HL Deb 19 March 1991 vol 527 cc596-618

House again in Committee.

Clause 14 agreed to.

Clause 15 [Reviews on change of circumstances]:

Lord Mishcon moved Amendment No. 79:

Page 11 , line 5, at end insert ("and the Secretary of State shall arrange for the review to be conducted by a child support officer.").

The noble Lord said: The purpose of the amendment is to ensure that a review cannot be refused. I beg to move.

The Lord Chancellor

I would not have guessed the purpose of the amendment if the noble Lord had not explained it so plainly to me. The situation is that the Secretary of State is obliged to make the arrangement, and that is the kind of arrangement which I think is suitable in the circumstances. Therefore, there is no question of the review not being available.

I must say that I believe that this is a valuable method of dealing with the matter. It is referred to in rather formal terms in the Bill as the nature of things requires. However, the idea is that, before any formal proceedings outside the agency take place, the matter will be checked by another officer in the agency to ensure that all is well. That process ensures that no unnecessary formal procedures are required. In the light of that explanation, I hope the noble Lord will feel that the purpose of his amendment has been met and that he will therefore withdraw it.

Lord Mishcon

I was hoping that the noble and learned Lord would say that as the proposed purpose was also his purpose the amendment could be accepted. However, I heard what he said. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

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

Lord Mishcon moved Amendment No. 80:

Page 11, line 37, at end insert ("or where an application to the Secretary of State for review on one or more of those grounds has been made by one of the persons specified in section 15(1) (a) or (b),").

The noble Lord said: The purpose of the amendment is to give either parent the right to apply for a review under Clause 16 grounds and to ensure that such reviews are not limited to the question of a change of circumstances. I beg to move.

The Lord Chancellor

Clause 16 sets out the circumstances in which a child support officer may instigate a review of his own accord. It would be inappropriate to insert an additional enabling provision for the child support officer to process applications for review from the interested parties. However, in practice, if any of the interested parties brought to the attention of the child support officer that one of the grounds for review applied, the child support officer could carry out a review under this clause. Alternatively, under Clause 17, the interested parties may apply for a review through the appeal procedures. That should be within 28 days of the decision being given, but the time limit can be extended by the Secretary of State. The clause we are now dealing with gives powers to the child support officer to instigate a review on his own accord. I have sought to explain the ways in which other parties may apply for it.

Lord Mishcon

I have taken note of what the noble and learned Lord said and I shall consider his response most carefully to see whether the amendment is in fact necessary. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

9 p.m.

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

Lord Mishcon moved Amendment No. 81:

Page 12, line 31, leave out subsection (7).

The noble Lord said: This is a probe with an edge to it—if I may put it that way—because I cannot conceive that subsection (7) means what it says. Is it correct that an appeal—not a review—from one such officer is to another such officer of precisely the same grade? I cannot believe that that is the noble and learned Lord's idea of an appeal procedure or that he would think it efficient. It is with that in mind that I tabled the amendment. I beg to move.

The Lord Chancellor

The provision is intended to be a procedure under which the matter in question can be reviewed within the agency. All that the subsection deals with is the need to have someone other than the person who did the original determination look at the case. Obviously it might be in the interests of the system that that should be done by an officer of higher grade, but that is a detail which could be looked at. My point is that it would not be the same person. The idea is to provide a review procedure within the agency. We refer to an "appeal" but it is just the first stage: it is an appeal within the agency itself from one officer to another. As I have said, I believe that it is a valuable provision. Those who are familiar with such matters believe that it is a valuable procedure to have before one embarks upon a more formal system. I hope that the noble Lord will agree that it is valuable to have a requirement that the case will be looked at by another officer before proceeding further, and that in the light of that explanation he may feel able to withdraw the amendment.

Earl Russell

By his few words, the noble and learned Lord has helped to clarify one of the underlying issues we have been debating for some time. he said that the matter was to be reviewed within the agency itself. He is concerned with the agency attempting to reach the correct decision to its own satisfaction. What we have been concerned with throughout the amendments is the possibility of doing justice between the agency and the parties who feel themselves aggrieved. The provision does not achieve the same thing.

The Lord Chancellor

That is the next step. It is an appeal from the agency. Once the agency makes a determination, there will be an appeal—a point that we deal with later—from the agency to some authority outside the agency. There is a question about what that authority might be. This is a procedure within the agency. Child support officers will be fallible and so it is useful to have a check within the agency. Another officer will look at the case. That is basically the procedure. If one is not satisfied with that decision, one appeals outside the agency.

Lord Simon of Glaisdale

Perhaps I may raise at this stage a point that I was going to raise on clause stand part, because this is the beginning of a particular method of review. Subsections (1), (2) and (3) provide for an appeal to the Secretary of State. Subsection (7), as the noble Lord pointed out, merely provides for an appeal from one official to another of co-ordinate status. When one looks at subsection (6) the matter becomes even more extraordinary. The bureaucratic nature of the Bill, which appears throughout, becomes absolutely plain. The grounds of appeal are only provided for in paragraphs (a), (b) and (c). Paragraph (c) provides for a decision that was wrong in law. One would expect such an appeal to be made to a court or at any rate to a lawyer, not sideways to another official. On analysis, paragraphs (a) and (b) raise points of law, but one need not go into that because under paragraph (c) the appeal is expressly on a point of law.

What are we doing with a Bill of this type and with a provision of this type? I thought that we had rid ourselves of that type of provision by 1950 or 1951. This clause is typical of the bureaucratic drafting of statutes of that era. It is disturbing to find that the battle has to be fought all over again. It is hard to realise the effect that Crichel Down had. We had exactly this kind of provision: the gentlemen in Whitehall knew best. As the Clark Inquiry following the Crichel Down episode pointed out, the officials concerned showed active resentment when their decisions were questioned. One had all the paraphernalia of a bureaucracy, and as a result of Crichel Down a popular and able Minister resigned and two officials were shifted sideways. The air was cleared. There was no recrudescence, or at any rate very little until the past few years.

The Bill must be considered against a plethora of Henry VIII clauses and the downgrading of parliamentary control so that what should have been an affirmative procedure is made a negative procedure. I hope that we shall watch where we are going. I hope that my noble and learned friend, embodying the spirit of the rule of law, will explain exactly what we are doing in allowing an appeal on a point of law from one official to another.

The Lord Chancellor

The purpose of the provision is to try to ensure that the agency has made the right decision before the matter leaves it. The agency is merely an agency of the Secretary of State. The agency is not mentioned. The child support officer is a member of an independent organisation within the responsibility of the Secretary of State, with a duty to deal with these matters in a proper way. The Secretary of State himself will not intervene in individual cases.

The purpose of this provision is to allow the assessment made by a child support officer to be challenged and dealt with by another child support officer in the first instance. This is not the end of the story. It is a perfectly reasonable step enabling someone, who does not wish to take the matter immediately to a higher authority but who wishes to check what was done, to have it examined by another officer.

Officials who are child support officers will have to administer the law which is applicable to this. However, they are not the final step in the matter. I believe that the reference to Crichel Down was perhaps less than comprehensive in taking account of the appeal provisions, to which we shall come, beyond the Secretary of State. This is intended to be helpful and I repeat that those who are familiar with the subject will welcome the procedure.

Lord Coleraine

As I understood it, my noble and learned friend said that there was no need for the review procedures. If someone was not satisfied with the decision of the child support officer, he could go straight to court.

The Lord Chancellor

If I gave that impression, I did not intend it. The agency must have a chance to check the decision before there is an appeal outside it under Clause 18, but it will be as a result of reconsideration within the agency, before one can go outside. If I said anything to the contrary, I apologise, I was mistaken.

Lord Coleraine

I was surprised to hear what I thought I heard. It seemed to me that my noble and learned friend was saying that the clause was needed because the child support officer could not be relied upon to get the decision right the first time. It seems to me that anyone wishing to appeal will be extremely surprised to find that they must appeal to another official within the same agency. I should have thought that there ought to be some provision whereby, as a matter of administrative arrangements, the decisions of child support officers would be reviewed before they went further; or if the officers made decisions, there should be some provision to the effect that before the matter went to court the decision could be reviewed and overturned within the agency.

I do not believe that it would be satisfactory to face somebody who is appealing against an assessment or whatever it is, with having to appeal to another official of the agency.

Lord Mishcon

I suggest respectfully to the noble and learned Lord that he may wish to reconsider the matter. I hope briefly to explain why. One could have included in the Bill a provision that someone who was dissatisfied or wished to raise a question could ask an official of equal rank to the person who made the decision to review the situation created by his colleague. The word "review" was used. It is just intelligible that it could be done by a person of equal status who did not make the original decision.

However, the wording of the clause, as I believe the noble and learned Lord, Lord Simon of Glaisdale, pointed out, is an appeal procedure normally dealt with by an appellate tribunal. I refer the noble and learned Lord to the limitations laid down which do not make this a review in the way in which he interpreted it. First, there is the negative provision in Clause 17(5) that: An appeal…may be brought only on one or more of the following grounds". That is not, "Please would you review? Is he quite sure that the arithmetic is correct?" Subsection (6) states: The grounds are that the decision appealed against"— the word "appealed" is used again; it is not asking for a review: (a) was made in ignorance of a material fact; (b) was based on a mistake as to a material fact; or (c) was wrong in law". That is not a review procedure, it is an appeal procedure with limited rights of appeal. One might almost think one was looking at an Act of Parliament dealing with the limitations of the right to appeal to the Court of Appeal. It concerns limiting grounds, it is not a review generally but is limited to facts.

With that appeal procedure, which is not called a review, limiting the appellant to definite grounds upon which he can base his appeal (otherwise he is out of the jurisdiction of the appeal) one finds the appeal being considered by someone of equal rank but who did not make the original decision.

I shall not repeat the point made by the noble and learned Lord, Lord Simon of Glaisdale, as to the oddity of an appeal on law being decided by a child support officer. Can the noble and learned Lord imagine any similar legislation where a Ministry is concerned? Can he really support a Bill where there is an appeal procedure from the decision of somebody in a Ministry and the appeal—limited to points of law, mistakes of fact, and so on—would be adjudicated upon by a person of equal rank to the civil servant who originally made the decision?

I do not intend to continue to deride this provision. I merely ask the noble and learned Lord, in the light of the debate this evening, to consider reviewing the whole of this clause and making it into a review provision of general and not particular limitation; namely, if somebody wanted to have a review he could have it conducted by somebody who was of equal rank and not on questions of law, but generally reviewed. Then, if the review did not satisfy the appellant with the eventual decision, a proper appeal procedure would be put into force. Before this Bill goes to another place I ask the noble and learned Lord not to make an absurdity, as I respectfully believe it is, of what is supposed to be an appellate provision in this Bill.

The Lord Chancellor

The noble Lord asked me earlier about the rank of the officer. I said that the detail of the rank of the officer could not be expected to be found in the primary legislation. That would be a matter for administration by the Secretary of State. Child support officers may not all be the same grade or rank. There is a chief child support officer, but I should have thought that he would be the head of the adjudication function. In any case, I am merely pointing out that the Bill does not specify equal rank. To give more force to his submissions the noble Lord put that in—which is a well-known argumentative device with which I am not unfamiliar.

I shall, of course, pay attention to what was said. I understood this to be regarded as quite a valuable additional provision. It is not taking anybody's rights away. However, if noble Lords think it is a subject for derision, obviously I ought to reconsider it.

Lord Mishcon

In the light of those courteous remarks, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Lord Meston moved Amendment No. 82:

Page 12, line 34, after ("State") insert ("or in circumstances where new evidence is produced").

The noble Lord said: The purpose of this amendment is to extend the time limit for appeal, specifically where new evidence is produced. I beg to move.

The Lord Chancellor

This is a provision for extension of time. One would assume that this is not necessarily limited to new evidence, but if new evidence is produced one would expect an out-of-time appeal to be allowed. That sort of circumstance is one of the grounds on which out-of-time appeals might be allowed. I suggest that it is better to leave it as a general power to extend the time rather than try to specify the circumstances in which an out-of-time appeal might be allowed, such as the one that the noble Lord mentioned.

Lord Meston

I had hoped by this amendment to provide one particular circumstance in which the time for appealing would be extended rather than, as the clause is drafted, leaving it to the discretion of the Secretary of State to grant leave. I accept of course that potentially, at any rate, the production of genuinely new evidence could be comprehended by the existing words of the clause, but it still remains a matter of discretion rather than a matter of right. For the time being I shall not pursue the matter and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Ampthill)

I should remind the Committee that if Amendment No. 82A is agreed to I cannot call Amendments Nos. 83 or 83A.

Lord Simon of Glaisdale moved Amendment No. 82A:

Page 13, line 7, leave out subsection (13).

The noble and learned Lord said: The amendment is to leave out subsection (13). So that there is no mistake this time I should first say that the noble Lord, Lord Henley, and I were perhaps at cross purposes on my last amendment. I am not arguing that these matters should not be dealt with by regulation. On the contrary, matters regulating appeals are generally dealt with by secondary legislation. It is reasonable that in subsection (12) the Secretary of State is enjoined mandatorily to make regulations with respect to the procedures to be followed on appeal. Certainly he should. For example, he will want to lay down who shall be the parties to the appeal and what is the nature of the evidence. We are not nowadays tied to oral evidence, either at first instance or on appeal, so he can give a direction as to evidence and whether evidence shall be written.

He will want to make regulations as to who can appear as witnesses and give oral evidence. He will want to make regulations governing who should be called to produce documents, and indeed as to evidence generally. Obviously he will want to deal with adjournments and, above all, he will want to deal with what should be the result of the appeal.

Your Lordships will have realised that all I have been doing is to read out from paragraphs (b) to (i) of subsection (13). They are merely examples of the regulations that the Secretary of State is bound to make under subsection (12). They are not even ones that he is enjoined to make. They are particular examples of a generality and they are discretionary.

I would first venture to ask my noble and learned friend this question: If subsection (13) is omitted, cannot all those matters dealt with there be dealt with under subsection (12)? When we had the Children Bill we had pages of this stuff. It was rather worse generally, because what is now subsection (12) would have been discretionary with the word "may" and similarly with subsection (13).

We had pages of that and what my noble and learned friend said on the Children Bill was, "Yes, it is not strictly necessary"—which means that it is not necessary—"but it may be useful for Parliament to know what the Secretary of State has in mind by way of regulations". I hope that my noble and learned friend will not repeat that argument.

Of course we know what he has in mind, because they are the sort of things that are bound to be dealt with in regulations governing appeals. Moreover, I must ask my noble and learned friend this question: Is there no consideration to be given to shortening an Act of Parliament? If it is not strictly necessary, is it not, in the state of our bloated statute book, undesirable to admit things that are not necessary?

Finally I ask my noble and learned friend, specifically on paragraph (a) of subsection (13), how he thinks that that adds anything whatever to subsection (12). I beg to move.

The Lord Chancellor

My noble and learned friend enjoins me not to repeat the argument that I made in relation to the Children Bill. Perhaps I may therefore take it as read without repetition, though I should like to point out that I said then that the provisions in the Children Bill which were under discussion and the provisions in the present subsection (13) are not strictly necessary in the sense that, if they were left out, the Secretary of State could still make regulations dealing with these matters.

However, I included the word "strictly" advisedly because there may well be advantage in inserting the subsection. Perhaps I may give one example. It enables the noble Lord, Lord Mishcon, to propose a particular condition that might be included in the regulations, as witness Amendment No. 83, in which he proposes that the regulations should include a particular restriction.

Parliament is interested in what is in the regulations and also what heads of regulation we have in mind. If a matter is as important as this it is useful to indicate the heads of regulation which the Secretary of State has in mind at the stage when the Bill is drafted. That enables us to discuss in Parliament the various matters which may properly be dealt with before the precise details are finally settled. As a result the Secretary of State may well benefit from suggestions as to what might properly be dealt with that he might not have thought of before Parliament had had an opportunity to consider the matter.

Therefore I hope that the noble and learned Lord will feel that, while it is important to make the statute book as succinct as possible, it is also necessary that the statute should be subject to consideration in Parliament, providing the best help in the final formulation of the full law as the circumstances permit.

Lord Simon of Glaisdale

My noble and learned friend did not deal with the question that I asked as to subsection 13(a). Subsection 12 states that: The Secretary of State shall make regulations with respect to the procedure to be followed on appeals". Subsection (13) provides that: The regulations may, in particular include provision—(a) as to the manner in which appeals are to be made". Is that purely to take up space? What does it add to the previous provision?

A noble Lord


Lord Simon of Glaisdale

While my noble and learned friend is answering that question, will he also look at paragraph (g) as to evidence?

The Lord Chancellor

Perhaps I may answer that question specifically. The regulations may provide, for example, a form in which the appeal is to be made and the degree to which the matter has to be specified at that stage. That is what is envisaged in subsection (13) (a). I regret that I did not answer that point in detail earlier. I thought that I had remembered all my noble and learned friend's questions but I am sorry to say that that one had slipped my memory.

Lord Simon of Glaisdale

I must apologise to my noble and learned friend for not giving way. I did not see that he had risen.

I confess that I cannot regard that as a satisfactory answer. I hope that my noble and learned friend will forgive me for saying so. There are other ways of letting Parliament know what the Secretary of State has in mind as to regulations. One is to reply in debate. After all, time and again during discussion of the Bill pleas have been made from all parts of the Committee for information as to what the regulations will be. However, they have been preserved strictly in pectore. Therefore it does not help to imply that the only way in which Parliament can be apprised of the type of regulation that will be made is to clutter up the statute book with provisions that are admitted to be not strictly necessary.

This is not a matter on which to divide the Committee, but it is yet another example of the bloated nature of our statute book. Drafting seems to be done without any regard to conciseness, in total defiance of the Renton Committee's denunciation of the prolixity of statutes. Our statute book is getting more and more prolix, which is entirely in keeping with the bureaucratic nature of this Bill. As I said, it would be useless to divide the Committee on this matter now. I beg indignantly to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Lord Mishcon moved Amendment No. 83:

Page 13, line 11, after first ("or) insert ("with the consent of the parties to the appeal").

The noble Lord said: I hope that the noble and learned Lord will agree that it would be singularly unchivalrous of him and therefore untypical to see the argument to substantiate the need for subsection (13) as an opportunity for me to move an amendment and then to refuse to agree with the amendment that I moved. Therefore I hope that, as I said, he will in sheer chivalry now agree to it.

The purpose of the amendment is clear. It is to ensure that there will be an oral hearing unless the parties agree otherwise. That is surely the right of the parties concerned.

The Lord Chancellor

As I said, these provisions enable this question to be examined, but not necessarily to be resolved in any particular way. As I tried to explain, the intention behind the provision is to produce a reasonably quick but thorough review by an officer not involved in the original decision. It will be open to that officer to interview the parties if he thinks that that is necessary. But to allow the parties to the appeal the opportunity to insist on a lengthier process might undermine its value as a quick means of correcting mistakes.

We shall be consulting on the content of these regulations, but as matters stand at the moment we feel that to make it obligatory to have the consent of both parties before the matter could be disposed of on written representations might be to introduce an unnecessary element of complexity and length into the process. For that reason we are not disposed to agree to this amendment.

Lord Mishcon

I should have thought that it was an essential right of a person to ask to be heard. Perhaps I may respectfully remind him that we are supposed to be moving in the real world, and surely he realises that the person most likely to appeal will not have the advantage of legal aid, will quite likely be illiterate, will want to be able to speak about the reason for coming to appeal and will be unable to put the case in writing in the way that any one of your Lordships would be able to do.

Is it fair that an officer should decide whether that should be an appeal in writing or whether the person should have the right orally to represent the grounds of the appeal? I hope that after he has had time to consider it, and in the light of the reality of the situation, the noble and learned Lord will agree that this is a proper amendment. In the hope that he will so regard it, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 83A:

Page 13, line 13, leave out ("appear and").

The noble and learned Lord said: This is a small amendment. It relates to Clause 17(13)(d). The Secretary of State under that paragraph may make regulations, as to the persons entitled to appear and be heard on behalf of any of the parties".

My amendment seeks to leave out the words "appear and". I recognise that in the face of a refusal to do anything to shorten Acts of Parliament or to regard prolixity of statutory provision as in any way harmful, ambitions become very small indeed. In this case they are limited to two words. However, I am a little puzzled as regards how anyone can be heard unless he appears, or how people could appear but nevertheless not be heard. I hope my noble and learned friend will not say that this is a time-honoured phrase. If such be the case, the sooner dishonour is poured on it the better. I beg to move.

The Lord Chancellor

This is the language that has been used. However, I am willing to consider with parliamentary counsel whether anything would be lost through leaving out the words "appear and". It is true that people are entitled to appear, but they may not be entitled to be heard—notwithstanding the fact that they have appeared—for example, because the court does not require to hear them. They do not have a right to be heard in those circumstances. Perhaps that situation justifies the inclusion of this phrase. However, as I have said, I am content to seek the advice of parliamentary counsel in the light of what my noble and learned friend has said.

Lord Simon of Glaisdale

I am grateful that the matter can be reconsidered as it falls into a larger context. The Renton Committee in referring to a memorandum by two famous Scottish judges condemned trying to cover every imaginable situation and trying to guard against any argument however far-fetched. I suggest that the argument that my noble and learned friend has just put forward is a little far-fetched when he said that people may appear and yet not be heard. As the noble Lord, Lord Mishcon, has said, we must live in the real world even if it is the world of forensic business. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 [Further appeals]:

Lord Stoddart of Swindon moved Amendment No. 84:

Page 13, line 27, leave out ("shall") and insert ("may").

The noble Lord said: The object of this amendment and of Amendment No. 85—I hope we can consider the amendments together—is to try to give some other body rather than the department the opportunity to have a say in this matter. We seek to allow an applicant to appeal to the courts rather than to the department once again. Clause 18(3), as drafted, states: Where an appeal under this section is allowed, the court shall remit the case to the Secretary of State".

I wish to replace "shall" with "may". Amendment No. 85 suggests that the courts should have the opportunity to declare upon the matter. The formula for assessment of child maintenance is clumsy and unproven. No doubt it will require a considerable amount of fine tuning. There are bound to be cases where the formula produces an unexpected result yet the appeals procedure does not allow for that. Appeals are allowed only to check whether the formula has been correctly applied and therefore they do not allow the courts to make their own assessments. Parents should have the protection of the courts. They must not be denied that protection in circumstances in which the formula causes undue hardship or discrimination.

I had intended to suggest that the Committee should also protect parents from the provisions in Clause 22. I no longer need to do so because the clause is not now part of the Bill. I can therefore spare the Committee the remarks that I had intended to make. I feel sure that, the Committee having voted to delete the clause, the Government will not seek to reinsert it. I do not know what the Bill will look like without it but I am sure that the noble and learned Lord will not attempt to bring it back.

Paragraph 9(b) of Schedule 1 relates to the child support officer being satisfied that a person has intentionally deprived himself of a source of income and has assessed his net income as being less than it is. There should be an appeal to the court if a person is accused of such a fraudulent offence. In such circumstances we are giving to clerks the powers that should properly be those of judges.

As the clause stands, if the court allows an appeal it must be remitted to the Secretary of State who will arrange for it to be dealt with by a child support officer. No other course of action is available. We are allowing the same department to deal with the problem in the same bureaucratic way. The Secretary of State is part of the bureaucratic set-up. He is part of the department and therefore the additional method of appeal is of no merit or benefit to the appellant. However, the child support officer may correctly be applying a faulty formula which does not properly cater for the case being appealed. Therefore in such instances we should allow the courts to exercise their discretion and to protect this hapless individual who has fallen foul of a quirk in the system. For that reason we should replace the word "shall" with "may".

Amendment No. 85 defines what the court may do. It states: Alternatively, if it appears to the court that the application of the formula has caused undue hardship or discrimination, the court may make its own assessment".

Someone else will look at the case rather than the department which made the original decision and which in some cases may refuse to alter that decision. I propose that in cases where the court makes its own assessment it shall have regard to all the circumstances. I beg to move.

Lord Prys-Davies

I support Amendment No. 85 in particular and believe that it is worthy of the support of the noble and learned Lord the Lord Chancellor. The maintenance formula is untested and unproven. There may well be cases where, in practice, a full assessment, if levied, could produce unexpected results and hardship. for example, if a father was heavily burdened with debt or had made a substantial capital payment to the child, or possibly if the child is a beneficiary under a trust deed. In those circumstances it may be unfair and unjust to levy the full assessment.

It seems to me that Clauses 17 and 18 contain no provisions for an appeal on the basis of undue hardship. I wonder whether that has been overlooked. On my reading of Clause 18, the grounds of appeal to the court are confined to the same grounds as the appeals under Clause 17. Perhaps the noble and learned Lord will confirm that.

Amendment No. 85 would provide a reserve ground of appeal where the full application of the formula has caused undue hardship or discrimination. I hope that the amendment may be acceptable to the Government, although it may need to be redrafted.

9.45 p.m.

Earl Russell

On behalf of these Benches, I support the amendment. It is vital to introduce an element of discretion into the operation of the formula. Of course it is absolutely impossible for human beings to foresee all the circumstances which are likely to occur. In a situation of a broken family, where there are many commitments in many directions, failure to foresee all the circumstances may result in the application of the formula causing, as Amendment No. 85 suggests, quite unexpected hardship.

I remember very well the case on which I first learned the importance of hardship caused by the literal application of rules. It concerned one of my pupils who did not receive the full parental contribution towards her student grant. The five members of the family lived in two rooms and regarded it as the first call on its income to find a larger place in which to live. The formula for assessment took no account of something of that importance. The result was that the student concerned failed to get her degree and quite unnecessary hardship was caused. If we persist in denying an element of discretion in the formula we shall produce that sort of effect over and over again.

I beg the noble and learned Lord to think again about the importance of allowing an element of discretion. This may be a good way of achieving that.

The Lord Chancellor

There are broadly two ways of dealing with matters of this kind: one is to have detailed rules; the other is to have a wide discretion.

Perhaps I may take the noble Earl's example. It is surely better for the situation to be covered rather than not be covered. I do not know where the family lived to whom he referred. Let us assume that the family was based in London and was treated in a certain way by the court there. A family in exactly the same circumstances living in a different place may be dealt with differently under a discretionary system. When dealing with a large number of cases—and it is estimated that the workload of the agency will be considerable—I believe that people in like circumstances should be dealt with in the same way.

That is what gave rise to the complexity of the formula. The formula should deal with all circumstances. We are aware of the fact that we may not foresee every circumstance at the beginning. That is why the formula will be embodied in regulations so that it is possible to modify the formula in the light of circumstances which have not been envisaged.

If one has a detailed formula of that kind then to allow discretion is to negate the need for a formula to that level of detail. Therefore the present system is discretionary. As the White Paper narrates—I do not believe it has been contradicted—there are great diversities of awards in similar circumstances arising in the various jurisdictions in which these assessments are made. The point of introducing a formula is so that there may be a fair, consistent and predictable award of maintenance. Predictability is very important in this area to enable people to know in advance what their commitments will be, for example, when they separate.

That is the matter of principle on whether or not we have a formula. We have considered the matter carefully. The result is that we feel we should base the awards on a formula.

If the award is based on the formula, the right way to deal with the matter is that an appeal should be remitted so that the formula may be correctly applied in the light of the court's directions. The noble Lord, Lord Stoddart of Swindon, will see that Clause 18(4) states: The court may, in remitting any case under this section, give such directions as it considers appropriate". In other words, it can tell the agency exactly what the basis is on which the formula is to be applied. The only reason it goes back to the agency is that that is the most economical way in which the court's decision can be made effective.

In considering these amendments one must consider Amendment No. 85 first. For the reasons gave I believe it is right that the formula should be detailed and try to deal with all the circumstances that have come to notice at the time it is put together. It will necessarily be a complicated formula; that is one of the reasons the expertise of the Secretary of State and his department is the place in which it is best put in order that it may be applied. Once that is the situation, it is right that the court, having made the decision on the matters raised, should tell the agency what to do in applying the formula, it being more economical that the agency should do that.

In the light of those explanations I hope that the noble Lord will feel able to withdraw the amendment.

Lord Simon of Glaisdale

I may have misunderstood what my noble and learned friend said. I understood him to say that in order to produce flexibility the formula will be embodied in the regulations. I understood that the formula was embodied in Schedule 1.

The other point I found difficult to follow was that my noble and learned friend said that the result should be predictable and that that was the reason for adopting a formula rather than allowing the courts to take cognizance of all the different circumstances. If the application of the formula is predictable, is there not an element whereby a multiplier of zero to one is, such amount as may be prescribed"— "prescribed" meaning by regulations?

Last week my noble and learned friend argued that the advantage of regulations was that, if one found something wrong, one could immediately change it without bothering Parliament. In those circumstances how can one have predictability as a result of the application of the formula?

Lord Mishcon

Before the noble and learned Lord responds to the noble and learned Lord, Lord Simon of Glaisdale, perhaps he would guide me on this matter. Is subsection (4) to which he referred meant to give the courts power to make such directions as they think fit in regard to a direction to the agency as to what the agency should do, or is the noble and learned Lord saying that that subsection should be interpreted as meaning that the court is limited to the fixed formula under the Bill and is therefore unable to give directions which are not consistent with the formula?

The Lord Chancellor

It is the second of these; namely, that the court will give such directions as it thinks appropriate to enable the formula to be properly applied on the assumption that at the appeal it had been found that it was not properly applied. That is the purpose of the clause, read in the light of the whole situation.

I deal with the point made by my noble and learned friend Lord Simon in this way. The formula is predictable in its operation when it is put into the regulations. It is predictable provided the regulations stand. If they are changed then the result of the formula in its application to the circumstances which give rise to the change will therefore be different. It will be predictable in what the operation will be. If one leaves the matter on the basis of a court's discretion one cannot assume that because one case has been decided in a particular way, exactly the same circumstances will be met in the same way in another case. There is an element of predictability in the use of the formula which is much greater than if one leaves the matter to a question of discretion.

Lord Stoddart of Swindon

One assumes that the appellant understands the formula, and that may be very difficult to begin with. As to formulae representing predictability, everyone who has had anything to do with these matters knows perfectly well that any formula that is produced may very well bring a result which was not intended. We have all sorts of formulae. For example, we had a formula for the pricing of gas and electricity. That did not prevent Ofgas from challenging the gas board or the gas company, whatever it is now called, as to the way in which it applied that formula.

The application of formulae will always be disputed as to whether all the elements have been applied as intended by Parliament. There is never certainty. That is why we have lawyers to interpret what Parliament actually means. If we wish to be fair and to give confidence to appellants under this Bill there has to be the longstop of a properly constituted court, as recognised by most people in this country, which can apply the test and the decision of fairness.

I feel quite sure that the noble and learned Lord the Lord Chancellor will not agree with what I am saying. Nevertheless, it is a widely-held view that in the last analysis the courts will probably give a more humane and correct decision than civil servants, no matter how good and caring they may be, who are confined to a rigid formula which may not—I do not say will not —have been properly written by Parliament.

Therefore, I had hoped that the noble and learned Lord the Lord Chancellor would have been more sympathetic towards these amendments which, as I said, are intended to give more confidence to people who will be affected by this Bill. However, it would be mean of me to press these amendments tonight and I shall not do so. I hope that between now and Report stage the noble and learned Lord will give some thought to what has been said, when I may wish to bring forward the amendments again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 85 not moved.]

10 p.m.

Lord Stoddart of Swindon moved Amendment No. 86:

Page 13, line 33, leave out ("(if any)").

The noble Lord said: This is a very simple amendment. As it stands, there is no requirement on the noble and learned Lord the Lord Chancellor to make regulations for further appeals. The deletion of the words "if any" would ensure that he did make regulations and that therefore appeals would be properly catered for. Perhaps the noble and learned Lord will let me have his comments. I beg to move.

The Lord Chancellor

The words "if any" are intended to leave open the possibility that the matter might be left in some circumstances at the appeal stage as set out in Clause 18. It may well be that other provisions will be made, but until that is clear it is right to leave this open as an option for the Lord Chancellor. It would not specify with any clarity what was to happen even if the words "if any" were left out. The words "if any" emphasise that it may not be right to have any regulations made.

Lord Stoddart of Swindon

I cannot see why there should be the words "if any" in the Bill. They do not add anything to that subsection. However, if the noble and learned Lord the Lord Chancellor feels that they should be retained I shall not quarrel too hard about it tonight. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 87:

Page 13, line 35, at end insert ("and other interested bodies.").

The noble Lord said: I can put the argument for this amendment very briefly. It is purely to ensure that the noble and learned Lord the Lord Chancellor, or any future Lord Chancellor, not only consults with the Lord Advocate, which is a very easy matter especially if he happens to be sitting next to him, but consults with "other interested bodies". The bodies one has in mind are the Family Law Association, the Bar, the Solicitors' Family Law Association and other bodies of a similar kind which specialise in these matters and would know the need for appeals and the procedure in regard to them. I hope that the vague words "and other interested bodies" give enough discretion to the Lord Chancellor as to those with whom he should consult.

The Lord Chancellor

The desirability of inserting a specific reference to the Lord Advocate is because of the Lord Advocate's responsibilities for courts and jurisdictions in Scotland. I confirm—and I should like to make this plain—that we shall have very full consultation before making any regulations under any part of this Bill. Where it is the Lord Chancellor who is charged with the responsibility, as is the case in this part of the Bill, I can give that clear undertaking. Obviously, consultation is to be general; and if any reference to consultation is to be included I should much prefer it to be a very general reference to consultation. It is standard practice nowadays to consult widely. I hope the noble Lord, Lord Mishcon, will therefore feel that we shall do so. We are not, by mentioning the Lord Advocate, trying to make a special exception in subsection (5) to the general consultation. I have explained the special reason for that.

Lord Mishcon

In the light of what the noble and learned Lord has said, I beg leave to withdraw the amendment. His reply is obviously on record and what he is recorded as having said is trusted in most confidently by the professional bodies.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 88:

Page 13, line 39, leave out ("such court or tribunal") and insert ("a magistrates' court, county court or High Court").

The noble Lord said: It will be seen that in Clause 18(7) the word "court" is defined as, such court or tribunal as the Lord Chancellor may, after such consultation, by order specify".

The object of the amendment is to ensure that it is not a tribunal but a court that deals with the appeal. The reason for that stipulation can be briefly summarised as follows. First, one still has the image of the family court as the ideal structure for dealing with all family matters. One remembers what happened when the Children Bill was under consideration: everyone said that anything which deals with children should, when it meets the law, be dealt with by one court if at all possible. It is also correct that if the noble and learned Lord says, "Ah yes, but we are only dealing with administrative matters and this has very little to do with other matters which may arise", I would immediately say that these issues are mixed up with a knowledge of family law. It is quite obvious that the courts are possessed of such knowledge but the tribunal may not be.

However, perhaps I may be very straightforward and say that my main argument here is that it is quite obvious that at this stage of the proceedings any appellant needs legal assistance. Therefore, I beg the noble and learned Lord to ensure that it is a court which deals with such matters. Alternatively, if it is to be a tribunal, perhaps he will ensure that a provision is made which is not available at present. I ask him to ensure that anyone appearing before such a tribunal will have the benefit of legal aid.

Naturally my preference is for the court to deal with such matters and I have endeavoured to explain the reasons for this request. However, I beg the noble and learned Lord to ensure that, if he insists on having the option of a tribunal, he will see to it that legal aid is available as would be the case if the matter were being dealt with by a court. I beg to move.

The Lord Chancellor

This is a difficult and rather finely balanced question. At present I would certainly wish to keep open the particular possibility which the amendment seeks to delete. As Members of the Committee have seen, the structure of the formula is provided under Schedule 1 to the Bill. That schedule contains regulation-making powers which will be used in connection with the detailed form of the formula.

The concepts which are used in the formula and the way in which it is applied are very close to those of the social security system. Such concepts are very familiar to the specialist tribunals associated with social security; namely, the social security appeal tribunals. Many of these cases will arise in connection with people who have concerns with the social security system and with appeals in that regard.

Accordingly, in all the circumstances I think that there may be a balance in favour of that type of tribunal. But, on the other hand, as matters develop —I hope that they will, and one has to proceed by stages—it may be that the family justice system would make it more appropriate that such appeals should be dealt with by the court. Such a court would be constituted rather on the lines of the court for the Children Act; namely, the magistrates' court, the county court or the High Court, according to the nature of the case.

As I said, this is a finely balanced question. Of course matters of cost, representation and so on are important and need to be taken into account in ascertaining the nature of the proper facility.

While I accept the noble Lord's point of view, there are strong considerations in the circumstances of the Bill for the tribunal to be one which is familiar with and expert in social security matters. Of course the noble Lord knows, better than I, that the social security appeal tribunals have a lay element and a legal element, so that they are well qualified to deal with such matters. I believe that they have a good reputation in dealing with such matters, and so careful consideration will have to be taken in the light of the developing situation.

I have another consideration in mind, which I mentioned briefly on a previous occasion; that is, I am anxious that as the Children Act work comes before the courts, the courts deal primarily with that work. They are well equipped to deal with that work. I am not so certain that they are well equipped to deal with the application of the formula. I would rather see the Children Act work being done well by the courts before any other responsibilities are placed upon the developing family justice courts which the Children Act has prepared for us and which I hope will come into action in October this year.

Lord Simon of Glaisdale

The noble Lord, Lord Houghton of Sowerby, roundly denounced the whole scheme and the Bill as being redolent of bureaucracy. Few Members of the Committee, except on the Government Front Bench, disagreed with that description. We had a great deal of that bureaucracy for many years after the war, and one of the various bureaucratic devices has been identified during the passage of the Bill. Another is the use of tribunals rather than the courts. There has always been a healthy tension between the judiciary and the Executive, and the Executive and Parliament. That is understandable, but the balance of the constitution —Executive/judiciary/legislature—should be maintained.

One of the sad features of the Bill is the not expressed, but nevertheless perceptible, hostility to having matters determined by the courts. We have outstanding the important compromise proposal of the noble Lord, Lord Mishcon, that there should be concurrent jurisdiction, but even that was discountenanced when we discussed the matter in Committee last week.

We have again one of the characteristic instruments of bureaucratic government; namely, the use of a tribunal rather than a court. My noble and learned friend's argument fills me with dismay. There is a balance of argument to be struck, but in the circumstances of this case, and for the reasons stated by the noble Lord, Lord Mishcon, the balance is definitely on the side of having the matter decided by a court.

I shall mention again the fact that we have the curious provision for an appeal on a point of law to an official, possibly of co-ordinate jurisdiction. My noble and learned friend said that that may not necessarily be the case: he might be the chief officer. So he might, but he might numerically be far more likely to be a subordinate officer of co-ordinate jurisdiction.

If he were a chief officer, there would be no difficulty in so stipulating. That is merely one other example. Here we have tribunals probably substituted for courts. I hope that in making the decision, if the amendment is not carried, my noble and learned friend will consider carefully the bureaucratic implications to be added to all the others endemic in the Bill.

10.15 p.m.

Lord Mishcon

I should have liked the Chamber to be fuller than it is and to have heard the eloquent support for my amendment of the noble and learned Lord, Lord Simon of Glaisdale, at a more reasonable hour. Therefore, I ask leave to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clauses 19 to 21 agreed to.

Clause 23 [Collection of child support maintenance]:

[Amendments Nos. 89 and 90 not moved.]

Clause 23 agreed to.

Clause 24 [Collection and enforcement of other forms of maintenance]:

The Lord Advocate (Lord Fraser of Carmyllie) moved Amendment No. 90A:

Page 18, line 14, after ("sections") insert ("23,").

The noble and learned Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Clause 25 [Deduction from earnings orders]:

The Lord Chancellor moved Amendment No. 91:

Page 18, line 41, at end insert:

("(7) Where—

(a) a deduction from earnings order has been made; and

(b) a copy of the order has been served on the liable person's employer,

it shall be the duty of that employer to comply with the order; but he shall not be under any liability for non-compliance before the end of the period of 7 days beginning with the date on which the copy was served on him.

(8) In this section and in section 26 "earnings" has such meaning as may be prescribed.").

The noble and learned Lord said: I wish to deal with Amendment No. 102 with Amendment No. 91. These amendments add a further provision to Clauses 25 and 26.

First, the provision establishes that an employer shall not have any liability for non-compliance with a deduction from earnings order for a period of seven days from the date a copy of the order is served on him. This provision is intended to allow employers a period in which to take any administrative action necessary to make deductions from the employee's earnings. It means that the first deduction an employer will be liable to make will be from the first earnings payable after this seven-day period. It is possible that an employer will be liable to make a deduction eight days after receiving the order, but in many cases, particularly where earnings are paid monthly, there may be a longer period before a deduction needs to be made. Amendment No. 91 makes this provision for new orders; Amendment No. 102 allows for a similar provision to cover variation of an order. These provisions bring this Bill in line with the Attachment of Earnings Act 1971.

Amendment No. 91 also introduces a provision to allow the term "earnings" to be defined in regulations. The Committee will be aware that there are an increasing number of employers who make payment in ways other than a weekly wage or a monthly salary. Profit-share schemes, bonus payments, commission payments and a variety of expenses and allowances may all make up an individual's remuneration package. It will be necessary for us to be very precise about exactly which of these payments we intend to be included as "earnings" and which we do not.

As I have indicated, there is an increasing number of employers using a wide variety of methods of payment. It is likely that there will be some such methods, which may be developed or may increase in popularity in the future, which may lead us to look again at our definition. For this reason, we have elected to provide for regulations to define the exact meaning of "earnings" for the purposes of this clause and Clause 26. This will allow us to make provisions in the light of any new methods of payment that may emerge.

Amendment No. 102 allows for provision in regulations for an order to lapse when the employer ceases to have the liable person in his employment. There is also provision to allow for circumstances in which an order may be revived. I beg to move Amendment No. 91.

Lord Mishcon

Will the noble and learned Lord agree that if the definition of "earnings" is to be prescribed by regulation, it will have to be a regulation produced at a fairly early date after the Bill is passed or concurrent with it being passed? Otherwise the whole formula is meaningless. Does he agree?

The Lord Chancellor

Yes. A number of regulations will require to be passed when the Bill comes into force. That will give us an opportunity for consultation on them. The noble Lord is perfectly right; that would be so in respect of a number of other regulations as well.

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Clause 26 [Regulations about deduction from earnings orders]:

The Lord Chancellor moved Amendment No. 92:

Page 18, line 44, at end insert:

("( ) as to the circumstances in which one person is to be treated as employed by another;").

The noble and learned Lord said: I beg to move Amendment No. 92, and I should like to speak also to Amendments Nos. 100 and 104. Clause 25 establishes the power of the Secretary of State to make an order requiring the employer of a person who is liable to make payment of maintenance to make deductions from that person's earnings. It is intended that the detailed technical and procedural matters will be included in regulations. The purpose of Clause 26 is to establish this regulation-making power. We have indicated, in Clause 26, the areas we intend the regulations to cover. These amendments provide some further areas, mainly of a technical nature, that may be covered in the regulations.

Amendment 92 allows for regulations to define the circumstances in which one person is to be treated as employed by another. In the vast majority of cases it will be relatively simple to determine whether a person is an employed person. This amendment is intended to cover the minority of cases where there may be a dispute as to whether a person is an employed or a self-employed person.

The provision suggested by Amendment No. 100 will be necessary, as a technical provision, to ensure that the provisions of Clauses 25 and 26 apply to all Crown employees. This provision is also included in the Attachment of Earnings Act 1971.

Amendment No. 104 allows regulations to make provision for the giving of notice by the Secretary of State to the employer concerned that an order has lapsed or ceased to have effect. It also includes a drafting amendment which clarifies that reference to "order" in this subsection refers to deduction from earnings orders as provided for in Clause 25. This provision is analogous to an existing provision in the Attachment of Earnings Act. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 93 to 99:

Page 18, line 45, leave out ("such").

Page 19, line 1, leave out ("such").

Page 19, line 6, leave out ("such").

Page 19, line 7, leave out ("such").

Page 19, line 10, leave out ("such").

Page 19, line 13, leave out ("such").

Page 19, line 17, leave out ("such").

The noble and learned Lord said: With the Committee's leave, I beg to move Amendments Nos. 93 to 99 en bloc. These are minor drafting amendments. We have managed to delete the word "such" from a number of parts of the clause without loss of value. We are making a small step in the direction of succinctness.

On Question, amendments agreed to.

The Lord Chancellor moved Amendments Nos. 100 to 104:

Page 19, line 21, at end insert:

("(gg) as to the operation of an order where the liable person is in the employment of the Crown;").

Page 19, line 22, leave out ("such").

Page 19, line 23, leave out paragraph (i) and insert:

("(i) similar to that made by section 25(7), in relation to any variation of an order;

(ia) for an order to lapse when the employer concerned ceases to have the liable person in his employment;

(ib) as to the revival of an order in such circumstances as may be prescribed;").

Page 19, line 26, leave out ("such").

Page 19, line 26, at end insert:

("(k) as to the giving of notice by the Secretary of State to the employer concerned that an order has lapsed or has ceased to have effect.

In this subsection "order" means a deduction from earnings order").

The noble and learned Lord said: I spoke to Amendments Nos. 100 to 104 earlier. With the Committee's permission, I shall move these amendments en bloc.

On Question, amendments agreed to.

The Lord Chancellor moved Amendments Nos. 105 and 106:

Page 20, line 15, leave out ("without reasonable excuse").

Page 20, line 17, at end insert:

("(8A) It shall be a defence for a person charged with an offence under subsection (8) to prove that he took all reasonable steps to comply with the requirements in question.").

The noble and learned Lord said: If I may, I should like to move Amendments Nos. 105 and 106 together. It is intended that the provisions of this Bill with regard to deduction from earnings orders should mirror the Attachment of Earnings Act 1971 so far as practicable. Amendment No. 105 is a technical drafting amendment and introduces a new subsection (8A). This subsection will bring the provisions in this clause, which provides for a person failing to comply with a deduction from earnings order, to be guilty of an offence in line with the analogous provisions in Section 23(5) of the Attachment of Earnings Act. I beg to move Amendments Nos. 105 and 106.

On Question, amendments agreed to.

Clause 26, as amended, agreed to.

Viscount Davidson

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at twenty-four minutes past ten o'clock.