§ 4.20 p.m.
§ Read a third time.
Lord Carter moved Amendment No. 1:
After Clause 1, insert the following new clause:
§ ("Duty to consider welfare of child
§ Where the Secretary of State, or any of his officers, exercise any of the powers and duties conferred by this Act, the welfare of the child shall be taken into account so far as is consistent with the requirements of this Act").
The noble Lord said: My Lords, the amendment deals with the welfare of the child, which has been a consideration of your Lordships throughout the Bill's passage. We all agree with the principle that the child should be the focus of concern, and indeed the Bill's title is the Child Support Bill. It is essential that that principle is in some way spelt out on the face of the Bill. This is the third attempt to meet the Government's objections to the proposal. They were proper objections, and were raised in Committee and on Report. I do not propose to repeat the whole of the discussion that we had in Committee and on Report, but I should point out that in Committee the noble and learned Lord the Lord Chancellor welcomed the principle relating to the concern for the welfare of the child, and said:
I do not wish to push the issue to one side. It may be possible to introduce something which would show that the whole idea of maintenance is for the benefit of the child. I shall consider whether we can do something of that nature".— [Official Report, 14/3/91; col. 341.]
The objection in Committee was that the amendment's wording made the child's welfare the paramount consideration, and that picked up the wording of the Children Act. We tried on Report to meet the Government's objection to the wording. We moved an amendment which merely stated that there was a duty to take the welfare of the child into account. Again the noble and learned Lord had some objections which I believe were correct. He pointed out the wide nature of the amendment. He queried whether the welfare of the child should be taken into account in exercising "any" of the powers and duties conferred by the Bill. We had to use the word "any" in the amendment, but we have tried to meet the Government's objection by adding the phrase:
so far as is consistent with the requirements of this Act".
There are certain parts of the Bill, such as the calculation of the maintenance formula, and so on, where it is evident that the welfare of the child is taken into account. However, there are other areas, especially Clause 5, where there may be a difficulty. That was a point again made by the noble and learned Lord who said:
In the case of Clause 5—and also in connection with Clause 22 which was removed in Committee—I can see that in such a situation the welfare of the child may be important if, for example, the result of requiring information would be to involve the child in threats of violence or actual violence".—[Official Report, 25/4/91; col. 409.]
§ I believe that it is right to bring the amendment to your Lordships again with the present wording, because the Government's answer on Report seemed to indicate a change of stance to some extent. The argument seemed to rest on the fact that the point was 1761 self-evident; that the whole purpose of the Bill is to benefit the child, and it provides for the assessment of the parents' financial liability. If it is self-evident, it can surely do no harm to say so on the face of the Bill. A fair point was made about the operation of the formula, and we have tried to take that into account.
§ When the noble and learned Lord replies, perhaps he will tell the House whether the Government have changed their stance on that principle since the Committee stage. The amendment is intended to be a variation of the one moved on Report. It has been varied to meet the points made then by the noble and learned Lord about the contradictory nature of the wording. The Government seem to have changed their mind on this point. It would be helpful to the House to know whether that is so.
§ The amendment is not intended to undermine the operation of the Bill, but to apply only in those cases where there is a question of discretion in the actions of the child support officer or the Secretary of State; for example, with the child support officer's discretion to pursue any inquiry, or of an inspector to investigate employment particulars. In such circumstances, the sensitive nature of the issues might have repercussions on the welfare of the child.
§ Clause 5 was mentioned by the noble and learned Lord on Report. It is the element of compulsion in Clause 5 which might mean that the child's welfare would not be taken into account unless it was stated on the face of the Bill. Presumably the caring parent will give some consideration to the child's welfare if she was requesting the agency to take action. The principle of the amendment has been agreed throughout, but the Government have seemed to change their stance from time to time. I cannot believe, with all the discussions that we have had on the Bill, that the Government wish to reject the amendment. We have tried hard to use wording which would meet the objections which have been raised at various stages. We hope that the third time round we shall not be rejected on some—I can only describe it in this way—pettifogging drafting point. The House should have the opportunity to state its support for this crucial principle. The amendment's intention is clear. I am sure that every Member of the House supports the principle and the intention of the amendment. I beg to move.
§ Baroness Faithfull
My Lords, I support the amendment which would help child support officers. Their task will be made easier if the amendment is in the Bill. Perhaps I can give a practical example. If a woman does not want to name the child's father but feels that she will be forced or pressurised to do so, she may give up income support and take a low-paid job. If she takes a low-paid job, the child will lose a number of the entitlements. The child would lose a number of educational benefits, including school meals which amount to a considerable sum each week. If the mother were on income support she would receive those benefits, but she loses them if she is on a low income. A number of women will take up that stance.
It would be helpful if the phrase proposed in the amendment were in the Bill, so that with every 1762 decision a child support officer makes account is taken of the child's welfare not just in the context of the Bill but in the context of education Bills, health Bills and so forth.
§ Earl Russell
My Lords, on behalf of the Liberal Democrat Benches I too support the amendment. Last night, rather later than perhaps I would have wished, I was reading the noble and learned Lord's reply to this amendment on Report. He said:The whole purpose of the Bill is, self-evidently, to benefit the child in that it provides for the assessment of the parents' financial liability for their children."—[Official Report, 25/4/91; col. 409.]On reflection, I am not convinced that that is the case, because the effect of the Bill will not be to give children more maintenance than they were receiving before but to make the maintenance come from the father rather than from the taxpayer. The real principle behind the Bill—we on these Benches have always recognised that it is a valid principle—is the interest of the taxpayer. It is a good interest, but it is capable of conflicting with the interests of the child.
The noble and learned Lord further implied that it is in the child's interests to receive maintenance from its parents. That is a case which deserves to be taken seriously. I would go so far as to say—if I may use a legal term with some hesitation before the noble and learned Lord—that there is a rebuttable presumption that that is the case. Other things being equal, it probably is good for the child to receive maintenance from its parents, but the presumption is rebuttable. There are cases, some of which we have discussed, and to some of which the noble Baroness, Lady Faithfull, has referred, where it is definitely not in the child's interests to obtain maintenance from its parents. Some of those instances, such as cases of rape or incest, have, from the start of the Bill, been conceded by the Government. Therefore, I believe that they concede the basic principle of the amendment: that the interest of the child is capable of conflicting with the Bill's basic thrust. We say that where it does, it should be taken into account. I cannot believe that the Government disagree with that proposition.
§ Baroness Elles
My Lords, I support what my noble friend Lady Faithfull said; that there are certain instances when the caring parent will lose the benefit for the child of free dinners and access to the social fund if she comes off income support.
Another point has not been touched on by noble Lords. In his speech on Report, my noble and learned friend referred to possible confusion for the child support officer who has the duty to follow the formula on the amount to be paid. However, many provisions in the Bill are not mandatory but discretionary. There is no yardstick that I can see in the Bill that sets out the polarisation on which these discretionary acts must be based. For example, in Clause 10 the child support officer may make an interim assessment. The Secretary of State may make regulations. However, on what basis are these regulations to be made and on what basis are the decisions of the child support officer to be made when he has to exert his discretion?
We all know that the Bill has not been popular anywhere in the House. Nevertheless, presumably it 1763 will end up by becoming law. Surely it is our duty to see that those who have to implement and apply the provisions of the Bill have guidance on how the discretion is to be exercised. I cannot go along with the wording of the amendment: it refers to "duties", and where something is a duty there may be circumstances where the welfare of the child will not be taken into consideration because the formula exists.
As my noble and learned friend said, all this could cause confusion. Perhaps he can give an indication of an amendment which could be put forward in another place when the Bill reaches there. It would show that the welfare of the child must be taken into account in the provisions that are discretionary. Where child support officers, and the Secretary of State, must exercise their discretion, perhaps there could be a formula that would delete the word "duties" but nevertheless recognise that this is the fundamental purpose of the Bill.
§ 4.30 p.m.
§ Lord Houghton of Sowerby
My Lords, surely the words in the amendment,so far as is consistent with the requirements of this Act",are qualifying words. They suggest that there may be something in the Act which would affect the welfare of the child less completely than if the words were not the same as, the provisions in different parts of the Act. It is a qualifying phrase. It would be stronger if all the words were omitted after the word "account". Then there would be the simple proposition that,the welfare of the child shall be taken into account".It would suit my purpose still more if, instead of the words,so far as is consistent with",we were to introduce the words,notwithstanding the requirements of this Act".Quite honestly, it is not a welfare Bill but a money Bill. It is about money, and only about money. That has been my complaint all along. It is a debt collecting Bill; the agency to be set up is a debt collecting agency. The debt collectors and the agency are provided with all the equipment for tracing the debtor, pursuing, persecuting and prosecuting him.
One wonders where the welfare of the child comes into it. Do we really believe that with the kindliest administration of the Act there will not be some deleterious effect upon the welfare of certain children? Will they possibly see their mother or the caring parent go through the anguish of this machinery, with all the emotions that it will arouse and all the other side effects of the traumatic experience that somebody in the family will undergo? Do your Lordships really believe that the children will come out unscathed? I am sure that the children will feel some of the emotional reactions that are bound to occur.
I am uneasy about mixing welfare in a Bill of this kind. If we wish to pronounce that the welfare and wellbeing of the child shall come first—and we keep on saying that the children must come first—then they should come first notwithstanding the provisions of the Bill. With that provision, we shall strengthen our attitude towards the Bill with a note of defraying any possible ill effects in the course of its administration. 1764 I am worried about this, and I hope that my criticism will not lead the Government to say that it suits them fine. The truth is that to put the amendment into the Bill as it stands would, I fear, complete the deception behind the Bill conveying the impression that it is doing a great deal more for children than it is. That is a serious criticism of the Bill. It largely concerns money; it exists to reimburse state funds for the support given under the social security and child benefit arrangements to children of broken marriages or in the care of lone parents.
§ Lord Renton
My Lords, I regret that I missed the four-minute speech of my noble friend Lady Faithful] when she moved the amendment; but I have a clear idea of what she would have said. I apologise, it was the noble Lord, Lord Carter, who moved it and I am sure that what he said was along the lines of what my noble friend said.
Your Lordships will not be surprised to be told again that I am in favour of statements of principle in legislation, not for their own sake, not just for the sake of having statements of principle, but where there seems to be a need or desire for them. I suggest that clearly there is a need for them here so that when discretions are being exercised, there is a removal of doubt, as my noble friend Lady Elles said. There will be occasions when the child support officer, or even the Secretary of State and others concerned with implementing the Bill wonder how to exercise their discretion. If it is made clear to them early in the Bill that the welfare of the child shall be taken into account—those words are very moderate—it will offer guidance to them and remove the doubt.
One should note in passing that the words, "taken into account" are not strong. They are not the same as, for example, "shall be paramount" or "shall be overriding". A statement of principle in these terms or along these lines helps to ensure that the will of Parliament is observed.
I now come to the point mentioned by the noble Lord, Lord Houghton of Sowerby. I have such respect for him that I hesitate to disagree with him. Nevertheless, I warn your Lordships that if his suggestion were accepted and the words, "notwithstanding the requirements of this Act" were inserted, it would enable somebody exercising his discretion to flout the provisions of the Act and defy the will of Parliament. Therefore, that would not be acceptable.
Here we have an issue of principle, and I hope that my noble friend on the Front Bench will be able in reply to say, "Yes, for the good reasons given, the principle is accepted". I see that my noble and learned friend has returned to the Chamber. I wonder whether his ears are burning. Just before he entered the Chamber, I was about to say that I was sorry he was no longer on the Woolsack. However, we now have the benefit of his presence.
It is a benefit because my noble and learned friend has made it clear that not in every case—not for the sake of having it—but where it is appropriate, a statement of principle can be helpful in a Bill. I wish to suggest to him in case even at this late stage he is able to give any advice to my noble friend Lord Henley, who is to reply to the debate—I have just been 1765 informed that my noble and learned friend is to reply to the debate; that is even better—that here is an opportunity for inserting a statement of principle into the Bill which can do only good. As I was saying in the absence of my noble and learned friend, it can do good mainly for the removal of doubt in people's minds when exercising a discretion under the Act that this Bill will become.
I find the wording acceptable at the moment but if for some technical reason my noble and learned friend feels that the wording could be improved upon he could take the straightforward course of saying that the Government will accept the amendment, get it attended to in another place, and make any adjustment to the wording that is necessary.
I made one other point in the absence of my noble and learned friend. I am sure your Lordships will not mind if I repeat it. The words,shall be taken into accountare moderate words. They are not the equivalent of "shall be paramount or overriding". I should have thought that makes this new clause, as a statement of principle, even more acceptable. We live in hope.
§ Lord Henderson of Brompton
My Lords, I am particularly glad to follow the noble Lord, Lord Renton, as he was the chairman of a committee of which I had the honour to be a member which advocated the use, where possible, of statements of principle. The members of the committee were unanimous on that point. I wish to support the amendment, as the noble Lord has done, to demonstrate the unanimity of that committee. This is an appropriate place in which to insert a clause of this kind. I welcomed the comments of the noble Baroness, Lady Elles, who said that the House has not been receptive to the amendment. When the Bill goes on to the statute book its implementation will command much greater respect if the words of the amendment are included.
The noble Baroness had the main principle of the amendment in mind when she said that it would help child support officers and the Secretary of State in discretionary cases. That principle can only be effective in discretionary cases. It is an important principle as child support officers will need guidance. I refer to the example mentioned by the noble Baroness, Lady Faithfull. Child support officers will be able to point out to the mother that if she takes a certain course she will lose benefit. That will help child support officers make dispositions in matters where they have discretion and help the parent concerned where there is a case for adopting alternative procedures. I am very much in favour of the amendment from that point of view.
If this provision were included in the Bill, it would at the outset dispel the rather unpleasant suggestions that have arisen throughout the passage of this Bill that we are dealing with an unfeeling bureaucracy. As the noble Lord, Lord Houghton, said, this is purely a matter of debt collecting. The Short Title of the Bill is misleading. It gives one the rather comfortable, cosy 1766 feeling that the Bill aims to give support to children, whereas the whole tenor of the Bill is to extract money in the form of maintenance from the absent parent.
As I have said, I believe this provision would strengthen the Bill. Throughout our proceedings we have heard of cases where, if the measures in the Bill are pursued with utmost rigour, children will be affected deleteriously. As a general safety net and as a means of giving advice to those who will operate the provisions of the Bill, the amendment contains an important provision to place at the forefront of the Bill.
§ 4.45 p.m.
§ Lord Stoddart of Swindon
My Lords, I strongly support the amendment. Throughout the passage of the Bill I have supported what my noble friend Lord Houghton has said. During the progress of the Bill the impression has grown that this is not a Bill about supporting children and that it is more a Bill about collecting debts from parents. My noble friend referred to that. If we believe that this is a Bill aimed at child support, this amendment would help the Government to prove their case. I am sure the Government wish to do that. Those of us who have had experience of dealing with any government department—I certainly have had experience of that—and in particular with the Department of Health and Social Security as it was when I was a Member of another place, will know perfectly well that the officers who make the decisions feel themselves bound by statutes. Therefore, if the statutes are rigid, with the best will in the world the officers making the decisions must be rigid.
This amendment gives an officer who is making a decision some discretion and some opportunity to say, "Ah, yes, the regulations say that but I am also told that I must take into consideration the welfare of the child". This amendment is extremely helpful in that respect. It does not alter the essence of the Bill but it would help the Government, if they would only accept it, to show that they consider the welfare of the child.
§ Lord Donaldson of Kingsbridge
My Lords, I wonder whether any noble Lord who has supported this amendment would not prefer it to be drafted in the form suggested by the noble Lord, Lord Renton. As it stands at present I believe the amendment is inadequate, whereas if it ended, "the welfare of the child shall be paramount"—
§ Lord Renton
My Lords, I commended the wording of the clause as it is and contrasted it with the expression "would be paramount". I think that expression would be going too far. I believe that the moderate wording of the amendment makes it more acceptable.
§ Lord Donaldson of Kingsbridge
My Lords, I misunderstood the noble Lord and therefore I shall not pursue this point as others do not seem to agree with me. I believe that everyone takes the conditions that are in front of them into account. However, that does not mean that one gives those conditions preference over other conditions. I thought we wanted 1767 officers to give the consideration of the child preference over any adverse consequences of the Bill as it stands.
§ Baroness David
My Lords, the original amendment moved in Committee was tabled in my name, though my noble friend Lord Carter moved it in my absence. When I read the proceedings of that stage I had the impression that the noble and learned Lord had given a sympathetic reply to the amendment. I was not present during Report stage because I was in the Far East with a parliamentary delegation. I read with some dismay the noble and learned Lord's comments on a milder amendment which was put down at Report stage. I do not like the amendment which is now before the House as much as my original amendment, but I accept that we have had to modify it in order to accommodate what the noble and learned Lord said. The present amendment has received very strong support from all round the House, and I shall not repeat the arguments. I understand my noble friend Lord Houghton's point.
I hope that we shall accept the amendment as it is because that is better than not having it at all. For the reasons that have been given from all sides of the House, I should like to add my strong support for the amendment.
§ Lord Mishcon
My Lords, the House will remember that this is the last occasion on which this House can place its imprint regarding the welfare of the child on the Bill. If there is a vote against the amendment, the Bill will go to the other place without the interests of the child even being mentioned as being one of the purposes of the Bill. In my view that would be tragic.
The noble Lord, Lord Donaldson, helped the House by reminding us of the stages through which we have gone. We started by talking in terms of the welfare of the child being paramount. That had to be watered down because of arguments against the use of the word "paramount". We were told that it might end up in court with people saying that the Minister had not made this the paramount consideration. Therefore we watered down our proposal. The amendment now states merely that:the welfare of the child shall be taken into accountas one of the elements.
We went further, even though that did not meet with the approval of the noble Lord, Lord Houghton of Sowerby—and I can understand his point of view. We were reminded of the requirements of the Bill. One cannot think of every one of them when looking at the amendment. What happens if the requirements of the Bill are arguably inconsistent with the welfare of the child? As a result, we again watered down our proposal. We have said in this amendment:so far as is consistent with the requirements of this Act".The noble Lord, Lord Renton, is right in his recollecti ans, as he usually is. I remember the noble and learned Lord—who I am sure is giving a sympathetic ear to the amendment and I hope will agree to it in a moment—was pleased when we brought forward similar amendments on other Bills. I think that I am right in saying that it was on the Children Bill.
§ Lord Mishcon
My Lords, that is right. I believe that it was in the first part of the Legal Aid Bill that we set out the principle behind the Bill.
As I mentioned, this is the last stage of the Bill. We cannot afford any more bickering about wording. We have come to the end with the amendment. It would be grossly misunderstood in the country if the Bill left this House with a vote against the welfare of the child being taken into account so far as is consistent with the requirements of the Bill. I hope there is unanimity in the House and that we all support the purpose of the amendment in the sense that the welfare of the child must be one of the elements to be taken into account. I hope that on this occasion the House will vote with unanimity. It would be preferable, however, if there were no vote at all.
§ The Lord Chancellor
My Lords, I hope that your Lordships are content that I should reply to the amendment. My noble friend Lord Henley kindly agreed to do so because I had a public commitment to discharge in the swearing-in of a judge which had been fixed a long time ago. However, I have been able to return. I think that I have gathered sufficiently what has been said. The only speech which I did not hear as fully as I should have liked was that of the noble Lord, Lord Houghton of Sowerby. Having heard his point of view in respect of the Bill expressed forcefully on occasions in the past, I can make a reasonable assumption about what he may have said on this occasion and take it into account.
I expressed my point of view in answer to the amendment in the name of the noble Baroness, Lady David, which was moved by the noble Lord, Lord Carter, at Committee stage. I remain of the point of view which I expressed then. There is no question of my changing my basic point of view. However, as the amendments have developed in answer to those observations, I have not simply repeated what I said before but tried to take account of the changes that have been made in the amendment.
I said at Committee stage that we would consider carefully embodying wording relating to the welfare of the child in the Bill. What I had in mind then and still have in mind is something of the nature of a purpose clause on the lines which the noble Lord, Lord Renton, has described and to which the noble Lord, Lord Mishcon, has referred. Actions often speak louder than words in these matters and I have, as has been mentioned, incorporated such provisions in the Legal Aid Act 1988, for example. That was one of the first Bills which I had the privilege of bringing to your Lordships' House after I assumed my present office.
However, it is important to understand that a purpose clause sets out the purpose of the Bill as a whole. The whole purpose of the Bill is expressed in the purpose clause. Strictly speaking, the amendment is not a purpose clause of that kind. That is what I have been searching for, and I have asked for help in that search. However, so far I have not been able to come forward with an adequate clause. A purpose clause, in the nature of things, if it is adequately to 1769 express the purpose of the Bill must be succinct on the one hand and yet fairly comprehensive on the other. It is a challenge to succeed in that in a Bill as important as this one.
§ Lord Renton
My Lords, I am most grateful to my noble and learned friend for giving way. I hope that he does not mind my rising at this point to say that none of us has suggested that a purpose clause is what is needed. As my noble and learned friend so rightly said, a purpose clause describes the purpose of the Bill as a whole. What we want here is something less than a purpose clause; it is a statement of principle. That is what the proposed clause is. It is intended to give guidance as to the way in which the Secretary of State and the child support officers are to exercise their discretion when using the powers which the Bill clearly gives them. That is different from a purpose clause, but it is essential as a statement of principle. I hope that my noble and learned friend did not mind my making that intervention.
§ 5 p.m.
§ The Lord Chancellor
My Lords, certainly not. I have no objection whatsoever to my noble friend intervening with that extremely helpful observation. However, I was saying that I was seeking to produce a purpose clause because I thought that that would help to settle some of the matters which have been raised as the Bill has progressed. It would be helpful to express the underlying purpose of the Bill succinctly and with clarity. However, your Lordships will appreciate that it is not the easiest thing to do and so far we have not been able to do so. I am certainly willing to undertake to continue that search.
As has been said, this clause is not a purpose clause in that sense. This is a statement of a consideration which the Secretary of State and the child support officers would take into account. I should like first to acknowledge with gratitude that the noble Lord, Lord Carter, and the others who have supported this amendment on the Marshalled List have taken account of the arguments that I put forward at various stages, and the question is whether it goes far enough. One has to be extremely careful in this context to gather the considerations properly.
One of the principal places in which this arises is in relation to Clause 5, as has been said before. One has to think about the circumstances rather closely. The noble Lord, Lord Carter, suggested—I am not sure precisely about the word he used—that the argument on the wording of the clause might be regarded as less than—
§ The Lord Chancellor
My Lords, I thought that that was the word, but I did not wish to reproach the noble Lord by using it unless I was certain that it was the word. The purpose of my discussion would not be to be pettifogging, but to attempt to show your Lordships that there are considerations that have not been fully taken account of even yet in this clause.
1770 Let us take the case of Clause 5, the case of a lady who has a difficult relationship with the father of the child. The father of the child is one who may well be able to provide quite a substantial amount of money, maybe taking the child outside the situation which otherwise it would be in, and the question is: should that father be pursued?
The father might be a person who has shown violence towards the mother in the past, but no such thing towards the child. In other words, it would be very much in the child's interest to get the maintenance from the father; but if the mother disclosed the father's name, the result might be violence to her. The clause as drafted here directs the Secretary of State and his officers to take into account the welfare of the child. In that situation, an important element to be taken into account also would be the welfare of the mother and her situation. This does not expressly exclude other considerations, but it puts great emphasis on the welfare of the particular child.
I venture to think therefore that the clause as presently drafted has not overcome all the difficulties that there are in the situation; and my noble friend Lady Elles has pointed out that the clause refers to the duties which are imposed as well as to the powers. I feel sure that your Lordships are seeking some provision which would ensure that in exercising discretionary powers, the Secretary of State and his officers would have regard to the welfare of the child, along with other considerations that might be important—and I have given one example.
We shall consider this further and in the course of this Bill's further proceedings, we shall seek to come forward with provisions dealing with these matters. I should like to try to achieve a suitable purpose clause because it will help to give an understanding of the Bill which would be important. I know that it is not easy, because I have been trying to get it for some little time; but I do not yet wish to give up on that.
As regards the second point that your Lordships wish to cover, which is dealt with primarily in this amendment, I shall certainly undertake that we shall seek a suitable form of words to bring into the exercise of the Secretary of State's discretion, among other considerations, in a plain way the welfare of the child, so far as that is a proper consideration on the basis that the later words of this amendment show.
I do that not in any pettifogging spirit at all, but in the desire to get this right. It is an important matter and certainly we have not lost sight of it at the various stages of this Bill. I personally have been anxious to try to secure a good provision which all of your Lordships could support wholeheartedly.
§ Lord Mishcon
My Lords, before the noble and learned Lord sits down perhaps I may say this. I am sure that he wants to be helpful. But we have come right the way through the stages of this Bill in this House, as I have tried to point out before, and we dare not—and I use the words advisedly and in no sense at all in a party way because of the feeling throughout the House—miss this opportunity. What is the harm if this very modified amendment goes into the Bill at this stage, giving the noble and learned Lord, and all the other people who will be advising on the Bill, the 1771 opportunity of putting in anything by way of rectification, if that is necessary, in another place during other stages. The Lords will have said that they want the welfare of the child at least to be taken into account.
§ The Lord Chancellor
My Lords, I should like to do what would meet your Lordships' approval. I once before found myself in a situation—perhaps more than o ice, but once that I recollect very plainly at the moment—where, in order to do my best to meet the entreaties of the noble Lord, Lord Mishcon, and I think it right to describe them as such, I accepted an amendment on that basis. I then found at a later stage in another place that, because of the attempt to alter in order to supply what I considered to be the necessary filling-out of the undertaking I was in a situation where it was thought that I was trying to undercut the main purpose of the undertaking.
It is fair to say that the noble Lord, Lord Mishcon, never suggested anything of that kind. But it was quite difficult, having the situation once passed where an amendment had gone in, to produce, as it were, corrections or emendations. If your Lordships are of the view that this amendment should go in, and you are willing to put it in on the basis that we shall have completely free scope, without in any way transgressing the spirit of what we have done here to fill out the detail of it then I should be willing to contemplate that course. I am still keen to get a purpose clause if I can, but, if once we have this, I suspect that the purpose clause and my search for it on this occasion will be abandoned.
§ Lord Carter
My Lords, I am extremely grateful to the noble and learned Lord for that reply and to my noble friend Lord Mishcon, who put extremely well the case for this House being able to state its view. I do not intend to go through the arguments. I simply thank all those who supported the amendment. I can assure the noble Lord, Lord Renton, that there was no need to apologise to me for mistaking me for the noble Baroness, Lady Faithfull. I can think of no higher compliment. We feel that this is a separate issue from a purpose clause. That is a separate point with which only the noble and learned Lord can deal. On the undertaking and assurance that he has given to the House, I commend the amendment to the House.
§ The Lord Chancellor
My Lords, we are in a slightly different position. I am asking for a clear understanding on the part of noble Lords that, if I do not oppose the amendment at this stage, it is under reservation of the full right to elaborate and bring forward any amendments supplementary to it which appear, on full consideration, to be necessary. That will of course have to be done in another place.
§ Lord Mishcon
My Lords, let me say at once to the noble and learned Lord that I regard his attitude as completely generous and typical of him. It is understood on all sides of the House, I believe, that, if this amendment is accepted, he is at complete liberty to bring in refinements should he feel it necessary at a later stage and that that applies to his colleagues in another place.
§ Earl Russell
My Lords, before the noble and learned Lord sits down, we entirely understand his position. We agree with everything that the noble Lord, Lord Mishcon, has said. It is also clear that on that basis we also, if we were unsatisfied with what another place did, would have locus standi to amend the amendment when it came back to this House.
§ On Question, amendment agreed to.
§ Clause 5 [Applications by those receiving benefit]:
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley) moved Amendment No. 2:
Page 3, line 38, at end insert:
("(IA) That authorisation shall extend to all children of the absent parent in relation to whom the parent first mentioned in subsection (1) is a person with care.").
§ The noble Lord said: My Lords, I speak to this amendment on behalf of my noble and learned friend. It is a small drafting amendment which makes clear that, when a caring parent gives authority to the Secretary of State to seek maintenance from the absent parent, that authority extends to all of the absent parent's children who are living with the caring parent. This amendment removes any doubt that there may have been about our intentions in this matter. I beg to move.
§ On Question, amendment agreed to.
Lord Mishcon moved Amendment No. 3:
Page 3, line 39, after ("without") insert ("unreasonable").
§ The noble Lord said: My Lords, at various stages of the Bill we have played with the words "without delay". This is an important matter because we visualise the mother of a child having a certain duty under this Bill. Doubt was expressed at the earlier stages about what was really meant by the words "without delay".
§ The Minister, with a smile—let me make that abundantly clear; it was certainly not a scowl—said that he had received advice to the effect that the words "without delay" meant in law "without unreasonable delay". In order to clarify the matter completely, even preceding his remarks I tabled an amendment with the words "without unreasonable delay". To my utter astonishment that amendment was in some way resisted, at least by the requirement to think further about the matter before coming to a conclusion.
§ Therefore, I bring before the House this weighty amendment so that a person who has not had the tuition and experience of the adviser of the Minister may see upon the face of the Bill that "delay" means what the Minister says it means; namely, without unreasonable delay. I beg to move.
§ Lord Henley
My Lords, I can respond very briefly. I feel sure that the noble Lord, Lord Mishcon, will be pleased to know that his powers of persuasion are such that he has convinced me and those who advise me that it will be acceptable to include the word "unreasonable" and that it will put beyond doubt our intentions in this matter. Therefore I am most pleased to accept the noble Lord's amendment.
§ On Question, amendment agreed to.1773
§ 5.15 p.m.
Earl Russell moved Amendment No. 4:
Page 4, line 6, at end insert:
("() The obligation to authorise the Secretary of State which is imposed by subsection (1)—
§ The noble Earl said: My Lords, since my name is attached to one of the other amendments in this group and I am happy to support the amendment of the noble Lord, Lord Coleraine, I shall in his absence move Amendment No. 4 and speak to Amendment No. 9, with which it is grouped. These amendments deal with the matter of the requirement on the woman to name the father of the child. Amendment No. 4 lays down the vital principle of allowing for exceptions.
§ It is common ground that there should be certain cases in which there may be exceptions. I understand that the Government have always conceded the cases of rape and incest. There are other cases that we have discussed, in particular that of domestic violence, which is dealt with by Amendment No. 9. It is a problem of quite considerable extent.
§ Since we last discussed this Bill another body of research on this subject has been published by the Family Policy Studies Centre. It states that one in eight separated mothers gives domestic violence as the reason for the original separation. That is quite a high number. The centre also states that 5 per cent. of those who at present refuse to name the father give violence as the reason. That is a considerable number but a much smaller one. It is so much smaller that one must form the suspicion that it may be the tip of an iceberg.
§ On this subject, I believe that our procedures have operated as they should. At each stage of the Bill the differences between us have narrowed somewhat. The White Paper began by admitting rape and incest as a ground for exception and the argument was simply about whether or not that should be on the face of the Bill. In Committee my noble kinsman admitted that domestic violence should be a ground for exception.
Two questions arose. One was about whether that too should be on the face of the Bill. The other was about what should be acceptable evidence of it. With regard to acceptable evidence, the gap has very largely been closed. A commissioner's ruling—the reference is R(SB) 33/85—has been brought to my attention. The words of the ruling appear to me to be important. It states:
The Tribunal may reach this conclusion even though the only evidence is that of the claimant himself. There is no rule of English law that corroboration of the claimant's own evidence is necessary. In some cases a Tribunal may rightly think that they cannot act on the claimant's uncorroborated evidence either because it is self-contradictory or inherently improbable or because the claimant's demeanour does not inspire confidence in his truthfulness. (It is seldom safe to reject evidence solely for this last reason …)".
In other words, in the issue of domestic violence the woman's word is good evidence. As I understand it, there is to be a rebuttable presumption that it is true but it is not to be taken for granted. Nobody in a court
or indeed in any judicial matter can claim to have his evidence taken completely for granted. So that gap has been closed.
§ The other issue that remains is whether to have the provision on the face of the Bill. The movers of the amendment believe that that is absolutely vital. The issue has given rise to a good deal of fear up and down the country. We should not understate the fear associated with the subject. It causes great harm and distress to the women subjected to it. We hope to achieve a final resolution of the subject. It is essential that some provision is put on the face of the Bill.
§ There is the problem of suspicion, in particular in cases of incest. In many cases a daughter says that the father has abused her. The mother does not know whether to believe her husband or her daughter. In those circumstances it is clearly undesirable to force a renewed contact by a demand for maintenance. One would not wish to insist on making the woman name the father. Nor would one wish to do anything which prejudices any future case against the father.
§ We have suggested a form of words in the amendment. We are not wedded to it. If the Government come forward with a better form of words, I am prepared to listen to them with great care and sympathy. I thank my noble kinsman Lord Henley and his officials for their care, courtesy and consideration at every stage of the discussion. But we must have some provision on the face of the Bill. I beg to move.
§ Lord Coleraine
I am grateful to the noble Earl for so ably moving my amendment in my brief absence, for which I apologise. I support the amendment. I speak also to Amendment No. 9 which stands in his name.
The amendment that he has moved on my behalf inserts into the Bill a provision that I believe to be wholly consistent with the Government's intentions as set out in the White Paper, Children Come First. I go further. I suggest that it may be only as a result of an oversight that the provision does not already appear in the Bill.
Clause 5(1) provides that a parent with care who is in receipt of income support, family credit or any other benefit of a prescribed kind must authorise the Secretary of State to recover child support mainte-nance from the absent parent. Subsection (6) provides that she is obliged to give the child support officer all necessary information to enable the absent parent to be traced. Subsection (7) provides that she is not obliged to provide information in such circumstances as may be prescribed. The amendment applies the provision of subsection (7) to the primary obligation which is to give the authority to the Secretary of State.
When my noble friend replies will he state whether it was ever the intention of the department to impose on every parent with care who comes onto income support, without regard to the circumstances, the obligation to give that authority?
Paragraph 5.30 of Volume One of Children Come First carries the clear implication that that was never the intention. It expresses a view that there should be exceptions to the general requirement that the caring 1775 parent should be required to make and pursue a claim for maintenance through the child support agency in instances when,the child has been conceived as the result of rape, or where there had been incest".Those words convince me that it never was Government's intention that the parent should be under an absolute duty to give the authority and merely to be excused from co-operating further under the later provisions of the clause.
It is an important point. I have tried to illustrate it by the example of rape referred to in the White Paper. Where the rapist has been tried and convicted, the identity of the absent parent will be known. In such a case it would not be right to compel the mother to authorise the Secretary of State to pursue the man for maintenance of the child, leaving the mother only with the worthless right to withhold necessary information which the Secretary of State already has—that is, information relating to the identity of the man.
Perthaps one may contrast that example with the situation in which the mother never reported the rape, there was no prosecution, and, by legitimately withholding information under the provisions of this clause, the mother can prevent the child support agency from pursuing the matter further even though she has to authorise the Secretary of State to do so.
There are already enough reasons for a woman not to report a rape. I believe that this additional reason would be unfortunate indeed. I do not believe that the Government intended that position. I hope that my noble friend will accept the amendment.
The noble Earl moved three amendments at Report stage. They were designed to state on the face of the Bill what constitutes good cause for withholding information. My interest arises because Amendment No. 9 applies to the amendment now before the House. We were glad that in reply to the debate on Report my noble friend was sympathetic to the argument that good cause should, if possible, be spelt out, even though his advisers had been unable to draft a suitable amendment. He asked the noble Earl to allow time for further consideration of the amendment. I join the noble Earl in thanking the noble Lord for the discussions that took place.
In that debate on Report, my noble friend drew attention to the fact that what is set out in the amendment are criminal offences; and that for the Secretary of State to make a finding against an absent parent might be prejudicial to a later criminal trial. I do not think that that was a point well taken. The burden of proof to be satisfied before the Secretary of State's officer will be considerably less than that needed to prove a criminal offence. I cannot conceive of circumstances in which there was any possibility that the finding made by the child support officer would prejudice a later criminal trial.
My noble friend also pointed to the danger that if a definition of good cause were put on the face of the Bill, it might be too narrow and too inflexible for our purposes. I am inclined to agree. When the noble Earl's amendments were debated on Report, I stated that I sympathised with the thinking underlying them. When he summed up the noble Earl chided me slightly 1776 for not making my views clear. In order to put the matter straight, I have added my name to Amendment No. 9. I do not think that he will chide me, but he will find that once again my support is slightly equivocal. It is a case where the best ought to take priority over the good. I believe that the amendment can be improved.
I agree that it should be clearly established that rape or bodily assault on a wife or child should be grounds for the woman not to have to give information or to authorise the Secretary of State. Those are grounds based on criminal behaviour on the part of the man. However, there are other grounds on which the woman may properly not wish to bring the absent parent into the child's life. She may properly not require or permit that parent to support the child because in her judgment it would not be right or in the interests of the family for him to do so.
There will be many cases where such a judgment made by a woman will be perverse, erroneous and unacceptable. I hope that we shall try to put on the face of the Bill provisions that deal with those anxieties. I hope that we shall not close the door on the woman who does not wish the genetic father of a child, perhaps born as a result of the casual encounter in Wood Green referred to by the noble Earl on an earlier occasion, to play any part in the upbringing of that child.
I have made no secret of my agreement with the Government that absent parents should not escape their responsibilities, leaving the taxpayer to foot the bill. But there is another good—the good of the family. As a taxpayer I submit that there are cases where it is better that the taxpayer should foot the bill than that the child support agency should be let loose. Such cases should not be restricted to the criminal or quasi-criminal hard cases.
We must look at the issue in the knowledge that there is and will be substantial abuse. As many as 70 per cent. of single parents may now exist on income support. Many of them may also be supported in a backhand way by the absent father. However, that is not a reason for legislating on the basis that all single parents are social security scroungers.
I look for provision in the legislation requiring the parent with care to give the authority and to provide the information except where she can show that it is reasonable and in the interests of the family not to do so. In such cases there should be a right of appeal to a court. The appeal should be entirely outside the social security system because the reasonableness of the woman must in the ultimate be a matter of family law and not of social security law.
I wish to make a final suggestion which may help to resolve the difficulty in deciding cases where one woman's word must be believed in the absence of evidence to the contrary. I suggest that provision should be made requiring the parent with care in such cases to make a sworn statement of the facts on which she relies. She should set out in writing the testimony dealing with any relationship that she may have had with the father after separation from him and any support that she has received or will be receiving from him. The introduction into such cases of the 1777 possibility of bringing criminal proceedings for perjury might be what is needed to oil the wheels and will enable the Government to be a little more yielding on the matter than has previously been the case.
§ 5.30 p.m.
§ Lord Henley
My Lords, I am grateful for the remarks made by my noble kinsman and my noble friend about the debate that we had during earlier stages of the Bill and in our discussions last week. As I said previously, we are more or less at one on the issue; it is merely a question of finding the right form of words. I am also grateful to my noble kinsman for mentioning a commissioner's case, reference number R(SB)33/85, to which I referred in Committee. I made copies available in the Library. I hope that the anxiety about the corroboration of evidence has now been dealt with.
Good cause is the key to the issue. I understand the anxieties expressed by all noble Lords who have intervened both today and during earlier stages of the Bill. I accept that we need to reassure parents. They should understand what we are trying to do and why and how the child support agency can help them and their children.
I shall speak to the amendments in the order that they were spoken to by noble Lords and address first Amendment No. 9 tabled by my noble kinsman. We have been looking at how we can meet the anxieties put forward, in particular the feasibility of putting provisions on the face of the Bill. At Report stage I pointed out some of the difficulties. There can be a difficult balance between the need for precise definitions and the risk that by attempting such definitions we might exclude cases which on reflection we would not wish to exclude. In addition, there is the possibility that the Secretary of State could appear to be making administrative judgments about what may be criminal offences. I accept my noble friend's argument that there might be a different burden of proof. However, I believe that there is a genuine possibility of later prejudice in a criminal case.
An alternative and possibly better way forward might be to look at the consequences of an event rather than the event itself. For instance, if we were reasonably satisfied that the consequences might be harm or distress for the caring parent or her children, or something of that kind, that would be the trigger for the Secretary of State not to require co-operation. This seems to us a better approach. There are still difficulties and we need to find the right wording to fit properly into Clause 5. So I regret that I have not been able to bring forward an amendment in time for Third Reading.
However, work continues and I hope that it will be possible to find a suitable form of words which can be incorporated at a later stage. Rather than have a list, we wish to consider a general definition of the circumstances in which the Secretary of State might not require co-operation which takes into account the risks to the family. Clearly I cannot give a commitment on behalf of another place but I can give an assurance to this House that I shall be 1778 recommending to my right honourable friend in another place that such an amendment should be included if at all possible. I hope that that will satisfy my noble kinsman.
I now turn to Amendment No. 4 tabled by my noble friend Lord Coleraine. I am grateful to him for joining our discussions last week and for raising this matter. I fully accept the point he is making. It will form part of the work that we are doing in trying to find a suitable amendment on good cause. Our intention is that where a parent establishes the fact that she has good cause for not co-operating, she will be relieved of the obligation to authorise the Secretary of State to pursue maintenance, as well as the obligation to provide information. I hope that with those assurances my noble kinsman and my noble friend will agree to withdraw their amendments.
§ Earl Russell
My Lords, I warmly thank my noble kinsman for that reply. The line along which he suggests moving forward is constructive. The idea of looking at the consequence rather than at the cause is thoroughly practical. It also enables us to deal with cases such as that which I mentioned where there is a suspicion of child abuse. There might be an uncomfortable situation but one does not wish to make a definite assertion that someone has done something.
My noble kinsman has suggested a constructive and practical form of words; that is, "harm or distress to the caring parent or her children". It is worth considering whether one might take in the words, "or other people in the household". Cases have arisen where the grandmother of the children has been attacked by the father. That is equally undesirable and an incident that we should be concerned to prevent.
I understand that my noble kinsman cannot give any undertaking as regards what another place will do. However, I should like him if possible to be a little more forthcoming and perhaps to give an undertaking that the Government will recommend a form of words to another place. Is it possible for my noble kinsman to go that little bit further? As the noble Lord, Lord Mishcon, reminded us a few moments ago, this is the very last moment at which this House is able to have any input into the Bill. Is it possible to say that a form of words along those lines will be recommended by the Government to another place? That would be of great assistance to us if that were possible.
§ Lord Henley
My Lords, I am not sure that I can take the matter any further. I used the words "if at all possible" and I must always include that caveat. It may be completely impossible to draft such an amendment. I give an assurance to my noble kinsman that we shall try as hard as we can to find suitable words. However, I must include the cautionary words "if at all possible". I hope that my noble kinsman will accept that I shall press this matter as hard as possible. My right honourable and honourable friends in the department are fully cognisant of what we wish to do and we are at one on the matter. It is purely a question of finding the right words.
§ Earl Russell
My Lords, I thank my noble kinsman for that reply. I am sorry that it has not yet proved possible to find the right words. I hoped that it would be. I accept entirely my noble kinsman's good faith and goodwill and the entirely sensible and practical way in which he is pursuing the matter. On those terms, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Henley moved Amendment No. 5:
Page 4, line 8, leave out from ("can") to ("to"), in line 11, and insert ("comply with such regulations as may be made by the Secretary of State with a view to the child support officer being provided with the information which is required").
§ The noble Lord said: My Lords, in moving Amendment No. 5 in the name of my noble and learned friend, I shall speak also to Amendment No. 6 in the name of my noble and learned friend and my noble kinsman.
§ We have spoken at some length at both Committee and Report stages about subsection (6) of Clause 5, which seeks to ensure that the caring parent provides information needed to recover child support maintenance from the absent parent. We think it right that the sort of information needed should be set out in regulations, as this will be helpful both to the caring parent and to the child support agency, and this has always been our intention. However, it was pointed out on Report that subsection (6) as drafted enabled the Secretary of State to make regulations which could be used to ask for information from the caring parent which was additional to that needed for the purposes of obtaining maintenance from the absent parent. I promised to take the matter away and, after looking at it, we came to the conclusion that the drafting was in need of improvement.
§ These amendments will oblige the caring parent to comply, as far as she reasonably can, with regulations which set out what information is required from the caring parent to enable the absent parent to be traced and to assess and recover maintenance from the absent parent and I hope make our intentions in this matter perfectly clear.
§ Noble Lords have previously asked what sort of information will be needed. We have still to work out precise details of what will go into regulations, but the sort of information we shall be looking for is full name of the absent parent or, if not available, the name by which he was known to the caring parent, and somewhere where he can be contacted—whether it be a home a idress, his workplace or some other location. If that is not available, or is insufficient, we shall need other information which may help us to find him—for example, previous addresses, or employers, occupation or trade, places frequented, his national insurance number and car registration number. If there have been previous separations, it would be useful to know where the absent parent went on those occasions. Names and addresses of family or friends where he may be staying, or who may have information about him, could enable us to find the absent parent. These are just examples of the categories of information which could be needed to locate the absent parent and assess the amount of maintenance he should be 1780 paying. We believe that it will be helpful to everyone to know what sort of information we shall be asking for.
§ My noble kinsman supports Amendment No. 6 but has not put his name down in support of Amendment No. 5. If agreed on its own, Amendment No. 6 would remove from the caring parent the requirement to comply, so far as she reasonably can, with regulations which will prescribe the categories of information to be provided to the Secretary of State for the purposes of her application for maintenance. However, it also removes altogether the regulation-making power, which, as I explained, we believe to be important and which we are now proposing should be contained in subsection (6) (a). I assume that my noble kinsman's aim was to remove the wider power which the original wording seemed to give. In view of what I have said and the Government's own amendments, which I believe rectify the problem identified on Report, I hope that the noble Earl will not oppose Amendment No. 5 and will support Amendment No. 6 in his own name. I beg to move.
§ 5.45 p.m.
§ Earl Russell
My Lords, this is a great moment. I have never before appeared in such distinguished company on the Marshalled List. I am delighted. I originally tabled this amendment in Committee. I agree that I did not intend to deprive the Government of the power to obtain necessary information. My noble kinsman has given us a more precise list of the sort of information which will be sought. That sounds to me to be reasonable, practical and directed to the purposes of the Bill.
I did not put my name to Amendment No. 5 because I did not have the chance to read it properly, as I was engaged in my work until 11.30 yesterday evening. At that time, I did not have the opportunity to add my name to the amendment. Had I had that opportunity, I should have taken it.
This form of words is a great improvement. It is tighter. Although the practical difference may be small, depending upon one's reading of the original words, it is much tighter and sounds a great deal less arbitrary. Since legislation has a hortatory effect, that is important. I am happy to support my amendment and that of my noble kinsman.
§ On Question, amendment agreed to.
Lord Henley moved Amendment No. 6:
Page 4, leave out lines 16 to 19.
§ On Question, amendment agreed to.
Earl Russell moved Amendment No. 7:
Page 4, line 22, at end insert:
("(aa) shall not apply where the Secretary of State is satisfied that the person to whom it would otherwise apply had reached an arrangement with the absent parent that they would not be asked to contribute to the upkeep of the child; and").
§ The noble Earl said: My Lords, I begin by offering the apologies of the noble Lord, Lord Carter, for his inevitable absence from the Chamber. He has a previous engagement but had hoped to return in time to move the amendment. However, he will be back as soon as possible.1781
§ The effect of the amendment and Amendment No. 10, which is grouped with it, is to prevent the Bill from having a retrospective effect. I choose those words carefully because in a technical sense, this legislation is not retrospective, but it will have a retrospective effect. Where a couple have separated some years ago and have reached an agreement—possibly involving transfer of property but not involving maintenance—the effect of this Bill will be to upset that arrangement.
§ It seems to a good many of us that that could be unfortunate. There are a number of cases—some known to me personally, one of which I have mentioned before in this House—where the couple are satisfied with the maintenance and property arrangements which they have. They do not wish those arrangements to be upset and would find it extremely disturbing and confusing, and that may possibly give rise to expensive legal costs.
§ There is much sense in the maxim "if it isn't broken, don't fix it". There seems to me particular sense in that maxim where we are dealing with the after effects of a broken marriage. That is inevitably painful, with the best will in the world. When one has closed and wrapped up that chapter in a life, there is often a very strong will not to reopen it, particularly in cases where there is a second husband or a second wife. They do not wish to be dragged back into recrimination or near recrimination which has arisen in the past.
§ I cannot believe that the effect of not carrying this amendment would be other than to reopen a great many old wounds which are better left to heal. As far as I can see, that would do no good to the child and no good to the mother, nor do I believe that it would be of benefit to the taxpayer. I beg to move.
§ Lord Henley
My Lords, similar amendments were proposed on Report, which were somewhat wider in scope than those now before us. We opposed the earlier amendments, and one of the arguments I put forward against them was that they applied in any case where the children had been born before April 1992; that is, they would have meant that we could not seek maintenance even if the parents did not separate for several years after 1992. The noble Lord, Lord Carter, accepted that he did not intend that to be the effect and has taken steps in his new amendment to overcome that particular difficulty.
Despite the attempts by the noble Lord, Lord Carter, to improve these amendments by narrowing their scope so that they more closely reflect his intention, I still cannot support them. I do not think it is right automatically to take away from the child concerned any hope of ever obtaining maintenance from his father. I do not see how that can be right. It is unfortunately true that some parents wish to avoid all responsibility for their children. But I do not think that the Government should be encouraging them to do so or perhaps increasing the pressure on the mother to make such arrangements.
Parents have a responsibility for their children. The father has a perfectly clear duty in law to maintain his child and, as I said on Report, it would not be fair on taxpayers for us simply to accept that the existence of 1782 this type of agreement automatically precludes the agency from seeking maintenance from him. If there is some good reason in a particular case that the parent should not be approached—for example, because of some risk to the family—then we shall of course consider the position on the basis that applies in those cases.
Accepting these amendments would also mean that parents who have reasons other than those put forward by my noble kingsman can avoid payment of maintenance. It opens the door to fathers who are simply looking for a way of avoiding paying maintenance that they can perfectly well afford. Such fathers may well make some sort of arrangement with the mother to persuade her to tell us that an agreement exists when it does not. Both parents will therefore gain; the losers will be the children and the taxpayers, who of course may well be parents bringing up children themselves.
I do not accept that the Bill is retrospective in the usual sense. There is no question of seeking arrears for periods earlier than any application for maintenance. Parents have a duty to maintain their children and where children are involved—as my noble and learned friend has said on many occasions—there is no such thing as a clean break. One's liability to maintain the children continues. I hope that in view of my remarks my noble kinsman will feel able to withdraw the amendment.
§ Baroness Elles
My Lords, before my noble friend sits down, perhaps he could explain what would happen in this case: a husband and wife part and a written agreement is drawn up by lawyers to transfer property to the wife and child, stating also that the child will be fully maintained to the age of 18. Would that not secure the release of the absent parent from sending monthly or six-monthly payments to a child? The agreement may be a transfer of property, possibly settling a lump sum or paying the whole of the school fees for the next 10 years.
If my noble friend is not prepared to accept the amendment, which I assume would cover that kind of case, perhaps he could confirm that it is the kind of issue that would be covered in subsection (7) where it says,circumstances which will be prescribed".Are those the circumstances my noble friend envisages being prescribed in order to protect an absent parent from paying twice? It is surely in the interests of a wife and child who have been deserted that a settlement should be reached at an early stage before there is any change in the circumstances of the absent parent. That must be in the interests of the child.
§ Lord Meston
My Lords, the noble Baroness raises an important question but perhaps this is not the point at which to raise it. I hope that we shall come to a full discussion of this aspect of the matter when we reach Amendments Nos. 11, 12 and 45.
§ Lord Henley
My Lords, I thank the noble Lord, Lord Meston, for making the point that I intended to make. My noble friend's remarks are the subject of Amendments Nos. 11, 12 and 45 and I hope that she 1783 will come back to them on that occasion. Perhaps I may add that this is Third Reading and I had already spoken and sat down before her intervention.
§ Earl Russell
My Lords, I thank my noble kinsman for that reply. I cannot say that I am as fully in agreement with it as I have been with some of his previous replies. However, he made one point which we must accept as valid. That is the point with regard to not excluding the woman from ever having any hope of maintenance. We were concerned with valid agreements validly entered into. I concede that in some circumstances those arrangements may come unstuck and need reviewing.
We who support the amendment concede the other arguments advanced by my noble kinsman. However, we do not concede their right to reign in the sort of lonely eminence to which the Government's case has raised them. My noble kinsman said that the parents have a responsibility. That has never been denied from these Benches. It has never been denied in the argument for the amendment. I was concerned only to argue the case for a situation where there is a perfectly valid, satisfactory agreement already in place between the two parents, and both are happy that it should continue
My noble kinsman said that the taxpayer had an interest. Of course he does. That also has been conceded from these Benches at every opportunity. But I cannot see that the taxpayers' interest is unsatisfied if there is another agreement to maintain the family which is satisfactory to both parents and maintains the children. The desire to pursue fathers to pay maintenance is becoming a little obsessive in the way it arises in the arguments for the Bill.
However, having conceded the point regarding the validity of the argument for not ever excluding the woman from seeking maintenance, I do not wish to press the amendment to a Division. I ask my noble kinsman whether he can think again about some more tightly-drawn way of excluding perfectly valid, satisfactory past settlements from the operation of the Bill. If he cannot, he will do an awful lot of harm and very little good. Nevertheless, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Henley moved Amendment No. 8:
Page 4, line 24, at end insert:
("(8) A person with care who has authorised the Secretary of State under subsection (1) but who subsequently ceases to fall within that subsection may request the Secretary of State to cease acting under this section.
(9) It shall be the duty of the Secretary of State to comply with any request made under subsection (8) (but subject to any regulations made under subsection (10).
(10) The Secretary of State may by regulations make such incidental or transitional provision as he thinks appropriate with respect to cases in which he is requested under subsection (8) to cease to act under this section.").
§ The noble Lord said: My Lords, Amendment No. 8 responds to a point made by the noble Lord, Lord Carter, in Committee. The noble Lord was concerned with the position of a parent who had given an authorisation under Clause 5 and subsequently ceased to receive any benefit to which Clause 5 applied. I 1784 undertook to consider whether an amendment was necessary to ensure that recovery action could cease if she wished. This amendment is the consequence.
§ As I said then, we believe that the parent with care who leaves benefits should be able to decide for herself whether she wishes the Secretary of State to continue to recover maintenance for her. This amendment gives her that choice. If she wishes maintenance recovery to stop she can ask the Secretary of State to cease action and the Secretary of State is bound to comply. If she still wishes to receive maintenance without any break or need for a new application under Clause 3, then she need do nothing and recovery will continue on her behalf. We expect that many parents will prefer the latter. The move from benefit into work will often have been made on the basis of a regular and secure income from maintenance and it will not be in the family's interests for that to be interrupted even if only for a short period. The important thing, as I have already made clear, is that it is for the caring parent to decide.
§ I hope that in the light of my remarks noble Lords will feel able to accept this amendment. I beg to move.
§ Lord Renton
My Lords, I do not wish to be obstructive, but I am puzzled as to why the Secretary of State needs to be given the power laid down in subsection (10) to make regulations to cover those cases which are requested under subsection (8). They are matters of detail. The idea that, in addition to the scores of other regulations which may have to be made under the Bill, there should be this further power to make these incidental or transitional provisions on these matters of detail, defeats me. Perhaps I have missed something.
§ 6 p.m.
§ Earl Russell
My Lords, I take the point made by the noble Lord, Lord Renton, about regulations, which was well made. But, while accepting it, for the second time today I offer my support to a government amendment. The basic principle behind it is sensible—namely, that the caring parent should not be forced to continue to go for maintenance when it seems unsuitable. I also warmly accept the general principle which my noble kinsman outlined—that it is for the caring parent to decide. I suggest that acceptance of the principle might supply a way forward for the later stages of the Bill.
§ Lord Henley
My Lords, I shall respond briefly to the point made by my noble friend Lord Renton. The powers are included in case they are needed as regards a point of detail on the arrangements for bringing a maintenance assessment to an end. It is quite clear that the arrangements are transitional and incidental and do not affect the basic position of the parent's ability to prove. I hope that my noble friend will accept that there is a need for the powers in this instance.
§ On Question, amendment agreed to.
§ Amendments Nos. 9 and 10 not moved.
§ Clause 7 [Role of the courts with respect to maintenance for children]:
Lord Meston moved Amendment No. 11:
Page 6, line 15, at end insert:
("() This section shall not prevent the court from exercising any power which it has to make a maintenance order in relation to a child if the order is made as part of a final order in ancillary relief proceedings in which capital is provided for housing the dependent children.").
§ The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendments Nos. 12 and 45, both of which stand in the name of the noble Lord, Lord Mishcon, who asked me to deal with these matters. Uncharacteristically, he delivered his brief a little late so if there is any failure on my part—I hear a noble Lord asking about the fee; I do not know about the fee. I am sure that that will arrive promptly.
§ These amendments return to the question raised a moment ago by the noble Baroness, Lady Elles; namely, that of balancing the obligation of a father (I use the term "father and mother" if possible) to make payments out of income and his ability to provide capital in lieu. It is a situation in which we have to look not only at the interests of the child but at those of the mother and the father, because in these circumstances they often hang together.
§ The aim of the amendments is to allow property substitution whereby the value of any property transfer or any other capital settlement can be taken into account when assessing maintenance. Without that change to the Bill absent parents may well be tempted to resist property transfers. There may be an increase in homelessness among one-parent families.
§ Less dramatic than that, but still a serious point, is that there will be discouragement of what has come to be known as the clean break. It is a truism that there never can be a completely clean break where there are minor children still to be considered. However, it is still desirable, not just for the adults but for the children, if their parents can resolve as completely and finally as possible everything which has hitherto connected them. At both the Committee and Report stage the noble and learned Lord the Lord Chancellor indicated that there were two aspects of the formula that would ensure that, where there was a transfer of property, the award to the children would be reduced to reflect the absent parent's loss of property and his increased housing costs.
§ The noble and learned Lord stated one aspect of the formula that would have such an effect: the reduction in the lone parent's housing costs would lead to a reduction in the absent parent's maintenance payments. That is open to question in a number of ways. First, the lone parent's housing costs are taken into account only in working out maintenance when the lone parent is working. At present about 70 per cent. of lone parents are on income support. In all those cases, even if the transfer of property results in lower housing costs for the lone parent, that will not be reflected in the maintenance costs of the absent parent.
Secondly, if the lone parent is employed, her housing costs do not affect the absent parent's maintenance payments unless her income is relatively high and exceeds the level of her exempt income. The
White Paper stated that there would be few cases where that would occur. In volume 1 at page 13, it states that,
The vast majority of the mothers who have the care of children either do not work or have earnings which will be below the level of their exempt income".
So that of itself is not a great encouragement to the proposition put forward by the noble and learned Lord.
§ Thirdly, research undertaken by the Family and Community Dispute Research Centre at the University of Newcastle, shows that most lone parents who take over the family home have higher housing costs. Therefore the transfer of the family home would result in a decrease in the lone parent's contribution to maintenance. In consequence the absent parent's maintenance payments would be increased.
§ While the noble and learned Lord the Lord Chancellor was correct in stating that a reduction in the lone parent's housing costs would result in lower maintenance payments, the points I have made show that that would be relevant in only a few cases. In almost all cases the lone parent will either be unemployed or not earning enough. In the majority of other cases the transfer of property will not result in higher housing costs.
§ The second aspect of the formula which the noble and learned Lord referred to as reducing the maintenance award is the way in which the absent parent's housing costs are taken into account in working out maintenance. It is quite clear that there will be some reduction in the award through that mechanism, but it would not be sufficient. In addition, some absent parents will find that they are unable to take up mortgages without a down payment. That is where one has to look carefully at the likely effects of the Bill as it stands at present. The majority of absent parents will find that decreases in their maintenance payments resulting from property transfer will not equal the reduction in their housing costs which would have resulted if the property had been sold and the profits divided.
§ I shall not weary noble Lords with a detailed example. I ask your Lordships to accept that at face value. By agreeing to a property transfer an absent parent could find himself considerably worse off than if he tries to insist on a sale of the property. If property substitution were allowed and properly reflected, the level of maintenance payments could be reduced where there was a property transfer. The absent parent would not be substantially worse off.
§ In that illustration I have balanced the transfer of property outright and the sale of property. There is a half-way position. That is one with which I am more familiar and which has been referred to at earlier stages of the Bill. It seems to me and others more experienced than myself, that the Bill fails to make a sufficient or any quantitative or qualitative distinction between a father who says "I will transfer to the mother all my interest in the home outright" and a father who says "I will let her have the benefit of my half-interest in the property for so long as may be necessary until the children reach a certain age or until she remarries or starts to live with another man. On that state of affairs arising I shall want my half-share 1787 back". In both cases what is envisaged is the provision of a home for the children and the mother, but there is no distinction between the housing costs on either side. In other words, the housing costs of the parties will be precisely the same. It appears that the result of the formula will be exactly the same. A distinction should be made between the father who is prepared to give up everything to his wife—or the mother of the children—and the father who insists on retaining some deferred interest in the property.
§ Those cases in which the father retains a deferred interest have come to be known to the lawyers as "Mesher orders". They have been heavily criticised in recent years as storing up problems for the family. They can create upheaval and force the mother to sell up at an inconvenient moment. They can create upheaval for the children, who may, strictly speaking, still be children in the home, or young adults. If there is no incentive to the father to give up his interest in the home completely, as distinct from simply asking for the deferment of his interest, there will be a revival of those problems.
§ I can also see the potential for further argument about chattels, a subject beloved by family lawyers. We will all be familiar with cases in which the parties agree almost everything but happily bicker away at considerable expense over the furniture. Again, there has to be some incentive to the adults in the case to behave like adults and not to argue about such things. If there is a risk of a higher obligation to pay child support, that incentive will not be there. A great number of cases which in settlement allowed for a discount in child maintenance will, if the Bill becomes law, have to be retrospectively unscrambled—at-tempts will be made retrospectively to unscramble them.
§ Accordingly, I suggest that the absent parent will be worse off if he agrees to a property transfer. If as a result of this Bill the absent parent is worse off and is perceived to be worse off if he agrees to a property transfer, there will be fewer property transfers in the future, and potentially lone parents will have to make calls on local authority housing stock, which is in short supply. There is also a risk in extreme cases of increased homelessness and increased cost to the taxpayer.
§ With that rather lengthy introduction, I shall now speak briefly to the details of the amendments. Amendment No. 11 retains the power in the court to deal with the family finances as a whole. That does not mean, as I understand the intention of Amendment No. 11, that the court must disregard the formula. However, it saves the mother having to go through two doors, as it was put at an earlier stage in these proceedings. In other words, she can go to the court and the court can deal with the matter of the child as well as the matter of the maintenance and other aspects of the case for the benefit of the mother.
§ I heard the other day an account of the Australian experience of their legislation which is remarkably similar. I wish I had heard it before Second Reading and been able to take greater account of it in the debates on the Bill. The recent Australian legislation, which is to a similar effect, is rather better in some 1788 respects, but it has the same broad purpose. That is, to transfer responsibility from the courts to an administrative agency. One of the respects in which it is better is that one of the parties can apply to the court to be allowed to depart from the Australian equivalent of the formula. Amendment No. 11 is a modified version of that.
§ Amendment No. 12 provides, by addition to Clause 9, that the amount of child support maintenance determined in accordance with those provisions may be adjusted to take account of the value of the property transferred. The second paragraph of the amendment ensures that the risk is not taken of leaving these matters dangerously to the courts because the Secretary of State may by regulations make provisions as to the adjustments to be made. Finally, Amendment No. 45 adds to the special cases listed in Clause 34 a specific potential—I put it no higher—for a capital settlement to he taken into account in regulations where such a capital settlement is made in lieu of child maintenance. That is consistent with the Law Commission's recommendations on illegitimacy and the subsequent legislation. I apologise for such a lengthy introduction. I beg to move.
§ 6.15 p.m.
§ Lord Simon of Glaisdale
My Lords, I support the amendments. These composite arrangements are very much to the advantage of parties whose marriage has broken up and are often easier to arrange than when their components are argued over piecemeal. Once that is accepted it seems to me that there is no alternative—indeed it is desirable—but that the courts should deal with it. The circumstances are of infinite variety. It is quite impossible to deal with it by the impersonal imposition of the formula. I therefore support the amendments.
§ Lord Mishcon
My Lords, I shall briefly follow upon the noble Lord, Lord Meston. Never was a brief more worthily delivered. I rise only to deal with one of the amendments covered in his very adequate and forceful speech. Amendment No. 45, which he mentioned at the very end of his address, adds to the special cases a capital settlement which has been made in lieu of child maintenance. The object of the exercise, as he rightly said, was to ensure that in those special cases one could protect clean break capital settlements from being upset by a subsequent claim for child maintenance.
The reason for my rising to speak is purely to add a very up-to-date and contemporaneous recommendation. The House will know of the activities of the Select Committee on Social Security of another place. It published a report as recently as 30th April, only a couple of weeks ago. None of us wants to introduce politics into this amendment, or into any amendment on this Bill, but the majority of members on the committee are supporters of the Government. The committee pointed out its anxiety about the impact which the Bill is likely to have on clean break settlements, particularly those made in the past. In giving evidence to the committee, I should point out that the Law Society drew attention to the fact that 1789 Section 8 of the Social Security Act 1990 is already causing similar problems and that solicitors are therefore making underwriting provision for this eventuality in drafting clean break settlements. Under the Bill however such arrangements would be void.
The noble Lord, Lord Meston, mentioned Australia in a very interesting way. The problem does not arise in Australia, I am told, because the child support scheme there cannot be applied retrospectively to cases already settled by the courts. That is not the position at present under this Bill. Amendment No. 45 will deal with that situation. However, I mention the matter at this stage for the sake of economy of time so far as concerns the House and because, as I said, the noble Lord, Lord Meston, grouped that amendment with the amendments to which he spoke.
§ The Lord Chancellor
My Lords, we have had the advantage of discussions on this subject both in Committee and on Report. The noble Lords, Lord Meston and Lord Mishcon, have contributed to them. We appreciate that there is an interaction between the transfer of property or capital for the benefit of the children and the payment of periodic maintenance for those children. There are several points I should like to make so as to explain more fully why we believe that the formula we propose both recognises and embraces that interaction. Of course, in the nature of things, it cannot do so with absolute precision; but I believe that it does so in principle. As the noble Lord, Lord Meston, and I have said, there can be no question of a clean break where there are children. That is because the parent continues to have responsibility for the child, whatever the state of the relationship between the parents may be.
One of the key objectives of these proposals is that they should produce a clear, consistent and predictable outcome in all cases involving child maintenance. I believe that that objective has been widely supported. The present system, which is essentially based on discretion, has contributed to the variability and unpredictability which we seek to avoid. But Amendment No. 11 would return all cases of child maintenance to that discretionary system whenever the question of capital or property transfer was also involved.
Further, as has been said in previous debates on the subject, the fact of a property transfer does not in itself establish anything about the financial circumstances or consequences for the parties. A property transfer can consist of anything from the acquisition by the caring parent of a substantial unencumbered asset to the acquisition by that same parent of a quite considerable liability, often in the form of a rather heavy mortgage. It is also true, as mentioned by the noble Lord, Lord Meston, that chattels may well be involved. He described them as "beloved" of family lawyers. Of course, one understands that they have to deal with them for that or for other reasons.
It is not therefore the fact of the transfer which is the key issue; the key issue is the financial consequences of the transfer. I invite the House to agree that the formula does indeed take account of the wide variety of financial consequences which can 1790 ensue. Some examples are set out in the White Paper. Moreover, I have by way of correspondence supplied other examples to some noble Lords.
If the caring parent has acquired equity in the family home—I take the typical case of the mother—then her housing costs will be lower than would otherwise be the case, her exempt income will be lower, her assessable income higher and her contribution to maintenance higher. The noble Lord, Lord Meston, suggested that, in some situations where the caring parent is not working or has income lower than her exempted income, the trade-off, as we call it, would not work. I suggest that it would work even in those cases. If the absent parent has little or no capital because of a property transfer, his own higher housing costs will be taken into account in the reduction of his responsibility. If the absent parent, because he has forgone his share of the family home, has little or no capital with which to start again in the housing market, his housing costs will be higher, his exempt income higher, his assessable income lower and his maintenance obligation lower.
In an effort to try to make a concrete argument, perhaps I may take the example mentioned by the noble Lord, Lord Mishcon, on a previous occasion. I refer to Example 7 in the White Paper. It shows the absent parent trading up by moving from rented housing to owner occupation. When he increases his housing costs in consequence, the children forgo their entire share of the income which was previously available for maintenance and is now expended on the absent parent's housing instead. It is true that the maintenance obligation does not fall by the amount that he puts out on the new housing. But the maintenance share of that income is entirely removed. The children were never entitled to the whole of his income; they were entitled only to a share of it. Therefore, to the extent to which that share is affected by the transfer, the children's income from maintenance in respect of it is reduced. In that example the children's maintenance is immediately reduced by £27 per week. That is a considerable sum. The loss to them will be for as long as the absent parent is liable to maintain the children. I do not think that any noble Lords who support the amendment are asking for the "trade-off" to go any further than that.
I believe I am right in saying that in Example 7 the youngest child is 10 years of age. Therefore, from the age of 10 to 16 years, which is the minimum period, the result would be a reduction in the maintenance of something in the order of £8,500 in respect of that child. That shows how the increase in housing costs resulting from the transfer of property does affect the maintenance formula in a reasonable way and in the correct direction.
There are various pieces of research on the subject. I have studied research which shows that three-quarters of those parents who were owner occupiers and who left the family home, subsequently re-established themselves as owner occupiers. There is nothing in our proposals which will prevent that happening, as the example I chose demonstrates.
The amendment refers also to capital transfers. The formula deals with this in an exactly similar way. If the 1791 capital is invested, the income that it produces will be added to the caring parent's income. That will increase her assessable income and flow through into a reduction in the absent parent's maintenance in the way I described. And again, because the absent parent has lost capital, his assessable income will be lower and he will pay less maintenance. Thus his transfer of capital is already reflected by the formula.
My noble and learned friend Lord Simon of Glaisdale expressed some fears that there may in the future be a greater reluctance to transfer the family home, or institute such agreements, and that the children a may suffer as a result. I do not see why there should be any grounds for such fears. It will remain the case, as it is now, that the welfare of the children must come first in the making of any settlement. The courts will also be fully aware that the formula for child maintenance will adjust to any settlement which is mad on the lines that I outlined. Indeed, the formula is more sensitive than that and will also adjust to any subsequent changes in housing costs of any of the parties—changes of which the court can at the time of the settlement have no foreknowledge.
The noble Lord, Lord Meston, referred to the Australian scheme. Of course, we had information about that before the Bill was put together. Naturally such information is gathered as time goes on. However, I believe I am right in saying that the Australian scheme does not allow housing costs to be taken into account in the formula. Hence the need there to allow the courts to modify formula awards to take account of transfers of the family home.
It is true that the formula makes no distinction between total transfer of equity and Mesher orders. The formula takes the circumstances as they are. Therefore, the circumstances are the same so far as concerns the results—that is, the financial consequences to the parties—whether the transfer is made on the basis of Mesher orders or outright. If anyone can suggest in any more detail the relevant distinction between the two, we shall be glad to consider the matter further. However, I have given this a certain amount of thought. I believe that, so far, we have hit on the best way of dealing with the matter by looking at the financial consequences to the parents as a result of the transfers and taking them into account in the formula in the way that I have outlined.
Amendments Nos. 12 and 45 would enable the amount of child support maintenance determined under the formula to be adjusted where there was a transfer of capital. We agree that it is right that the effects of a transfer of property or capital should be reflected in the amount of periodic child maintenance paid. These amendments are not necessary to achieve that objective. We want to incorporate the results in the formula; and Amendment No. 45 does nothing more than what we intend to do anyway.
As I have already explained, the formula already takes account of the consequences for both parties of a property or capital transfer. It can take account of a wide variety of such circumstances. To that extent, therefore, Amendments Nos. 12 and 45 are unnecessary. But Amendment No. 12 in particular would also amount to double counting. In the 1792 example quoted in the White Paper to which I have referred, the absent parent Robert increases his housing costs when he buys a property and his children forgo £27 per week in consequence. This is their entire share of Robert's income which was previously available for maintenance and is now devoted to Robert's own housing costs instead. Over the remaining period of Robert's continuing duty to maintain his children, that £27 per week will amount to a minimum of £8,500. The children's maintenance is already abated to reflect the fact that their absent parent has to start again with the purchase of a home for himself. If we did it as Amendment No. 12 suggests, we should be doing it twice, as I see it.
Finally, there are some practical difficulties with the proposition contained within Amendment No. 12—that the value of the property should be taken into account in adjusting the formula. It is certainly the case that we canvassed the possibility in the White Paper that there might be some abatement. But we have considered the matter further and have been persuaded that to do so would constitute just the sort of double counting I have described. It is not a case of us not having considered the possibility when we put forward the proposal, but mature consideration shows that the formula does quite well by taking proper account of such matters.
Among all the comments we have received on the point, no commentator has been able to suggest how we might set about achieving a fair and reasonable result. It is clear that transfers often reflect deals containing many elements. The quantum of child maintenance is but one such element. They can all be valuable considerations, including the child maintenance obligation. To assign a precise value to that portion of the property transfer which might be deemed to be offset against child maintenance would be a monumental task. Many would argue that it would be a hopeless one. As my noble and learned friend Lord Simon of Glaisdale pointed out, in many cases the answer is arrived at on a global basis. It is because of such complications that we have preferred to deal with houses and their value by building actual housing costs into the formula rather than by going for notional offsetting values related to the benefit to the child of being housed through a capital transfer.
The formula which deals with the parents' actual financial situation is more responsive to their circumstances. It reflects the consequences of any transfer and adapts to any subsequent changes. The operation of the formula requires no minute investigation into the parties' intentions in reaching property settlements.
Amendment No. 45 reflects the recommendations of the Social Security Committee to which the noble Lord, Lord Mishcon, referred. We have seen its recent report which touches on those matters. We are considering carefully that initial report which focuses on the Bill's alleged retrospective effect in cases where in the past capital settlements have clearly been made in lieu of child maintenance. We look forward to its full report which also promises to consider the Bill's other implications on the way property is dealt with on divorce. I cannot say at this stage that it will lead 1793 to changes in the Bill, but I can assure your Lordships that we shall carefully consider what it says, as well as recognising your Lordships' deep concern about those matters. We shall go thoroughly into any novel concerns raised in the report.
The noble Lord, Lord Meston, apologised for the length of time he took to introduce this matter. I must do the same in respect of the length of time I have taken to answer, but the matter is somewhat complicated, and I feel it right to try to set out in as much detail as I can what our answer is. I hope that in the light of that explanation the noble Lord may feel able to withdraw the amendment.
§ Lord Meston
My Lords, I am grateful, and we should all be grateful, to the noble and learned Lord for his full response to all three amendments. I am also grateful for the succinct support I received from the noble and learned Lord, Lord Simon of Glaisdale. His reference to composite arrangements put in a few words what I had endeavoured to say at greater length.
As has already been indicated, in general terms the Bill takes out one element from the negotiations to achieve, if not a clean break, the next best thing to it—as final and as satisfactory a settlement as possible of disputes when the family breaks down.
The noble and learned Lord the Lord Chancellor said that the financial consequences of the variety of settlements or orders that the court can make have been taken account of. I have suggested, and I shall continue to maintain, that the interaction to which he referred does not sufficiently take into account the variety of results which can be achieved and that the adjustment in the housing cost allowed for is insufficient. As I understand it, he frankly accepted the argument that the Bill does not—he suggested that it cannot—distinguish between the outright transfer where the father forgoes his interest in the home and its contents completely and the Mesher order, or some variant of it, when he forgoes his interest but for a limited period only on a variety of terms. That is now at least understood and accepted. It is something which is greatly to be avoided if at all possible, because it does the children no favours to have a revival of the Mesher order, with all its problems not just for the children but for their mother, even in middle-age.
That said, I do not intend to press Amendment No. 11. It is something which another place may need to look at. I accept the force of what the noble and learned Lord said about Amendment No. 12 as presently drafted, in that it may have an unintended double effect. I also note with interest what he said about Amendment No. 45. It is a matter of concern that the Bill may have a retrospective effect on past settlements which were entered into in good faith and provided for a complete capitalisation or a discount in lieu of child maintenance. I am a little surprised that the Government feel unable to accept Amendment No. 45 which gives them nothing more than an enabling power. I do not intend to speak further on that amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1794
§ Clause 9 [Maintenance assessments]:
§ [Amendment No. 12 not moved.]
§ Clause 13 [Powers of inspectors]:
Lord Meston moved Amendment No. 13:
Page 9, line 7, at end insert:
("() An inspector shall not exercise the powers conferred upon him by this section until he has made all reasonable endeavours to obtain all such information and documents as he may reasonably require for the purposes mentioned in subsection (2) by written request to the occupier of the premises to be inspected.
() An inspector shall not exercise the powers conferred upon him by this section until after the expiry of seven days' written notice to the occupier of the premises to be inspected specifying the date and time of any intended entry and specifying or describing the information and documents required.").
§ The noble Lord said: My Lords, I should like to speak to all the amendments to Clause 13 which stand in my name; that is to say, Amendments Nos. 13, 14, 15, 16 and 19. Whatever view one takes of the merits and likely effectiveness of the Bill overall, the House as a whole has been and should be properly concerned to scrutinise Clause 13, which creates and gives new powers to a new force of inspectors.
§ The view your Lordships take of the proposals set out in the amendments in my name may influence your decision if the noble Lord, Lord Mishcon, moves Amendment No. 21 in an endeavour to persuade the House that Clause 13 is beyond repair by amendment. Clause 13 is drafted in such a way as to give wide and general powers to inspectors to enter a wide range of premises and once there to question anyone present and to call for and examine documents.
§ A number of points have been made about these powers at earlier stages of the Bill and I shall briefly summarise them. First, the inspector needs no warrant or similar prior approval before he exercises his powers. The only authority he needs, as the Bill is drafted, is his certificate of appointment and he has generous discretion as to how and when to exercise his powers.
§ I am grateful for having been sent a copy of a letter from the noble and learned Lord the Lord Chancellor to the noble Lord, Lord Mishcon. As I understand and recollect it, the letter seeks to meet part of the anxiety by requiring a specific authorisation in certain circumstances. Perhaps the House can be assured of the Government's intention in that respect.
§ Secondly, the premises concerned are not those of the absent or alleged parent but those of employers and employment agencies. Thus, not only are the premises and the privacy of third parties being intruded upon, but sensitive questions of paternity, actual or alleged, are being pursued by the authorities in places of work.
§ Thirdly, the third party whose premises are entered faces a criminal sanction if he does not co-operate with the inspector. At Report stage the noble and learned Lord the Lord Chancellor emphasised that it was surely necessary to have effective mechanisms to achieve the ends of the Bill. If we accept that proposition, it does not mean that we cannot look 1795 carefully, as indeed we have already, at the width of those powers to see whether any reasonable safeguards can be written on the face of the Bill.
§ The noble and learned Lord pointed out at an earlier stage that the clause is based on powers created by earlier social security legislation. Indeed it is, but not everything one buys off the peg necessarily fits well. Similar powers given in the 1975 and 1986 social security legislation are concerned with the liabilities of the employer himself to make contributions and with the investigation of industrial accidents, not with the private life of his employees. These amendments seek to give further safeguards and they are largely and unashamedly borrowed from other legislative pegs.
§ Amendment No. 13 makes it an express precondition of the inspector's exercise of his powers that he has tried to get what he needs by other inquiries. The noble and learned Lord the Lord Chancellor was good enough to indicate at an earlier stage that this would normally be the case and the amendment would make it clear on the face of the Bill. I suggest that it should do so for the reasons I have already stated.
§ The second part of Amendment No. 13 makes it a further precondition that the occupier of the premises is given seven days' written notice, together with a date and a time for the intended entry and details of what information and documents he will be required to provide. This should be good practice in any event. It should also be remembered that the premises concerned are defined sufficiently widely in Clause 13(3) to include premises which are in part domestic. For example, they could be the flat above the shop or the home which is also an office.
§ In the context of the Bill, to have the provision which I suggest will minimise confusion and any embarrassment and make the task of the inspector easier. In the circumstances of this clause, giving prior notice is unlikely to defeat the inspector's purposes. He does not need an element of surprise and, conversely, the occupier is entitled to notice of the intention to enter and notice of what he will have to produce.
§ Amendments Nos. 14 and 15 are concerned only with drafting in that they simply remove what seemed to me to be surplus words in the description of an employment agency in Clause 13(3) (b) to produce something closer to the definition in the Race Relations Act 1976. If the words I seek to remove have any purpose, of course I should not wish to press those two amendments.
§ Amendment No. 16 removes from subsection (4) the express ability given to the inspector to question people found on the premises either alone or in the presence of any other person. At Report stage anxiety was expressed about the possibility of an employee's personal affairs being investigated in the presence of children, talkative tea ladies or their male counterparts. Such is clearly possible, particularly given the wide range of premises which could be entered, including, it occurs to me, a school, a part domestic property or a public place. The amendment seeks to require private discussion as the normal course to be taken, leaving the person being interviewed with the 1796 option of asking for some other person to be present to assist or to witness what is going on. I readily accept that the point about children is dealt with in the amendment of the noble and learned Lord the Lord Chancellor, Amendment No. 17.
§ Finally, Amendment No. 19 provides that an inspector should not retain documents any longer than necessary and also that he should give a receipt and copies if asked. These are reasonable requirements in the interests of all, assuming that he has the right to take documents away, which itself is not entirely clear. That seems to me to depend on how widely the words "furnished" and "furnish" in the Bill are to be construed. Even if they do not enable him as of right to take documents away, it seems to me that it would be useful to have such provisions if documents are taken by agreement. I beg to move.
§ 6.45 p.m.
§ Lord Mishcon
My Lords, I think it would be appreciated by the House if I made some remarks now on my amendment, which has not yet been moved, to leave out Clause 13. Your Lordships will appreciate that then we need not have two debates. I drew attention at every stage of the Bill to the dangerous powers that were being given to inspectors. In the way in which we sometimes talk of it in the High Court, I cried throughout your Lordships' corridors, "Freedom of the subject".
At Report stage the noble and learned Lord said that he would look into the powers that were given to inspectors under this clause. He was good enough to write a letter to me dated 14th May and I have his permission to read it to your Lordships. I feel that it should be in the Official Report in view of the action which I propose to take. Copies of the letter were sent to those who had taken part in the discussion. It said:During the Report stage of the Child Support Bill, I promised to inform you and the other Lords who spoke in the debate on Clause 13 about the powers of inspectors.I have considered very carefully all that was said at Report and I would stress that I fully appreciate the importance of the arguments put forward and feel that there is some room for manoeuvre where we may be able to tackle some of your concerns. I cannot promise to put amendments down by Third Reading but my Right Honourable Friend the Secretary of State for Social Security has been looking at whether it may be possible to amend Clause 13 with a view to bringing forward amendments in due course.As I said at Report, officials in the Department of Social Security are holding meetings with a representative group of employers' organisations which act as a consultative group on the development of working procedures for the Child Support Agency".I end my partial quotation at that point and make the observation in parenthesis that I hope it is not just employers' organisations that will be consulted. I hope that employees' organisations such as the TUC will also be consulted because obviously it is employees' rights that will be interfered with in the event of inspectors carrying out the powers under Clause 13. The powers may merely cause inconvenience to employers. The noble and learned Lord's letter continued:Its aim is to minimise the impact on employers and DSS have been actively seeking their advice and agreement on Inspectors amongst other things. The Employers Panel are content with our current proposals for the use of inspectors.1797The negotiations with the Panel are, of course, ongoing and we will continue to consult them on any change we might consider.As the Bill is drafted at present, and as I said at Report, an inspector will carry a 'warrant' or certificate of appointment, saying that he is appointed under section 13 for the purposes set out in the clause. This certificate of appointment will be authorised by a senior official on behalf of the Secretary of State who will need to satisfy himself that the inspector is a fit person to be vested with the powers laid out in clause 13.We intend to use inspectors only in those rare cases where other methods of obtaining information have failed, i.e. from the parents themselves, or postal or telephone enquiries direct to the employer. We had envisaged that inspectors would be used where an employer or self-employed absent parent had requested a visit, had not responded to reminders, or has refused to supply information, or where the wage details were particularly complicated and it was easier for the employer to have a visit. In addition, there may be comparatively rare occasions when it is necessary to see or identify the employee. In all these circumstances, the inspector would normally make an appointment to visit. Where the Child Support Agency is trying to contact an absent parent, we propose to continue the existing practice of sending the employer a sealed envelope addressed to the employee, and the employer can either post the letter on to the employee at his home address, thereby keeping their involvement to a minimum, or they can pass it directly to their employee. This letter will ask the absent parent to contact the Agency and there need be no further involvement by the employer if the absent parent does so. If the absent parent does not contact the Agency, further inquiries would be made by letter or telephone to the employer.We hope to bring forward an amendment to bring the powers more explicitly in line with the use we intend to put them to. This would mean that the majority of visits would not involve the need for a certificate of appointment, merely the official identity card. It is only in cases where the employer or the self-employed person proves to be uncooperative that the powers will be needed. We propose to restrict the authorisations to act under Clause 13 to cases where other means of obtaining the information, including an ordinary visit by appointment, have failed. A separate authorisation would be given by authority of the Secretary of State for a particular officer to visit a particular employer or self-employed person. This authorisation would only be issued when there was no other option left".The substance of the next passage that I wish to quote is revealed in an amendment standing in the name of the noble and learned Lord on the Marshalled List. His letter continues:Finally, I can assure you that we will be bringing forward an amendment to exclude children from the list of people who can be questioned by the inspector.I hope I have made things a little clearer and that you will feel able to reconsider your amendment to leave out Clause 13 in the light of the proposed amendments".I end my quotation from the letter at that point having already said that the noble and learned Lord stated in his letter that he would send copies of the letter to other Members of your Lordships' House who are interested in this matter. In the light of this letter I shall take a certain course when we reach my amendment to leave out Clause 13 because, on the face of it, I shall not need to move that amendment.
§ Lord Simon of Glaisdale
My Lords, the noble Lord, Lord Houghton of Sowerby, has enjoined us on several occasions to watch where we are going. This is a good place to take stock of what is involved in the Bill. This provision by no means stands alone but it is one of the most offensive of the Bill's provisions. I am glad that the noble Lord, Lord Meston, moved the amendment to mitigate in some measure the harshness 1798 and outrageousness of this clause. I am grateful to have received from my noble and learned friend a copy of the letter, which the noble Lord, Lord Mishcon, has just read out. Although it makes emollient noises and is couched in emollient terms, the fact remains that these powers remain even if they are to be used only as a last resort. We are bound to ask ourselves how far that is compatible with what we have always understood by the rule of law.
Your Lordships will remember the famous discussion by Dicey on the rule of law which includes the concept of the equal subjection of people of all classes and condition to the ordinary law of the land. Is an ordinary creditor entitled to demand entry into the place of employment of his debtor? Is he entitled to interrogate the employer and the fellow employees and to make them answer his questions on pain of a penalty? The ordinary creditor is not allowed to do that, but the official appointed by the Secretary of State is allowed to do that. That is not equality before the law; it is taking executive powers. The matter is not improved at all by telling us that this provision is contained in another statute—so much the worse. The next time we shall be told that such a provision is contained in two statutes.
I do not dissent from the course that has commended itself to the noble Lord, Lord Mishcon, because we all know how useless it is at this stage to call a Division on a clause. The critics of this measure were successful on what was formerly Clause 22 but that was discussed at a reasonable hour before a full House. Noble Lords could vote on the merits of the argument as they heard it. That clause was removed. That does not obtain at this hour any more than it obtained late on the second evening of the Report stage when the noble Lord, Lord Carter, bravely called a Division and there voted in favour of his amendment 12 and against 25. Of those 25 only two noble Lords had heard the argument, and they were the two Ministers in charge of the Bill. What is more, of those 25, 13 were Ministers. That means that 11 of them had been kept working in their rooms here. Therefore it would be quite futile to call a Division. The noble Lord, Lord Mishcon, has taken absolutely the right course in putting my noble and learned friend's letter on the record.
However, let us not pass over the clause without registering with indignation how far it is an intrusion on traditional concepts of the rule of law and how far it puts the minions of the Secretary of State above the ordinary law of the land. I am very glad that the amendments have been moved.
§ 7 p.m.
§ Earl Russell
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Mishcon, are both right. The exposition of the noble and learned Lord, Lord Simon of Glaisdale, of the doctrine of equality before the law was magnificent, correct and persuasive. On the other hand, we have here a very significant series of concessions, which I welcome very warmly indeed, which go a long way if not all the way to meet what we want to achieve.
1799 In particular, the restriction of the powers of inspectors to cases of last resort where no other means of obtaining the information is successful is a concession of great value and substance. Under those circumstances, although I agree entirely with the noble and learned Lord, Lord Simon of Glaisdale, and shall return to that matter whenever any similar principle comes before us, nevertheless I shall follow the same course of action as the noble Lord, Lord Mishcon.
§ Baroness Faithfull
My Lords, perhaps I may ask a question on a point which perhaps I ought to understand but do not. Can the noble and learned Lord help me? Are the inspectors appointed by the Ministry to enter premises without a court order? In all other areas of social work one has to have a court order. "Health visitors have no right of entry. Social worker; have no right of entry unless invited in. If they feel that they must enter the premises for reasons of child care, they cannot do so without a court order. I think that I am right in saying that the same applies to housing officers. Can the noble and learned Lord let me know whether it is intended that inspectors should enter on a court order or simply as inspectors?
§ Lord Houghton of Sowerby
My Lords, I am very grateful to my noble friend Lord Mishcon for his intervention and for quoting the very long and informative letter which he had received from the noble and learned Lord the Lord Chancellor. I am much obliged to the noble and learned Lord, Lord Simon of Glaisdale, for his contribution.
I feel that this part of the Bill, and much else, has no place in any Bill except in an authoritarian state. Powers are given to a new type of plain clothes police force which even collectors in the Inland Revenue and Customs and Excise do not possess. We must attempt at this late hour to obtain firm assurances that Clause 13 and associated provisions will not stay in the Bill as they are
We are in a dreadful situation at this moment. We are on the Third Reading of the Bill. This is its final stage in your Lordships' House. I feel acutely depressed that we face this important interlude in our debates in so thin a House and at this hour.
The other day I had the privilege of talking to a large audience of senior students of two London schools. They asked me where in our parliamentary institutions at the present time the safeguard of our liberties rest. I said that in the absence of a Bill of Rights and of fundamental laws with strict conditions attached to them as regards amendment, I believed that the list bastion of the rights of the citizen did not rest in the House of Commons, they did not rest with the Crown; they rested in your Lordships' House. The Lords are the only people who can stand between the caprice of an unrepresentative House of Commons and the liberties of the subject. As for the monarch, the guardianship of our constitution in the hands of the monarch has been so drastically reduced by the evolution of the practices of a constitutional monarchy as to provide no safeguard whatever.
One cannot be sure, one can only speculate, and I do not want to do that, but I stress that we are the only people who can do what needs to be done on this Bill. 1800 One wonders how our procedure can fit the expectations and requirements of public opinion upon how we legislate. I do not know, but it may be that a noble Lord will get up in a few minutes time and ask the House to adjourn while noble Lords go and eat. I am glad to receive an indication from the noble Lord on the Front Bench opposite that that will not happen. Nevertheless, strange things happen in your Lordships' House which seem to me to be highly inconsistent with the dignity and repute which your Lordships' House enjoys throughout the land today.
As far as I can gather, we are asked to take on trust what the noble and learned Lord the Lord Chancellor has written to my noble friend and other Members of your Lordships' House. I did not take part in that debate. I had too much to say on other matters related to the Bill so I kept out of it. I did not receive a copy of the letter. This is the first I have heard of it. It would have altered my thinking in my waking hours in the past few days as to what to do with this wretched, wretched Bill.
When one sees the powers that will rest n the hands of child support officers there is surely no other description but that they will be the most powerful plain clothes police force in Britain. They will have powers short only of arrest without warrant. On that footing they may enter places of employment and serve notices on people to render an account and provide the information they want. There is a whole, wretched catalogue of powers in the hands of those officers. For what purpose? To bring about a more rational, disciplined and acceptable arrangement for providing for support to be given by absent parents to the parent who has young children to look after. That is what it is. It is money to be transferred from one citizen to another—spouse, companion or whoever it might be.
As I said, the powers given in this process, which are probably derived from the Social Security Act 1986, seem to conceal under the umbrella of social security powers which were probably not appreciated at the time. But when you go to the Department of Social Security you are nearly always seeking something from them. You are an applicant; you are a citizen seeking to take advantage of the benefits which are provided.
But this Bill is entirely different. This is a Bill which provides for the clammy hand of bureaucracy to rest upon you, because something is being demanded from you. It is not a debt to the state; it is directly a debt to another citizen. These powers are put into the hands of those who are acting as intermediaries between one party and another in arrangements regarding the financial support of children.
There is a good deal of nonsense talked about maintaining children. Fathers and parents do not maintain their children, or anything like it, under present conditions in our social and welfare state. They do not provide fees for education, they do not provide money for doctors' bills and hospitalisation when the children are ill. In many cases, they do not even provide food at school. It is ridiculous to say that the state places upon absent fathers the full responsibilities of maintaining children.
1801 But that is only part of my pent-up feeling of rejection of so much that is in this Bill. There is another way. No Bill of this kind would have come out of a Labour Government so long as I was in it. I can assure the noble Lord of that. I was responsible for social services in the Cabinet in 1964 –67, and no Bill of this type would have reached this House or the other one. We would have found a better way, but not this way.
Here we are. What are we going to do? Presumably when we come to the appropriate amendment my noble friend will outline the course of action that he recommends us to take. Since we have neither the House nor the opportunity at this time to devote the time needed to discuss this matter afresh, we ought to have a recommittal to a Committee stage and get down to this before we pass the Bill to another place.
Can we rely upon them to deal with it there? I do not know, but is this how we are going to do our business? I feel very upset indeed. This is not what we ought to be doing on this very important subject. Everybody will be helpless. This is the Third Reading and we must go on with the Bill. If we go on all night, we must go on with it. All right, let us go all night. Let us sort this out here and now. Let us have a debate on the matter, hear other views and not just say that it is unfortunate that all this comes at the last minute.
The whole structure of this Bill has been changed during the various stages through this House and we have to swallow the whole lot on Third Reading. Instead of having a summing-up, a verdict on the Bill as a whole and on this movement in our social and personal relationships, we are engaged in this detail, with new clauses about commissioners. The whole bureaucratic citadel is erected before our eyes, and we have not had an opportunity of discussing these matters earlier at all.
I am exhausted, but I feel very deeply about this matter. Who will save this situation? What are we to do? Who is leading us anywhere as a House at the present time? Who can defend our reputation, our dignity, our peace of mind? Where is the Leader of the House? Where is the Leader of the Opposition? Where are we all in this House tonight? I shall now sit down.
§ 7.15 p.m.
§ Baroness Elles
My Lords, after two very great speeches on matters of principle, may I make three very brief points? First, I should like to take the opportunity of thanking my noble and learned friend for the copy of the letter which he sent to the noble Lord, Lord Mishcon, which has been put before the House. Most of us will feel very strongly that we object to the contents of this clause and to the arrangements for inspectors, because the amount of money involved will be minimal. It seems to me that for a country like Britain with its standing in the world to have to send out inspectors to chase up people to pay £20 or £30 a week is almost a matter for shame.
In the report of the Public Accounts Committee, which I quoted at the Report stage, there was a paragraph which implied that maintenance was paid in 1980 –81 in about 50 per cent. of cases. It was only 1802 because the number of officers was reduced at the Department of Social Security (or the DHSS as it then was) that they were not able to pursue cases. The number of officers was reduced from something like 2,700 to about 1,600, and I apologise for not having the precise figures. But the fact was that maintenance was obtained from absent parents without the need for inspectors. This is why I question the necessity for the introduction of inspectors into this Bill.
Having said that, I assume that they will remain on the face of the Bill. Therefore, I ask my noble and learned friend, in view of his letter in which he said that there would be very few cases in which action would be taken by the Secretary of State, to give an undertaking that there will be an annual review of the actions taken by the Secretary of State in this field; I ask how many inspections had been made; what were their results; and what were the kind of premises to which the inspectors went?
Finally, subsection (3) (c) refers to the right of an inspector to enter any premises at or from which,any person carries on any trade, profession, vocation or a business of any kind".Presumably, this will apply to all homes in which the absent parent happens to be self-employed. This means therefore going into a private property and not just one where somebody is employed. Perhaps when my noble and learned friend comes to reply he will comment on that and on the question of a published report, as to the number of cases of inspectors being used in the future on this kind of case.
§ Lord Stoddart of Swindon
My Lords, I too should like to thank the noble and learned Lord the Lord Chancellor for sending me a copy of his letter. It is quite true that the contents of the letter, if put into practice through amendments in another place, will, to some degree anyway, mitigate the worst effects of Clause 13. But my noble friend Lord Houghton of Sowerby has just exposed this Bill, if I may put it in that way, and has shown quite clearly how things can get on to the statute book if proper care is not taken.
What worries me most of all is that this clause should have been put into the Bill in the first place. Who put it there? Why did they put it there? Did they feel that Parliament was asleep and that the clause would be let through unamended? Were they trying it on? If we had let the clause through unamended or unremarked at this point of time, what would have been the next clause in the next Bill?
My noble friend Lord Houghton of Sowerby can take some comfort from the fact that we are having this debate tonight and that we have received that letter from the noble and learned Lord the Lord Chancellor, because my noble friend Lord Mishcon, and my other noble friends and other noble Lords in this House, were alert to what this clause meant and were not prepared to let it pass without severe comment. That has resulted in the Lord Chancellor's letter which shows that he has taken note of what we said and shows many of the worries about the clause that we express.
Having said that, the clause is a mistake. It ought not to be in the Bill for the very reasons outlined by the noble and learned Lord, Lord Simon of Glaisdale. We 1803 are speaking of a civil debt. To seek to criminalise not only fathers who get into debt but their employers also seems to take a very big hammer to crack a very small nut. I wish that the Government would think about these matters very carefully.
I suppose that this is the result of legislation made on impulse. This was an impulsive Bill. It was not properly thought out. Suddenly fathers became the "out" persons; those persons who had to be pursued; those persons who, in our new Victorian era, did not bear their proper responsibility. They ought to be and must be pursued. Therefore rational and reasonable thinking went out of the window.
I pay tribute to the noble and learned Lord. He has shown that there is a glimmer of hope and that when confronted with arguments in this House—perhaps privately as well—he is prepared to understand our points. Therefore he has been good enough to assure us that some amendments will be made. But in the last analysis I make one final appeal to him. This Bill would be a better Bill if he would delete Clause 13 in its entirety.
§ Lord Henderson of Brompton
My Lords, I shall be brief. In following the noble Lord who has just spoken, I wish to associate myself with what he said; namely, that this clause should not have been put in the Bill in the first place and that we must trust the House of Commons to take it out. We have done our utmost in this House and there is precious little more that we can do. However, I have one word of comfort for the noble Lord, Lord Houghton. There is one suggestion which I shall speak of in a moment.
I was not one of the recipients of the letter from the noble and learned Lord the Lord Chancellor. I am indebted to the noble Lord, Lord Mishcon, for having read that letter into the Official Report. It is indeed encouraging that the noble and learned Lord has listened to what we have said. It is nothing more than we have come to expect of him, and we are duly grateful.
I am afraid that it does not remove the fundamental feeling on all sides of the House that this clause should have no part in any Bill of this kind in our Parliament. The constitutional arguments have been most eloquently expressed in this House, in particular by the noble and learned Lord, Lord Simon of Glaisdale. From the Conservative Benches came the expression from the noble Baroness, Lady Elles, that it is a matter of some shame that a clause of this nature should enter into the Bill. At an earlier stage I expressed my feelings. I find this Bill repulsive and this clause the most repulsive clause in the whole Bill.
The noble Lord, Lord Houghton, asks what we can do. Clearly it is no good continuing this discussion all night. Clearly it is no good calling a Division. I suggest that we call the media to publicise what has been said in this House. I note that the television cameras are covered with red hoods, so there is no hope of television coverage. On the other hand, broadcasting is still going on. The broadcasters may make something of this debate. The newspapers might pick up on what we are doing. I have one suggestion to offer to the newspapers and perhaps the broadcasters; 1804 namely, that the newspapers print and the broadcasters read over the air Clause 13 without comment. Or perhaps they could invite the public to send in their comments on this clause. In isolation the clause is horrific. Putting it in the context of this Bill does nothing to diminish its horror. I should like to see this clause put into print and spoken across the air so that the general public know what is being done in their name by their Government.
§ Baroness White
My Lords, I had no intention of entering this discussion at all until I looked at the Bill and was horrified by subsection (4). That has been modified by the amendment tabled by the noble and learned Lord the Lord Chancellor to the effect that it will no longer apply to those under the age of 18. Apparently it will apply to anybody else. I find it incredible that an inspector could question anyone either alone or in the presence of any other person, provided now that they are over the age of 18, whom he finds on the premises. It is an astonishing power to be given.
I was impressed by the remarks of the noble Baroness, Lady Faithfull, who said that such an authority is not given to other people who have grave responsibilities for family affairs who have to have a much more specific authorisation than is necessary on the face of this Bill, or so it appears to me. I do not wish to detain noble Lords; but as someone who has come fresh to this discussion, I have been deeply disturbed by what I take to be the methods approved of in this clause. I hope very much indeed that we can be reassured.
§ 7.30 p.m.
§ The Lord Chancellor
My Lords, we have discussed this clause on a number of occasions. I am grateful to the noble Lord, Lord Mishcon, for reading out so fully my letter to him on this subject. I am sorry that the noble Lord, Lord Houghton, did not receive a copy. I tried to send a copy to everyone who had taken part in the debate on this clause. I had to restrict distribution in some way and that is the way I took. The noble Lord explained that he had not spoken on this clause although he had contributed substantially to other parts of the Bill.
The enforcement of obligations of a particular kind is a matter of quite considerable importance. One of the important aspects of the Bill is the need to provide an effective enforcement procedure for the recovery of maintenance debts; that is to say, debts which arise as a result of obligations in respect of the maintenance of children. In my submission, that is a worthy purpose for which the necessary powers to make it effective ought to be given by Parliament.
First, this is not a question of matters about paternity. Those are matters for the court under the clauses of the Bill.
The only matter with which we are concerned in Clause 13 is information that the Secretary of State requires for the purpose of ascertaining the 1805 whereabouts of the person responsible for maintenance and any information relevant to that maintenance. Those powers are given for the purpose of acquiring information.
I have no doubt whatsoever that it is right to have effective powers for that purpose. I am sure that I am not alone in your Lordships' House in having received information from mothers who, having had a court order made against a man for money for their children, try desperately to enforce it. They say, "What is the good of this order? We have it but we cannot get the money. What is the good of a piece of paper? My child needs the money which this person has but which he is avoiding paying". The purpose of the Bill, and of this clause, is to make effective provision for that obligation to be enforced.
It gives me particular pleasure that it is as a result of discussion on the Bill in your Lordships' House that I have been able to write that letter to the noble Lord, Lord Mishcon. I believe that it contains a very clear circumscription of the clause and the circumstances in which it would be necessary to use it. I am glad that the entire letter has been read into the report.
I do not share the views of those who find the Bill repulsive. On the contrary, I regard it as extremely important and as achieving an important social aim. The noble Lord, Lord Houghton of Sowerby, said that no such Bill would have been produced under a government of which he was a Member. If it had been, perhaps the problem would be less serious than it is today.
My noble friend Lady Faithfull asked me about the authority that would be required. I have undertaken that the specific authority on behalf of the Secretary of State should be given in respect of the premises and the person to be visited, in accordance with the terms of the letter. It is not a court order but the authority of the Secretary of State relating to the specific matter in question.
In case we forget, I remind noble Lords that we are discussing Amendment No. 13, which stands in the name of the noble Lord, Lord Meston. I suspect that we have wandered a little to more general matters. As the letter suggests, we shall consider again the way in which the clause is drafted. I have no difficulty with the thrust of the first part of Amendment No. 13. I have more difficulty with the second part. If we need the information and we wish to enforce the provision quickly, it may not be wise to have so much notice. The idea is that the authority of the Secretary of State will be granted if all else has failed. In a sense that takes care of notification.
Amendment No. 19 requires specific comment. The situation is that an inspector need only take a document with the permission of the employer. That document may be a ledger or a large wage book which it would not be practicable to copy. That question is best left to practice and written procedures. In the vast majority of cases nothing will be taken from the employer because verification—what is required is information—can normally take place on the premises.
1806 The objective is simply to obtain the best information in order to follow up enforcement of the obligation to maintain. I believe that the circumstance that the noble Lord has in mind is unlikely to arise. However, in the light of the undertakings that I have given, I am happy to consider those points also. At present I do not believe that such circumstances are likely to arise. The most important provision to which the noble Lord spoke is the first part of the first amendment. We shall certainly take into consideration the drafting amendments, Amendments Nos. 14 and 15.
My noble friend Lady Elles asked me about reports. The child support agency may submit a report. We shall certainly consider what should be put in it. Records of any inspection will be kept. There is always a possibility of a Parliamentary Question, either here or in another place, if any noble Lords are anxious about how the powers are being used.
I am extremely grateful to the noble Lord, Lord Mishcon, for what he said about the way in which he treats the letter I wrote to him. I should like also to thank the noble Earl, Lord Russell. To hear Members' views is after all the purpose of these discussions. It is my privilege and pleasure, as well as my duty, to listen carefully to all that your Lordships say and to do my best to meet anxieties which you have expressed. The letter endeavoured to do that in relation to the clause.
I hope that, in the light of all that we have discussed, the noble Lord, Lord Meston, will feel able to withdraw the amendment.
§ Lord Meston
My Lords, before the noble and learned Lord sits down, perhaps I may trouble him for his view on Amendment No. 16. It touches on the point that the noble Baroness, Lady White, raised.
§ The Lord Chancellor
My Lords, I am sorry; I should have dealt with that specifically.
One may well be seeking information—for example, about numbers—by looking at the employment or wages records. One may go to an office and find the person responsible. However, that is achieved only by asking the group which runs the wages records. That is the purpose of the phrase,alone or in the presence of any other person".There may be a misunderstanding underlying some of the discussion. The noble Lord, Lord Meston, opened by talking about delicate questions of paternity. No such material is referred to in this clause. That is dealt with in different part of the Bill and is left entirely to the ordinary procedures of the court, which involve the kind of investigations that the noble Lord knows well. In obtaining the information to which this provision refers it may be better and more convenient, for example, to find out from the group who is best qualified to give the information rather than examining in private a succession of people.
§ Lord Meston
My Lords, I am most grateful to the noble and learned Lord. My references to paternity were not meant to suggest that the inspector could go in and ask indelicate questions about the relationships of the employees concerned but only that the basis of the inquiry would be that an employee was said to be the father of a child. When confronted with an 1807 inspector, the employer might ask, "Why do you want to know?", and it is highly likely that the inspector will say, "He is the father of a child". That is a source of embarrassment. That is why I have suggested that those discussions and questions should be conducted in private.
I heard and understood the noble and learned Lord. However, perhaps Amendment No. 16, or something like it, should be given further consideration. The debate arose from my attempt to amend Clause 13 in various ways. The noble Lord, Lord Mishcon, did not overstate matters when he said that it was a dangerous clause. Nor did the noble and learned Lord, Lord Simon, overstate the fundamental considerations of principle which arise. Clause 13 was a mistake. There would have been no such problems if it had been originally tailored to meet the needs of the Bill and the feelings of those whom it most affects.
Unfortunately, Parliament did not take the same care to scrutinise the predecessor of Clause 13 in the Social Security Act 1986. If Parliament—and one must include this House—had taken care about the equivalent provision in that Act we should not be in this position today. My mistake was in not trying to bring forward these or similar amendments in Committee. If that had been done we should not have been left with this kind of debate on Third Reading.
I am grateful to the noble Lord, Lord Mishcon, for reading out the letter and we welcome its contents. We now know that the powers will be used in rare cases and as a last resort. We also know that there will be consultations with the employers' organisations. I echo the noble Lord's comments about including employee representatives in those discussions.
I do not believe that Clause 13 is beyond repair. I am glad to hear that the Government share that view. I shall rely on the assurances that we have been given; namely, that good practices and appropriate safeguards will be introduced in the Bill in another place. On that basis, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 14 to 16 not moved.]
The Lord Chancellor moved Amendment No. 17:
Page 9, line 18, leave out ("other person, any") and insert ("person who is not under the age of 18, any such").
§ The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 18 and 20. Amendment No. 17 is tabled in response to a point raised on Report by my noble friend Lady Elles. Its purpose is to make clear that authoritative question would be in respect only of persons over 18 years of age. Amendments Nos. 18 and 20 seek to improve the drafting by deleting some words and removing a minor inconsistency. I beg to move.
§ Baroness Elles
My Lords, I thank my noble and learned friend. He has listened carefully to all the points that have been raised during the debates in Committee and on Report. Although this is a modest and minor point I am grateful to him for having taken it on board and produced the amendment.
§ On Question, amendment agreed to.
§ The noble and learned Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 17. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 19 not moved.]
The Lord Chancellor moved Amendment No. 20:
Page 9, line 36, leave out from ("powers") to ("as") in line 37.
§ The noble and learned Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 17. I beg to move.
§ On Question, amendment agreed to.
Lord Mishcon had given notice of his intention to move Amendment No. 21:
Leave out Clause 13.
§ The noble Lord said: My Lords, I have made my position abundantly clear and shall not burden the House with a second speech. However, I wish to make the following comments so that there should be no misunderstanding. From the commencement of our discussions on the Bill I have made clear the fact that we on these Benches regard Clause 13 as abhorrent and consider that it should not be part of the Bill. For that reason I tabled the amendment, as I did at the previous stage, to leave out Clause 13.
§ I greatly appreciated the consideration that the noble and learned Lord gave to our submissions. The amendments which he intends to make to the clause will be considered by another place. However, the last thing I wanted was that there should be a vote in this House which might give the wrong impression. The amendment might well be defeated not as a result of the debate but due to the presence in the House of Members who have not listened to the debate. I did not wish to risk it being interpreted that the House approved of Clause 13 because it voted against a Motion to leave it out. That appears to be a clumsy way of dealing with an important subject.
§ I shall not move the amendment. I repeat my thanks to the noble and learned Lord and trust that the amendments will be dealt with in a proper way by another place.
§ [Amendment No. 21 not moved.]
§ Clause 14 [Periodical assessments]:
§ 7.45 p.m.
The Lord Chancellor moved Amendment No. 22:
Page 10, line 19, leave out ("a") and insert ("any").
§ The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 29, 35, 47, 51, 53 and 55. Amendment No. 22 arises from an amendment proposed by my noble and learned friend Lord Simon of Glaisdale. It is a technical change to clarify that the provision about periodical reviews applies to any maintenance assessment. I am grateful to my noble and learned friend for raising that issue.
§ Amendment No. 29 removes some words which are unnecessary and might in fact be taken to have the mischievous effect of overriding the normal rules of statutory interpretation which we wish to apply to this clause. Amendment No. 35 removes the word "special" since it is already made clear earlier in the 1809 subsection that this refers to "special damage". I am grateful to my noble and learned friend Lord Simon for identifying this superfluous word.
§ Amendment No. 47 is designed to bring the order-making power in subsection (6) of Clause 36 into line with the Lord Chancellor's other enabling powers in the Bill by providing that he may make an order under Clause 36 after consultation with the Lord Advocate.
§ Amendment No. 51 provides for the reference to the benefit Acts in the definitions clause to conclude social security legislation up to 1991 instead of 1990. Amendment No. 53 makes the meaning of this subsection plainer.
§ Amendment No. 55 does nothing more than rectify an untidiness whereby there is a reference to "him" in the definition of the child benefit element of the formula without it previously having been made clear to whom the word refers. I beg to move.
§ On Question, amendment agreed to.
§ Clause 18 [Appeals]:
The Lord Chancellor moved Amendment No. 23:
Page 13, line 31, leave out subsection (6).
§ The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 25, 26, 27, 28, 52, 54, 56, 57, 58, 59, 60, 61, 62, 63 and 64. The amendments are designed to create the necessary statutory provision for appeals from child support appeal tribunals to be heard by child support commissioners, together with two small technical amendments to the provisions about child support appeal tribunals. Amendment No. 23 deletes subsection (6) which will no longer be needed if your Lordships are content with the other amendments.
§ Your Lordships will recall that on Report while introducing the clauses about the proposed child support appeal tribunals I announced that I hoped to bring a further amendment at Third Reading to create specialist commissioners to hear appeals from the tribunals. These amendments simply seek to bring effect to that undertaking. Although they appear to be lengthy, they are very similar to those set out in the Social Security Acts 1975 and 1980 in relation to the social security commissioners. As I said on Report, there is provision in the social security appeals system for further appeals to be made on a point of law against decisions of appeals tribunals to social security commissioners. We thought it right to follow that precedent but to establish a separate identity for child support officers.
§ Amendment No. 26 is the first of the new clauses and enables the appointment of a chief child support commissioner and child support commissioners. They will all have at least 10 years' experience as lawyers. It is envisaged that they will also be social security commissioners and that the chief social security commissioner will be the chief child support commissioner. I should like to make it plain that child support commissioners will have that status. In relation to this matter we are making use of the expertise of the chief social security commissioner and 1810 the social security commissioners. The clause also has a regulation-making power to permit the making of procedural regulations.
§ Clause 27 is a separate clause which sets out when and how appeals can be made to child support commissioners. Appeals will be entertained only on the grounds that there has been an error in law.
§ Amendment No. 28 is the final new clause. It provides for further appeals on a point of law from the commissioner to the Court of Appeal or the Court of Session. Again, that follows the social security model.
§ Amendment No. 63 is a new schedule which deals with the details of the tenure of office of the commissioners, their remuneration, expenses and pensions, the appointment of deputies, the use of tribunals of commissioners for cases of particular difficulty and the finality of commissioners' decisions.
§ The remaining amendments are minor technical provisions. I beg to move.
§ Lord Simon of Glaisdale
My Lords, perhaps I may make a general comment on this group of amendments and a particular comment with reference to Amendment No. 26. I should like also to ask some questions.
The general comment is that on Report a series of amendments was brought forward to resolve a point which had been left open in the Bill as presented and, indeed, left at the Committee stage; namely, that appeals could be to a court or tribunal. Many noble Lords fastened on that and obviously the matter had to be resolved. Of course it was resolved in favour of administrative tribunals. That merely put another administrative provision, another piece of bureaucracy, in an already bureaucratic Bill. To have child support commissioners and a chief commissioner merely puts the cap on that. Having swallowed the disagreeable draft on Report, it would be ridiculous to strain at this particular draft.
However, I beg to draw attention to the way in which we are fragmenting our system of judicature. As your Lordships know, in 1873 and 1875, by the judicature Acts of those years, a great number of disparate jurisdictions were drawn into one High Court which was part of one Supreme Court: five courts of common law, a court of chancery and three courts which administered the ecclesiastical or civil law according to the particular jurisdiction. That was welcomed as a great improvement and I have not seen its beneficence questioned at any time since.
Lately we have been moving again towards fragmentation of our system of judicature in order to provide additional specialisation. I regretted the first step although it has worked quite well; namely, the setting up of a Lands Tribunal. It would have been valuable if that had been made part of the Chancery Division. There would have been no difficulty in associating lay members with the judge of the court because in the Admiralty Division lay assessors habitually sit with the judge on collision cases and, indeed, on many others; for example, fishery cases.
1811 The steps which have been taken with regard to administrative tribunals seem to be gaining momentum. I suggest that we should be cautious in going further down that road or we shall find ourselves with our judicature as fragmented as it was before 1873.
The questions I wish to ask are minor compared to that constitutional question. What will be the cost of the commissioners? I do not believe that we investigated the cost of the tribunals on the last occasion. It would be helpful to know what will be the costs of the new provisions.
Secondly, an appeal to the commissioners and to the chief commissioner is on a point of law. Will legal aid be available? It certainly should be. It is available to an ordinary appeal court of law but I am far from convinced that it is available here. In registering what has been done, your Lordships will wish to note that.
The last question 1 wish to ask is in relation to subsection (4) and the regulations. Are they to be subject to affirmative or negative resolution? I should be most grateful if those questions could be answered quite shortly. I should be grateful also if my noble and learned friend will bear in mind the disadvantages of fragmentation of our judicature to be set against the undoubted virtues which come from specialisation.
§ Lord Coleraine
My Lords, I am grateful to my noble and learned friend for explaining this group of amendments. In Committee we discussed the procedures of the child support officer and the review. We were merely dealing with decisions by the child support officer that the parent with care should receive maintenance for the child and questions as to whether the maintenance was to be too great or too small.
There is now a very large set of procedures which deal with the review, the child support appeal tribunal and the child support commissioner on a point of law. I should like to know at what point the absent parent starts paying and at what point the parent with care begins to receive money if she has made a complaint about a decision of the child support officer.
I wonder whether we need this immense pyramid of inquiry to determine those facts. I wonder whether it is possible to telescope that somewhat so that a child support commissioner sits with a child support appeal tribunal. That way we would dispose of one tier. I see that a child support commissioner must have 10 years' general qualification. That is to be defined in the Bill by reference to Section 71 of the Courts and Legal Services Act 1990 which deals with qualification for judicial appointments. My noble and learned friend tells me that that means a lawyer of 10 years' practical experience. For the life of me I cannot see why the child support appeal tribunal should not be headed by somebody with that general qualification and why we need the extra tier. I am sure that there is a good reason and perhaps my noble and learned friend will be prepared to explain it to me.
§ Lord Houghton of Sowerby
My Lords, I am sure that the House is obliged to the noble and learned Lord, Lord Simon of Glaisdale, for carrying the 1812 discussion a little further into matters of administration. This may be the moment to look at how, since the beginning of the passage of the Bill, the appeals procedure, has developed. It is strengthening the position of the citizen. What astonishes me is how ill-thought out the whole matter must have been to begin with.
The right of appeal against a disputed determination was originally vested in a child support officer who had not been concerned with the original assessment. That seemed to be an odd way of dealing with disputes within such a disciplinarian ethos as the Bill. However, appeals tribunals were introduced, and in order to put the top layer of reference on the machinery of the Bill we introduced commissioners.
It looks as though we have put alongside the Department of Social Security the appeals procedure and the system of commissioners that is in place in the social security system itself. That seems to bring the two rather more in accord one with another. What continues to trouble me is the obscurity in which the administration of the Bill seems to rest. We hear about the "agency" but the Bill contains no reference to the agency. We heard something about it in the notes on the Bill in the first instance and indeed were given some estimate of the amount of staff it would need and the cost; but the Bill makes no reference to an agency. All the powers are in the hands of the Secretary of State. Only today I heard a reference to the Secretary of State for Social Security which removed from my mind the doubt as to whose Bill it is. Is it a Home Secretary's Bill? Is he the Secretary of State referred to? Is it a social security Bill with the Secretary of State for Social Security being the Minister concerned?
The Bill is not a social security Bill. As my noble friend Lord Stoddart of Swindon said a moment ago, it is a Bill which regulates relationships between two parties in a matter of civil debt. Normally it would be a Home Office Bill, and powers given to the Secretary of State would be recognised as being within the province of that department.
I do not know when we shall have the opportunity of looking at the transfer of the organisation built up under cover of the Bill from the department to an agency. I am slightly hazy about how agencies came into existence. There is a big distinction between the work and structure of the organisation which will be built up under the Bill and similar agencies which are already created or coming into being. For example, the valuation office of the Inland Revenue becomes an agency and that transfers a whole slab of work from the Inland Revenue to the agency, putting it in the position of being able to undertake private work of valuation on a professional basis. To some extent it places it in the position of a business. The Stationery Office is another example. Again, it is the transfer of a well known element in our public affairs. It is given powers to undertake private printing work and become part of the publishing industry. The Property Services Agency that looks after government departments and so forth is also a transfer of work within the Civil Service.
The child support agency will have new tasks to perform. It will be a new concept altogether. We have 1813 no idea where the staff is coming from and what kind of staff it will be. As we debate the Bill we assume that the administration will be the responsibility of the Secretary of State, whoever he may be. But if the whole shooting match is to be transferred to an agency immediately after the Bill's enactment, there should be some way in which the House can express its view on the composition of the organisation.
It is very unsatisfactory not to know whether one is dealing with a branch of the Civil Service or dealing with something with separate powers outside. I raised a number of questions with the Minister a few days ago and I may well raise them again when we consider whether the Bill do now pass. They are very open questions and affect one's attitude to what we are doing. We do not know who will exercise the powers; whether they will be retired police officers; whether there will be a trawl through the Civil Service; what training they will have received; what responsibility they will be given. Will women be freely employable in this field bearing in mind some of the situations that may arise? Where are the applicants to be interviewed?
When creating a new force with such powers of intrusion upon the rights, the abode and the working place of citizens it is desirable to know a little more about the kind of organisation it will be. I welcome the idea of commissioners, though I take the point made by the noble and learned Lord, Lord Simon of Glaisdale, regarding the use of offshoots of the judicial system. That too is a tendency which needs to be watched and probably curtailed. To have a multiplicity of commissioners with powers to decide questions of law, fragments the whole of the system of our judicature. That is another important aspect of the Bill.
So many issues arise under the Bill that it is a shame it was not given more adequate thought and understanding by those responsible for it. Having been behind the scenes myself at times I wonder what went on in the legislation committee of the Cabinet when the Bill was tabled.
§ Lord Mishcon
My Lords, I shall try to save your Lordships a multiplicity of speeches. As the noble and learned Lord, Lord Simon of Glaisdale, raised the question of legal aid, it seems suitable to speak in terms of what would be Amendment No. 24 if it were moved. I can dispose of that matter in the course of the speech. Having said that, I point out the amazing sequence of events as regards the amendments which we are now considering. They include the appointment of a chief child support commissioner. An appeal can be made to him. A definition is given of the kind of person he should be; namely, someone having a 10-year general qualification or someone who is an advocate or solicitor in Scotland of 10 years' standing.
One notes that the regulations providing for the conduct of the procedures before the commissioners are under the aegis of the Lord Chancellor after consulting the Lord Advocate. My mind goes back to the initial stages of the Bill and to those who protested against the idea of making an agency in the Department of Social Security responsible for these 1814 matters. We argued from our point of view that that was a deviation from the course that we hoped would. be pursued; namely, that all family matters would be dealt with in a family court. We could not see the reason for the setting up of a Government department when the courts should be dealing with these matters.
We were told by the noble and learned Lord, with the clarity we have come to expect from him, that the reason was because the issues were purely administrative. We have now reached the stage where there is an appellate procedure. The chief child support commissioner and other child support commissioners are presumably to be appointed from among qualified lawyers. The procedures are laid down by the Lord Chancellor's Department after consultation with the Lord Advocate. One immediately recognises that there is a judicial process which is different from an administrative one.
One wonders if, having come the full circle, the logical conclusion is that that rules out the agency and supports the idea of these issues being matters for the courts, strengthened as they should be by the very substantial expenditure that will be laid out on this new development of a Government department.
I now turn to an extraordinary matter. It may be that I have overlooked something. These matters are very private to individuals. As a rule we are talking about the father who is being made to maintain his child either on the basis of a certain assessment or in certain circumstances which end in the appeal procedure. In our courts matters of maintenance, the private means of people and their private circumstances in matrimonial affairs, are protected as regards privacy through being heard in chambers. The public are not admitted. Perhaps I should not be surprised, but I am. I find to my surprise that the regulations dealt with in Amendment No. 26 "shall provide", not "may",that any hearing before a Child Support Commissioner shall be in public except in so far as the Commissioner for special reasons directs otherwise".There has to be a special reason to hide from the public gaze, public hearing and the public press an appeal of a citizen as regards the maintenance to be paid to a child. If, as it may well be, it is a matter of law, then it will be very interesting for the public at large to know about the legal decision. We shall get a history of precedents which may be very useful. However, there are ways of ensuring that decisions of law made in chambers are publicised in a perfectly proper way.
I have looked at Clause 18 (2) (a) and (b) and the grounds for the original appeal, which are that it:(a) "was made in ignorance of a material fact; (b) was based on a mistake as to a material fact".These are the private affairs of individuals and deal with family affairs. Why is there to be a different procedure in dealing with these matters from that usually followed in our courts? Let us not forget that the Bill provides that there is a shut door to the courts for certain individuals and classes of people. If that is so, then we are forcing into public hearings people who, if going to the courts, would have a private hearing, as I understand the position.
1815 I now move speedily to another matter in order to avoid inflicting upon your Lordships another speech on the subject of legal aid. We have a legally qualified commissioner and, presumably, the department is represented at the appeal. But what about the aggrieved person who is appealing? If the matter were dealt with in a court of law, in most cases legal aid would be granted. The noble and learned Lord, Lord Simon of Glaisdale, asked a very pertinent question. I ask the House to realise that this procedure will be held in public. That is rather a frightening state of affairs for most of our citizens, especially the humble folk who are most likely to be conducting such appeals. Are they to have a legal representative paid for out of legal aid?
At Report stage I did something which I am sure the noble and learned Lord did not consider impertinent. I asked him rhetorically whether he had read a report which was commissioned by his department. It was certainly a report made to the noble and learned Lord the Lord Chancellor. The report is entitled The Effectiveness of Representation at Tribunals. That report was made in July 1989. If he has not read it perhaps he will be kind enough to refer to it before we reach the next stage of the Bill. The report must have been of some value, or it was considered of some value to the public, because I note that the price was £5 in July 1989.
I wish to quote two paragraphs from that report.Representation of appellants and applicants contributes to more accurate decision-making and to the fairness of the process by which decisions are reached. If it is considered desirable that tribunals should achieve these objectives, and if those appearing before tribunals unrepresented do so because free representation is not available to them, and they cannot afford to pay for representation, then the argument for improving access to representation is unassailable".The final paragraph of the report states:Finally, it is clear that calling adjudicative fora 'tribunals' rather the n courts does not constitute sufficient justification for assuming that representation is unnecessary. It is not the name that is important. It is the nature of the issues at stake, the characteristics of the proceedings and the quality of justice meted out that are important".Is not this such a case? If the parties concerned were in court and there was a similar kind of dispute in respect of which there was an appeal, in most cases legal aid would be granted. I therefore ask the noble and learned Lord—and I echo the question of the noble and learned Lord, Lord Simon of Glaisdale—whether legal aid is to be granted here; and, if not, why not? Does he really believe that justice will be done in a public hearing before a special commissioner who has 10 years' or more legal experience; with a department, presumably represented on the appeal, arguing a point of law; and with a citizen before that court as the appellant who finds himself at a hearing in public in those circumstances? What chance does the citizen stand of getting justice?
The Lard Chancellor
My Lords, the adjudication procedure will be concerned with applications of the formula to a given set of facts. On a previous occasion I set out the arguments for believing that that kind of matter was apt to be considered by a tribunal specialising in that area. I know that there are risks in specialisation, but there are advantages in it also. So 1816 far as concerns the ordinary courts, my noble and learned friend referred to the history of the unification of the general courts' jurisdiction. Questions of specialisation are raised. The family court is one of those which goes somewhat in the other direction. We have within the framework of the ordinary courts sought to create specialist approaches to particular cases. The Children Act is a good example of what we are seeking to do in that connection.
On the other hand, in recent years there has been a good appreciation of tribunals which specialise. The Lands Tribunal has been taken as an example—and the Social Security Appeal Tribunal is another example. We have modelled our system here on them. The appellate tribunal that we are now seeking to put in place is modelled on the tribunal for social security.
The cost of the appellate functions was included in the original estimate which was made of the total costs of the legislation. The present arrangements will be, so far as is necessary, extended to deal with the appeals under this set of provisions. It is thought that the cost will not be very high by comparison with the subject matter. This has been included in the total cost, though, as I have said, it is an estimate.
The second question I am asked is whether legal aid will be available. The answer is that legal aid will be available at the last stage; that is, the appeal to the court that is allowed from the social security commissioners and the child support appeal commissioners in the circumstances that are narrated in one of the amendments. So far as concerns the commissioners and tribunals, legal aid will be available only on the advice basis which is applicable in other tribunals.
The report to which the noble Lord, Lord Mishcon, referred was commissioned to study this matter. At £5 from the Lord Chancellor's Department, it is very good value for money. It is important to remember that the reporters were talking not only of legal representation but of other representation as well. I hope that that will be kept in mind. At the present time I believe that it is right that these matters should be regulated on the same basis as appeals to the social security commissioners.
I should like to mention one important aspect of the procedure. Many of the cases can be dealt with on paper. The question that arises is one that very often is easily ascertainable on the forms that are used. Oral hearings are by no means necessary in every case. Where an oral hearing is allowed it is usually because of some general interest in the case, or a particular reason. I cannot see at the moment why the ordinary rule that applies to the social security commissioners should not apply—that the hearing should be in public unless there are special reasons for it to be private at that stage in the appellate structure.
My noble friend Lord Coleraine asked why we need this structure. The structure has been proved over time in relation to the social security system. The function of these tribunals is much the same. It is to apply to a set of facts a formula set out in the statute and in regulations. That is very like the type of question that the social security tribunals have to address. It has been found that the ordinary tribunals are very good 1817 for addressing the bulk of the cases. Then only some of them—rather few in comparison with the total number considered by the tribunal—require to be reconsidered by lawyers who specialise in the matter in question and have particular qualifications.
The noble Lord, Lord Houghton of Sowerby, asked some questions about the agency. The primary obligations are put on the Secretary of State. I am not talking now about the appellate system. The original obligations are put upon the Secretary of State. He will have the responsibility within the framework established by the Bill of determining how these obligations are implemented. The noble Lord, Lord Houghton, said that he had written to my noble friend Lord Henley on this point. I understand that a complete answer has been prepared and is in the post. I hope that the noble Lord will find it very satisfying when he receives it, which I hope may happen tomorrow. I therefore commend this series of amendments to your Lordships and renew my Motion.
§ On Question, amendment agreed to.
Lord Mishconhad given notice of his intention to move Amendment No. 24:
Page 13, line 34, at end insert:
("(7) Any person who is a party to any appeal pursuant to the provisions of this section shall be eligible for legal aid in accordance with the provisions of the Legal Aid Act 1988").
§ The noble Lord said: I have already spoken to this amendment. I do not intend to move it.
§ [Amendment No. 24 not moved.]
§ Clause 19 [Child support appeal tribunals]:
The Lord Chancellor moved Amendment No. 25:
Page 13, line 38, after ("to") insert ("proceedings before").
§ The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 23. I beg to move.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendments Nos. 26 to 28:
After Clause 19, insert the following new clause:
§ Child Support Commissioners
§ ("—(1) Her Majesty may from time to time appoint a Chief Child Support Commissioner and such number of other Child Support Commissioners as she may think fit.
§ (2) The Chief Child Support Commissioner and the other Child Support Commissioners shall be appointed from among persons who—
- (a) have a 10 year general qualification; or
- (b) are advocates or solicitors in Scotland of 10 years' standing.
§ (3) The Lord Chancellor, after consulting the Lord Advocate, may make such regulations with respect to proceedings before Child Support Commissioners as he considers appropriate.
§ (4) The regulations—
- (a) may, in particular, make any provision of a kind mentioned in section 19(3); and
- (b) shall provide that any hearing before a Child Support Commissioner shall be in public except in so far as the Commissioner for special reasons directs otherwise.
§ (5) Schedule (Child Support Commissioners) shall have effect with respect to Child Support Commissioners").
§ After Clause 19, insert the following new clause:1818
§ Appeal to Child Support Commissioner
§ ("—(1) Any person who is aggrieved by a decision of a child support appeal tribunal, and any child support officer, may appeal to a Child Support Commissioner on the ground that the decision was wrong in law.
§ (2) Where, on an appeal under this section, a Child Support Commissioner holds that the decision appealed against was wrong in law he shall set it aside.
§ (3) Where a decision is set aside under subsection (2), the Child Support Commissioner may—
- (a) if he can do so without making fresh or further findings of fact, give the decision which he considers should have been given by the child support appeal tribunal;
- (b) if he considers it expedient, make such findings and give such decision as he considers appropriate in the light of those findings; or
- (c) refer the case, with directions for its determination, to a child support officer or, if he considers it appropriate, to a child support appeal tribunal.
§ (4) Any reference under subsection (3) to a child support officer shall, subject to any direction of the Child Support Commissioner, be to a child support officer who has taken no part in the decision originally appealed against.
§ (5) On a reference under subsection (3) to a child support appeal tribunal, the tribunal shall, subject to any direction of the Child Support Commissioner, consist of persons who were not members of the tribunal which gave the decision which has been appealed against.
§ (6) No appeal lies under this section without the leave—
- (a) of the person who was the chairman of the child support appeal tribunal when the decision appealed against was given or by such other chairman of a child support appeal tribunal as may be determined in accordance with regulations made by the Lord Chancellor; or
- (b) subject to and in accordance with regulations so made, of a Child Support Commissioner.
§ (7) The Lord Chancellor may by regulations make provision as to the manner in which and the time within which appeals under this section are to be brought and applications for leave under this section are to be made.
§ (8) Where a question which would otherwise fall to be determined by a child support officer first arises in the course of an appeal to a Child Support Commissioner, he may, if he thinks fit, determine it even though it has not been considered by a child support officer.
§ (9) Before making any regulations under subsection (6) or (7), the Lord Chancellor shall consult the Lord Advocate.").
§ After Clause 19, insert the following new clause:
§ Appeal from Child Support Commissioner on point of law
§ ("—(1) An appeal on a question of law shall lie to the appropriate court from any decision of a Child Support Commissioner.
§ (2) No such appeal may be brought except—
- (a) with leave of the Child Support Commissioner who gave the decision or, where regulations made by the Lord Chancellor so provide, of a Child Support Commissioner selected in accordance with the regulations; or
- (b) if the Child Support Commissioner refuses leave, with the leave of the appropriate court.
§ (3) An application for leave to appeal under this section against a decision of a Child Support Commissioner ("the appeal decision") may only be made—
- (a) by a person who, immediately before the proceedings before that Commissioner were begun, was entitled to appeal to such a Commissioner from the decision (the "original decision") to which the appeal decision relates;
- (b) any other person who was a party to the proceedings in which the original decision was given;
- (c) the Secretary of State; or
- (d) any other person who is authorised to do so by regulations made by the Lord Chancellor.
§ (4) In this section "appropriate court" means the Court of Appeal unless in a particular case the Child Support Commissioner to whom the application for leave is made directs that, having regard to the circumstances of the case, and in particular the convenience of the persons who may be parties to the appeal, the appropriate court is the Court of Session.
§ (5) The Lord Chancellor may by regulations make provision with respect to—
- (a) the manner in which and the time within which applications must be made to a Child Support Commissioner for leave under this section; and
- (b) the procedure for dealing with such applications.
§ (6) Before making any regulations under subsection (2),(3) or (5), the Lord Chancellor shall consult the Lord Advocate.").
§ The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 23.
§ I beg to move.
§ On Question, amendments agreed to.
§ Clause 21 [Reference to court for declaration of parentage]:
The Lord Chancellor moved Amendment No. 29:
Page 15, line 44, leave out ("as amended by section 36").
§ The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 22. I beg to move.
§ On Question, amendment agreed to.
§ Clause 26 [Regulations about deduction from earnings orders]:
Lord Henley moved Amendment No. 30:
Page 18, line 42, leave out paragraph (g) and insert:
("(g) with respect to the notification to be given to the liable person of amounts deducted, and amounts paid, under the order;").
§ The noble Lord said: My Lords, in moving Amendment No. 30 I wish to speak also to Amendments Nos. 32 and 33. These are drafting amendments to clarify the intended provisions in regulations to be made under Clause 26. The first amendment is concerned with notifications that the employer will be required to give to the liable person when making deductions under a deduction from earnings order. The other two amendments deal with provisions to determine priority between orders. The current provision in Clause 26(4) does not clearly state our intention in this area, which is that the regulations may make provision as to the priority between deduction from earnings orders and orders made under other enactments. I beg to move.
§ On Question, amendment agreed to.
§ 8.30 p.m.
Lord Henleymoved Amendment No. 31:
Page 19, leave out line 19.
§ The noble Lord said: My Lords, this is an amendment which the noble and learned Lord, Lord Simon of Glaisdale, put forward on Report and which my noble and learned friend the Lord Chancellor agreed to take away and consider. After consideration, we have agreed with the noble and learned Lord that the phrase in question is not necessary to the meaning of the clause. I should like to thank the noble and learned Lord for bringing the matter to our attention. I beg to move.
§ On Question, amendment agreed to.1820
Lord Henley moved amendments Nos. 32 and 33:
Page 19, line 37, leave out from ("between") to ("under"), in line 39, and insert ("a deduction from earnings order and—
Page 19, line 42, leave out from ("(c)") to ("against"), in line 43, and insert ("any diligence").
§ The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.
§ On Question, amendments agreed to.
§ The Lord Chancellor
My Lords, I should point out at this stage that if Amendment No. 34 is agreed to I cannot call Amendment No. 35.
§ Clause 29 [Enforcement of liability orders by distress]:
Lord Simon of Glaisdale moved Amendment No. 34:
Page 21, line 28, leave out subsections (5) and (6).
§ The noble and learned Lord said: My Lords, I think that it would be convenient if I were to deal, first, with this amendment and then speak separately to Amendments Nos. 36 to 40. Although the latter deal with different points, I believe that they can be dealt with together.
§ Amendment No. 34 seeks to omit subsections (5) and (6) from Clause 29. The clause deals with the remedy of distress. It is a very harsh remedy. Most forms of execution have to be done through the courts—a typical example would be a charging order. But distress is quite peculiar; it is a remedy by way of self-help. Over centuries the common law, while allowing it, has limited it and provided safeguards. I was about to say that the strange thing about the clause—although perhaps in this Bill it is not so strange—is that the common law safeguards are eliminated with the Secretary of State and his officers who are levying the distress.
§ I shall be most grateful if my noble and learned friend will say how that can possibly be reconciled with the principle at which your Lordships have already glanced; namely, equality of all subjects before the law whatever their status, condition or class. Are we now moving rapidly in this Bill to a position where these officials have a special status, a special enjoyment, which places them before the law in a different position from other citizens? Noble Lords saw that in the clause relating to inspection, and it is again apparent here.
Subsection (5) says:
No person levying a distress under this section shall be taken to be a trespasser—
(a) on that account".
I must confess that I do not know what that means. If it alters the ordinary common law position, then it is coupled within the mischief to which I referred a moment ago. Normally, an illegal or an irregular distress constitutes a trespass giving a right to general damages and, in some cases, to special damages. The subsection continues to say:
(b) from the beginning, on account of any subsequent irregularity in levying the distress".
That is undoubtedly an alteration of the common law. One of the safeguards, or protections, given to a debtor by the common law was that any irregularity
relates back to make the whole of the distress unlawful or irregular and therefore gives rise to, at any rate, nominal damages in trespass—or possibly more, possibly to the value of the goods unlawfully or irregularly seized.
§ I ask my noble and learned friend first, does that alter the common law position? Secondly, if it does, does it put the officers of the Secretary of State in a privileged or superior position before the law from the ordinary creditor; for example, the landlord distraining for his rent or the rating authority distraining for rates?
Subsection (6) reads:
A person sustaining special damage by reason of any irregularity in levying a distress under this section may recover full satisfaction for the special damage (and no more) by proceedings in trespass or otherwise".
The drafting solecism has now been corrected and it is not important. However, it is important to inquire whether that again alters the common law. Why should the person on whom distress has been levied under this Bill be placed in a worse position than the ordinary person on whom distress has been levied, such as, for example, the tenant by his landlord or the ratepayer by the rating authority? I shall be most grateful if my noble and learned friend will say in relation to that subsection, as to the previous one, whether it alters the common law to the detriment of the debtor and in favour of an official. I beg to move.
§ Earl Russell
My Lords, I am happy to support the amendment. The principle of equality before the law as the noble and learned Lord, Lord Simon of Glaisdale, stated it, is absolutely right. It is a touchstone we have used and which has in fact been used for many centuries. It needs constant reiteration and constant effort. The noble and learned Lord is also, if I may say so as a historian, very obviously right about the general principle of distress in that any irregularity makes the whole process irregular. That is a vital guarantee of civil liberty.
Not for the first time during the passage of this Bill I have been reminded of the many proceedings involved in the levying of ship money. The point that the noble and learned Lord makes that there is no reason why the person who is subject to distress under this Bill should be worse off than anyone subject to distress for any other cause, is an important one. As the noble Lord, Lord Houghton of Sowerby, has reminded us, it is a civil debt. It should not be treated as some sort of special prerogative case which is subject to far more arbitrary standards of enforcement than anything else. I am glad that the noble and learned Lord has put down the amendment. I am happy to support it.
§ The Lord Chancellor
My Lords, subsection (5) of the clause is based on the provisions of Section 78(2) of the Magistrates' Courts Act 1980, and provides that a person levying distress shall not be prosecuted for trespass when carrying out distress, whether or not there was found to be any irregularity in the distress action. Subsection (6) of the clause is based on Section 78(3) of the Magistrates' Courts Act, and provides that any person who suffers a monetary loss as a result 1822 of an irregularity in the distress action may, through litigation, attempt to recover that loss. The result is that the loss to which the person is entitled is the special damage.
The important point that one must bear in mind in that connection is that the provisions are not novel. We are not here concerned with a creditor recovering his debt by his own action, but with the state providing to a person, for the benefit of a child, a system of recovery. I do not accept the idea that that is constitutionally improper or a failure to allow equality before the law.
Before the powers are exercised, a liability order has to be made by the court on the application of the Secretary of State. When that liability order is made, the results are the same as under the Magistrates' Courts Act 1980 to which I have referred. The way the object is achieved in Section 78 is to say:A person acting under a warrant of distress shall not be deemed to be a trespasser from the beginning by reason only of any irregularity in the execution of the warrant".Subsection (3) provides:Nothing in this section shall prejudice the claim of any person for special damages in respect of any loss caused by a defect in the warrant or irregularity in its execution".That makes it plain that the special damage is recoverable and no other. That is the provision we have reflected in the Bill. I hope in the light of that explanation the noble and learned Lord will feel able to withdraw the amendment.
§ Lord Simon of Glaisdale
My Lords, I am grateful to my noble and learned friend. I do not believe that he has specifically answered my question, but I believe that he did by implication; namely, that the provisions place officials in a different position from that of the ordinary creditor. He sought to justify that position by saying that the official is not like an ordinary creditor; he is seeking to recover maintenance for a child. That is unrealistic.
The Bill is very much a Treasury Bill. I naturally say that with no venom or animosity, but the hand of the Treasury is heavy on the Bill. By seeking a liability order and then levying distress, the child support officer is recovering money as an official for another government department. That is the reality of the position. I have drawn attention to the point. There would be no object in dividing the House at this hour, and so, without in the least conceding that this is other than another objectionable provision derogating from the equality of people before the law, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.45 p.m.
The Lord Chancellor moved Amendment No. 35:
Page 21, line 35, leave out ("special").
§ The noble and learned Lord said: My Lords, I have already spoken to the amendment with Amendment No. 22. I beg to move.
§ On Question, amendment agreed to.
Lord Simon of Glaisdale moved Amendment No. 36:
Page 21, line 36, leave out from ("regulations") to ("of") in line 37, and insert ("for the purpose of").
§ The noble and learned Lord said: My Lords, with your Lordships' permission, in moving Amendment No. 36, I shall speak also to Amendments Nos. 37, 38, 39 and 40. The amendments have two objects. The first is to try to achieve greater precision in the drafting; and, secondly, to try to limit in some way the wide general powers, especially of regulation, which the Bill again seeks to give Ministers. If amended, the clause would provide that the Secretary of State may make regulations supplementing the provision of this section, and so forth. That is a Henry VIII provision. The Minister is given power to legislate; to add to an Act of Parliament.
The amendment seeks to have the provision read:
The Secretary of State may make regulations for the purpose of this section",
and then "to" followed by paragraphs (a), (b), (c) and (d). I then seek to leave out paragraphs (b) and (d). The first part of the amendment is purely a drafting point to provide greater precision, to excise a Henry VIII provision and to give greater precision and limitation to the wide regulatory powers that are here, as so often in the Bill, sought.
Paragraph (b) would:
provide that such a distress shall not be deemed unlawful on account of any defect or want of form in the liability order".
Am I right in thinking that that again is a derogation from the common law which places the officials in a more favourable position than the ordinary distrainer for rent Or any other debt? Paragraph (d) is designed to
make provision as to the powers of the court on an appeal (which may include provision as to the discharge of goods distrained for the payment of compensation in respect of goods distrained and sold).
§ My first question is: what does the Secretary of State have to do with providing for the powers of the court by regulation? So far as I can recollect I have never come across any such case. If anybody makes regulations as to the powers of the court, it should be Parliament. The Lord Chancellor can make provision as to the procedure of the court. That is perfectly acceptable. However, what is not acceptable is that the powers of the court should be defined by regulation, least of all regulations made by the Secretary of State, who has an interest in the matter. I beg to move.
§ Earl Russell
My Lords, I am happy to support the amendment. I am grateful to the noble and learned Lord, Lord Simon, for bringing the matter to our attention. The noble and learned Lord the Lord Chancellor may recall answering a question from the noble Lord, Lord Renton, not long ago about whether the Government would abandon the use of Henry VIII clauses. On that occasion I took a rather more moderate line than the noble Lord, Lord Renton. I asked the government instead to restrict themselves to the limited circumstances in which such clauses were allowed by the Donoughmore Committee. I am beginning to wonder whether I was wrong and the rather more: fundamental position of the noble Lord, Lord Renton, was correct.
We are not following the Donoughmore safeguards here. In particular, in the explanatory memorandum to the Bill no explanation is given as to why the Henry 1824 VIII clause is necessary. Before the Bill leaves this House, I hope that the noble and learned Lord will explain precisely why these powers are necessary.
I also entirely agree with the noble and learned Lord that among possible circumstances to which Henry VIII clauses could be applied, extending the powers of the courts is one of the most undesirable. Even at this time of night, if the noble and learned Lord does not receive satisfaction, I hope that he will think seriously about what he does next.
§ The Lord Chancellor
My Lords, these amendments, particularly Amendment No. 36, are intended to restrict the regulation-making power for which we have provided in Clause 29(7). My understanding of the position, as I tried to explain in my previous answer, is that these provisions are based on the Magistrates' Courts Act 1980. The general rules contained in that Act are in no way confined only to officials. The purpose of the Magistrates' Courts Act is to provide a proper arrangement for the enforcement of magistrates' court orders. In subsections (5) and (6) we wish simply to give effect to these provisions.
§ Lord Simon of Glaisdale
My Lords, will my noble and learned friend allow me to intervene? Is he saying that the Magistrates' Courts Act contains such a Henry VIII clause?
§ The Lord Chancellor
No, my Lords, I had not reached that yet. The main clause with which we are dealing reflects the powers contained in the Magistrates' Courts Act so far as subsections (5) and (6) are concerned. My noble and learned friend is repeating, as he did on a previous occasion, the suggestion that these powers are available only to officials.
§ Lord Simon of Glaisdale
My Lords, I am sorry to interrupt my noble and learned friend but we have already passed from subsections (5) and (6). We are now concerned with the Henry VIII clause and the following subsection.
§ The Lord Chancellor
My Lords, I understand that. However, I am trying to put this into its proper perspective. The power to make regulations under subsection (7) is intended only to supplement the provisions of the clause, not to allow amendment of the statutory provisions which a Henry VIII clause would require. This allows regulations which are simply supplementary to the provisions of the clause. It is intended to allow the section to contain such supplementary provisions as may be necessary properly to take account of the circumstances to which the clause applies.
Turning to Amendments Nos. 38, 39 and 40, these seek to restrict the scope of the matters which may be included in the regulations. As the subsection is drafted at present, examples are provided as to the matters which are likely to be included in the regulations. I agree that it is important that examples should be given.
We do not seek to introduce novel provisions for enforcement generally or for distress in particular. 1825 With Amendments Nos. 39 and 40 the noble and learned Lord seeks to remove from the scope of the regulations two particular provisions: first, subsection (8) (b), which might, but for this provision, call into question the validity of the liability order. For example, there may be a misspelling of the name of the defendant or some other minor error. My noble and learned friend debated this point at Committee stage when he also had an amendment down to remove this provision.
I have considered the matter and think it necessary that the defect or want of form in the liability order should be capable of being dealt with. This provision is not concerned with a major defect which would have been established when application for the liability order had been made to the magistrates. In such a case a liability order would not have been made under the provisions of Clause 27(3) of the Bill.
In practice, if, for example, the person who is the subject of a distress action protests that he is the wrong person or the order is for the wrong amount, the bailiffs will refer back to the agency, as they refer back to the courts now in such circumstances. Accepting this amendment would have the consequence of not including this matter in the regulations and could render the distress unlawful through some mere technicality of the kind that I have mentioned. In my most recent letter to my noble and learned friend I suggested that this could well invite frivolous litigation.
With Amendment No. 40, my noble and learned friend seeks to remove from the matters to be included in the regulations the procedure to be followed for anyone who objects to the levying of distress against them. Such appeals will be to a magistrates' court. The regulations will set out the powers of the magistrates' court when hearing such an appeal, including the consideration of any compensation award which might be appropriate.
The point is that the magistrates' court itself is the court that has granted the liability order in respect of which the diligence or distress has proceeded. In my submission these are appropriate powers to be granted to the Secretary of State in the circumstances. He would be making the regulations under the authority of Parliament and he would be answerable to Parliament. I submit to your Lordships that these are appropriate provisions to have in the Bill. I shall be glad to consider further with my advisers the matters which my noble and learned friend has raised to see whether any of these measures may be restricted further. But as I am advised at present, I have concluded that these are necessary provisions for the regulations to contain.
§ Lord Simon of Glaisdale
My Lords, I am obliged to my noble and learned friend for replying to the debate. Your Lordships may have heard a story from the southern states of America at the time when the coloured population was first given a limited franchise subject to an educational test. An old negro presented himself to the registration board for his test. He was 1826 asked what hermeneutics meant. He said sadly, "I guess it means that you do not want me to have the vote". As we listen to the dazzling web of argument spun by my noble and learned friend, we reflect sadly that it means he does not want this or any amendment to be accepted which derogates in any way substantially from the powers given by the Bill.
I turn to the matter of the Henry VIII clause. I remember asking my noble and learned friend during the passage of the Courts and Legal Services Bill whether the Government accepted the recommendations of the Donoughmore Report to which the noble Earl has just referred. My noble and learned friend said that in general the Government accepted those recommendations. However, this provision is right outside anything that Donoughmore countenanced, not merely in the formalities which are demanded but also in its substance. My noble and learned friend said that the provision in the Bill does no more than allow the Secretary of State to make any necessary regulations to supplement the provisions. However, he has read in the word "necessary". That word does not appear in the Bill. The Bill gives an unlimited Henry VIII power and that is quite unacceptable.
As regards paragraph (d), my noble and learned friend merely said he regarded it as entirely appropriate that the Secretary of State should lay down the powers of the court. He did not say why he thought that was appropriate. I was not surprised that he did not say that as to my mind it is absolutely unheard of to allow a Minister to define the powers of the court in respect of cases in which he has an interest, or in any other case. That is no business of the Secretary of State.
My noble and learned friend has said he will consider this matter with his advisers. However, he said that as at present advised, he sees no reason to change the provision. However, he did not say why he felt that way. We are left in the position of the old negro. We know what this means—that no substantial amendment will be accepted. As Disraeli said,A majority is the best repartee".My noble and learned friend knows that he has a majority outside the Chamber. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 37 to 40 not moved.]
§ Clause 32 [Commitment to prison]:
Lord Henderson of Brompton moved Amendment No. 41:
Page 23, line 2, after ("person") insert ("and that the liable person has adequate means to pay at his disposal").
§ The noble Lord said: My Lords, we have now reached the amendments to Clause 32. I thought it right that we should not let this clause, which relates to commitment to prison, pass without comment on Third Reading. Unfortunately the noble Lord, Lord McGregor of Durris, cannot be present today. I believe he has apologised to the noble and learned Lord the Lord Chancellor for his absence and he has asked me to apologise to the House. The noble Lord has figured prominently in our previous debates on this clause. We miss his counsel.1827
I am extremely grateful to the noble and learned Lord the Lord Chancellor for the undertaking he gave on Report. He said:
I have in mind to propose amendments to the Bill to give power to make garnishee or charging orders".—[Official Report, 29/4/91; col. 582.]
That is extremely welcome. It would have been pleasant if the noble and learned Lord had been able to table amendments for Third Reading. We fully understand that he has perhaps not had time to do so and wi11 give effect to that undertaking in another place.
§ This amendment is slightly different, but I should like to place it in the context of the debates that we have had in this House on the initiative of the noble and learned Lord, Lord Simon of Glaisdale, on the subject of distress and of the general feeling in the House that we should do without imprisonment, if at all possible, for default of maintenance.
§ The amendment is designed to have the effect of imprisoning defaulters only where there is wilful refusal or culpable neglect and not where the absent parent cannot pay. It is self-evidently futile to imprison a maintenance defaulter who cannot pay. That would be merely spiteful. It would also be self-defeating because it would add to the costs in relation to the defaulter who cannot pay. In addition to the cost of paying maintenance out of social security one would be adding the cost of prison, which is considerable, and getting no further.
§ As the Bill is drafted, the only methods of recovery envisaged are deductions from earnings and, as the noble Lord, Lord Simon of Glaisdale, said, distress. That means that distress and imprisonment are likely to be used extensively. Amendments designed to eliminate imprisonment have not met with favour from the, Government, to put it mildly.
§ There are alternative approaches, such as to putting a charge on property. Using charging orders—which the noble and learned Lord has promised us—whereby the child support agency could place a charge on property held by the absent parent, would ensure that when property was sold the agency would be able to recover the debt. That is a much more effective way of guaranteeing—in the cases where there are no earnings—that the agency would be able to recover amounts owing than the use of distress or imprisonment. That will be a highly important amendment.
§ Using bailiffs to recover debt is highly inefficient. It could mean that even if sums were raised to clear the maintenance liability which has accumulated, the absent parent would be less likely to be able to fulfil future liabilities because if he is subject to distress he will have to replace his furniture and equipment. It is thoroughly inefficient. Incidentally, imprisonment can lead to loss of livelihood and economic discrimination. It; can have a severe impact on the child or children in the family.
§ During previous discussions we heard about the Payne Committee's views on the enforcement of judgment; debts. The Committee reported in 1969. It wished imprisonment for defaulters to be abolished 1828 forthwith. However, three members considered that premature. If it was premature in 1969 it may be thought to be mature in 1991.
The Finer Committee, reporting in 1974, stated:
Everyone agrees that sending maintenance defaulters to prison is an essay in social and economic futility as far as the tax payer is concerned".
This is a taxpayers' Bill and those words are highly relevant to this Bill. The Finer Committee considered that imprisonment is:
inadmissible as a sanction to enforce family obligations".
That cannot be repeated too often. Finally, the May Inquiry into the UK prison services in 1979 also recommended that prison should be avoided wherever possible for maintenance defaulters.
§ I said "finally", but the real final word comes from Lord Justice Woolf, and I quoted him on a previous occasion.
§ The amendment is designed to keep out of prison those maintenance defaulters who cannot pay. I accept that there has to be a final sanction. I accept that we have searched for alternative final sanctions, without success. Therefore I have to accept reluctantly that prison should be the final sanction.
§ We have been very successful in reducing the number of maintenance defaulters over the years. In 1976 2, 876 men who did not pay up were imprisoned. There was a huge improvement in 1986 when only 616 men who defaulted were imprisoned. Indeed there has been an improvement since then, because in 1989 only 316 were imprisoned. I should like to see that reduced to nil or next to nil, even though I have to concede that prison has to be preserved as a final last resort.
§ This amendment would ensure that only those who had the means to pay and refused, or neglected, to pay went to prison. We should be able to improve on the 1989 figures by not allowing fine defaulters who cannot pay to be sent to prison. That is a self-evident exercise in futility and a costly exercise at that. I beg to move.
§ 9.15 p.m.
§ Lord Houghton of Sowerby
My Lords, of course this whole clause is an abomination and we are dealing with only part of it on this amendment. As the noble Lord, Lord Henderson of Brompton, was speaking, I recalled the provisions in a Finance Act of several years ago related to delays in the payment by traders of VAT. As Members of your Lordships' House will probably recall, under the Finance Act of several years ago the Commissioners of Customs and Excise have been given power to apply their own code of penalties.
The astonishing step was taken of removing from the courts the power to impose penalties for unreasonable delay in handing over VAT receipts. These penalties which are written into the Finance Act are non-discretionary, rather like the assessments under this Bill, where the bureaucracy pleads that it has no room for manoeuvre; they are there and they have to be applied.
In that Finance Act, they provided for an outlet in certain cases where they could say that a person had reasonable excuse, but they stipulated that shortage of 1829 money could not be accepted as a reasonable excuse for not paying. It seems to me that we are in very much the same position in Clause 32.
The fact that you cannot pay is no reason for being sent to prison for culpable neglect or refusal. I hope that this clause will find no place in the final edition of this Bill. I cannot see how we can reconcile this with the concern about the number of people in prison and about how the numbers in prison constitute an intolerable burden upon the Exchequer, upon police forces, upon prison officials and so on.
How does it help to support children to send to prison those upon whose payments they rely? This is so unacceptable that I sincerely hope that no future government will tolerate some of these objectionable clauses in this scheme of things. I also hope that recovery can remain, as a last resort, as deductions from wages or distraint on personal effects. I suggest that if there is anything to go further than that, it would be a period of compulsory, unpaid community service, which might be some penance for failure to pay over the money. In many cases, refusal or neglect to pay will not injure the children who are being supported on child benefit or social security. It will merely lessen the recoupment by these methods of moneys which are being paid out of the social security fund. Can we not be realistic? Can we not have some sense of humanity in this matter? Do we have to send people to prison? And in a minute or so apparently we shall be asked to say that it will not exceed six weeks. What nonsense it all is. To put it in a Bill of such social importance and sensitivity is quite unacceptable.
Along with the noble and learned Lord, Lord Simon of Glaisdale, I feel that this Government have no sense of accommodation in dealing with Bills that go through this House. If they set about a punitive code they apparently cannot depart from it. I suggest quite seriously that eventually we shall have to give this new civilian police force a separate identity and a separate status in the scheme of penal practice. In the meantime I hope that we shall obtain a concession on this amendment or throw out Clause 32 altogether.
§ The Lord Chancellor
My Lords, there is not much between the noble Lord, Lord Henderson of Brompton, and me on this clause. I think that the proposal of the noble Lord, Lord Houghton, for forced labour as an alternative is perhaps not an advance. It is only as a last resort that that particular form of coercion should be allowed.
The clause as drafted is intended to make clear the point that the noble Lord, Lord Henderson, made in his speech. He mentioned a number of committees that have dealt with these matters, bringing us right up to date with that of Lord Justice Woolf, who dealt generally with imprisonment. I understand that the Payne Committee had in mind the enforcement procedures that it wished to see. The report, taken as a whole, regarded an effective enforcement procedure as necessary as a preliminary to the abolition of the custody sanction.
We have made clear first of all that the court can impose this warrant for commitment only if there has been wilful refusal or culpable neglect on the part of 1830 the liable person, and that follows an inquiry in his presence into his means. I believe that that has the same effect as the passage that the noble Lord now seeks to put in the Bill. I cannot see how there could be wilful refusal or culpable neglect unless the person has at his disposal adequate means to deal with the obligation and either wilfully refuses to hand it over or simply culpably neglects to bring it into the power of the person in whose favour the obligation is couched. So I believe that there is nothing at all between us on the principle.
I agree with a good deal of what the noble Lord, Lord Henderson, said in support of the amendment. I also note—I am very interested to hear it—that he has considered carefully whether there is any other ultimate sanction available. I too have considered that matter carefully and I do not think that there is an ultimate sanction. But to reduce any use of this measure we can make as effective as possible the other methods of enforcement. We mentioned the two methods of enforcement already in the Bill. I have promised that the other two will be put in. Sadly, the amendments were not ready for this stage of the Bill but I have undertaken that the amendments will be included. Accordingly, I believe that we have done as much as we can to meet the objective of the noble Lord's amendment. In the light of what I have said, I hope that he may feel able to withdraw it.
§ Lord Henderson of Brompton
My Lords, I am grateful to the noble and learned Lord for his reply and for saying that we are almost together in our thinking on this important subject. I am sad that he cannot accept my form of words. As he said, the form of words that I use is implied in the Bill. My words spell it out. If they are not in the appropriate place, will the noble and learned Lord consider putting these words or something like them in the right place in the Bill? It is important that the proposition should be in the forefront of the minds of those responsible for bringing someone to the brink of imprisonment. It would be comforting to know that it was brought to the forefront of their minds when they considered what to do with fine defaulters who had no money. I am not convinced that at present fine defaulters with no money are not sent to prison. It should be an absolute requirement that fine defaulters who have no money are not sent to prison. Prison is a final means of extracting money. If a man has no money there is no sense in sending him to prison.
I strongly urge the noble and learned Lord to consider spelling that requirement out on the face of the Bill. It would help immensely if he could do so. Perhaps I may appeal to him to respond to that suggestion.
§ The Lord Chancellor
My Lords, with the leave of the House, perhaps I may add this. I have indicated that I believe that the words in the Bill have exactly that meaning. However, I am perfectly content to consider further whether the words suggested by the noble Lord are in any way better than those in the Bill. If the noble Lord is prepared to leave it like that, I am prepared to consider the matter further. However, I believe, and am advised, that as currently drafted the 1831 provision exactly reflects our intention: that the court should be satisfied that the refusal is a wilful default or a culpable neglect. That means that the basic requirement is that the person in question has the necessary means to meet the judgment if only he would use them.
§ Lord Henderson of Brompton
My Lords, I understand that. I am grateful to the noble and learned Lord for considering what I said. The courts may take the view that a person had some money concealed somewhere which the child support officers have not been able to get from him and that a term in prison might reveal those sources.
I am not happy that all courts will take the view that I wish them to take: that a person without money should not be sent to prison for a fine default. For that reason I should like that stated expressly on the face of the Bill.
I am extremely grateful for what the noble and learned Lord said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Lord Chancellor moved Amendment No. 42:
Page 23, line 23, at end insert ("but shall not exceed six weeks")
§ The noble and learned Lord said: My Lords, Amendment No. 42 implements an undertaking that I gave at Report stage to bring forward an amendment to ensure that the maximum sentence of imprisonment is six weeks for non-payment of a maintenance order. That replicates the existing law, which has always been our intention. I beg to move.
§ 9.30 p.m.
§ Lord Stoddart of Swindon
My Lords, how many six-week periods can be imposed? For example, if a person comes out of prison after serving a sentence of six weeks and culpably continues to refuse to pay or is unable to pay can he be imprisoned for a further six weeks? Can the situation go on ad infinitum or is the six-week period conclusive?
§ The Lord Chancellor
My Lords, the provision reads:The maximum period of imprisonment which may be imposed by virtue of subsection (6) shall be calculated in accordance with Schedule 4".At the end of that line we have added the words:but shall not exceed six weeks".Perhaps I need to consider the matter, but I believe that six weeks is the maximum period that could be specified in a warrant. It would arise in respect of a proven default. I do not easily envisage a situation in which the warrant could be renewed on the basis of exactly the same facts and in respect of precisely the same default. However, another default committed at a later time would be a different matter but one could not have a second imposition in respect of the same default.
§ Lord Stoddart of Swindon
My Lords, I understand therefore that the child support officer and the Secretary of State must go back to the beginning. They must apply to the court to make a person liable and 1832 then attempt to distrain or use other methods to obtain money and then go back to the court for a further warrant. Is that the procedure?
§ The Lord Chancellor
My Lords, perhaps I may answer the noble Lord off the cuff. My understanding is that he is correct. If I discover that my belief is incorrect I shall advise the noble Lord. I understand that the warrant can be issued only in respect of a default and in the circumstances described by the noble Lord. If I am wrong I shall write to the noble Lord.
§ On Question, amendment agreed to.
Earl Russell moved Amendment No. 43:
Leave out Clause 32.
§ The noble Earl said: My Lords, in rising at this time of night to move the final abolition of the imprisonment for debt, I find that I am addressing a rather bleak House. For the third time in succession a matter of such importance has arisen after dinner. When I arrived at the House today I had expected that the amendment would be in the capable hands of the noble Lord, Lord Mishcon, and my noble friend Lord McGregor of Durris. I did not know that I was to move the amendment until about 40 minutes ago and therefore your Lordships will be presented with a slightly undigested argument.
§ The general power of imprisonment for civil debt was defended for a long time with passionate conviction. I remember as a boy reading Bleak House and finding it impossible to understand why the power had ever been defended. Having listened to the high quality of the argument put forward by the noble and learned Lord in respect of Clause 32 I understand the argument a little better. I cannot say that I find it any more persuasive because the central point against imprisonment for debt of all kinds is that it does not do any good. To pay off a debt one needs money. In order to have money one needs earning power. If one is put into prison one loses earning power and may have difficulty in recovering that power when released. If the person were unable to pay the debt before he went into prison he will be even less able to pay it afterwards.
§ It took a very long time to bring about the abolition of general imprisonment for civil debt. I believe it took something like 200 years of continuous argument to get that across. I hope that it will not take quite as long on this issue. If it does, I am sure that the noble Lord, Lord Houghton of Sowerby, will be with us to see it through.
§ I shall not dwell on the reports of the Payne Committee and the Finer Committee. My noble friend Lord McGregor of Durris has drawn the attention of the House to those matters. The crucial point to which the noble and learned Lord the Lord Chancellor has called attention at all stages is the question of alternative sanctions. No one who has spoken on this amendment at any stage of the Bill has ever argued that no sanction should exist.
§ In Committee the noble Baroness, Lady Faithfull, proposed an alternative sanction which appears so far not to have found favour. I admit that between half past eight and now I have not come up with a new 1833 alternative sanction. However, I do not believe that it can be beyond the wit of the Government to find any form of alternative sanction if they give their mind to it. Moreover, if an amendment of this sort were carried it might, like the Johnsonian threat of death, have the effect of concentrating the mind wonderfully.
§ The crucial point which my noble friend Lord McGregor of Durris quoted—and I do not remember whether it was from the Payne Committee or the Finer Committee—was that there should be civil sanctions against the income or property of the debtor, either by attachment of earnings or seizure of property. We want the man's money; we do not wish to shut him up in prison.
§ I cannot believe that it is beyond the wit of the Government to find powers for seizing a person's property. We have just listened to a debate on Clause 13 which shows that they are capable of considerable ingenuity in that respect. I do not suggest for a moment that all of that ingenuity should be devoted to this matter. I hope that I am too good a libertarian for that. However, if just a quarter of that ingenuity were devoted to seizure of the debtor's property, it may be possible to do something about it.
§ If the debtor has no property, then he can be imprisoned many times but there will still be no money forthcoming. Either the sanction will be effective or nothing will be effective. I agree entirely with my noble friend Lord McGregor of Durris that that is the line we should follow.
§ I agree also with all the arguments developed this evening to the effect that debts owed under this Bill should not, whatever the noble and learned Lord says, be given a special status above and beyond all other debts. I do not believe that they should be treated as having a mystical, semi-royal quality which entitles them to be collected by prerogative when nothing else can be. That is typical of what I have described in the past as the obsessive approach behind this Bill. That would be less in evidence if this clause were removed. I beg to move.
§ Lord Carter
My Lords, on these Benches we support the amendment. The general points have been made extremely well by the noble Earl, Lord Russell. I repeat the point made by my noble friend Lord Mishcon on Report; namely, the effect on the children. He wondered what would be the effect of the father saying to his child "Your mother is responsible for sending me to prison". As my noble friend said, that is a ghastly thing with which to face a family. Although it is argued that very few men will be sent to prison, there is always the chance that the father will say to the child that the mother is threatening to have him sent to prison.
When the noble and learned Lord the Lord Chancellor replied to the debate on Report, he did not answer that. When he replies to the debate I should be grateful if he could deal with the point as regards the effects on the children if this clause remains in the Bill.
Finally, the Payne Committee was mentioned on the last amendment, and also by the noble Earl, Lord Russell. It contains a quotation which reads, 1834Imprisonment of maintenance defaulters is morally capricious, economically wasteful, socially harmful, administratively burdensome and judicially wrong. We wish it abolished forthwith".It will do no harm also to repeat the quotation made by the noble Lord, Lord Henderson, on the previous amendment from the report of the Finer Committee, which states:Everyone agrees that sending maintenance defaulters to prison is an essay in social and economic futility as far as the tax payer is concerned".Apart from the effect on the welfare of the child it would be helpful to know whether the noble and learned Lord the Lord Chancellor agrees with those two quotations.
§ Lord Stoddart of Swindon
My Lords, I shall not rehearse all the arguments used when we last discussed this matter on Report. But it is worth repeating that it is a futile exercise to send people to prison at huge cost to the state. The minimum cost to the state of keeping a person in prison is £260 per week. We have just heard that the maximum period will be six weeks, and that will probably be the norm. That amounts to £1, 560 a term. That is probably more than the social security would pay if they had to pick up the default. Furthermore, as I pointed out on Report, while the man is in prison he will not be earning and he will slip further into debt. What is more, when he comes out he may well have lost his job and will be in no position to pay anything at all.
Those arguments have been made and 1it is clear that they have not found favour with the noble and learned Lord the Lord Chancellor. He is entitled to his point of view. All our debates on this matter of defaulting parents, particularly fathers, indicate that we are making an exception and an example of these debtors; we are making an example of fathers and treating them differently from other debtors.
Clause 32 (Commitment to prison) states:Where the Secretary of State has sought to levy an amount by distress under this Act but it appears to him that no, or insufficient, goods can be found on which to levy the amount, he may apply to a magistrates' court for the issue of a warrant committing the liable person to prison".There is no alternative. He does not apply to the courts to enable them to hear the case and decide on the punishment as courts normally do. He can apply to the court for only one punishment—that is, commitment to prison. In my view that is nonsensical. If an application is made to a court and the court is a free court which wishes to try a case and take all the considerations into account, it should not be told in advance what the penalty shall be. Otherwise, it is not a free court in a democratic society. When the matter is referred to a court, the court should be allowed to decide the punishment.
Taking the matter further, the court may decide that the punishment should be a fine. I venture to suggest that most courts would make that decision in the first instance. They would say that the default is worthy of a fine. I very much doubt whether they would say that it was worthy of imprisonment. In any event, there would certainly be a suspended sentence. We now have suspended sentences even for robbery 1835 with violence. I venture to suggest that given the opportunity to make a decision on the merits of the case, a court would say, "We shall impose a fine".
Matters become equal under those circumstances. If the man does not pay the fine then it is open to the court to commit him to prison. The court is able to commit anyone to prison for contempt of court. Now we begin to see a way in which equality can appertain. I suggest to the noble and learned Lord that that is the way forward and it should have been so in the first place. We have mentioned alternative sentences before. There is no doubt that the community service order should be considered. Under the Criminal Justice Bill it can be considered in a different way from that in which it is considered at present. These matters should be considered very seriously before we write into a 13ill the only penalty for default which is, and will be, a term of six weeks' imprisonment.
I shall support the amendment if it is put to a vote. I very much doubt that it will. Therefore, I appeal to the noble and learned Lord once again to consider this matter again and to consider it very seriously.
§ 9. 45 p. m.
§ Lord Houghton of Sowerby
My Lords, the Bill is laced with hostility. The clause, like so many others, conveys a presumption of guilt towards the persons, mostly men, who will come within its provisions. That is a very bad thing. A great many people concerned will not feel guilty. They will believe that there is something else to be said and they will probably say it to the child support officer. He will probably say that he is very sorry but he cannot possibly listen to what they have to say because his remit is confined to the recovery of money.
What I have just said leads to the presumption that the child support officer will encounter some very obstinate people. They will feel that they have no right to be dealt with in this way. The issue will probably arouse feelings of hostility towards their womenfolk. Difficulties may be put in the way of amicable relations between the child support officer and the person he is seeking. It may be that this obstinacy will lead to a form of martyrdom.
As a boy I lived in a home where a father refused to pay the education rate imposed by the Government in 1902 In part that levy was to help finance denominational schools. On more than one occasion I have recounted to the House what happened because of that kind of obstinacy. Some people would call it almost bigotry. The noble and learned Lord the Lord Chancellor has had some experience of that.
People in that state of mind are very difficult to move. They become their worst enemy. What are we going to do with these people? They might say, "I' m not going to pay. I will go to the bitter end and you can do what you like about it". These are not normal debtors and they are not criminals. They are not all people who are trying to escape their responsibilities, which seems to be the keynote of Mrs. Thatcher. They are separated from the mother of their children and there are reasons which in their own mind stand in the way of them fulfilling what is conventionally regarded as the obligations of a father towards his children.
1836 The Bill offers no inkling of any imagination having been used in its construction. It is disciplinarian; it is authoritarian and it is hostile. The child support officer, when it is realised that he is around, will be known to be visiting someone who is regarded as a defaulter in the payment of maintenance support for his children. The Bill will function in a very bad atmosphere. The child support officer, who will have a certificate and other documentation to hold out to the public to disclose his identity, will be as well known as the relieving officer in my youth and the child attendance officer. It will be known that wherever he goes there is trouble and some social delinquency somewhere which officials are seeking out. That is why I think that to regard prison as the kind of conventional ending to what may be a bitter struggle between a so-called absent father and the authorities will lead to very disagreeable consequences.
I am one of the very few noble Lords in this House who was born while Queen Victoria was on the throne. Although for a couple of years or so after I was born I was oblivious to her declining faculties and her reputation, I recall the atmosphere and tradition in the house in which I was born. My father hated the Queen just as much as he hated the House of Lords. However, I have recovered from his bias against the House of Lords.
§ Lord Mishcon: And the Queen!
§ Lord Houghton of Sowerby
I forgive my father for that. Anyone born in the reign of Queen Victoria should now think of recalling her and telling her that wherever she may be all is forgiven. She should come back and bring her debtors prisons with her. To encourage her to do so we could say that these fellows will go to quod for only six weeks; in your time they went for as long as was necessary to get the money, but we have learnt greater compassion than existed in the days of Victorian values. Never forget the Victorian values! They were right at the time and they were pretty disagreeable. They were mostly humbug and hypocrisy.
I feel that some people will approach the Bill with a feeling that it is all humbug and hypocrisy. It tries to deal with people in a stereotyped way, using the conventions of the law of the land to deal with delinquency or neglect in one form or another. It seeks to do so by docking wages and restraining on goods; sending people to prison and sending them back again, and so on. It is all monstrous on the eve of the 21st century. We should be able to organise things rather better.
There is no doubt in my opinion that a system of family courts would have overcome many of these problems. We are not given the opportunity to do that. We go blindly on in a disciplinarian way—a combination of Queen Victoria and the back-room of a shop in Grantham. I am unable to believe that that is the right cradle in which to develop a new form of legislation in order to deal with this very old problem.
Not all men who are in this position have failed in their own concept of where their duty lies. It is part of the great and growing problem of marital and sexual 1837 relations which we do not understand and with which we can only deal according to conventional ideas. It may be necessary to establish some form of contract, apart from that contained in the prayer book and marriage services. What is the contract between men and women who are living together and who are not lawfully married? There is some form of understanding there. There could well be a civil contract which has to be observed and under which action could be taken. But no, we go blindly on saying, "They mustn't escape their responsibilities; the children must come first", and all the other idioms of social change and reform.
It is high time that we had a government with a very different outlook on the problem. However, I am not sure whether we will get it either way; nevertheless, it is time we had it. Public pressure will have to be brought to bear on the problem. I am fully in accord with the idea of the noble Lord, Lord Henderson, that what we want is a great deal more light thrown upon the position of people who will come within the scope of the Bill. If it passes into law in its present form, some people will get a very rude shock indeed.
Finally, I feel that I must say that if we pass Clause 32, for my part, I would wish to have placed upon it the same tag of reservation so far as concerns my noble friends on this side of the House; namely, that if we let it go it is only because of the lateness of the hour and the circumstances in which we had to deal with it. We must let the House of Commons know that if the Bill comes back to this place in this form in many of its objectionable respects, then some of us will have to make up our minds to exert all the strength we have in your Lordships' House to give it a very rough time.
§ The Lord Chancellor
My Lords, Clause 32 embodies existing law generally speaking so far as concerns the maintenance of children. There is no question of this being a punishment for some past misdeed for which, for example, a fine would be appropriate. Apart from anything else, if you cannot get the money for the maintenance from the person, the chances of getting the money for an additional fine must be extremely remote. Therefore, the purpose of the imprisonment provision in the clause is to provide a sanction under which the payment will be made. That is clear from the terms of the warrant.
Subsection (6) says:A warrant issued under this section shall order the liable person—(a) to be imprisoned for a specified period;—that cannot exceed six weeks—but(b) to be released (unless he is in custody for some other reason) on payment of the amount stated in the warrant".The idea is to use the sanction of imprisonment to obtain payment for the continuing wrong of failure as a result of culpable neglect or wilful default to pay the maintenance mentioned in the warrant. That is why I do not believe the sanction is to be equated with punishment in the way, for example, that the noble Lord, Lord Stoddart of Swindon, did. I wish to set 1838 aside the question of community service orders: a community service order involves someone doing something. One can only achieve that if the person is prepared to agree to the community service order. The fundamental point of a community service order is that it must be agreed to. It is no use as coercion in the case of someone who refuses to do what is required. It is used as a punishment. If people are prepared to agree to it, it may be preferable to the alternative.
The idea of the sanction is to persuade the person in question to pay up. The noble Earl, Lord Russell, was right to refer us to the Johnsonian point that the threat of death concentrates the mind wonderfully; the threat of imprisonment concentrates the ability to pay wonderfully. I believe experience shows that it usually does. The noble Lord, Lord Henderson of Brompton, pointed out the recent considerable fall in the use of that sanction. I have made it clear, and I want to do so again, that we shall provide the additional powers required to obtain the money under the garnishee order and the charging order which are to be used before the sanction. It is only where there has been wilful refusal or culpable neglect on the part of the liable person, ascertained after an inquiry into his means, that the power is available.
I shall deal with the question asked by the noble Lord, Lord Carter. We are talking about a power available to the court, and when deciding whether to exercise it a court will take account of all the circumstances. There is no reason why circumstances such as he mentioned should not be taken into account. Even if there is a failure to pay, there is no obligation on the court to send a person to prison. There is no power to do so unless the conditions are satisfied. If the conditions are satisfied, it is a discretionary power only and the matters mentioned will be taken into account.
The chances are that the person in question may be offering defiance in respect of the payment of maintenance, and in those circumstances the effect that that will have on the children is a matter that may be somewhat problematical. Whatever the situation is, the court can take account of it.
§ Earl Russell
My Lords, I thank the noble and learned Lord for that careful and thoughtful reply. The difference between us may not be immense even if its practical effect may be considerable. I concede instantly his point that the provision embodies the existing law; it is the existing law with which a good many of us are dissatisfied.
I accept—it was clear from the noble and learned Lord's reply—that he has tried to find an alternative sanction. I agree with him about the difficulty of using a fine. I was recommending seizure of property and attachment of earnings. I am not convinced that anything which is not solved by one of those two remedies can be solved at all.
The noble and learned Lord argued that the sanction was not to be equated with punishment. In intention perhaps; but in effect, if one is sent to prison it feels rather like punishment. I am reminded of the story of when the Kaiser, being in infancy chastised by 1839 his nurse, found her saying, "This hurts me a great deal more than it hurts you". "Oh", said the Kaiser, "and n the same place?"
I entirely agree with the noble and learned Lord that the threat of imprisonment concentrates the mind wonderfully, but of course the fact of it does not. Here we ha re the central dilemma in the debate about the clause; that where the sanction is used it denotes failure and provokes further failure. In effect, these people are being imprisoned pour encourager les autres. Since it was one of my noble ancestors who was the original man shot pour encourager les autres, I have some slight doubt as to whether the principle is entirely fair. Nevertheless, at this time of night I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 33 [Arrears of child support maintenance]:
Lord Carter moved Amendment No. 44:
Page 24, line 42, at end insert:
("() In cases where the Secretary of State has assessed the maintenance requirement and determined the amount to be paid by the absent parent and the absent parent has failed to pay, the Secretary of State shall, where requested to to so by the person with care, pay to the parent with care that amount of the requisite sum necessary to guarantee the income of the caring parent at least to the level of income support. The Secretary of State shall use his powers under section 3 to recover the whole of the liable sum due from the absent parent and pay on collection any outstanding sums due to the caring parent.").
§ The noble Lord said: My Lords, this is an amendment that we dealt with at Report but there are still some clarifications which would be helpful to the House on the answers given at Report by the noble Lord, Lord Henley. The aim of the amendment is to ensure that lone parents' income is not disrupted where the absent parent fails to pay the agreed maintenance award. We feel that without this amendment, some lone parents will have to live on incomes below income support level and others will be forced to give up their jobs and return to benefit.
The Principle is accepted by the Government. At col. 587 of the Official Report on 29th April the noble Lord, Lord Henley, said that the Government would continue,
the arrangements for income support claimants where, in some circumstances, benefit is paid gross of any maintenance received, while the Secretary of State collects the maintenance on behalf of the claimant".
Thus the principle is accepted. The recent DSS survey conducted by Bradshaw and Millar, of which I am sure the noble Lord is aware, found that 28 per cent. of the lone parents who were questioned had experience of maintenance contributions being deducted from their benefit when they were not actually receiving maintenance. Only 6 per cent. had experience. of the DSS collecting maintenance directly from their partner.
Since we believe that the Bill will ensure that more lone parents than at present will be reliant on maintenance payments, it is important that when he replies the noble Lord should deal with the point on the figures which emerged from the DSS survey.
The noble Lord also said that:
In the event of a person with care in receipt of benefit not receiving full payment of maintenance, it is intended that the
agency will be able to inform the benefit authorities directly, so that the benefit can be adjusted quickly"—[Official Report, 29/4/91; col. 587.]
I understand that the median processing time for change of circumstances for lone parents on income support is 12 days. So even if the child support agency notifies the department straightaway that maintenance has not been paid, in half of the cases the lone parent will have to manage for more than 12 days on an income below income support level.
Finally, the noble Lord made the point at Report stage that there was a need to differentiate. The Government need to provide some protection for those on income support. However, again at col. 587 he argued that,
if a person with care is not in receipt of benefit, the use of the agency's services is entirely voluntary and it would not be right for the state to intervene
The noble Lord seems to have missed the point that lone parents on family credit and on disability working allowance will also be obliged to claim maintenance. Yet there is to be no safeguard of their income if their maintenance is not paid. That will obviously lead to severe problems for those on family credit because that benefit can only be reassessed every six months. These points are intended to obtain an answer and clarification on the replies we were given at Report stage.
§ Since we are dealing with family credit, my final point is that in a Written Answer on 6th February 1991 at col. 191 of Hansard for the other place, the Under-Secretary of State, Miss Widdecombe, stated that the response time for family credit applications in 63 per cent. of cases was 20 days; in the other one-third of cases the time was longer. I believe that we all agree that three weeks or more is a long time for a family to live below the benefit level. How many will be forced to give up their jobs and return to income support? I beg to move.
§ Earl Russell
My Lords, this is another of the string of amendments which assert the principle that children come first and without which it would be difficult to apply that principle to the Bill. The vital statistics that the noble Lord, Lord Carter, quoted are of the number of people who are assessed for benefit on the assumption that they are receiving maintenance but who are not in fact getting it. If the amendment is not accepted, they will be a great deal worse off as a result of the Bill. I believe that that was not the Government's intention and I hope it is not what they will do.
§ Lord Henley
My Lords, this amendment closely resembles the previous amendment of the noble Lord, Lord Carter, except that he has added the words,where requested to do so by the person with careWith respect, I must say that reinforces the arguments I put on a previous occasion, particularly as the noble Lord has already acknowledged that the situation when a parent with care is in receipt of income support will normally not be a problem because income support payments can be adjusted very quickly to take account of circumstances where maintenance has not been paid. The noble Lord said that the median was about 11 days to process a claim for income support. 1841 I believe that our record is much better than that. We have a target of five days, and that target is met on many occasions. We do not therefore believe that the parent with care will suffer.
The noble Lord pressed me on the matter of family credit. He was anxious about parents with care in receipt of family credit. As the noble Lord knows, this is a fixed rate benefit paid for a period of 26 weeks. During this period changes in income or circumstances will not alter the level of benefit payable. Paying family credit gross would involve a revision of the amount of family credit every time the rate of maintenance changed. This would erode a fundamental principle of family credit that the rate of benefit should not be reviewed. It would not be right to allow a review of entitlement to benefit following a change in one source of income, but not following changes in other forms of income. That would probably introduce extra complexities into the family credit scheme that would not be helpful and might lead to delays in the processing of claims.
The noble Lord made some further points but I am afraid that I have momentarily forgotten them. I hope that I may write to the noble Lord because I suspect this hour of the night is not the right time to deal with those matters.
§ Lord Carter
My Lords, I am extremely grateful to the Minister. My intention was to obtain some final clarification on the points that I raised. I admit the points are rather complicated. I mentioned a period of 12 days. That was taken from the Government's White Paper. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 34 [Special cases]:
§ [Amendment No. 45 not moved.]
§ Clause 35 [Contribution to maintenance by deduction from benefit]:
Earl Russell moved Amendment No. 46:
Page 25, line 38, at end insert:
("() The power referred to in subsection (2) shall not be exercised where an absent parent is in receipt of income support and that benefit is subject to deduction by virtue of any of the following—
§ The noble Earl said: My Lords, this is a brand new amendment. It could not have been moved previously because it would have been unnecessary if I had succeeded in carrying an amendment which I pressed to a Division on Report. The effect of this amendment is to deal with the case of the absent parent on income support who is at present assessed to pay 5 per cent. 1842 towards maintenance. The point of the amendment is to say that this should not apply if the absent parent is already the subject of a reduced benefit direction.
§ The amendment is designed to give effect to paragraph 17 of the report of the Social Security Advisory Committee. Therefore it has some outside opinion behind it. The vital point here is the point about which we have been arguing for some time; that is, whether it is reasonable to ask people to live below income support level. So far as I can see, it is assumed by practically everybody who advises us—as it has always been assumed by me—that income support is a subsistence benefit. In fact there is a growing body of opinion arguing that income support is not even adequate to be a subsistence benefit.
§ When we discussed the related amendment on Report, my noble kinsman said categorically that income support is not a subsistence benefit. It appears to be his opinion that subsistence level is somewhere below income support. If he is to use that opinion to persuade the House to reach a conclusion on any particular amendment, he is bound to tell us what he thinks subsistence level is. I do not of course expect an answer to that point; but I have given my noble kinsman notice of it. I give him notice that if I do not receive an answer to that point tonight, this will not be the last time that I ask him about it. We need to know what the Government think subsistence level is. They seem to have been doing some questionable thinking on this. As they have been using that questionable thinking as a premise for a great many measures about which we have had a good deal of argument, it is worth getting at the root assumption. That will save us all a great deal of trouble. This is a very limited amendment and it is a very practical one. It has good opinion behind it. I hope it will be accepted. I beg to move.
§ Lord Henley
My Lords, to answer my noble kinsman very briefly, he said that it is not a new amendment. However, as he said, it is very similar to previous amendments on which we have had similar discussions on previous occasions.
Yet again the noble Earl claimed that income support is a subsistence benefit. I am glad that he repeated that I have denied that it is a subsistence benefit. I have never claimed that it is a subsistence benefit. He demanded to know what is subsistence level, the implication being that it must be below income support levels. That is not a question to which there is any answer. However, I can say that we have no evidence that people are not able to survive on income support. We have no evidence that people cannot survive even when deductions are made from income support—and the noble Earl knows that there are a great many occasions on which deductions are made from income support.
I do not think it right to proceed on the lines of the amendment and specify that if certain deductions are made from benefit no deduction could be made from the income support of the liable parent.
Obviously I shall not satisfy the noble Earl on this occasion, and I do not think that I shall be able to satisfy him on future occasions. I believe it is a matter 1843 on which we shall have to agree to disagree. I do not accept his argument that income support is a subsistence benefit.
§ 10. 15 p. m.
§ Earl Russell
My Lords, I thank my noble kinsman for that reply. It is a fair one. I accept that we shall continue to disagree. However, I should like rather more precision about exactly what it is that we disagree about. My noble kinsman says that he has no evidence that people cannot live adequately on income support. I should like to draw to his attention the research done by Melanie Henwood for the King's Fund, published last year, on the number of cold weather deaths in this country, in other countries in Western Europe and in the United States. This country comes very near the top of the league. I do not find that altogether a cause for satisfaction.
In asking whether I have any evidence that people cannot live on income support, my noble kinsman has not asked the right question. The question we are discussing here is whether people can live at levels below income support. It is a fact, whether it causes 1844 hardship or not, that a number of people do live on income support. What is causing the argument is the evident belief in the Department of Social Security that people can live adequately on levels below income support. That is a rather surprising view. I have been asking my noble kinsman to justify it because it does not prima facie appear to me to be convincing. He has not justified it.
I shall not divide the House tonight, but I shall ask him the question again. Meantime, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 36 [Jurisdiction of courts in certain proceedings under this Act]:
The Lord Chancellor moved Amendment No. 47:
Page 26, line 25, leave out ("and") and insert ("after consultation with").
§ The noble and learned Lord said: My Lords, on behalf of my noble and learned friend Lord Fraser of Carmyllie, I beg to move Amendment No. 47, which has already been spoken to.
§ On Question, amendment agreed to.1845
§ Clause 38 [Supplementary powers to make regulations]:
Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 48:
Page 27, line 18, leave out paragraph (d).
The noble and learned Lord said: My Lords, I am told that it would be very inconvenient if discussion on this Bill goes beyond 11 o' clock. As it is quite obvious that no argument is going to make the slightest difference to the Government's reception of any amendment, I shall not move the amendment.
§ [Amendment No. 48 not moved.]
§ Clause 39 [Regulations and orders]:
Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 49:
Page 27, line 33, after ("10(2)") insert ("24(7)").
§ The noble and learned Lord said: My Lords, the amendment concerns the very important matter of parliamentary control of delegated legislation. Ordinarily there would be a great deal that requires to be said but it cannot properly be said now. I am afraid that Amendment No. 49 is printed incorrectly owing to my bad handwriting and the fact that I did not see the printed version until I got to London. I therefore do not move Amendment No. 49.
§ [Amendment No. 49 not moved.]
Lord Simon of Glaisdale moved Amendment No. 50:
Page 27, line 33, after ("35") insert ("36(7)").
§ The noble and learned Lord said: My Lords, Amendment No. 50 refers to a Henry VIII clause which quite plainly falls within the first heading of the Joint Select Committee on Delegated Legislation; in other words, it is not trivial, it is not tidying up and it is not consequential. I beg to move.
§ The Lord Chancellor
My Lords, at the risk of giving the lie to what my noble and learned friend said in respect of Amendment No. 48, I am prepared to accept this amendment in principle. The only problem is that one needs to refer to more than Section 36(7), because the powers are really contained in the earlier parts of the clause. But in principle I accept this amendment and undertake to bring forward the necessary amendment in due course. I hope that, this being the last amendment that my noble and learned friend has on the Marshalled List on this occasion, he may feel that it has been worth waiting for.
§ Lord Simon of Glaisdale
My Lords, I am grateful to my noble and learned friend. I thought that there were difficulties in addition to the one that he described in the way that the provision is framed. But I am grateful for his consideration. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 41 [Interpretation]:
The Lord Chancellor moved Amendments Nos. 51 to 64:
Page 28, line 16, leave out ("1990") and insert ("1991").
Page 28, line 27, at end insert:
("general qualification" shall be construed in accordance with section 71 of the Courts and Legal Services Act 1990 (qualification for judicial appointments)").
Clause 42, page 29, line 41, leave out ("do so") and insert ("fall within that subsection").
Clause 44, page 30, line 40, at end insert:
("(6A) Until Schedule 1 to the Disability Living Allowance and Disability Working Allowance Act 1991 comes into force, paragraph 1(1) of Schedule 3 shall have effect with the omission of the words" and disability appeal tribunals" and the insertion, after "social security appeal tribunals", of the word" and".").
Schedule 1, page 31, line 18, leave out ("him") and insert ("the qualifying child").
Schedule 3, page 38, line 34, at end insert:
("(2A) Subject to any regulations made by the Lord Chancellor, no person shall be nominated as a chairman of a child support appeal tribunal by virtue of paragraph 3(2) (a) unless he has a 5 year general qualification or is an advocate or solicitor in Scotland of 5 years' standing.").
Page 38, line 35, leave out ("after consultation with the Lord Advocate").
Page 38, line 38, leave out from ("qualification") to first ("or"), in line 39.
Page 38, line 45, leave out ("after consulting the Lord Advocate").
Page 39, line 2, leave out ("after consultation with the Lord Advocate").
Page 39, line 9, after first ("of") insert ("such").
Page 40, line 3, at end insert:
§ ("Consultation with Lord Advocate
§ 8. Before exercising any of his powers under paragraph 3(2A) or 4(1), (4) or (5), the Lord Chancellor shall consult the Lord Advocate").
§ After Schedule 3, insert the following new schedule:
§ CHILD SUPPORT COMMISSIONERS
§ Tenure of office
§ 1.—(1) Every Child Support Commissioner shall vacate his office at the end of the completed year of service in which he reaches the age of 72.
§ (2) Where the Lord Chancellor considers it desirable in the public interest to retain a Child Support Commissioner in office after the end of the completed year of service in which he reaches the age of 72, he may from time to time authorise the continuance of that Commissioner in office until any date not later than that on which he reaches the age of 75.
§ (3) A Child Support Commissioner may be removed from office by the Lord Chancellor on the ground of misbehaviour or incapacity.
§ Commissioners' remuneration and their pensions
§ 2.—(l) The Lord Chancellor may pay, or make such payments towards the provision of such remuneration, pensions, allowances or gratuities to or in respect of persons appointed as Child Support Commissioners as, with the consent of the Treasury, he may determine.
§ (2) The Lord Chancellor shall pay to a Child Support Commissioner such expenses incurred in connection with his work as such a Commissioner as may be determined by the Treasury.
§ Commissioners barred from legal practice
§ 3. Section 75 of the Courts and Legal Services Act 1990 (judges etc. barred from legal practice) shall apply to any person appointed as a Child Support Commissioner as it applies to any person holding as a full-time appointment any of the offices listed in Schedule 11 to that Act.1847
§ Deputy Child Support Commissioners
§ 4.—(1) The Lord Chancellor may appoint persons to act as Child Support Commissioners (but to be known as deputy Child Support Commissioners) in order to facilitate the disposal of the business of Child Support Commissioners.
§ (2) A deputy Child Support Commissioner shall beappointed—
- (a) from among persons who have a 10 year general qualification or are advocates or solicitors in Scotland of 10 years' standing; and
- (b) for such period or on such occasions as the Lord Chancellor thinks fit.
§ (3) Paragraph 2 applies to deputy Child Support Commissioners as if the reference to pensions were omitted and paragraph 3 does not apply to them.
§ Tribunals of Commissioners
§ 5.—(1) If it appears to the Chief Child Support Commissioner (or, in the case of his inability to act, to such other of the Child Support Commissioners as he may have nominated to act for the purpose) that an appeal falling to be heard by one of the Child Support Commissioners involves a question of law of special difficulty, he may direct that the appeal to dealt with by a tribunal consisting of any three of the Chili Support Commissioners.
§ (2) If the decision of such a tribunal is not unanimous, the decision of the majority shall be the decision of the tribunal.
§ Finality of decisions
§ 6.—(1) Subject to section (Appeal from Child Support Commissioner on point of law), the decision of any Child Support Commissioner shall be final.
§ (2) Sub-paragraph (1) shall not be taken to make any finding of fact or other determination embodied in or necessary to a decision, or on which it is based, conclusive for the purposes of any further decision.
§ Consultation with Lord Advocate
§ 7. Before exercising any of his powers under paragraph 1(2) or (3) or 4(1) or (2) (b), the Lord Chancellor shall consult the Lord Advocate.").
Schedule 4, page 40, line 15, second column, at end insert:
("(b) A Child Support Commissioner appointed under section (Child Support Commissioners) of the Child Support Act 1991 and any tribunal presided over by such a Commissioner.").
§ The noble and learned Lord said: My Lords, I have already spoken, on one basis or another, to all the amendments from No. 51 to No. 64. Therefore, with your Lordships' leave, I should like to move them en bloc. I beg to move.
§ On Question, amendments agreed to.
§ An amendment (privilege) made.
§ 10.21 p.m.
§ Moved, That the Bill do now pass.—(The Lord Chancellor.)
§ Lord Carter
My Lords, this Bill, despite all your Lordships' efforts, discriminates against caring parents and their children who are poor and in receipt of state benefits. It also discriminates against fathers who maintain step-children. It deprives our courts of some of their hallowed jurisdiction and deprives litigants of recourse to the courts and the right to legal aid.
Put simply, the Bill puts money before children; for example, the extraordinary formula in Schedule 1, with its 10 equations, is designed to save expenditure on state benefits, and that is the primary purpose of 1848 the Bill. We heard earlier today about good value for money in a certain report from the Lord Chancellor's Department. The department which will get good value for money from this Bill is the Treasury. We have, of course, made some headway in improving this Bill by the rejection of Clause 22, the proposals on Clause 13 and, only today, the acceptance by the Government of the new clause dealing with the welfare of the child.
A very effective criticism of the Bill, even as amended by your Lordships, came in the recent report of the Family Policy Studies Centre Supporting our Children and that of the Social Security Committee in another place entitled Changes in Maintenance. Arrangements. This was the report which was mentioned by my noble friend Lord Mishcon earlier today.
The report of the Family Policy Studies Centre is indeed extremely critical and I shall quote it only very briefly. The centre points out that, as most lone-parent families claim income support, this means that 62 per cent. of all children living with one parent would be no better off. Of those in families dependent upon social security fewer than 9 per cent. would benefit and they would have to come off income support to do so:An opportunity may have been lost to allow them to benefit directly at what is often the most critical time for them (both socially and emotionally) and when maintenance is most likely to be paid, namely in the first few years of their lone-parenthood".The whole proposal fuels criticism that Ministers' primary concern is to cut social security costs. The report of the Select Committee on Social Security in another place is equally critical of the retrospective effect of some parts of the Bill.
As I said, we feel that the Bill is disappointing in both its social security and legal aspects. We have tried hard to amend it and ameliorate its worst effects on the income of lone parents but we have not been very successful. Indeed, at times Mr. Gradgrind would have been very much at home in giving the Government's response. We have not succeeded as we should have wished. We must hope that when the Bill reaches another place the Government may be able to accept at least some of the powerful arguments that have been advanced by numerous organisations which have expressed a great deal of concern about the Bill and its effects.
My strictures on the Bill do not in any way relate personally to the noble and learned Lord the Lord Chancellor or his noble friend Lord Henley. As always, they have been unfailingly courteous throughout the passage of the Bill and extremely helpful outside the Chamber and by letter in explaining a number of complicated points that have arisen in the course of our debates. We feel that the Bill remains a bad Bill but we have improved it to some extent and we must be thankful for that.
§ Earl Russell
My Lords, I should like to express my warmest gratitude to the noble and learned Lord the Lord Chancellor and my noble kinsman Lord Henley for the way in which they have managed this Bill. Never can so bad a Bill have been managed so well. Being up against the noble and learned Lord in this Chamber is a fascinating experience. He has an 1849 essentially judicial mind. It is always possible to persuade him, but often he makes one work for it. Yet one occasion during the passage of this Bill has for me been quite memorable when he did not do that. He accepted an amendment which I tabled at Report stage but did not even move. He went away, thought about the matter and decided that the case for it was sound and that he would accept it. Fair-mindedness cannot go further. That is the spirit which in this Chamber we must welcome very warmly indeed.
My noble kinsman knows how grateful I am to him for the trouble that he has taken in the discussions between us and for the care and courtesy with which he has handled all the arguments. I should like to thank him, not for the first time and I am sure not for the last time.
As for the Bill itself, on 30th April we listened to the noble Lord, Lord Campbell of Alloway, hold forth about the evils of the single issue Bill. I know that this is not in strict form a single issue Bill but in effect it is. It is a Bill for the benefit of the taxpayer. I welcome the principle behind it—the noble and learned Lord may remember that in a statement on October 24th I welcomed the principle of the Bill itself, and I still do—but I have become convinced that the pursuit of that principle is a little obsessive. There are problems that have not been addressed or not adequately addressed.
The problem of the second family is not addressed adequately. I believe that the formula will give rise to many more problems than have yet been foreseen. There is a problem of arbitrary power, on which the noble Lord, Lord Houghton of Sowerby, and the noble and learned Lord, Lord Simon of Glaisdale, held forth with great eloquence and very valuably. There are problems of drafting that have not been addressed. Above all, when this Bill reaches the statute book, if it does in anything like its present form, there will be colossal problems of enforceability. I do not believe that the Government have yet thought about how bad they will be.
When they think about putting the Bill together in another place, they will have to make revisions somewhere. If they should choose to accept the deletion of Clause 22 there will obviously be consequential amendments to Clause 5. If they do not choose to accept it, they may have to look again at the wording of Clause 5. In that area there has to be some adjustment. What strikes me is—if I may adapt the famous saying—that you may coerce all of the people some of the time or some of the people all of the time but you cannot coerce all of the people all of the time. One can coerce one of the parents all the time; or one can coerce all the parents some of the time. In fact one can coerce the mother or one can coerce the father, but if one sets out to coerce both the mother and the father at the same time, the administrative problems of enforcement will be greater than can be handled.
I believe that the Bill can work only if it is effected on a voluntary base, with the word "shall" at the beginning of Clause 5 replaced by the permissive "may" so that the Bill works only if the mother wishes. 1850 Some people may think that right; some may think it wrong. In either case, I believe that it is the only way in which the Bill will work.
Attempts to force women to name the father have been going on for centuries. I heard only last Monday about an attempt to refuse them churching after deliverance if they did not name the father. That coercion failed. All other attempts have failed. If the measures are persisted in, they too will fail. I hope that when the Bill reaches another place that factor will be seriously considered.
§ 10. 30 p. m
§ Lord Stoddart of Swindon
My Lords, first, perhaps I should commend the usual channels for their foresight in removing the debate on the Atomic Weapons Establishments Bill from the Order Paper. Some of us would have sat in the Chamber until very late had they not had such foresight. However, as my noble friend and the noble Earl, Lord Russell, have already done, I too should like to commend the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Henley, for their courtesy throughout the Bill and indeed for their attention to the amendments and the arguments put forward by many noble Lords. I believe that they have been most helpful, and have certainly tried to meet many of the objections of noble Lords.
However, despite that courtesy and their attention, I remain convinced that the Bill is bad. As we discussed it, I realised that it is worse than I had thought at the beginning. As my noble friend pointed out, some improvements have been made. Nevertheless, I believe that it is fundamentally a bad Bill. It is not about child support. It will injure rather than support the interests of many children. Unfortunately I cannot erase from my mind the thought that the provisions of the Bill save the Treasury£400 million. For that reason, the Bill fails, and will continue to fail, in its objective.
Today we have had arguments about imprisonment, inspectors calling, and so on. I do not wish to return to those. However, during Committee and Report stages, I raised the subject of the so-called virgin births and the position of parents in relation to artificial insemination by donor. Make no mistake about it, my Lords, that is a matter which will have to be addressed. It continues to worry me because there will not be equity between children born by AID, where no husband or male partner is involved, and the child of a father who has been physically involved in a relationship. One cannot make fish of one and fowl of the other.
Furthermore, I have a further worry. Men do not yet understand the situation. If a man simply accompanies a woman to an AID centre, from then on—whether or not he has had any physical relations with the woman—he may be deemed to be the father.
That is the position under Clause 28 of the Human Fertilisation and Embryology Act 1990 and it must be addressed in relation to this Bill. Instead of the Bills being considered together they have, unfortunately, been considered in isolation. I am confident that had that Act been considered at the same time as this Bill 1851 the provisions would have been different in both Bills. Quite clearly that was impossible. I tried to deal with the matter by tabling an amendment. That failed because it could not deal adequately with the position.
The situation must be addressed. I hope to have conversations with the noble and learned Lord the Lord Chancellor to ascertain what can be done to put the situation on a proper basis. I hope that further improvements will be made to the Bill in another place. If Members in another place give it the close attention that we have given to it they may be successful. I hope that they will be listened to with the degree of courtesy that we have received.
§ Lord Houghton of Sowerby
My Lords, I shall make my briefest speech in this long series of debates. I am especially grateful to the noble and learned Lord the Lord Chancellor. We always heap praise upon him because, he deserves it. He is a most patient man and shows great courtesy under trying circumstances. We thank him for that. I also thank the eight noble Lords who are now present in the Chamber for the work that they have done in shouldering so much of our tiresome efforts on the Bill.
Finally, perhaps I may issue a whip for tomorrow. There will be some satisfaction to be found if noble Lords will attend for the Veterinary Surgeons Act 1966 (Schedule 3 Amendment) Order 1991. It expands the role of veterinary surgeons on the treatment and welfare of companion animals and will prohibit the docking of dogs' tails. That will be an achievement for all noble Lords tomorrow morning when we deal with the order. I shall not send a written whip but shall rely on seeing noble Lords present tomorrow.
§ Lord Mishcon
My Lords, my speech will be even more brief than that of the noble Lord, Lord Houghton of Sowerby. I shall say my last farewell to the Bill From this House with these words. My mother, who was a dedicated teacher, somewhat sentimentally referred to her children as the nation's treasures. I wish that the Bill forwarded the interests of the nation's treasures, but I have found that it looks only at the interests of the nation's Treasury.
I echo the compliments that have been paid to the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Henley. They were always courteous, always prepared to listen, always patient and usually not forthcoming. However, we have greatly appreciated the occasions when they have been forthcoming.
I wish to repeat the tribute that I paid on a previous occasion to the noble and learned Lord, Lord Simon of Glaisdale. He has spent hours and hours in this House until late in the evening in order to give us his invaluable views, not only on the brevity which statutes should be able to attain but also the benefit of his great knowledge of constitutional law and how evil is the memory of Henry VIII when it attaches to clauses.
The other gallant person whom I wish to mention is my noble friend Lord Houghton of Sowerby. He treads a lone course, he treads it with great ability and tenacity and we admire the way in which he expresses his views, even if we do not agree with them.
1852 I wish also to pay tribute to my noble friend Lord Stoddart. He has spent many hours giving the benefit of his views to this House. I believe we should now be able to go home feeling that we have endeavoured to do our duty. These are the closing passages in this House of a Bill which could have been good if only the spirit behind it had been right.
§ The Lord Chancellor
My Lords, it would be appropriate for me to be brief on this occasion. I am grateful to all your Lordships who have taken part in our debates: the noble Lords, Lord Mishcon and Lord Carter, the noble Earl, Lord Russell, and the noble Lord, Lord McGregor of Durris, the noble Baroness, Lady David, who achieved quite a success, and the noble Lords, Lord Stoddart of Swindon and Lord Houghton of Sowerby. I am grateful to them all for their interest and for the spirit in which matters have been addressed. We did not agree all the time but I believe that we came to understand fully the points being made on both sides of the argument.
I am a grateful also for the contributions from the Cross-Benches, especially from my noble and learned friend Lord Simon of Glaisdale. Not only his knowledge of constitutional law but his knowledge of all law is general, deep and always available to put the Government's proposals to a rigorous test.
I should like to thank my noble friends Lady Faithfull, Lady Elles, Lord Coleraine and Lord Renton. I express my sincere thanks and appreciation to my noble friend Lord Henley. He has special responsibilities which he has discharged with great skill and courtesy. I am particularly grateful to him for the willingness he has shown in making himself available at short notice when I am not able to be here and, perhaps even more, his willingness when I suddenly reappear in time to respond to a debate.
I should like to thank also the voluntary organisations which have taken an interest in this Bill and have kept this House informed of their practical experience. That is very important. They have not all agreed on every matter. They have different points of view and represent different interests. In this House—I have no experience of the other place—their knowledge and experience, so freely given, is a tremendous advantage to us in the course of our debates.
During its passage through your Lordships' House, the Bill has been amended. We have been persuaded of the need to make amendments. The principle of the Bill is good and I believe that it puts the nation's treasures first. There is inevitably an effect on the nation's Treasury; but there are many of the nation's treasures who have no direct call on the Treasury. I believe that the Bill provides a machinery for giving caring parents what they have long wished for—an effective means of securing proper maintenance from the responsible parent who is absent.
The Bill now goes to another place with the undertakings that we have given. I hope that it will return in due course to enable your Lordships to approve the amendments which I have undertaken to carry out and to which my noble friend referred also.
We come to the conclusion of what have been long discussions, but about an extremely important 1853 subject. I am grateful to all noble Lords who have stayed with us until this stage. I commend the Bill to the House.
§ On Question, Bill passed, and sent to the Commons.
§ House adjourned at fifteen minutes before eleven o'clock.