Lords Sitting of 19 June 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Portsmouth.

Tributes to Baroness Hylton-Foster
The Lord Privy Seal (Viscount Cranborne): My Lords, before we begin the usual business, I hope that the House will allow me to divert it for a second and to draw its attention to the historic day that today represents. The noble Baroness, Lady Hylton-Foster, is retiring as Convenor of the Cross-Bench Peers. I think I am right in saying that the noble Baroness is so far the only holder of that post. It is a post which is perhaps even more exacting than the demands that are put upon the leaders of parties in your Lordships' House. The Convenor of the Cross-Benches has to be strictly impartial, and his or her flock—in this case her flock—is above all a flock which, perhaps more than anything else, encapsulates the true spirit of your Lordships' House. The noble Baroness has had over the past 21 years—I think I am right in saying—to juggle the political views of people who come traditionally from the left of the political spectrum, from the right of the political spectrum, from the centre of the political spectrum, and from that indefinable reservoir of knowledge and talent which we call the great and good who sit habitually on your Lordships' Cross-Benches.
I think it is fair to say that the noble Baroness has set a stiff example to the noble Lord who is to follow her, and I should like to pay tribute to the remarkable job that she has done; to wish her well in the future; and to hope that she will not, because she has retired, fail to attend your Lordships' House and to continue to give us the benefit of her views, both in public and in private, and to wish her successor the very best of good fortune in the times to come.
Noble Lords: Hear, hear!
Lord Richard: My Lords, on behalf of the Opposition, perhaps I may join in the tribute that the noble Viscount the Leader of the House has paid to the noble Baroness. She has achieved something which is unique in your Lordships' House. Having been the Convenor of a group that is not a group, she has succeeded in establishing the group that is not a group as if it were a major group in your Lordships' House. That is especially true, because she has fought very hard for members of a group that is not a group in terms of accommodation and in its participation in terms of its proper share of the time of the House when it has been available.
It is a remarkable achievement that she has for so long managed to guide—I hesitate to use the word "lead" in connection with the Cross-Benchers—such a disparate and talented group of people in the way that she has. Speaking for the Opposition, we have had an extremely good working relationship with the noble Baroness. She has been invariably courteous and invariably prepared to listen. She has not always been prepared to change her position after listening, but nevertheless she has been a force for good in the House, and we wish her well in her retirement.
Perhaps I may also join in what the noble Viscount the Leader of the House had to say in conveying our good wishes to her successor. How someone who has been a Speaker will do, having had the experience of discipline and firmness when dealing with an unruly flock, in dealing as gently as he will have to with the group that makes up the Cross-Benchers, we shall see. But we wish him well.
Lord Jenkins of Hillhead: My Lords, we shall all miss the noble Baroness as the Convenor of the Cross-Bench Peers. My whole parliamentary life has been, as it were, punctuated by her family. When I made my maiden speech in the House of Commons 47 years ago, her father was in the Chair; when I made my first speech as a Minister 31 years ago, her husband was in the Chair; and, when seven years ago, I, a somewhat inexperienced

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Member of your Lordships' House, took over leadership of my party here, she was already a well-seasoned vis-à-vis and a very good exemplar.
Her family has a most remarkable record of service to the institution of Parliament. She has fully kept up the tradition and made a most notable contribution. We thank the noble Baroness for her contribution to our proceedings and wish her well in her retirement. We extend our good wishes to her successor.
The Earl of Halsbury: My Lords, only those who, like myself, have had a seat in your Lordships' House for very much longer than the noble Baroness, Lady Hylton-Foster, has been our Convenor can be aware of how much we owe to her. She filled what had hitherto been a great vacuum. As your Lordships know, we are not a party in the political sense of having anything corresponding to a party line. We are a group united only on the basis of not being a party. But that does not mean that we do not have common interests. There is a need to have weekly meetings in order to exchange views, to find out what is going on in the House and, more importantly, to find out what is going to go on in the House the following week. Weekly meetings and weekly newsletters are invaluable services to us all.
Those of us who are taking our seats for the first time need a guide, philosopher and friend to help us on our forward way and to teach us something about the procedures in the House of Lords. Of course, there is the Companion to the Standing Orders but we need to be told where it is and how to find it. When we are contemplating making a maiden speech, we need a companion, guide and philosopher to tell us how not to be controversial without inflicting on your Lordships a long succession of bromides. We also want a clearing house for information. In the case of a political party in the strict sense of the phrase, all that is laid on by the Whips' offices. They have the satisfaction of knowing that they have behind them a coherent and, it is to be hoped, well disciplined party as a result; a party with a high morale.
However, we on the Cross-Benches are not a party; we are a group whose only characteristic is independence of the party system. Therefore, the functional equivalent of the Whips' office is a service to be laid on by an individual whose satisfaction arises out of doing just that; providing a service without any reward except the thanks of her friends. For nigh on 22 years the noble Baroness has done just that for all of us, and we are deeply in her debt.
As was said by the noble Lord, Lord Jenkins, the noble Baroness is not a stranger to a life of service. She began as a trainee nurse with the Red Cross and worked her way up the hierarchy until she was helping to organise the British Red Cross at national level. Her father was a Speaker of the House of Commons, which is service. Her late husband too was a Speaker of the House of Commons, which again is service. Her whole life has been dedicated to performing services for one interest or another as part of a family of national public servants.
During those years she has organised the Cross-Benches into a prototype of what I believe your Lordships' House may become in future; that is a life-Senate of the professional classes dedicated to
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political service rather than political power. On behalf of all those whom she has served for so long in your Lordships' House, I thank her for all that she has done and seek to send her on her way with the blessing and good will of us all.
Finally, I too welcome her successor, the noble Lord, Lord Weatherill, who succeeds her in that service; service to which he is not unaccustomed.
The Lord Bishop of Portsmouth: My Lords, it is my pleasure from these Benches to endorse all that has been said so fully and eloquently by others in your Lordships' House. The Archbishops and Bishops have been grateful for the kindness and support unfailingly offered by the noble Baroness. We very much appreciate being included in the meetings that are held and the notices that are issued by the Cross-Bench Peers. It can be lonely in this corner of the House, sandwiched between the parties. However, there is great reassurance in being welcomed by the noble Baroness, Lady Hylton-Foster, and her noble friends. I express sincere thanks for that.
In common with all noble Lords, I warmly welcome the noble Lord, Lord Weatherill, as the new Convenor and congratulate him on assuming the responsibility. My pleasure in expressing congratulations is also personal. It is the greater because of his family's connections with Bishop's Waltham, which is in my diocese. They live there in the shadow of the Bishop's Palace, which was ruined centuries before his lifetime or mine.
We on these Benches thank the noble Baroness, Lady Hylton-Foster, and welcome the noble Lord, Lord Weatherill. We look forward to our continuing association with the Peers without a party and their Convenor.

VJ Day Commemorations
2.49 p.m.
Lord Chalfont Lord Chalfont asked Her Majesty's Government:
What plans they have to follow the successful VE Day celebrations with a similar programme of events to commemorate the end of the war against Japan.
Viscount Cranborne: My Lords, the Government are organising a programme of commemorative events over the weekend of 19th and 20th August and envisage participation from all nations which fought under the Crown from 1939 to 1945. On Saturday 19th August, the programme includes an open-air service outside Buckingham Palace, a parade of veterans and servicemen and evening entertainment on the River Thames. On Sunday 20th August, we hope that there will be events throughout the nation, with church services and Beating Retreats in the four capital cities.
Lord Chalfont: My Lords, I am grateful to the noble Viscount for that Answer. Is he aware that the events of VE Day, in which he played such a notable part, were regarded as an enormous success in the way in which they brought together the ideas of celebration and reconciliation? Is he aware that many of us hope that the events which will commemorate the end of the war itself will be conducted in a similar spirit? Are the Government

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taking advantage of the services of a professional organiser or impresario in the way that they did so successfully for the events commemorating VE Day?
Viscount Cranborne: My Lords, I am extremely grateful to the noble Lord for his kind remarks about my part in those matters. I was very happy for others to do the work while I took the credit. With regard to reconciliation, I should refer the noble Lord to an article by Air Vice-Marshal Sir Bernard Chacksfield in the Independent on 13th June 1995 in which he very much supports the line taken by the noble Lord. He will be aware, as I am, that Sir Bernard Chacksfield is chairman of the Burma Star Association.
With regard to the services of an impresario, the noble Lord will be pleased to hear that Major Michael Parker, whose astonishing feats of imagination were at the root of any success that there was on VE Day, has once again been advising the steering group on what should be done on VJ Day. I am sure that his magic touch will be apparent to us all on that weekend.
Lord Donoughue: My Lords, the ceremony on VE Day was a great and moving national occasion. But is the Leader of the House aware that, in his reply to my Question, it was confirmed that the Government organised five events in England to celebrate VE Day to which were invited 92 Members of Her Majesty's Government and only eight representatives of Her Majesty's Loyal Opposition? Will the noble Viscount inform the House whether the events for VJ Day will be conducted on a similar basis or, bearing in mind that the majority of Her Majesty's Armed Forces in 1945 voted Labour, will they be conducted on the basis of an all-party national celebration?
Viscount Cranborne: My Lords, I was happy to try to answer as best I could the noble Lord's Question for Written Answer on 25th May. I hope that the noble Lord will accept from me that we aimed to ensure that the nation as a whole was represented at the VE Day events including different regions, occupations and political groupings. The noble Lord will he aware that Members of both Houses of Parliament were invited in a number of capacities and the Leader of Her Majesty's Loyal Opposition and leaders of other parties were invited to represent their parties. Others, such as veterans of the Second World War were invited because of their backgrounds and, in a number of cases, Members of the Government were invited in view of the wartime contribution made by their area of responsibility. Agriculture is a good case in point and it was sensible to invite the Minister responsible for agriculture. Had I been opposition spokesman for agriculture I am sure that I should have had no complaints to make about that.
Lord Ironside: My Lords, as the Japanese surrender was signed aboard both the American flagship in Tokyo Bay and aboard the British Pacific Fleet flagship, HMS "King George V", will my noble friend say whether anybody who took part in those ceremonies will be invited to attend the ceremonies here on 19th and 20th August?
Viscount Cranborne: My Lords, I am sure that your Lordships will be aware that the far eastern fleets of the Royal Navy have often come to be called the "forgotten
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fleets". It is extremely important in the view of Her Majesty's Government—and I associate myself strongly with this—that the Royal Navy and the merchant marine, in particular the forgotten fleets as well as the other allegedly forgotten armies, should play a prominent role. I can give my noble friend the assurance that he seeks.
Lord Dean of Beswick: My Lords, the Minister used the word "reconciliation". Is he aware that relatives of those who were prisoners of the Japanese for considerable periods and who have relatives buried on the railway of death find it extremely difficult to follow the road of reconciliation?
Bearing in mind that, to a large extent, victory over the Japanese was achieved by great numbers of men and women from the Commonwealth and our American allies, in addition to our own forces, will the Minister give an undertaking that those people will be represented adequately in any of the celebrations that take place?
Viscount Cranborne: My Lords, it may be helpful to the noble Lord, Lord Dean, who I know takes a close and justifiable interest in such matters, if I read out from the draft order of service the phrase which has attracted a great deal of attention. The phrase reads:
"Let us pray for the people of all nations and their leaders that those divisions that remain may be healed".
I hope that your Lordships may feel that, particularly in a Christian service, those sentiments are not exceptionable. I am happy to find that the Burma Star Association, in particular, has expressed its full support for that. Forgive me, I have forgotten the other part of the noble Lord's question.
Lord Dean of Beswick: My Lords, will the Minister give an undertaking that the American and Commonwealth forces, who played a magnificent part in the defeat of the Japanese, will be adequately represented?
Viscount Cranborne: My Lords, I should emphasise that this is very much a British and Commonwealth event and deliberately so. But we are extremely keen to make sure that there should be full representation by all members of the Commonwealth and all those forces who fought under the Crown because that enables us to make very clear that the final act of remembrance 50 years after what was the most destructive war in history should be a solemn act of thanks to those who fought, died and saved our country and Commonwealth. I emphasise to the noble Lord that we shall be careful in that regard. I have been assisted greatly—notably by my noble friend Lady Flather—to remember that the greatest volunteer army which helped the Allies in the Second World War was the Indian Army.
Lord Jenkins of Putney: My Lords, as one who was also present with Her Majesty's Armed Forces in South East Asia at the time, perhaps I may express the hope that the events that take place will not exclude an expression of sorrow and regret about the dropping of the bombs on Hiroshima and Nagasaki. It would not be out of keeping with the magnanimous spirit which is desirable on this occasion that we should express words of regret about the terrible events which ushered in the nuclear age.
Viscount Cranborne: My Lords, many people owe their lives to the fact that that difficult and morally impossible decision was taken by President Truman. The noble Lord was there and I was not, but it is clear that we were expecting many thousands of casualties—Britishmen and women—which would undoubtedly have occurred if the bomb had not been dropped. It is an equilibrium which is difficult to maintain. I am glad that I did not have to take that decision but, nevertheless, I believe that it was the right decision.
Lord Mellish: My Lords, I too was in the 14th Army. I was involved in the invasion of Port Swettenham, which it was hoped would assist in defeating the Japanese. While on board we heard that the war was over. I have never prayed so hard nor been so grateful for anything as I was for that atom bomb. It was the finest thing that ever happened that we should have dropped it on those villains. When we reached Port Swettenham, the ramifications would have been unbelievable. Thousands of lives would have been lost and, at the time, I thanked God for the atom bomb.
Viscount Cranborne: My Lords, I have nothing to add to the noble Lord's experience, which he so eloquently expressed.

ECOFIN: Fraud against Community Funds
3 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
Whether they will provide particulars of the proposals for new rules presented by the European Commission at the meeting of the Economic and Financial Council (ECOFIN) on 22nd May last in connection with fraud against Community funds, whether they supported the proposals, and whether they will provide copies of them to Parliament in good time before the forthcoming European Union summit in Cannes.
Lord Inglewood: My Lords, as my right honourable friend the Chancellor of the Exchequer made clear in another place, on 22nd May the Council agreed to further discussion at the Committee of Permanent Representatives (COREPER) of the proposed regulation on the protection of the Community's financial interests, on which an explanatory memorandum was originally submitted to Parliament on 5th October of last year.
Lord Bruce of Donington: My Lords, I thank the Minister for his reply. I am happy to congratulate the Government on having provided your Lordships' House with the document requested in my Question, which arrived at the Select Committee some 10 days after I tabled the matter. In view of the fact that ECOFIN is meeting tomorrow and the next day to consider the memorandum, will the Minister bear in mind that the draft convention contains an extended definition of fraud which I entirely applaud, but what it omits is the relationship between the member states and the Commission? It should also be borne in mind that
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prima-facie evidence already exists that the European Parliament and the Commission have in fact been guilty of fraud within the definition in Article 1 of the proposed convention. Therefore, will the Minister ensure that the institutions concerned give full and immediate access to the police of the countries in which they are situated so that some of those allegations can be investigated?
Lord Inglewood: My Lords, it is a matter of satisfaction that the Government have given such pleasure to the noble Lord. Once the law is in place the noble Lord can rest assured that the processes of law will take their course in an impartial and proper manner.
Lord Hunt of Tanworth: My Lords, I have much sympathy with the point made by the noble Lord, Lord Bruce of Donington. However, is the Minister aware that we are discussing a complicated issue which relates to immunities granted to international bodies generally? There is a big question as to whether one can make an exception for the Commission and its role and distinguish it from other international bodies. It is an issue which the European Communities Committee has taken up in a recent letter to the Home Secretary. Can the Minister assure us that the letter will be considered in that context?
Lord Inglewood: My Lords, I am most grateful to the noble Lord for pointing out how technically complicated the matter is. It lies on the cusp between administrative law and criminal law and between the responsibilities that are vested in the Community under Pillar l and those dealt with under the third pillar of the Maastricht Treaty. I assure the noble Lord that the matters he raised will be given the most serious consideration.
Lord Eatwell: My Lords, does the Minister agree that an effective attack on fraud in the Community requires that greater powers to investigate national dispersion of Community moneys be given to the central authorities of the Community?
Lord Inglewood: My Lords, the important point is that proper investigation is carried out and that those responsible are brought to book. Inevitably that will involve a partnership among all parties. It is not possible to say that there is a paramount party involved in the transactions. It involves member states, national governments and Community institutions.
Lord Pearson of Rannoch: My Lords, can my noble friend tell the House what has happened to the task force of outside experts which was so firmly recommended by your Lordships' Select Committee after six years of studying the problem? Further, does my noble friend agree that the only way to win the battle against this fraudulent Euro-monster is to remove the money from the grasp of the fraudsters, possibly by repatriating the common agricultural policy which costs £30,000 million a year and abolishing the structural funds which cost a further £10,500 million a year?
Lord Inglewood: My Lords, I am grateful to my noble friend for his opening remarks. However, I am not in a position to give him the detailed response that he seeks. Nevertheless, I am willing to write to him to inform him of the up-to-date position. My noble friend proposes the

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most drastic solution to achieve the ends that he seeks. We believe that it is possible to achieve the same results without such drastic measures.
Lord Bruce of Donington: My Lords, will the Minister give the House an undertaking that the matters that I ventured to lay before your Lordships today will receive the careful consideration of the Ministers participating in ECOFIN both tomorrow and the next day?
Lord Inglewood: My Lords, as the noble Lord knows, the attack on fraud, waste and mismanagement has been a major theme of British-European policy for many years. As the noble Lord pointed out, ECOFIN is meeting to deal with the matter, as also is the Justice and Home Affairs Council. By the end of the month I am hopeful that we shall have a much stronger regime in place than we have at present.

Tourist Hotel Accommodation
3.5 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
Whether they will introduce a system whereby a national recognisable minimum standard for tourist hotel accommodation is registrable.
The Parliamentary Under-Secretary of State, Department of National Heritage (Viscount Astor): My Lords, the English Tourist Board is conducting a review of the crown accommodation classification and grading scheme, which is a voluntary scheme. Our aim is to improve the scheme so that consumers are given adequate information to enable them to select accommodation of the type and quality that they seek. We intend to publish our proposals for the crown scheme for consultation with the industry this summer. Our final proposals will be announced by the end of the year.
Baroness Gardner of Parkes: My Lords, I thank my noble friend for that Answer. However, I am concerned about my noble friend's suggestion that it should be a voluntary scheme. Is he aware that most countries have an identifiable minimum standard and that tourists visiting from other countries are thereby assured? In view of the very high earnings of the tourist industry in this country and the present slow growth in London compared to other continental capitals, does my noble friend not think it is time to bring in a proper registration scheme?
Viscount Astor: My Lords, I have to say that the case for introducing a mandatory scheme for such regulation has not been made. Moreover, it is not supported by the industry. The Government do not totally rule out compulsion, but the clear message from industry is the less regulation the better so as to allow people to do the job, and not more regulation. It is important that there should be a scheme. However, what is really important is that it should be a scheme that consumers use and understand. In that way, it would also have the laudable effect of raising standards in the industry.
Lord Strabolgi: My Lords, is the noble Viscount aware that a registration system works very well in France and has done so for many years; and, indeed, ensures a good standard of accommodation, particularly in the more moderately priced hotels?
Viscount Astor: My Lords, the scheme in France is entirely based on classification with no grading. The clear message both from the industry and from consumers in this country is that they want to know about grading; in other words, they want to know about the quality just as much as they want to know what the accommodation is. That is where the scheme is different. It is also noticeable in France that the scheme is not used by industry as it might be because the rate of VAT that one pays depends on one's classification.
Baroness Oppenheim-Barnes: My Lords, does my noble friend the Minister agree that it is time that we had harmonisation of star ratings throughout the Community? It is not a regulation; it is something which enables consumers to make a choice and which provides them with information. At present there are so many conflicting star ratings across the whole Community which is especially bad for this country as a major destination for tourists. Therefore, surely we should have a level playing field in that respect.
Viscount Astor: My Lords, the star system is indeed used by the AA and the RAC in this country; and indeed by some European countries. Of course, it means entirely different things in each European country. We believe that the best system for the Government to back, through the English Tourist Board, is the crown accommodation classification and grading scheme. It is twice as popular, in terms of the number of hotels that have signed up to it, as the AA scheme and it is well used. However, we believe that it needs some improvement to make it more understandable for consumers. We also believe that a voluntary scheme which is backed and used by the industry is much more preferable than a statutory scheme imposed by government on an industry which is extremely important for our economy.
Lord Donoughue: My Lords, the Minister said that no case had been made for a statutory grading scheme. However, is it not the case that the McKinsey Report, as reported in the press, had as its first finding the fact that the hotel industry itself believed that the main solution to the problems of quality in the industry lay in having a compulsory grading scheme?
Viscount Astor: My Lords, the noble Lord, Lord Donoughue, ought to know by now never to believe everything that he reads in the press. But I have to say that his attitude is entirely to be expected from a party which believes that regulation improves industry and does not hamper it. That is why we believe that our deregulation initiative is so important in helping industry thrive in this country.
Lord Donoughue: My Lords, before the Minister sits down, regardless of what I read in the press, is it not the case that the first conclusion of the McKinsey Report

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commissioned by his own department was, as I have said, that the industry believed that the main solution to its problems would lie in a statutory grading scheme?
Viscount Astor: No, my Lords. That is not the case. What is entirely clear is that the majority of people do not believe that there should be a statutory scheme for the hotel industry. However, some sections of the travel agency industry, particularly the incoming travel agents associations, believe that there should be a statutory scheme as that would enable their businesses to sue either hotels or members of the tourist board if the accommodation for their members did not come up to scratch. That is the danger of a statutory scheme. It is just a charter for lawyers to make money. We believe that it would be much better to devote energies to improving the industry. I am sorry that noble Lords on the Front Bench opposite no longer believe in industry.
Baroness Gardner of Parkes: My Lords, is it not a cause for shame that some people come to this country believing that they will receive reasonable accommodation and find that it simply does not comply with the lowest standards of health or safety? The noble Lord really should think seriously about this.
Viscount Astor: My Lords, I disagree with my noble friend. The tourism industry in this country is extremely important. It provides £33 billion in income for this country and 1½ million people work in the industry. It is an extremely successful industry. I do not believe that we should talk it down.
Lord Donoughue: My Lords, does the Minister agree that his department's own document on tourism entitled Competing with the Best states on page 9 that over 30 per cent. of all visitors to this country are very dissatisfied with the hotel accommodation they receive, and states on page 14 that our hotel industry is not internationally competitive? How can the Minister's own statements this afternoon be reconciled with the statements made by his department?
Viscount Astor: My Lords, the tourist industry in this country is growing at about 6 per cent. a year; the European average is 8 per cent. a year. Therefore, there is competition and we need to improve. I believe that the industry in this country produces good value for money. It is perfectly true that there are areas, particularly in London, where some hotels do not offer the quality of accommodation that they should for the price that they charge. That was clear in the survey in which 30 per cent. of visitors said they would like to see an improvement. However, 70 per cent. said they were happy with the situation.
Lord Molloy: My Lords—
Viscount Cranborne: My Lords, I know that this Question arouses a great deal of interest, but I am conscious that the noble Lord, Lord Desai, has been extremely patient. As always I am in your Lordships' hands, but I think that perhaps we should move on.

Barings
3.13 p.m.
Lord Desai Lord Desai asked Her Majesty's Government:
When they expect to receive the report of the Board of Banking Supervision and Control on the Barings collapse.
Lord Inglewood: My Lords, the Board of Banking Supervision will complete its work as soon as it can. The Governor of the Bank of England has told my right honourable friend the Chancellor of the Exchequer that it may be able to submit its report in the early part of July, depending on the nature and timeliness of preliminary responses by those named in it and progress by the board in drawing out the lessons and implications from the Barings episode.
Lord Desai: My Lords, I thank the Minister for that reply. Is he aware that when the Barings collapse occurred one reason given for conducting the inquiry in private was that it would be speedy? Is it not astonishing that despite that there has been a long delay in submitting the report? Would it not have been better if the inquiry had been open to the public so that we could have seen the evidence as it was gathered by the Board of Banking Supervision and Control?
Lord Inglewood: My Lords, one of the principal reasons why the inquiry was constituted in that manner was in order that it should be quick and that we should have a report rather quicker than we did in the case of the BCCI inquiry. I do not believe that the suggestion proposed by the noble Lord, Lord Desai, would have assisted in achieving that.
Lord Boyd-Carpenter: My Lords, in view of the importance of the credit of the British banking system to the whole of the British economy, is my noble friend aware that many of us strongly support his insistence on an early receipt of this report, and if necessary action on it?
Lord Inglewood: My Lords, I am grateful to my noble friend for his comments on the seriousness of this matter which is. of course, a view which the Government share. However, it is also important, first of all, to be thorough in this inquiry so that the facts are properly established and the lessons that can be learnt from it are the right lessons. Secondly, it is important that we operate within the proper legal constraints which stop a precipitate helter-skelter rush to 4 conclusion.
Lord Lawson of Blaby: My Lords, as the Minister who was responsible for the creation of the Board of Banking Supervision and Control, may I ask my noble friend whether, despite the Governor's aspirations to produce a report by the beginning of July—I am sure that at the time those aspirations were given in good faith—there will be no pressure whatever, either from the Governor of the Bank of England or from any other quarter, on the independent members of the Board of Banking Supervision to produce their report into this highly complex and important matter before they are fully ready to do so?
Lord Inglewood: My Lords, I am most grateful for that comment from my noble friend Lord Lawson. I can confirm what he asked.
Lord Eatwell: My Lords, is the noble Lord aware that the credibility of the investigation into the Barings affair has been compromised by entrusting the investigation of the behaviour of the Bank of England in this respect to a board which operates under the authority of the Bank of England? To enhance the credibility of the report will he ensure that the evidence given to the board is published in full?
Lord Inglewood: My Lords, I have no evidence to support the allegation about the taint of this particular Inquiry to which the noble Lord opposite referred. I can assure the House that the matter will be reported as fully as is possible.
Lord Chalfont: My Lords, are the Government giving any consideration to the fate of the former Barings employee who seems to be destined to spend an indefinite time incarcerated in Germany?
Lord Inglewood: My Lords, the general law applies and we will deal with the predicament in which Mr. Leeson finds himself in the same way as we would with any other British citizen in such circumstances.
Lord Boardman: My Lords, as the report may well be highly critical of certain individuals does not my noble friend agree that it is right and just that it should be thorough even if it takes longer than many of us would have hoped?
Lord Inglewood: My Lords, of course that is absolutely right.
Lord Haskel: My Lords, as the Bank of England is an interested party in this matter does not the Minister agree that the report would be more thorough if it was undertaken by someone other than an interested party?
Lord Inglewood: My Lords, it is important to be clear on the role of the Board of Banking Supervision's independent members. We have every confidence that we will receive an impartial, thorough and properly argued analysis of what occurred and that the proper results and conclusions can be drawn from it.
Lord Desai: My Lords, does not the Minister agree, given all the difficulties we have heard about this afternoon, that it would be better if the task of banking supervision was taken away from the Bank of England and given to an independent body?
Lord Inglewood: My Lords, that is not the conclusion that the Treasury and Civil Service Committee of the House of Commons reached when looking into this matter. The committee concluded—the Government agree with this—that there is no overwhelming case for separating out the responsibility for prudential supervision to a separate body. It was interesting to note the evidence given to that inquiry by Professor Sir Charles Goodhart who argued that the distinction was, perhaps, more of form than of substance.
Lord Eatwell: My Lords, given the obvious great interest in this matter in your Lordships' House, will the Minister undertake that when the report is available time will be allocated to consider it fully in a debate in the House?
Lord Inglewood: My Lords, it is intended there will be a Statement made to the other place. It is then up to those on the Benches opposite if they wish the Statement to be repeated here, and that is a matter for the usual channels.

Business
Lord Strathclyde: My Lords, at a convenient moment after 3.30 p.m. my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is to be made in another place on the Halifax Summit.

Criminal Procedure (Scotland) Bill [H.L.]
3.19 p.m.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, I beg to move that this Bill be now read a second time.
This Bill is the first of a package of four consolidation Bills on the Order Paper in my name. With the leave of the House, I shall speak briefly to all four together and then move the remaining Bills formally.
The purpose of the four Bills is to consolidate legislation on criminal matters in Scotland. The Criminal Procedure (Scotland) Bill is the largest measure. It effects the first consolidation of criminal procedure since 1975. The opportunity has been taken to present the law in a more coherent and better structured form.
The Proceeds of Crime (Scotland) Bill contains the particular procedural provisions which apply to confiscation and forfeiture of the proceeds of crime.
The Criminal Law (Consolidation) (Scotland) Bill draws together a number of enactments dealing with substantive law which were included in the procedural statutes which are to be repealed on consolidation. The opportunity has also been taken to bring together a number of other statutory offences so that all may be found more conveniently.
Finally, the Criminal Procedure (Consequential Provisions) (Scotland) Bill makes amendments consequential on the consolidation package and provides for transitional matters and savings.
If your Lordships are content to give the Bills a Second Reading, they will be referred, in the usual way, to the Joint Committee on Consolidation Bills. I commend the Bills to your Lordships.
Moved, That the Bill be now read a second time.—(Lord Rodger of Earlsferry.)
Lord Macaulay of Bragar: My Lords, these four Bills are greatly welcomed by the legal profession in Scotland. It is perhaps an overdue consolidation of the criminal law to date. I am sure that the Bills will be of great value to practitioners and, perhaps more importantly, to the courts in the efficient administration of justice and to clients who will be able to obtain advice from their advisers without

15
the need for the complicated research which has been required up till now in order to establish what the up-to-date law is. This will make great inroads in the saving of time and research in the presentation of cases in the criminal courts in Scotland. All four Bills are welcome.
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Proceeds of Crime (Scotland) Bill [H.L.]
Read a second time, and referred to the Joint Committee on Consolidation Bills.
Criminal Law (Consolidation) (Scotland) Bill [H.L.]
Read a second time, and referred to the Joint Committee on Consolidation Bills.
Criminal Procedure (Consequential Provisions) (Scotland) Bill [H.L.]
Read a second time, and referred to the Joint Committee on Consolidation Bills.

National Health Service (Amendment) Bill
3.22 p.m.
Read a third time.
Clause 14 [Short title, etc:]
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege) moved the following amendment:
Page 11, line 12, after ("2") insert (", 3").
The noble Baroness said: My Lords, as the Bill stands, Clause 14(5) provides that references to a health authority or authorities in Clauses 2 and 6 shall, until 1st April 1996, be construed as references to a family health services authority or family health services authorities. The intention is to allow those clauses to come into force before the Health Authorities Act comes into force.
However, there is also reference to health authorities in Clause 3. Under the present law only family health services authorities administer lists of practitioners undertaking to provide those services. Family health services authorities are not health authorities within the meaning of the National Health Service Act 1977. Therefore, the effect of passing the Bill unamended would be to make any tribunal directions on disqualification from lists meaningless from the commencement of the Act until 1st April 1996.
It is true that Clause 14(3) of the Bill would allow the Secretary of State to make a separate order to bring the Act into force and to appoint different days for different clauses. If the Bill is not amended and Clause 3 is not commenced until April 1996, the effect would simply be to maintain for the time being a practitioner's unrestricted
16
right of appeal to the Secretary of State against a tribunal direction that he or she be disqualified. However, we believe that it is desirable to make the correction now to preserve in full the intention of the sponsors. The amendment merely brings Clause 3 within the ambit of Clause 14(5). I beg to move.
Lord Carter: My Lords, this amendment was obviously required to the Bill as drafted. I dealt with the matter from this Dispatch Box at Second Reading, and I am happy to say that we agree with the amendment. I am grateful to the Minister for her explanation.
On Question, amendment agreed to.
Baroness Gardner of Parkes: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Gardner of Parkes.)
On Question, Bill passed, and returned to the Commons with an amendment.

Road Traffic (New Drivers) Bill
Read a third time, and passed.

Child Support Bill
3.26 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTES in the Chair.]
[Amendment No. 1 not moved.]
Clause 1 [Applications for departure directions]:
Lord Carter Lord Carter moved Amendment No. 2:
Page 1, line 22, at end insert:
("(2A) Once an application for departure is made under subsection (2), the other party shall receive notification of that application and can on request be allowed to submit further information or evidence which is relevant to that application.
(2B) The other party can request permission to submit further evidence under subsection (2A) either—

(a) in writing; or

(b) at a hearing either with or without the other party present; or

(c) at a hearing with the other party present.").

The noble Lord said: In moving Amendment No. 2, I shall speak also to Amendment No. 3. Both amendments relate to the departure directions which are a feature of the first nine clauses of the Bill.
Amendment No. 2, if accepted, would ensure that parents with care and absent parents are made aware of departure applications and the circumstances surrounding such applications. It would also give them the right to submit their own evidence and comments on the application before a decision is made.
The departure process outlined in the Bill allows the parent with care no opportunity to see or comment on the evidence being submitted by the absent parent who is applying for departure. Monitoring by the National Council for One Parent Families shows that there are cases where absent parents have their maintenance payments reduced following normal reviews of changes of circumstances. In that case the parents with care are not told why that has happened and are informed that the information they need is confidential. If they want to know why their maintenance has been reduced, they have to go to an appeal tribunal to find out. The purpose of Amendment No. 2 is to ensure that that situation does not arise with the departure system, as we believe that it would lead to yet more applications for appeal and increased levels of frustration on both sides.
In addition, if the departure officer is to make a fair and equitable decision which takes into account the financial circumstances of both parties and the welfare of any children involved it is important that he involves the parent with care in the process.
I believe that in Committee in the other place the Government said that they did not want to notify the parent with care at too early a stage as the departure application might fail, and also that if the application succeeded the parent with care might not even be notified. That seems to us to be a weakness in the departure process, which could lead to the problems I described, which arise with change of circumstance reviews. That is the purpose of Amendment No. 2.
The effect of Amendment No. 3 would be to allow applications for departure from a current maintenance assessment at any point. We believe that frustration will be caused to applicants who are refused simply because of a time limit. That will not be seen as justice, particularly as the time given is only 28 days.
The amendment removes the time limit on the period during which a person can apply for a departure. The objective of the amendment is to ensure that all parties to an assessment will be satisfied that their circumstances have been' properly considered by the agency. We do not want them to feel that they have been unfairly denied the opportunity to use the departure process.
The way in which the agency operates, the timescale available, and the understanding of the information provided by the agency all have an effect upon the speed at which a person may be able to consider most carefully that information and determine for himself whether or not he should seek a departure.
Unless that process is dealt with sensitively and without undue restraint, we think that the people concerned are likely to feel worry and anger that they have been denied the opportunity to use the new procedures which are so clearly set out in the Bill.
Some problems would be caused by backdating changes in the assessment resulting in the later application for departure. The amendment deals with the issue by allowing the revised assessment only to be backdated where there is good cause for the delay. In other cases, any revision would apply only from the date of the application for a departure. Liability before that date would remain unchanged.
The ability to seek departure applies to parents with care as well as absent parents. Therefore, that change would not always advantage the absent parent. As it stands, Clause 1 does not include any time limit for applying for departure after a change of circumstances. Therefore, the Government's argument about uncertainty for the recipient applies equally in that case.
I believe that what we seek to achieve with the two amendments is clear. It is to deal with the nature of the departure process, to improve its quality in the provision of information, and to seek a degree of justice in the way in which time limits are applied. I beg to move.
Earl Russell: Amendment No. 2 draws attention to a real mischief. I had not intended to speak at this stage, but it is possible that we may save a little time at a later stage of the Bill. The difficulty is whether the amendment is the best way to tackle the mischief. I shall listen to the Minister with care and think further afterwards.
Clearly, when an absent parent succeeds in obtaining a departure, and pays less, there will be a constant problem that the parent with care will immediately find herself receiving less and therefore will suffer. On the other hand, there is a problem between ex-spouses about confidentiality. Relations between ex-spouses are not always quite as amicable as, in a perfect world, one would wish. There are circumstances in which people may object rather strongly to having their private affairs drawn to the attention of ex-spouses.
What is important is that the maintenance should continue to arrive in one form or another; and that if, because the maintenance from the absent parent is reduced there is a hiatus, it should be met smoothly and efficiently by the restoration of benefit. I hope that the Minister may tell us that he has something up his sleeve to help with the problem. In the process, it may save me moving a later amendment.
In this context, I should like the Minister to explain the effect of Clause 25 of the Bill. Am I right in believing that the clause helps to ameliorate the problem to which the noble Lord, Lord Carter, draws attention? That information could possibly be of assistance to the Committee. I appreciate that what is described as the process of osmosis by which information reaches Ministers in this House may take a certain amount of time. However, it may be time well spent because it may save us time in the course of the evening. That is something for which we may all be grateful later.
Lord Mackay of Ardbrecknish: The two amendments have been taken together as they relate to the procedures for dealing with departure applications.
Perhaps I may deal first with Amendment No. 2. As the noble Lord, Lord Carter, explained, the amendment gives the other party to a departure application the right to make representations before the application is decided. It is most certainly our intention that that will happen. The regulation-making powers in paragraph (2) of the new Schedule 4A will be used to ensure that that is achieved. On receipt of a departure application, all of the information, subject to security and data protection requirements, will he passed to the other party. The other party will be advised of its right to make representations and those representations will be taken

19
into account in arriving at a decision. That will normally be a paper-based exercise, but an interview will be offered where appropriate.
I should point out that the right of appeal against a departure order extends to both parties and that both parties are entitled to attend appeal tribunal hearings.
I hope that with that explanation, and my assurance about our firm intention to introduce the measures outlined in the amendment, the noble Lord, Lord Carter, will feel able to withdraw Amendment No. 2.
Amendment No. 3 would add (I believe that that is the best way to put it in shorthand) to the outside limit of 28 days that a person would have before making an appeal. The amendment raises some interesting issues. I have read it carefully and have listened to what the noble Lord said. I should like to consider the matter further. I am sorry to say that since it appeared in the Marshalled List we have not had sufficient time to consider the matter carefully before today's Committee stage. Although Members of the Committee will understand that I cannot make any commitment about the result of my deliberations, I would ask the noble Lord to withdraw the amendment on the understanding that I shall consider further the point that he makes.
Perhaps I may say to the noble Earl, Lord Russell, that osmosis is a little slow today. Therefore, I am afraid that we shall have to return to the issue at a slightly different stage. In my defence, perhaps I may point out that Clause 25 is for tomorrow's business, and sufficient unto the day—or words to that effect.
Lord Carter: It is an encouraging start. We have had a most helpful answer to the first amendment and a promise to consider the second.
Perhaps I misheard the Minister when he referred to Schedule 4A. However, there are only three schedules to the Bill.
Lord Mackay of Ardbrecknish: I am happy to help. I admit that the same confusion occurred to me earlier this morning. Schedule 4A is to be inserted in the 1991 Act. It is in Schedule 1 of the Bill.
Lord Carter: I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Viscount Cranborne: My Lords, I beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

Halifax Summit, 15th-17th June
3.37 p.m.
Viscount Cranborne: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister on the Halifax Summit on 15th to 17th June.
"With permission, Madam Speaker, I should like to make a Statement on the Halifax Summit, which I attended with my right honourable friends the Foreign Secretary, and the Chancellor of the Exchequer and my honourable friend the Minister of State at the Treasury. I have placed the communiqués in the Library of the House.
"As last year, the summit was in two parts. We started with a G7 meeting focusing on economic matters and were then joined by President Yeltsin for a G8 meeting on wider political issues.
"In the G7 countries, growth averaged 3 per cent. last year, with the United Kingdom growing somewhat faster. The issue of most concern is the continuing high levels of unemployment, particularly in continental Europe. For example, unemployment across the European Union is currently at 11 per cent. We are all agreed on the policies needed to tackle that. They are the ones set out in the G7 Jobs Conference last year, and taken forward in the recent OECD study: more flexible labour markets; deregulation and the scrapping of restrictive practices; and better training and education. These are just the policies being pursued by the British Government and which have led to unemployment falling by more than 600,000 over the past two years.
"We agreed to hold another jobs conference in France next year to review progress on these issues. All countries will be represented by finance and employment Ministers; further consideration will be given to including others—such as education and trade Ministers—as well.
"Last year at Naples we agreed to conduct a review of international institutions. At Halifax, we have drawn up a series of specific proposals to strengthen the Bretton Woods institutions and the United Nations.
"We all agreed that the most effective way to tackle exchange rate instability is the pursuit of sensible economic policies at home. Finance Ministers and Central Bank Governors will maintain close co-operation on economic surveillance and on exchange markets. We also agreed on a range of measures to strengthen co-operation between the world's financial regulators and supervisors on such matters as prudential standards and transparency. Among the proposals for the international financial institutions, I would single out those aimed at improving the IMF's early warning mechanisms and its ability to handle crises where prevention fails.
"The summit also discussed the problems of poverty and sustainable development. We agreed in particular to encourage better use of all existing World Bank and IMF resources to tackle the substantial

21
burden of multilateral debt faced by some of the world's poorest countries. This is an area where the UK has taken the lead in pressing for action. All G7 countries have now agreed to explore the option of pledging some of the IMF's gold, and we and some others will continue to argue the case for modest outright sales of gold to help reduce the debt burden.
"This year is the 50th Anniversary of the United Nations. We all want to see a strong and purposeful UN, able to play the full role envisaged under its charter. We agreed that reform is essential if the UN is to continue to meet demands placed upon it. We have made a number of proposals for eliminating duplication and waste, and consolidating and streamlining the UN's economic and social bodies.
"We shall be actively pursuing these proposals in partnership with the rest of the UN's membership, since decisions on these are not just for the G7. We also recognised the need for the UN to be properly financed. All UN member states should meet their financial obligations and agree to reform the system of assessment. The G7 gave a strong push to the next stage of liberalising world trade. There is unfinished business from the Uruguay Round, as well as new areas to be tackled including non-tariff barriers, investment and government procurement.
"We dealt with a number of other issues including the environment where we agreed on the need to review and, where appropriate, strengthen the commitments we made at the 1992 Rio Earth Summit. We also discussed international crime, where the G8 have taken up our suggestion to establish a high level group to look at existing arrangements for co-operation against crime and to make practical proposals to improve them.
"President Yeltsin played a full part in the political discussions. He described the tragic consequences of the taking of hostages by Chechen guerrillas in Budyonnovsk. The crisis, which has claimed many lives, has taken a new turn today. The guerrillas are now reported to be leaving, by agreement, with a large number of hostages as well as Russian deputies and journalists. I hope there will be no further loss of innocent lives, but the wider problem of Chechnya remains. We urged President Yeltsin to do all he could to find a political solution.
"Terrorism has been a problem in many of our countries, and we agreed to set up a better system for exchanging information about terrorist incidents and methods of dealing with them. We also agreed to President Yeltsin's proposal to hold a special summit in Moscow next year to discuss a range of issues on civil nuclear safety.
"On Bosnia, Security Council Resolution 998 on the reinforcement of UNPROFOR was adopted on 16th June. The summit supported the new Rapid Reaction Force which the United Kingdom and France have helped to establish. President Clinton said that he had not yet secured Congressional approval for this force to be funded from UN assessments, but made clear that he wanted the United States to share in the financing. Following new offensives in Bosnia, summit leaders
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called for an immediate moratorium on military operations so that political negotiations based on the contact group proposals could resume.
"Over the past day, the remaining UNPROFOR hostages have been released and the level of fighting has decreased. There has so far been no significant change in the military situation as a result of the latest offensives, and we continue to believe that this question will not be solved militarily.
"Bosnia clearly remains in a dangerous phase. Mr. Carl Bildt, the former Swedish Prime Minister, is about to begin his mission as the European Union's negotiator. He will do so with the strong support of the eight summit nations. This was a summit that addressed a range of long-term and short-term issues: growth and employment; the reform of international institutions; the debt problems of the poorest countries; pushing forward free trade; the conflict in Bosnia; and terrorism.
"The people of Nova Scotia gave the summit a conspicuously warm welcome. This helped to make it a friendly and productive meeting without the over elaborate formalities that have characterised some previous summits. That is something I have pressed for some time, and I hope we can take the process further forward next year."
My Lords, that concludes the Statement.
3.46 p.m.
Lord Richard: My Lords, I am grateful to the Leader of the House for repeating the Statement made by his right honourable friend in another place. I am glad to hear that the summit was friendly and productive; it may have been friendly, but I am not sure how productive it was. It was certainly not particularly earth-shattering. I read the communiqué and it seemed to me, even judging it by the normal pallid standards of such documents, that it was a pretty thin one.
We welcome the progress that may have been made and may be made on jobs and the fact that there is an agreement to meet next year in France. Can the Leader of the House confirm that the main impact of the summit was made by President Chirac, the new president of France? It was said in the press today that he brought a fresh face and fresh voice. Did he bring any fresh ideas? Perhaps the Leader of the House could help us on that.
The reform of the international financial institutions seems to have played a major role in the summit. I agree that they need looking at and it may be that the IMF early warning mechanism proposals are important. However, the UN economic institutions—UNCTAD, UNIDO and some of the others—provide independent voices in international economic policy which perhaps the IMF and the World Bank do not particularly like. Will the Leader of the House confirm that those institutions will be supported?
Concerning the war against world poverty, I was interested in a passage that appears at the top of page 6 of the communiqué. In relation to Sub-Saharan Africa, we are apparently now to,

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"work with others to encourage relevant multilateral institutions to: focus concessional resources on the poorest countries, especially those in Sub-Saharan Africa, which have a demonstrated capacity and commitment to use them effectively, and take trends in military and other unproductive spending into account in extending assistance".
Presumably that means that if countries spend a great deal on arms, they will not do too well as regards aid. I wonder whether the Leader of the House takes the point that it is a little rich that that appears in the communiqué from the nations who are doing their best to persuade those very poor countries that they should buy more and more arms rather than concentrating on other matters.
As regards the United Nations, is there any sign that the United States is yet prepared to pay its dues? I note what was said about the new assessment as concerns Bosnia, but was anything said about the fact that the United States of America is unfortunately still massively behind in its payments to the United Nations budget, and that that is causing difficulties with the UN?
The statement of the chairman rather than the communiqué itself, contains quite a lot about the United Nations and how it could possibly be strengthened. I cannot help pointing out that if what is said in the chairman's statement is to take place in practice, it will give the United Nations a greater capacity to intervene more quickly in international areas of tension. That is something that we on this side of the House would strongly support. I should be grateful for the Lord Privy Seal's confirmation that that is what is intended.
I note that in the chairman's statement the Government and the whole G8 call upon the warring parties in Bosnia to impose a moratorium on the fighting. If there is no moratorium, where do we go then? Merely calling for a moratorium and then saying that, nevertheless, we recognise that the only real way to deal with the problems is by negotiation and that we hope that the contact group's proposal will be accepted, begins increasingly to look like a doctrine of despair. Do the Government have any statement to make about discussions that may have taken place in Halifax, perhaps on a rather longer term basis, about what is to happen in Bosnia if the war there continues?
We give the Statement, the summit communiqué and the documents emerging from it, a reasonable welcome. I am not going overboard in their favour because I do not find very much in the communiqué and the Statement that would lead us to jump ship. Nevertheless, so far so good. We look forward to the jobs conference next year.
Lord Jenkins of Hillhead: My Lords, we are all grateful to the noble Viscount for repeating the Statement. It is, on the whole—I would not put it higher than that—desirable that the summit communiqué Statement should habitually be repeated in this House. It would be difficult to pretend, as the noble Lord, Lord Richard, said, that this was a hard decision making or ground breaking summit. To be honest, I do not have much in the way of comment to make or questions to ask upon it. The communiqué reflects, inevitably, its somewhat anodyne quality.
I remember being told, and subsequently finding it a very good working rule, that a test of whether a Statement is interesting is whether you can imagine a sane man (or a group of, presumably, seven sane men) in the same
24
context stating the reverse. If you can, the Statement is interesting. If you cannot, then it is not. It would be difficult to imagine the statement being made: "We had a notably unconstructive meeting in Halifax, and were very disaffected at the lack of welcome given to us by the Canadians". That statement would be remarkable, but it would be an interesting one. On such a test, very few parts of the communiqué pass. Nonetheless, as an old summiteer—going back, not to the very first but to the third, fourth, fifth and sixth summits, though on a somewhat unwelcome foot-in-the-door basis (at any rate at the third)—I believe that, on the whole, summits serve a useful purpose and are not to be justified only by their hard decisions. They serve to focus the minds of the world's foremost leaders in the few days of the run-up, in the 36 or 48 hours there and, one hopes, for a week or so afterwards, on a more international context and in a less inward-looking direction than would otherwise be the case. That in itself is worthwhile. But if that is the reasonably limited objective, then it is much better that the atmosphere should be more like the fireside chats—although that was always a slightly romantic vision—of the original Rambouillet gathering, rather than the extravagant jamborees of Versailles, Williamsburg and one or two others. To that extent, I congratulate the Canadians on having given a useful lead on this occasion in that direction.
I end with one question. Is it intended that the G7 should continue to exist alongside the G8? Or is it likely that the G7, as expanded (it began as a group of five), will become a group of eight in the future?
Viscount Cranborne: My Lords, the noble Lords, Lord Jenkins and Lord Richard, are united at least in one thing; namely, in finding the summit pretty unexciting. It is one of the features of good management that things do not happen, rather than that things obviously do. The absence of crisis sometimes offers more evidence of good management than do crises. In answer to the question of the noble Lord, Lord Richard, as to whether the summit was productive, I can do no better than repeat to him the remarks, which I believe I noted down correctly, of the noble Lord, Lord Jenkins of Hillhead; namely, summits perform a useful purpose if they focus minds on a more international rather than an inward-looking context. From that point of view it would be safe to say that the summit was a success.
However, I should hate the noble Lord, Lord Richard, to go away with the thought that nothing useful was achieved. Progress was achieved in a number of areas, and indeed on initiatives taken in previous .summits and in previous international forums. To that extent it was useful. Also, my right honourable friend made reference to a number of new initiatives—a notable number of which originate from the United Kingdom—which will become matters of considerable moment in what is, after all, an increasingly interdependent world.
The noble Lord, Lord Jenkins, asked me whether the G7 will continue to exist, or whether it will be transmogrified into the G8. I think I can reassure the noble Lord that we look forward in due course to Russia joining the G7. But a great deal has to happen yet before it is possible to see Russia as a fully fledged member. Nevertheless, it is perfectly clear that President Yeltsin's

25
presence was not only welcome, but was extremely useful when G7 became G8, which it did from the evening of the first day.
On United Nations institutions, the noble Lord, Lord Richard, quite rightly asked me about UNCTAD and UNIDO. Her Majesty's Government are wholly committed to the United Nations and its various agencies. It is perfectly clear that those agencies have an extremely useful role to perform. However, a number of them could patently perform their role more cost-effectively and better. One of the positive aspects of the summit was the unanimous view that action should be taken to try to ensure that that happens. Certainly, so far as the financing of UN agencies is concerned, it is clear from the communiqué, and indeed my right honourable friend's Statement, that the United States is not paying its dues. The communiqué calls upon all United Nations members to meet their financial obligations clearly. That is a call with which Her Majesty's Government are pleased to associate themselves.
On the matter of world trade and the poor countries, it is superfluous to remind the noble Lord, Lord Richard, that the United Kingdom is still the fifth biggest provider of international aid to what used to be called the third world. My noble friend Lady Chalker has a notable record in trying to focus that aid and ensure that the British taxpayer gets better value for money, and in trying to ensure that the recipients of aid see that it is used to their most constructive and long-term advantage.
Noble Lords will also take considerable comfort from paragraphs 29 and 30 of the communiqué, and particularly from paragraphs 39 to 42, headed "Creating Opportunities Through Open Markets". It has been the feeling of many of us over the years that trade is very often—indeed, almost always—better than aid. There is a very strong determination, which became clear during the course of the Halifax Summit, that open markets throughout the world are crucial to accelerated economic growth in the developing countries. That is the phrase used at paragraph 30. The World Trade Organisation will monitor and review the Uruguay Round. It is clear too that we are talking not only about tariffs but also about non-tariff barriers which are very often more difficult to deal with.
With regard to Bosnia, I merely remind the noble Lord, Lord Richard, that, unless one wants to go to war and intervene in a civil war, peacekeeping is only possible if there is a peace to keep. The noble Lord has delivered himself of that important observation a number of times. It has become clear in what was central Bosnia that, where the Croats and the Bosnian Moslems have wanted to make peace, the UN and particularly the British forces, who are strong in that area, have been able to help very much in the establishment of what, for the past 15 months, has been a relatively peaceful period.
I am afraid that Bosnia is a subject to which your Lordships will want to return all too frequently over the coming weeks and months. It is clear that the decisive action taken by Her Majesty's Government has had an immediate effect. Our hostages have been released, as have other UN hostages. It has been made clear that the Rapid Reaction Force can be used to reinforce any necessary action to enable the UN forces to deliver the
26
task that they are there to do. Equally, if that task becomes impossible, there Is no doubt that we shall have to withdraw. If I may say so, the unanimous support which both Houses of Parliament gave in the debate that took place a couple of Wednesdays ago played an important part in making sure that the world at large and the Bosnian Serbs in particular realised that we meant what we said.
4.3 p.m.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for repeating the Statement. Particularly in the light of certain observations made by the noble Lord, Lord Jenkins of Hillhead, it seems to me at any rate that it is a matter of major importance to the whole standing and operation of this House that when such Statements are made in another place, they should always and indeed automatically be repeated in your Lordships' House. I believe that if this House is to function as a House of Parliament, it is essential to insist on that.
I want to ask my noble friend only one question. In the light of the decision of the American House of Representatives on the financing of the Bosnian exercise, what will happen now in respect of United States' participation with France and ourselves in Bosnia? As I understand it, the President of the United States has been denied financial provision for that by the House of Representatives. I should like my noble friend to tell us what will happen. Is all support from the United States to be given, as it were, on tick; or will some other method be found of financing the quite expensive operation in Bosnia?
Viscount Cranborne: My Lords, I agree with my noble friend on his first point. I have frequently observed to your Lordships—perhaps more frequently under questioning from the noble and learned Lord, Lord Simon of Glaisdale than from anyone else—that this place is not a gentleman's club. It is a House of Parliament. If your Lordships ask for Statements to be repeated in this House, that is entirely proper and Her Majesty's Government are only too delighted to comply, particularly in view of the extraordinarily well informed nature of your Lordships' questioning. I sometimes feel that I would rather repeat Statements in another place than here.
With regard to the United States, as usual, my noble friend puts his finger very much on the nub. It is perfectly clear that the United States Administration has given its strong political support for Resolution 998 and President Clinton himself would very much like to pay his whack. But, as my noble friend made clear, the president has difficulty with Congress. It is important that discussions should continue between the United Nations and all troop contributors as a matter of urgency. We hope that a satisfactory resolution can be found, because without money it is difficult to see how troops can be maintained.
Lord Bruce of Donington: My Lords, the noble Viscount was justifiably very modest in his claims about the results of this conference. He said that one of the advantages was that it enabled the individual statesmen who attended the conference to allow their minds to roam over the field of international affairs. We are all relieved about that. Indeed, it must have been a great boon to a number of statesmen, apart perhaps from Monsieur

27
Chirac, to be free from the troubles that most of them are experiencing in their own countries, including our own Prime Minister.
Perhaps the noble Viscount will answer my question with regard to the first point. If the principal achievement is to focus the attention of the various Prime Ministers on international affairs, to what extent were the proceedings of the summit in excess of the information that could be derived from an intelligent reading of The Times newspaper for about a week? That seemed very adequately to cover the whole spectrum of events.
One of the truly disappointing things about the summit is that the conference followed exactly the same form as the one held in Naples: "We are urging this; we are strengthening that and considering the other" and all the rest of it. Why bother once again to repeat the platitudes relating to unemployment? Those platitudes are contained both in the communiqué and in the speech that the noble Viscount was good enough to read to us. All that has happened since the last summit is that all the member states have followed exactly the same economic policies as they have followed for the past 10 years, the result of which has been a growth in worldwide unemployment.
The noble Viscount may claim credit for a certain decline in unemployment in this country—which may be not wholly due to a decline in numbers but more to statistical manipulation. But the fact of the matter is that those who are concerned with unemployment in the world, in our own country and in Europe deserve a far better result from the heads of state at the G7 meeting than is contained in the quite vapid and meaningless communiqué that was issued after it.
Viscount Cranborne: My Lords, had the noble Lord, Lord Bruce, drafted the communiqué, I am sure that it would have been greatly improved. Nevertheless, I hope that he will not underestimate the purport of the content of what he feels is a collection of platitudes.
His reference to President Chirac enables me to attempt to answer a question put to me by the noble Lord, Lord Richard, which I am conscious that I failed to answer when I took up his other points. The answer is that President Chirac was indeed a most welcome new influence in the counsels of the G7. He is full of ideas. I cannot say that they are necessarily fresh ones because they mirror very closely the ideas that Her Majesty's Government have been deploying on the central matters of growth and employment in this country for 16 years. But it is extremely refreshing to find that one of our longest standing allies in Europe is taking up the approach to encouraging growth and employment that we ourselves have long advocated. We refreshed ourselves most distinctly with that. It is very much reflected in the extremely good relations that have been established between my right honourable friend and President Chirac not only in Halifax but also in Paris the weekend before last.
I look forward to those ideas being combined and put into operation throughout Europe. As the noble Lord observed, the unanimous view was expressed that the economic route we have taken is the right one. Perhaps he will see that we are not talking of platitudes, but of a
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distinct difference—a difference between us and the party opposite in this country and between President Chirac and the experience of the French Republic between 1981 and 1983 when they attempted to put some of their ideas into operation.
The Earl of Lauderdale: My Lords, perhaps I can make a point in relation to the rapid reaction force. I understand what has been said; the Americans are not yet paying their whack. Is its deployment being delayed on that account? What is the state of play? If it is being deployed without any money, how will it be paid for?
Viscount Cranborne: My Lords, there is no delay in the deployment. The financing must urgently be sorted out. I have made that clear. However, I hope my noble friend will appreciate that the sums of money involved are substantial. They will have to be found and if we are to remain in Bosnia, the discussions will have to be urgent and fruitful.
Lord Harris of Greenwich: My Lords, perhaps I can ask the Minister two questions. First, in relation to international crime, the Prime Minister referred to a British initiative when it was proposed that a high-level group to look at the issue be set up. Who will provide the secretariat for that group? Will it be a meeting of Ministers of the Interior and the United States Attorney-General? What is involved in that passage of the Statement? Secondly, on the question of terrorism, the Prime Minister referred to a better system for exchanging information in relation to terrorist incidents. We welcome that, but there is already substantial co-operation between the security services. What is involved in that passage of the Prime Minister's Statement?
Viscount Cranborne: My Lords, I hope the noble Lord, Lord Bruce, will agree with me that that passage of the communiqué was of anything but a bland nature. The noble Lord, Lord Harris, rightly points to those important issues. The secretariat, and what I am told are called the "modalities" of these things, have not yet been agreed. However, they will be addressed as a follow-up to the summit on crime and terrorism as a matter of urgency. As the noble Lord said, there is already a good exchange of information on terrorism between interested parties and with the Russians. There is clearly room for improvement and he will be aware more than most that the technical advances of the past few years have been taken up to a marked extent by international criminals and terrorists. It is important that the government agencies that have to respond to those developments should at least be ahead of those they are trying to catch.
Lord Beloff: My Lords, it is characteristic of summits that they are a long way away from the plain. Perhaps I can suggest to my noble friend one comment from the plain on the matter of Bosnia. When one asks ordinary people about Bosnia, what strikes them most is that the city of Sarajevo has been under siege for three years. The United Nations is prevented from delivering even the basics of humanitarian aid to its inhabitants and those who venture from their cellars in order to secure water for their families risk death from mortar fire. I agree with my noble friend the Minister that that does not mean that the United Nations should go to war with the Bosnian Serbs, but

29
surely a meeting of leaders who claim to represent the major civilised countries of the world could at least have expressed their horror and grief at the sufferings of the inhabitants of Sarajevo. People on the plain do it; why cannot the summit?
Viscount Cranborne: My Lords, I am sorry that my noble friend feels that those sentiments were not expressed by the leaders who met in Halifax. It would be fair to say that all the leaders who met there, in all they did, expressed implicitly and explicitly the horror which my noble friend expressed so eloquently and which I take the opportunity once again of expressing on behalf of Her Majesty's Government.
Lord Taylor of Gryfe: My Lords, the Minister rightly paid tribute to the contribution of President Chirac in these affairs and to the new relationship that appears to be developing between France and ourselves following his election. One disappointing feature is that it was almost on the eve of the summit that the announcement came that France is about to resume testing nuclear bombs. From today's newspapers it appears to have encouraged the United States to make a similar declaration. That follows the signing of the non-proliferation treaty only last month. I wonder whether the leaders of the countries concerned, during this meeting, discussed either the security or environmental aspects of this new development.
Viscount Cranborne: My Lords, the question of the conference covering a non-proliferation treaty review and extension was discussed. The decision to extend the treaty indefinitely was greatly welcomed. It has been a good outcome for all and there has been close co-operation between the G7 members who played an important part in securing that result. The membership of the non-proliferation treaty is approaching almost universal membership worldwide. There are now 178 parties to the treaty and we urge all states which have not yet acceded to the treaty to do so and to allay international suspicions about their nuclear activities.
French nuclear testing was not directly discussed. The important international objective is the early agreement of a comprehensive test-ban treaty and all members of the G7 reaffirmed their commitment to it. It is a decision for the French. It is not for us to comment on French requirements and how it decides to meet them. However, we are pleased to find that French commitment to a complete test-ban treaty is well known and has been reaffirmed. In relation to the United States, it is alleged that Secretary Perry made remarks of the kind reported by the noble Lord. We have not yet had confirmation of that and there is no evidence so far that the United States intends to resume nuclear testing. We must be aware that testing covers not only new nuclear weapons, but can be a most effective way of securing the safety of existing ones.
Lord Pearson of Rannoch: My Lords, I was interested to hear my noble friend say that the G7 leaders discussed the problem of unemployment. My noble friend alluded particularly to the fact that unemployment is running at some 11 per cent. in the European Community. All leaders agreed on what needs to be done about that. My noble friend alluded to lowering social costs, for instance,
30
and perhaps increasing international free trade. It is good news that the new President of France agreed with those conclusions.
Perhaps my noble friend can tell the House what effect that kind of agreement will have on the European Commission and other countries of the European Community, who show no sign of having understood the wisdom dispensed at the Halifax G7 meeting.
Viscount Cranborne: My Lords, it has long been an objective of Her Majesty's Government to bring about the sort of labour market conditions which I understand my noble friend would welcome. Both at Essen before Christmas and at this G7 summit not only were those objectives and methods endorsed, but they were endorsed unanimously. I hope that my noble friend will therefore be a little less sceptical. Progress is being made and the free market, which he and I greatly welcome not only within the community but also world-wide, can deliver jobs far more effectively than can regulations.
Lord Desai: My Lords, the Statement mentioned reform of UN economic institutions. One of the problems with the G7 is that although the leaders meet once a year, nothing happens in between. I believe that the report of the Commission on Global Governance suggested some time ago, as did the UNDP in its human development report, that an Economic Security Council should be constituted. Perhaps the G7 could form the core of that body, adding other members. Has any thought been given to making the G7 a body with a permanent secretariat and expanding it to include other leading nations of the United Nations?
Viscount Cranborne: My Lords, I understand the predictable justice of the diagnosis which the noble Lord has given. In the context of the Mexican crisis, which I am sure is a good example of the sort of thing that the noble Lord described, the G7 particularly considered the slightly banal dictum—perhaps the noble Lord, Lord Bruce, will forgive me for saying that—that prevention of financial crisis is better than cure. That is why sound domestic policies matter. However, rather than the body which the noble Lord proposed, the G7 thought that there was already such a body to hand in the form of the International Monetary Fund, and that more effective surveillance by the IMF might be a more cost-effective way of dealing with this, combined with measures to improve the transparency of markets worldwide. I am sure that the noble Lord, with his great knowledge of the subject, will want to return to this.
Baroness Farrington of Ribbleton:. My Lords, will the noble Viscount comment on whether government policy will change with regard to the balance underpinning our trade with developing countries through export credit guarantees moving away from military sales towards sales in other areas in line with the statement that was made following the summit and in keeping with encouraging such countries to develop their non-military trade?
Viscount Cranborne: My Lords, in no way do I apologise to the House or to the noble Baroness for the fact that this country has a highly developed and efficient arms industry. Indeed, under the United Nation's Charter,

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it is the right of every country to defend itself. However, the best way to reduce demand for weapons is to make sure that the world is at peace and that threats are defused. One of the very best ways of ensuring that in the long term rather than merely by patching is to increase the volume of international trade generally. It is for that reason that I particularly welcome the paragraphs to which I referred earlier. The noble Baroness will be aware that although this does not always seem to be the case from the headlines, with the end of the Cold War, the overall size of the international arms market has declined. It has declined as a proportion of overall international trade also. I am sure that both the noble Baroness and I greatly welcome that fact.

Child Support Bill
4.23 p.m.
House again in Committee on Clause 1.
Earl Russell Earl Russell moved Amendment No. 4:
Page 2, leave out lines 14 to 17.
The noble Earl said: In moving Amendment No. 4, I should like to speak also to Amendment Nos. 23, 26, 29, 33 and 35. This group of amendments is designed to give me the opportunity to make a general speech on the drafting methods of the Bill, which might have been considered in some circumstances as giving me a rope with which to hang myself. However, I shall attempt not to oblige on that point.
It might help the Committee if I draw attention first to the words that I wish to delete. Those words are:
"If the Secretary of State considers it appropriate to do so, he may by regulations provide for the question whether a change of circumstances is material to be determined in accordance with the regulations".
In querying regulation-making powers, I do not always intend to assert that they should be put in primary legislation. The provisions to which I have referred seem entirely inappropriate for primary legislation. The question that I want to ask is why this is regarded as an appropriate matter for legislation at all. I cannot see how one can regard a change of circumstances as material or immaterial until one knows the facts of the case. If one attempts to set out in advance a list of all the circumstances which shall be regarded as material, the first thing that will happen is that circumstances will arise which are clearly material but which the draftsman, unfortunately, did not foresee. That is another sub-species of the familiar rule that in politics, the unexpected always happens.
I should have thought that the question of what change of circumstance is material should be determined either by a child support appeal tribunal, a commission or by the courts (depending on the fate of later amendments to the Bill) rather than be specified in regulations by the Secretary of State. This is an example of what I described when we discussed the Disability Discrimination Bill as the "mother-hen school of legislation".
Amendment No. 23 relates to Clause 6(3). It is a central amendment in the construction of the whole Bill because it deals with the grounds on which departures from the formula are to be allowed. The clause states:
"The Secretary of State may by regulations make provision—

(a) for factors which are to be taken into account in determining whether it would be just and equitable to give a departure direction in any case;

(b) for factors which are not to be taken into account in determining such a question."

That is the very centre of the whole Bill.
I have read the report of the Delegated Powers Scrutiny Committee, which argues that this is not a skeleton Bill. I respect that verdict and understand the grounds for it, but this specific provision appears to me to be a skeleton provision because it does not give Parliament any satisfactory means of addressing the grounds for departures. Surely in legislation which has produced as much mess as this—if it had not produced a mess, we would not have had this amending Bill before us—there must be some room for parliamentary input.
I understand why the Government feel the need for flexibility in this area, but they need to understand that their flexibility is our inflexibility. Indeed, the mess has arisen almost entirely because the Government did not listen to advice in 1991. Plenty of advice was offered to the Government by this House. It seems to me that if you have made a mess because you did not listen to advice, it is a rather peculiar response to provide that you shall not be in a position to get such advice or at least for it not to have any forcible effect. That seems to be potentially in conflict with the provision that Parliament makes the law. In fact, the more I look at the Department of Social Security's methods of legislation, the more they seem to be based on the proposition that Parliament's role in making legislation should be reduced as much as possible.
I must declare an interest in not sharing that view, but it is an interest which must be widely shared in this Committee as a whole. We need a chance to look at the grounds for departure to decide whether they are good enough or whether they can be improved in any way. As a revising chamber, that function seems to be denied us by those words.
Amendment No. 24 relates to Clause 6(4) and raises a much smaller point. It is the de minimis rule. I have no objection whatever to such a rule. I do not want the Secretary of State necessarily involved in immense administrative labour in paying back the sum of one penny. However, I object that it is entirely at the Secretary of State's discretion to decide how big the de minimis cut-off point shall be. For all I know, under the vires laid down here, he could decide that it shall be £20,000 a week. I am quite sure that the Minister has no intention of doing that. But the power to fix an upper de minimis cut-off point, and to fix it as high as possible, gives this matter something of the quality of a Henry VIII clause. In effect, it allows a future government the power to repeal the whole provision simply by setting the de minimis level so high that it becomes useless. I can foresee a government, strapped for parliamentary time, using that power on some future occasion to precisely that effect. It is something about which this Committee should hesitate before allowing it.
Lord Carter: The noble Earl mentioned Amendment No. 24 which has not been grouped with the amendments we are now discussing. That particular amendment is listed separately, but it is on this subject.
Earl Russell: Yes, it is. I am most grateful to the noble Lord. Perhaps we may take that amendment in this group because the issues to which it gives rise are similar, if that causes no inconvenience.
In Amendment No. 26 we are back with our old friend Humpty-Dumpty. It refers to Schedule 2, paragraph 2(2) which states:
"'Special expenses' means the whole, or any prescribed part, of expenses which fall within a prescribed description of expenses".
In other words, departure may be allowed for whatever special expenses the Minister believes to be suitable. It really is our old friend whereby the Secretary of State may do whatever he likes. If we are to address it and to move amendments to it, we need to know what that means.
Amendment No. 29 deals with debts incurred in relation to a child and,
"any other child falling within a prescribed category".
Here I am back to the basic principle of Amendment No. 4. I do not believe that it is a proper matter for legislation. There are all kinds of different circumstances in which people are responsible for children who are not biologically their own. For example, one may have a nephew who has been orphaned and for whom one might take responsibility. As often happens, one may have a friend who leaves a will bequeathing guardianship of the children to a friend if he or she should die. I did that myself and, mercifully, it was unnecessary. The person may then die and the child may become the full financial responsibility of someone else.
There is an infinite number of these categories which the Secretary of State may not remember to prescribe because he simply may not have thought of them. Again, it seems to me far better to use a statement of general principle to the effect that this is a child for whose maintenance and welfare the parent concerned is responsible and leave to judicial determination the question to whom that eventually applies.
I do not believe that this Government really understand what is meant by flexibility. They believe that it consists of changing general rules all the time. That is not what flexibility means. It means adapting general rules to particular circumstances. That is the way life happens and that can be done only in relation to a particular case. So if this definition of flexibility is carried far enough we shall end up making a new regulation for every case that arises. That would lead to chaos. I beg to move.
4.30 p.m.
Lord Carter: I shall speak very briefly on this group of amendments. The noble Earl has, as always, explained them extremely well. He said that the Delegated Powers Scrutiny Committee has said that this is not a skeleton Bill. The difficulty is that once the noble Earl begins to remove the references, in order to fit his argument he has to remove all of them throughout the Bill. I am not sure that that is the correct thing to do in every instance. There is a need for flexibility which is given by regulations. I can see the problem which the noble Earl outlined of the
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danger of leaving something out if matters are left to regulations. That is a danger which applies just as much to regulations as to having something on the face of the Bill. The noble Earl has highlighted the real concern which exists and it will be interesting to hear how the Government propose to deal with it.
Lord Renton: The Government had a very difficult task when they decided to try to put maintenance and some other provisions of the 1991 Act into better perspective through this particular legislation. I feel sorry for the Government because the 1991 Act had broad support and was a splendid attempt to provide for what had become a real social problem. But, for one reason or another, and perhaps because the 1991 Act attempted too much—instead of leaving enough to discretion for those who had to decide cases under it—it worked out in ways which caused resentment and sometimes injustice. This Bill is an attempt to put right what has proved to be a very difficult task.
I believe that the noble Earl has done a service by drawing attention to the methods which we are attempting to use in this Bill. I feel sorry for my noble friend Lord Mackay of Ardbrecknish who, I presume, will answer this debate, because I do not believe that he had any say in the formulation of the provisions of the Bill, but he has to defend them. Therefore, I do not want to make his task any more difficult than it is bound to be already. Perhaps I may try to be constructive. I am glad to see that the noble and learned Lord, Lord Simon of Glaisdale, is in his place. About 20 years ago it was suggested by a committee which reported to Parliament that it was best for Parliament to state the principles on which Parliament intended legislation should be based.
Lord Simon of Glaisdale: I am sorry to tell the noble Lord that it was many more than 20 years ago.
Lord Renton: The report was published in 1975. My simple arithmetic makes that 20 years ago but the noble and learned Lord was at school a little more recently than I was. Ever since that time there has been a reluctance on the part of those responsible for advising parliamentary counsel on the drafting of legislation to instruct them as to what the principles should be. There has been an endlessly futile attempt to include in legislation a mass of hypothetical circumstances, to deal with matters in detail, sometimes leaving them to delegated legislation for the provision of still further detail.
I am sorry to have to say that in all those 20 years legislation has become, broadly in my opinion, worse, despite the advice offered to Parliament by that committee, of which I happened to have had the honour to be chairman. What do we find now? We find that instead of leaving a good deal to the discretion of those who will have to decide the cases that will arise under the Bill, the Bill itself goes into a large amount ofdetail. But where it does not reach any conclusions on some of the details that might arise, it makes provision in half a dozen places, to which the noble Earl has referred, for the making by the Secretary of State of regulations containing further guidance, which are bound to be detailed. The circumstances which will arise in those cases are so

35
infinitely variable that it will be a difficult task for the Secretary of State even to get his regulations right and completely to cover every case.
I shall be interested to hear what my noble friend has to say in reply to this short debate, but it is an occasion when we should take note of the practice, which is now becoming prevalent, of assuming that there will have to be more and more detail provided for the people who have to obey statutes, and that the ever-increasing detail shall be contained in secondary legislation. Of course it must be approved by Parliament, as with Clause 2 last week, when the Government gracefully gave way on the proposition that the Secretary of State could give guidance without getting it approved by Parliament, or giving Parliament an opportunity to disapprove.
I hope that throughout Whitehall, one day before long, people will realise that they are creating difficulties for themselves and for other people by continuing with this exceedingly complex method of legislation, which does not necessarily lead to justice and must inevitably lead to uncertainty.
Lord Houghton of Sowerby: I apologise for being a few minutes late. I had hoped to be present at the beginning of the debate on the clause relating to the oversight by someone else of the work of the department and of the Secretary of State in making regulations under the Bill.
Following the noble Lord, Lord Renton, I believe that we are approaching something of a crisis in our method of legislation. When one thinks of the Jobseekers Bill, the Child Support Bill, and the Disability Discrimination Bill, the mountain of regulations that someone has to produce is most forbidding. They are presented to Parliament, to be disturbed only on a prayer to do something with them as a whole, or on the sanction of both Houses of Parliament in a positive way, in which case it is assumed that in giving positive approval Parliament will at least read them and try to understand them.
But to have to make detailed regulations following the statement of principles in an Act of Parliament may be inescapable when one is dealing with public expenditure. After all, when people are entitled to benefits, and when they add up to large sums of public expenditure, Parliament has to be satisfied that the scheme is a workable one and that adequate, although not fastidious, care will be taken to safeguard the public purse, and that the public approves the benefits that they see being paid out.
In the case of the Child Support Bill, however, many of the regulations will apply to the division of spoils between the father and the mother of his children. It has nothing to do with the state. There will be no state money in it. There will be state expenditure in administering it, but it will not be a matter of state concern.
The Bill goes into a field of public relations, and, in particular, relations between husband and wife, man and woman, children and parents. It goes into a field of extreme complexity and great sensitivity. It is small wonder that the child support legislation fell on evil times and the Child Support Agency into an awful mess.
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I believe that we imposed on the agency more than it could possibly cope with in the 1991 Act. We did not provide anything in the formula decisions which went beyond the formula itself. Now in this Bill, we are having to erect another formula in addition to the old one to provide for the cases that the old formula did not reach, or produced a result which was fantastic nonsense to the parties concerned. The result is that we have a whole page, if not more, of detail as to what expenses a father might regard as a charge on his income before the formula decides what he shall contribute to the maintenance of his children who are with the former wife or mother of his children. That is an astonishing situation.
The Bill directs us to provide for regulations to be made to look at income which may be invested by the father on behalf of the children, but which may not be invested to the best advantage. Regulations may provide for the income which will be notionally received on the investment, but which, because it is not sensibly invested, is not being received, and not the actual money at the disposal of the family concerned.
What are we to do with all that? I am very much in sympathy with what I heard the noble Earl, Lord Russell, say on his amendment. I thought that the first amendment on the Marshalled List was placing an additional burden on the parliamentary system somehow, and I was not sure whether we had the resources to deal with it. I am more attracted to the amendment on the Marshalled List in the name of my noble friend Lord Carter—Amendment No. 54—which provides for the appointment of an advisory committee.
I believe that there is a model comparable with this one; that is, the national insurance legislation. That was of extreme complexity over a wide field. A national insurance advisory committee was appointed, made up mainly of outside persons, to look at and comment upon draft regulations, and generally to express an opinion upon the equity or wisdom of something that the Secretary of State was proposing. It could undertake its advisory function almost at any stage. It could pick up either proposals or final decisions and was free to comment on them in the public interest and in the interest of the beneficiaries. I believe that that is an idea worth pursuing. Perhaps the advisory committee could be given sufficient resources to study draft regulations. It would probably do so better than we could. Perhaps we should be justified in employing parliamentary staff to do it for us.
I do not believe that the way in which we deal with the Committee stage of complicated Bills is sensible. My health will no longer stand sitting up until the House adjourns in the middle of the night. Therefore, the next morning I look at the Minutes of Proceedings to see when the victims of the system left their task to go to bed. Some time ago there was talk of adopting methods to shorten the long proceedings that your Lordships' House has suffered in its duties. Indeed, we were told that often the House of Lords sits later than the House of Commons. If the representatives of the people can go home and get to bed at a reasonable hour what are we doing sitting up half the night altering commas and full-stops, inserting the word "and" instead of "for", or whatever, in order to get the Bill right? We cannot be assumed to be the final word in

37
parliamentary draftsmanship in reflection of the view of the House of Commons, or determining what it should be like if we were directly serving the public.
I believe that in those circumstances the Committee stage should be on a smaller scale. Committees appointed on the lines of the House of Commons are well worth considering. We experimented on one occasion but, whether we like it or not, we must come to the stage of having only a selection of amendments debated on the Floor of the House. The Commons have to put up with it and I believe that we shall have to put up with it.
We must realise that every amendment on the Marshalled List can be moved, debated and voted upon and that the Government must set a timetable to get the Bill passed in so many days. They say to the House, in effect, "Well, if you want to sit until breakfast time that's your look out but we are going to get to Amendment No. 52 before we finish tonight". Short of us all walking out and leaving the Chamber unmanned, one can put no difficulties in the way.
I see that the digital clock reads 29 minutes. The amendment has been under discussion for that time. I know that time goes very fast but I am sure that there would be some protest if I spoke for 29 minutes, although occasionally I have come pretty close to that.
The noble Lord, Lord Renton, raised issues of principle dealing with complicated Bills of this kind and I thought it worth uttering a few comments on the tasks upon which we now embark. It is likely that considerable time will be spent long after the hour when we should have given up work. Not all of us are in a position to tolerate those hours. With the co-operation of those who have tabled amendments, we should try to shorten our Committee proceedings on the Floor of the House. We should more seriously consider the setting up of a Standing Committee to deal with much of the detail of complicated Bills, while reserving debates and decisions on matters of major importance to the full Committee on the Floor of the House. That is done in the Commons. I do not believe that we should be loath to see what the Commons does and whether it is successful. Certainly, the public will wonder what we are doing starting another Bill in respect of which there are hundreds of regulations. Someone must define the word "available" and it is in such detailed consideration of Bills that hairs are split left, right and centre.
I hope that we can be more sensible about the way in which we are carrying out our work because, in my humble opinion, we cannot go on like this. Members a good deal younger than me can become fed up with sitting up half the night to settle regulations on the Child Support Bill as regards the division of resources between husband and wife at state auspices and state authority when, surely, they ought to be able to do it for themselves.
Lord Simon of Glaisdale: This important amendment was introduced by the noble Earl, Lord Russell in an important and profound speech. His was followed by other important speeches. I apologise to the noble Lord. Lord Renton, because I understood him to be referring to a report in which he and I participated more than 30 years ago. For the purposes of this amendment, that report has a significant title—The Rule of Law.
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Until the passing of the 1991 Act, the jurisdiction which was taken over by the Child Support Agency was in the hands of the Justices of the Peace; the lay magistrature. There are thousands of them all over the country. They are unpaid, devoted to their work and close to the people who come before them. They have intimate knowledge of the circumstances and the locality and a far better insight than Whitehall can possibly have into the infinite variety and circumstances of those parties.
The noble Lord, Lord Houghton of Sowerby, indicated some of the issues that would have fallen for decision. They are sensitive, complicated and infinitely varied. It is not surprising that magistrates' decisions vary from case to case. Indeed, if that had not been so they would have been gravely at fault.
Furthermore, the magistrates considered wife support and child support together. It was perfectly ludicrous to suppose that they could ever be decided separately. Yet the 1991 Act took the jurisdiction for child support away from the magistrates and put it into the hands of a government agency of paid officials applying a series of incomprehensible and inflexible formulae which your Lordships must again consider. I have yet to meet anybody outside the Treasury Bench who thinks that it was a sensible proposal to put that into the hands of Whitehall while leaving in the hands of the magistrates jurisdiction over wives' maintenance. In fact, it was perfectly ludicrous. One has only to state it to see how ludicrous it was.
The jurisdiction being placed into the hands of the Child Support Agency applying a series of formulae led to disaster. Unless that is recognised, further mistakes will be made. It led to administrative chaos, to widespread injustice and to a sense of resentment which was actually dangerous to our political system.
The letter boxes of Members of Parliament had never been so full of indignant cases, not even in relation to the poll tax. Therefore, there has had to be a change; and the change is to give some flexibility, as it is put, to the decisions of the Child Support Agency applying the formulae to allow departures. Such departures would have been considered and implemented every day in the magistrates' courts before 1991.
There it is: there has been nothing for it. If the Child Support Agency and the formulae were to be retained, there was nothing for it but to give wide discretionary power to the Secretary of State. In the provisions which the noble Earl seeks to leave out, there are two phrases which occur in almost every clause of the Bill. They are:
"The Secretary of State may, by regulations",
and:
"In such circumstances as may be prescribed".
Over and over again, we find those phrases. What is the flexibility?
On Second Reading, I cited one of the criteria of the rule of law of the great Professor Dicey in his study of the constitution. Of course, that phrase—the rule of law—provided the title for the venture in which the noble Lord, Lord Renton, and I participated. But Professor Dicey said something else. He said:
"In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority",

39
I repeat—persons in authority—
"of wide, arbitrary or discretionary powers of constraint".
Therefore, there again, those two measures offend against the rule of law.
I had always thought that members of the Conservative Party were the inheritors of the Whig tradition of upholding the rule of law. I am bound to ask what they are doing with these Bills. Are they so busy intriguing against the Prime Minister and the Chancellor of the Exchequer that they no longer have any time to uphold the rule of law?
Therefore, I am very glad that the noble Earl has introduced this debate. It has produced a number of important suggestions. I agree profoundly with the view of the noble Lord, Lord Renton, that we try to deal with these matters in far too much detail and in doing so, we give wide, arbitrary and discretionary powers of constraint to those in authority.
Lord Carter: I merely wish to comment on the remarks made by the noble Lord, Lord Renton. Before doing so, I thank my noble friend Lord Houghton in doing his part to ensure that we are not in fact kept up all night, as he said.
The noble Lord, Lord Renton, said—and I was on the Opposition team which dealt with the Child Support Act in 1991—that we supported in principle the idea of parental responsibility for maintenance, and so on. But I am sure that he will remember the many warnings which we gave the Government at that time about the formulae and the problems which have now arisen.
However, on a general point, since all the mistakes have come to light, of the recommendations which have been made by outside agencies and two Select Committees of the other place—the Social Security Committee and the Select Committee of the Parliamentary Commissioner for Administration—only half have been accepted and included in the Bill. The danger is that there may be a need to return with another Bill at some stage in the future to put right the omissions which have not been addressed in this Bill.
The Earl of Perth: I had no intention of entering into this debate, but as I listened to the noble Earl, Lord Russell, and other eminent speakers, I became more and more worried that if the Bill goes through without the amendment, we shall reach the point at which Parliament really cannot manage its business. It is no good saying that the regulations will receive parliamentary approval because Parliament will not be able to handle all those matters. The idea of changing things by regulation gets us into more and more trouble all the time.
I was struck by the noble Earl, Lord Russell, saying that somewhere or other in this, there is a Henry VIII angle. It is all very well to say that matters will receive parliamentary approval, but Parliament will not be able to handle all the business. Therefore, I very much hope that the Minister will think about what has been said by one and all this evening and consider whether he should not try to make a fundamental change in the approach to this matter.
Lord Mackay of Ardbrecknish: We have had an interesting debate. My noble friend Lord Lucas has worked out for me that I have been given some sage advice—and I really mean that—by four noble Lords whose average age is about 90. Therefore, I must think very carefully about what they are saying to me.
I was almost tempted by two of the points made. One was made by my noble friend Lord Renton who asked why government legislation could not comprise a few statements of principle and the matter be left at that. Those who have accompanied me through this legislative Session will appreciate that perhaps there are others besides the noble Lord, Lord Renton, who feel like that. It would be quite pleasant to have a few statements of principle and leave it at that. But the problem is that as legislation and the issues which we attempt to address become more complex, that simply will not do. It will not do on the Floor of this House and it will not do on the Floor of the other place. Members of this Chamber and the other place constantly ask the Government about one example and then another example. They say that if all examples have not been covered, then there is something wrong with the legislation. Amendments are tabled to try to cater for all possible examples, some of which are real and some of which are totally imaginary. Therefore, it is difficult to see how we could return to a simpler era when a statement of principle is sufficient in relation to a Government Bill. On occasions I have been in trouble when I have brought forward clauses which have been thought to be far too much statements of principle without sufficient detail.
Lord Renton: I am grateful to my noble friend for giving way. I wonder whether he realises that the alternative to stating the principles which should underlie the decisions made in the Bill is to attempt to go into all the possible hypothetical circumstances which might arise. Indeed, Parliament has been doing that now far too often for far too long. Frequently, it has failed to deal with circumstances which actually do arise.
When the Committee on the preparation of legislation to which I referred earlier was sitting, the top judges on both sides of the border came along and said, "We are sometimes in great difficulty when deciding cases in court because cases come before us which do not exactly fit the hypothetical circumstances stated in statutes. But if you stated the principles in those statutes, then all circumstances would almost certainly be covered". Therefore, the alternative is either to state the principles or to go into endless hypotheses without being successful in doing so.
Lord Mackay of Ardbrecknish: What can I say? However, I can agree with my noble friend to the extent that one has to be careful that one does not go down the road of trying to cover totally hypothetical situations. One should try to keep one's feet on the ground and remain in the real world when it comes to dealing with putting on the face of Bills, or indeed in secondary legislation, the more specific help and guidance which is needed.
However, I return to my point. Perhaps it is particularly true as regards the question of social security because the taxpayer is involved. We must try to ensure that we lay down some pretty clear guidelines and definitions as to

41
who should and should not be eligible for many of the benefits paid out by, for example, my department—indeed, with some trepidation, I go a little further into, say, Home Office matters.
There seems to be continual complaint from the public, the press and, indeed, from Members of both places if it appears that judges or magistrates in different parts of the country are actually imposing totally different sentences for what seems, on the face of it, to be the same crime. Indeed, there is a constant cry for such discretions to be fettered so that the position in one part of the country is largely the same as in any other. Therefore, there are considerable difficulties, although there is clearly a temptation to be attracted by the idea of setting a few general principles and then virtually leaving the matter there.
The noble Lord, Lord Houghton, suggested to me—as, I suspect, a by-product of the general principle that we have just discussed—that the division of resources between husband and wife should be left to them. That is fine. However, the problem is that taxpayers are also drawn into the matter if the division of those resources is such that there is insufficient money for the parent who has care of the child to look after it. As I said, the taxpayer has an interest in such matters and no doubt I shall return to that aspect on a number of occasions. I see that the noble Earl wishes to intervene. I give way.
Earl Russell: I am grateful to the Minister for giving way. However, is it the noble Lord's contention that the taxpayer has actually benefited from the 1991 Act?
Lord Mackay of Ardbrecknish: We shall come to discuss such issues shortly; but, yes, taxpayers have benefited, though perhaps not as much as some of us had hoped they would. It is to be hoped that when the legislation is passed there will be less of an excuse for absent parents to decline to pay their fair share of the responsibility for looking after the interests of the children of their former marriage and that the taxpayer will have less of a burden than is the case at present. As I said, I believe that we shall be returning to discuss that matter as we progress through the Bill. That is all I wish to say about the general discussion regarding the way that legislation ought to be framed.
I turn now to the remarks made by the noble Earl, Lord Russell. Apart from the main point of his amendment, which is to query what we intend to do by the various regulation-making powers—and I shall deal with that aspect in a moment—the noble Earl made two further points. Although I am perhaps trying to shorthand the matter too much, I believe that the first of those points was that he believes that the proposed way of dealing with the problem is not right and that we should leave it all to the courts to decide; or, alternatively, to some form of tribunal. That was the case in the past and, as I said on Second Reading in response to one of my noble friends, I believe that anyone who thinks that that system worked well so far as concerns the parent with care—
Lord Simon of Glaisdale: I am grateful to the Minister for giving way. First, does the noble Lord really think that it worked worse than the Child Support Agency has worked under the 1991 Act? Secondly, does not the Minister think that the magistrature might have been
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improved by a little effort; in particular by the institution of a family court, which has been widely advocated by knowledgeable people? Indeed, I see that the noble Baroness, Lady Faithful], is nodding her head in approval.
5.15 p.m.
Lord Mackay of Ardbrecknish: I do not believe that the noble and learned Lord and I will agree on the matter. Of course, the number of cases has increased over the past 20 or 30 years. That is an unfortunate fact. Certainly, as it said in the White Paper Children Come First in October 1990, the decisions about how maintenance is to be paid were based largely on discretion used in hundreds of courts and in hundreds of social security offices. There was a great deal of inconsistency in the decisions taken. Moreover, not only was there inconsistency in those decisions, but I suspect that there was also an unwritten kind of view held by many people who made such decisions that, if the absent parent was not asked to pay or did not bother to do so, it did not really matter because the taxpayer would come in and pay through the benefit system. Therefore, they did not really need to pursue the absent parent. That was one of the other problems; namely, that the payment of awards in that system, which we are invited to think of as an excellent system, fell into arrears at a very considerable rate. Indeed, a great deal of effort had to be made by the caring parent to return to court and ask for court action in order to re-establish the payments.
As the White Paper pointed out, the full amount of arrears was recovered in only 23 per cent. of cases where the DSS took action. That was the equivalent of only 5 per cent. of the total value of the arrears. Therefore, the blunt fact of the matter is that many parents with care did not receive the amount of money to which they were entitled from the absent parent. That was the background against which the Government decided that something had to be done to address the problem. I see that my noble friend wishes to respond. I give way.
Baroness Faithfull: I am much obliged. It is perfectly true that from about 1984 until 1990 great arrears arose in that regard because the men who were supposed to collect the money were taken off that work and put on counter duty as so many unemployed people needed attention. When those men carried out the will of the courts, there were no such great amounts owing. I wonder whether it would have been better to have developed that system, instead of having a completely new one. which is bound up with the social security system. I know that it is water under the bridge now, but there was no great amount of arrears in the early days when that unit of men collected the money.
Lord Mackay of Ardbrecknish: One certain aspect of that would be far fewer cases. Unfortunately, the instance of divorce has greatly increased, as indeed has the number of children whose parents have parted. That aspect must also be taken into consideration. I should tell my noble friend that I asked one of the people who fulfilled that role and not, I may say, a man; I asked a woman who actually undertook such a role. I am afraid that she did not share

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my noble friend's view that it was a system which worked well. In fact, quite the contrary—she did not think that it had worked particularly well.
Before I turn to the detail of the amendments, I should like to deal with the noble Earl's question—and it is one that he often raised during the proceedings on the Jobseekers Bill—regarding the parliamentary scrutiny which secondary legislation receives. I know that the noble Earl has considerable doubts about it.
However, if I put that on the record at this point it may prevent my having to say it just about every time regulation-making powers arise in the Bill.
As the Committee knows, all secondary legislation must be submitted to the Joint Committee on Statutory Instruments which has the power to report to the Chamber subordinate legislation where it appears to make unusual or unexpected use of the powers conferred by the statute under which it is made. The committee also reports provisions which exceed the powers of the enabling statutes. As regards this Chamber, secondary legislation can be debated and by the force of the argument the Government could be persuaded to take the matter away, amend and return. Although this Chamber does not as a matter of practice vote down statutory instruments, there are means at its disposal to amend or delay such legislation. The Government have no intention of bringing to this Chamber any statutory instrument made under powers in this Bill which would call for such measures, but they are there. Underlying it all is the simple safeguard of the ballot box and the fact that no government can bind their successor.
I now discuss the detail of the amendments in front of us rather than the debate which surrounded them. I am sorry to have to speak at some length but it is important that I try to address as many of the points made in the debate as possible. I hope to be able to reassure the noble Earl and other Members of the Committee who have spoken that, as the Delegated Powers Scrutiny Committee has reported, the Child Support Bill does not inappropriately delegate powers. The Committee will be aware that the scrutiny committee commented that it was difficult to see how substantially greater powers could be written into the Bill. This is particularly so in the field of the departure system. During the course of the Committee and in later considerations I shall explain clearly the way we intend the departure system to work. The Committee may also like to look at the exposition of my department's view in the memorandum which we submitted to the Delegated Powers Scrutiny Committee and which is printed in the committee's report.
It simply would not be possible to provide in primary legislation for all the circumstances which the departure system is intended to meet. Some provisions also build on aspects of the formula which are already in delegated legislation and in certain areas we have intentionally taken a cautious approach knowing that we can widen gateways through secondary legislation should that be necessary. I wish to illustrate that by referring to the powers which Amendment No. 29 seeks to remove. The amendment relates to the provision for special expenses departures, in this case on the grounds of previously incurred debts. As the Committee will be aware, debts of
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the former relationship between the parents which are the responsibility of one of the parents will be one of the grounds for a departure from the formula. A departure will be considered where the debt was incurred while the absent parent was still living with the parent with care and the child to whom the assessment relates, and the debt was incurred for certain specified purposes. A departure can be made if a debt was incurred for the joint benefit of both the parents or was for the benefit of any children to whom the current maintenance assessment relates.
The amendment tabled by the noble Earl does not affect these situations but relates to a further situation where debts may be incurred and for which we want a departure to be allowed. This is the situation where the debts incurred were for the benefit of other children not subject to the current maintenance assessment. The principal situation we have in mind is where debts were incurred for the benefit of a child who was a dependant at the time but is no longer dependent and is therefore not included in the current assessment. However, we recognise that there may be a number of further situations where we would—
Earl Russell: I am grateful to the Minister. If that was the Government's intention, why did they not say so and spare us this amendment?
Lord Mackay of Ardbrecknish: I think there is at least some detail in the memorandum to the scrutiny committee but one of the objects of the Committee—not only this Committee but most Committees—is to give Members the opportunity to ask the Government the purposes behind the delegated legislation and what their thinking is. That is what I am discussing; I have done it on many an occasion in this parliamentary Session. I cannot see where else I might have chosen to explain to the noble Earl what we intend by the powers that we seek in this part of the Bill.
I was saying that we recognise that there may be a number of further situations where we would want to provide for departure directions to be given. These would be too complex to detail in primary legislation and that is why the provision contains a power to make regulations. For example, we might want to provide for a departure in certain circumstances where debts were incurred in respect of step-children. As step-children are not allowed for in the maintenance assessment except by virtue of a departure direction this amendment would exclude debts incurred for their benefit. The provision which the noble Earl wishes to amend, together with its delegated power, is one that seeks to widen rather than narrow the scope for departures on the grounds of previously incurred debts. Secondary legislation is essential because of the many different circumstances that can arise.
I return to Amendment No. 4. A departure may be requested here either at the time an assessment is made or at a later date if there has been relevant change of circumstances. For example, an absent parent may be content with the travel-to-work provisions in the formula but may later have to move his place of work with resulting higher travel costs and therefore may want to ask for a departure. This regulation-making power enables the Secretary of State to provide that the question of whether a change of circumstances is material should be determined in accordance with regulations. We do not

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expect that it will be necessary to provide a definition of "material" for this purpose. A reserve power is needed in case there prove to be circumstances in which it is not clear whether or not a particular change of circumstances is material. It is sensible to take such a power for the avoidance of doubt and to prevent the scope for inconsistencies of approach.
Amendment No. 23 concerns Clause 6 of the Bill and seeks to remove the power to make regulations clarifying certain factors which should or should not be taken into account in considering whether it would be just and equitable to give a departure direction. In exercising his discretion to give such a direction the Secretary of State must consider whether it would be just and equitable to do so. He must look at all the circumstances of the case and particularly the financial circumstances of the absent parent and the person with care. He must bear in mind the welfare of any children to be affected. We do not pretend that these decisions will be easy. The issues will be many and varied. Some absent parents may well be able to show that they have quite high levels of special expenses and many parents with care will be able to demonstrate that in comparison to the absent parent they are financially worse off. Deciding what is fair in any given situation will involve some difficult decisions and questions will arise about the sort of factors it is right to take into consideration. The power conferred by subsection (3) of new Section 28F is intended to allow the Secretary of State to specify particular factors to be taken into account, or not to be taken into account, when making these difficult judgments.
Question 24—that is, Amendment No. 24, although it is question 24!—which the noble Earl suggested we might include in this grouping we are discussing, would remove the provisions in new Section 28F for a departure direction not to be made if the result would be to change the current assessment by less than a specified amount. The result would be that where, after due consideration of all the facts, the Secretary of State considered that a case had been made for allowing special expenses, he would instruct a child support officer to make a fresh assessment even if the changes in the assessment were as little as a penny.
The Committee will be familiar with the concept of the de minimis rule which currently exists in relation to reviews of maintenance assessments for changes of circumstances. It may be helpful if I discuss the reasons for using this type of control mechanism and explain why we wish to introduce a similar provision for departures. The de minimis rule restricts the number of times an assessment is changed by providing that where the amount payable will vary by less than a stated amount no reassessment will be made. It is designed to ensure that once an assessment is made it will be changed only by significant amounts. We believe that it is important both for the person with care to know how much income she can expect and equally for the absent parent to know what his commitments are. Frequent changes would not be helpful in either case. Moreover, the need to make constant reassessments for small amounts would place an unmanageable administrative burden on the agency.
Lord Houghton of Sowerby: I am sorry to intervene. I have probably missed a beat or two. When the noble Lord refers to the Secretary of State and the difficult decisions the Secretary of State must take, he is of course referring to the staff of the Secretary of State. Since there are thousands of cases there will be a need for a great many staff, who will be of different types and ages, with different training and different approaches to the problem and who will apply varying degrees of wisdom in their discretion. What staff are likely to be in post to reach all these difficult decisions? The root of a great deal of the troubles of the agency is that it has not had the staff. I do not know where they came from or what training they had. Can the Secretary of State guarantee that decisions will be taken by people capable of taking them?
5.30 p.m.
Lord Mackay of Ardbrecknish: As with all the agencies of the Department of Social Security, there is a considerable number of staff to deal with these issues. Of course the training of those staff, the guidance given to them and the regulations which Parliament lays down are all important matters. We shall recruit and put in place senior, well-trained staff to make the difficult decisions on departures. Via regulations and guidance sent out to staff on how to operate the rules, we shall try to ensure that they are as highly trained as possible. However, every system is human. Even the courts, which some Members of the Committee seem to think was the infallible system of yesteryear, did not exactly produce a totally consistent method of dealing with individuals when they came before them. That is why we propose that there should be a de minimis rule. It is good common sense.
The effect of Amendment No. 26 would be to allow an application for a departure direction from an absent parent who had an expense not taken into account in the formula assessment. The departure system is intended to allow some flexibility for the small number of cases where the application of the maintenance formula causes genuine difficulty. It is important that we are able to prescribe the circumstances in which a departure can be requested. Without it we shall return to a totally discretionary system under which it would be possible to place virtually any expense before the duty to pay child support maintenance.
In accordance with the affirmative procedure, any regulations made under the departure provisions under Schedule 4B of the 1991 Act will be brought before Parliament for further consideration. If, when the system of departures is up and running, the gateways need adjusting that can be done.
During the Committee stage in another place some members of the Opposition indicated that there were one or two items that they would like to see included in the list. My honourable friend the Under-Secretary of State for Social Security, Mr. Alistair Burt, gave an undertaking that we would keep the list of special expenses under review and would make adjustments if that proved necessary in the light of the pilot exercise.
Perhaps I can explain the purpose of the regulation-making power which the noble Earl proposes to delete in Amendment No. 33. The purpose of the power is to avoid uncertainty as to when disability and illness—

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terms which themselves will be defined in regulations—are to be regarded as being long term. Our intention is to introduce regulations to the effect that a long-term illness or disability is one which is expected to last for at least 52 weeks. That would be consistent both with the definition used for incapacity benefit and that in the Disability Discrimination Bill. The regulation-making power is subject to affirmative resolution and therefore Parliament will have the opportunity to debate the contents.
The effect of Amendment No. 35 would be to remove the delegated power which is required to define the circumstances in which a child may be considered to be part of the family for the purposes of considering a departure direction. Defining the circumstances in which children are considered to be part of the family is best left to regulations, an approach which is consistent with provisions for income-related benefits.
Earl Russell: I am grateful to the Minister. I did not ask him to explain why the power should be in regulations rather than in primary legislation. I asked him to explain why it should be a legislative matter at all.
Lord Mackay of Ardbrecknish: I think that I am coming to that. I hope that I am. The Committee will also hope that I am coming to the end of my remarks on these amendments.
Noble Lords: Hear, hear!
Lord Mackay of Ardbrecknish: It is not often that I receive such universal agreement on this subject.
If it is not possible to define in regulations what we mean by a child being part of a family, it could lead to this provision being extended well beyond the type of expenses it is designed to take into account. For example, expenses incurred on behalf of nephews and nieces could be cited in support of a departure application even if those children were not resident in the household. Even if—and I am by no means confident of this—we could rely on "family" being interpreted as meaning people who live together, there would still be a need to define it in this context. For example, parents could apply for departures where they were acting as foster parents. We shall come to the subject of foster children later today. Foster children are not taken into account for child support purposes because their costs are met by the fostering allowance. Therefore, it would not be right to consider a departure in such circumstances.
I apologise if I have gone on a bit, but perhaps I can say in my defence, as the man said after listening to a long speech after dinner, at least I have shortened the summer for your Lordships.
I hope that the explanation I have given of each of those amendments shows why we believe the powers are needed and what we shall bring forward in regulations. I hope that the Committee will accept that regulations, added to the Bill, will allow the agency to do what I believe the majority of people in this country want it to do: namely, to make sure that an absent father pays the proper amount of money to look after the children which his ex-wife—because it is usually that way round—is now having to look after on her own. I hope that with that explanation the noble Earl will withdraw his amendment.
Earl Russell: I am most grateful to all Members of the Committee who have spoken. This subject has clearly raised a great deal of interest in the Chamber. The amendments have enjoyed a powerful body of support around the Chamber.
First, I shall take up the point made by the noble Lord, Lord Houghton of Sowerby, about time. He described us as victims of the system. I understand what he means. Our spouses understand what he means. However, it takes two to save time.
I read carefully the Renton Report on the Sittings of the House. That suggested that a great deal more should be done by consultation before a Bill comes before us. That was a good suggestion. It takes two to put it into effect. I shall ask the Minister a serious question to which I should like to know the answer. If I had come to him when the Bill was published asking for a meeting to persuade him to alter these points of drafting, am I right in believing that I would have been wasting his time and the department's time because no meeting of minds would have taken place? If I am wrong in that then I was perhaps mistaken in bringing these amendments forward, and I apologise. However, if one cannot make progress by meetings, then one has to bring the matter to the Chamber.
We might also make progress faster if we could all refrain from making general Second Reading points. I have resisted the temptation to rise to the Minister's claim that the taxpayer has benefited from the Act. However, I tell him that if he continues to make that claim, I shall put down an Unstarred Question and ask him to justify it. Points of that kind, which are widely unacceptable in many quarters of the Chamber, do not move us along faster.
The Minister made a serious point when he argued that the approach to legislation which I propose would not do on the Floor of the House. We had the same exchange on the Jobseekers Bill. The Minister may remember that I suggested that he meet me halfway and outside the Chamber, to which he replied by inviting me to name my weapons. Now that the Minister has drunk my weapons, he may consider that I accepted a self-criticism in making that suggestion. In the past I have myself sometimes pressed for too much detail in a Bill. The noble Lord, Lord Renton, has sometimes pulled me up and has made me think. I did not know that the Government were that bad at resisting pressure. I wonder why they did not tell me; I might have pressed a little harder on a few occasions. It seems to me that governments are perfectly capable of resisting pressure when they wish and that many amendments which seek to add detail to a general principle are put forward either because the general principle is unacceptable or is not sufficiently clear.
On parliamentary control, I understand all the points about the joint committee, and so on. The committee is confined to considering the values. I have read and welcome the report of the Delegated Powers Scrutiny Committee. However, by its terms of reference it is confined to considering whether a delegated legislation clause properly delegates legislated power. A provision may not be improper, but it may be unwise, ineffectual and unnecessary.
Lord Renton: I am grateful to the noble Earl for giving way. He realises that the Delegated Powers Scrutiny Committee is mainly, although not entirely, concerned with Henry VIII clauses; that is, the danger of previous primary legislation being altered by subsidiary legislation without the consent of Parliament.
5.45 p.m.
Earl Russell: I am grateful to the noble Lord. As I recall them, the terms of reference contain two points: whether any enactment improperly delegates legislative power—that is the issue with which we are concerned now—and whether delegated powers are subjected to a sufficient degree of parliamentary control. Having touched on the first and having pointed out that a delegation of power may be unwise in many ways that the Delegated Powers Scrutiny Committee may find beyond its terms of reference, I come now to the question of parliamentary control.
It appears to me that control is essentially a matter of voting. One does not actually have to vote in order to exercise control, but one has to be able to do so. I was most interested in the provisions of the new Companion to the Standing Orders on voting on delegated legislation. Page 187 is worth particularly careful scrutiny. If it is acceptable to all parties that we shall vote, and do so in force, in ways given sanction by the Companion to the Standing Orders on page 187, I might then be able to be slightly less careful in restricting the use of delegated power. However, until this House has the power of voting, and is willing to exercise it, so long must I continue to be careful about the extent of regulation-making powers.
The Minister gave me much detail. I am not entirely sure that he understood exactly what was worrying me. On Amendment No. 4, the question is: what is a material circumstance? I still do not understand why that has to be a legislative and not a judicial matter. I do not understand why the decision has to be taken by the Secretary of State, who does not have the facts, rather than by a court, which does. In some circumstances, for example, a child in higher education, the factor may be material in cases where there is no other provision but not material in others where there is adequate provision. Therefore the issue depends on the circumstances, and I do not think that regulation can provide for that.
We shall need to return to Amendment No. 23. I understand the case for allowing the Secretary of State to be involved. But what of allowing Parliament to take some part in the matter? I heard no answer to that question. I do not see why the Minister regards step-children, for instance, as quite such an extraordinary event. The situation arises quite often. It might have been more effective to provide for stepchildren in the formula rather than a complicated system of departures to recognise a normal fact of existence.
On Amendment No. 29, the Minister misinterpreted me. I am grateful to him for stating his policy intention. He believed that I was unaware of it. I have read the excellent and extremely helpful memorandum to the Delegated Powers Scrutiny Committee. What I sought to say to him was this. If his intention was as outlined, why did he not say so in the Bill? There would then have been no trouble.
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Because the memorandum is so much more intelligible than the Bill, I wonder whether, under the principles of Pepper v. Hart, it might not be used by the courts as a guide to understanding the legislation and in fact whether the memorandum may slowly usurp the position of the legislation. The noble Lord, Lord Renton, shakes his head. I shall be very relieved if he is right. However, it seems to me that other people seeking to find the Government's intention would be wise to go to that memorandum and not to the Bill. There is a danger of Parliament's functions being usurped.
The Minister's reply on Amendment No. 35 fascinated me. He was afraid of courts going beyond the Government's intention. I did not bring my copy of the Renton Report with me today. The noble Lord may remember the passage that I have in mind. I spoke to it on the Jobseekers Bill when referring to precisely that legislative approach. The noble Lord said that for perfectly good reasons the amendment does not work. I should like to ask the Department of Social Security to consider the matter very seriously indeed.
We are considering a real issue here. However, in the light of the strictly non-partisan, non-party debate that we have had, I would be abusing the spirit of the support that I have had if I were to ask the opinion of the Committee. I shall need to return to Amendment No. 23 in a different context with a different line of argument at a later stage of the Bill. In the meantime, with thanks to all those who have spoken, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 5:
Page 2, line 17, at end insert:
("(7) Schedule 4A has effect in relation to departure directions.").
The noble Lord said: The amendment will help me to restore the balance of the average time of my speeches. It is a minor but necessary drafting repair which picks up a stitch which was dropped by the draftsman. It inserts a new subsection into the new Section 28A as introduced by Clause 1 of the Bill.
The new Schedule 4A to the 1991 Act is inserted by subsection (2) of Clause 1 of the Bill but no mention of it is made, as it should be, by the new Section 28A of the 1991 Act that has been inserted by subsection (1) of Clause 1. The amendment rectifies the omission. I commend it to the Committee.
Lord Simon of Glaisdale: I hope that this is not an inconvenient moment to make a short intervention on a technical point. By virtue of the office of the noble Lord, we have had today a most helpful document completing the 1991 Act with this Bill and with the intermediate regulations.
My question is: would it not be possible and desirable for some such document to take its place in the Bill as a Keeling schedule? Perhaps the noble Lord will be good enough to discuss the matter with the draftsman. It is true that it would incorporate regulations as well as the 1991 Act. But I do not think that that is really a conclusive argument against the Keeling schedule. Perhaps the noble Lord will be good enough to say that he will take the matter up with the draftsman.
Lord Mackay of Ardbrecknish: I am happy to say to the noble and learned Lord, Lord Simon of Glaisdale, that I shall discuss his specific point with the draftsman. I thank him for the welcome he gave to the document that we produced in order to show the complete picture, if Members of the Committee agree. The only slight problem is that I do not seem to have brought my copy with me.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Schedule I [Departure Directions]:
Lord Carter Lord Carter moved Amendment No. 6:
Page 24, line 36, at end insert:
("() Where a departure application is referred to a child support appeal tribunal under section 28D(1) (b) and the application is heard by a chairman sitting alone, any qualifying person aggrieved by the decision may appeal under section 28H as though the decision were a decision of the Secretary of State.").
The noble Lord said: With Amendment No. 6, we deal with the situation where the tribunal chairman sits alone. The amendment's effect is to give a right of appeal on the facts where a single child support appeal tribunal (CSAT) chairman takes the place of the CSA officer. The amendment would build in a necessary safeguard and would give a right of appeal on the facts when a single child support appeal tribunal chairman takes the place of the child support agency officer. The purpose of the amendment is to provide the assurance that a right of appeal will be available.
Although we understand the Government's wish for flexibility and speed in the appeals process, we are concerned that natural justice may be sacrificed to achieve administrative convenience. The entire outcome of a departure application should not depend on the discretion of one individual. The exercise of discretion by different people can result in different decisions. A tribunal of three is less likely to give inconsistent and maverick decisions. Although one-person tribunals would cost less, that should not be the overriding factor in setting up the departure procedure. Adequate resources need to be made available to the Independent Tribunal Service and all members provided with detailed training, including a grounding in family law.
In principle, we do not oppose the introduction of one-person tribunals, although it is a significant change from other tribunals run by the independent tribunal service. It would be helpful if the Minister could give examples of the use of one-person tribunals in other fields. We ask that the Government give an assurance that the use of one-person tribunals will be the exception rather than the rule.
The amendment proposes a safeguard. Although there is no legal distinction between the decision being considered by a CSAT on referral or on appeal and they are both looked at de novo, there is a practical distinction. When an application is referred to a CSAT, it is considered only once, not twice, on the facts. Therefore, in effect, there is no right of appeal from the first decision on the facts.
We do not feel that it is sufficient for only one person—even though that person is legally qualified—to consider the case from beginning to end. The amendment would
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produce a system whereby, if it were felt necessary by the CSA staff, a legally qualified chairperson could take the place of the CSA departure officer, but that decision would not remove the applicant's right of appeal.
I believe that in the Standing Committee in the other place the Government made the point that there is no need for a second opinion and that an appeal on a point of law is sufficient. The Government argue that providing an appeal on the facts would prolong the procedure. Up to five people can consider a child support officer's decision: the original CSO, another CSO on review and three members of a tribunal. In the usual route for departure, four people will consider the case: the CSA departure officer and then the three tribunal members. However, in the case of a departure decision referred to the ITS, only one person could end up considering the case. The amendment would prevent that happening. It is even more important in the case of a discretionary decision that at least two people consider the facts.
The Government argue that there is no need for a right of appeal from the first decision taken on departure, in which case I ask the Minister why the Government propose a right of appeal on the facts against a CSA departure officer. Indeed, the cases which are referred to the ITS for an initial decision will, by definition, be the more complex cases and therefore it is even more important that a second opinion be allowed. I beg to move.
Lord Mackay of Ardbrecknish: As the noble Lord, Lord Carter, explained, the Secretary of State, rather than himself determining an application for a departure, may instead refer it directly to a child support appeal tribunal. The tribunal limy, on occasion, consist of a chairman sitting alone rather than the normal panel of three. I hope that my use of the words "may" and "normal" indicates that we expect that the panel of three will be normal but that there will be occasions on which the chairman might sit alone. The purpose of the amendment is to allow applicants whose case has been handled in that way—in other words going direct to the tribunal—a further right of appeal to a three-person tribunal if the first tribunal consisted of only the chairman.
I am sure that the Committee will be aware that the chairmen of child support appeal tribunals are both independent, being appointed by the Lord Chancellor, and legally qualified. They have considerable experience in child support and can be relied upon to come to fair and considered judgments. I should add that tribunal hearings are informal where all parties are assisted and, indeed, encouraged to put their case to ensure that they are being treated correctly according to the law. I therefore consider it unnecessary to build in a further step, prolonging the process by providing for another right of appeal. That would leave the absent parent in doubt as to his liability and the parent with care unsure of her income. An additional appeal stage would add to the cost of administering the scheme, in my view quite unnecessarily.
As the noble Lord said, the amendment is clearly directed at only those cases which are dealt with by a tribunal consisting of a chairman alone. I do not believe that the noble Lord is making an implication that the tribunal chairman on his own cannot be trusted to come to a fair decision and that a second opinion is needed.

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However, I have full confidence in the ability of tribunal chairmen, given that they are independent of the department or agency, are appointed by the Lord Chancellor and are legally trained and legally qualified. I believe that they can exercise their judgment in an impartial and unbiased way and I do not believe that such a decision requires further qualification.
The Committee will be aware that the system already provides a further route to challenge the decision of an appeal tribunal. There is a right of appeal on a point of law to the child support commissioners. Should a decision be grossly unreasonable or breach natural justice, it may be challenged through the courts by way of judicial review.
In my view, the system already has sufficient safeguards and to provide for a further appeal stage such as the amendment proposes is quite unnecessary. I hope that, having heard my explanation of how we envisage that the system will work and my assurance that the people who operate it are well qualified legally—they are independent and appointed by the Lord Chancellor—the noble Lord will be able to withdraw his amendment.
Lord Carter: I am grateful to the Minister. He uses words with care; he said that this "may" happen on occasion. One would hope to find a device for ensuring that that would be the case and that it did not become a habit. The Minister's example was helpful. As my noble friend Lord Gladwin pointed out, a one-person tribunal is a contradiction in terms of language. However, I shall read the Minister's explanation, I hope we shall not have to return to the matter on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Clause 2 [Preliminary consideration]:
Lord Carter Lord Carter moved Amendment No. 7:
Page 2, line 23. after ("may") insert ("refer it to a departure review panel, which shall be made up of not less than two legally qualified officers who will").
The noble Lord said: In moving Amendment No. 7, I wish also to speak to Amendments Nos. 9 and 10 which are consequential. This group of amendments is intended to ensure that the important area of departure which will introduce a substantial element of discretion into the work of the Child Support Agency is carried out by appropriately trained and qualified personnel.
The amendment was not discussed in the other place in terms, but there have been discussions in Committee in the other place which relate to it. The Government have given assurances that staff dealing with departures will be appropriately trained. On the second day in Standing Committee E in the other place, the Minister stated at col. 55:
"Staff employed on those duties will receive special training and the process of deciding applications for departures will be independent of the normal maintenance assessment process carried out by child support officers. Those staff will form a separate group".
The Government also suggest that the staff will be appointed from within the agency. Also in Standing Committee E, the Minister said:
"We decided that staff from the Child Support Agency should do the job, rather than staff from an outside body, because we believed that that would be the best way to deal with preliminary decisions".
Although we appreciate that staff have developed expertise in certain areas, the whole new area of departure introduces a great deal of discretion and, I think we all agree, will require high levels of skill if staff are properly to recognise and interpret complex information, documents and papers and then make a fair judgment as to the degree of departure which should be granted.
To refer again to the second sitting of the Committee in the other place, the Minister stated that the Government had thought about the procedure that was adopted in Australia, using an independent review officer. They quoted the opinion of the Australian select committee, which preferred the option of internal organisation to deal with departures rather than the use of an outside body. However, they did not mention that the Australian system employs qualified lawyers who have to have considerable tribunal experience or a background in family law for the job of deciding departure. In our view, the UK system needs a similar standard if the departure system is to work and be seen to be fair by all parties. We are saying that if the staffing is to come from within the agency, not from outside, then the departure review panel should, in the words of the amendment,
"be made up of not less than two legally qualified officers".
I beg to move.
6 p.m.
Earl Russell: This is a useful amendment. I am happy to support it. This is also as appropriate a moment as any other to ask a question about which I have wondered since the Bill was first published. Why have the Government chosen to use the word "departures"? It sounds dreadfully like British Rail. When we come to the term "departure direction" and one begins wondering about all the things that may go wrong, and when one begins talking about a "mistaken departure direction", one really is into the territory of "Beyond the Fringe". Could the Government use slightly less risible terminology?
Lord Mackay of Ardbrecknish: To answer the last point, the term "departure" is used because it refers to a departure from the formula. That is why the term was chosen.
The noble Lord, Lord Carter, explained that his intention was to introduce the concept of a departure review panel to consider applications rather than to have them considered by the Secretary of State or a child support appeal tribunal. The Committee will have recognised that the effect of these amendments to the new Section 28B, as introduced by Clause 2.of the Bill, is to require the preliminary consideration of an application to be carried out by a departure review panel. Following that, the Secretary of State, or occasionally a child support appeal tribunal, will determine those applications which have not lapsed or been withdrawn. This would be a rather curious arrangement, although perhaps it was not intended that way. I listened carefully to what the noble Lord said.
The purpose of the preliminary check is to avoid processing those applications which cannot succeed because they do not meet even the basic conditions for application; that is, either they do not fall within the cases in Part I of Schedule 4B, as introduced by Schedule 2 to

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the Bill, or any departure direction which might be given would not vary the current assessment by a significant amount. In other words, they may not fall to be considered as one of the departures in any case. Even if they do, they might not vary the current assessment by a significant amount. The preliminary check is therefore both a management tool to ensure that staff resources are not expended unnecessarily, and a means of managing people's expectations in that, where there can be no hope of an application succeeding, those concerned are not left too long in the dark, harbouring hopes or even fears as to the possible outcome of an application.
It is our intention that this will be a quick, straightforward check of application forms, involving no discretionary judgments, and will be carried out by officers at a lower grade than those who will determine the applications and give departure directions on behalf of the Secretary of State. To have this check carried out by a panel of no less than two legally qualified officers seemed to be rather over-egging the pudding. Clearly, however, it was not the noble Lord's intention that the review panel should deal with just the preliminary consideration of applications, and I shall therefore go on to address the question of a panel to deal with full consideration of departures.
This seems also to be unnecessary. There are numerous precedents, both within child support itself and elsewhere within the social security system, where discretionary decisions are taken by individual adjudicators. The Child Support Act already has areas of discretion which are exercised by individual child support officers or agency staff on behalf of the Secretary of State. There is no reason why the departures scheme should be any different. On the matter of whether those taking decisions need to be legally qualified, I would say to the Committee that it is common for staff in the agencies of the Department of Social Security to work successfully from quite complex legal provisions without themselves being legally qualified.
Furthermore, if the noble Lord is concerned about the standard of decision making that will result from individual officers exercising their discretion in accordance with the Act and regulations, I should like to reassure him that staff involved in this work will, as I mentioned earlier, receive special training and departure directions will be given by senior staff. Furthermore, of course, we shall be monitoring the scheme closely to ensure that decisions are fair and, so far as is possible within a discretionary scheme, consistent.
Finally, and very importantly, I remind the Committee that any decision of the Secretary of State in relation to a departure application carries the right of appeal to an independent appeal tribunal. The tribunal, as discussed, will always consist of a legally qualified chairman and, will normally have two members who may or may not be legally qualified.
The noble Lord cited the Australian review officer procedure as a precedent. In fact, that system is something of a halfway house between the Government's proposals and the system that would result from this amendment. The review officers in Australia are legally qualified people, employed by the Australian Child Support
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Agency. An individual review officer considers each case and reaches a decision, in the same way that we propose for our system. But the only avenue of appeal is to the courts. In other words, there is not the equivalent of a tribunal. Noble Lords may be interested to know that a joint select committee of the Australian Parliament has just published a comprehensive report on its scheme which is not entirely enthusiastic about how well the review officer system works. It describes it as having "an unnecessary legalistic structure" and criticises,
"the inflexibility of the procedures and the lack of an effective and simple internal review mechanism".
As a better approach, the committee suggests that initial decisions on departures be taken by staff within the agency, with an appeal to a new independent "child support claims tribunal"—exactly the approach that we suggest in the Bill.
We gave careful consideration to the best way to administer the departures scheme, and we concluded that the one set out, using the already experienced and knowledgeable staff in the Child Support Agency, is the best way forward—with, of course, the tribunals behind them to deal with any appeals to the decisions made by them. I believe that that is the best way to proceed. With that explanation of how we envisage that the system will work, and a small look at our friends on the other side of the world, I hope that the noble Lord will withdraw his amendment.
Lord Houghton of Sowerby: The original legislation was introduced by the Government in 1991 in an ethos of hostility towards a body of citizens who were prima facie in default. There was an assumption behind the Bill, and in the Act, that we were dealing with undesirable people who had forsaken their responsibilities to their own children and had escaped the duties that should have fallen upon them.
We talk about justice in this context. I am not sure that the Prime Minister intended any justice at all. I believe that she had in mind making this a penal Act. That was the spirit behind it. We have only to look at its terms and the pursuance of the statute in observing the conditions that can be imposed upon a person. We have spoken to an amendment in a group of amendments that propose to delete from the Act the rules about distraint. That was Amendment No. 35. I am in sympathy with that amendment. In the British system of recovering a debt, distraint is imposed on persons without some justification. There was a time when one could not find collectors of taxes to distrain. It was such an unpleasant thing to do. It seems unjust to go round a person's house and stick labels on items, acquiring ownership of the property in the house in the name of the state. That kind of action is disturbing.
I must say—I hope that noble Lords will forgive me—that in 1991 there was another Act which was full of hostility; namely, the Dangerous Dogs Act. In fact, 1991 was a year of legislative hostility and we are reaping the ill rewards of that at the present time. I see that some noble Lords wish to interrupt me but I have in fact finished.
Lord Carter: I shall try to bring my mind back to what we were talking about; namely, Amendments Nos. 7, 9 and 10. I am grateful to the Minister for pointing out not

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that the drafting was wrong but the way in which the amendment would work in the unlikely event that the Government accepted it. I believe that I accept his explanation but obviously I want to study it in Hansard and take advice. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Strabolgi): I have to inform the Committee that if Amendment No. 8 is agreed to, I cannot call Amendment No. 9.
[Amendments Nos. 8 to 10 not moved.]
Clause 2 agreed to.
Clause 3 [Imposition of a regular payments condition]:
Baroness Hollis Baroness Hollis moved Amendment No. 11:
Page 3, line 20, leave out ("may") and insert ("shall").
The noble Baroness said: I shall be extremely brief. The amendment provides for a regular payments condition in all cases—hence, we are seeking to change "may" to "shall". We believe that that would be reasonable because, under subsection (6), there is discretion to allow this application to continue, even if the condition is broken. We presume that the regular payment could be as low as the minimum payment of £2.35 a week.
The amendment was won in the other place. There the Government argued that a regular payment would usually be required from those who wanted to use the departure system, but a condition would not always be necessary as some parents would already be making payment. However, it seems to us that if an absent parent is already making payments, the level of those payments could itself be the regular payments condition.
We believe that this protection is important for the parent with care. It treats both parents similarly in the context of departures. I have pleasure in moving it.
Earl Russell: I am not particularly happy with this amendment. On the last amendment, when the Minister referred to "our friends on the other side of the House", I wondered for a moment whether he and the noble Baroness were committing "Butskellism". I was mistaken. It seems that the noble Baroness has now moved to the right of the Government. She is demanding an even more restrictive interpretation of the formula than the Government themselves.
I am sure that the Minister is about to point out that the Government have already said, in their memorandum to the Delegated Powers Scrutiny Committee, that they intend the gateway to the departure system to be very narrow. It sounds more than ever like British Rail.
I believe that the Government are mistaken in that; but as they are doing it, the noble Baroness's amendment is, in the first place, unnecessary. It is also unjustified.
The noble Baroness argued that it was perfectly all right because there was a discretion to allow the application to continue even if people were not making payments. But many of the people who are subject to this Bill are naturally law abiding people. It is all very well saying that they can break the law. Many of them do not like to be forced to think like that or to behave like that. They are ashamed when they are pushed into that position.
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Nor is there any point in having a departure direction unless it is possible for it to result in a zero assessment: for example, where there are very high travel-to-work costs; cases where, for example, it is essential for the person to own a car or he cannot go to work. I shall return to that point in a moment. There, the insistence on a regular payments condition may, in the end, mean that the person will have to give up work. Then all payments will necessarily cease; the taxpayer loses, the Government lose and the children lose.
There are a great many other situations where this amendment may do a great deal of harm: for example, where an 18 year-old is receiving a parental contribution to go to university. Without a departure direction, that payment cannot continue. So, if there is not a discretion to vary the regular payments condition—I have tabled an amendment to which I speak now allowing for an appeal where the regular payments direction is too high—there will be all kinds of harmful effects, just like those that result from the 1991 Act. The damage will be done before a departure direction is ever arrived at and the whole departure system will become nugatory.
Those who put down this amendment simply do not know what is going on out there. They have no idea of the kind of hardship that is being proposed. This is a stupid amendment. I hope that the Minister will reject it. If it goes to a Division, I and my noble friends will vote against it.
6.15 p.m.
Lord Mackay of Ardbrecknish: There is some temptation to see this matter through in order to see what kind of company I get. But I shall resist that temptation.
As the noble Baroness explained, the amendment is intended to ensure that, in order to qualify for a departure direction, an absent parent must he keeping up with his current maintenance payments or at least paying such reduced rate as agreed by the Secretary of State. By that, I mean that the absent parent should be paying either his current maintenance liability or—this may help to explain the matter to the noble Earl—a reduced rate enabling a safe rate (if I may so call it) to be set, which is the amount that the absent parent would be liable to pay if his departure application were to be successful. It seems to me that that is a perfectly fair way to go about the matter and—dare I say it'?—does not merit the attack made by the noble Earl on this particular part of the system.
I accept the intention behind the amendment. It is important that an absent parent should show some commitment to meeting his maintenance liability in order to qualify for a departure direction. However, I hope that I can persuade the noble Baroness that the amendment is not in fact needed. Where the absent parent is already paying his current maintenance, there is no need for the Secretary of State to require him formally to do so. If this amendment were accepted, it would involve the agency in a great deal of unnecessary work, imposing regular payments conditions where the absent parent was already meeting his liability. The power in the Bill was made permissive so that such conditions need be imposed only where compliance is a problem.

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With that assurance of the way in which we envisage the system working, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Hollis of Heigham: I thank the Minister for his thoughtful and well considered reply. As he said, I consider much of the noble Earl's comment was beside the point of the amendment. As I understand it, the amendment would—as indeed the noble Earl said—emphasise the continuity of payment. The figure that the absent father might pay would not necessarily be higher than he would have paid under the departure. So much, indeed the bulk, of the noble Earl's criticism was simply beside the point. He has misunderstood the amendment.
My second point is also in answer to the noble Earl, Lord Russell. He assumes that all the hardship falls on the absent parent. I agree that that can happen and that there can be situations of real hardship. But perhaps I may remind him—I am sure he is aware—that in no case under this Bill would the absent parent ever be worse off than the parent with care and that in no circumstances under the Bill will the absent parent ever retain less than 70 per cent. of his income. Would that the parent with care were as fortunate. The amendment sought to ensure that the parent with care, who will often be in a situation of fluctuating maintenance when we come to issues of family credit and so forth, would be protected with continuity of contribution while the appeal procedure is progressing. However, in the light of the Minister's comments, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees: Is it your Lordships' pleasure that the amendment be withdrawn?
Earl Russell: No.
The Deputy Chairman of Committees: Is it your Lordships' pleasure that the amendment be withdrawn?
Earl Russell: No.
The Deputy Chairman of Committees: In that case I shall put the Question. The Question is that Amendment No. 11 be agreed to. As many are of that opinion will say Content.
Noble Lords: Content.
The Deputy Chairman of Committees: To the contrary, Not Content. I think the Not Contents have it. The Not Contents have it.
On Question, amendment negatived.
[Amendments Nos. 12 and 13 not moved.]
Clause 3 agreed to.
Clause 4 [Determination of applications]:
[Amendments Nos. 14 and 15 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 16:
Page 4, line 15, at beginning insert ("in exceptional circumstances,").
The noble Baroness said: This is a brief amendment which would add the words "in exceptional circumstances". The usual route for deciding a departure application is an initial decision by the Secretary of State. Referring decisions direct to a tribunal does not give the
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parties a right of appeal on the facts if they are dissatisfied with the initial departure decision. We believe it is especially important, as we discussed in a previous amendment, that some of the refusals may be heard by a single person sitting as a tribunal.
The Government may well argue that the great majority of decisions should be taken by the CSA. In that case, we see no reason why they should not appear on the face of the Bill. Such an amendment would ensure greater consistency throughout the country. In other words, the amendment gives effect on the face of the Bill to the Government's intentions. I beg to move.
Lord Mackay of Ardbrecknish: As the noble Baroness, Lady Hollis of Heigham, explained, this amendment seeks to clarify that only in exceptional circumstances will the Secretary of State pass a case direct to a child support appeal tribunal for determination, rather than determine it himself, and then it can be subject to appeal. I note, however, that the amendment does not attempt to define "exceptional circumstances".
It may be helpful if I explain that it is our clear intention that the majority of cases will be dealt with, in the first instance, by the Secretary of State, with a subsequent right of appeal to an independent appeal tribunal. Only where a case raises novel or particularly complex issues, and will clearly benefit from an oral hearing or the input of a legally qualified chairman, will it be referred to a tribunal for determination.
We do not feel it necessary to include a description of those circumstances in primary legislation. Indeed, achieving an 4ppropriate definition would be difficult (as no doubt the noble Baroness discovered when devising the amendment) and could potentially exclude those we wished to include and vice versa. The Secretary of State's guidance, on the other hand, will allow some flexibility in this area, enabling adjustments to be made if we find too many or too few cases are being referred.
With that explanation and the assurance I have given that the normal route will be the route where the Secretary of State makes the decision—the person claiming the departure will then be able to appeal to the tribunal—I hope that the noble Baroness will be able to withdraw her amendment.
Earl Russell: Before the Minister sits down, does he think that the CSA has the resources, the people and the time to deal with all that extra work?
Lord Mackay of Ardbrecknish: I responded to that point in an earlier amendment when I said that the CSA will be forming a team of people whose' responsibility it will be to make those departure decisions. I mentioned that our intention would be that the sifting may be done by relatively junior staff but the actual decisions in the departures would be done by senior staff who were specially trained for the job. I am confident that those individuals will be in place.
Baroness Hollis of Heigham: I thank the Minister for his reply. Given that it is a point already made this afternoon, that the understanding of the words of the Bill will be understood within the context of the Minister's remarks, then to a degree the purpose of the amendment has been met by the Minister re-emphasising that it is only

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in exceptional circumstances that one would go beyond that procedure. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 17 and 18 not moved.]
Clause 4 agreed to.
6.30 p.m.
Clause 5 [Matters to be taken into account]:
Earl Russell Earl Russell moved Amendment No. 19:
Page 4, line 33, leave out from ("(2)") to end of line.
The noble Earl said: In moving Amendment No. 19, I should like to speak also to Amendment No. 20, which is the big one to which Amendment No. 19 is the introduction.
When the Bill was in another place and we announced that we intended to repeal the Act, we were naturally asked to specify our policy in detail. The procedure in another place does not make it easy for our party to do so; nor does it make it easy to do so when one is trying to insert a new policy into a very old bottle. These amendments are the beginning of an attempt to do the best we can. But we say that the crucial point is that when the Act comes to be repealed—sooner or later, whoever is in office, it will be repealed—it is vital that there should be an extensive process of consultation with all interested parties. When I say that, I mean consultation and not merely telling people what to do. That must take place, so any suggestions that we make now are provisional.
The Minister heard what the noble Lord, Lord Renton, said earlier this afternoon regarding general principles. I agreed with what the noble Lord, Lord Renton, said. As the Minister knows, we believe that the business should go back to courts which can consider individual circumstances, but they must do so subject to general principles because nobody wants everything to be all over the shop. We want a general body of ideas which can be brought to bear on the subject.
I have no objection to the two general principles which the Government state in Clause 5. My anxiety is that these are by no means adequate for guidance to courts or tribunals which are settling applications under the Bill. Therefore I want to add a series of them. The first one deals with step-children, about whom we have said a good deal and I do not think that we need say any more. Many people are responsible for children other than their own natural children. Where somebody is responsible for children he must attempt to treat them equally and the law must not impede him in doing so. That is our first general principle.
The second general principle is that no assessment should leave a parent unable to meet legal obligations from which it would be impossible or unreasonable to expect him to withdraw. That general principle is one to which I do not feel the Government have profound objection. But I am sure that they will object to it being stated in this place.
I appreciate the force of what Mr. Burt has always said about not letting people's obligations to their children slip down the scale of priorities. But one cannot carry that principle to the point of encouraging people to default on
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their legal obligations. That is an offence and those of us who have respect for the law should not encourage people to commit it. It is not right to have a series of assessments which force people not to pay their council tax, for example, or which force them not to pay their just and due debts or which may make them unable to pay their income tax on previous years' earnings. Those factors must be taken into account when determining what people are asked to pay.
The next general principle is that,
"no assessment shall leave a parent unable to afford to carry on his trade, profession or occupation, or force him to sell the tools of his trade".
That general principle is taken from Magna Carta. I believe that it is still the law of the land. It is a principle that was recognised by the Government in the 1991 Act although not in this context. It is simply not in the interests of any party to the whole sorry story—least of all in the interests of the children—to force the absent parent to give up his employment because he will then be unable to pay anything and we shall all lose.
The next general principle, with which the noble Baroness may agree, is that,
"no parent with care shall, as a result of receiving maintenance, be worse off than he would have been on benefit".
The wording is "he". I do not know why the provisions do not also include "she". We know that some parents can be worse off and we shall return to that in a later amendment on the maintenance disregard. I hope that we shall return to it on Report also with an amendment on passported benefits. We shall also return to it to cover those situations where maintenance is assessed but fails to arrive. There are a great many situations where the parent with care is worse off as a result of the legislation. That was not the intention and it should be a general principle covering the whole Bill that it should not be so.
The next general principle is that,
"no absent parent, shall, as a result of paying maintenance, be worse off than if he were on benefit".
The Minister may say that there are no such people, but when answering a Question from me on 27th April last year his noble friend Lord Goschen admitted that there were many absent parents who might perceive themselves to be worse off than if they were on benefit. That was a significant admission and the perception is widely shared. If the Minister thinks that under the departure formula he has dealt adequately with the issue of travel-to-work costs he is sadly mistaken. It would be the effect of this general principle, if accepted, that where the operation of the formula in any individual case—and the world is made up of individual cases—leaves someone worse off than if they were on benefit, that would be ground for a departure.
The next general principle states that,
"no assessment shall be made which is in conflict with the provisions of section 2 of this Act".
For the avoidance of doubt "this Act" means the 1991 Act and Section 2 is the section which provides that the welfare of the child shall be taken into account. Many noble Lords who are present spoke and voted for that amendment in 1991 when the noble and learned Lord on the Woolsack, after a great deal of hesitation, finally decided to agree to it. I am sure that none of us thought

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then that counsel for the Secretary of State would say that that was not a paramount or even particularly significant consideration. We were told that the purpose of the whole exercise was that children come first. If that principle is not observed, the legislation is totally failing to justify itself in the way that it should.
The final principle states that,
"the Secretary of State and the child support appeal tribunal shall take account of any information…which may appear to them to be material to the task of deciding whether an assessment is within these general principles".
It is not good enough for the Secretary of State to prescribe factors which shall not be taken into consideration. That is an unwarrantable restriction on the freedom of courts and tribunals. One cannot know what is material until the circumstances are before one. We must remember that we are dealing with real people; if we prick them, they bleed. We need to judge them on their individual circumstances. We cannot rule out half the things that make their lives work simply because it appears, mistakenly, to suit administrative convenience to do so. I beg to move.
Lord Mackay of Ardbrecknish: I start by dealing with Amendment No. 19. The effect of this amendment, proposed by the noble Earl, Lord Russell, would be to prevent any additions to the general principles set out in the new Section 28E of the 1991 Act, inserted by Clause 5, when determining an application for a departure direction. As the Bill states, these are that,

"(a) parents should be responsible for maintaining their children whenever they can afford to do so;

(b) where a parent has more than one child, his obligation to maintain any of them should be no less of an obligation than his obligation to maintain any other of them".

Those general principles have been laid down to ensure that the system of departures does not undermine the basic intentions of the child support system. It is proposed to use the delegated power included in new Section 28E(1) only if it becomes necessary to set out further specified considerations to ensure that discretion is exercised consistently and fairly.
The noble Earl has proposed in Amendment No. 20 various additional principles to be included in the new section. He dealt with them in turn and I shall do likewise.
I turn first to the proposal that step-children, foster children and adoptive children whose natural parents are dead or otherwise unable to maintain them should be treated in the same manner as a parent's own children. I should begin by clarifying that adoptive children are already treated, for the purposes of assessing child maintenance, as if they are the parent's natural children. By adopting a child, a parent assumes full legal and financial responsibility for that child—a responsibility, I should emphasise, that continues even if, as a result of a relationship breakdown, the adoptive parent no longer lives with that child. I therefore agree that adopted children should be treated in the same manner as natural children, and that is what happens.
However, the matter is not so clear cut when considering step-children. Normally, the primary responsibility for maintaining step-children should rest with their own natural parent, and not with their
64
step-father. We recognise that there are cases where it is not possible for their own parent to maintain them, the obvious example being where that parent has died. That is why the costs of step-children are among the special expenses listed in Schedule 2 to the Bill. We believe that specifying such circumstances as a ground for departure is the best way of dealing with this issue rather than making it a general principle to be considered in every departure application when it may well have no bearing at all on a particular application.
Foster children are treated as being in the care of the local authority and are not subject to child maintenance assessments. In addition, foster parents receive an appropriate allowance from the local authority. It would be wrong to, in effect, boost that allowance through the child maintenance system at the expense of a parent's own natural children.
The second part of the amendment proposes that no departure direction should have such an effect on an assessment that a parent is left unable to meet legal obligations from which it would be impossible or unreasonable to expect him to withdraw. The effect would be to require any and all legally enforceable commitments to have priority over child maintenance, including those which Members of the Committee may consider it most undesirable to support such as debts from gambling or from the purchase of luxury items such as an expensive motor car or even an expensive holiday. That would enable absent parents who have an existing liability to reduce that liability by deliberately taking on additional commitments.
Earl Russell: What makes the Minister think that he has authority to take and enforce that sort of moral judgment on all the rest of us?
Lord Mackay of Ardbrecknish: I do not know where the moral judgment comes in, but it is a judgment that the absent parent has a responsibility to maintain the children of his former marriage if he has the cash to do so. I believe that that is an absolutely sensible principle and the great majority of the people of this country agree with that. The noble Earl has already told me very pointedly that he also agrees with it, but there is a difference. I wish to will the means to get to that end and the means is that of the Child Support Agency. It is all very well saying that one agrees with the general principle, but one has to make sure that it can be carried out. That is why we believe that we have the right to have a say in these matters. We have no right, of course, if the people involved are not looking to the public purse and the taxpayer for any help, but we have the right when they are so looking.
We have recognised that in exceptional cases parents may have legal commitments which should be taken into account when assessing child maintenance, and that is why we are proposing that such debts can be grounds for a departure application. Introducing a specific ground for a departure application is the best way of dealing with such commitments, rather than introducing a general principle which would mean that virtually all debts would need to be taken into account no matter how unworthy they may be.
It might be appropriate now to say that when listening to the noble Earl I wondered about the case of parents who continue to live together.
Lord Simon of Glaisdale: I am grateful to the noble Lord for allowing me to intervene. He is always very courteous in giving way. He seems to be equating "taken into account" with "give priority to". The noble Lord did so a moment ago. The words are "taken into account". It is not stated that they rank in priority to the obligation as regards the relevant children.
Lord Mackay of Ardbrecknish: I do not want to start splitting hairs with the noble and learned Lord, but if one lists a series of sub-paragraphs, if one may call them that, which is what the noble Earl is inviting us to do, one makes them all equal. Therefore, we get to the stage where, if we force people to take total account of them, we are not making any judgment as to which one should have priority.
I was just about to advance my argument on the question of priority. Let us consider parents who continue to live together, do not get divorced, are happily married, busy looking after their children with one or other of them out working, who have to deal with all their legal obligations and look after their children. To be honest, I do not believe that we are asking the absent parent to do anything different from the man next door who has happily continued in his marriage and his responsibilities in looking after his children day by day. We have to be very careful that we are not making people who become absent parents somehow totally different and that we must not expect them to have the same obligations as the man next door who carries these obligations day by day to his wife and children.
The third and fifth parts of the noble Earl's amendment seek to ensure that absent parents retain an incentive to work and are not worse off than they would be on benefit. I can assure him that the Government are equally keen to maintain work incentives and have already introduced two specific measures to help ensure that. First, we made significant increases in the protected income margins as part of the February 1994 changes. As a result an absent parent will always retain at least £30 more income than he would if he were unemployed and receiving income support. Secondly, we introduced in April this year a broad-brush formula allowance towards travel-to-work costs for parents who have to travel long distances. We shall be coming to them later when we deal with departures.
I reiterate that we believe that the proper way to address issues such as travel-to-work costs is by specifying specific grounds and not by making it a general principle to be considered in all departure cases.
The noble Earl's amendment also seeks to introduce a similar guarantee for parents with care; that they will not be worse off as a result of a departure direction than they would be on benefit. I assume he is referring to the loss of automatic entitlement to passported benefits when a person's income extinguishes entitlement to income support.
The Government have made their position clear on many occasions. One of the basic principles of the Act is that the burden on the taxpayer should be reduced where parents can afford to support their own children. It has always been the case that some parents with care will be floated off income support as a result of increased
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maintenance payments. Parents with care were floated off income support in the past by maintenance arranged under the old court system or by the DSS liable relative sections, which some Members of the Committee will look back on with nostalgia, or indeed by other forms of income they acquired.
Such parents will no longer automatically qualify for the additional benefits, but they will still be eligible to apply for a range of income-related benefits such as housing benefit, council tax benefit and family credit, as well as help with NHS charges on income grounds. In this respect, the receipt of maintenance is treated no differently than the receipt of another income from any source, which can extinguish entitlement to income support.
Baroness Hollis of Heigham: This is one element of the amendment where we are at one with the noble Earl, Lord Russell. It is deeply unreasonable that a parent with care should be left the poorer as a result of receiving maintenance pound for pound in lieu of benefit and thus losing the passported benefits that go with income support. It is in that context, as the noble Earl rightly said, that we may be discussing this later in terms of maintenance disregard.
Does the Minister agree when he makes the analogy with other circumstances, and that a parent with care might have other income, that that other income would normally be income taken from work? In that situation the parent with care would have disregard or, alternatively, would have the choice of not being in work but preferring to remain on benefit if that meant that the child that she was caring for was financially better off.
The problem here is that the parent with care has no opportunity to make that choice as to which circumstances best suit the conditions that she and her children are in. It is a compulsory substitution of maintenance for benefit and therefore a compulsory projection of that parent with care into poverty greater than she would otherwise experience. In all fairness, that is a distinction of which the Minister should remind the Committee.
Lord Mackay of Ardbrecknish: I do not agree with the noble Baroness that people who are floated off benefit in the kind of circumstances we are talking about are necessarily pushed into poverty.
Baroness Hollis of Heigham: They can he.
Lord Mackay of Ardbrecknish: It is a long-standing rule in all benefits systems that as income increases from whatever source, people float off. It would be illogical to run a benefits system in which they do not float off. I consider this provision to be wholly unnecessary in the context of the departure scheme because it is that scheme which we are looking at. I am now talking about the parent with care. I believe that she is likely to apply only if she wishes to receive an increased level of maintenance. Therefore, it seems illogical to then give the Secretary of State power to deny her that increase because of what he considers to be in her best interests. I would have thought that that choice should be left to the parent with care.

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The amendment before us also suggests that consideration of the welfare of children should be a guiding principle when processing departure applications. I agree fully with the intention of this section, but hope that I can explain to the noble Earl that it is unnecessary. Section 2 of the 1991 Act requires the Secretary of State to have regard to the welfare of the child when considering any discretionary power conferred by the Act. That clearly applies to his consideration of any departure application. In addition, in the context of departures, new Section 28F(2) (c) already specifically provides that the Secretary of State shall have regard to the welfare of any child affected by the direction. Therefore the noble Earl's proposed amendment is unnecessary.
Finally, the amendment specifies that the Secretary of State, in determining a departure direction, shall have regard to any information he may have which appears to him to be relevant, in applying the general principles in the new Section 28B(2). Again, I seek to assure the noble Earl that the amendment is not necessary. It is implicit, and a rule of common sense, that the Secretary of State will take account of all relevant information when considering a departure. It is not necessary to specify that in general principles.
I apologise for the length of my response on this amendment, but the noble Earl, as usual, has raised some important issues. There is one I may not have mentioned. It is when the absent parents perceive themselves to be worse off than on benefit. I am not sure whether it is the absent parent or parent with care. At any rate, it is the perception of being worse off on benefit.
It is clear from correspondence and other discussions that we have had that many absent parents think that they should be left with more than income support amounts of income after paying all their costs of feeding and clothing themselves, heating their homes, and so on. In other words, they perceive income support levels as pocket money; but income support has to meet the cost of those basic needs (clothing, heating, and so on) for those people for whom it is the benefit.
I hope that I have managed to reassure the noble Earl that at least some of the points that he has raised are already covered in the Bill. There are other points upon which, I am afraid, we profoundly and fundamentally disagree, as I suspect I am increasingly finding myself doing as the Committee stage develops. Some of those matters were raised in the other place, but his honourable friend Miss Lynne did not move many amendments of this type in Committee in the other place, and we are now perhaps seeing—courtesy of the noble Earl—a wider exposition of his party's position.
I have to say that we disagree fundamentally over the whole question of whether the agency is required to make sure that absent parents face up to their responsibilities to their children. I hope that on those parts on which the noble Earl and I are at one he is content, and on the parts where we disagree, I hope that he will withdraw the amendment.
Lord Simon of Glaisdale: The Minister has no need to apologise for the length of his reply, because, as he said, the amendment raises an important point. The first point relates to the words:
"the Secretary of State shall have regard both to the general principles",
and those, as the noble Lord said, are the fundamental principles behind the Bill.
The clause goes on to say that the Secretary of State shall have regard not only to both those important principles stated in the legislation, sanctioned by Parliament, scrutinised by both Houses, but also:
"to such other considerations as may be prescribed".
That means prescribed by the Secretary of State. Of those, we know nothing. Parliament will not know what it is doing in sanctioning those words.
Constitutional history goes back a very long way. It goes back to the Statute of Proclamation of Henry VIII. He claimed to change the law by proclamation: what he prescribed was the law. I think, with all temerity in the presence of the noble Earl who is the leading historian of the period, that matter of government by decree, by what is prescribed by the Executive, was contested, and a bitter and costly civil war was fought on it.
The matter was resolved finally in an episode we call the Glorious Revolution—the Glorious Revolution because it vindicated the principle that the laws of the land were made by Parliament, and were not just what the Executive prescribed.
That principle was recognised and adhered to throughout the two succeeding centuries. Towards the end of the last century, there began to be encroachments upon it. That was because at that time collectivism became a popular political philosophy. However, that encroachment was contested; and it has only been recently that we have had the fresh attempt to encroach on parliamentary power to legislate by the Executive with its pretension to legislate as it prescribes.
I have been critical of the Bill, as I was of the 1991 Bill, as an Executive encroachment on Parliament and on the judicature. The essence of the 1991 Act was a wholesale arrogation by the Executive of the jurisdiction by lay magistrates. Lay magistrates go back to the middle of the 13th century. They have been a bulwark of our local judicature ever since, but at one sweep their jurisdiction was taken away and put into the hands of an executive agency.
I should say, in case it might be misunderstood, that I am one of the first to agree that we are singularly fortunate in this country in our Civil Service. We rightly pride ourselves on the fact of its probity and on its loyalty—your Pontings and your Pottingers are very rare creatures indeed—but it is an elite. We need that elite because it is a repository of power, and all power tends to corrupt. The first sign of the corruption is an itch for greater power. That we have seen in this legislation and much of the other social legislation.
We can be certain that if we pass, without protest, the words:
"such other considerations as may be prescribed",

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that will be paraded triumphantly as a precedent for the next Bill of this type. Last century, the great poet wrote:
"From precedent to precedent where freedom broadens down".
In this legislation, we see bureaucracy broadening down from precedent to precedent.
Whatever else comes out of this, I trust that the Committee will accept Amendment No. 19. As for Amendment No. 20, together with the general principles stated in the Bill, those are of course matters that the magistrates all took into account. The noble Earl does not ask that their consideration should have priority. I cannot think how the Minister ever got that into his head. What the clause says is that the Secretary of State "shall have regard to". He shall take into account any representations made to him.
Of course, just as any court takes into account any representation made to it without the statute book being littered with verbiage of that kind, so, presumably, the Secretary of State under the proposal of the noble Earl will take into account the various matters that he raises. He will not give them, as the Minister appears to think, priority to the exclusion of a duty to the children but will merely give consideration to them, as he certainly should.
7 p.m.
Lord Renton: I hope that Members of the Committee, and in particular the noble Earl, Lord Russell, will forgive me for not having been present for the first part of the discussion. I wish that I had been. In view of my earlier comments about our current methods of legislating, perhaps I may make the following remarks.
I said previously how important it is that we should state the intention of Parliament in general principles for the guidance of those who must enforce the law or obey it. I welcome the method used in subsection (2) and, indeed, apart from line 33 on page 4 of the Bill, that in subsection (1). The noble Earl has properly suggested that that line should be left out.
I also welcome Amendment No. 20 because the noble Earl is enlarging general principles—he is not simply going into hypothetical circumstances—which is a sound way to legislate. He is enlarging the general principles—
Lord Simon of Glaisdale: Hear, hear!
Lord Renton: I am pleased that the noble and learned Lord, Lord Simon of Glaisdale, agrees with that point. The noble Earl was wise to move the amendment and I shall be interested to hear what my noble friend on the Front Bench has to say, if anything.
Earl Russell: I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, and to the noble Lord, Lord Renton, for their support. Of course, they are both right and the Committee should have expected that; we are used to it.
Like the noble and learned Lord, Lord Simon, I am becoming allergic to the phrase "in such manner as may be prescribed". It makes the Secretary of State sound so like a doctor, but he is not, after all, medically qualified.
What we have at stake is the difference between law by consent and law by command. For that reason the question of giving consent to regulation is so vital. I am
70
grateful in particular to the noble Lord, Lord Renton, for 1 his approval of my draftsmanship. I am an amateur in these matters and I am well aware of that. I am extremely grateful for the noble Lord's approval.
I am also grateful to the Minister for the care, thoroughness and courtesy that he has devoted to answering the amendments. However, as he agrees, there is a great gulf between us. The Minister did not believe that he had succeeded in crossing it, and he has not. He said that the Government intended to handle these matters consistently and fairly. I am sure that they do, according to their lights. But the trouble is that those words do not mean the same to the Government as they mean to me. To the Government they mean laying down a very detailed set of general rules which applies in all cases. To me they mean judging cases on their merits. Between those two a great gulf is fixed and the Minister has shown no sign of seeing his way across it.
As regards my first general principle, I understand that the intention of the 1991 Act was that, strictly, step-children should always be the responsibility of their natural parents. But that risks infringing the Government's other general principle which is in the Bill; that all the children in one household should be treated equally. Inevitably, if one sticks absolutely literally to that formula they would perhaps be maintained on a different standard.
I also realise that I should have drafted my first general principle more widely. I should have included other children—for example, orphaned relatives—for whom one takes financial responsibility. I have not done so and I apologise for that. It simply illustrates the principle of the noble Lord, Lord Renton, that a draftsman cannot foresee everything. I have proved that at my own expense.
As regards the second principle relating to legally enforceable debts, I believe that the Minister misunderstood what was happening. He invoked gambling debts but, of course, they are not legally enforceable. That is why they are proverbially debts of honour; it is the only thing that forces one to pay them. The Minister wanted people subject to the Bill to be treated in the same way as other ordinary families. I come a lot nearer to achieving that than he does. I cannot get out of my debts by pleading that I must maintain my children—it would be very nice if I could—but these people are forced to get out of a lot of debts on that principle. In fact, they are forced to default on them, and defaults are always to the injury of third parties.
I believe that the kind of priority that the Government give to child maintenance has in the end brought it into contempt for the law. Where people have legal obligations and they contradict each other, an attempt to strike a balance must be made. You cannot say that one takes priority over all the rest.
As regards the third and fifth general principles, the Minister believes that the Government have taken steps. I do not believe that those steps are adequate. One of us is wrong. If I am wrong the provision that I seek to put on the statute book will do no harm. It will lie there

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inert; that is the worst that it can do. But if the Minister is wrong the proviso might do a great deal to avoid real injustice.
When the Minister invokes the principle of protected income—that every absent parent is allowed more than £30 income support—he has not taken on board the fact that it is not the purpose of income support to provide for work expenses. Everyone knows that work expenses make life a great deal more expensive. If the Minister really believes that he has dealt with all the injustices—that he has provided for all the cases in which the absent parent is worse off going to work than he would be on benefit—he is very much mistaken. I shall not deal again with the number of cases because I shall be repeating myself.
The noble Baroness, Lady Hollis, too was mistaken in believing that the absent parent must always be better off than the parent with care. Perhaps I may take an elementary example: that the parent with care might have married a millionaire. If one is trying to keep up the commuting expenses of a season ticket and is receiving only a small part of that back by going to work, one is a great deal worse off than if one is in receipt of benefit. On the other hand, the parent with care may be within a pound or two of the income support level. It is essential that we understand that injustice may be done to either sex and we should be equally interested no matter which sex is the victim.
I have a great deal of briefing material about cases in which Section 2 has been invoked. I shall not go into them because many are sub judice. However, I assure the Minister that subsection (2) is not having anything like the effect that he wishes. Since I wish it too, I can see only one way to go forward, which is to ask the opinion of the Committee.
7.10 p.m.
On Question, Whether the said amendment (No. 19) shall be agreed to?
Their Lordships divided Contents, 25; Not-Contents, 72.

Division No. 1

CONTENTS

Airedale, L.

Kinloss, Ly.

Barnett, L.

Lawrence, L.

Dacre of Glanton, L.

Mar, C.

David, B.

Meston, L.

Dean of Beswick, L.

Monkswell, L.

Faithfull, B.

Nicol, B.

Falkland, V.

Palmer, L.

Russell, E. [Teller.]

Geraint, L.

Seear, B. [Teller.]

Harris of Greenwich, L.

Sefton of Garston, L.

Houghton of Sowerby, L.

Simon of Glaisdale, L.

Jeger, B.

Winchilsea and Nottingham, E

Kilbracken, L.

Young of Dartington, L.

NOT-CONTENTS

Addison, V.

Astor, V.

Aldington, L.

Astor of Hever, L.

Annaly, L.

Balfour, E.

Ashbourne, L.

Belhaven and Stenton, L.

72

Blatch, B.

Lucas, L.

Boyd-Carpenter, L.

Lucas of Chilworth, L.

Brabazon of Tara, L.

Lyell, L.

Braine of Wheatley, L.

McColl of Dulwich, L.

Brentford, V.

McConnell, L.

Cadman, L.

Mackay of Ardbrecknish, L.

Carnock, L.

Mersey, V.

Chesham, L.

Miller of Hendon, B.

Colwyn, L.

Morton, E.

Denham, L.

Napier and Ettrick, L.

Dixon-Smith, L.

Northesk, E.

Downshire, M.

O'Cathain, B.

Dundonald, E.

Pearson of Rannoch, L.

Elles, B.

Pender, L.

Elton, L.

Prior, L.

Ferrers, E.

Rankeillour, L.

Flather, B.

Rennell, L.

Fraser of Carmyllie, L.

Rodger of Earlsferry, L.

Glenarthur, L.

Seccombe, B.

Goschen, V.

Sharpies, B.

Gridley, L.

Shaw of Northstead, L.

Harmar-Nicholls, L.

Shrewsbury, E.

Henley, L.

Skelmersdale, L.

Hertford, M.

Strange, B.

Holderness, L.

Strathclyde, L. [Teller.]

HolmPatrick, L.

Swansea, L.

Howe, E.

Thomas of Gwydir, L.

Inglewood, L. [Teller]

Trefgarne, L.

Jellicoe, E.

Trumpington, B.

Lauderdale, E.

Vivian. L.

Leigh, L.

Wade of Chorlton, L.

Long, V.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.18 p.m.
[Amendment No. 20 not moved.]
Clause 5 agreed to.
Lord Lucas: I beg to move that the House do now resume. In moving the Motion, may I suggest that the Committee stage begin again not before 8.20 p.m.
Moved, That the House do now resume.—(Lord Lucas.)
Lord Simon of Glaisdale: Perhaps I may ask the noble Lord how far it is proposed we progress this evening. I ask that because some of us have late amendments. I venture to remind the noble Lord that earlier in the Session we were assured that in future we should not be sitting very late into the evening; that one of the reasons why the 1991 Act went so wrong was because we sat habitually late into the evening so that there could be no realistic Divisions; and that today we had a long Statement which lasted three-quarters of an hour introduced under the rather euphemistic rubric, "at a convenient moment after 3.30".
Lord Lucas: I believe that this is properly a matter for the usual channels, and I shall make sure that they communicate effectively with the noble and learned Lord.
On Question, Motion agreed to.
House resumed.

Parliamentary Constituencies (England) Order 1995
7.20 p.m.
The Minister of State, Home Office (Baroness Blatch): rose to move, That the draft order laid before the House on 6th June be approved [22nd Report from the Joint Committee].
The noble Baroness said: My Lords, this order is intended to give effect without modification to the final recommendations for the new parliamentary constituencies contained in the fourth periodic report of the Boundary Commission for England. Article 2 of the order substitutes the 529 constituencies described in the schedule for the present 524 constituencies in England. The draft order has already been approved in another place and, if it is approved by this House tonight, the Home Secretary will submit it to Her Majesty in Council to be made. The order will come into operation on the 14th day after the day on which it is made, but will not affect the existing boundaries until the first general election held thereafter.
The Boundary Commission for England is one of four parliamentary boundary commissions constituted under the first schedule to the Parliamentary Constituencies Act 1986. Under the 1986 Act they are required to carry out a general review of parliamentary constituency boundaries not less than 10 years and not more than 15 years from the date of the submission of their last report. The Boundary Commissions Act 1992 amended that provision to require that general reviews should be carried out not less that eight and not more than 12 years after the submission of the previous report. It further required that the first mandatory report after the passage of the Act should be submitted to the relevant Secretary of State before 31st December 1994.
As your Lordships will be aware, the report of the Scottish Boundary Commission and report of the Welsh Boundary Commission were both debated in March and the orders have been approved by Her Majesty in Council. I understand that the Boundary Commission for Northern Ireland hopes to submit its report to my right honourable friend the Secretary of State for Northern Ireland this month.
This is the first periodic review by the English Boundary Commission since the 1992 Act came into force. It was submitted to my right honourable friend, the Home Secretary, on 12th April. Although the report was submitted late, the 1992 Act specifically provides that a failure by any boundary commission to submit a report within the time limit of 31st December 1994 does not invalidate that report for the purposes of any enactment.
The processes by which a boundary commission carries out its task are governed by a series of rules for the redistribution of seats. The rules are to be found in Schedule 2 to the 1986 Act and, therefore, have been expressly approved by Parliament.
The rules allow the commission a good deal of discretion in meeting what is recognised to be a difficult and challenging task. The commission must have regard to a wide range of local and other concerns in considering its proposals and the rules provide the framework within
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which the commission should have to take account of issues such as local community ties, geographical and administrative boundaries, and equality of electorates.
The procedures which are to be followed by a commission are also governed by the legislation. The commission must publish its provisional recommendations in at least one newspaper circulating in the affected constituencies. If the commission receives any representations objecting to the proposed recommendations from an interested authority or body of at least 100 electors, it is required to hold a local public inquiry. Following any such inquiry the commission must publish revised recommendations and may, if it so determines, hold one or more further inquiries. It is, however, not obliged to hold any such further inquiries.
Inevitably, in any area considered by the commission there is a range of opinions as to the best way in which to determine a constituency's boundaries and often several fully developed options, any of which would provide a solution with varying degrees of effectiveness. In many cases, the final recommendation may be very finely balanced and often the commission must find a compromise between closely argued local views.
That is a difficult and painstaking task. During the course of the review of the English constituencies, the Boundary Commission undertook public inquiries in almost all of the London boroughs, and in the majority of the metropolitan districts and non-metropolitan districts. Second inquiries were carried in two counties, Hampshire and Devon, when proposals not previously considered at an inquiry were introduced in representations after the close of the first public inquiry.
All periodic reports of general reviews are considered at the time to be controversial and to have effected wide reaching change. The report attracted a considerable amount of discussion and debate while the review was underway, when it was the focus of an astonishing fivefold increase in the number of representations received.
There are good reasons why there has been so much interest recorded by those involved in the process. The Boundary Commission has on this occasion taken a much higher profile in publicising its activity and has deliberately set out to ensure that its decision-making processes were as transparent as could be achieved. That has undoubtedly accounted for much of the additional interest shown.
It is, however, the case that the report now produced proposes changes to the boundaries of more than 350 English parliamentary seats. That figure.represents more than 70 per cent, of English constituencies. In many cases, the changes are relatively minor, but in many other cases there are substantial changes not just to a constituency but within the whole of a borough or county.
However, before I turn to the detail of the report, I should clarify for your Lordships a particular problem which the review has shared with its immediate predecessors. The Boundary Commission's revue has coincided with that of other review bodies looking at local government reorganisation. The boundary commissions are required by the 1992 Act to report within the specified deadline and it was not, therefore, an option for them to delay or defer their work until that local government

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reorganisation had been completed. The effect of the 1992 Act was that the English Boundary Commission had to take account of only those local authority boundaries which were in force on 1st June 1994.
The commission has advised that subsequent changes, particularly in the non-Metropolitan counties, could affect the constituency boundaries which are not proposed. The commission may, therefore, decide to hold interim reviews in parts of England to consider further realignments of constituency boundaries where the effects of local government reorganisation make that necessary. That is entirely a matter for the commission to decide, but I understand that it is unlikely that any interim review would be completed before the next general election.
In turning to the recommendations themselves, I propose to confine my comments to a small number of issues which I believe amply demonstrate the concerns with which the Boundary Commission has striven in reaching its conclusions.
The single most significant recommendation is that there should be an increase in the number of constituencies in England from the present 524 to 529. The commission's proposal for an increase in the overall number of seats in England is one which I know was not arrived at without very careful consideration of other options. There would have been an increase of 20 seats rather than the five now proposed if the commission had not been able to balance some increases by reductions in the number of seats elsewhere.
The major reduction in the number of constituencies has been in the London boroughs. For the first time, the commission has taken the view that in London it is necessary to cross borough boundaries in order that it may meet the requirements of Rule 5, which require it to recommend constituencies which are as near to the electoral quota as is practicable. That decision was not taken lightly: it required the commission to depart from Rule 4, which requires that the boundaries of the London boroughs should not be broken. The decision is one which the commission may make within the rules. However, before so doing, the commission set itself a number of criteria to be applied under any consideration of cross-boundary constituencies.
The criteria required the commission to consider crossing of boundaries only where the result would not be to increase the number of seats which would otherwise have been allocated to the individual boroughs; and where the result provided a better match with the electoral quota than would otherwise have been achieved. No boroughs on opposite sides of the River Thames below Kingston upon Thames were paired.
The practice has attracted a considerable amount of discussion among the London electorate and with local political parties. The effect has been that the commission is now proposing three fewer seats in Greater London than would have been the case otherwise. As a result, the commission is now proposing that the London boroughs should return 74 Members to Parliament, which compares with the current level of 84 seats and with the position in 1983 prior to the third periodic review when the capital was represented by 92 MPs.
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The commission has also made it clear that in metropolitan areas outside of London it has been prepared to make much greater use than previously of the authority to recommend constituencies which cross metropolitan district boundaries. The rules require so far as is practicable that constituencies in metropolitan boroughs should be contained within county boundaries, but they do not restrict the commission from crossing borough boundaries. The commission's recommendations on this occasion call for borough boundaries to be crossed on 13 occasions, compared with six in 1983. The commission has found it right to propose a reduction of five in the number of metropolitan county constituencies against the present number.
By comparison, the review has resulted in proposals for an overall increase in the number of constituencies in non-metropolitan counties. The counties will, if the recommendations are accepted by Parliament and approved by Her Majesty in Council, return 20 more representatives to the other place from the next general election.
The recommendations on three areas outside London have given rise to particular debate. In West Sussex, the commission was faced with two strongly argued but opposing options on how to deal with the distribution of seats representing towns along the coast and their immediate hinterland. The commission held a public inquiry and considered representations made to it. The public inquiry was conducted by an independent assistant commissioner selected from a panel appointed by the Home Secretary. The commission expressed some sympathy with the proposal that the area should be represented by constituencies which linked the coastal towns with their immediate adjoining hinterland, but concluded that the better solution would be to create constituencies which linked the coastal towns together.
In Manchester and Trafford, the public inquiry revealed strong local feeling that the Wythenshawe community should not be divided as the commission had originally proposed. The commission considered a number of alternative options which had been suggested to it, and concluded that the original proposals should be modified. The effect of that response to local opinion was that it was no longer possible to bring together in a single constituency the community of Sale, which had been split between constituencies by the third periodic review. The commission's decision to reflect the strength of local views as expressed to it resulted in a further very strongly mounted campaign of petitions and representations, the "Save our Sale" campaign, seeking a reversion to the original proposals.
In the final example, the commission's proposals for the boundaries of constituencies in Lancashire proved the cause of considerable debate locally. The Rossendale community has a clear sense of local identity. The Boundary Commission's initial proposals called for the town of Haslingden to be separated from the Rossendale and Darwen constituency, breaking that community. The commission received a great many representations arguing for the retention of local ties, and in February this year I received an all party delegation on the matter headed by Sir David Trippier, the former Member for the constituency. Rossendale would have provided a coherent

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and reasonably sized constituency. The commission held to its original proposals on the grounds that it would not have been possible to construct sensible constituencies in the remainder of Lancashire.
Many other points could be made about the recommendations for individual constituencies and I have no doubt that some of your Lordships will have a number of issues which you will wish to raise in the course of the debate. Before I sit down to allow that debate to start it is right that I should touch on the question of the powers held by my right honourable friend the Home Secretary to modify Boundary Commission recommendations.
Parliament has thought it right to give the Secretary of State an unfettered power to modify a Boundary Commission recommendation. In the debate in another place the Home Secretary made it clear that he recognises the enormous benefits which the constitutional process achieves from the impartiality which the Boundary Commission is seen to bring to the difficult and sensitive work in which it is engaged. The Home Secretary has not thought it appropriate to modify the recommendations of the Boundary Commission for England presented in this fourth periodic review. But I have no hesitation in commending the commission's final recommendations to your Lordships. I beg to move.
Moved, that the draft order laid before the House on 6th June be approved [22nd Report from the Joint Committee].—(Baroness Blatch.)
Lord Mclntosh of Haringey: My Lords, the House will be grateful to the Minister for the detail in which she described the recommendations of the Boundary Commission, and indeed the final decision of the Secretary of State. Let me say immediately that it would be, in my view, a gross impertinence for this House to intervene by way of a vote in the composition of another place. I do not know what the constitutional division of powers is but it is not a matter where I think we should do anything other than express general views about the issues which, constitutionally, have to come before us. In introducing my few remarks I pay tribute to the work of the commission and to its stalwart concern throughout for the many representations which were made to it. The Minister referred to a five-fold increase. I understand that there were no fewer than 40,000 representations made to the commission. That must have been a considerable task which I believe the commission carried out with its usual independence.
It is important to compare our country with a number of other countries, notably the United States, where Mr. Gerry Mander has many successors and where there are deliberate and quite conscious attempts to change boundaries in order to achieve certain social and ethnic effects. One can contrast that with our system where the commission is independent of government and independent also, of course, of opposition. That contrast is marked and is, I believe, very much in our favour. However, I am not sure what it is that we are supposed to do other than give a sort of good housekeeping seal of approval to the commission. I shall not do anything other than make a couple of quite general remarks which might be thought to be applicable to our responsibilities too.
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The first is on the size of the House of Commons. The effect of the commission's recommendations and of the recommendations of the commissions for Wales and Scotland—I understand that we expect the Northern Ireland commission report within a short period—is to increase the House of Commons to 659 Members. I think that that is too many. The House of Lords is obviously far too large and has far too many Members. A rational distribution of responsibilities and a rational size of constituency would lead, I believe—a number of my honourable friends have said so—to a House of Commons of around 450 Members. I believe that the country would be grateful if the next time instructions are given to the commission they are given with the deliberate intention of reducing the size of the House of Commons to a body which balances the responsibilities of Members of Parliament to their constituents with the practical problems of running a legislative chamber which is at the moment too large.
At the moment Members of the House of Commons have far too limited an opportunity to intervene in the business of the House or even to intervene in the business of committees. It would, in my view, be a rational reform to reduce the number of Members to 450. When we abolish hereditary peerages in this House, it will be possible for us to reduce this House to a comparable number.
The second point I want to make may not come directly out of the Boundary Commission's report but I hope your Lordships will allow me to comment on the inadequacy of the register. It is absurd in these days of information technology that we have a register once a year only which takes a number of months to compile. It is then published and, some months later, it comes into effect and is not changed for another 12 months. It is perfectly possible these days to have a register in which corrections are made as they occur, as they would be on a valuation list, a rating list or a council tax list, and for them to be frozen when a general election is called. The effect of having an annual register rather than a rolling register together with the effect of the poll tax and the exclusion—to use the European Community word—of large parts of the population from their civic responsibilities is that if we compare the parliamentary roll with the local government roll and local government taxation records at least a million people—probably substantially more—are excluded from parliamentary voting. That is not a satisfactory basis for democracy. It ill becomes my saying so but as an individual who believes in parliamentary democracy, I hope that the House will forgive me for making that additional point.
Lord Harris of Greenwich: My Lords, as the noble Lord, Lord Mclntosh of Haringey, said, we are being invited to agree to an increase in the size of the House of Commons. We should ask ourselves what precisely is the case for a further increase in the number of Members of another place. As the noble Baroness said, when she referred to the Welsh and Scottish orders and the forthcoming order in relation to Northern Ireland, we are now talking about a House of Commons of 659 Members. That is by far the largest legislature among the advanced industrial democracies.

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The German Bundestag, admittedly, will have three more members than the next House of Commons. However, Germany is about 50 per cent, larger than the United Kingdom, both in respect of population and land area. France, with a land area more than twice the size of ours and a population about the same, will have 82 fewer members of the Chamber of Deputies than will exist in this country. The most striking comparison is with the United States. Here is a country 40 times the size of the United Kingdom with a population four times as large. Yet the House of Representatives is already only two-thirds the size of the House of Commons. The power of its members, through the committee system, is infinitely greater.
Yet we are asked to approve a further increase in the size of the House of Commons. Like the noble Lord, Lord Mclntosh of Haringey, I believe that some justification is called for from the noble Baroness who moved the order today.
Faced with some criticism, not altogether surprisingly from outside Parliament, in moving the order Mr. Howard said that the rules set out in the second schedule to the 1986 Act had the effect of requiring that the number of parliamentary constituencies in England should not be substantially greater than 507. However, he added that,
"the report that we are debating recommends that there should be a further increase of five to 529. The difficulty arises from the fact that the 1986 Act does not define what may be properly considered as 'substantially greater'".—[Official Report, Commons, 14/6/95; col. 801.]
He added that it was for the commission to exercise its discretion in determining how to interpret that particular rule.
I do not believe that that is acceptable. On the basis of that rule, there are already 17 more seats in England than the 507 to which I referred. Now there are to be another five. Mr. Howard said that the Government agreed in principle that the size of the House of Commons should be stabilised. However, the Government have rejected the proposal of the Home Affairs Committee aimed at achieving that result.
Mr. Howard said that there would have to be consultations with interested parties. I have no objection to that. However, would it not be far more sensible to consider attempting to achieve a reduction in the number of seats in another place combined with an indication that the money saved would be used to improve the inadequate facilities for private Members in the House of Commons and also, to a degree, their accommodation?
The Government constantly assure us of their determination to secure value for money in the public service. It seems to me that it is a very good idea to make sure, just for once, that that applies to politicians as well as to anyone else.
7.45 p.m.
Lord Monks well: I rise to make an observation about our responsibilities as the House of Lords. We have the right and, if necessary, the duty to amend or reject orders that are placed before us. The noble and learned Lord, Lord Simon of Glaisdale, is not in his place, but I am sure that had he been present he would have supported me in
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that statement. It is not my intention to suggest either amendment or rejection of the order in front of us today, but it is worth while making a few observations.
From my personal experience of the operation of the Boundary Commission, I wholeheartedly endorse the compliments that have been paid to it in arriving at a solution to difficult problems which is, in general, fair and just. I refer particularly to the situation which faced the Boundary Commission with regard to Manchester and Trafford. The saving of the community of Wythenshawe following a public inquiry was an important act by the Boundary Commission. It reflects strongly held views and will be of immense benefit to the local communities not only in Wythenshawe but also in other parts of Manchester and Trafford. They will have Members of Parliament who can represent genuine communities. That will be wholly beneficial to our electoral process.
I said that it is possible and, if necessary, our duty to amend or reject regulations such as these. It is important to recognise that the Minister did not see fit to amend the recommendations of the Boundary Commission because in this context it is important that politicians stand back from the independent review that has been conducted.
One of the problems that we have to face is the make-up of this Chamber. It has an inherent Conservative majority, not only through hereditary peerages. If hereditary peerages were abolished tomorrow, the Conservatives would still have an in-built majority over the Opposition. Therefore, we do not have the standing to say that we, as the House of Lords, can look at matters independently. As a nation we have to consider how, within the parliamentary' process, we have some oversight over the overseers.
Regarding the size of the House of Commons, I join with other speakers in this debate in suggesting that the Members of the House of Commons represent too few people. However, I suggest that we should not compare this country with the United States of America, where a Congressman in the House of Representatives represents approximately half a million people. The equivalent is much more akin to the European Parliament, where Members of the European Parliament represent half a million people. If Members of the House of Commons were to represent 100,000 people rather than the half million that Congressmen and Members of the European Parliament represent, we might arrive at a more sensible size for the House of Commons.
Finally, I support the final comments made by my noble friend Lord Mclntosh of Haringey from the Front Bench about the exclusion of electors—people who have the right to take part in our parliamentary electoral process—for various reasons, partly bureaucratic and partly unfortunate accidents of history and legislation. Perhaps I may refer to the council tax. Something ought to be done about that denial of democracy. I suggest that the figure is rather greater than the 1 million or 2 million that my noble friend suggests. I support the Motion.
Lord Renton: My Lords, although I yield to none in supporting your Lordships' right to amend any primary legislation coming from another place, and voting for or against secondary legislation when it comes before us, I feel that on this occasion regarding this specific matter it

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is essentially a matter for another place. It would be idle for us to think for one moment that we could vote against it. The issue is for another place to decide.
Having said that, perhaps I may comment on a view expressed by the noble Lord, Lord McIntosh of Haringey, about the register. Perhaps I may remind him that entitlement to be on the register, or the need to be struck off it, varies in every constituency by dozens of people every day of the year. For us to have a shorter period than one year for the publication of the register—it is an expensive cost for the public to bear—is to my mind quite impracticable, with great respect to the noble Lord.
The only other matter—
Lord McIntosh of Haringey: My Lords, if the noble Lord is moving to another subject, perhaps I may say that if that publication were done in isolation, he would be right. But for local taxation purposes, registers are provided which change from day to day. That was the whole basis of the poll tax and why the tax was so wicked.
Lord Renton: My Lords, quite frankly, in a sense that parliamentary register is the foundation of our democracy. We have to reach a specific date for young people to become qualified; and we have to give them the opportunity of ensuring that they get on to the register in time for its publication. I believe that we should not yield to that temptation.
Perhaps I may refer to the point which arises in relation to Huntingdonshire which in effect in future will be North and South Huntingdonshire. I looked to see where St. Neots was to be. It is now a large town. It is not mentioned in the order. That is because of the method which the Parliamentary Boundary Commission has to use; namely, by fixing constituencies in relation to wards of local government. St. Neots, important though it is, is not a ward of local government. Therefore we have Eaton Ford, Eaton Socon, Eynesbury and Priory Park; and St. Neots, strangely enough, will be covered by all of those. I mention that only for the record because a number of local people may have wondered.
However, apart from that, I congratulate my noble friend on her presentation of the order and the interest she has aroused in so doing.
Baroness Blatch: My Lords, first, I note all the comments of welcome which have been made regarding this substantial piece of work.
Perhaps I may address straight away the issue regarding the size of the House of Commons. It is important, first, that the ratchet effect of-the present system be addressed. My right honourable friend the Secretary of State confirmed during the debate in another place that he would initiate a review of the statutory rules in Schedule 2 to the Parliamentary Constituencies Act 1986 as soon as this fourth general review is complete. That will be when the report of the Northern Ireland Boundary Commission has completed its parliamentary passage. One of the issues which no doubt will have to be addressed is the growth of the size of the House of Commons and what is known as the ratchet effect in the rules. It has the effect of creating an upward pressure as to the size of the House of Commons at each successive review. If that rule is not
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modified in some way, then that ratchet effect continues because of the methodology that is suggested in the rules as they stand.
The noble Lord, Lord McIntosh, raised the point about the inadequacy of the electoral register. I note what the noble Lord and my noble friend say. It is an important point. The Government are most anxious that we have as complete a register at is reasonable and practicable. I wish to add to the words of my noble friend; they were important and pertinent. With regard to having a good, effective register, we fund an annual publicity campaign to encourage people to register to vote. That campaign is targeted at a group of people where the level of registration is known to be below the average. We also carry out annual research on which we base regular advice as best practice to electoral registration officers. A number of matters to do with electoral registration are under review in the department. We consult with the political parties. That process will continue.
I wish only to make reference to the abolition of hereditary peerages. The noble Lord, Lord McIntosh of Haringey, took licence to bring the matter into the debate. The issue has absolutely nothing to do with the debate in hand. However, I cannot let it pass. I believe that hereditary Peers add greatly to the work of this House and to the effectiveness of this place, and their contribution is considerable. I have to say to the noble Lord, it is underpinned by centuries of tradition. I put this on record because I believe that the noble Lord ought at least to be forewarned because to be forewarned is to be forearmed. I, and I suspect many, both inside and outside the Chamber, will prove doughty fighters against abolition of hereditary peerages. I commend the order to the House.
On Question, Motion agreed to.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until 8.20 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.57 to 8.20 p.m.]

Child Support Bill
House again in Committee.
Clause 6 [Departure directions]:
Earl Russell Earl Russell moved Amendment No. 21:
Page 5, line 21, leave out from ("Part") to end of line 24.
The noble Earl said: In the first instance, this is a probing amendment. If I receive the answers I want about the intention of the Bill, I hope that I shall be able quickly to withdraw it. If I do not receive those answers, it might be a different matter.
The point concerns Clause 6, the conditions for a direction for departure from the Bill. The words which I seek to delete are condition (b) for a departure direction:
"The Secretary of State may give a departure direction if …
(b) it is his opinion that, in all the circumstances of the case, it would be just and equitable to give a departure direction".
My question is this: does that add a further restrictive condition to subsection (a), that,
"he is satisfied that the case is one which falls within one or more of the cases set out in Part I of Schedule 4B or in regulations"?

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In other words, I wish to know, if a request for a departure direction fits all the conditions set out in the schedule and the regulations, does the Secretary of State nevertheless have an unfettered right to stop it going forward, if it appears to him not to be just and equitable to do so? If that were a further restrictive condition on the operation of the departure system, it would give me anxiety. I hope that the Minister can tell me that my fears are misplaced. I beg to move.
Lord Mackay of Ardbrecknish: As the noble Earl pointed out, the amendment removes the requirement placed on the Secretary of State to consider whether giving a departure direction would be just and equitable, before he gives such a direction. It will have the result of allowing a departure direction to be given in any case so long as that case falls within one of those set out in Part I of the new Schedule 4B, as introduced by Schedule 2 to the Bill. Subsections (2) and (3) of the section, however, remain in place. That means that certain aspects of the "just and equitable" issue are expanded upon without the concept itself having been introduced.
I assume that it is the intention that the Secretary of State would still be required to consider whether a departure was just and equitable, taking account of the financial circumstances of both parties and the welfare of the children, but that the requirement to consider all the circumstances of the case, rather than only the financial circumstances of the two parties, would be removed.
The requirement to consider whether it is just and equitable, in all the circumstances of the case, to give a departure direction is a very important feature of the departures scheme. I should like to give an example of the kind of case in which such a consideration may and indeed ought to be material to the decision whether to make a departure direction.
Let us suppose that an absent parent has requested a departure because he has a debt which costs him £25 a week to repay. It is clear that the debt is a reasonable one, that he has not been able to reschedule it and that he therefore has to meet the payments. On the face of it, he may qualify for a departure. However, perhaps we may suppose that he is a horse-racing enthusiast, a car enthusiast or something similar and has a part share in a racehorse which costs him £2,500 a year—not that I indulge in such activities, but I gather that it is pretty expensive. The parent may have other enthusiasms that cost him a great deal of money. The Secretary of State may consider that, in view of the circumstances of the case, it would not be just and equitable to allow a debt to reduce support for the absent parent's own child, when he is spending much more on an expensive hobby.
In other proceedings on Bills, I have been urged to put in words like "just and equitable". This is a novelty in that this time I am being urged to remove the concept of "just and equitable". I hope that the noble Earl can realise that it is a reasonable concept to include in the Bill a provision to ensure that in such circumstances as those that I mentioned—and there will be other examples which we could devise—the Secretary of State can take into account all the circumstances of the case. With that explanation, I hope that the noble Earl will feel able to withdraw his amendment.
Earl Russell: The Minister has made just the kind of points at my expense that one might have expected and which I might have done, had the position been reversed. However, perhaps I may draw his attention to some distinctions. One was made by the noble Lord, Lord Renton, when we discussed an equivalent issue on the Jobseekers Bill. The noble Lord pointed out that it is one thing to allow a discretionary power when it is a use of the prerogative of mercy, when it is beneficial and a relaxation, when it is for the benefit of the subject. However, it is quite another to use a discretionary power in a penal manner to deprive people of rights which they would otherwise enjoy. That seems to me to be a fair and important distinction.
The second distinction which I wish to point out to the Minister is that I am drawing attention to the uneasy marriage between a series of statutory conditions and a discretionary provision for things to be just and equitable. I do not see why we need both, or why the two can go together in any sensible way. In fact, I do not see what the provision is doing here.
The third distinction which worries me is this. I entirely take the Minister's point about the racehorse, there is no argument about it. However, I very much wish him to answer this question: why should that decision be taken by the Secretary of State? Why should it not be taken by a child support appeal tribunal or by commissioners? Why should it be the Secretary of State who, as I see it, is here usurping the judicial function in order to try to decide an individual case which ought to be judicially decided by known rules of law? While the Secretary of State takes all the discretion away from the judicial authority, he is giving it to the executive authority. I should like to hear how the Minister can justify that.
Lord Mackay of Ardbrecknish: First, there is more than the mere question of whether something is beneficial to the absent parent. There is the question of whether it is beneficial to the child or children of the absent parent whose welfare must come into the matter to some extent for there to be a balance in all such matters. We cannot look on it as being a bad thing if the proposal is not beneficial to the absent parent. By definition, asking the absent parent to pay anything, a penny piece to his child, children or to the parent who cares for the children will not be beneficial to the absent parent. I am afraid that the only way one can run a system that would be beneficial to the absent parent is to say to absent parents: "All right, the taxpayer will pay, you may go off and not bother with any financial obligations". I know that that is not what the noble Earl wants to see, but I fear that would be the consequence of his particular question.
The other point that the noble Earl made shows the difference between us. He would like a system that is entirely court-dependent—either on courts as we know them, or on some other kind of courts to be set up by the Government to deal with those cases. I understand that. It is the argument of his party on this matter. I have said all that I have to say on this point, although I have no doubt that we shall return to it on a number of occasions. I mentioned my position in this respect earlier this afternoon. I stand by what I said.

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There is a point that is worth making; namely, the absent parent can appeal, he can go to the tribunal about the departure. In that case, as I also said this afternoon, the tribunal, whether made up of a single member or of three, will have as its chairman a legally qualified person. To that extent at least, the noble Earl's desire to bring into play some lawyers will be met if the absent parent decides to appeal. In many cases, the absent parent may be prepared to accept the conclusions. In that case I do not see the need to bring in the legal process. That is the position as I see it. "Just and equitable" is a reasonable provision to have in the Bill. I should like to think that the noble Earl can agree that the provision should be there, even if he does not agree that we should have this particular system. Perhaps he can agree that, if we must have it, it is sensible to have these words.
8.30 p.m.
Earl Russell: I am not sure that the Minister has yet given a justification for using prerogative powers to take away people's legal rights. Nor has he given me any coherent explanation for showing why a discretion in an individual case—which must, if it is to be used properly, involve a full hearing—should be used by the Secretary of State. His answer does not at present make sense to me.
However, rather than asking the opinion of the Committee now, I feel that I must read the Minister's answer very carefully indeed to see whether I can make any more sense of it then than I can now. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 22:
Page 5, line 21, 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 he not do so; and").
The noble Baroness said: This amendment would insert the provision as printed on the Marshalled List. Its purpose is to introduce evidence of hardship as a fundamental criterion for access to the departure system. Although the Bill introduces some gateway, so to speak, in relation to departure, we are worried that it is perhaps not at present fully balanced.
In the present system an absent parent could gain access to the system merely because, for example, he has high travel-to-work costs, regardless of how much he earns. In the original White Paper regarding improving child support, it was clear that the absent parent would have to meet two conditions. The first was that because of the special circumstances of the case he faces specific additional expenses, not taken into account in the formula. The second was that he would face hardship—that is, he would be unable to support himself and any new family if he were to pay maintenance at the level determined by the formula. This amendment would ensure that departure is not simply to reduce maintenance payments at the expense perhaps of the parent with care, but to ensure that that is coupled with evidence that genuine hardship would be caused were such departure not permitted. I beg to move.
Lord Mackay of Ardbrecknish: As the noble Baroness explained, this amendment will require the Secretary of State to consider whether a refusal to grant a departure would cause hardship to the absent parent or his family; and if he were to consider that it did, he may give a departure direction.
I believe that there are two reasons why this amendment should not be accepted. First, it is inequitable to consider the issue of hardship in respect of the absent parent only. This provision could result in an absent parent benefiting from a departure which would not otherwise have been made; the resultant reduction in maintenance may well cause hardship to the parent with care, but the Secretary of State will have given no consideration to this matter.
Secondly, I believe that the amendment is unnecessary. The Bill already contains the provision in new Section 28F(1) (b), which we just discussed, which requires the Secretary of State to consider in all cases whether it would be just and equitable to make a departure direction. This provision enables the Secretary of State to consider all the circumstances of all parties to an assessment—and in particular their financial circumstances. This is a much fairer way of dealing with the issue that this amendment is trying to address; 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.
For those reasons—namely, that there is a wider interest to be considered than just the absent parent, and that all three are catered for inside the just and equitable position—I hope that the noble Baroness can withdraw her amendment.
Baroness Hollis of Heigham: I thank the Minister for that reply. Where we are agreed is that we want this measure to be even-handed to all the parties involved in the negotiations. I am not sure that I am persuaded that the words "just and equitable" cover the situation that the Minister outlined. However, I can only take further advice on that point. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 23 and 24 not moved.]
Lord Carter Lord Carter moved Amendment No. 25:
Page 6, line 26, at end insert (", and
(c) of the consideration which has taken place under section 2 as to the welfare of any child likely to. be affected by his decision").
The noble Lord said: In moving this amendment, I shall also speak to Amendments Nos. 43 and 44 in the name of the noble Earl, Lord Russell, which go rather wider than the particular amendment that I am moving. All three deal with the question of the welfare of the child. That is a concept with which those of us who worked on the 1991 Act are certainly familiar. The purpose of this amendment is to ensure that parties are notified about the ways in which the welfare of the children has been considered. This is an attempt to prevent the Secretary of State—if I may put it in a rather pejorative way—going through the motions as regards the welfare of the child.
During the passage of the 1991 legislation, I moved successive amendments in Committee, on Report and at Third Reading. In each case, the noble and learned Lord the Lord Chancellor, who dealt with the Bill, said that each amendment did not go far enough, and at each stage we tried to amend them. At Third Reading the noble and learned Lord agreed to accept the amendment on the basis that it could he changed in the other place; it was changed, and that led to Section 2 of the 1991 Act.
Under Section 2 of the 1991 Act, the welfare of any children has to be taken into consideration when discretionary decisions are made. That was the change that the Government made when the Bill returned to the other place. It refers to the welfare of any children, but only when the people concerned are involved in discretionary decisions.
In practice, although it is maintained that this is considered, we are advised that this statement is made as protection from judicial review. We are also advised that there is little evidence that welfare issues are truly considered or are given any weight. So far as we know, the CSA staff receive very little information on this subject. Staff who make the decisions must be given substantial training in issues of child welfare. Otherwise, lip service only will be paid to this issue, which should be at the centre of the provisions. I think that we can all agree with that.
Counsel representing the Secretary of State for Social Security six months ago in the Biggin case argue that:
"as long as the agency notices welfare in passing it cannot be challenged on the grounds that it did not attach sufficient weight to it. Welfare is not a paramount or even a particularly significant consideration".
The quotation by counsel that welfare is not of paramount consideration is interesting. That is what the debate on the 1991 Act was about. In our first amendment in Committee, we tried to make the welfare of the children the paramount consideration, as the noble Baroness, Lady Faithfull, will well remember. That is in the Children Act. But in the Child Support Act, the Government were not prepared to accept that because there were other considerations to be taken into account. But the remark made by counsel in the Big gin case for the department was revealing. The judge in the case certainly thought so too. Mr. Justice Thorpe responded:
"If [Section 2 of the 1991 Act] has so little influence on the discretion to enforce the formula assessment, the heading words of the section seem hollow indeed. I am not convinced that the agency is at liberty to decide whether or not to issue a deductions of earnings order without giving considerable weight to the welfare principle".
The response of the Government in the other place, at its third sitting in Committee, was that that was unnecessary as all reasons should be given in the decision and it would be wrong to single out the welfare of the child.
The Minister provided Members of Standing Committee E with a note concerning the guidance given to CSOs when dealing with the welfare of the child, arguing that among the other factors which form part of a CSA decision are the interests of the taxpayer. I have a copy of that note, which was placed in the Library of the other place by Mr. Alistair Burt on 24th April. He gives the background to the consideration of the welfare of the child.
It is interesting that at the end of the note—the Minister goes into some detail—paragraph 11 says:
"A code of practice is being developed which will give advice to staff and information to advisers. It will be available later this year".
It seems odd to me, unless I have missed the point, that we should still he waiting for a code of practice which spells out to advisers what they should do about this consideration of the welfare of the child.
In practice, the reasons given for decisions of CSOs and the Secretary of State do not include details as to the welfare of the child. This amendment is intended to persuade the Government to give a commitment about the importance of this issue, which was fought hard for—I can speak from experience—during the debate in 1991.
The guidance referred to by the Minister in the other place—the child support manual and the child support adjudication guide—advises CSA staff to consider the welfare of children when making discretionary decisions. It would be surprising if it did not, because that is a requirement of the 1991 Act. However, it does not include guidance about how such decisions are to be made. The only factor specifically mentioned is that of mental or physical disability.
Also, it is incorrect to include the interests of the taxpayer as a factor which must be taken into account by CSA staff. I am sure that the Minister, when he responds, will refer to the interests of the taxpayer. But that is a matter for the Government. They are dealing with the Bill. It is not a matter for the CSA staff. Unlike the duty of parents to maintain children in Section 1 of the 1991 Act and the welfare of the child in Section 2, the interests of the taxpayer ate not contained in the Act at all as a specific requirement to be considered.
We would argue that the reality is that under the current arrangements there is little or no obligation for the child support officers formally to consider the welfare of the child. The commitment to ensuring that decisions are made with regard to that factor is, as I said, demonstrated by the lack of guidance to CSOs about how to implement the provision in practice.
Departure introduces new powers of discretion to the Child Support Agency. In that situation it is essential that the welfare of the child is properly taken into account. This amendment could help to ensure that the agency implements the provisions regarding the welfare of the child made—with a lot of effort, I have to say, in this House and another place—under Section 2 of the 1991 Act. I beg to move.
8.45 p.m.
Earl Russell: I am glad that the noble Lord, Lord Carter, moved this amendment. It is a good amendment. Naturally, I should like to see a stronger one, but if I could not have a stronger one I would rather have the amendment of the noble Lord, Lord Carter, than mine.
Amendment No. 43, which stands in my name, is a good deal more forceful. In 1991 I was one of those who argued against using the word "paramount" in relation to the interests of the child. Mea culpa, I had not realised that the effect of attempting to be reasonable would be to weaken the weight of "the welfare of the child" quite so drastically as it has done. I had not realised that in trying

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to avoid a situation in which one interest takes priority over all others regardless of the details I had helped create a situation in which the interests of the child had become entirely nugatory. I am ashamed of myself.
As things stand at present. Mr. Pannick, counsel for the Secretary of State in Biggin v. Secretary of State argued that welfare is not paramount or even a particularly significant consideration. In another case decided on 15th May 1995, the commissioner said:
"The overriding purpose of the legislation is to ensure that the absent parent makes proper financial provision for his or her children and the exercise of discretion cannot be circumscribed so as to impede that objective".
In other words, maintenance must he levied whether or not it is in the interests of the child. That appears to be the present state of the law. I do not believe that it is right. After all, we were told with some eloquence in 1991 that it was all being introduced in the interests of the child.
My amendment will, I hope, force a genuine consideration of the interests of the child. It empowers the courts to consider regulations according to whether they serve the interests of the child. It is quite possible that the Minister, who does not believe in parliamentary sovereignty when it is a matter of ministerial discretion, may start to make a great speech about it as soon as it becomes a matter of the authority of the courts. But the construction of statutes is not like the clause in the Thirty-nine Articles which says that the Church may not so expound one part of scripture that it should be repugnant to another. In fact, it is perfectly clear that the courts regularly recognise conflicts between statutes and between different statutory enactments. They have rules for according priority between them. To clarify and add to those rules would not be improper nor would it be outside normal practice.
Moreover, where we have regulations, those regulations have vires. The courts have always been capable of striking down the regulations on the ground that they are outwith the vires. The Minister may remember the case of the Woolwich Building Society v. Inland Revenue, where the Appellate Committee of this House decided that the whole of the regulations were ultra vires and struck them down, lock, stock and barrel. So the effect of bringing regulations under the principle of welfare would be to add a further condition to the vires of the regulations. I do not see that there would be any problem with that.
The meaning of "welfare" is to be the same as in the Children Act 1989. We are all familiar with that. It is capable of working. It would provide for all the children in the household to be treated in the same way: children of the absent parent's second marriage and the step-children. I believe that that gives effect to undertakings made by Mr. Michael Jack in the other place on 18th July 1991. Also, it avoids the risk of a breach of the European Convention on Human Rights. Under the case of Marckx v. Belgium—that is spelt M-a-r-c-k-x in the Belgian manner, and he has no political significance whatsoever—it was ruled that under the clause of the convention requiring respect for family life and prohibiting discrimination it would be contrary to the convention to distinguish between natural children of the household and step-children and others residing in it.
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So, if we are not to add another to the sad list of our violations of the European convention, the Minister might do well and might save the Government considerable legal costs if he were to accept Amendment No. 43 now. I hope that the Minister will think very seriously about that.
Lord Mackay of Ardbrecknish: Whenever the Secretary of State makes a discretionary decision he is required to consider the welfare of any of the children concerned in the case. Amendment No. 25 would require information about the matters which have been considered in relation to welfare to be conveyed to both the parties to an application for a departure.
If consideration of the welfare of the child affects their decision, the matter will already be covered by the existing wording of Clause 6. Where it does not affect the decision, the amendment would lead to gratuitous information about one parent's family circumstances being passed to the other parent. We shall have to give a great deal of information to each parent about the other. I do not want to add unnecessarily to the information about the family circumstances of one parent that is conveyed to the other parent. For that reason I ask the noble Lord to withdraw his amendment to Clause 6, bearing in mind that if consideration of the welfare of the child affects their decision, that is already covered by the wording in the clause.
The noble Earl, Lord Russell, in proposing other amendments relating to the welfare of the child, is addressing issues which arc already part of the substance of child support legislation. Section 2 of the 1991 Act exists to ensure that the welfare of the children is given due weight when discretionary decisions are taken on cases.
The noble Earl wishes to incorporate the 1989 Children Act definition of welfare into the Child Support Act. But Section 1 of the Children Act relates to specific, limited circumstances and to the decisions of courts in those circumstances. The wording of the Children Act section does not readily translate across to child support. Section 2 of the 1991 Act ensures that whenever discretion is being applied, the welfare of any child likely to be affected is considered. I have no evidence which suggests that officials are neglecting their responsibility in this matter. Crucially therefore, the 1991 Act already ensures that due weight is given to the welfare of the children concerned.
Lord Carter: I am grateful to the noble Lord for allowing me to intervene. We have seen evidence which perhaps is anecdotal. However, if I send it to the noble Lord perhaps he will consider it in the light of what he said.
Lord Mackay of Ardbrecknish: I shall be happy to look at any evidence which the noble Lord has in this regard; and, as I always do, I shall reflect on the various points made during the debate.
Section 1 of the Children Act is specifically about the determination of questions which are central to the child's life—his upbringing; or the administration of his property or the application of any income arising from his property.

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It also relates to residence and contact orders, and to care and supervision orders. Clearly, in those circumstances, it is right that where the child is so pivotal to the discussion, his welfare should be paramount. However, the impact of child support goes wider than just the child. It is important for Parliament to consider the position of all the people with an interest: the children, their own parents and the wider community of tax payers.
Parliament supports the principle that parents should maintain their own children if they can afford it. The Government believe child support improves the position of children whose parents live apart by opening up opportunities for the parent with care to become self-sufficient by taking up employment, which not only improves the family's standard of living but also has wider implications for the messages given to children about individual responsibility. It was never the intention of Parliament that Section 2 of the 1991 Act should be used to undermine the basic principles of that Act. Yet the noble Earl's amendment would have precisely that effect. It would tie the decision-making process up in knots whenever discretion was involved.
Section 2 of the 1991 Act relates to the exercise of discretion in any case, and the section has no application to the making of regulations. The section is confined to the exercise of discretionary powers by the Secretary of State or a child support officer in individual cases. The noble Earl, Lord Russell, goes further than Section 2 of the 1991 Act by requiring the welfare of the child to be considered whenever the Secretary of State exercises his regulation-making and amending powers. The wording of Section 2 is not appropriate to the general power of the Secretary of State to make regulations under other sections of the Act. If Parliament wished to impose this requirement, then it would be more appropriate to do so either in the individual sections which give the regulation-making power, or in Section 52 of the 1991 Act, which gives a general regulation-making power.
Having said that, I may invite the noble Earl to try an amendment in that regard. However, my answer may be the same so perhaps I can help him, or at least help the rest of us and save the noble Earl the problem of devising more amendments. Bearing in mind the number of amendments the noble Earl has tabled, I am surprised that I have seen him around the place in the past week or so. Such is the quantity of drafting and knowing the time it takes to get drafting out of parliamentary draftsmen, I congratulate the noble Earl on the way he managed to draft these detailed and complex amendments.
I do not believe that it would be right to attach the welfare of the child provision to the Secretary of State's regulation-making powers. Parliament decided that child maintenance should be set within a clear framework, which takes due account of the needs of all the parties involved. It also decided that, fundamentally, the welfare of the child is best served through the support of his own parents based on their ability to pay. There are already safeguards to ensure the proper use of regulation-making powers, such as those relating to intra and ultra vires, and unusual and unexpected use of powers.
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The noble Earl's amendment would make the Secretary of State liable for the actions of child support officers in the context of Section 2, but would nevertheless create a situation in which individual staff members making decisions on a daily basis would be fearful that their decisions, honestly made, would be subject to court action simply because one or other of the parties objected to them.
As I have explained, consideration of the welfare of the child is already given due weight in child maintenance matters. That is why I do not believe it would be appropriate to write into the Bill this amendment as proposed by the noble Earl, Lord Russell.
The noble Lord, Lord Carter, asked if we would publish the guidelines on the welfare of the child. Instructions to consider the welfare of any children involved are currently in several procedural guides used by the Child Support Agency staff, and the agency makes those guides available on request. However, the department is in the process of preparing a comprehensive guide for the use of staff making discretionary decisions on behalf of the Secretary of State and in due course that guidance will also be made available on request.
Earl Russell: I do not know by what authority the Minister tells us what was the intention of Parliament in 1991. This provision was introduced in this Chamber. At least three people are present who shared in the responsibility for introducing it. The Minister was not present. How does he know what the intention of Parliament was in 1991? It was certainly my intention—the noble Lord, Lord Carter, and the noble Baroness, Lady Faithfull, may or may not say it was theirs—that the welfare of the child should be taken into account in making assessments; that we should not have an assessment which was contrary to the welfare of the child. That is not happening.
I can quote one recent communication from the Child Support Agency to a solicitor who was dealing with a case based on Section 2. He said:
"I note your comments regarding the welfare of the children in this assessment. However, you must realise that whilst it is of undoubted concern to the parties concerned, it is not a matter to which the Child Support Agency can become a party".
Is the Minister really sure that Section 2 is being so fully taken into account? I quoted a commissioner's decision. I shall give the Minister the reference for that decision and I hope he will check it before we return to this at another stage. I refer to case CCX/011/1994 Kirkley, decided on 15th May of this year.
I hope that the Minister will think again about whether the welfare of the child is being adequately taken into account. It is not being adequately taken into account if it does not influence the assessments. Before the Minister again invokes the interests of the taxpayer, I remind him that I am a taxpayer and I would be ashamed to build my prosperity on the unnecessary and useless ruin of other households, especially since I think that I would end up paying more taxes in the end because they would not be able to pay any more. So, altruism and self-interest always work in the same direction—
Baroness Seear: Not always.
Earl Russell: My noble friend Lady Seear says "Not always", but that depends on whether self-interest is adequately understood because often it is not. On that point, my noble friend is entirely right. It is not always perceived.
I see nothing whatever wrong with imposing further conditions on the vires of regulations, but if this is not the right place to do it, I shall think about it. I am afraid, however, that the Minister may hear more of this later. I am not satisfied by his replies and until the welfare of the child is actually taken into account, I will not be satisfied.
9 p.m.
Lord Carter: I am extremely grateful to both the Minister and the noble Earl, Lord Russell. I am prepared to concede that the noble Earl made a very good point, although he was extremely rude about one of our amendments earlier. Besides the welfare of the child being paramount, the welfare of the noble Earl is always paramount for those of us who have had to deal with social security matters over many years.
He is right that we accepted in the 1991 Act that it was wrong to regard the concept of the welfare of the child as paramount. I am sure that the noble Baroness, Lady Faithful!, remembers that we moved an amendment in Committee to establish that concept and that the noble and learned Lord the Lord Chancellor pointed out that we could not make it paramount because of all the other considerations that had to be taken into account. We accepted that on the legal basis. However, we have since found that, in practice, if it is not being ignored, it is largely neglected. We shall have to return to that point in one way or another and send the Minister evidence, which I am sure he will consider, of cases where that is actually happening.
The noble Earl, Lord Russell, did not say much about Amendment No. 44, which includes in subsection (2) the remarkable phraseology,
"'ordinary circumstances' include any circumstances which are not extraordinary or amazing".
I do not think that I have ever seen those words before in legislation. Perhaps it was "extraordinary or amazing" that the noble Earl made a Freudian slip, thinking of the possibility of a Liberal Government. I understand that that event is likely to coincide with the bicentennial celebrations of the 1906 Liberal Government.
The Minister has answered our point on Amendment No. 25 in which we sought to deal with a narrower point. We are still not totally happy about the way in which this matter is being handled. As the noble Earl said, we should remember the intention of Parliament. It was not only the expression of this House but actually an amendment moved by the Government in another place, which ended up as Section 2 of the 1991 Act. That led the Government to spell out how they saw the welfare of the child. We do not think that now, in practice, the welfare of the child is being taken into account as it should be. Perhaps we were wrong not to insist at the time on wording to make the welfare of the child paramount, but we understood the legal reasons for that. We are now not sure that that wording is right. As I said, we shall have to return to this point on Report but, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Schedule 2 [Departure Directions: The Cases and Controls]:
[Amendment No. 26 not moved.]
Earl Russell Earl Russell moved Amendment No. 27:
Page 25, line 21, leave out ("may") and insert ("shall").
The noble Earl said: Amendments Nos. 27 and 38 are cases of what I may describe as "negative discretion" where discretion is used to restrict the legal rights that people might otherwise have enjoyed rather than for purposes of the prerogative of mercy. I shall endeavour to be fairly quick because I hope that the Minister can give me some at least moderately reassuring answers.
Amendment No. 27 deals with the provision for departures. The grounds for departures are to be laid out in regulations. The schedule lays down that the Secretary of State "may" make regulations. Why can it not say "shall"? Does that cautionary use of the word "may" indicate that the Secretary of State, after having all this power to create departures conferred on him and after all the fanfare of trying to make out that all injustice is now rectified, may not do anything about it? If so, I may be tempted at some later stage to press the amendment. I hope that there is a minor reason why the provisions state "may" and I look forward to hearing what it is.
Amendment No. 38 deals with circumstances being prescribed by regulations in which the Secretary of State may disregard travel costs. Again, we have no limit on the vires of that. As the Minister knows, I am interested not only in regulations and in the policy intention, but also in what other people could do with the regulations at some future time. I am afraid that that will always be the case. When regulation-making powers are granted, if we want an early night it be worth drafting them in such a way that other people cannot do too many different things with them. I beg to move.
Lord Mackay of Ardbrecknish: Amendment No. 27, as the noble Earl explained, seeks to place a duty on the Government to prescribe all the categories of special expenses listed in the new Schedule 4B, as introduced by Schedule 2 to the Bill, as grounds for departure. I am happy to assure the Committee that it certainly is the Government's intention to bring forward regulations to cover all of the areas mentioned in the schedule, but I do not consider it appropriate that the primary legislation should impose such a duty.
We have given careful consideration to the expenses that parents should be able to rely on as grounds for a departure. It would, of course, be possible to draw up a very long list of expenses which any individual may have. But it would be wrong to place all other expenses ahead of child maintenance. We have always made it clear that child support should be the first call on a parent's income, not the last. We must guard against a return to the old system where child support had become almost an option after all other possible expenses had been met. A parent's first duty must be to support his child whenever he is in a position to do so.
We have made it clear that, at least at the outset, the departure system will he tightly circumscribed. The

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formula assessment will be the norm; departures will provide the flexibility to deal with the exceptional. The list of expenses in the schedule is framed to meet the major concerns which have arisen since the scheme began operating, and there is a power to include other types of expenses should this at any time be considered right. At the same time, experience may show that there are good reasons why a particular type of expense should no longer be included as a ground for making a departure direction. It should be open to the Government to propose amending the list of expenses—whether by adding to or subtracting from the list—if that seems right. I am happy to repeat the assurance I gave a minute or two ago that it is the Government's intention that all these areas will be included.
I turn now to Amendment No. 38 which, as the noble Earl, Lord Russell, explained, seeks to remove reference to one of the additional grounds for departure. This is the provision to allow either party to argue that the travel-to-work costs of the other party should not be allowed in the formula assessment. From April, the Government introduced a broad-brush allowance into the maintenance formula to meet high travel-to-work costs. It is our intention to allow the other parent to apply for a departure direction where the application of this allowance is unreasonable.
We recognise that many absent parents, and indeed parents with care who are in work, have always travelled some distance to work, or may have no option but to live a long way away from their place of employment; for example, because their job has relocated or there is no suitable employment in their local area. In such cases it is right that there should be provision for some allowance in the formula to take account of high travelling costs. That is why the Government introduced the broad-brush formula allowance in April. Furthermore, where the broad-brush formula allowance does not properly reflect the cost an individual may incur in travelling to work, he may apply for a departure from the formula so that some account is taken of these extra expenses.
Having said that, there will be instances where an individual is able to satisfy the simple conditions to qualify for a broad-brush formula allowance but it can be argued that it is unfair to allow that to lead to lower maintenance for his children. For example, where an individual has chosen to move some considerable distance from the area where he works, in the full knowledge that the journey is not served by public transport and that travelling costs will be high, the other party may reasonably argue that he should accept the consequences of that choice and not seek to defray the costs at the expense of his children. For those reasons, and having heard my explanation, I hope that the noble Earl will withdraw his amendment.
Earl Russell: I am grateful to the Minister for the care which he has taken. He tempts me once again to enter into a discussion of his claim that child maintenance ought to take priority over all other expenses. I shall resist the temptation, but I shall not promise to do it all night. If the Minister wants us to get on, he would be wise not to go on
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asserting the general points of his thoughts, which a large number of people are likely to want to challenge. I resist the temptation, but only for the time being.
I understand what the noble Lord is saying about the policy intention as regards Amendment No. 38. As I understand it, he means to introduce a provision on intentionality very much along the lines of intentional homelessness. It is not quite the happiest of precedents, but at least it is intelligible. That view, although neither true nor interesting, is at least intelligible, as Bernard Shaw might have put it. But if that is the Minister's policy intention, why does he not say so? Why wrap it up in this general Humpty-Dumpty formula, saying that he can leave out anything he likes; ignore anything he likes and give the Secretary of State discretion to do whatever he likes? It is not the right drafting way of achieving that policy intention.
As regards the main amendment, I am not entirely satisfied with what the Minister said. At this time of night I shall not go into the reasons why, although I believe that he can probably guess pretty well all of them. However, he has given me the major assurance that I wanted that the Secretary of State definitely will introduce regulations. With that, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 28:
Page 25, line 22, at end insert ("including the costs of car ownership when it is impossible or unreasonable to expect the applicant to travel to work by any other method").
The noble Earl said: This amendment is of some importance; indeed, it is one of the most important amendments which I have left tonight. The Minister is familiar with the general outline of the argument. In fact in the Statement on 23rd January he went so far as to express a very faint scintilla of sympathy for it, but it was very faint. He did not lead me into any false hopes.
My concern in this amendment, which deals with car ownership, is that people must remain able to continue going to work. That is in the interests of the children because maintenance cannot be paid if they do not; it is in the interests of the taxpayer because those people cannot pay taxes if they do not; it is in the interests of parents with care if maintenance is in any way above income support level as it is, sometimes.
Sadly, an increasing number of people live in places, especially country areas, where they cannot go to work unless they travel by car. It is a time too when, in the spirit of the Jobseekers Bill, people are being encouraged to travel longer and longer distances to work. If you have a car, you may not find that going to work takes up a particularly high proportion of its use, but if you cannot maintain the car you cannot work. So unless the formula allows you to meet the standing costs of owning a car (the road fund licence, the insurance and the MOT) then you cannot go on working. Also, as often happens—it has happened to a number of the people who have corresponded with me about the Bill—you may be buying the car on an instalment payment system. If you cannot pay those instalments, then you cannot continue to go to work.
I had a letter from someone who was caught by all those things; he called the Child Support Agency helpline to ask

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how he should cope. He was advised to sell his car. That cannot make sense. I know that the Social Security Select Committee was not persuaded by that point, but its reasons for not being persuaded were less than clear.
If the Minister will not accept the amendment, the Government will be pushed into a position where they find that they are under pressure to lay on adequate public transport to every place in the British Isles. The cost implications of that are fearsome. You cannot press people to do what they cannot do. The interests of keeping people in employment need to come first; neither children nor anyone else benefits if that is not the case. I beg to move.
9.15 p.m.
Lord Mackay of Ardbrecknish: As the noble Earl explained, the amendment seeks to place a duty on the Government to provide for the cost of car ownership where the use of a car is essential for the purposes of travelling to work.
Earl Russell: The Minister may, entirely inadvertently, have misled the Committee. I was not asking the Government to provide for the costs but to allow for them. There is a significant distinction.
Lord Mackay of Ardbrecknish: Yes, indeed; I stand corrected. I may come to the question of whether people should be provided with these costs slightly later in my argument. Yes, the costs should be allowed for in the calculation of maintenance.
The Committee is aware that the Government intend to bring forward regulations for each of the grounds for departure listed under the category of special expenses. The detailed criteria for the granting of departure directions for each of the grounds are being considered, including the possibility of making some allowance for the costs of car ownership, at least in limited circumstances.
The Bill deliberately does not go into detail on the criteria for qualifying for a departure direction under any of the grounds, partly because extensive detail is inappropriate in primary legislation but, more importantly, to provide the maximum possible flexibility to adjust the system in the light of experience. The Delegated Powers Scrutiny Committee explicitly approves that approach in its report when it says:
"We … consider that it would be difficult to see how substantially greater detail could be written into the bill".
To expand upon the specific issue of whether some account should be taken of the costs of car ownership where use of a car is essential for the purpose of travelling to work, I should say that that raises some difficult issues that need careful consideration.
The majority of people—we are still very much an urban-based society—have the option of using public transport to go to work. However, there may well be some instances where individuals have no option other than to travel to work by car; for example, where there is no public transport available or where a disability makes use of public transport impracticable. But it is extremely unlikely that someone in that position would run their car for the sole purpose of travelling to work and not use it for
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other social and leisure purposes. The question therefore arises of whether it is right to make allowance for the costs of car ownership aside from the cost of fuel on the journey to and from work. Where people travel by car purely as a matter of personal preference, there is a strong argument that petrol costs in excess of the cost of public transport should not be considered for the purposes of the departure scheme. There are considerable difficulties surrounding the whole question of how one should or could take into account the costs of car ownership in the question of travel to work.
Baroness Seear: The Minister must realise that in parts of the country there is no public transport. For instance, in parts of Cornwall one cannot hold down a job unless one has a car. There is not the transport.
Lord Mackay of Ardbrecknish: Of course I understand the point that there may not be much public transport. The noble Earl rightly pointed out that it would be prohibitively expensive to arrange public transport in every corner of the Kingdom where someone might fall into this category. Therefore, I fully appreciate the importance of car ownership.
However, car ownership goes a little wider than the absent parent. It goes to the next-door neighbour, whose position I raised previously. He may be happily married and living with his children and, equally, he may need to use his car to go to work. He too will have car costs which he must balance against his obligations to look after his wife and children. He is unable to claim those costs either through the income tax system or through family credit if his wages are sufficiently low.
In this regard, we must try to bear in mind the wider public. I agree that there are difficult issues and I have indicated that we are looking at how to deal with the costs of travelling to work if the person concerned must go by car. I have pointed out a number of issues. I am not sure whether the noble Earl accepts them, but I believe that they are clear and concise. First, they refer to all the population who could be in the same position as regards travel-to-work costs and who do not receive help with those costs. Secondly, they are how to define car costs as opposed to petrol costs when it comes to how much use the person makes of the car for one purpose against another.
This is a difficult issue. I hope that I have indicated to the noble Earl that we are looking carefully at how we can make some allowances for those costs. However, I should not like to pretend for one moment that it would be easy to do so or that they could be given at the rate I suspect he wishes, which is probably very generous, to the absent parent, unlike the poor neighbour who has no such help.
Baroness Faithfull: The Minister said that this is a difficult issue. Does he agree that in some cases it is more expensive to travel by train, especially as fares are rising, than it is to travel by car? Should we not bear that in mind?
Lord Mackay of Ardbrecknish: My noble friend and I might have a discussion about that matter. It might depend, for example, on whether one has parking charges when one gets to work. I suspect that while some train

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journeys may be comparatively expensive, the total costs of car ownership are such that those journeys are very few.
Lord Simon of Glaisdale: This may be a convenient moment to review the departures as against the various headings in sub-paragraph (3). As regards the departures, all are the kind of issues which the magistrates' courts took into account before 1991 and that the family court will take into account when it is established. Secondly, every single one was urged by way of amendment to the 1991 Bill. Thirdly, every single one was resisted. Fourthly, we were unable to carry them in a Division because the Chamber was habitually as empty as it is now late at night, and we knew that the Chief Whip had his little possé outside, including the payroll vote.
It is depressing that by bringing forward these departure headings the Government now recognise that in 1991 they were wrong and your Lordships were right. What is even more depressing is that the Minister, however able—and perhaps it is worse that it has been done so ably—has set his face, as it was set in 1991, against every single amendment which has been put forward.
At any rate, it would have been disarming if he had said, "Yes, we were wrong then and, in view of that, we are considering what is now urged with an open mind". We might have accepted that. But what is unacceptable is the same bland assurance that we had in 1991 that everything in the Bill is absolutely tickety-boo. So much for the departures.
I turn now to the sub-headings under this paragraph. Again, they deal with the sort of matters which magistrates' courts considered. In relation to travel costs, the Minister said that it is difficult to provide otherwise than by regulation for particular cases where travel costs may be exceptional; for example, where there may be rural bus difficulties, train difficulties and so on. Of course, he is right. But those are essentially the sort of matters which a local magistrates' court knows all about and would allow for.
The same applies to the other headings. Therefore, perhaps I may say with real respect to the Minister that it is not good enough for him to utter the same bland phrases which we heard before and to dismiss every single amendment that is put forward. The matters have been argued cogently and the noble Earl has been particularly impressive with his great knowledge of constitutional history and law. It has got him nowhere. Not a single argument has been conceded. All have been brushed aside. I hope that the Minister will be able to assure us that some little flexibility and humility will be shown when further amendments are proposed.
Lord Carter: The only correction which I would make is in relation to what the noble and learned Lord, Lord Simon, said when he referred to the fact that, during the passage of the 1991 Act, the Chief Whip had his "little possé" outside. As I remember it, it was a very big possé.
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Those of us who were involved with the 1991 Act make our remarks under the general heading "I told you so". The Minister will become fairly bored with that as we proceed through the Bill but we shall keep reminding the Government of it.
I understood much of what the Minister said. He said that it would be difficult to determine costs in relation to car ownership. The drafting is not perfect because it is the running of the car that is important rather than the ownership. I have been involved in management accounting for 40 years and I can tell the Minister that it is quite possible, bearing in mind all the other difficulties of the formulae, to calculate the proportion of the running costs of the car involved in travel to work. Other than that, I understood many of the arguments which the Minister put forward.
Earl Russell: I am most grateful to the noble and learned Lord, Lord Simon of Glaisdale, for giving vent to the impatience which we all feel at the continual resistance to any attempt to be genuinely helpful. It is the glory of this Chamber that those remarks came from the Cross-Benchers and we on the Front Bench of the opposition parties have bitten our tongues. I am glad that it is that way round. It is right that it should be so.
I turn now to the Minister's remarks. In an amendment dealing with car ownership, I might be misunderstood if I said that I did not know whether it was a light at the end of the tunnel or an approaching train. However, the Minister gave a very faint ground for hope. I grant that there are difficulties, but I agree with the noble Lord, Lord Carter, that they are no greater, in fact they are possibly considerably smaller, than other things which we have included in the formula. As the noble and learned Lord, Lord Goff of Chieveley, put it in the case of Woolwich Building Society, to which I recently referred,
"caution, otherwise known as the Treasury, would never allow it".
But caution, otherwise known as the Treasury, by its caution runs itself into all sorts of trouble from which anyone with a genuine concern for saving public money ought to rescue it.
The Minister put forward two arguments which need different sorts of answer. The first is the case of the poor, next-door neighbour. I do not believe that the Minister rightly understood that situation. If the poor next-door neighbour were to attempt to sell the car which takes him to work in order to give more maintenance to his children, I do not believe that his wife or his children would be particularly appreciative. In fact, I think that they would tell him in words of one syllable—or even less—that he should give up any idea of doing any such thing.
It is not, in fact, the case that people living in ordinary happy or moderately happy marriages maintain their children at the expense of going to work. If they should ever attempt to do so, they would of course fail. So the Minister has invoked a comparison which should in principle have been fair; but he has entirely misinterpreted the way that it actually works. In effect, it works against his argument and not for it.
The second point relates to caution, otherwise known as the Treasury. It is the one about the sole purpose of car ownership. It is, of course, possible that people will use cars for other purposes. I am not arguing that they should

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be allowed the petrol for the mileage used for other purposes. As my amendment says, my basic concern is with ownership. After all, people can give up taking their children to the zoo on a Sunday afternoon. It may not be a good thing for them to do so, but they can. So they could make such adjustments. However, unless they keep the car in such situations they simply cannot go to work. Therefore, there must be an allowance to cover all those costs without which you cannot own a car.
The word "ownership" was chosen for the amendment in order to cover the road fund licence, insurance and the MOT; in other words, those things which simply must be done otherwise you cannot run a car. If people are going to be stopped doing that then working is impossible. Therefore, I argue that the full cost of those expenses should be allowed but that the mileage for private use should not. I see that the noble Baroness wishes to intervene. I give way.
9.30 p.m.
Baroness Hollis of Heigham: I am grateful to the noble Earl for giving way. I am now somewhat confused. Under the heading "Special Expenses" in new Schedule 4B, paragraph 2(3) (a), reference is made to,
"costs incurred in travelling to work",
as a grounds for departure. Is the Minister saying that where those costs are incurred when the only means of travelling to work is by car they may not be counted? I must say that we had assumed that the noble Earl's amendment referred to the difference between the costs of travelling to work by car and full ownership. In that respect, we sympathise with the Minister's comment about the analogy with the next-door neighbour.
It would assist us if the Minister could make it clear whether the Government accept that costs detailed in the new Schedule 4B include the cost of running a car in so far as mileage is associated with going to work and that he is merely excluding the additional costs of the car beyond that point.
Earl Russell: Perhaps I can help the noble Baroness. She might find it useful to look at the exchange on this between the Minister and myself on 23rd January when we had the Statement. The position is that the mileage is allowed but the costs of ownership—the ones to which I have been referring—are not. If anything, I think that that is the wrong way round but as we have a lot of things in front of us at the moment, and clearly with the regulations to come we have many more different arguments about this also to come, I shall beg leave to withdraw my amendment for the time being. However, discussion on this subject in public and, I hope, in private may continue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale: I beg to move that the House do now resume. I promised the noble Lord the Chief Whip, whom I am glad to see has returned to the Treasury Bench, that I would not move this Motion until 9.30. May I repeat what I said on the earlier occasion? The Committee is, like most second Chambers, an elderly Chamber. The Committee is, unlike most second Chambers, an unsalaried Chamber. It is quite
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unreasonable to keep the Committee up on a Bill of this importance at very late hours. However, the matter is far more important than that. At this hour of night, with the Committee as it is, it is quite impossible for the Committee to perform its proper parliamentary function. We saw that in 1991 and the result has been—it should be recognised—a legislative disaster. We do not want another one. It is extremely bad for the Chamber. So I hope we may he assured that the Committee will now adjourn as there can be hereafter no realistic test of opinion in the Lobbies. I beg to move that the House do now resume.
Moved, That the House do now resume.—(Lord Simon of Glaisdale.)
Lord Mackay of Ardbrecknish: I listened with care to the noble and learned Lord, Lord Simon of Glaisdale. However, I do not agree with him. We have a programme to get through and many amendments have been tabled. I know that it is late but, frankly, it is early in comparison to two of the Committee days last week. I believe we can go a little further. I shall try to exercise some restraint in the length of my speeches and I hope that that will encourage a precedent to be set. We shall try to make some progress because otherwise we shall be in exactly the same situation tomorrow night. I believe that we should make progress tonight as far as we possibly can, as has been agreed through the usual channels. I understand that the noble and learned Lord has tabled some interesting amendments to be discussed later and I understand his concern not to stay here too late. However, I rather fear that if we are to make progress we shall have to do just that.
Baroness Hollis of Heigham: I wish to support the Minister. I, too, feel that we should continue, at least past 11 o'clock tonight, and possibly later, because otherwise we shall certainly he here until gone midnight tomorrow. It seems only reasonable that we should try to get the bulk of the business done today if we can.
Lord Simon of Glaisdale: It is not ordained from Heaven that we have only two days on this Bill in Committee. Perhaps the Minister would say up to what hour he considers it reasonable—
Lord Carter: It is ordained from a much higher authority—the usual channels.
Lord Simon of Glaisdale: I am afraid that I do not quite know where I am at the moment, and my hearing instrument has come adrift.
The Minister has conducted this Committee stage to all our admiration. Perhaps he will indulge us by saying up to what hour he thinks it reasonable for the Committee to sit tonight on a Bill of this kind. However, I shall not hear what he says.
It is a matter of great joy to us that the noble Lord the Government Chief Whip has been honoured by being summoned to the Privy Council. This is an admirable opportunity for him to show his good will to the Members of the Committee.
On Question, Motion disagreed to.
[Amendment No. 29 not moved.]
The Deputy Chairman of Committees (Baroness Lockwood): Amendments Nos. 30, 31 and 32 have been wrongly marshalled. I shall call Amendment No. 31 first.
Earl Russell Earl Russell moved Amendment No. 31:
Page 25, line 40, at end insert:
("() costs incurred to support a young person in further or advanced education;").
The noble Earl said: I shall be very brief with this amendment because before we discuss it sensibly there needs to be discussion between the Department of Social Security and the Department for Education.
The liability to maintain a child continues only up to 18, but the need to pay a parental contribution for the child's university education extends well beyond that. The parental contribution may be considerable. A parent who is paying the parental contribution will need a departure in order to allow him to continue to do so. That may be in the interests of the children of the family as a whole.
Either the parent should not be bound to pay a contribution under the Department for Education regulations or, if he pays that contribution, the paying of the contribution needs to be taken into account by a departure under the formula. It is not of desperate importance to me which way that is done, but I hope that the two departments will succeed in getting their heads together and working out a way of making this work. We have enough problems in education with parents who cannot pay the parental contribution without adding any more. I beg to move.
Lord Mackay of Ardbrecknish: The amendment proposes a further ground on which an application for a departure might be made—that of costs incurred in supporting a young person in further or advanced education.
Clearly the Government acknowledge the importance of further education and of educating young people. However, we cannot accept that expenses incurred by parents for this purpose should be placed above their responsibility to meet the basic needs of their dependent children. That would he the effect of the amendment. Children who are dependent must take precedence over those who are no longer dependent. Young people who are in further education are no longer dependent. That is a rule which child support has in common with social security benefits. We have always made it clear that a parent's first duty is to provide for the basic needs of his own children, whenever he is in a position to do so.
Where a parent with care has young children for whom she receives child maintenance under the formula as well as an older child in college, she would receive no additional maintenance in respect of the student. It therefore seems illogical to allow an absent parent to apply for a departure on the grounds that he is contributing towards the support of a young person in further education.
It would be quite wrong to let the costs of higher education for an older child take precedence over the basic costs of supporting younger children.
We propose, and are introducing, a system for departing from the formula amount for child support maintenance because we accept that there are cases where the lack of recognition of specific expenses in the formula
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can cause problems for both absent parents and parents with care. We carried out a thorough review of the child support scheme, culminating in the issue of the White Paper in January. We listened carefully to all representations from Members of Parliament, Members of this House, parents with care, absent parents and their representative organisations.
The list of special expenses that we propose to allow through the departure system reflects our careful consideration of what appeared to be the areas of greatest concern during that review. There were minimal representations on the issue of costs associated with supporting young people in further education in the context of child support. I do not believe that it is necessary, therefore, to include those costs in a scheme intended as a safety valve to relieve areas of greatest pressure.
I have made clear on a number of occasions that the departure system is designed to deal with the issues that have been of major concern since the Act came into operation. It is not our intention to allow any conceivable expense to be cited as grounds for a departure order. To do so would be to return to a discretion-based free-for-all. Therefore, I cannot accept the noble Earl's advice that I should reconsider the matter and accept the amendment. I am afraid that I cannot accept it. I hope that he will withdraw the amendment.
9.45 p.m.
Earl Russell: I shall do the Minister the courtesy of taking that answer as a smokescreen behind which real thought can take place. It was a reflex answer. If, at the end of the day, it were to be the Government's considered position, it would mean that the children of all parents caught under the CSA would be unable to go to university. That consequence would not be in the public interest. It certainly would not be welcome in universities; and it certainly would not be welcome to the children.
The Minister's position could make sense only if the parental contribution rules were to be adjusted by the Department for Education in such a way that maintenance being paid under the CSA were allowed for in the contribution rules.
Has the Minister in fact already had any consultation with the Department for Education on the subject; or will he undertake to do so before the next stage of the Bill? If he says yes to that question, then I should be prepared to leave the matter there.
Lord Mackay of Ardbrecknish: I have not personally had consultations with the Department for Education on these matters. So far as I am aware, there has not been any formal consultation with the department. Maintenance is taken into account in the calculation of grants in much the same way as it was before the Child Support Agency was introduced. That, I believe, was the point made by the noble Earl.
I should add that in the context of child support, maintenance, as I have already said, is not an area where there has been most pressure for change. I have indicated that maintenance is taken into account. However, I shall certainly discuss with my honourable friend Mr. Alistair Burt the points raised by the noble Earl and ensure that the

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point that I have answered him on is correct. I refer to the fact of maintenance being taken into account in the calculation of grant.
Earl Russell: I am most grateful to the Minister for that reply. I believe that it creates the possibility of some progress taking place behind the scenes—which I think is the easiest way for it to be done.
There is, of course, a problem about the concept of a dependent child. Formally it may extend only to 18, but in practice any young person at university relying on a parental contribution is, from any practical point of view, dependent. Therefore we must either allow for that, adjust the parental contribution rules to take account of it, or deprive all those young persons of a chance to go to university. As I believe we all agree that that would be a pity, I hope that the two departments can get their act together and tell us at Report stage how jointly they would like to see the system working. Then perhaps we could discuss whether the system really will work.
With that, and with thanks to the Minister for the trouble that he has taken, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I shall now call Amendment No. 32 in the name of the noble Earl Lord Russell.
Earl Russell: I believe that Amendment No. 30 in the name of the noble Lord, Lord Carter, comes first.
Lord Carter: The grouping list may not be right.
The Deputy Chairman of Committees: Yes, it is.
Lord Carter Lord Carter moved Amendment No. 32:
Page 25, line 40, at end insert:
("() child care costs incurred by a person with care who is in full-time or part-time employment;").
The noble Lord said: I wish to move Amendment No. 32 and speak to Amendment No. 30. I am sure that the noble Earl, Lord Russell, whose name is on Amendment No. 32, will somehow find a way of entering the debate.
'The two amendments deal with child care costs as a factor in departure. The purpose is to ensure that parents with care who will suffer hardship as a result of staying in work shall be allowed access to the departure process to increase their maintenance where the money is available from the absent parent on the grounds of child care costs. It was debated in the other place, and rejected by the Government on the basis that child care costs are already taken into account in the carer element of the formula and through the provision of the new child care allowance for claimants on family credit.
I am sure that the Minister will advance the Government's argument which suggested that the carer element can be split between the cost of the parent looking after the child and the cost of paying a child minder or other carer. The Government propose that the carer element of £46.50 per week compares well with the average cost, as they claim, of child care of £40 per week. However, that would leave the parent with care just £6.50 to care for the child after paying the average child minder. We would argue that the carer element cannot be realistically assumed to cover the two expenses.
The Government have also suggested that it is unfair to place a greater burden on the absent parent. However, the Government have made provision for the financial circumstances of both parties to be taken into account before a departure direction is allowed. So the extra burden, in the Government's phrase, would only be asked of those absent parents who can afford to pay more maintenance.
The Government have also said that there was little evidence that the lack of child care expenses in the formula was causing difficulties. However, the monitoring from organisations suggests the contrary, particularly in cases where the parent with care is not claiming any benefit but is on a low income. The Government claim that in such cases the parents with care should have sufficient income, together with maintenance received from the absent parent, to meet the costs of child care. The amount of maintenance may be small. Ironically, the absent parent could have his maintenance payments reduced to reflect high travel-to-work costs, yet the parent with care will be unable to apply for similar work expenses to be taken into account.
The Government also argued in the other place that the increase in maintenance would be small; but for many lone parents who are struggling to make ends meet, any small amount would be most welcome, even if it only represented an increase of £2 or £3 a week. We argue that the actual costs are not taken into account. For example, a person with care who is in employment will receive the same level of maintenance, irrespective of whether she has to pay child care costs, as her income which is taken into account is considered before the child care costs. That is the point that I made earlier. Departure would not be granted where the costs had already been fully provided for by the standard formula.
If departure is to be operated in a just and equitable way, the extra burden would only apply to those absent parents who could afford it. Furthermore, absent parents who are having to pay child care costs in order for them or their partner to remain in employment would rightly gain from the amendment. As well as difficulties for low income second families, significant numbers of families separate with the father caring for one of the children and the mother for the others. In the situation where only one of the parents was working, that parent would pay the same amount of maintenance, irrespective of any child care costs incurred in remaining in employment.
It is an important point, it is significant for those who are affected by it. We feel that it should be rectified and that would be addressed by Amendment No. 32. I beg to move.
Earl Russell: I must confess to being out of date. I have not yet read the new report published last Friday by the Institute for Fiscal Studies and the Equal Opportunities Commission. I have been too busy preparing amendments to the Bill. If any of the arguments that are developed prove to be out of date for that reason, I should be grateful to have it pointed out.
I have no particular preference between Amendment No. 30 in the name of the noble Lord, Lord Carter, and my Amendment No. 32. The great glory of the amendments on child care is that they manage to square all the circles.

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I believe that they take the interests of the Treasury fully into account. My reasoning for that is like the reasoning of the Chancellor of the Exchequer in introducing the child care disregard on family credit in his Budget. That was a very welcome move by the Chancellor and the principles behind it were sound. It takes the interest of the taxpayer into account. It goes with the grain. It helps people to do what they want, rather than forcing them to do what they do not want to do. That is generally a far easier method of legislation from which to get results. That point is very far from negligible in its importance. It helps women to get back into employment. That is the ultimate justification of this amendment.
I argued at Second Reading that the 1991 Act tries to stand on a one-legged tripod. It tries to get everything out of the fathers, when what we need is a three-legged division between fathers paying what they can and mothers earning what they can. Most mothers tell us—and I believe that it is normally true—that they would like to return to work and start trying to support themselves if they could once get over the problem of child care.
Child care is extremely expensive. In our present deregulated labour market low wages are common, and when the Jobseekers Bill is in effect they are likely to become more common. Very often they do not meet the cost of child care. If we get people back into work, they will, of course, begin paying taxes. Being, as I have reminded the Minister many times, a taxpayer myself I believe that there is strength in numbers. I should like there to be more of us. That is in my interest; it would share the burden rather more comfortably. This amendment would satisfy all the interests concerned.
A study by Sally Holtermann from the Day Care Trust on which I previously relied, and which I know is known to the department, makes a case for arguing that the Exchequer would actually obtain a net benefit. I believe that the Institute for Fiscal Studies is slightly more cautious. I do not have the figures available. In either case, the costs would not be very great.
The Minister may choose to tell us that there is an adult personal allowance. There is, but it is not targeted. It is not proportionate to the amount that is actually spent on child care; so it does not provide the incentive to get into employment, the help to get over the hurdle and to float off benefit, which is what we really need.
This amendment is a central plank in our attempt to reassess what is being done under the 1991 Act. It is an attempt to share the costs round so that the burden in any one place should not be crippling. It is a constructive amendment. It is meant to help. I very much hope that it will be considered seriously.
Lord Mackay of Ardbrecknish: I do not think that there is much between us on the general matter of principle, of the recognition of the importance of child care, especially in the context of assisting lone parents back into employment. But I am afraid that I do not accept the need for such expenses to be incorporated into the departure system. Perhaps it will clarify why I do not accept that need if I explain how the current legislation makes provision for child care costs.
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When a maintenance assessment is made, the first stage is to calculate the maintenance requirement, the amount calculated as necessary to meet the basic needs of the child. The maintenance requirement is based on income support rates and includes an amount in respect of the fact that a child needs to be cared for. This carer element is £45.60 if the youngest child is under 11 years of age. Because the need for day-to-day care lessens as children get older, this amount reduces with age and is removed completely when the child reaches the age of 16. The carer element is designed to recognise that either the parent with care has costs, if she stays at home and provides care; or she incurs costs in providing for care, if she chooses to work. Thus, the formula already makes a significant contribution towards any childcare costs that may be incurred.
In addition, when a working person with care is eligible for family credit, up to £40 of her income can be disregarded, as the noble Earl pointed out, in assessing her entitlement to that benefit. Moreover, the family credit rules also allow the disregard of the first £15 of any maintenance received. The additional income provided by that disregard can be used towards the costs of childcare where such costs are incurred. Where the person with carer's income is above those levels, she should have sufficient income to meet such costs. To make any allowance in child support would be to duplicate the childcare provisions in family credit by allowing twice for the same costs.
Baroness Hollis of Heigham: I am speaking now from memory but perhaps the noble Lord would just confirm one point. Am I right in saying that if you receive maximum family credit, you are not effectively in a position to take advantage of the £40 childcare sum?
10 p.m.
Lord Mackay of Ardbrecknish: If you receive maximum family credit, yes, that is probably right. My recollection of this complicated matter is that that is right.
Baroness Hollis of Heigham: I am glad to have that confirmation. In that case, it would follow that those mothers who are on family credit and the poorer mothers, because they receive full family credit, would effectively have no additional allowance for childcare. Therefore the amendment pressed by the noble Earl and my noble friend Lord Carter is even more urgent.
Lord Mackay of Ardbrecknish: Yes, but they would still have the carer's allowance which comes from the maintenance from the absent parent because, as I explained, the carer element is £45.60 of the maintenance requirement in that regard. So, while my argument is that there should not be double counting, equally my argument is that there is already provision in the system, whether or not the parent with care stays at home. The money is not designed for her. I gather that that is one of the great aggravations of absent parents, who believe that it is designed for her. It is not designed for her as some kind of spousal maintenance. It is in fact designed for her as the carer of the child. If she chooses to work, then that money obviously is available for help in providing alternative care for the child, if that is needed. I think that that is quite clear.
Baroness Hollis of Heigham: That element is certainly clear. But then there is the ambiguity that if, for example, a mother was receiving full family credit (let us say, £60 or £65 a week) and she was in work receiving another £40, and getting maintenance of, say, £50 or £60, she would be getting the carer's element in maintenance; but because she was on maximum family credit she would receive no additional disregard for childcare. But if she was getting £20 or £30 less than that in family credit because she was earning more and she was also getting maintenance, she would then be entitled to an additional disregard on her family credit. In other words, those with the greatest need and maximum dependence on family credit are least likely to benefit from the childcare arrangements and childcare allowances that they would need to propel or lever them into work.
Lord Mackay of Ardbrecknish: That is an issue on family credit, whether or not we are talking about a parent with care. Here we are talking about the parent with care and the portion of the allowance that comes from the absent parent that is designed to represent the caring part as opposed to the direct payment, if I may call it that, to the child. So the payment has already been made.
I was saying that if the person with care is eligible for family credit, then up to £40 of her income can be disregarded. I use the words "up to" because I appreciate that that does not necessarily mean that £40 is available for every case. That is one of the complexities of family credit.
My principal argument is that included in the amount of money which comes from the absent parent is a portion which takes care of, so to speak, the carer element. If that element is present, then the parent with care either stays at home, and that sum helps to maintain her in her role of looking after the child, or chooses to go to work, when that money is available to help pay for any childcare that she needs while she is out at work. As I said, a parent with care on maximum family credit is unlikely to be working full time. That would mean, therefore, that she would not require the child to be looked after for as long as if she did work full time.
Earl Russell: Before the noble Lord, Lord Carter, decides what to do with his amendment, perhaps I can answer one or two of the Minister's points. I thought he would rely on the carer element. He said £45.60 but I believe he should have said £46.50. He did not answer my point that it is not targeted money. It is not in any way related to the amount actually spent on childcare. It is flat rate and goes to everybody. In fact, the Minister would employ money a great deal more effectively if he would concentrate it on childcare. Then it would provide the incentive effect and enable people to go out to work. That is the crucial point; that people who want to work should be free to do so.
There is an issue of human rights in this regard as well as convenience to the Treasury and everyone else concerned. If the Minister is not prepared to do it this way, then he may be prepared to consider a disregard on income support. He may remember that I made that point on the up-rating statement instantly when the Chancellor brought in his concession on family credit. I know he set his face against that, so I believe he should consider this
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instead. The trouble with doing it only on family credit is that we help only those who have got into work already and gone through the very slow process of getting family credit set up. I know that the Government are trying to speed that up, which I welcome, but it is a slow job. We need something that will get people back to work. I believe these amendments will; I do not believe that any of the alternatives the Government suggest would. I think this is better and I look forward with great interest to see what the noble Lord, Lord Carter, proposes to do with the amendment.
Lord Carter: The noble Earl will not be too surprised when I decide what to do with the amendments at this time of the evening and at this stage of the Bill. I am now responding to Amendment No. 32 in the name of the noble Earl, Lord Russell, and I have to decide what to do with it as I moved it.
A number of complicated points were made, not least by my noble friend Lady Hollis who made an excellent point about family credit. The Government are adamant on this matter. By reading what was said in the other place I tried to answer the Government's arguments which were made there. Not surprisingly, the brief put the arguments again and did not answer the points I made. Perhaps next time I should allow the Government to make the arguments again and then try to answer them.
We have not finished with this issue. I do not intend to press the matter to a Division now. It is an important point. The report produced earlier last week by the Institute of Fiscal Studies throws some light on the whole of the family credit argument, which is extremely complicated to build into the childcare point in the Bill. We shall have to try again. We shall certainly come back to it on Report. In the meantime I beg leave to withdraw Amendment No. 32.
Amendment, by leave, withdrawn.
[Amendments Nos. 30 and 33 not moved.]
Earl Russell Earl Russell moved Amendment No. 34:
Page 26, line 10, leave out ("an agreement between them of a prescribed kind") and insert ("a legally binding agreement between them").
The noble Earl said: In moving Amendment No. 34 I wish to speak also to Amendment No. 36, which is a related case. The amendments deal with grounds for departure. They deal with subsection (2), where agreements will be allowed which are of a "prescribed kind". The Committee will know that I am allergic to those words. It is a particular medicine which I do not wish to be prescribed. But it so happens that I also disagree with the policy intention.
I have been trying to lay my hands on the Government's excellently lucid memo to the Delegated Powers Scrutiny Committee. They say that they will not cover all agreements and that they intend to leave out some. They are not going to deal with all legally binding debts or agreements, only with a few. I believe that that is a mistaken decision, clothed in a discretion which is so generally worded that we simply cannot address it and try to persuade them to change their mind. That is making a mistake behind a smokescreen, which is confounding a felony. I beg to move.
Lord Mackay of Ardbrecknish: We are taking Amendments Nos. 34 and 36 together as both seek to remove the power to prescribe in secondary legislation various types of orders and agreements. I shall deal first with Amendment No. 34. It relates to departure applications on the grounds of financial commitments entered into prior to April 1993, that is prior to the coming into force of the 1991 Act. It is intended that such commitments can be cited as ground for a departure order but only where a clear agreement about the maintenance liability for the children was in existence. The rationale of the Government's proposal is that parents who thought the question of their child support liability was settled and entered into the commitment on that basis have been unduly disadvantaged by the child maintenance arrangements brought in by the 1991 Act. However, if no maintenance agreement existed there should be no question of meeting other financial commitments at the expense of support for children.
The sub-paragraph the noble Earl seeks to amend provides for the type of maintenance agreement which will allow a parent to qualify to apply for a departure under this ground to be defined in regulations. Despite the conclusion of the Delegated Powers Scrutiny Committee in its report, the noble Earl continues to press for regulation-making powers to be withdrawn. The proposed amendment would take away the power that enables the type of agreement entered into by absent parents and persons with care to be prescribed in regulations.
The effect of the amendment would be perverse in that it would allow a departure where, for example, the "legally binding agreement" was solely in respect of spousal maintenance with no agreement as to the maintenance liability for children, which is clearly not the intention of the provision. On the other hand, it would exclude other cases such as those where the parents had reached a child maintenance agreement via the old DSS liable relative arrangements. That is exactly the type of case which should be allowed to benefit from the provision.
Turning to Amendment No. 36, the delegated power which the noble Earl seeks to remove is required to allow for more detailed provision to be made for property and capital settlements which are not fully reflected in the formula assessment. The intention is that a departure will be considered if the "broad brush" allowance under the regulations introduced last April underestimated or overestimated the value of the transfer or because no allowance was made and the applicant believes that it should have been made.
This is a complex area and the list of provisions is likely to be lengthy, making it unsuitable for inclusion in primary legislation. It is therefore our intention to introduce regulations to define the type of property transfer which can be considered for a departure. For example, we may wish to prescribe that items such as a second-hand car, new and valuable items of furniture, jewellery, antiques and valuable paintings may be taken into account but not used household equipment or furniture with little or no resale value or the personal effects of the family who remain in the home.
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As with many aspects of the departure system, time and experience may indicate that some items should be added to or removed from the list. Members of the Committee will be well aware that changes can be made much more readily to regulations than to primary legislation and that they are therefore the most appropriate vehicle for dealing with this issue.
Regulations will, of course, be subject to the affirmative procedure since their exercise will directly affect access to the departure system. In common with the other delegated powers in the Bill, the case for this provision has been accepted by the Delegated Powers Scrutiny Committee. With that explanation of the sort of use that we shall make of the two regulation-making powers, I hope that the noble Earl will withdraw his amendment.
10.15 p.m.
Earl Russell: I very much hope that the Minister will take the Delegated Powers Scrutiny Committee quite as seriously as this when it finds against a Government Bill. The Government have been known—
Lord Mackay of Ardbrecknish: Perhaps I may remind the noble Earl about the decisions I took on the Jobseekers Bill in pursuance of what that committee said.
Earl Russell: That is a fair point, but I believe I said "the Government" and not "the Minister". I did not mean to make any personal reproach of the Minister. The example I had in mind was the provision in the railways Bill to override the hybrid instrument procedures of this House. The committee expressed itself very strongly on that. The Government were not impressed. If they have the right to a judgment separate from the committee, then, although I take the committee very seriously indeed, so must I. I was also expressing a doubt about the policy intention. Without a doubt about that, I would not have pressed this matter further.
Before leaving the subject, I refer to the Minister's statement that changes can be made more easily by regulations. He did not say by whom. The Government are not the only people who want to change anything in the whole of our legislative system. Occasionally, some of the rest of us want to address the need for change in a particular area. When the matter we wish to change is in regulations it is, as this House discovered on 6th July 1992, extremely difficult to do anything about it.
I am still not at all clear what agreements of a prescribed kind, or any other, the Minister wishes to disregard. I am not at all clear how he intends to set about it. I am not sure that I am happy about it, but I shall read what the Minister said a great deal more carefully and decide what I think about it then. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 35 and 36 not moved.]
Earl Russell Earl Russell moved Amendment No. 37:
Page 26, line 40, at end insert:
("() When considering an application for a departure direction under this paragraph the tribunal shall have regard to the contents of section 25 and 25A of the Matrimonial Causes Act 1973.").
The noble Earl said: Once more I begin to feel like Jack-in-the-box. This amendment again deals with grounds for departure. It attempts to provide that they shall be considered in terms of the eight factors listed in Section 25 of the Matrimonial Causes Act 1973. It is the same approach; namely, to subject the regulation-making power at the discretion of the Secretary of State to a certain number of general principles. As far as those principles are relevant, they include,
"the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; any physical or mental disability of either of the parties to the marriage".
Those involve bringing together again responsibility for spousal maintenance and child maintenance. I agree with the point made by the noble and learned Lord, Lord Simon of Glaisdale, many times tonight, that separating those two simply does not work. It is now seen not to have worked. That is one of the arguments for going back to a court system.
The Minister constantly denigrates the court system, but compared with what we have had since 1991, absolutely anything would be a good system. I may be held to those words, but I hope not. Certainly the court system, warts and all, as it existed before 1991 was a very paradise compared with what we have had since, largely because it did attempt to work in the way in which the noble Lord, Lord Renton, outlined earlier this evening in terms of general principles which could then be applied to specific cases. The Matrimonial Causes Act 1973 has provided us with a very good example of that which I believe is tried and tested and which has worked a lot better than anything under this Bill has ever done. I beg to move.
Lord Mackay of Ardbrecknish: As the noble Earl explained, this amendment proposes that, in considering a departure application on the grounds that there has been a property or capital transfer between the parties, the child support appeal tribunal will have regard to the contents of Sections 25 and 25A of the Matrimonial Causes Act 1973. Section 25 lays down the matters to which a court is to have regard in deciding on maintenance payments or property transfers on divorce and so on. Section 25A imposes on the court a duty to consider for how long maintenance to the former spouse should be paid.
The amendment would result in a rather odd situation in that the Secretary of State would not be required to have regard to that legislation although a tribunal would. So where a tribunal was considering an appeal against a Secretary of State's decision, it would apply substantially different criteria from those on which he had based his decision. I doubt the noble Earl, Lord Russell, intended that to be the effect. I think he was trying to aim at the more general point.
We have accepted that where a property or capital transfer was made and it is clear that part of that settlement was made in lieu, or as an early payment, of child maintenance, the financial effect of that transfer should be recognised and reflected in a reduction of ongoing child maintenance liability. We have decided that the reduction
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should be made as a departure from the formula where the "broad brush" formula adjustment does not properly reflect the effect of the transfer.
In considering such a departure application the Secretary of State will look at the monetary value of the transfer in relation to the maintenance position and reduce the maintenance liability on the basis of the financial effect of the transfer where it would be just and equitable in all the circumstances of the case so to do. Regulations may provide for certain factors which should or should not be taken into account in considering the question.
We do not intend that those regulations should be comprehensive or overly restrictive: the decision-maker must be free to exercise his discretion as he sees fit. It may be that we will feel it necessary to include in regulations some of the matters covered in Sections 25 and 25A of the Matrimonial Causes Act, and they will be discussed at the appropriate time when the regulations are before this place.
However, there are aspects of the Matrimonial Causes Act which we do not feel should apply in the calculation of child support. For example, the Matrimonial Causes Act requires a court to consider not just the current financial circumstances of the parties concerned but also their future financial circumstances in terms of their future earnings capacity and any future financial obligations they may have. It also includes the conduct of the parties as, in some cases, a relevant consideration. That could mean, for example, that a departure decision might be influenced by the question of which party was at fault in causing the breakdown of the relationship. We believe that the conduct of the parties should decidedly not be a factor in considering a departure. I hope that with that explanation the noble Earl will feel able to withdraw the amendment.
Earl Russell: I thank the Minister for that reply. He has gone unerringly for the most difficult points in the amendment. I understand what he says about conduct. It would in fact be appropriate only if we were fully reuniting spousal maintenance and child maintenance.
I take also the point that the Minister makes about the different criteria for the Secretary of State and the tribunal. It was not my intention but I told the Minister at the beginning that in trying to amend the Bill to bring it into line with our principles I am trying to pour new wine into old bottles. That is a notoriously unsuccessful process. The Minister has provided me with one good example of why.
The amendment was put down mainly in order to illustrate the principles which we would like to see, in general terms, to go into a fully redrawn Act on this subject. I accept that it is difficult to insert it into the Bill. I am sorry that it is so, but I understand why. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 38 not moved.]
Schedule 2 agreed to.
Clause 7 [Effect and duration]:
[Amendment No. 39 not moved.]
Clause 7 agreed to.
Clauses 8 and 9 agreed to.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 40:
Before Clause 10, insert the following new clause:
("Child maintenance disregard
.—(1) In section 36(5) of the Social Security Contributions and Benefits Act 1992, after paragraph (b), there shall be inserted the following paragraph—
"(bb) in calculating the income of a person claiming income support, a prescribed amount of any payment or payments of maintenance made or due to be made by—

(i) the claimant's former partner, or the claimant's partner's former partner; or

(ii) the parent of a child who is a member of the claimant's family, except where that parent is the claimant or the claimant's partner,

shall be disregarded;".
(2) At the end of that section, there shall be added the following—
"(6) In this section "partner" shall have the meaning prescribed."").
The noble Baroness said: We believe that Amendment No. 40 is one of the most important that is likely to be moved from the Opposition Benches. We ask that the principle of the disregard be established. I have half a dozen reasons and I am not sure which the Minister will take most seriously. Perhaps I may put forward a few of them.
First, lone parents and their children are very poor. Today 70 per cent. of lone parents are on income support and half are in debt with arrears in rent, fuel and social fund loans. Even a modest disregard of an extra few pounds a week would make a great deal of difference.
Secondly, not only are lone parents very poor but by losing benefit which pound for pound is being replaced with maintenance some become poorer still because they lose all passported benefits. They lose free school dinners, which could be worth £10 per week for two children; they lose health prescriptions for the parent although not for the children; and they face greater insecurity of income because they lose the guarantee of a weekly Giro. At the very least, a modest disregard would compensate at the point at which maintenance benefits equate to income support. At the very least, a disregard would compensate to some degree for the loss of passported benefits and would leave the parent no worse off.
Thirdly, the disregard will give absent parents an incentive to co-operate if children retain some of the allowance. The Minister will say that there is no evidence to prove that; but, equally, there is no evidence to the contrary. Certainly, anecdotal evidence suggests that that is the case. Furthermore, it is undeniable that it will give parents with care an incentive to co-operate. I believe that approximately 40,000 parents with care are refusing to co-operate with the agency and that the agency has found that only 46 per cent. have good cause. The Minister will correct me if I am wrong.
A possible reason for the refusal to co-operate is that the parent with care is better off with a benefit deduction of £9 to £10 per week and then striking a private deal with the absent parent for that £10 and another £5 or £10 on top. He is better off and she is better off; they collude in fraud and the children are better off in consequence. No one—certainly no one on these Benches—supports fraud
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or the abuse of the system. It is sensible for the Government to recognise that such fraud may occur and to take steps to make it less attractive to the colluding parents. The amendment will help to do that.
Fourthly, the amendment produces greater fairness between the parent with care and the absent parent. All the concessions, which were announced last autumn and which took effect in April, have been made to the sharp-elbowed absent parents. They have extracted concessions from the Government worth some £180 million. We do not begrudge those but as yet nothing has gone to the parents with care who are almost always poorer than the absent parents in terms of the effect of the Bill. A £5 disregard, for example, would cost £110 million gross or some £85 million net if displacing the back-to-work bonus. A £10 disregard, for example, would cost some £205 million gross or £180 million net. That is precisely the scale of the additional moneys that the Government were happy, or at least willing, to return to the absent parents.
I do not regard the softening of the impact of the Child Support Agency on absent fathers as an expenditure commitment on behalf of the Government. I regard it, and I will word it, as a reduction in savings. I regard the principle of the disregard in exactly the same way, no more and no less, as a sensible and reasonable reduction in savings. It is the difference between gross and net savings. It is an honourable difference, not yet one more expenditure item at which the Minister can wave a metaphorical calculator at these Benches. Indeed, given that some of the savings to the absent father are actually being paid for by the parent with care—so that there is a redistribution from the poorer off to the better off; for example, by delaying the date on which maintenance liability begins or by waiving the initial arrears—that equitable treatment is surely only fair.
Fifthly, the Government have accepted the principle of the equivalent of a disregard going to the parent with care but have rolled it up on the model of the Jobseekers Bill and labelled it instead a back-to-work bonus. This is meant to be a Child Support Bill and not a Jobseekers Bill. And yet the Government are responding by turning the disregard into a jobseeker's bonus instead of a child support disregard.
The Government say that by rolling up the disregard into a lump sum and calling it a back-to-work bonus, that creates an incentive for people to go back to work and that a disregard would be a disincentive. The assumption, of course, is that the lone parent's place is in the workplace even if children are as young as one to two-and-a-half years-old. We may argue about that.
I believe that the Minister misreads the situation very profoundly. What stops lone parents going back into work is not the possible disincentive caused by a modest disregard. It is much more significant and fundamental: it is that with very young children of one, two or three years of age, the parent with care might reasonably feel that those very young children have already lost a father and should not also be expected to lose a mother. With such very young children, it is a reasonable choice for the parent with care to want to bring them up herself at home. When the children are somewhat older and reaching nursery age, a parent with care may then be deterred from

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entering the world of work—as was argued by the noble Earl, Lord Russell, and my noble friend Lord Carter—by the high cost of childcare and, above all, the lack of jobs. Lone parents want to work, especially when their children approach and reach school age. The reason they often cannot work is lack of childcare and jobs. Almost certainly they will not be deterred by the possibility of a very modest disregard.
We agree with the Government that over time the only way for lone parents or parents with care to come out of poverty is for them to re-enter the world of work. There is no difference between us about that. But the point at which they are poised for somewhat greater financial comfort because they have re-entered the world of work is not the point at which they most need the rolled-up disregard which is labelled the back-to-work bonus. They need it before that happens—day in, day out, week in, week out, year in, year out, as they struggle to maintain a child on very basic benefits.
Finally, the assumption is that if one is receiving income support, one is not in work; if one is receiving family credit, one is in work and one can have a disregard. My argument is that that obscures the reality of part-time work. If a lone parent can find work, it is likely to be part-time and is more than likely, given the changing nature of the economy, to be for less than 16 hours per week. In that case, the parent continues to receive income support. Such a disregard would help that parent to meet the costs of childcare while holding down that part-time job and while receiving income support which will, at a later stage, allow the parent to springboard into work with longer hours and to move off income support into work plus family credit.
Perhaps I may remind the Minister of the array of reasons I have given in favour of this proposal. First, the lone parent is very poor and needs help. Secondly, by going onto maintenance and off income support, many parents will be poorer still because they will lose passported benefits. Thirdly, such a disregard would give not only the absent parent but, perhaps even more importantly, the parent with care an incentive to co-operate. Fourthly, it produces greater equity. The Government have already returned £180 million to absent parents and a modest disregard would be, in justice, a similar response to the situation and would represent net savings. Finally, parents need the extra help when they are not in work rather than when they are. I move this amendment as a just and equitable response to the poverty of parents with care. I beg to move.
Baroness Seear: Briefly, we on these Benches support the amendment. I cannot believe that the Minister will not also agree with the noble Baroness, Lady Hollis, that, however much one may want single parents to get back to work, it surely is not realistic—nor, I would suggest, desirable in most cases—that that should happen when the children are as young as one, two or three years. Although I do not know anything about such matters, it seems only common sense that, at that point, the mother should be aided, if she so wishes, to stay at home rather than have to seek work away from the home.
Lord Mackay of Ardbrecknish: I listened carefully to the speeches made by the two noble Baronesses on the o subject of supporting a maintenance disregard in income
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support. I appreciate the fact that the noble Baroness, Lady Hollis, feels most strongly that such a disregard is the right way forward. However, I do not believe that the noble Baroness will be surprised if I tell her that my colleagues and I hold equally strongly the view that a disregard is not in fact the best way to help families to improve their standard of living and normally, therefore, the quality of their lives.
I am not sure that I want to dwell on one of the arguments put forward; namely, that it might encourage absent parents to pay maintenance and so reduce the need for enforcement action by the Child Support Agency. I do not agree with that view. Many changes have been introduced to help absent parents; and, indeed, to help the parent with care. I am not entirely sure if the campaigns by at least some absent parents to frustrate the purposes of the Act have in any way been reduced. However, that is only one of the arguments.
My colleagues in another place have described how experience has shown—and I believe that we have discussed the matter here in this Chamber on a number of occasions—that the best way of helping families to improve their standard of living has been to ease the move from benefit dependency into work. We know from surveys of lone parents that the majority of them want to return to work. That was very clearly demonstrated in the work carried out for the original child support White Paper which was published in 1990.
The £15 maintenance disregard within the in-work benefits—that is, family credit, disability working allowance, housing benefit and council tax benefit—is, I believe, a better way of providing help to parents with care who want to work than a disregard in income support. Members of the Committee will be aware that the Bill contains a provision further to assist work incentives and help improve family income. The proposed maintenance bonus which is worth up to £1,000 will provide significant help to parents with care when they start work. I believe that the bonus will be welcomed by parents with care because it will provide them with extra cash at a time when it will be helping them to establish their independence to meet the bridge from being out of work to being in work.
The noble Baroness mentioned the expense of the disregard that she seeks. We estimate that a £5 a week disregard in all cases would cost £110 million a year. That is a considerable sum of money. We believe that the proposed maintenance bonus is a more imaginative and effective use of resources.
I believe that we should help parents to work when they wish to do so, and that we should provide assistance and encouragement to parents with care to make work financially worth while. We are creating an environment where parents with care can return to work if they wish to do so. The existing disregards in the in-work benefits and the proposed maintenance bonus provide the most effective way of providing help and incentives.
I appreciate that one of the other arguments put forward by the noble Baroness is that nothing has been done to help the parent with care. While I understand that argument—and, certainly, the vociferous voices have come from the absent parents—I should like to remind the noble Baroness that, as well as the maintenance bonus, the

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Government have provided some compensation for the parent with care on family credit or DWA if his or her maintenance is reduced as a result of changes in the legislation.
The grounds for departure also apply equally to the parents with care. For example, if a parent with care works and is liable to contribute to maintenance she can ask for a departure for her travel to work costs. I would remind the Committee that there are also some grounds for departure which are specifically aimed at the parent with care, in particular in paragraph 5 to Schedule 2.
I will concede that I am not arguing that a major shift has been made in favour of the parent with care, but at least I want to counter the suggestion by the noble Baroness that nothing in the Bill helps the parent with care. She also asked me about the numbers refusing to co-operate. Since the launch of the scheme, in 73,400 cases the parent with care has had good cause accepted and has not had to co-operate in seeking maintenance. In 18,000 cases the agency has not accepted the parent with care's refusal to co-operate and has imposed a reduced benefit direction.
I do not suppose the noble Baroness is too surprised that I am not accepting her amendment. I understand where she is coming from on this and her desire to help the parent with care, but I believe that other steps I have mentioned help the parent with care, especially in the transition into work and when the parent with care is in work, perhaps of a low paid nature—
Baroness Seear: The noble Lord has completely ignored the point about the single parent—the parent with care—with small children; for example, a baby and perhaps another child of one or two. I do not know anything about the noble Lord's personal circumstances but I cannot think that even if he were at home he would want his wife, if she had a child of under one and perhaps another child of two, to go out to work. If that is the only parent—for all I know she works morning, noon and night—surely she needs to be with the child. I am the last person to argue against women going out to work but there are circumstances in which that is quite unrealistic and, I should have thought, very undesirable, and this is one of them.
Lord Mackay of Ardbrecknish: As I think I explained in response to an earlier amendment, part and parcel of the maintenance calculations which are made by the agency are to take account of the fact that the child needs a carer—I think there is a nursery rhyme that runs something like that—and that carer requires some resources. That is one of the aspects of the total amount of money that the absent parent is asked to pay to the parent with care.
On the more general question of whether the mother of a one or two year old child should stay at home, I think I am in more than enough trouble with the legislation I have already put through the Chamber without adding to it by coming to a judgment on whether mothers ought to go out. to work if they have young children. Suffice it to say that
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my wife has extremely strong views on the matter, but I think I shall take a neutral position on that and say that it is a decision for the mother concerned.
10.45 p.m.
Baroness Hollis of Heigham: That was very prudent of the Minister. I shall come back to the phrase, "a decision for the mother concerned". I think that is the most useful phrase the Minister has uttered for the past quarter of an hour. I think the Minister made three points, one of which he dealt with lightly, the second of which he dealt with in a far more heavy-handed manner, and the third which he ignored altogether.
On the first point, I was glad to note that the Minister did not this evening belabour the question of cost. This is a welcome relief for which I give many thanks, but then it would have been a little impertinent of the Minister to have done so in the light of the fairly substantial hand-outs that the Minister had offered only a month or two ago. I recognise that it would have been inconsistent and graceless of the Minister to have given hand-outs a couple of months back and then to have belaboured the question of cost a couple of months on. At least a decent reticence prevails on that front and I think we are all appreciative.
The second point that the Minister made—which I think he did belabour—was that the Government had adequately, generously, substantially, usefully, undeniably helped parents with care, and that we were failing to recognise this. The evidence for that was, first, a back-to-work bonus—and we shall come to that later. That takes four years before one achieves the maximum sum. That is modelled on the Jobseekers Bill and benefits only those women moving into work, not those women out of work.
Thirdly, the Minister made the point about family credit. Perhaps he did not emphasise sufficiently the fact that the only changes made to family credit were for those affected by the April changes and the preceding changes in the formula. We shall return to that subject in subsequent amendments. Any later changes in maintenance payments will nonetheless not allow for subsequent changes in family credit.
We find that very worrying because, as the Minister will know, family credit is fixed for six months at a time and any discontinuity or erratic quality in maintenance payments will not be overcome by family credit. Therefore, the much vaunted changes in family credit the Minister mentioned are only a temporary smoothing so that, as we change the formula, parents with care will not be immediate losers. That is not to say that that is not welcome, but it is a once-and-for-all concession to get over the Government's difficulties and will do nothing to address the continuing problems of women on family credit. Therefore, that is not a serious contribution to women's welfare.
I note the point about the 18,000 people who did not have good cause and whose benefit was therefore deducted. That was half the number of 40,000 I had estimated. The Government were not able to address our concern that to some extent there was no financial incentive for women to co-operate with the agency, while

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not colluding with any fraud. The Government would perhaps persuade more of those women to work with the agency were they to have a disregard.
The Government handled the argument in relation to cost lightly. That was wise. The argument that parents with care are being treated generously is not true. I wish to return to the original arguments, which were well made by the noble Baroness, Lady Seear. We all agree that over time the best way for a single parent or parent with care to move out of poverty is to get back into work. There is no doubt about that. However, while they have very young children, perhaps tiny children of six months or 18 months, while child care is not available or affordable, and given the present economic situation in which appropriate jobs are not available, such parents cannot move into work. If they cannot work they are dependent on maintenance. If they are dependent on maintenance they need a disregard now, not rolled up, at the time when they go to work, and they are moving up two or three steps on the ladder and beginning to look forward to a period of relative prosperity.
I think that the Minister agrees with us but is stuck with his brief. He is stuck with the brief because the Jobseekers Bill has cast a long shadow over this Bill. As a result, we have the bright idea of a rolled up, back-to-work bonus. A hack-to-work bonus in the context of jobseekers is relevant. One is dealing for the most part with unemployed men who are moving in and out of the labour market. There is something to be said for a back-to-work bonus which helps to overcome the immediate problems of the costs of getting back into work. That is not the situation with lone parents who are carers. They need the money now, not at the point when their situation is going to improve substantially because they are going into work.
I should like the Minister to respond, because this is one of our most serious anxieties with regard to the Bill. We part with the Liberal Democrats on the issue. We support the principle of a child support agency. We do not begrudge the changes which occurred earlier this year to help absent parents, because we believe that many of them had a good case and were hard done by under this Bill. However, we believe with all our hearts that the Government have not recognised with equal clarity the situation of parents with care. They have not done so because those parents with care, being mothers, do not walk away from their children, do not go on strike, do not abandon their kids, do not "sharp elbow" and do not harass the Minister at public meetings. Had they done so, we might have had a disregard by now.
I hope that the Minister will respond once more. It is a matter about which all noble Lords on the Opposition Benches feel strongly. I believe that in his heart of hearts the Minister would prefer to be on our Benches on this issue. I hope that the Minister will respond to me.
Lord Mackay of Ardbrecknish: The noble Baroness is at her most beguiling. I am not entirely sure what I can add to the previous arguments. I have some sympathy with the point she made about the parent with care, and the fact that by definition inevitably the parent with care has had to shoulder the responsibility of the children on her own, and so on. However, I sought to explain why I do not believe that we should have a disregard on income
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support and why I believe it is more important to concentrate on incentives (if I may so call them) to help the parent with care back to work vis-à-vis the bonus. That bonus accumulates. If the parent with care goes into work at any stage, she will be able, so to speak, to cash that figure up to the maximum. I believe that that is important when helping the parent with care into work.
The maintenance disregard on family credit and the like is equally important because in many cases, especially if the children are young, the parent with care is likely to want to work part-time and therefore is not likely to be earning the considerable amounts of money which she might earn if she were able to work full-time. Therefore I believe that the £15 maintenance disregard is important.
The noble Baroness sought to inveigle me to her side by trying to win my sympathy for the parent with care. In many cases she already has my sympathy for the parent with care who is left to bring up the children on her own. However, my sympathy will not quite extend to agreeing with her on the amendment.
Baroness Hollis of Heigham: With reference to the Minister's care and discretion from reading the gaps and listening to the silences in what the Minister said, I think we can deduce the Minister's own views to which no doubt we shall return.
Basically, the Minister has offered us only one argument in this second round: that a modest disregard would be a disincentive to go back to work. He knows that that is psychologically as well as empirically simply not true. What stops a lone parent going back to work is that the children are too small and child care is unsatisfactory. If relatives are around, it is possible that she will try to do so; otherwise the children are too small and the child care is unsatisfactory. Most lone parents go back to work when the children reach school age. That is a fact. The average time a lone parent spends on income support is only about two and a half years. That is evidence enough that income support, dependency on a benefit, is a passing phase when the children are very small and the mother cannot realistically leave them to go to work. That is the time at which her poverty is most acute; it is the time when her isolation is most acute; it is the time when she most needs the disregard.
I had thought that, despite the occasional double dose of original sin, the Tory Party were at least the party of the family. That is clearly no longer the case. The Tory Party has become the party of "the lone parent's place is in the workplace" concept. Frankly, little attention has been given by the Government to the welfare of the child. That surprises me coming from the Minister and from that party.
Clearly we shall return to the issue with, I hope, many more voices at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [The child maintenance bonus]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 41:
Page 9, line 17, at end insert:

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("(k) 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: The amendment ensures that where the agency has failed to collect maintenance on behalf of the parent with care, the parent with care would not be penalised by receiving a reduced lump sum on her return to work. The Minister may tell us that we misunderstand the Bill and that the parent with care will receive the full lump sum notwithstanding, in which case we shall be delighted. However, I fear that the Government may argue that maintenance can only be paid in a lump sum that has been collected. If it is to work effectively as a return to work measure, the agency will need to guarantee it; otherwise parents with care who know that their maintenance has not been collected, due to no fault of their own, will have no such incentive.
If the agency were to pay out the lump sum, the mother would have a modest incentive to go back to work and there would be a bigger incentive for the agency to collect the money from the absent parent and to enforce the measure where necessary. I beg to move.
Lord Mackay of Ardbrecknish: Although I shall not go into detail, the amendment is a little defective to do what I believe the noble Baroness seeks. As she clearly said, the noble Baroness wishes the weekly bonus to be paid regardless of whether maintenance is actually paid. It should be based therefore on the maintenance assessed rather than the maintenance paid. I shall not go over the arguments in favour of the maintenance bonus; I did that in the last debate.
I wish to try to help alleviate some of the concerns which the noble Baroness has in proposing the amendment. Our plans are that a credit of £5 a week will accrue for each week in respect of which maintenance is paid (or a credit of the actual amount of maintenance paid, if that is less). Where an absent parent pays his maintenance weekly, on time and in full, then it is quite easy to see that a parent with care will accumulate a bonus up to the maximum rate of £5 a week. But we will have to deal with circumstances where payment is not weekly, not on time and not in full.
For example, non-weekly payments may be because the absent parent pays monthly and therefore the Child Support Agency would have to take that into account. People pay every two weeks or every four weeks, as well as monthly. We shall have to look at the payment made over the agreed charge period and translate it to a weekly equivalent. That should not cause a problem. However, a payment might be late and added to a later period. Our aim will be to recognise that such arrears also count towards any bonus due. I hope that that answers some of the concerns of the noble Baroness.
What happens will be complex, I fear, because sometimes people will make sporadic payments, under-payments, arrears, all over a prolonged period. It will not be so obvious what bonus is due. Nevertheless, our aim is the same: to allocate a bonus accordingly for the period over which payments are made.
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Perhaps I have not gone quite so far as the noble Baroness, because I say that the bonus should be accumulated if the maintenance is paid. However it is paid, we shall try to accommodate the situation, whether it is paid late, paid in arrears, paid weekly, monthly or whatever it is. I am not sure whether the noble Baroness was inviting me to go further—
Baroness Hollis of Heigham: Yes, I was.
Lord Mackay of Ardbrecknish: I was trying not to be too positive about it, just in case; but I am sure that she wished me to go further and allow the bonus to accumulate, even if the maintenance is not paid at all. I do not think I can go that far. However, I hope that there will be few absent parents who will not split the responsibilities and pay their maintenance and therefore allow the bonus to be accumulated. We all hope that through the improvements made in the agency, it will be able to pursue the absent parents who seem reluctant to pay their dues and will ensure that they pay and that the bonus will be collected for the parent with care, if she returns to work.
While this does not go so far as the noble Baroness wishes, I hope that it is helpful and will show that I am going some of the way in addressing her anxieties.
Baroness Hollis of Heigham: It does not quite do that because all that the Minister said or conceded is that if any money is paid in the course of one month, six months or a year, it will be apportioned to the weekly bonus base. I had taken it for granted that it would; it is just a question of our computers dealing with it properly. What I was concerned about was where the agency was the collection agency, and where the collection had failed to take place, either because the CSA was inefficient or because the absent parent had managed to avoid making maintenance payments or where maintenance payments had fluctuated for whatever reason, nevertheless the back-to-work bonus would be protected in the circumstances where any failure to pay was no fault of the parent with care. Can the Minister give us some helpful move on this?
11 p.m.
Lord Mackay of Ardbrecknish: I do not think I can. It is all predicated on the fact that the absent parent pays, as the noble Baroness accepts. So long as he pays, we shall try to equate how he pays with the bonus.
In the case of an absent parent declining to pay and somehow or other still managing to elude all the powers of the agency to call him to account and make him pay—and I hope that such cases will be a very small minority—I do not think that we could pay the bonus because the principal condition is not being observed; namely, that the maintenance is being paid. It is out of the maintenance paid that the £5 bonus rolls up. I know that that will disappoint the noble Baroness, but I hope that I have made my position clear.
Earl Russell: Before the noble Baroness replies, I should like to take up the Minister's description of those who do not pay maintenance as failing to face up to their responsibilities. It sounds awfully like the sort of language that was used about those who did not pay the poll tax. When the Minister talks about using all the

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resources of the agency to ensure collection, his language sounds remarkably like that used by the noble Baroness, Lady Blatch, in 1991 to justify continuing to chase poll tax defaulters. Will the Minister take warning from that example?
Lord Mackay of Ardbrecknish: There is a world of difference between how one levies taxation for local government—we could go over all that argument again—and the responsibilities that parents have to their children. That may mark me out as being rather old-fashioned, but I believe that parents have that responsibility and that they should address it when they are separated so far as their means allow.
Earl Russell: In using the words "so far as their means allow" the Minister makes a rather crucial concession. Will he think through the implications of that concession? Will he think it possible that their means may not always allow them to do what is assessed in the formula?
Lord Mackay of Ardbrecknish: My words should not come as a revelation. I have used words such as "ability to pay" at times today. It depends, I am afraid, on the definition of "means allow". The definitions are in the formula, and within the departure system it would appear that a minority of absent parents, reports about whom I have read over time, think that they should decide how much they pay. I do not believe that they should be given the opportunity to define the expression "means allow".
Earl Russell: What if their bank managers try to define what their means allow?
Lord Mackay of Ardbrecknish: I shall not go any further. I do not see what the bank manager has to do with it, unless he is an absent parent.
Baroness Hollis of Heigham: Am Ito take it from the Minister's reply that the only broadly conceivable circumstance in which the parent with care would not get the back-to-work bonus is if the absent parent refused to pay? In other words, if there were errors, mistakes, delays or ineptitude on the part of the agency in enforcing and collecting—and I have to say that we do not have a lot of confidence so far in the agency's performance in some of those roles—the parent with care would not find herself losing her bonus because of faults that could be largely attributed to the agency. Is it correct that only in circumstances where the absent father was solely to blame would she lose the bonus but where the agency was in any sense a contributory factor, the Government (the taxpayer) would shoulder that responsibility and make up the bonus? Can we at least get that point established?
Lord Mackay of Ardbrecknish: We are beginning to go down quite difficult roads. I made clear the general principle that the absent parent must pay for the bonus to roll up. 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.
Baroness Hollis of Heigham: I am delighted for the Minister to do so. In that case, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
Clauses 11 to 17 agreed to.
[Amendments Nos. 42 to 44 not moved.]
Earl Russell Earl Russell moved Amendment No. 45:
Before Clause 18, insert the following new clause:
("Absent parents: non-residence with child
.—(1) Section 3 of the 1991 Act shall be amended as follows.
(2) In subsection (2) (a) after "child" there shall be inserted "or expected to reside with the parent with care as soon as he can reasonably be expected to do so".").
The noble Earl said: In moving this amendment, I should like to speak also to Amendments Nos. 46 and 71. These amendments, or the major part of them, like so much else in my amendments result from a case which was in my postbag last week. Last Tuesday I wrote to the Minister, with a copy to Mr Alistair Burt, about that case. If the Minister's desk is anything like mine, my letter will not have worked to the top of the pile just yet. I do not blame the Minister for that. I apologise for not having written to him sooner, but I could not write until I got the case.
The case concerns a pair of teenage lovers who became parents and were left responsible for an infant, for which both of them wished to assume responsibility. In effect, they had practically no income to do so. The two sets of parents were both supportive. The couple continued the relationship while living with their parents, in the hope of finding a place where they could live together as soon as their means allowed them to do so. Meanwhile, for reasons which I am still seeking—I have only just received this case, so I do not yet have them—an assessment was placed on the young man on the ground that he was an absent parent, even though there was a continuing relationship and continuing responsibility.
The couple now have a housing association tenancy together. They have the kind of wages that teenagers can expect and they are saddled with arrears of £2,600. The absent parent's mother wrote to me and pointed out that, at the current rate of repayment, that is likely to take the young man more than the whole of his natural life.
It seems to me that mistakes have been made in that case. There are more mistakes, which are the subject of later amendments. It seems to me that calling a person an absent parent because he is not physically residing in the same building may be an unduly simplistic way of deciding who will be an absent parent. That is the point of Amendment No. 45, which provides that a parent who is expected to reside with the parent with care as soon as he (or she) can reasonably be expected to do so should not be construed to be an absent parent.
In this case it should be the responsibility of the parent with care who, after all, knows a good deal more about the matter, to decide what the allegedly absent parent can afford to pay. There would have been no difficulty in interpreting the provisions of the amendment. The couple were looking for a joint tenancy, which they have now found. The intention to live together was manifest and both their sets of parents would have vouched for it.
Amendment No. 46 deals with a similar matter. It provides that people should not be held to be absent parents and brought within the system of the Act under

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the age of 18. Most of them simply cannot cope with the liability at that age. That would be without prejudice to any continuing liability after they reach the age of 18.
I decided to insert in the same amendment, because the principle is the same, an exception for full-time students. In 1991, until we dealt with the regulations, I did not realise that full-time students were expected to come within the scope of the Act. By that time it was too late to table an amendment to take it out because of course regulations by their nature cannot readily by amended. If it had been in primary legislation, it would have been a matter of a major debate in this Chamber, and probably a vote. The Government may even have thought twice about it.
The Minister knows how hard up most students now are. I can tell him. If one has to advise a student, one advises him or her in their own interest. Were any pupil of mine to become the subject of the Child Support Act, I would instantly advise them to withdraw from university, which would not be in the long-term interests of the parent with care. The long-term amount of maintenance that the young man might be able to pay would undoubtedly drop. In their present financial state, the application of the Bill to students is unjustifiably harsh and I hope that the Minister will think again about that.
Amendment No. 71 provides that when the absent parent and the parent with care shall resume or take up residence together, there shall be a discretion to pardon any outstanding arrears. In that situation, the parent with care who knows the circumstances, who knows what she can and cannot press the man to do, is a much better judge of how much of these arrears it is reasonable to try to get out of him than the Secretary of State can ever be. That provision would save a considerable number of marriages. This is a package of amendments which deserve serious consideration.
Lord Mackay of Ardbrecknish: Let me say, first, to the noble Earl that I have indeed received his letter and my honourable friend Mr. Alistair Burt replied to it this morning. I fully appreciate that, given the pressure of work we are under today, the noble Earl has not had a chance to see the letter, if it has actually caught up with him.
I shall not deal with that question because, as the noble Earl knows, I am bound by the rules of confidentiality in replying to him about an actual case, as is my honourable friend. And it was not either of the parties to the case who wrote the letter to the noble Earl. However, I hope I can help him or at least explain some of the aspects of principle as I respond to the amendments before us.
These amendments seek to remove the liability of absent parents to pay maintenance in a number of circumstances. Amendment No. 45 is intended to remove liability for child maintenance from an absent parent who, although not living as part of the family of the child to be maintained, is likely to do so in the near future. I understand the intention of this amendment and at first glance it might seem reasonable to suppose that where the absent parent is clearly going to rejoin the family in the near future, he should not be pursued by the Child Support Agency. However, such an approach would undermine
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the first basic principle of the 1991 Act; that is, that each parent is responsible for maintaining their children. It would be wrong to create a situation whereby a parent could remove his responsibility to maintain his child merely by making a commitment to rejoin the family at some stage in the future.
Where the parent with care is receiving income support, the cost of maintaining the child would fall wholly on the taxpayer. The logical corollary of treating a parent as "not being absent" for child support purposes, would be to do the same for benefit purposes. That is, an absent parent who benefited from this provision ought to have his resources aggregated with those of the parent with care when assessing any claim to benefit that the parent with care may make. I doubt if that is what the noble Earl would wish.
In addition, this amendment would create an incentive for contrived separations, which would be very difficult to detect. Parents with care would be able to claim benefit for as long as both parents could convince the CSA that they intended to reconcile in the near future. We believe that the introduction of the agency has had a marked effect in reducing the number of benefit claims arising from such fictitious desertions. The amendment would introduce a loophole for such claims to proliferate again.
The effect of Amendment No. 46 would be to remove from the ambit of the child support legislation absent parents who are not yet over 18 or who are students. For the children of such parents, there would be no recourse through the Child Support Agency, and those caring for them would be forced to seek maintenance through the courts.
The provisions of the child support legislation are intended to give a fair and reasonable assessment of maintenance in a wide range of circumstances. There is no reason why such assessments should not apply to young people and students, some of whom are financially perfectly well able to support their children. There can be no justification for removing the duty to provide for one's own child simply because a parent is young or a student. If such an absent parent has a low income, his child support maintenance will also be low, or even nil. Students are assessed on the same basis as anyone else, but if grant is their only form of income, the assessment will be nil.
Amendment No. 71 provides that in cases where the absent parent and the parent with care are reconciled and living together, arrears of maintenance may be waived. Clearly, the continuing collection of arrears would, in cases where they are not in receipt of benefit, merely result in a transfer of money within the household with no overall benefit to either party.
The position is a little more difficult if the arrears are not due to be paid to the parent with care because she was receiving income support at the time they should have been paid. It is not right that the absent parent should evade his liability, and the taxpayer foot the bill for the unpaid maintenance, just because the absent parent and the parent with care are now living together.
However, the existing legislation already gives the flexibility sought by this amendment as the agency always has discretion as to whether to continue collecting maintenance and arrears. In cases where there is no benefit interest and the parent with care states she does not

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wish collection of the arrears to be pursued, action will be suspended, rather than the arrears being waived. Should the parents subsequently separate again and the parent with care ask for it, action to collect the arrears can recommence, subject to the six-year limitation period.
In cases where the arrears are due to the Secretary of State rather than the parent with care, careful consideration will be given to the question of continuing to pursue arrears if the parents are now living together. Because decisions relating to collection are discretionary, regard will always be had to the welfare of the child and there may be some cases where it would not be appropriate to proceed for that reason; but equally there will be cases where the absent parent can afford to pay the arrears with no implications for the welfare of the child. In such cases the agency will always seek to reach an agreement with him about repayment. It would not be right in such cases for him to expect the taxpayer to meet his liability.
I hope that I have gone some way to answering some of the noble Earl's concerns. If I heard him aright, perhaps the advice that he should give to that fictitious student (if he is on a grant) should be reviewed in the light of what I have said. With those explanations, I hope that the noble Earl will withdraw his amendment.
11.15 p.m.
Earl Russell: I am, as always, very grateful to the Minister for the trouble that he has taken, and in this case grateful also to his honourable friend Mr. Alistair Burt. That letter had not arrived at one o'clock, but if it was written this morning, that is hardly surprising. It may now have arrived but, as the Minister said, we have been otherwise occupied since then.
I understand what the Minister says about confidentiality, and I agree with it. However, I think that the Minister misdescribed the purpose of my amendment. He said that Amendment No. 45 was designed to remove the liability of the absent parent. It was not. It was designed to redefine the "absent parent" so the parent should not be construed to be absent because I thought in this case that the application of the term "absent parent" was misleading, inaccurate and inappropriate. If that was my intention, I was not trying to subvert any principle of the 1991 Act. I should like to, but I was not trying to do it here. It is only if one begs the question and assumes that the parent was absent that one subverts any principle of the Act at all.
The Minister should look again and consider some criteria, other than physical absence, before deciding whether a parent is absent, otherwise he will be having all the members of the Merchant Navy construed as absent parents, and that is not what he intended.
Abrogation depends on the case. It would need to be decided on a case-by-case basis. As regards contrived separations, I know that we keep hearing about collusion, but I have yet to see a single authenticated case. If the Minister has an example perhaps he will send it to me and I shall be glad to look at it. But even if there were collusion, I believe that people are often better judges of their own best interests than any Secretary of State or agency. If people are forced to act against their own
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interests to the point where they are unable to remain together or in employment, that is not in the interests of the taxpayer either.
The Minister took me back to 1991 in considering students. I understand the principles that they are not subject to the provisions as regards their grants, but they are for any additional earnings. But since no student now can live at university without income beyond grant flow—about £1,000 above the two together—if they do not have additional earnings they cannot remain in the department. That is the kind of case which lands on my desk over and over again, practically every week of every term. So if they then have to pay maintenance on their additional earnings, they will be set on something like the curve of the pursuit of Calculus, running towards an object which is going in a different direction so they are perpetually chasing after a point they cannot reach.
No, I shall not withdraw the advice I give to any student in that position. The Minister is entirely without information on quite how hard up students are. I can give him plenty if he wants it. However, what he said about discretion and arrears I found rather encouraging. Suspending arrears for people who like to live in a law-abiding manner is not the same as wiping them out. It has a Damoclesian effect. Although the discretion is welcome I wonder whether the Minister understands quite how big a burden is placed on the agency. I do not know whether he understands how difficult it is for the agency to keep up with the weight of cases, the bulk of paper, the number of phone calls and the number of different types of decision which have to be made. So although the agency has a discretion, I wonder whether it has the time to exercise it. But that is not a question to be pursued on this amendment. I give way to the Minister.
Lord Mackay of Ardbrecknish: I ought to make clear one point which the noble Earl mentioned in his speech and again in his response. I would not like it to get out that Merchant Navy men, for example, when away from home, are immediately treated as absent parents. Perhaps the noble Earl will not mind if I say a word or two about that. Men, like those who work in the Merchant Navy and work away from home, usually support their families while away. If they do not do so and if the mother claims benefit, then she will be required to co-operate in seeking maintenance unless there is risk of harm through undue distress, and so on. If the mother does not receive financial support while the father is working away, and does not claim benefit, she will be able to make a voluntary application for child support provided she does not have a court order or a written maintenance agreement predating April 1993. That deals with the minority of cases, but in the great majority where people work away from home—my noble friend Lord Lucas has pointed out that we are doing a fair amount of that—as long as they are maintaining their families then the fact that they are working away from home is neither here nor there.
Earl Russell: I am grateful to the Minister. In conceding that a person who is not physically present does not automatically become an absent parent, he may have opened a wider door than he realises. I hope that the Minister will look to see what goes through that door, but that is not to be pursued now. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
Earl Russell Earl Russell moved Amendment No. 47:
Before Clause 18, insert the following new clause:
("Authorisation to recover maintenance,
.—(1) Section 6 of the 1991 Act shall be amended as follows.
(2) In subsection (1) for "shall" substitute "may" ").
The noble Earl said: With the leave of the Committee, I should like to take Amendment No. 47 in a group with Amendments Nos. 48, 49 and 50. I beg the pardon of the Committee for not having formally grouped them, but it seems to me that they can be dealt with together, and at this time of night one might as well save time if one can.
The effect of Amendment No. 47 is to put the 1991 Act on a permissive basis. That is something that I proposed in 1991. I shall not soon forget the expression of horror that that provoked in a quarter to which I am not at present allowed to refer. It would have saved a great deal of trouble had it been done. The point I am making, that people are usually the best judges of their own interest, is one which has a good deal of force.
Amendment No. 48, which comes with Amendment No. 47, would remove the power that the Secretary of State can override a harm and undue distress provision on the request of the parent with care. If the Minister reads any of the literature that comes out of women's refuges, he will appreciate the incredible generosity and sometimes optimism which affects many women who have been the object of violence. There are a good many who might well request the Secretary of State to override the harm and undue distress provision, because they were, as so many women in refuges have been, prepared yet again to exercise trust. A great deal of that trust will be misplaced, and if that happens, a vast cost will be created to public funds. I believe that that provision of the 1991 Act was mistaken.
Amendment No. 49 deals with the maintenance application form. We have been over that in this Chamber a good many times. The maintenance application form has not always made clear, and people dealing with it have not always made clear, that parents have the right to refuse to give the name of the father because it might cause harm and undue distress. I have written to the Minister's honourable friend, Mr. Burt, about such cases a great many times. I have never had one word of complaint about Mr. Burt's replies.
The problem here lies not in government. The problem lies altogether at a lower level. The problem is with Jacks-in-office, using their little brief authority to inflict harm, to inflict pain on people subject to them. It is not necessarily particularly common, but such people occur in all walks of life.
We have had a great many ministerial assurances on this point. Those assurances were given in complete good faith and with complete good will. I am telling the Government that those assurances have not proved sufficient to bring such a practice to a stop. Because they have not proved sufficient, and because I am certain of ministerial good will on this, I ask the Government whether they will think of something rather more
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stringent to make absolutely certain that every woman who has a maintenance application form knows about the harm and undue distress provision.
The proposal in the amendment for typing the provision of harm and undue distress on the form in bold type seems to me as effective as anything I can think of. If the Minister thinks, for any technical reason, that that will not work, I shall listen to him. But I very much hope that he will think of something equally clear and equally unambiguous, because what has been done on this so far, well-intentioned though it was, is not enough.
I think that I had better not speak to Amendment No. 50 for a moment because I do not have my hands on my Keeling schedule. I beg to move.
11.30 p.m.
Lord Mackay of Ardbrecknish: It may be for everyone's convenience if I deal with each amendment in turn, as did the noble Earl.
The purpose of Section 6 of the Child Support Act is that parents with care in receipt of relevant benefits should be required to co-operate with the agency in pursuing maintenance from the absent parent unless there is a good reason for her not to do so. Just as it is right as a matter of principle that an absent parent should pay child maintenance if he can afford to do so, so it is right that a parent with care should not refuse to co-operate in the pursuit of maintenance without good cause.
The wording of Section 6(1) adequately reflects its intention. The noble Earl's clause would amend Section 6 to provide that parents with care could decide for themselves whether or not to give their authority, even though there might be no good reason why they should not give it. That is not reasonable. If a parent with care has a genuine reason why she should not give her authority, she is given ample opportunity to make representations and these are carefully considered. In any case, the amendment would not prevent the imposition of a reduced benefit direction where a parent with care had unreasonably withheld her authority and so it would make no material difference to the outcome. There is no need for any change to the wording of Section 6.
I turn to Amendment No. 48, which would remove subsection (3) so that parents with care could no longer ask the Secretary of State to pursue maintenance in these circumstances. There may well be instances where a parent with care wishes maintenance to be sought from the absent parent, even though the Secretary of State considers that harm or undue distress might result. She may well feel strongly that the absent parent should not be freed of his responsibility to support his children. It would be wrong to remove the means by which she would seek to obtain maintenance. The present provision is entirely voluntary and it is right that where the mother wishes it, in the full awareness that she does so of her own volition, maintenance should be pursued. If she later changes her mind, she can ask the Secretary of State to withdraw the requirement. He will comply with that request where he considers that harm or undue distress might result.
Amendment No. 49 would amend Section 6 so that all maintenance application forms would be required to carry the full wording of the key harm and undue distress

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provisions. These provisions are already carefully explained to the parent with care before she is sent an application form and asked to give her authority. All those parents with care who are likely to be required to give their authority are sent a letter which fully explains in day-to-day language the requirement to authorise the Secretary of State and the harm and undue distress provisions. The letter includes a declaration which the parent may return to say whether or not she wishes to make representations about harm or undue distress. If the parent makes representations they are investigated. If the Secretary of State agrees that there would be a risk of harm or undue distress were she to give her authority, that requirement would be waived and the matter goes no further—
Earl Russell: I am grateful to the Minister for giving way. He has described accurately what should happen. I am telling him, as I have told him a great many times before, that in a great many cases it does not happen. That is the problem that I am bringing to his attention.
Lord Mackay of Ardbrecknish: I have tried to explain that all the parents with care who are likely to be required to give their authority are sent the letter. If the noble Earl tells me that that is not the case, I shall certainly pursue that matter during the next day or two. I shall not promise to pursue it tomorrow because we have business in the Chamber. I shall certainly check that matter.
The maintenance application form pack includes a general explanatory leaflet and a set of helpful notes, which also again explain the harm and undue distress provision in straightforward terms. I believe that the present arrangements to advise parents with care of their legal rights are fully adequate and that there is no need to reproduce the wording of the harm and undue distress provisions on maintenance application forms. Parents with care are given information about the provisions both before they receive the application form and later with the notes accompanying it. However, I will look into the matter raised by the noble Earl. To include on the application form an extract from the Act is entirely unnecessary and, I suggest, the legalistic wording may be intimidating for some parents with care.
No parent with care is required to give her authorisation without the agency first giving careful consideration 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 considers that she or any child living with her will be caused harm or undue distress, if it remains in force, she can ask the Secretary of State to consider the position. If he accepts that there is a risk of harm or undue distress, he will lift the requirement.
I gave some figures earlier to the noble Baroness, Lady Hollis, about this matter. I believe that something like 73,000 such applications were accepted by the Secretary of State and 18,000 were not. I am sure that we all agree that it is important that parents with care are able to exercise that opt-out, so to speak, in those cases where they are fearful for themselves or for their children. The agency must look sympathetically at that matter and the figures that I have mentioned indicate that the agency takes on board very seriously that particular aspect of the problem of maintenance.
Earl Russell: I am grateful to the Minister. I am certain that he is right that Ministers and the agency take the matter seriously. However, I am saying that some of the people on the ground do not take it seriously. People occasionally behave in ways they should not and become impatient. I ask the Minister to consult one of the organisations involved with women's refuges on the working of the provisions and also with regard to Amendment No. 48, on which I did not receive a very lengthy reply.
We cannot pursue this issue much further this evening. I am grateful to the Minister for his undertaking to look again at the matter and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 to 51 not moved.]
Earl Russell Earl Russell moved Amendment No. 52:
Before Clause 18, insert the following new clause:
("Removal of carers' allowance from maintenance requirement
.—(1) Schedule 1 to the 1991 Act shall be amended as follows.
(2) In sub-paragraph (3) of paragraph 1 of Schedule 1 to the 1991 Act, leave out (a) (b) and (c) and insert—

"(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

(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
"MR = AG - CB"
there shall be substituted
"MR = AG",
and the definition of CB shall be omitted." ").
The noble Earl said: This amendment is designed to remove the carers' allowance from the formula. This has caused a great deal of anxiety and a sense that it is inequitable as between the first wife and the second wife because there is no equivalent carers' allowance for the second wife, even if she is caring for young children.
On Second Reading I said that the legislation rests very heavily on an old-fashioned, pre-Beveridge bread-winner world. I know that the language is definitely not sexist and is entirely politically correct, but the actual assumptions are not.
There should be equality of treatment between the first wife and the second. If there is not, there will be an immense amount of resentment because the second wife feels, in effect, that she is earning in order to pay money to the first. The Minister can imagine—I think he probably knows—the recriminations to which that might lead. It is not a provision which is working well at the moment.
On a previous amendment I made the point also that it is a case where the money is not targeted. If the money spent on that element were targeted on child care where that is relevant it would do a great deal more good there than it does here. The Minister or anyone else may say that that would produce a further pressure on the parent with care. That is a point which the amendment has attempted to address by taking child benefit out of the calculations in the formula so that that, in effect, replaces some at least of the money that goes to the carers' allowance.
I understand that at all times the Minister wishes to reduce the benefit bill. But short-term reductions may provide long-term increases, as the noble Baroness, Lady Faithful, illustrated in her Second Reading speech.
Lord Mackay of Ardbrecknish: We are now discussing another amendment which would, in most cases, favour absent parents unfairly at the expense of their children. As the noble Earl pointed out, it seeks to reduce the maintenance requirement—the amount which is calculated to meet a child's basic maintenance needs. The amount included to represent a child's need to be cared for by an adult would be omitted, as would the amount equivalent to the income support lone-parent premium in cases where the parent with care has no new partner.
The noble Earl correctly pointed out that there would be some mitigation from the fact that the maintenance requirement would no longer be calculated net of child benefit. However, child benefit is a universal benefit intended to provide a worthwhile contribution to the costs of bringing up children. As such, it would be illogical not to take account of that in the maintenance requirement calculation. In effect, absent parents would be asked to pay maintenance already provided by child benefit. By way of example of the overall effect of the amendment, I should point out that the basic maintenance for one child aged under 11 in a lone-parent family would reduce from £67.50 to £26.20 per week. That means that many parents with care who previously had court orders would find themselves worse off than under the previous arrangements.
I recognise that the amount for a child's care has been represented by some absent parents, and the media, as being akin to spousal maintenance rather than to child maintenance. That idea has arisen largely because the amount is based on the income support allowance for someone aged 25 or over. However, as the Social Security Select Committee recognised, the income support rates provide a benchmark for assessing need. That allowance was the obvious amount on which to base a child's need to be cared for by an adult.
Without continuing much further, I believe that that is probably the answer to the noble Earl's point. There is, perhaps, a divide between us. If no payment is given for a carer to look after the child, I am somewhat puzzled as to who will care for the child. Will the child end up like Romulus and Remus—looking to see if there is a spare wolf around?
Baroness Hollis of Heigham: It is late at night!
Lord Mackay of Ardbrecknish: It is indeed late at night, and we do not want to start all that again.
However, I believe that it is unrealistic to divorce the question of paying something for the child's costs from paying for someone to look after the child. It is quite an artificial division to make, although I understand why it is made by the organisations representing absent parents. They feel that they are actually paying spousal maintenance; but, of course, they are not. They are paying carer's maintenance to look after the child. If that carer's maintenance was not paid and the carer was not there, I
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am not entirely sure who would look after the child. Therefore, while I understand some of the problems involved, I do not believe that one can somehow disconnect the needs of the child from the same need of the child to be cared for. That is why the formula is devised in that way and that is why I am afraid I cannot accept the suggestion from the noble Earl that that portion of the maintenance assessment should fall by the wayside.
Earl Russell: I am very glad that the Minister said what he did about income support levels as a benchmark for need. His words will come back to him when we consider the benefit penalty tomorrow; and, indeed, when we consider a great many other cases of deduction from benefit, reduced benefit directions, and so on.
The Minister asked who is to care for the child if there is no carer element. But the parent with care presumably has spousal maintenance, which will be calculated outside the terms of the Act. We are told that the legislation is not meant to deal with spousal maintenance, though the Minister's answer has just illustrated extremely clearly why that is a very difficult line to hold. If the parent with care has spousal maintenance, there will not be very much in the way of extra costs that arise simply from the act of caring. There will be such costs but not of the order illustrated by the element.
Therefore I do not see that the Minister's point has force if the woman has enough to live on anyway. If she does not, then something has gone wrong with the spousal maintenance. The Minister said nothing whatever about the inequity as between the first and the second wife, and that is a point on which some answer would, I think, be very much appreciated. I do not see why, if there is to be a carer's element, it should not be allowed to the second wife as well as the first, because if they are both caring for children they both have the need. In any case, as the Minister has himself admitted, this does cause a great deal of resentment which is particularly strong among second wives. The 1991 Act has put great strain on the principle of consent. Its success in bringing in money so far has not been extreme. If it is to operate at all, we need the consent. Does the Minister wish to intervene on the paper he has there because, if not, I shall beg leave to withdraw the amendment?
11.45 p.m.
Baroness Hollis of Heigham: Before the noble Lord does that I hope I might intervene. It seems to us on these Benches that the noble Earl, Lord Russell, has a real point with which we identify in that much of the aggravation caused by the child support formula has been caused by what appears to be, however erroneously, a flow of income from the second wife to the first wife looped via the absent parent and all the inequities that are concerned with that. I am not sure that I agree with his point about spousal maintenance because from my experience spousal maintenance has often been traded in for, say, a property settlement and therefore there is not an independent and additional income.
However, what would have been much more sensible and would reflect much more today's society is if there

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had been no such thing as a carer's element in the formula for the parent with care, but instead that same equivalent sum was looped into additional allowances as part of the individual child allowance. I would have thought that, politically, and in all the ways possible, that would have been far more acceptable. The money would go to the child and part of that element in the child's allowance would be attributable to the needs for care of that child—however that may be dealt with, whether it be through purchased child care or the parent with care—rather than a direct payment being made to a woman, who may in turn have a non-earning second partner living with her, which involves all of the inequities that then seem to flow from the pattern of distribution across adults. The Government would have been well advised if the flow of income had gone from absent parent to children rather than, apparently, second wife to absent parent, to parent with care and, possibly, to the new partner of the parent with care, which produces all sorts of hostilities and frustrations which, however erroneous, are well and easily understood.
Lord Mackay of Ardbrecknish: I am not entirely sure that what the noble Baroness is suggesting is practical. I can see the point that, if the money was all wrapped up in the child and paid to the child, that might remove the aggravation that the absent parent feels that he is paying for this woman who may or may not have walked out on him—who knows?—while the second wife may have some feelings as regards paying for the first wife. But the trouble is that I do not think one can pay the money to the child because I do not think the child can go down to the post office and collect the money. There are some practicalities involved here which one cannot get round. The mother has to get the money because she is the person looking after the child and buying his or her clothes and so forth—
Baroness Hollis of Heigham: Just like child benefit!
Lord Mackay of Ardbrecknish: But child benefit, as I recall, is paid to the mother.
Baroness Hollis of Heigham: It is for the child!
Lord Mackay of Ardbrecknish: I think we are splitting hairs. I see the attractions with the noble Baroness's suggestion. It would remove one of the sources of aggravation from the absent parent groups but I suspect they will just find another way to complain about the £60-odd a week. As regards the second wife paying for maintenance of the first wife, the liability is based on the absent parent's income only. The second wife's income is only relevant in protected income which can only serve to reduce liability not to increase it. So the earnings of the second wife cannot by any stretch of the imagination be taken to be moving through the absent parent to the first wife.
There is a problem here. One cannot will away history. The first wife and the child or children exist. They exist at the moment the absent parent decides to remarry—to repartner, as it is called in the modern jargon—and to have more children. He cannot simply draw a line under history and forget about those who have gone before. That may be a comfortable way for him to deal with the matter, but none of us would agree with it.
Baroness Seear: It is very late and I do not want to indulge in further argument, but I should have thought that it was simple to say that the money is for the child. That does not mean that the toddler has to go and collect it. The money is meant for the child, and the mother goes and collects it. She collects child benefit. That makes the point.
I am sure that we all agree that the chap has to look after his children, if he does not look after his previous wife. That is all dealt with. If we say the money is for the child, that comforts the second wife, who wants to get her claws on it but cannot because it is going to the child. That is all to the good. I cannot see any difference here.
Lord Mackay of Ardbrecknish: It is late. It is a nice imaginary position. The money has to be paid to an adult for the child. Who decides whether it is spent on the child? For example, what about heating and lighting costs that both will share? Although the noble Baronesses seem to think that they have an attractive argument, they are splitting hairs. For example, in the case of child benefit paid to the wife for the child, can anyone give me a cast-iron guarantee that the money collected at the post office is not promptly used for purposes other than for the child?
Baroness Seear: Of course not. We know perfectly well that that happens. We are talking about the psychological problem of the second wife who is fed up because money is going to the first wife. As my noble friend Lord Meston said, that is liable to drive him into the arms of a third wife. That would complicate matters even more.
One could deal with that psychological problem by making it quite clear that the money is for the child. What the mother does with it when she gets it is another matter. One can never know what happens to it. That does not matter. The father says to the second wife, "It's nothing to do with the first woman. This is for Billy, the little boy I left behind". I cannot see any difficulty about it.
Lord Mackay of Ardbrecknish: I suspect that the argument would then shift to the money going to the first family rather than to the first wife.
The clearest indication is that it does not go to the wife, because when the child ceases to be a child and no longer comes within the ambit of the agency all the money ceases. That shows that it is not spousal maintenance in name, theory, psychology or anything else. It is connected totally with looking after the child. I have no psychological problem. I trust that the rest of the world does not have one either.
Earl Russell: I am most grateful to both noble Baronesses for a thoroughly constructive approach to the problem. The Minister's response illustrated that imagination is a plant which does not flourish in Whitehall. His toddler sounds remarkably like the famous James James Morrison Morrison Weatherby George Dupree, who said:
"You must never go down to the end of the town, if you don't go down with me".
It is not quite as complicated as the Minister made out. However, since he introduced the term, the verb, "to repartner" as an intransitive verb—
Baroness Seear: Please do not start on that!
Earl Russell: I was only going to ask the Minister to write to me. I have already drawn his attention to its use in the memorandum to the Delegated Powers Scrutiny Committee. If he can find any previous use of the word I should be very glad to know. I shall not ask for that now. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 53 to 55 not moved.]
Earl Russell Earl Russell moved Amendment No. 56:
Before Clause 18, insert the following new clause:
("Exempt income of absent parent
. In Schedule 1 to the 1991 Act, after paragraph 5 there shall be inserted—
"5A.—(1) Regulations implementing paragraph 5 of this Schedule shall ensure that the exempt income of an absent parent or a parent with care includes—

(a) an allowance in respect of the full amount of any council tax or water charges in respect of the parent's home;

(b) an adequate allowance in respect of the liabilities referred to in sub-paragraph (2) below.

(2) The liabilities in question are any debts, obligations or other liabilities of the relevant parent which—

(a) are legally binding on him (whether under civil or criminal sanction); and

(b) arise from transactions effected, or events occurring, before the date specified in sub-paragraph (3) below.

(3) The date in question is—

(a) in the case of an absent parent, that on which he first received a maintenance enquiry form under this Act;

(b) in the case of a parent with care, the date on which she first submitted to the Secretary of State a completed maintenance application form under this Act.

(4) An allowance in respect of a liability referred to in sub-paragraph (1) (b) above shall not be regarded as adequate within the meaning of that provision, unless (on the basis of weekly equivalence) it is at least equal to—

(a) the amount payable periodically by the parent in question in respect of the liability in question under arrangements which were in existence at the date referred to in sub-paragraph (3), where such arrangements then existed; or

(b) in any other case, the minimum amount which would be necessary to enable the liability to be discharged by periodical payments within 12 months of the effective date of the maintenance assessment in question" ".).

The noble Earl said: I am sorry for this great flurry of papers. There does not seem to be any time between one amendment and the next to get one's papers in order.
Amendment No. 56 deals with the exempt income of the absent parent. It provides that an allowance should be made for council tax .and water charges—for debts, obligations and other liabilities which are legally binding whether under civil or criminal sanction, and which arise from dates before the parent became subject to the Act.
The amendment deals with the general principle that I have already asserted: that people should not be forced to default on legal obligations. If the Minister denies that, he will risk being portrayed as undermining respect for law. He should be careful how he does that. For example, we are under legal obligation to pay council tax. I cannot say to my local council, "I cannot pay my council tax because I must put child maintenance first". If the Minister insists. on the sort of priority he demands, he will have to provide
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for a power to default on other items. That will create very different priorities from those which exist in most households. People do not default on legal obligations—at least, we hope that that is the case. But because they do not default on legal obligations, what they pay to maintain their children, however much they regret it, because they respect their legal obligations, is diminished.
I do not believe that the Minister will find in any ordinary married household in the land that child maintenance has the priority that it is given under the Bill. I believe that the Bill is different in this respect from the rest of the world. These matters should be taken into account. If they are not, a court will force them to be taken into account.
If the Act does not take those factors into account, it has to allow people to default on them; and that would be a very poor way out of the situation. I beg to move.
Lord Mackay of Ardbrecknish: The noble Earl has explained that the amendment would alter the calculation of that part of the assessment formula known as exempt income.
Exempt income is the amount deducted from a parent's net income in recognition of his or her basic expenses. It includes set amounts for the living costs of the parent and any natural children in the household and an allowance for housing costs. The formula then deducts maintenance from the parent's remaining income at the rate of 50p in the pound until the basic maintenance requirement is met and, in the case of absent parents, a further, lower, percentage if there is any income left over.
The proposed amendment would alter the calculation of exempt income to include council tax, water charges, legally binding debts and obligations (including, for example, fines) and any obligations arising before the Child Support Agency's involvement in the case. Those expenses would be allowed in all cases with no further consideration as to reasonableness or to whether the allowance would be just or equitable in all the circumstances of the case.
Exempt income is specifically designed only to meet the every day expenses which are likely to be incurred by all parents. These are basic living expenses and housing costs. Other expenses can be met in one of two ways. The first is from the income that is left after meeting the maintenance liability. The current legislation ensures that no absent parent will pay more than 30 per cent. of his net income in child support maintenance. Most will pay a good deal less. In the vast majority of cases this leaves sufficient income to meet essential expenses and to make choices about other expenditure.
For the small number of cases where certain special expenses cause genuine difficulty the new departure system will provide the opportunity for the individual circumstances to be examined in detail and, where appropriate, for liability to be adjusted.
With regard to the specific items of expenditure listed in the amendment, council tax is already allowed for in the "protected income" provisions which reduce the maintenance assessment where hardship would otherwise be caused and debts of the relationship or those incurred before the inception of the Child Support Agency can be cited as grounds for departure. The Government would

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not, under any circumstances, agree that it was right to make provisions which would effectively pay someone's fines from the money that should be going to their children. The provisions we have already included in the Bill will deal with cases where the present legislation causes difficulty. With that explanation of how we see the issue, I hope that the noble Earl will withdraw his amendment.
Midnight
Earl Russell: I never thought of the Minister as Robin Hood but he appears to be providing that child maintenance shall involve the most cavalier disregard for the law. It surprises me greatly. The Minister said that no consideration was given to the reasonableness of all the charges, but they are all legally binding charges. We do not go around saying that our legally binding obligations are not reasonable or that we shall not pay them. If we do we tend to get short shrift. In terms of the criteria of the noble and learned Lord, Lord Simon, for the rule of law, I should have thought that the Government ought to be subject to the same provisos. Where they recognise obligations to be legal, they ought to respect them.
The Minister said, "We don't all go around restricting the amount that we pay to our children because we have to pay fines." But if we are foolish enough to incur fines, that is what we all do. If we are assessed to pay a fine, we have to pay it, quite regardless of what the effect on our children will be. We cannot get out of it. So allowing the absent parent to pay the fine, as he is legally bound to, will merely put him in the same position as all the rest of the world. We shall have to come back to this because there is no meeting of minds. Where respect for the law is involved, we need to have that meeting of minds.
Lord Mackay of Ardbrecknish: If I hear the noble Earl aright he makes the proposition that if an absent parent is fined, the first place to which he can or is allowed to look, if the amendment were accepted, is reducing the maintenance he pays to the parent with care. I am sure that that is not what he intends, but if I hear him aright that is what will happen. However, either the absent parent ought not to get himself into a position where he has to pay a fine, or if he has to pay it he should look at other things he might not pay for in order to save the money to pay the fine. There will be other places where the absent parent can seek the money to pay the fine, or save up to pay it, without suggesting that he pays less to child maintenance.
Earl Russell: I am sorry to say that the Minister did not hear me aright, but since it is late at night such things happen. I never said that child maintenance was the first place to which one should look to pay one's fine; I said that if one is ordered by a court to pay a fine, one has to pay it. That means that all one's other expenses have to give way to a legal obligation because one may be sent to prison in some cases if one does not.
The Government's approach here is deficient in respect for the law. I do not withdraw that charge; we need to return to it in other contexts. However, for the time being beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 57:
Before Clause 18, insert the following new clause:
("Disregard of invalid care allowance
.—(1) Schedule Ito the 1991 Act shall be amended as follows
(2) After paragraph 5 there shall be inserted—
"5A. Regulations governing the calculation or estimation of the net income, or the disposable income, of an absent parent or a parent with care, shall ensure that any sums paid or payable to or in respect of any person by way of invalid care allowance under section 70 of the Social Security Contributions and Benefits Act 1992 shall be disregarded." ").
The noble Earl said: Amendment No. 57 is, I hope, slightly less provocative. It allows that income which shall be exempt from consideration under the formula shall include invalid care allowance. It may well happen that an absent parent with a second family has one child for whom he receives invalid care allowance. That is a specific earmarked payment for a real need.
It seems to me inequitable and mistaken that the payment should go into the income which is assessed under the formula for charging for child maintenance because that income is attached to one specific need. If it goes elsewhere, that need will be unmet. In terms of parliamentary appropriation, as well as in terms of appropriateness, this is a mistaken and not particularly constructive use of money. This is an amendment which, in terms of respect for the sick, I hope the Minister might consider with slightly more favour than he showed for some of the others. I beg to move.
Baroness Hollis of Heigham: Basically this amendment relates to the cost of sick or disabled children and the ICA that goes with that situation. In responding to the noble Earl's amendment, with which I am very much in sympathy, the Minister could perhaps tell us what is understood by paragraph 2(3) (c) of new Schedule 4B in Schedule 2:
"costs attributable to a long-term illness or disability of the applicant or of a dependant of the applicant".
This is a basis for a departure.
When I read that I assumed that it was designed to take account of the situation that the noble Earl indicated; in other words, that given that ICA followed such a long-term illness or a disability and was a recognition of the costs of caring for that child, this would indeed effectively be exempt income because it would be grounds for departure. I always understood it to mean that. Perhaps the Minister can confirm my understanding. If it is not the case, then the noble Earl is right: we need to revisit this provision.
Lord Mackay of Ardbrecknish: Perhaps I may address the noble Earl's amendment first. He seeks to ignore invalid care allowance in assessing a parent's income under the maintenance formula.
Benefits such as disability living allowance, which are paid to recognise the special needs of disabled people, are ignored under existing rules. However, invalid care allowance is paid to someone of working age who cares for a severely disabled person. It is essentially an earnings replacement benefit, like unemployment benefit and incapacity benefit, and as such is treated in the same way in the formula as the earnings which it replaces.

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Very few absent parents will receive this benefit. Those who do are unlikely to have the means to pay more than the minimum amount of maintenance, and may not be required to make any payment at all—for example, if they have a dependent child in their own household.
Where a parent with care receives the benefit, she would normally need to claim income support, so would in any case be treated as unable to contribute to child maintenance. The only absent parents likely to benefit from this amendment are those who have their maintenance reduced under the protected income rules. If they have a new partner who receives invalid care allowance the effect of the amendment would be a reduction in their maintenance liability.
I am asked about paragraph 2(3)(c) of new Schedule 4B. This will deal with cases where someone in the parent's family is ill or disabled and has costs in excess of any benefit provision. "Costs" in this regard means such things as transport, heating, and so on. It refers to those kinds of costs and not, as the noble Baroness suggested it might mean, the invalid care allowance. It refers to costs in excess of any benefit provisions that somebody may receive in these circumstances.
Baroness Hollis of Heigham: Can the Minister give further clarification? He used the word "parent" but did not at the key moment say whether he was talking about an absent parent, the parent with care, or a second parent. What would be the situation if, in the second family, the new wife brought her own child with her (who was therefore the step-child of the absent father) who was disabled and that mother was in receipt of ICA but the absent father was in work. A calculation is then made as to the protected income. Would her ICA be protected?
Lord Mackay of Ardbrecknish: I might just remind the noble Baroness of what I said earlier in reply to the noble Earl, Lord Russell. The second wife's income is
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relevant only in protected income, which can only serve to reduce liability, not increase it. I suspect therefore—I shall check because we are getting into rather complicated business at the moment—that if invalidity care allowance is treated as income replacement, then the second wife's income, if it were invalid care allowance, would be only relevant and protected income. That would only serve to reduce the liability rather than increase it. In the words of some Members of the Committee that means that it would be beneficial in the way that it was applied.
If I am wrong in my interpretation of the pieces of paper in front of me and what the Bill says, I shall inform the noble Baroness.
Earl Russell: Does the Minister want to contribute anything further to the debate?
Lord Mackay of Ardbrecknish: I think not.
Earl Russell: I am most grateful to the noble Baroness for calling my attention to Schedule 2 to the Bill. The effect of that will depend on the definition of disability, which in due course is to be prescribed. So it is quite hard to know what its contribution will be.
I am grateful to the Minister for the care he has taken. I need to read what he said with a good deal of care. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Bodmin Moor Commons Bill [H.L.]
Reported from the Select Committee with amendments, and recommitted to an Unopposed Bill Committee.
House adjourned at twelve minutes past midnight.