behalf of the child, but that is an entirely different case. However, at this hour I think it would be better if I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 87 not moved.]

Clause 42 [Short title, commencement and extent, etc.]:

[Amendments Nos. 88 to 90 not moved.]

Lord Simon of Glaisdalemoved Amendment No. 91: Page 29, line 17, at end insert: ("() No provision of this Act conferring a power to make regulations shall be brought into force until the relevant statutory instrument has been laid before Parliament").

The noble and learned Lord said: My Lords, the amendment seeks to postpone the bringing into force of the various powers to make regulations until Parliament has seen those regulations. As your Lordships know, there is a vast regulation-making power. There were 92 occasions on Second Reading and now there are more owing to the government amendment. Some powers are wide and some are vague.

When debating Clause 33 my noble and learned friend refused an amendment which would have limited the all-embracing width of the general regulation-making power. Under those circumstances Parliament is being asked to surrender an extraordinary part of its traditional legislative power and function. It is entirely reasonable that Parliament should be able to see what is intended—what the department has up its sleeve—by way of regulations. In Committee my noble and learned friend was inclined to say that that could not be done unless the power had been enacted. Earlier this evening I ventured to point out that that was inconsistent with the Government's concession on Clause 23 providing not only that Parliament should see the regulations but that your Lordships should see them before the Bill passes through this House. I venture to believe that my proposal is entirely consistent with the traditional parliamentary control and management of legislation. I beg to move.

Lord Mishcon

My Lords, I support the amendment. I shall reserve any speech that I may make until the occasion of the Motion that the Bill do now pass. I pay a sincere tribute to the noble and learned Lord, Lord Simon of Glaisdale, who at twenty minutes to one o'clock is still addressing this House. He has done so on many occasions without the aid of notes. He has poured out a vast amount of industry in examining the provisions of the Bill and has been a great defender of the liberty of the subject and the privileges of Parliament. I pay that tribute from these Benches and believe that it will be shared by Members in all parts of this House. We should be so much the poorer without him.

Noble Lords

Hear, Hear.

Earl Russell

My Lords, I join the tribute paid to the noble and learned Lord. His contributions tonight have been magnificent. I too support his amendment. On many occasions I have attempted to pray against regulations only to find that although the praying days had not expired they had already come into force. That is like jumping the gun. The problem arises in particular when a Recess coincides with the days concerned. Those days count towards the days for the coming into force but not towards the praying days. When debating regulations we should like to find that they are not already in force. I support the amendment.

The Lord Chancellor

My Lords, my noble and learned friend suggested that something I said at one stage was in contradiction to something said on behalf of the Government by, I believe, my noble friend Lord Henley at another stage.

As I recollect the matter, as regards Clause 22 my noble friend indicated that by Third Reading we should be in a position to give more detail of what is proposed under that clause. However, that undertaking has been superseded by events as your Lordships put that clause from the Bill. Therefore, that relieved him of further work in that direction before Third Reading.

What I have said is rather different. I have said that until the statutory power has been finally defined as it is when Parliament passes the Act, it is impossible to say with certainty precisely what will be the terms of the statutory power. While we can sometimes give an indication of what we shall do, depending on what Parliament will do, we cannot always do that.

Strictly speaking, it is true that there cannot be a relevant statutory instrument under a power until the power exists. Accordingly, the amendment as proposed is not capable of being fulfilled strictly according to its terms.

One reason for wishing statutory power is often to take account of circumstances as they develop. Where possible we like to consult. The consultation should often proceed in the light of what Parliament has sought to confer. Therefore, I believe that a general provision of this kind is not suitable.

I join with those who have paid tribute to my noble and learned friend Lord Simon of Glaisdale for the part that he has played in this Bill. He has been with us and has spoken of matters in considerable detail with great knowledge and expertise and it is now 20 minutes before one in the morning. I appreciate that greatly. I have shown already that some of the points he has raised we have been able to incorporate in the Bill, thereby improving it. That we cannot accept all his amendments may be more of a reflection on us than it.s on my noble and learned friend. However, I always consider carefully what he says.

I should add that my noble and learned friend has referred repeatedly to my briefings. I do not know how he knows what is in them. It must be a matter of speculation. I regard myself as responsible for decisions taken about a response to amendments proposed by your Lordships. I do not pass that responsibility to anybody else. I decide whether I am prepared to consider the amendment or what advice I give to your Lordships in the light of the arguments. It is not possible to know the strength of an amendment in this House until one has heard what is said in support of it. Therefore the advice which I am privileged to receive in advance of your Lordships' discussions does not always fully reflect the detailed argument presented by your Lordships in the course of proposing amendments although it is remarkable how often it does reflect it.

On that note, I warmly join with other noble Lords in commending my noble and learned friend Lord Simon although I cannot commend his amendment for acceptance by your Lordships.

Lord Simon of Glaisdale

My Lords, I am most grateful to the noble Lord, Lord Mishcon, and the noble Earl for supporting the amendment. I am also extremely grateful for the most generous words pronounced by my noble and learned friend. I hope that I am not ungracious when I say that I only wish that his enthusiasm had manifested itself in acceptance of a greater number of my amendments.

With regard to the subject matter of the amendment, my recollection is that the noble Lord, Lord Henley, was quite specific that it would be the regulations under Clause 22 that your Lordships would see in draft before your Lordships gave a Third Reading to the Bill. Of course the regulations cannot be legally in final form until the power to make them has been passed. But what is important in a bureaucratic Bill such as this, unless it is going to drive a coach and horses through the constitution, is that parliamentary control should at least be conceded in the form of showing Parliament what is proposed at the moment to be done by way of regulations.

I can only say—and again I fear it must appear to be ungracious after the generosity of my noble and learned friend—that the refusal of this amendment as well as of the last under Clause 37, is really the final bureaucratic nail being driven into our ancient constitution. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellormoved Amendment No. 92: Page 29, line 21, after (" 2") insert ("and (in so far as it amends any enactment extending to Northern Ireland) Schedule 3").

The noble and learned Lord said: My Lords, I spoke to this and Amendment No. 110 when moving Amendment No. 59. I beg to move.

On Question, amendment agreed to.

The Lord Chancellormoved Amendment No. 110: Before Schedule 3, insert the following new schedule:

("SCHEDULE

Child Support Appeal Tribunals

The President

1.—(1) The person appointed under Schedule 10 to the Social Security Act 1975 as President of the social security appeal tribunals, medical appeal tribunals and disability appeal tribunals shall, by virtue of that appointment, also be President of the child support appeal tribunals.

(2) It shall be the duty of the President to arrange such meetings of the chairmen and members of child support appeal tribunals, and such training for them, as he considers appropriate.

(3) The President may, with the consent of the Secretary of State as to numbers, remuneration and other terms and conditions of service, appoint such officers and staff as he thinks fit for the child support appeal tribunals and their full-time chairmen.

Membership of child support appeal tribunals

2.—(1) A child support appeal tribunal shall consist of a chairman and two other persons.

(2) The chairman and the other members of the tribunal must not all be of the same sex.

(3) Sub-paragraph (2) shall not apply to any proceedings before a child support appeal tribunal if the chairman of the tribunal rules that it is not reasonably practicable to comply with that sub-paragraph in those proceedings.

The chairmen

3.—(1) The chairman of a child support appeal tribunal shall be nominated by the President.

(2) The President may nominate himself or a person drawn—

1. (a) from the appropriate panel appointed by the Lord Chancellor, or (as the case may be) the Lord President of the Court of Session, under section 7 of the Tribunals and Inquiries Act 1971;
2. (b) from among those appointed under paragraph 4 to act as full-time chairmen; or
3. (c) from among those appointed under paragraph lA of Schedule 10 to the Social Security Act 1975 to act as full-time chairmen of social security appeal tribunals.

4.—(l) The Lord Chancellor may, after consultation with the Lord Advocate, appoint full-time chairmen for child support appeal tribunals.

(2) A person is qualified to be appointed as a full-time chairman if he has a 7 year general qualification (within the meaning of section 71 of the Courts and Legal Services Act 1990) or is an advocate or solicitor in Scotland of 7 year's standing.

(3) A person appointed to act as a full-time chairman shall hold and vacate office in accordance with the terms of his appointment, except that he must vacate his office at the end of the completed year of service in which he reaches the age of 72 unless his appointment is continued under subparagraph (4).

(4) Where the Lord Chancellor, after consulting the Lord Advocate, considers it desirable in the public interest to retain a full-time chairman in office after the end of the completed year of service in which he reaches the age of 72, he may from time to time authorise the continuance of that person in office until any date not later than that on which that person reaches the age of 75.

(5) A person appointed as a full-time chairman may be removed from office by the Lord Chancellor, after consultation with the Lord Advocate, on the ground of misbehaviour or incapacity.

(6) Section 75 of the Courts and Legal Services Act 1990 (judges etc. barred from legal practice) shall apply to any person appointed as a full-time chairman under this Schedule as it applies to any person holding as a full-time appointment any of the offices listed in Schedule 11 to that Act.

(7) The Secretary of State may pay, or make such payments towards the provision of, remuneration, pensions, allowances or gratuities to or in respect of persons appointed as full-time chairmen under this paragraph as, with the consent of the Treasury, he may determine.

Other members of child support appeal tribunals

5.—(1) The members of a child support appeal tribunal other than the chairman shall be drawn from the appropriate panel constituted under this paragraph.

(2) The panels shall be constituted by the President for the whole of Great Britain, and shall

1. (a) act for such areas; and
2. (b) be composed of such persons, as the President thinks fit.

(3) The panel for an area shall be composed of persons appearing to the President to have knowledge or experience of conditions in the area and to be representative of persons living or working in the area.

(4) Before appointing members of a panel, the President shall take into consideration any recommendations from such organisations or persons as he considers appropriate.

(5) The members of the panels shall hold office for such period as the President may direct.

(6) The President may at any time terminate the appointment of any member of a panel.

Clerks of tribunals

—(1) Each child support appeal tribunal shall be serviced by a clerk appointed by the President.

(2) The duty of summoning members of a panel to serve on a child support appeal tribunal shall be performed by the clerk to the tribunal.

Expenses of tribunal members and others

7 —(1) The Secretary of State may pay—

1. (a) to any member of a child support appeal tribunal, such remuneration and travelling and other allowances as the Secretary of State may determine with the consent of the Treasury;
2. (b) to any person required to attend at any proceedings before a child support appeal tribunal, such travelling and other allowances as may be so determined; and
606
3. (c) such other expenses in connection with the work of any child support appeal tribunal as may be so determined.

(2) In sub-paragraph (1), references to travelling and other allowances include references to compensation for loss of remunerative time.

(3) No compensation for loss of remunerative time shall be paid to any person under this paragraph in respect of any time during which he is in receipt of other remuneration so paid.").

On Question, amendment agreed to

Schedule 3 [Consequential Amendments]:

The Lord Chancellormoved Amendment No. 111: Page 36, line 39, at end insert:

("The Tribunals and Inquiries Act 1971 (c.62)

.—(1) In section 7(3) of the Tribunals and Inquiries Act 1971 (chairmen of certain tribunals to be drawn from panels) after "paragraph" there shall be inserted "4A".

(2) In Schedule 1 to that Act (tribunals under the general supervision of the Council on Tribunals) the following entry shall be inserted at the appropriate place—

"Child support maintenance

4A. The child support appeal tribunals established under section (Child support appeal tribunals) of the Child Support Act 1991."")

The noble and learned Lord said: My Lords, I spoke to this amendment when moving Amendment No. 59. I beg to move.

On Question, amendment agreed to.

The Lord Chancellormoved Amendment No. 112: Page 36, line 46, leave out from ("expenses") to end of line 1 on page 37.

The noble and learned Lord said: My Lords, on behalf of my noble and learned friend Lord Fraser of Carmyllie, I shall move Amendment No. 112. It is a drafting amendment. Paragraph 1 of Schedule 3 to the Bill inserts two new subsections to Section 4 of the Family Law (Scotland) Act 1985. By removing some superfluous wording the desired effect can be achieved within one new subsection. I believe that is an improvement. I beg to move.

On Question, amendment agreed to.

[Amendment No. 113 had been withdrawn from the Marshalled List.]

The Lord Chancellormoved Amendment No. 114: Page 37, line 5, leave out ("In section 73(1) of the Debtors (Scotland) Act 1987") and insert: ("—(1) The Debtors (Scotland) Act 1987 shall be amended as follows. (2) In section 1(5) (time to pay directions not competent in certain cases) after paragraph (c) there shall be inserted— (cc) in connection with a liability order within the meaning of the Child Support Act 1991;". (3) In section 15(3) (interpretation of Part I), in the definition of "decree or other document", after "maintenance order" there shall be inserted ", a liability order within the meaning of the Child Support Act 1991". (4) In section 54(1) (maintenance arrestment to be preceded by default) in paragraph (c) for "the aggregate of 3 instalments" there shall be substituted "one instalment". (5) In section 73(1)").

The noble and learned Lord said: My Lords, again on behalf of my noble and learned friend Lord Fraser of Carmyllie, I shall move Amendment No. 114. I should perhaps briefly deal with the effects of the different parts of the amendment.

The first two parts of the amendment—those to Sections 1(5) and 15(3) of the Debtors (Scotland) Act 1987—concern the time to pay arrangements introduced by that Act. The amendment will mean that it will not be possible for the absent parent to apply to the court for either a time to pay direction (at the time the court makes the liability order) or a time to pay order (after enforcement action on the liability order has started). That is the present position with court orders for maintenance.

The third part of the amendment will reduce from three payments in arrears to one the level of default needed before a current maintenance arrestment can he put into operation. That will enable a maintenance creditor to act swiftly as soon as there is default to secure payment of the maintenance from the debtor's earnings. It will be particularly helpful where the payments are due monthly or less frequently.

There can be cases where non-payment has been inadvertent on the part of the debtor. Retaining a default requirement but reducing it will assist those debtors who, through oversight, fail to respond immediately on receipt of the notice by the creditor that the court has made a maintenance order against him. The reduction in the level of default required before a maintenance creditor can instruct a current maintenance arrestment should minimise the amount of arrears which could build up and should act as spur to regular and prompt payment.

The last part of the amendment is a minor drafting amendment to remove a superfluous reference to the Debtors (Scotland) Act 1987. I beg to move.

On Question, amendment agreed to.

The Lord Chancellormoved Amendment No. 115: Page 37, line 11, leave out from beginning to end of line 19.

The noble and learned Lord said: My Lords, I have already spoken to this amendment with Amendment No. 59. I beg to move.

On Question, amendment agreed to.