§ 5.11 p.m.
§ The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)
My Lords, I beg to move that the House do now again resolve itself into Committee.
Moved, That the House do now again resolve itself into Committee.—(Lord Henley.)
§ Lord Simon of Glaisdale
My Lords, I do not oppose the Motion but perhaps we may have an indication as to how far we are expected to progress tonight. I was told that the original intention was to go as far as Schedule 1, but that seems wildly optimistic. A very important Statement has taken three-quarters of an hour. It is most unsatisfactory that a Bill of this importance should be discussed by a few noble Lords in the middle of the night.
It is also unsuitable that a schedule as difficult as Schedule 1, with all its mathematical formulae, should be discussed late at night. My noble and learned friend on the Woolsack is a famous mathematician, in addition to all his other accomplishments. However, most of us find the schedule incredibly difficult. It would he unsatisfactory were it to be discussed around midnight, as seems likely. I ask the Government's business manager to make other arrangements. I see that the noble Lord the Chief Whip is ready to respond. I sit down, having, I hope, touched his heart.
§ Lord Denham
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, can never speak without touching my heart. Whether it will be touched to the extent he believes necessary is a matter more properly for discussion by the usual channels outside the Chamber. The usual channels can probably be put into operation straightaway but I do not wish to venture a guess as to what they will decide.
§ On Question, Motion agreed to.
§ House again in Committee on Clause 2, Amendment No. 10.318
§ The Lord Chancellor
First, perhaps I may thank the noble Lord, Lord Mishcon, for his great kindness in accommodating the Statement, not quite in the middle but during his observations. I am sure that it was greatly appreciated by all of us, particularly those who had other pressing engagements but who wished to be involved in the Statement.
§ Lord Tordoff
Perhaps I may endorse what the noble and learned Lord said on behalf of my noble friend Lord Jenkins of Hillhead. He had engagements to fulfil and without the assistance that was forthcoming he would have been unable to make his useful contribution to the debate on the Statement. We are grateful to the noble Lord, Lord Mishcon.
§ Lord Mishcon
Noble Lords are kind but I hope that the noble and learned Lord's reference to those who may have other engagements was not an invitation to Members of the Committee in favour of my amendment to leave the Chamber. Perhaps I may he forgiven if I start again, since parts of my previous humble contribution will perhaps have been forgotten by some Members of the Committee.
Amendment No. 10 is a paving amendment. Nevertheless it fulfils a useful purpose. The work of a child support officer is dealt with later in the Bill. But, although other definitions are given, there is no definition of a child welfare officer. Thus, it is useful to start with a paving amendment stating that,a 'child support officer' means a person exercising functions specified
in the part of the Bill which deals with the powers of the court as regards maintenance and also Clause 11. If I were to say that that was my main purpose, I should mislead the Committee. Many noble Lords are associated with what I seek. The main purpose of the amendment is to ensure that the agency which is set up under the Bill is not one to which people are compelled to go. They ought to have the alternative of going to the court in order to obtain maintenance for children. That is the object of the exercise and in my submission it is fully justified.
Under the Bill there is only one section of our community that has to go—I emphasise the words "has to go"—to the Department of Social Security in order to visit an official of the agency and in order to obtain child maintenance. That is the poorer section of our community, those who are or may be in receipt of income support.
I know that the noble and learned Lord the Lord Chancellor will appreciate this phrase. At the moment our courts are open to all. Under the Bill they will be closed to a section of our community who, in order to enlist the aid of the agency, will be compelled to go to the DSS. The only other action people can take is to enter into a voluntary arrangement under the Bill with regard to maintenance. That is completely unenforceable. No court order and none of the machinery under the Bill takes effect.
The Committee may feel that if the argument merely depends upon a principle, however valuable, it would not be enough unless there were strong reasons why a court should be the place where all the maintenance provisions apply in regard to children 319 when we are dealing with divorce cases, separated parents and so on. There is good reason for saying that there should be parallel jurisdiction of the courts and the agency within the Department of Social Security.
Before we interrupted our proceedings on the Bill, I was discussing the fundamental objective of all those who are interested in dealing progressively with family disputes. The dream is of the family court, the one court that will deal with all aspects of family life when matters unfortunately go wrong.
Before the interruption I said that I remembered the noble and learned Lord the Lord Chancellor talking about the value of dealing with matters concerning children in one court. He made that comment when he piloted the Children Bill with amazing skill through this Chamber. The noble and learned Lord would be the first to admit that his skill was in some ways assisted by the support that all Members of the Chamber gave to the principle enunciated in that Bill. There were in fact two principles: the paramount interest of the child and the need for children's affairs to be dealt with in one place.
Maintenance cannot be considered on its own. One must have consistency. The Committee will find that in Amendments Nos. 10, 55, 57, 89 and 90—those amendments are grouped together—and in other amendments that we shall table, consistency is provided for because the formula under which the agency would operate is the formula under which, in similar cases, the courts would operate. However, there are vagaries and different circumstances applying to maintenance. Maintenance is not just a matter that comes up on a computer. The Spastics Society has expressed its worries regarding children who are either physically or mentally disadvantaged. Their care is obviously a matter of deep concern to parents and to society at large.
There are various ways in which a mother or a father—I bow at once to my noble friend who advanced the cause of fathers in a way which warms masculine hearts—may make a maintenance plea which goes outside the formula. Is that only to be the job of an official at the Department of Social Security? The courts have dealt with these matters over the years and they have vast experience of them. Are not the courts to be permitted to deal with these matters? In case the Committee is in any doubt about the prohibitions of the Bill—Clause 7 has some connection with the amendments—I shall read out the Notes on Clauses regarding Clause 7. The language used is so simple that I need not take the Committee through the necessarily cumbrous language in the Bill. I am most grateful to the noble and learned Lord the Lord Chancellor for giving the Committee, and in particular myself, the opportunity of studying the Notes on Clauseswhich state in relation to Clause 7:This clause defines when the courts can make orders for the maintenance of children. The courts may not normally make orders against a person under their existing powers where the child is eligible for an award under this Bill against that person. The court can make orders for maintenance to or for the benefit of a child in the following circumstances".
The court can make such orders only in the 320 circumstances to which I am about to refer, as against the all pervading power that the courts have at present. The Notes on Clauses continue:(i) if payments for child support maintenance assessed under the Bill have been met and the parents are in a position to pay more; (ii) for the payment of educational and training expenses; and (iii) in circumstances where the payment of child support maintenance is not provided for in the Bill".
The doors of our courts are closed to people in the poorest section of our community in spite of the fact that they may want to go there and they may want an order of the court in circumstances which the Committee can well imagine. They may want an order of the court rather than an order obtained —I hope that is the right way to describe it—from a government department. However, they are barred and the door is shut. All that I, my noble friends and those who support the amendment are asking for in the amendment is the ability to choose between the two provisions.
I shall refer quickly to other reasons why the Committee should, in my submission, support the amendments. First, I have made the point that this is not just an administrative matter. Other matters are connected with it and they should be dealt with as a whole, but the DSS will not do that. I refer to such matters as residence and other matters of that kind. The Committee can well imagine that there could be cause for submissions to he made of a rather technical nature—in some cases they may even he of a legal nature —as regards how the formula should be implemented and what maintenance should be awarded in order to vary it from the formula provided under the Bill.
If one goes to an agency, there is no provision for legal aid. However, there is provision for legal aid if one goes to a court. That is another reason why people —especially those people of the category I mentioned —may want and need to go to a court. We ought to have an alternative provision for a reason which would be much better explained to the Committee by the noble Baroness, Lady Faithful!. I hope I am not anticipating the speech of the noble Baroness, but I listened to her on Second Reading with great pleasure. The noble Baroness is a much loved and very experienced Member of this Chamber. She and other speakers talked about the atmosphere of the Department of Social Security. That atmosphere is not acceptable to all. There is no blame attaching to officials of that department, or to that worthy department itself, but many people do not find the atmosphere in that department to be one which allows them to talk in a chatty way about their children's needs and to obtain appropriate advice. However, I leave that issue to the noble Baroness as she can deal with it so much better than I.
I have learnt that if one speaks for too long in the Chamber in regard to an amendment, one commits two errors. First, if one has covered all the ground already—I do not wish to do that—one bars other speakers from making points which they can make effectively. Secondly, one can so weary the Committee that it forgets exactly what the amendment is about. I do not intend to make either of those two errors. I beg to move.
§ Baroness Faithfull
I rise to support the noble Lord, Lord Mishcon, on this amendment. He pointed out that a number of us stated on Second Reading that we would prefer the agency not to be connected with the Department of Social Security. We would prefer it to be administered by the courts. However, after many years in the Chamber I have learnt—the noble Lord, Lord Mishcon, has referred to this—that one does not move a wrecking amendment. To propose an amendment in favour of the courts would be a wrecking amendment. Therefore I am taking what one might call the second rung down. The first rung would be a provision seeking to base the agency in the courts. I still believe we had a magnificent opportunity in the Children Act 1989 to establish a move towards family courts. However, this amendment gives people a choice of either going to an agency which is connected with the Department of Social Security, or going to a court.
In order to help us all to make up our minds, perhaps I may ask my noble and learned friend the Lord Chancellor several questions. First, a number of us are not quite sure how the agency will work. We do not know its structure. I may be right or I may be wrong but I thought that a child maintenance officer would be located in each social security office to help people if maintenance was not forthcoming and see whether they could have income support. Is there to be a child maintenance officer in every social security office? Or are they to work away from social security offices? It is important to know, because, as the noble Lord, Lord Mishcon, said, and as I pointed out at Second Reading, people resent going to social security offices.
My second question relates to the fact that social security offices have what are called reliable relative staff dealing with child maintenance. What has happened in the past? Have the reliable relative staff not been able to do the work because it has grown so much, or have they had so much other work that they have not been able to deal with maintenance? It would be helpful to have that information.
It would also be helpful to have some figures. How many people caring for children are receiving income support under the social security system where the husband is not paying maintenance? Has that figure grown considerably, and is that why the reliable relative staff have not been able to deal with the matter?
I agree with the noble Lord, Lord Mishcon, that in such situations it is very serious for people not to have a choice. If the agency is to be based in the social security office the option of the court must also be available. That choice must be available for carers who do not receive maintenance, whether the carer is independent and does not receive social security or the carer is receiving social security.
I support the amendment, and I should be very grateful if my noble and learned friend could answer my questions.
§ 5.30 p.m.
§ Lord Simon of Glaisdale
The amendment puts forward what is admittedly a compromise. Most of us were counting on this opportunity to establish a system of family courts. We derived great heart from what my noble and learned friend said during discussion in this House of a Commons amendment to the Courts and Legal Services Bill when he seemed definitely to encourage the hope of a system of family courts. As the noble Lord, Lord Mishcon, said, the proposal in this Bill cannot be regarded otherwise than as a step away from that. However, the amendment provides a compromise. It gives concurrent jurisdiction. It would make it easier to marry the system set up in the Bill with a system of family courts when that is ultimately favoured.
At Second Reading I asked my noble and learned friend whether the agency could not ultimately be married to a system of family courts. He was cautious but not entirely discouraging. I would, however, ask about the timing. At the moment family courts are belatedly under consideration. They were first proposed in the mid-1950s and have been discussed continuously ever since. The Government now have them under consideration. I venture to ask my noble and learned friend when the view of the Government will be known.
I ask particularly because I understand that the agency will not be operating properly until April 1993. I can be corrected if I am wrong about that. That would seem to give ample time for closer integration. What is proposed by the noble Lord, Lord Mishcon, would help such integration.
The amendment has been so excellently proposed and seconded that I would not be justified in going over again what has been said. However, there is one other aspect to which I would like to advert. It is quite impossible to deal with child maintenance—either by means of a formula or the discretionary decision of a judge—separately from the maintenance of the wife who will generally be the custodian. Yet the maintenance of the wife remains to be dealt with by the magistrates' courts. It is only the maintenance of the child that is dealt with by the agency.
At Second Reading I ventured to ask my noble and learned friend how a typical case would work out under the formula. He helpfully spelt out one example, which I believe is example 3 in the White Paper. I see that he nods. I gave him notice that I would raise the point.
In example 3 the father is on less than average earnings (which will be typical), there are two children under five, and, not surprisingly the mother who is living with the children is unable to work. A computation was made and the maintenance for the two children, if my memory serves, is £46. No allowance is made for the maintenance of the mother. Perhaps my noble and learned friend will help the Committee by saying how that particular problem is to be solved.
For that reason, as well as the reasons so admirably expressed by the noble Lord, Lord Mishcon, and the noble Baroness, Lady Faithful], I venture to support the amendment.
§ The Lord Chancellor
It may be helpful if I say something at this stage, without in any way intending to foreclose the discussion. I see that the noble Lord, Lord McGregor of Durris, wishes to speak. However, it may be helpful if I set out the position as I see it.
The noble Lord, Lord Mishcon, has explained clearly that the amendment is a paving amendment for the proposal followed up in later amendments that the formula should be applicable either in the court or in the agency so that the person seeking the order has an option. That is immediately a matter which will cause difficulty, as I shall be able to show.
We have the option of procedure in court in relation to certain matters over and above the formula but the formula will be applicable in our proposals only through the agency.
§ Lord Simon of Glaisdale
Is my noble and learned friend right about that? As I read Clause 7(5) the court itself may in certain circumstances have to apply the formula.
The Lord Chancellor: The general proposal is that the formula will be applied by the agency and the court will deal only with other matters over and above that which is provided for in relation to the agency. Perhaps first of all I may say—some noble Lords may be able to comment on this point—that I am committed to the principle of doing what we can to make the family justice system a coherent and unified system and to have a court structure which is appropriate for the questions for decision which the substantive law leaves open.
The first step in that direction—I believe that it is a big step—was taken in the Children Act which, as the noble Lord, Lord Mishcon, said, received very broad support in this Chamber. It is now on the statute book and, as I said earlier, we hope it will he implemented in October this year. That provides a uniform system of law applicable in all the courts from the level of the magistrates' court—the family proceedings court which will be staffed by magistrates—through the county courts to the Family Division of the High Court of Justice, so enabling a case to be dealt with at an appropriate level of court within the structure, depending on its complexity and other factors which will be set out.
I do not accept for one moment that the establishment of the agency is a step hack from that. I suggest that courts are very suitable for determining matters that require the attention of the judiciary. I include in that, of course, the magistrates' level as well as the professional judiciary. However, I should think it a little hard to claim that the judiciary are the best people to apply a complicated formula. As was mentioned, I myself have had some experience of courts and formulae and I do not believe that courts are the best authorities to apply complicated formulae to particular states of fact.
Modern technology in the form of computers is a way forward in the application of complicated formulae. The noble Lord, Lord Mishcon, referred to computers in a way which gave them a place but sought to minimise that place in some respects.
324 However, when one has to apply a formula I believe that a computer is a very good way to do it; if, of course, one feeds in the appropriate facts.
Therefore, as part of the policy-making unit which came forward with this Bill, I took the view that it would be best to have a child support agency with the formulae. I am very much strengthened in that conclusion by a letter dated 11th March, which I received the day before yesterday, from the chairwoman of the National Council for One Parent Families. Surely those people, more than any others have the experience. She writes:As Chairwoman of the National Council for One Parent Families I wanted to let you know that our Council is in principle in support of the Government's aims in the Child Support Bill".
She is not alone in that because most noble Lords who spoke at Second Reading said the same. She goes on:As a recently practising family solicitor with many years experience of matrimonial work, I have been forced to the conclusion that the whole issue of child maintenance must be removed from the courts for both assessment and collection purposes. The Courts have self-evidently failed to ensure that reasonable levels of child maintenance are paid by absent parents on a regular basis. I very much hope that the combination of the proposed Maintenance Formula and the Child Support Agency will overcome the frustrations and anxiety experienced by so many lone parents in securing support for their children.Our Council does have criticisms of some aspects of the Bill as it is currently drafted".
She goes on to deal with other matters, to which we shall come later, such as what she calls,the punitive proposal to deduct benefits from mothers who are unable to co-operate".
The only reason that I do not read all the letter is that I wish to save time.
§ Lord Mishcon
I am sure that the noble and learned Lord is doing so. However, it struck me that this is a personal letter from the lady who occupies the chair—I cannot bear to use the word "chairwoman"—of that organisation about her experience personally as a solicitor. Is the noble and learned Lord saying that that is the view put forward on behalf of the association? I do not believe that it is.
§ 5.45 p.m.
§ The Lord Chancellor
The lady told me in the first sentence of the letter which I read that:As Chairwoman of the National Council for One Parent Families I wanted to let you know that our Council is in principle in support of the Government's aims in the Child Support Bill".
She then goes on to make her statement and I read the words that she used. I leave it to noble Lords to take their own view about it. After the passage that I omitted for the sake of brevity, she continues:I realise the problems outlined are not inconsiderable ones, but I am convinced that they can be overcome within the framework proposed by the Government".
That is the problem about punitive effects and so on. She says:We cannot agree"—
she says "we"—with those who in their campaign for the Family Court view the Child Support Agency as an insuperable obstacle to its achievement. I share the aim of establishing the Family Court"—
she returns to using "I"—325but my own view is that removing child maintenance to an administrative agency is likely to hasten its advent.Our Council sincerely hopes that the strong voices of those now in opposition to the Child Support Agency as the debate is heard in the Lords will not diminish the Government's resolve to implement a solution that remains the best hope for lone parents and their children that the absent parent's contribution towards their family support can be attained".
There may be a question of construction involved in the letter but at the very least I adopt the views of a recently practising matrimonial solicitor very interested in this area. I venture to think that is the minimum that one can take out of that. The last paragraph to which I referred expressly refers to "Our Council".
§ Lord Mishcon
I did not mean to amuse the noble and learned Lord and other Members. The lady concerned was expressing a view, as she says, as a solicitor and practising solicitor. The Law Society, which represents the whole profession, is behind this amendment.
§ The Lord Chancellor
Of course I can distinguish very clearly between the interests of the Law Society in an amendment of this kind and the interests of a practising solicitor who has devoted her attention to the interests of one parent families. The interests of the Law Society and that council may not always be coincident.
Given those views, I have no qualms about recommending the agency to the Chamber. I am strengthened in my concern not to see its field of operations in assessing, collecting and enforcing maintenance whittled down or compromised.
Before I turn to the detail of the amendments, it may help if I explain the nature and size of the task that we shall face in running the new system. I shall try to answer some of the questions put by my noble friend Lady Faithfull. It is estimated that once the new system is in full operation 3 million cases a year will be dealt with. There will be 1 million new cases and 2 million annual reassessments. In many of those cases, and especially those concerning reassessment, there will be no other family matters before a court. Indeed, the only other link that a caring parent may have with the new maintenance system is in relation with its interaction with the benefits system. For many people therefore an agency based on the Department of Social Security will provide a one-stop shopping service.
I refer to more detailed figures. There are now over 1 million lone parent families of which over 700,000 are on income support. In 1989 there were 16,000 applications granted in the magistrates' court, 40,000 applications for variation of maintenance orders, and 85,000 proceedings for enforcement. That gives the Committee an impression of the extent to which the magistrates' courts are presently used compared with the total size of the problem.
I understand the argument that where that is not the case, and where there are related court proceedings, it may seem convenient to give the court the power to operate the formula. However, there are a number of reasons why I do not believe that that would be wise. First, there is a danger, and it is a grave danger, that by burdening the court with new tasks 326 such as tracing absent parents, investigating the parents' means and other relevant circumstances, and with a more active role in collection and enforcement, we may divert the courts from concentrating on their unique contribution to the family justice system; namely, providing a judicial resolution to matters in dispute.
It may help if I give the Committee some idea of how such a situation could potentially increase the workload of the courts. At present county courts and magistrates' courts hear about 185,000 applications for maintenance or its variation in a year. Even if they took only one quarter of the burden of the 3 million cases estimated under the new system, it would nearly quadruple the number of cases with which they would deal. While the formula might simplify the assessment and there would be some relief in enforcement, the job of investigating means alone could make the manpower demands in each case as high or even higher than the present. The plain risk is that the courts would be swamped.
The courts will start on the new system under the Children Act in October of this year. The very last thing that I want—I am interested in making sure that its provisions work—is for the courts to be swamped by work in which they have no expertise; namely, the application of detailed formulae to maintenance, such as is contemplated in the Child Support Bill. Obviously a member of the judiciary is well capable of applying a formula if he or she has to do so, but in my view it is not the natural work for a judicial person.
Secondly—and this adds weight to what I have just said—the court's judicial function will not be needed, save in a few cases. The creation of a formula eliminates the need for any discretion in assessing the amount of child maintenance. It is unnecessary for the courts to continue to be involved in that part of family law in the great majority of cases where the calculation can be done administratively. The courts need only to be involved if a question arises requiring the use of their discretion. Those questions will arise where the parents have an income above that to which the formula applies, where education costs are involved, or where the child is outside the jurisdiction of the formula and the agency—for example, in relation to a step-child. Elsewhere, and certainly for the basic amounts required to keep a child, it seems right to leave all matters of child maintenance to the agency, subject of course to a right of appeal on law or fact to an independent adjudicatory body.
I have said already that we intend to implement the Children Act. It will involve major changes. I do not believe—and I ask the Committee to take this seriously into account because to me it is a very important matter—that we should do anything under the Bill to jeopardise the chance of success of that first step towards unifying the family jurisdiction to which I feel great personal commitment as I believe does the Committee.
Important questions of effectiveness and efficiency are also involved. The tasks of investigating means, making mathematical calculations under complex regulation, and so on, are ones with which the Department of Social Security is already experienced 327 and adept. It seems sensible to build on and use that expertise. rather than to involve the courts which have no relevant experience, if our aim is to ensure an effective and quality service for parents and children.
Further, I doubt that fragmenting the operation of the new system between the courts and the agency could provide a cost-effective or satisfactory service to parents or children. In effect, there would be numerous outposts in county courts and magistrates' courts in addition to the agency's offices and a good deal of duplication and waste. Concentrating all the services available under the Bill in the agency would avoid that.
I do not see the creation of the agency, with sole responsibility for the new system, as inconsistent with the Government's commitment to rationalising and improving the family justice system. Part of that programme aims to ensure that the limited resources of the courts are concentrated on what they uniquely can contribute to the family justice system; namely, the resolution of disputes where an authoritative judicial decision is needed. The agency will carry out what will largely be administrative tasks in tracing parents, investigating their means, and in collecting and helping to enforce maintenance. That will allow the courts to concentrate on their essential adjudicatory function.
I find it slightly bewildering that interested bodies, and people who are willing or positively enthusiastic to see questions about the upbringing of children sorted out by bodies outside the courts, except where a resolvable conflict persists, should be unwilling to see a similar approach taken to maintenance where the task is of a much more administrative nature.
Perhaps I may refer to the details of the amendments later if the noble Lord feels it necessary. At present I do believe that he has not so indicated but has relied on the principle of the series of amendments.
I have sought to intervene at this stage simply to put those considerations before the Committee. I regard them as extremely important. I believe that the Committee should consider whether, if one is setting up a new body to deal with a particular case load, it is right to introduce what will essentially be a new, difficult factor into the assessment of the resources required to meet it.
I have given the figures that my noble friend Lady Faithfull requested. The precise arrangements for the child support officer are matters to be considered. It will certainly be possible to contest the child support officer by means of the social security offices. However, we shall do what we can to concentrate the work of application of the formulae to the facts of a particular case in such a way as to make it as effective as possible.
My noble and learned friend Lord Simon of Glaisdale asked me about the position with regard to the maintenance of a wife. It is difficult enough to devise a formula for a child in relation to social security benefit. To devise formulae for the wife is extremely difficult. We have not found it possible to do so at this juncture.
§ Lord Simon of Glaisdale
I cannot have explained myself properly. My difficulty is this. I can see that one does not want to make a formula for the maintenance of the wife. I asked how the maintenance of the wife fits in with the formula generally and in particular with example 3 on page 12 of Volume 1.
§ The Lord Chancellor
There is an element of provision for the wife as the carer in the formula provision which deals with the maintenance of the children. So far as concerns the wife's claim for spousal maintenance, that would have to be dealt with apart from this situation. In many cases for one reason or another there is no question of spousal maintenance.
I strongly commend to the Committee our view that we should provide the agency as a distinct body to assess maintenance in respect of the relevant children on the basis of the formula. We should make it necessary for such work to be done by the agency and not provide the option of the court doing so. That would unnecessarily split the workload with advantage to no one and would put upon the courts a burden which at the time in question they would not be well equipped to meet. In any event, it is not the kind of work for which the courts are primarily suited.
§ 6 p.m.
§ Lord McGregor of Durris
I am grateful to the noble and learned Lord for reading the letter that he received from the chairman of the National Council for One Parent Families. I was a president of that council but the chairman who took office 31 months ago has not favoured me with a copy.
I have two comments to make about the letter. First, I welcome the Government's somewhat novel conversion to approving the views of the national council. Secondly, even as a previous president of the national council, I should not seek to claim that it possesses final wisdom in such matters and that its views must be accorded a special precedence. It is to be noted that, almost alone among the large number of voluntary organisations in this field which have briefed Members of the Committee, the national council supported the Government's proposals. I understand that nearly all the other bodies were in opposition.
Much has been said about the issue and I shall not take up the time of the Committee by repeating it. However, I wish to make one point arising from what was said by the noble and learned Lord. He stressed that if the courts were to retain jurisdiction for maintenance, they would not have the resources to deal with the numbers of people involved. But they would perfectly well have the resources if the considerable expenditure which the Government propose to lavish on the new agency were provided for the courts in order to improve their procedures. The trouble all along in this field has been that the courts in order and the social security authorities have been at arm's length, have treated themselves as separate institutions and have rarely co-operated.
One of the central reasons why the National Council for One Parent Families recommended a 329 family court—that is apart from the classless issue mentioned by the noble Lord, Lord Mishcon, and the hope of getting rid of our three systems of family law and dealing with the situation in which social security law, like the poor law before it, operates as a system of family law—was that under the control of the court would be the deployment of all the welfare services available. The court would have its own staff who would bring those concerned in touch with all the welfare services outside, including the conciliation services. In particular, under the control of the court would be the closest co-operation between the social security authorities and the court.
It is no use saying that that cannot be achieved, that such a system could not work and that it would take up too many resources. If the resources that are to be given to the agency were given to the court we could perfectly well have such an arrangement. It would permit the choice on which the noble Lord, Lord Mishcon, and the noble Baroness, Lady Faithfull, have laid so much stress; that of whether the cases are to be handled by an administrative procedure run by the DSS or by the courts.
I can speak with knowledge of people's attitude towards the social security authorities, as did the noble Baroness, Lady Faithfull. During one period of my life I spent a great deal of time working in court collecting offices, courts, supplementary benefit offices and talking to those administering such places. The atmosphere, the furnishings and the facilities of the magistrates' courts, through which thousands of our fellow citizens were and are passing in litigating their matrimonial affairs, were miserable in the extreme, uncomfortable and dirty. However, they were never unfriendly. The staff of the courts worked no doubt as untrained social workers but they exhibited a proper relationship of assistance towards the people using the courts. I regret to say that that was not the case in supplementary benefit offices, and I doubt very much that it is the case today. I hope that the noble and learned Lord will realise that the great majority of people whom he is consigning to the new agency will bitterly resent the procedures and processes to which they will be subjected.
Many of the other arguments on the subject have already been made. I deeply regret the noble and learned Lord's unwillingness to consider the grounds upon which the amendment has been tabled. It was not put forward obstructively but in order to help. It was put forward by all who have spoken on it as a means of retaining what I regard as being of fundamental importance; it is that family matters should be handled by a judicial institution with proper procedures and a high degree of judicial impartiality. It is perfectly possible to achieve efficient maintenance-determining procedures and at the same time that vitally important element.
§ Lord Houghton of Sowerby
At an early stage in the Committee we are being plunged into a mood of deep anxiety about whether we realise what we are being asked to do. The size of the problem and the whole area of activity under this Bill raise questions of considerable social and political significance.
330 We are asked to create a new bureaucracy, to establish a new creation—that is, the conversion of what hitherto has been an obligation between spouse and spouse into a public debt collectable by the agency and distributed in benefits according to the formula upon which the levies are made. In the hands of the agency is placed the equipment of pursuit for recovery of that public debt which not even the police possess. Only the tax gatherers levying and recovering public revenues have the same power as will be in the hands of this agency for the administration of this highly complicated work.
It is perhaps no wonder that the Australians have grafted this problem on to the taxation system. It would be worthwhile to discover more about how they have done that. I recall that in Crosland's time, some of us came together to work out a scheme of minimum income guarantee. That was to be operated through the taxation system. If there was to be a slogan in the matter, it was "pay as you earn; receive as you need". One part of that was the extraction from the taxpayer and the other part was a benefit distributed through the tax system to those whose incomes needed augmenting.
There were many problems about that. One problem which we came up against was in the time of the Chancellorship of the noble Lord, Lord Barber. We went into the scheme in great detail and held 22 Select Committee meetings. We were faced with the problem of how to use a taxation system for this and yet give the benefit to the mother. It was the demand of the women, as expressed through the various organisations, to have the benefit for themselves and for their children in their hands as a right. However, it seemed that it was impossible to find a satisfactory scheme on the lines which we originally proposed.
It seems to me that here we have a means to an end which is out of all proportion to the problem which we are asked to solve. I am groping for the coherence of my thoughts on a situation which offers most disturbing reflections for us this weekend.
However, if we regard the ends as justifying the means, then we are placing this debt higher in social, political and economic terms than the revenues to the state itself. That is what it amounts to. We only justify the means of recovery by converting the obligation of the spouse to an obligation of the state. Therefore the state supervises the spouse's assessment and distribution to the recipient as if that were part of public administration. That is an extremely novel and in some ways dangerous concept to be creating in our social benefit and taxation system.
As regards recovery and the means given to the agency to find and trace people and to impose the formula on them, it would seem very strange if we give powers to the agency which we do not give to the police. Indeed, so much of this is reminiscent of the recovery of public debt by distraint, by prosecution and by other statutory means. How will that be borne? What kind of political reactions will there be? Who will be answerable to Parliament for what happens in the agency? We shall want to know a great deal more 331 about the agency before it can be entrusted with this enormously explosive new feature of our social and marital life.
What are the implications of this scheme on marriage? What are its implications on the reproduction of children? Who is going to have children? Where are we getting to? It is almost impossible to believe that this Chamber and this Parliament will even consider this scheme without a further in-depth study of the problem which has opened out to us.
This is the first round of the challenge to the bureaucratic powers of the agency and the bureaucratic manhunt which this Bill will set in train. We should pause to consider what it is that we are asked to do. This is an inheritance from the matriarch of the Conservative Party which was handed down as a form of discipline on defaulting fathers who must not be allowed to escape their responsibilities. That has now been expanded into machinery, means, staff, chief child support officers and child support officers. In a few moments we shall consider what is the meaning of the word -support" in this context and the many other problems which will arise. Other assaults are still to be made on the powers which it is proposed to give to the agency which is to conduct this highly contentious and delicate task.
§ 6.15 p.m.
§ Earl Russell
I have been very much struck by the amount of modesty which has come over the Committee during the debate on this amendment. With all his experience of the courts the noble and learned Lord argues that the best way to administer the scheme is not through the courts. However, the noble Baroness, Lady Faithfull. with all her experience of social security and my noble friend Lord McGregor of Durris with all his experience of social policy argue that the Department of Social Security is not the best department to administer it. It strikes me that nobody is in a great hurry to take on the administration of this formula.
I have listened with great care to the debate. It seems to me that the proposers of the amendment have made out their case. Three points particularly stick with me. The first is the point made by the noble and learned Lord, Lord Simon of Glaisdale, that it is impossible to separate the maintenance of the child from that of the mother. That is a point to which I hope to return if we reach the debate on the proposal to disentitle mothers to benefit.
The second point which has influenced me is that I share the misgivings of the noble Lord, Lord Mishcon, about excluding a large number of our citizens from the courts. The third point is that I listened with great care and attention to the noble and learned Lord the Lord Chancellor. However, I fear that he brought out extremely clearly those features about the formula which cause me anxiety.
The White Paper said that the formula was to allow virtually no need for the application of discretion. The noble and learned Lord went even further. He said that it eliminates the need for any discretion. I believe 332 I understood him correctly but will willingly accept correction if I did not. I am not sure that that aim in any administrative function is quite in the real world. When I arrived at Yale I was told that all Yale rules were construed to contain the word "normal". It is difficult to administer anything without discretion. It is particularly difficult in an area of such raw human emotion as exists following the break-up of a family.
One of the reasons I believe it is a good amendment is that if there are two alternative routes for those involved in the unfortunate situation, it will inevitably mean some variation between the remedies that might be applied. The alternative must mean the creation of some area of discretion, however small. In the real world that is to be welcomed.
§ Baroness Elles
One of the problems of taking part in debates in your Lordships' Chamber is that when one hears opposing views one is not sure what one will end up with. Having heard the brilliant advocacy of the noble Lord, Lord Mishcon, I felt I was totally in agreement with what he said, until I heard my noble and learned friend the Lord Chancellor. When he read out the letter from the chairwoman of the National Council for One Parent Families it reminded me of a survey I had undertaken—admittedly some years ago —dealing with one parent families. When asked what was their worst problem in coping with shortage of funds and how to get through the week, I regret to say that 25 per cent. said that it was had service from solicitors.
Today we have spoken about the courts and the DSS; nobody has said how we arrive in court and who looks after us when we get there. If there were 10,000 solicitors like the noble Lord, Lord Mishcon, there would be no problem. However, there are not; unfortunately, there is only one. He certainly cannot look after all the cases that have to come before the courts.
I regard the setting up of an agency certainly not as an ideal but perhaps as an answer to the objectives we all share. If my noble and learned friend can confirm that it would in no way impede the setting up of a system of family courts, and that it would be regarded as an administrative and executive side of the function of those courts, the idea may be more acceptable to many other Members of the Committee.
I refer to the problem of transferring the number of cases of single parents on income support or family credit under Clause 5 and how they will be dealt with immediately by the agency. Is a transitional period to be allowed? I found no provision in the Bill for that. I do not see how the setting up of such a system and the provision of child support officers would allow around 770,000 maintenance cases to be dealt with immediately. They may involve review or tracing situations.
The problem of the surrounding ambiance of the courts and the DSS is surely something that the Government could attempt to improve. They are both disgraceful. Often they are dirty and unpleasant. The conditions in which people must wait are appalling. They cannot obtain a cup of coffee and there are no 333 facilities for their children. If we are to set up the system suggested we must ensure that we provide the standards people expect today.
If we are to provide people to do this work—it looks as though the provisions will be accepted anyway—we must ensure that they are trained and are sympathetic to those who consult them, particularly women with children because they are the people we are talking about. They are the ones who become distraught, worried, cross and unhappy. Therefore, it is the character of the child support officer who will play a leading role in whether or not the agency will function successfully.
§ The Lord Chancellor
The noble Lord, Lord McGregor of Durris, in beginning his observations, pointed out that these amendments were tabled in a constructive and helpful spirit. I do not believe that anything I said was intended to contradict that; quite the opposite. Amendments proposed by the noble Lord, Lord Mishcon, are never other than constructive, though from time to time I find myself not in full agreement with some of them. I accept that the amendments were tabled in a constructive spirit and I have no doubt that Members of the Committee will feel that I am endeavouring also to be constructive.
I am extremely committed to the improvement of the family justice system so that we provide a uniform system of administration. The Bill is a good step in that direction because it provides that matters which may be dealt with administratively are dealt with administratively and efficiently on the basis of a formula.
The noble Earl, Lord Russell, said that I had suggested that the application of the formula would he without discretion. That is what I said and what I believe to be appropriate; namely, that where the formula applies it should be applied. Discretion exists in areas not covered by the formula; for example, additional payments in respect of certain heads mentioned in the Bill. The purpose of the formula is that once we find the relevant facts it will provide the answer.
I accept that regulations in Yale may be associated with the word "normal". However, if one wants a formula for calculating maintenance and that is achievable, it must be done on the basis I mentioned. It is not a normative rule, which I assume the rules in Yale to which the noble Earl referred were. It is an administrative system for obtaining an answer. It is a mathematical formula without any norm in it. The idea is that it should apply where the answers are put in.
The noble Earl mentioned the point about excluding some of our citizens from the courts. There is nothing better than suggesting to our citizens that they should not go to court if it is possible to obtain the service elsewhere. Many lawyers spend their lives inviting their clients not to litigate. I am sure that some Members of this Chamber have experience of doing just that. Some matters are excluded from the courts. For example, the matters that are referred to industrial tribunals are excluded. It does not mean that citizens are excluded. It means that certain subject matters are dealt with more appropriately elsewhere.
334 The subject matter of maintenance derived from a formula is better dealt with by an administrative authority such as we are proposing.
In many cases there is support for the child, which is not the same in respect of different obligations as the support which the mother receives. The many cases with which the agency will have to deal will mean there is no question of support for the mother from the same person as has the obligation to support the child.
The noble Lord, Lord McGregor of Durris, suggested that the resources made available to the agency, if made available to the court, might produce the same services as the agency. The problem with that is that it provides choice. The only way in which that suggestion could be advanced would be if the same resources were provided to the court and to the agency so that they could both provide the service and give an option to anyone who wanted it. That clearly illustrates that what the amendment proposes is to double the requirement which would otherwise exist.
I turn next to the question raised by the noble Lord. Lord Houghton of Sowerby, with regard to who would be responsible to Parliament for the agency. The answer is the Secretary of State for Social Security. He is the person under the Bill taking on the responsibility of providing the services. There is no separate mention of the agency. He will be responsible to Parliament for that. The staff of the social security offices are accustomed to that kind of work. The 2,000-odd that we are proposing to transfer from the present department to the agency represent the relative officers under the present system and therefore they have experience of the situation.
The noble Lord, Lord McGregor, mentioned his experience of social security offices. I may be wrong, but I had the impression that it was not yesterday that he was doing the work to which he referred. Quite a lot of improvement has taken place in the way in which social security offices have dealt with their business in the interim. Anything that we can do to improve them further is surely well worth doing. The point is that very many of the people who will have recourse to the agency will be those who already go to the Department of Social Security. I hope that the Committee will feel that we have had a full discussion of this matter, but that it will not give effect to this constructively proposed amendment.
§ 6.30 p.m.
§ Lord Mishcon
The noble and learned Lord has dealt perfectly fairly in argument with this amendment. But that does not mean that on an important matter of principle he has covered the main points that we were putting forward. It is a fixed formula. It is no good arguing that there is no discretion in regard to a formula, and then saying that it is such a complex matter to apply the formula or even to work it out, that officials of the court would be unable to do it. If it is a fixed formula it must be one which immediately fits in with the computer which I described previously, but which necessarily is not always applicable to family cases.
Another principle is that all our citizens should be able equally to enter the portals of our courts. In 335 answer to that the noble and learned Lord said that there was some similarity as regards tribunals set up to deal with special cases. There is no one who can deal with an employer-employee case which is defined as being within the province of the tribunal however wealthy or privileged he may be. That is the tribunal to which the employer and the employee has to go. I wonder how the noble and learned Lord regards it as being perfectly appropriate and proper that someone who falls outside the income support or the credit level is able to go to a court and get an arrangement worked out, however complicated it may be, and to have the matter dealt with by the same judge who is dealing with wife maintenance and other such matters.
If it is so good to have these matters dealt with by an agency, why do we not make it a big one and spend more than £30 million on it? It would save the court a great deal of difficulty as regards its administrative work. Let everybody who has any problem concerning child maintenance go to this glorified Department of Social Security and visit the portals of its agency with great pleasure, possibly leaving a rather extravagant car outside. That is not the way in which we have ever administered our justice. Instead of giving the Committee the tribunal as an example, I wonder whether the noble and learned Lord could give me an example where a matter appertaining to the rights of a child which are to be maintained, or any parallel matter, and where those who are better off are able to go to court but where those who do not have the wealth of the other party are debarred from doing so.
The noble and learned Lord would have had a much better case if he had said that our argument was that the agency was no longer to operate and that we had come forward with a wrecking amendment because we did not want the agency. In our amendments we have said that those who wish to go to the agency will do so, but they have the right to go to court if they wish to do so. They have the rights of all other citizens. That strikes me as being such an important principle that at this hour of the evening I am not prepared to risk that important principle by taking this matter to a Division. It must await a further stage of this Bill for us to do so. In the meantime I hope that the Government will think again and accept that these amendments are not only constructive but advisable. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 11 not moved.]
§ Clause 2 agreed to.
§ Clause 3 [Child support maintenance]:
§ [Amendment No. 12 had been withdrawn from the Marshalled List.]
Lord Simon of Glaisdale moved Amendment No. 12A:
Page 2. line 29, leave out ("person with care or absent parent with respect to whom") and insert ("applicant for").
The noble and learned Lord said: This is another small probing amendment to see if we can shorten and simplify the wording of this distinctly verbose Bill. I ask the Committee to look at Clause 3(3) on page 2 of the Bill, line 29. At the moment the provision reads:
Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care or absent parent with respect to whom the assessment was made applies to him under this subsection, arrange for—".
>My proposal is that the subsection should read,
the Secretary of State may, if the applicant for the assessment ... applies to him".
§ That is very much shorter and it means exactly the same thing. I believe that I know why the draftsman has avoided that simplicity. There are two applications. However, there is no room at all for confusion. I beg to move.
§ The Lord Chancellor
Under Clause 3, either the person with care or the absent parent may apply to the Secretary of State for an assessment of child maintenance in respect of a qualifying child. The absent parent may wish to have his obligation assessed under the formula and may apply. Clause 3(3) as it stands will allow either party to apply for the collection or enforcement of the maintenance liability.
The effect of this amendment will be to restrict application for collection or enforcement to the party who initially applied for the maintenance assessment. If this amendment is made effective, if I have understood it correctly, the result will be that if the absent parent applies for the assessment to be made, and it is made, the caring parent will be unable to enforce it. That is not quite right. Clearly, the fact that an absent parent for whatever reason made an application for an assessment of his or her maintenance liability should not prevent a person with care from seeking to have the due amount of maintenance collected or enforced if payment of the assessed amount is infrequent or incomplete. It is also intended that the absent parent should have the right to apply for these services, although clearly it is unlikely that he or she will be applying for enforcement action. It is, however, possible that an absent parent may wish to make use of the collection powers held by the Secretary of State. This could occur, for example, where the person with care was deliberately making life difficult for the absent parent, who genuinely wished to meet his responsibilities for his children.
This is certainly a matter which was worth looking at. I should like to thank my noble and learned friend for raising the issue. I hope I have given a reasonably satisfactory answer.
§ Lord Simon of Glaisdale
It is very difficult to say that any answer from my noble and learned friend is unsatisfactory. All I can say is that it did not at all meet the point that I made. Instead of the cumbersome phrase,the person with care or absent parent with respect to whom the assessment was made",
I ventured to use the word "applicant". The applicant is the person who made the application in line 29. There is no reason at all why that shortening should not take place.
Again, I must apologise for the late tabling of the amendment. In this case, as in the previous case, I thought it was just possible for my noble and learned friend to argue that there might be some doubt which ought to be resolved. In this case it seems to me, if I 337 may say so with respect, plain beyond peradventure. I hope that my noble and learned friend will consent to look at the matter. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 12B not moved].
The Lord Chancellor moved Amendment No. 13:
Page 3, line 3, leave out ("in particular").
§ The noble and learned Lord said: With this amendment I should like to speak also to Amendments Nos. 37 and 53. These are minor drafting amendments. On consideration we have concluded that the words "in particular", where they are used in the three places mentioned in these amendments, are unnecessary. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 14 not moved.]
Lord Carter moved Amendment No. 15:
Page 3, line 18, at end insert:
("( )In making any decision under this Act which affects an individual child the Secretary of State shall give paramount consideration to the welfare of the child.").
§ The noble Lord said: With the leave of the Committee, the change to our programme earlier in the day because of the Statement has meant that my noble friend Lady David cannot be here to move the amendment. If I may, I shall move the amendment in her place.
§ The amendment is central to the Government's claim that the Bill is intended to ensure that "children come first". If accepted it would mean, for example, that the proposed child support agency, which acts under the authority of the Secretary of State, would be acting unlawfully if it could be shown that a child suffered as a result of a parent losing welfare benefit under Clause 22. I am sure the noble and learned Lord will recognise that the wording of the amendment is taken from Section 1 of the Children Act, which he mentioned when he replied earlier to the first amendment. That section places courts under a similar duty when determining any question with respect to the upbringing of a child or the administration of a child's income.
At Second Reading the noble and learned Lord claimed that the Bill is a natural adjunct to the Children Act, because like the Act the Bill is,
informed by two central principles or objectives, namely, the giving of priority to the welfare of the child and the primary responsibility of parents for securing that welfare even where the parents' own relationship has broken down". —[Official Report, 25/2/91; cols. 773–4.]
I draw the attention of the Committee to the United Nations Convention on the Rights of the Child, which the United Kingdom has signed and intends to ratify. It states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of a primary consideration".
§ The amendment has a straightforward purpose. It is to ensure that the paramountcy principle incorporated into the Children Act 1989 is applied in all decisions concerning children's upbringing. Any decision affecting a child under the Children Act is subject to 338 the requirement to ensure that the child's best interests will be served by the decision. It is almost self-evident that a Bill introduced with the aim of improving child support arrangements should also adhere to that principle. It should be spelt out on the face of the Bill.
§ However, as the Bill stands, there are some aspects which appear to threaten the best interests of children, particularly those which impose responsibilities on parents which may increase stress, tension, and even danger within the home—for example, a violent parent—which, if the person with care is in receipt of income support, offer no financial benefit to the children at all, although they reduce government expenditure by some £400 million.
§ Those with responsibility for the implementation of this measure should therefore be expected to consider the child's welfare before deciding whether and how to pursue their duties as set out in the Bill. That is the objective which the amendment aims to secure in order that children's interests will properly be protected by the provisions of the Bill. I beg to move.
§ 6.45 p.m.
§ Lord Renton
At the beginning of the Children Act 1989 there is a most excellent purpose clause which says in effect—I am paraphrasing—that the interests of the child shall be paramount in regard to every decision made under the Act. If this Bill were to say —and I do not find it anywhere—that it is to be read as one with the Children Act 1989, it would not be necessary to repeat that excellent purpose clause at the beginning of the 1989 Act. That would have been one way of achieving what the noble Lord, Lord Carter, very properly has in mind. As we do not have such provision in the Bill, a better way of receiving what the noble Lord has proposed on behalf of the noble Baroness, Lady David, would be to have it as a subsection under Clause 1, coming at the very beginning and therefore giving it that importance. However, having said that, I shall be interested to hear what my noble and learned friend the Lord Chancellor has to say. We should have a provision stating that the Bill is to be read as one with the 1989 Act or something earlier on the lines proposed by the noble Lord.
§ The Lord Chancellor
The amendment would require the Secretary of State, when making a decision affecting an individual child, to give paramount consideration to the welfare of that child. The Children Act requires the courts to give paramount consideration to the welfare of the child where a question concerning the upbringing of the child or the administration of application of income or property belonging to the child is an issue.
The whole idea of maintenance is for the benefit of the child. The more the child can get in general terms, the better. If the amendment was incorporated in this way it would suggest that maximising the income for the child would take precedence over seeing that the father, if he happened to be the absent parent, or the mother, in the case that the noble Lord, Lord Stoddart of Swindon, would like me to consider as the 339 paradigm case—at this time of night perhaps I should do that—had sufficient income. The more one can get for the child, the better.
In this area there is the balance to be struck between the interests of the child and the interests of the person who is paying and the other responsibilities that the person has. Although I fully understand the principle and endorse the principle which is in the Children Act, one has to be careful about the way in which it is applied. The idea of proper maintenance is certainly for the benefit of the child. But I do not think that we can have a situation in which, for example, the interests of the paying parent—or the paying mother in the case I have cited—are left out of the matter. In other words, the parent's needs have to be taken into account. Of course, the formula endeavours to cover that aspect.
I do not wish to push the issue to one side. It may be possible to introduce something which would show that the whole idea of maintenance is for the benefit of the child. I shall consider whether we can do something of that nature. However, the idea of using this consideration to measure the amount of maintenance would create great difficulties. I am aware of the principle which prompted the noble Baroness to table the amendment. However, I hope that the noble Lord who moved the amendment will feel able to withdraw it, at least for the time being, in the light of what I have said.
§ Lord Carter
I am most grateful to the noble and learned Lord for his response. I am also grateful to the noble Lord, Lord Renton, for the remarks that he made. I find the distinction between the benefit of the child and the welfare of the child difficult to understand. I should have thought that the two aspects were coterminous. As the noble and learned Lord said, "The more you can get for the child, the better". But surely the formula is intended to protect the absent parent. Its object is to ensure that the absent parent is not, so to speak, "done down". I understand that the noble and learned Lord appreciates the thrust of the amendment. If we could agree upon an acceptable form of words for the Bill in this respect, I am sure that it would prove to be most helpful. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Houghton of Sowerby moved Amendment No. 16:
Page 3, line 18, at end insert:
("(10) This section shall not apply in relation to any case in which a parent or other person with whom a qualifying child has his home is a person with respect to whom a court, on or after a decree of divorce or nullity of marriage, has exercised its powers either under section 25A(2) or 31(7) of the Matrimonial Causes Act 1973, by ordering that periodical payments or secured periodical payments in favour of that person should be made or secured only for such term as would enable that person to adjust without undue hardship to the termination of his dependence on the absent parent, or under section 25A(3) of that Act by dismissing that person's application for periodical payments with a direction that he or she shall not be entitled to make any further application
in relation to that marriage under section 23(1) (a) or (b) of that Act (whether by consent between the parties or not, and whether or not any consideration may have passed between the parties in relation to such order.
(11) The provisions of subsection (10) above shall apply to any case in which an application for periodical payments in favour of a person with care of a qualifying child against a person who is an absent parent with respect to that child was dismissed, whether by consent or not, and whether or not any consideration passed between that person and the absent parent, on or after a decree of divorce or nullity of marriage before the coming into force of the Matrimonial and Family Proceedings Act 1984 as they apply to the exercise of the court's powers under the Matrimonial Causes Act 1973 subsequently.").
§ The noble Lord said: The amendment attempts to deal with the situation of a couple who have a clean-break settlement which has either been awarded or approved by the court. Such a settlement probably takes the form of a capital sum for the transfer of property or something of that nature. The amendment seeks to ensure that such cases can be referred back to the court if any further matters arise and that they should not be dealt with by way of assessment by the agency.
§ A clean-break settlement made a few years previously may be regarded by the mother as being out of date or in need of reconsideration. Whether it was open to review would depend upon the terms of the settlement. However, it seems to me that if a court has dealt with a settlement then any matters arising thereafter should be dealt with by the court and not by the agency. That is the crux of the proposal.
§ Clean-break settlements will have an effect on the eligibility of the mother to consult the agency. No hardship will arise if those who have had a settlement dealt with by the court can return to the court in order to settle any further issues which may arise. I beg to move.
§ Lord Meston
I question the utility of the amendment. I suspect that we shall have more to say about clean-break settlements when we come to deal with Amendments Nos. 28, 54 and 58. Of course, where children are involved, there cannot be a completely clean break. There can be a clean break between the adults if that is what is necessary or desirable, but a proper clean break between the adults is not intended to be reviewable by the courts or by anyone else; it is meant to be a full and final settlement.
The amendment, as explained by the noble Lord, seems to miss the point which has already been so very well made by the noble and learned Lord the Lord Chancellor; namely, that there is a distinction between maintenance for the benefit of' the mother and maintenance for the benefit of the child. Indeed, the mother who is forced to accept a clean-break settlement may be in need of more, and not less, child maintenance. If I believed that the amendment would achieve through the back door what the noble Lord, Lord Mishcon, and others were eloquently trying to achieve through the front door by way of Amendment No. 10, I would support it. However, I do not think that it will produce that result; indeed, it could cause 341 confusion and possibly even encourage retrospective attempts to undermine valuable clean-break settlements.
§ The Lord Chancellor
The effect of these amendments, as I understand them, would be to preclude a child support officer from making an award of child support maintenance where a court has made a "clean-break" order on divorce or has already dismissed an application for maintenance by the absent parent either on her own behalf or on behalf of the child before the clean-break provisions became law. For reasons very similar to those advanced by the noble Lord, Lord Meston, I feel that I cannot advise Members of the Committee to accept the amendment.
A basic aim of the Bill is to emphasise that parents must remain responsible for their children until those children can look after themselves. It is, with respect to the noble Lord, Lord Houghton of Sowerby, not possible to have a clean break from one's children. Under the existing law even when a court considers that substantial maintenance is inappropriate it will normally—although my experience of this is pretty general—make a nominal order. It is always possible to return to the court if circumstances have changed to obtain an upward variation of such an order.
I should also make it clear that, although the formula contains an element to take account of the costs of looking after a child, this in no way represents spousal maintenance. A child, particularly a young one, needs to be looked after, either by the lone parent herself or by someone else. That care costs money, either directly to a paid carer or by the caring parent. It is absolutely right that those costs should be taken into account since they are directly caused by the existence of the child. In no way can they be considered to be spousal maintenance. I should make it clear that there is nothing in this Bill which will affect the courts' powers to make clean-break orders in respect of spousal maintenance. The Bill only concerns maintenance for children, but because children are so important we should not deprive them of the opportunity to seek benefit from maintenance. I hope, in the light of what I said, that the noble Lord will feel able to withdraw his amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 17 not moved.]
§ Clause 3, as amended, agreed to.
§ Clause 4 agreed to.
§ Clause 5 [Applications by those receiving benefit]:
Lord Houghton of Sowerby moved Amendment No. 18:
Page 3, line 32, leave out ("family credit or any other benefit of a prescribed kind").
§ The noble Lord said: The amendment is intended to put a grant of family credit outside the range of expenditure of the Secretary of State for Social Security and outside the scope of recovery from the liable spouse. The Department of Social Security is under some restraint from claiming family credit as a refundable item in some cases where expenses are deductible from other benefits paid. I, and other noble 342 Lords, believe that family credit granted in any particular case should not be recoverable as an expense against the liable spouse. I beg to move.
§ 7 p.m.
§ Earl Russell
I rise to speak to Amendment No. 19, which is grouped with the amendment of the noble Lord, Lord Houghton of Sowerby, and covers similar matter, although in a slightly more abstemious way. Amendment No. 18 seeks to leave out the words:any other benefit of a prescribed kind".
That would restrict the powers of the Secretary of State to prescribe whichever benefit he may think fit. We feel that this clause has been drafted a great deal too widely and in a way which takes it well beyond the Government's proclaimed intentions. The reasoning behind the Bill is that the taxpayer has an interest because of the expense falling on the taxpayer in the form of maintenance of the child. That creates a logical case within the Government's framework for excluding family credit. That is why family credit is not covered in my amendment, though it is in that of the noble Lord, Lord Houghton. I can see no case whatever why a mother should be disentitled to a disability working allowance, severe disability allowance or a war widow's pension. Those seem to me to be outside the reasoning of the Bill.
This is also the first occasion on which we have to grapple with an issue which will come up over and over again in the course of this Bill, which is the extent of the regulation-making powers conferred upon the Government by the Bill. I feel that the Committee ought to know what it is approving when it makes law, and if it approves the words:any other benefit of a prescribed kind
Members of the Committee are not merely buying a pig in a poke, but are legislating a pig in a poke. We do not know what is going to be done with it. And if something is done by some future Secretary of State maybe many years later, of which we do not approve in the least, it will be too late for us to come hack, like Caligula after an execution that he had ordered in a fit of pique, and say, "Oh, I didn't mean it."
There is a good deal of difficulty about changing what goes into regulations and so the increasing tendency to put vital matters of principle into regulations puts us all into a good deal of difficulty. Rather than wringing my hands about that upon the stroke of dinner, I will only point out that where there is a new procedural development it tends to give rise to an equal and opposite procedural development. So I shall draw the attention of your Lordships to the first report of the Procedure Committee, paragraphs 9 to II, which deal with non-fatal Motions and amendments. There is the sense that it is perfectly in order to put down a Motion inviting the Government to amend what is in regulations and to vote upon that Motion—which has the effect of inviting, not compelling, the Government to change what is in those regulations. I have no wish to see that procedure used widely, regularly or frequently. In some ways it is a cumbersome one, but if the tendency to put 343 everything into regulations goes on growing the tendency to apply this sort of procedure to regulations must also grow. That is the case for this amendment.
§ Lord Carter
As my name is attached to Amendment No. 19, I should like to support what has just been said by the noble Earl, Lord Russell. It is clear that we should be told what the other benefits are that it is intended to include. They should be specified in the Bill if the Government intend to include them.
I know the noble Lord, Lord Henley, will be familiar with the debates that we have had about disability and the working allowance, but I am sure he will recognise the considerable importance of this allowance not being included in the prescribed benefits. That would mean that someone who is caring for a child—a lone parent, for example—receiving that benefit or the DWA, as we call it in the Bill —would then be obliged to authorise the Secretary of State to take action under this Bill to recover child support and maintenance from the absent parent.
If such authorisation were to be enforced in the case of the caring parent receiving the DWA, there is a real danger that the benefits of this allowance would be lost. We all know that the intention of the allowance is to encourage disabled people to try out work or to return to work. If someone in that position finds that they will incur a penalty if they help to name and trace an absent parent with whom they prefer to sever all connection, they may well take the decision not to return to work but to continue to survive on invalidity benefit.
§ Lord Stoddart of Swindon
I am completely in support of the amendment. I wonder whether the Minister can help in regard to the wording. Clause 5 says:Where income support, family credit or any other benefit of a prescribed kind is paid to or in respect of the parent of a child she shall, if ... she is a person with care of the child".,lb/> I wonder whether these benefits are payable only to women, because that is what the clause appears to say. Bearing in mind the discussions that we have had previously in this Committee, and bearing in mind also the sympathetic hearing that the noble and learned Lord the Lord Chancellor gave to my previous amendment, and the sympathetic ear he gave to me and other noble Lords when we were insisting that this Bill ought to be about equality and ought to apply to mothers as well as fathers, this seemed to indicate that he agreed with us very much. In those circumstances, I wonder whether the noble Lord, Lord Henley, would be able to speak to the noble and learned Lord the Lord Chancellor and ask him to bring forward a suitable amendment at Report stage. Unfortunately, I overlooked to do so at this stage. If he would do that at the Report stage, it would be much better than if I did it.
§ Lord Henley
Perhaps I may deal briefly with the point which the noble Lord, Lord Stoddart, has just made. I shall bring that to the attention of my noble and learned friend the Lord Chancellor. On the point of the word "she" being used in this context, we shall be dealing with this in connection with a later 344 amendment which is in the name of the noble Lord, Lord Houghton. The simple fact is that we have used the word "she" for convenience here and we have used the word "he" on other occasions. If the noble Lord would care to look at the Interpretation Act—at the moment I cannot remember the date of it or the appropriate clause—he will be pleased to know that we shall be dealing with this in connection with Amendments Nos. 23, 25, 30 and 33. I shall be able to refresh his memory at that stage. The Interpretation Act says in effect that where "she" is used "he" is also understood—and vice versa. I hope that will satisfy the noble Lord. Perhaps it has not satisfied him or his noble friends, but we shall be coming on to that particular point in later proceedings.
§ Lord Mishcon
I would not want the noble Lord to be under any misunderstanding concerning the Interpretation Act, which says just what he said it said. The real point is that when throughout the Bill one has used the masculine more that the feminine, suddenly to find the feminine gender in a clause makes it seem as though one is concentrating solely on the mother and not on the father, who has no rights. It is usual to have a "he" because that always includes the "she". It is most unusual—and as the expert in this field the noble Lord, Lord Renton, may well agree with me—to put "she" just in the hope that people will realise it includes "he".
§ Lord Henley
On this occasion I think we all know that in most cases it will be "she". Therefore for convenience I think it was perfectly legitimate to use that word on this occasion. I believe, as I said, that the Interpretation Act covers me. I would rather not go down the line of always using the word "he" throughout the Bill because there are occasions when "she" might be more appropriate.
These amendments seek to limit the application of Clause 5. Amendment No. 18 in the name of the noble Lord, Lord Houghton, would limit it to those caring parents purely on income support, while Amendment No. 19 would limit it to those on income support and family credit, but both would remove the ability to add to those benefits by means of regulations.
Dealing with Amendment No. 18 first, we feel that it is right that family credit, as well as income support, should be included in this clause. Like income support, it is a means-tested benefit, which the payment of maintenance directly affects. The taxpayer has a clear interest in ensuring that, where at all possible, maintenance should be sought where the caring parent is receiving family credit.
Turning to the amendment in the name of the noble Lord, Lord Carter, and my noble kinsman Lord Russell, my noble kinsman said that the clause went too wide in that it allowed other benefits to be prescribed. I give the assurance to my noble kinsman and other noble Lords that this is not our intention. We have only specified income support and family credit because at present these are the only benefits to which application of Clause 5 is appropriate. They are both benefits which are paid because the caring 345 parent's income is insufficient to meet the needs of her family, often because of the failure of the absent party to pay maintenance for his children.
We have no intention of extending it—and I can give this assurance to the Committee—to housing benefit, community charge benefit, or to any of the contributory benefits, or, for that matter, to any other named benefit, and I can run through a few as my noble kinsman did. We have no intention to include war pensions, or attendance allowance, or mobility allowance, but there is the exception of disability working allowance, to which I shall come later.
To explain why we think it important to retain the option to add to these two benefits, income support and family credit, if necessary by means of regulations, it needs to be kept in mind that benefits change over the years. Income support replaced supplementary benefit, and family credit replaced family income supplement. At some later date it may become necessary to replace the current benefits with something more appropriate to the needs of some future time. Clause .5, as currently drafted, would enable us to ensure that it applied to the successor benefits without having to amend primary legislation.
It would be right for me to turn now to the disability working allowance because that was a benefit that both noble Lords mentioned, and it is one, I have to say, that we are minded to include, but we would not be able to include it in the wording of the Bill at the moment because, as the noble Lord will know, disability working allowance does not exist because the Bill has not yet received Royal Assent. Therefore, one has to give oneself this prescriptive power.
We are still, as noble Lords will know, devoting a great deal of time to the Bill that sets out the two new benefits, DLA and DWA. I believe that no one would disagree with the proposition that parents who are disabled are in principle subject to the same responsibilities—and I think they would feel that they should be subject to the same responsibilities— for their children as other parents. Therefore, we feel it is right that the provisions of the new system should apply to them.
If and when the disability Bill goes through Parliament and receives Royal Assent, and disability working allowance comes into existence, we intend to provide for it to be added to the list of benefits to which Clause 5 applies. It would undoubtedly be right to recognise in some way the extra costs they may incur because of their disabilities when calculating their ability to pay maintenance, and we are considering how best to do this. But we believe that it is right in principle to treat disabled parents in exactly the same way as other parents, while making provision for the practical differences in their situation.
It is important that family credit should be a benefit to which the provisions of this clause apply. We should retain, for the reasons I have given, the option of adding to those benefits. I hope that noble Lords will feel able to withdraw their amendments.
§ Earl Russell
I warmly welcome those assurances about the Government's intention that my noble kinsman gave me, but I am sure that he will be the first 346 to admit that those assurances have no legislative force. I would prefer to see these matters spelt out in the drafting of the Bill. I am also deeply dismayed by what my noble kinsman said about the disability working allowance. It was my understanding perhaps my noble kinsman will correct me if I am wrong—that that benefit was paid in respect of the person's disability. It is not a benefit paid in respect of a child. Therefore, it is not, so far as I can understand it, a cost that is falling on the state because of the default of an absent father. I do not see why it belongs in this Bill.
If my noble kinsman cannot reassure me further on this, I will have to consult my noble friends over dinner about what to do with regard to Amendment No. 19. We will also have to consider the possibility of putting down an amendment to the disability Bill.
Lord Renton: I appreciate what the noble Earl has said; but surely the Bill would be incomplete without including the reference to family credit, which he wishes to have left out. Surely he accepts that in the light of what my noble friend on the Front Bench said?
§ Earl Russell
I beg the noble Lord's pardon. The noble Lord, Lord Houghton of Sowerby, wants to leave out the words "family credit". I do not.
§ Lord Houghton of Sowerby
I thank the noble Lord for his reply. We will reflect on this. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Carter had given notice of his intention to move Amendment No. 19:
Page 3, line 32, leave out ("family credit or any other benefit of a prescribed kind") and insert ("or family credit").
§ The noble Lord said: I have to agree with the words just spoken by the noble Earl, Lord Russell. I spoke to Amendment No. 19 in the previous group, and I found the Minister's answer not only unsatisfactory but extremely alarming in what he said about the disability working allowance. We will not take the time of the Committee now, but we shall certainly come back to this question either on this Bill or on the Disability Living Allowance and Disability Working Allowance Bill, or indeed both.
§ Lord Henley
It would be right for me to respond briefly to one or two of the points. Of course my noble kinsman is right, there would be no legislative force in the assurance that I have given; but I can assure him that there is considerable moral force. I think that assurances given by a Minister from the Dispatch Box carry some weight, and I certainly hope they do in my particular case.
The only other point I wish to make is that I think. as I said, that it is quite right that family credit should be included. Disability working allowance is very much on all fours with family credit, and therefore it is right that it should be included. It is a benefit that the individuals are receiving from the taxpayer, and therefore ought to be taken into account. We have taken on board the point that there might have to be some adjustments in the calculations because of the extra costs imposed naturally on the disabled, and I 347 have said that we shall look into that. But in the meantime it is important that we keep our right to add disability working allowance to the list of benefits.
§ Earl Russell
May I ask my noble kinsman to clarify a point? He said that disability working allowance was on all fours with family credit. Is disability working allowance paid in respect of a child?
§ Lord Henley
Perhaps to use the words that disability working allowance was on all fours, was not the right phrase. It is analogous; it is very similar to family credit. It is an income-related benefit. Therefore it is right that it should be included.
§ [Amendment No. 19 not moved.]
§ Viscount Davidson
Before moving that the House be resumed, perhaps I may suggest that we do not come back to the Committee stage before twenty past eight. I beg to move that the House be resumed.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.