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Before Clause 18, insert the following new clause:

("Enforcement of liability orders by distress: repeal of section 35 of 1991 Act.")

. Section 35 of the 1991 Act shall cease to have effect.

The noble and learned Lord said: My Lords, this amendment returns to the question of distress. As your Lordships know, it is a self-help remedy whereby a creditor can take possession of the goods of his debtor and sell them. It is a harsh remedy and a most disagreeable process with bailiffs in the house, furniture put out on the pavement and so forth. It was most rigorously controlled and fenced in both at common law and by statute.

We have discussed the matter previously but have not had an answer to the central question; namely, why does the Child Support Agency, why does the Secretary of State, need Section 35 of the 1991 Act? I shall return to that matter in a moment; it is a brief point.

First, immediately after the Report stage I wrote to the Minister on a specific point. Of course, he has not had an opportunity to reply and I hope that he will be able to do so today. If not, I shall perfectly well understand. The specific issue was as follows. Under Section 35 of the 1991 Act and the corresponding provisions of the Magistrates' Courts Act relating to distress—and I believe also under the county court provisions—there is provision as to special damages for irregular distress. I take that also to mean illegal and excessive distress. But those provisions are differently phrased in the 1991 Act and in the Magistrates' Courts Act.

As soon as a provision is differently phrased everyone is alerted to the fact that a different meaning is attached. The courts will certainly assume that when the draftsman changes the formula a different meaning is attached. I wrote to the Minister asking why there was a change of terminology and whether a different result was intended. That is a minor technical point which relates to special damages.

The central point is that under Section 33 of the 1991 Act the Secretary of State can obtain from a magistrates' court a liability order. That order establishes that the absent father is liable to pay the sum stated. The magistrates cannot question the sum stated. They cannot listen, for example, to the debtor saying, "The application of the formula left me with only one penny a week", as in one notorious case that was reported. Magistrates' courts have simply to register the liability order.

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When that happens a warrant for distress ensues under Section 76 of the Magistrates' Courts Act. As the Secretary of State can obtain a liability order and an ensuing distress warrant, why does he need the provision of Section 35 of the 1991 Act. On the face of it he does not. One suspects that it must be giving him something that the Magistrates' Courts Act does not give.

We are liable to have that suspicion because wherever we look at the 1991 Act we find exceptional powers being vested in officials; for instance, the power to enter private premises under pain of a penalty, the right to interrogate the employer on the manner judged to be in default and his fellow employees who must answer under pain of a penalty. They are given the right to infringe the priceless heritage that we have of Inland Revenue confidentiality. Therefore, when we find what is on the face of it a completely unnecessary provision we are bound to ask what is sought in Section 35 that is not given in Section 36 of the Magistrates' Courts Act. I have therefore moved to omit Section 35 of the 1991 Act.

I understand that most Members of another place have adjourned to College Green, but I imagine that they will reassemble at the other end of the Palace to consider the amendments made to the Bill by your Lordships. I hope that this amendment will be one of them. I beg to move.

5.15 p.m.

Lord Mackay of Ardbrecknish: My Lords, the noble and learned Lord, Lord Simon, is concerned that Section 35 of the 1991 Act gives the Child Support Agency additional or exceptional powers, and that this section is not needed as there are provisions for the levying of distress in the Magistrates' Courts Act 1980.

It is possible that the provisions in Section 76 of the Magistrates' Courts Act relating to the enforcement of orders given by magistrates' courts might apply to cases where a liability order is granted under the provisions of Section 33 of the Child Support Act. I say "possible" because there is a question as to whether liability orders, which were introduced in legislation enacted after the Magistrates' Courts Act, are orders for the purposes of Section 76.

The provisions for distress in the Child Support Act could, to that extent, be considered additional to those in the Magistrates' Courts Act. However, they were introduced for specific reasons. As I said on Report when we discussed this issue, a decision was made to use magistrates' courts rather than county courts for the purpose of obtaining liability orders because magistrates' courts are often more local and easier for parents to attend.

The provisions in Section 35 of the Child Support Act enable distress action to proceed promptly, in cases where it is appropriate, without the delay and expense that would arise from a further application to the court for a warrant of execution or warrant of distress. They also enable distress action to be taken without the involvement of the police, who are responsible for executing warrants of distress in some magistrates' courts.

The provisions in Section 35 are similar to the provisions in the Local Government Finance Act 1988, which gave local authorities the power to levy distress

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without involving magistrates' courts further and it was thought appropriate for the Secretary of State to have the same power. The Secretary of State's position cannot be compared with that of a private creditor. He is not pursuing a debt owed to himself but one owed to the parent with care. As I have already made clear in earlier debates, the Child Support Agency does not proceed lightly with distress action. Absent parents are given every opportunity to reach and abide by an agreement about repayment before an application for a liability order is made. Once the order is granted, they are given a further opportunity to reach an agreement before distress action is initiated. But if no such agreement is reached, I believe that it is right that swift action should follow to ensure that the parent with care and children receive the money to which they are entitled as soon as possible.

Reference was made on Report and in the letter to which the noble and learned Lord referred today to the provisions in Section 35(6) relating to special damages. It has been asked why they are different from the provisions in the Magistrates' Courts Act. The reason is that the provision in Section 78(3) of that Act is capable of being interpreted so as to allow for general damages as well as special damages where there has been a defect in the distress warrant or irregularity in its execution. The wording of Section 35(6) of the Child Support Act 1991 makes it quite clear that special damages can be recovered only where there has been any irregularity in the levying of the distress.

The noble and learned Lord, Lord Simon, is concerned that the provisions in Section 35 give the Child Support Agency, acting for the Secretary of State, excessive and unreasonable powers. But I do not believe that to be the case. The child support system contains provisions for appeals to an independent child support appeal tribunal in cases where the parent is concerned about the amount of the assessment. Legal proceedings, by way of an application for a liability order, are necessary before distress proceedings can be started. As I said on Report, that will involve a hearing in the magistrates' court at which the absent parent will have the opportunity to argue that the debt is not due; for example, because payment or part payment has already been made. Distress proceedings can then be initiated without further reference to the court if, within a reasonable time, the absent parent has not made arrangements for payment. That is similar to the procedure in the county courts where the issue of a warrant of execution is an administrative decision in most cases.

The provisions in Section 35 are similar (although I accept not identical in every respect) to provisions in both the County Courts Act and the Magistrates' Courts Act. They include a number of safeguards for the absent parent—for example, listing a range of goods that cannot be seized and making provision for special damages—and appeals if the distress process is irregular in any way.

I believe we are all agreed that the ability to levy distress is necessary to ensure the effective enforcement of maintenance in those cases where the absent parent

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does not co-operate in meeting his liabilities. I hope that the explanation that I have given reassures the noble and learned Lord, Lord Simon, that Section 35 does not give excessive powers to the Child Support Agency but merely ensures that distress proceedings can be initiated promptly and effectively in those cases where, regrettably, it becomes necessary. I accordingly invite the noble and learned Lord to withdraw the amendment.

Lord Simon of Glaisdale: My Lords, I am much obliged to the Minister for his explanation about the special damages provision. I only say that the difference is quite insufficient to justify Section 35 if it is otherwise unnecessary.

As before, the noble Lord made a number of contentions which have nothing to do with this issue. It is nothing to do with the issue that the 1991 Act preferred the magistrates' court to the county court. That is not in question. Indeed, we have suggested that the Magistrates' Courts Act gives quite sufficient power to levy distress.

Another irrelevance is that we think distress is necessary. Again, that is not in contention. We say that the statute book is being cluttered up with a quite unnecessary power when there is the right to levy distress in any event under the Magistrates' Courts Act.

Therefore, I come to the one point where the noble Lord justified Section 35—that is, by saying that it is not certain that there is a power to levy distress after a liability order under Section 76 of the Magistrates' Courts Act. With all respect, I entirely disagree. What is more, it is not my disagreement, which is neither here nor there. The statute states:


    "where default is made in paying a sum adjudged to be paid by a conviction or order",
"or order" obviously includes a liability order,


    "of a magistrates' court, the court may issue a warrant of distress".

It is not only the plain words of the statute, because the authoritative notes of Halsbury's Statutes of England state expressly that that covers liability orders under the Child Support Act. I have marked the relevant passages and can pass them to the noble Lord if he doubts my interpretation of what he said. Therefore, it is not I who says that the point is quite idle, that it is uncertain whether a liability order under the Magistrates' Courts Act gives rise to a warrant of distress. It says so in the plain words of the statute and in the authoritative notes in Halsbury's Statutes of England.

Finally, the noble Lord said that under Section 35, the warrant of distress would not be executed by police officers; nor would it. But who would rather have an officer of the Child Support Agency who has already antagonised absent fathers to an extent which is now notorious? Who would not rather have an experienced police officer used to enforcing warrants of distress and carrying them out? Who would not prefer a police officer to the heavy-footed child support officer or inspector or whoever the official is who has shown and shown repeatedly—as has emerged from our discussions on this Bill—a consistent animosity against absent fathers as though they were the villains of the piece evading supporting their children?

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After the last Division, there is no point in dividing your Lordships' House on this matter. But I ask your Lordships who are present to say that it is clear beyond any doubt that Section 35 is unnecessary. It is merely cluttering up the statute book. It is entirely consonant with the bureaucratic aggression that was constituted in 1991. Having said that as spitefully as I can, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Earl Russell moved Amendment No. 7:


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