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Lord Simon of Glaisdale: This important amendment was introduced by the noble Earl, Lord Russell in an important and profound speech. His was followed by other important speeches. I apologise to the noble Lord, Lord Renton, because I understood him to be referring to a report in which he and I participated more than 30 years ago. For the purposes of this amendment, that report has a significant title—The Rule of Law.

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Until the passing of the 1991 Act, the jurisdiction which was taken over by the Child Support Agency was in the hands of the Justices of the Peace; the lay magistrature. There are thousands of them all over the country. They are unpaid, devoted to their work and close to the people who come before them. They have intimate knowledge of the circumstances and the locality and a far better insight than Whitehall can possibly have into the infinite variety and circumstances of those parties.

The noble Lord, Lord Houghton of Sowerby, indicated some of the issues that would have fallen for decision. They are sensitive, complicated and infinitely varied. It is not surprising that magistrates' decisions vary from case to case. Indeed, if that had not been so they would have been gravely at fault.

Furthermore, the magistrates considered wife support and child support together. It was perfectly ludicrous to suppose that they could ever be decided separately. Yet the 1991 Act took the jurisdiction for child support away from the magistrates and put it into the hands of a government agency of paid officials applying a series of incomprehensible and inflexible formulae which your Lordships must again consider. I have yet to meet anybody outside the Treasury Bench who thinks that it was a sensible proposal to put that into the hands of Whitehall while leaving in the hands of the magistrates jurisdiction over wives' maintenance. In fact, it was perfectly ludicrous. One has only to state it to see how ludicrous it was.

The jurisdiction being placed into the hands of the Child Support Agency applying a series of formulae led to disaster. Unless that is recognised, further mistakes will be made. It led to administrative chaos, to widespread injustice and to a sense of resentment which was actually dangerous to our political system.

The letter boxes of Members of Parliament had never been so full of indignant cases, not even in relation to the poll tax. Therefore, there has had to be a change; and the change is to give some flexibility, as it is put, to the decisions of the Child Support Agency applying the formulae to allow departures. Such departures would have been considered and implemented every day in the magistrates' courts before 1991.

There it is: there has been nothing for it. If the Child Support Agency and the formulae were to be retained, there was nothing for it but to give wide discretionary power to the Secretary of State. In the provisions which the noble Earl seeks to leave out, there are two phrases which occur in almost every clause of the Bill. They are:

    "The Secretary of State may, by regulations",


    "In such circumstances as may be prescribed".

Over and over again, we find those phrases. What is the flexibility?

On Second Reading, I cited one of the criteria of the rule of law of the great Professor Dicey in his study of the constitution. Of course, that phrase—the rule of law—provided the title for the venture in which the noble Lord, Lord Renton, and I participated. But Professor Dicey said something else. He said:

    "In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority",

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I repeat—persons in authority—

    "of wide, arbitrary or discretionary powers of constraint".

Therefore, there again, those two measures offend against the rule of law.

I had always thought that members of the Conservative Party were the inheritors of the Whig tradition of upholding the rule of law. I am bound to ask what they are doing with these Bills. Are they so busy intriguing against the Prime Minister and the Chancellor of the Exchequer that they no longer have any time to uphold the rule of law?

Therefore, I am very glad that the noble Earl has introduced this debate. It has produced a number of important suggestions. I agree profoundly with the view of the noble Lord, Lord Renton, that we try to deal with these matters in far too much detail and in doing so, we give wide, arbitrary and discretionary powers of constraint to those in authority.

Lord Carter: I merely wish to comment on the remarks made by the noble Lord, Lord Renton. Before doing so, I thank my noble friend Lord Houghton in doing his part to ensure that we are not in fact kept up all night, as he said.

The noble Lord, Lord Renton, said—and I was on the Opposition team which dealt with the Child Support Act in 1991—that we supported in principle the idea of parental responsibility for maintenance, and so on. But I am sure that he will remember the many warnings which we gave the Government at that time about the formulae and the problems which have now arisen.

However, on a general point, since all the mistakes have come to light, of the recommendations which have been made by outside agencies and two Select Committees of the other place—the Social Security Committee and the Select Committee of the Parliamentary Commissioner for Administration—only half have been accepted and included in the Bill. The danger is that there may be a need to return with another Bill at some stage in the future to put right the omissions which have not been addressed in this Bill.

The Earl of Perth: I had no intention of entering into this debate, but as I listened to the noble Earl, Lord Russell, and other eminent speakers, I became more and more worried that if the Bill goes through without the amendment, we shall reach the point at which Parliament really cannot manage its business. It is no good saying that the regulations will receive parliamentary approval because Parliament will not be able to handle all those matters. The idea of changing things by regulation gets us into more and more trouble all the time.

I was struck by the noble Earl, Lord Russell, saying that somewhere or other in this, there is a Henry VIII angle. It is all very well to say that matters will receive parliamentary approval, but Parliament will not be able to handle all the business. Therefore, I very much hope that the Minister will think about what has been said by one and all this evening and consider whether he should not try to make a fundamental change in the approach to this matter.

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Lord Mackay of Ardbrecknish: We have had an interesting debate. My noble friend Lord Lucas has worked out for me that I have been given some sage advice—and I really mean that—by four noble Lords whose average age is about 90. Therefore, I must think very carefully about what they are saying to me.

I was almost tempted by two of the points made. One was made by my noble friend Lord Renton who asked why government legislation could not comprise a few statements of principle and the matter be left at that. Those who have accompanied me through this legislative Session will appreciate that perhaps there are others besides the noble Lord, Lord Renton, who feel like that. It would be quite pleasant to have a few statements of principle and leave it at that. But the problem is that as legislation and the issues which we attempt to address become more complex, that simply will not do. It will not do on the Floor of this House and it will not do on the Floor of the other place. Members of this Chamber and the other place constantly ask the Government about one example and then another example. They say that if all examples have not been covered, then there is something wrong with the legislation. Amendments are tabled to try to cater for all possible examples, some of which are real and some of which are totally imaginary. Therefore, it is difficult to see how we could return to a simpler era when a statement of principle is sufficient in relation to a Government Bill. On occasions I have been in trouble when I have brought forward clauses which have been thought to be far too much statements of principle without sufficient detail.

Lord Renton: I am grateful to my noble friend for giving way. I wonder whether he realises that the alternative to stating the principles which should underlie the decisions made in the Bill is to attempt to go into all the possible hypothetical circumstances which might arise. Indeed, Parliament has been doing that now far too often for far too long. Frequently, it has failed to deal with circumstances which actually do arise.

When the Committee on the preparation of legislation to which I referred earlier was sitting, the top judges on both sides of the border came along and said, "We are sometimes in great difficulty when deciding cases in court because cases come before us which do not exactly fit the hypothetical circumstances stated in statutes. But if you stated the principles in those statutes, then all circumstances would almost certainly be covered". Therefore, the alternative is either to state the principles or to go into endless hypotheses without being successful in doing so.

Lord Mackay of Ardbrecknish: What can I say? However, I can agree with my noble friend to the extent that one has to be careful that one does not go down the road of trying to cover totally hypothetical situations. One should try to keep one's feet on the ground and remain in the real world when it comes to dealing with putting on the face of Bills, or indeed in secondary legislation, the more specific help and guidance which is needed.

However, I return to my point. Perhaps it is particularly true as regards the question of social security because the taxpayer is involved. We must try to ensure that we lay down some pretty clear guidelines and definitions as to

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who should and should not be eligible for many of the benefits paid out by, for example, my department—indeed, with some trepidation, I go a little further into, say, Home Office matters.

There seems to be continual complaint from the public, the press and, indeed, from Members of both places if it appears that judges or magistrates in different parts of the country are actually imposing totally different sentences for what seems, on the face of it, to be the same crime. Indeed, there is a constant cry for such discretions to be fettered so that the position in one part of the country is largely the same as in any other. Therefore, there are considerable difficulties, although there is clearly a temptation to be attracted by the idea of setting a few general principles and then virtually leaving the matter there.

The noble Lord, Lord Houghton, suggested to me—as, I suspect, a by-product of the general principle that we have just discussed—that the division of resources between husband and wife should be left to them. That is fine. However, the problem is that taxpayers are also drawn into the matter if the division of those resources is such that there is insufficient money for the parent who has care of the child to look after it. As I said, the taxpayer has an interest in such matters and no doubt I shall return to that aspect on a number of occasions. I see that the noble Earl wishes to intervene. I give way.

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