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Earl Russell: My Lords, if the Minister will forgive me, I do not believe that he has read subsection (2) (b) of Amendment No. 8 which gives the Secretary of State full discretion to deal with such things if he wishes, which I presume he will.

Lord Mackay of Ardbrecknish: My Lords, I hear what the noble Earl says, but I believe that the point that I am making about these debts is the proper one. If we leave the Bill as it is and do not make the amendments, those situations can be taken into account. I do not see the need—if I understand what the noble Earl is saying—to take out a lot and then, so to speak, put back a little, because the provision which the noble Earl seeks to amend, together with its delegated power, is one that seeks to widen rather than narrow the scope for departures on the grounds of previously incurred debts, and secondary legislation is essential because of the many different circumstances that can arise.

I have spoken at some considerable length, for which I apologise. But these amendments raised some important issues and I hope I have explained the Government's position fully. I hope that the noble Earl

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can withdraw the amendment, but I know from our debate today, and the longer debate we had in Committee, that he feels strongly about these matters. If he decides to put one or other, or all, of the amendments to the test, I hope that my noble friends will support me.

Earl Russell: My Lords, I thank the Minister for the care of his reply. It was thorough and full. I cannot say that I found it persuasive. I do not think the Minister expected that I would. He is of course right, but I was led into this issue by the effect of regulations in restricting the power of this House. I have realised, as I thought more about it, that that is an entirely inadequate expression of the criticisms of the regulation-making way of legislation. That is since a re-reading of the Renton Report on the night before the Committee stage of the Jobseekers Bill, because I now see that the regulation-making way of legislation is intended not only to restrict Parliament, or even necessarily primarily to restrict Parliament; it is intended also to restrict the sphere of decision which is left to the courts. That is perhaps the most important thing about it and the most important reason why we should deplore it.

Let us listen to the language that the Minister has just been using. He said "We" may prescribe, or "We" do not intend. The entire assumption is that his will is law; that he is operating a civilian system—he can make the law mean whatever he likes. I do not believe that the Minister has yet understood the criticism developed ably—far more ably than I could ever do it—in the Renton Report that the draftsman cannot foresee all circumstances.

It is no use listing all these circumstances in regulations. You are bound to get it wrong. You must lay down a principle and lose control of the crucial stage. Give it up. Let the legislation grow up and let the courts decide what it means. If you cannot do that, then the law has never fully been accepted. It has not been left to go through that process of evolution and growth which any law ought to do on its own account.

The Minister was most resistant to dealing with any expense which was not foreseen. He knows that he will do injustice by that. There will be expenses which were not foreseen and which ought to have been foreseen. He says, "If we allow any unforeseen expense, we may return to the discretionary system". It makes the 1991 Act sound so vulnerable. This is one of those creatures that cannot abide the light of day. It is a Bill that cannot abide evidence; that cannot be brought into contact with real cases. I do not believe that that is the mark of good legislation. If it does bring the Bill into line with real cases, is not that a good thing rather than a bad thing? If it is designed to fit the real world, and not just to assert one single and lonely principle, is not that an improvement?

But the Minister did make one single criticism in which I see force. He said that the amendment dealt only with departures for the absent parent and not for the parent with care. He is right about that. Before I push the amendment to a Division, I should put that right. Therefore, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Carter moved Amendment No. 6:

Page 6, line 29, 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: My Lords, I shall speak also to Amendments Nos. 16, 20 and 32 in the name of the noble Earl, Lord Russell. With this group of amendments we return to the crucial question of the welfare of the child. I do not intend to repeat the whole of the debate we had in Committee, but we felt the issue was important, and we are not satisfied with the answer that the Minister gave in Committee. It is an important point to which we should return to see whether we can press the Government to go a little further than they seem prepared to in Committee.

All the amendments deal with the welfare of the child. It is a concept with which all of us involved with the 1991 Act are familiar. The purpose of the amendment is to ensure that the parties are notified about the ways in which the welfare of any children involved is being considered when departure directions are being formed. We are trying to stop the business of an official just having to go through the motions as regards the child's welfare and to try to sharpen up the whole concept.

I pointed out in Committee, as did the noble Earl, Lord Russell, that when we were dealing with the 1991 Bill we moved successive amendments at each stage—in Committee, on Report and on Third Reading—to try to meet the points that the noble and learned Lord the Lord Chancellor made in relation to the welfare of the child. We accepted his assurance that if he accepted our amendment on Third Reading it would be changed in another place. It duly was, and the provision became Section 2 of the 1991 Act.

As we know, under that section the welfare of any children has to be taken into consideration when discretionary decisions are made. I underline that it is the "welfare of any children", but only when the people concerned are involved in discretionary decisions. In this case, the amendment deals with those affected by departure directions.

What aroused our concern—I do not apologise for returning to the point which was made in Committee—were the remarks of the counsel representing the Secretary of State for Social Security in the Biggin case who said:

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

Perhaps I may examine those words and consider the assurances that we were given in our discussions on the 1991 Act. Counsel, who was presumably advising and representing the Government in the Biggin case, said that provided the agency notices welfare in passing it cannot be challenged that it did not attach sufficient weight to it. As I pointed out previously, he said that welfare is not even a particularly significant consideration.

For all those reasons, we must ask the Minister to spell out in greater detail the way in which he believes that officials, when considering such matters at tribunals

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and so forth, will meet the requirements of the 1991 Act and assure everyone that they are taking the welfare of the children into account. Reference was made to guidance notes and to a code of practice. It is extraordinary that the code of practice is not already in place on this issue which has been on the statute book since 1991.

We are advised that in practice the welfare of the children is not taken into account. It appears that officials are working on the basis of the wording which counsel gave in the Biggin case rather than the requirements of the 1991 Act. For those reasons, we are anxious to ensure that the welfare of the children, which I am sure we all agree is most important, is taken into account. I am deliberately avoiding the word "paramount" because I understand the legal problems that arise. We want the Government to explain exactly how it is proposed that the welfare of the children should be taken into account.

I do not intend to speak in detail on the amendments in the group tabled by the noble Earl, Lord Russell. I am sure that he will do that most adequately. However, perhaps I may ask him to explain a matter which arises in Amendment No. 20. Subsection (2) of the new clause states:

    "in this section 'ordinary circumstances' include any circumstances which are not extraordinary or amazing".

We have heard many remarks—perhaps I dare say lectures—from the noble Earl about the need for accurate definitions. Perhaps he will give examples of circumstances which are extraordinary or amazing. I beg to move.

Earl Russell: My Lords, in supporting the amendment I wish to speak also to Amendments Nos. 16 to 20 and 32. I believe that they are a great deal stronger than the amendment tabled by the noble Lord, Lord Carter. When we discussed the matter in Committee the Minister did not seem to think there was much of a problem. He assured me most earnestly that the welfare of the child was taken into account. Perhaps it is, but I do not see exactly what changes because of it.

In Committee I quoted to him a good deal of information about cases which are being heard in court. I am told that more information is on its way to me and he may hear more of that on Third Reading. I wish to draw his attention to the recent report by the Children's Society, Losing Support. It draws attention to the effect that the Act is having on the welfare of the child. It states:

    "Many of the lone mothers criticise the negative impact of the legislation both on the relationships between former partners of first families and on second families. The lone mothers contrasted these actual effects of government policies with the rhetoric of family values and back-to-basics which were current at the time these interviews were carried out. They did think it was causing a great deal of difficulty in keeping up contact between the first and second families".

Of course, the requirement to take account of the welfare of the child, if it is to be of any force, must bite on more than just the discretionary powers of the Secretary of State. Speaking as a taxpayer, and I stress that, I do not want to impose maintenance which is contrary to the welfare of the child. It is not the kind of thing from which I want to benefit.

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Amendment No. 32—which is placed, as the Minister advised me in Committee, in Section 52 of the 1991 Act—makes the welfare of the child bite on the regulation-making powers so that the Secretary of State shall not make regulations which are contrary to the welfare of the child. There is a very strong case for some action on that front. When we discussed the matter in 1991 we believed that the amendment, which I recollect was tabled in the name of the noble Baroness, Lady David, but to which we all spoke—

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