Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Mackay of Ardbrecknish: As the noble Baroness, Lady Hollis of Heigham, explained, this amendment seeks to clarify that only in exceptional circumstances will the Secretary of State pass a case direct to a child support appeal tribunal for determination, rather than determine it himself, and then it can be subject to appeal. I note, however, that the amendment does not attempt to define "exceptional circumstances".

It may be helpful if I explain that it is our clear intention that the majority of cases will be dealt with, in the first instance, by the Secretary of State, with a subsequent right of appeal to an independent appeal tribunal. Only where a case raises novel or particularly complex issues, and will clearly benefit from an oral hearing or the input of a legally qualified chairman, will it be referred to a tribunal for determination.

We do not feel it necessary to include a description of those circumstances in primary legislation. Indeed, achieving an appropriate definition would be difficult (as no doubt the noble Baroness discovered when devising the amendment) and could potentially exclude those we wished to include and vice versa. The Secretary of State's guidance, on the other hand, will allow some flexibility in this area, enabling adjustments to be made if we find too many or too few cases are being referred.

With that explanation and the assurance I have given that the normal route will be the route where the Secretary of State makes the decision—the person claiming the departure will then be able to appeal to the tribunal—I hope that the noble Baroness will be able to withdraw her amendment.

Earl Russell: Before the Minister sits down, does he think that the CSA has the resources, the people and the time to deal with all that extra work?

Lord Mackay of Ardbrecknish: I responded to that point in an earlier amendment when I said that the CSA will be forming a team of people whose responsibility it will be to make those departure decisions. I mentioned that our intention would be that the sifting may be done by relatively junior staff but the actual decisions in the departures would be done by senior staff who were specially trained for the job. I am confident that those individuals will be in place.

Baroness Hollis of Heigham: I thank the Minister for his reply. Given that it is a point already made this afternoon, that the understanding of the words of the Bill will be understood within the context of the Minister's remarks, then to a degree the purpose of the amendment has been met by the Minister re-emphasising that it is only

19 Jun 1995 : Column 61

in exceptional circumstances that one would go beyond that procedure. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 17 and 18 not moved.]

Clause 4 agreed to.

6.30 p.m.

Clause 5 [Matters to be taken into account]:

Earl Russell moved Amendment No. 19:

Page 4, line 33, leave out from ("(2)") to end of line.

The noble Earl said: In moving Amendment No. 19, I should like to speak also to Amendment No. 20, which is the big one to which Amendment No. 19 is the introduction.

When the Bill was in another place and we announced that we intended to repeal the Act, we were naturally asked to specify our policy in detail. The procedure in another place does not make it easy for our party to do so; nor does it make it easy to do so when one is trying to insert a new policy into a very old bottle. These amendments are the beginning of an attempt to do the best we can. But we say that the crucial point is that when the Act comes to be repealed—sooner or later, whoever is in office, it will be repealed—it is vital that there should be an extensive process of consultation with all interested parties. When I say that, I mean consultation and not merely telling people what to do. That must take place, so any suggestions that we make now are provisional.

The Minister heard what the noble Lord, Lord Renton, said earlier this afternoon regarding general principles. I agreed with what the noble Lord, Lord Renton, said. As the Minister knows, we believe that the business should go back to courts which can consider individual circumstances, but they must do so subject to general principles because nobody wants everything to be all over the shop. We want a general body of ideas which can be brought to bear on the subject.

I have no objection to the two general principles which the Government state in Clause 5. My anxiety is that these are by no means adequate for guidance to courts or tribunals which are settling applications under the Bill. Therefore I want to add a series of them. The first one deals with step-children, about whom we have said a good deal and I do not think that we need say any more. Many people are responsible for children other than their own natural children. Where somebody is responsible for children he must attempt to treat them equally and the law must not impede him in doing so. That is our first general principle.

The second general principle is that no assessment should leave a parent unable to meet legal obligations from which it would be impossible or unreasonable to expect him to withdraw. That general principle is one to which I do not feel the Government have profound objection. But I am sure that they will object to it being stated in this place.

I appreciate the force of what Mr. Burt has always said about not letting people's obligations to their children slip down the scale of priorities. But one cannot carry that principle to the point of encouraging people to default on

19 Jun 1995 : Column 62

their legal obligations. That is an offence and those of us who have respect for the law should not encourage people to commit it. It is not right to have a series of assessments which force people not to pay their council tax, for example, or which force them not to pay their just and due debts or which may make them unable to pay their income tax on previous years' earnings. Those factors must be taken into account when determining what people are asked to pay.

The next general principle is that,

    "no assessment shall leave a parent unable to afford to carry on his trade, profession or occupation, or force him to sell the tools of his trade".

That general principle is taken from Magna Carta. I believe that it is still the law of the land. It is a principle that was recognised by the Government in the 1991 Act although not in this context. It is simply not in the interests of any party to the whole sorry story—least of all in the interests of the children—to force the absent parent to give up his employment because he will then be unable to pay anything and we shall all lose.

The next general principle, with which the noble Baroness may agree, is that,

    "no parent with care shall, as a result of receiving maintenance, be worse off than he would have been on benefit".

The wording is "he". I do not know why the provisions do not also include "she". We know that some parents can be worse off and we shall return to that in a later amendment on the maintenance disregard. I hope that we shall return to it on Report also with an amendment on passported benefits. We shall also return to it to cover those situations where maintenance is assessed but fails to arrive. There are a great many situations where the parent with care is worse off as a result of the legislation. That was not the intention and it should be a general principle covering the whole Bill that it should not be so.

The next general principle is that,

    "no absent parent, shall, as a result of paying maintenance, be worse off than if he were on benefit".

The Minister may say that there are no such people, but when answering a Question from me on 27th April last year his noble friend Lord Goschen admitted that there were many absent parents who might perceive themselves to be worse off than if they were on benefit. That was a significant admission and the perception is widely shared. If the Minister thinks that under the departure formula he has dealt adequately with the issue of travel-to-work costs he is sadly mistaken. It would be the effect of this general principle, if accepted, that where the operation of the formula in any individual case—and the world is made up of individual cases—leaves someone worse off than if they were on benefit, that would be ground for a departure.

The next general principle states that,

    "no assessment shall be made which is in conflict with the provisions of section 2 of this Act".

For the avoidance of doubt "this Act" means the 1991 Act and Section 2 is the section which provides that the welfare of the child shall be taken into account. Many noble Lords who are present spoke and voted for that amendment in 1991 when the noble and learned Lord on the Woolsack, after a great deal of hesitation, finally decided to agree to it. I am sure that none of us thought

19 Jun 1995 : Column 63

then that counsel for the Secretary of State would say that that was not a paramount or even particularly significant consideration. We were told that the purpose of the whole exercise was that children come first. If that principle is not observed, the legislation is totally failing to justify itself in the way that it should.

The final principle states that,

    "the Secretary of State and the child support appeal tribunal shall take account of any information ... which may appear to them to be material to the task of deciding whether an assessment is within these general principles".

It is not good enough for the Secretary of State to prescribe factors which shall not be taken into consideration. That is an unwarrantable restriction on the freedom of courts and tribunals. One cannot know what is material until the circumstances are before one. We must remember that we are dealing with real people; if we prick them, they bleed. We need to judge them on their individual circumstances. We cannot rule out half the things that make their lives work simply because it appears, mistakenly, to suit administrative convenience to do so. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page