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Earl Russell: The Minister has made just the kind of points at my expense that one might have expected and which I might have done, had the position been reversed. However, perhaps I may draw his attention to some distinctions. One was made by the noble Lord, Lord Renton, when we discussed an equivalent issue on the Jobseekers Bill. The noble Lord pointed out that it is one thing to allow a discretionary power when it is a use of the prerogative of mercy, when it is beneficial and a relaxation, when it is for the benefit of the subject. However, it is quite another to use a discretionary power in a penal manner to deprive people of rights which they would otherwise enjoy. That seems to me to be a fair and important distinction.

The second distinction which I wish to point out to the Minister is that I am drawing attention to the uneasy marriage between a series of statutory conditions and a discretionary provision for things to be just and equitable. I do not see why we need both, or why the two can go together in any sensible way. In fact, I do not see what the provision is doing here.

The third distinction which worries me is this. I entirely take the Minister's point about the racehorse, there is no argument about it. However, I very much wish him to answer this question: why should that decision be taken by the Secretary of State? Why should it not be taken by a child support appeal tribunal or by commissioners? Why should it be the Secretary of State who, as I see it, is here usurping the judicial function in order to try to decide an individual case which ought to be judicially decided by known rules of law? While the Secretary of State takes all the discretion away from the judicial authority, he is giving it to the executive authority. I should like to hear how the Minister can justify that.

Lord Mackay of Ardbrecknish: First, there is more than the mere question of whether something is beneficial to the absent parent. There is the question of whether it is beneficial to the child or children of the absent parent whose welfare must come into the matter to some extent for there to be a balance in all such matters. We cannot look on it as being a bad thing if the proposal is not beneficial to the absent parent. By definition, asking the absent parent to pay anything, a penny piece to his child, children or to the parent who cares for the children will not be beneficial to the absent parent. I am afraid that the only way one can run a system that would be beneficial to the absent parent is to say to absent parents: "All right, the taxpayer will pay, you may go off and not bother with any financial obligations". I know that that is not what the noble Earl wants to see, but I fear that would be the consequence of his particular question.

The other point that the noble Earl made shows the difference between us. He would like a system that is entirely court-dependent—either on courts as we know them, or on some other kind of courts to be set up by the Government to deal with those cases. I understand that. It is the argument of his party on this matter. I have said all that I have to say on this point, although I have no doubt that we shall return to it on a number of occasions. I mentioned my position in this respect earlier this afternoon. I stand by what I said.

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There is a point that is worth making; namely, the absent parent can appeal, he can go to the tribunal about the departure. In that case, as I also said this afternoon, the tribunal, whether made up of a single member or of three, will have as its chairman a legally qualified person. To that extent at least, the noble Earl's desire to bring into play some lawyers will be met if the absent parent decides to appeal. In many cases, the absent parent may be prepared to accept the conclusions. In that case I do not see the need to bring in the legal process. That is the position as I see it. "Just and equitable" is a reasonable provision to have in the Bill. I should like to think that the noble Earl can agree that the provision should be there, even if he does not agree that we should have this particular system. Perhaps he can agree that, if we must have it, it is sensible to have these words.

8.30 p.m.

Earl Russell: I am not sure that the Minister has yet given a justification for using prerogative powers to take away people's legal rights. Nor has he given me any coherent explanation for showing why a discretion in an individual case—which must, if it is to be used properly, involve a full hearing—should be used by the Secretary of State. His answer does not at present make sense to me.

However, rather than asking the opinion of the Committee now, I feel that I must read the Minister's answer very carefully indeed to see whether I can make any more sense of it then than I can now. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 22:

Page 5, line 21, at end insert:
("( ) in cases where the absent parent is applying for departure under Schedule 4B, paragraph (2), it is his opinion that hardship would be caused to the absent parent or any member of his family should he not do so; and").

The noble Baroness said: This amendment would insert the provision as printed on the Marshalled List. Its purpose is to introduce evidence of hardship as a fundamental criterion for access to the departure system. Although the Bill introduces some gateway, so to speak, in relation to departure, we are worried that it is perhaps not at present fully balanced.

In the present system an absent parent could gain access to the system merely because, for example, he has high travel-to-work costs, regardless of how much he earns. In the original White Paper regarding improving child support, it was clear that the absent parent would have to meet two conditions. The first was that because of the special circumstances of the case he faces specific additional expenses, not taken into account in the formula. The second was that he would face hardship—that is, he would be unable to support himself and any new family if he were to pay maintenance at the level determined by the formula. This amendment would ensure that departure is not simply to reduce maintenance payments at the expense perhaps of the parent with care, but to ensure that that is coupled with evidence that genuine hardship would be caused were such departure not permitted. I beg to move.

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Lord Mackay of Ardbrecknish: As the noble Baroness explained, this amendment will require the Secretary of State to consider whether a refusal to grant a departure would cause hardship to the absent parent or his family; and if he were to consider that it did, he may give a departure direction.

I believe that there are two reasons why this amendment should not be accepted. First, it is inequitable to consider the issue of hardship in respect of the absent parent only. This provision could result in an absent parent benefiting from a departure which would not otherwise have been made; the resultant reduction in maintenance may well cause hardship to the parent with care, but the Secretary of State will have given no consideration to this matter.

Secondly, I believe that the amendment is unnecessary. The Bill already contains the provision in new Section 28F(1) (b), which we just discussed, which requires the Secretary of State to consider in all cases whether it would be just and equitable to make a departure direction. This provision enables the Secretary of State to consider all the circumstances of all parties to an assessment—and in particular their financial circumstances. This is a much fairer way of dealing with the issue that this amendment is trying to address; it enables the Secretary of State to look at the situation of the parent with care, the absent parent and any children affected, to balance their needs and then decide whether a departure direction would be just and equitable.

For those reasons—namely, that there is a wider interest to be considered than just the absent parent, and that all three are catered for inside the just and equitable position—I hope that the noble Baroness can withdraw her amendment.

Baroness Hollis of Heigham: I thank the Minister for that reply. Where we are agreed is that we want this measure to be even-handed to all the parties involved in the negotiations. I am not sure that I am persuaded that the words "just and equitable" cover the situation that the Minister outlined. However, I can only take further advice on that point. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 and 24 not moved.]

Lord Carter moved Amendment No. 25:

Page 6, line 26, at end insert (", and
(c) of the consideration which has taken place under section 2 as to the welfare of any child likely to be affected by his decision").

The noble Lord said: In moving this amendment, I shall also speak to Amendments Nos. 43 and 44 in the name of the noble Earl, Lord Russell, which go rather wider than the particular amendment that I am moving. All three deal with the question of the welfare of the child. That is a concept with which those of us who worked on the 1991 Act are certainly familiar. The purpose of this amendment is to ensure that parties are notified about the ways in which the welfare of the children has been considered. This is an attempt to prevent the Secretary of State—if I may put it in a rather pejorative way—going through the motions as regards the welfare of the child.

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During the passage of the 1991 legislation, I moved successive amendments in Committee, on Report and at Third Reading. In each case, the noble and learned Lord the Lord Chancellor, who dealt with the Bill, said that each amendment did not go far enough, and at each stage we tried to amend them. At Third Reading the noble and learned Lord agreed to accept the amendment on the basis that it could be changed in the other place; it was changed, and that led to Section 2 of the 1991 Act.

Under Section 2 of the 1991 Act, the welfare of any children has to be taken into consideration when discretionary decisions are made. That was the change that the Government made when the Bill returned to the other place. It refers to the welfare of any children, but only when the people concerned are involved in discretionary decisions.

In practice, although it is maintained that this is considered, we are advised that this statement is made as protection from judicial review. We are also advised that there is little evidence that welfare issues are truly considered or are given any weight. So far as we know, the CSA staff receive very little information on this subject. Staff who make the decisions must be given substantial training in issues of child welfare. Otherwise, lip service only will be paid to this issue, which should be at the centre of the provisions. I think that we can all agree with that.

Counsel representing the Secretary of State for Social Security six months ago in the Biggin case argue that:

    "as long as the agency notices welfare in passing it cannot be challenged on the grounds that it did not attach sufficient weight to it. Welfare is not a paramount or even a particularly significant consideration".

The quotation by counsel that welfare is not of paramount consideration is interesting. That is what the debate on the 1991 Act was about. In our first amendment in Committee, we tried to make the welfare of the children the paramount consideration, as the noble Baroness, Lady Faithfull, will well remember. That is in the Children Act. But in the Child Support Act, the Government were not prepared to accept that because there were other considerations to be taken into account. But the remark made by counsel in the Biggin case for the department was revealing. The judge in the case certainly thought so too. Mr. Justice Thorpe responded:

    "If [Section 2 of the 1991 Act] has so little influence on the discretion to enforce the formula assessment, the heading words of the section seem hollow indeed. I am not convinced that the agency is at liberty to decide whether or not to issue a deductions of earnings order without giving considerable weight to the welfare principle".

The response of the Government in the other place, at its third sitting in Committee, was that that was unnecessary as all reasons should be given in the decision and it would be wrong to single out the welfare of the child.

The Minister provided Members of Standing Committee E with a note concerning the guidance given to CSOs when dealing with the welfare of the child, arguing that among the other factors which form part of a CSA decision are the interests of the taxpayer. I have a copy of that note, which was placed in the Library of the other place by Mr. Alistair Burt on 24th April. He gives the background to the consideration of the welfare of the child.

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It is interesting that at the end of the note—the Minister goes into some detail—paragraph 11 says:

    "A code of practice is being developed which will give advice to staff and information to advisers. It will be available later this year".

It seems odd to me, unless I have missed the point, that we should still be waiting for a code of practice which spells out to advisers what they should do about this consideration of the welfare of the child.

In practice, the reasons given for decisions of CSOs and the Secretary of State do not include details as to the welfare of the child. This amendment is intended to persuade the Government to give a commitment about the importance of this issue, which was fought hard for—I can speak from experience—during the debate in 1991.

The guidance referred to by the Minister in the other place—the child support manual and the child support adjudication guide—advises CSA staff to consider the welfare of children when making discretionary decisions. It would be surprising if it did not, because that is a requirement of the 1991 Act. However, it does not include guidance about how such decisions are to be made. The only factor specifically mentioned is that of mental or physical disability.

Also, it is incorrect to include the interests of the taxpayer as a factor which must be taken into account by CSA staff. I am sure that the Minister, when he responds, will refer to the interests of the taxpayer. But that is a matter for the Government. They are dealing with the Bill. It is not a matter for the CSA staff. Unlike the duty of parents to maintain children in Section 1 of the 1991 Act and the welfare of the child in Section 2, the interests of the taxpayer are not contained in the Act at all as a specific requirement to be considered.

We would argue that the reality is that under the current arrangements there is little or no obligation for the child support officers formally to consider the welfare of the child. The commitment to ensuring that decisions are made with regard to that factor is, as I said, demonstrated by the lack of guidance to CSOs about how to implement the provision in practice.

Departure introduces new powers of discretion to the Child Support Agency. In that situation it is essential that the welfare of the child is properly taken into account. This amendment could help to ensure that the agency implements the provisions regarding the welfare of the child made—with a lot of effort, I have to say, in this House and another place—under Section 2 of the 1991 Act. I beg to move.

8.45 p.m.

Earl Russell: I am glad that the noble Lord, Lord Carter, moved this amendment. It is a good amendment. Naturally, I should like to see a stronger one, but if I could not have a stronger one I would rather have the amendment of the noble Lord, Lord Carter, than mine.

Amendment No. 43, which stands in my name, is a good deal more forceful. In 1991 I was one of those who argued against using the word "paramount" in relation to the interests of the child. Mea culpa, I had not realised that the effect of attempting to be reasonable would be to weaken the weight of "the welfare of the child" quite so drastically as it has done. I had not realised that in trying

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to avoid a situation in which one interest takes priority over all others regardless of the details I had helped create a situation in which the interests of the child had become entirely nugatory. I am ashamed of myself.

As things stand at present, Mr. Pannick, counsel for the Secretary of State in Biggin v. Secretary of State argued that welfare is not paramount or even a particularly significant consideration. In another case decided on 15th May 1995, the commissioner said:

    "The overriding purpose of the legislation is to ensure that the absent parent makes proper financial provision for his or her children and the exercise of discretion cannot be circumscribed so as to impede that objective".

In other words, maintenance must be levied whether or not it is in the interests of the child. That appears to be the present state of the law. I do not believe that it is right. After all, we were told with some eloquence in 1991 that it was all being introduced in the interests of the child.

My amendment will, I hope, force a genuine consideration of the interests of the child. It empowers the courts to consider regulations according to whether they serve the interests of the child. It is quite possible that the Minister, who does not believe in parliamentary sovereignty when it is a matter of ministerial discretion, may start to make a great speech about it as soon as it becomes a matter of the authority of the courts. But the construction of statutes is not like the clause in the Thirty-nine Articles which says that the Church may not so expound one part of scripture that it should be repugnant to another. In fact, it is perfectly clear that the courts regularly recognise conflicts between statutes and between different statutory enactments. They have rules for according priority between them. To clarify and add to those rules would not be improper nor would it be outside normal practice.

Moreover, where we have regulations, those regulations have vires. The courts have always been capable of striking down the regulations on the ground that they are outwith the vires. The Minister may remember the case of the Woolwich Building Society v. Inland Revenue, where the Appellate Committee of this House decided that the whole of the regulations were ultra vires and struck them down, lock, stock and barrel. So the effect of bringing regulations under the principle of welfare would be to add a further condition to the vires of the regulations. I do not see that there would be any problem with that.

The meaning of "welfare" is to be the same as in the Children Act 1989. We are all familiar with that. It is capable of working. It would provide for all the children in the household to be treated in the same way: children of the absent parent's second marriage and the step-children. I believe that that gives effect to undertakings made by Mr. Michael Jack in the other place on 18th July 1991. Also, it avoids the risk of a breach of the European Convention on Human Rights. Under the case of Marckx v. Belgium—that is spelt M-a-r-c-k-x in the Belgian manner, and he has no political significance whatsoever—it was ruled that under the clause of the convention requiring respect for family life and prohibiting discrimination it would be contrary to the convention to distinguish between natural children of the household and step-children and others residing in it.

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So, if we are not to add another to the sad list of our violations of the European convention, the Minister might do well and might save the Government considerable legal costs if he were to accept Amendment No. 43 now. I hope that the Minister will think very seriously about that.

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