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Earl Russell: I am grateful to the Minister for giving way. However, is it the noble Lord's contention that the taxpayer has actually benefited from the 1991 Act?

Lord Mackay of Ardbrecknish: We shall come to discuss such issues shortly; but, yes, taxpayers have benefited, though perhaps not as much as some of us had hoped they would. It is to be hoped that when the legislation is passed there will be less of an excuse for absent parents to decline to pay their fair share of the responsibility for looking after the interests of the children of their former marriage and that the taxpayer will have less of a burden than is the case at present. As I said, I believe that we shall be returning to discuss that matter as we progress through the Bill. That is all I wish to say about the general discussion regarding the way that legislation ought to be framed.

I turn now to the remarks made by the noble Earl, Lord Russell. Apart from the main point of his amendment, which is to query what we intend to do by the various regulation-making powers—and I shall deal with that aspect in a moment—the noble Earl made two further points. Although I am perhaps trying to shorthand the matter too much, I believe that the first of those points was that he believes that the proposed way of dealing with the problem is not right and that we should leave it all to the courts to decide; or, alternatively, to some form of tribunal. That was the case in the past and, as I said on Second Reading in response to one of my noble friends, I believe that anyone who thinks that that system worked well so far as concerns the parent with care—

Lord Simon of Glaisdale: I am grateful to the Minister for giving way. First, does the noble Lord really think that it worked worse than the Child Support Agency has worked under the 1991 Act? Secondly, does not the Minister think that the magistrature might have been

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improved by a little effort; in particular by the institution of a family court, which has been widely advocated by knowledgeable people? Indeed, I see that the noble Baroness, Lady Faithfull, is nodding her head in approval.

5.15 p.m.

Lord Mackay of Ardbrecknish: I do not believe that the noble and learned Lord and I will agree on the matter. Of course, the number of cases has increased over the past 20 or 30 years. That is an unfortunate fact. Certainly, as it said in the White Paper Children Come First in October 1990, the decisions about how maintenance is to be paid were based largely on discretion used in hundreds of courts and in hundreds of social security offices. There was a great deal of inconsistency in the decisions taken. Moreover, not only was there inconsistency in those decisions, but I suspect that there was also an unwritten kind of view held by many people who made such decisions that, if the absent parent was not asked to pay or did not bother to do so, it did not really matter because the taxpayer would come in and pay through the benefit system. Therefore, they did not really need to pursue the absent parent. That was one of the other problems; namely, that the payment of awards in that system, which we are invited to think of as an excellent system, fell into arrears at a very considerable rate. Indeed, a great deal of effort had to be made by the caring parent to return to court and ask for court action in order to re-establish the payments.

As the White Paper pointed out, the full amount of arrears was recovered in only 23 per cent. of cases where the DSS took action. That was the equivalent of only 5 per cent. of the total value of the arrears. Therefore, the blunt fact of the matter is that many parents with care did not receive the amount of money to which they were entitled from the absent parent. That was the background against which the Government decided that something had to be done to address the problem. I see that my noble friend wishes to respond. I give way.

Baroness Faithfull: I am much obliged. It is perfectly true that from about 1984 until 1990 great arrears arose in that regard because the men who were supposed to collect the money were taken off that work and put on counter duty as so many unemployed people needed attention. When those men carried out the will of the courts, there were no such great amounts owing. I wonder whether it would have been better to have developed that system, instead of having a completely new one which is bound up with the social security system. I know that it is water under the bridge now, but there was no great amount of arrears in the early days when that unit of men collected the money.

Lord Mackay of Ardbrecknish: One certain aspect of that would be far fewer cases. Unfortunately, the instance of divorce has greatly increased, as indeed has the number of children whose parents have parted. That aspect must also be taken into consideration. I should tell my noble friend that I asked one of the people who fulfilled that role and not, I may say, a man; I asked a woman who actually undertook such a role. I am afraid that she did not share

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my noble friend's view that it was a system which worked well. In fact, quite the contrary—she did not think that it had worked particularly well.

Before I turn to the detail of the amendments, I should like to deal with the noble Earl's question—and it is one that he often raised during the proceedings on the Jobseekers Bill—regarding the parliamentary scrutiny which secondary legislation receives. I know that the noble Earl has considerable doubts about it.

However, if I put that on the record at this point it may prevent my having to say it just about every time regulation-making powers arise in the Bill.

As the Committee knows, all secondary legislation must be submitted to the Joint Committee on Statutory Instruments which has the power to report to the Chamber subordinate legislation where it appears to make unusual or unexpected use of the powers conferred by the statute under which it is made. The committee also reports provisions which exceed the powers of the enabling statutes. As regards this Chamber, secondary legislation can be debated and by the force of the argument the Government could be persuaded to take the matter away, amend and return. Although this Chamber does not as a matter of practice vote down statutory instruments, there are means at its disposal to amend or delay such legislation. The Government have no intention of bringing to this Chamber any statutory instrument made under powers in this Bill which would call for such measures, but they are there. Underlying it all is the simple safeguard of the ballot box and the fact that no government can bind their successor.

I now discuss the detail of the amendments in front of us rather than the debate which surrounded them. I am sorry to have to speak at some length but it is important that I try to address as many of the points made in the debate as possible. I hope to be able to reassure the noble Earl and other Members of the Committee who have spoken that, as the Delegated Powers Scrutiny Committee has reported, the Child Support Bill does not inappropriately delegate powers. The Committee will be aware that the scrutiny committee commented that it was difficult to see how substantially greater powers could be written into the Bill. This is particularly so in the field of the departure system. During the course of the Committee and in later considerations I shall explain clearly the way we intend the departure system to work. The Committee may also like to look at the exposition of my department's view in the memorandum which we submitted to the Delegated Powers Scrutiny Committee and which is printed in the committee's report.

It simply would not be possible to provide in primary legislation for all the circumstances which the departure system is intended to meet. Some provisions also build on aspects of the formula which are already in delegated legislation and in certain areas we have intentionally taken a cautious approach knowing that we can widen gateways through secondary legislation should that be necessary. I wish to illustrate that by referring to the powers which Amendment No. 29 seeks to remove. The amendment relates to the provision for special expenses departures, in this case on the grounds of previously incurred debts. As the Committee will be aware, debts of

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the former relationship between the parents which are the responsibility of one of the parents will be one of the grounds for a departure from the formula. A departure will be considered where the debt was incurred while the absent parent was still living with the parent with care and the child to whom the assessment relates, and the debt was incurred for certain specified purposes. A departure can be made if a debt was incurred for the joint benefit of both the parents or was for the benefit of any children to whom the current maintenance assessment relates.

The amendment tabled by the noble Earl does not affect these situations but relates to a further situation where debts may be incurred and for which we want a departure to be allowed. This is the situation where the debts incurred were for the benefit of other children not subject to the current maintenance assessment. The principal situation we have in mind is where debts were incurred for the benefit of a child who was a dependant at the time but is no longer dependent and is therefore not included in the current assessment. However, we recognise that there may be a number of further situations where we would—

Earl Russell: I am grateful to the Minister. If that was the Government's intention, why did they not say so and spare us this amendment?

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