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Page 4, line 32, at end insert:
("( ) Where the chairman of a child support appeal tribunal directs that documents are to be produced to the tribunal by any person concerned with a departure application he shall have the same powers to enforce that direction as a district judge in a county court would have were he dealing with the application.".").

The noble Lord said: My Lords, this amendment deals with a matter which has been drawn to our attention by the Law Society regarding the production of documents at the child support appeal tribunal. It was discussed in Committee in the other place. The Minister there, Mr. Burt, was interested in the amendment. However, nothing has happened since and so this amendment is a genuine probe to hear what the Government's views are.

The purpose of the amendment is to ensure that the chairmen of child support appeal tribunals have the same powers to enforce directions that documents should be produced as a court would have. Failure to make provision for this will mean that tribunals may be unable adequately to deal with appeals because they cannot ensure that full documentation is produced to them. There have been some concerns about the way in which the child support appeal tribunals are operating. That is relevant to the amendment.

We are advised that they already have a substantial backlog of work in dealing with appeals which have already been lodged. Legal aid is not available to individuals appearing before the tribunals. That impedes individuals' ability to put their cases forward. In Committee we discussed the fact that the chairmen of the appeal tribunals are legally qualified but they are by no means all family lawyers and they may therefore lack an understanding of how an award of child support maintenance relates to other financial provision made on divorce or separation. As we know, the lay members of tribunals are, by definition, not legally qualified and their experience of family law as a whole is likely to be limited. The tribunal system also fails to provide continuity between sittings. We are advised that the Law Society fears that the effect of those factors will be an unpredictable exercise of discretion, even though that discretion will be circumscribed.

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When the matter was debated in Committee in another place the Minister, Mr. Burt, said:

    "I ask the hon. Gentleman to withdraw the amendment on the basis that I shall give the matter active consideration. He has raised an issue and, after discussion with officials, I am not sure about it. I need to talk to the independent tribunal service and, possibly, to the Lord Chancellor's Department about the full implications of the amendment. We may return with an amendment confined to the production of necessary documents without extending the powers too far".—[Official Report, Commons, Standing Committee E, 30/3/95; col. 71.]

I think I am correct in saying that we have heard no more. If would be helpful if the Minister could tell us what the Government's view on this matter is. I beg to move.

Lord Mackay of Ardbrecknish: My Lords, as the noble Lord, Lord Carter, has explained, this amendment seeks to give new powers to the child support appeal tribunal chairman to enforce any direction he may make concerning the production of documents in relation to a departure application. The amendment proposes that he should have the same powers as a district judge would have in a county court.

Your Lordships will have noticed that the amendment seeks to give these new powers only to tribunals hearing applications for departures. However, if I listened to the noble Lord correctly, that is unintentional and he is probing me about any child support tribunal. On that basis, I shall try to explain what the position is and why, when my honourable friend Mr. Alistair Burt looked at this, he was persuaded that he did not need to take any further steps. In order to do that it may be helpful if I explain that the powers of a district judge in a county court broadly allow him to strike out pleadings, to dismiss an action altogether or to commit the offending party—that is, send him to prison for a short period for contempt of court.

For the purposes of comparison I should explain that a tribunal chairman may by summons, or in Scotland by citation, require any person to attend as a witness at a hearing and to answer any question or to produce any documents requested at the hearing. Where a tribunal chairman directs someone to produce documents and that direction is not complied with, it is possible under the present rules of the High Court to obtain a subpoena in aid of an inferior tribunal. If the person still does not comply he may be held in contempt of the High Court and committed to prison. That course is currently available but, clearly, it is not an attractive option. Imprisonment would really serve no useful purpose. I do not believe it is the intention of the noble Lord, Lord Carter, in proposing the amendment to be so extreme as to allow for the imprisonment of an uncooperative parent in these circumstances. But that, ultimately, would be the effect of the amendment.

The powers given to the Secretary of State under Section 15 of the 1991 Act can, and will, be used to obtain information for a tribunal if required. These powers, as your Lordships are well aware, are substantial and should mean that any information which is being withheld from a tribunal can be obtained. Anyone who continues to obstruct an inspector intentionally or who refuses to comply with requests for documentation can be taken to the magistrates' court

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and, on conviction, may be fined up to a maximum of £1,000. I think your Lordships will agree that that is a considerable deterrent and in the circumstances more appropriate than imprisonment.

I should also explain that the provisions in the new Schedule 4A, as introduced by Schedule 1 to the Bill, enable both the Secretary of State and a child support appeal tribunal to decide an application on the basis of the evidence before them where information is not forthcoming. There is therefore no question of an application being left in mid air, so to speak—a decision one way or the other can always be made. Someone refusing to give documents to a tribunal cannot stop the tribunal coming to a decision.

We believe that there are adequate powers available to enable information to be obtained in connection with departure applications and that the proposed new powers are unnecessary. With that explanation of how the system will work, I hope that the noble Lord will be able to withdraw his amendment.

5.15 p.m.

Lord Carter: My Lords, I am extremely grateful to the Minister. The intention of the amendment was to get the Government's views on record. I am not sure about the amendment being extremist. It was the extremists of the Law Society who actually drafted the amendment. They were anxious to probe the point. The Minister has given a satisfactory answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Departure directions]:

Earl Russell moved Amendment No. 5:

Page 5, leave out lines 36 to 43.

The noble Earl said: My Lords, with this amendment I should like to speak also to Amendments Nos. 7, 8 and 10. This is a consequential and interrelated group of amendments which is put down with both drafting and policy intentions. Amendment No. 7 deals with a Humpty-Dumpty clause—that special expenses are whatever the Minister says are special expenses. Amendment No. 5 deals with what I think I might christen a Cambises clause. Cambises, King of Persia, had a law saying that he might do whatever he liked. Clause 6(3), to which it refers, says that the Secretary of State may lay down by regulations any factors which are to be taken into account in departure directions or any factors which are not to be taken into account. It really does say that he can do whatever he likes.

With the amendment I should like to consider Amendment No. 10, which is replaced by the draft of my Amendment No. 8, which is what I might call a matron's clause—any child of a prescribed kind. I am becoming a little tired of these unsatisfactory prescriptions. But it is not only concerned with the drafting. It is also concerned to lay down some clear policy grounds to govern the drafting of departures under the Bill.

The Secretary of State believes that he can lay down the grounds of departure in detail, piecemeal, and by regulation. That will prevent any parliamentary control of the grounds for departure and will stop any attempt

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to amend them. Since the grounds for departure are the heart of the Bill, that will prevent us from exercising our revising functions where they are most likely to be needed.

Following the principles of the Renton report, we do not attempt to enshrine all the grounds of departure in primary legislation in a sort of exhaustive list. We recognise that there is a need for flexibility, but what we argue is that regulation is the wrong way to exercise that flexibility. It is, of course, of the essence of the case for the system of departures which is now being introduced that it is designed to deal with unforeseen cases, for which the 1991 Act did not provide and where the formula failed to work equitably in a particular case.

But it is of the essence of the Secretary of State's regulation-based approach that it cannot, by definition, provide for the unforeseen: it can only allow for departure in cases the Secretary of State has foreseen, before they happen. Therefore, the approach must always involve injustice the first time any unforeseen problem comes up. Since Secretaries of State are not equipped with a crystal ball, any more than that enjoyed by the rest of us, such cases will be frequent. There will be no way of dealing with the child support equivalent of the man who was condemned for an incestuous marriage because he had married his deceased wife's sister's niece by the father and not the mother. It took the discretionary power of the prerogative of mercy to deal with that. No regulation could possibly have foreseen it. The Secretary of State, even with the flexibility of a contortionist, cannot lock the stable door unless the horse is already stolen.

In fact, the attempt to deal with extraordinary cases by total enumeration is necessarily doomed to failure. It is that approach which explains why, as the noble and learned Lord, Lord Simon of Glaisdale, has pointed out, the number of pages of regulations each year increases so alarmingly. But that is a labour of Sisyphus: it will never achieve its objective.

The only way to provide a discretion for extraordinary cases in which the formula does injustice, which is what the Government wish to do, is to adopt the principles of the Renton report: to lay down a series of general principles and to leave it to a court or a tribunal to decide whether the individual unforeseen case is covered by the principles.

In this case, unless the Secretary of State wishes otherwise, the task will presumably fall to a child support appeal tribunal. That means that the Secretary of State must make the painful sacrifice, at some stage, of losing control of the evolution of his legislation. He may find that distasteful, but the parents of laws, like the parents of children, must accept that in the end they acquire a life of their own. That is inevitable. So that is why Amendment No. 8, which is the key amendment, attempts to lay down general principles. I do not know whether they are the ideal general principles; I am not wedded to every detail of them.

If the approach is accepted, but the detail is not, I shall be very happy to engage in discussions between now and Third Reading about how it could be made more acceptable. Paragraph (2) (a) of the amendment lays down, first, a mandatory series of general principles

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for which the Secretary of State shall give a departure direction. The Minister will no doubt object that these have the effect of lowering the priority given to child maintenance. If he does that, we shall join issue with him.

The Government were right, in 1991, that the priority given to child maintenance needed to be increased, but they are not right in arguing, as they did in Committee, that child maintenance needs to be given priority over all other expenses whatsoever. That is an obsessive view and simply not in the real world. The protection it purports to give—and I say "purports" advisedly—to children subject to the 1991 Act is one which children of two married parents, living in ordinary conditions, have never enjoyed and never will enjoy.

The first category in the amendment covers expenses on which it would be unlawful for the absent parent to default. I find it very hard to see how a government committed to the rule of law could oppose such a provision; and if they do oppose it, they contribute to an erosion of respect for the law. That is a matter on which governments of all complexions must set a good example. To be told that we are bound by law to break the law, tends to invite the famous response that "the law is an ass". I would not wish to be a party to using this Bill to do that.

The second category in the first part of Amendment No. 8, covers expenses the absent parent could not cease to meet while remaining in employment. If the Government really want to increase child maintenance they must accept that if fathers cannot work they cannot pay maintenance, and therefore anything which prevents the absent parent from working defeats the object of the exercise and, incidentally, it is against the interests of the taxpayer because it reduces the number of taxpayers and therefore increases the burden on those remaining.

The third general principle, which to me is a basic part of the equity of child upbringing, is that all the children of one person should have an equal call on him. The Act should not lay down any standing division between Cinderella and the ugly sisters; such divisions do have a reputation for being self-reversing. In fact, the proviso that I have added gives that principle a paramountcy over the others. Children who are the subject of an assessment under the Act may not be left worse off by the effect of departures than other children whom it is the absent parent's duty to maintain. That may possibly assure the Minister that maintenance under the Act will not be allowed to slip too far down the list of priorities. It puts a brake on the operation of this amendment.

The amendment deliberately uses the general principle,

    "other children whom it is his duty to maintain"

rather than the matronly phrase,

    "other children of a prescribed kind"

which is now made unnecessary. There is no need to wander through a burgeoning maze of regulations, enumerating stepchildren, stepchildren-in-law, adopted children, orphan children taken on, and all the rest. Some are bound to be missed out. The question of whether it is a person's duty to maintain a child is

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precise enough: it is legally verifiable. It does allow for all the other cases, like the child of the next-door neighbour whose parents are killed in a car crash. The child is taken on so that someone shall look after it. If we discourage people from doing that sort of thing, we diminish ourselves as a society and put a burden on the taxpayer, for which there is no need.

Paragraph (3) of the amendment, on the other hand, is permissive rather than mandatory, and reads:

    "The Secretary of State may give a departure direction [if it appears to him] unreasonable, impossible or against the public interest, to require [an absent parent] to withdraw"

from a particular expense.

There is one case to which I would like that to apply, which I have found many times in my postbag. I refer to people who are maintaining their aged parents, often keeping them out of the clutches of care in the community by doing so. It is not in the taxpayers' interests to stop them doing that. I shall not go on enumerating cases. It is of the essence of Paragraph (3) of Amendment No. 8 that, by giving the Secretary of State a discretion bound by a firm general principle, it obviates the need for regulations. It saves the need for the telephone-directory style of legislation and it gives us something which might just work, unlike the Bill as we have it. I beg to move.

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