§ 83A Line 20, leave out ("may give a reduced benefit direction with respect to the parent.") and insert:
§ ("shall notify this to the parent, in writing.
§ (5A) A notice under subsection (5) above shall include a statement as to the right of the parent to appeal to a child support appeal tribunal against the child support officer's decision and shall specify the time limit for bringing such an appeal.
§ (5B) If the parent decides not to appeal, the child support officer may give a reduced benefit direction only after the expiry of the time limit for bringing an appeal.
§ (5C) If the parent appeals a child support officer may give a reduced benefit direction only after the outcome of that appeal has been notified in writing to the parent.")
§ Lord Mishcon
My Lords, there are occasions in the history of this House when this Chamber seems to be nearer to the response of the public of this country than does the other place. I should have thought that when this House threw back Clause 22 of the Bill, we did just that. If a poll were taken of the citizens of this land as to whether they wanted the people of the income limit about which we talk to suffer the penalty that has been described by the noble and learned Lord—I shall go into that in a moment—I would guess that about 80 per cent, if not more, of the population would say, "Don't have such a provision in the Bill".
The other place decided that we were wrong in throwing out Clause 22. Nothing that I can say and nothing that your Lordships can do at this stage can reinstate it. From a practical point of view, we are left with saying, "The power is there. Let us see that it is administered in as fair, just and merciful a way as possible". That is the start of my address to your Lordships in support of Amendment No. 83A.
Your Lordships will have noticed that in the amended clause to which the noble and learned Lord referred, subsections (5) and (6) provide that, if the child support officer considers that there are no reasonable grounds for thinking that harm or distress will be occasioned, he may give a reduced benefit direction. Under subsection (6), where he gives that direction he shall send a copy of the direction to the parent. There is not a word about giving the parent the opportunity to know in clear and simple language that there is a right of appeal and that the way to exercise that right of appeal shall be in a certain form.
Therefore the first part of my amendment provides that there shall be a notification in writing and that a notice,shall include a statement as to the right of the parent to appeal to a child support appeal tribunal against the child support officer's decision and shall specify the time limit for bringing such an appeal".Your Lordships may consider that it is but elementary justice to bring to the attention of citizens—especially the type of citizens to whom we refer—in clear, lucid, simple terms the right of appeal and the time limit specified by it.
On many occasions we have been told that there is a similarity between the provisions that are made with regard to this benefit and voluntary unemployment deduction. It is interesting that one of the 547 organisations that has done much to help us in our treatment of the Bill has reminded me that the experience in decision-making on voluntary unemployment deductions is not a brilliant one from the point of view of the Ministry involved. The Chief Adjudication Officer's Report for 1989–90 reported that in a third to a half of cases "insufficient evidence" for the decision was cited by officers and a significant proportion of appeals is decided in the claimant's favour.
The noble and learned Lord referred to a deduction. I shall refer briefly to the amount. I believe that the noble Earl, Lord Russell, will refer to the amount in more detail when he moves his amendment. With regard to a person against whom a prima facie finding has been made and confirmed by another officer (if that procedure were adopted) that she has reasonable grounds for thinking that harm will occur or that she will be caused undue distress, that penalty will fall immediately before the appeal is heard. I am trying hard not to use dramatic language; it does not appeal to your Lordships as a rule. That will mean in many cases literally not having enough food or clothing in the household. That is why I refer your Lordships—noble Lords may think quite fairly—to experience in what is supposed to be another field where decision-making has been upset by an appeal tribunal in many cases.
Is it therefore not just—I believe that it is the rule in Australia—that on receipt of the notice, an appeal may or may not take place within a limited time, and that the penalty falls only after that time has been expended, if there is no appeal. If there is to be an appeal the penalty falls only after the appeal has been adjudicated. One is entitled to refer to the minority, and not always to the majority. Let us consider the minority of cases where the appeal will be successful, if the argument is that that will be a minority. Ought we to be responsible for the suffering and hardship which is caused until the appeal is heard? The appeal may be successful.
I seek the spirit that your Lordships showed when throwing out Clause 22 completely in asking for the same support as your Lordships gave in all quarters of the House to a modification to the new clause. It is with some confidence that I leave the amendment in your Lordships' hands. I beg to move.
§ Moved, That Amendment No. 83A, as an amendment to Commons Amendment No. 83, be agreed to.—(Lord Mishcon.)
§ Earl Russell
My Lords, on behalf of these Benches I warmly support the amendment. It seems to us to be unjust that the penalty should be inflicted when a hearing is still pending and when it might well turn out that that penalty was unjustified.
I agree with what the noble and learned Lord the Lord Chancellor said. Significant improvements have been made in the clause. But where a single mother is deprived of benefit pending a hearing, the effect of that deprivation may often be to force her compliance which perhaps after an appeal she may not have been held liable to give. Therefore the effect of the 548 procedure as laid out could be to diminish the force of the concessions which have already been made. They are real. I shall welcome them at greater length later.
The trouble is that the Government have altogether underestimated the severity of the penalty that they are imposing upon single mothers. For that reason, it will have a much greater in terrorem effect upon those from whom compliance can be obtained than the Government suppose. The amount of hardship and injustice that will be caused will be much greater than the Government envisage. Finally, I echo entirely what the noble Lord, Lord Mishcon, said about the report of the Chief Adjudication Officer. I have read it. It is a disturbing document. It suggests that we should let the appeal process go its length before any penalty is put in place.
§ Baroness Faithfull
My Lords, I congratulate the noble Lord on managing to get the amendment tabled when we only saw the Commons amendments on Friday. How did he manage to do something so clever?
§ Lord Mishcon
My Lords, if the noble Baroness wishes me to reply immediately, I accept the compliment at once, but it was not all that clever of me. Having taken soundings, I anticipated what the Commons might do. I therefore read some papers before Friday. On Friday morning when I was told what the Commons amendments had been, I tabled my amendment.
§ Baroness Faithfull
My Lords, I thank the noble Lord for his reply. The matter was of great interest to me. I have some questions for my noble and learned friend, who took the Children Bill 1989 through the House. I have dealt with cases where women on their own have applied for their children to be taken into care under the Children Act 1948 because they had no money to feed them. How will the Children Act 1989 and this Bill work together? If a woman's income support is to be reduced and she has two children—a sturdy child who can manage with little food and a delicate child who cannot—and she realises that she cannot care for them because her income has been reduced and applies for them to be taken into care, what will be the position? She is caring for the children but she knows that she cannot continue to do so. It is the bulrushes story all over again. She applies for the children to be taken into care, and is therefore doing her duty by the children if she cannot feed them. Where does my noble and learned friend stand on the two pieces of legislation, which are contradictory? I shall be grateful for an explanation.
Some of the women whom a number of us have seen find it difficult to explain clearly why they do not want to give the father's name. A woman who has the child as a result of rape is diffident about saying that the child is the child of a man who raped her. That is an extreme case, but there are other cases where the woman is fearful that if she gives the man's name he will treat her cruelly. There is another point. She may know that the man who has fathered her child has abused other children and she may not want that man anywhere near her child because he has a history of 549 abuse. He has not been charged, but she knows of it. There are many women who know that a man has abused children but who do not want to go before the court.
The Children Act 1989 and the Child Support Bill are in juxtaposition. It will be an extraordinarily difficult matter for social security officers and it will be equally difficult for social workers within social services departments. I have great admiration for the drafting of the amendment moved by the noble Lord, Lord Mishcon. Before making up my mind, I should like to know how my noble and learned friend will advise people on the extraordinarily difficult position that is created by the Bill.
§ Lord Stoddart of Swindon
My Lords, I am against Amendment No. 83. As my noble friend Lord Mishcon explained, it is probably too late for us to throw it out in its entirety; and so I support Amendment No. 83A. Earlier today we had brought before us a citizen's charter. I wonder whether the women whom we are discussing believe that the charter refers to them. I wonder whether the Prime Minister, when he was mulling over the Citizen's Charter, had read the Child Support Bill. Had he considered the Child Support Bill? Had he considered the implications of Amendment No. 83, because they are serious for those who will bear the brunt of them?
I have been informed—it may be more, it may be less—that single women may lose up to £8 per week in benefit because, for one reason or another, they refuse to name their child's father. Does anyone here have any concept of what £8 per week might mean to a woman and children living on the breadline? It could mean disaster. If someone is living on £80 a week and loses £8 per week, that means that the child or the woman will starve, and the latter is more likely.
I hate to be emotional, but one can only treat the issue emotionally. To subject a family on such a low income to a further reduction in its income is nothing short of cruel. If a parent subjected the child to that action voluntarily, that parent might well be accused of child abuse. Here we have the state abusing the child. Whichever way we look at it, it is the child who will suffer. I therefore regret that the Commons sought to put back Clause 22 into the Bill. My noble friend Lord Mishcon is right: in many cases this House may have a better realisation of the consequences for ordinary people of actions taken by Parliament.
Earlier we debated whether we should discuss the Bill today. Unfortunately the Government decided that they must have the Bill, not 48 hours hence, not a couple of months hence, but today. That was absurd. Indeed, the absurdity of it came to me when I went to my office for a couple of minutes to fetch a letter which I had to post. On my desk was an envelope containing a letter relevant to this debate. Had not gone to my office, I should not have seen the letter. It was from an organisation called Women Against Rape. Many of your Lordships will have heard of that organisation. I have, and I do not agree with everything it says. However, it has a right to be heard because rape and the possibility of rape has much to do with the amendment.
550 Because I believe that the organisation has a right to be heard, I shall read out two or three sentences from the letter. First, it states:A government amendment has restored the 'penalty' clause which the Lords removed, making it all the more urgent to stop the Bill rushing through to the Royal Assent".I say to Women Against Rape I am afraid that we cannot do that. The Front Benches have agreed that we must rush it through. The letter goes on:Mothers will be forced to re-establish connections with men they may have escaped from, and if they refuse, they can lose £7.93 a week from already inadequate benefits".It goes on to state:The Law Lords are at this moment considering an Appeal Court ruling making rape in marriage illegal. In their comments on this case, they made clear that they want to oppose this rape, and consider that in the twentieth century it cannot be defended. Yet the Child Support Bill promotes rape in marriage".That is the view of Women Against Rape about rape in marriage.
The letter goes on to state that the new amendment will not only increase poverty, but will put both women and children in danger of rape, violence and other assaults. The letter states:The government say that women who have good reason to fear violence from the man may be exempt from penalty for 'non-co-operation'. But they will have to make their case to the Child Support Agency—and, inevitably, reveal the father's identity. Once the information is given, who can count on the Agency to respect their fears? Many will lose benefit rather than risk it".Finally, it states:Another circumstance where women would not be forced to claim from the father is where the child has been conceived as a result of rape. But to benefit from this concession women would be required to tell officials about rape and assault which many cannot speak about to anyone".We know that that is true.
Therefore, at least Women Against Rape has had a hearing, although it is not the hearing that it should have had. I hope that the House will take into account what the organisation said. I hope also that my noble friend's amendment will be supported and passed this evening.
§ 8 p.m.
§ Lord Simon of Glaisdale
My Lords, your Lordships have heard a number of moving and well informed speeches. Having heard them, I fear that what I am about to say will sound cold-hearted and arid.
The first matter which we must consider is the background to the clause. The original Bill contained Clause 22 which was highly objectionable to your Lordships. One is bound to ask why it was in the Bill at all. The answer is that in its original form it was entirely characteristic of the Bill.
However, your Lordships removed it. The Government now put forward a new clause as an alternative. The noble Lord, Lord Mishcon, was inclined to say that there was nothing we could do about that other than to amend it. I venture to disagree. Your Lordships could throw out that new clause and the Government will then have to decide whether they really want the Bill as much and as urgently as they say. They must decide whether they are therefore prepared to accept your Lordships' rejection.
551 On the other hand, they may seek to reinstate the clause. There is plenty of time for that—a whole week. Those matters do not take very long going along the corridor. When I say that I venture to disagree with the noble Lord, Lord Mishcon, I am strongly in favour of his amendment to the new clause if we have to put up with it.
There is one other matter I should like to mention about the parliamentary background. This is one of the few issues which came before your Lordships when the House was full at a reasonable hour. We had had that experience before when discussing the Courts and Legal Services Bill. Noble Lords who wanted an amendment to be considered withdrew all the earlier amendments so that, to the Government's consternation, a particular amendment came before your Lordships when the House was full. The matter was fully debated and the Government were defeated.
So it was on this occasion. The Government fought valiantly with all the dialectic skills which the Government's Ministers command. Nevertheless, a full House, listening to the issues, had no doubt that the original Clause 22 was quite intolerable and it was removed.
Having said that about the background, on the main point, there are two contestants with which your Lordships are concerned: one is the child support officer, representing the Secretary of State and battling on behalf of the Treasury—there is nothing wrong in that but the interest is that the money shall be secured; on the other hand, there is the parent. There are two conflicting interests. Who decides? Is it consonant with our system and concept of justice that the issue is decided by the child support officer? And yet that is the case under the new clause.
It seems to me at the very least that one can accept is what the noble Lord, Lord Mishcon, proposes: that there should be an appeal. I should like the issue to go to a court because a court is the proper body to decide what is good cause for withholding information. It is a question which courts in this country, in Scotland and all over the common law world decide every day. The courts should decide that and not one of the interested parties; namely, the child support officer.
I should like the issue to be decided by a court. However, the next best thing is to allow an appeal. Again, I should like the appeal to be made to a court of law but faute de mieux to a child support tribunal. That was one of the bureaucratic additions imposed on the Bill during its passage through your Lordships' House. At least that is something. The child support officer's word is not to be final in his own interests. There is to be the right of appeal, albeit to an administrative tribunal; at any rate, it is an appeal to an institution with some neutrality.
I desire to add only two short points which are nothing like as important as the issues I have been venturing to air before your Lordships. One relates to a phrase which fell from the lips of my noble and learned friend; that is, "failure to co-operate". The phrase occurred also in a letter from the noble Lord, Lord Henley, when I corresponded with him in regard to interim assessments.
552 It is said that a person brings the evil on himself by failure to co-operate; that means, failure to give the information that the child support officer desires. Perhaps your Lordships have heard the phrase before. We have read it repeatedly. Even the secret police excuse their actions by saying that the unfortunate man brought it entirely upon himself by failure to co-operate; that all he needed to do was to answer the questions put to him.
My other point is that I cannot see that the new clause covers the case of a woman who says, "I cannot give you the name because I do not know it", either because she has been promiscuous at the time of conception or because she genuinely does not know the name of her paramour. So far as I can see, the child support officer must have regard to any reason given by the parent that there are reasonable grounds for believing that injury will come to the children. What about reasonable grounds of sheer ignorance? Is that covered? Perhaps my noble and learned friend will enlighten your Lordships on that point.
As I said earlier, when Clause 22 was debated it was before a full House. Unfortunately this matter is being debated before a fairly empty and quite famished House. In those circumstances I do not know whether the noble Lord, Lord Mishcon, will press his amendment to a Division. If he does I shall have not the slightest hesitation in supporting him in the lobby.
§ 8.15 p.m.
§ Baroness Elles
My Lords, I apologise to the noble Lord, Lord Mishcon, that I did not hear everything he said in support of his amendment. Unfortunately I was called urgently to the telephone. Judging by the atmosphere and the kind of things he was likely to say, I support his intention.
First, it is highly regrettable that another place which purports to represent the people of this country failed to support the decision of the House of Lords in abolishing Clause 22. Anybody who has done voluntary social work for many years—including myself—will know perfectly well, as well as the noble Lord, Lord Stoddart of Swindon, what a 10 per cent. reduction of a minimum income support benefit will mean to a woman with a child or children to support. I find that intolerable.
Further, the woman may attempt to obtain part-time work. Anybody who has done that at any stage of their lives knows that a woman can never obtain more than 75 per cent. of the male earning wage. That too should be taken into account.
With the permission of your Lordships, I should like to make a number of other points. The first relates to the question of the child support officer. During the Committee and earlier stages of the Bill I was able to bring to your Lordships' attention decisions made by child support officers acting on behalf of the Department of Social Security which, to say the least, did not act on reasonable grounds in dialing with individual cases before it. That evidence came from the CAB which is a reputable organisation throughout the country. The wording used by child support officers horrified me.
553 The fact that child support officers can make the decisions that they are asked to make is totally subjective. Are the Government to set up guidelines which will restrict them in making those decisions? There is no mention in the clause of regulations which will define the reasonable grounds on which a child support officer may make a decision. That in itself is dangerous because different decisions may be given throughout the country by different child support officers as to how they regard the interpretation of "reasonable grounds".
My other point which is fundamental and anathema to the clause is that it is a grave miscarriage of justice. Who is the person at fault? It is the man who has failed to maintain. The idea that one can insert a clause in a Bill and erect a kind of Aunt Sally and say, "Failure to comply therefore, bash, your benefit is reduced", is an extraordinary way to bring justice to the country and particularly to the most unfortunate of people—I will not call them deserving but certainly they are the people in the lowest category of incomes, support, happiness and home.
The introduction of the clause by another place is lamentable and not worthy of the kind of welfare which on the whole this country is praised for maintaining. It is a grave dereliction of the kind of thing we should be doing in this House. Once again, I insist that it is a miscarriage of justice. Why should a woman who has been deserted and been left with her children be made to commit, so to speak, a crime which carries a penal financial sanction when the culprit is the man who has failed to maintain and provide money for her support and that of her children?
Finally, I ask my noble and learned friend to take into consideration that in Australia—where this form of support is arranged through the Inland Revenue or the taxation authorities—the cases where women have failed to give information are very few indeed. I wonder whether my noble and learned friend can give an undertaking that, where a child support officer can obtain legitimate information from the Inland Revenue or any other source, that will be taken into account before the child support officer makes a decision. Perhaps I failed to read the amendment carefully, but I see nothing in the clause which obliges the child support officer to discover information concerning the culprit—the man who has failed to pay—or whether there is any way in which he can be traced without that information being given by the woman. If there is, I find it even more intolerable that a woman in that position should be penalised in the way the clause proposes.
§ Lord Houghton of Sowerby
My Lords, while I share the indignation of my noble friend Lord Stoddart of Swindon, the best that I can do is support my noble friend Lord Mishcon. There is no time to cover the whole of the ground again. We must make the best of the situation which is in our hands for decision. I find the approach of the Government to this matter unspeakably mean.
In the philosophy of the Government and in the terms of this Bill, when we put children first we are putting first the need to extract money from the absent 554 parent in support of his child. That is what we are thinking of and nothing beyond it. We are not considering the child as a person or the family as a whole. We are considering what we can extract from an absent parent even though the mother of the child feels unable to co-operate, if that is the word, or disclose the reasons why she would feel fear and acute distress were she to give the information that the income support officer can follow up.
If we have to find a reason for accepting the position where non-disclosure can be a reason for continuing the existing system, the most we should seek is an expression of fear and apprehension in terms and from a person whom the child support officer can accept in good faith. To expect a woman to deploy reasonable grounds for fear and apprehension is asking for the disclosure of a state of mind. One's mind boggles at the kind of interrogation that a bureaucratic income support officer might apply to a woman in order to probe whether her grounds were reasonable. I find it abhorrent and unspeakably mean. For the Government to proceed on the lines they suggest is despicable. I hoped that when we got rid of Clause 22 we would never see its like again.
If some excuse is necessary then what I have outlined is as far as we can go. Nevertheless, we have before us an amendment and it is the least that we should accept. It has been stated in reasonable terms. My noble friend is far too courteous and reasonable with your Lordships' House on occasions. I admire him greatly, but I would admire him more if we could see more of his fire and indignation when confronted with a situation of this kind.
I hope that we shall press my noble friend's amendment. We cannot let it go on the terms submitted by the noble and learned Lord the Lord Chancellor in support of the main amendment. I cannot understand what type of mind is applied to this problem in the terms that we have before us. I can only suppose that the provision comes from people who have never experienced this kind of situation and who cannot possibly understand it. The problem is there. Such a situation is very deeply ingrained in the mind of a woman. If we are concerned with the welfare of the children that lies in accepting the judgment of the mother in the circumstances. It is not putting children first to pursue the matter to the extremes provided for in the main amendment. Therefore, I hope that we support my noble friend's amendment.
§ Baroness Faithfull
My Lords, I apologise for rising again. When my noble and learned friend comes to reply I hope that he will answer the questions that I asked him. However, I forgot one. If a woman names a man and he is pursued, found and says that he was not the father of the child, while knowing perfectly well that she was perhaps living with one or two other men, who is to say who is the father of the child? If she persists in saying that he is and he persists in saying that he is not, then what happens?
§ The Lord Chancellor
My Lords, as that question is so fresh in my mind I shall deal with it first. There are provisions in the Bill for determining these matters, if necessary, by a declaration of parentage. It is obvious 555 that what the woman says may or may not be correct. There is a question as to whether or not a declaration of parentage should be taken. Much will depend on the nature of the evidence available on both sides of the question. There is no situation in which a man will find himself saddled with a responsibility of this kind except in pursuance of a court declaration that he is the father of the child. Declarations of parentage are mentioned specially and are matters for the court and not the agency.
The noble Lord, Lord Stoddart, wondered if the Prime Minister, in studying his proposals for the Citizen's Charter, was aware of these proposals. The answer is, yes; they are perfectly consistent with the Citizen's Charter. My noble friend Lady Elles put her finger on the point that the person who is in default in the case we are dealing with is the absent parent. We have to take reasonable steps to seek to work out that liability. The purpose of the clause is not to penalise the woman at all.
§ The Lord Chancellor
My Lords, for the moment I am talking about the purpose of the clause, which is to get the necessary information. In the nature of things the Secretary of State is unlikely to have the information unless he gets it from the woman. If he has the information in some other way (one of your Lordships has suggested that that might happen) then he certainly will not seek it in the way which we are now considering. If he has the information already, he is not going to pursue the woman for the sake of doing so. He is pursuing her purely for the purpose of obtaining information which is necessary in order to pin the proper responsibility on the person who has that responsibility.
§ Baroness Elles
My Lords, I am grateful to my noble and learned friend for giving way. Does he agree that, where a child support officer asks a woman for information and she fails to give it for one reason or another, that officer can attempt to get information from the Inland Revenue or any other source before continuing the course set out in the clause?
§ The Lord Chancellor
My Lords, my noble friend is well aware that there are many difficulties in getting information from the Inland Revenue. The noble Lord, Lord Houghton of Sowerby, would be the first to elaborate on that proposition if required. The purpose of the agency and of the inspector's powers that have been mentioned, is to get information in some circumstances. The nature of the information required is such that, if it is available in some other way or through some other method, obviously the Secretary of State will use the other method. We are only concerned here with the situation where it is necessary to get the information from the mother.
My noble and learned friend Lord Simon of Glaisdale asked about the situation if the parent has not got the information. Clause 6 is the basic clause. Subsection (7) makes it quite clear that she, 556shall, so far as she reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the child support officer being provided with the information which is required to enable the absent parent to be traced".That is the principal point. If for some reason such as that suggested by my noble and learned friend she does not have the information, there is no question of her being pursued. The situation is where the caring parent is refusing to give information which she may be reasonably required to give in the circumstances. I used the phrase "co-operating with the child support officer". That seems to be a perfectly reasonable phrase in the circumstances of this case.
There is an appeal to the tribunal and from the tribunal to the commissioner, with the leave of either. There is an appeal to the court on a question of law with the leave of either the commissioner or the court. Therefore, there is a complete system of appeal to the court on matters of law that might arise from decisions of the child support officer. The main matter in Amendment No. 83A, which is what we are properly considering now—
§ Lord Simon of Glaisdale
My Lords, my noble and learned friend has just pointed out that there is appeal to a court on a point of law. However, whether there is a good cause is surely not a point of law, but a question of fact and degree.
§ 8.30 p.m.
§ The Lord Chancellor
My Lords, I do not know that I should like to affirm that proposition without qualification. The question of whether a given set of facts amounts to a good cause may be a question of law. Certainly I have seen decisions on questions of law in the courts that closely resemble that kind of question. In any event, that is the situation.
The question is whether the decision of the child support officer should contain a statement of a right of appeal. That is the ordinary practice, and it is the practice that will be followed here. Therefore, the first part of the noble Lord's amendment is not necessary because in all benefit decisions a statement is contained in the decision about the nature of the right of appeal and to whom an application by way of appeal is to be made.
§ Lord Mishcon
My Lords, that will not be in the Act. One does not know whether another government will decide that, as it is not in the Act, it is not necessary to carry out what is a procedure elsewhere. Secondly, does not the noble and learned Lord agree that it certainly cannot do any harm? If this is the normal procedure, why is it harmful to insert it in the Bill?
§ The Lord Chancellor
My Lords, the ordinary rule has stood on regulations in respect of the other benefits. I see no reason why that would not be an appropriate way of dealing with this situation.
Regarding the second part, the question of deferment, when the decision is made to reduce benefit it comes only after two periods—one period of six weeks and one period of two weeks—during which the caring parent has ample opportunity to make 557 representations as to why she should not have to comply with the obligations imposed under Clause 6. The length of time we are giving the caring parent to consider her decision, plus the fact that both the Secretary of State and the child support officer have to be sure that there are no reasonable grounds for believing that harm or undue distress will occur to the parent or her children if the maintenance application were to go ahead, demonstrates that we see the benefit reduction as very much a matter of last resort.
My noble friend Lady Elles referred to the position in Australia. The noble Lord, Lord Mishcon, did so also. It is true that in Australia the decision does not take effect until after an appeal has been decided. However, one has to think of the whole system. I understand that in Australia the benefit is lost altogether. That may well be an explanation of why, as my noble friend says, there are very few cases in Australia where people fail to give the information. Therefore, it may well be that a fairly solemn sanction of that kind has proved in Australia to be very effective without the need for actually using it. That is an important aspect of this matter. One must show that Parliament intends that, subject to the safeguards, the decision, which is subject to appeal, should be effective when it is taken. I am all in favour of the safeguards. We have described them in some detail, with help from the noble Earl, Lord Russell, and others, in the amendments that we have already dealt with. If an appeal is successful, the money is repaid. In this amendment we are not dealing with the amount. We shall come to that in due course. For the sake of good order, it would be right to discuss these amendments—Amendment No. 83A and the others—in the proper order. I shall come to that when and if these later amendments are moved.
My Lords, perhaps the noble and learned Lord will allow me to intervene for just one moment. Is the noble and learned Lord being wholly fair when he tells us that there is already a considerable period during which the person can consider the appeal? First, the noble and learned Lord gave a period of six weeks, and then a fortnight. Surely the six weeks was the so-called cooling off period to which he referred earlier. That six weeks precedes the decision of the adjudication officer. Surely someone cannot appeal in advance of the decision. Therefore there is only a fortnight—not eight weeks—as the noble and learned Lord appeared to tell us.
§ The Lord Chancellor
My Lords, both the six weeks and the fortnight are before the appeal, the purpose being that the Secretary of State will be considering the situation. The cooling off period of six weeks is allowed before that decision is taken; there is a further fortnight before the child support officer can decide.
I do not wish to mislead anyone. Both of these periods are before the decision is taken. I am saying that we have allowed the state of affairs in any event to run on for those eight weeks. I believe that that has to be taken into account. The amendment of the noble Lord, Lord Mishcon, is seeking, even after the Secretary of State has decided to go ahead, and the child support officer has decided on the situation put 558 before him, that then—even if the child support officer has decided that the benefit reduction should be made—no effective reduction is to take place until an appeal period has elapsed, or an appeal has been taken. One can see that that is the kind of situation which might very well encourage appeals. If there is substantial benefit in an appeal, it will encourage one, whereas, as my noble friend has pointed out, the situation is one in which one would want the system to operate properly. What we have proposed in these amendments, with the safeguards to which I referred earlier, is a proper basis for giving justice to people in these circumstances.
I have one final point. The noble Lord, Lord Houghton of Sowerby, spoke as if those of us who are proposing these matters do not understand at all the situation. I think I do understand the situation; I understand the delicacy of it. We have tried to construct a system which recognises that delicacy at the same time as recognising that there are some people in the world, as my noble friend Lady Elles said, who would like to pass the responsibilities which are naturally theirs to other people. We have to strike a reasonable balance between these two. That is what these amendments seek to do. I well understand the difficulty in which women can find themselves in that situation. We have sought to provide very full and proper safeguards for them. I believe that the amendment that the other place has passed, taken with the earlier amendments to which I referred, provide that balance.
I invite your Lordships not to accede to Amendment No. 83A, notwithstanding the courteous, gentle, or possibly even fiery, way in which it was laid before us.
§ Lord Mishcon
My Lords, I do not think that any of those adjectives will apply to what I am now going to ask the noble and learned Lord before he sits down. It is a very short question.
Can the noble and learned Lord indicate the maximum period that is likely to occur—and indeed the minimum period that is likely to occur—before an appeal is determined, during which time, as he knows, under the amendment brought from the other place the woman concerned will suffer the penalty week by week?
§ The Lord Chancellor
My Lords, it is difficult to give either a maximum or a minimum period. Appeals under this provision would be appeals that would merit being taken rather specially; in other words getting expedition for them. However, the appeal process has to be a fair one and therefore involve a certain amount of time. The noble Lord is assuming that the decision appealed from is, on balance, likely to be incorrect when he makes the assumption that it is right that the appeal should be treated as if it were successful in the period until the appeal decision is ultimately taken. I believe that the money is secure since it is with the state. There is no way in which the money will be recoverable. We are not seeking to do that, and the noble Lord's amendment does not seek to do that. We are not seeking to recover the money 559 by way of arrears if the appeal is unsuccessful. I believe that the balance that we have is better in the circumstances.
§ Lord Mishcon
My Lords, if it were one case in four, I believe that your Lordships would want to take the view that an injustice would be done by deducting this £8 plus per week from this little family week by week until the decision had been reached. The figures which I gave concerning the adjudication officer in another instance showed that it was a success rate of certainly more than one in four. I should like to test the opinion of the House.
§ 8.40 p.m.
§ On Question, Whether Amendment No. 83A, as an amendment to Commons Amendment No. 83, shall be agreed to?
§ Their Lordships divided: Contents, 51; Not-Contents, 55.560
|Division No. 1|
|Airedale, L.||Llewelyn-Davies of Hastoe, B|
|Avebury, L.||Macaulay of Bragar, L.|
|Beaumont of Whitley, L.||Mackie of Benshie, L.|
|Birk, B.||Mallalieu, B.|
|Carmichael of Kelvingrove, L.||Masham of Ilton, B.|
|Clinton-Davis, L.||Mason of Barnsley, L.|
|Cocks of Hartcliffe, L.||Milverton, L.|
|David, B.||Mishcon, L.|
|Dean of Beswick, L.||Monkswell, L.|
|Desai, L.||Morris of Castle Morris, L.|
|Donoughue, L.||Nicol, B.|
|Dormand of Easington, L.||Peston, L.|
|Ennals, L.||Pitt of Hampstead, L.|
|Faithfull, B.||Prys-Davies, L.|
|Flowers, L.||Rea, L.|
|Graham of Edmonton, L. [ Teller. ]||Rochester, L. [Teller.]|
|Grey, E.||Shackleton, L.|
|Halsbury, E.||Simon of Glaisdale, L.|
|Hayter, L.||Stoddart of Swindon, L.|
|Hollis of Heigham, B.||Tordoff, L.|
|Holme of Cheltenham. L.||Turner of Camden, B.|
|Houghton of Sowerby, L.||White, B.|
|John-Mackie, L.||Williams of Elvel, L.|
|Kirkhill, L.||Winstanley, L.|
|Kirkwood, L.||Winterbottom, L.|
|Arran, E.||Hooper, B.|
|Astor, V.||Howe, E.|
|Auckland, L.||Huntly, M.|
|Beloff, L.||Johnston of Rockport, L.|
|Belstead, L.||Kitchener. E.|
|Blatch, B.||Long, V.|
|Boardman, L.||Mackay of Ardbrecknish, L.|
|Brabazon of Tara, L.||Mackay of Clashfern, L.|
|Carnock, L.||Marlesford, L.|
|Cavendish of Furness, L.||Mersey, V.|
|Cochrane of Cults, L.||Montgomery of Alamein, V.|
|Constantine of Stanmore, L.||Mottistone, L.|
|Craigmyle, L.||Oxfuird, V.|
|Cumberlege, B.||Palmer, L.|
|Davidson, V. [Teller.]||Pearson of Rannoch, L.|
|Denton of Wakefield, B.||Quinton, L.|
|Elliot of Harwood, B.||Rankeillour, L.|
|Elliott of Morpeth, L.||Reay, L.|
|Ferrers, E.||Renfrew of Kaimsthorn, L.|
|Flather, B.||Romney, E.|
|Glenarthur, L.||St. John of Bletso, L.|
|Gray of Contin, L.||Seccombe, B.|
|Henley, L.||Strathmore and Kinghorne, E|
|Hesketh, L. [Teller.]||Thomas of Gwydir, L.|
|Trumpington, B.||Wise, L.|
|Ullswater, V.||Wyatt of Weeford, L|
|Waddington, L.||Young, B.|
|Wade of Chorlton, L.|
§ Resolved in the negative, and Amendment No. 83A disagreed to accordingly.
§ 8.47 p.m.