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If it is not possible to define in regulations what we mean by a child being part of a family, it could lead to this provision being extended well beyond the type of expenses it is designed to take into account. For example, expenses incurred on behalf of nephews and nieces could be cited in support of a departure application even if those children were not resident in the household. Even ifand I am by no means confident of thiswe could rely on "family" being interpreted as meaning people who live together, there would still be a need to define it in this context. For example, parents could apply for departures where they were acting as foster parents. We shall come to the subject of foster children later today. Foster children are not taken into account for child support purposes because their costs are met by the fostering allowance. Therefore, it would not be right to consider a departure in such circumstances.
I hope that the explanation I have given of each of those amendments shows why we believe the powers are needed and what we shall bring forward in regulations. I hope that the Committee will accept that regulations, added to the Bill, will allow the agency to do what I believe the majority of people in this country want it to do: namely, to make sure that an absent father pays the proper amount of money to look after the children which his ex-wifebecause it is usually that way roundis now having to look after on her own. I hope that with that explanation the noble Earl will withdraw his amendment.
Earl Russell: I am most grateful to all Members of the Committee who have spoken. This subject has clearly raised a great deal of interest in the Chamber. The amendments have enjoyed a powerful body of support around the Chamber.
First, I shall take up the point made by the noble Lord, Lord Houghton of Sowerby, about time. He described us as victims of the system. I understand what he means. Our spouses understand what he means. However, it takes two to save time.
I read carefully the Renton Report on the Sittings of the House. That suggested that a great deal more should be done by consultation before a Bill comes before us. That was a good suggestion. It takes two to put it into effect. I shall ask the Minister a serious question to which I should like to know the answer. If I had come to him when the Bill was published asking for a meeting to persuade him to alter these points of drafting, am I right in believing that I would have been wasting his time and the department's time because no meeting of minds would have taken place? If I am wrong in that then I was perhaps mistaken in bringing these amendments forward, and I apologise. However, if one cannot make progress by meetings, then one has to bring the matter to the Chamber.
We might also make progress faster if we could all refrain from making general Second Reading points. I have resisted the temptation to rise to the Minister's claim that the taxpayer has benefited from the Act. However, I tell him that if he continues to make that claim, I shall put down an Unstarred Question and ask him to justify it. Points of that kind, which are widely unacceptable in many quarters of the Chamber, do not move us along faster.
The Minister made a serious point when he argued that the approach to legislation which I propose would not do on the Floor of the House. We had the same exchange on the Jobseekers Bill. The Minister may remember that I suggested that he meet me halfway and outside the Chamber, to which he replied by inviting me to name my weapons. Now that the Minister has drunk my weapons, he may consider that I accepted a self-criticism in making that suggestion. In the past I have myself sometimes pressed for too much detail in a Bill. The noble Lord, Lord Renton, has sometimes pulled me up and has made me think. I did not know that the Government were that bad at resisting pressure. I wonder why they did not tell me; I might have pressed a little harder on a few occasions. It seems to me that governments are perfectly capable of resisting pressure when they wish and that many amendments which seek to add detail to a general principle are put forward either because the general principle is unacceptable or is not sufficiently clear.
On parliamentary control, I understand all the points about the joint committee, and so on. The committee is confined to considering the values. I have read and welcome the report of the Delegated Powers Scrutiny Committee. However, by its terms of reference it is confined to considering whether a delegated legislation clause properly delegates legislated power. A provision may not be improper, but it may be unwise, ineffectual and unnecessary.
Lord Renton: I am grateful to the noble Earl for giving way. He realises that the Delegated Powers Scrutiny Committee is mainly, although not entirely, concerned with Henry VIII clauses; that is, the danger of previous primary legislation being altered by subsidiary legislation without the consent of Parliament.
Earl Russell: I am grateful to the noble Lord. As I recall them, the terms of reference contain two points: whether any enactment improperly delegates legislative powerthat is the issue with which we are concerned nowand whether delegated powers are subjected to a sufficient degree of parliamentary control. Having touched on the first and having pointed out that a delegation of power may be unwise in many ways that the Delegated Powers Scrutiny Committee may find beyond its terms of reference, I come now to the question of parliamentary control.
It appears to me that control is essentially a matter of voting. One does not actually have to vote in order to exercise control, but one has to be able to do so. I was most interested in the provisions of the new Companion to the Standing Orders on voting on delegated legislation. Page 187 is worth particularly careful scrutiny. If it is acceptable to all parties that we shall vote, and do so in force, in ways given sanction by the Companion to the Standing Orders on page 187, I might then be able to be slightly less careful in restricting the use of delegated power. However, until this House has the power of voting, and is willing to exercise it, so long must I continue to be careful about the extent of regulation-making powers.
The Minister gave me much detail. I am not entirely sure that he understood exactly what was worrying me. On Amendment No. 4, the question is: what is a material circumstance? I still do not understand why that has to be a legislative and not a judicial matter. I do not understand why the decision has to be taken by the Secretary of State, who does not have the facts, rather than by a court, which does. In some circumstances, for example, a child in higher education, the factor may be material in cases where there is no other provision but not material in others where there is adequate provision. Therefore the issue depends on the circumstances, and I do not think that regulation can provide for that.
We shall need to return to Amendment No. 23. I understand the case for allowing the Secretary of State to be involved. But what of allowing Parliament to take some part in the matter? I heard no answer to that question. I do not see why the Minister regards step-children, for instance, as quite such an extraordinary event. The situation arises quite often. It might have been more effective to provide for step-children in the formula rather than a complicated system of departures to recognise a normal fact of existence.
On Amendment No. 29, the Minister misinterpreted me. I am grateful to him for stating his policy intention. He believed that I was unaware of it. I have read the excellent and extremely helpful memorandum to the Delegated Powers Scrutiny Committee. What I sought to say to him was this. If his intention was as outlined, why did he not say so in the Bill? There would then have been no trouble.
Because the memorandum is so much more intelligible than the Bill, I wonder whether, under the principles of Pepper v. Hart, it might not be used by the courts as a guide to understanding the legislation and in fact whether the memorandum may slowly usurp the position of the legislation. The noble Lord, Lord Renton, shakes his head. I shall be very relieved if he is right. However, it seems to me that other people seeking to find the Government's intention would be wise to go to that memorandum and not to the Bill. There is a danger of Parliament's functions being usurped.
The Minister's reply on Amendment No. 35 fascinated me. He was afraid of courts going beyond the Government's intention. I did not bring my copy of the Renton Report with me today. The noble Lord may remember the passage that I have in mind. I spoke to it on the Jobseekers Bill when referring to precisely that legislative approach. The noble Lord said that for perfectly good reasons the amendment does not work. I should like to ask the Department of Social Security to consider the matter very seriously indeed.
We are considering a real issue here. However, in the light of the strictly non-partisan, non-party debate that we have had, I would be abusing the spirit of the support that I have had if I were to ask the opinion of the Committee. I shall need to return to Amendment No. 23 in a different context with a different line of argument at a later stage of the Bill. In the meantime, with thanks to all those who have spoken, I beg leave to withdraw the amendment.