§ 4.23 p.m.
§ House again in Committee on Clause 1.
§ 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".32
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—
§ 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.33
§ 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 34 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.
36 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.
38 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 42 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 43 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 44 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 45 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— 47 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.
§ 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.
50 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 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 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 52 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.
53 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 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 55 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 56 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 57 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 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.
58 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.
59 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
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.
§ 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 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 60 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 61 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 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 62 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 63 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,
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.
- "(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".
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 66 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.
§ 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.
67 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",69 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 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 71 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, 72.72
|Division No. 1|
|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.|
|Addison, V.||Astor, V.|
|Aldington, L.||Astor of Hever, L.|
|Annaly, L.||Balfour, E.|
|Ashbourne, L.||Belhaven and Stenton, L.|
|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.
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".
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.