Select Committee on Delegated Powers and Deregulation Thirteenth Report


DETAILS OF THE DELEGATED POWERS BY CLAUSE

PART I - CHILD SUPPORT

Introduction

34.  This Bill amends the Child Support Acts 1991 ("the 1991 Act") and 1995 ("the 1995 Act") to provide for a substantially reformed system of child support. The key child support changes introduced by this Bill are a radically simplified means of calculating liability for child maintenance and enhanced provisions for ensuring that maintenance is paid regularly and reliably. In common with the Acts amended by Part I of the Bill, the child support clauses contain a wide range of delegated powers.

35.  These delegated powers serve a number of functions. Firstly, they will allow legislation to include a substantial body of detailed provision (such as on the calculation of income for child support purposes) which is not appropriate for primary legislation. Secondly, they will allow for the control by regulations of the specific procedures needed to ensure that the scheme is effective in ensuring that parents receive decisions about child support quickly and that maintenance is paid when it is due. Thirdly, delegated powers will allow the scheme to be adapted to address unforeseen problems and to reflect changes in the lives of parents and children.

36.  The Department has considered carefully the parliamentary control to be exercised over the use of the delegated powers in this Bill and in the 1991 Act. In general, it takes the view that the affirmative procedure, which is costly in terms of Parliamentary time, should be used sparingly. However, the Department accepts that, where provisions are novel, have a direct and significant effect on individual financial liabilities or substantially alter appeal rights, it is right that there should be an opportunity to debate regulations before they come into effect. When it was introduced, the 1991 Act contained many novel provisions - accordingly many delegated powers followed the affirmative procedure.

37.  However, these provisions are no longer new and clause 25 in this Bill alters the parliamentary control for certain provisions. It is proposed that some of the delegated powers relating to the requirement to provide information in connection with an application for child support (in sections 4(7), 6(9) and (10) and 7(8)) should follow the negative procedure. In addition, regulations under the powers in section 5(3) (which provides for the rules to determine which of two or more applications for child support in relation to a child should go ahead) and in section 42 (which provides for "special cases" regulations) should become negative.

38.  Regulation-making procedures under section 12(4), 12(5)(b), 28C(2)(b), 28F(2)(b), 28F(3), 30(5A), 41(2), 41B(6), 43(1), 44(2A)(d), 46, 47, paragraph 3(2) or 10A(1) of Part 1 of Schedule 1, or Schedule 4B or an order made under section 45(1) or (6) of the 1991 Act, as amended, will be affirmative because they relate to the calculation of liability or because the Government feels that they should be subject to a debate in Parliament because of the nature of their content. In addition, the first set of regulations made under paragraph 10 of Part 1 of Schedule 1 will be affirmative.

Clause 1: Schedule 1 - Calculation of weekly amount of child support maintenance

39.  This Schedule replaces Part 1 of Schedule 1 to the 1991 Act with new provisions that set out the rules for calculating child support liability in the reformed scheme. As explained in the White Paper "A new contract for welfare: children's rights and parents' responsibilities'." (Cm 4349), the Department intends that liability will be based solely on the non-resident parent's income and the number of children for whom the non-resident parent is responsible. It is intended that the maintenance calculation should be based on one of three rates, a basic rate, a reduced rate or a flat rate.

40.  Paragraph 3 provides the rules for determining which non-resident parents will have a liability calculated at the reduced rate. Sub-paragraph (1) provides the circumstances in which the reduced rate will apply. Sub-paragraph (2) provides for the reduced rate to be prescribed in or determined by regulations. These regulations will be made by the affirmative procedure. The intention is that the regulations will specify a calculation that achieves the levels of liability set out in Annex 1 of the White Paper. Reduced rate liability will increase from £5 in proportion to income in excess of £100 on a sliding scale so that, as income approaches £200, the reduced rate liability approaches the basic rate. The rules for working out the reduced rate may need to be changed in the future to reflect changes in the flat rate or basic rate and so are appropriate for regulations.

41.  Paragraph 4 of Schedule 1 provides the rules for determining which non-resident parents will have a flat rate liability. Sub-paragraph (1) sets the flat rate liability at £5 and provides for the flat rate liability to be payable where the non-resident parent has net weekly income of £100 or less or where he or his partner is in receipt of certain benefits, pensions, or allowances. These will be specified in regulations and will include both income-related benefits such as Income Support or income-based Jobseeker's Allowance and other social security provisions such as Incapacity Benefit and Retirement Pension. This list is not exhaustive. The Department wants to retain flexibility to amend or add to the list to take account of future changes in the social security system and have retained a power to do so in regulations.

42.  Sub-paragraph (2) provides a power to prescribe the amount of the flat rate in cases where the non-resident parent's partner is also liable to make child support payments and either he or that partner receive a benefit prescribed for the purposes of this sub-paragraph. The applicable benefits for this sub-paragraph are intended to be Income Support and income-based Jobseeker's Allowance. It is intended that the flat rate will be divided between the non-resident parents (NRPs) so that, for example, where both members of a couple are NRPs, the flat rate for each will be £2.50 and the total deducted from benefit will be £5

43.  Paragraph 5 provides that the non-resident parent will be liable for a nil rate where he has a net income below £5 or is of a prescribed description. Non-resident parents prescribed for this purpose will include students, children, people on Income Support who are aged 16 or 17 or who have been in hospital for more than a year and prisoners. Regulations will allow the addition of further groups to this list.

44.  Paragraph 7 provides the rules for adjusting the basic or reduced rate of maintenance liability where the non-resident parent shares the care of a qualifying child. Sub-paragraph (3) provides the power for the Secretary of State to decrease the maintenance liability in proportion to the number of nights that he determines the non-resident parent has provided or is expected to provide overnight care of a child in a prescribed twelve month period. This period will normally be the twelve months ending on the date from which the shared care affects child support liability. However, regulations will allow the flexibility to use a different period should the parents agree that this would represent their position more accurately.

45.  Sub-paragraph (2) of paragraph 8 provides for the maintenance liability to be nil in cases where the flat rate would otherwise be payable where the non-resident parent provides overnight care for a minimum of 52 nights in a prescribed 12 month period. Regulations made under this provision will mirror those made under paragraph 7(3) (see paragraph 44 above).

46.  Paragraph 9 contains provisions that allow the Secretary of State to provide in regulations the rules for determining whether, and to what extent, care is shared. Regulations will provide flexibility for dealing with what will be detailed circumstances and for responding quickly to unforeseen ways that parents arrange care for their children.

47.  Paragraph 10 provides for the rules that will determine what counts as net weekly income. Sub-paragraph (1) enables the Secretary of State to specify in regulations the items to be taken into account in calculating the net weekly income of the non-resident parent. The intention as set out in Annex 2 to the White Paper is to take into account earnings after deducting items such as Income Tax, National Insurance and contributions to an Inland Revenue approved pension scheme and certain benefits and allowances. The definition of income is currently contained in regulations- the complex provisions required and the need to respond quickly to take account of new sources of income require similar provision for the future. The Government accept that regulations that define the income to be used in the maintenance calculation will require detailed scrutiny when first made- this is why they have provided the affirmative for the first use of this power. However, subsequent amendments, which build on a established framework will not require such detailed consideration and are more suitable for the negative procedure.

48.  Paragraph 10A(1) provides regulation-making powers enabling the Secretary of State to alter the percentages and amounts used to set the maintenance rate. These regulations which (if used) would directly affect child support liability will be subject to the affirmative procedure and will allow the child support scheme to be adapted to reflect future changes. Paragraph 10A(2) provides regulation-making powers to revise the number of nights and fractions used to adjust the maintenance calculation where care of a child is shared. This will allow the Department to fine-tune the way that child support liability is worked out in the light of experience.

49.  Paragraph 10B supplements the definition of net income in paragraph 10. It provides for regulations to treat as income resources that the non-resident parent has intentionally deprived himself or herself of to reduce their maintenance liability. Regulations may also provide that a person is treated as possessing income they do not have or for income that a person possesses to be disregarded. These provisions replicate a power in the current scheme (in paragraph 9 of Schedule 1- relevant regulations are in Part V of Schedule 1 to the Maintenance Assessment and Special Cases Regulations- SI 1992/ 1815). The Department has no current intention of using the provisions relating to deprivation of income and treating a person as having income that he does not possess in the new scheme - this issue will be handled by variations to the standard rates. However, it takes the view that it is prudent to retain the power to make appropriate regulations for the future.

50.  Paragraph 10C provides definitions of terms used in this Schedule. Sub-paragraph (2) allows the Secretary of State to add in regulations to the definition of relevant other children. Relevant other children are the children in the non-resident parent's second or subsequent family who are taken into account when working out liability. This power allows the Secretary of State to extend the definition beyond that set out in paragraph 10C(2)(a). This is appropriate for secondary legislation.

Clause 2 - Applications under section 4 of the Child Support Act 1991

51.  This clause amends the provision in section 4(10) of the 1991 Act that prevents the CSA from accepting applications from parents with maintenance orders. Subsection (2) provides that this exclusion only applies to parents with maintenance orders made before a prescribed date. Regulations will provide that maintenance orders made before the introduction of the new scheme will be excluded. As the introduction date of the new scheme is not yet decided we are unable to specify the date on the face of the Bill.

Clause 3 - Applications by persons claiming or receiving benefit

52.  Clause 3 substitutes a new section 6 into the 1991 Act. This provides that certain parents with care will be treated as applying for child support unless they request otherwise. Subsection (1) provides that people in receipt of Income Support and income-based Jobseeker's Allowance or any prescribed benefits will be treated as applying for child maintenance. The Department does not intend to use this power at present, but feel it is desirable to have as it provides the flexibility to add other benefits to the list. This carries forward a regulation-making power from the 1991 Act.

53.  Subsection (7) requires the parent with care to provide the Secretary of State with the information, so far as it is reasonable, necessary to enable him to trace or identify the non-resident parent so that a maintenance calculation can be made and payments collected. The intention is to carry forward existing provisions in the Information, Evidence and Disclosure Regulations . Although these regulations will be supplemented by the new criminal offence for failure to provide information (see clause 13) we do not intend that parents who fail to provide information for the purpose of section 6(7) should face prosecution.

54.  Subsection (8) provides powers to make regulations specifying circumstances under which the requirement to supply information to the Secretary of State may be waived. This carries forward a power in the current section 6. This power, although currently unused, has been carried forward because it may provide a means to protect parents with care in as yet unforeseen circumstances.

55.  Subsection (9) allows a parent with care who ceases to fall within subsection (1) to ask the Secretary of State to stop child support action. Subsection (10) states that the Secretary of State must comply with this request, but subject to any transitional regulations that he may have made under subsection (11). Subsection (11) provides for transitional provisions to allow child support processes to be shut down effectively- and to cover such issues as the collection of arrears in these circumstances. These procedural rules are appropriate for regulations.

Clause 4 - Default and interim maintenance decisions

56.  Clause 4 substitutes a new section 12 of the 1991 Act. There will be circumstances in which a final maintenance calculation cannot be made straightaway, for example, when sufficient details are not available, or need to be verified. The reformed scheme will allow maintenance liability to be set at a default rate where the information needed to complete a full decision (other than information relating to a variation application) is not immediately available, and at an interim rate where the calculation cannot be completed because an application for a variation is outstanding.

57.  Subsection (4) of the new section 12 allows the Secretary of State by regulations to make provision as to default and interim maintenance decisions. As subsection (5) provides, these regulations may, in particular, set out the procedure to be followed in making such decisions and the amount of the default rate. Procedural rules are more suitable for secondary legislation and the default rate, which is intended to reflect average child support liabilities will need to be updated from time to time to reflect changes in earnings. Because these regulations will set child support liability in certain cases, they will follow the affirmative procedure.

Clause 5(2) - Departure from usual rules for calculating maintenance

58.  The new child support rates set out in Part 1 of Schedule 1 to the Child Support Act 1991, substituted by Schedule 1 to this Bill, are intended to provide a fair maintenance calculation in the vast majority of cases. Nevertheless, the Department recognises that there will be exceptional cases where the child support rates do not properly reflect a non-resident parent's ability to support his children. For example, a non-resident parent may need to spend an exceptionally large amount of money keeping in touch with the children, or the net income used in working out his liability may not properly reflect the resources available to him. Accordingly, the Department has decided to allow for the variation (both upwards and downwards) of the rates payable under the new scheme in certain exceptional cases. However, it is important to avoid simply reintroducing the complexity of the existing formula by another route. The exceptional cases in which a variation will be possible will therefore be tightly drawn and clearly defined.

59.  Subsection (2) of clause 5 substitutes section 28A to 28C of the 1991 Act. Subsection (5) of the new section 28A provides a power to prescribe the manner for making an application for a variation. The detailed nature of this provision makes it unsuitable for placing in primary legislation and allows flexibility for change to reflect experience of operating the scheme. This reflects the current scheme where the details of applications for Departures are set out in regulations.

60.  Section 28B subsection (2) sets out other circumstances under which the Secretary of State may refuse an application for a variation following preliminary scrutiny, and allows the Secretary of State to prescribe the circumstances where such a rejection may be appropriate. It is intended, for example, to prescribe a threshold for the weekly amount of special expenses set at either £10 or £15 per week, depending on the non-resident parent's net income. These provisions are best suited to regulations to allow for changes to be made to the circumstances and thresholds as the need arises.

61.  Section 28C allows the Secretary of State to consider an application from a non-resident parent only on condition that the parent continues to make regular payments of maintenance. Normally a non-resident parent will be required to pay his full liability: however, subsection (2) gives the Secretary of State the power by regulations to set the regular payment condition at less than the full liability. It is intended the lesser rate would take into account the grounds on which the application has been made and would reflect the anticipated outcome and effect. The detailed operation is appropriate to secondary legislation and will enable the detail to be amended, if necessary, once the new scheme is up and running.

62.  Subsection (5) of section 28C provides the Secretary of State with the power to prescribe circumstances in which he may refuse to consider an application for a variation because the regular payments condition has not been complied with. It is intended that where the Secretary of State is not satisfied that the regular payment condition has been met, progress on the variation application will be suspended to allow the non-resident parent the further opportunity to comply. If within the period of a calendar month, he has still failed to do so, the application will fail. These rules will be in regulations to allow flexibility.

Clause 5(5)

63.  Subsection (5) of clause 5 substitutes section 28F of the 1991 Act. Subsection (2) of the new section 28F contains a power to prescribe what factors must, or must not, be taken into account when deciding upon a variation. In the current scheme, these factors are set out in regulation 30 of the Child Support (Departure Direction and Consequential Amendments Regulations (SI 1996/2907- "the Departure Regulations"). The Department intends to carry the same provisions forward into the new scheme and to set out the detail in secondary legislation in the same way- and, as with the current delegated power, this provision follows the affirmative procedure.

64.  Subsection (3)(b) of the new section 28F provides the power for the Secretary of State to prescribe in regulations the circumstances under which an application for a variation will be turned down. For example, the intention is to disallow applications from any source where a non-resident parent is in receipt of (or is the partner of someone in receipt of) a prescribed income-related benefit, because the intention is that a flat rate liability (or, where there is shared care, a nil rate) will always apply in these cases. Regulations will provide the flexibility to allow the detail to change if needed.

65.  Subsection (5) provides that an interim maintenance decision (IMD) is treated as replaced by the maintenance calculation made following a decision on the variation. In these circumstances, since the new calculation will set the child support liability for the entire period for which the IMD had effect, any appeal against the IMD will normally lapse. The parents will then be able to appeal the full decision. However, this subsection provides that regulations can prescribe circumstances in which the appeal will not lapse. This delegated power mirrors a provision in section 16(6) of the 1991 Act which allows the Secretary of State to prescribe circumstances in which an a appeal against a decision which is revised will not lapse. The power in section 16(6) has been used to make regulation 30 of the Social Security and Child Support (Decisions and Appeals) Regulations (SI 1999/991)- and the Government intend s to make a similar provision under the power in section 28F(5).

Clause 6: Schedule 2 Part 1 - Applications for a variation

66.  This part of Schedule 2 substitutes a new Schedule 4A into the 1991 Act. Paragraph 2 of Schedule 4A provides the Secretary of State with regulation-making powers to provide for the procedures to be followed in considering an application for a variation and the procedures to follow when an application has been referred to a tribunal (on account of its complexity). These regulations will provide the administrative detail more appropriate to secondary legislation. Such matters are set out in the current scheme in the Departure Regulations and the intention is to carry forward appropriate features to the new scheme.

67.  Paragraph 3 provides the power for the Secretary of State to prescribe when the preliminary consideration of an application has been completed. The intention is that this will be when the Secretary of State has considered whether: the application has been properly made; it has been made on the basis of one or more of the recognised grounds; the non-resident parent applicant would materially gain from a successful application; sufficient information has been provided in support of the application; an application is either based on, or would be likely to result in, a change in the non-resident parent's assessable income which breaches the relevant "tolerance" level; any special expenses exceed, either singly or in aggregate, a prescribed threshold; and any other relevant threshold would be breached.

68.  Paragraph 4 provides for regulations to prescribe a period within which any further information or evidence needed to determine a variation should be provided. The intention is to allow a further month. If the information is not provided within the prescribed period, the application may be determined without it.

69.  Paragraph 5(1) allows the Secretary of State to prescribe that two or more applications for a variation may be considered in relation to the same maintenance calculation at the same time.

Clause 6: Schedule 2 Part 2 - Applications for a variation: cases and controls

70.  This Part of Schedule 2 substitutes a new Schedule 4B into the 1991 Act. This Schedule contains 16 delegated powers: because these provisions are central to the way that the new variations provisions will work, they all require the affirmative procedure.

71.  Paragraph 2 relates to special expenses. Where a non-resident parent has special expenses an application for a variation may be made in respect of them. Sub-paragraph 2(2) provides that the Secretary of State may have regard either to all of the expenses, or, in prescribed cases, only to that element of the expenses which exceeds a prescribed threshold. The use of regulations is more appropriate for the detail to be set out and allows the definition of these cases and the setting of these thresholds to be more easily adjustable should it prove necessary in the light of experience.

72.  Sub-paragraph (3) provides a non-exhaustive list of cases which may be included under the special expenses provisions, such as, the costs incurred in keeping in contact with a qualifying child, the costs attributable to the long-term illness or disability of a relevant other child or boarding school fees in respect of a qualifying child. Sub-paragraphs (4) and (5) provide that the Secretary of State may prescribe what is meant by terms such as "disability" and "long term", and which components parts of boarding school fees may be recognised. The Government intends that regulations will provide that a child is treated as disabled if either the care or the mobility component of disability living allowance is paid or if the child is registered blind. It is the Department's view that issues such as these are more suitable for regulations as the definitions may need to be amended to deal with unforeseen circumstances and as such need to be easily adjusted.

73.  Paragraph 3 relates to property or capital transfers. This is an existing feature of the Departures scheme and the intention is that the ground rules and calculations should remain unchanged. Sub-paragraph (1) requires there to have been a property settlement under a court order or a recognised maintenance agreement that pre-dates 5th April 1993. The regulation-making powers in this sub-paragraph take the power to define qualifying court orders and voluntary agreements for the basis of a variation on these grounds. Sub-paragraph (2) provides that the Secretary of State will continue to take no account of transfers valued at less than a minimum figure. This figure will, as now, be prescribed in regulations and it is intended that it should remain at £5000.

74.  Paragraph 4 allows the Secretary of State to prescribe other grounds for a variation. The examples relate to the situation where the person with care considers that she is being "short-changed" by the normal rules. Sub-paragraph (2) provides a non-exhaustive list of the cases and circumstances. For example, where the non-resident parent enjoys a life-style which is inconsistent with his stated income or where the non-resident parent has unreasonably reduced his income so as to pay less child maintenance. A variation may also be allowed where the non-resident parent has assets that exceed a prescribed value (the value of savings and other financial assets are ignored in setting the basic rate of liability). The intention is that this threshold will be set at £65,000 but this level will be kept under review. Placing it in regulations will give the necessary flexibility to be able to change it in future.

75.  Part II of Schedule 4B sets out the regulatory controls for variations. Paragraph 5 sub-paragraph (1) provides the Secretary of State with the power to modify the normal rules for making a maintenance calculation when he has agreed to a variation.

76.  Sub-paragraph (2) sets out that the only allowable variations are those permitted by regulations. Sub-paragraph (3) relates to the manner in which the normal calculation rules may be modified. Regulations may provide that a variation may result in a person being treated as having more or less income than would otherwise be taken into account under Schedule 1 - (it is intended the Secretary of State will normally give effect to a variation by offsetting expenses against, or increasing the amount of, the non-resident parent's net income prior to any further adjustment in respect of relevant children) - and that it might result in them paying more or less child maintenance.

77.  Sub-paragraph (4) provides the Secretary of State with the power to place a limit on the amount of special expenses he will take into account when considering a variation and sub-paragraph (5) allows for different provisions to be made with respect to different levels of income. The Department has no current plans to use these delegated powers, which follow provisions in the Departures scheme. They are, however, included in case they should be found to be required in the light of experience of operating the new scheme.

78.  Sub-paragraph (6) of Schedule 4B provides a regulation-making power which will enable the "shared care" rules and adjustments to be applied, with prescribed modifications, in cases where the Secretary of State or a tribunal has agreed to a variation of the normal rules by which the maintenance calculations are made. This will enable the shared care provisions to operate properly where liability is subject to a variation. Such an area of detailed policy is best suited to secondary legislation.

Clause 7 - Variations: revision and supersession

79.  The revised sections 28A to 28F provide the general rules governing the handling and consideration of variation applications made before the maintenance calculation has been made under section 11 (final assessment) or 12(1) (default decision).

80.  Clause 7 substitutes section 28G of the 1991 Act. Subsection 28G(2) provides a regulation-making power enabling the decision-making and variation provisions to be applied differently where variation applications are made after a maintenance calculation has been made. For example, the provision of section 28A(3) will not apply in this circumstance and we will need to modify the preliminary consideration rules in section 28B(2).

81.  In some cases a variation is suspended because a change of circumstances means that it has temporarily ceased to have any effect on the rate of liability (for example, where the non-resident parent becomes liable to pay the flat rate). Subsection 28G(3) gives the Secretary of State the power to prescribe the cases and circumstances in which, in the event of a further change of circumstances, he may make a decision under section 17 which gives renewed effect to the variation, without the applicant having to re-apply. This will allow, for example, a variation in respect of the equivalent weekly value of a property transfer to be applied to the new maintenance calculation without further investigation.

Clause 9: Decisions superseding other decisions

82.  Clause 9 amends Section 17 of the Child Support Act 1991. This clause clarifies the provision in section 17 for decisions that may be superseded. Subsections (1) and (2) amend section 17(1) to provide for the supersession of certain decisions. Subsection (3) substitutes subsection (4) of section 17 to provide that a supersession shall take effect from the beginning of the maintenance period in which it is made.

83.  Subsection (3) also inserts a new subsection (4A) which defines the term "maintenance period". It may be necessary to have a different definition in certain circumstances to ensure the effective operation of the scheme- this subsection provides for regulations to this end. For example, where a non-resident parent has responsibility for children living with more than one parent with care, it may be necessary to adjust the maintenance periods to bring them in line. It is not possible to predict every circumstance when we might need a definition and secondary legislation gives greater flexibility to do so.

Clause 10: Appeals

84.  Clause 10 substitutes section 20 of the Child Support Act 1991 with a new provision governing the right to appeal child support decisions. The clause sets out which decisions are subject to appeal and defines who can make the appeal. Subsection (3) provides that anyone with a right of appeal should be told of this right. Regulations are provided for in subsection (4) that will set out what form the notice will take, the time limit for appealing and how appeals shall proceed. The intention is that notice will be given in writing and that a person will have a period of one month in which to make the appeal. As in the current child support legislation, conditions for appealing follow the rules for appealing in relation to social security benefits and, as subsection (5) makes clear, the intention is that this should continue. Putting the details in regulations gives flexibility for the future, so that if changes take place in relation to making appeals in the benefits system, child support can follow suit. It also gives flexibility in relation to developments in technology, for example to allow electronic notifications of appeal rights.

Clause 16: Disqualification from driving

85.  Clause 16 inserts a new section 39A and 40B in the 1991 Act which provide for an application to be made to a magistrates' court or in Scotland, the Sheriff, to disqualify a non-resident parent from holding or obtaining a driving licence as an alternative to committal to prison. The clause sets out what the court must inquire into and the procedures to be followed if disqualification is being considered. Provision is also made for a repeat application to be made if the debt has still not been paid at the end of the disqualification period. These issues are set out on the face of the Bill. If a disqualification order is imposed, an amount may be included to cover the administrative costs of the application. Regulations made under section 40B (3)(b) will set the amount of this charge. Driving licences can be removed in other circumstances unconnected to child support and this results in a standard charge to the person from whom the license is removed. This provision has been placed in regulations to enable changes in the standard charge to be reflected in this legislation.

86.  Section 40B(10) provides for regulations which can be made about disqualification from driving which correspond with what can be set out in regulations under section 40(11) of the Child Support Act 1991 (commitment to prison). Section 40(11) specifies that regulations may set out, for example, what will be acceptable as evidence from an employer, or that a person may be summoned to appear in relation to his case.

Clause 16 - Disqualification from driving - Scotland

87.  In the new section 40B, which clause 16(3) inserts into the 1991 Act, subsection (11) applies the provisions to Scotland. In particular, subsection (10) of new section 40B, as applied to Scotland, provides that -

    "The power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make, in relation to disqualification orders, provision corresponding to that which may be made by virtue of section 40(10)."

88.  Reference is made to the comments in this Memorandum on clause 17(10) about the power of the Court of Session to make rules of court by way of Act of Sederunt. As those comments explain, the power to make the subordinate legislation lies with the Court of Session.

89.  The Secretary of State intends to request the Court of Session and the Sheriff Court Rules Council which provides draft rules of court to the Court of Session under section 34 of the Sheriff Courts (Scotland) Act 1971, that they make provision in rules of court for new section 40B(10) (Clause 15(3)) comparable to the provision which they make in rules of court for new section 40A(10) (Clause 18(2)) in respect of imprisonment of a liable person for failure to pay under a liability order.

Clause 17 - Civil Imprisonment: Scotland

90.  This clause amends section 40 of Child Support Act 1991 in its application to Scotland. It disapplies section 40(12) to (14) about civil imprisonment where a liable person fails to pay under a liability order, and makes new and separate provision, in the 1991 Act, for the purposes of that Act, about civil imprisonment in Scotland.

91.  Under the new section, 40A, which the clause inserts into the 1991 Act, the sheriff has the power to send a liable person to prison for up to six weeks for failure to pay under the liability order. The person must be at least 18 years old. The sheriff can do so only if he is satisfied that the liable person has wilfully refused to pay or has culpably neglected to pay.

92.  If the sheriff orders imprisonment under subsection (4) it will be in respect of an amount specified in the sheriff's warrant. The amount will be made up of the arrears of child maintenance and an amount (determined in accordance with regulations made by the Secretary of State) in respect of the expenses of commitment.

93.  The intention is for the regulations which the Secretary of State will make under this power, to specify that the amount to be included in respect of the expenses will be an amount which, in the view of the sheriff, represents the expenses reasonably incurred by the Secretary of State in the proceedings for committing the liable person to prison - see the comparable provision for England and Wales in Regulation 34(2) of the Child Support (Collection and Enforcement) Regulations 1992 (SI 1992/1989).

94.  Subsection (8) of the new section 40A gives the Secretary of State power by regulations to provide for the reduction in the period of imprisonment specified in the warrant, where there is part-payment of the amount in respect of which the warrant was issued.

95.  The intention is to provide that, where part-payment of the amount is made, the period of imprisonment will be proportionately reduced. The period will be the number of days which bears the same proportion to the number of days specified in the warrant as the amount remaining unpaid in respect of the warrant bears to the amount in respect of which the warrant was originally issued.

96.  Where the part-payment would result in the period of imprisonment being reduced to the number of days already served, the period of imprisonment will be the period already served plus one further day. This proposal is similar to that already provided for England and Wales in Regulations 34(5) and (6) of the Child Support (Collection and Enforcement) Regulations 1992.

97.  Subsection (10) of the new section 40A provides that the power of the Court of Session by Act of Sederunt to regulate procedure and practice in the sheriff court includes power to make provision for the matters specified in paragraphs (a) to (f) of the subsection.

98.  The general power of the Court of Session to make rules of court by Act of Sederunt for the sheriff court is contained in section 32 of the Sheriff Courts (Scotland) Act 1971. The rules of court would be made under the powers in section 32 of that Act, as read with subsection (10) of new section 40A. It should be noted that the rules will be made by the Court of Session and not by the Secretary of State.

99.  The Court of Session makes rules of court for the sheriff court after it has had submitted to it draft rules prepared by the Sheriff Court Rules Council (see section 34 of the 1971 Act).

100.  The Secretary of State's officials will have discussions with the Sheriff Court Rules Council about the content of the draft Act of Sederunt which the Council recommends to the Court of Session but ultimately the content is a matter for the Court of Session.

101.  The Secretary of State will draw to the attention of the Sheriff Court Rules Council, the comparable provisions made in respect of England and Wales in Regulations 33, 34 and Schedule 3 of the Child Support (Collection and Enforcement) Regulations 1992. Subject to adaptation to the different legal and court systems in Scotland, the Secretary of State intends to request that comparable provision be made for Scotland.

102.  Dealing with each of paragraphs (a) to (f) of subsection (10) of new section 40A, the Secretary of State intends to draw to the attention of the Sheriff Court Rules Council the following points:

I. Form of Warrant under Section 40A

This is a normal matter for prescription in Rules of court - see for example the Act of Sederunt (Child Support Rules) 1993 (SI 1993/920).

II. Renewed Application under Section 40A

It will be a matter for the Court of Session to make such provision as it considers appropriate. The Secretary of State will draw to the attention of the Sheriff Court Rules Council the provisions of Regulation 33(3) of the 1992 Regulations for England and Wales under which renewal is possible where the circumstances of the liable person have changed and request similar provision for Scotland.

III. Employer's Statement of Wages to be sufficient evidence OF THE AMOUNT OF THOSE WAGES

This will also be a matter for the Sheriff Court Rules Council and the Court of Session. The Secretary of State will draw their attention to the comparable provisions for England and Wales in Regulation 33(2) of the 1992 Regulations which provides for this. He will request that similar provision be made for Scotland.

IV. Citation of Liable Person to appear before Sheriff for purposes of enquiry into his means

V. Warrant for Arrest without Citation

VI. Execution of Warrant of Arrest

These matters are appropriate for the Sheriff Court Rules Council and the Court of Session to consider in relation to sheriff court practice. Comparable provision for each of these is made for England and Wales in Regulation 33(1) and 34(3) and (4) of the 1992 Regulations.


 
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