AS AN AMENDMENT TO COMMONS AMENDMENT NO. 83 (Hansard, 22 July 1991)

§ Lord Mishcon
My Lords, the best way to achieve what my arithmetic tells me is another four or five votes in order to succeed on this amendment is to be brief. There may have been some diversion of opinion in regard to the last amendment which I believe there should not be on this amendment. The amendment states that there shall be no fixed penalty and that there shall be a discretion to make the penalty a maximum and to inflict a penalty of below the maximum in certain cases. All that one does by this amendment is to grant a discretion.
.Your Lordships will remember that the granting of a discretion is extremely important. With Commons Amendment No. 1 we decided that we would give in all cases of discretion consideration to the welfare of the children. Therefore, by granting this discretion, we shall be able to take into account the welfare of the children. That is not a consideration which can necessarily be taken into account when there is a fixed penalty and no way of altering it.
If I may say so, anyone who votes against this amendment—I hope that I am not putting it too high; and I am trying to be as fiery as my noble friend Lord Houghton of Sowerby would want me to be—must really have a very hard heart or have been absent from the Chamber, as is so often the case, and not heard my speech before voting on the amendment. I beg to move.

§ Earl Russell
My Lords, one of the penalties of the hasty procedure which we have had today is that the noble Lord, Lord Mishcon, and I have not succeeded in getting our act together. I have had consultations about this matter with the noble Lord, Lord Carter, but unfortunately he is not able to be here this evening. I have also put down Amendment No. 83C, which should stand in my name but which, according to the Marshalled List, is attributed to the noble Lord, Lord Mishcon.
I should like to answer the question put by the noble Baroness, Lady Faithfull. I acquired my information, as I regularly do in these circumstances, by listening to the proceedings in another place last Thursday. It is the only practical way of doing so. That is why I think that there is here a general question which is worthy of attention.
The noble Lord, Lord Mishcon, is addressing a real problem. I sympathise with him. I agree with him about the need for discretion. One case is not exactly like another. But the noble Lord, no doubt inadvertently, did slightly mislead the House when he said that anyone who voted against his amendment 561 must have "a very hard heart". His amendment is not the only way to achieve the objective. Amendment No.83C, which I intend to move shortly, also allows for the element of discretion. It is a perfectly tenable view that either way of achieving the discretion is preferable to another.
I am not happy with the amendment of the noble Lord, Lord Mishcon, because it allows the amount of benefit deduction to be fixed by regulation. As I have said during many stages of this Bill, that seems to be an improper use of regulations. My noble kinsman has often said that the right way to deal with the question of legislation or regulations is to put the general principles into legislation and the details into regulations. I do not argue with that view. However, the question is: what are general principles? I have asked my noble kinsman before to recognise that there is a subjective element to that question. A matter of general principle is what people generally disagree about on grounds of principle.
It seems to me that there is nothing more important left to argue about than the size of the deduction for reasons that the noble Lord, Lord Mishcon, outlined so eloquently. I entirely agree with him that the question is whether people will have enough to eat. I cannot think of any question of more importance in principle in legislation than whether it will in fact have the effect of lowering people's living standards below subsistence level. I believe that it is the responsibility of Parliament to ensure that the legislation which is passed does not have that effect. I therefore cannot be happy about leaving the size of the deduction to be altered by regulation.
An other reason I take that position is that the attempt on which the Secretary of State, the noble and learned Lord and my noble kinsman are engaged is one which has been repeated many times—I was going to say, over the past five centuries. The noble Baroness, Lady Faithfull, rightly corrected me: we shoul3 go back to the bulrushes. Time and again attempts have been made by people who, like the Secretary of State, were perfectly reasonable people, to compel single mothers to name the fathers of their children. They set out to apply—and I think that I am using the words of the noble and learned Lord, although I do not have a note of them to hand—the minimum penalty necessary to secure compliance. They did not secure compliance. Therefore, they felt it necessary to increase the penalty again so as to secure compliance.
There are recorded cases of people leaning on the clergy to withdraw the sacrament of baptism from children of single mothers until the mother named the father. There are cases of all sorts of things happening in this direction. It used to be a matter which fell on the ratepayers of an individual parish. Therefore, whether the ratepayers were liable depended upon whether the child was born in that parish. I once found in a church warden's account an entry recording the payment of one shilling for carrying a woman with child, in labour and very near the time of her delivery, outside the boundary of the parish. I think that it would take a film producer to do justice to that journey. I cannot do so myself.
562 I do not suggest that the Secretary of State will go to those lengths. I believe that he will draw back and realise that he is attempting the impossible before he gets there. However, before that happens, I think that he will be tempted, because he is not achieving the intended effect, to increase the deduction from benefit even above the excessive level at which it already stands. I believe that he is embarking on a road which is very broad and one which is full of temptation. He will be tempted to continue increasing the penalty until it reaches a level where compliance will be secured. I do not believe that there is any such level. That is a conclusion drawn from 500 years of history.
For that, among many other reasons, I am not prepared to allow regulations to give the Secretary of State permission to fix the amount of deduction at whatever level seems fit to him. Therefore, I hope that the noble Lord, Lord Mishcon, will not press his amendment. However, if he does, I cannot advise my noble friends to vote for it.

§ The Lord Chancellor
My Lords, before I speak in my official capacity to this amendment I should point out that if Amendment No. 83B is agreed to I cannot call Amendment No. 83C as it pre-empts the former. I should also confirm that the noble Earl, Lord Russell, is correct. Amendment No. 83C was tabled by him. Due to a misprint on the Marshalled List, he does not have the honour which should be accorded to him in that respect.
Amendment No. 83B, as the noble Lord, Lord Mishcon, shortly pointed out, seeks to give a discretion in the amount of the deduction made. It is obviously right that there should be a degree of discretion in connection with whether or not one should go to this length. However, once one has reached that stage, one is working against the background of a system of formula, assessments and so on. It seems right that the amount of the deduction should be something which is known in advance so that everyone knows exactly where they stand. Accordingly, we say that the amount of the deduction should be determined—and this will be the subject of discussion later—by regulation, but that the amount actually prescribed should be deducted on the basis which I have already outlined for the time that I indicated.
The amount of the deduction is best dealt with under the next amendment if it is moved. We believe that our proposed deduction is fixed at a level that does not give rise to the kind of problem mentioned by my noble friend Lady Faithfull in her earlier questions to me. They did not arise strictly in relation to Amendment No. 83A but in relation to these later amendments. Our view is that only the personal income benefit will be affected and only to a maximum of 20 per cent. In Australia the whole benefit is deducted in the same situation. We do not believe that the result will be the kind of situation that my noble friend described.
As regards Amendment No. 83B, the Government's view is that once one reaches this stage it is correct that the deduction should be fixed under the regulation.

§ Lord Mishcon
My Lords, I am torn between the ideals that I am sure many noble Lords present wish to pursue—that is, the protection of the women whom we have in mind—a belief that my amendment is right and a belief that if I do not press the amendment to a Division there will be a little more unity in the House as regards the protection that we all wish to see. It is on that basis that I shall not press the amendment.