HL Deb 13 July 1995 vol 565 cc1841-902

3.36 p.m.

Lord Mackay of Ardbrecknish

My Lords, I beg to move that this Bill he now read a third time.

Moved. That the Bill he now read a third time.— (Lord Mackay of Ardbrecknish.)

Lord Simon of Glaisdale

My Lords, your Lordships will wish to note that once again the Third Reading of an important Bill follows after the bare minimum of three working days after the Report stage. It is particularly unfortunate in this case because a great deal of business was left over from Report. The Committee stage had only two days; the first day concluded at about midnight, the second day concluded at about eleven o'clock. The Report stage went on until after half-past eleven. A number of matters were left in those circumstances not fully discussed at Report stage. We have wished to correspond with the Minister—many of us have in fact done so—but of course he has had no time to answer the letters. That is inevitable when one has a complicated, not simple, Bill following after the minimum period.

What we are doing in this Bill is to correct the culpable errors that were made in the 1991 Act. In the proceedings on that Act your Lordships clearly identified the defects, but it was to no avail; every amendment was brushed aside. Although the defects were clearly identified nothing was done, with the result that administrative chaos followed with an unprecedented apology to the public from a public body for the administrative errors. The director of the agency resigned and one-third of the caseload was simply jettisoned. That was part of the story after 1991. In addition, there was a widespread sense of injustice and the postbags of MPs had never been so full.

It is not the fault of the business managers that we find ourselves in this position again and again. It is simply because we have an overload of legislation, some of it misconceived and ill thought out, as the 1991 Act has certainly proved to he, and much of it unnecessary and due to the ambition of Ministers or the excessive zeal of civil servants tinkering with administration.

I hope that we shall not be told this time that in addition to the three bare days there was a weekend, because when the Companion to Standing Orders indicates that a weekend is to be taken into account it does so explicitly, as with the interval between Second Reading and Committee.

What we have is the bare minimum, which is insufficient for a number of points to be cleared up by correspondence. It simply places an additional burden on the Third Reading.

Your Lordships will wish to protest again that your Lordships are in this way stultified in performing your proper parliamentary role, simply because the legislative programme is overloaded.

Lord Monkswell

My Lords, we are indebted yet again to the noble and learned Lord, Lord Simon, for bringing to our attention this short period between Report and Third Reading. While rising to support him in his remarks that we should wherever possible not use the minimum interval between stages and should allow more parliamentary time between consideration of legislation at different stages, it is worth pointing out something that I had not realised until recently. Unfortunately it is the practice in the other place to go from Report stage straight to Third Reading without any interval whatever. Therefore in this House we have at least some advantage.

It is also worth reminding ourselves that not only do Members of this House wish to contact Ministers between stages and to receive information from Ministers on the substance of the Bill, but we must also consider members of the public who may have a keen interest and sometimes detailed knowledge of the subject. They do not have the opportunity to sec the reports in Hansard, deliberate on them and then contact noble Lords to advise them about the situation as it then applies. One of the characteristics of this House is that our assiduity ensures that almost inevitably there are amendments at each stage of the proceedings of a Bill.

For those reasons we should be thankful that the noble and learned Lord, Lord Simon, has raised this matter. I hope that Ministers and the usual channels will consider much more carefully before they suggest to the House that different stages of a Bill should be considered in the minimum intervals.

In conclusion, it is worth pointing out that this year we are rising eight days earlier than we did last year. As recently as a few weeks ago it was generally accepted that we would sit into the week after next. It was only fairly recently that it was decided that we would finish next Friday. It would have been possible for there to have been a longer interval to allow better consideration of this Bill in particular.

Earl Russell

My Lords, I share the regret of the noble and learned Lord, Lord Simon of Glaisdale, that so much of this Bill has been conducted in what Sherlock Holmes might have called the hours of darkness when the powers of the executive are exalted.

However, in relation to this Bill we have an arrangement which has been agreed and which has taken account of a great many other matters. Therefore in respect of this Bill we are hound by it. For the future we might reflect that, as the noble Lord, Lord Boyd-Carpenter, has pointed out, there are such things as Fridays. We might also consider the view, which I hope may commend itself to the Minister, that there are disadvantages in one department putting forward four major Bills in the same Session.

On Question, Bill read a third time.

3.45 p.m.

Clause 6 (Departure directions):

Baroness Hollis of Heigham moved Amendment No. 1:

Page 5, line 19, at end insert: ("() in cases where the absent parent is applying for departure under Schedule 4B, paragraph (2), it is his opinion that hardship would be caused to the absent parent or any member of his family should be not do so: and").

The noble Baroness said My Lords, I am sorry that we are opening today's debate with such a modest amendment. I feel that it should be a stirring announcement of principle. However, at Third Reading that is perhaps less appropriate than it would be at earlier stages.

We are revisiting the amendment because we want to push the Minister further on what is understood by hardship. The amendment would require that there be evidence of hardship as a criterion for access to the departure system. At present, as the Bill stands, the absent parent can gain access to the system of appeals or departures merely because, for example, he has high travel to work costs even though he can perfectly well afford those high travel to work costs. The amendment would establish that he would have grounds for appeal if he had high travel to work costs and as a result suffered hardship.

We understood from the original White Paper that the test in terms of departures comprised the two criteria of individual grounds and the fact that hardship was caused to the absent parent. We felt that that was entirely reasonable. However, we are concerned that that test of hardship may have fallen by the wayside so far as concerns the absent father. It may therefore mean that he may be able to reduce his maintenance payments because certain of his costs are high even though, given his level of income, he could well afford them and hardship does not result.

We want to press the Minister on that point and to make sure that the Bill as it stands is even-handed in its notion of hardship in respect of both the parent with care and the absent father. I hope that the Minister can help us in this regard. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, as the noble Baroness explained, the intention of the amendment, which we also debated at Committee stage, is to introduce hardship as a basic condition for access to the departure system; that is, a departure may be given in respect of an absent parent only if it is to relieve hardship.

The amendment does not, in fact, achieve that intention and could act in a very different way from that intended. For example, it would enable the Secretary of State to make a departure direction, which would not otherwise have been made under other provisions within the scheme, solely because of hardship. However, I understand from her explanation what the noble Baroness is trying to achieve with the amendment, and I hope that I can persuade her that it is not necessary.

First, as I explained in Committee, even if one accepted hardship as a basic condition, it would be inequitable to look at the issue in the context of the absent parent only. Relieving hardship for the absent parent may well cause hardship to the parent with care. It is clearly unfair to consider the position of either of the parents in isolation from the other.

Secondly, I believe that the concerns of the noble Baroness are largely covered by the provision in new Section 28F(1) (b), which requires the Secretary of State to consider in all cases whether it would be just and equitable to make a departure direction. That provision enables the Secretary of State to consider all the circumstances of all parties to an assessment, and in particular their financial circumstances. It is intended that the relative positions of the parties would be examined under that provision, and the question of possible hardship for either party will clearly underlie those considerations.

For example, an absent parent with a relatively high level of income may apply for a departure direction on the grounds that he has a special expense, say high travel to work costs. However, the way the formula works means that in the vast majority of cases he will already be substantially better off than the parent with care before any allowance is made for that special expense. In such cases the adjudicator will he able to look at the circumstances of both parties and consider whether it would be just and equitable to make a departure direction. He might decide in such a case that there would on balance be more hardship caused to the parent with care by a reduction in maintenance than to the absent parent by expecting him to meet his travel to work costs from his much larger disposable income.

The noble Baroness suggested that we wanted an even-handed system. I would argue that the way outlined in the Bill is a much fairer, even-handed way of dealing with the issue than the amendment before us. It enables the Secretary of State to look at the situation of the parent with care, the absent parent and any children affected, to balance their needs and then decide whether a departure direction would be just and equitable in the light of all of the circumstances. I hope that my arguments carry some weight with the noble Baroness and that she will withdraw the amendment.

Baroness Hollis of Heigham

My Lords, I thank the Minister for his reply. His arguments always carry weight with us; sometimes they even persuade us. I should have said that it is a probing amendment. The Minister's reply helps clarify the situation as to what considerations should be in the minds of the tribunal based on the departure system. For that we are grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Transitional provisions]:

Lord Mackay of Ardbrecknish moved Amendment No. 2:

Page 7, line 37. leave out from ("prescribed") to end of line 38.

The noble Lord said: My Lords, this amendment is a technical amendment which is needed as a consequence of an earlier amendment accepted by the House at Report stage of the Bill.

Your Lordships will recall that the noble Lord, Lord Carter, proposed an amendment to Clause 1 of the Bill to remove, in its entirety, subsection (4). The purpose of his amendment was to allow late applications for departures—that is, applications made outside the 28 day time limit, previously disallowed by the former subsection (4) of the new Section 28A—to be accepted. Any departure direction made as a result of a "late" application, where there was no good cause for the delay, would not take effect from a date earlier than the date of application. The House was content to agree to the amendment of the noble Lord.

Amendment No. 2 is needed to delete from the new Section 281, as introduced by Clause 9 of the Bill, reference to the now-removed subsection (4) of Clause 1. It is a purely technical amendment to accommodate the amendment proposed and accepted by your Lordships' House. I beg to move.

Lord Carter

My Lords, I am extremely grateful to the Minister for explaining the purpose of the amendment. Perhaps he could have been a little more forthcoming in explaining that the amendment which the House accepted was drafted by his department.

On Question, amendment agreed to.

Clause 10 [The child maintenance bonus]:

Baroness Hollis of Heigham moved Amendment No. 3:

Page 9, line 13, at end insert: ("() the bonus to accrue at the weekly rate (subject to paragraph (c)) whether or not the child support agency has actually collected the money for each week, in all cases where the total maintenance payable by the absent parent would allow for this.").

The noble Baroness said: My Lords, to coin a phrase of the Minister, I wonder whether arguments on this amendment will carry weight with the Minister.

We return to the issue of the regular payment bonus. The amendment is promoted by us in the context of a Child Support Agency which, to all our regrets, has become notorious for its history of administrative incompetence and shambles. I am sure that we all wish well the relatively new chief executive. I am sure we all hope and believe that she will be able to turn the agency round in the very near future. However, as it stands, it is undeniable that the CSA has an abysmal track record. Something like half of all its assessments appear to have been faulty or irregular. At least as many have not been adequately collected.

That produces a set of problems for mothers who expect maintenance and who have not received it or receive it only irregularly. It produces problems for the absent parent, usually the father, who may have had an inaccurate and over-high assessment.

The amendment deals with another problem which may result from an agency which has not so far proved to be administratively competent. It refers to the back-to-work bonus. As part of the incentive to get parents with care back into the labour market—we shall not explore the virtues or vices of that at this moment—the Government propose to roll up £5 of the maintenance as a disregard and to present it as a lump sum worth £1,000 at the point at which that parent with care goes back to work. We have argued that the woman should receive that £5 each and every week, rather than as a lump sum. But we are not visiting that issue; we are referring to the lump sum: a roll up of £5 a week of maintenance disregard over four years or thereabouts so that when she goes back to work she receives that lump sum of £1,000, provided that the agency has been competent enough to collect the money. We have no such confidence that it will be competent to do that.

We fear that because the agency has failed to collect it, the parent with care may not receive the maintenance bonus to which she is entitled. The failure would be that of the agency—and, goodness knows, we have enough track record to suggest that that is a likely possibility for many parents with care.

Therefore the amendment proposes that where the agency is at fault for having failed to collect the maintenance that is due, the mother should not he penalised for the agency's incompetence by losing her right to the £5 disregard being rolled up as her bonus. In other words, if she is abiding by her part of the bargain (getting ready to go back to work) the agency should be held to its part of the bargain: to collect and deliver the maintenance, including the back-to-work bonus.

That is what the amendment provides. Her right to that bonus is enshrined in the Bill. However, without such an amendment it will not be a right but a grace and favour option according to as, when, if and however the CSA collects the money. Such an amendment would not be necessary if the CSA had been run competently from the first. We know all the problems associated with that, but we do not wish to see the parent with care losing her right to the bonus which is enshrined in the Bill because of further administrative inefficiency of the CSA.

I hope that the amendment is acceptable, or some version which makes clear that where it is the fault of the CSA that the bonus has not been collected, the woman should not suffer but should receive the lump sum nonetheless. I beg to move.

Earl Russell

My Lords, I am happy to support the amendment to which I put my name. It is a modest amendment—modest to the point of bashfulness—but I believe that it is an entirely good amendment. Anyone who has had any dealings with maintenance is familiar with the problem that very often the maintenance does not arrive, is irregular, often incomplete and can stop for long periods. It is always difficult to get any hard information about what is going on.

The CSA was meant to improve the situation. Over the weekend I looked at the study by the Children's Society, Losing Support. It is based on case studies of 65 parents with care. It set out to find out how many of those 65 parents were better off as a result of the intervention of the CSA. The answer was none. Two had assessments which would have improved the position, but the ex-wives said that the assessments were too high and the payments were not coming in. The irregularities, incompetence and inaccuracies are, if anything, greater than they were under the old court system. The arrival of maintenance is extremely undependable.

Under the principles of the Citizen's Charter, if a public service undertakes to deliver a service and it fails to do so, some form of compensation is recognised to be due. If a train does not arrive, the passengers get a refund. In that situation, under exactly those principles, if maintenance does not arrive, the government agency has failed to deliver the service it undertook. So I think that some compensation is due. The amendment is fair and square within the principles of government policy as set out by the Prime Minister, and I hope that the Minister will accept it.

4 p.m.

Lord Carter

My Lords, perhaps I may add one point to the excellent opening speech by my noble friend Lady Hollis. The Minister will remember that when we raised the point at Report stage he said at col. 125 of Hansard for 19th June: I hear the point made by the noble Baroness; namely, that if it is the agency's fault that the absent parent has not paid, where does that leave the parent with care? I wonder whether she would mind if I consider that question and reflect on it?"—[Official Report, 19/6/95; col. 125.] I hope that after the Minister has reflected on it, he can help us with the point. As my noble friend said, if the amendment's wording is not exactly targeted in the way that the department would like, if the department accepts the argument about the inefficiencies of the agency resulting in non-collection, it is easiest to accept the amendment and alter it in the other place.

Lord Simon of Glaisdale

My Lords, in going through a sheaf of newspaper cuttings which I had accumulated in order to trace the behaviour of the Child Support Agency, I came across this headline which relates to the speeches which have just been made: Child Support Agency fails single parents, say five charities". That seems to support what has just been said by the noble Baroness and the noble Earl.

Lord Mackay of Ardbrecknish

My Lords, we discussed this amendment in Committee. Its effect is that a person with care will accrue a weekly bonus regardless of whether maintenance is actually paid. As I said in Committee, the amendment is defective as it stands because it takes no account of those cases where maintenance is paid direct to the parent with care. The bonus system can operate in those circumstances as well as the circumstances where it is paid through the Child Support Agency. The amendment moves to a totally notional system of crediting a bonus which takes no account of whether or not maintenance is paid. I shall come to the specific point on which I have indeed reflected. However, I believe that considered as it stands, the amendment would be an unsatisfactory approach.

The purpose of the child maintenance bonus is to improve work incentives and to give a person with care a direct benefit from the maintenance she receives. A person with care who receives income support or jobseeker's allowance, along with child maintenance, can accrue a credit based on the child maintenance taken into account in the income support or jobseeker's allowance assessment. The lump sum of up to £1,000 would be payable when the person with care leaves benefit to return to work. Like the bonus in the jobseeker's allowance, its purpose is to smooth the transition into work. Another advantage is that it does not reduce the incentive to return to work by narrowing the gap between out-of-work benefit and earnings.

We think that absent parents will also see that the accumulation of a bonus will benefit their children as a result of the maintenance they have paid. The amendment would introduce a notional scheme and remove any incentive for the absent parent to pay maintenance as the person with care would accumulate a bonus, even if he did not pay any maintenance.

Like the noble Baroness, I do not wish to revisit the argument on the more general question of disallowing the £5 of maintenance. However, it is interesting that it was that very incentive which formed the core of the argument in favour of the maintenance disregard by the noble Baroness and the noble Lord. I was not able then to accept that proposition due to the costs and the fact that it would narrow the gap between benefit and work. However, I understood the point made about incentives: incentives to pay concerning the maintenance disregard must be equally relevant when it comes to that bonus.

The introduction of a notional child maintenance bonus scheme would result in a substantial increase in costs. We estimate that a notional scheme would increase the cost of a child maintenance bonus by more than 50 per cent. It is possible that a notional scheme, without any incentive for the absent parent to make maintenance payments, might have a negative effect on the level of compliance resulting in a reduction in the amount of maintenance received by the Child Support Agency.

I have said before and hope that I do not have to say it too many more times today: an absent parent should not expect the taxpayer to support his children. We feel that parents should honour their responsibilities to their children whenever they can afford to do so. The amendment would, I fear, be a step along the road to maintenance guaranteed by the Government, whether it is paid or not. We have consistently opposed that as it undermines the principle that parents should maintain their own children to the extent that they can afford to do so.

The child maintenance bonus is in effect a deferred disregard; that is, it is equivalent to a disregard of maintenance received but with payment being deterred and made in a lump sum on moving into work. The bonus disregards maintenance received. It cannot disregard maintenance which is not received, any more than an earnings disregard can disregard earnings which are not received.

During the discussion in Committee, I explained that our aim is to allocate a bonus accordingly for the period over which payments are made. There was a discussion about the situation where the absent parent paid no maintenance and the parent with care would not accumulate a bonus. We are still considering the detailed rules by which fluctuating amounts of maintenance due and paid are translated into accrual of the bonus. I think I gave an assurance that we intended to ensure that if the absent parent paid rather intermittently but he still paid, then the amount paid would be rolled back over the weeks when he did not pay but ought to have paid. The £5 disregard would then be credited to the parent with care during the necessary number of weeks. Of course, the two would have to balance and it is quite a complicated piece of arithmetic.

No doubt it will also lead to complicated rules to deal with every case. It was to deal with a situation that was put to me where—

Baroness Hollis of Heigham

My Lords, the Minister seems to be saying that it has to balance. I presume he means that over a period of three or six months the total coming in should meet the total that was levied in order for the £5 back-to-work bonus to be rolled up. Is that what the Minister is saying? If not, the basic point is that if there is an irregularity or failure to collect due solely to the CSA, what is the CSA's responsibility for making good the shortfall in the bonus? Why should the mother suffer because the CSA does not do its job?

Lord Mackay of Ardbrecknish

My Lords, I shall come to the second point in a minute concerning non-payment from the CSA. If the absent parent does not pay, it is fundamentally his responsibility. It is the responsibility of the CSA to collect the payment, if it comes through the agency. Without wishing to bring the wrath of the noble Earl down on my neck, the villain of the piece is the absent parent who is not paying and he is the person to whom we should direct our attention.

Perhaps I did not explain the point as well as I might. If the absent parent decides to pay either through the CSA or direct to the parent with care in an intermittent way, he will not be obliged to pay the full amount before the parent receives the £5. As long as he pays £5 or more, the parent will be credited with that £5 bonus. Obviously, if he pays less than £5, as the Bill lays down, the parent with care will be credited with the £4 or £3 which he pays. But he will not have to pay the full amount. Let us say that the full amount is £50 a week, it would not work out at that. If it turned out to be £40, then the parent with care would obviously still receive the bonus. We are examining the details because there are complications which the noble Baroness probably perceives, as I do, about how one decides the period over which the money is to be spread, if the person does not provide sufficient money. We are turning our attention to that because we do not wish the parent with care to suffer. We are keen to see the bonus rolling up in order to help the parent with care back into work when and if she decides to take that step.

We are still considering the detailed rules by which fluctuating amounts of maintenance due and paid are translated into how we accrue the bonus. It may be possible to go some way towards meeting the concerns underlying the comments of the noble Baroness and the noble Lord, Lord Carter. But we do not wish to breach the essential principle that the maintenance bonus is linked to the actual fulfilment of his responsibilities by the absent parent. I believe that none of us would wish the scheme to encourage non-compliance.

I turn to the question put to me today by the noble Baroness, the noble Lord, Lord Carter, and the noble Earl, Lord Russell. It was also put at the Committee stage and the noble Lord, Lord Carter, kindly reminded me that I said that I would reflect on the point. It related to circumstances where maintenance had not been collected solely as a result of lack of action by the Child Support Agency. I considered this particular point carefully. I do not consider that a special provision is necessary. Arrangements are already in existence to provide ex gratia compensation where individuals have suffered actual financial loss as a result of official error. Work is in hand to introduce compensation arrangements specifically tailored to the work of the Child Support Agency; in the meantime, cases are considered on their merits under the terms of the existing departmental arrangements. This is the appropriate route for dealing with cases of financial loss through official error rather than adding specific provision to the Bill which goes significantly wider than the failure of the CSA to collect when money is routed through it.

Having reflected on the particular point, namely when problems arise as the fault of the CSA, I can give the noble Baroness an assurance that the procedures that we are currently exploring in order to put them in place will deal with the position where there will be financial loss.

Clearly, the accumulation of the bonus would represent, on the day that the parent with care decided to go into work, a financial loss to her. That is one of the issues that we shall have to address when examining arrangements that we wish to bring into being to deal with compensation. I have tried to be helpful while, I am afraid, having to resist the disconnection of the bonus from any money paid by the parent. I hope that I have shown that we are examining carefully and sympathetically the problem of an absent parent who is intermittent in his payments. The theory works perfectly if the man pays weekly, on time, as he should. The difficulty arises when that breaks down. We are looking at ways in which to deal with the parent who pays in larger sums from time to time and probably after much pressure is brought to bear on him. We are also examining the problem that will occur if lack of collection was the fault of the agency. As I say, we intend to put in place systems that will compensate for faults in the agency when it causes financial problems for the parties concerned, in this case the parent with care. With that explanation, I hope that noble Lords and the noble Baroness will feel that I am genuine in my desire to try to accommodate these particular difficulties. I believe that they are best left to regulations or rules—dare I say?—on compensation arrangements rather than primary legislation.

Earl Russell

My Lords, before the Minister sits down, he said that he was afraid of calling down my wrath on his head for saying that the absent parent was the villain because he was not paying. I assure him that he will draw no wrath down on his head if he extends his statement just a little further: the absent parent is the villain of the piece if he is not paying, can afford to pay and is correctly assessed. Can the Minister go that far?

Lord Mackay of Ardbrecknish

My Lords, our whole approach is based on trying to devise a system to make sure that the absent parent is asked to pay what he can afford to pay, consistent with the formula that Parliament has agreed, and that he has been properly assessed. I think I can go some way in agreeing with the noble Earl—which seems to me to be rather a good way to start this Third Reading.

Lord Carter

My Lords, before the Minister sits down and with the leave of the House, the Minister seems to have defined the villain as at least half a villain. Can he go into just a little more detail? We are concerned about the agency's inefficiency resulting in non-collection. He said that the existing procedure is ex gratia. What is the procedure? Does the matter go to a commissioner? Is it done under a departmental arrangement? Is it informal? How does it work? I see that the Minister may need time to reflect, but I remind him that this is Third Reading. Can we be given some sort of timescale so that we know when the procedures being devised will be in place?

Lord Mackay of Ardbrecknish

My Lords, as the noble Lord knows, there are arrangements throughout the Department of Social Security to deal with departmental errors. That includes errors in agencies. The special payments arrangements currently in place in the Department of Social Security were set up as long ago as 1977, following a recommendation of the Select Committee on the Parliamentary Commissioner for Administration. Under the terms of the arrangements, which are ex gratia and discretionary, compensation may be considered where payment of benefit has been delayed unduly or where actual financial loss has occurred as a direct result of clear and unambiguous official error. There is no legal entitlement to special payments, and no right of appeal if a payment is refused.

As to the second part of the noble Lord's question, we hope that we can have negotiations with the ever-present Treasury that will be completed by the end of the summer and that proper arrangements will be in place, with a useful delegation to give the Child Support Agency's compensation unit the procedures to deal with these and other problems, by the autumn.

4.15 p.m.

Baroness Hollis of Heigham

My Lords, this short debate has been rather informative, although I feel that the Minister failed to accept responsibility for the issue that lies at the core. We are not talking about villains; that vocabulary is not especially helpful. The matter is not that simple. We are talking about absent fathers, many of whom will he reluctant to pay and will he avoiding paying, interlocking with an agency that has a track record of incompetence and inability to collect. The two together will result in a situation in which, too often, the parent with care will fail to have enough maintenance to generate a disregard which would be paid to her as a back-to-work bonus.

If we could easily and cleanly identify the fault as being the father's or that of the CSA, then indeed the world might look as the Minister describes it, with official error being rectified or the fault being all the father's and nothing to do with the CSA. But that is not what it is like out there. What is happening is that the incompetence of the CSA is magnified by the reluctance of fathers to pay; and the reluctance of fathers to pay is magnified by their knowledge that the CSA is incompetent to collect. The person who loses out is the mother in the middle. If the matter were clean and simple, we should not have tabled the amendment in this form.

The point is that any woman who is on income support has no choice but to use the CSA as the collection agent. She will not therefore know whether she is failing to receive her back-to-work bonus because the father is refusing to pay maintenance or because the CSA has failed to collect it. We know that it will be a mixture of the two, and that this will be a moving game over three or four years. But the mother will not know. She cannot go to a more efficient collection agency to make sure that the father pays; she has no choice. She is stuck with what the Government have required; namely, that the CSA will collect the maintenance. Then, when the CSA does not collect—whether because it is less than competent or because the husband is more successful than usual in avoiding payment—she suffers.

Why should she suffer? She is very poor indeed. She is on income support. She has not deserted her children, is looking after them, struggling to keep and maintain them and hoping to go back into work. But the one sop that the Government have given to that parent with care is that there will be a modest disregard rolled up in what is called a back-to-work bonus. Then, of course, she learns that she will receive that only if the CSA has managed to do what it is required to do; namely, collect the darned money. That is not fair. She cannot control whether she receives the money or not.

It is no use the Minister saying that if the money is paid, there is no incentive for the father to contribute his maintenance. That is irrelevant. It is the job of the CSA to collect the money. Of course the father may be reluctant to pay. That is the whole history of the CSA. The point of the CSA was to ensure collection. The Minister is not only letting fathers off the hook; he is letting the CSA off the hook as well when it fails, through other than very obvious clerical errors, to collect.

This amendment not only offers an incentive for the father to pay. It also offers an incentive for the CSA to collect. Without such an amendment, as the Minister accepts, there is no such incentive. It is pretty rough for the Minister to tell a mother with care who is bringing up her children in straitened circumstances, trying to be independent, hoping to return to work and counting on a back-to-work bonus as one of the few concessions that the Government have made, that whether or not she receives the money depends on whether or not the CSA has managed to collect it. If she says, "Can I have a more efficient collection agency?", she cannot. She has no choice. She has to get it from the CSA.

I wonder whether the Minister can be persuaded to help us a little further. This arrangement is so unfair. The mother with care is totally dependent on the competence of an agency that has a bad track record and is notorious for incompetence. As a result, she goes without. Why should she? What is fair about that? Can the Minister help me, please?

Lord Mackay of Ardbrecknish

My Lords, with the leave of the House, perhaps I may say to the noble Baroness that I do not know whether I can help her. The compensation arrangements that I described are already there so far as concerns the whole department and, as I said, will be tailor made for the agency which will he in position in the autumn.

Clearly, it would be an incentive for the agency to make sure that it collects and does not fall down on its job, thus finding that it has to make up for the financial loss by paying the bonus for those weeks for which it did not collect the bonus from the absent parent because of its own fault. So there is an incentive for the agency to make sure that it collects. That and a number of other aims are the targets which we set the agency. I totally agree with the noble Baroness that the collection is very important indeed. So far as the agency is concerned, I believe that there is a stick to make sure that it does its job properly with regard to collection.

The argument with regard to the absent parent is difficult. As I said, the noble Baroness argued the other way about the maintenance disregard to try to give the absent parent an incentive. I very much hope, as a result of our efforts last April and of the departures arranged in this Bill, that the excuses used by many absent parents not to face up to their responsibilities will be peeled away and that many more absent parents will accept their responsibilities. I should have thought that the very fact that the two main political parties in this country are at one on the principles ought to tell absent parents that, rather than flirt with people who they think might agree with them at the edges of the political scene, it would be better to take on board the fact that the main players in politics in this country believe quite firmly that the agency is here to stay and that absent parents should take on their responsibilities.

Those are all the assurances that I can give to the noble Baroness. I shall have to leave the matter there.

Baroness Hollis of Heigham

My Lords, I thank the Minister for his reply. I realise that we are at Third Reading and this is not Committee stage. Therefore, it would be unreasonable to press the matter further. I take it that the parent with care will receive a print-out at the end of each year as to where her bonus has got to. I also take it that if, as a result, at the end of that first year it is clear that many parents with care are receiving an incomplete contribution towards their bonus because of the incompetence of the CSA, the Minister will bring regulations before this House to ensure that in future we can take up the spirit of this amendment.

If, in practice, the CSA fails to do what we fear it will fail to do, which is to collect reliably, it is the woman, the parent with care, who will suffer. On the understanding that she will receive an annual print-out of the bonus that is credited to her, and thereby we can monitor that she is receiving what she has been promised; and on the understanding that, if she is not getting what she has been promised—and that is clearly owing at least in part to the inadequacies of the CSA—we can revisit the subject and the Minister will make regulations to overcome those deficiencies of the CSA; then, in the light of all that, with your Lordships' leave, I withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 4: Before Clause 18, insert the following new clause:

("Appeals to child support appeal tribunals: amendment of section

20 of 1991 Act

. In section 20 of the 1991 Act (appeals), subsection (1), at end insert— () Any parent with care who has satisfied the obligations to authorise the Secretary of State under section 6(I) and to provide information under section 6(9) but is aggrieved by a decision of the Secretary of State made under sections 6(2) or (II) may appeal to a child support appeal tribunal against that decision.'"').

The noble Earl said: My Lords, this amendment deals with the harm and undue stress provisions. They allow the mother not to give information if she or her family may suffer harm or undue distress as a result of doing so.

That was a very welcome change in the 1991 Act, as a result of the efforts of the noble Lord, Lord Henley, and other Members of this House. The effect of this amendment is to extend those provisions so that they may, on appeal, apply to someone who has signed the authorisation to the Secretary of State and then comes to believe that she may experience harm or undue distress as a result of having done so.

Research on the ground suggests that this is a very necessary provision. I referred to the Children's Society's study Losing Support. It found that 12 out of 54 mothers who had completed a maintenance application form were unaware at the time that they had any right at all to refuse to co-operate with the agency and were unaware of the circumstances in which consent could legitimately be withheld. One of them who had been a victim of domestic violence completed the form because she believed that the risk of a deduction from her income support was a greater threat than her ex-husband's potential violence.

When the Minister talks about women being made to consider very carefully whether they should refuse to co-operate with the agency, whether or not he knows it, that is the kind of thing to which he is referring. In that sample, four single mothers had tried to withdraw their agreement to co-operate, once they had found out about their rights and had some experience of the effects of co-operating. All of them found it to be impossible. That is the situation that this amendment is designed to address.

Some further research, which is still in progress, came to hand this morning. It is the kind of thing where the footnotes are not yet checked, so I ask the Minister to treat it with caution, as its author has asked me to do. It reveals quite a lot of problems. People asked to sign the form under Section 6(1) of the 1991 Act find that they experience a good deal of difficulty. Only three out of 15 who claimed harm and undue distress managed to get the matter resolved quickly. All of them first had a distressing interview with the child support officer or were required to produce medical evidence.

I did not have time this morning to check the Official Report, but I thought that we were given an assurance in 1991 that they would not be required to provide medical evidence. They had been put under considerable pressure. One of them told the officer, "He has a thingummy for assault; check his records. What they said to me about this form was that it was against the law for me not to sign it." That is the kind of situation in which a woman may want to invoke the harm and undue distress provisions when she did not do so initially.

Let us consider what happened to that particular woman. Some time afterwards she encountered her former partner: He got me coming down from the shops and started shouting at me and threatening me because the CSA had sent another letter to his work. I never gave them any information because I knew what was going to happen".

So she found herself in danger as a result of the CSA's actions, even without her co-operation.

It seems to me only equitable that a woman in that situation should be able to invoke the harm and undue distress provisions, even though she had originally, before she knew that she would encounter such a reaction from her former partner, signed the maintenance application form. As the law stands at the moment, if a woman once signs a maintenance application form, it is like selling her dowry. She never gets it back. She never gets back the right to invoke harm and undue distress. I feel that a great deal of pain, violence and possibly bloodshed might be saved if this amendment were accepted. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, as I previously explained during the progress of the Bill in its various other stages, parents with care who are in receipt of relevant benefit are required to give their authority for maintenance to be sought unless the Secretary of State considers that there would be a risk of harm or undue distress occurring to the parent with care or any child living with her if she were to do so.

This amendment would give a parent with care, who has given her authority, the right to appeal to a child support appeal tribunal that the requirement should not have been imposed or should be withdrawn. No parent with care is required to give her authorisation without the agency first giving careful consideration as to whether giving that authorisation would cause her, or any child living with her, harm or undue distress. Even after she has given her authorisation, if she believes that she or any child living with her might be caused harm or undue distress if it remains in force, she can ask the Secretary of State to consider the position and, if he accepts that there is a risk of harm or undue distress, he will lift the requirement to co-operate. If I heard the noble Earl correctly, he did not seem to realise that that possibility existed for a parent with care who had given her authorisation but who then, as he described it, had second thoughts about it—perhaps because of other circumstances. So she can ask the Secretary of State to consider the position. If he accepts that there is a risk, he will lift the requirement to co-operate. The parent with care can then ask the Secretary of State to cease pursuing maintenance, and he must do so.

I have described in some detail in earlier proceedings the detailed procedures we go through in order to make sure that the parent with care realises that she does have the right to ask for the requirement to co-operate to be lifted. I do not propose to repeat them at length at Third Reading. I will simply say that the parent with care has, in total, 12 weeks to consider her position with several opportunities to make further representations during that time. The child support officer will consider making a reduced benefit direction only if he is satisfied that there are no reasonable grounds for believing that there is a risk of harm or undue distress by imposing the requirement to co-operate. The parent with care has a right of appeal against the child support officer's decision to impose a reduced benefit direction. The appeal tribunal will consider all the relevant facts and will decide whether the child support officer's decision was correct.

The noble Earl asked about the need for medical evidence. Guidance to staff is that the parent with care should be believed unless what she says is contradictory or inherently improbable. Evidence is helpful, but it is not essential. The intention is that all parents with care should co-operate unless there is a risk that harm or undue distress might occur to the parent or any child living with her. I have said many times before why that is right. A parent with care should not prevent the payment of maintenance by the absent parent and allow the burden of maintaining her children to fall on the taxpayer, unless there is good reason.

It is not Parliament's intention that co-operation in seeking maintenance should be voluntary. If a parent has good reason not to co-operate once she has given her authority, then she will be listened to and, if she has good cause, the Secretary of State will withdraw the requirement on her to co-operate and will cease collecting maintenance if she requests him to do so. If she does not have good cause for refusing to co-operate, the agency will continue to seek and collect maintenance and it is right that it should do so.

I hope I have shown that there are already sufficient practical safeguards built into the requirement to co-operate process. Several different officers are involved in the decision-making process and, finally, there is already a right of appeal against the decision to impose a reduced benefit direction. I do not believe that there is any need for a right of appeal against the decision to impose the requirement and invite the noble Earl to withdraw his amendment in the light of my explanations, both today and at previous stages, as to the steps that must be taken before the agency can come to the conclusion that a direction should be imposed.

4.30 p.m.

Earl Russell

My Lords, I believe the Minister described entirely correctly how the world exists in the Government's intentions. Unfortunately, that is almost equivalent to saying that he described how the world exists in the Government's imagination. If the Minister looks at the Children's Society study—it is a serious study by reputable scholars—he will find that that is not the way it is on the ground. People are being placed under severe pressure to sign the form to authorise the Secretary of State.

With regard to asking the Secretary of State to change his mind after signing the form, that is a little like saying that I can ask the Minister to agree to amendments. So I can; so can any man; but will he come when I call him?

The Minister's response is not good enough. Circumstances may change later on and it is certainly the case on the ground that in the study to which I referred all the women who found the need to invoke the "harm and undue distress" provisions after signing the form, found that it was utterly impossible and no such application would be entertained.

If the Government's intentions are as they are—I accept the Minister's description of them—can he make even stronger efforts to communicate them to the people on the ground? Can he say whether those who enforce these provisions are subject to performance-related pay, and is the number of cases of harm and undue distress they allow any part of that performance? I should be grateful for an answer to that question before I decide what to do with the amendment.

Lord Mackay of Ardbrecknish

My Lords, I have already explained, in my answer to the question about medical evidence, that guidance is given to staff in regard to what they should do and what they should seek. That is one point.

The second point is that of course there is performance-related pay. I am afraid I cannot say off the top of my head at this Dispatch Box what the detail is of how it is arrived at, but by raising it the noble Earl clearly implies that officers of the Child Support Agency, knowing that the woman had good cause, would take the opposite decision simply in order to get cases out. I reject that. I am pretty certain that all the officers of the agency, as indeed all civil servants do, attempt to do their job to the best of their ability and to be fair to all the parties. I underline "all" the parties; not just the person in front of them, but also the taxpayer who stands behind all this. I must therefore reject the suggestion implicit in the noble Earl's question regarding the way in which officials of the agency work. Agency officials can take into account what the parent with care is saying. She has all the opportunities I mentioned to explain to the officers of the agency why she would be fearful and what she thinks her ex-partner might do to her if she were to give the agency details to allow them to pursue him for payment of maintenance. But they must make the judgment of whether that is reasonable. I have tried to explain that in those circumstances they give the parent with care the benefit of the doubt.

In regard to looking again at the process in practice, we have a working party looking at the requirement to co-operate and it is examining the process. If it gives any comfort to the noble Earl, I shall ask to have a discussion with them to satisfy myself that the answers I have given him are correct in relation to the way in which officials behave in this matter.

Earl Russell

My Lords, the Minister says that people are not influenced by financial incentives. Coming from a free market government I find that a little surprising. I have not for a moment been suggesting anything improper. The Minister must have heard the phrase "grey area". There are a great many decisions for which one can see defensible reasons for making them one way or the other, and if performance-related pay does not create an incentive to make decisions one way rather than the other, what on earth is it doing?

I heard what the Minister said about the working party and welcome it. I ask him to think very carefully indeed about whether things really are working on the ground in the way that he thinks they are. There are large numbers of women throughout the country who are a great deal more reluctant to co-operate with the agency than they were when it first came into being and, from the Minister's point of view, that is not good news. But it is his problem. He will have to cope with it. I think I can leave him to it and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 5: Before Clause 18, insert the following new clause:

("Appeal to the High Court: repeal of sections 22 to 25 of 1991 Act

.—(1) Sections 22 to 25 of the 1991 Act (relating to Child Support Commissioners) shall cease to have effect.

(2) For the purpose of this section, "relevant decision" means any decision made under the 1991 Act or this Act by a relevant entity; and "relevant entity" means—

  1. (a) a Child Support Appeal Tribunal;
  2. (b) a magistrates' court or a sheriff court; or
  3. (c) in the case of a decision from which no appeal lies (directly or after a review) to a Child Support Appeal Tribunal or to a magistrates' court or a sheriff court, the Secretary of State or a child support officer.

(3) Any person affected by a relevant decision may (without any leave) appeal to the High Court, where such an appeal shall be assigned to the Family Division; or, in Scotland, to the Court of Session.

(4) The parties to such an appeal shall include the Secretary of State and the person with care and the absent parent under the assessment in question.

(5) On such an appeal, the court may—

  1. (a) correct any error of fact or law involved in the decision appealed from;
  2. (b) itself exercise any discretion which had been exercised in the decision appealed from;
  3. (c) make an appropriate order which may be consequential on the foregoing; and
  4. (d) make any other order which it may consider necessary in order to prevent the operation of the 1991 Act or this Act from causing hardship or injustice to any person.

(6) For the avoidance of doubt, it is declared that subsection (5) (d) above enables the court to make an order which could not have been made by the entity whose decision is appealed from.

(7) Unless the court otherwise orders, the costs of all the parties to an appeal under this section shall be paid on an indemnity basis by the Secretary of State.").

The noble Earl said: My Lords, the Minister said just a few moments ago—I think I have his words correct—that he hoped that the excuses for absent parents not to face up to their responsibilities will he peeled away. I am asking the Minister to have the courage of his convictions on that. I think we are all agreed that absent parents are responsible for the maintenance of their children. I think we are all agreed that they have to pay, in proportion to their means, what they can and as they can. The question is whether that is being achieved by this Bill or whether it is as disproportionate to actual ability to pay as was the poll tax. If the Minister's confidence is justified, then he need not he afraid of accepting this amendment, which allows an appeal to the High Court for those who are dissatisfied with their experience of the Act.

Anyone who suffers a grievance will want redress. That is part of the human condition and it is part of the stuff of ordinary politics. Anyone who tries to go to the CSA and get any kind of sense by way of an answer out of it will get nothing. I remember how I felt when I once had to close a bank account in California. I needed the money urgently because it was owed to the Inland Revenue in this country. But over six months I received one computer-generated letter after another inviting me, now back in London, to attend seminars on house purchase in California. The only thing that got an answer out of that California bank was my London bank manager dressing up to look like a bailiff and going and sitting for two days in the bank's London head office until it did something.

Dealing with the CSA is a good deal worse than that. If one needs to get an answer out of the CSA one has to start by going through the Minister; and even then it is difficult. The Minister knows that himself. He knows how many such cases have come into his office. That is why this amendment provides for those who are aggrieved by the actions of the CSA—and very many people are—to be able to have their day in court and to give the court power to correct any error of fact or law involved in the decision.

That is a quite vital provision because it compels the CSA to answer before a higher authority. I say to the Minister that we are all concerned to discourage people from illegal forms of protest. No one in Parliament can possibly want to see those. But the desire to be able to try to find some kind of redress is a very deep one and it cannot be abolished. If we want to prevent people from seeking redress in illegal ways, of the kind none of us approves, we have to create legitimate outlets for grievances—and a legitimate appeal to a properly constituted court of law is such a recourse. It is far, far preferable to having people disturbing the peace and quiet of Ministers in the very small amount of time they ever get off work. That is one argument for the amendment.

The second argument concerns the powers of the CSA, which are fairly extreme. It sticks in my gullet to have that kind of power enjoyed by a body whose decisions, by its own admission, are very nearly 50 per cent. erroneous. I was going through my CSA papers over the weekend and came across a letter I had written before the gracious Speech to my honourable friend Liz Lynne, at her request. We were discussing among ourselves, when we were expecting in the gracious Speech a Bill to amend the 1991 Act, what would be the minimum terms we would need to find in that Bill in order to agree to the continuation of the 1991 Act. I offered my honourable friend three, and there were others which we do not need to go into now.

One was that the parent with care should never he below income support level because she was getting maintenance. We found on the maintenance disregard amendment that the Minister was not persuaded about that. The second was that the absent parent should never be below income support level because he was paying maintenance. That has not been achieved. My third—this is the one which is relevant to the amendment—was that, whatever other departures and so forth there were, there should be a discretion to vary the formula in circumstances which no one had foreseen.

The noble Lord, Lord Renton, was quite right in the Renton Report that the draftsman can never foresee all circumstances. It is the weakness of the departure formula on which the Minister has relied that it can only ease the formula in situations which the draftsman happens to have foreseen. He can go on and on making more regulations but he cannot make the regulations until after the case has arisen. He cannot lock the stable door until after the horse has bolted. That is why this amendment also includes a power for the court, which is, of course, not an interested party—it is not judge and party in its own cause—to make, any other order which it may consider necessary in order to prevent the operation of the 1991 Act or this Act from causing hardship or injustice".

On these Benches those were always the minimum conditions on which we would agree to the 1991 Act. I said that in this Chamber in 1991 and I have not changed my mind since. I have never understood that a tiny piece of exposure to evidence, to respect for an individual case, would actually wreck the Act. I believe that it would strengthen it. But if the Minister says that it would wreck the Act, that would be the worse for the Act. However, if he wishes to preserve the Act, I think he would be extremely wise to accept the amendment. I beg to move.

4.45 p.m.

Lord Simon of Glaisdale

My Lords, I venture to support this amendment. It brought back to my mind something that occurred in 1991, which those who were concerned with that Bill will recollect. The Bill as introduced allowed for an appeal either to a court of law or to an administrative tribunal. It was pointed out that the Government had to make up their mind what they wanted. Then there was a long, long pause between the Committee and Report stages. It was exceptional in that regard that the Bill was not hurried on so fast that there could not be discussion.

We all knew what that was due to and what was happening. There was an argument between the Lord Chancellor's Department and the Department of Social Security. As we expected, and entirely consonant with the 1991 legislation, the Lord Chancellor's Department, representing the rule of traditional law, was defeated. Appeals went to an administrative tribunal entirely consonantly with what the 1991 measure provided. Decisions were not to be made by a magistrates' court, as theretofor, were not to be made subject to appeals to the High Court, but were to be made by regulations, by administrative ukase, by officials applying an algebraic formula which no one claimed to understand; and if there was an appeal it was to go to an administrative tribunal.

In his amendment the noble Earl is trying to nudge us a little further back towards the rule of law. That is thoroughly satisfactory. I entirely agree with him that we really want to get rid of the 1991 Act; to provide appeals from a Magistrates' Court and to translate that court into a family court, as has been urged authoritatively time after time, and thus restore the rule of law in this respect. Failing that, it seems to me that what the noble Earl proposes is salutary.

The Minister has argued strenuously that what he recommends is right because it amounts to making absent fathers support their children as far as is reasonable. That was precisely the provision that was in the Summary Jurisdiction Act 1895. Perhaps I may be forgiven for egotism. I point to a decision of the Divisional Court during my time there. It was the decision in the Attwood case which was binding on magistrates and which they implemented.

We said that where there are two households in the place of one previously, the standard of living of both is likely to be reduced because one income has now to support two households and, frequently, two families. We said that although that might be so, the first wife and her children should never be relegated to a standard of life lower than that of the husband or any second family of his. Of course, one could only draw a broad picture because, naturally, where there are two households, the husband will inevitably tend to favour the second. The Minister is quite wrong in believing that he, his department and the Child Support Agency have invented any new principle or approach. That is not so. I support this amendment.

Lord Mackay of Ardbrecknish

My Lords, the noble Earl, Lord Russell, has proposed a new clause very similar to one he proposed at Report stage of this Bill, which would repeal Sections 22 to 25 of the 1991 Act and allow appeals to the High Court instead of, as now, to a Child Support Commissioner.

I do not intend to rehearse at length all the arguments I have previously advanced as to why I do not consider this amendment proposes a sensible way forward. But I should like to remind your Lordships of my principal objections. First, this amendment would undermine all first and second level decisions on the assessment, payment and collection of child support maintenance. In effect, it would return such questions to the courts. The noble Lord, Lord Simon of Glaisdale, has made it clear on a number of occasions that that is his preferred solution to this problem of child maintenance.

Secondly, the lack of any requirement to obtain leave to appeal would result in a great deal of extra work for the High Court and the Court of Session and family law cases currently being dealt with by the High Court would be very seriously delayed. Thirdly, and last, the proposal that all costs would fall to the Secretary of State would be a most unwelcome burden on the taxpayer. And this burden could be quite considerable since hopeless, or even vexatious, cases could be pressed with no fear of incurring costs.

I fear that that is exactly what would happen. I have read a news-sheet by an organisation called NACSA, in which the noble Earl and his honourable friend, Ms. Liz Lynne, could be described as the hero and the heroine. In that news sheet, and rather in jest, they "scold" what some of their members are doing in order to make the CSA's task even more difficult. It refers to complaints about replies not being received to non-existent letters; mass requests for interviews at local DSS offices; and informing the agency of a change of address about once a month. To keep it simple, we are told that group members are in effect constantly moving into each other's houses. It is like musical homes. The trouble is that if they continue like that for very long, the poor CSA officials will end up running around in circles, not knowing where to send letters.

If anyone doubts my judgment that vexatious and hopeless cases would clutter up the whole High Court system, I hope that from what I have quoted from this news magazine about the people who have been involved in doing a great deal of damage to the CSA, it will be realised that such people will very rapidly get to work on this system in order to make sure that the CSA, even with the new system, does not work. I believe that there would be vexatious appeals. That is the way in which we believe that the situation would work out.

The noble Earl made it clear on an earlier occasion that, like the noble and learned Lord, Lord Simon of Glaisdale, his real objection is to the current system, and that he believes that it does not allow anyone who is aggrieved by any decision under the Child Support Act or its regulations, a proper right of appeal. I cannot accept that. I am sure that your Lordships are well aware of the route a person will follow if he wishes to challenge a decision of a child support officer.

The first stage is an internal review of the decision by a second child support officer within the agency. As I have explained before, that will—and does in fact—resolve some of the mistakes that are made, perhaps from both sides, because everyone involved with filling in forms knows that mistakes can he made. The person who completes the form can make mistakes in the same way as the person who reads it.

Thereafter the case may proceed to appeal before an independent appeal tribunal; the child support appeal tribunal. These tribunals are completely independent and will have a legally qualified chairman and, normally, two members who are appointed by the president of the child support appeal tribunals from a panel of people who, in his opinion, have knowledge of the area and are representative of people living or working in the area.

Any further challenge must be taken, with leave, to a child support commissioner. This will be on a point of law. A commissioner's legal standing is equivalent to that of a High Court judge and his decision on any case creates case law to be followed in later, similar cases. An appeal against a commissioner's decision may be made to the Court of Appeal or the Court of Session.

The current system allows for a higher adjudicating authority to decide whether or not a child support officer has reached his decision within the provisions of the Act and regulations. It also allows for the law to grow, in a way which the noble Earl should approve of, through commissioners' decisions and decisions of the Court of Appeal or the Court of Session and the Judicial Committee of your Lordships' House. I believe this approach is entirely appropriate for the purpose. The noble Earl's amendment is neither necessary nor desirable. I hope that with my explanation of what goes on currently, he will be persuaded to withdraw his amendment.

Earl Russell

My Lords, I do not know whether the Minister watched the "Newsnight" debate on the Conservative leadership. He will have heard some quite strong opinions expressed. I would not dream of hurling those opinions against him across the Chamber. I would not hold him responsible for some of his, shall I say, rather more unusual followers. I ask the Minister to return the compliment.

I think that the Minister knows that we on these Benches are entirely committed to action in legal and political forms. I think that he also understands that it is our party's position—and has been so since my great-grandfather made it so in 1832—that we can prevent illegal forms of protest only by creating the hope of legitimate political change and by creating a channel through which that can be pursued. That is what I am attempting to do here and I should be very disappointed if the Minister held it against me.

The Minister says that the amendment would undermine all the lower levels of the system. No, it would not. It would help to gain the system consent and, thank God, even in near-dictatorships it is often impossible to operate a detailed administrative procedure without some degree of consent. If that ever ceases to be so, I shall regret it. Of course, over time the courts would build up a series of principles, test cases and verdicts which were known which would narrow the area within which any appeal could take place.

The Minister invoked extra work, but there is no doubt that the CSA cannot do the work as it stands at the moment. If the Minister feels like introducing an estimate or getting his right honourable and honourable friends in another place to introduce an estimate to double, treble or quadruple the estimates of the CSA, perhaps he could then complain about extra work. Let him shoulder the work first before he complains about it being moved anywhere else.

The Minister complained that the lawsuits might be vexatious. He has such confidence in the rightness of his formula. I wonder whether he recognises that there could be any other. Here we come to the hub of the problem: all governments think they are right. All Administrations see it their own way. They are all aware of how utterly reasonable they are. They therefore become impatient and rather like the German diplomat in Ustinov's Diplomats who said, "Why is everyone so stubborn? Nein! nein! nein". That is a mood that every administrator understands. That is why there must be a review by an impartial authority, bound by the rule of law and with no interest in getting it right. I commend the amendment to the House.

5.2 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 26; Not-Contents, 110.

Division No. 1
Addington, L McNair, L.
Broadbridge, L. Mayhew, L.
Donaldson of Kingsbridge, L. Murray of Epping Forest, L.
Ezra, L. Redesdale, L.
Falkland, V. Russell, E. [Teller.]
Geraint, L. Sainsbury, L.
Halsbury, E. Seear, B. [Teller.]
Hanworth, V. Simon of Glaisdale, L.
Harris of Greenwich, L. Stallard, L.
Holme of Cheltenham, L. Thomson of Monifieth, L.
Hooson, L. Tope, L.
Kilbracken, L. Tordoff, L.
Listowel, E. Whaddon, L.
Addison, V. Harlech, L.
Ailesbury, M. Hayhoe, L.
Ailsa, M. Henley. L.
Aldington, L. Hooper, B.
Alexander of Tunis, E. Howe, E.
Allenby of Megiddo, V. Inglewood, L.
Ampthill, L. Jenkin of Roding, L.
Annaly, L. Kingsland, L.
Archer of Weston-Super-Mare, L. Lauderdale, E.
Lindsay, E.
Balfour, E. Lindsey and Abingdon, E.
Belhaven and Stenton, L. Long, V. [Teller.]
Birdwood, L. Lucas, L.
Blaker, L. Lyell, L.
Blatch, B. McColl of Dulwich, L.
Boyd-Carpenter, L. Mackay of Ardbrecknish, L.
Brabazon of Tara, L. Mackay of Clashfern, L. [Lord Chancellor.]
Braine of Wheatley, L.
Brigstocke, B. Macleod of Borve, B.
Brookeborough, V. Malmesbury, E.
Burnham, L. Massereene and Ferrard, V.
Cadman, L. Merrivale, L.
Caldecote, V. Mersey, V.
Campbell of Croy, L. Miller of Hendon, B.
Carr of Hadley, L. Milverton, L.
Chalker of Wallasey, B. Mountevans, L.
Chelmsford, V. Mowbray and Stourton, L.
Clark of Kempston, L. Munster, E.
Courtown, E. Murton of Lindisfarne, L.
Cranhorne, V. [Lord Privy Seal.] Nelson, E.
Newall, L.
Cumberlege, B. Northesk, E.
Davidson, V. O'Cathain, B.
Dean of Harptree, L. Orkney, E.
Denham, L. Oxfuird. V.
Denton of Wakefield, B. Platt of Writtle, B.
Dixon-Smith, L. Rankeillour, L.
Eden of Winton, L. Rawlings, B.
Elles, B. Rawlinson of Ewell, L.
Elliott of Morpeth. L. Rees, L.
Flather, B. Renton, L.
Foley, L. Rodger of Earlsferry, L.
Fraser of Carmyllie, L. Romney, E.
Gardner of Parkes, B. St. John of Bletso, L.
Gisborough, L. St. John of Fawsley, L.
Goschen, V. Saltoun of Abernethy, Ly.
Gray of Contin, L. Sandford, L.
Harding of Petherton. L. Sandys. L.
Seccombe, B. Strathcona and Mount Royal, L.
Shaw of Northstead, L.
Skelmersdale, L. Sudeley, L.
Slim, V. Tebbit, L.
Teviot, L.
Strabolgi, L. Thomas of Gwydir, L.
Strange, B. Vivian, L.
Wise, L.
Strathcarron, L. Wynford, L.
Strathclyde, L. [Teller.] Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.10 p.m.

Lord Simon of Glaisdale moved Amendment No. 6: Before Clause 18, insert the following new clause:

("Enforcement of liability orders by distress: repeal of section 35 of 1991 Act.")

. Section 35 of the 1991 Act shall cease to have effect.

The noble and learned Lord said: My Lords, this amendment returns to the question of distress. As your Lordships know, it is a self-help remedy whereby a creditor can take possession of the goods of his debtor and sell them. It is a harsh remedy and a most disagreeable process with bailiffs in the house, furniture put out on the pavement and so forth. It was most rigorously controlled and fenced in both at common law and by statute.

We have discussed the matter previously but have not had an answer to the central question; namely, why does the Child Support Agency, why does the Secretary of State, need Section 35 of the 1991 Act? I shall return to that matter in a moment; it is a brief point.

First, immediately after the Report stage I wrote to the Minister on a specific point. Of course, he has not had an opportunity to reply and I hope that he will be able to do so today. If not, I shall perfectly well understand. The specific issue was as follows. Under Section 35 of the 1991 Act and the corresponding provisions of the Magistrates' Courts Act relating to distress—and I believe also under the county court provisions—there is provision as to special damages for irregular distress. I take that also to mean illegal and excessive distress. But those provisions are differently phrased in the 1991 Act and in the Magistrates' Courts Act.

As soon as a provision is differently phrased everyone is alerted to the fact that a different meaning is attached. The courts will certainly assume that when the draftsman changes the formula a different meaning is attached. I wrote to the Minister asking why there was a change of terminology and whether a different result was intended. That is a minor technical point which relates to special damages.

The central point is that under Section 33 of the 1991 Act the Secretary of State can obtain from a magistrates' court a liability order. That order establishes that the absent father is liable to pay the sum stated. The magistrates cannot question the sum stated. They cannot listen, for example, to the debtor saying, "The application of the formula left me with only one penny a week", as in one notorious case that was reported. Magistrates' courts have simply to register the liability order.

When that happens a warrant for distress ensues under Section 76 of the Magistrates' Courts Act. As the Secretary of State can obtain a liability order and an ensuing distress warrant, why does he need the provision of Section 35 of the 1991 Act. On the face of it he does not. One suspects that it must be giving him something that the Magistrates' Courts Act does not give.

We are liable to have that suspicion because wherever we look at the 1991 Act we find exceptional powers being vested in officials; for instance, the power to enter private premises under pain of a penalty, the right to interrogate the employer on the manner judged to be in default and his fellow employees who must answer under pain of a penalty. They are given the right to infringe the priceless heritage that we have of Inland Revenue confidentiality. Therefore, when we find what is on the face of it a completely unnecessary provision we are bound to ask what is sought in Section 35 that is not given in Section 36 of the Magistrates' Courts Act. I have therefore moved to omit Section 35 of the 1991 Act.

I understand that most Members of another place have adjourned to College Green, but I imagine that they will reassemble at the other end of the Palace to consider the amendments made to the Bill by your Lordships. I hope that this amendment will be one of them. I beg to move.

5.15 p.m.

Lord Mackay of Ardbrecknish

My Lords, the noble and learned Lord, Lord Simon, is concerned that Section 35 of the 1991 Act gives the Child Support Agency additional or exceptional powers, and that this section is not needed as there are provisions for the levying of distress in the Magistrates' Courts Act 1980.

It is possible that the provisions in Section 76 of the Magistrates' Courts Act relating to the enforcement of orders given by magistrates' courts might apply to cases where a liability order is granted under the provisions of Section 33 of the Child Support Act. I say "possible" because there is a question as to whether liability orders, which were introduced in legislation enacted after the Magistrates' Courts Act, are orders for the purposes of Section 76.

The provisions for distress in the Child Support Act could, to that extent, be considered additional to those in the Magistrates' Courts Act. However, they were introduced for specific reasons. As I said on Report when we discussed this issue, a decision was made to use magistrates' courts rather than county courts for the purpose of obtaining liability orders because magistrates' courts are often more local and easier for parents to attend.

The provisions in Section 35 of the Child Support Act enable distress action to proceed promptly, in cases where it is appropriate, without the delay and expense that would arise from a further application to the court for a warrant of execution or warrant of distress. They also enable distress action to be taken without the involvement of the police, who are responsible for executing warrants of distress in some magistrates' courts.

The provisions in Section 35 are similar to the provisions in the Local Government Finance Act 1988, which gave local authorities the power to levy distress without involving magistrates' courts further and it was thought appropriate for the Secretary of State to have the same power. The Secretary of State's position cannot be compared with that of a private creditor. He is not pursuing a debt owed to himself but one owed to the parent with care. As I have already made clear in earlier debates, the Child Support Agency does not proceed lightly with distress action. Absent parents are given every opportunity to reach and abide by an agreement about repayment before an application for a liability order is made. Once the order is granted, they are given a further opportunity to reach an agreement before distress action is initiated. But if no such agreement is reached, I believe that it is right that swift action should follow to ensure that the parent with care and children receive the money to which they are entitled as soon as possible.

Reference was made on Report and in the letter to which the noble and learned Lord referred today to the provisions in Section 35(6) relating to special damages. It has been asked why they are different from the provisions in the Magistrates' Courts Act. The reason is that the provision in Section 78(3) of that Act is capable of being interpreted so as to allow for general damages as well as special damages where there has been a defect in the distress warrant or irregularity in its execution. The wording of Section 35(6) of the Child Support Act 1991 makes it quite clear that special damages can be recovered only where there has been any irregularity in the levying of the distress.

The noble and learned Lord, Lord Simon, is concerned that the provisions in Section 35 give the Child Support Agency, acting for the Secretary of State, excessive and unreasonable powers. But I do not believe that to be the case. The child support system contains provisions for appeals to an independent child support appeal tribunal in cases where the parent is concerned about the amount of the assessment. Legal proceedings, by way of an application for a liability order, are necessary before distress proceedings can be started. As I said on Report, that will involve a hearing in the magistrates' court at which the absent parent will have the opportunity to argue that the debt is not due; for example, because payment or part payment has already been made. Distress proceedings can then be initiated without further reference to the court if, within a reasonable time, the absent parent has not made arrangements for payment. That is similar to the procedure in the county courts where the issue of a warrant of execution is an administrative decision in most cases.

The provisions in Section 35 are similar (although I accept not identical in every respect) to provisions in both the County Courts Act and the Magistrates' Courts Act. They include a number of safeguards for the absent parent—for example, listing a range of goods that cannot be seized and making provision for special damages—and appeals if the distress process is irregular in any way.

I believe we are all agreed that the ability to levy distress is necessary to ensure the effective enforcement of maintenance in those cases where the absent parent does not co-operate in meeting his liabilities. I hope that the explanation that I have given reassures the noble and learned Lord, Lord Simon, that Section 35 does not give excessive powers to the Child Support Agency but merely ensures that distress proceedings can be initiated promptly and effectively in those cases where, regrettably, it becomes necessary. I accordingly invite the noble and learned Lord to withdraw the amendment.

Lord Simon of Glaisdale

My Lords, I am much obliged to the Minister for his explanation about the special damages provision. I only say that the difference is quite insufficient to justify Section 35 if it is otherwise unnecessary.

As before, the noble Lord made a number of contentions which have nothing to do with this issue. It is nothing to do with the issue that the 1991 Act preferred the magistrates' court to the county court. That is not in question. Indeed, we have suggested that the Magistrates' Courts Act gives quite sufficient power to levy distress.

Another irrelevance is that we think distress is necessary. Again, that is not in contention. We say that the statute book is being cluttered up with a quite unnecessary power when there is the right to levy distress in any event under the Magistrates' Courts Act.

Therefore, I come to the one point where the noble Lord justified Section 35—that is, by saying that it is not certain that there is a power to levy distress after a liability order under Section 76 of the Magistrates' Courts Act. With all respect, I entirely disagree. What is more, it is not my disagreement, which is neither here nor there. The statute states: where default is made in paying a sum adjudged to be paid by a conviction or order", "or order" obviously includes a liability order, of a magistrates' court, the court may issue a warrant of distress". It is not only the plain words of the statute, because the authoritative notes of Halsbury's Statutes of England state expressly that that covers liability orders under the Child Support Act. I have marked the relevant passages and can pass them to the noble Lord if he doubts my interpretation of what he said. Therefore, it is not I who says that the point is quite idle, that it is uncertain whether a liability order under the Magistrates' Courts Act gives rise to a warrant of distress. It says so in the plain words of the statute and in the authoritative notes in Halsbury's Statutes of England.

Finally, the noble Lord said that under Section 35, the warrant of distress would not he executed by police officers; nor would it. But who would rather have an officer of the Child Support Agency who has already antagonised absent fathers to an extent which is now notorious? Who would not rather have an experienced police officer used to enforcing warrants of distress and carrying them out? Who would not prefer a police officer to the heavy-footed child support officer or inspector or whoever the official is who has shown and shown repeatedly—as has emerged from our discussions on this Bill—a consistent animosity against absent fathers as though they were the villains of the piece evading supporting their children?

After the last Division, there is no point in dividing your Lordships' House on this matter. But I ask your Lordships who are present to say that it is clear beyond any doubt that Section 35 is unnecessary. It is merely cluttering up the statute book. It is entirely consonant with the bureaucratic aggression that was constituted in 1991. Having said that as spitefully as I can, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Earl Russell moved Amendment No. 7: Before Clause 18, insert the following new clause:

("Contribution to maintenance by deduction from benefit: repeal

of section 43 of 1991 Act.") . Section 43 of the 1991 Act shall cease to have effect.

The noble Earl said: The noble and learned Lord has just given us the most superb justification for having brought back the amendment. He has been asking that question about Section 35 since the Committee stage, but it is only now that he has received an answer. It is possible that I might also receive an answer to Amendment No. 7 which I have not received before.

The amendment deals with the deduction from the income support of the absent parent if he is receiving that benefit. It has been my contention since 1991 that that is an altogether excessive and wasteful use of administrative power. It is excessive because income support is, as the Minister said during the proceedings on the Bill, a benchmark for subsistence. If one takes further deductions away below income support, one risks reducing the person to below subsistence level.

The other point is that we have here the whole weight of the state involved in getting from each person the princely sum of £2.30. As a taxpayer, I question whether that is an efficient and cost-effective use of my money. The agency is well known to be under very considerable burdens. It is also well known to have more work that it can possibly cope with. Like anyone else facing overwhelming pressures, it really ought to concentrate upon things which are rather more worth doing from its point of view.

I remember the effort that was put in to collecting the poll tax from the "20 percenters". The Audit Commission pointed out that it cost £15 to collect every £6 of revenue collected. I do not know what the disproportion is in the matter because the Audit Commission has yet to look at it. I should be very interested to know the result when it does so. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, as I have said on a number of occasions, the Government believe that all absent parents should normally provide at least a small contribution towards the support of their children. The amendment would mean treating income support recipients more favourably than absent parents with similar levels of income from other sources. The standard current maintenance contribution in those cases—£2.35 per week from April 1995—provides a small but continuing recognition of the financial responsibility which parents have for their children.

We recognise that it would not be right to expect absent parents to pay maintenance in all circumstances. The criteria for those who receive income support are clear cut. Those who contribute will be aged 18 or over, will be seeking work, and will not have dependent children living with them. When they do find work they will already be used to providing support for their children. Then, of course, they would continue to provide that support, although perhaps at a higher rate, when they are in work.

Absent parents who are aged under 18 and receive a lower rate of benefit, and those who are claiming benefit because they are sick or disabled or who have a child living with them, are not expected to make that contribution. There are also safeguards for those who have failed to budget for other essential expenditure and could face eviction from their homes or disconnection of fuel or water supplies. Deductions from income support to meet rent arrears or fuel or water charges are given priority over child maintenance. Where three such deductions apply, no contribution to child maintenance is required.

The question of collecting that maintenance is fairly easy via the Benefits Agency itself. That makes it not a very costly collection to undertake. Given the existence of the safeguards that I have mentioned, we do not consider that it would be right to treat unemployed, absent parents who receive income support differently from those with similar income from work. With that explanation, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Russell

My Lords, the Minister invoked people with similar levels of income not derived from income support. If any people are receiving such low incomes from wages, they are being underpaid. Moreover, they will either be receiving family credit or, if they come into the new pilot scheme—for which I received the consultation paper recently—they will be receiving earnings top-up. That is one thing that I believe the Government have probably got right. Therefore, in the end, such people will be receiving rather more. However, if they are not, they are sweated labour.

The Minister mentioned water as being something which was capable of taking priority over child maintenance. I am extremely relieved to know that something is capable of taking priority in that respect. However, what I do not understand is: if water, why not food? The logic of that distinction seems to me to be a little curious. In fact, the insistence on wasting effort in getting money from absent parents on income support seems to me to be an example of the obsessive quality which over and over again shows in the Government's pursuit of the Bill. In 1991, I divided the House on the issue at 10 minutes to midnight. I am proud to have done so. However, I shall not repeat the performance this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 to 10 not moved.]

Earl Russell moved Amendment No. 11: Before Clause 18, insert the following new clause:

("Parent with care: application of 1991 Act . In section 46 of the 1991 Act, after subsection (11) there shall be inserted—

"() In cases where the child spends 140 nights a year or more with each parent, this Act shall cease to have effect." ").

The noble Earl said: My Lords, the amendment arises from the issue about 104 nights in shared care which we discussed on Report. The provision under the Bill at present is that if the allegedly absent parent has care of the child for more than 104 nights of the year—

Noble Lords


Earl Russell

Yes, my Lords; I know that 140 nights are mentioned in the amendment, but I am talking about the present position which relates to 104 nights. Any number of nights below that are counted as nothing.

The amendment came to my mind while I was reading the speech on another amendment made by the noble Lord, Lord Kilbracken. The noble Lord was complaining about the presumption of the Act that there is always one parent who is absent and one parent with care. He argued that that conflicts with the approach of the Children Act which tends to assume shared residence and responsibility for the child being divided between two people. It really is a case of oil and water.

However, while reading the speech by the noble Lord, Lord Kilbracken, I began to wonder whether there should not come a point when the child is spending so much time with each of the parents that neither of them should properly be counted as absent. If neither parent is counted as absent, the whole system under the child support legislation cannot work; one would have to go back to ordinary shared residence systems and support arranged in detail through a court. If the whole presupposition of the legislation is false, I do not see how it can work.

I shall now explain how I arrived at the figure of 140 nights. It seems to me to be a reasonable figure to take for an assumption that both parents regularly have care of the child. If one has a child for 140 nights in one's own house, that seems to me to be regular care. However, I will admit that I am not wedded to the figure of 140. If the Minister thought, for example, that it ought to be 150 or 160 nights, I would not necessarily wish to argue the toss with him. Nevertheless, I am asking the noble Lord to recognise that it is not true in every situation that one parent is absent. It is in order to make that point that I beg to move my amendment.

Lord Carter

My Lords, I read this amendment with some puzzlement but I can see now what the noble Earl is driving at. However, it occurs to me, if we take the case of the absent parent, that if he makes sure that the child is with the parent with care for 141 nights, he can presumably avoid his responsibilities. Is that right? If he is in a much better financial situation than the parent with care, once one introduces this number of nights, is not one introducing the danger that by adding just one night to the figure that one chooses, the absent parent gets an opportunity to avoid his responsibilities for maintenance?

Lord Mackay of Ardbrecknish

My Lords, as the noble Earl explained, this amendment seeks to remove from the jurisdiction of the Child Support Agency cases where the absent parent and the parent with care each provide at least 140 nights of care for a child over the course of a year. It means that, in these circumstances, a parent could obtain child maintenance only by application to the courts or by agreement.

The maintenance requirement is shared. It is not a matter of one parent's liability to another; it is a matter of both parents' liability to the child. There is a calculation in the formula as regards who has the resources. If both parents have sufficient resources, that shared liability operates. If one has the resources and the other has limited resources, there is what might be called a transfer of funds.

The existing provisions mean that an absent parent's maintenance liability is reduced where he is providing a significant amount of care for a child. We believe, as we debated at previous stages of the Bill, that an average of two nights a week continues to provide an appropriate benchmark. We can see no case at all for removing access to the agency from parents with care simply because an absent parent, who could be well off, is caring for a child for well under half the nights of the year.

I pick up the point of the noble Lord, Lord Carter, and use the example of a case where an absent parent leaves the matrimonial home, taking with him the vast bulk of the family's income. Let us assume that he cares for his children for 150 nights of the year. The parent with care—although I suspect she would not then be defined as that—still has to care for the children for the other 215 nights of the year, but has no income to do this. The absent parent still has a responsibility for the children when they are not physically with him and should contribute where he can. There is, therefore, still a question of maintenance even where the absent parent provides significant amounts of care.

The amendment could potentially disadvantage all the parties. Children would not benefit from the consistent and realistic levels of maintenance which the agency provides because any awards of maintenance by the courts would be based on discretion. Parents with care would lose the advantages of the one-stop service for child maintenance which the agency can provide. Absent parents could not know with any degree of certainty what their maintenance obligations were going to be. Where the parent with care decided not to seek a child maintenance award, there would he increased benefit expenditure at the expense of taxpayers, many of whom are themselves bringing up children on low or moderate incomes. While I admire the cleverness of the noble Earl in thinking in his bath of a variation to the two amendments we have already discussed, I am afraid I cannot accept his clever try.

Earl Russell

My Lords, I do not know why the Minister supposes that I was in my bath; I was in my study at my desk. Not everything this Government know is in fact the case and we have at last managed to get that point demonstrated. I would like a reply from the Minister before we leave the issue. Does the Minister understand that there can be a situation between two parents in which neither of them can appropriately be classified as an absent parent? I take the point he made about the remaining 220 nights of the year. I told him that I was not going to argue over figures. However, I want to know—I shall give way if he can answer me—whether the Government can imagine a situation in which neither parent is properly classified as absent. That is what this amendment was put down to find out.

5.45 p.m.

Lord Mackay of Ardbrecknish

My Lords, I shall respond to that. We accept that there are situations where the care is more shared than it is in many of the cases. Frankly, I think they will constitute a small number of cases. There is a mechanism for taking that into account when the liability is shared between the two so that if the absent parent looks after the child for more than the 104 nights in the year, that is the benchmark and some consideration is given to the fact. I suppose that that does not go as far as accepting that neither one is the parent with care and neither one is absent, but we always have to start from the position of having a parent with care and an absent parent even if we move towards—I suspect this happens in very few cases—a 50:50 division of the parents looking after the child. The situation will be catered for.

Earl Russell

My Lords, the Minister seems to be telling me that all fathers are absent but some are more absent than others. I think it is a colossal a priori to assume—I think I have the Minister's words right—that we must always start from an absent parent. That shows the depth of a priori thinking behind the Bill.

Lord Mackay of Ardbrecknish

My Lords, I understand the debating point the noble Earl is making but, equally, I could say that we must always start with the parent with care. I suggest that in the case of every child, that can be fairly readily determined by the simple question of who receives the child benefit.

Earl Russell

My Lords, that itself is a question on which I must come back to the Minister, as I did with his predecessor, the noble Viscount, Lord Astor. The Minister has chosen a bad example for his purpose. The rules for dividing child benefit between separated parents who share care are urgently in need of revision. It is causing widespread dissatisfaction and I have a large postbag about it. Therefore I think that the Minister was a little unwise to pick that example. He said that in the case I was envisaging the woman would he getting nothing. However, there still are courts and, if the Child Support Act ceased to have effect, they could have effect. They could deal with a situation where, because it would be unusual, discretion was needed.

The noble Lord, Lord Carter, suggested a parent might evade his responsibilities by having care of his child for 141 nights a year. That is a curious way of evading one's responsibilities because I should have thought one might be taking on as many responsibilities as one was evading, and one would not necessarily he the financial gainer by that either.

Lord Carter

My Lords, if the absent parent wishes to try to evade his responsibilities all he has to do is to ensure that he beats the limit by one night.

Earl Russell

My Lords, that is, of course, equally true of the 104 nights provision which we have at present. It has been said that that is an incentive to parents with care to deny access. If there is to he any limit at all, the point must apply. If we are not going to have a limit, we shall have to go back to thinking in terms of the Children Act and shared residence. I think I have opened up a can of worms but I am quite content to leave them to wriggle. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 12: Before Clause 18, insert the following new clause:

("Applications by those receiving benefit—failure to comply:

repeal of section 46 of 1991 Act.") . Section 46 of the 1991 Act shall cease to have effect.

The noble Earl said: My Lords, this is one of the big ones and it deals with the benefit penalty; that is, the reduced benefit direction which falls on a woman who refuses to give information to collaborate with the agency. Most usually she refuses to name the father of the child. She is at present subject to a benefit penalty of 20 per cent. for the first year and 10 per cent. for a further six months. That is a draconian penalty. It risks bringing her below subsistence level and what is more it must risk physical hardship to the children. It is a great deal too severe.

The Minister says—I am sure that he is just about to say it again—that it is designed to induce her to think carefully before she decides whether to collaborate with the agency. It has done that. It has made many women collaborate with the agency who have already been victims of domestic violence and who are at risk of being so again. Indeed, in a number of cases which have come to me from CAB sources, they have been. The Minister will also say that if there were not a benefit penalty, women would have no incentive to co-operate with the agency. I can practically compose his speech for him. I am sure that it is already on tape. What the Minister says is, of course, true. Had the issue of the maintenance disregard not already been resolved, I should have thought that that was the practical way to do it. However, if it means that women have a voluntary choice as regards whether to co-operate with the agency, I would not regard that as nearly as terrible a consequence as the Minister would.

There has to he consent somewhere in the system or it will not operate. One can impose on some of the people all of the time or on all of the people some of the time, but one cannot impose on all of the people all of the time. Therefore, to make the system work there has to be free and willing consent to the working of the system from one parent or the other. We are not getting it from many of the absent parents. If the parent with care does not consent to the system either, it will not work.

I am giving the Minister every opportunity to preserve the Act if he can. He does not show a great eagerness to take it. If we did move to dealing only with parents with care who genuinely want the services of the agency I believe that it would manage a great deal better than it does at present. That would also avoid a considerable amount of cruelty. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, the noble Earl moved the amendment in Committee. I have already this afternoon, as I did previously in Committee and on Report, gone into some detail about the safeguards that I believe are built in to ensure that a parent with care is not put at risk. The reduced benefit direction only comes into play if the parent with care has refused to co-operate in the pursuit of maintenance without good cause. The noble Earl has heard my speech on a number of occasions and I have heard his, so we are going round the same bush. Nothing surprises me, and he tells your Lordships that he will not be surprised by what I am about to say. That is because my view is totally consistent and correct, as the noble Earl believes is his.

The purpose of the reduced benefit direction is to make a parent with care think very carefully about her decision not to co-operate in seeking maintenance. We believe that it is right as a matter of principle that parents with care should co-operate unless there is good reason why they should not do so. We addressed that issue earlier at some length. The amendment would mean that parents with care could wilfully refuse to co-operate without sanction. For the reasons I have already given, we believe that the sanction should be retained.

The noble Earl suggested that accepting the amendment would help me to preserve the Act. I cannot understand how making co-operation entirely voluntary would help me to preserve the Act. He has not in any way convinced me in that regard. I am afraid that, as on the previous occasions when we have discussed the matter, I cannot possibly accept the amendment. I hope that the noble Earl will be able to withdraw it.

Earl Russell

My Lords, I thank the Minister for that reply. I agree that we all think that our opinions are correct, but the effect of the amendment would not he to make my opinion or the Minister's opinion, or anyone else's, to be taken as correct, it would be to make the woman's opinion to be taken as correct.

The Minister talks about good cause. How much do we really know about what goes on in the privacy of other people's marriages? How much do we really know about whether the woman has good cause? Most women have a built-in sixth sense which gives them a sense of danger when they are in the company of a particular man. If a woman has that sense of danger about a partner she has left she may be unable to give a rational account of it to any official in the country. Yet she may be quite right. Even if she is wrong, if she has that built-in sense of danger she ought to be able to avoid being forced back into contact with that man.

Once again the Minister is setting up the bureaucracy as the ultimate judge of right and wrong. That is something which, in this Bill, we on these Benches have always found profoundly offensive.

The Minister also says that he does not understand how it could make the Act more secure if people were voluntarily able to refuse to co-operate with it. The Minister knows about volunteering. He knows about consent. He knows that you can take a horse to water but you cannot make it drink. He knows—at least he ought to know—that the agency cannot get through its work because it is snowed under dealing with people who are refusing to co-operate. As Miss Chant said last week, even women refuse to co-operate.

If the Minister chooses to use all his powder on forcing in to the system people who will not consent and never will consent, then the Act will come to an end rather sooner than it would have done otherwise. That is the Minister's choice. If that is what he wants, let him have it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 and 14 not moved.]

Earl Russell moved Amendment No. 15: Before Clause 18, insert the following new clause:

("Removal of carer's allowance from maintenance requirement

.—(1) Schedule I to the 1991 Act shall be amended as follows.

(2) In sub-paragraph (3) of paragraph I of Schedule Ito the 1991 Act, for sub-paragraphs (a) (b) and (c) there shall be substituted—

  1. "(a) with respect to each qualifying child, an amount equal to the amount specified in column (2) to the Income Support (General) Regulations 1987 for a person of the same age (income support personal allowance for a child or young person); and
  2. (b) an amount equal to the amount specified in paragraph 3 of that Schedule (income support family premium)."

(3) In sub-paragraph (2) of the said Schedule, for

there shall be substituted

and the definition of CB shall be omitted."").

The noble Earl said: My Lords, Amendment No. 15 concerns the carer's allowance. That is the element in the formula which is paid to the parent with care for the care of the child. The inequity arises where there is a second marriage and there is an allowance for care for the first wife but no such allowance for the second.

The Minister may say that caring for children costs money. Anyone who does it freely forfeits earning power. That is true enough, but if it is true in one marriage why is it not true in the other? I could see the sense if the formula allowed the carer's allowance for both the first marriage and the second. Or I could see the sense if it were allowed in neither. What I do not see is the ground for the discrimination which gives it to the first marriage but not to the second. Is this intended as a tax on second marriages? If so, will the Minister admit it? And what does he think the public will say about it? I beg to move.

Baroness Hollis of Heigham

My Lords, I have some sympathy with the spirit of the amendment but perhaps not with the consequences in quite the way the noble Earl, Lord Russell, intends. In this day and age it is not particularly sensible to assume that a payment must be made to a parent as a carer. I believe that the proposal would reduce the amount of acrimony that the noble Earl rightly identified when the mother of the second family does not appear to be recognised in the same way as the mother of the first family.

Having said that, I believe that the right solution is that the entire package of maintenance should be re-apportioned so that there are higher child allowances rather than one allowance to the mother as carer and additional allowances for each of the children. I do not believe that there should be any reduction in maintenance flowing into a first family, but it should be treated as it ought to be, as child support rather than mother support. That would be a much better, fairer and more realistic definition of what the Child Support Agency seeks to do.

Lord Mackay of Ardbrecknish

My Lords, I recall that we had a thorough debate on this issue at Committee stage. The noble Earl explained that the amendment is intended primarily to remove the carer element from the calculation of the maintenance requirement—the amount which is calculated to meet the child's basic maintenance needs. He again argued that the carer element is a cause of inequity between parents with care and new partners of absent parents and that many second wives feel that they are paying maintenance to the first. The noble Baroness offered me an elegant way out of the dilemma, with the same amount of money going to the first family. I am intrigued by it. However, I think that probably the second wives and the absent parents would still consider that they were paying money to the first wife.

The maintenance requirement, of which the carer element is a part, is not the bill that is presented to the absent parent. It is an amount that we feel represents the basic maintenance needs of a child. It is not the sum paid to the parent with care, but an amount which both parents should contribute if they can afford to do so. Once the maintenance requirement has been established, then both parents are assessed to see how much they can afford to contribute towards those maintenance needs. Where a parent with care has assessable income of her own, then she is assessed as contributing towards the maintenance requirement, including the carer element. That has the effect of reducing the amount that the absent parent is required to pay.

That is a fundamental principle of the 1991 Act. Section 1(1) states: Each parent of a qualifying child is responsible for maintaining him". Therefore it is wrong to say that absent parents are paying spousal maintenance for the first wife. I realise that in the majority of cases the parents with care do not contribute to the maintenance requirement because they do not have sufficient income. I have gone over that issue many times. The noble Earl is quite wrong to argue that the formula favours first wives. If first wives can afford to contribute to the maintenance requirement, they do so. The fact that the majority cannot afford to do so is clear evidence, as I have said before, that in a large proportion of cases, even after paying maintenance, second families are still much better off than the parents with care.

The noble Earl argued that second wives are, in effect, supporting first wives. I do not agree with that. An absent parent's basic liability under the formula is based on his own income and outgoings. If he has a new partner and stepchildren, no regard is had to his new partner's income. However, if paying the assessed amount would cause hardship, then the protected income provisions, under which the income and outgoings of the whole family are taken into account, can reduce the amount that he has to pay. Here the new partner's income is relevant but only in determining by how much the proper liability can be reduced. In such cases, her income can never serve to increase his basic liability. In other words, this hardship provision allows an absent parent to meet the needs of his second wife where she does not have sufficient income to support herself.

In those circumstances, therefore, she and her children are given priority over the absent parent's duty to maintain the children of his first marriage. However, the amendment that the noble Earl would have the House accept would greatly reduce the amount of money going to the first wife and her children.

I come back to the principle that I have stated over and again. People cannot walk away from the consequences of their first marriage or, if not marriage, their first partnership. They cannot shrug it off on the taxpayer. They have to face up to their responsibilities just as the ordinary couple with a happy marriage have to face up to whether they can afford to have more children than, say, the two or three they have. They come to the conclusion that they cannot. They have to live within their means.

The absent parent has some responsibility to think in the same way as the man who is happily married, looks after his wife and family and pays his taxes. I believe that the responsibility as outlined at present, with the way in which the money is apportioned, is right, just and proper to the children of the first marriage. It ensures that those children receive some of the money that the absent parent is due to pay in facing up to his responsibilities to look after them. As I said when we debated the issue previously, that includes the person who has to look after them. The children cannot be on their own, by themselves. I think I said that unlike days of ancient Rome, or perhaps before, children could not go out and find a friendly she-wolf. They have a mother. She is the parent with care. I believe that her position as the carer has to be taken into account in building up the total maintenance.

I very much hope that the noble Earl will withdraw his amendment, because I am afraid, as previously, that I cannot accept it.

6 p.m.

Earl Russell

My Lords, I do not argue with the Minister when he states that people simply cannot walk away from their first families. What I should like to hear him say is that when their first marriages have, regrettably, broken down and they have in good faith undertaken second marriages, they cannot walk away from their second families either.

The question that I wished to hear him answer was this. Why is there no carer's allowance for the second wife? I may possibly have been distracted and, if so, I apologise to him. But I did not hear an answer to that question. 1 should very much like to hear an answer to it before I decide what to do with the amendment.

The children of the second wife cannot go out and find a she-wolf either. They have to be cared for. Every argument that the Minister put forward for a carer's allowance applies just as strongly to the second wife as to the first wife. I simply do not understand why one is allowed a carer's allowance and the other is not. Has the Minister any answer to give me on that?

Lord Mackay of Ardbrecknish

My Lords, I think that there really is a huge gulf between the noble Earl and myself. Dare I say this to him? The two "walk aways" that he describes are not simultaneous. The first walk away takes place before the second. Such matters have to he taken into account. I believe that the responsibility is there and is clear.

Regarding the position of the second wife, as I have said on a number of occasions, all the evidence, including the way in which the formula works, shows that the second family is a great deal better off than the first family. What the noble Earl seeks to do would increase that disparity against the interests of the parent with care and the first family. That is why I believe that there is a major gulf between us.

Earl Russell

My Lords, it may or may not be true that the second family is usually better off than the first. It is certainly not true that the second family is always better off than the first. But, however badly off the family is, there is not a carer's allowance for the second family.

What the Minister has just announced is a very deliberate intention of setting up a formula to discriminate against second families which were entered into in good faith before this Act was under way. Once people have children—they did not ask to he born—the responsibilities to them need attention also.

There are quite a number of voters who belong to second families. I hope that the Minister will tell them too. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not mored.]

Lord Simon of Glaisdale moved Amendment No. 17: Before Clause IX. insert the following new clause:

("Welfare of child a primary consideration.") . In any transaction or decision under the 1991 Act or this Act. the welfare of any child affected shall be a primary consideration.

The noble and learned Lord said: My Lords, the amendment relates to the statutory reference to the welfare of the child or children. We debated this at length at Report stage. It is an extraordinarily difficult problem. I do not think that any of us was satisfied that we had found the right solution, except perhaps the Minister, who is as incurably optimistic as he is able and courteous, which is saying a great deal.

At Report stage, the noble Earl, Lord Russell, proposed that the welfare of the child should be paramount or, to put it another way, that those concerned with decision making under the 1991 Act and this Bill should have paramount regard to the welfare of the child.

I do not believe that the noble Lord, Lord Carter, was entirely happy. The Minister gave reasons for disagreeing with that approach. However, he proposed instead that the matter was taken care of by the formula in Schedule I to the 1991 Act. That is doubly misconceived. First, it is perfectly absurd to suppose that a matter that requires such fine tuning as the welfare of a child, and giving regard to the welfare of a child, can be the subject of a formulaic approach.

Secondly, our experience of the way in which the formula has worked so capriciously and frequently so unjustly gives us no confidence that it is a proper measure for the welfare of the child. In consequence of that debate, I wrote as soon as possible to the Minister. With all the hurry and stress of the litigation he has had no opportunity of replying by letter. I suggested that the test should be that those concerned should have primary regard to the welfare of the child or, to put it another way, that the welfare of the child should be the primary consideration. It was in every way desirable that those who put their name to this amendment—that is the noble Earl, and the noble Lord, Lord Carter—and the Minister, his advisers, his legal advisers and the draftsman should have been able to discuss this important matter between Report stage and Third Reading. For the reasons which your Lordships now know, abundantly, that was not possible.

Perhaps I may say why I believe that the test I propose is preferable, standing intermediately with what the noble Earl proposed and the Minister's counter proposal. I take it as axiomatic that the formula solution is utterly unsuitable. Therefore, one needs to find something less unsuitable. If one says that the primary consideration shall be the welfare of the child, it involves a double approach. At any rate, that is how I would interpret the words. The duty of any decision-maker under the 1991 Act or this Bill is to look first to see how the welfare of the child is affected. Secondly, the primary consideration of the welfare of the child should prevail unless there is some other consideration which is substantially more weighty.

I need to make only one other point. I referred to the welfare of any child affected being a paramount consideration because there may he more than one child. That was one of the fundamental failures in 1991, not to appreciate that there might he many children whose welfare should he considered. I hope that what I suggest will enable all the children to he considered. Let their welfare he the first and ultimate thing to be considered, unless there is some other over-weighing consideration, which may he the welfare of another child. I beg to move.

6.15 p.m.

Lord Carter

My Lords, I wish to congratulate the noble and learned Lord, Lord Simon, on the ingenuity of the phrasing of his amendment to which I was pleased to add my name. The noble and learned Lord, the noble Earl, Lord Russell, and I are founder members of the "Welfare of the Child" club because we discussed it at every stage of the 1991 Act and now at every stage of this Bill. As everyone knows, we have made numerous attempts to try to strengthen the proposition to see whether we can find a form of words which the Government could accept and which would cover the point we are trying to make.

As the Minister knows, we went right through the 1991 Act and in the end, through an amendment in the other place to a Lords amendment, the Government produced Clause 2 of the 1991 Act. It states that where any discretionary power is involved, the child support officer, shall have regard to the welfare of any child". We believe that in practice that is not working and we have anecdotal evidence to that effect. It is not being given the consideration that it should receive. If the Minister accepts the principle that some improvement needs to be made and that this wording is not exactly right, the only way to deal with the matter is for the Government to accept the amendment and amend the Bill in another place.

I believe that the words which the noble and learned Lord, Lord Simon, devised, "a primary consideration", meet the case. I looked up the word "primary" in the Concise Oxford Dictionary and the definition is: of the first rank in a series". That definition seems to me exactly to fit the circumstances which we are discussing that the welfare of the child is first, but in a series of considerations. Therefore, it is the primary consideration.

I expect that the Minister will put legal arguments against the exact use of the word. However, he should say whether it is only in the phraseology or whether it is the principle that is at stake. I believe that the noble and learned Lord used a good description and definition. If the Minister attempts to say, as he did at previous stages, that his approach to the problem is to deal with it through guidance wording in the code of practice which I believe is being drafted, could he say exactly how it will he done? What wording will be used in the guidance and code of practice if there are arguments for not putting the provision on the face of the Bill? I believe it is a good argument. The words are right, they meet all the points that we made at the previous stage of the Bill and I hope that the Government will be able to accept the amendment.

Earl Russell

My Lords, I too wish to congratulate the noble and learned Lord on devising the wording of the amendment. It is probably as good as we can get and it is needed. The Children's Society study, Losing Support, to which I referred earlier today, devotes a whole chapter to the effect of the implementation of the Act on the children. The study is not particularly encouraging. It reports what it calls, deterioration in the quality of contact". The method of the survey is based on a case study of a series of individuals and it gives the direct speech, usually of the parent with care speaking, but in one case the child. One says: They [children] can't understand what the Child Support Agency is … They just know that he didn't pay for the Christmas presents, that he didn't contribute to the birthday presents". Another says, talking of her son going out with the father for the day: He always used to go to MacDonalds, but the last time he took him out for a Saturday he took him into [town]. It was bitterly cold … They'd been walking round town all day, sat in the car to eat sandwiches. When he came back he'd gone that purply-blue colour … He's saying he can't afford to take him to MacDonalds … I think he's cutting down". Another said that her son, would come back to the house, rush upstairs, slam the door and refuse to speak to me—once he accused me of all kinds of things his father had told him which were real distortions of facts". In another case, the son said: Why are they doing it?— I thought they were supposed to be for the children and not upset us like this". There are many more examples like that. The study could not find a single case in which the relations of the child with the parents had benefited as a result of the Act.

When we find something causing this much unhappiness and distress, opening up old sores, creating new conflicts, there ought to be some give in it. It ought to be possible to retreat a little from the formula if implementing it causes so much unhappiness.

Perhaps I may remind the House that I speak as a child of divorced parents. I know just how much argument these matters can generate. I am truly thankful that my parents did not have the CSA to contend with. I do not know how much mischief it could have caused. There must be a machinery to allow a retreat when the Act causes real psychological and physical harm, as, given the cases I quoted, it may well be doing. I am glad that this amendment is on the Marshalled List. I am happy to support it.

Lord Mackay of Ardbrecknish

My Lords, this amendment would introduce a new clause which would require the welfare of any child affected by any transaction or decision under the Child Support Act to be a primary, or first, consideration, whether the decision was a discretionary one or not.

We have had extensive discussions on the existing welfare of the child provision in Section 2 of the 1991 Act several times during the progress of this Bill. That existing provision ensures that the welfare of the children who may be affected is taken into account when discretionary decisions are made. As I have indicated during previous debates, I have no evidence that the Child Support Agency's staff arc failing to consider welfare. I shall come to the point about how they are guided shortly. I understand the concerns that noble Lords have to ensure that this House safeguards the position of children involved in child support cases. However, I believe that Parliament made the right decision in 1991 when it approved the wording in Section 2 of the 1991 Act.

This amendment goes further than that in two respects. First, it introduces a need to consider the welfare of all the children concerned in relation not only to discretionary decisions but also in relation to any non-discretionary decision or transaction made under the legislation. And, secondly, it would put the welfare of the children, all of the children, as the first consideration.

The noble and learned Lord, Lord Simon of Glaisdale suggested in his contribution to the debate and in a letter to me that the expression "a primary consideration" would mean that those concerned should have primary regard to the welfare of the child. He suggests that this would involve one or other, or both, of two approaches: first, that those concerned should look first at the welfare of the child; and, secondly, that the welfare of the child should prevail unless some other consideration was significantly more weighty. While I understand what the noble and learned Lord wishes to achieve, I do not think that this amendment presents a workable alternative to the existing provision in Section 2 of the 1991 Act. The Oxford English Dictionary defines "primary" as meaning of the first importance, or of the first order in any sequence or process—as the noble Lord, Lord Carter, pointed out. For example, if each child's welfare is a first consideration in each case, it would be very difficult to determine whether the child of the first family or of the second family should take priority when a decision has to be made.

The amendment refers to any transaction or decision under the 1991 Act or this Act, and so it seeks to import consideration of the child's welfare into all decisions on child maintenance. But, as I hope to persuade the House, this is meaningless as it applies to decisions where there is no discretion. I think it might be helpful if we considered for a moment what that would mean in practice.

Let us look at the way the amendment would affect the decision-making process in relation to the maintenance assessment itself. As part of the assessment-making process the agency would be required to establish whether there were any matters relating to the welfare of the children in either of the households concerned, or in any of several households in some cases. They would then have to consider what difference welfare of the children should make to the assessment outcome. Here we have several problems. There is no provision in the legislation relating to the formula for the assessment to be varied for discretionary reasons other than under the departure system introduced in this Bill. In effect, therefore, having decided that the formula amount is wrong in the light of the welfare needs of one or more of the children, the agency cannot do anything to adjust the amount in payment.

Notwithstanding this difficulty, let us consider how the agency might find that the assessment needed to be altered. In some cases, the agency might decide that no maintenance should be paid by the absent parent so that his own children living with him did not suffer the reduction in income which an increase in maintenance payments would cause. This, however, would lead to difficulty for the parent with care and her children. She might argue that instead of the absent parent being discharged from his obligation, he should in fact pay more because of the welfare needs of the children living with her. It is not clear how the agency would decide which child's needs took priority—

Lord Simon of Glaisdale

My Lords, the noble Lord will remember that I drew his attention to a case that was decided in 1926 which makes it clear, even if the word "primary" does not, that there may be other considerations. That also takes care of the case where there are two children both of whose welfare must be considered. The decision-maker must look at both children as a primary consideration and must balance the two. I believe that that is taken care of by the amendment.

Lord Mackay of Ardbrecknish

My Lords, I appreciate the reference to the 1926 case. I know that the noble and learned Lord regards it as relevant. The judge held that the statutory phrase "first and paramount" did not preclude other considerations. However, that case was heard quite a long time ago, in an era when parents' rights were all-important. The Children Act 1989 sought to move away from rights over a child to responsibility towards a child. While I appreciate that the noble and learned Lord sees an importance in that case, Re Thain, I am not sure that I can agree with him, given the long passage of time and the quite different circumstances of today. Perhaps I may—

Lord Simon of Glaisdale

My Lords, the noble will remember that ultimately it was a decision of the Court of Appeal, and so far as I know it has not been dissented from in any way.

Lord Mackay of Ardbrecknish

Yes, my Lords, the noble and learned Lord is correct. However, my point still stands. The case was settled all those years ago in quite a different climate. We have moved on from there. That may indicate that I do not give the primacy to the opinions of courts of some time ago that perhaps I ought to give. I hope that the noble and learned Lord will forgive a non-lawyer for deciding that perhaps we ought to try to look at the world of today, and not the world as it was when that case was determined in 1926.

Baroness Seear

My Lords, it might be considered that we have moved back.

Lord Mackay of Ardbrecknish

My Lords, on anybody's arithmetic, 1995 is moving on from 1926.

As I was saying, it is not clear how the welfare of each child would he the first consideration.

On the other hand, there may he a situation where the absent parent has no second family. The welfare of the child consideration in that situation might result in a decision to maximise the payments to the child at the expense of the needs of the parent.

I have already said that the agency has no discretion, even after this amendment, to vary the answer provided by the formula except in so far as the departure provisions in this Bill will introduce discretion. And so the obvious question is: why would it be necessary for them to consider this matter at this stage, reaching decisions that they cannot implement? I find it difficult to see how the agency can consider welfare when it has no discretionary power to change the outcome. Once the assessment has been completed, the absent parent is requested to start making payment. If he fails to do so, the question of enforcement action will arise. At this stage, discretionary decisions may be needed, and at that time the welfare of the children concerned will be considered. The existing legislation and wording of Section 2 of the 1991 Act already deals with that.

I hope that this example gives an indication of the difficulties that could arise if this amendment were accepted. As I said on Report, the formula takes proper account of the financial needs of the children, both those for whom maintenance is an issue and other children in the households concerned. The formula provides for various allowances in exempt and protected income. Indeed, through the allowance in protected income it provides for the second wife. It provides for her own living expenses rather than for her as a carer of the children. That matter exercised the noble Earl in an earlier debate. So the formula caters for the varying ages and special needs of the children. I believe that it was the aim of Parliament in 1991 that the welfare of the child, in the sense of the child's proper support, should be achieved through the introduction of a formula based on objective criteria rather than discretion. I believe that that continues to be the best way to deal with the vast majority of cases. It would not he helpful to the children for whom maintenance is due to return to a situation in which their chances of receiving maintenance depended on a discretionary decision.

The noble Lord, Lord Carter, asked me how that worked on the ground. From the time that staff begin working for the agency their training stresses the importance of consideration of the welfare of the child and explains its relevance. My honourable friend, Mr. Burt, who was Parliamentary Under-Secretary of State, explained to the Committee in another place that discretionary decisions must bear in mind the welfare of any affected children. Throughout the guidance and bulletins issued by the agency for staff exercising decisions on behalf of the Secretary of State and in guidance issued by the Chief Child Support Officer, those requirements are reinforced at every stage where a discretionary decision must be taken—for example, in relation to the requirement to co-operate and stages in the enforcement process.

In Committee, I said that I had no evidence to suggest that officials were failing to consider the welfare of the child where it was appropriate to do so. However, we are in the process of preparing more comprehensive guidance, which draws together in one place the various issues in relation to welfare that should be borne in mind when discretionary decisions are made. The agency makes most of its manuals available to advisers and others on request. That further guidance on the welfare of the child will also be made available on request in due course when it is drawn up.

I hope that I have persuaded your Lordships that this amendment would introduce significant difficulties into the child support system with no beneficial consequences to the children. With that explanation, I hope that the noble and learned Lord will feel able to withdraw his amendment,

Lord Simon of Glaisdale

My Lords, I am grateful particularly for the support of the noble Lord, Lord Carter, and the noble Earl. But I am also grateful to the noble Lord for his very full explanation. As for discretionary decisions, Section 2 at the moment prevails. That merely says that "regard" shall be had to the welfare of the child. That is virtually useless. It merely means that lip service, or eye service, may be paid to the welfare of the child and the decision maker then passes on.

This amendment at any rate gives a little more in "primary" regard—the first consideration. But in the end, the Minister comes back to the formula. In my submission, even if the formula were successful and proved its success, it is an utterly unsuitable way to deal with the welfare of children. It is much too rigid and quite impracticable.

Going through various press cuttings at the weekend, I came across a most informative article with the headline: Children are the real victims of CSA purge on absent fathers". It has not worked out properly and that is only one respect in which the formula has shown its absurdity. The most absurd was the notorious application of the formula which left an absent father with only one penny a week. But it is simply unsuitable to apply a formula to measure the welfare of a child. As that article whose headline I just cited shows, it has not worked out beneficially for children.

Your Lordships may remember that there was a pair of opening batsmen for one county who sought to put off the fielders by calling "No" when they meant "Yes" and "Yes" when they meant "No". Of course they ran each other out very quickly. The Minister is in no danger of confusion. I think that every one of his notes on amendments has ended with "Reject". He has said firmly "No" meaning "No", and meaning "I shall get my supporters whipped into the Lobby against the amendment". Nevertheless, this is such an important matter that the view of the House ought to be taken on it.

6.36 p.m.

On Question, Whether the said amendment (No. 17) shall be agreed to?

Their Lordships divided: Contents, 32; Not-Contents, 84.

Division No. 2
Airedale, L. Hollis of Heigham, B.
Berkeley, L. Kilbracken, L.
Carter, L. [Teller.] McNair, L.
Clinton-Davis, L. Mayhew, L.
Craigavon, V. Morris of Castle Morris, L
Dubs, L. Prys-Davies, L.
Eatwell, L. Redesdale, L.
Erroll, E. Russell, E. [Teller.]
Falkland, V. Seear. B.
Fitt, L. Simon of Glaisdale, L.
Geraint, L. Taylor of Gryfe, L.
Graham of Edmonton, L. Thomson of Monifieth, L.
Halsbury, E. Tope, L.
Hamwee, B. Turner of Camden, B.
Harris of Greenwich. L. White, B.
Williams of Mostyn, L. Winchilsea and Nottingham, E
Addison, V. Leigh, L.
Ailsa, M. Lindsay, E.
Allenby of Megiddo, V. Long, V.
Ampthill, L. Lucas, L.
Annaly, L. Lyell, L.
Astor of Hever, L. Mackay of Ardbrecknish, L.
Belhaven and Stenton, L. Mackay of Clashfern, L. [Lord Chancellor.]
Bethell, L.
Birdwood, L. Macleod of Borve, B.
Blaker, L. Malmesbury, E.
Blatch, B. Miller of Hendon, B.
Boyd-Carpenter, L. Milverton, L.
Brabazon of Tara, L. Mountevans, L.
Braine of Wheatley, L. Mowbray and Stourton, L.
Brookeborough, V. Munster, E.
Burnham, L. Murton of Lindisfarne, L.
Cadman, L. Newall, L.
Chalker of Wallasey, B. Norrie, L.
Chesham, L. [Teller.] Northesk, E.
Clark of Kempston, L. O'Cathain, B.
Courtown, E. Orkney, E.
Cranborne, V. [Lord Privy Seal.] Oxfuird, V.
Pender, L.
Denham, L. Perry of Southwark, B.
Denton of Wakefield, B. Platt of Writtle, B.
Dixon-Smith, L. Rankeillour, L.
Eden of Winton, L. Rawlings, B.
Elliott of Morpeth, L. Rennell, L.
Flather, B. Renton, L.
Fraser of Carmyllie, L. Romney, E.
Gardner of Parkes, B. Saltoun of Abernethy, Ly.
Gisborough, L. Selborne, E.
Goschen, V. Shaw of Northstead, L.
Gray of Contin, L. Skelmersdale, L.
Hacking, L. Stewartby, L.
Harding of Petherton, L. Strange, B.
Hayhoe, L. Strathclyde, L. [Teller.]
Henley, L. Sudeley, L.
Hogg, B. Thomas of Gwydir, L.
Howe of Aberavon, L. Thomas of Swynnerton, L.
Inglewood, L. Vivian, L.
Kingsland, L. Wise, L.
Kinnoull, E. Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.43 p.m.

Clause 18 [Deferral of right to apply for maintenance assessment]:

Lord Carter moved Amendment No. 18:

Page 13, line 36, at beginning insert (""Subject to subsection (10A),").

The noble Lord said: My Lords, in moving Amendment No. 18, I shall speak also to Amendment No. 21. Amendment No. 18 is a paving amendment for the main amendment, Amendment No. 21.

Amendment No. 21 seeks to allow second families and absent parents who are also parents with care, who have had pre-April 1993 agreements overturned and as a result are paying increased child maintenance, to apply to the CSA for increased maintenance for the children living with them. When this matter was debated at Committee stage in the other place, the response of the Government was that the deferral was needed for administrative reasons; that it would be unfair to allow some of the pre-April 1993 settlements into the CSA and not others, and anyway those families could go back to the court for an increase in the maintenance order.

The argument about it being unfair to allow some people into the system and not others is flawed when one realises that the majority of those with pre-April 1993 orders or agreements are already in the CSA system because the parent with care is in receipt of benefit. We would go on to argue that it is unreasonable and unfair to have brought some old cases into the scheme irrespective of whether the parent with care wished to have the original agreement overturned, but to bar those parents with care who want the original agreement to be replaced by a CSA assessment. It is also not reasonable to argue that second families can go back to the courts. It is precisely because of the problems with the court system that the CSA was introduced—the Minister has said that many times—and in any case many second families cannot afford the court costs, especially as they are now paying out under a CSA maintenance assessment.

When the Minister replies, perhaps he can give us some idea of the numbers of cases involved. The category we are describing must be far smaller than the approximately 300,000 pre-April 1993 cases which are still waiting to be taken on by the CSA. We would like to ask why the later compulsory cases are not deferred instead, especially when we accept that benefit claimants who want maintenance can apply of their own volition. I beg to move.

Earl Russell

My Lords, we on these Benches support this amendment, if not all of the arguments used by the noble Lord, Lord Carter, in moving it. The Government have got themselves into a mess with what is known as a pig-in-the-middle situation where there is a second family; the father is paying out maintenance to his children by his first wife, but no maintenance is coming into the household for the second wife's children by her previous husband. That causes a good deal of confusion, mess and hardship. It is the sort of thing that happens if one follows formulas blindly without seeing where they lead. I hope that something will be done about it.

Lord Mackay of Ardbrecknish

My Lords, as I have previously explained during consideration of this Bill, the Government's original plan was that all cases would come into the agency's jurisdiction within four years. That will not prove possible because of the problems faced by the agency and the need to introduce new procedures, particularly the departures scheme. We would not want to jeopardise the smooth introduction of other provisions by taking on these cases immediately.

I understand the difficulties that face a parent with care who receives only a small amount of maintenance through a court order, while her current partner pays out a larger amount of maintenance in child support. If the CSA were to accept an application from a parent with care whose current partner pays child support maintenance there would of course be no guarantee that the agency's assessment would he significantly more than the court order.

The mere fact that the family finances have been affected by a child support assessment is a change of circumstances which could he put to the court in support of an application to vary the court maintenance order. Although there is no obligation on the courts to have regard to the levels of child support obtained under the formula assessment, the courts are aware of the principles and effect of the child support formula and the levels of maintenance it produces.

The noble Lord, Lord Carter, asked how many cases we thought might fall into that category. Our best estimate is around 5,000, though that can be no more than au estimate. However, I am advised that the intended effect of this amendment can he achieved by introducing regulations under the power in Clause 18(7), so no further amendment to the Bill would be needed. Having said that, I do not want to mislead the House in regard to our intentions. Our priority must be to secure improvements in the level of service presently offered by the agency to ensure the smooth introduction of the departures system and to provide maintenance for those who have no access to the courts.

There would he nothing to prevent a decision to put people in this category at the head of the queue when the time is right for the take-on of those deferred cases in the future. It is too soon to say when that take-on will begin because we shall have to make a judgment in the light of the situation at the time. I should not like anybody to think that I am making anything in the way of a promise. Undoubtedly that could he done if one wished to do it in the future by using the regulation-making power under Clause 18(7).

I know how suspicious some noble Lords are in relation to regulation-making powers. But dare I say to the noble Lord, Lord Carter, that his confidence in the outcome of the next election will he judged by how closely he tests me in this regard because the regulation-making power will he there, if he is highly confident, to make the changes he wishes. If his confidence is a little less than he likes us to believe it is, then perhaps he will try to press me on that. However, I can assure him that the regulations are there. I am not giving a commitment, hut I am explaining that if one wanted to do it in the future when the position of the agency was better than it is today the power is certainly there to do it.

Lord Carter

My Lords, I am extremely grateful to the Minister. I have a good deal of confidence about the result of the next election. There will be much the same majorities as the Government have been achieving today. I thank the noble Earl, Lord Russell, for his support. I was struck by the Minister's expression—to jeopardise the smooth introduction of the scheme. We heard that during the proceedings on the 1991 Bill, If there is a problem with a parent having to work out the formula, I remind the House that at Report stage we pointed out that an excellent child support handbook has been produced by the Child Poverty Action Group. It would enable the parents to work out the formula before they went to the agency and they could see whether it was worth while.

I am extremely grateful to the Minister for saying that 5,000 cases would be involved. That means that the Government are saying that they could use the regulations, that the number of cases involved is small and it would not he a very heavy burden, but in principle they choose not to do so. That is interesting. He hinted—as he said, without commitment—that when everything is working well these cases should he somewhere near the head of the queue. Under a Labour Government they will be at the head of the queue. However, I have not said that we will introduce the regulations to allow this to happen because there might be some public expenditure implications. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 23 not moved.]

[Amendment No. 24 not moved.]

Clause 23 [Repayment of overpaid child support maintenance]:

Lord Mackay of Ardbrecknish moved Amendment No. 25:

Page 19, line 7, at end insert: ("(6A) For the purposes of this section any payments made by a person under a maintenance assessment which was not validly made shall be treated as overpayments of child support maintenance made by an absent parent.").

The noble Lord said: My Lords, this minor amendment is needed to ensure that the policy intention that all overpayments should come within the scope of the provisions in Clause 23 is achieved, including, in particular, payments of child support maintenance that should not have been paid at all. I regret that it has proved necessary to introduce an amendment at this late stage.

The clause as currently drafted does not include within its provisions overpayments arising from assessments which were not validly made. Invalid assessments can arise in a number of ways. For example, it may he established following a review or appeal that the Child Support Agency had no jurisdiction to make an assessment. Such cases might include those where the absent parent was not habitually resident in the UK, or there was no qualifying child, or there was already a written maintenance agreement made before 5th April 1993. Cases might also arise where the absent parent accepted paternity at the time the assessment was made but subsequently disputed it and was found not to he the father. We do not expect there to he many of these cases but it was always the intention that they should come within the provisions of this clause. Without the amendment absent parents who have overpayments arising from such circumstances could find it difficult to recover those payments. I beg to move.

Lord Carter

My Lords, the noble Lord said that there would he only a small number of such cases. Can he give an indication of the number'?

Lord Mackay of Ardbrecknish

My Lords. I am afraid I cannot. I would perhaps he wrong if I guessed at a number. There were very few indeed—very many fewer than the 5,000 I mentioned earlier.

On Question, amendment agreed to.

Clause 24 [Compensation payments]:

Baroness Hollis of Heigham moved Amendment No. 26:

Page 19, line 27, at end insert: (''partial compensation" means a weekly amount not lower than any difference between the child maintenance taken into account when the family credit or disability working allowance was calculated and the new child support maintenance assessment;").

The noble Baroness said: My Lords, with this amendment we are revisiting the problem of family credit and the six-month rule. Hardship is caused where maintenance is not received on time, or is reduced in a review, or where the Child Support Agency—the collection agency—has not been competent. Because the family credit of the woman or parent with care has been fixed assuming a level of maintenance which she does not receive, yet, at the same time, her family credit cannot be adjusted for up to six months, she can suffer very real hardship for that period.

None of us has argued that we want to abandon the six-month rule as such but we argued from both the Opposition Benches at the Committee and Report stages that where the CSA was the collection agency it should pay the sum represented by the combined family credit and maintenance it would and should have collected irrespective of whether the maintenance remains unchanged. In other words, it would uncouple the payment to the mother from the collection from the father, just as the CSA now does in cases of income support. There is no difference in principle between the two.

The Government resisted this proposal on one rather simple argument—that there were winners and losers with the six-month rule and tough luck! I am sure that that is infinitely comforting to mothers with small children who will be among the losers; those who have an income which may fall below poverty level. I rather doubt that they will be so comforted by the knowledge that other people have gained. Hence we have brought forward this fallback amendment, which does not go as far as those put forward at Committee and Report stages but is a last effort to give women whose maintenance payments fluctuate at least a modest degree of protection.

It would offer partial compensation. It would ensure that no family credit or DWA claimants end up worse off than they would have done had they been without any CSA assessment. It takes into account the Government's argument that not all family credit or DWA claimants have the full CSA assessment taken into account in the first instance—for example, if the absent parent has not been making the payments before the benefit calculation. What we are suggesting here is that compensation should equal the amount of maintenance taken into account after the £15 maintenance disregard has been applied where that is larger than 50 per cent. of the actual reduction.

This is very much a fallback position but it would at least prevent some women on family credit and women on DWA losing out. We believe that the increased expenditure is insignificant; we do not believe that it will be difficult, in this age of information technology and computers, to administer; and, while protecting the six-month rule, it will ensure that where maintenance falls, a woman is not left for up to six months with an income very much below what the Government think she needs to live on. I beg to move.

Earl Russell

My Lords, this is a serious problem. We support the amendment for very much the same reasons as the noble Baroness. I would add only a request that the Minister sends on these debates to those dealing with the replies to the consultation paper on earnings top-up, where some of the same questions may need to be considered.

7 p.m.

Lord Mackay of Ardbrecknish

My Lords, the fact that we are revisiting this matter means that I was not persuasive enough in responding when an identical amendment was set down at an earlier stage in the passage of the Bill.

Baroness Hollis of Heigham

My Lords, the problem was that we were not persuasive enough.

Lord Mackay of Ardbrecknish

My Lords, there we are. As I said, it was a complicated issue. I may even have said at that stage that it might have been easier if we had had overhead projectors or something to show the difficult calculations. But the intention of the amendment is to ensure that parents with care who receive family credit are fully compensated for any reduction in their maintenance arising from changes in child support legislation. I understand the intention behind the noble Baroness's amendment, but the proposal she makes runs into two difficulties.

First, it does not compensate a considerable number of parents who will be compensated by the Government's proposals. Secondly, it is extremely complex and time-consuming to implement, whereas the Government's proposals seek to deliver compensation speedily at the time income is lost and when help is most needed.

There is no simple way in which to identify the "right" amount of compensation where the maintenance assessment reduces for a parent with care on family credit. As I have explained before, the maintenance which is taken into account for family credit is the maintenance actually in payment immediately before the date of the claim. That would be less than the maintenance assessed in many cases where the absent parent was not meeting full liability. In some cases no maintenance will have been taken into account in the family credit award where the maintenance assessment was made later on in the six months' period. A compensation scheme based on the family credit award, as the noble Baroness's would be, does not help parents with care whose maintenance payments began after the award was made, yet their loss of income is real.

The noble Baroness's proposal also does not help parents whose maintenance is below the disregard level of £15. Nothing is taken into account in their family credit and under the noble Baroness's formula, the assistance to them would be zero whereas under our formula they would get some assistance. Our proposals aim to sidestep these problems by looking at the maintenance assessment itself and comparing the old and new assessment. That has the added advantage that compensation is quick and easy to deliver.

As I have explained before, our proposal is to compensate at the rate of 50 per cent. of the reduction in the maintenance assessment. That is intended to provide a broad measure of support. To compensate at any higher rate would over compensate the majority of cases because the potential effect of the reduction on the family credit would always be somewhat less than the reduction itself. That is partly for the reasons I have explained about the basis of the family credit award and the f15 disregard, and partly because at least 30 per cent. of all income is effectively disregarded in assessing the benefit.

I accept now, as I accepted before, that our proposal is not perfect. There is not a fully satisfactory way of identifying a compensation figure without enormously intrusive and lengthy inquiries, which would miss the point of compensation for loss to he there when the loss occurs. I very much welcome the noble Baroness's agreement that it is important that we stick to the concept of the six months' period of family credit. In my view, that perhaps remains a more important principle. That is why our proposal, which does not interfere with that, is the right way forward. The proposal we have is likely to be more generous to more people and thus more effective in meeting need than the amendment we now have before us. With that further explanation of the inter-relationship between family credit and any reduction in maintenance during the six months' period, I hope that the noble Baroness will he able to withdraw her amendment.

Baroness Hollis of Heigham

My Lords, I was listening very carefully. I did not understand quite a lot of the Minister's reply because what he said is not my understanding of most of the structure of the family credit benefit. As far as I can understand, he seemed to be focusing on the changes in the protection offered to women following the changes that the Government were introducing under their own steam.

In this amendment I was not so much concerned with the changes that the Government were introducing. They accept that they have an obligation to compensate. I was not arguing with that because that is accepted. I was trying to protect against future changes in maintenance which follow not from the Government's change in the rules, but from the changing situation in which the father who is paying finds himself. I was trying to overcome the situation where, for example, a mother has an assessment based on the husband's maintenance, which quite properly reduces with his changes in circumstances. As a result, the maintenance may be halved or even fall below that, but because the woman's family credit was determined one month before the payer's circumstances dramatically worsened, she is stuck at a level of family credit which is inadequate to float her off the poverty line. Those were the circumstances that we were trying to deal with—not the consequences of the Government's action. We expect them to take responsibility for what they have done. Where there are other circumstances over which the Government, the mother or indeed the father, have no control we are seeking to make a more flexible family credit system.

I believe that the Minister's answer was addressed to either a misreading of the amendment or perhaps there is a fault in the amendment as drafted. But the intention certainly was to offer a fallback to what we pressed for on an earlier occasion—that is to say, that the CSA would ensure that the full maintenance was paid as though it were the figure at which the family credit was originally assessed at the beginning of the six months period, in exactly the same way as income support is paid. That would not have been difficult because the sums are perfectly easy to work out. It would also have been fair.

As it is, we are left with the problem that if the woman fears that her husband's income will fluctuate, she would be very wise to go back onto income support in order to get the maximum sum and on that basis to go into a family credit situation where she will get the full sum. This is extremely worrying. I believe that there was an estimate of about 50,000 women who can expect maintenance to fall, family credit not to compensate and to he poorer as a result.

Lord Mackay of Ardbrecknish

My Lords, the problem with the noble Baroness's amendment is that it is inserted in Clause 24. Subsection (1) of the clause refers to, compensation or partial compensation for any reduction which is attributable to one or more prescribed changes in child support legislation". I understand the point that the noble Baroness is making. I believe I answered her amendment as it is placed in the Bill. I equally answered the other point which she made in a more substantive way at Report stage. My argument now is much the same as it was then and encapsulates some of the points I made on the narrower question of Clause 24.

Baroness Hollis of Heigham

My Lords, it is too late now to untangle this matter. It is clear from what the Minister said at earlier stages that he was not going to move on this issue. This is one of the more worrying problems which result when one tries to appliqu?é a CSA and its structure of a collection of maintenance on to the existing structure of family credit. I believe that the Government have doggedly refused to address an issue which is of their own creation. The losers will be women who find their family credit fixed for six months and their maintenance fluctuating. As a result, their income will be below an adequate level of support. If this Government will not address the matter, I hope that the Minister, following his previous suggestion to my noble friend, has left enough power in regulation to those who may follow after him, to redress this anomaly. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Departure directions: the cases and controls.]

[Amendments Nos. 27 and 28 not moved.]

Lord Mackay of Ardbrecknish

My Lords, I beg to move that this Bill do now pass. In doing so, I should like, first, to say a few words of gratitude to the many noble Lords who have contributed throughout this debate for their interest and for the constructive spirit in which much of the debate has been conducted. I thank noble Lords on the Benches opposite. In particular, I am grateful to the noble Baroness, Lady Hollis, and the noble Lord, Lord Carter, for the expert knowledge they have brought to the debates on this Bill. I particularly thank them for their support for many of the provisions contained in it. Although our views have clearly differed in some areas, including the one we have just covered, where we have not concurred I have re-examined the issues. I hope I have been able to set out more fully the Government's intentions.

I wish also to thank the noble Baroness, Lady Seear, and the noble Earl, Lord Russell, for their contributions. The noble Earl has prompted us to revisit issues time and again during the course of the Bill's passage through this House, providing an opportunity to test not only this Bill hut the original Act.

I am grateful also for the contribution from the Cross-Benches from the noble and learned Lord, Lord Simon of Glaisdale. It is with some trepidation that I tangle with the noble and learned Lord on matters of constitutional and family law, in which he is a great expert. I am grateful to him, however, for enabling me on occasion to put on record our intention with regard to certain aspects of the Bill. Although I am not able to go nearly as far as the noble and learned Lord would like in principle, I hope that I have been able to clarify some aspects of the Bill.

I should like to thank also my noble friends for their help and assistance. I extend my appreciation particularly to my noble friend Lord Lucas for his support throughout the Bill's progress through this House.

I should also like to thank the voluntary organisations, such as the National Council for One Parent Families and the Child Poverty Action Group, which have provided advice to all sides and have persuasively represented the interests of the agency's clients.

I have been criticised during this Bill's passage for "objurgations" against absent fathers—I have to admit that I had to look up that word in a dictionary—for "antagonism" and even "hostility- towards absent parents. I should like to put on record my recognition that there arc many absent parents who are at pains to maintain regular contact with their children and who have never flinched from their financial responsibilities to their children. Indeed, there are some absent parents who voluntarily pay maintenance well in excess of any amount which they would he required to pay under the formula assessment. I am pleased to have this opportunity to acknowledge the continuing care and support which such parents give to their children.

But there are also those who have gone to considerable lengths to avoid payment, who have sought to justify their reluctance to pay with numerous superficially attractive arguments. They have argued that the interests of children of later relationships are not acknowledged by the scheme, despite the effect of the formula, which almost always results in second families being better off; that they should not have to meet the cost of caring for children; and that many expenses should take precedence over the basic needs of their first family. They have mounted a nationwide campaign to scrap the Child Support Act; they have encouraged unlawful behaviour and some of them, I am sorry to say, have victimised Child Support Agency workers who were doing their best to deliver a service. Like, I am sure, every noble Lord, I very much regret such activities.

It is worth perhaps reflecting for a moment on what the Child Support Act is intended to achieve—that every parent should provide financial support for his children where he can afford to do so. The children of a broken relationship will not only lose the constant presence of one of their parents but will almost invariably suffer a drop in their standard of living. Following divorce, typically the absent parent is better off and the mother and children worse off. How many men who have stayed with their family can say they have at least 70 per cent. of their net income to cover their own expenses? The recently published White Paper on divorce and mediation leaves us in no doubt that, children suffer and are damaged as a result of conflict between their parents". That point was made a little while ago by the noble Earl.

But regular receipt of maintenance can transform the lives of parents with care and their children. Even where the parent with care is on income support, it gives her a portable income which helps her to work if she wishes to do so, thereby raising the standard of living of her children and mitigating the financial effects of separation.

The payment of regular maintenance where the absent parent can afford it signifies his clear acceptance that he has a financial responsibility to his child. But we have learnt that it is not easy to secure acceptance of this responsibility. It is not easy to reverse a culture where the taxpayer could always be relied upon to provide a financial safety net. But we believe that this is the right way to go and have not been deterred by the resistance of some absent parents to the idea that they owe a decent level of support to their own children.

We have listened carefully to the helpful advice received from many quarters, in particular the recommendations of the Select Committee on Social Security in another place. That we have gone further than those recommendations with the provisions of this Bill is clear evidence of our commitment to getting child support right.

I know that it has been suggested that the Bill does nothing for the parent with care. It does. There are provisions within this Bill which have been introduced specifically with the parent with care in mind: the child maintenance bonus; the compensation payments to those who suffer financial loss; and the provision of grounds for departures which are specifically aimed at parents with care. We believe that the hest way to improve a child's standard of living is through the maintenance bonus, which helps the parent with care to return to work. We believe that that is a positive way to help parents with care.

The principles which underpin the 1991 Act continue to enjoy widespread support. But the system has clearly had its difficulties. We have again listened carefully to the criticisms and we recognise that a small minority of cases will warrant particular consideration. The departures system introduced by this Bill makes provision for that consideration. It provides for a fairer system. It will allow an absent parent who has special expenses and genuine difficulty in meeting his commitments the opportunity for his case to be re-examined. In so doing, it removes any legitimacy in the argument of absent parents who arc simply intent on avoiding their financial responsibilities to their children that their assessments are unfair. Absent parents will not he able reasonably to refuse to pay.

The measures in this Bill have been designed to encourage voluntary compliance and so to secure the payment of more maintenance to parents with care. The whole purpose of the child support scheme continues to he to secure more maintenance, more regularly for more children. This Bill as it leaves this House will help to achieve that. I commend it to the House.

Moved, That the Bill do now pass.—(Lord Mackay of Ardbrecknish.)

7.16 p.m.

Lord Carter

My Lords, in speaking to the Motion, That the Bill do now pass, I should like first to thank the Minister for his unfailing courtesy, good humour and helpfulness in dealing with the Bill. We have not accepted all his arguments, hut we have certainly enjoyed his performance. During the eight or nine years in which I have been involved in social security matters in this House, I cannot remember a Session like this in which we have had five major Bills on social security. That has meant a heavy load for the Minister.

I thank also my noble friend Lady Hollis of Heigham, who has carried just as big a load as the Minister but without the flotilla of officials to assist her. I was pleased to take just some of the load by leading on this Bill. The attitude of my party to this Bill in this House and in another place was put well by my honourable friend, Mr. Donald Dewar, our shadow spokesman on social security, at Second Reading in the other place on 20th March. Referring to the 1991 Act, he said: We have stoutly maintained our support for the principle behind the Bill, but consistently argued from the beginning that there were some difficulties—sadly, in the event. some of those arguments have been justified … I think that we can all agree that the Child Support Agency started out with admirable aims and sensible objectives. It was launched with social purpose and was designed to improve on a court system that was demonstrably unsatifactory". Later, referring to this Bill, he said: I reassure the Secretary of State that I shall not encourage my hon. Friends unduly to delay the Committee stage. We have always believed that proper consideration should be given and important points should he properly aired. People on both sides of the argument would want and expect that. However, we can learn much from the harsh experience of recent months and it is Important that we do so".—[Official Report, Commons, 20/3/95; cols. 31–33.] My honourable friend also made it clear that the Opposition would not engage in what he called "trench warfare", and we have certainly tried to follow that precept in our consideration of the Bill in this House.

So that there is no misunderstanding, I should make it clear that we had our reservations about the 1991 Bill—we expressed them at the time—not about the principle of the Bill, but about its practice. Those reservations were borne out by the actual operation of the CSA. This is not the place to repeat all the horror stories that we have heard at various stages of the Bill's passage both in this House and another place. We took no pleasure in that; nor in the likely problems of the CSA, but, as we know, the arguments for change became overwhelming and the Government have now been forced to act through the changes in administration which they introduced earlier this year and now in the Bill which is just leaving this House.

We took the view that in handling the Bill we would set out within the traditions of this House to probe, to amend and to improve it. I am grateful to the Minister for the Government's agreement to a number of our amendments dealing with departure directions and reduced benefit directions for parents with disabled children. We are grateful also for the helpfulness of the Minister's office, for his correspondence and for help in drafting one or two of the amendments. Furthermore, we are grateful for the full explanations that he gave of the complicated amendments, because we were trying to get the Government's explanation on the record.

I shall not pretend for a moment that we regard the Bill as perfect. It is the first step on the road to improvement, which may he long. Certainly, we would not support, and have not supported, changes that would make it easier in practice for the absent parent to evade his responsibilities, however superficially attractive such changes may appear in theory. As a responsible Opposition which firmly intends to form the next government, I am fully aware of our responsibilities as regards public expenditure. We have done our hest to improve the Bill as did our colleagues in the other place.

It is in our minds that we fully expect to form the next government and the CSA will he there when we assume office. We want to find a CSA that is working and this Bill and the administrative changes that were introduced earlier this year go some way to make that outcome a little more likely.

I conclude by thanking the Minister again for his courtesy and good humour. I hope that, as a result of the Bill, the Child Support Agency will he able to get on with the job that it was set up to do and do it much more efficiently and humanely.

7.20 p.m.

Earl Russell

My Lords, for me one of the defining moments of the Bill was on the first day of Committee when the Minister said that the noble Lord, Lord Lucas, had reminded him that he had been replying to three noble Lords whose average age was close to 90. This place is sometimes known as a Senate. There arc some among us who genuinely entitle the House to deserve that title.

In terms of age and in other terms, pride of place must go to the noble Lord, Lord Houghton of Sowerby. I am delighted to hear that the noble Lord is recovering and that it is hoped he will leave hospital tomorrow. The noble Lord has made a distinguished contribution to the Bill. I am of course from childhood familiar with the idea that age is no bar to performances of great intellectual distinction. But even by the standards that I have grown up to regard as normal, the noble Lord, Lord Houghton of Sowerby, has been truly exceptional. I was proud to have his support for most of the time. When I did not have it he made me think again during the passage of the Bill more than any other noble Lord in the House.

I am grateful in particular to the noble Lord, Lord Renton, for a profoundly helpful intervention in Committee. It was confined entirely to points of drafting and not of policy. However, the implications of his comments about drafting stretch right through the Bill and well beyond it. I hope that what he said will be listened to in all quarters and in all parties.

The noble and learned Lord, Lord Simon of Glaisdale, is, of course, one of the glories of this House. He is just about a party in himself. Having his support is as great an accession of strength as having the support of a whole party. The noble and learned Lord has a better track record for being right than almost anyone else in this House. It has been a delight to be able to support him and I congratulate him on his performance.

I am also extremely grateful to the Minister who this year has faced an extremely back-breaking burden of work. He has faced a fearsome amount of flack from across the Dispatch Box. We on the Front Benches of both Opposition parties should say that, if at some future time it should fall to any of us to speak from the place where he now is, we can take the flack with half the patience, kindness, courtesy and accuracy that he has shown we should be entitled to be proud of ourselves. Tonight the Minister is entitled to go home and sleep the sleep of the just.

The Bill, of course, is a different matter. It reminds me of the comment of a 17th century cynic who, when asked whether he preferred the Scripture in English or in Latin, said that he would rather have it in Latin for in Latin "as it doth no good so it doth no harm". On the other hand, the Bill is a very big opportunity missed. It gave us the opportunity to revisit the 1991 Act, but that has been largely untaken.

Shortly after the Committee stage I was invited by the Hansard Society to address an audience of Romanians about the position of a third party in British politics. I mentioned the 1991 Act among others and described it—I hope that the Minister will not think inaccurately—as an Act which attempted to assess all child maintenance by means of a mathematical formula. All the Romanians burst out laughing and I believe that their judgment was accurate.

I do not see whom the Bill benefits. It does not benefit women; it does not benefit men; it does not benefit children; and, as I believe we established on Report, it does not benefit the Treasury. So who does benefit? If the Minister believes that absent parents are now not reasonably able to object to their assessment he is, I am afraid, sadly mistaken. I shall not dwell on the reasons for believing that: I think that he knows them. There is unfinished business here and there is a good deal more of it to come.

I must confess that I regret that we have had so little input into the Bill from the Opposition. Its Members tell us that they fully expect to form the next government. Perhaps I may remind them of Mr. Enoch Powell's definition of an amateur in politics—one who predicts the result of the next general election! They talk about being a responsible Opposition. Being a responsible Opposition does not necessarily mean adopting the principles of the Government. They have shown no sense of heeding the remark of Mr. Tony Blair in his Fabian Society lecture, which I was glad to hear, that the party needs to pay more attention to abuses of power. I have heard no sign of any recognition of that from their Benches. I have heard no sign of recognition that there are any remaining injustices to absent parents. When we dealt with Amendment No. 12 I was extremely disappointed to hear no voice raised from the Opposition Benches in support of the major feminist issue in the Bill. Responsibility can be taken too far. I must say to people outside the Chamber who are concerned to procure the repeal of this Act that once the Thatcherite cuckoo is out of the Conservative nest I think it more likely that the Bill will, in the end, be repealed by a Conservative Government than by a Labour Government.

I had intended to cut out all that I wished to say about illegal demonstration. The Minister has heard me say it previously but he tempted me to say it again. I shall say only that we on these Benches are very proud that the poll tax was not killed in Trafalgar Square and that it was killed in Ribble Valley.

I do not believe that it will be long before we have the next Bill on this subject; in fact, I believe that next Session is a good bet. That will not be the last Bill either. How many more we have to go through before the 1991 Act finally disappears I have no idea. Perhaps the position may be similar to the education Bills in the 1980s, or local government Bills before that, but I am certain that sooner or later the 1991 Act will go. In 1991 I said on the Question, That the Bill do now pass that it was unenforceable. I have seen no reason to change my mind.

7.28 p.m.

Lord Simon of Glaisdale

My Lords, the noble Earl dealt first with what was obviously a pleasant task to him and is a pleasant task to all of us who have participated in the Bill; namely, to pay a tribute to those who have contributed. However, the noble Earl then went on to examine the Bill, which obviously brings a different atmosphere at once. I propose to take matters the other way round.

We have no real objection to most of this Bill. Indeed, parts of it we must welcome because they embody the suggestions which we made in 1991 and which were brushed aside with contumely. So much is good. But we object to what the Bill does not do; in particular that it does not correct the unconstitutional aspects of the 1991 Act.

A famous fellow countryman of the Minister, Lord Cockburn, a great Scottish judge and also a most delightful author of his Memorials of my Own Time, did not limit himself to judging and writing. In addition, he invented a cold rum punch, and he described it in this way: A steady, mild, well-poised fusion of contrieties, like the British constitution". That was a very wise summing up of the British constitution. We must face it: it received a dislocation in 1991. Until that time, maintenance for both women and children was taken care of by the magistrates—a body of laymen who carry out and transact a great mass of our criminal jurisdiction, a most important part of our family jurisdiction and, to some extent, some civil jurisdiction, too.

In 1991 their jurisdiction to award maintenance to children was taken away at a sweep and vested in a government agency whose officers were charged with applying a series of fomulae which the noble Earl has just described and which are really perfectly ludicrous if one looks at Schedule 1 of the 1991 Act.

But the matter did not stop there. Having transferred the jurisdiction, and having sanctioned the bureaucratic aggrandisement at the expense of the lower judiciary, the officers of the Child Support Agency and other officials of the department were then armed with extraordinary powers—powers which the ordinary citizen does not have in similar circumstances. There was a power of entry into private premises, denial of which would attract a penalty. There was a power to interrogate a man's employer and his fellow employees. Again, they had to answer on pain of a penalty. There was power to infringe the confidentiality of the Inland Revenue. Only today we have learnt of exceptional powers of distress which we suspected but did not succeed in pinpointing until today.

By taking proceedings under Section 35 of the Child Support Act rather than proceeding under the Magistrates' Courts Act, the department has three advantages: it need not go hack to the magistrates' court, even though a distress warrant would issue automatically; it escapes general damages in the event of an irregular or illegal distress; it limits the liability to special damages, although the ordinary distrainer will have to pay general damages as well if he makes an irregular, illegal or in some cases excessive distraint. We learnt that only today. They complete the picture.

Or perhaps they do not quite complete the picture because one must turn then to the drafting which, again, is a triumph of bureaucracy. I believe that the high point was the provision that x shall have such meaning as shall he prescribed. The noble Lord, Lord Carter, observed of that genially that as he understood the Minister's explanation of it, it will enable a Labour Government to make such changes as they please and he thought that that was a very good idea.

However, at this stage I must say that I was disappointed that the Labour Opposition did not rally behind the noble Earl when it came to constitutional matters. There is no question that the Opposition prefer the Child Support Agency to the courts. That is understandable if one considers their Fabian past, although that has now been brushed into the background. There is no doubt that this series of measures might he regarded as part of the inevitability of gradualness towards a fully organised, central, bureaucratic state, although the 1991 Act was perhaps a hit more than gradualness.

But at any rate, whatever one might think about the Liberal Democrat leadership in the other place, in your Lordships' House clear green water emerged between the Liberal Democrats and the Labour Opposition. That gives great heart to those who count on constitutional procedures.

That is all I wish to say about what we have failed to do in relation to amending the Bill. I now turn to the agreeable part of what I have to say. I endorse entirely what was said about the noble Lord, Lord Carter, and the noble Baroness. At one time, we were worried that an enormous legislative load appeared to be placed on the noble Baroness this Session. We were very glad to see the noble Lord, Lord Carter, not only for his own sake, which is true, but also because he knew a great deal about the 1991 proceedings.

I believe that I did an injustice at an earlier stage when I said at midnight that there were only two Liberal Democrats on the Front Bench. That was wrong because the noble Baroness, Lady Seear, was assiduous throughout and periodically made the most effective interventions. But a heavy burden fell on the noble Earl, Lord Russell. I have been here or hereabouts since 1951, but I cannot remember a more brilliant parliamentary performance than that of the noble Earl on this Bill. He had all the social service details at his fingertips; he was a master of the constitutionality; and, as always, he was more than courteous. The noble Earl was generous in debate and we are very deeply in his debt.

Having said that, I turn to the Minister. The same or, perhaps, an even heavier burden fell on him than that which fell initially on the noble Baroness. The noble Lord has had three Bills going through the House at the same time, each involving a great deal of work; and, indeed, he has carried through this Bill virtually unaided, although we are conscious of and grateful for the noble Lord, Lord Lucas.

The Minister has been unfailingly courteous, but he has also shown an extraordinary mastery of his brief which has frequently been technical both on the constitutional and on the social security side. Disappointed as I am with the outcome of our deliberations, nevertheless, I count it a very great personal privilege to have taken part in them.

On Question, Bill passed, and returned to the Commons with amendments.