Child Support Bill [H.L.]

HL Deb 21 March 1991 vol 527 cc800-36

8.19 p.m.

House again in Committee on Clause 32.

[Amendment No. 116 not moved.]

On Question, Whether Clause 32 shall stand part of the Bill?

Lord McGregor of Durris

In opposing the Question that Clause 32 stand part of the Bill, I must now ask the Committee to examine the utility of sending maintenance defaulters to prison. I wish to begin by saying that I have no intention of testing the opinion of the Committee. I wish to attempt at this stage to present the noble and learned Lord with an argument, in the hope that he may be willing to consider at least some parts of it. I apologise to the Committee in advance as I shall take some time to explain the background from which this atavism stems.

The Debtors Act 1869 ended the practice by which thousands of debtors were detained every year by sherriffs' officers without any order from a court and incarcerated in the Fleet or similar prisons, the horror of which became a recurring theme of novelists from Fielding to Dickens. For decades lay, legal and parliamentary opinion urged the abolition of imprisonment and the creation in its place of effective means to enable creditors to recover their money.

However, the Act permitted contumacious debtors to be imprisoned for contempt of court, despite strenuous opposition in the mid-Victorian Parliament. The Walpole Committee of 1873 reported that, the power of imprisonment for debt as now exercised by county court judges should be abolished".

Governments ignored that recommendation for the next 100 years. Debtors were gaoled for contempt in large numbers—almost 10,000 on the eve of the World War I. The number fell back during the inter-war period but, with the expansion of credit trading in the 1960s, it again reached about 7,000. There was anxiety about the silting up of scarce cell space with a large increase in the reception of civil prisoners.

Therefore, the Payne Committee on the Enforcement of Judgment Debts was appointed in 1965. At the request of the then Lord Chancellor, it made an interim unanimous report in 1966 that committal to prison under the Debtors Act and the judgment summons procedure in the county court should be abolished. The Payne Committee found that judges had neither the time nor the information, to distinguish in all cases between the recalcitrant and the inadequate debtor … (and that) … the procedure"—

the judgment summons procedure— is not compatible with the administration of justice, especially in circumstances involving the liberty of the subject".

That system disappeared as a result of the Administration of Justice Act 1970, though imprisonment was retained for Crown debts and for default on maintenance.

As regards maintenance, the Payne Committee was divided. Half of the 12 members wished imprisonment to be abolished immediately, three of them were in favour of abolition in the future and the other three wished to retain it permanently. The arguments were again examined by the Finer Committee on One-Parent Families which reported in 1974. It recommended unanimously the abolition of imprisonment forthwith.

Members of the Committee must rake over these arguments this evening. I think that the most useful procedure would be for me to quote from the two reports and, lest noble Lords should feel that I am plagiarising them, I can say that as a member of both committees I drafted the sections of the reports which we shall now consider. Moreover, having returned to the arguments after many years, I still find them persuasive and indeed compelling.

I shall deal first with the argument based upon deterrence. In the Notes on Clauses it is said that, imprisonment is primarily intended as a deterrent",

although the notes do not distinguish between general and specific deterrence.

So far as concerns general deterrence, the Payne Committee gave an unequivocal answer to the following question: Does the imprisonment of civil debtors help to inculcate or to maintain among the community the social and moral obligation to repay debts freely contracted?".

The committee could find no evidence that: the vast structure of credit trading can depend on the threat of imprisonment which results in a few thousand people being sent to prison, even if it were abundantly clear that those in prison were all deliberate defaulters or dishonest or in some way determined not to pay. On this view, there is no causal connection between the threat or fact of imprisonment for debt and a disposition among citizens to pay their debts. Similarly, we know of no evidence to suggest that the family and the institution of marriage depend upon the knowledge among husbands that they may land in prison if they wilfully fail to maintain their wives and children. We know that the family is a universal institution and remains, in a variety of forms of which monogamy is the commonest the world over, the basic unit in all societies. It would, indeed, be astonishing if the existence of this institution in England depended on the maintenance of one particular method of enforcing a municipal legal rule. A vast body of (anthropological and) sociological knowledge supports the view of Edward Westermarck that, the existence of marriage does not depend upon laws … if marriage is not an artificial creation but an institution based upon deep rooted sentiments, conjugal and parental, it will last as long as these sentiments last'".

The majority of the Payne Committee concluded by saying: Accordingly, we think that the health and stability of marriage and the family in our society are not in any way connected with the retention of imprisonment for maintenance defaulters".

Both the Payne and the Finer Committees examined specific deterrence—I have dealt with general deterrence—in the light of knowledge about the characteristics of civil debtors and maintenance defaulters who had been sent to prison. That evidence derived especially from the findings of a study of civil prisoners and their families by the late Pauline Morris and from evidence from prison governors and other informed sources. Those findings show that such prisoners, Apart from knowing little or nothing about the details of their indebtedness, or their financial position generally, were often unable to give coherent accounts of their employment history. Where they were able to do so, they seemed to have been unemployed for long periods, and those who worked did so only erratically. Furthermore, they seemed to have been involved in a great many accidents, usually at work, to suffer from a multitude of physical and mental troubles, not infrequently of the psychosomatic nature. In short, the civil prisoners appeared to be truly social inadequates, needing almost permanent support if they were to survive in the community".

I can confirm that fact because I was detailed by the Payne Committee to interview and report on a sample of 65 debtors and defaulters who were in prison. It was an experience which had a very great impact upon me. Moreover, so far as I was concerned, it had a remarkable deterrent effect. Apart from the minority of such prisoners with past criminal convictions, they were all hopeless, feckless folk, often illiterate, always innumerate and mostly incapable of organising their life. Nearly all of them had multiple debts; and many of the maintenance defaulters passed their time in prison afflicted with an obsessional hatred of their wives insisting that not even torture would make them pay money to such evil people.

When, on an earlier amendment, the noble and learned Lord talked about the typical case, I could not relate his concept of the typical case with my experience or with anything that I had read about such prisoners. The noble and learned Lord might say, as he said on another amendment, that my experience was that of yesterday; but, nevertheless, I have been at some pains to talk to people who are knowledgeable in this field today and who deal all the time with such prisoners. The information I gathered is that nothing much has changed on the central issue of the personalities of the defaulters who are expected by the Bill to respond to specific deterrents. They are not capable of it.

Yet again in this instance we come to a case where, in an important part of the Bill, there is complete ignorance of the world and the people to which it is proposed by the Government to apply it. We do not know, and there has been no work done since of the nature of that done more than 25 years ago by Dr. Morris.

The debtors' characteristics were one of the main reasons which led the Payne Committee to a major recommendation, rejected by the Government, to establish an enforcement office. Because many debtors were feckless and hopeless, and because the majority of them were multiple debtors, the committee recommended that there should be an enforcement office to bring the judgment debts of all courts into one centre where they could be handled by a species of financial social worker who could discharge for such people the functions which the happier part of the community employs bankers, accountants and solicitors to deal with. No government have accepted that indispensable recommendation. Such centres have been set up by the CAB in Birmingham and elsewhere. They have been remarkably helpful in those areas.

The Finer Committee wrote that everyone agreed that sending maintenance defaulters to prison—today's cost I understand is £321 a week—was an essay in economic and social futility for the taxpayer. The defaulter had to be kept in prison where his future earning power was reduced, as the noble Lord, Lord Stoddart, said earlier, his wife and family, upon whose maintenance he has defaulted, fell upon (as it was in those days) the Supplementary Benefits Commission, as did his second wife or his mistress and her children if he acquired a second family. That might be a justifiable social cost if the result was to inculcate or strengthen among the population at large a disposition to maintain their dependants; but we know that it does not.

Nevertheless, many involved in the administration of family justice hold that the value of the procedure which permits a court to make a committal order, and then to suspend it subject to regular payments being made, lies chiefly in what the court can threaten. Just as some teachers argue that, although they never themselves use the cane, the sight of one lying on the desk helps to secure obedience and good behaviour from their pupils, so it is said that a committal order will extract money from men who are unwilling to pay but who are more unwilling to go to prison. That is undoubtedly true in some instances.

When Parliament was debating the Domestic Proceedings and Magistrates' Courts Bill in 1978 a Home Office Minister explained that an informal survey in magistrates' courts carried out by his department showed that in nearly 90 per cent. of the cases in which a committal warrant had been issued and then suspended the defaulter escaped imprisonment because he paid up. I am doubtful of that survey and its findings, because in all the time that I worked in the courts I never saw the mythical figure who, when a committal order was made, put his hand into his back pocket and paid off his maintenance from a roll of greasy £20 notes. However, he is said to exist. The findings of that unpublished survey testify to the inadequacy of the machinery for extracting money from those who have it. They do not testify to the virtues of suspended committal orders.

The rate of recovery for civil debts has not been adversely affected by the abolition of the threat of imprisonment, despite the evidence to the Payne Committee given by the great majority of county court judges that their power to make suspended committal orders was an indispensable feature of the procedure for enforcing judgment debts.

The Finer Committee regarded an empirical demonstration of the effectiveness of the threat as irrelevant to the point of principle: that if imprisonment is inadmissible as a sanction to enforce family obligations, so equally must be the threat of imprisonment. I do not believe, pathological situations apart, that the policeman and the prison officer are appropriate agents for the regulation of family life, because they bring penal sanctions into a social and personal area where compensation or restitution are the only tolerable aims, and moral denunciation the only proper method of expressing disapproval.

Citizens in 1991 do not regard failure to discharge marital obligations as criminal behaviour; and to treat it as such by imprisoning defaulters damages the law and degrades marriage. The numbers imprisoned over the past 15 years have ranged from over 3,000 to less than 500. The powers of professional judges derive from the debtors legislation and are limited to committal for six weeks. Those of magistrates, to which the agency will go, are harsher and extend to three months, having stemmed from the 19th century bastardy legislation. Professional judges rarely commit when applying the delicate domestic arithmetic required by the test of contumacity. Lay magistrates, on the other hand, used to be more ready to send defaulters to prison under procedures which, like those of the county court judgment summonses, were not compatible with the proper administration of justice when the liberty of the subject was involved.

My fear is that the new agency will be under immense pressure to show results; to show that it is much more efficient than the court system which it replaces. The result will be that, just as the old supplementary benefits commission used to herd women into the magistrates' courts to obtain useless maintenance orders, so this new agency will herd fathers into the magistrates' courts for purposes of securing committal orders against them.

In my view, deterrence is irrelevant in the personal, financial and social circumstances with which this clause deals. I cannot imagine anything more damaging to the interests of children and to their relations with their natural and step-parents than the introduction of the threat of prison into already precarious loyalties and loves.

The noble Lord, Lord Stoddart, mentioned the possibility of using community service orders instead of imprisonment. As I understand it, the noble Baroness, Lady Faithfull, also stated that she would bring forward a similar proposal. I hope that against this background of the history of the consideration that has been given to committal of maintenance defaulters, the noble and learned Lord will he willing to reconsider this clause and the possibility of substituting for imprisonment as the last resort, some other less harmful and less damaging procedure.

I conclude by citing a sentence from the Payne Committee: We have explained why we think the imprisonment of maintenance defaulters … is morally capricious, economically wasteful, socially harmful, administratively burdensome and juridically wrong".

Lest this be thought a dangerous modern view, I end by returning to the old lion Bentham who, more than 200 years ago, recorded his views on imprisonment for debt. They were: its inaptitude as an instrument of compulsion; … its inaptitude, applied as it is as an instrument of punishment … and its needlessness demonstrated by experience".

8.45 p.m.

Baroness Faithfull

The noble Lord, Lord McGregor, has given an academic and historical survey of the futility of sending debtors to prison. I wish to transpose his academic recommendations into practical suggestions on practical issues. First, from the point of view of the men going into prison, I wish to comment on one remark of the noble Lord, Lord McGregor: that men who have intelligence, ability and money in the last resort pay; therefore there must be a sanction. I agree. I also totally agree with the historical survey given by the noble Lord, proving that often the debtors who go to prison are in the end those who are inadequate and who will never profit from prison. They learn nothing and come out worse than when they went in. The wives gain nothing because they receive nothing when the man is in prison and they certainly receive nothing afterwards.

Concerning the children, I agree with the noble Lord, Lord Stoddart of Swindon, that they must be considered, although if a man is not paying, he is not paying. One cannot altogether invoke the welfare of the children in the argument. I cannot forbear saying to the noble Lord that I used to take two small boys aged 10 and 12 to visit their father in Winchester Prison. When I got them home, the other children asked, "Where have you been?" One small boy said, "We've been to see our father; he lives in a big house". Children sometimes look at things in a different way from the way we look at them.

Perhaps I may tell your Lordships what happened to the mentally inadequates during the time when I worked as a director of social services, and before that. These people could nevertheless be helped if they were kept in the community. I imagine this still happens, but then all local authorities in England ran industrial training units. When I worked in Oxford we ran such a unit for the men who could not hold down a job, who were inadequate and could not manage their monetary affairs. We put them in the industrial training unit, we approached British Leyland and asked for a contract for the men to carry out simple mechanical jobs in that unit. British Leyland paid us, or the men, for the work that they did under supervision in the unit. At the same time, the men lived in a hostel, well supervised, and were cared for and looked after. After a while, not all but a proportion of the men were able to leave the industrial training unit and take their place in society.

Perhaps I may transpose that suggestion into the Bill and base it on the arguments put by the noble Lord, Lord McGregor. I see that there must be a sanction, but perhaps it would be possible to set up a unit and persuade industry to co-operate and provide a simple mechanical job which could be carried out within the unit. Perhaps hostels could be set up nearby where the men could live. We would then be in line with the National Health Service and Community Care Act allowing for men to stay in the community. The children would not suffer because their fathers would be in the community and could be visited; but they were not in prison.

I am sure my noble and learned friend the Lord Chancellor will say that this would be costly. However, I am quite sure that it would be possible to deal with this matter in the voluntary sector. I would point out to the Committee that two outstanding people in Birmingham were worried about the treatment of men who are child sexual abusers. Those two people were worried that those men were being sent to prison and were not receiving the help they were entitled to. Those two people set up the Gracewell Institute in Birmingham. That institute was a voluntary initiative. It has been a success and the offenders have been looked after and helped in the institute. So far as I am aware, not one of the men discharged from the institute has committed a further offence.

If we could transpose the industrial training unit into our penal system, it would help men to work and they would earn money which would help maintain their wives. A certain proportion of the men would be rehabilitated and could live with their families. Such a system would be an asset to the children of those men and it would save prison places for other offenders. As the noble Lord, Lord McGregor, has said, it costs £321 a week to keep someone in prison. I believe that the clause should not stand part of the Bill, on the academic and intellectual grounds mentioned by the noble Lord, Lord McGregor, and on the practical recommendations I have made, which I feel could be carried out in our society today.

Lord Stoddart of Swindon

We must be grateful to the noble Lord, Lord McGregor, for his learned tour de force—I hope I may put it that way—in opposing this clause. We must also be grateful to the noble Baroness, Lady Faithfull, for giving us the benefit of her long and detailed experience of these matters. I find it incredible that this provision on imprisonment should be contained in the Bill. The Criminal Justice Bill is before the Chamber at the present time and has received its Second Reading. That Bill states in Clause 1(2): Subject to subsection (3) below, the court shall not—

I emphasise"not"— pass a custodial sentence on the offender unless it is of the opinion— (a) that the offence, or the combination of the offence and one other offence associated with it, was so serious—

I underline the word"serious"— that only such a sentence can be justified for the offence; or (b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm".

In this Bill we are bracketing parents who do not pay maintenance with serious offenders and sexual offenders. We cannot do any worse than that. Frankly, it is quite abhorrent to me that we should seek to do so. At the same time as we are telling magistrates and judges in the Criminal Justice Bill that they must not sentence people to a term of imprisonment except for serious offences, we are saying in this Bill that people may be sent to prison for a purely domestic offence.

I must ask the Government and the noble and learned Lord the Lord Chancellor whether a term of imprisonment will wipe out the debt that we are discussing. That is not clear to me. It is not stated that a term of imprisonment will wipe out a debt that has already accrued. I ask the noble and learned Lord: what will be the position as regards further maintenance payments which will accrue while someone is in prison? Will those be set against the offender, and will he have to pay those maintenance payments while he is in prison and is not earning any money? Are maintenance payment defaulters to be incarcerated with thieves, muggers, rapists and the like? If that is the case, is it not likely that inadequate people in particular—such as the people referred to by the noble Baroness, Lady Faithfull—and normal decent human beings will be led into a life of serious crime by association with the perpetrators of serious crime?

When those people come out of prison, will they be more or less likely to obtain a job as a result of that experience? It will be essential that they obtain a job if they are to decide to pay the maintenance which may be ordered against them, or any arrears of maintenance. Frankly, it is absurd and cruel to include this clause in the Bill. I cannot believe that in his heart of hearts the noble and learned Lord the Lord Chancellor really believes that this is a just provision. If the noble and learned Lord believes that the provision is just at this stage, I hope he will think deeply about it after tonight. I am sure he will do that.

There are and must be alternatives to prison. Prison will not solve this problem. On an earlier amendment, I suggested the use of community service orders. The noble Lord, Lord McGregor, has suggested alternatives, as has the noble Baroness, Lady Faithfull. There are alternatives and I urge the noble and learned Lord the Lord Chancellor and the Government to seriously consider the alternatives. I hope that we shall not divide on this issue tonight. I believe that has already been indicated. Nevertheless I hope the noble and learned Lord will be able to tell us on Report that the Government have had second thoughts and that they will take this odious provision out of the Bill and include either the alternatives that have been suggested or alternatives of their own.

Lord Prys-Davies

I can in no way add to the authoritative, impressive and powerful contribution made by the noble Lord, Lord McGregor. As a member of the Payne Committee and the Finer Committee, the noble Lord is uniquely qualified to give guidance to the Committee on how we should approach Clause 32. I have also listened to the comments of the noble Baroness, Lady Faithfull. I respect her immense practical experience in this matter. I understand that, in general, she goes along with the thrust of the arguments advanced by the noble Lord, Lord McGregor, although she has certain reservations. The noble Baroness has proposed a constructive solution to this problem. I hope that the noble and learned Lord the Lord Chancellor will feel able to give sympathetic consideration to that suggestion. From these Benches I am more than content to adopt the arguments advanced by the noble Lord, Lord McGregor, on economic, social and moral grounds. In our view there is no case for investing the Bill with the aura of criminality.

A few hours ago I referred to certain provisions in earlier legislation which contained a power for a magistrates' court to make a community service order in lieu of a warrant of commitment in certain circumstances. During the dinner break I went to the Library and I am able to refer the Committee to the reference. It is contained in Halshury's Laws of England, volume 13, paragraph 442. I should be doing a disservice to the Committee if I were to attempt to traverse that ground.

9 p.m.

Earl Russell

I shall not gild the lily by expanding on the eloquent and powerful arguments of my noble friend Lord McGregor of Durris. I should like to take up two other points. One is the question of a sanction. We on these Benches entirely agree that there must be a sanction for defaulting fathers who do not pay maintenance. We contend not that there should be no sanction, but that this is the wrong one.

1 was extremely interested in the suggestions offered by the noble Baroness, Lady Faithfull, which seemed to be entirely along the most appropriate lines. We should certainly be very interested in hearing more about them.

I also want to comment very briefly on the point made by the noble Lord, Lord Stoddart of Swindon, about the potential contradiction between this and the Criminal Justice Bill. I have remarked before that this Government seem to suffer from the lack of what the noble Lord, Lord Wilson of Rievaulx, described as a halfback line. There does not seem to be anyone who considers the effect of one policy on another. It might be a good idea if someone did before the Bill reaches the statute book.

The Lord Chancellor

Since the point is fresh in my mind, I shall take up the last point made by the noble Earl. There is indeed a halfback line in this Government, certainly in relation to matters connected with the powers of the courts.

It is important to set out the position regarding service orders and the suggestion made by my noble friend Lady Faithfull concerning the industrial training centre. That is a valuable initiative. However, those are not sanctions which can be used without the person's consent. One needs agreement to submit to community service. No doubt in the case of industrial training there was no question of compulsion, the people concerned agreed to go and work there.

Baroness Faithfull

My noble and learned friend said with regard to my recommendation that there was no element of compulsion. I believe that I am right in saying that there was compulsion under the Mental Health Act.

The Lord Chancellor

In that case there was compulsion under the Mental Health Act; that would not be available in this situation. An element of compulsion was necessary in order to secure the agreement of the person to go to the industrial training centre. The powers under the Mental Health Act would not entitle anyone to force those people to go to the industrial training centre; but I assume that they agreed to go there in preference to going anywhere else.

The question of compulsion under the Mental Health Act does not arise here. We are assuming that in this case the person in question is wilfully in default as a result of culpable neglect. Therefore the clause as drafted precludes the sending to prison of people who would answer the description given by the noble Lord, Lord McGregor.

My noble friend Lady Faithfull said that there must be a sanction to enforce payment. The noble Earl, Lord Russell, agreed. It is impossible to enforce community service or any such positive action as punishment under any provision; it must always be with consent. I believe that that is the provision to which the noble Lord, Lord Prys-Davies, referred. I am not aware of an express power to provide community service as an alternative to a warrant where one is trying to achieve the coercive result of a warrant.

The purpose of the provision is not to put people in prison, it is to ensure that people who have the means to do so pay what they are required to pay in order to maintain their children. We do not want to have people in prison but we want to make sure that people do not readily refuse to pay. I entirely agree with my noble friend and with the noble Earl that a sanction is required. Otherwise there will be a situation in which someone may have plenty of money but it is impossible to lay hands on it.

Prison should be available as a last resort. The noble Lord, Lord Stoddart of Swindon, appears to be approaching the matter as if we were creating the power to imprison in isolation from the general law. However, as the noble Lord, Lord McGregor, has so clearly pointed out, that is not the position. Notwithstanding the eloquent testimony of the Payne Committee and the Finer Committee, the present law in respect of maintenance is that the prison sanction exists. We have therefore thought it right to maintain that sanction in this Bill in terms which are extremely carefully delimited.

The noble Lord, Lord McGregor, questioned the effectiveness of that sanction. The figures that I have tell me that in 1989 25,150 enforcement proceedings were discontinued because the arrears were paid in full, the warrant was cancelled or not issued. That represented 30 per cent. of all applications for enforcement. That figure suggests that the ultimate sanction of imprisonment is effective in securing payment. These are maintenance debtors under the existing law, but they have nothing to do with this Bill.

Against the general background of the law as it stands this is appropriate, but it is very severely fenced around in order to make it difficult to use except in what I would describe as the typical case. If I may say so, the noble Lord, Lord McGregor, was referring to people who are actually in prison in the situation which he described. I certainly think that the way this new clause is drafted would make it quite impossible for somebody to be put into prison simply because they were inadequate, unable to manage their affairs or unable to respond to their obligations.

This is an entirely different situation from that in which people are in prison as punishment for a criminal offence. I see no inconsistency whatever between the policy under the Criminal Justice Bill, which I thoroughly support as representing a proper policy, and the policy of having imprisonment as an ultimate sanction in the case of a wilful refusal to pay maintenance for one's children.

The community service orders are only available as a penalty for criminal offences and on the basis that the person prefers, in effect, to do community service rather than go to prison. However, I want to emphasise, because I entirely share the feelings of your Lordships about these matters, that the Bill makes plain that prison is a last resort. There is no question of prison being used as a way of, as it were, paying off the debt. The debt will not be wiped out. The purpose of imprisonment in the case of a person who is wilfully refusing to pay is to oblige him to pay the debt. It is a deterrent, only to be invoked in the last resort when all other efforts to obtain maintenance payments have been made.

The liable person will not be committed to prison until he has had the opportunity to be heard by the court and to give a full account of his circumstances. The court will be required to determine that the person has deliberately refused or culpably neglected to make payment of the maintenance debt. In other words, the court cannot commit the person to prison unless it is satisfied that the person has the means to pay, that the money is there and that the only obstacle is obstinacy.

Lord Stoddart of Swindon

Tam much obliged to the noble and learned Lord for allowing me to intervene. I think I heard him correctly when he said that a term of imprisonment will not wipe out the debt. In that case we now have a situation where a thief will have his debt to society wiped out by a term of imprisonment but somebody who does not pay his maintenance will be imprisoned, which is a punishment as well as a sanction. However, the original offence will still remain and perhaps will even be exacerbated by the fact that while in prison that person will accrue further maintenance debt because he will have had no funds to pay the maintenance. That seems to me to be a very unfair situation.

The Lord Chancellor

With the greatest possible respect to the noble Lord, Lord Stoddart, he is confusing two different situations. When a person is sent to prison for an offence, that is intended as a punishment for an offence which is past. The facts have emerged; he can do nothing more about it; he has committed the offence and he cannot take it back. I remember reading when I was a little younger that theft is not wiped out by restitution, however complete, or by repentance, however early. So there is no question of repentance so far as that is concerned —obviously repentance is taken into account in mitigation—but there is a past offence of which the person concerned is guilty, and punishment comes along later. That is not the situation.

We are now dealing with a person who has money and is in a position to pay the required maintenance but deliberately refuses to do so. The court is entitled to use imprisonment in order to persuade him to meet his obligation to pay. All that he has to do to avoid going to prison is pay the maintenance. Where a person has committed an offence, such as theft, burglary, or a similar offence, he has committed that offence in the past before a sentence is pronounced. It is beyond his power to recall that. It is a totally different situation and the noble Lord is not comparing like with like.

I have to say that the general law allows this provision, notwithstanding the efforts of the noble Lord, Lord McGregor, or what is said in the Payne or the Finer Reports. All we are doing is adapting it to this type of situation, with stringent safeguards and, I hope, efficient methods of securing payment. It will be a last resort only available if all other methods fail, and if the refusal to pay is absolutely deliberate or due to culpable neglect: not just neglect, not just inadequacy, not just inability to give one's proper attention to the matter, but culpable, blameworthy neglect, or wilful refusal.

Lord Stoddart of Swindon

Suppose this fellow who does not pay his maintenance is gaoled for six months, comes out of prison and continues to refuse to pay maintenance. Does that mean he will go back to prison? How many times can this happen? He could be in prison for life under these provisions.

9.15 p.m.

The Lord Chancellor

As the noble Lord said, there are ultimate amounts of imprisonment, but the purpose of it is to seek to secure his agreement to pay. The noble Lord knows very well that magistrates would wish to be actuated by the same sort of motives as he. I do not think that in the situation that we are in these days there is any question of magistrates wishing to put people in prison just for the sake of doing so. The purpose of it has to be taken into account, and the ultimate idea of the sanction is to produce payment.

I do not believe that there is any likelihood of any substantial period of imprisonment arising from this clause. The present maxima in other fields are comparatively small as compared with the sort of term that the noble Lord refers to. The point of it is that the existence of the sanction produces the result. The need to use the sanction is almost nil, but if you take away the sanction altogether you will produce the result where there is nothing you can do.

A person has plenty of money. You cannot get at it because he has it in such a way that it is not possible to attach it by any of the ordinary means by which property is attached, and he just laughs in your face. He has three children very in need of support from him, he has plenty of resources, but is unwilling to devote it to his children, and you cannot do anything about it. That is the sort of situation that this clause is designed to cure.

Baroness Faithfull

Where in the Bill does it say that only men who have money to pay will go to prison? I have not found that. It looks as though there are two sets of people who do not pay who are going to be treated differently. If a man has money and he will not pay, the final sanction is prison. If a man is inadequate and psychopathic, what is the sanction for him? Are there two different channels for dealing with these two types of people?

The Lord Chancellor

Obviously if a person has inadequacy, if there is something wrong with him, he has some mental trouble and cannot pay, then this sanction does not apply. May I refer my noble friend to the clause we are dealing with. It says in Clause 32(2): On any such application the court shall (in the presence of the liable person)"—

that is, the person has to be present— inquire as to—

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

If the person is suffering from some mental trouble as a result of which he is unable to come to any conclusion on these matters, that certainly would not apply. I would not have thought that a sanction of this kind would be appropriate for such a person.

Then, at the top of page 23 it says: If, but only if"—

in other words, the restriction is only to that situation— the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person it may—(a) issue a warrant".

It is clear from that that you can only have culpable neglect or wilful refusal if the liable person's means are adequate to discharge his obligation of maintenance. That is the only situation in which a warrant of imprisonment is competent.

Of course there is no obligation on the court to impose it. They would have regard to all the circumstances in imposing it. They have of course the power, if they think that bringing it a little closer may be the idea, to go under (b) and fix a term but postpone the issue, and in other words say, "Unless you pay within a certain time this is what will happen to you". That brings it close to the person and is usually successful.

Baroness Faithfull

I am sorry to pursue this argument, but if we had a penal institution of the type that I described, why could not the man who would not pay, but who could pay, go to that institution and be earning money so that he could and would have to pay his wife? Such a scheme would be far less expensive. It would restrict the man's liberty. It would be a much more positive way to treat the man than sending him to prison.

The Lord Chancellor

My noble friend may be thinking of a rather good prison in which there is fine work of an engineering kind and rather more pay than one receives in the ordinary prison system. However, one needs compulsion to send the person there. One cannot send someone to prison or any other institution without compulsion. One needs a power to send the person there.

If prisons run by the voluntary sector are provided, that may be possible under the system. At present, apart from such sanctions as seizing the person's assets, and so on, the only institution available to which one can be committed by compulsion, apart from mental institutions, is prison.

Baroness Faithfull

I am sorry to pursue the matter. Under the maintenance Bill that we passed recently, if a man has money it will be possible to make an attachment of earnings order or to instruct him to make a debit on his bank account. Why did we pass that Act if such provision will not be used in this instance?

The Lord Chancellor

Prison is to be used only if the other methods of enforcement fail. All the other methods will be available. I shall certainly consider whether the present enforcement methods can be strengthened. There are other possibilities. In Scotland we have an arrestment of bank accounts. I believe that it may be possible to replicate that in England by a garnishee order for which there is not yet special provision, and possibly a charging order on real property.

This provision is to operate only where all other methods have failed. The methods under the maintenance Bill that we have now passed from this Chamber are methods of getting at the person's earnings. But people may be in a position to pay and yet are not earning. They may derive their money from other sources than employment.

I believe that I have said all that I reasonably can. I am only wearying the Committee. I commend that Clause 32 stand part of the Bill.

Lord McGregor of Durris

Before the noble and learned Lord sits down, he stated first that the scheme of the noble Baroness—which I thought pointed in admirable directions—cannot be considered because there is no power of compulsion in the Bill. There are many powers of compulsion in the Bill. If the noble Baroness's ideas are sound, I am at a loss to understand why a necessary power could not be put into the Bill.

Secondly, the noble and learned Lord speaks as though the powers of dealing with maintenance defaulters who wilfully refuse or culpably neglect to pay, are somehow a novelty introduced into the law by this Bill. They have been part of our law since the report of the Fischer Williams Committee in 1937. There is nothing new about those powers.

The Lord Chancellor

I am sorry to interrupt the noble Lord. That is exactly what I was saying. I am not under the impression that the position is new; quite the opposite. I am saying that it is part of the general law adapted for the purposes of the Bill.

Lord McGregor of Durris

Exactly so, but every committee that has considered debt has had to face up to the problem of contumacity. What the Payne Committee said, and what the Government accepted when they enacted its recommendations about civil debt, was that we must have a machinery for extracting money from contumacious people. The state cannot accept that somebody has the money but will not pay and therefore must be put in prison. For heaven's sake, let us extract the money as we do in respect of all civil debts!

The last point that I believe it essential to make is that the noble and learned Lord spoke of 30 per cent. of the cases of suspended committals producing the money—

The Lord Chancellor

It is 30 per cent. of all applications for enforcement.

Lord McGregor of Durris

I and people who are concerned in this area know that where there is a threat of imprisonment one of the reasons why the money is not paid is that the person threatened with committal goes to loan sharks and borrows the money, or gets it from his relatives if he does not have it. The essence of this matter is that those who have the money but will not pay always get away with it, because they know the rules and never put themselves into the position of being committed.

I am profoundly distressed by the noble and learned Lord's reply. I had hoped that he would be willing to consider the removal from the statute book at long last of this particular sanction. As he is not, I shall certainly return to the matter at a later stage—

The Lord Chancellor

Before the noble Lord sits down, I understand that one cannot compel somebody to operate in a situation where he is required to do something. One cannot force labour; one cannot force somebody to go to an institution in order to work, as my noble friend suggested. One must first obtain his consent because he is required to agree.

Obviously this is an important matter. We are dealing with the general law, as the noble Lord said. I shall consider all that has been said and wonder whether there is anything further that we can do to strengthen the other enforcement procedures under the Bill. Even when all others are in use, and when all else has failed, the ultimate sanction might well be in that direction. I shall consider everything said by the noble Lords, Lord McGregor, Lord Stoddart and Lord Prys-Davies and my noble friend.

Lord McGregor of Durris

The noble and learned Lord has greatly over-simplified the problem of dealing with contumacity. We have no knowledge of the personalities of the people who are involved. Until we have that knowledge we cannot elaborate effectively on the procedures for dealing with it. All the committees that have dealt with the matter have said that it is an area in which the liberty of the subject is seriously involved.

The opinion of those committees was not properly regarded by lay magistrates, who will be operating the system under the Bill. If one compares the number of committals made by professional judges applying this test with those made by lay magistrates, the result is most worrying. In Scotland, for example, the sheriffs make three or five committals in default of alimony in the course of three or four years. The English magistrates make several hundred.

Clause 32 agreed to.

Clause 33 agreed to.

[Amendment No. 117 not moved.]

9.30 p.m.

Lord Simon of Glaisdale

I hope that the noble Lord, Lord McGregor of Durris, will move the amendment formally because I do not believe that it was discussed with the previous amendment and I wish to make a few comments on it.

The Deputy Chairman of Committees (Lord Ampthill)

Amendment No. 117 is not moved. Perhaps the noble and learned Lord could make his point when speaking to his Amendment No. 117A. I should remind the Committee that if this is agreed to, I shall be unable to call Amendment No. 118.

Clause 34 [Special cases]:

Lord Simon of Glaisdale moved Amendment No. 117A:

Page 25, line 1, leave out subsection (2).

The noble and learned Lord said: As I have been given the opportunity to do so, I shall ask the noble and learned Lord to look favourably on Amendment No. 117. It raises a point which is different from the one discussed by the Committee in the long debate on the previous amendment.

I should like to make two points on that amendment. First, it is a rule of practice although not a rule of law that the courts will not enforce arrears which are more than 12 months distant. Secondly, the common law has elaborate schemes to appropriate payments towards debts. My noble and learned friend will be fully cognisant of those.

However, this Bill is extraordinary. One of the ways in which it is extraordinary is that under Clause 37(2) (c) the Secretary of State is seeking power to appropriate payments towards arrears as he chooses. Taking those two matters together, I ask my noble and learned friend, who is not in a very receptive mood this evening, to look favourably on Amendment No. 117, which does not raise any point which has so far been discussed.

As regards Amendment No. 117A, it formally asks for the excision of Clause 34(2). It gives examples of the sort of regulation which can be made in particularity of the general power given in the previous subsection. The Renton Committee recommended this method of drafting; in other words, the giving of examples. I am bound to say that that seems to me preferable to the system which has endeared itself to the heart of the noble and learned Lord; namely, taking a general power and then setting out endlessly particularities of that general power.

The Secretary of State may make regulations directing grandmothers to suck eggs. In particular he may make regulations as to which end of the egg shall be pierced, what implement shall be used in piercing the egg, and so on endlessly. We have many examples of that in the Children Bill and again in this Bill. This Bill is very much superior.

I ask my noble and learned friend what he considers to be the effect of subsection (2) on subsection (1). Does he agree that, as a matter of construction, regulations may only be made under subsection (1) which are of the same sort as or sui generis with subsection (2)? If so, that would be superior to the method of drafting cherished so dearly by the noble and learned Lord through so many Bills.

Perhaps I could mention one other point at this time rather than on clause stand part. All the regulations in this clause are subject to the negative procedure, except under subsection (4). It is a curious way of drafting when under subsection (3) the Secretary of State is given a general power to make regulations to provide, "with respect to special cases" and under subsection (4) the regulations "may in particular" and those are rightly subject to affirmative resolution. I ask the noble and learned Lord what is envisaged over and above subsection (4) by way of regulations made under subsection (3). Why are they subject only to negative procedure? I beg to move.

Lord Henley

I note what the noble and learned Lord says in regard to Amendment No. 117. My noble and learned friend will read carefully what he had to say. Perhaps in passing I could say that my noble and learned friend is always in a receptive mood and particularly so tonight.

I would not argue with the aim that clauses should not be longer than necessary. However, a balance must be struck between brevity and the need to indicate what the legislation is doing. In this instance, by adding subsection (2) it was our intention to be as helpful as possible in setting out the sort of case where some modification of the maintenance formula may be necessary.

Although that may not be strictly necessary it is worth doing. Without subsection (2) it is not clear what kind of case we would want covered by the clause. The inclusion of subsection (2) is particularly important in view of the powers that the noble and learned Lord mentioned which are given to the Secretary of State in subsections (3) and (4) to modify any provision made by or under the Act which, as the noble and learned Lord said, would be by affirmative procedures. On previous occasions the Chamber has expressed the wish to know more about what we intend to put into regulations. That is exactly what we are doing in subsection (2). Therefore, I hope that the noble and learned Lord will withdraw his Amendment No. 117A.

Lord Simon of Glaisdale

I am very grateful for the very clear reply given by the noble Lord, Lord Henley. I hope that I did not suggest that subsection (2) was not a useful method of drafting. On the contrary, it is more useful than the alternative method.

I have one question on a point of law. In the opinion of my noble and learned friend is subsection (1), in view of the drafting of subsection (2), to be read as subject to the ejusdem generis rule? If that is so, it is a very important and valuable limitation. However, what then is the sanction for seeing that regulations under subsection (1) do not go beyond regulations which are ejusdem generis as regards subsection (2)? Is the sanction judicial or purely parliamentary? If it is parliamentary should it not be subject to affirmative resolution?

The Lord Chancellor

With the permission of my noble friend perhaps I may answer that point. As I see it, the situation is that the ejusdem generis rule would not apply because it is clearly stated in subsection (2) that these are examples. I believe that the judicial review is available to control the exercise of such powers on the lines of cases, such as that of Padfield, dealt with in your Lordships' House. The court would look to see what the purpose was to be abstracted from the Act of Parliament in granting the power. It would allow power to he exercised which would be only an implement in pursuance of that purpose.

Lord Simon of Glaisdale

I cannot see why the fact that subsection (2) is drafted in an exemplary form rules out the application of the ejusdem generis rule to subsection (1), but at ten minutes to ten o'clock it is no time of night to discuss a recondite point of law. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 118 not moved.]

Clause 34 agreed to.

Clause 35 [Contribution to maintenance by deduction from benefit]:

Lord Carter moved Amendment No. 119:

Page 25, line 33, leave out subsection (2) and insert: ("(2) Where an absent parent is on income support he will be zero-rated for maintenance purposes.").

The noble Lord said: The effect of this amendment is to ensure that an absent parent on income support will not contribute to maintenance. The idea of deducting a sum from the benefit of an absent parent on income support appears to us to be rather harsh. At the same time it offers little real benefit to the child. It is important that the principle of financial liability towards the children should be recognised. We feel that that can be achieved if the deduction is left in the system but zero-rated, rather like the VAT system, while the absent parent remains on income support.

Absent parents who are on income support have by definition only a subsistence income on which to support themselves and to maintain contact with the children. We understand that the Government propose to deduct a sum for maintenance from the subsistence income even though the income support entitlement of the absent parent takes no account of his maintenance payments or any other expenses. That is unfair and could perhaps result in a backlash against the idea of maintenance in general and the lone parent in particular.

As income support is set at such a low level, the amounts of money that a one-parent family will receive from the absent parent who is on income support will be very small. We believe that, for the lone parent and the children. the disadvantages of a possible backlash of resentment from the absent parent will outweigh the advantages of a very small maintenance payment.

However, as I have said, the principle of maintenance is an important one. Where the absent parent is on income support, his liability for maintenance should he recognised; but, as I have said, the payment should be zero-rated. This would mean that the child support agency would hold information on the absent parent when he found work. The calculation and enforcement of maintenance could then proceed. Income support is designed to cater for individual subsistence and nothing more. Any deductions would not only cause hardship to the absent parent but would also be at such a low level as to produce only a negligible increase in income for the caring parent and the children.

If payments by absent parents on income support are introduced, they should be used only as a method of ensuring that all absent parents are covered by the new system. The useful analogy is with the VAT system, whereby one is in the system but is zero-rated. One is not actually involved in payment but one can be picked up automatically as income increases. I beg to move.

9.45 p.m.

Earl Russell

The noble Lord, Lord Carter, has outlined very clearly the reasons why we tabled this amendment. Amendments are often overtaken by events and sometimes become less significant. This amendment has become a good deal more significant as a result of the assertion of my noble kinsman Lord Henley last Thursday in Committee (at col. 543 of the Official Report) that income support was not a subsistence benefit. I must admit I found that a rather surprising claim and it is one of very direct relevance to this amendment. We tabled this amendment in the belief that income support is a subsistence benefit. That was precisely why we were arguing, as the Social Security Advisory Committee has argued, that a 5 per cent. deprivation is not a notional sum and places a heavier burden on those in receipt of income support than they are able to stand.

I have been aware for quite a long time that there was a widespread feeling, both among groups involved with issues of poverty and among academics working in the field, that income support is actually below the proper level of a subsistence benefit. Most providentially, as it happens, a study on precisely this point by Dr. Sean Stitt of Newcastle-upon-Tyne polytechnic has been published today and reported in today's Independent. I was able to get some details of it at five o'clock this afternoon. That has developed a very powerful case indeed for arguing that income support is below subsistence levels. Dr. Stitt came to the conclusion on food that income support was providing something between 40 and 52 per cent. of a subsistence level, depending on which figures for an adequate level of diet one took. The standards of diet on which he relied were those drawn up since 1979 by the Department of Health and Social Security, wearing its health hat. As he observed, this indicates a gross duality of standards.

The standard the Department of Health was using was levels of diet below which deficiency might develop. He found a similar picture with energy, where, again, he was relying, it seems, quite heavily, on government figures developed by the Energy Efficiency Office of the Department of Energy. It is estimated that there is available under income support £9.75 for heating, whereas it seems the amount needed for those using gas would be £14.27, or using oil, £26.33. It would help to explain why the Government have had so much trouble over cold weather payments. The report makes the point that houses occupied by those less well-off tend to be less well-insulated and therefore less energy efficient. That underlines the point that insulation may actually save money for the Government.

As regards clothing, Dr. Stitt found that the amount provided on income support was between 18 per cent. and 30 per cent. of the amount recommended by the National Foster Care Association. Therefore, he has made a very powerful case which will need to be taken into account when we are considering whether the levels of income support are too low, and that they are perhaps below subsistence level.

That information makes it rather difficult for my noble kinsman to argue that income support is above subsistence level. It also makes it rather difficult for him to argue that parents can spare 5 per cent. out of their income support to pay maintenance payments. Further, it makes it difficult for him to oppose this amendment.

Lord Stoddart of Swindon

I have given notice that I intend to oppose the fact that Clause 35 should stand part of the Bill. However, at this time of night it would be much more helpful if I were to speak to this amendment. As we have already heard, Clause 35 proposes to make deductions from the state benefits of parents who are separated from their children.

I must say that not only do I find that provision to be mean minded, but I also find it to be self-defeating in that the people whom it will hurt are the children. Once again, we have reached a point where the Government are taking action which is bound to hurt the children and not the parents. That is not the intention of the Bill. The White Paper proposal means that income support will be reduced for those parents unfortunate enough to be divorced and unemployed. Those two aspects of life often go hand in hand.

As I understand it, the Bill allows the Secretary of State to make regulations affecting any benefit, including disablement benefit, invalidity benefit, invalidity care allowance, mobility allowance, sick pay, family credit, and no doubt maternity allowances for absent mothers. However, if I am wrong in that assumption the Minister will put me right.

What is proposed does not go hand in hand with the caring society about which we have heard so much recently and which I frankly believe the Prime Minister wishes to put into operation. The proposition is in conflict with those ideas. I wonder whether the Prime Minister knows what is going on as regards this Bill. Perhaps I should send him a copy of the Hansard report of the proceedings so that he may understand what is happening.

Income support is supposed to be the minimum income necessary to maintain life above poverty level. I believe that very few of us in this Chamber understand what it means to live on income support. We have no concept of what it is like to live on such an amount, let alone what it is like to have £3, £4, £7 or £8 deducted from that sum. It is a catastrophe for families living in such circumstances. I urge the Minister and the Government to take account of that fact.

It seems to me that the clause discriminates against separated parents. As I understand it, parents with children in care do not have any deduction made. Indeed, under the Social Security Act a parent is not liable to contribute during any period when he is in receipt of income support or family credit if the child is in local authority care. Therefore, why on earth should a person who is separated, but maintaining his children, have a deduction of 5 per cent. made against his income support? It does not seem to add up. However, it may be that this is an aspect which has been overlooked. Perhaps the Minister will pay attention to that point and give me a reply. I support the amendment.

Lord McGregor of Durris

I shall add just a sentence to what my noble friend Lord Russell said. Other data have been published recently by the King Edward VII Trust which support the paper that he was citing. I hope the Minister will accept that there is evidence that income support is too low, and will therefore be willing to accept the amendment.

Lord Henley

My right honourable friend the Prime Minister will obviously read everything the noble Lord, Lord Stoddart, has said. I am sure that he always takes considerable notice of what he says. There is an important issue of principle involved here. The legal and moral obligations on parents who are in receipt of income support are the same as those on other parents. They are responsible for maintaining their children. I am glad to see that the amendment, unlike the suggestion of the noble Lord, Lord Stoddart, to strike out the clause, recognises that to an extent by proposing zero rating.

It is important that the responsibility for maintenance should be established straight away not least so that liability can be clearly established in readiness for if and when circumstances change. In principle, all parents should make some contribution to their child's maintenance. So when a parent who is fit and able to work receives income support, we propose to make a small deduction of £2 per week at 1991 rates as a contribution towards child maintenance.

I take issue with my noble kinsman Lord Russell and the noble Lords, Lord Carter and Lord McGregor, about the adequacy of income support. Income support is not, and has never been said to be, a subsistence benefit, providing scarcely enough, as the noble Lord, Lord Stoddart, suggested, to keep body and soul together. As I explained last Tuesday, there are many occasions upon which we and all right-minded people believe it to be right to make deductions from income support and other social security benefits. It is right to do so on this occasion.

My noble kinsman mentioned the research conducted by Dr. Stitt of Newcastle Polytechnic. I am grateful to him for giving me warning that he was going to raise the matter. I am aware of the article published this morning in the Independent and the Guardian. I have of course not yet been able to study the report in detail, but I was pleased to see the press release attached to the report. As I have not studied the report in detail, I obviously cannot comment, but if it is based on Dr. Stitt's previous work, I should say that we do not accept many of his initial assumptions about the amounts included in benefit rates for food, fuel and so forth. For example, on diet, there is no reason why people receiving income support should be unable to follow a normal, healthy diet.

Although it is true that income support rates are intended to cover all normal day-to-day living expenses, they do not include, as my noble kinsman seemed to be suggesting, separate amounts for specified items of expenditure. There is no amount specified in income support for heating, lighting and so on, as he seemed to suggest. My noble kinsman mentioned the lack of insulation in many of the homes of the less well off. I refer him to the debates that we had last year on the Social Security Bill, although I cannot remember which clause (or which section of the Act as it now is) enabled my right honourable friend the Secretary of State for Energy to make grants for insulation to the less well off.

We propose to make some deductions towards child maintenance. Other deductions can be made from income support, as Members of the Committee will know, for example, to meet arrears of fuel bills and in future towards the payment of fines. However, the current ceiling on deductions, which is intended to protect claimants from excessive deductions, will continue to apply, as also will a strict order of precedence which ensures that the most essential expenditures have priority. A deduction for maintenance will take its place in this list. It will come after deductions to meet housing costs and other essential expenses such as fuel. These items will appear in the exempt income of someone who is working, so it is right that they should take precedence over maintenance payments. However, maintenance will come above payments due to, for example, my right honourable friend the Secretary of State, such as the recovery of overpayments or repayments to the social fund.

Other parents on income support will have their liability established, but their contributions to maintenance will be zero-rated so that no deduction will be made from income support in their case unless their circumstances change. The noble Lord, Lord Stoddart, asked about these. They will be those parents who are sick or disabled and unable to work or those who have dependent children for whom they are also claiming income support. Zero-rating, as I have already implied, does not mean that there is no responsibility. On the contrary it means that responsibility has been established but that we accept that in the particular circumstances a zero rate is the most appropriate course.

We do not believe that it would be right for all absent parents on income support to be zero-rated. In particular, we think it right that an absent parent who is fit and able to work and who does not have responsibility for bringing up children should make a small contribution to maintenance so that he makes a start to meeting his responsibility for his children. I hope that with that understanding the noble Lord, Lord Carter, and my noble kinsman will accept that we are going a long way towards meeting the objectives of their amendment.

I do not accept that this provision is in any way harsh. It establishes liability and ensures that a parent who is single or a partner in a couple with no children and who is fit and able to work, while receiving income support is honouring his responsibility—and it is only those people whom we are talking about—for the maintenance of his children in the same way as anyone else. I therefore hope that the noble Lord and my noble kinsman will feel able to withdraw their amendment.

10 p.m.

Earl Russell

I accept that in academic terms deciding precisely what is a standard of subsistence is difficult. In querying Dr. Stitt's criteria for this, however, my noble kinsman was not only a little ungenerous, he was also a little unwise. What struck me most forcibly about that research is that the criteria used are almost entirely those developed within various departments of Her Majesty's Government since 1979. So if my noble kinsman believes that they are unreliable, perhaps something should be done about it.

Lord Henley

I should be loth to comment at this stage on my noble kinsman's remarks because I have not looked carefully at the evidence from Dr. Stitt. However, one should be careful, since some of the figures on which Dr. Stitt's evidence is based date back to the old supplementary benefit days and do not relate to what we have now with income support.

Earl Russell

I admit that that point had already struck me. However, it seems to me that Dr. Stitt has taken evidence across a range of dates covering both benefits. As I understand it, my noble kinsman complained of the standard of classification, not the precise figures for particular dates. I have in front of me the section on this which is taken from the Department of Health's recommended daily amounts of food, energy and nutrients for groups of people in the UK. It is published by the Department of Health and Social Security so perhaps my noble kinsman is unwise to run it down so forcibly. Perhaps there should be a little internal consultation here, but clearly, we cannot pursue the matter much further tonight.

I wish to ask my noble kinsman another question. He has drawn attention to differences of academic standards. Can he quote any piece of academic research which agrees with his argument that income support is above subsistence levels?

Lord Henley

We have absolutely no evidence that people cannot manage on income support and on other comparable benefits.

Lord Carter

This is all extremely depressing. The noble Earl, Lord Russell, made a powerful case. Although the Minister did his best to rubbish the evidence, he did not succeed. What is achieved by all this except to introduce aggravation into what is already a difficult situation? The sums involved are tiny and the Government have at least accepted the analogy of the VAT system and the zero-rating. Therefore the principle of liability is accepted; it is a matter of who is relieved of the liability. I do not wish to take up any more of the Committee's time. All I can say is that I feel Mr. Gradgrind would be very much at home on the Government Front Bench. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Lord Carter moved Amendment No. 120:

After Clause 35, insert the following new clause: ("Maintenance disregard for calculation of benefit entitlement

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

The noble Lord said: This amendment seeks to ensure that maintenance paid by absent parents on behalf of children whose carers receive income support will go towards the care of the children. I hope that we shall have a little more success with this amendment than we did on the previous one. By way of introduction I have referred to the care of the children or the welfare of the child. The noble and learned Lord the Lord Chancellor said on the first day of the Committee stage when I moved an amendment to make the welfare of the child a paramount consideration in the Bill: 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". —[Official Report, 14/3/91; co1.341]

What we are trying to achieve with this amendment is a better overall level of maintenance payments by the use of incentives rather than punishment. However, after the experience of the previous amendment, I am not too sure whether we shall be successful. Knowing that part of the maintenance received will go to benefit children is likely to encourage absent parents to contribute voluntarily and caring parents to assist in making contact with absent parents to determine maintenance assessments. We know that any maintenance received will be deducted, pound for pound, from their benefit, as the Bill stands. This will not only fail to benefit the children for whom this measure is intended, but it will needlessly add to the pressures faced by caring parents and will exacerbate already difficult relationships.

In Australia child maintenance is disregarded, partly or wholly, in the calculation of benefit entitlements by ensuring that in every case where the caring parent is in receipt of income support the children will stand to benefit from any maintenance payments made on their behalf. I emphasise that we are talking about maintenance payments made on their behalf. That seems entirely justified when the overriding aims of the Bill are to improve arrangements for child support and to make the welfare of the child paramount.

We appreciate that the introduction of what might be termed a maintenance disregard will have some cost implications, but a positive incentive of this nature could increase the overall amount of maintenance paid and thus offset some of the additional cost. However, in any case, the consideration of any additional cost must be set against the welfare of children and the protection of those children. Establishing the basis for positive maintenance arrangements which are entered into voluntarily will certainly improve the prospects of achieving better relationships between separated parents. It will also ensure a greater commitment on the part of absent parents towards their children and it will not threaten any hopes of reconciliation where the future of the relationship is uncertain. I beg to move.

Lord Henley

In putting down this amendment, the noble Lord has recognised the influence that features within the benefit system can have in helping those on benefit to work and thus be better off. We recognise that parents who wish to work should be encouraged to achieve greater independence and we are concerned to help caring parents. Lone parents can have particular difficulties to overcome when making decisions about work, having to combine on their own the role of breadwinner with the responsibility of caring for their children.

In the White Paper Children Come First we announced that we propose to introduce a £15 maintenance disregard in family credit, housing benefit and community charge benefit, which are benefits available to people who are in work and on low earnings. I noticed that the amendment includes income support, family credit and housing benefit but for some reason known only to the noble Lord does not include community charge benefit or disability working allowance. I leave it to the noble Lord to explain why he decided to include some benefits and to leave out others.

The disregard that we have announced for family credit, housing benefit and community charge benefit is intended to help parents who are caring for children to work if they wish to do so. As I said, we propose to extend the disregard to disability working allowance. It will be introduced by amendments to social security regulations. That is because the rules of those in-work benefit schemes, including how income is to be treated and other disregards, are contained in social security regulations.

The maintenance disregards already announced do not include a disregard in respect of income support. We considered very carefully whether maintenance should in any way be disregarded for caring parents in receipt of income support and concluded that it should not. If custodial parents were to receive maintenance in addition to income support payments then the custodial parent would have to earn a higher salary to be as well off in work; so it would act as a disincentive to going to work and further frustrate the ambitions which the parents have for themselves.

In addition, the extension of the £15 disregard to income support would also have the considerable cost of an additional £180 million a year. I hope that in the light of that explanation the noble Lord will feel able to withdraw his amendment.

Lord Carter

I shall have to read with some care what the noble Lord said because we are dealing with a complicated issue. I do not propose to extend the debate on the amendment at this time of the evening and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 121:

Before Clause 36, insert the following new clause: ("Review of family credit entitlement

. In section 20(6) of the Social Security Act 1986, after the words"change of circumstances" there shall be inserted the words"other than a change resulting from a review under section 15 of the Child Support Act 1991,"").

The noble Lord said: This is a probing amendment. Under the maintenance proposals there will be a review of maintenance where circumstances change. We can see no reason for not also reviewing the family credit arrangements at the same time to take into account the changed income from maintenance. Perhaps the Minister can explain why that should not be the case. I beg to move.

Lord Henley

I accept that this is a probing amendment. It appears to have the effect of requiring reassessment of the family credit award only in respect of a change arising from a review of maintenance. In other words, all other changes of circumstance which had occurred since the start of the 26-week award period would be ignored. That could lead to some rather bizarre situations where the family credit had to be reassessed to reflect quite a small change in the amount of maintenance but no regard could be had to much more significant changes which had taken place, such as a change—up or down—in earnings or a change in the composition of the family.

I do not believe that that double standard in responding to changes in circumstance would be justified, and yet the alternative would be to have regard to all changes as and when they occurred, which would change the fundamental basis of the family credit scheme. As the noble Lord knows, once one receives one's payment for 26 weeks it is paid for 26 weeks and does not change whether one's earnings from employment or self-employment go up or down. The amendment would therefore introduce an unnecessary complication.

Lord Carter

I understand the point that the noble Lord made. As I said, it is a probing amendment to establish why that was the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 122:

Before Clause 36, insert the following new clause: ("Absent parent claiming family credit

. In section 22(8) of the Social Security Act 1986, at the end there shall be added the words ", provided that in the calculation of the income of a person claiming family credit who is an absent parent within the meaning of section 2(2) of the Child Support Act 1991, there shall be deducted the amount of any child support maintenance that he is liable to pay under the provisions of that Act"").

The noble Earl said: The purpose of the amendment is to back up the principle stated in the White Paper that no useful purpose is served by shifting the first family off income support if in the process the second family is shifted on to income support. The amendment refers to the family credit entitlement of second families. In the assessment of eligibility for family credit of second families no account is being taken of maintenance payments under the Bill.

This again is a case of dealing with notional income when we should be dealing with real income, because the income which is going on maintenance is clearly not available for the second family. Therefore it is going to have the effect of shifting the second family on occasion below the benefit level. I shall not again go into the argument about the adequacy of benefit level; but it clearly applies here also, and it is important that in the end we get that right.

The other point of importance which arises here is the possibility of a disincentive to work, because if you do not get family credit and you are paying maintenance you may end up working and getting an amount of money which is below benefit level. I think it is a principle of government policy that people ought not to be worse off as a result of working. That is a principle in which I can see a good deal of sense and one which I think this amendment would help to uphold. I beg to move.

10.15 p.m.

Lord Carter

I was pleased to add my name to this amendment and when the Minister replies I should be grateful if he could deal with the point that many second families will find themselves with a low disposable income after maintenance had been paid and yet they will not be entitled to family credit because income will be too high. This seems to be an anomaly and the amendment would deal with that situation.

Lord Henley

In putting down this amendment, I believe that the noble Lords have been seeking to change the rules of the family credit scheme so that income used to pay maintenance is ignored when calculating family credit entitlement. That would mean that the absent parent receiving family credit would get extra family credit equivalent to the maintenance they were liable to pay.

We recognise it is right that the taxpayer should help to maintain children when their own parents, despite their own best efforts, do not have the resources to do so. However, it is not right that taxpayers, who include other families, should shoulder this responsibility instead of the parents who are able to do so themselves. The provisions of this Bill are intended to ensure that parents meet their legal, moral and financial responsibilities for their children wherever they can afford to do so. An important aim of the new system is to ensure consistency of treatment between people in similar financial circumstances. For example, we do not think it is right that the benefits system should provide help towards the cost of maintenance through the family credit scheme. This would be unfair to absent parents who have the same level of income entirely from earnings; for example, as between a family whose income from earnings are £130 a week and another whose income comprised £125 earnings and £5 family credit per week.

We accept that occasionally there will be circumstances where inescapable financial obligations mean that if an absent parent has to meet both those and the amount of maintenance calculated under the formula, his income would be close to or below that which he would receive on income support. So there is provision for a protected level of income to make sure this does not happen. Nevertheless, if noble Lords are still convinced that there might possibly be occasions when second families are going to be worse off I shall certainly take a look at that; but a protected level of income should make sure that this does not happen.

On top of all this, I have to say that the amendment itself makes even more generous provision to the absent parent, since it provides for his family credit to reflect the amount of maintenance that he is liable to pay and not the amount he is actually paying. Thus family credit would be assessed on the amount he was supposed to pay and would continue—family credit being a benefit, as I said earlier, awarded at a fixed rate for 26 weeks—whether or not he actually paid any maintenance at all to the parent who has care of the child. I hope, with that explanation and that assurance, the noble Earl will feel able to withdraw the amendment.

Earl Russell

I am grateful to my noble kinsman for his willingness to look at that issue again. The point at issue between us is beginning to get a good deal narrower. We agree with the principle as my noble kinsman stated it, that absent parents should pay for their children when they can afford to do so. The point at issue then narrows down, as to whether they can afford to do so. We need to look at the question of the level of protected income, and whether this will be achieved under this arrangement that the Government propose.

It is essential in making any new system work that there should be a certain modicum of goodwill towards its operation. If we had an effect of impoverishing the second families it could tend to breed what happens easily enough anyway, and that is a growing resentment between the first and second families. That cannot be in the interests of the child. Now we have narrowed down the issue to a point which can be discussed in a limited and practical way, I beg leave to withdraw my amendment, while thanking my noble kinsman for his willingness to look at it again.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 123:

Page 25, line 41, leave out ("or the person with care (or by both)").

The noble Lord said: I would also speak to Amendment No. 124. Both amendments are supported by the Law Society and by a large number of voluntary organisations. The object of the amendments is to ensure that where the Secretary of State takes action under Clauses 3, 5 or 6 to collect or to enforce maintenance payments, he is only able to charge fees against the absent parent. It would be inequitable for the Secretary of State to be able to charge fees to a child, or a person with care, for any services carried out.

As the need for any of these services should arise only if the absent parent is in default, he or she should be liable to pay the fees. As well as being fairer these amendments would probably provide an incentive for the liable parent to pay the maintenance promptly and regularly, and thus avoid the circumstances where the agency would be obliged to take action against another. I beg to move.

The Lord Chancellor

As the Committee will be aware, we intend to intervene as little as possible in what is essentially a private matter between two individuals. In general, the best arrangement for the payment of child maintenance is, where possible, a wholly private and effective financial arrangement between the individuals involved. Where it is possible for a wholly private arrangement to be made, it is not appropriate for private individuals to pass on the responsibility for making such arrangements to the taxpayer, if they are able to do so, without contributing to the cost incurred by the taxpayer.

The charging of fees to both the parties involved in a maintenance assessment will provide an incentive for them to explore the possibilities of making a private arrangement. If they are unable to make a mutually satisfactory arrangement, then either party may apply to the child support agency. It is reasonable that, in such circumstances, the parties could be asked to make a contribution to the agency's costs if they are in a position to do so.

It would not be reasonable to charge fees to persons with care who are obliged, as a result of claiming certain benefits, to make an application under Clause 5 of this Bill. The exemption in Clause 36(3) (a) will cover all such persons. That is to say, there is an obligation there, in Clause 36(3) (a), on the Secretary of State to make exempting provisions in that case.

It will also cover any party to a maintenance assessment who is in receipt of those benefits. We are also looking at whether there may be additional circumstances in which exemptions to the charges might apply.

We are also concerned that a person with care, or the child if applying himself under the provisions of Clause 6 for Scotland, should not bear the cost of the additional action taken against an absent parent who demonstrates reluctance to comply with his responsibilities. We are considering, for inclusion in regulations, ways by which the absent parent can be held responsible for the full cost of any fee to cover action taken to enforce payment, as distinct from determining the amount of it.

In that situation what we have done is to say that if somebody applies for a maintenance assessment, then that person should have to pay for it unless they are exempt under the exemptions. On the other hand, where there is a default and execution is required, then the person who has caused that would be responsible; namely, the person against whom the payment is taken. That seems a fair arrangement. In the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Prys-Davies

I am particularly grateful to the noble and learned Lord the Lord Chancellor for the explanation. I confess that my attention had not been drawn to Clause 36(3)(a). The Lord Chancellor makes the point very clearly, that distinction will be drawn between making the assessment and taking proceedings in order to enforce the order.

In the light of that response, it may be that those who have instructed us will wish to reconsider the position. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 124 not moved.]

Clause 36 agreed to.

Clause 37 agreed to.

Clause 38 [Regulations and orders]:

[Amendment No. 125 not moved.]

Lord Simon of Glaisdale moved Amendment No. 125A:

Page 26, line 37, after ("10(2)") insert ("26, 29(4), 32(8)").

The noble and learned Lord said: It may be for the convenience of the Committee if I speak to Amendments Nos. 125B and 125C. However, I wish to proceed in the way that is convenient to my noble and learned friend. He indicates that I continue. Perhaps he will stop me at any amendment which he is prepared to accept.

The Lord Chancellor

It may help my noble and learned friend if I say that I am prepared to accept Amendment No. 125B.

Lord Simon of Glaisdale

I am obliged to my noble and learned friend. In Amendment No. 125A there is a mistake which has already been referred to. Clause 29(4) should read Clause 29(7). I drew attention to it at the time that we discussed that clause. I sought advice on the way with which it should be dealt. I was advised that a convenient course would be to ask the Committee to treat it as a printer's error. However, I cannot do so without telling the Committee that the error arose through my failure to read my own handwriting in my notes. But if the Committee is content, as my noble and learned friend is kind enough to indicate, I should like to proceed in that way with due apologies.

The amendments concern the upgrading of the negative resolution procedure to the positive affirmative resolution procedure. As the Committee knows, this is an important parliamentary point. Under the negative procedure there is the disadvantage that in another place orders are frequently not reached. When they are reached it is often generally at a very inconvenient hour. In both Houses the advantage of the affirmative resolution is that the Minister explains why he needs the order, and its purport; with the negative procedure he replies only at the end of the debate. It is universally accepted that the affirmative procedure affords far better parliamentary control. That was made clear by the Joint Select Committee on delegated legislation of the Session 1972–73. I imagine that it will not be controverted.

The criteria were set out by that committee. I shall read only the headings. The affirmative resolutions should relate, first, to powers substantially affecting the provisions of an Act or Acts of Parliament. The committee contrasted those with provisions of a trivial or tidying up character. The second heading related to the powers to impose financial charges or make other forms of financial provision. The third related to miscellaneous provisions involving considerations of special importance. I find it impossible to see on what principle the Bill proceeds to differentiate between the affirmative or the negative provision or to see any scheme in relation to the recommendations of the Joint Select Committee.

There is another way of looking at the issue. If it is a matter which Parliament is unlikely to wish to discuss, it is reasonable to dispense with any parliamentary control. Secondly, if it is possible that the regulations will be subject to discussion at the wish of Parliament, the negative resolution is suitable. But if it is probable that Parliament will want to discuss the matter, it should be subject to the affirmative resolution. Whether one applies the criteria of the Joint Select Committee or those that I have just suggested, in my respectful submission all these provisions identified in my amendment should be the subject of affirmative resolutions.

When I was dealing with the difficulty of finding either rhyme or reason we passed over an amendment tabled in the name of the noble and learned Lord the Lord Advocate which drew attention to the extraordinary divergence of view between the draftsmen or officials—probably both—of the Scottish provision and the draftsmen or officials of English provision. Those referred to in the amendment of the noble and learned Lord which was not moved are exactly the same. However, the Scottish provision is rightly subject to the affirmative resolution, whereas exactly the same English provision is subject only to the negative procedure. That is consistent with the derogation from parliamentary control which is one of the marks of this Bill. Having said that, I shall turn to the specific provisions. The first is as regards Clause 26—regulations as to deductions from earnings. Is that the one which the noble and learned Lord accepts?

The Lord Chancellor

It may help the noble and learned Lord if I tell him that I am willing to consider the application of the affirmative resolution procedure to the powers under Clauses 29(7) and 32(8). I am willing to accept it in respect of Clause 34(4), which the noble and learned Lord wishes to change to Clause 34. I am willing to accept Amendment No. 125B. Otherwise, I am inclined to leave matters as they stand.

Lord Simon of Glaisdale

I am obliged to the noble and learned Lord. That should shorten matters. Clause 26 deals with regulations as to the deduction of earnings. Clearly, that falls within the mischief of the second head of the Select Committee's criteria. In my submission, it also clearly falls within the way I put the matter; namely, it is a matter which Parliament will probably wish to discuss. I do not know whether Members of the Committee wish me to go more closely into the provisions of Clause 26. I believe that the noble and learned Lord accepts my point as regards Clause 29(7) so I shall say no more about that.

The Lord Chancellor

I shall consider it.

Lord Simon of Glaisdale

Does the noble and learned Lord accept my point in relation to Clause 32(8)?

The Lord Chancellor

I shall consider it in relation to Clauses 29(7) and 32(8).

Lord Simon of Glaisdale

I am content with that. That is a dispensing power of a statutory provision such as James II claimed and was rejected firmly at the Glorious Revolution. I am sorry to see it creeping in again here. However, I shall contentedly leave the matter to the mature consideration of the noble and learned Lord.

The Lord Chancellor

I am content to consider Amendment No. 125C for the sake of brevity.

Lord Simon of Glaisdale

That deals with regulations about incidental, supplemental and transitional powers. It is a Henry VIII clause but it falls well within the justification for Henry VIII clauses as pronounced by the noble and learned Lord on Tuesday. I believe that that may have met with the approbation of the noble Earl, Lord Russell. It is sufficient to say that, being a Henry VIII clause, it should certainly be subject to affirmative resolution. I beg to move.

The Lord Chancellor

I have indicated my position as regards these matters except in relation to Clauses 26 and 37. As regards Clause 26, very similar provisions are already contained in the Community Charges Administration and Enforcement Regulations which were made under the negative resolution procedure. I consider Clause 37 to be an incidental type of power, and the negative resolution procedure is appropriate.

Lord Simon of Glaisdale

In regard to the first powers referred to by my noble and learned friend, the mere fact that it escaped parliamentary vigilance once is no reason at all, and is contrary to parliamentary and constitutional procedure, why your Lordships should again condone the example. I hope that my noble and learned friend will consider the matter carefully.

With regard to Clause 37, it is sufficient to say that it is a Henry VIII clause; in other words, it gives ministerial power to legislate to supplement an Act of Parliament to arrogate powers that are normally vouchsafed, that ever since 1689 have been vouchsafed to Parliament. The very least that can be done, even if one said that that was a proper use of Henry VIII powers, is to proceed by way of affirmative resolution.

Having said that, I hope that I shall have some support before I withdraw the amendment.

Lord Prys-Davies

I shall be brief. I hope that I can speak in general to Clause 38, if that is convenient to the Committee. Clearly there has been considerable disquiet that the Bill relies so heavily on regulations in order to give it direction. The noble and learned Lord the Lord Chancellor anticipated the criticism when he presented the Bill to the Chamber some weeks ago, when he acknowledged that the Bill contained an unusually larger number of regulation-making powers. He advanced the usual defence that at this time the legislation is necessary to allow for adjustments to be made in the light of experience without needing to find the precious time for primary legislation.

We listened with considerable interest to the speech of the noble and learned Lord, Lord Simon of Glaisdale. There are at least two main difficulties with this kind of legislation. The committee on the preparation of legislation under the chairmanship of the noble Lord, Lord Renton, drew attention to the first difficulty as far back as 1976, when he pointed out that despite the requirements of statutory instruments procedure, the control of Parliament over the detail of legislation is nevertheless diminished.

Distinction is drawn between the affirmative and negative resolution, but as I understand it, even with the affirmative resolution—subject to correction—the Chamber is not entitled to amend the subsequent regulations when they turn up; certainly we may reject them, but that would be contrary to the conventions of the Chamber.

Another difficulty is that we are all familiar with situations which seem at the outset to be matters of detail, or even minor detail, but which grow into major questions. At this stage of the Bill we are unable to say whether or not a matter which is deemed to be a matter of detail is a matter of detail. We have not seen the regulations even in draft form and therefore have no means of forming a valid judgment of whether or not the matter included in the regulations is a matter of principle which should be incorporated or inserted in the Bill.

Before passing the clause I thought it appropriate to remind ourselves of the inadequacy of the statutory instruments procedure for mounting an effective challenge to subsequent regulations, short of throwing them out, and that is not our convention.

Lord Simon of Glaisdale

I am very much obliged to the noble Lord, Lord Prys-Davies. This is a Bill of profound social importance and we are now on matters of high constitutional importance. It is nearly 11 o'clock. It is a parliamentary indecency that we should have to discuss these matters at this hour of night in an empty Chamber. With that objection, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Lord Simon of Glaisdale moved Amendment No. 125B:

Page 26, line 37, leave out ("34(4)") and insert ("34").

On Question, amendment agreed to.

[Amendment No. 125C not moved.]

Clause 38, as amended, agreed to.

Clause 39 [Financial Provisions]:

Lord Carter moved Amendment No. 126:

Page 27, line 14, at end insert: ("(2) The Secretary of State shall make an annual report on expected costs and savings in the coming year and actual costs and savings in the past year.").

The noble Lord said: The Explanatory and Financial Memorandum to the Bill states: The improved arrangements for the assessment and payment of maintenance which are provided by the Bill are expected to produce a reduction of an estimated £400 million per year in social security benefit expenditure from the Consolidated Fund".

That is a substantial sum and we know that that is what the Bill is all about. We feel that it is a high figure given the social aims of the legislation. The amendment will allow the review of both expenditure and savings expected in the coming year and the actual costs and savings in the past year. I am sure that the Government will wish to accept this amendment so that they can make clear whether the expected savings arrive. I beg to move.

Lord Henley

The noble Lord is too brief for me—

Earl Russell

Perhaps I may be forgiven for saying a brief word in support of this amendment. One of the principal arguments for this Bill throughout has been the saving of public money which the Government imagine will arise from it. Many of us are a little doubtful whether it will be quite as large as they suppose. One of the big underlying differences in the whole of our debates has been about the degree of rationality which is assumed. Throughout the Government have assumed that the penalty will deter because that is the rational, economic way to behave. Curiously enough, that unwarranted assumption of rationality is something which Conservatives have often thrown against the other side of the House. This time it seems that the boot is on the other foot.

Since there is here a really major difference about human behaviour as well as about the effectiveness of the Bill, it would be nice to know in due course which of us was right. That is why I am happy to support this amendment.

Lord Henley

I was about to say to the noble Lord, Lord Carter, that he was too brief if he wished me to accept this amendment to which my noble kinsman added a few extra words. As this amendment suggests, we recognise the importance of an annual report detailing accounts of the agency. I can give the assurances that I gave as regards another amendment last Tuesday, or possibly last Thursday, to reassure the Committee that my right honourable friend the Secretary of State will require the chief executive of the agency to submit and publish an annual report and accounts.

My right honourable friend will also ensure that such information is available through the annual departmental report which replaced the department's contribution to the public expenditure White Paper; or it will also be available in the business plan and report of the chief executive of the child support agency. These will be published. In the light of those assurances I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carter

I was brief because the amendment was so sensible. I was extremely pleased to get that answer from the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

Clause 40 [Interpretation]:

[Amendment No.127 not moved.]

On Question, Whether Clause 40 shall stand part of the Bill?

Lord Simon of Glaisdale

I should just like to say what a useful mode of drafting this kind of provision is. We had it in the Road Traffic Bill of this Session. It seems to be a great improvement and a great simplification in the way of interpretation.

Clause 40 agreed to.

Clause 41 [Meaning of"child"]:

On Question, Whether Clause 41 shall stand part of the Bill?

Lord Simon of Glaisdale

I wish to ask one or two questions. I do not want to suggest far fetched situations which could cause the draftsman to go to elaborate provisions to cover them. However, I find some difficulty with the definition in subsection (2) of "child" or, rather, who is not a child.

Under subsection (1) an infant may in certain circumstances still be a statutory child up to the age of 19, but he is not a child, nevertheless, under subsection (2) if he is or has been married. The age of consent for marriage in England, and I think Scotland, is 16. I do not know why someone marrying between the ages of 16 and 19 should be taken out of the benefit of this Bill.

Perhaps my point on paragraph (b) is more remote. The paragraph states, has celebrated a marriage which is void".

I do not know how frequent it is—I suspect that the noble Lord, Lord McGregor, will know—for marriages of those under 16 to be celebrated. They would be void, and I cannot at the moment see why a young person who celebrates a marriage under the age of 16 which is void should again be deprived of the benefits of the Bill. There is also the case of people who are married under the age of 16 in countries where marriage under the age of 16 is valid or are domiciled in countries where marriage under the age of 16 is valid. There are many countries where marriage is valid over the age of 12 or 14, as it was under Canon Law and as is the case in some civil law countries. I do not know whether my noble and learned friend can help about those instances.

The Lord Chancellor

The principle behind the exclusion is that those who are or have been married are no longer to be regarded as dependent on their parents for the purposes of this Bill, having regard to the scope of the Bill and the formula. The idea is that, on marriage, they come out of the family of their parents and may thereby accept mutual responsibilities with their spouse. The situation is a different one from that of a child dependent on his or her parents.

Lord Simon of Glaisdale

I hope the noble and learned Lord will forgive me if I say that he told me what I knew; namely, that people who marry over the age of 16 and under the age of 19 are taken out of the provisions of the Bill. That is exactly what the subsection states. I ventured to ask why that was so, and particularly why, if they go through a void marriage at the age of 15, they should be deprived of the benefits of the Bill.

The Lord Chancellor

I believe that my noble and learned friend misheard me. I said that the theory behind the exclusion is that when someone gets married he or she is no longer to be regarded as being dependent upon their parents with an automatic right of support under the formula arrangement. Of course the fact that the marriage turns out to be void does not damage that principle: they have departed from being in the family unit with their parents. That is the principle behind this exclusion.

Clause 41 agreed to.

Clause 42 agreed to.

Clause 43 [Short title, commencement and extent, etc.]:

[Amendment No. 128 not moved.]

Clause 43 agreed to.

Schedule 3 [Consequential Amendments]:

Lord Fraser of Carmyllie moved Amendment No. 129:

Page 36, line 34, at end insert: ("The Family Law (Scotland) Act 1985 (c.37)

. In section 4 (amount of aliment) of the Family Law (Scotland) Act 1985, at the end there shall be added— (4) Where a court makes an award of aliment in an action brought by or on behalf of a child under the age of 16 years, it may include in that award such provision as it considers to be in all the circumstances reasonable in respect of the expenses mentioned in subsection (5) below. (5) The expenses mentioned in subsection (4) above are any expenses incurred wholly or partly by the person having care of the child for the purpose of caring for the child. " ").

The noble and learned Lord said: The amendment provides that when making an award of maintenance to the child under Section 4 of the Family Law (Scotland) Act 1985 the court may, if it considers it to be reasonable in all the circumstances of the case, include an clement for the expenses incurred by the person having care of the child in caring for that child. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 130 and 131 not moved.]

Schedule 3, as amended, agreed to.

House resumed: Bill reported with amendments.