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Earl Russell: I thank the Minister for her reply. As I expected, I have no great objection to her present intention under the schedule. I thought it was not intended to do anything particularly iniquitous and I understand why she wishes to do it in this way. However, before we leave the matter, I should like the noble Baroness to pay attention to the more general scope of my question; namely, what is the extreme limit of what could be done under these powers? I do not mean what could be done by the Minister, I mean by someone else.

If we put such powers into primary legislation, what use can be made of them? We are giving someone a ticket to travel under this legislation, and I should like to know where that ticket can take them. At the same time, I want to know whether the same effect--I do not oppose the Minister's desire to achieve it--could possibly be produced out of a slightly less open-ended wording. This is getting quite close to the proposition that the Secretary of State can do whatever he likes. It is not really our job to give quite such a carte blanche. Therefore, as the Minister has a perfectly reasonable specific intention, would it be possible to spell it out in a rather tighter way and not leave it quite as open ended as it is at present? I believe that this point is worth referring to parliamentary counsel for future consideration because, as the Minister said, other things are drafted in this way. I really do not think that they should be.

Baroness Hollis of Heigham: I should like, first, to point out that the Delegated Powers and Deregulation Committee was satisfied that regulations were appropriate in this field, so that has been a considered judgment. The noble Earl seems to be saying that all secondary legislation forms part of the works of the devil and that, therefore, we should avoid it. Like me, he knows that this Chamber, the Moses Room and every committee room would be sitting both night and day in order to get through legislation if every change had to be done by primary and not secondary legislation. Given the fact that something like 3,000 or so separate statutory instruments come here each year, including social security legislation, I do not believe that the noble Earl would like to be here to examine all of them as primary legislation. There is a basic point here about the utility of secondary legislation. As I said, this has been approved by the scrutiny committee.

Secondly, I do not see why the noble Earl should think that there will not be proper parliamentary scrutiny because these are affirmative regulations. As

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a result, they will have to come before the noble Earl if he is so minded to discuss them in the usual way. No one is trying to duck or conceal.

Thirdly, the noble Earl asked me what would be the most extreme position in which such powers could be used. I suppose if one said that 100 per cent of someone's income was to be used as maintenance, that would be the limit. I could hardly conceive of 110 per cent of someone's income being used in that way. Clearly one could change those percentages of 15, 20 or 25 per cent, and so on.

I am inventing my next example and I shall probably be advised that it is not a good example at all. The noble Lord, Lord Higgins, is continually telling me that there is really no difference between taxation and national insurance, for example, and that they form a continuum. In that case I could conceive that one might have a different version of gross income, even though here we are dealing with net income. If there were some changes in pensions treatment, for example, it might be right and equitable to re-evaluate what counts as net income for the purposes of the percentages we are discussing. I could conceive of that possibility. I have no reason to think that it is at all likely but, realistically, it is not impossible. In that situation one would wish to discuss that in the Chamber to ensure that the spirit of what we intend is preserved if taxation law, national insurance law or pensions law were to be changed. That seems to me at least a feasible possibility. Given that there will be full parliamentary scrutiny by virtue of affirmative resolutions, I do not think that the noble Earl need have anything to worry about.

9.15 p.m.

Earl Russell: I thank the Minister for that reply. She has got into rather a habit this evening of putting words into my mouth. I was not arguing in this amendment the case for primary versus secondary legislation. I had specifically conceded the appropriateness of secondary legislation in this instance and I think that the record will show that. What I was trying to suggest was that the vires which confer the power to make secondary legislation might be rather more tightly drafted. That is a point which I leave with the Committee. I shall not ask the Minister to reply to it again.

I have another point that I have mentioned to the Minister about 100 times; I hope that this is the last time I have to say it. It is no good offering me scrutiny because the power of scrutiny is useless without the power of control. However, I shall not say that again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 28 not moved.]

Schedule 1 agreed to.

Clause 2 [Applications under section 4 of the Child Support Act 1991]:

Baroness Buscombe moved Amendment No. 29:

    Page 3, line 3, leave out subsection (2).

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The noble Baroness said: In moving Amendment No. 29 I wish to speak also to Amendments Nos. 30, 31, 32, 33 and 35. I also wish to oppose the Question that Clause 2 stand part of the Bill.

This is an important part of the proceedings of the Bill. It was debated at great length in another place. The Minister will know that we have all been much lobbied on this subject from a number of different organisations. Therefore we feel that it is important to debate the matter fully this evening.

The current CSA legislation confirms that where parents are able to reach agreement on the level of maintenance for their children they may do so and they may also incorporate that agreement into a court order. If they do this, no CSA assessment can be made and the level of child maintenance to be paid will be covered by their agreement. In practice this is a valuable and greatly used provision. It enables parents to negotiate and agree their own arrangements without having to resort to the CSA. This benefits both the parents and children concerned and relieves the workload of an overstretched CSA.

Clause 2 of the Bill effectively removes this ability by stating that once it comes into force, even if parents are able to agree their arrangements and have them incorporated into an order, after just one year either parent may renege on that agreement and instead apply to the CSA. That will effectively bring an end to parental discussion and negotiation as any agreement that may be reached will be capable of being overturned at the end of a year by either parent who believes that he or she can do better through the CSA.

That approach is totally contrary to developments both in Europe and in this country on matters relating to children and finances generally. The overwhelming trend is towards encouraging parents to discuss and negotiate their own arrangements. This enables and encourages parents to act responsibly and realistically gives them the opportunity to tailor workable solutions to their particular financial circumstances. This ability is beneficial to all concerned and often helps reduce the resentment and acrimony caused by the imposition of outside "solutions". Indeed, the belief that there are benefits to parents in being able to agree their own arrangements underpins the Government's support and development of mediation in family matters.

There are numerous circumstances where parents want to opt out of the CSA. The three basic alternatives are as follows. First, parents reach agreement similar to what the CSA would have assessed but wish to avoid having to go through the CSA procedure. Secondly, parents agree that payments for the children will be greater than the CSA would assess. The most common reason for this circumstance is likely to be in return for a trade off. For example, the mother will agree to make no maintenance claims for herself--this is often referred to as a "clean break"--in return for a better level of maintenance for the children. This can have benefits all round. The non-resident father is happier to pay the money because it is deemed to be going to the children

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and gives a definite length to the maintenance obligation. The mother in turn no longer has to concern herself about forming new relationships and the effect that that has on the maintenance. Thirdly, parents may agree to a lesser sum than the CSA. Again, this will often result from financial trade offs.

For example, the non-resident parent may transfer capital or the house to enable the mother and child to remain housed, with the mother accepting in return a lesser level of maintenance for the children. The scope for this kind of settlement is likely to increase under the new CSA where the residential parent's income is no longer taken into account. One could have situations where the residential parent works and has sufficient income but there is a need for capital to secure accommodation for the children.

To benefit from this exemption the parents need to have their agreements approved by the courts. This provides an important protection against a parent being pressurised into unsuitable agreements, while at the same time it provides a straightforward and established procedure. It is a procedure that is frequently used when parents are divorcing and have been able to reach agreement on financial aspects generally as it enables them to ask the court to confirm the terms of an overall settlement that may well include spousal maintenance and capital at the same time as child maintenance.

One cannot see any benefits to this clause, which effectively states that after one year either parent may call upon the state to intervene and override agreements that they have reached, even if that agreement has been reached after full advice and after a court has approved the terms. On the other hand, one can see many benefits in allowing the current situation to continue which enables separating parents to agree their own financial situation.

We are here to improve the CSA. We are asking: why burden it with more work than it can cope with? We should also remember that, in contrast to the CSA--which we all agree is currently failing too many children--the courts in general enjoy a wealth of experience and expertise and are normally very effective in dealing with more complex cases.

I believe that it is important to review what the Select Committee had to say on the matter. It stated:

    "We are concerned that the CSA formula may be invoked to overturn settlements agreed to in court. It would be preferable if settlements reached in court paid attention to the CSA formula from the outset.

    "We recommend that further research be carried out into the extent to which the interests of the children concerned would be adversely affected by allowing parties to 'private' agreements to have recourse to the rough justice of the ... new formula".

The Minister informed the Select Committee that the justice system is not always uniform. We fear that this shows a clear bias towards conformity and administrative convenience.

Our amendments and proposed new clauses deal with three principal concerns. First, that the CSA will be swamped with cases as a result of the clause and it will not be able to cope. Secondly, private

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arrangements will not be reached as easily as they were in the past. The court system will not be able to cope with the greater volume of litigation. The third and most important point is that the amendments and new clauses would allow the courts to provide a disbursement of assets in the best interests of the child. Without the new clauses, we fear that the deal offered to the children will be lessened.

On a final note, perhaps I may add in relation to the debate earlier on the upper limits in Clause 1, that the numbers affected by this will radically increase if Clause 2 becomes law. I beg to move.

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