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Lord Carter: The Minister's answer was not very satisfactory. He read out almost word for word the answer which the Government gave at paragraph 29 of their response to the Select Committee which dealt with the recommendation that financial compensation should be paid to those identified falsely as absent parents through the maladministration of the CSA. The point that I made was that the report then went on to deal with the other recommendation about discretionary payments for worry and distress. That was ignored completely in the Government's response. It has not been ignored by the Minister but he certainly skirted round it to some extent by concentrating on a point which I did not make about absent parents.

I do not wish to labour the point now. It would perhaps have been better to draft this as a new clause. We are not happy about this. There is still anxiety about worry and distress. While the Minister spoke, I was trying to look at the evidence which Sir Michael Partridge gave to the Select Committee, and in part he was fairly po-faced. I shall read it again, but we shall wish to return to this matter on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clause 25 [Payment of benefit where maintenance payments collected by Secretary of State]:

[Amendment No. 106 not moved.]

Clause 25 agreed to.

Clause 26 [Regulations and orders]:

Earl Russell moved Amendment No. 107:


Page 21, leave out lines 20 and 21.

The noble Earl said: I hope that the Minister will succeed in assisting me a little on this amendment. I hope that the two previous Divisions may have done a little to concentrate his mind. But in order to give a satisfactory reply he will need to understand what it is that he is being asked about.

Clause 26, to which the amendment relates, deals with the power to make regulations and control of statutory instruments. It deals with what is affirmative and what is negative. The lines which I propose to delete state:


If those words mean what they appear to mean, the whole Bill is redundant and we have been wasting our time for two days. Therefore, I wish to ask the Minister about the vires conferred by those words.

I do not wish to hear about the policy intention because, especially in the context of the CSA, I am certain that it will not be the last policy intention and that we shall have more changes. I want to know what is the vires. What can be done under this clause and,

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even more important, what cannot be done? Is there any way in which this power is circumscribed? Is there anything which a future government cannot do under this clause and, if so, what can they not do? What limiting principle is it governed by? If it is not governed by any limiting principle, I do not see any point at all in passing parliamentary legislation.

There must be some sort of control. We certainly cannot accept that executive power should be capable of doing absolutely whatever it likes; that it should have discretion to change the rules in the middle of the game and to give things to one person and to take them away from another entirely as it thinks fit. That is arbitrary power. That is what the rule of law and parliamentary government are supposed to prevent. Therefore, will the Minister tell me, please, how that power is circumscribed and by what principles? I beg to move.

Lord Mackay of Ardbrecknish: Perhaps I may deal first with the actual provision. The provision to which the amendment relates is a normal one and is parallel to a provision already in the 1991 Act. I know that that does not carry any weight with the noble Earl. Indeed, I believe that I have understood that much, although according to the noble Baroness, Lady Seear, I have not understood much else. It will enable regulations made under what will become Section 10 of the 1995 Act, which deals with the child maintenance bonus, and Clause 24, which deals with compensation payments, to allow for a person to exercise discretion in a variety of circumstances. Therefore, it is not an unlimited power over the whole field. It is circumscribed as regards the two issues that I mentioned—that is, the clause dealing with the child maintenance bonus and with Clause 24 which deals with compensation payments.

As I mentioned, the power to exercise discretion is contained in the 1991 Act and in the Social Security Contribution and Benefits Act 1992. The power is not used extensively. However, it can prove useful in cases where it might not be possible to set out all considerations in advance. One of the great arguments that we had only yesterday—but it seems like over a week ago—was about whether legislation should just enunciate a few principles and then leave everything to the discretion of the people who run the system. Now I am being caught with the vice coming the other way when I want a little discretion. I see that the noble Earl wishes to intervene. Well I did say that the vice was coming the other way, so I give way.

Earl Russell: The Minister is significantly misrepresenting what we said yesterday. That misrepresentation illustrates the heart of the problem. We propose that general principles should be left to the discretion of the courts and not to the discretion of those who run the system. The difference is fundamental. If the Minister does not understand that, he cannot answer anything.

Lord Mackay of Ardbrecknish: No one will be able to run any social security system if there is no discretion at all and if one is not allowed to have the matter outlined in regulations. All sorts of social security systems, including this one, would have to be run by the courts. I do not believe that that is a sensible

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proposition, although, probably, I have misunderstood again. It seems to me that if the accusation applies to the Child Support Agency, it must apply to all the other benefit systems operated by the department, many of which are operated through regulations and also with an element of discretion.

I was trying to illustrate why we believe that the provision is necessary. I wanted to do so by considering the child maintenance bonus as introduced by Clause 10 of the Bill. As a general principle, people accrue a bonus through maintenance paid while they are receiving income support. When they move into work the bonus is paid in respect of all the maintenance received up to that point. We discussed some of the difficulties which might arise. It is possible that we shall need an element of discretion in its application. For example, a person with care was not receiving maintenance due while on income support perhaps because the absent parent was refusing to pay or perhaps he had appealed against the maintenance assessment. The person with care then moves off income support into work. At that point, the arrears are paid after the time limit for claiming the bonus had passed.

It would be reasonable to have a provision to allow an adjudication officer the discretion to treat those late payments in such analogous circumstances as if they had been paid on time and to accrue a bonus accordingly. Those were some of the issues which I believe the noble Baroness, Lady Hollis, raised with me yesterday. If the proposed amendment were accepted, there would be no scope for regulations made under Clauses 10 and 24 to provide for a person to exercise discretion. The loss of flexibility appears to offer no advantage to any party.

I should like now to answer one of the noble Earl's questions in the latter respect. The power to exercise discretion is confined within the bounds of the regulation-making power in the Bill. It is not, therefore, an unfettered discretion. As we discussed on a number of occasions, any regulations have to come before Parliament—affirmative ones in one way and negative ones in another—and, therefore, the Executive is, at least to a certain extent, called to account and asked to explain any changes that it makes in regulations. Indeed, I presume that I will be asked to explain any regulations that are made in the first instance under those pieces of legislation—

Lord Simon of Glaisdale: Does the Minister not recognise that there is a difference in parliamentary control whether the legislation is primary or subordinate?

10.30 p.m.

Lord Mackay of Ardbrecknish: Yes, of course; indeed I do. I clearly recognise the difference between primary and secondary legislation. I am not sure where that leads us. I believe that we could not enact all the legislation which we enact as regards the ways we attempt to run—dare I say it?—a fair system in this country of, say, social security. I am not sure that the noble Earl agrees with me that it is a fair system, but that is how we attempt to run it, and that is how I believe any government would attempt to run it; that is, primary

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legislation followed by a great many regulations to operate a system. If I remember rightly, there are over 1,200 benefit offices dealing with many people with quite different circumstances. It is not easy to legislate for that in primary legislation.

We have had this debate a number of times in this Bill and on a number of occasions on the previous two Bills that I have piloted through this Chamber. I hope I have tried to explain to the noble Earl, Lord Russell, what we intend to do here and that it is not as unfettered a provision as he seems to think it is, just like all the other prescriptions we discuss which he seems to think give the Executive unfettered power. I have to tell the noble Earl that speaking as a member of the Executive I do not feel I have unfettered power.


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