HL Deb 20 June 1995 vol 565 cc154-217

3.11 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Mackay of Ardbrecknish.)

Lord Simon of Glaisdale

My Lords, I apologise for the state of my voice, but I wish to ask the noble Lord how far it is expected to go tonight and how late we are expected to sit.

When your Lordships debated the report of the Group on Sittings of the House we were assured that in the general way, other than exceptionally, we would adjourn at a reasonable hour. On the basis of that assurance your Lordships even consented to sit on a Friday before a bank holiday in order to debate the most important Bill of the year, the Finance Bill.

The other place has now reformed its hours of sitting and adjourns at a reasonable hour. It is quite wrong that your Lordships' House, a second Chamber—and in the way of second Chambers in general more elderly than the first—but, unlike most second Chambers, unsalaried, should be expected to sit until the very late and very early hours.

The issue is particularly important on this Bill because this Bill is designed to correct the egregious errors that were committed in the 1991 Act. It is accepted that in that respect it is an important Bill. On the 1991 Bill we habitually sat very late at night and into the early hours of the morning. Under those circumstances there could be no effective Division on any amendment. It is only up to, say, nine o'clock that it can be expected that there can be a representative selection of Peers in your Lordships' House to listen to a debate.

The 1991 Act was a legislative disaster. There have been unparalleled protests to Members of the other place. Their postbags have never been so full. That was because your Lordships were effectively prevented from amending the 1991 Bill. Practically everything in the present Bill is designed to correct the 1991 Act on lines that were suggested in your Lordships' House in 1991 and brushed aside with contumely.

Last night I asked how late we would sit and was told that we should continue without any time being fixed. In fact, the House did not get as far as planned but sat until after midnight. That is wrong. It prevents your Lordships from playing a proper role in the constitution. It does not treat your Lordships' House as an effective legislative Chamber. By about 10 o'clock the House was empty except for two Peers on the Opposition Front Bench, one on the Liberal Democrat Benches and the Minister and a Whip on the Treasury Bench. For all the good that was done, the debate might have been carried on round a comparatively small table with a secretary to take down what was said.

I ask with all the force at my command what time we are expected to sit until tonight, and I ask again that it should be a reasonable hour.

Earl Russell

My Lords, before the noble and learned Lord sits down perhaps I may say that there were two noble Lords on the Liberal Democrat Front Bench.

Lord Boyd-Carpenter

My Lords, I support very strongly what has been said by the noble and learned Lord, Lord Simon of Glaisdale, who more than once in the past has done the House very good service by raising this matter. We want to be told by the Minister not only how late it is intended to sit tonight but also to be given an undertaking that we shall not sit very late with the result that there is no proper debate to allow this House to function properly as a debating Chamber.

There is a further point. We have recently had these very late sittings because there has been a lot of work to do. However, with one recent exception, we have not sat on Fridays. If the volume of business is such, then in order that it should be debated properly it is surely right that instead of sitting late on a Thursday or any other night the House should sit on a Friday, during the hours of daylight, and have a proper debate on these important issues.

If it is not thought likely that we shall be able to conclude the business intended to be dealt with today, I urge my noble friend the Minister that we should instead sit in addition on Friday.

Lord Houghton of Sowerby

My Lords, I shall give all my support to my noble and learned friend Lord Simon of Glaisdale. I shall try not to repeat what I said yesterday, but I believe that we must go on protesting at the procedure of this House in Committee on matters of this kind until something is done.

We are not being worthy of our role as Members of your Lordships' House when we conduct our business under the conditions in which it was conducted last night. My noble friends on these Benches are insatiable, incorrigible and almost tireless, but there is a limit to what they can do usefully after midnight, and indeed for many hours before, unless they have other Members of the House with them. I try to help to get the business through at night, up to a certain point. However, .I shall protest and continue to protest until we have a system which is more businesslike.

The noble Lord, Lord Boyd-Carpenter, and my noble and learned friend Lord Simon of Glaisdale said that those who remain in the House are not representative. They would not even be representative of a Standing Committee. They are a backroom group coming to the front. They get nowhere. One has only to look at the proceedings. Never were more amendments moved in a parliamentary Chamber and withdrawn than in this one. What is the point of amendments that are moved, seconded and replied to and then withdrawn? Why cannot we have a procedure by which replies to many of the amendments are given in writing? Those who receive those replies can then decide whether to pursue the matter on the Floor of the House. There are many alternatives and ideas as to how we might conduct our business, but this is not the way.

My noble and learned friend Lord Simon of Glaisdale asks: what time are we going to sit until? Unfortunately the answer does not lie in the hands of the Minister. He would probably be prepared to get the business over and done with and stop at about six o'clock.

What is the other place doing? Has it not debated the Bill? What has it done with the Bill? How is it that so much still remains to be done? What sort of mess are we in? I believe that the Child Support Agency is one of the disasters of this Parliament; and that is saying something. We cannot go on like this. As long as I have a voice at my command, my noble and learned friend will have my support.

Baroness Seear

My Lords, the most important thing—it has not been stressed—is that it is impossible to have a proper vote late at night when there are so few people around. If you cannot vote at Committee stage, you are reduced to voting at Report stage. That is most unsatisfactory because you can speak only once at Report stage. The voting time is in Committee, but you cannot do so at 12 o'clock at night when there are only about six noble Lords present. When the people are not here to vote, it destroys the whole constitutional process of revising legislation in this Chamber and of having votes.

Lord Palmer

My Lords, as an alternative to sitting on Fridays—there is already a rumour going around the Palace of Westminster that we shall have a Summer Recess of three months—surely a shorter Recess would eliminate the problem of having to sit until midnight.

Lord Monkswell

My Lords, in supporting the noble and learned Lord, Lord Simon, in his question, it is worth remembering that it is possible to have Divisions late at night. If there are not enough noble Lords present, the House effectively stops sitting and automatically rises. However, we need to be careful when considering the question. One of the glories of the House of Lords is that we consider virtually all of our business on the Floor of the House where every Member has the chance to contribute. The noble and learned Lord, Lord Simon of Glaisdale, mentioned that there seemed to be few people in the Chamber late last night. But I know from personal experience—I was here until the end and I listened to some of the debates from below the Bar, apart from sitting in the Chamber—that a number of other Members were not necessarily in the Chamber but were around the precincts taking note of what was being discussed. It is important that we remember this. It is essential that our business is taken on the Floor of the House wherever possible.

We ought to consider seriously the suggestion of the noble Lord, Lord Boyd-Carpenter, that we sit on Fridays. The other suggestion was that we might not have such a long Summer Recess. That is also a matter that we should consider seriously. However, the idea that we should take business off the Floor of the House should be rejected. One of the terrific strengths of our House is that we consider business on the Floor of the House and everyone has the opportunity to take part if they feel it necessary.

Lord Graham of Edmonton

My Lords, before the Government Chief Whip responds in a way which I am sure will be helpful, as one of the "usual channels", perhaps I may refer to a dilemma that we face when the time to be allocated to a Bill is considered. One acts with the best of intentions. On this occasion my colleagues who lead so splendidly for these Benches agreed, accepted and approved the suggestion that two days for the Committee stage of the Bill would be sensible. In the event, having agreed that two days were sensible, we are very much "in pawn" to what happens thereafter regarding the number of amendments, whether they are able to be grouped, and whether people are prepared to make progress against the background, the desire, that the House should rise at about 10 o'clock. One then comes up against great difficulties. There is no problem regarding rising at about 10 o'clock, provided that there is an unlimited amount of parliamentary time. As has clearly been seen on this occasion, when considering the manner in which progress has been made, with a Statement spatchcocked into procedures yesterday afternoon, one could have done with more time.

None of the problems is new; they have all been considered previously. I simply state from these Benches that we recognise the great difficulty of trying to marry the two points. My noble friend Lord Monkswell stated that colleagues in this House fiercely protect their right not only to put down amendments but also—it is unusual in comparison with another place—to insist that each be taken separately. As a consequence, in deciding to run its affairs in that way, the House comes up against the problems that we have in this instance.

We have no objection to meeting on Fridays. However, the problem then is that on matters of this kind there could be votes, and Whips could be applied. Colleagues are stating that the solution is not to sit after 10 o'clock but to sit on Fridays until four o'clock or five o'clock, perhaps having to respond to Whips.

Those difficulties have to be taken into account. I simply say that we on these Benches are party to the arrangements that have been made but recognise the difficulties that have arisen.

Baroness Faithfull

My Lords, perhaps I may ask my noble friend on what basis the usual channels decided that the parliamentary time would be only two days. We all know that it is a contentious Bill. We all know that it will take time. How did the usual channels decide that the Bill would take only two days?

Lord Graham of Edmonton

My Lords, from our experience, one looks carefully at the amount of time that has been taken in another place. The noble Baroness shakes her head; she either indicates that we do not do so, or that we should not do so. I simply tell the House the procedure. When considering an estimate of how long is required in this House, we consider the length of parliamentary time that has been taken in another place. We look at the level of controversy that has arisen in another place. We consider the estimate that has been put to us, perhaps two days or three days, and we simply accept it, or say that we can do the job in two days. If we had insisted on three days, there may have been a problem. I speak only for our Benches. The Government have their own timetable to keep. We try to accept our responsibility in Opposition. It is our job to expose defects in a Bill as often as possible. At the same time, we are not in the business of filibustering needlessly.

Lord Strathclyde

My Lords, although the questions were posed to my noble friend Lord Mackay of Ardbrecknish, who moved the Motion to resolve the House into Committee, perhaps I may be given the opportunity of replying to this brief debate as I do in part bear some responsibility as to the conduct of business in this House.

I can assure all noble Lords who spoke that I am always deeply concerned when Back-Benchers complain about the lack of time made available to discuss Bills on the Floor of the House. It is of particular concern when senior Back-Benchers, like the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Boyd-Carpenter raise their questions in the way in which they have.

It is not only my desire but also the desire, I am sure, of the whole House that we should rise regularly as early as possible. However, we do not live in a perfect world where we can organise everything in the way that we would necessarily like.

There are a number of alternatives. Some have been raised in the report to the previous Leader of the House from senior Back-Benchers. The report discussed the case for Friday sittings as well as early rising—up until 10 o'clock. That was all part of a package which included many other aspects, such as the Moses Room procedure for Committees of the Whole House off the Floor of the House, and informal committees between Second Readings and Committee stages. Those ideas are at but an experimental stage. No sooner than the end of the current Session we shall be able to tell whether we can move in the requested direction so as to reduce the amount of time during which the House has to sit late.

As for this Bill, I am happy to admit that maybe in this instance the usual channels got it wrong. Perhaps I may follow the Opposition Chief Whip in explaining the discussions that take place and the considerations that are taken into account before reaching a decision. None of that is arbitrary; it is all carefully worked out. We naturally take into account the discussions in another place, the controversy of the Bill and the debate that took place at Second Reading in this House. In all those cases the discussions indicated that the Bill should be dealt with perfectly well in two days. However, between making that decision and the Committee stage, a great many amendments were put down and it was still uncertain how long it would take to deal with them. As it was, last night's proceedings went far later than any of us would like.

There is another consideration: the overall time in the parliamentary year. I suspect that it is the desire of most noble Lords that this important Bill should receive Royal Assent before the Summer Recess so that its provisions can be put into place. Given that and the minimum timings that we have between the different stages of Bills, it is imperative that the Bill complete its Committee stage this evening.

I hope that there is no doctrine in the House that we should not vote after nine o'clock in the evening. I am sure that the Opposition Chief Whip would disagree with that doctrine, and I am not sure that I should like to be bound to a new convention if that were the case. I entirely agree with what the noble Lord, Lord Monkswell, said about last night, that although the Chamber may not have been full, in a number of places around the House small groups of Peers were discussing and debating a variety of issues.

I also hope that the House recognises that this year has not been unusual in the number of late night sittings. I hope it agrees that there have been a number of evenings when we adjourned far earlier than was originally predicted.

The noble and learned Lord, Lord Simon of Glaisdale, asked a straight question about this evening. I am always in the hands of those who have put down amendments for today, but I hope that tonight we shall not go much beyond 10 or 11 o'clock. However, I repeat that I am very much in the hands of the House on the matter.

Lord Boyd-Carpenter

My Lords, before my noble friend sits down, will he answer this? If, as he said, it is imperative that the Committee stage should be concluded soon, is it imperative that it should be concluded before Friday? Would it not be possible to meet the general timetable for the Bill by finishing the Committee stage on Friday?

Lord Strathclyde

My Lords, the usual channels always find themselves in the hands of Back-Benchers. But the anecdotal evidence I have is that, although some people may be keen to sit on Fridays, overwhelmingly the response I receive when I suggest that the House should do so is, "That's all very well, but not on my business". There may be an inevitability about sitting on Fridays on this Bill. That depends on the progress that we make this evening.

3.30 p.m.

Earl Russell

My Lords, perhaps I may ask a question of the noble Lord. Will he bear in mind on the allocation of time for future business that time taken in another place may be a misleading guide on Bills such as this, where much of the criticism comes from the Cross-Benches and from our own Benches?

Lord Strathclyde

My Lords, I hope that I indicated, as did the Opposition Chief Whip, that what happened in another place was but one consideration taken into account before the usual channels came to a conclusion on the allocated time.

Lord Simon of Glaisdale

My Lords, I am grateful to noble Lords who have contributed to the discussion. I confess that I was not surprised to hear the words "the usual channels"; indeed, I would have been astonished if they had not come up. We owe a great deal to the usual channels. Although, no doubt, their primary concern is government business, they have regard to our convenience and we are grateful to them. Moreover, we have learnt to admire the individuals who compose the usual channels.

However, we should not be beguiled by their general charm and efficiency, for several reasons. First, the usual channels do not flow through the Cross-Benches. There are now 300 Members on those Benches and so far as I know none was consulted; certainly no one who took an interest in the Bill was consulted.

The second reason is that, on experience, the usual channels seem to have primary regard to putting through government legislation. That is the fundamental problem. There is a tendency to regard your Lordships' House merely as a machine for churning through a mass of legislation. Let us not forget that this piece of legislation is only required because, despite your Lordships' protests, the 1991 Act was defective.

There is a tendency to regard any amendment as something to be rejected, as was summarily done last night. The only amendments to be favourably considered are those embodying the draftsman's second thoughts.

There is also this to be said about the usual channels. I venture to adopt what the noble Lord, Lord Cockfield, once said, that the usual channels are regarded as a conspiracy against the Back Benches. I only add, "and the Cross-Benches". However, in the end we shall find ourselves time and again in this kind of trouble if we have a mass of legislation, much of it ill-digested, some of it quite unnecessary and most of which would have been unnecessary if proper attention had been paid to the criticisms of previous legislation. In the end I hope that that fundamental lesson will have been learnt.

The Chief Whip answered one of my questions directly by saying that we were to try to finish the Committee stage tonight. He answered the other question indirectly by saying that he hoped that we would finish by 10 or 11 o'clock. I cannot conceive of it being possible, with proper discussion, for us to reach the end of the Committee stage of the Bill by that time. I hope that the Chief Whip will be in his place at 10 o'clock tonight to take cognizance of the situation.

On Question, Motion agreed to.

House in Committee accordingly.


3.39 p.m.

Earl Russell had given notice of his intention to move Amendment No. 58:

Before Clause 18, insert the following new clause:

(". In Schedule 1 to the 1991 Act, leave out paragraph 11 and insert—

Effective date of assessment

"11.—(1) Subject to sub-paragraph (2), a maintenance assessment shall take effect on such date as may be determined in accordance with regulations made by the Secretary of State, and that date may be earlier than the date on which the assessment is made.

(2) Where no maintenance assessment is in force with respect to the person with care and the absent parent, the effective date of a new assessment shall not be earlier than the date on which the assessment is made or, where a notice threatening an interim assessment has been issued under section 12(4) of this Act, the date on which such notice was sent to the absent parent.

(3) This paragraph shall have effect from 5th April 1993.".").

The noble Earl said: I have been listening. Not moved.

[Amendment No. 58 not moved.]

[Amendments Nos. 59 and 60 not moved.]

Earl Russell moved Amendment No. 61:

Before Clause 18, insert the following new clause:

("Information: late arrival of assessed maintenance

. In section 14 of the 1991 Act, after subsection (4) there shall be inserted—

"(5) If any maintenance assessed under this Act fails to reach the parent with care within one week of the time when it is due, the Child Support Agency shall so inform the Benefits Agency within 48 hours of being notified of the non-arrival of such maintenance." ").

The noble Earl said: Amendment No. 61, I am afraid, is moved. I have not become totally immobile. The amendment deals with the distressingly frequent situation where maintenance has been assessed and does not reach the parent with care. Her benefit has been reduced in regard of the maintenance so she is left with the reduced benefit and without the maintenance—and sometimes is in very considerable hardship. I asked the Minister yesterday whether Clause 25 of the Bill might make amendment in this area unnecessary. The point arose on Amendment No. 2. The Minister was not briefed on that point yesterday. I hope that he may be briefed on it now, because, if so, I shall be able to withdraw this amendment quickly. I beg to move.

Lord Mackay of Ardbrecknish

This new clause in Amendment No. 61 adds to Section 14 of the 1991 Act, which deals with gathering and disclosing information. It proposes that where child support maintenance is normally paid direct to the parent with care and a payment is at least a week late the Child Support Agency will report the delay to the Benefits Agency within 48 hours of being notified of non-receipt. In practice, a parent with care on benefit is more likely to approach the Benefits Agency first when her maintenance does not arrive rather than the Child Support Agency. Even so, this is a good example of why it is necessary for the Child Support Agency to have powers to disclose information to the Benefits Agency, and vice versa.

Although there are already adequate powers in Section 14 of the 1991 Act to allow for this sort of exchange of information, I have some sympathy with the sentiment behind the amendment. However, this is purely an operational issue between the Benefits Agency and the Child Support Agency; it is not appropriate for primary legislation. Both agencies have operational constraints. It would be wrong to require a particular action to be taken which might mean that other action that rightly should have a higher priority has to be put to one side.

In its November 1994 report on child support, the Social Security Select Committee recommended that procedures be introduced between the two agencies so that full benefit was restored as quickly as possible whenever maintenance was not paid properly. As a result, a working party was set up which is currently examining ways to improve the procedures. Some changes have already been made to forms, and general liaison arrangements have been improved.

If a parent with care opts for income support gross, which is the subject of Clause 25—I believe I am right in saying that at least two-thirds do so opt—the maintenance and income support are therefore paid together. She will have no problem. When maintenance decreases, she is already receiving the full amount. Therefore she ought to have no problem along the lines the noble Earl mentioned.

I return to the noble Earl's point about a parent with care who receives a payment directly from the absent parent. I have indicated what the two agencies are doing. I am happy to pass on the point made by this amendment to the working party that I mentioned which is considering procedural changes between the two agencies. While, of course, it is vital that information is transmitted quickly, I do not believe that we ought to require them to adopt a mandatory timescale as set out in the amendment.

Earl Russell

I am most grateful to the Minister for that reply. I am grateful for his sympathy and for the practical expression of it. I am pleased to hear about the working party and happy to accept the reference to it. I understand, having listened to the noble Lord, Lord Renton, the point that he makes about this provision not being suitable for primary legislation. I believe that it is a rule of construction of statutes that when a point like this gets into primary legislation, you know that it has been going wrong in the past. Since the Minister also knows that, and is concerned about it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

Lord Simon of Glaisdale moved Amendment No. 62:

Before Clause 18, insert the following new clause:

("Repeal of s. 14 of 1991 Act

. Section 14 of the 1991 Act shall be omitted.").

The noble and learned Lord said: In moving this amendment perhaps I may speak also to Amendment No. 64, although it is not grouped with it, and deal separately with Amendment No. 63, although that is grouped with Amendment No. 62. I think that that is the more convenient grouping. I apologise that I did not have an opportunity of mentioning that approach to the noble Earl and to the Minister. I hope that it does not inconvenience them.

Amendment No. 62 proposes to omit Section 14 of the 1991 Act whose rubric is: Information required by Secretary of State".

There are no prizes for guessing how that section opens. The words are: The Secretary of State may make regulations".

Those regulations require people to give information that is not of the kind normal creditors are entitled to demand. It is exceptional information that is vouchsafed to officials because they are officials.

At Second Reading I cited a passage from the famous book, The Law of The Constitution. One of the tests of the rule of law—but only one of the three—is that officials are subject to the normal law of the land. They are amenable to the same law as that to which citizens are subject. The Bill gives them quite exceptional power. Let us see what they can do with it.

Paragraph 3(2) of Schedule 3 to the Bill, under the strange heading, "Minor and Consequential Amendments", states as an amendment to the Child Support Act 1991 in Section 14, the one to which I just referred, that the Secretary of State may hand on the information that is required under that section. He may, make use of that information for purposes of any of the benefit Acts or of the Jobseekers Act 1995, or equivalent Northern Ireland Acts. In other words, not only is the Secretary of State given exceptional power to interrogate individuals and get information, but he can hand that information on to other social services organisations.

I said that I intended to take this amendment with a subsequent amendment which deals with powers of entry. Section 15 of the 1991 Act reads: (4) An inspector"— that is an officer of the Child Support Agency—

"shall have power—
  1. (a) to enter at all reasonable times … any specified premises … and … any premises which are not specified but which are used by any specified person for the purpose of carrying on any trade, profession, vocation or business; and
  2. (b) to make such examination and inquiry there as he considers appropriate.

(5) An inspector exercising his powers may question any person aged 18 or over whom he finds on the premises.

(6) If required to do so by an inspector exercising his powers, any person who is or has been"—

there follow four different categories— shall furnish to the inspector all such information and documents as the inspector may reasonably require".

There is a little left to read but it is not much. Subsection (9) reads: If any person … without reasonable excuse, refuses or neglects to answer any question … he shall be guilty of an offence".

Remembering the definition of the rule of law, the Committee will ask where we are going now. The inspector may enter the premises on pain of a penalty. He may put questions to an employer or fellow employees which they must answer on pain of a penalty.

Everybody ought to observe his engagements. Anybody who owes a debt ought to pay it. But let us take the case of a wife under a separation agreement. She has no power to detail a private detective—even if she is owed money under that agreement—to enter premises on pain of a penalty, interrogate her husband, his fellow employees or his employer in order to secure her redress. That is the private individual. The case of any other creditor is similar. Why in this case should exceptional powers be given to the officials of the Child Support Agency? I might further ask whether it has shown since 1991 that it is worthy of such powers. I beg to move.

Earl Russell

The noble and learned Lord, as usual, is quite right. These are the powers to which he alluded in his speech on Second Reading—powers which threaten the rule of law. One of the points about the rule of law is that it should produce a slightly less unequal relationship than would otherwise exist between government and governed. It should impose an orderly relationship between them. The activities of big brother should be controlled by the activities of the rather bigger parent. That is what the rule of law is all about.

The first amendment that we are discussing deals with demands for information. It has already been used for demands for the most indelicate information from women about the details of their private life. I shall not repeat to the Minister the example that I gave him at Second Reading. I am sure that he remembers it.

The second amendment deals with the confidentiality of Inland Revenue information. It has been hard enough, since taxes began—which is as far back as we have had the state—to get people to give accurate information to the Inland Revenue so that their taxes can be assessed. We can only ask them to do so if they can have reasonable confidence that that information will not be used against them for other purposes. I have known people who would not even go to a tax accountant in their home town for fear that their financial details would become known elsewhere. I thought that this Government were aware of the dislike of paying taxes. But it seems that in this Bill they have forgotten even that.

The third amendment deals with the powers of inspectors who are given rights of entry and questioning in practically any circumstances. In fact, it is the power of snooping. I notice that they have the right to enter: any specified premises, other than premises used solely as a dwelling house". In other words, they may enter the corner shop which is also used as a dwelling house.

If inspectors, without warning and before they have identified themselves, start to enter people's houses in the middle of the night, they may risk a response which might tend to breach the peace. The Government are bringing their own servants into danger. I do not think that that is fair on them.

Lord Houghton of Sowerby

We should be grateful to my noble and learned friend Lord Simon of Glaisdale for keeping an eye on the defects of legislation passed under the influence of prejudice. The year 1991 saw a flowering of the new despotism under the present Government. There had been the Environmental Protection Bill of 1990; and then in 1991 came the Dangerous Dogs Bill and the Child Support Bill. They all encroached on the rights of the citizen, without redress, because the Government felt that the prejudice of the public against the subjects of the legislation would allow them to transgress the normal considerations of individual liberty. The 1991 Child Support Act did that in some important respects. This provision is one of them. Another is the right given to the child support officer, with the sanction of the Inland Revenue, to inspect the pay records in the hands of the inspector of taxes.

I have already said many times that that Act conceded to child support officers what is denied to the police except in the case of murder. That shows the lengths to which the Government will go when they are in search of culprits. The Act was directed against culprits, defaulters, undesirable people—men who had deserted their children and wives. Nothing bad enough can be said against such people. One need stop at nothing when dealing with these people. I shall return to the Dangerous Dogs Act on subsequent occasions. But to deprive the magistracy of its historic right of discretion in sentencing people convicted under matters within their jurisdiction is nothing short of a crime. Yet it was done. The Government persist in insisting that it continues to be done lest the people's terrier might bite somebody.

I believe that that situation is disgraceful. This provision is disgraceful. The incursion into the confidentiality of Inland Revenue records is disgraceful. Why are there such facilities to pursue the objects of this Act?

We must bear in mind that we are handling legislation which is directed against certain persons in the community in the interests of other persons in the community. It is a Bill which rearranges the relationships between people and the community and people and people. It is a delicate operation. There is no question of keeping the balance here; the balance is against the persons who are judged to be in default. No pains are spared in getting at them and pressing them to fulfil their obligations to their families.

Under this Bill we are part of the prosecuting authority. Parliament has put an instrument into the hands of the administration which goes beyond the normal role of the magistracy or the police. This Committee should be inquiring more closely into who is doing this; into whose thousands of hands the implementation of the Bill is being placed? What qualifications do they have? Where do they come from? What is the standard of remuneration? What is the standard of recruitment? They all speak in the name of the Secretary of State. That is why I described the original Bill, when it came before Parliament in 1991, as the grubbiest piece of legislation that I have struck in 42 years in Parliament.

4 p.m.

The Earl of Onslow

I do not believe that I have ever heard a more moving speech than that made by my noble and learned friend Lord Simon of Glaisdale. I had not intended to talk in this debate but I am minded to because I saw the wise grey head of my noble and learned friend Lord Hailsham of Saint Marylebone. I seem to remember when the Labour Party was in power that Mr. Healey, now the noble Lord, Lord Healey, introduced very wide powers of search and entry for the Inland Revenue. We on this side of the House railed against the rights of entry and the abuse of the state power over private individuals.

What my noble and learned friend Lord Simon of Glaisdale described reminds me of those wartime escape films and of somebody in a long grey overcoat saying, "Ihre Papieren, bitte". This is the instrument of dictatorship. There is already too much of it in existing legislation. Too much power is given to people to enter and search. It should be stopped and reversed for the sake of privacy and the freedom of the individual. We must take notice of what my noble and learned friend Lord Simon of Glaisdale said.

Lord Mackay of Ardbrecknish

Perhaps I can be clear about what we are doing. I was under the impression that the noble and learned Lord, Lord Simon of Glaisdale, was moving Amendment No. 62 and speaking to Amendment No. 64.

Lord Simon of Glaisdale

That is so. But the noble Earl, Lord Russell, joined in the Motion and also spoke to the second amendment. I entirely adopt what he said; indeed, that was the main theme of the speech of the noble Lord, Lord Houghton. It is best if all three amendments are taken together because the power of entry, the power of questioning and the power of the infringement of the Inland Revenue confidentiality all go together.

Lord Mackay of Ardbrecknish

I am grateful to the noble and learned Lord. I was going to mention that the noble Earl appeared to speak to the other amendment and I was seeking to be sure that I could reply to all three and perhaps save the Committee a few minutes.

These amendments would result in the removal of the Child Support Agency's powers either to gather or disclose information, which is essential to enable maintenance assessments to be made. It perhaps sits a little oddly with the assurance I gave around 20 minutes ago that the Benefits Agency and the Child Support Agency could exchange information about parents with care in order to ensure that parents with care did not fall between the two stools of income support and absent parent maintenance.

If the amendments were agreed, it would mean that different parts of the Department of Social Security would not be able to exchange information. It would make it very difficult for the agency to trace absent parents with the degree of success they currently achieve. It would mean that the agency would be unable to give details of an application, or a maintenance assessment, to a child support tribunal. Finally, where the agency needs to use a court for enforcement or to establish paternity the CSA would be severely limited as to the information it could give to the court.

Schedule 2 to the 1991 Act allows the Child Support Agency to obtain from the Inland Revenue the current address or the current employer of an absent parent. It also allows the agency to obtain from local authorities details of housing benefit or council tax benefit which are needed in the assessment formula. These amendments would prevent all of those arrangements. I do not believe that it is a great challenge to civil liberties; in fact quite the contrary. It would be ridiculous to forbid the agency from seeking information along the lines I have just mentioned.

We recognise that the gathering and disclosure of information is a sensitive subject. Equally, I hope the Committee recognises that parents with care will not always know the absent parent's whereabouts, nor will parents always be able to give the other details needed by the agency. There was some discussion during the Second Reading of the Bill about the information which the Child Support Agency could obtain from the Inland Revenue. I would like to reiterate that the only information that is given to the agency by the Inland Revenue is the current address of the absent parent or the current employer of the absent parent. I must stress that the agency does not have access to anyone's tax returns. However, although the amount of information available to the agency is not extensive, it is vital in the agency's attempts to trace absent parents either directly or through their employers. I am sure that those of us who want the agency to work, who want the parent with care to receive the maintenance due, will find these powers well within what we consider to be reasonable.

In the past year the agency successfully traced over 49,500 absent parents whose whereabouts were unknown to the parent with care. In the past there has been talk of the agency failing to target the so-called "feckless fathers". The agency can be proud of its success in tracking down fathers, or indeed mothers, who disappear without facing up to their responsibilities to their children. The ability to obtain information from the Benefits Agency, the Contributions Agency, the Inland Revenue or employers is essential in this process. Without the help of the information provided, the number of successful traces would reduce to a trickle.

The second arm to Schedule 2 is the provision of relevant information from local authority records. That information has been prescribed in regulations as the eligible rent for housing benefit purposes, the entitlement to housing benefit, the council tax payable and the entitlement to council tax benefit of either the person with care or the absent parent. Those are far from being draconian powers. In fact, the provision is benevolent as it allows for the agency to collect information which would otherwise have to be obtained by the parent.

An important element of the calculation of a maintenance assessment is the housing costs which are net of housing benefit. Details of council tax are needed for assessing protected income which ensures the absent parent and his new family remain significantly above the level of income support. Failure to obtain this information could reduce the speed and accuracy of some assessments.

On the question of the powers of entry, the effect of Amendment No. 64 would be that inspectors appointed under the Child Support Act would no longer have the right to enter premises and request information. The amendment would render Section 15, which provides for the power of inspection, effectively redundant since an inspector would have no greater powers to seek information than a child support officer already has without the benefit of Section 15.

The noble and learned Lord, Lord Simon of Glaisdale, outlined in the debate at Second Reading and again today his objection to the power of inspection. He argued that these powers were contrary to the rule of law, or at least exceptional powers because they were not rights enjoyed by ordinary citizens. Furthermore, he implied that these powers were in some way unique and specific to the activities of the agency, a point, I suspect, echoed by the noble Lord, Lord Houghton of Sowerby. I said in that earlier debate—

Lord Simon of Glaisdale

I think the noble Lord is mistaken. I never thought that they were peculiar. In fact I warned against the precedents and that this would be used as a further precedent.

Lord Mackay of Ardbrecknish

I am grateful for that recognition that there are precedents for this power. I was just coming to that for the benefit of those Members of the Committee who may be concerned about these powers. For example, over many years there have been powers to appoint national insurance inspectors. Similar powers exist in regard to Customs and Excise and to the Inland Revenue. Indeed, the powers of appointment available to the agency are a good deal more restricted than those available to other government bodies, since, as the noble and learned Lord will know, child support inspectors can be appointed only for one-off investigations and for a limited and specified period.

The powers of inspection are designed to deal primarily with cases where absent parents, more often than not self-employed absent parents, refuse to provide information or provide information that is wholly implausible. They are intended to be used primarily to gain access to records of business held either by the absent parent or his accountant. The agency can approach employers for information as a matter of course; and while it is possible that inspectors could be appointed to seek information from employers, that is not the primary purpose of the power.

The suggestion has been made that the inspectors might enter premises which are also dwelling places in the middle of the night, and that suggestion managed to get the hairs of my noble friend standing up on the back of his neck. But inspectors will not enter premises in the middle of the night or unannounced. The department has proved over many years that it can exercise this kind of power sensibly and sensitively. An inspector can only ask for admission to premises; he certainly cannot force his way in.

To date the agency has used these powers very sparingly. Since it began operations they have been used on a total of just fewer than 50 occasions. I do not accept that these are unusual or draconian powers, and it is clear from the number of times they have been used that they are used only in the most exceptional circumstances. The amendment would be extremely damaging since the power to appoint inspectors in a small number of often high profile and exceptional cases is the last resort in securing justice for the parent with care. Furthermore, while little use generally is made of the powers, the very fact that the agency possesses them is a deterrent to non-co-operation or indeed a deterrent against the provision of wholly false information.

The powers of inspection relating to establishing the income of the absent parent, or in a few cases the parent with care, are clearly the ones I have been dealing with, but there are a small number of cases, which were raised by the noble Earl, Lord Russell, involving personal questions. There are a small number of cases where paternity is one of the issues and it may be necessary to ask personal questions of the type the noble Earl mentioned. But I stress to the Committee that these kinds of questions are undertaken only in a very small number of cases where paternity comes into question. This is not at all related to the question of powers of inspection, which these three amendments cover.

I do not believe at all that these are in any way draconian, unique or unusual powers. They are sensible powers to give to the agency to enable it to carry out its task, which is to ensure that the absent parent pays the maintenance properly assessed and can be properly assessed for maintenance which can then be paid to help the parent with care and the children of his former marriage. I hope that the noble and learned Lord and the noble Earl will withdraw the amendments in their names. But if they do not, I hope my noble friends will support me in the Division Lobbies.

Lord Houghton of Sowerby

Listening to the speech of the noble Lord, one would think that he had picked up a brief from the Home Office on the detection of crime.

The Earl of Onslow

Can we not have these people going to get a warrant? If we had the old English system of being given a warrant by the magistrates for inspection, everyone would be happy. What sticks in some of our more libertarian minds is the fact that someone can just go and do it. This is an excuse which is heard every single time these powers are sought for other agencies. The. moment one more power for another agency is produced it is said that it is exceptional but that there is a precedent. That is how the argument on VAT was lost—the noble Lord, Lord Healey, said that the Tories had introduced it for something else. There is this ratchet, ratchet, ratchet—more powers of entry and more abuse of individual liberties. The bureaucratic reasoning of convenience is getting too, too dangerous for our society. We ought to be very, very wary of it.

4.15 p.m.

Lord Donaldson of Kingsbridge

Surely the whole thing depends on the wife who is left with a child by a man who by now dislikes her and has another wife. It is perfectly obvious that that man will not easily pay what he ought to pay. It seems to me that this is a long argument to try to stop what is right being done, and I am very surprised, having sat right through it.

Lord Simon of Glaisdale

Either last night or at Second Reading—I have forgotten which—I asked rhetorically what is the Conservative Party doing supporting this Bill, the 1991 Act and the kind of powers that your Lordships have immediately under review. I was therefore particularly gladdened by the intervention of the noble Earl, Lord Onslow. The noble Lord the Minister does not seem to realise the kind of powers that are exceptionally—I say "exceptionally"—being demanded. They may not be exceptional in the sense that other government departments may have already grabbed them. But they are exceptional in that individuals who have a grievance, to whom a debt is owed, have no such power and rightly have no such power. It is intolerable in a civilised society that people should have the power of entry and interrogation on the most private matters and to the detriment of a fellow citizen. We give no such power, for example, to the individual mother who was instanced; the individual wife who has been deserted and is owed maintenance. But we give the power to government departments. I was glad to hear a voice—a familiar voice to me—of the Conservative Party protesting against such powers.

I repeat what those powers are. They are now all under the review: the power of entry under penalty; the power of interrogation under penalty, including as to private matters. Those are not the only circumstances in which paternity is an issue, but we would not dream of allowing those powers in any other case. Therefore, the second power is the power of interrogation, including into private matters of finance, marital status and paternity.

The third is very important and was referred to—

Lord Mackay of Ardbrecknish

I am grateful to the noble and learned Lord for allowing me to intervene. I hope that I made it clear—if I did not, this gives me another opportunity—that the inspectors with whom we are concerned would not be the people asking the questions about paternity. The child support officers would be asking those questions in the very small number of cases in which paternity is an issue. The question of inspectors and premises is quite different from the issue of trying to establish paternity where it is denied.

Lord Simon of Glaisdale

The noble Lord will forgive me if I say that that is no answer at all; because it is an official who has the power, and no matter if that applies in only a small number of cases. It should not apply to any case.

The last matter is that of Inland Revenue confidentiality. The noble Lord, Lord Houghton of Sowerby, has spent many years of his youthful life in the service of the Inland Revenue in one form or another. He is also acutely aware of the social problems with which the Bill and the Act face us. The noble Lord rejects entirely—and entirely correctly—the infringement of Inland Revenue confidentiality. We have a very ancient and peculiar Inland Revenue principle in this country, going back right to the beginning of the system under the second Pitt. I refer to the principle of self-assessment. We rely on the individual to provide information to the Inland Revenue, and we assure him that if he does so and if he gives information honestly, his confidentiality will be respected. The information will not be handed round to any government agency which might care to use it against him. That is what is being done here, and I ask the Committee roundly to reject it.

4.23 p.m.

On Question, Whether the said amendment (No. 62) shall be agreed to?

Their Lordships divided: Contents, 48; Not-Contents, 116.

Division No. 1
Addington, L. Masham of Ilton, B.
Airedale, L. Merlyn-Rees, L.
Beaumont of Whitley, L. Northbourne, L.
Belhaven and Stenton, L. Ogmore, L.
Boyd-Carpenter, L. Onslow, E.
Darcy (de Knayth), B. Palmer, L.
David, B. Perry of Walton, L.
Dean of Beswick, L. Rea, L.
Faithfull, B. Robertson of Oakridge, L.
Fitt, L. Robson of Kiddington, B.
Foot, L. Russell, E. [Teller.]
Gregson, L. Sainsbury, L.
Grey, E. Seear, B.
Halsbury, E. Sefton of Garston, L.
Hanworth, V. Shepherd, L.
Hardinge of Penshurst, L. Simon, V.
Harris of Greenwich, L. Simon of Glaisdale, L. [Teller.]
Haskel, L. Stedman, B.
Henderson of Brompton, L. Stoddart of Swindon, L.
Houghton of Sowerby, L. Strathcarron, L.
Jenkins of Putney, L. Thomson of Monifieth, L.
Kilbracken, L. Tope, L.
McNair, L. Wigoder, L.
Mar and Kellie, E. Wynford, L.
Aberdare, L. Braine of Wheatley, L.
Addison, V. Bridges, L.
Aldenham, L. Butterworth, L.
Alexander of Tunis, E. Cadman, L.
Annaly, L. Campbell of Alloway, L.
Astor, V. Campbell of Croy, L.
Astor of Hever, L. Carnock, L.
Balfour, E. Charteris of Amisfield, L.
Blake, L. Clanwilliam, E.
Blatch, B. Cornwallis, L.
Boardman, L. Courtown, E.
Borthwick, L. Cranborne, V. [Lord Privy Seal.]
Brabazon of Tara, L.
Cumberlege, B. Milverton, L.
Davidson, V. Monckton of Brenchley, V.
Denton of Wakefield, B. Morris, L.
Dixon-Smith, L. Mottistone, L.
Dormer, L. Mountevans, L.
Dundonald, E. Moyne, L.
Ellenborough, L. Munster, E.
Elles, B. Nelson, E.
Elliott of Morpeth, L. Noel-Buxton, L.
Ferrers, E. Norrie, L.
Fraser of Kilmorack, L. Northesk, E.
Gainford, L. Oppenheim-Barnes, B.
Gilmour of Craigmillar, L. Orkney, E.
Glenamara, L. Orr-Ewing, L.
Goschen, V. Oxfuird, V.
Granard, E. Radnor, E.
Gray of Contin, L. Rankeillour, L.
Gridley, L. Rawlings, B.
Hacking, L. Rees, L.
Hail sham of Saint Marylebone, L. Romney, E.
St. Davids, V.
Harding of Petherton, L. Saltoun of Abernethy, Ly.
Harmar-Nicholls, L. Savile, L.
Hayhoe, L. Seccombe, B.
Henley, L. Selborne, E.
Hives, L. Sharples, B.
Holderness, L. Shaw of Northstead, L.
HolmPatrick, L. Skelmersdale, L.
Hood, V. Slim, V.
Howe, E. Soulsby of Swaffham Prior, L
Inglewood, L. Stodart of Leaston, L.
Johnston of Rockport, L. Strathclyde, L. [Teller.]
Kimball, L. Strathcona and Mount Royal, L.
Long, V. [Teller.]
Lucas, L. Sudeley, L.
Lucas of Chilworth, L. Swinfen, L.
Lyell, L. Swinton, E.
McColl of Dulwich, L. Terrington, L.
McConnell, L. Thomas of Gwydir, L.
Mackay of Ardbrecknish, L. Trefgarne, L.
Mackay of Clashfern, L. [Lord Chancellor.] Trumpington, B.
Vaux of Harrowden, L.
Manchester, D. Vivian, L.
Massereene and Ferrard, V. Wade of Chorlton, L.
Merrivale, L. Whitelaw, V.
Middleton, L. Willoughby de Broke, L.
Miller of Hendon, B. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.31 p.m.

[Amendments Nos. 63 to 66 not moved.]

Earl Russell moved Amendment No. 67:

Before Clause 18, insert the following new clause:

("Enforcement of assessments

.—(1) Sections 31 to 40 of the 1991 Act are hereby repealed.

(2) An assessment of child support maintenance shall be enforceable in accordance with this section, and not otherwise.

(3) Subject to the provisions of this section, an assessment of child support maintenance shall be enforceable in the same manner as an order made by a magistrates' court (or in Scotland, a sheriff court) for the making of periodical payments for the maintenance of a spouse.

(4) An assessment of child support maintenance shall not be enforceable unless and until there has been obtained from the magistrates' court (or in Scotland, the sheriff court) within whose district the person liable under the assessment resides ("the relevant court") an order authorising its enforcement.

(5) An application for an order authorising enforcement of an assessment may be made to the relevant court by the Secretary of State, or by the person entitled to receive payments under the assessment; and the Secretary of State, the person entitled to receive payments under the assessment, and the person liable under the assessment, shall be made parties to the application.

(6) Before determining such an application, the court shall ensure that all the parties to the application have been given an adequate opportunity to be heard; and any such party may be represented before the court by any person authorised by him, whether or not the representative would otherwise have a right of audience before the court.

(7) The court shall not make an order for the enforcement of an assessment unless it is satisfied that each of the following conditions is fulfilled—

  1. (a) that the time-limit within which an application for a review or appeal in respect of the assessment under sections 17, 18 or 20 of the 1991 Act may be requested or lodged has expired, and that any such review or appeal which has been requested or lodged has been carried out or disposed of; and
  2. (b) that the making of the order for enforcement will not create or contribute to the creation of a serious risk of causing substantial harm to the welfare of any child who is likely to be affected; and
  3. (c) that the making of the order for enforcement will not cause serious hardship or injustice to any person.

(8) The relevant court shall have the following powers—

  1. (a) to make an order for the enforcement of part (instead of the whole) of the periodical amount currently payable under the assessment; and
  2. (b) to remit arrears which have arisen under the assessment.

(9) Any order for the enforcement of an assessment shall specify—

  1. (a) the periodical amount currently payable under the assessment, and the periodical amount (being the whole of part of the amount currently payable) for which enforcement is authorised by the court; and
  2. (b) the amount of arrears existing at the date of the order (ascertained in the light of any evidence of payments made which has been received by the court), and the amount of arrears remaining after any remission ordered by the court.").

The noble Earl said: This amendment deals with the procedure for enforcement. The Act contains numerous special provisions on enforcement; for example, a deduction of earnings order. It is purely an administrative act. It is without any judicial intervention or any consideration of surrounding circumstances. The principle of this amendment is that enforcement would be carried out as with an order of a magistrates' court for spousal maintenance. So an attachment of earnings order by a magistrates' court would remain possible after a proper judicial hearing in which all the circumstances would be considered. It is this consideration of all the circumstances which is vital to us.

If he wanted an order, the Secretary of State would have to apply to a magistrates' court for it. That would have to be done before any enforcement measures. The court would have the right either to grant the order or to refuse it if a review or an appeal were pending if it was not satisfied that the child's welfare was sufficiently safeguarded or that hardship or injustice would be avoided. The court would also be empowered to authorise only partial enforcement and to remit arrears. That is a problem to which we must return.

I understand that this Act was brought in to deal with a real problem. The problem of securing maintenance for the parent with care was urgent and to which attention was overdue. But it is a rule that pendulums always swing too far and that rule has not been broken in this case. The parent with care has rights; but as I listened to the Minister replying to the previous amendment, he seemed to believe that those rights existed with such paramount importance that they blotted out everything else. That is not correcting injustice, but standing injustice on its head. It is a sadly common performance, but it is one which I do not believe has ever done very much to improve the world. I beg to move, and to get back to the rule of law where we belong.

Lord Mackay of Ardbrecknish

Both amendments seek to introduce substantial and wide ranging changes to the methods of collecting and enforcing child support maintenance. Like so many of the amendments tabled by the noble Earl, they give undue priority to the absent parent at the expense of the parent with care; the children for whom she is responsible, and at the expense of the taxpayer.

If either amendment were accepted, all cases where the absent parent did not voluntarily make arrangements for paying maintenance and any arrears, the Child Support Agency would have to apply to the magistrates' court for an enforcement order. That would cause delays in obtaining payment of maintenance for the parent with care; increase significantly the costs of enforcement, by more than £20 million a year; and result in big increases in the amount of work for the magistrates' courts.

Those courts would also have wide powers to refuse to grant an enforcement order if they considered the order would create or contribute to the risk of serious risk or harm to the welfare of any child likely to be affected, or the order would cause serious hardship or injustice to any person. They would also have the power to write off arrears. But most significantly, Amendment No. 67 gives the power to the magistrates' court to make an enforcement order for less than the full amount of the formula assessment.

The noble Earl has frequently made clear his opposition to this Act and this amendment would totally undermine its principles. The formula assessment was introduced precisely because the previous court system failed parents with care, the children and the taxpayer. Maintenance awards varied considerably and were generally of a low amount, with payment of maintenance often being given a low priority in the absent parent's obligations and expenditure. The formula system which we have devised gets away from these problems and gives an opportunity to the parent with care to look to the absent parent for fair maintenance to be paid on time and as agreed by the agency. The formula already contains a number of safeguards to ensure that the absent parent is asked to pay only an amount reasonable in his circumstances.

The main provision in this Bill is for a departure scheme. We have already discussed these provisions in some detail. The scheme will enable the maintenance assessed under the formula to be reduced in those cases where exceptional circumstances mean that the payment of the assessed amount would cause hardship. No absent parent will be asked to pay an unreasonable amount of maintenance. This not only means that it would be wrong for the magistrates' court to have the power, in effect, to reduce the assessment, but that there is no justification for arrears to be written off.

The amendment contains a number of other provisions that would further undermine the ability of the agency to obtain payment of maintenance in those cases where the absent parent deliberately seeks to avoid his responsibility to his children. It removes the ability of the agency to impose deduction from earnings orders without reference to the magistrates' courts. At present deduction from earnings orders can be issued without the need for this, providing a quick and effective means of getting maintenance into payment when absent parents do not co-operate. It is important for parents with care that maintenance is put into payment as soon as possible and, where absent parents refuse to pay, the deduction from earnings orders procedures help to ensure this. It takes about 25 days to issue a deduction from earnings order via the agency, but would take about eight to 10 weeks to obtain a liability order. Of course, if absent parents comply with their obligations to pay maintenance, the need for a deduction from earnings order does not arise.

In addition, applications to magistrates' courts could be made only when all reviews and appeals had been cleared. But that would create an incentive to absent parents who wanted to avoid paying maintenance to make vexatious applications for reviews of the assessment, or change of circumstances reviews, and to lodge spurious appeals to delay the point at which payment of maintenance could be enforced.

If any Member of the Committee believes that I am imagining those suggestions they should read some of the publications of one of the more vociferous organisations representing absent parents. Sadly, it is true that a minority of absent parents are committed to avoiding their responsibilities. It takes a minimum of several months to go through the process of completing a review and a child support appeal tribunal hearing and then only if all the relevant information is to hand and there are no delays of any kind. If one added to that the later intervention of the courts it is clear that unscrupulous absent parents could see delay being added to delay. The parent with care would be left wondering whether the absent parent was ever going to be called to account to pay maintenance.

We believe that the provisions in the Bill strike a balance between the needs of the absent parent, the parent with care, the children and the taxpayers. The effect of either of the new clauses would be totally to undermine the Child Support Agency's ability to collect and enforce maintenance effectively. There has been some criticism that the Bill does not give sufficient help to the parents with care. These amendments would be of considerable disadvantage to the parents with care because they would have to wait very much longer for maintenance to be paid, even assuming that the magistrates' court granted the liability order.

I believe that there is no justification for the amendments now before the Committee and I hope that the noble Earl will withdraw them. However, I can understand where he is coming from in respect of this matter and that he may feel strongly about it. He may well wish to test the opinion of the Committee and, if so, I hope that other Members will see the force of my argument and will support me in the Lobbies.

Earl Russell

I ask the Minister to withdraw the suggestion that this amendment does anything whatever to encourage those who deliberately refuse to pay their maintenance. An attachment of earnings order from a magistrates' court is not a negligible instrument to secure payment. The Minister's objection to it is that it would produce a delay of 39 days. I believe that 39 days to check whether you have got it right in a matter that is so important to the lives of all the parties concerned is not a negligible expenditure of time. It was extremely unjust and inaccurate of the Minister to make that suggestion. I repeat to him my invitation that he should withdraw it.

Lord Mackay of Ardbrecknish

I am sure that the noble Earl has no intention of encouraging anyone to delay making their proper payments. I was simply pointing out that there are such organisations. I have the newsletter of one of them in front of me; it is called NACSA. Reading through its pages one sees that the organisation is encouraging absent parents to use any possible means at their disposal, including trying to bring the whole workings of the agency to a halt, to prevent them having to pay their assessment.

Earl Russell

If the Minister wishes, as I do, to discourage that method of responding to political discontent he needs to provide an alternative outlet for that discontent. He needs to persuade people that it is possible to change things by legitimate political channels. That calls for rather more flexibility on his part than he has yet shown.

It is both inaccurate and unnecessary to attempt to count the amendments moved by any Member of the Committee to see which favour one sex and which favour the other. In any event, the Minister has done so before we have reached the benefit penalty, on which I shall have a good deal to say. Therefore, he has a grossly distorted figure. In relation to these issues, to be on the side of one sex or the other regardless of the facts of the case is a cheap and footling way of going about it. Both sexes are sometimes right and sometimes wrong.

Justice is proverbially blind. Until we started debating this Bill I had not realised how important that symbolism is. Justice is not interested in which sex you are; it is interested in the facts of the case. I know that the Minister's formula has become a fetish to the Government but the point about a formula is that it gets away from the facts. The Minister has deliberately invited me to seek the opinion of the Committee. I am capable of resisting temptation but I hope that before we return to many issues of this kind on Report there will have been a certain amount of thought on the other side of the Committee.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

4.45 p.m.

Lord Simon of Glaisdale moved Amendment No. 69:

Before Clause 18, insert the following new clause:

("Enforcement of liability orders by distress

. Section 35 of the 1991 Act shall be omitted.").

The noble and learned Lord said: The amendment seeks to leave out Section 35 of the 1991 Act, which gives power to the appropriate official to levy distress on non-payment of a liability order. I have a letter from the Minister, for which I am grateful, but I am afraid that it arrived only yesterday even though I raised the matter on Second Reading and in debates on the 1991 Act. I confess that I did not altogether understand the letter but that may be because I have no recent experience on this technical branch of the law; the law of distress.

Distress is an extraordinary remedy. It goes back to a primitive state of jurisprudence; namely, the state of self-help. Members of the Committee will know that the most striking feature of that time was the vendetta—the blood feud—in which revenge was taken for an injury. The very first steps on control of the self-help was limitation on the number of persons who could seek revenge and on the relationship to the offender of those on whom vengeance might be taken. That is the state of the law from which distress originates.

In other words, it is a remedy of self-help. The creditor could help himself to the repayment of a debt without any judicial process. He did that by seizing the goods of the debtor and holding them until the debt was paid and, if necessary, selling them and recouping himself for the debt.

Obviously, that remedy of self-help, of distress, required to be as anxiously guarded against for its abuse as the vendetta and the blood feud. Both common law and statute intervened to limit the way in which distress might be levied in order to ensure that it should not be abused. As I understand the noble Lord's letter—and I confess that I have not had time to study it properly—he is saying that Section 35 does not provide any extraordinary remedy; that it merely provides the same sort of right of distress that is now available to any citizen who alleges that he is owed money. If I have that wrong, the noble Lord must correct me.

If that is so, I fail entirely to see why the section is necessary at all. Why cannot the matter be left to the ordinary law of debtor and creditor? Bearing in mind the extraordinary powers which have been asserted and claimed and, indeed, vindicated recently in the Division Lobby without a hint of any concession at all, I view the distress provisions with very great suspicion.

If they do anything more than that which is available to the ordinary citizen who is a creditor, they give exceptional powers to officials. As I asked before: what are a Conservative Government doing to put forward such claims? What is the Conservative Party doing to support such a Bill? I beg to move.

Lord Houghton of Sowerby

I support the amendment. Distraint is the ultimate degradation of the citizen. The right to invade his house without his sanction should surely be reserved only for the police with a warrant in search of a fugitive from justice.

Section 35 is an indication of the depths to which the Thatcher administration would sink in the pursuit of a vendetta against a section of the community which the Prime Minister felt was getting away with something. "Make the blighters pay", said she. "Go and do it". This Bill was the outcome.

Although distraint nominally remains in the hands of the taxation authorities, it is extremely rarely necessary to use it these days. We are dealing not with fugitives from justice but with citizens who are in a different relationship to their obligations from others. It is not a criminal matter and should not be accompanied by the extreme power to enter and remove goods and sell them in order to recover the debt. That is the rock bottom of the evils of the Bill which contains so many injustices to a section of the community.

I cannot contain my indignation about the spirit of hostility behind this Bill against people who are believed to be so much in default of their obligations that they have to be treated as though they are thieves and vagabonds, and are subject to every possible device to track them down and bring them to face their charges of neglect.

Therefore, I support the amendment. I must express my regret that the debates at the Committee stage of the Bill have not shown the strength of the Labour Party on issues which affect personal liberty and the freedom of the citizen that I hoped they would show. Populist tactics are all right as far as they go but when you lie low on an issue of profound political and ethical importance, you should be prepared to stand and deliver. I am very sad indeed about that. But I shall not rest on this, as on some other matters, because if there is any point at all in being in Parliament, it is to protect incursions into the rights of citizens which are so easily taken away in panic and fear and in sheer cussedness sometimes because you want to get your own back on somebody who is, in your opinion, not performing properly his citizen's duties.

I do not know what my noble friend thinks about the amendment. It may be that there is something in the letter which he has only just received and which I have not been privileged to see. I have a whole bundle of letters which I have received in the last several days from various sources. I wish that I had received them a week ago. There is a letter in my file which is addressed, "My dear Jack". I assume that that is one of the letters to which the noble and learned Lord referred, but I do not believe that it is the letter relating to this amendment. "My dear Jack, what are you going to do?" I am prepared to support the amendment if the opinion of the Committee is sought.

Lord Mackay of Ardbrecknish

The amendment removes totally the provisions relating to the levying of distress. It would undermine the ability of the Child Support Agency to obtain payment of maintenance on behalf of the parent with care and children in those cases where the absent parent does not co-operate in meeting his responsibilities.

I repeat again that the agency makes every effort to reach an agreement with the absent parent about the repayment of arrears. There are a number of safeguards in place that limit the amount of arrears payable, the amount that the agency will seek to collect, and the maximum amount of current maintenance and arrears repayments in cases where he makes prompt arrangements to meet his liabilities. I should re-emphasise that enforcement action is considered only in those cases where the absent parent persistenty seeks to avoid his liabilities.

I accept that it is unpleasant for an absent parent to have bailiffs turn up at his house. But we must remember that the absent parent can avoid the need for this by co-operating with the agency. It is—dare I say to the Committee?—up to him.

With regard to the procedures, I should have thought that the noble and learned Lord, Lord Simon of Glaisdale, would be at least partially satisfied by the fact that the agency has to go to a magistrates' court in England and Wales and to a sheriff court in Scotland in order to obtain a liability order before the final steps are taken.

Lord Simon of Glaisdale

But is it not correct that the magistrates' court cannot review the order? It has to take the matter as it is stated by the Child Support Agency.

Lord Mackay of Ardbrecknish

I am not sure about the answer to that question, but certainly the court cannot start to look into the details of the assessment and re-judge the issue. What the court is able to decide is whether or not, in the circumstances presented by the agency, a case has been made—presumably on the grounds that the person has not paid and has persistently declined to do so. It is very much the last possible step that the agency would take. On those grounds, the magistrate or sheriff would have to be satisfied before he took such a step, as is the case with any magistrate or justice of the peace before he actually signs any kind of document in terms of the various orders that he is asked to sign. One has to satisfy oneself that the person appearing and asking for whatever order it may be—and in this case it would be a liability order—has made a justifiable case.

Therefore, while the magistrates' court cannot query the assessment itself, as I explained, like justices of the peace and other such people who are asked to sign documents regarding a wide range of matters in the law, those concerned must be satisfied that the person asking them to sign has made a proper case.

However, the important point is that we are dealing with someone who has had every possible opportunity to obey the law and pay the maintenance to the parent with care of the child or children. That is a fact. We are discussing the stage where we are, so to speak, at the end of the line. No one—such as the agency or the Government—likes to make use of the distress provisions. But, frankly, in those cases I do not see what else one can do except to say to the absent parent, "Well, it's a fair cop. You've won and we can't do anything about it. You can walk away and we can't do anything".

In the case of someone who has a wage, we can use the other order procedure. But, for example, in the case of someone who is self-employed, I regret to say that if he persistently and over time refuses to pay, I believe that the agency must have such a power as a last resort. I hope that the noble and learned Lord will feel able to withdraw the amendment.

5 p.m.

Baroness Seear

The Minister has told us what he thinks the crux of the matter is. However, for those of us who support the noble and learned Lord, the crux of the matter is that the power is in the hands of administrators and not those of the judiciary. That is what we cannot and will not tolerate.

Lord Simon of Glaisdale

Hear, hear!

Lord Mackay of Ardbrecknish

I am not in the least surprised by that because the party that the noble Baroness represents has made it perfectly clear all along that it would repeal the Act; that it does not like the agency; and that it would prefer to go back to the previous system with all its imperfections which, of course, are only imagined by those of us who think of it as imperfect. The noble Baroness obviously thinks that the system was perfectly fair and reasonable.

Baroness Seear

What the Minister is saying is totally untrue. Of course we do not support the wrongs which were done before. It is not a choice between two things; what we object to is what the Government are continuously doing. They are undermining the independence of the judiciary and putting the power into the hands of administrators. That is what we will not tolerate.

Lord Mackay of Ardbrecknish

I believe that there is a gulf between us on the matter. The previous system did not work in the view of most people. It certainly did not work in the view of the great majority of parents with care. We believe that if the agency had the chance it would and could run properly; indeed, it will run properly once the refinements in the Bill are introduced.

Earl Russell

No one is maintaining that the previous system was perfect. However, did the Minister hear what I said on the previous amendment; namely, that pendulums always swing too far? Will he respond to it?

Lord Mackay of Ardbrecknish

I am not sure whether it is the law of physics that pendulums swing too far. If that were so, I do not believe that clocks would work. I understand the noble Earl's point and, to a certain extent, he is right. We are introducing the departure system in the legislation. That means that we recognise that there are some legitimate concerns about the workings of the 1991 Act. We are taking such steps in the Bill and, when they are in place, we believe that the system will run very much better. It is to be hoped that it will work to the benefit of the many parents with care who were not and are not receiving their maintenance because of the behaviour of some absent parents.

However, I believe that there is a political divide. Of course, I am well aware that the Liberal Democratic Party is hoping to gain considerable support from parents with care. In fact, the NACSA newsletter which I have in front of me invites its members to canvass for the local Liberal Democrats.

Earl Russell

Will the Minister take note of the fact that the amendment was moved from the Cross Benches?

Lord Simon of Glaisdale

The Minister has not answered the question that I asked. It is possible that I put it too generally. I asked whether this gives exceptional powers to the agency or its officers—or, indeed, to the Secretary of State—which are not available to the ordinary individual creditor. Perhaps I should put it more specifically.

Section 35(2) of the 1991 Act says that the, Secretary of State may levy the appropriate amount by distress", and "the appropriate amount" is set out in paragraph (b) which refers to, an amount, determined in such manner as may be prescribed, in respect of the charges connected with the distress". Is there any power, except in retrospect, for a private individual levying distress through the courts in the way that the Minister described to fix his own amount of the charges? That is the first specific question.

Looking a little further on at subsection (5), one finds the words: No person levying a distress under this section shall be taken to be a trespasser—

  1. (a) on that account".
Is that not an extraordinary provision? The law normally says that any illegality constitutes the person levying the distress a trespasser.

However, subsection (7) says: The Secretary of State may make regulations supplementing the provisions of this section". Is that not also an extraordinary provision? What other creditor can alter the rights of distress? But it does not end there. Subsection (8) says that the Secretary of State may, provide [by regulations] that such a distress shall not be deemed unlawful on account of any defect or want of form in the liability order". If my recollection of the law of distress is anything like correct, that, too, is an extraordinary provision.

I believe that I passed over a subsection that I should have mentioned. Subsection (6) refers to, special damages by reason of any irregularity", whereas subsection (5) refers to a person being "taken" to be a trespasser, from the beginning, on account of any subsequent irregularity in levying the distress". Is that according to the ordinary law? My recollection is that certainly an illegality relates back. I do not understand the reference to an irregularity. There are three things that are hedged round the law of distress. One is that an illegal distress renders the proceedings void from the beginning and gives rise to special damages, the second is an irregularity and the third is an excessive distress. Perhaps the noble Lord can explain the meaning of irregularity here and explain whether it does not—as in the cases to which I have referred since intervening on this occasion—confer an extraordinary power on officials which the ordinary individual creditor going through the court does not enjoy.

Lord Mackay of Ardbrecknish

I do not intend to get into a legal debate with someone of the noble and learned Lord's eminence any more than I would take myself to Wimbledon in the next week or two and ask to play against the No. I seed. I hope that the noble and learned Lord will accept that I am not going to get into too deep legal waters with him—I fear he knows his way about much better than I. In the first place of course an ordinary individual can apply to the court for a debt judgment and can then apply for distress—and the CSA is no different—once the liability order is obtained from the magistrates' court. Therefore, the procedure of distress is—

Lord Simon of Glaisdale

I come back to my very beginning. If this is no more than any ordinary creditor can enjoy, why do we have this section at all?

Lord Mackay of Ardbrecknish

I knew that I should not have played legal tennis with the noble and learned Lord. It is a matter of where the agency starts in making these formula assessments. As I said earlier, the magistrate (or the sheriff in Scotland) will not be in a position to get into the detail of how the formula assessment has been made up and whether it is right or wrong. That is not part of his role. I am not sure what the magistrate or the sheriff does in the case of an ordinary and private individual and to what extent the sheriff or the magistrate would explore whether the debt was a proper debt and what evidence was in front of him that it was a proper debt. Clearly the agency starts from the assessment formula—it is a public agency—and therefore it comes to the court with a debt which it has arrived at through the formula and through the fact that the absent parent has not paid, not just for a week or two but for some considerable time.

The noble and learned Lord asked whether I could give any other examples as regards the regulation-making powers. The regulation-making powers relating to distress mirror the provisions in the County Courts Act 1984. On the question of the provision relating to trespass and whether it accords with the ordinary law, there are parallel provisions in the same—

Lord Simon of Glaisdale

I am sorry to interrupt the noble Lord again. I am afraid that I do not understand—probably because I have not looked at it recently—his reference to the County Courts Act. Surely under that Act there is no power for the individual creditor to fix the charges. But that is what is done in this statute and that is the matter to which I referred. The noble Lord is looking at the Act. It gives the Secretary of State power to fix the charges which he considers are incidental to the distress. It is that I am asking him about.

5.15 p.m.

Lord Mackay of Ardbrecknish

The position is as I have tried to explain. The Secretary of State of course, from this point of view, is the agency, and that applies too to its officers who are going to the court. I imagine that the charges are the charges relating to what the absent parent owes. I shall not continue to discuss these legal technicalities with the noble and learned Lord because, as I said, it would be as if I had attempted to play the No. 1 seed at Wimbledon when my tennis is not just poor but non-existent. The point is one of principle and that is what I invite the Committee to agree with me on.

The point of principle is that, if in the last analysis an absent parent has proved to be totally unwilling to pay his maintenance to the parent with care and to the children, we either take these drastic steps—I accept that they are drastic and I trust that they would be used only in extremis— or we simply hold up our hands and say, "Well, boy, you have got away with it. You have played us to the end game and the House of Lords has taken away our powers to make sure that you pay at the last". I do not believe that the Committee wants to do that.

Earl Russell

Does the Minister understand the case that argues that no intention, however good, should be pursued in total isolation from other considerations? His intention is good, but the Minister knows what is paved with good intentions.

Lord Mackay of Ardbrecknish

The intention is indeed good and I am glad to hear the noble Earl underline that. The problems of the absent parent ought to have been and will have been attended to through the assessment and through the departure, but we are talking about someone who is simply not paying. In those circumstances, as I have said, there has to be a final stop so that the absent parent cannot get away with it. Organisations like the one I mentioned would advise every absent parent to take the same route and, regrettably, a few would probably do so.

Lord Houghton of Sowerby

This is the first opportunity that we have had in this Chamber to review the Act which was passed several years ago and of which the Government have now had several years of experience. The noble Lord will have seen this amendment down on the Marshalled List. Can he say what use Section 35 has been in the recovery of payments from any person under the 1991 Act? Is there any known case of distraint? If not, or if it has been practically unused, can we not remove this theoretical incursion into the dignity and the rights of individuals? Why keep it in and let it stand as part of the monument of hostility and venom against this group of our citizens?

Lord Mackay of Ardbrecknish

The process has been used by the agency. I indicated why I thought it was necessary. The important point is that it is there also as a deterrent. It is not just a matter of the number of occasions on which it has been used, but the number of occasions on which it has been helpful to show an absent parent in these circumstances that, if he does not pay, there is a final action which the agency can take, which is unpleasant for everyone concerned and which the agency does not want to take but which has to be there if people are not to get away scot-free and pay nothing at all.

Lord Simon of Glaisdale

We have at last got to the point of principle. The noble Lord says in effect that no one need suffer the inconvenience and humiliation of distress if he pays the debt. That is like saying that no one need suffer a black eye from the police if he is prepared to go quietly. That simply will not do.

The debate has been worthwhile, if only for the intervention of the noble Baroness, Lady Seear. It ill-becomes the noble Lord or anyone on the Treasury Bench to sneer in those terms at the Liberal Democrats. They have played a valiant part in this Bill, as in the 1991 Act, approaching it with great knowledge of the social background, the benefits system and with respect for the rule of law.

I asked the noble Lord a number of questions, which he declined to answer on the grounds that they were legal questions. In my defence, I say that I questioned this provision back in 1991 and again at Second Reading. However, the Minister may want to think about what has been said. It is obvious that this is a matter to which we shall wish to return at Report Stage, if only to highlight the particular matters to which I referred and which the Minister sidestepped. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 70:

Before Clause 18, insert the following new clause:

("Commitment to prison: evidence

. In section 40 of the 1991 Act, in subsection (11) (c), before "evidence" there shall be inserted "prima facie").

The noble Earl said: This amendment also concerns the rule of law, but is in a very much more minor key. It is one to which I hope the Minister may respond favourably without too much difficulty or without great sacrifice.

The amendment deals with the clause in the 1991 Act bestowing a power of imprisonment, against which my noble friend Lord McGregor of Durris fought so heroically in 1991. At present I am not attempting to remove that power. I am taking up only one point in subsection (11) (c) of Section 40 of the 1991 Act, which concerns evidence. It states: that a statement in writing to the effect that wages of any amount have been paid to the liable person during any period, purporting to be signed by or on behalf of his employer, shall be evidence of the facts stated".

I propose to insert the words "prima facie" before "evidence".

I do not object to the use of the evidence, I ask for it to be possible to deny it. The word "purported" in the 1991 Act itself indicates the possibility of a need for challenge. I ask for the support of any Member of the Committee who has ever received an inaccurate payslip. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, the amendment relates to the provisions for committal to prison. As the noble Earl pointed out, its purpose is to give less weight to statements obtained from an absent parent's employer that wages had been paid. Such evidence is of course relevant for the court to consider when deciding if there was wilful refusal or culpable neglect on the part of the absent parent.

In our earlier debate on issues surrounding collection and enforcement of child support maintenance, I made it clear that we do not envisage that the provisions relating to committal to prison will be used on many occasions. The agency has never used them. However, there will be some cases when it appears that the absent parent had the ability to pay but deliberately refused to do so and an application for committal will be appropriate.

Presumably the noble Earl intends with this amendment to make it more likely that a court will refuse an application. However, I can see no reason why a statement from an employer should carry less weight than other evidence, even when I hear the noble Earl mention mistakes in payslips. It is also important to understand that the Act does not make a statement from an employer conclusive evidence. It is for the magistrates to consider that evidence, along with any other evidence put forward by the Child Support Agency or the absent parent. In the previous court system there was always the power to send maintenance defaulters to prison. Therefore, this is not a new provision in this particular field.

My response to the noble Earl touches on a very fine point. It is for magistrates to consider that evidence. I suggest that if payslips are wrong, that is part of the evidence that the absent parent will lead.

Earl Russell

I am most grateful to the Minister. When he said that it is not conclusive evidence, he gave me the point for which I ask. It is possible to challenge it. I am very glad of that assurance, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell had given notice of his intention to move Amendment No. 71:

Before Clause 18, insert the following new clause:


. In subsection (3) of section 41 of the 1991 Act, at end there shall be inserted, "provided always that, if the absent parent shall resume residence with the parent with care, the Secretary of State may, with the agreement of the parent with care, waive any arrears, or any portion of arrears; if it appears expedient to him to do so, and provided always that no arrears shall be collected unless it is conducive to the welfare of the child to do so."").

The noble Earl said: This again is an issue which I argued at some length in 1991. It concerns the levy of child maintenance from the absent parent on income support. Income support is not a particularly generous benefit.

Baroness Hollis of Heigham

I wonder whether the noble Earl is speaking to the right amendment. Amendment No. 71 was grouped and discussed with a previous amendment. I wonder whether the noble Earl is perhaps speaking to Amendment No. 72?

Earl Russell

I am most grateful to the noble Baroness. I should be speaking to Amendment No. 72. However, at least I am talking about the right subject. After the Jobseekers Bill I am very relieved about that.

[Amendment No. 71 not moved.]

Earl Russell moved Amendment No. 72:

Before Clause 18, insert the following new clause:

("Contribution to maintenance by deduction from benefit

. Section 43 of the 1991 Act shall be omitted.").

The noble Earl said: I rise to move Amendment No. 72, which deals with the levy of child maintenance from an absent parent on income support.

When we debated Amendment No. 52 last night the Minister said that the income support rates provide a benchmark for assessing need. I told the Minister then that I was grateful for those words and that he would hear them again. That is precisely the point. It is not a generous benefit. It is not intended that such a large surplus should be left over that people are capable of paying large sums in addition.

That is not all. We have heard many times in this Chamber, many of them before the Minister came here, of the number of deductions to which people on income support may be subject: for gas, water, electricity, rent, Social Fund loans, court fines and many others. There is a rule in the department that deductions should not normally rise above 15 per cent. If the Minister were to wish to give me a crumb rather than the whole substance of the amendment, he might concede that levies of child maintenance should be subject to the 15 per cent. rule, because beyond that people are getting very near the bone. They are getting to the point where one needs to consider the risk of malnutrition.

The Minister may also consider whether, from the point of view of the department, the procedure is cost effective. At the moment the levy of £2.30 a week is levied on 18,300 parents, which is 10.5 per cent. of the total assessments. That is an awful lot of work to collect a very small amount of money. I am not sure whether it is a cost-effective use of money, and I am sure that it is not a cost-effective use of the time and effort of the agency. It takes a great deal of time to collect these small sums, and the Minister must face the fact that the agency has been overburdened with work to a far greater extent than the Government ever foresaw.

If the Minister gives his usual reply that the absent parent must pay and that maintenance must take priority over all else, and he gives that priority over the need to avoid malnutrition and over the interests of the Treasury and efficient government, then I shall think that the Minister is in danger of obsession. I beg to move.

5.30 p.m.

Lord Mackay of Ardbrecknish

This amendment seeks to remove the requirement for absent parents who receive income support to make any contribution to child maintenance by way of either current payments or arrears.

I have made it clear sufficiently often that the Government believe that all absent parents should normally provide at least a small contribution towards their children's costs. The amendment would mean treating income support recipients more favourably than absent parents with similar levels of income from other sources. The standard current maintenance contribution in these cases, £2.35 per week from April 1995, provides a small but continuing recognition of the financial responsibility which parents have for their children.

When I mentioned the bench mark, I was well aware that the noble Earl would come back at me. However, £2.35 is not a huge amount, although I fully accept that we are not talking about large incomes. On the other hand, I believe that the point about the continuing recognition of financial responsibility is important. We recognise that it would not be right to expect absent parents to pay maintenance in all circumstances. Therefore there are some groups which are not expected to make that contribution. Those who are aged under 18, those who are sick or disabled, or those who have a child living with them are not expected to make that contribution. The income support recipients who contribute will be those aged 18 or over who are seeking work. When they find work the fact that they are already paying the modest amount of £2.35 will be a useful indication and reminder to them that when they start work they will have to provide support for their children.

We also recognise the need to provide additional safeguards for those absent parents who have failed to budget for other essential expenditure and who could face eviction from their homes or disconnection of fuel or water supplies. Deductions from income support to meet rent arrears or fuel or water charges are given priority over child maintenance. It is the one exception that I think I shall make to my usual principle—just in case the noble Earl jumps up to say that I contradict much of what I said. However, in those very special cases we accept that those deductions should be given priority. When those deductions apply, the £2.35 contribution to child maintenance is not required.

Given the existence of those safeguards, I do not believe that it would be right to go the step further and treat all unemployed absent parents who receive income support differently from those with similar income from work.

I hope that with my explanation of the exceptions that are in the system already the noble Earl will withdraw the amendment.

Earl Russell

Before we go further, perhaps the Minister will assist me by telling me what general principle governs the few cases which are excepted from the Government's normal rule. If we can discover the general principle, we may be able to consider it.

Lord Mackay of Ardbrecknish

Sometimes one looks at the practicalities. The practicalities are that we are talking about people on income support. As I mentioned earlier, we have already excepted those who are aged under 18, sick or disabled, or who have a child living with them. They are not expected to make a contribution. We have considered the special circumstances of those who have problems paying their rent arrears or fuel or water charges. We believe that in those circumstances it would be right to make a small breach in the general principle. I am a little surprised that the noble Earl encourages me to stick to the broad principle.

A principle is not in any way limited if we are prepared in very exceptional circumstances to depart from it. I believe that these are very exceptional circumstances, whereas most of the other circumstances from which I have been invited to depart are not exceptional.

Baroness Hollis of Heigham

Perhaps I should know this, but I do not. I am not sure whether the Minister should have mentioned the Social Fund loan deductions. If he did so, I did not hear him. Do they also take precedence? My understanding is that they do. In other words, one is not referring only to the mandatory court-imposed repayments, but also to the Social Fund loans.

We come up against a real problem. There is so much top slicing of benefit that living standards are depressed well below income support levels. Perhaps the Minister can give guidance on this.

Lord Mackay of Ardbrecknish

I shall have to take advice before I can give any guidance on Social Fund loan repayments.

Earl Russell

The Minister misinterpreted me. I do not object to his having more than one principle. With regard to principles, there is genuinely safety in numbers. Principles need social sense just as much as human beings. If the Minister has a second principle which can keep company with his first principle, I hope that they may have a reproductive faculty so that in the end we gain a few more.

I ask the Minister a slightly different question. What is the general category to which the individual list of exceptions belongs? Is there a general category, or are the exceptions arrived at randomly? If he will enlighten me on that, I should find it helpful.

Lord Mackay of Ardbrecknish

The exceptions are not in a general category; nor are they arrived at randomly. Each individual circumstance is considered. Like the other three more general cases to which I referred—the child living with the person, those under 18, and those who are sick or disabled—a decision has been taken that an exception shall be made in the case of rent arrears and fuel and water charges.

Earl Russell

I wondered whether the Minister might say that the common factor in those cases was that they all involved hardship. Indeed they do. My contention is that this also is a case which involves hardship. The basic levels of income support do not leave much margin for safety. As the noble Baroness said, benefit is so consistently top sliced by deductions for this, that or the other that it is normally down to the bone. For example, I do not see why child maintenance and Social Fund loans should be forced into competition with each other so that if you pay one, you necessarily have to default on the other.

The Minister was not present when we last debated the National Children's Home report on levels of debt and hardship among those on benefit. It was somewhat distressing. So was the National Consumer Council report, Your Food: Whose Choice?, which argued that in a great many areas of the country, especially those remote from cheap shops, there is real difficulty in securing an adequate diet on income support.

It is in that context that I believe the attempt to levy child maintenance on absent parents on income support causes real hardship. If hardship were the governing principle of the Minister's exceptions, I believe that he would accept the amendment. Perhaps he will consider the issue before a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 73:

Before Clause 18, insert the following new clause:

("Applications by those receiving benefit: failure to comply

. Section 46 of the 1991 Act shall be omitted.").

The noble Earl said: The amendment concerns the 20 per cent. penalty on the parent with care if she refuses to name the father of the child. This House defeated the Government on that issue in 1991. However, as that occurred on Budget day, no one outside these walls noticed.

It is an issue of considerable importance. A great many women for a great many reasons—some good, some bad and some indifferent—are extremely reluctant to name the fathers of their children. It may be that they are protecting someone's reputation. It may be that they are afraid of violence. Although we are grateful for the provisions relating to harm and undue distress, there are still problems regarding their operation.

For many centuries sporadic attempts have been made to force women to name fathers. Those attempts have always failed. The sense that it is a sheer impertinent intrusion into privacy has a great deal more power than this Government have ever understood. That is one argument.

The second is the level of the benefit penalty, which is 20 per cent. of the absent parent's income support, followed by a further period of 10 per cent. I have already argued against the 5 per cent. deduction from the absent parent, so a fortiori I must argue much more strongly, as I have done before and will do again, against a much larger deduction from the parent with care. This is yet another case in which the welfare of the child principle in Section 2 of the Act does not bite on the Bill as it should.

I believe it was the noble Lord, Lord Henley, who argued with great confidence that the deduction of 20 per cent. from the mother's benefit had no harmful effect on the child. That is not credible. The removal of 20 per cent. from the household budget cannot be without effect on the child. One does not have separate small portions of butter, one marked "hers" and the other marked "theirs". If there is a total reduction in household income, the whole household must suffer. This is a draconian penalty which shows that the Bill is not being brought in in the interests of the parent with care—much though they have been invoked—nor in the interests of the children, but in what was mistakenly believed to be the interests of the Treasury.

We have heard of about 18,000 cases where the benefit penalty has been imposed. I have given the Minister notice that I wish to ask what has happened to those cases. How many of them have, under duress, subsequently named the father of the child? How many have refused to do so and remained on reduced benefit through to the end of the period? When they have, has the reduced benefit penalty been imposed on them a second time for refusing to do it? How many of them have succeeded in corning off benefit in lawful ways? How many have been arrested? How many have simply disappeared from the records? A government who claim, as this Government persistently do in social security matters, to monitor the effects of their legislation cannot refuse to monitor the effect of the benefit penalties which they impose. If the Minister has no answer to the questions, it is an alarming piece of ignorance.

Many women have come off benefit altogether rather than submit to the intrusive personal inquiries. The last figure I saw for them was, as I recollect, 50,000. However, that was some time ago and it may well be out of date so I am willing to be corrected. The Secretary of State suggested that that was a measure of fraud. I asked at Second Reading—so the Minister has had notice of my question and he has also had notice privately—whether there was any evidence for that suggestion of fraud. If so, in what proportion of the large number of cases? We need to know why those people have gone off benefit and what has happened; what visible means of support they have, what hardships they have endured and what ways they have found of scraping a living. It may be miserable or degrading. If we do not have that information, we cannot monitor the effect of the policy. Here we have a continuing injustice—of which this House disapproved once and I hope that it still does. I beg to move.

5.45 p.m.

Lord Mackay of Ardbrecknish

Section 46 of the 1991 Act provides for a child support officer to impose a reduced benefit direction in respect of a parent with care who has refused to co-operate in the pursuit of maintenance without good cause. The purpose of the benefit reduction is to make a parent with care think carefully about her decision not to co-operate. Just as we expect absent parents to meet their responsibilities and pay maintenance where they can afford to do so, so it is right that parents with care should co-operate in the pursuit of that maintenance unless they have good reason not to do so. It is not right that the burden should fall to taxpayers, many of whom have children of their own.

No parent with care has her benefit reduced without very careful consideration and, even after the benefit reduction has taken effect, she is able to come forward with fresh representations at any time. I probably misheard the noble Earl, but I should make clear that the reduction is 20 per cent. in the initial stages and then 10 per cent. of the adult income support allowance for people aged over 25. It is not 20 per cent. and 10 per cent. of the parent with care benefit. It is the adult component.

Before I turn to the noble Earl's major point, he mentioned the parent with care protecting someone's reputation. The agency will do everything possible to preserve confidentiality. For example, it will correspond with the absent parent at an address other than his home. It will not say that it is the Child Support Agency if it has to telephone the absent parent's workplace in order to contact him. The agency will take steps to try to ensure that confidentiality is observed. However, I do not believe that it should become such a great concern that it overrules the facts. I frankly suspect that in the circumstances being considered the person may be well able to look after the child and pay maintenance.

The noble Earl asked a more general question about what happened to women who go off benefit, which he has asked on a number of previous occasions. The department does not keep details of people who cease to be benefit claimants. There is clearly much coming and going with benefits and it would be a huge task to keep details of everyone who left benefit and what happened to them. Would it be for a week, a month or a year? I can imagine a Bill being brought forward to give some agency the power to follow someone in their career and what they do in order to ensure that it can collect the information required to obtain a picture of what that person does after she comes off benefit. I can imagine a Minister presenting such a Bill and the kind of reaction that he might deservedly receive.

As to the specific point of reduced benefit directions, I have already mentioned that 18,000 parents with care have had a reduced benefit direction. It is worth emphasising again—and I do so from memory so someone will correct me if I am wrong—that about 73,000 parents with care have had their reasons accepted for not saying who the father was. Returning to the figure of 18,000 parents, we do not have specific information about the outcome of reduced benefit directions and what happened with them. If it is some consolation to the noble Earl, the department is currently conducting a wide-ranging review of the operation of the good cause provisions on the instigation of the Social Security Select Committee of another place. The review has already invited comments from groups advising parents with care, including the Child Poverty Action Group and Women's Aid group, seeking to gather evidence of the impact of the policy from a wide range of sources. The report will be presented to the Select Committee in this financial year.

I hope that that shows that we may be in a position to give the noble Earl some indication on one of the questions which he asked. I also hope that he will agree that the power to impose the 20 per cent. reduction is regrettably needed; otherwise parents with care would simply decide that they did not wish to have any more to do with the absent parent or would rather carry on with income support and not draw the absent parent into the agency's ambit. That would be wrong because the person who picks up the tab for that decision is the taxpayer.

Earl Russell

Before the Minister sits down, can he answer my questions about the women who have gone off benefit altogether rather than face the provisions of this Act?

Lord Mackay of Ardbrecknish

I thought that I had answered that question when I said that we do not keep track of people who go off benefit, either in general or specific terms. I am afraid that we do not have any particular evidence that we can give about what happens to women who leave benefit in those circumstances.

Earl Russell

If the Government have no evidence, why did the Secretary of State say that these cases were evidence of fraud? Had the Secretary of State any basis for making that charge?

Lord Mackay of Ardbrecknish

I am interested that the noble Earl has raised the question of fraud. At least some of those cases will represent collusive desertion; collusive desertion does exist. In other cases, we accept that the partner with care has perhaps had second thoughts and the partners have returned to living together. That may well be one of the outcomes. The parent with care may have taken up work, or may be living with a new partner. It is certainly difficult to believe that parents with care leave income support and then proceed to live on nothing. After all, they would be better off refusing to co-operate and accepting a reduced benefit direction. So they are not just saying, "I am not going to say who the father is. I can't really give you any good reason, but I am prepared to accept the reduction". They are in fact saying, "I don't want any income support". There are probably a considerable number of reasons why they leave income support. But it seems hard to believe that they choose to live on nothing when they could have stayed on income support, even at the reduced levels.

Earl Russell

The Secretary of State has used the whole of this category of women as evidence of fraud. Indeed, he has taken it as a quantification for fraud. Can I take it that the Secretary of State made that allegation entirely without evidence? If so, will the Minister convey to him my request that he will withdraw it?

Lord Mackay of Ardbrecknish

I shall certainly look at what my right honourable friend said. I am not prepared just to accept this discussion on its face value. As I indicated, there will undoubtedly be some who will have been in collusive desertion; some who go back to their partner; some who re-partner; and some who find a job. If the noble Earl thinks that government ought to indulge in the kind of work that would be necessary to answer all these questions, then one or two people may agree with him. I do not agree with him at all.

Earl Russell

What I do believe is that governments should not adopt policies in total ignorance of their likely effects. The Minister knows perfectly well that I do not suggest that everybody who is not on benefit should be studied all the time. The Minister knows—or at least, he knew when he made the last up-rating statement—the word "pilot". The Minister knows that there is such a thing as academic research, which can be done with a controlled sample. It is perfectly possible to commission research on the effects of disentitlement to benefit or reduced benefit directions. It is criminally irresponsible of the Government, and indeed careless of public money, to implement this provision without having any idea of its effects.

The Minister once again invoked the interests of the taxpayer. Once again, let me remind him that I am a taxpayer and as such I am ashamed that my comfort should be based on taking bread out of the mouths of women and children who have done nothing wrong except wanting to protect their private lives. I can see no justification for that.

We simply do not know what has happened to most of those who have gone off benefit. I agree with the Minister that they are probably not living on nothing—from which the question necessarily follows: are they living legitimately? That raises a question as to whether they may be costing public funds a great deal more than they otherwise would.

The Minister praised the confidentiality provisions. In the light of a lot of the cases that have come into my postbag, I am extremely surprised that he is so confident of the confidentiality provisions of the agency. If the Minister were a woman, dealing with a man in a prominent position in the public eye and in whom the press might take an interest, would he take the risk that the confidentiality provisions would be observed? If the person were in the entertainment industry and certain tabloid newspapers would pay many thousands of pounds for the information, would the Minister trust junior, ill-paid officials to resist the temptation in all circumstances? I am not sure that I would. And I am not sure that a great many other people would, either. There is a great deal more mischief in this provision.

Lord Mackay of Ardbrecknish

I should have thought in the kind of hypothetical situation that the noble Earl suggests, the man involved might happily be perfectly prepared, and certainly able, in the light of the kind of definition that the noble Earl put forward of his position, to pay the maintenance required for any such child on a private basis, and the mother would not have to go to the income support system in order to seek maintenance for herself and the child.

Earl Russell

I did not for one moment suggest that the man in this situation would be blameless; quite the opposite. Indeed, the woman in this situation might be suffering from foolish good nature. But is that a quality to which we must apply such ferocious legislative penalties? Is a lingering affection for somebody one has once loved so gross a crime? I am very surprised that the Minister should think so. In the meantime, I do not think that I can get any more answers out of him, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 74 and 75 not moved.]

Earl Russell moved Amendment No. 76:

Before Clause 18, insert the following new clause:


. Section 47 of the 1991 Act shall be omitted.").

The noble Earl said: I can deal with this amendment quite briefly. It deals with the requirement to pay fees to the agency for its services.

There is a problem with the agency in that the amount ii is demanding is too heavy. It is causing very great hardship. On top of that, to be asked for fees for a service that one did not request, appears to many people to be adding insult to injury.

I appreciate that agencies cost money. But whether those costs should fall on individual parents, or whether they are costs that are more properly attributable to the whole of society, and indeed to those very taxpayers whom we are so often told are benefiting from the Act, is a question that deserves consideration.

The fees can create a real burden. They certainly cause a great deal of anger. They certainly contribute to the cumulative shock when the maintenance demand, the fees and the arrears all arrive at one and the same time.

The Minister is rightly concerned with the need to collect money. But a lesson that he might have learnt from the failures of the poll tax is that the best way to collect more money is to acquire a rather greater degree of consent to the procedures that are being operated than he has at present. If the Government want to make the agency popular enough to work, this is something that they could very well do. As the Minister's honourable friend Mr. Burt said in the other place on 15th December last, the agency does indeed need friends. Is the Minister not prepared to do a tiny little hit to win it some? I beg to move.

Lord Mackay of Ardbrecknish

I am sure that those who are interested in this particular field will be aware that fees have been suspended for two years from April of this year. As the Child Support Agency .acknowledged, it has not been able to provide the level of service that people have a right to expect. The principle of charging fees remains entirely sound. Where the Government provide a service, it is usual to charge a fee which recovers the full cost of the service provided. I must point out to the noble Earl that under the previous system of child maintenance, parents often had to meet the legal costs of consulting solicitors and going through the court system.

Now that the Child Support Agency provides that service, it would be wrong for the taxpayer to subsidise those parents who can afford to pay. It is important to remember that fees are charged only to those parents with care and absent parents who are in a position to pay the fees; in other words, non-benefit cases. Parents with care and absent parents receiving income support, family credit or disability working allowance and absent parents whose maintenance is restricted by the protected income provisions are exempt from the payment of fees.

The fees have been suspended. But, leaving that aside for the moment, it is not that they are imposed on absolutely everyone. A very large number of people who come into the categories I mentioned are not asked to pay fees. It is only those non-benefit cases who are asked to pay fees. As I pointed out, under the previous system, to which the noble Earl would like to move back provided there were some changes, such parents undoubtedly would have had to meet legal costs and the costs of going through the court system.

However, the point that I want to make to the noble Earl is that the fees have been suspended for two years.

because, as I acknowledge, the agency has not delivered the service that it ought to have done. With that reminder—I am sure that he was well aware of it—I hope that the noble Earl will be prepared to withdraw his amendment.

6 p.m.

Earl Russell

As the Minister suspected, I was aware that fees had been suspended. "Suspended" is described in "1066 And All That" as "a modified form of hanging". My request was to delete the modification. I do not see why the fees have not been abolished.

The Minister's comments about the services of a solicitor show that he has not understood the point of the amendment. In paying fees to a solicitor, you pay for something which you yourself have requested. There is a certain fairness in that. In this instance, people are being forced to pay for a service which they most certainly have not requested and which in many cases they most earnestly desire to avoid. That is a very different matter. It shows how much the customer model of public service has got out of hand. These people are not the customers of an agency any more than the inmates of a maximum security prison are its customers. I am aware that in strict government logic I ought now to call them such, but I do not do so.

There has not been a meeting of minds. We cannot go any further now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 77:

Before Clause 18, insert the following new clause:

("Obtaining information by menaces or false information,

.—(1) Section 50 of the 1991 Act shall be amended as follows.

(2) After subsection (1) there shall be inserted—

"(1A) A child support officer who obtains information under section 6(9) (a) by means of menaces or false information shall commit an offence and in all such cases the Child Support Agency shall pay damages to the parent with care, and shall have no further jurisdiction in the case." ").

The noble Earl said: This is another amendment which covers the case about which I wrote to the Minister last Tuesday and which we discussed last night on Amendment No. 45. The Minister will remember it well. I should like to thank his honourable friend Mr. Burt for the speed with which he replied to my letter. His reply was in my box yesterday evening and I found it this morning.

As the Minister may remember, the issue was whether the case should have been before the agency at all. In effect, Mr. Burt's argument was that it was right that it should be before the agency because the parent with care made a voluntary application for maintenance. What he does not deal with is the other part of the letter that I wrote to him about that case. The parent with care did sign an application for maintenance, after an interview in which she was told that she would lose all her benefit if she did not sign it. That was "all"—not 20 per cent. but the whole lot.

I do not for one minute blame the Government for that. I have written to Ministers about many similar cases in the past. Their responses have lacked for nothing in concern, courtesy or consideration. I do not suggest that they have one scintilla of blame for that. I suggest that this is only the umpteenth of a long succession of cases of that type and that Ministers have not so far been able to stop them.

The Minister may say that the provisions of this amendment are draconian. They provide that a child support officer who obtains information by menaces or false information shall commit an offence and in all such cases the Child Support Agency shall pay damages to the parent with care and shall have no further jurisdiction in the case. That is draconian. Any historian finding that in a statute would immediately conclude that milder provisions had not been effective. Any future historian looking at this amendment and drawing that conclusion would be right. So, should the Minister say that it is too draconian, I hope also to hear from him some way in which he can make certain that such a case does not happen again and that, if it does happen, something will instantly be done about it and redress will be offered. I beg to move.

Lord Mackay of Ardbrecknish

The Child Support Agency has been aware of the sensitive nature of its work from the outset. All staff likely to be involved with the interviewing of parents with care, or absent parents, undergo training which was devised in co-operation with Relate, which was formerly the Marriage Guidance Council.

In the agency's annual report, it admits that mistakes have been made. Forms have been sent to the wrong people; errors have been made in calculations. But those mistakes need to be kept in perspective. In my experience there are usually two sides to every story. Often, the press are quick to work up some small event into a sensational headline. But staff in the agency cannot defend themselves by revealing the true story without breaching their rules of confidentiality.

The noble Earl mentioned a particular case regarding a letter that he sent to my honourable friend Mr. Alistair Burt. I mentioned it last night and said that a reply was on its way to the noble Earl. As I said then, I cannot go into any of the details of that case because of those same rules of confidentiality. They bind Ministers just as surely as they bind staff. But, as the noble Earl is well aware, we are more than willing to look into specific cases brought to our attention where support staff have used menaces or lies. I can assure him that they will be thoroughly investigated.

I know that Miss Chant, the Chief Executive of the agency, takes allegations of that nature very seriously indeed. If such a case did come to light, the staff involved would be subject to the strong disciplinary action that is available within the agency. Civil servants, including child support officers, are expected to maintain a high standard of integrity at all times. They should remain impartial in their dealings with clients. The agency's staff rules and conditions of service set out the relevant provisions and any breach of these rules may result in disciplinary action being taken against the officer concerned.

There is no reason for such unacceptable behaviour. Where the parent with care refuses to give the information without good cause, even though she knows the whereabouts of the absent parent, there is a proper procedure to be gone through and, ultimately, the sanction that we discussed earlier. The Secretary of State also has considerable powers for tracing, which involve using the department's own records, information which is a matter of public record, the Inland Revenue's records, and information from the absent parent's employer. All that should mean that unacceptable behaviour is absolutely and totally unnecessary, as well as uncalled for.

I do not see the jurisdiction of the CSA as something to be taken away because of a perceived mistake, or even misconduct, by an officer of the agency. The child support system is now the main method of getting child maintenance in this country. There will always be a need for the courts to become involved in a minority of cases—for example, where one of the parties lives abroad. However, I cannot see any situation where it would be right for the agency to lose jurisdiction as a form of punishment.

This amendment is unfair to the very many civil servants who are doing an honest job in what is a difficult and sensitive area of people's lives. With my explanation and assurance to the noble Earl that any cases which he draws to our attention will certainly be investigated, I hope that he will withdraw his amendment.

Baroness Hollis of Heigham

While not supporting the wording of the amendment as it stands, nonetheless the noble Earl, Lord Russell, touched on a very real fear. I am sure that the Minister believes the words of his brief and every Member of your Lordships' Committee hopes that what he said would prove in the end to be correct. The trouble is, we all know that in other areas of life—for example the workings of bailiffs, private security firms, debt collectors and so forth—there is a culture of being "heavy" to obtain information.

Perhaps the Minister can help us on this. Can he give us an assurance that no collection of such information will ever be privatised outside the directly employed Civil Service? Most of the experience of that kind that I have had in local government has not been through the bailiffs attached to the sheriffs' courts, where they are properly trained and legally certified officers, but with the introduction of private "heavies" who operate by menaces. Can the Minister give us that assurance?

Secondly, can the Minister also assure us that explicit and careful guidance will go out to the officers of the CSA and that such guidance will be posted in the Library so that we can look at it, and if we are not happy with it, we can come back with Starred or Unstarred Questions at a later date? If the Minister can give us those assurances or perhaps come back to us with information at a subsequent date between now and Report stage, then some of our worries may be removed. However, the noble Earl has a real cause for concern, knowing, as I do from local government experience, just how slender is the pathway between what is an acceptable quest for legitimate information and an unacceptable quest.

Lord Simon of Glaisdale

I complained yesterday—humbly, I hope—that the Minister had set his face against every single amendment that we put forward; that there was no sort of flexibility, no resilience; that he was apparently oblivious of the fact that this Bill and its provisions have been necessitated because that was the attitude taken during the proceedings on the 1991 Bill, when one amendment after another moved in your Lordships' Chamber was rejected in much the same manner as the Minister manifested yesterday.

I have been waiting avidly for this amendment because I thought that here at last there would be something that no reasonable Minister could possibly reject. The amendment asks that the obtaining of information by menaces by an officer of the Child Support Agency, or by false information, should constitute an offence. Should it not? Obtaining money or property by menaces is an offence under the Theft Act and this is just a step to obtaining property and in fact obtaining money. It is no answer to say, "There are disciplinary proceedings to deal with it".

This jurisdiction has been seized, has been arrogated from the magistrates' courts. The magistrates have been exercising this jurisdiction since 1895 and suddenly, in 1991, there is a hunger for arrogation in Whitehall and at a sweep the whole jurisdiction is removed from the magistrates to the Child Support Agency. Judging from the Minister's assured performance at the Dispatch Box, one would have imagined that the original Act had been an unqualified success. In fact we know it was a major legislative disaster. If it had been left in the magistrates' courts, what would one say of a magistrates' clerk who elicited information in these circumstances—by menaces and by force or by false information? Would it be an answer to say that no clerk ought to behave in that way; that if he did the Magistrates' Courts Committee could take disciplinary action? Anybody saying that would be laughed to scorn.

It would be an offence and rightly an offence. That is no more than the noble Earl is asking and I find it depressing in the extreme that the Minister is sticking to the same brief: that nothing must be altered beyond what has been conceded under pressure; the very least being given, and I hope that the Minister will reconsider the matter. It seems to me that, if there has even been one instance of this sort of behaviour on the part of a statutory agency which we erected to perform this jurisdiction, we ought to be saying that obtaining information for the purpose of the agency, for the purpose of the Treasury—I take no objection to that myself, naturally—in that way is an offence and should be declared an offence. I hope that the noble Earl will persist. .

6.15 p.m.

Lord Mackay of Ardbrecknish

I believe I am in some difficulty with the noble and learned Lord, Lord Simon of Glaisdale. I understand that on this issue whatever I do I shall not satisfy him, short of actually returning this jurisdiction to the courts.

Lord Simon of Glaisdale

In relation to this amendment I would be perfectly satisfied—it is really for the noble Earl—if he accepted the amendment subject to any necessary redrafting.

Lord Mackay of Ardbrecknish

I was intending to go on to say that of course some amendments open up the considerable divide between the noble and learned Lord, the noble Earl and myself in regard to the agency. I have tried, in at least some of the amendments—not, I accept, all of them where it was a bit more head to head—to explain how the procedures work and I hope that I have encouraged Members of the Committee who tabled the amendments to believe that the position is not as bad as they fear; that the situation they have devised to bring before the Committee is not the real one and that checks and balances are in place in the system.

That is what I tried to do in relation to this amendment. I tried to say, in the first instance, that there are two sides to many of the stories we read and, of course, confidentiality means that the staff of the agency and indeed Ministers cannot answer the cases. I am not complaining about that. That is perhaps the downside of confidentiality in regard to the agency.

I indicated that where any member of the staff goes down the road suggested in the amendment, then the agency itself will take vigorous action on those breaches of the rules and that may result in disciplinary action within the agency. That is a system which works within the whole Civil Service, not just the agency. I hope therefore that the idea has been scotched that an official of the agency, a child support officer, could act in the kind of way described in the amendment and get away with it.

Turning to the two points raised by the noble Baroness, Lady Hollis, we have no plans to privatise the agency. Our present concerns are much more directed at, and our time is taken up by, making sure that the agency actually works. The noble Baroness inviting me to contemplate other changes is just going many, many bridges too far. I am happy to give her the assurance she asks for.

Baroness Hollis of Heigham

It was not quite that point, although I am glad to have the Minister's statement on the record that he does not contemplate privatising the Child Support Agency, for which much thanks, I suppose. I was asking really whether he contemplates the Child Support Agency using other than its own officers to collect information; in other words, whether he expects possibly to use other means, mechanisms, bodies or people as information collectors who might then seek to collect that information by inappropriate means. I was asking whether all such tasks will only and entirely be performed by accredited civil servants.

Lord Mackay of Ardbrecknish

I would have to be careful about answering that question because I would need to know exactly all the ins and outs of the agency at the moment and whether it uses some outside resources from time to time of different kinds from the ones the noble Baroness specifically asked me about. For example, going back to an earlier question, if it had to use bailiffs, it is doubtful whether they would be bailiffs employed by the agency. They would be outside bailiffs. They might be sheriff's officers or other bailiffs. But, so far as concerns the central core of her question, my answer stands. The people involved in this kind of work would be civil servants.

The noble Baroness asked about guidance. I think I have answered this point on a number of occasions but I shall have to check whether this kind of guidance is in the form of guidance notes or a guidance booklet. As I think I indicated yesterday, such guidance is available to the public on request.

Earl Russell

I am most grateful in different ways to the noble Baroness, the noble and learned Lord and the noble Lord the Minister. I am grateful to the Minister for the trouble he has taken. The noble Baroness has got us assurances which I am glad to hear and which I am afraid I shall look in the mouth because that is, after all, the duty of Opposition Benches. The noble and learned Lord is of course right that obtaining money by threats or false information is an offence. A disciplinary proceeding is not always an adequate response to an offence. But I will say to the Minister that I did not intend this as an attack on the agency as a whole, on Ministers as a whole or on anything but the fact that there are a certain number of jacks in office who, given power, do abuse it. I am well aware that the agency makes mistakes. I have read the press reports of the evidence given to the Public Accounts Committee yesterday in which Sir Michael Partridge called the target of one in four assessments—no more—being wrong by 1996 an ambitious one. As I have said many times, I do not blame the agency for that. I blame the body of work that it has been asked to undertake.

What I really did not hear from the Minister was any mention of the word "redress". I heard what he said about disciplinary proceedings. That is not as good as what the noble and learned Lord and I wanted but it does at least show what I am certain is a genuine concern. But a wrong has been done to an individual here. In this case the woman has been forced to inflict an immense burden on the father of her child, the man whom she loves and the man with whom she is now living. That is a burden of arrears which he is unlikely to pay off over the rest of his life. That will have been an injury to her. To force her to do that by means of false information is something for which reparation is owed to her.

I understand why the Minister said that depriving the agency of jurisdiction was an extreme power. But there is such a thing as the law of agency. The agency does have a responsibility for the doings of its employees. If our employees do wrong to someone, we may, if they are about our official business, be answerable. It is under those circumstances that I recommended the remedy of loss of jurisdiction. I am not wedded to the remedy specifically but I think there is a certain equity in it. What I am really concerned about is that right should be done to a person who has been wronged. In this case wrong has been done both to the absent parent and to the parent with care. I have taken up both cases, I hope with equal vigour. That, I am certain, is typical of the agency. I should like to think it is typical of me also. But I suspect that on the individual case, as regards which I agree with everything that the Minister said about confidentiality, we shall do better talking about it privately.

The noble and learned Lord has tempted me, just as the Minister previously tempted me. I am afraid that once again I must resist temptation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 78:

Before Clause 18, insert the following new clause:

("Disclosure of absent parent's address or telephone number,

.—(1) Section 50 of the 1991 Act shall be amended as follows.

(2) After subsection (1) there shall be inserted— (1B) Where an absent parent instructs the Child Support Agency not to reveal his address or telephone number to the parent with care, any employee of the Child Support Agency who reveals them shall be guilty of an offence, the Child Support Agency shall be liable in damages to the party affected, and it shall have no further Jurisdiction in the case." ").

The noble Earl said: This is another amendment dealing with matters of confidentiality and again arises from my postbag. That postbag is becoming enormous and I am not sure that I would not support repeal of the Act just to get rid of the postbag. That is not the most serious of reflections and I hope it is taken in the spirit in which it is meant.

The case involved an absent parent whose ex-wife was addicted to the making of harassing telephone calls. Any of your Lordships who have been victims of harassing telephone calls may understand the kind of irritation that they cause and the sense of intrusion into the privacy of one's own home. That man was also facing an assessment which was cutting him absolutely to the bone. Looking at the figures, I did not see how he was managing to pay it. He not once but twice had his phone number disclosed to his former wife, who starting making harassing telephone calls at all hours of the day and night. He was forced, not once but twice, at considerable expense to himself which he could ill afford, to change his phone number.

Confidentiality applies to both parties. The argument of wrong to the individual for which redress is deserved applies to both parties and the arguments about the law of agency apply to both parties. I have raised one of these questions for a parent with care and one for an absent parent. They have much more in common in their common interest in opposing the Act than either has with the Government. I beg to move.

Lord Houghton of Sowerby

I respectfully suggest that we should take care not to do anything without justification which will be deeply resented by the staff of the Child Support Agency. There are staff instructions to cover this point. I doubt whether we are justified in making a rule in an Act of Parliament about it. I offer this only as a cautionary note about carrying something a little too far. I feel quite certain that the staff will have the strongest instructions as to how they are to behave. The main risk is not the disclosure of confidential information so much as applying undue pressure on an absent father to come to terms, and if he fails to do so then there is a penalty in the locker that can come out to persuade him.

It is undue persuasion. I would not go so far as to say it is coercion but I do not think there is a need to safeguard anyone from menaces. However, we have just gone over that ground. I have something of a distant brief for my old colleagues in the Civil Service. I do not want to see them given the kind of treatment that the Act is giving to the absent father. We can take the civil servant as being a straightforward and honest person who complies with the general rules of behaviour in a very difficult occupation. I can think of no more difficult occupation than that of a child support officer.

A friend of mine was talking to me about being in the Customs and Excise enforcement division for small businesses. I asked him whether he was liking his work. He replied, "Well, there are too many tears in it". I believe that there are too many tears in this legislation. There should be some consideration in this regard.

6.30 p.m.

Lord Mackay of Ardbrecknish

I thank the noble Lord, Lord Houghton of Sowerby, for his remarks. It is pleasant to be roughly on the same side just occasionally. He makes a very valid point, which I have made on a number of occasions, about civil servants and the officials of the agency.

This amendment addresses the matter of where an employee of the agency gives the absent parent's address or telephone number to the parent with care after the absent parent has specifically said he does not want the information revealed or where a parent with care has made representations about good cause and then has her address revealed to the absent parent. The noble Earl's amendment would have that employee guilty of an offence. The Child Support Agency would be liable for damages and would lose jurisdiction.

It may be helpful if I explain that Section 6(2) of the 1991 Act applies where a parent with care is not required to authorise the Secretary of State to recover maintenance because if she did there would be a risk of her or any child living with her suffering harm or undue distress. Normally this decision will be made before the parent with care has given the agency any details of the absent parent. Where the parent with care has not authorised the Secretary of State to act, the Child Support Agency will not contact the absent parent if from other sources he knows who he is and where he lives.

I would like to draw attention to Section 50(1) which the noble Earl seeks to amend. It says: Any person who is, or has been employed in employment to which this section applies is guilty of an offence if, without lawful authority, he discloses any information which (a) was acquired by him in the course of that employment and (b) relates to a particular person". That means that, subject to the other provisions in Section 50, an employee of the agency who without permission reveals information, including the address of an absent parent or a parent with care, is guilty of an offence. That applies in all cases unless the parent has agreed to the information being disclosed. There are no provisions for the address of one parent to he given to the other.

Regulation 8 of the Child Support (Maintenance Assessment Procedures) Regulations, Regulation 9A of the Child Support (Information Evidence and Disclosure) Regulations and Regulation 17 of the Child Support Appeal Tribunals (Procedure) Regulations expressly prohibit the disclosure of an address or other information which could lead to a person being located. I am satisfied that these existing provisions are entirely adequate.

Of course, agency staff are human and there is always the possibility that information may be given in error. There is always the possibility that someone may be able to read the forms upside down, for example. Where that happens the staff would certainly be subject to internal disciplinary action and the agency would consider whether compensation was justified in each case.

I hope that I have assured the noble Earl that there are defences in place to prevent the staff of the agency giving the name and address of one to the other. I hear what he said about the cases. I reiterate that there are two sides to every situation. When I was listening to the noble Earl, I thought that if I were one of the parents and wanted to find out where the other lived, on the assumption that I had any relationship with the children—and all of us who have children, even if they are now grown up, will know that they can easily be induced to part with knowledge—I would have a readily accessible source for that kind of information.

Lord Kilbracken

That is to be greatly deplored. Should not the child be prevented from obtaining information from one parent for the other?

Lord Mackay of Ardbrecknish

I was making a point about where the parents lived. Obviously the child is going to live with one of them, and the other will be well aware of where that is. The child perhaps visits the other and is also well aware of the address. The main point of my argument is that there are many more easily accessible ways to find the name and address of the other half than trying to get it from a Child Support Agency officer. I hope that my assurances about the powers which exist to prevent that kind of thing happening are helpful to the noble Earl and that he can withdraw his amendment.

Baroness Hollis of Heigham

Before the noble Earl decides what to do about his amendment, I ask the Minister whether he is aware of any such cases. Can he tell the Committee what disciplinary action followed for the officers concerned?

Lord Mackay of Ardbrecknish

I do not believe that the noble Baroness will be surprised when I say that I cannot answer that question at the moment. I shall certainly look into it and return to it.

Baroness Hollis of Heigham

I can understand the Minister being unable to respond in a detailed way. The point is that there is a great deal of circumstantial evidence to suggest that there is a wide gap between what the Minister wishes to be the case and what may he happening. I believe that the most helpful way in which we can pursue the degree to which there is that gap and the degree to which we need to strengthen the Bill to make sure that it is narrowed and not widened is to get a reply in the form which the Minister has just indicated.

Lord Mackay of Ardbrecknish

I shall certainly do two things. Depending on the outcome of this amendment, I shall draw the concern of the Committee to the attention of Miss Chant and I shall seek answers to the questions posed. I shall write to the noble Baroness with the usual copies.

Earl Russell

I am grateful to the noble Baroness for pinpointing exactly our concern. It is the difference between what the Minister wishes and what we wish was the case and what in fact is the case.

I also heard the noble Lord, Lord Houghton of Sowerby. I take his point about the reactions of other staff of the agency. I repeat again that I was making no attack on the agency as a whole. The agency has been put there to do a job and it is not to blame for the job it has been asked to do. In the end, the responsibility must rest with Ministers for giving it that job.

I insist that this is taken only as a way of controlling an individual Jack-in-office and not as a reproach to the whole of the agency staff. I take the point which the noble Lord makes, that were this provision to be on the statute book, that might be a distinction which I would be unable to sustain. I do not intend to press this amendment, as I believe the noble Lord suspected. While I am on my feet I make that distinction clear.

I say once again to the Minister that this type of disclosure is happening far too often and causing a great deal too much harm and distress. It is diminishing the reputation of the agency and making it harder that it should ever succeed. He knows that as well as I do and there is no point in wasting words on it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79 not moved.]

Earl Russell moved Amendment No. 80:

Before Clause 18, insert the following new clause:

Day to day care

(.—(1) The definition of "day to day care" contained in regulation 1(2) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (as amended) shall be amended as follows:

(2) For "104 nights", or each occasion where that expression occurs, there shall be substituted "26 nights".

(3) At the end of the definition there shall be inserted— (iii) a person shall be taken to have care of a child where he would have actual care if a court order which is in force were being properly complied with by another person, and a person shall be treated as not having care of a child where she has actual care in consequence of her failure properly to comply with a court order; and for this purpose a court order shall be regarded as properly complied with by a person only if she makes every reasonable effort to give effect to its terms and purposes.").

The noble Earl said: This amendment deals with the 104-night rule, which has caused a good deal of concern. The rule is that in cases of shared care, if the child spends 104 nights in the year with the absent parent, the absent parent gets financial recognition for being responsible for shared care. If the child spends 103 nights with one parent or, in the case which the noble Lord, Lord Kilbracken, recounted to us last year, 99 nights of the year, that is 99 not out. It counts for nothing. No century is achieved. Naturally, that has caused a good deal of ill feeling. It is an arbitrary line and the reason given for specifying 104 nights—that it represents every weekend in the year—rather savours of being plucked completely out of the air because no arrangement happens every weekend of the year. There are things such as illness.

The second part of the amendment deals with cases where the child should have spent 104 nights of the year with the other parent but access has been denied. I know that the Bill is not intended to deal with that. The noble and learned Lord the Lord Chancellor explained that clearly in 1991, but the 104-night rule, as it works at present, gives the parent with care an incentive to deny access. The amount of anger that is caused by such cases is hardly imaginable if one has not encountered it. Giving people an incentive to do that is extremely unwise.

The inflexible insistence on 104 nights is not necessary for any reason that I have yet heard. I should like to hear what the Minister has to say about why he thinks that it is necessary and about how more flexibility could be achieved. It seems that whenever flexibility would be a good thing, the Government do not want it, but whenever it is a bad thing, they seem to want it. If the Minister can tell me that I am mistaken in that, I should be very grateful. I beg to move.

6.45 p.m.

Lord Kilbracken

I wish to support the noble Earl, Lord Russell, as strongly as possible on this amendment and particularly on subsection (2), the purpose of which he has explained with his invariable lucidity. As he indicated, I have an interest to declare in the shape of a young son who is now 13 and who spends a very considerable part of each year with me, although much less than I had thought until I came to work it out for the purpose of speaking here today.

The noble Earl mentioned the figure of 99 days. That was indeed the number of days that Sean spent with me at that time, but the years go by. I suppose that he comes to me more than 95 per cent. of such children can visit their fathers; namely, for half of every holiday, half of every half holiday, and every other weekend. Nowadays he goes to school on Saturday mornings, so he does not come to me until about 12 o'clock. If he stays until midnight on the Sunday, for the purposes of this provision that counts as only one night.

Therefore, I have calculated that there are about 38 weeks of term time in the year, which contain 35 weekends, and he comes to me for 17 nights. There are about 100 days of holiday and he comes to me for half of them, which is another 50 days, with three extra nights for half-terms. That means a total of only 71 nights a year, which is nowhere near the figure of 104 which is the minimum for this purpose. Yet I really do not see how he could come to me much more. Obviously, he will come for only half of each holiday and will have every other weekend with his mother. That seems to be just about the maximum amount of time that that child can spend with his father. Furthermore, if he were a weekly boarder or a termly boarder, he would spend exactly the same amount of time each year—the same number of nights—with his mother and with me, yet in calculating the amount that should be paid by the father under the Child Support Act, that cannot be taken into account at all, although not only is it costing the so-called "absent father" a lot of money in living expenses and so on, but during that time the child's mother is not incurring any expenses. In addition, in my own case I have to buy three return tickets from London to Ireland, which cost about £400, yet that cannot be taken into account either.

I cannot understand why the figure of 104 days (or the provision in general) should be included in the Bill. If the child is with the absent parent for any period of time, clearly what that parent is spending he is saving the mother in expenses and he should not have to pay as much as would otherwise be the case.

I cannot sit down without saying once again how deeply I and, I suppose, all divorced fathers resent the description of them as "absent fathers" or "absent parents" and the description of the mother as "parent with care". That gives the impression of the mothers being so caring and of the fathers not caring at all. It implies that the father is absent when, in my case, I am present for 71 nights of the year and it is his mother who is the absent parent. I suppose that that phrase is now passing into accepted legal language. Perhaps it is a lucus a non lucendo, but in any case I resent it very much.

I should also like to draw attention to one point on subsection (3). At the bottom of page 7 of the Marshalled List we start off in the male gender—here I use the word "gender" in its correct sense for once. The amendment states: to have care of a child where he would have actual care". However, when we turn the page we move into the female gender because the amendment then states: a person shall be treated as not having care of a child where she has actual care in consequence". I wonder what implications the noble Earl may see in that switch. We are always told that the male embraces the female, but is it also the case that the female embraces the male?

Earl Russell

Yes, it is. It is a politically correct use of non-sexist language, but I do not think that it does any harm.

Lord Mackay of Ardbrecknish

I do not think that I shall follow the noble Earl down that road. It is nice that the noble Earl has had to answer a question about one of his amendments. That makes a change from the general run of things this afternoon.

This amendment seeks to reduce the number of nights of care which an absent parent has to provide for a child before his maintenance liability is reduced. It also provides for an absent parent to be treated as caring for a child where the person with care is denying him his rights of contact with the child under the terms of a court order.

The existing provisions mean that an absent parent's maintenance liability is reduced where he is providing a significant amount of care for a child. The Government believe that an average of two nights per week—104 nights per year—continues to provide an appropriate benchmark. We do not consider that the proposed benchmark in the noble Earl's amendment, which amounts to one night of care per fortnight, represents a genuine sharing of responsibility. That level of care does little to help a parent with care with the day-to-day problems of bringing up a child.

The noble Earl invited me to contemplate some flexibility. It is interesting to note that his amendment is no more flexible than the current situation. It simply reduces the number of days from 104 to 26. I suggest that he has chosen to do that because it would be difficult to devise any kind of guidance or system which would be flexible in this regard. I freely accept that it is difficult to decide where the borderline comes. A line must be drawn; my line is 104 nights and the noble Earl's is 26.

I know that maintenance and contact are sometimes linked in the minds of parents, although they are separate issues. Maintenance is a legal and financial obligation that absent parents are required to discharge irrespective of whether or not they have contact with their children. Contacts are a matter for the courts to decide in the best interests of the child. We understand the frustration of people who are denied any right granted to them under a court order, in particular where the right is in respect of a child. The important consideration for the absent parent is that he should have the contacts with his children that the court has agreed and it is open to him to apply to the court to have his order enforced.

It would not be right for the agency to become involved in those sensitive issues. The only proper question for the agency is how long a child is, in fact, spending with his parents, since that affects the actual level of costs incurred by the parents. The task of deciding who bears the main costs and who has the main care of the child is difficult. If one were to reduce the number of nights from 104 to 26, many parents with care would find their maintenance reducing without, I suspect, their outlay reducing in any way.

The noble Lord, Lord Kilbracken, raised the question of fares and so forth. Of course, the departures will be the yardstick on this issue and what is just and equitable as regards the fares required to maintain the contact between, if I dare say it, the absent parent and the child or children.

This is an issue in respect of which I believe a line must be drawn. I understand the noble Earl's point that 104 is a little high and that 26 is his preferred number. I feel that 26 is far too low. Taking an average of two nights per week is, I think, a reasonable way to look at this. That does not mean to say that it will necessarily be two nights every week. Of course it will not, because holidays will come into the picture and on occasions it may in fact be seven nights per week. What is important is the total and the way in which we balance it. If the absent parent has the child for no more than 104 nights, clearly the parent with care has the principal responsibility for looking after the child and the main costs. That is the reality of the world. She—in the main it will be the mother, and I am not even beginning to be politically correct—will have the main costs of looking after the child. She must ensure that the child is ready for school and is clothed and that she provides a home for him or her so that the child can live the majority of his life with the parent with care. That is the reality.

Lord Kilbracken

I forgot to mention that I have no financial interest to declare because my financial affairs do not come under the aegis—if aegis it be—of the Child Support Agency. I emphasise the fact that most young children go to their fathers from early on Saturday morning to late on Sunday evening. That long period is counted as only one night for the purpose of reckoning up the 104. The Minister appeared to indicate that there may be an intermediate figure and that the 104 would be reduced a little. Anything would be better than nothing.

Earl Russell

I am grateful to the noble Lord, Lord Kilbracken. His case is one which compels attention. The point he makes about the weekend being defined as one night is significant. If we are talking about benchmarks, we need to know the general principle that is to be met before we can even begin to discuss what is the appropriate benchmark. You cannot make a benchmark until you know what you want to use the bench for.

My general principle is that one should recognise shared care where possible. In normal circumstances—not all—it is better for children to live with two parents than with one, even if they have to do so in two different homes. Therefore, I would recognise any sharing of care subject only to a de minimis rule. I believe that 26 nights is an ample interpretation of a de minimis rule.

I do not know what the Minister's general principle is. It sounds as though he is acting on the assumption that there is only a single parent who can have care. That is not in accord with the way in which modern family law is going. It is not in accord with the way in which cases are settled under the Children Act. It is not in accord with the way in which many men think about fatherhood or with the way in which many women now think about motherhood. I think this is an old-fashioned general principle and I believe it may have the effect of making separation even more traumatic for many children than is necessary. If that is the Minister's general principle, it is not satisfactory.

He has not told us why he believes that 104 nights is an appropriate benchmark. If I put words into his mouth I shall be entirely happy for him to tell me what is his general principle and I shall give way to him to do so. But I shall take his silence for consent if he does not intervene. The Minister spoke constantly about money going from the parent with care to the absent parent as a result of accepting the amendment. The noble Lord, Lord Kilbracken, was right in saying that, while the child is staying with the other parent, the absent parent is for the time being the parent with care. It shows how difficult it is to reconcile the terminology of the Bill with real family life. I have no more to say on the subject now. I hope that there will be further thought later and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 81 not moved.]

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

[Amendments Nos. 82 to 86 not moved.]

Earl Russell moved Amendment No. 87:

Page 14, line 38, leave out subsection (5).

The noble Earl said: Amendment No. 87 relates to a Henry VIII clause, which is Clause 18(5). That clause allows the Minister to bring pre-1993 cases within the scope of the Act at some future date best known to himself.

Henry VIII clauses are always looked at with care in this House. The Delegated Powers Scrutiny Committee recommended that it be subjected to the affirmative procedure. I would not argue with that if I were concerned only with the exercise of delegated powers. In fact, I am not; I am concerned also with the policy intention that is embodied in that delegation of power. Therefore, I have a double cause for concern.

The effect of this is to allow the Secretary of State under the spirit of the commencement clause in the 1991 Act, which I once described as being by Henry VIII out of Humpty Dumpty, to bring pre-1993 cases into the Act at any time he sees fit. The Government, in paragraph 3 of their memorandum to the Delegated Powers Scrutiny Committee, argued that this power should be looked on kindly because it is for a beneficial purpose. That begs a big question. I am aware that the Government intend the Act to be beneficial—I did not say to whom. They must be aware by now that that view is not universally shared. They must be aware in particular that that view is not shared on these Benches. I take a dim view of giving the Minister a power to do something which should not be done at all by means of a Henry VIII clause without any further legislation. I beg to move.

7 p.m.

Lord Mackay of Ardbrecknish

It was originally the Government's intention to take on during 1996–97 those cases where there was an existing maintenance arrangement and the parent with care was not receiving benefit. In order to allow the agency to concentrate upon the introduction of the departures system, we have had to introduce the measure in Clause 18 of this Bill which defers the take-on of those cases. The subsection which the noble Earl seeks to delete will enable the Secretary of State to reactivate the take-on of these pre-1993 non-benefit cases by order. We cannot currently predict when that might be as first we shall need to ensure that the departures system is working effectively.

It has always been the Government's policy intention that all cases should eventually have access to child support maintenance under the 1991 Act. That has been fully explained and is well understood. Clause 26 of the Bill provides a clear commitment to allow parliamentary debate about the eventual take-on of the pre-1993 non-benefit cases by seeking to repeal these deferral provisions by way of an affirmative order, which is the strongest system of control over secondary legislation. In these circumstances, although the Committee may well regard this subsection as containing a Henry VIII power, it is wholly appropriate to provide for it. The Delegated Powers Scrutiny Committee concluded that: The House may consider that the affirmative procedure provides the appropriate degree of parliamentary control". Therefore, it is a rather special kind of Henry VIII clause which deals with the decision that we have taken to defer the take-on of those cases. It gives the Secretary of State power, through an affirmative order, to start the take-on of those pre-1993 cases. I suspect that the noble Earl would prefer that the cases were never taken on. But I hope that he will accept my explanation, although I realise that he will perhaps not agree with it, and withdraw the amendment.

Earl Russell

The Minister is quite right that I would prefer those cases never to be taken on. I notice that Miss Chant yesterday, giving evidence to the Public Accounts Committee, said that people resented the reopening of court settlements. I do not believe that the Government have ever taken on board quite how intense that resentment is. In fact, it led one person to write to me saying that the 1991 Act was unconstitutional. I explained to him with some care why those words could not be accurate but I understood the sentiment behind them. Those are dangerous sentiments. If the Minister wishes to avoid them growing, he should not attempt to override court settlements by means of a power which is itself inherently likely to be rather debatable. Therefore, in this regard the power is debatable and the policy intention is debatable. I object to the union of those two together.

If the Minister must insist on the take-on of previous cases and if he is still in a position to do that, I suggest that he should do it by primary legislation because this will be a major contentious issue. I still see some force in the old convention that regulations should deal only with minor matters. The Minister may wish to claim that this is a minor matter but it is not; it is contentious. If it must be done at all, this is not the right way to do it. I hope that the Minister will think again. However, I do not believe that he will do so this evening, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 18 shall stand part of the Bill?

Baroness Hollis of Heigham

I suspect that it is something of a record that at seven o'clock in the evening the Opposition begin to move their amendments. However, it may be worth making clear that we have not intervened on the vast majority of the amendments moved by the noble Earl, Lord Russell, because on these Benches we are not seeking to wreck the Bill or to substitute a different sort of Bill. We arc trying to make this Bill work more equitably and efficiently than it has done so far. As my honourable friend in another place said, we are not engaged in trench warfare. I hope that the Minister and the Committee have had evidence of that this evening.

I should like to ask a number of questions in relation to this debate. First, the noble Earl, Lord Russell, said on a previous amendment that Clause 18 will defer indefinitely the taking on of all maintenance cases where the parent with care is not receiving benefit. In those cases, the existing court settlement stands. On these Benches we have always said that we did not believe that the Act should have been retrospective. We believe that it should have started in 1991 with a clean sheet and with new cases only from then on.

Virtually all the problems which the Government have faced have been caused by retrospection, where settlements have been overturned which were entered into in good faith as a result of court decisions. Those settlements may have been generous or they may have been unreasonable, but people went on to shape the rest of their lives in the expectation that they would stand. Indeed, in consequence of that, we have urged the Minister to accept that court settlements in relation to property should be taken into account in the maintenance formula. Therefore, we start from the position that we do not believe that the 1991 Act should have been retrospective. It should have started with a clean sheet, as happened in Australia. The vast majority of the distress and concern may not have occurred had the Government gone down that road.

However, the Government have overcome one unfairness—that of making the law retrospective—by removing that but only for a particular class of absent parent. For some there is retrospection but for others there is not. That seems unfair because it depends entirely on whether the parent with care is on benefit. Therefore, by removing one unfairness the Government have created more unfairness.

Perhaps I may illustrate the unfairness. The Government made the point repeatedly that the old court system was unfair. It was erratic in relation to the awards made and was inconsistent. We do not disagree with the Government's assessment. Yet now they are allowing those court settlements to stand even though they have judged them to be erratic and inadequate where the parent with care is not on benefit. In other words, a mother on a low income who is in work and receiving maintenance is not eligible for the more realistic CSA maintenance figures or collection and enforcement role. She is dependent on a court settlement. In theory she may return to court to seek a revision upwards to bring the settlement in line with something more realistic, but unless there are new circumstances, and without legal aid, it is likely to be a fruitless exercise for her. Therefore, a parent with care who is on a very low income will be stuck with a court settlement which when it has suited the Government has been denounced.

The right answer may be for that mother with care to have the court order adjusted to a more realistic level, but there is a problem of inequity in that regard. In particular, it means that lone parents with care who have come through the CSA because they were receiving income support and then go on to work a year or two later will receive much higher maintenance awards than those who never received benefit. Therefore, it is advantageous to come out of work and move on to benefits so that the maintenance contribution is forced up through the CSA and then return to work. I suspect that that was an unintended consequence of what the Government have done. But I foresee that becoming a path that it will be in the interests of many parents with care to follow. That would be regrettable.

I turn now to my third point, where I believe I may have the support of the noble Earl, Lord Russell. It is the matter of retrospection for parents with care who are on benefit but not for those who are not on benefit. That is also unfair to many absent fathers, half of whom are in second families. The new partner of such a man is very likely to bring children with her—the absent father's new step-children. On that marriage, the new partner has lost her own right to income support as she is now in a new relationship. Therefore, she has lost her independent right to use the CSA to collect maintenance from her first husband. He may now get off scot-free.

That means that the absent father of the first family is now supporting his own first children, his partner's step-children and any natural children of that second marriage. But, through her, he does not have any way of making the father of his partner's children contribute to their maintenance because the CSA has withdrawn from that collection role. In other words, he is being asked to support not just his present family and his second family; he is being asked to support three families: his present family, his first family and the first Family of his new partner. That is financially impossible. That is what the Government have constructed in their, perhaps, hasty changes.

The Government found themselves in a position where many parents with care did not want the old system overturned. However, the Government overturned it whether or not they wanted it where they were on benefit. The Government also found that other parents with care would like the old system overturned, but that is not possible because they are not on benefit. In other words, the Government have gone not with the grain of what people want; they have gone with the grain of what the Treasury demanded—to claw it back when people are on benefit whether or not they want to do so and ignore it where they are not on benefit whether or not they want it.

We understand the Government's dilemma, but they put themselves in that position in the first place because of the inappropriateness of the 1991 legislation. What they have now done, while seeking to mitigate some aspects of it, is to create new unfairnesses. I await to hear what the Government say as to how they propose to address the new unfairnesses that they have created while addressing the old unfairnesses of the 1991 Act.

7.15 p.m.

Lord Mackay of Ardbrecknish

The background to Clause 18 is well known. Within the finite resources available it was clearly necessary for the Child Support Agency to take on cases in stages. The original programme was for those cases where the parent with care was not receiving benefit, and there was an existing maintenance arrangement, to he able to apply to the agency on a phased basis during 1996–97. Clause 18 defers the take on of those cases and ensures that the courts retain their powers to act in determining maintenance in those cases.

The measure will leave the agency free in 1996–97 to focus its attention on the introduction and smooth implementation of the departures system. I think that we are all agreed that everything possible must be done to secure the efficient operation of the new system. It would be extremely imprudent to overload the agency with a fresh tranche of cases during the same period, particularly as it is likely that many of those cases would want to apply for departures.

We have been criticised for not learning from our past mistakes. By deferring the take on of those cases we will ensure that the CSA will not be in the position of having to assimilate and deliver new procedures, at the same time as it experiences the increase in workload that would inevitably follow if a new group of people were allowed to apply to the agency.

The cases being deferred will only be ones that have access to the court system, although of course I fully accept, as the noble Baroness said, that that system is less than ideal. We are agreed on that point. That is why we are both keen on the idea of a child support agency: a consensus between parties which I thought might have appealed to some people in this country who are always saying that we are too confrontational and that there should be more consensus. But the moment we have a consensus on something—even if it is just in principle and not on some of the detail—they promptly start screaming and changing the word "consensus" to collusion. However, that is quite a different tale and perhaps I should not be tempted too far down that road at this time of the evening. But it is an interesting phenomenon that we are seeing and political correspondents may well take note of it.

As I said, those cases will be those that have access to the court system. Therefore, as well as protecting the taxpayer, our priorities must lie with the group of parents who have most to gain from applying to the CSA: those who currently have no child maintenance. If that is because there is no court order, or written maintenance agreement which was made prior to 5th April 1993 and the parent with care does not receive income support, family credit or disability working allowance, the parent may apply to the CSA immediately.

Where the parent with care is receiving one of those benefits and wishes to be taken on, she may ask the CSA for early take on and the agency will treat that request sympathetically. The only cases which Clause 18 defers involve those who are able to take action for maintenance through the courts. While some parents with care in that category would undoubtedly obtain more from a child support assessment, as the noble Baroness pointed out, they cannot be said to be the ones with the most to gain.

Therefore, the highest priority for take on are those people who have no access to the courts or those who are claiming benefit and who are being supported by taxpayers. Of course, as I said, I have some sympathy for those parents with care who receive only a small amount of maintenance through a court order while their current partners pay out a larger amount in child support maintenance. I believe that that was one of the examples mentioned by the noble Baroness. However, those parents with care are able to apply to the courts to have their orders varied.

As I said, I believe that that is an example of the Government doing what we have been encouraged to do on a number of occasions not only in this Committee but also in other committees; namely, to learn from our mistakes, from what went before and from our experience with the agency. We are doing that and we are attempting to ensure that the phasing arrangements of new people coming into the agency's care will in fact be such that the agency will be able to cope with the cases that it already has and, indeed, cope with the new departure system which is a recognition by the Government that some steps must be taken to improve the situation.

The noble Baroness mentioned Australia where there was no retrospection. I am afraid that my reading—and I must say that it is rather one-sided because it tends to come from a source hostile to agencies in principle—suggests to me that the Australian experience was not exactly painless. Therefore, I am not entirely sure whether that is the best case to pray in aid. The justification for doing so is the experience that we have had. We wish to be sensible and ensure that the system beds down with the new departures. I fully accept that some of the cases brought to my attention by the noble Baroness appear to be unfortunate and that it would he better if we could deal with them inside the agency. But the simple fact of the matter is that we must look at the wider picture of making the agency work eventually for everyone. That is why we have taken the powers in Clause 18.

Baroness Hollis of Heigham

Perhaps I may briefly respond to the Minister. First, I do not believe that any of us would deny the administrative pressure that the agency is under and the need to ensure that it not only delivers assessments but also that it does so accurately, especially in the light of the report of the Public Accounts Committee. At present, I believe I am right in saying that one assessment in two is incorrect. Therefore, it is clearly right that the agency should slow down its speed of taking on new cases to ensure that the assessments are accurate. We do not challenge that fact. However, given the need to prioritise the taking on of cases by the CSA, we object to the fact that it is taking on first not the cases where the parents want the agency to intervene but where the Treasury wants it to do so.

Where parents want the CSA to set the maintenance level and to be the collection enforcement agent, we believe that that should be the mechanism for prioritising rather than the mechanism which the Government have adopted which is to take on, whether they want it or not, those cases where parents are on benefit and ignore, again whether they want it or not, those cases where the parents are not on benefit. It seems to me desirable at this stage, given that this Act has had such an unfortunate history, if the Government can now work with the grain of what people wanted rather than against it. This discussion has allowed the Minister to make moves in that direction.

The second point I want to make is in terms of the level of awards based on court settlements that are going to families where the absent father's new partner is bringing her children into the relationship; in other words, the step-children. We hope that court settlements will gradually float up to a more realistic level; but again I hope that between now and Report stage, when we may want to revisit some of these issues, the Minister can give us some guidance whether as regards a family in that situation who are, as it were, looking after the children from the three forms of family, there is some way to encourage court settlements to move upwards, possibly through a departure system where this can be taken into account. I do not know whether there could be a departure system for the CSA as a collection agency but perhaps we can explore this further. I think there is a real problem here which may, if we are not careful, damage the second family to such a degree that that family breaks down, as the first family has already done. That was one of our fears.

Finally, I was delighted to hear the Minister say, to the sound of violins, that he was learning from past mistakes; that we of course wanted him to learn from past mistakes; that he will continue to learn from past mistakes and why should we prevent him from learning from past mistakes? That is splendid! What we actually want is that the Minister should learn from his past mistakes, but that he will also recognise that those mistakes might not have occurred if the Minister had done something else—that is, listen to the Opposition at the time. I hope that as we go through to the Report stages of other Bills which are currently before the Chamber which concern social security and other fields, the Minister will say to his colleagues, "Do not do as I have done, which is to be forced to learn from my past mistakes; but do as I ought to have done, which is listen to the Opposition at the time the Bill is going through the Chamber. If you do that we may get better legislation and less legislation because we shall not need to return to it to amend it".

Clause 18 agreed to.

Clauses 19 and 20 agreed to.

Clause 21 [Fees for scientific tests]:

Lord Mackay of Ardbrecknish moved Amendment No. 88:

Page 16, line 31, after ("out") insert ("(otherwise than under a direction or in response to a request)").

The noble Lord said: Clause 21 provides for the Secretary of State to recover DNA test fees where—

Baroness Trumpington

My noble friend should speak also to Amendment No. 89.

Lord Mackay of Ardbrecknish

My noble friend has pointed out that I am also speaking to Amendment No. 89. The noble Baroness said that it was some time since she spoke; it is some time since I moved a government amendment, as is quite clear. Perhaps that is a point that the noble and learned Lord, Lord Simon of Glaisdale, has made on a number of occasions today. I shall start again. In moving Amendment No. 88, I wish to speak also to Amendment No. 89.

Clause 21 provides for the Secretary of State to recover DNA test fees where, following a DNA test, an alleged parent admits paternity or a court judges him to be the father. This amendment restricts this recovery power so that where the test is taken at the direction of the court, the Secretary of State must apply to the court for the fees to be included in costs awarded to him if he is successful in establishing paternity. It would not be right for officials acting for the Secretary of State to have the right to recover DNA test fees in the circumstances where a judge also has the discretion to award these fees as part of the costs of a court case. In theory there could be a conflict in that in the unlikely event that a court declined to award costs to the Child Support Agency, it would still be able to recover DNA test fees using the new statutory right provided in Clause 21. This amendment recognises the important principle that officials should not be able to bypass the court's discretion to award costs. I invite the Committee to accept these two amendments. I beg to move.

Earl Russell

I have no objection to the substance of these amendments, but it is an appropriate place to ask one question that I have been wanting to ask the Government for some time. They show a great deal of confidence in DNA testing. Are they aware that that confidence is by no means entirely shared by all the academics who are competent to judge it? Are they aware of the dispute in this area; are they following it, and will they keep a scintilla of an open mind and consider that their reliance on DNA might just possibly be mistaken?

Lord Mackay of Ardbrecknish

The Government follow all these matters with considerable interest and have some high-powered scientific advisers who can give them advice. I cannot vouch for the present one, but I can certainly vouch for the chief scientific adviser to the Prime Minister and the Cabinet, who has recently retired. He was an eminent scientist and he was a Scot, needless to say. I am quite sure that he and his colleagues would follow all these matters. I have done so because I have a small interest in the world of science.

I know that there is a little bit of an argument—as the noble Earl has drawn to my attention—but when it is a matter of paternity cases where there are three samples and we know where they have come from, the matching is extremely accurate. I think the doubts the noble Earl has cast in that case would not be justified. However, I can assure him that the Government are always open to new advances in science. I hope that he can accept that assurance. As I have said, in the particular case that we are considering, the science is pretty well accepted by everyone. The noble Earl shakes his head. I was going to say that does not include every scientist because there is always one person who still does not believe what all the rest believe.

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 89:

Page 17, line 12, after ("tests") insert: (""direction" means a direction given by a court under section 20 of the Family Law Reform Act 1969 (tests to determine paternity); request" means a request made by a court under section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (blood and other samples in civil proceedings);").

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 agreed to.

Baroness Trumpington

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begins again not before twenty-five minutes past eight o'clock.

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

House resumed.