HL Deb 19 March 1991 vol 527 cc526-91

3.6 p.m.

The Lord Chancellor

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.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 22 [Failure to comply with obligations imposed by Section 5]:

[Amendments Nos. 40 and 41 not moved.]

Earl Russell moved Amendment No. 42:

Page 16, line 28, leave out ("such amount") and insert ("5 per cent. of the sum specified in paragraph (2) (c) of column (2) of Part 1 of Schedule 2 to the Income Support (General) Regulations 1987 or by such smaller amount.").

The noble Earl said: I shall speak also to Amendment No. 43. Amendment No. 42 deals with the amount of the proposed disentitlement to benefit and Amendment No. 43 deals with the duration. I shall deal first with Amendment No. 43. It relates to a provision in the Bill to which the Social Security Advisory Committee has called attention. Being a scholarly body the committee has wisely avoided the use of the word "unprecedented". However, it has said that it is not aware of any precedent for a disentitlement to benefit which is indefinite in duration. That is a considerable power to put into the hands of the Government. It is a degree of discretion which in the past this Chamber has resisted conferring. I understand that the entitlement could well be for life and there is nothing to stop it being so.

I should be grateful if in reply either my noble kinsman or the noble and learned Lord the Lord Chancellor could spell out the Government's thinking on the duration of a disentitlement to benefit. With reference to the exchanges made in respect of the Question asked today by the noble Lord, Lord Renton, can they say why the Government have not thought it proper to put the provision in the Bill? The disentitlement to benefit, the reduced benefit direction, is one of the key points in Amendment No. 42.

Once again the Bill bears no indication whatever of how great the benefit is to be. I understand that under the terms of the Bill it would be possible for the reduction to be 99.5 per cent. It is only from other sources that we learn that the Government's intention is a reduction of 20 per cent. That is not contained in the Bill and I should like to know why. I wish to draw attention to the fact that since the proposal is not in the Bill it could be varied by future Governments without coming back to this Chamber for a Vote.

The noble and learned Lord may remember his exchanges with the noble and learned Lord, Lord Simon of Glaisdale, during discussions on the Courts and Legal Services Bill relating to a clause which gave the Lord Chancellor for the time being power to vary the level of a fine. For practical purposes the reduced benefit direction is in some way analogous to a fine. It is a penalty imposed by force of law and a deprivation of part of a subsistent benefit. It is a proposal which the Committee should view with misgivings if the Government come before us with proposals to vary a deprivation of this significance without the leave of the House.

I should like also to know how the Government arrived at the figure of 20 per cent. Is that a figure plucked out of the air or has any reasoning led them to choose it? It seems to me, as it did to the Social Security Advisory Committee, that £7.35 per week is a considerable sum to come out of income support, which is in any case a subsistence benefit. Such a deprivation risks lowering the income of the mother below the level of subsistence. As there is such a thing as a household income, I do not understand how it is possible to lower the mother's income below subsistence level without in the process penalising the child. Therefore, I wonder whether such a deprivation infringes the principle of the White Paper that children come first. I beg to move.

Lord Henley

These amendments seek to limit the amount and period of a reduction in benefit arising from failure to co-operate—and I stress that that is the reason for the reduction—in obtaining maintenance without good cause. The amount would he limited to 5 per cent. of the personal allowance payable to a lone parent who is under the age of 18; that is, at present, £28.80 per week. I note that my noble kinsman, who has sometimes objected to those lower rates of income support, has accepted that figure. Five per cent. of £28.80 is £1.45. The period would be limited to a maximum of six weeks. The overall effect of this amendment would be that a caring parent would lose about £10 in total, which undermines the intention of the benefit reduction. I fear that it would also increase the risk of collusion between parents in order to avoid paying maintenance. The absent parent could buy off the caring parent by offering her £11 if she agrees not to give his details to the child support agency. Therefore, both parents would gain financially and the ultimate loser would be the taxpayer.

We believe it right that the caring parent should think carefully about the advantages of maintenance to her children. It would provide a regular income, which can be of considerable help if she wishes to return to work and, of course, for caring parents on family credit or disability working allowance, there is an immediate advantage as the first £15 of any maintenance will be disregarded. Where a caring parent has good cause she will be exempt from the requirement to co-operate.

I have said already that, where we are satisfied on the evidence available to us that there has been a history of violence or that there is a well-founded fear that seeking maintenance will put the caring parent or child at risk of violence, then that will be counted as good cause. However, we do not believe that it is enough for the caring parent to say that there is or has been a threat of violence. It is perfectly reasonable to explore fully with her her reasons for fearing violence and to ask her to provide evidence, as I said last week when we debated these matters.

It is important also to bear in mind that the caring parent will have three opportunities to explain her reasons if she does not wish to co-operate: at the initial discussion with a child support officer; to an adjudication officer if the case is referred to him; and finally, to an appeal tribunal if needed.

In relation to the objectives of the clause, I hope that I have made clear that we are trying to be as fair and reasonable as possible to the caring parent.

The noble Earl asks about the amount and duration which we are considering and he mentioned the figure of up to 20 per cent. which was put forward in the White Paper. We are considering very carefully what should be the level in the event of the caring parent having no good cause not to co-operate. As I said, those must be set out in regulations. It is a very difficult issue and we need to achieve the right sort of balance to encourage the parent to think about her responsibilities and the benefits of maintenance to the child. As I stressed earlier, we must consider the risks of potential collusion between the caring parent and the liable relative—in effect, the father buying off the mother.

As I indicated earlier, this amendment does not achieve the right balance. A total loss to the caring parent of £10 is far too low. I have listened to comments made and shall continue to do so before coming forward with a figure. However, we believe that this amendment sets the level of loss—£10—too low and I hope that my noble kinsman will withdraw his amendment.

3.15 p.m.

Earl Russell

I am not entirely satisfied with that reply. I have not been told why the Government do not think it proper to specify the amount in the Bill. My noble kinsman spoke about the level of disentitlement and said, "We are considering it very carefully". Throughout that speech was the assumption that the department makes the law; but that is not the case. Parliament makes the law. I do not understand why the department believes that it is entitled to fix a matter of this importance—a matter of considerable principle in this Chamber—without coming before Parliament and receiving its approval.

Lord Henley

I made it clear that these matters would be covered by regulations which must come before Parliament and which require parliamentary approval.

Lord Simon of Glaisdale

Can the noble Lord tell us when we shall see the regulations and whether that will be before the Bill is passed? The noble Earl raises a very important point.

Lord Henley

I cannot give the noble and learned Lord that assurance. Before the Bill leaves this place, we hope to put before it both the amount and the duration. Therefore, we shall be able to let the noble and learned Lord know what we are minded to do.

Lord Mishcon

Does the Minister realise the unhappy position in which Parliament is placed by his very courteous but, nevertheless, unsatisfactory reply? What will happen when a regulation comes before Parliament? It will contain a percentage which will be the maximum percentage of the reduction, and there will be a specified period which will be the maximum specified period. If Parliament believes that to be slightly too harsh or too moderate, it cannot amend. Therefore, either the whole regulation must be thrown out or we are left in a completely unsatisfactory position.

That position would be entirely different if the Minister—and he will forgive me using this expression —had the courage now to bring before Parliament what the department has in mind. Surely after consideration of so much detail in this Bill, it is not too much to ask that a department makes up its mind on the issue of what it believes to be just by way of a percentage reduction and period. If Parliament has that information now, it can do something about it. If it does not, then it is at the mercy of the department, as are the people concerned.

Lord Henley

As I said, we are considering these matters very carefully but we have not decided on what figures to bring forward. I do not believe that it would be right for those figures to be written on the face of the Bill because those figures may need changing at a later stage and, as the noble Lord knows, primary legislation can be a very slow process by which to achieve those changes.

We feel that it is right that that information should be contained in regulations. As I said, before the Bill leaves this Chamber I hope to give some idea of what the department has in mind as regards percentage and duration. I should have thought that that assurance from the Dispatch Box would be sufficient on this occasion.

Lord Mishcon

In his reply the Minister has been as helpful as he can be. He is obviously governed by a decision on policy which I do not understand. However, when he says, "before the Bill leaves this place", does he mean that we will receive the information before Third Reading? If so, we shall be able to deal with the matter by way of amendment at Third Reading. If it only came forward on Third Reading we would not be able to do anything at all.

Lord Henley

I certainly give the noble Lord the assurance he seeks. We will bring forward the information before Third Reading, and will advise the noble Lord of the figures we are minded to bring into the regulations. I do not promise that we will provide figures on the face of the Bill. It is a matter that is right for regulations. However, we hope to have the figures for percentage and duration before Third Reading.

Lord Coleraine

If I am right in thinking that the adjudication officer acts judicially and that he will have before him a written report from the child support officer, which will merely state that the mother has failed to provide the information specified or that she has misled the support agency and specifies how she has done so, could my noble friend say by what criteria the adjudication officer will determine the amount of reduction in benefit that is to be made?

Lord Henley

It is not for the adjudication officer nor the child support officer to decide on the amount of reduction. They must decide whether or not deductions should be made. The child support officer will ask the caring parent to explain why she does not wish to co-operate. If, for example, she says that she has a fear of violence, it will be first for the child support officer and later for the adjudication officer, on the evidence before them, to decide whether they accept her word. If they believe that there is no good cause for her refusing to co-operate then the benefit sanction, at whatever figure is agreed, will come into operation.

Lord Coleraine

Perhaps my noble friend misunderstood me. I believe he said that it was not for the adjudication officer to fix the amount of reduction in benefit. As I read subsections (5) and (6) of Clause 22, the adjudication officer is to give a "reduced benefit direction". That means, a direction that the amount payable by way of any relevant benefit…be reduced by such amount…as may he specified in the direction". If the only information before the adjudication officer is that the mother has been unco-operative, I do not understand by what criteria an adjudication officer can fix the amount of reduced benefit.

Lord Henley

The adjudication officer is informed that the mother is not being co-operative. The caring parent—that is, the mother—can come back to the adjudication officer and make her own representation as to whether or not she has any evidence. The burden of proof rests upon the claimant. However, that burden is not to prove beyond reasonable doubt. The matter will be decided on the balance of probabilities and whether or not she is believed by the adjudication officer.

Lord Coleraine

Surely the mother is not producing evidence at all. She is merely making written representations.

Lord Henley

The mother makes representations to both the child support officer and later the adjudication officer. It is for them to decide whether or not they believe her. The onus of proof is upon the caring parent, and the adjudication officer must decide whether or not he believes her.

Lord Prys-Davies

Perhaps the Minister can clear up this point. If the adjudication officer decides to issue a reduced benefit direction, I believe he has no discretion as to the amount to allow or disallow. Is that correct?

Lord Henley

I have slightly misled the Committee. The adjudication officer can decide to go up to the specified amount. The question of evidence, with which my noble friend was concerned, must still be considered. It is a matter for the claimant to prove —the burden of proof is upon her—that she has fear of violence or whatever the reason might be.

Earl Russell

I ask leave to withdraw the phrase, "without parliamentary approval". It was perhaps a little metaphorical. The noble Lord, Lord Mishcon, kindly explained what I was getting at.

However, I do not understand why my noble kinsman is entitled to come before the Committee and ask us to approve something when he has not yet decided what it is going to be. In addition, my noble kinsman has not answered what was an equally important point in the proposal of this amendment, that the 20 per cent. reduction is lowering the income of the mother, and therefore the child, to below subsistence level. That is thoroughly unsatisfactory. It is a matter to which we shall have to return. Failing any further understanding between us, for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 and 44 not moved.]

Lord Henley moved Amendment No. 45:

Page 16, line 31, at end insert:

("( ) A reduced benefit direction may only be given if the amount of the relevant benefit which is to be reduced has been determined.").

The noble Lord said: I spoke to this amendment with Amendment No. 20. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 46 and 47 not moved.]

Lord Meston moved Amendment No. 48:

Page 16, line 43, at end insert:

("( ) Where a person has made and is pursuing an appeal against the giving of a reduced benefit direction, that direction shall not come into effect pending the determinations of her appeal.").

The noble Lord said: The purpose of Amendment No. 48 is self-evident. I shall not waste time or words on it. It inserts a provision that benefit shall not be lost while an appeal is pending. I beg to move.

Lord Henley

This amendment seeks to delay the implementation of a decision to reduce benefit in cases where a caring parent has, without good cause, refused to co-operate in obtaining maintenance and has appealed against this decision. The benefit reduction would not come into effect until the appeal had been heard, and also, of course, would depend on the appeal tribunal confirming the original decision to reduce benefit.

The first thing that needs to be said is that, before lodging an appeal, the caring parent would have had two opportunities to present her case that she had a good cause not to co-operate. The effect of the amendment would be contrary to existing practice in all other areas of social security benefits. It will also be contrary to the practice which will be used for all other appeals which will arise from decisions taken by the child support agency. The existing practice is that, irrespective of whether an appeal is lodged, the original decision is implemented. If an appeal is lodged and is successful, then the original decision is overturned and the appellant is refunded any benefit due. That is how we intend the appeal mechanism to operate with benefit reduction, so if the appeal tribunal agrees with the caring parent that she did have good cause not to co-operate, then she will be refunded all the benefit she has lost.

There is another powerful argument against the amendment. There will inevitably be a gap between lodging an appeal and the appeal being heard. Many caring parents subject to a benefit reduction will be tempted to postpone the effect of the penalty by appealing, whatever the merits of their case. That could result in a significant increase in work for appeal tribunals, leading to longer delays and more expense. And, of course, some caring parents will leave benefit before the appeal is heard, and will therefore escape a benefit reduction completely.

In the light of those explanations I hope that the noble Lord will not feel it necessary to press the amendment.

Earl Russell

Before my noble friend replies perhaps I may say that I follow my noble kinsman's reasoning regarding the appeal and the refund. However, pending the refund has my noble kinsman given any thought to what the caring parent and child are to live on in the meantime?

Lord Henley

They are living on benefit with the appropriate benefit reduction.

3.30 p.m.

Earl Russell

It may be here that my noble kinsman can give me an answer to the question I asked him before. Does he think that the mother and child can live on that amount?

Lord Henley

We have never said that income support rates are at the absolute subsistence level. I believe that they can live on that amount. As my noble kinsman knows well, there is no reduction for the child. It is only as regards the caring parent's personal amount for income support that any reduction is proposed.

Lord Meston

I am somewhat disappointed by the Minister's answer although I see the force of some of his arguments. Surely the answer to the point that those who wish to put off the reduction can prolong an appeal without merit is to provide for a strict timetable for the appeal procedure. That is a matter I wish to think about further and I may come back with a refined amendment at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question Whether Clause 22, as amended, shall stand part of the Bill?

Earl Russell

I owe an apology to the Committee for the fact that it is going to hear a good deal of my voice before the day is out. That is partly because the noble Lords, Lord Henderson of Brompton and Lord Carter, are both away ill. I am sure that the Committee will join with me in wishing them a quick and happy recovery. I can also promise the Committee that I shall not spend as much time on any amendment as I propose to spend on this Motion.

This matter is one of the two or three key issues of the whole Bill. The effect of rejecting this clause would be to remove from the Bill the power to give the parent who does not name the father of the child reduced benefit. It would deprive the Government of the sanction to enforce the requirement to name the father. It would have the effect, as I confess I hope that it would, of removing the element of compulsion from the Bill. I accept what the Government have said: the taxpayer has an interest in this. I am a taxpayer myself and I care about that interest. It can only be pursued in ways which are defensible in principle and above all workable in practice. It is my contention that the system of compulsion being set up under the Bill is neither.

I become more and more unhappy about the principle of disentitlement to benefit. Whatever my noble kinsman may have said, this is a subsistence benefit. I am not convinced by the argument that it is possible to live on 20 per cent. of it. The right social security benefit is part of the nexus of obligations which make up citizenship. It goes with the obligation to pay taxes and the right to vote. For a long time it has been a basic principle of English law that allegiance carries with it the right to protection. In this day and age I do not think that we can interpret the right to protection as meaning simply the right to protection from violent crime or external aggression. It also means protection from deprivation.

I do not see any good reason for depriving people of benefit to the point where they get below subsistence level. The motto that should be enshrined on the Secretary of State's desk is, "Don't let poor Nellie starve." That is clearly not the Government's position. I have been asking about this for some time. I asked in the course of the discussion of the Social Security Bill last year; I asked during the debate on the restart order which we dealt with recently; and I asked through correspondence before moving this amendment. I asked whether the Government will spell out under what circumstances and principles they feel justified in disentitling people to benefit.

The noble and learned Lord answered my letter with typical courtesy and promptitude. I am extremely grateful to him. He confined his answer to the issues of this Bill. In order to join issue, I want to know the Government's general answer to the question: what makes them think they are entitled to deprive people of social security benefits and under what circumstances?

I shall not pursue the issue any further now because it is not necessary to agree with that argument to vote against the clause. It is enough to believe that the system which it sets up is entirely unworkable. One of the major doubts about the clause is how many mothers are likely to be affected and what proportion of single mothers are likely to refuse to name the father. The Social Security Advisory Committee, going, so far as I can see, on information from the department, estimated a very low figure of 8,000 to 12,000 mothers. If that is all, then I do not see that it is worth setting up such a cumbrous and expensive machinery with 4,700 additional civil servants to achieve that effect.

Some Members of the Committee may have heard the speech of my noble friend Lord McGregor of Durris on the 13th of this month. He drew attention to research, on which the Bill is based, by professors Bradshaw and Millar which is as yet unpublished. Extracts from that research were published in The Times on Monday 11th March. It gave a figure of 20 per cent. of mothers likely to refuse to name the father. That is a figure of a very different order. It is important to know who is right. That is why I so strongly agree with the regret expressed by my noble friend Lord McGregor of Durris that that research has not been published and therefore we cannot check the grounds on which it is based.

We have here a difference of philosophies. The Government, acting on free market beliefs, assume that people will behave in an economically rational manner if they are to suffer a financial penalty through not naming the father. I doubt that. In areas of both sexual and parental emotions, people are often moved by other things a great deal more than they are by financial motives. We have a case here of free market theorists missing so much. We have the prospect of depriving large numbers of mothers of a large part of their benefit. I cannot see how that can happen without the children suffering.

We should think about the circumstances in which a mother may refuse to comply. It may be because of pride. It is not possible for two people to live with and love each other without learning, or thinking that they have learned—for our purposes it does not matter which—a good deal about the other person. There may be things which make them feel that they never want to meet each other again but which to an adjudication officer would not appear good cause.

Let us consider a case which is within my memory; namely, someone who took his pet rabbit, put it in the tumble drier and switched on. When he got the rabbit out it was dead. If one had suffered a fatal attraction for someone capable of doing that kind of thing, one might feel that one would never wish to have contact with him again. I very much doubt whether that would appear to be good cause to an adjudication officer operating under this Bill.

We must take care of pride. The pride of a single mother is very important. It is essential to her ability to carry on operating. If you set out to break that, you may end by weakening the bond between parent and child.

The other possible reason is fear. We have been told that where there is external proof of domestic violence, that is likely to be regarded as good cause. I welcome that, but it is not spelt out. I wish it were. There are many cases of violence which do not leave a visible mark, least of all when some time has elapsed afterwards. With no external proof, there is nothing for it but to take the woman's word. The effect of the provision that the Government offer here is to give every woman who is the victim of domestic violence an incentive to call in the police immediately in order to have a witness. The effect of that will be the breaking of a great many marriages which might otherwise have been saved. I would regret that.

There is also the example of the woman who cannot comply, because she does not know who the father is. I do not understand how the Government propose to deal with that situation. Nor do I understand how the Government propose to deal with a woman who says that she does not know who the father is, because it seems to me that the woman who asserts that she does not know who the father is cannot be legally traversable. One may prove that A, B and C might have been the father, but without a Big Brother of positively Orwellian proportions one cannot prove that X, Y and Z cannot have been the father. So it seems to me that the woman need only say that she does not know who the father is for the whole of this provision to become inoperative.

There is the further possibility that the woman may say, like the famous extract which appeared in This England in 1959, "Oh, I don't know him well enough to know his surname". When I ask a great many of the people I teach to get in touch with each other by surnames they simply do not know who I am talking about. So we may be left with a child support agency having to deal with a statement something like this: "Oh, it was someone called Dave who I met at a party given by Chris somewhere in Wood Green". I really do not see how the unfortunate child support agency is to follow that up. I do not see how justice can be done.

There is also the possibility of the mother, in sheer mischief, naming the wrong person. That has happened in the past when such requirements have been in the law. By the leave of the right reverend Prelates I should like to tell a story of a precedent in the 1620s. Several women in the diocese of Bangor who became single parents were required to name the father. They named the bishop. Unfortunately, the morals of the then Bishop of Bangor were such that he had acquired the nickname of "My Lord Bang-Whore". It was therefore quite impossible for him to clear his name. I think we have here a potential for a very great deal of mischief. If it works as the Government suppose—which I do not suppose it will —then the very minimum effect will be, as the Social Security Advisory Committee said, quite unacceptable stress and hardship both for the mother and the child.

It does not matter in the end whether one thinks that this is, or is not, a good requirement in principle. It cannot be done. I should have thought that in this week of all weeks the Government would realise that Parliament has had enough of trying to use legislation to enforce impossible requirements.

3.45 p.m.

Lord Houghton of Sowerby

No one would believe that a clause of this kind could have any acceptable part in the Bill. I do hope that the Committee will not allow it to stay in. Nobody seeing the glossy covers of the so-called White Paper showing the happy faces of children dancing and playing about could possibly imagine that at the back of it this unacceptable face of child support is embodied in a Bill which is to implement the recommendations in the White Paper.

I could believe that this and subsequent clauses come almost straight from Romania. I cannot believe that they come from any but one source in this Government, and that is the former Prime Minister. I do not believe that any other member of the Government would be the inspiration behind such an authoritarian measure as we are now discussing.

I do not know whether your Lordships have had experience of the personal, social and economic problems lying in the background of this area of human affairs. Happily I have been free of it, but for 10 years during the war I was broadcasting on these and similar problems in our social life. As a Member of the House of Commons for 25 years I was frequently coming up against the grievous personal crises in the lives of quite decent people from a breakdown in their emotional lives.

Can we really imagine—I hope that we can—what may lie behind a breakdown in the relationship which gives rise to the need for a Bill of this kind? Human emotions are a mystery. Why do these relations break down? Can anyone tell us why? Sometimes not even the people involved in them can do that. Is it not asking too much of an applicant, or a person who wishes not to be personally involved in procedures against her former partner, to put her hand to a document which authorises bureaucracy to go in pursuit? To suggest that people—mostly women—will find themselves deprived of some of the social support provided under the social security Acts in default of giving their name to such action is quite outrageous. It is negative child support. It is a deprivation of child support if the penalty for not assenting to the pursuit of the other partner is to be a loss of child support in cash under the social security arrangements. Therefore, I feel that the clause is a blot on the Bill. I sincerely hope that the Committee will not allow it to stay in.

There is a better way. The lack of feeling, the lack of understanding and the proliferation of regulations which the Bill permits the Secretary of State to introduce are really quite unacceptable. The power given to the Secretary of State to make regulations of a punitive nature, reaching far into the personal lives of individuals, is something we cannot stand for. I sincerely hope that, come what may, this clause will never stand in the legislation of this country. It is not desirable for your Lordships to be associated with it. Let the other place, if it feels electorally qualified, keep in these provisions, or put them in. Do not let us be an accomplice in this outrageous legislation to intrude into the lives of people who are already miserable, who have already suffered a great deal and who have probably had their lives ruined by their own mistakes or their faults of judgment in linking up with other people. I profoundly hope that we shall not allow this clause to stand part of the Bill.

Lord Mishcon

The noble Earl, Lord Russell, had the privilege of addressing the Minister as his noble kinsman. I do not have that privilege; but, with the permission of Members of the Committee, I shall quote a noble kinsman of mine. I refer to the prophet Micah who possibly had some words which could be addressed to the Committee at present. He said: What doth the Lord require of thee, but to do justly and to love mercy". I think that that is an appropriate thought to bear in mind when looking at the clause which is now before us.

I do not propose to repeat the arguments which were advanced so eloquently by the two previous speakers. However, I should like to ask this question: who will be penalised? The income support and the family credit are used to keep the little household going. That is added to by the maintenance for the child. If anything is deducted from what we all agree is a meagre sum which goes into the household, who suffers? Is it the mother who suffers by depriving herself of food so that the child can eat despite the deduction, or is it the child whom we are trying to help by way of this Bill?

As I said, I shall not repeat the arguments which have already been put forward. However, I invite Members of the Committee to throw out this clause for more than the latter reason. If we are to give the Secretary of State power to make this reduction, possibly because—this is the main example which has been put forward—a mother declines to mention the name of the father, one would have thought that before such a power was given to penalise the right to penalise would be closely defined in language which the Committee could support. The words at issue are, "without good cause".

If I remember correctly, the White Paper gave some examples of what could be termed as being "without good cause". We were told—and I remember the noble and learned Lord the Lord Chancellor saying this—that these words would be defined in regulations and that we would know when the regulations were issued what ought to move the minds of those who have to take these decisions as being "without good cause". I ventured to ask the noble and learned Lord whether it was possible to specify what those words meant and what ought to guide the officials. I asked why such a definition was not included in primary legislation when it could be spelt out in secondary legislation. The noble and learned Lord answered me perfectly fairly, as is his usual custom. He said that it was difficult to amend primary legislation and that it was easier to amend regulations. He said that one did not wish to have in the statute fixed words which may need to be amended at a later stage.

I understand that that principle may apply to formulas in the Bill—for example, the value of the pound and the change in social conditions over the years—but, as regards the words "without good cause", is it likely that a criterion will arise in future months and years which cannot be forecast at this time?

If we are asked to pass this clause—I hope that Members of the Committee will decide that that is not our decision —can we possibly do so without knowing what a regulation will say about the guidance to be given to an official and before we know why he decides that the person concerned has not complied with the request for information without having good cause for such non-compliance?

Is it not sufficient that what we do is to say to ourselves, "In passing this Bill our primary objective is not to help the Department of Social Security to save money. Our primary consideration is not to save money for the Treasury; the paramount consideration governing our thoughts"—as it governed our thoughts as regards the Children Act and matrimonial legislation—"is the welfare of the child". How can we in conscience deprive the child, even indirectly, by introducing a penalising measure in respect of someone who does not answer a question, be it as to the fatherhood of the child or anything else, put by an official having a jurisdiction to operate within the words "without good cause" which are completely vague? It is with good cause that we throw out this clause of the Bill.

Lord Coleraine

I entirely share the wish of the Government to rectify what is clearly an abuse of the social security system. It cannot be right for the single mother to refuse to name the parent of her illegitimate child so that the state, rather than the parent who is probably working, bears the cost of the maintenance. That means that the maintenance is paid by the taxpayer. Therefore, in principle I would not in any sense object to penalisation of such a mother.

We are being asked to reduce the benefit which would go to the child or which would go to the family for the benefit of the child. It is curious that the figure which has been chosen for the reduction of benefit is 20 per cent. of the weekly personal allowance of an adult. It also happens, by chance or by design, to be the amount of the family premium. I cannot believe that to take away the family premium of £7.35 can do anything but remove support for the children, which is what the Bill seeks to achieve.

Lord Stoddart of Swindon

I am also very worried about this clause for the reasons which have already been given. I should like to point out to noble Lords on the opposite side of the Committee that we must be very careful as regards what we do in this respect. I instance the imposition of the poll tax as being a salutary lesson from which we should learn and which should persuade us to be very careful when we introduce a new provision without having properly considered its effects. I fear that the effects of this clause have not been properly considered.

In my view the Bill was not conceived in a reasonable manner. It was not conceived with the object of putting the child first; it was conceived with the object of saving money for the Treasury. I believe that it was conceived on the basis that, having had the pleasure, fathers should suffer the pain. That is not a good way to prepare such a Bill.

When the press hear about some of the hardship cases which will arise in the future they will be made the subject of headlines. The press may believe that there are good reasons for the mother not naming the father, although the officer making the assessment may not be of the same opinion. If the press then find out that the mother and child are being deprived of sustenance despite those good reasons, the headlines in the newspapers will be just as bad for the Government and for the Bill as were those in regard to the poll tax and its collection. Therefore I hope that we shall be careful before passing the Bill with this clause in it. It is a minefield. I say that advisedly. We have had the experience of letting through ill-considered legislation. I say that in all conscience and with the utmost goodwill to Members opposite. We do not want a repeat.

Before I sit down I return to the point I raised on Clause 5. We were unable fully to debate it last Thursday and we cannot fully debate it now. I raised the subject of the so-called virgin birth. The Government have not said that they will ban virgin births. They have not said that they disagree with the system, but under this clause we could be creating two types of family: one family which has had the intervention of a man in the birth of a child who could be deprived of benefit for certain reasons; and another type of family which, because a man did not intervene, would be entitled to benefit under all circumstances. I urge the Minister to consider that point, because it will have to be considered in due course. We cannot have two types of mother and child: the one which under all circumstances will be entitled to state benefit and the other which may not be entitled to state benefit. I urge the Government to consider that point. If the Government will not withdraw the clause I hope that the Committee will vote against it.

4 p.m.

Lord Simon of Glaisdale

The formidable difficulties which the clause raises are becoming ever more apparent. Human backgrounds are such that the circumstances can be infinitely different. The Government would do well to withdraw the clause at this stage and give very much more thought to the problems which are becoming apparent.

So far as the mother is concerned, there are two different situations, although one can shade off to the other. The first is where the mother knows who the father is but does not wish to say. In such a case it seems reasonable to say to the mother, "You are claiming a benefit. You are claiming it ultimately from the taxpayers who have their own children to support. It may be that you have good cause to refuse to name the father". One can think of cases—some of which have been mentioned—such as incest, child abuse, in certain circumstances wife battering, and others. That is one situation. The mother may have good cause, but that must be weighed against the fact that she is claiming a benefit and thereby depriving taxpayers and seeking to place the burden on other parents.

The other case is where the mother does not know who the father is. That again can arise in two situations: she may genuinely not know the identity of the father in a promiscuous encounter, or she may have had sexual intercourse with several men at the relevant time and not know which is the father. Those cases raise different considerations. In the second case, if the mother names the man there is a medical procedure nowadays by way of blood testing in which the technique has developed so far that a named individual can be virtually excluded.

What seems transcendent here is that the question of "good cause" in those infinitely divergent circumstances is one which should be determined by a court and not by an official of the department. That problem, on a more general basis, is awaiting consideration on Report when the noble Lord, Lord Mishcon, will put forward again the amendment which he rightly withdrew owing to the lateness of the hour on the last occasion we considered the Bill. That is the general issue. This matter vindicates a great deal of what the noble Lord said last Thursday. Even if one does not give the courts and officialdom a concurrent jurisdiction the issue (good cause for refusing to name the father) is essentially one for a court of law.

The unfortunate woman whose hopes of a happy marriage have been frustrated is surely entitled to go before a bench of magistrates which is impersonal but which can consider her situation in all its infinite diversity from the point of view of fellow human beings. I do not mean to say that officials of the department are heartless—far from it but that is how they will appear to a woman if she receives an adverse answer. She is entitled to go before a court of law. If she there receives an adverse answer, at least she will have had the decision made made by her fellow citizens.

Baroness Faithfull

I should like to ask my noble friend the Minister a question. We have been talking about the woman and the child all the time. What about the father or the alleged father, following what the noble and learned Lord, Lord Simon of Glaisdale, said? If there is a dispute between the mother and the father over the child, it may be the father who disputes the point. That is a matter we have not touched upon. What is the Government's attitude to that position?

Secondly, I find the whole situation we are arguing this afternoon difficult because we do not know what we are arguing about. Amendment No. 47, which was not moved, provided: The Secretary of State shall issue guidance, in the form of a code of practice, to child support officers and other officers". As my noble friend the Minister said, the regulations have not yet been published, so we do not know what we are talking about. Therefore I find it difficult to decide what to do. I could not vote for the clause as it stands.

Lord Henley

We are talking about the benefit sanction of making a reduction in the mother's personal allowance and only that allowance. I should make clear, particularly to my noble friend Lord Coleraine, that this would not affect the family premium, nor the lone parent premium nor the allowance for children. We are talking purely about a sanction against the mother, by making a reduction in her personal allowance when she refuses to co-operate.

Lord Coleraine

I am grateful to my noble friend for giving way. I did not suggest that anything was taken away from the family premium, merely that it was a strange coincidence that the amount being taken away from the single person's allowance —and it is the same whether the person is an adult or under 18 happens to be the amount of the family premium. It may as well be the family premium.

Lord Henley

That is not the case. As I was going on to say in response to my noble friend Lady Faithfull and as I said earlier in response to the noble Lord, Lord Mishcon, we have not yet decided on the duration of the sanction or the level of the amount. I gave the assurance that we would bring forward the figures at some point before the Bill left this House.

Income support is not a subsistence benefit, as my noble kinsman Lord Russell stated. There is scope for a sanction in this case. Anyway, the carer has the option of electing to co-operate and therefore avoiding the reduction. She only loses if she refuses to co-operate and there is no good cause. I shall come to the matter of no good cause later. I say briefly to the noble Lord, Lord Mishcon, that we have agreed to consult on the definition of "no good cause", and we envisage the matter going to the Social Security Advisory Committee.

Lord Mishcon

Will the noble Lord forgive me for intervening? I promise not to do so again unless I have to. If the amount and the phrase "good cause" will be decided later—the noble Lord was fair and said that it will be decided before Third Reading—would it not be sensible for the Government to accept the withdrawal of the clause at this stage? Then, before Third Reading, the Minister could give the House the Government's considered view as to the amount and duration as well as their definition, following consultation, of "good cause". The House could then consider in the light of that information whether the clause should be brought back at Third Reading. Is that not the obvious course to take?

Lord Henley

I do not believe that the House would have the power to do that. I have no intention of withdrawing the clause at the moment: it is surely just as legitimate to leave it in the Bill. If the noble Lord is not satisfied with the assurances that I bring forward before Third Reading, he may seek to remove the clause at that time. However, it would be wrong to remove it now. I shall return to "good cause" later.

My noble kinsman also asked about deductions from other benefits. He implied that it was wrong on any occasion to make reductions in benefit. There are various occasions when we insist on a reduction in benefit and most people agree that that is right. I cite one—the voluntary unemployment deduction. Someone who becomes voluntarily unemployed loses entitlement to unemployment benefit. If he refuses actively to seek work, he will find that his income support is reduced by 40 per cent. or 20 per cent., depending on the circumstances. Most people would accept it as right that those who are not prepared to work and refuse to do so should not be entitled to the same benefits as those who do work.

Earl Russell

Perhaps I may save my noble kinsman a little time. I am aware of the list of cases but I ask whether there is any general principle which governs them.

4.15 p.m.

Lord Henley

I am trying to give the justification for that example, and I have done so. It is right that those who refuse to work should not be entitled to the same benefits as those who are unable to work. Similarly, as we are trying to make clear on this occasion, for those who refuse to co-operate without good cause there should be a benefit sanction. As the noble Earl knows, already most caring parents are prepared to co-operate with the department to obtain maintenance for their children as they recognise that it is right, proper and in the interests of the children to do so. We expect that the reduction that is, this benefit sanction—will only be needed in a small number of cases. I would be the first to admit that the benefit savings will be insignificant, but there is no question of penalising someone who has good reason not to co-operate.

We do not wish to reduce the benefit of a caring parent unless we feel we have no option. The caring parent who feels unable to co-operate will have three separate opportunities to make her case. After discussion with the child support officer and the adjudication officer, the matter will end by going before the social security appeal tribunal. That tribunal is independent of the Department of Social Security: it will re-examine the matter. In that case, the caring parent has ample opportunity to put her case.

Various Members of the Committee have raised in different ways—whether in regard to virgin births or promiscuity—the question of whether the caring parent knows the name of the father. The question of knowledge is not relevant; it is whether she is prepared to co-operate. If she genuinely does not know the name of the liable relative, whatever the means by which he became the liable relative, she will obviously be unable to give his name. She will be expected to give as much information as she can in order to give the child support agency as much information to go on as possible. In response to my noble friend Lady Faithfull, perhaps I may make it quite clear that obviously disputes over establishing paternity are a matter for the courts.

That brings me to evidence. We touched on the matter when we spoke of violence and what kind of evidence the caring parent would have to provide to prove the violence. The same would apply to whether corroboration was needed of the claim that she had no knowledge of the identity of the father. Our adjudication officers already have guidance on corroboration of a claimant's own evidence. It is based on the commissioner's decision. I believe that the case has been published and I am prepared to make details available to Members of the Committee by placing them in the Library, if the Committee so wishes.

Among the main points that the commissioner made in the decision to which I have referred is that, first, the burden of proof will rest on the claimant. She is not bound to prove whatever it is beyond all reasonable doubt. She is entitled to be believed if, when considering the evidence as a whole, the balance of probability is in her favour. There is no rule of English law that corroboration of the claimant's evidence is necessary. She is also entitled to be believed unless her evidence is self-contradictory or contains something inherently improbable, or something in the claimant's demeanour does not inspire confidence in her truthfulness. However, it is seldom safe to reject evidence solely for the last reason. If these provisions are satisfied, the claimant's own evidence should be accepted. Lastly, if evidence is rejected on any of the grounds stated above, then the adjudicating authority should identify in reasonable detail the grounds for such rejection.

I hope that I have satisfied Members of the Committee as to the necessity for the sanction. It is clear to me that imposing an obligation is meaningless unless there is some sanction in the event of that obligation not being fulfilled. Removing the sanction would mean that caring parents could, possibly with the connivance of the other parent, decide to let the absent parent off scot free and allow the taxpayer to foot the bill, knowing that there is nothing that the agency can do about it. That cannot be right, and I urge the Committee to reject the arguments of my noble kinsman and to agree that Clause 22 should stand part of this Bill.

Earl Russell

I am deeply grateful for the support I have received from every quarter of the Committee. I am deeply grateful to my noble kinsman for the care, courtesy, and thoroughness of his answer. I cannot say that I am entirely satisfied. I agree with the points made by the noble Baroness, Lady Faithfull, and the noble Lord, Lord Mishcon, about the impropriety of asking us to approve matters which are not decided.

I am not convinced that income support is not a subsistence benefit. I am not convinced in particular by my noble kinsman's argument that we can distinguish between the money going to the mother and the money going to the child. You do not divide a weekly packet of butter into one small part which is for the child and another which is for the mother. If there is less butter, there is less for both of them.

There are other causes we have not touched on. There is, for example, the possibility that where the father's name is revealed he will be in danger of violence from the woman's brothers. Such things have happened. Where we are dealing with cases where the woman genuinely does not know the adjudication officer acting on behalf of the Government risks the suspicion that he may be judge and party in his own cause.

Finally, every attempt to come between women and their reproductive functions, from the Infanticide Act 1624 onwards, has led to failure. This will be no exception. I oppose the Motion that the clause stand part of the Bill.

4.22 p.m.

On Question, Whether Clause 22, as amended, shall stand part of the Bill?

Their Lordships divided: Contents, 106; Not-Contents, 110.

Division No. 1
Aldington, L. Lindsey and Abingdon, E.
Alexander of Tunis, E. Long, V.
Allenby of Megiddo, V. Lurgan, L.
Ampthill, L. Lytton, E.
Arran, E. McAlpine of West Green, L.
Astor, V. Mackay of Clashfern, L.
Belhaven and Stenton, L. Mancroft, L.
Bessborough, E. Margadale, L.
Birdwood, L. Merrivale, L.
Blatch, B. Mersey, V.
Blyth, L. Middleton, L.
Brabazon of Tara,L. Monteagle of Brandon, L.
Brougham and Vaux, L. Mottistone, L.
Butterworth, L. Mountgarret, V.
Caithness, E. Munster, E.
Caldecote, V. Nelson, E.
Campbell of Alloway, L. Newall, L.
Campbell of Croy, L. Norfolk, D.
Carnegy of Lour, B. Norrie, L.
Carnock, L. Northbourne, L.
Cavendish of Furness, L. Nugent of Guildford, L.
Clanwilliam, E. Orr-Ewing, L.
Colnbrook, L. Oxfuird, V.
Cottesloe, L. Platt of Writtle, B.
Cox, B. Quinton, L.
Davidson, V. [Teller.] Radnor, E.
Denham, L. [Teller.] Rankeillour, L.
Downshire, M Renwick, L.
Elibank, L. Richardson, L.
Elton, L. Rodney, L.
Erne, E. Selborne, E.
Ferrers, E. Shannon, E.
Fortescue, E. Sharples, B.
Fraser of Carmyllie, L. Skelmersdale, L.
Fraser of Kilmorack, L. Soulsby of Swaffham Prior, L.
Gainford, L. Sterling of Plaistow, L.
Geddes, L. Strathclyde, L.
Grimston of Westbury, L Strathmore and Kinghorne, E.
Grimthorpe, L. Strathspey, L.
Hailsham of Sudeley, L.
Saint Marylebone, L. Swinfen, L.
Halsbury, E. Terrington, L.
Hardinge of Penshurst, Teviot, L.
Harmsworth, L. Thomas of Gwydir, L.
Haslam, L. Trefgarne, L.
Henley, L. Trumpington, B.
Hesketh, L. Ullswater, V.
Hood, V. Vaux of Harrowden, L.
Hooper, B. Waddington, L.
Howe, E. Wade of Chorlton, L.
Johnston of Rockport, L. Westbury, L.
Kinnaird, L. Wise, L.
Knollys, V. Wynford, L.
Lauderdale, E.
Acton, L. Banks, L.
Addington, L. Birk, B.
Airedale, L. Blackstone, B.
Alport, L. Bonham-Carter, L.
Annan, L. Boston of Faversham, L.
Ardwick, L. Bottomley, L.
Aylestone, L. Broadbridge, L.
Bancroft, L. Campbell of Eskan, L.
Carmichael of Kelvingrove, L. Lockwood, B.
Cledwyn of Penrhos, L. Longford, E.
Clinton-Davis, L. Lovell-Davis, L.
Cocks of Hartcliffe, L. McGregor of Durris, L.
Coleraine, L. McIntosh of Haringey, L.
Dacre of Glanton, L. Mackie of Benshie, L.
David, B. Mais, L.
Dean of Beswick, L. Mason of Barnsley, L.
Donaldson of Kingsbridge, L. Meston, L.
Dormand of Easington, L. Milner of Leeds, L.
Ellenborough, L. Mishcon,L.
Elliot of Harwood, B. Molloy, L.
Ennals, L. Monkswell, L.
Ezra, L. Morris of Castle Morris, L.
Faithfull, B. Mulley, L.
Falkland, V. Murray of Epping Forest, L.
Fisher of Rednal, B. Nicol, B.
Flowers, L. Ogmore, L
Gallacher, L. Pitt of Hampstead, L.
Galpern, L. Prys-Davies, L.
Gladwyn, L. Richard, L.
Glenamara, L. Ritchie of Dundee, L.
Graham of Edmonton, L. [Teller.] Rochester, L.
Greenway, L. Russell, E. [Teller.]
Gregson, L. Sainsbury, L.
Gridley, L. Saltoun of Abernethy, Ly.
Hampton, L. Shepherd, L.
Hanworth, V. Simon of Glaisdale, L.
Harris of Greenwich, L. Stallard, L.
Hayter, L. Stedman, B.
Hollis of Heigham, B. Stoddart of Swindon, L.
Houghton of Sowerby, L. Strabolgi, L.
Hughes, L. Taylor of Blackburn, L.
Hunt, L. Thomson of Monifieth, L.
Hutchinson of Lullington, L. Tordoff, L.
Hylton-Foster, B. Turner of Camden, B.
Irvine of Lairg, L. Underhill, L.
Jeger, B. Varley, L.
Jenkins of Putney, L. Wallace of Coslany, L
John-Mackie, L. Walston, L.
Kilbracken, L. Wilberforce, L.
Kilmarnock, L. Williams of Elvel, L.
Kinloss, Ly. Wilson of Rievaulx, L.
Kirkhill, L. Winchilsea and Nottingham, E.
Listowel, E. Winstanley, L.
Llewelyn-Davies of Hastoe, B. Young of Dartington, L.
Lloyd-George of Dwyfor, E.

Resolved in the negative, and Clause 22, as amended, disagreed to accordingly.

Clause 6 [Right of child in Scotland to apply for assessment]:

The Lord Chancellor moved Amendment No. 50:

Page 4, line 30, at end insert ("or the absent parent").

The noble and learned Lord said: With this Amendment No. 50 I should like to speak also to Amendments Nos. 51 and 52. Clause 6 enables a child who is a qualifying child in Scotland to apply for the voluntary facilities provided by the Secretary of State for Social Security in circumstances where no application has been made by the person who has care of the child. Amendment No. 50 seeks to amend Clause 6(1) to reflect the fact that under Clause 3(1) either the person who has care of the child or the absent parent is entitled to apply for an assessment. If the absent parent has applied it will be unnecessary for the child to do so.

I now turn to Clause 6(5) which lays a duty on the person with care of a child to provide, so far as that person reasonably can, information as set out in the subsection to enable the absent parent to be traced, the amount of maintenance to be assessed, and that maintenance to be recovered. Amendment No. 51 extends that duty to the child making the application and to the absent parent.

The amendment is intended to deal with the practical point that since the person with care has not elected to apply for maintenance herself she may perhaps be reluctant to provide information to the Secretary of State when the child applies under Clause 6. However, a child who has been sufficiently motivated to seek maintenance on his own behalf may have useful information to impart. Moreover, there will frequently be cases where the absent parent, when traced, will readily provide such information. The amendment accordingly extends the duty to provide information to the child making the application and to the absent parent.

The Committee may wish to note that there is no sanction or penalty for non-compliance with this duty. To attach any financial penalty would be inappropriate. However, we believe that the majority of people will comply with the law and having the duty set out on the face of the Bill also provides authority for the child support officers in conducting their inquiries. Amendment No. 52 is consequential upon acceptance of Amendment No. 51. I beg to move Amendment No. 50.

On Question, amendment agreed to.

Lord Simon of Glaisdale moved Amendment No. 50A:

Page 4, line 31, leave out subsection (2).

The noble and learned Lord said: I need hardly say, since this is a Scottish provision, that this is a distinctly probing amendment. The subsection which I am questioning refers to Clause 5 and excludes subsection (1) in the circumstances of Clause 5. Clause 5 is the clause, the Committee will remember, which enables the Secretary of State to take over, in effect, the rights of the caring mother where she has claimed social security benefit and enables him to pursue the absent father by various means and through various procedures.

Obviously subsection (2) excludes subsection (1) in those circumstances and I take it that the reason is that subsection (1), and indeed the remaining provisions of the clause as it now is, operate to allow a child in Scotland to initiate proceedings which in England and Wales can be pursued only by the mother.

That being so, presumably subsection (2) is there to prevent people taking advantage of the provision of Scottish law referred to; to obviate, to sidestep, the set of provisions and safeguards of Clause 5. If I am right in that—as I hope I am so far; it does not require much knowledge of Scottish law—there seems to me rather a good deal of repetition of the earlier provisions of the Bill, particularly in subsections (5) and (7). I put down the amendment only to question how far those provisions are necessary by way of repetition. I beg to move.

The Lord Chancellor

I am grateful to my noble and learned friend Lord Simon of Glaisdale for raising this point. This matter has come up only recently and it seems to me that there is a good deal of substance in the question whether we need subsection (2) at all. If my noble and learned friend will be prepared to leave it with me I should like to have a little time to consider it and I shall then let him know what I have concluded. I see considerable force in what he said.

Lord Simon of Glaisdale

I am extremely grateful to my noble and learned friend. In those circumstances, I beg leave to withdraw the amendment.

Lord Mishcon

; Before leave is granted I should like from these Benches to say how much we appreciate the contributions made by the noble and learned Lord, Lord Simon of Glaisdale, which are often so useful, especially in regard to the language and the constitutional position of the statute.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendments Nos. 51 and 52:

Page 5, line 2, after ("child") insert (", the absent parent and the child concerned").

Page 5, line 2, leave out ("that person") and insert ("they").

The noble and learned Lord said: I have just spoken to these amendments with Amendment No. 50. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 53:

Page 5, line 11, leave out ("in particular").

The noble and learned Lord said: I spoke to this amendment with Amendment No. 13. I beg to move.

On Question, amendment agreed to.

Baroness David moved Amendment No. 53A:

Leave out Clause 6 and insert the following new clause:

("Right of child to apply for assessment

(1) A child, where the Secretary of State is satisfied that the child has sufficient understanding, may apply to the Secretary of State for maintenance assessment to be made with respect to him if no such application has been made by a person who is, with respect to that child, a person with care.

(2) Subsection (1) does not apply in any case where section 5 applies.

(3) Where a maintenance assessment has been made in response to an application under this section the Secretary of State may, if the person with care, the absent parent with respect to whom the assessment was made or the child concerned applies to him under this subsection, arrange for—

  1. (a) the collection of the child support maintenance payable in accordance with the assessment;
  2. (b) the enforcement of the obligation to pay child support maintenance in accordance with the assessment.

(4) Where the application under subsection (3) for the enforcement of the obligation mentioned in subsection (3) (b) authorises the Secretary of State to take steps to enforce that obligation whenever he considers it necessary to do so, the Secretary of State may act accordingly.

(5) Where a child has asked the Secretary of State to proceed under this section, the person with care of the child shall, so far as that person reasonably can—

  1. (a) give the Secretary of State such information as the Secretary of State considers necessary to enable—
    1. (i) the absent parent to be traced (where that is necessary);
    2. (ii) the amount of child support maintenance payable by the absent parent; and
  2. (b) in particular, comply with any regulations made by the Secretary of State for the purposes of this subsection as to the categories of information that he requires.

(6) The child who has made the application (hut not the person having care of him) may at any time request the Secretary of State to cease acting under this section (but subject to any regulations made under subsection (8)).

(7) The obligation to provide information which is imposed by subsection (5)—

  1. (a) shall not apply in such circumstances as may be prescribed by the Secretary of State; and
  2. (b) may, in such circumstances as may be so prescribed, be waived by the Secretary of State.

(8) The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.").

The noble Baroness said: Clause 6 as it stands retains the existing right of boys aged 14 and girls aged 12 in Scotland to make their own applications for maintenance if their parent does not. This amendment extends this right to all mature children in Great Britain. It uses the formula of "sufficient understanding" used in the Children Act to determine when a court can accept applications from children.

I do not know how the noble and learned Lord can defend a situation in Scotland not applying to England. I shall also be interested if he can tell the Committee why this occurred in the first place. There seems to me no logical reason why children in England and Wales should be unable to make such applications, or for retaining the discriminatory age-based rights of Scotland.

It is obviously sensible for children to have this right. For example, there may be circumstances where a mother who is not on welfare benefit, and so cannot be bullied by the threat of a reduction, refuses to pursue a father for maintenance out of pride or hatred when the children need or want this form of support. I am sure that there could be other situations.

At Second Reading my noble friend Lord Mishcon drew the attention of the noble and learned Lord to that point. He said: In Clause 6 there is a provision that in Scotland the right of a child to make its own application is to continue. I ask a question, and it may be that my ignorance may be shown up when I receive the answer. For the benefit of the whole House I ask: has that provision worked well in Scotland? Is it used very often in Scotland? If that right of a child is to apply in Scotland, should it not be available in England and Wales as well?"—[Official Report, 25/2/91; col. 783.]

The noble and learned Lord did not answer my noble friend's question when he replied to the debate. Therefore I shall be very interested to hear the response to that question as well as to the amendment. I beg to move.

The Lord Chancellor

In proposing a structure such as we have in this Bill it is right to have regard to the underlying law in the two jurisdictions. For reasons of history, and for other good reasons, there are a number of distinctions between the system of law operating in England and Wales and that which operates in Scotland. There are fairly deep differences, not of principle but in the way in which matters are approached.

In England and Wales there is no tradition of minor children being allowed to seek their own maintenance from the courts. That has always been done on their behalf by their parent, guardian or custodian. The Bill is not intended to disrupt the structures of family law more than is strictly necessary. Therefore the Bill's provisions concerning who may apply for an order in England and Wales mirror the substance of existing provisions and traditions in England and Wales. For similar reasons the provisions dealing with Scotland mirror the existing and traditional right of children to apply for aliment when the children become minors—in the case of girls when they reach the age of 12 and in the case of boys when they reach 14. That is the traditional Scottish distinction. Up to that time they are regarded as having no right to sue. Once they become minors they have a right to sue.

To provide the answer for which the noble Lord has had to wait for some time, children in Scotland seldom exercise that right before they have entered further education, although it would be wrong to deprive children in Scotland of that traditional right. It is not intended that the child support scheme should cover children in further education, so the existing right of children to apply, including that of 18 year-olds in England and Wales, will be preserved in those circumstances. Therefore, where it is important the two situations are the same.

As drafted the noble Baroness's amendment would enable any child to seek child support maintenance even where he was not a "qualifying child" within the meaning of Clause 2. That is the present Scottish law: a child is entitled to maintenance irrespective of conditions, such as that the family has broken up (although in reality he would only use the court in such circumstances).

As I mentioned earlier in the debates on amendments to Clause 2, the Bill has been deliberately crafted to apply only to certain categories of children. One requirement is that the parent be absent, because otherwise the state would be interfering in family life to an unprecedented and unwarrantable extent. Another requirement is that the child should be living with a person who has care of him. Those conditions apply both in Scotland and in England and Wales. That is because it may not always be appropriate for a parent to be automatically liable for supporting a child who has chosen to leave home and live independently, perhaps despite the parent's willingness to continue to accommodate and care for the child within the parental home. The noble Baroness's amendment does not reflect those conditions.

It is also important to note that the phraseology which the noble Baroness has used, which is of very distinguished parentage having come from the Children Act, was used in that Act in respect of the right to make representations. The present Clause 6 relating to Scotland is much more specific about which children are old enough to be able themselves to apply for maintenance. Those children who are not pupils, that is to say, girls under the age of 12 or boys under the age of 14, cannot apply under the Scottish system. For such a provision it is very important to have a clear definition of who may apply because one does not wish to have to entertain an application in order to ascertain whether an application can be entertained, which would be necessary under the noble Baroness's method of working.

The distinction follows a general principle of Scots law that a pupil has no legal personality and that for most purposes actions must be brought on such a child's behalf by its parent as tutor. Replacing that with a general criterion of whether the Secretary of State believes a particular child to be of sufficient understanding to make the application would be to depart from those principles of Scots law which, as I have said, we think it right to replicate in this scheme as it affects Scotland. We are attempting to take the distinct systems in the two jurisdictions and apply to them the general principles of the scheme, taking proper account of the underlying system.

I fear that for the reasons which I have given the noble Baroness's amendment would not be acceptable. I understand perfectly the reason for her putting it forward, and that has given me an opportunity to answer the question asked by the noble Lord, Lord Mishcon, at Second Reading. I believe that the answer was squeezed out because in answering the debate on Second Reading I found myself exceeding to a considerable extent what I considered to be a reasonable time. I hope that in the light of that explanation the noble Baroness will feel able to withdraw her amendment.

4.45 p.m.

Lord Mishcon

After expressing my thanks for the answer that the noble and learned Lord has given to the question that I posed at Second Reading, I hope that he and other Members of the Committee will forgive me if I introduce a wider issue so that we can deal with it once and for all.

The real issue which has been raised by my noble friend Lady David is this. There is a provision in Scots law. When we have an opportunity to look at our own law and to make fresh law, would it be sensible to see whether Scotland, or indeed any other country, has a different provision of which we can take advantage? Where we continue the life of a provision of Scots law, ought we not to ask ourselves whether it is not sensible, if we approve of what we have given to Scotland—and presumably we do because we have continued it—to look at our own law, to see whether with advantage we could borrow from Scots law? We have often done so and the fewer distinctions there are between the law on either side of the Border the better. It is absurd to wander over a border of a united kingdom and find that different laws apply, particularly when they relate to people's rights.

One has thought of questions of divorce law, which one need not go into at this moment although we may have to go into them hereafter in this Chamber. So we should look at the advantage or disadvantage of the Scottish provision.

The noble and learned Lord has explained that in Scotland the provision is used mainly by children in further education whereas it is not used often by younger children. I have in mind, and I have no doubt that my noble friend Lady David had in mind, the example of a household in which the mother unfortunately drinks heavily and is largely incapable of making any sensible application. As a result nobody makes the application, but there happens to be an extremely intelligent child who thinks, "I have to make it, and I am going to make it". There is also the case of the mother who is too ill to make the application but the child is sufficiently mature to make it.

Under our present provisions, unless complicated arrangements such as guardianship come to the fore, there is a gap. Is that not a lacuna which it would be sensible to fill? What harm would it do if the Scottish law were to be applicable here in the same way that we are saying that it shall continue for the purposes of this legislation?

I believe that my noble friend Lady David will agree with me, but if she does not I know that she will say so. The noble and learned Lord has given an answer as to the difference between Scottish law and English law and on the traditional backgrounds. Should my noble friend decide in the circumstances to withdraw the amendment at this stage, would the noble and learned Lord feel that, arising out of it, it would be a good thing to consider the advantages of making the provisions of Scots law similar to those of England and Wales so as to allow even the occasional case of a child who otherwise would not be able to apply?

I certainly do not ask the noble and learned Lord for an answer now as to whether he is or is not in favour but I wonder whether he would consider that suggestion and possibly between now and Report stage give some intimation to the noble Baroness, Lady David, and perhaps write to me and other noble Lords who happen to be interested. One would then know whether a useful purpose could be served by either the Government or these Benches tabling an amendment which could be discussed.

The Lord Chancellor

One has to remember that this will be only a part of the two distinct systems of law. One does not want to make a legal system unnecessarily complicated. Therefore the rules of the English system should generally prevail in relating this particular Bill to the English system. This is not a general law reform measure. For example, if it were thought right that Scottish minors should have rights which would be replicated in England, that would be a much more general question than relating it to the structure of this particular Bill. Certainly the qualification for suing which I mentioned would look very odd to English eyes. The ages of 12 for girls and 14 for boys, if suddenly put into an English provision, would, I imagine, raise some quite remarkable comment. However that is and has been the Scottish law for a long time.

Consideration has been given by the Scottish Law Commission to the general law in this area. Therefore, if one were to make a change of the kind indicated by the noble Lord, I should have thought that it would be in a more general context than the context of this Bill. However, I am perfectly willing to consider whether anything should be done about this. I think it rather unlikely that I should feel that the scope for it was sufficient to make it wise to have a fairly elaborate and rather exceptional looking structure. We have plenty of complaints about the size of the statute book. With some of those complaints I have some sympathy. Unless the matter were to have some substantial practical benefit, I doubt whether it would be worth while.

Lord Mishcon

If the noble and learned Lord and other Members will forgive me, perhaps I may add just one comment. He himself raised the question of the right of a child to make representations and to be consulted, a matter which was completely unknown to English law before he so sensibly put that reform into the Children Bill. We have deviated from our law in order to give children rights. It may be that in 1991 children mature at an earlier age than when I was a child—certainly I was referred to as immature for quite a long time and I am sure correctly so. On that note perhaps we should all like to take advantage of the noble and learned Lord's offer but it is for my noble friend Lady David to decide what to do with her amendment.

Baroness David

I thank the noble and learned Lord for his very full answer to my amendment. I also thank my noble friend for his support. I am perfectly prepared to believe that my amendment is flawed and that it could be made very much better.

I still have anxieties about children being in a different position in the two countries, which, after all, are very close. The United Kingdom is a small place. I am surprised that the noble and learned Lord said that children seldom exercise this right before they get to the further education stage and that therefore he thought it worth while to keep the provision. However, he said that he would look at the matter and think about it and, in the light of that offer, I thank him and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6, as amended, agreed to.

Clause 7 [Role of the courts with respect to maintenance for children.]

Lord Simon of Glaisdale moved Amendment No. 53B:

Page 5, line 37, leave out ("and absent parent").

The noble and learned Lord said: This is a slightly disingenuous attempt to take advantage of a possible ambiguity in order to ask a question which has been asked before but which I believe it would be useful to have answered now before we come to the anfractuosities of Schedule 1. The question is: how does wife maintenance, mother maintenance what the White Paper calls spousal maintenance—fit in with child maintenance as dealt with in this Bill?

First of all, my excuse is that the sentence reads: maintenance…in relation to the child and absent parent concerned".

I certainly interpret those words as meaning an order for the maintenance of a child by his absent father. I do not know why the draftsman did not use that terminology. Perhaps it could be considered. It seems to me more direct and simple. It obviates the possible ambiguity on which I seized; namely, the maintenance order in relation to the absent parent. Certainly I would not interpret the words in that way but it is a possible reading and to some extent it is borne out by ambiguities in the definition of "maintenance order" in the later definition clause, which refers back to a further provision in this clause.

The maintenance orders set out are not entirely related to child maintenance. However, taking advantage of that possible—I do not think probable —ambiguity, I ask my noble and learned friend to elucidate the relationship between spousal maintenance and child maintenance. He was good enough last week to refer me as a typical example to Example 3 on page 12 of Volume One of the White Paper. My recollection is that that case related to a mother with two young children who were both under six—one was over five and the other was two or three. She was not working. The computation of the maintenance for the children was £46 for both of them, leaving the father with twice as much. However, nothing at all was allowed for the wife's maintenance—the spousal maintenance. One can easily envisage circumstances where it would be most unjust to leave the mother in that situation with almost no maintenance for herself. It is true there is an element for the caring mother who has young children and cannot work, but on the whole her means would not only be necessarily exiguous but also exiguous compared with those of the father.

Let us suppose we are considering the case of a battered wife who is separated from her husband. That is not a typical case but it should not be disregarded. The noble Lord, Lord Stoddart, referred to this matter in another connection last week. However, a more usual case would be where the parties had separated in their early 20s. Such a case is typical of the problems we have to examine. A mother in such a case may have lost her first attraction for her husband and passion has cooled. She is perhaps run-down in health as a result of child bearing and her husband finds someone more attractive to live with. In those circumstances—without going as far as the case of a battered wife—I should have thought there should be an element of spousal maintenance. However, if that is the case, all the calculations in Example 3, Example 5 and the subsequent examples, are thrown out completely. I hope that my noble and learned friend can help the Committee in that respect. I beg to move.

5 p.m.

The Lord Chancellor

We have used the phrase "absent parent" generally throughout the Bill. To use the phrase "absent father" or "the child's father" in these circumstances might not be consistent with the rest of the Bill. It certainly might give cause to those who have the concerns that the noble Lord, Lord Stoddart of Swindon—

Lord Simon of Glaisdale

If I used the phrase "absent father" it was a slip of the tongue. I meant to say "absent parent"; in other words, the Bill could refer to a maintenance order as an order for the maintenance of the child by the absent parent. I apologise to my noble and learned friend and to the Committee if I referred to an "absent father".

The Lord Chancellor

I may have made a mistake here. Certainly we need to make sure that the jurisdiction of the court is maintained as regards other maintenance of the child. In other words, if this amendment were accepted, it would have an undesirable effect.

As regards spousal maintenance, it is clear under Clause 7(9) that a maintenance order is an: order which requires the making or securing of periodical payments to or for the benefit of the child". Spousal maintenance is not covered by the Bill. There is nothing in the Bill which prejudices the right of the spouse to maintenance. As regards the example that my noble and learned friend mentioned, the spousal maintenance would be taken out of what was left to the father once the child's maintenance had been settled. As my noble and learned friend said, the element for the child includes an element for the caring parent because of the cost that is involved in providing care for the child. To that extent that amount which is part of the child's maintenance is intended to take account of the circumstance that the caring parent is providing care for the child. The caring parent would be entitled to spousal maintenance for herself in many cases. The Bill does not attempt to deal with that. That would be an obligation in respect of the money which is left free to the absent parent after his obligations in respect of the children are ascertained.

Lord Simon of Glaisdale

I wish to clear up the minor point of the definition of a maintenance order in Clause 7(9). The subsection concerns any child. I do not adopt the possible interpretation that I suggested with regard to the previous subsection, but the argument is left open as it is arguable that a maintenance order does not necessarily concern a child. Many of the maintenance orders made under paragraphs (a) to (f) of the subsection are spousal maintenance orders. However, I am afraid we still do not know how spousal maintenance will affect child maintenance, particularly as regards the two examples that I mentioned of a brutal husband and a philandering husband. Presumably an order for spousal maintenance would be made in such cases. However, as I have said, if that is the case, I cannot see how any of the computations in any of the examples —and, in so far as I understood them, the formulae in Schedule 1—canpossibly work out as planned. I hope my noble and learned friend will find it possible to answer that query, at any rate when we discuss Schedule 1. As the point is rather a bogus one of interpretation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54 and 55 not moved.]

Clause 7 agreed to.

Clause 8 [Agreements about maintenance]:

The Lord Chancellor moved Amendment No. 56:

Page 7, line 6, leave out ("a maintenance") and insert ("any").

The noble and learned Lord said: This is a drafting amendment to enable paragraph (a) of subsection (5) to work. I beg to move.

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Maintenance Assessments]:

[Amendments Nos. 57 and 58 not moved.]

Lord Stoddart of Swindon moved Amendment No. 59:

Page 7, line 20, at end insert:

("(2A) The Secretary of State shall by regulations make provision for the calculation of exempt income.

(2B) The regulations shall in particular make provision for—

  1. (a) the cost of maintaining contact with a child;
  2. (b) outstanding debts;
  3. (c) legal costs;
  4. (d) tax and other liabilities of self employed people;
  5. (e) cost of travel to work;
  6. (f) contributions to pension schemes;
  7. (g) obligations arising from personal guarantees; and
  8. (h) life insurance where the children and former partner are beneficiaries.").

The noble Lord said: In moving this amendment it may be for the convenience of the Committee if speak also to Amendment No. 66. Clause 9(2) states: The amount of child support maintenance to be fixed by any maintenance assessment shall be determined in accordance with the provisions of Part I of Schedule 1".

However, Schedule 1 contains no detail as regards what matters should be considered when the maintenance assessment is made. In particular, there is no hint of what exempt income may include. There are references to regulations which are to be made and to prescribed amounts but to nothing else.

The purpose of the amendment is to ensure that the Secretary of State shall by regulations make provision for the calculation of exempt income. The regulations shall address the cost of remaining in contact with the child and other essential issues such as debts and insurances. The cost of access can be high. Staying in contact with the child appears to have been ignored in the White Paper and unfortunately in the Bill. Members of the Committee will understand that satisfactory and well conducted access is generally expensive and may involve large bills for transport and accommodation. Furthermore, because time may be at a premium, expensive convenience foods may be required.

Families Need Fathers, the society representing non-custodial parents, has given me the following information. Parents who have regular weekend contact and some evening contact during the week find that children cost almost as much as if they were there all the time. The cost of housing, clothing, books, toys and holidays are virtually the same because the child needs two of everything. However, the so-called absent parent is at a considerable disadvantage. Even if he has the child for three or four days he does not qualify for child benefit, one parent benefit or family credit. He will almost certainly have problems in obtaining an additional personal income tax allowance. It is therefore essential that proper allowance is made for the cost of access.

Two examples given to me illustrate the cost of access. Mr. A lives in Gloucestershire. In 1984 his wife walked out with their two children and moved to London. His legal debts are £60,000 and they are still rising. He estimates that the cost of staying in contact with his children fortnightly and for half the holidays is £4,400 per annum. Mr. B is an unmarried father living in York. His partner walked out and moved to Manchester. He estimates that the cost of staying in contact with his young daughter fortnightly and for half the holidays is £2,500 per annum. Such cases are repeated many times throughout the country. The costs are high and account should be taken of them in the Bill.

Outstanding debts may have been incurred during marriage or cohabitation. As I have shown, they could be heavy and the sole responsibility of the liable parent. Indeed, such costs may have been responsible for the original break-up of the family. Legal costs may also be heavy associated with the divorce. Self-employed people may have liabilities that are not suffered by people in employment. They should also have consideration.

There are also the costs of travel to work: these can be extremely high. The cost of a season ticket from Reading to London, not a great distance, or from Reading to Swindon is in excess of £2,000 per annum. That is paid from taxed income. Again, high expenses may be incurred.

Additional items are listed in the amendment; for instance, compulsory contributions to pension funds which could be as high as 8 or 9 per cent. Members of another place pay 9 per cent. of their salaries in pension costs; it is a not inconsiderable sum. There are also life insurance contributions. It may well be that one of the parents continues to pay premiums for the protection of his or her children and perhaps the former partner. All such matters must be taken into account. I shall be interested to hear the Government's reply.

Amendment No. 66 carries on from the point that I made in relation to Amendment No. 59. My intention is to ensure that the cost of maintaining contact with the child is included in the formula as a clearly identifiable item. Unfortunately the amendment may be defective because I omitted to table another amendment which would have made sense of it. Nevertheless, the intention remains the same. It is to ensure that contributing or absent parents—call them what you will—have their legitimate expenses taken into account, in particular the expenses involved in keeping in contact with their children. I beg to move.

5.15 p.m.

Lord Prys-Davies

I support the amendment moved by my noble friend Lord Stoddart. The purpose of both amendments is to ensure that the expenditure specified within them will be included in the calculation of exempt income. The Bill is silent on the expenditure which is to be protected as exempt income, except that housing costs are singled out. The guidance will be contained in the regulations made under paragraph 5(2) of Schedule 1 by the Secretary of State.

In paragraph 5.8 the White Paper states that the exempt income will include the parents' own "day to day living expenses". What is meant by that phrase? Unless it is defined in the Bill to include specified matters, we fear that exempt income will be construed narrowly. My noble friend has drawn particular attention to two items. First, the cost of maintaining contact with the child is referred to in Amendments Nos. 59 and 66. That stands in a class of its own, because the expenditure can be said to be for the direct benefit of the child. If contact is not maintained, damage and injury can be caused to the child as well as to the absent parent. As my noble friend indicated, it can be an item of heavy expenditure. It may cover accommodation and travelling expenses. The child may be living in a distant part of the country or staying with the absent parent for two or three days a week. I believe that that justifies reference being made in the regulations.

The second item referred to by my noble friend that I wish to reinforce is the need to include an insurance premium. If the absent parent has a life insurance policy which is held in trust for the children, or for the former partner and the children, and if that parent is under a duty to pay the premium by virtue of the settlement package or of an undertaking given to the court, that should he included in the regulations.

Unless one stipulates in the regulations the items that are to be covered we fear that exempt income will be construed narrowly. Therefore, if the adjudicating officer is to have regard to the real situation, he must have regard to the existing needs and obligations of the absent parent. If they are ignored, the adjudicating officer will not be having regard to the real situation and a great deal of hardship may ensue.

Earl Russell

I should like very briefly to speak to Amendments Nos. 63 to 69 which are grouped with this amendment and some of which are in my name.

What concerns us about these amendments is that in taking account of income we should be dealing with disposable income. In many cases that is not the same as paper income. We are concerned with the actual amount of money available after necessary deductions. Amendment No. 63 deals with the question of access. We agree with the Government that in this Bill access should not be linked generally with maintenance. On the other hand, there will be cases where access takes place. We do not wish the absent parent to be put in a position where, by paying maintenance, he is deprived of the necessary money to pay the fares which will enable him to have access to his child. That would rather contradict the objectives of the Bill.

Another amendment deals with the costs of travelling to work. That is extremely expensive for many people and there is a risk that an anomaly will be created. Let us take the case of two people, one of whom has gone to the expense of buying a London house which will be allowable under the formula; the other has chosen, as some people do nowadays, to commute from Swindon, Grantham, Doncaster, or wherever, which will not be allowable under the formula. Therefore, because of a decision originally designed to save money the latter person will suffer severely under the formula.

Another amendment draws attention to the costs of child care. There will be situations, particularly where there is a second family, in which those costs will create considerable pressure. I agree with the White Paper that it would be a great pity if, by removing one family from benefits, the second family is then put onto them. That would defeat the object of the exercise.

I shall not speak to Amendments Nos. 68 and 69 which deal with community charge benefit. I shall give the Government the benefit of the doubt and hope that those amendments are unnecessary.

Lord Henley

These amendments aim to deal with details of the maintenance calculation, the principles of which are set out in Schedule 1. The noble Lord, Lord Stoddart, has suggested a long list of items for Clause 9 which the Secretary of State is to provide by regulations to be included in exempt income. The other items concern Schedule 1 but the basic issues are the same. I should state that the amendment may have considerable cost implications.

I do not believe that including such a list of possible items of expenditure is putting the interests of the child first. Exempt income has first charge on the parent's income. It is deducted from the total of his or her net income before any consideration is given to maintenance. I can assure the Committee that net income will mean exempt income after deduction of tax and this applies to the self-employed as well as the employed. In fairness to the children, exempt income should only include essential expenditure. Even after the payment of maintenance parents will be left with some two-thirds to three-quarters of their net income in order to meet other expenses.

We accept that in some cases these expenses may be genuine and, as the noble Lord said, heavy; but the issue is whether it would be right to give them precedence over the child's right to basic maintenance. The protected income provisions, as opposed to the exempt income which will apply to all absent parents whatever their means, safeguard the position of an absent parent. That means that an absent parent who is not receiving income support will retain enough of his income to ensure that his income remains above income support levels even after he has made his maintenance payments.

The list proposed by the noble Lord, Lord Stoddart, raises a number of detailed issues; for example, what is to be covered by legal costs and outstanding debts and to what extent. Should all the debts be covered, or merely those applicable to legal costs relating to the break up of the marriage, obligations from personal guarantees, and so on? The noble Lord spoke also about the costs of access. To ensure that we are not talking at cross purposes I should say that the noble Lord referred also to shared access; namely, where the child lives for some of the time with one parent and some of the time with the other. That would be a special case to be dealt with by Clause 34(2)(f).

We believe that the provisions to be made on exempt income should be restricted to what is essential in order to ensure proper recognition of the needs of the child. Maintenance will form only one-third or less of net income and there is the safeguard of the protected level of income. We shall reflect on the points raised by the noble Lord about exempt and protected income when we decide on the precise definitions. It is important to achieve the right balance in the interests of parents and children. Therefore, I hope that at present the noble Lord will feel able to withdraw the amendment.

Lord Stoddart of Swindon

I listened carefully to the noble Lord and I am encouraged to some degree because he said that he listened to what I and other Members of the Committee said. This is an important matter, particularly in respect of access. As I pointed out when I moved the amendment, access costs can be very high. Where people are on relatively low incomes it may well mean that the costs of maintenance are such as to leave the contributing or liable parent with insufficient money to meet his other commitments plus access costs. That is the major matter about which I am anxious, though the other items are important.

It must be understood that often a parent who is liable for maintenance may well have been left with many debts by his ex-spouse. I have heard of many cases where a father, or perhaps a mother, has been nearly bankrupted by the debts which have been left. Again, it may well be that the strain on a parent of having to meet his commitments plus access costs will be so great that it will prevent access taking place, or he may be put in default and end up in court.

Therefore, when the Government frame the regulations, I hope that they will deal with this matter in an understanding manner and with due consideration for the human costs that may be involved. Proper provision should be made for the contributing parent. Unless it is ensured that he does not run himself into debt the whole business will be self-defeating. Having said that, and in the light of what the noble Lord said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Schedule 1 [Maintenance Assessments]:

[Amendment No. 60 had been withdrawn from the Marshalled List.]

5.30 p.m.

Lord Meston moved Amendment No. 61:

Page 30, line 27, at end insert:

("( ) such further amount or amounts (if any) with respect to a disabled child as may be prescribed").

The noble Lord said: In the absence of the noble Lord, Lord Carter, I wish to move Amendment No. 61 and speak also to Amendments Nos. 74, 118 and 127.

These amendments are designed to write into the Bill some flexibility to take account of the special needs of disabled children. I suggest that provision should be made for the extra costs of disabilities which can be both various and considerable. The existence of such extra costs and expense is recognised in the foster care allowance. There is statistical evidence to support the existence of that additional expense, which may derive from extra heating, the requirement of special equipment, extra child-minding and a number of other items about which one cannot be comprehensive.

I hope that that brief explanation justifies the amendments. Amendment No. 118 seeks to add to Clause 34, to which the Minister referred, provision for special cases. It is disappointing that in the list of special cases in Clause 34 there is no reference to disabled children. I hope that Amendment No. 118 will be agreed to, to rectify the situation. It must be borne in mind also that the poorer the family the greater the financial impact will he of the disability of a child or children. I beg to move.

Earl Russell

In the absence of the noble Lord, Lord Carter, I shall speak briefly in support of my noble friend's amendment. There are a number of these amendments to the formula. I believe that here the Government are impaled on their own hook due to their attempt—as explained to us on the first day of Committee by the noble and learned Lord the Lord Chancellor —to eliminate altogether the element of discretion. Were discretion to be allowed such cases could be considered as they arose. If discretion is to be eliminated it becomes necessary for this Chamber to foresee every possible case which we may wish to be taken into account where extra costs might arise. If we are doing that then the costs of a disabled child, which in any case are considerable, are matters which the Committee would wish to take into account.

Lord Henley

These amendments seek to provide for the basic amount of provision of the maintenance required to be increased where a child for whom maintenance is sought is disabled.

The noble Lord, Lord Meston, will recall that in the White Paper the Government said that they were not minded to include the allowances available where a child is disabled in the maintenance requirement, but invited comments. We received comments from a number of organisations. Some felt that provision should be included in basic maintenance; others felt it should not be included, while it was also suggested that this should more properly be a matter for the court's discretion.

We are carefully considering all those views. Our aim is to do what is in the best interests of children while being fair to the parent paying maintenance. We do not wish to exclude disabled children from the improved system of child maintenance but we recognise that there are other complex issues here which may be more appropriate for the courts.

I am grateful for the comments from both the noble Lord, Lord Meston, and my noble kinsman Lord Russell. We shall reflect further on them and advise on the outcome. I hope that in the light of that the noble Lord will feel able to withdraw the amendment.

Lord Prys-Davies

Will the Minister bear in mind also that these amendments were drafted by the Spastics Society, supported by Barnardo's and MENCAP? I believe that the citizens advice bureaux would have supported them had they seen them in good time.

While endorsing everything that has been said, I wish to make one additional point. To recognise the disabled child as worthy of special consideration would be consistent with existing policy. I remind the Minister that in a sense statutory authority exists for this. The courts were obliged by statute to consider the needs of a disabled child when assessing maintenance. I refer specifically to Section 25 of the Matrimonial Causes Act 1973; that was a duty enshrined in Section 27. I see no reason why the child support agency should not pay the same regard as the courts to the needs of the disabled child.

Lord Henley

As I said, I shall reflect upon the points made by the noble Lord, Lord Prys-Davies, as much as on the points made by other noble Lords earlier. I thank the noble Lord for his information regarding those who are behind the amendment. We shall certainly take note.

Lord Meston

I am grateful that the Minister is in a reflective mood. I hope that he will advise us of his conclusions sooner rather than later. So far as I can tell, this is the first series of amendments which seek to allow a discretion to increase the amount of child support. Subject to correction, all the previous amendments debated during the Committee stage of the Bill sought to introduce a discretion to reduce the amount of child support.

Should the Minister consider, while his mind is so refreshingly open, the possibility that the extra expense of disabled children may be dealt with by the court—I imagine he has in mind the provisions of Clause 7(5)(c)—perhaps he would consider also that one of the arguments against Clause 7 in its entirety is that it may create the necessity for a parent of a child to knock on two doors rather than one. In other words, a mother who has a claim for maintenance for the child may have to go to the agency for the basic child support and to the court for a contribution towards the extra expenditure she incurs in respect of the disabled child.

The point has been made. It would be an unfortunate state of affairs. It would be better for the whole thing to be dealt with through one operation. However, given the indications of the Minister's thoughts, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 62:

Page 31, line 34, leave out ("zero") and insert ("0.24").

The noble Earl said: This rather cryptic amendment says,

"Leave out (`zero') and insert (`0.24')".

The purpose of this otherwise rather obscure form of words is to ensure that where the absent parent's income increases the child shall gain some share of that increase. My noble friend Lord Meston explained that this was the first of a series of amendments designed to increase support available to the child in some circumstances. It seems to us to be entirely equitable that where the absent parent's income increases and he becomes wealthier, the child should at least to some degree participate in that increased prosperity. In the absence of any such provision the situation may arise—I am sure that Members of the Committee are aware of this—where the absent parent flourishes one might almost say, "as the green bay tree", and resentment grows among the children. The amendment may help to avoid that. I beg to move.

Lord Henley

I am interested to see that my noble kinsman does not think that the reduction rate of 15 per cent., which we quoted as an illustrative example in the White Paper, is high enough. He wishes to ensure that the rate is at least 25 per cent. That is my understanding of his amendment. I am aware that some commentators feel that 15 per cent. is not high enough. That is the rate which applies to assessable income in excess of the amount needed to meet the maintenance requirement. We have suggested that 50 per cent. should be the deduction rate that should apply for maintenance requirements. We believe that a lower rate should apply beyond that.

I accept that it is right that maintenance should not stop with the basic provision of the maintenance requirement because there will be expenses that it does not always cover. But we wish to maintain a proper balance between recognising that children should share in parents' prosperity and the practical fact that this share does not necessarily remain constant as income grows. As I imagine my noble kinsman will understand, we propose to set out the lower rate in regulations. We do not think that it will be right to restrict the options available in the way that my noble kinsman suggests, making a minimum of 0.24 per cent. I shall certainly consider the points he made as to what the rate should be for those on higher incomes. We propose to consult on the regulations. At this moment it would be wrong to restrict us to the figure that my noble kinsman has in mind. Therefore I hope that he will feel able to withdraw this amendment.

Earl Russell

I thank my noble kinsman the Minister for the continuing openness of his mind. I am very grateful for the assurance that he is willing to think further about the matter. In the light of that it is only proper that I should read his reply carefully and perhaps take part in any further consultation. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 63 to 69 not moved.]

Lord Simon of Glaisdale moved Amendment No. 69A:

Page 33, line 42, after ("is") insert ("reasonably").

The noble and learned Lord said: In moving this amendment I shall also speak to Amendments Nos. 71A and 71B. They all raise the same point. Amendment No. 69A refers to paragraph 9 of the schedule on page 33 of the Bill which begins: The Secretary of State may by regulations provide that, in such circumstances and to such extent as may be prescribed"—

that is two lots of regulatory-making powers— (b) where the child support officer concerned is satisfied that a person has intentionally deprived himself of a source of income".

The amendment seeks to include the word "reasonably" before "satisfied" so that subparagraph (b) now reads: where the child support officer concerned is reasonably satisfied".

That is the kind of point which arose very frequently during the first great surge of bureaucracy after the 1939–45 war, though nothing then perpetrated was as bureaucratic as this Bill. Time and again in various ways the Executive tried to exclude the cognisance of the court over its proceedings. It also tried to minimise parliamentary control. Both of those elements are very marked in this Bill.

One of the ways was to leave the matter to the satisfaction of an executive officer without requiring that he should be reasonably satisfied. If he is reasonably satisfied, or purports to be, the court can examine the basis; but if the matter is left so that he is satisfied, then very often the court will have no right to question whether there are proper grounds for the satisfaction. The matter arose in a most dramatic form during the war on the rights of a constable to arrest. The long doctrine of the common law was that a constable's power of arrest had to be on reasonable grounds. But in one of the defence regulations the word "reasonably" was left out. It was sufficient if the constable, or the Secretary of State in another case, were satisfied. It was argued that it was sufficient if he were suggestibly satisfied without it being examinable to see that there were reasonable grounds.

The two famous cases I have just mentioned for the record were Liversedge v. Anderson and the Point of Ayr colliery case. There were other cases as well. The law is not entirely clear on this matter, but we should not leave any element of doubt. In this case there can be a decision which is a considerable invasion of the rights and privileges of the person who may be liable for child support maintenance. In the first case, for example, it is a question of whether a person has intentionally deprived himself of a source of income.

That is quite right as a criterion, but it should not be left to the unquestioned discretion or ukase even of an official. The matter should be examinable in a court of law. I beg to move.

5.45 p.m.

Earl Russell

I am grateful to the noble and learned Lord for introducing these amendments. We on the Liberal Democrat Benches support them. The points that he makes about executive discretion are vitally important. The point that he makes about the use of the word "reasonably" is equally vitally important. All through our debates today it has struck me that the statements made on behalf of the Government on such matters as to whether a woman has been a victim of domestic violence or whether she knows the father of the child, have been "if we are satisfied" and "if we are persuaded".

There is not enough check on that. Power ought to be subject to checks and external controls. The word "reasonably", through the judicial precedents which the noble and learned Lord gave us, subjects it to that check. I very much hope that the Government will agree. If this matter goes further we on these Benches will support the noble and learned Lord.

Lord Mishcon

As we will.

Lord Henley

I am grateful to the noble Lord for the brevity of his speech. I am also grateful to the noble and learned Lord, Lord Simon, for his very helpful explanation. I do not think that we are very far apart on this matter. There are issues on which it is right that the child support officer should proceed with proper care and attention to ensure that decisions are made that are fair to both parents and children. In performing any of these duties under the Act the child support officer will have to act reasonably. He will accordingly have to act reasonably when deciding whether and how to proceed in these as in all circumstances. In doing that he will give proper weight to the evidence before him so that he can be reasonably satisfied as to the basis on which he is acting. Inevitably there must be an element of judging.

The noble and learned Lord suggests that this should be made explicit by providing that the child support officer is to be reasonably satisfied. We do not believe that this is necessary as there is a basic presumption of acting in a reasonable manner. However, as always, I want to weigh very carefully the words of the noble and learned Lord and give very full consideration to these amendments. I shall do so particularly in the light of what he had to say in quoting Liversedge v. Anderson, and another case of which I did not catch the name, and in the light of what he had to say about the courts, looking behind the child support officer's satisfaction and the reasonableness of that satisfaction. I hope that in the light of those comments the noble and learned Lord will feel able to withdraw his amendments.

Lord Mishcon

Perhaps I may intervene, as I made such a short speech earlier. I wonder whether I may plead with the Minister, who is very fair minded. When a substantial case is made in regard to an amendment which has been tabled, and of which the Government have notice, would it not be gracious to concede when the case made is obviously the right case? The Minister talked in terms of having to act reasonably. If there should be the right of a check on that reasonableness by a court of law, if ever that is brought into question, why do the Government need further time within which to concede what is such a "reasonable" point?

Lord Henley

I accept the reasonableness of the noble Lord's point. I should like to make it quite clear that I believe I am behaving in a thoroughly reasonable way in saying that we should like to take away these amendments and consider them. I remind the noble Lord that, if he looks carefully at today's Marshalled List he will notice that amendments marked with an asterisk are new or have been altered. He will also notice that the noble and learned Lord's amendments are new and have appeared at relatively short notice. For that reason I think it is reasonable of me to say that on this occasion we should like further time to consider these matters.

Lord Simon of Glaisdale

I must concede that the amendments were tabled late and that therefore it would be most ungracious of me to do other than express gratitude to the noble Lord for his offer to consider this matter. I shall only add that the argument in any opposition to this amendment is, in effect, that the words are unnecessary because the child support officer will in any case act reasonably. That is an age-old argument. It applies to the constable and it applies to the Secretary of State. Not every civil servant behaves reasonably, simply because he is a human being. He no more invariably behaves reasonably than those of us present in the Chamber. The second argument is that this is inevitably a matter of judgment. So it is. But who should judge—the civil servant or a court of law? In expressing gratitude to the noble Lord for offering to consider this matter I hope that the consideration will be favourable. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 70:

Page 34, line 2, at end insert:

("Passported Benefits

9A. Where receipt of maintenance under this Act or the reduction in hours for family credit entitlement entail a loss of entitlement to free school meals or social fund payments, the person concerned shall be eligible for such benefits on the basis of low income or family credit entitlement.").

The noble Earl said: Amendment No. 70 deals with a problem which must be familiar to most of us. It is the problem of passported benefits resulting from being on income support. There is, therefore, frequently a possibility that by coming off income support and thereby losing passported benefits the person concerned may be worse off than before.

There are two specific passported benefits for which the amendment seeks to protect the entitlement of a single parent and the child. One is the entitlement to free school meals. Some noble Lords now present were in the Chamber on the 27th February when we debated an Unstarred Question tabled by the noble Baroness, Lady Ewart-Biggs, on a report prepared for UNICEF by Professor Jonathan Bradshaw of the University of York. He is the same Professor Bradshaw on whose research the Government have relied so heavily in the preparation of this White Paper, so they obviously take his work seriously. Professor Bradshaw argued that there is now a great deal of malnutrition among children in the United Kingdom. Free school meals are obviously one of the practical ways by which such deprivation can be combated. Losing an entitlement to free school meals may therefore, correspondingly, be a way by which the amount of malnutrition increases. We really ought to take this matter seriously. It has been pointed out that children are now becoming a scarce resource in this country. They need to be looked after. Depriving them of free school meals is not going to help.

The other specific point with which the amendment deals is entitlement to the use of the social fund. That is very carefully tied to entitlement to income support. If the receipt of maintenance lifts the mother above income support levels, she will, unless this amendment is accepted, be deprived of her entitlement to the social fund and, therefore, in particular, to such benefits as crisis loans. The level of income, even with the receipt of maintenance, may be such that, for example, the breaking down of a cooker or the collapse of a refrigerator may cause a very real financial crisis. Anyone who has ever tried to look after babies' bottles with the refrigerator out of order will know very well what that can mean. The provision as it stands could cause real distress, real hardship and a great deal of confusion. For those reasons, within the principles of the Bill as they stand at present, it would be possible for the Government to accept this amendment. I very much hope they will do so. I beg to move.

Lord Prys-Davies

I wish to make clear that we fully support the amendment. As I understand it, if maintenance is set at the income support level then the mother, or the parent, would automatically lose passported benefits. As the noble Earl, Lord Russell, pointed out, they include free school meals, which are important, free prescriptions, free dental and optical care and the social fund payments. It seems very unjust indeed that a parent should lose out on these benefits merely because child support is assessed at or just above income support level. We give this amendment our fullest support.

Lord Henley

I am afraid that I can no longer be as amenable as I have been on some of the earlier amendments. The amendment seeks to change the rules of the schemes under which social fund payments are made and local authorities provide free school meals. Neither of these is the subject of the Bill. The Bill sets out a new system of child maintenance. The amendment therefore has much wider implications.

Contrary to the implication of the amendment not all payments in the social fund are restricted to people who receive family credit or income support. Funeral payments are available to people in receipt of housing benefit or community charge benefit; and in an emergency crisis loans, which my noble kinsman specifically mentioned, can be paid to anyone who is without resources. That is what they are for.

Budgeting loans, community care grants and cold weather payments—the other components of the social fund—are intended to focus help on those people in the greatest need. That means that a dividing line has to be drawn between those who can get help and those who cannot. We believe that the most appropriate place to draw that line is at the income support level. That applies as a general principle. We believe that it would be wrong to make an exception in this case.

I turn now to the provision of free school meals. They are provided under Section 22 of the Education Act 1980, as amended by Section 77 of the Social Security Act 1986. By virtue of that section, local education authorities have a duty placed upon them to provide free school meals only to those children whose families are in receipt of income support or to pupils who receive it themselves. The amendment would create new arrangements and responsibilities for education authorities; but, again, only for this sort of case. We believe that it would not be right to make an exception in this instance for the reasons which I gave with regard to the social fund.

We do not believe that these are issues for the Bill. We do not believe that it is right to seek to amend the rules of the schemes just to cover these particular circumstances. In that event, I ask my noble kinsman to withdraw his amendment.

6 p.m.

Earl Russell

I am sorry that the period of openness in the mind of my noble kinsman is now over. It would seem that the window of opportunity has disappeared. I listened with care and interest to what he said. I take his point about crisis loans. I also take his point about the issues going somewhat wider than the scope of the Bill. Nevertheless, I believe that they are extremely relevant.

In effect, this is a Bill designed to use maintenance to float mothers off benefit. That is what it is really all about. We on this side of the Committee have expressed sympathy many times with the strategy of floating people off benefit. However, the loss of passported benefits always has the effect of creating a big problem as regards floating people off benefit. In fact, the loss of such benefits creates a situation where people may often be taken off benefit and ultimately end up worse off than they were previously.

If the effect of the Bill is to leave the mother and child worse off than they were before because they are not receiving passported benefits, I believe that the legislation is not achieving the desired effect. That is an issue which could be considered perfectly properly within the scope of the Bill. Nevertheless, between now and the Report stage I think that I need to consider most carefully whether we should most appropriately return to the matter while considering this Bill, or whether we should return to it the next time that we have a social security Bill before us. I imagine that we shall have another social security Bill at some time within the near future. If that proves to be the case, we would then shall be able to address the problem of passported benefits in a more general context. However, in one form or another, we will need to return to the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 to 71B not moved.]

Schedule 1 agreed to.

Clause 10 [Interim maintenance assessments]:

Lord Simon of Glaisdale moved Amendment No. 71C:

Page 7, leave out lines 29 and 30.

The noble and learned Lord said: The amendment proposes to leave out lines 29 and 30 from page 7. That omission would leave subsection (2) reading: The Secretary of State may by regulations make provision as to,

(a) the procedure to be followed in making an interim maintenance assessment; and

(b) the basis on which the amount of child support maintenance fixed by an interim assessment is to be calculated".

In my submission that wording is all that is required. The subsection says:

"The Secretary of State may"—

I emphasise the fact that that is permissive— by regulations make provision as to interim maintenance assessments".

Subsection (3) states that, The regulations may, in particular, make provision as to—".

The words in line 30 are expressly a particularity of those in the two previous lines. I venture to ask my noble and learned friend, or the Minister, what regulations are proposed to be made which cannot be made under the clause which we seek to amend. I beg to move.

Lord Henley

The amendment moved by the noble and learned Lord seeks to remove lines 29 and 30 from subsections (2) and (3) of Clause 10. He has asked us to define the purpose of this regulation-making power. I am happy to tell the noble and learned Lord what our motives are for inserting this power. I can tell him what matters will be covered by the regulations.

Subsection (3) of the clause describes in general terms the matters with which the regulations will deal. As the subsection says, the regulations "may" include, the procedure to be followed in making an interim maintenance assessment", and also the basis of the calculation for an interim assessment. I shall expand upon that explanation in order to make the position clear. However, in order to do so, I believe that it would be helpful to set out at this point the need for interim maintenance assessments. The main purpose of interim maintenance is to establish liability as early as possible and speed up the process of making an assessment based on complete information in order to secure an early and accurate payment of maintenance.

I shall now set out briefly the general circumstances in which interim maintenance assessments will be used. The parent with care makes a claim for maintenance. The absent parent is then contacted and told of his liability. If the absent parent then proves evasive and does not co-operate in providing information about his circumstances, a maintenance assessment cannot be made. It may be possible to obtain sufficient information to calculate an assessment without the co-operation of the absent parent by using the powers to obtain information. However, that could be a very lengthy and time-consuming process and some relevant information may never be obtained. In the meantime, the parent with care receives no maintenance.

Interim maintenance assessments will encourage provision of the required information since they will in general be for a greater amount than an assessment made on the basis of complete information and they will also be enforceable. Therefore, they will be an incentive for the absent parent to provide the information.

It will be necessary for the regulations under the clause to set out in some detail the procedure to be followed when making interim maintenance assessments. The agency will issue at least one letter to the absent parent where an application is made before an interim maintenance assessment is raised. The regulations will include what the form and content of the letters issued to the absent parent should be, and when the letters should be issued.

The regulations may also specify what action should be taken when there is no response to an interim maintenance assessment and when that action should be taken. We intend that the regulations will also include the method of calculation of an interim assessment. In general, we expect that that will be the maintenance requirement as set out in Schedule 1. As I said earlier, that will usually be more than an assessment made on the basis of complete information since it will take no account of the absent parent's circumstances.

There may be circumstances where it would be right for the interim maintenance assessment to be more or less than the maintenance requirement. We envisage circumstances where there may be some evidence about the absent parent's financial situation where we may wish to vary the amount of the initial assessment so that it is more or less than the maintenance requirement. Such evidence may show that the absent parent is especially rich and that an assessment made using complete information, including the additional element under Schedule 1 Part I paragraph 4 will produce more than the maintenance requirement.

In such circumstances an interim maintenance assessment, based on the maintenance requirement, would provide no incentive for the absent parent to provide the necessary information and he may prefer to pay the interim maintenance assessment. In that case, the parent with care will receive less than the amount that will be produced based on complete information. There may also be cases where an interim maintenance assessment would seem harsh; for example, if there were some doubt about the eligibility of one of the children for whom the parent with care was making a claim for maintenance.

From what I have said, I hope that the noble and learned Lord will appreciate that there are genuine reasons why a regulation-making power is required in the clause. There is a considerable amount of detail in the procedure to be followed when making an interim assessment. We shall need flexibility to deal with the range of different circumstances. Such matters are not appropriate for primary legislation. I hope therefore that the noble and learned Lord will feel able to withdraw the amendment.

Lord Simon of Glaisdale

The Minister gave a helpful and illuminating description of why interim maintenance assessments are required and how they will operate; but unfortunately he did not deal with the point of the amendment. In particular, he did not say what was required by the words, sought to be left out". What he did say was that a detailed procedure would be required. Very well, so it is. It comes under head (a) which provides the procedure to be followed. That will cover everything the Minister wants. He also referred to the calculations required by Schedule 1. They are covered in head (b) which provides: the basis on which the amount of child support maintenance fixed by an interim assessment is to be calculated". As the Minister did not say what regulations he might make if he is confined to heads (a) and (b)—that is the effect of the amendment—one is left, as so often in the Bill, with the suspicion that the department wants to keep something up its sleeve just in case something may have been forgotten and may turn up. It is an abstract regulating power which may prove useful in case something has been forgotten. The Minister challenged me to say that regulations rather than primary legislation were suitable in this case. I never controverted that point. If he would be good enough to read the amendment again he will see that it expressly left the regulation-making power, merely eliminating the amorphous background that might turn out to be useful, and confining him to everything that he enumerated might be required in the regulations.

However, the Minister has the point. I hope that he will consider it. There is no point in calling a Division at this time. I again emphasise that the point of the amendment was not dealt with. I ask the Minister and my noble and learned friend to reconsider the matter with their advisers. I shall, if necessary, return to the subject on Report. In the meantime, I beg leave to withdraw the amendment.

6.15 p.m.

Lord Mishcon

Only so that the debate is complete, and out of sheer fairness—I am aware of the noble and learned Lord's reputation for complete and absolute fairness—I must say that I followed the Minister's speech carefully to check whether everything he said would be covered by heads (a) and (b). He made one comment that the noble and learned Lord, Lord Simon of Glaisdale, may not have noted. Until that point I was in favour of the amendment. The Minister talked in terms of having to have regulations to enforce payment of the interim maintenance. The noble and learned Lord may agree that if we read heads (a) and (b) we see that there is no provision for enforcement. I point that matter out only so that the debate is complete, and that when the Minister considers the matter he will consider it in the light of all the discussions.

Lord Simon of Glaisdale

I am obliged to the noble Lord, Lord Mishcon. If I said that the clause made provision for enforcement I was in error; but on the other hand, the Minister did not say that he wanted any power of enforcement. The point of the amendment remains entirely unanswered. There is no proposal for enforcement and so everything is covered in heads (a) and (b), especially procedure and calculation which were the matters to which the Minister referred. I asked the Committee's leave to withdraw the amendment. I do not believe that the noble Lord, Lord Mishcon, opposed that, but he rightly corrected me if I said something inaccurately.

Lord Mishcon

Just one further quick remark: it was not that the noble and learned Lord said anything about enforcement; it was that the Minister said something about enforcement which was not covered by heads (a) and (b). The noble and learned Lord made no error at all. It would be singularly unlike him if he did.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Clause 10 agreed to.

Clause 11 [Child support officers]:

Lord McGregor of Durris moved Amendment No. 73:

Page 8, line 18, at end insert:

("( ) keep such accounts and statistics as the Secretary of State may direct, prepare in respect of each financial year a statement of accounts and statistics in such form as may be so directed, and include such accounts and statistics in the report produced under paragraph (c) above,

( ) conduct or commission such relevant research as the Secretary of State may direct.").

The noble Lord said: This place discussed government statistics last week. During that discussion I spoke about statistics available to cover the results of judicial decisions in family matters. I do not propose to inflict upon the Committee a repetition of what I then said. I am certain that there will be no dispute that good statistics are essential for the proper administration of justice and for the proper scrutiny of the working of judicial institutions by citizens and Parliament. It is notorious that these statistics barely exist in a worthwhile form in our country, and have not done so since 1921. By and large there have been two sources for the scrutiny of the work of the courts in family justice, the first being statistics of proceedings passing through the courts. In the past the statistics relating to the actions of the summary courts have been almost worthless, misleading and inaccurate. I doubt very much whether they have been greatly improved by the attempts of the Home Office to produce a new series since 1985.

The statistics of the work of the superior courts are much better—not, I am sorry to say, as a result of the interest in these matters by the Lord Chancellor's Department but because they have demographic implications which have since 1947 attracted the attention of the Registrar General and are now covered by OPCS. Even so, the information that we have is very limited indeed. Everyone who has been concerned with policy-making on this, from the Law Commission downwards, has stated the inadequacies and pointed to the impossibility of dealing with such subjects as maintenance without better information.

The whole problem with which this agency is concerned—namely, the relations between the public law of social security and the private law of family maintenance—is an area of almost complete ignorance. The only information we have about it has been that provided by surveys carried out either by university departments or by OPCS. I have no desire to detail the work, beyond pointing out that the White Paper from which the Bill stems relied to a large extent upon a university survey, the results of which have not been published. They have therefore not been tested in any way by the scrutiny of outsiders competent in the field.

The case for a serious attempt to improve, or rather to lay the foundations for adequate, knowledge in this subject is overwhelming. I cannot believe that the Minister will wish to suggest otherwise. The amendment seeks in a small way to lay those foundations. I assume that when he replies he will be enthusiastic and welcoming and I therefore propose to leave the matter there. If he is cold and not welcoming, we shall have to return to the subject later. I beg to move.

Baroness Faithfull

I support the amendment of the noble Lord, Lord McGregor. A great deal of money will be spent on what one might call this experiment. It is essential that we know that it is being spent and that there will be a good return. Based on my personal experience of dealing with such cases, I believe that the return will be small; I do not know that it will be cost-effective. Therefore, it is essential, as the noble Lord said, that good statistics are kept.

One other point is that in the White Paper and the Bill we are asked to pass these provisions with little knowledge of the past. Perhaps I may cite some examples. We have had the liable relative officers in the Department of Social Security dealing with maintenance. In my experience, we shall never persuade some men to pay, whatever we do. If a man is schizophrenic, a mental case, in prison or has disappeared he will never pay. So far as I can ascertain, no list has ever been kept of cases where the liable relative officer has pursued the man and been able to find out whether he can pay. I could cite a number of other such instances where during the passage of this Bill we shall be taking decisions when we do not know the facts. Therefore, if we pass the Bill I hope that in future we shall keep a record of the facts so that we can follow them up in a positive and constructive way.

Lord Henley

I hope that I shall respond as warmly as is necessary to satisfy the noble Lord and my noble friend. We realise that the amendment recognises the importance of keeping statistics about the work of child support officers. I thank the noble Lord for putting it down because it gives me an opportunity to reassure the Committee that my right honourable friend the Secretary of State for Social Security will require his officials to keep statistical records. Some will be published in the chief child support officer's annual report but others will appear in other departmental publications. I am pleased to be able to assure the Committee that the statistics collected will not just include the work of child support officers but other activities of the child support agency such as tracing absent parents and the collection and enforcement of child maintenance.

I can also assure the Committee that my right honourable friend the Secretary of State for Social Security will require the chief executive of the new child support agency to submit and publish an annual report and accounts. He will also expect the chief executive to commission research. The chief child support officer, who is suggested in the amendment and who may be the same as the chief adjudication officer, will not be responsible for the organisation of the agency, only for the work of his independent child support officers. Therefore we feel that it would be right and proper for the chief executive to produce the report.

Further, the framework document and the business plans for the agency will, as with other agencies that have been set up, clearly set out the work that is expected from the chief executive and his staff. As with all the other executive agencies within the Department of Social Security, those details will be published.

The noble Lord also referred briefly to the survey conducted by, I believe, Jonathan Bradshaw at the University of York and Jane Millar. This was commissioned by the Department of Social Security and the survey will be published some time later this year. I hope that with those assurances the noble Lord will at least feel satisfied and will withdraw his amendment.

6.30 p.m.

Lord McGregor of Durris

I welcome the assurances that the Minister has given. I would hope that the chief executive of the agency, when he is tackling the problem of deciding what statistics he will keep, will also consult other relevant departments—the Home Office and the Lord Chancellor's Department—because it would be quite absurd for the agency to keep its own isolated statistics in a matter which inevitably affects a whole series of family relationships. We shall never get the basis of effective statistics in this area from this one agency.

On the matter that the Minister mentioned about the York/Bath survey my point was a rather different one. It seems to me bad practice on the part of the Government to commission a survey in a field in which only commissioned survey work can provide information essential for policy making, to base to a large extent the White Paper on the findings of that survey and yet to publish the survey long after the Bill will have been discussed in your Lordships' House. This is indefensible and treating Members of your Lordships' House with contempt. How can we discuss this sensibly when we are denied the information that the Government used to frame their legislation?

Lord Henley

I accept the point that the noble Lord has made that that research was the only research that was the basis for the White Paper and government legislation. That was research that the department commissioned, and we have every intention of publishing it later this year.

Lord McGregor of Durris

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 74 not moved.]

Clause 11 agreed to.

Clause 12 [Information required by Secretary of State]:

Lord Prys-Davies moved Amendment No. 75:

Page 8, line 35, leave out subsection (3).

The noble Lord said: I beg to move this amendment on behalf of my noble friend Lord Carter. It relates to Clause 12(3), which gives the Secretary of State power by regulation to authorise the disclosure by him or by the child support officer of information held by him for the purpose of the Act. It seems to us that Parliament ought to be very reluctant to give this authority to the Secretary of State. It may well be that the information has been disclosed to him or to the child support officer on the understanding that it is to be used only for the purpose of this Bill.

Solicitors may well recall the practice note issued by the Family Division authorising us to obtain information from the DHSS, or the Department of Health, or the Ministry of Defence, or the Passport Office, but on the clear understanding that we use it only for the purpose of matrimonial proceedings and that we will not disclose it to the other party. The power as it stands is extremely wide and we are reluctant to give Parliament that power.

Earl Russell

On behalf of these Benches I should like briefly to offer our support for this amendment. The powers are extremely wide and vaguely prescribed and we should like to see them set our with greater precision.

The Lord Chancellor

Obviously the confidentiality of information, particularly information of a personal nature, is of great importance. Regulations concerning the disclosure of information will include safeguards to ensure inappropriate disclosure is not authorised. For example, information that would help to identify an individual's whereabouts such as their address or the name of their employer will not be disclosed without the written authority of the individual concerned. There are, however, certain circumstances in which disclosure of information that does not assist in identifying the individual's whereabouts is necessary if the provisions of this Bill are to have the desired effect.

An individual can only judiciously exercise right of appeal, for example, when he or she if fully aware of the facts on which an assessment has been made. It is intended that all information necessary for an individual to understand the assessment will be disclosed. Such disclosure will be the minimum possible information—names, addresses and employers will not be disclosed; merely, for example, the number of children, the amount of housing costs or the net earnings. Other occasions when it is intended to disclose information include disclosure for the purpose of assessing benefits under the benefits Acts and disclosure to the courts in related matters.

Many persons with care are in receipt of benefits, and it is important that correct account is taken of maintenance received. If the amount of maintenance payable changes or if an absent parent fails to make a payment, it is important that benefit can be adjusted as quickly as possible. Allowing the child support agency to supply this information directly to the relevant benefit authority will reduce any potential delays in the making of such adjustments. We have to set up the child support agency and we must be careful to ensure that this kind of information can be passed. I believe that it is wise to take a general power of this kind, but I indicate the areas in which we expect to use these powers and assure the Committee that proper safeguards of confidentiality will be maintained. Such a provision will also minimise the procedures to be followed by the public in dealing with the Department of Social Security.

The public will be required to make only one notification of change of circumstances which will then be taken into account, as appropriate, for both benefit entitlement and child maintenance. I think that that must be good common sense. This will avoid the need for duplicate notification and associated form filling. Disclosure to the courts will be appropriate in circumstances where the court is considering a matter related in family law. This would allow the same evidence to be available to the agency and to the courts, providing for consistent decision making between the two authorities.

I think that I can assure the noble Lord, and the noble Lord on whose behalf he moved the amendment, as well as the noble Earl, that safeguards will be introduced to ensure that disclosure of information occurs only when strictly appropriate. In view of my assurances and explanations, I hope that the noble Lord will feel able to withdraw the amendment.

Before this system operates of course the regulations will be made. Therefore, a person from whom information is taken will give it in the light of the regulations about the purposes for which it can be used. I would certainly take it that the forms would indicate reasonably plainly to what purposes the information given may be put. I hope in the light of that explanation that the noble Lord will feel able to withdraw the amendment.

Lord Prys-Davies

I am grateful to the noble Earl, Lord Russell, for his support. I have listened with great interest to the noble and learned Lord the Lord Chancellor indicating the precise scope of the clause and also the safeguards that will be built into the regulations. My noble friend Lord Carter will no doubt read with great care what has been said by the Lord Chancellor, and in those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Schedule 2 [Provision of Information to Secretary of State]:

Lord Houghton of Sowerby moved Amendment No. 76:

Page 35, line 27, leave out from beginning to end of line 3 on page 36.

The noble Lord said: I am not certain whether the atmosphere of your Lordships' Committee is right to deal at this time and occasion with a matter of such grave importance as the first part of Schedule 2. Behind the slogan, Children Come First, is the grubbiest Bill, the most unprincipled Bill, in the calendar of legislation in my long experience of Parliament. It is a shocker. Schedule 2 is among the shocking things in it.

I have long held the view that the citizen, if required to disclose any matter respecting himself or herself to a government department as a matter of statutory duty, with penalties if he or she fails or neglects to do so, is entitled to rely on that information being used by the department to which the statute refers and not for any other purpose.

This is a principle which it has been extremely difficult to hold over the years, because information that goes to different government departments is desired by other government departments and agencies for other purposes. One has to beware of this in case, in the end, the citizen is so vulnerable to the purposes of a multitude of bureaucracy that his best protection, his only protection, is not to give the information in the first place.

When Gladstone threatened, or promised, that he would abolish the income tax in the 1880s he did so on the ground that the income tax produces a nation of liars. He was not re-elected to repeal the income tax, and whether or not it has produced a nation of liars I am not prepared at this moment to say. But one thing the Inland Revenue has done throughout its history is to lay down, as a matter of firm principle, that the affairs of those who are required to deal with it shall be kept confidential.

It is over 70 years since I gave my oath of secrecy to the Inland Revenue when I first became an officer of that department, and it is astonishing that a Cabinet of 25 people leaks a great deal more than 70,000 officers of the Inland Revenue. You cannot hold a secret in the Cabinet for more than five minutes, but in the Inland Revenue you can keep a secret for over 70 years, and I have a few.

In the wake of the Poulson scandal of some years ago, I was appointed to a Royal Commission on standards of conduct in public life. The chairman of that commission was the noble and learned Lord, Lord Salmon, and there are several Members of your Lordships' House still about who were on it with me. The biggest rift, the deepest cleavage, on that commission came over the role and the duties of the Inland Revenue in relation to confidentiality, because the question that arose in the commission's investigation into the Poulson affair was: what did the Inland Revenue know and, if it knew, why was not something said and the matter not left to the Director of Public Prosecutions, who seemed to be unaware of what the file kept hidden which he would have liked to know? So the question was: should the Inland Revenue tell?

I took the view that it should not and defended that view in the commission to the point of dividing the commission, with the chairman, the noble and learned Lord, Lord Salmon, making a minority report, the majority being against him on the question of Inland Revenue disclosure.

The issue before the Royal Commission went far deeper than the matter in Schedule 2. Nevertheless it is part of the same principle of keeping confidential what the Inland Revenue knows. If that is breached then the table of every tax inspector must contain the warning: whatever you say at this table may be taken down in evidence and used against you in the event of criminal proceedings. How far would the Inland Revenue get, if it had to utter a police warning to accountants and taxpayers who came into the office?

Who would be safe if all the secrets in the hands of the Inland Revenue were freely available to other government departments? Where do you draw the line in defence of the citizen's right to certain privacy in his affairs? In the end, the majority of that Royal Commission stood firmly on the confidentiality of matters that went into the hands of the Inland Revenue.

It may be purely coincidence that, in the Revenue Review publication of last week, the Inland Revenue set out yet again, for the information of the staff, their duties and responsibilities to keep the affairs of taxpayers confidential. It probably feared that this Bill had some bearing upon the matter and that it was desirable, in the light of this measure, to reinforce the duty of Inland Revenue officers.

The effrontery of this Bill in certain respects absolutely astonishes me. All that is in this Bill is to be enacted in the interests of the children. Children do not come first. Parents can put children first, but the state cannot. The state can only put children a little higher up the scale of humanity and of the rights of human beings if the parents fail, or if they lose their parents. But children cannot come first. In many matters it is the parent who must come first, and then he must pass on to the child his own sense of priorities in family life.

Today, there are far more important matters relating to children in family life than what we are dealing with in this Bill. In this Bill we are dealing with money, nothing but money. There is nothing about education, nothing about care, nothing about love and nothing about anything related to children, except money and where it comes from.

There is a duty placed upon the social security system to provide the citizens with money to enable them to keep their families in a reasonable state of health and wellbeing, and this Bill, in part at any rate, is an intention to get from parents towards the maintenance of children what, at the present time, the social services have to do instead. It is to recoup the social services by some £400 million, we are told—I do not know where that figure comes from—the money paid out in social security which, in whole or in part, should be coming from a parent or from parents jointly. That is what the Bill is about.

It is true that, in passing, the Bill provides the bureaucratic machinery needed for the purposes of the Bill to offer services to those who, while not on social security, are nevertheless in need of some help to establish their right to maintenance for their children. At present they go to the courts. In many cases that is not a very satisfactory procedure. Nevertheless, that service is provided, and the Bill provides for fees to be charged to those who take advantage of it.

That has led to the setting up of a state detective service. If the police go into a tax office saying that they are investigating a fraud or other crime and would like some information about a person who, they believe, is being dealt with for tax purposes in that office, and they ask to see the records they will be refused permission. There are only two crimes in Britain for which the Inland Revenue will open its books to the police—murder and treason. That is emphasised in the instructions given to the staff during the past fortnight.

The Inland Revenue is protected in this particular matter by one saving subsection. Subsection (3) reads: This paragraph extends only to disclosure by or under the authority of the Commissioners of Inland Revenue".

The Commissioners of Inland Revenue are appointed by the Crown and operate under letters patent. We have no Minister for income tax; it is not a department over which there is a ministerial head in the same sense as there is a Minister for industry or education. The Inland Revenue can pull out its letters patent and rely on them for what it will permit and what it will not.

I gained personal experience of that in the company of my noble friend Lord Callaghan when he was Chancellor of the Exchequer and I was Chancellor of the Duchy of Lancaster. We sought the Inland Revenue's co-operation in the use of the tax service machinery for social security objectives relating to income guarantee and the distribution of moneys which could be regarded as part of the social services. The Inland Revenue demurred at being asked to use the income tax system for that purpose. We were reminded that its duty was the care and management of the income tax Acts. No Chancellor of the Exchequer has felt able to override that point of view. In my opinion, if the Inland Revenue had stood firm on this issue no one would have overridden it on this either.

What is proposed? It is proposed that the child support officer—a misnomer if ever there was one—or other officer deputed by the Secretary of State for Social Security shall be able to obtain information for the purpose of tracing a person he wants to know more about. I admit that it is not for information about income, although I am sure that that was raised in this context, because other people have raised it. They think that the Inland Revenue is in possession of valuable information about the resources and income of people at large. The poll tax reformers put that forward. They wished to use the information of the Inland Revenue for the purposes of graduating a poll tax according to ability to pay. That would have raised very grave matters in relation to the taxation system.

In this case information is required to enable the Department of Social Security and its officers to trace a person. That may be regarded as relatively unimportant, but it is important enough for the information to be wanted from the Inland Revenue. If it is important enough for people to want it, it is also important to the Inland Revenue to know what it is wanted for.

The Inland Revenue is provided with a safeguard in subsection (3). I take it that if the Board of Inland Revenue withholds its consent there is no further argument about the right of the Secretary of State to the information. The Inland Revenue has the final say as to whether or not it will disclose information. I presume that, if it says that it will not, there is no more argument about it. If that is not so, the matter is even more grave.

The disclosures that are made at the present time under the Finance Acts, and not by an Act of this kind, relate to the exchange of information between the two revenue departments, HM Customs and Excise and the Inland Revenue. Customs and Excise is interested in VAT and the registration of firms for VAT purposes. The Inland Revenue has information about firms and others in business for tax purposes. Exchange of information is permitted by statute law for taxation purposes in both cases. There is also an arrangement—again approved by statute—between the Department of Social Security and the Inland Revenue. In that context the Inland Revenue collects and assesses contributions for national insurance purposes and is therefore the biggest supplier of the resources of the Department of Social Security. It is not too objectionable that certain information can be exchanged between the Inland Revenue and the Department of Social Security, but not for the present purpose.

It is for this purpose that the law apparently has to be changed, and that is to be done in a Bill which is intended to put children first rather than in the Finance Act where it belongs. The dangers of the thin end of the wedge in this matter are too great for me at least not to take it seriously. Believe me, the Inland Revenue is efficient and diligent and its relations with the public are good because the public know where the Inland Revenue stands in regard to the confidentiality of their affairs. That extends to the refusal of the Inland Revenue to part with information about a fraud which may be known to the Inland Revenue and about which the Director of Public Prosecutions has wanted to know in the past but in connection with which he has been forbidden entry into the records of the Inland Revenue.

It is more important that the Inland Revenue should keep confidential information the disclosure of which might have some public benefit for the purpose of the suppression of crime; it is far more important to keep the Inland Revenue safe from misuse and to protect it from becoming a private detective service than it is onerous to require discovery by other means of those who may commit crimes which do not affect the Inland Revenue but in relation to which the Inland Revenue has full remedy in its hands.

That great chairman of the board of the Inland Revenue, Sir John Anderson, later Lord Waverley, laid down the principles for the conduct of the Inland Revenue. His principle was that the job of the Inland Revenue was to collect tax and not to make criminals. That has been the guiding principle of the Inland Revenue throughout the years. It takes the form of being able to reach settlements with taxpayers who are transgressors which elsewhere might be the subject of proceedings under the criminal law but which the Commissioners of Inland Revenue, in their discretion, decide to treat as a matter between them and the taxpayer. They do not proceed in the courts against the taxpayer unless the charge involves such criminality that it is a matter of public interest that the court should deal with it.

In those circumstances I am bound to defend the citadel of confidentiality, which is the cardinal principle of the Inland Revenue. I am astonished that the Government and in particular the noble and learned Lord on the Front Bench should be associated with a proposition which they know is unwelcome to the Inland Revenue. They know the dangers and apparently are not willing to deny the child support officer access to revenue records in order to preserve the position of the Inland Revenue. How can information sought for the benefit of some child or children be more important than safeguarding the integrity and confidentiality of the Inland Revenue, upon which so much depends?

We have the best system of taxation in the world. We collect our taxes. People can tell the truth to the Inland Revenue without danger of being given away, not only in matters of crime but in matters of personal conduct and personal relations. I hope that I can make some impression on the Government in regard to this issue. They should take out this provision. It is not important enough for the recipient of the information. After all it can be used only in the interests of an individual or individuals and not in the interest of the state. It is more important to them than to anybody else.

But the Inland Revenue has a principle to safeguard which it should go to the last ditch to defend. Certainly I would go to the last ditch to defend it. I had a very unpleasant time on the Royal Commission in respect of this issue. It is not often that the chairman of a Royal Commission insists on making a minority report against the majority of his commissioners. But the inquiry went long and deep into the role of the Inland Revenue and what it should and should not be. It should not be what is in Schedule 2. I beg the noble and learned Lord the Lord Chancellor to abandon this paragraph and leave the Inland Revenue out of the matter. There are plenty of other means to find out what one wishes to know. There is the right to go to employers. It is not pleasant for officers to go to employers to ask for addresses of members of their workforce because those employees are wanted for failure to support their children.

That is what I have to say. The Committee will know that I feel very deeply about this matter. I do not know what to do about the amendment. I can only wait for the response to my over-long representations. Sometimes in a Bill of this kind people stumble into a matter of deeper significance than they realise. This is one of those matters. I no longer have any responsibility for the staff of the Inland Revenue. However, if I were the general secretary of the Inland Revenue Staff Federation today, the Government would have to reckon with me and I am not a pleasant person to be reckoned with.

I ask the Committee to accept my amendment to delete from Schedule 2 those words which are worth far more to the state in safeguarding the position of the Inland Revenue than they are of value to those who seek the information that they want to obtain.

7 p.m.

The Lord Chancellor

The noble Lord, Lord Houghton of Sowerby, explained clearly the difficulty that he has about this provision. I entirely agree with a great deal of what he said about the confidentiality of matters which are held by the Inland Revenue. I know that when he was an officer of the Inland Revenue and of the staff federation he maintained the traditions of the department with commendable tenacity, even when they were challenged by so distinguished a figure as the chairman of the Royal Commission on which he sat. At one time in my life I had the advantage to hold an appointment from the Commissioners of Inland Revenue. I appreciated fully —but no doubt not to the extent that the noble Lord does—the need for confidentiality in the affairs of the Inland Revenue.

The position is that the only information in the custody of the Inland Revenue which is the subject of this provision is the information it holds which the Secretary of State requires for the purposes of tracing, first, the current address of an absent parent and, secondly, the current employer of an absent parent, and nothing else. There is nothing disclosed about the tax affairs of the absent parent, the income or anything of that sort; it is required only to trace the current address of the absent parent and the current employer of the absent parent.

The noble Lord had something to say about the principle of the Bill. I endeavoured to deal with that point at Second Reading, which is perhaps the appropriate place in which to deal with it. There was a great deal of support for the principle of the Bill in this Chamber generally. I know that the noble Lord did not share that view with any enthusiasm. Still, the general feeling was that the principle of the Bill is a sound one, in that a parent, whether absent or present, has the responsibility to maintain his child and when he is absent that responsibility continues. This Bill provides an adequate method of enforcement. I am sure that many Members of the Committee have had experience of people with orders from the court for the maintenance of children which are not worth the paper on which they are written because those people cannot be found. For that purpose and that purpose only are these alterations to the law proposed. The noble Lord's amendment seeks to delete them.

This type of power is already provided in the Social Security Act 1986 for the purpose of enabling officials in the local offices of the Department of Social Security, who are currently working on seeking to recover from absent parents while the caring parent is on income support, to obtain the same type of information. The provision has not been long in operation but it already exists in the law. In my submission this is an appropriate provision to make to allow the Secretary of State, or the child support officer, as a matter of last resort to have recourse to the Inland Revenue for information. Sub-paragraph (3) is an important provision to which the noble Lord has directed attention.

I fully appreciate the strength of his feelings on the matter. He certainly has not ceased to be a force to be reckoned with simply because he is no longer the general secretary of the staff association. I deeply appreciate his point of view but on this occasion, to the extent necessary to support the clause as drafted, I am unable to agree with him. In the light of those representations, I hope the noble Lord will feel able to withdraw his amendment.

Lord Houghton of Sowerby

This is becoming a battle between the noble and learned Lord and myself. All I can do in the present circumstances is to keep my powder dry. I propose to do that by withdrawing the amendment and considering what I shall have to do on this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76A not moved.]

Schedule 2 agreed to.

Clause 13 [Powers of inspectors]:

Lord Meston moved Amendment No. 77:

Page 9, line 33, at end insert:

"(6A) If a justice of the peace or in Scotland a justice of the peace or a sheriff, is satisfied that any information or documents are on any premises (as defined in subsection (3) above) and that their production or inspection are necessary for the purpose of requiring information which the Secretary of State or any child support officer requires for the purposes of this Act and that any of the conditions specified in subsection (6B) below is met, he may by warrant under his hand authorise a child support officer to enter any such premises, if need be by force.

(6B) The conditions referred to in subsection (6A) above are—

  1. (a) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under that subsection has been given to the occupier;
  2. (b) that an application for admission, or the giving of such a notice, would defeat the object of the entry;
  3. (c) that the premises are unoccupied;
  4. (d) that the occupier is temporarily absent and it might defeat the object of the entry to await his return.

(6C) A warrant under subsection (6A) above may be issued only if—

  1. (a) in England and Wales the justice of the peace is satisfied as required by that subsection by written information on oath; or
  2. (b) in Scotland the justice of the peace or sheriff is so satisfied by evidence on oath.

(6D) A warrant under subsection (6A) above shall continue in force for a period of one month.

(6E) A child support officer entering any premises by virtue of this subsection may take with him such other persons as may appear to him necessary.

(6F) On leaving the premises which he has entered by virtue of a warrant under subsection (6A) a child support officer shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.").

The noble Lord said: In the unavoidable absence of my noble friend Lord McGregor of Durris, I move this amendment on his behalf. I do so only briefly in the hope that the Government will accept the principles of the amendment. If they do not accept those principles, I seek to discover their position on the matter. If necessary, I shall return to the matter at a later stage.

The purpose of Amendment No. 77 is to ensure that a warrant is obtained before an inspector attempts a potentially forcible entry of premises. The amendment fills an important gap—indeed a surprising gap—in the Bill and provides proper, lawful regulation of powers of entry. In addition to the matter of warrants, the amendment provides two new provisions. New Section (6E) restricts the number of persons a child support officer may take with him on entering any premises. New Section (6F) imposes a requirement on a child support officer to leave premises effectively secured. I beg to move.

7.15 p.m.

Lord Mishcon

It may be for the convenience of the Committee if we joined the debate on these amendments to the clause stand part debate. I believe that would be a sensible economy of time. With the permission of the Committee I propose to take that course. I say at once that if the Government accept the amendment which was moved so clearly and in such brief terms by the noble Lord, Lord Meston, I for my part would not proceed to oppose that the clause stand part of the Bill, as amended by this resolution.

I refer the Committee to the clause we are talking about. I described it in the speech I ventured to make on Second Reading as a truly draconian measure. I hope the Committee will consider that I am not accustomed to use exaggeration of language. I meant those words when I spoke them. I therefore ask the Committee to be good enough to refer to Clause 13. Clause 13 concerns the powers of inspectors. The Committee will recall that we are dealing with the maintenance of children by fathers. I know that the noble Lord, Lord Stoddart, will remind me that in some cases we are also talking about mothers. Clause 13(2) states: For the purpose of acquiring information which the Secretary of State or any child support officer requires for the purposes of this Act, an inspector appointed under this section shall have power—

  1. (a) to enter at all reasonable times any premises which may be inspected under this section; and
  2. (b) to make such examination and enquiry there as he considers appropriate".
The inspector does not need to ask the leave of anybody to take such action. The Committee may be interested to know what premises an inspector can enter, without further leave, for the purposes of gathering information. I repeat that an inspector may take such action without the imprimatur of anyone other than himself. Clause 13(3) states: The premises which may be inspected under this section are any which the inspector concerned has reasonable grounds for supposing to be premises at or from which— (a) any person is employed". I pause there for the Committee to realise that if an inspector wants to obtain information, he does not have to obtain the leave of anyone else. Purely for the purposes of this Act, he can walk into the premises of a man's employer. Clause 13(3) (b) refers to premises where, there is being carried on any agency or other business for the introduction or supply to persons requiring them of persons available to do work or provide services; or (c) any person carries on any trade, profession, vocation or a business of any kind".

An inspector may enter any premises where any trade, business or profession is being carried on by the father concerned. He may enter any place where the father is employed. He is not required to seek the leave of anyone before taking such an action. Having reached the premises he wishes to inspect, the inspector under the terms of Clause 13(4) in, exercising the powers conferred on him by this section may question, either alone or in the presence of any other person, any person whom he finds on the premises". That means that if the employer happens to be present, the inspector may question him. The inspector may say, "I believe you have Mr. Jones in your employ. We are chasing him for maintenance for his child. He has not paid the maintenance and we would like a bit of information about Mr. Jones". There is nothing to stop the inspector asking such questions. He does not have to ask leave of anyone to do so. He may question any person whom he finds on the premises in question. Clause 13(5) states: If required to do so by an inspector exercising powers conferred on him by this section, any person who is or has been—

  1. (a) an occupier of the premises in question;
  2. (b) an employer or an employee working at or from those premises;
  3. (c) carrying on at or from those premises an agency or other business of a kind mentioned in subsection (3) (b);
  4. (d) an employee or agent of any person mentioned in paragraphs (a) to (c),
shall furnish to the inspector all such information and documents as the inspector may reasonably require for the purposes mentioned in subsection (2)". In case the Committee thinks that this is not a serious provision, there is a safeguard in subsection (6) which states: No person shall be required under this section to answer any question or to give any evidence tending to incriminate himself or, in the case of a person who is married, his or her spouse". Does the Committee agree with me that in dealing with the maintenance of a child it is absolutely draconian and a grave infringement of the rights and liberties of the subject to give powers to an inspector, however worthy he may be?

It may be said that there is another Act, such as the Social Security Act, where similar powers are given. Without arguing whether those powers should be given under that Act, I point out that one is there dealing with opportunities for fraud. People may be taking social security by fraudulent means on fraudulent representations. Perhaps under the Social Security Act such behaviour could be justified. However, I repeat that here we are dealing with a Bill that is supposed to be looking after children, putting them first and through an agency ensuring that the child's maintenance is properly collected from the parent. If we gave such untrammelled power under this clause—and I seek not to use exaggerated language—we should be driving a horse, a chariot, an automobile, a van and a lorry through the liberties of the subject, which this Chamber has protected over the centuries.

I should like to remove the clause from the Bill. However, I realise that in some urgent circumstances it may be necessary for such powers to be given. I wish to present a reasonable case to the Committee in order to obtain its support, if not on this occasion due to the lateness of the hour, on another occasion. As was said by the noble Lord, Lord Meston, in moving his amendment, if the provision were made subject to a magistrate's warrant, with the magistrate having to be satisfied that in the circumstances it was proper to grant such powers, I should yield to its inclusion. However, I should yield only to that extent. Although I should prefer the clause to be deleted, if the Government accepted the noble Lord's amendment it would not be my intention tonight or at a future stage to ask that the clause as so amended should not stand part of the Bill.

Lord Meston

I support the comments made by the noble Lord, Lord Mishcon. As we are debating the matter generally I wish to refer to Amendment No. 78 standing in the name of my noble friend Lord McGregor. Clause 13(5) provides for the extraction of information from, among others, an agent of a person mentioned in the proposed clause. Amendment No. 78 would allow for legal professional privilege to be raised in support of a refusal to provide such information or documentation.

Earl Russell

I agree with what the noble Lord, Lord Mishcon, has said. The clause reminds me of Lord Burghley's description of the High Commission as being a device to seek for offenders rather than for reforming. They are offenders of a great many kinds. It is an extraordinary infringement of the liberty of the subject and I hope that we shall hear of concessions.

Lord Houghton of Sowerby

Not only are we to consider the length to which the Bill goes, as in Clause 13, for example, but we must bear in mind that many regulations are still to be made by the Secretary of State. It will be impossible for us to apply any judgment in detail upon them and we must accept or reject them en bloc when they come to this Chamber.

I turn to the machinery for the pursuit of criminal fathers. I do not know, but there appear to be no lengths to which this Bill and its regulations will not go in pursuit of this wretched maintenance which must be recovered from absent fathers. What possesses the Government? What the devil are they up to? If the other place stands for this Bill in the form in which we are discussing it today it should be ashamed of itself. The time will come when something must be done with a Bill of this kind if it is finally enacted. I could use some offensive terms about the Bill but I must restrain myself.

I thought that there were some members of the Government who could see where they were going in the pursuit of noble principles of social and human policy. A few moments ago the noble and learned Lord said that the Chamber approved the Bill's principles on Second Reading. Did we then go into the details and see the full implications of officers, inspectors, the rights of entry and the rights of inspection'? We do not pursue criminals as we are pursuing these absent fathers. If we attended a little more to the pursuit of criminals we might do better for the state than pursuing absent fathers who are required to pay money only under this Bill towards the maintenance of their children. I can only say that I am shocked that such a Bill should come forward under the auspices of the new Government. Are they afraid of abandoning the Thatcherism of the last Administration? Must they stick to something that was imposed upon them under a previous regime, or what? I feel so indignant that I am almost speechless about the provisions.

Lord Simon of Glaisdale

I hope that I made plain the fact that I have no sympathy for fathers who default on their duty to maintain their children. I hope that I made plain my view that it is entirely reasonable that steps should be taken to reimburse the general body of taxpayers on whom the liabilities are thrown. However, there must be a limit to what one will do in pursuit of those aims. It is no use having enormous paving stones of good intentions. What is done in this clause goes far beyond what is permissible in any decent system of civil liberties.

I should be perfectly content if the draconian powers were allowed on a magistrate's warrant. However, even that safeguard is not vouched safe. Obviously the noble Lord, Lord Meston, will not press the amendment this evening. I hope that my noble and learned friend—who is the embodiment of the law, as Gilbert said—will recognise that an important principle of the rule of law is at stake.

Earl Russell

I apologise for intervening again but I should like clarification on one matter. Subsection (3) (c) of the clause provides that an inspector may enter premises where: any person carries on any trade, profession, vocation or a business of any kind". Let us suppose that the child support officer wishes to enter an official secret weapons research establishment. Does he have the power to do so, and, if not, why not?

7.30 p.m.

The Lord Chancellor

My noble and learned friend referred to Gilbert and Sullivan. No doubt there is some substance in what Gilbert and Sullivan said on that occasion.

My noble and learned friend said also that it is no good having a paving stone system of good intentions. I say that it is no good having an intention to enable children to be properly maintained by their parents without giving the necessary powers to those who are to make that effective. Having pious thoughts and supporting the principle of the Bill without giving the necessary powers to those charged with the responsibility of collecting the maintenance is not to support the principle of the Bill at all.

Lord Simon of Glaisdale

Surely my noble and learned friend will agree that a line must be drawn. We do not permit any means to be used to extract maintenance from absent fathers. The question is where we draw the line. We who object to the provisions of the clause merely suggest that it should be drawn on the nearside of civil liberty.

The Lord Chancellor

The first point I wish to make is that it is necessary to have the powers effectively to follow up the obligation. I submit to the Committee that the question raised here is whether or not there can be effective powers without such obligations as are contained in Clause 13.

It is strange that the amendment of the noble Lord, Lord McGregor of Durris, so succinctly moved by the noble Lord, Lord Meston—and I shall endeavour to follow his good example—allows premises to be entered by force provided that there exists a warrant. I believe that goes beyond what is necessary in the pursuance of effective powers in the Bill. Quite frankly, I prefer what we have; namely, an authority given by the statute to the inspectors. The only situation in which those matters can be resolved is by reference to an offence. The only enforcement procedure is by reference to the offence system.

My submission to the Committee is that the collection of proper maintenance for a child from its parents is as important an obligation as there can be. The powers which are proposed here are similar to those powers which already exist for inspectors to visit employers on matters regarding national insurance contributions, statutory sick pay and maternity pay. These inspectors and inspectors from other government departments will be able to obtain information on behalf of the agency. As subsection (2) makes clear, the power is limited to the purpose of acquiring information which the Secretary of State or any child support officer requires for the purposes of this Act". Any attempt to enter premises or use these powers except for those purposes will be ultra vires and not subject to the criminal penalty in subsection (12).

In my submission, when this Parliament has been willing to give those powers to inspectors for those purposes—that is, national insurance contributions, statutory sick pay and maternity pay—it is reasonable that they should be given also for the purposes of obtaining maintenance for a child from a parent who is responsible for paying that maintenance.

Lord Mishcon

The noble and learned Lord has reached a very important stage in his argument. Does the noble and learned Lord agree that whatever may be the other statutory provisions, the circumstances under this Bill are quite different?

If an employer's premises are entered and the inspector says that he understands that an employee is claiming sick pay, national insurance or maternity benefit, there exists a set of circumstances known to everybody and, quite obviously, although the maternity matter may be of some confidentiality, any relationship between employer and employee is not affected.

However, let us suppose that an inspector enters an employer's premises and says that he is inquiring about the payment which should be made by a father who has an illegitimate child but he is not doing so, or that he is separated from his wife and there is an obligation on him to pay which he is not honouring and, therefore, the inspector wants information. Does the noble and learned Lord realise what may happen to the position of that employee? Does he not realise also how different are the circumstances which may arise—and the noble and learned Lord has a very definite imagination under the provisions of this clause which deals with parenthood?

Baroness Faithfull

Perhaps I may ask the noble and learned Lord whether any approach has been made to employers on this matter. My experience tells me that many employers will resent this provision and will not want it, let alone the other way round. Have the employers' associations been approached and are they willing to accept this?

The Lord Chancellor

The proposals of the White Paper were open to all. I believe that the question which must be asked is whether Members of the Committee are prepared to allow fathers to have substantial employment earning quite a lot of money when they have obligations to their children which they are prepared to ignore. I should have thought that my noble friend and the noble Lord opposite would not wish to see that situation.

Perhaps I may turn to the question of the noble Lord, Lord Mishcon. I see no reason why an inspector seeking information on premises will be giving information. This clause deals with seeking rather than giving information. The authority under which the inspector acts is that he requires the information for the purposes of the Act. Nothing in the clause suggests that he should state precisely what is the situation in respect of which he requires the information. I believe that he will ask whether the person in question is employed there and, if so, what is his wage, salary, and what are the conditions under which he obtains payment. Information of that sort can be obtained without any disclosure of the information which the officer has about the person from whom the money is sought.

The idea that this clause empowers the inspector to give out information which he has from the child support agency for the purpose of informing employers about the state of family relations of the person in question is, with great respect to the noble Lord, a complete mistake. The fact that the noble Lord labours under that misapprehension may explain why he described the powers as draconian.

Lord Mishcon

The noble and learned Lord must —and I say this with deep respect—enter the world of reality. Does he imagine that an employer, on being approached by an inspector who has come on to the premises asking for information, will not have the intelligence to ask why the information is sought? That is obvious.

In those circumstances does the noble and learned Lord believe that the answer of the inspector will be, "I am afraid I cannot tell you that but please give me the information just the same". He will say that he is inquiring about child maintenance. There is nothing in the Bill to stop him. Is the noble and learned Lord saying that he will introduce regulations that will prevent the inspector from telling anybody why he is asking for the information? We must enter the world of reality. As it stands it is a draconian clause.

I am sure that the noble and learned Lord will tell us why he objects to the safeguard of a magistrate's warrant in those circumstances; perhaps then we can continue with the debate. However, I ask him also to answer the point regarding whether he believes that the employer will not ask the inspector why he is asking for the information.

The Lord Chancellor

I am in the world of complete reality. All I need to do to illustrate the point I was making earlier is compare the noble Lord's last formulation with his earlier formulation of the basis on which the inspector would approach the employer.

The noble Lord looks puzzled, but perhaps I can leave the matter there. I do not want to waste the time of the Committee but I do I wish to make my point clearly. The inspector would not be authorised to give any information regarding the state of affairs between the father and his child. He is asking for information in regard to what is going on in the premises in the shape of payment. To suggest that he was the father of an illegitimate child would be outside his power. There is nothing in the clause to suggest that the inspector would give such information.

The reason I prefer our clause to the clause proposed by the noble Lord, Lord Meston, is that it implies the entry of premises by force and under the exercise of a warrant. We do not require those powers. We are content with powers that do not entitle people to enter by force but require the occupier—or whoever has control of the premises—to accede unless he has some good reason not to and would be able to defend himself on that matter.

The authority of the inspector will be fundamental to those powers, and the purpose for which the inspector requires the information will be given. If one is interested in civil liberties, Clause 13 is a better clause from that point of view and more on the right side of civil liberties than the intrusive power to enter by force as the result of a magistrate's warrant. The amendment proposed in form by the noble Lord, Lord McGregor of Durris, is additional to those powers contained in Clause 13.

Earl Russell

I wonder whether the noble and learned Lord has considered one specific case which may arise. The business to be investigated may be a husband and wife business and the child being investigated may be the child of the husband by a liaison previously unknown to the wife. Do we then end up with two lots of single parents instead of one? Is that in the public interest?

7.45 p.m.

The Lord Chancellor

The inspector would make no comment on the relationship between the husband and wife or who it is in respect of which the maintenance is in question. However, it is likely that the situation would become evident to the party from other circumstances.

If the noble Earl is suggesting that that is a situation in which maintenance should not be paid I could understand his point. He shakes his head. If the wife is a partner in the business she will know that payment is going out in respect of the child should an order for deduction of maintenance be made against the firm of which the wife and the husband are partners.

Lord Houghton of Sowerby

What will an inspector do when he goes on his mission? He will have to say he is an inspector of something from somewhere. What will he say? What will he introduce himself as? Presumably he will not say that he is an inspector of police. He will have to say that he is empowered by the Child Support Act to make certain inquiries. Is it then assumed that the employer will not be interested in what his mission is likely to be?

The Lord Chancellor

Many people are interested in why the police seek to make inquiries. The police are usually not forthcoming regarding the purpose of their inquiry so long as their authority to make the inquiry is made clear. That is usually sufficient.

For the purposes of this question the inspector would be able to say that he was there for the purpose of acquiring information which the Secretary of State or a child support officer required for the purposes of the Child Support Act. That is all. He would not need to say anything more. He certainly would not be required to answer questions regarding the status of the people who might be entitled to the maintenance.

There is no point in introducing an elaborate system for assessing how much maintenance is to be unless one has a proper system for following it up. Many Members of the Committee must be aware that one complaint about the present system is that people have a maintenance order from the court, with all the authority of the court behind it, but cannot get a penny from the person named because of the difficulty of enforcement.

The provision is intended to meet a real difficulty in practical terms. I cannot believe that it will be effective without the powers set out and which are mirrored by the provisions that exist in the social security legislation. As the noble Lord, Lord Mishcon, illustrated by example, that might be in respect of liability, as a relative, for maintenance which the social security fund is entitled to recover as a result of income or support paid out.

Lord Simon of Glaisdale

My noble and learned friend denounced indignantly the element of violent entry in the amendment of the noble Lord, Lord Meston. If that element of violent entry were omitted would he be prepared to accept the amendment?

The Lord Chancellor

I imagine the reason for the warrant is because of that very factor.

Lord Mishcon

I do not think the Committee would like to extend the debate much further at this hour. As far as I am concerned, though I cannot speak for the noble Lord, Lord Meston, the stage has been reached to consider what we shall do.

I cannot resist uttering one further sentence—it may extend to two. The noble and learned Lord seems to be incapable—I say this with deep respect—of recognising the harm that could be done at an employer's premises; I take that as only one example. I know that he is a defender of civil liberties. He is endeavouring by some mental process to persuade himself that there is no difference between making an inquiry about national insurance, sick pay or maternity pay, and the delicate matter of child support. He cannot see the difference. I believe that he can but is unwilling to say so because, with his usual skill, he is defending the Bill. I do not believe that he can do so with any conscience, bearing in mind his duty, in the position which he holds with such dignity, to protect the liberties of the subject.

Having uttered one long sentence, or possibly two, I shall seek another opportunity of saying that the clause should not stand part of the Bill. The noble and learned Lord appears to be minded to agree to the amendment should the question of force be left out. He nods his head in a direction which does not encourage me and not in a way which might. I must leave the noble Lord, Lord Meston, and the noble Lord whose place he took in moving this amendment to decide what course they will take in future. At Report stage I shall certainly be moving that this clause does not stand part of the Bill unless an amendment comes forward which the Government are prepared to accept.

Lord Meston

It is certainly not my intention to test the opinion of the Committee at this stage. I defend my noble friend's amendment from the charge that it is the product of pious thought. It was the intention to strike a balance on the question of the wide powers of entry given by Clause 13 as drafted. It is not just a question of the power of entry but a power under subsection (2) (b), to make such examination and enquiry as (the inspector) considers appropriate". The inspector should not be immunised from the need to obtain a warrant in certain circumstances. I accept that there may be matters of form which make the amendment as presently produced defective. For that and the reasons already indicated, I beg leave to withdraw the amendment, but on the basis already indicated by the noble Lord, Lord Mishcon, that we shall certainly need to return to this matter at a later stage when we have been back to the real world which we all claim to inhabit. Before I formally withdraw the amendment, I remind the Committee that I spoke to Amendment No. 78. The noble and learned Lord did not refer to that amendment. As a matter of completeness, I wonder whether he will comment on it at this stage, but if not I shall quite understand.

The Lord Chancellor

The question of legal professional privilege is unlikely to arise in relation to the kind of information which the inspector is authorised to get. We shall certainly look to see whether something further is required. As I have said, these provisions are modelled on existing statutory provisions where that is not expressly referred to. I want to check that for myself. At present I feel that that is omitted because it is not thought to be necessary. In other words, there is no intention of evading or overcoming legal professional privilege.

Lord Meston

I am most grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 78 not moved.]

Clause 13 agreed to.

Lord Cavendish of Furness

I beg to move that the House do now resume. I suggest that the Committee stage begins again at 8.55 p.m.

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

House resumed.