Welfare Reform Bill
Introduction
1. The Committee's terms of reference are "to
examine the constitutional implications of all public bills coming
before the House; and to keep under review the operation of the
constitution." In discharging the first part of our remit,
our approach is to apply the test of whether a bill raises issues
of principle affecting a principal part of the constitution.
2. Part 3 of the Welfare Reform Bill raises points
of constitutional significance, which we draw to the attention
of the House. Clause 42 proposes to amend the Child Support Act
1991 to give new sanction powers to the Child Maintenance and
Enforcement Commission (CMEC) to disqualify a person from holding
a passport, a driving licence, or both, if he or she has wilfully
and culpably failed to pay maintenance for a child.
Background
3. The issues raised by clause 42 were debated
by the House during the 2007-08 Session (see table below). Clause
42 seeks in effect to overturn the arrangements for a court-based
passport disqualification procedure—agreed by Parliament
in the Child Maintenance and Other Payments Act 2008—by
conferring on CMEC administrative powers to impose such sanctions.
The bill also seeks to replace the court-based system for driving
licence disqualification with administrative powers for CMEC to
make such decisions.
| Date |
Event |
| December 2007 | Child Maintenance and Other Payments Bill introduced to the House of Lords, including powers for CMEC to impose sanctions by way of removing passports
|
| December 2007 | Constitution Committee make report critical of CMEC having passport disqualification powers, recommending that this should be a function of the courts (3rd Report of Session 2007-08, HL Paper 27)
|
| February 2008 | Committee stage debate on passport disqualification powers (HL Debates, 8 February 2008, GC 665)
|
| May 2008 | Report stage debate at which Government moved an amendment to confer passport disqualification powers on magistrates' courts (the sheriff in Scotland) rather than CMEC (HL Debates, 13 May 2008, col 962)
|
| June 2008 | Child Maintenance and Other Payments Act 2008 receives Royal Assent
|
| July 2008 | White Paper "Raising Expectations and Increasing Support: reforming welfare for the future" (Cm 7363) pledges Government to introducing administrative disqualification system for passports and driving licences
|
| March 2009 | Welfare Reform Bill introduced to the House of Lords, containing proposed powers for administrative disqualification of passports and driving licences
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4. In 2007, we took the view that it was constitutionally
inappropriate for officials in CMEC to have power to withdraw
entitlement to hold a passport without reference to the courts.
5. Our view was reinforced when we realised that
CMEC would have broad powers to contract-out any of its functions
to third parties (a provision now contained in section 8(1) of
the Child Maintenance and Other Payments Act 2008). If it was
objectionable for a civil servant to impose a sanction by withdrawing
the right to hold a passport, it was even more objectionable that
this State power would be exercised by an employee of a private
sector business. It was also far from clear to us that a process
of an administrative decision followed by an appeal process in
the courts would meet the Government's stated aim of avoiding
protracted decision-making.
6. We were pleased that the Government listened
to our "legitimate questions" (to use the words of Lord
McKenzie of Luton) and brought forward amendments to the bill
in May 2008 which required CMEC to apply to the courts for a passport
disqualification order in a similar fashion to a driving licence
disqualification order.[1]
7. The provision in the Child Maintenance and
Other Payments Act 2008 on passport disqualification[2]
appears not to have been brought into force. Notwithstanding the
fact that the court-based disqualification procedure for passports
has not been tried and tested, the Government now seek in the
Welfare Reform Bill to give CMEC and its contractors administrative
powers to impose this sanction—along with similar administrative
power to remove entitlement to hold a driving licence.
Welfare Reform Bill
8. We remain of the view, expressed in our December
2007 report, that it is constitutionally unsatisfactory for CMEC
and its contractors—rather than the courts—to have
a sanction power to withdraw a person's right to hold a passport.
The freedom to travel to and from one's country is a constitutional
right of such significance that restricting this right as a punishment
demands rigorous examination by an independent and impartial judge.
9. In recent years, there has been a notable
transfer of sanction powers from the courts to the executive.
In recent reports and correspondence with ministers, we have sought
to ensure that where the executive is conferred with coercive
sanction powers there are safeguards for ensuring fair procedures
are followed and that there is an effective appeal to the courts
to ensure judicial oversight.[3]
In relation to the present bill, we acknowledge that a person
who is disqualified by CMEC from holding a passport would have
a right of appeal to a court and that if such a right of appeal
is exercised, the disqualification will be suspended until the
appeal is determined. The possibility of an appeal does not, however,
answer the prior question: is the sanction power one which the
executive, rather than the courts, should be allowed to exercise.
10. In the present bill, the Government seek
to transfer sanction powers from the courts to civil servants
in relation to passports and driving licences. It should be noted
that the Child Maintenance and Other Payments Act 2008 created
other sanction powers, including the imposition of curfew orders
and an associated power to search premises and confiscate any
money found.[4] Curfew
orders and search powers are, under current arrangements, made
and authorised by the courts following an application by CMEC.
While the Government have not proposed that the executive should
have power to impose curfew orders or search premises without
reference to the courts, we are concerned that an unintended change
in the constitution is occurring in which the executive is acquiring
ever more powers to impose sanctions and punish people that a
generation ago would have been regarded as falling within the
remit of the courts. A line needs to be drawn around the type
of power that civil servants can appropriately exercise and those
for which judges should be responsible. In our view, suspending
a person's right to hold a passport, because of its impact on
a constitutional right, should fall into the latter category (along
with powers to impose curfew orders and order searches of premises).
11. If, contrary to our view, CMEC is to be given
administrative sanction powers to remove passports, we are
concerned that there are insufficient safeguards on the face of
the bill to ensure that such powers are exercised by officials
of appropriate seniority within CMEC. During the bill's passage
in the House of Commons, the Parliamentary Under-Secretary of
State for Work and Pensions told the Public Bill Committee that
"this provision will not be used willy-nilly by junior clerks
in the organisation".[5]
In our view, something more than ministerial assurances are required
to make sure that decision-making within CMEC is organised in
such a way as to ensure that sufficiently senior and experienced
officers hold this power.
12. Moreover, sanction powers withdrawing a person's
right to hold a passport should not be one that is made by a private
sector business. If, contrary to our view, an administrative
power is created for CMEC to remove passports, it should be accompanied
by an amendment to section 8(1) of the Child Maintenance and Other
Payments Act 2008 to exclude imposition of sanction powers from
those functions of CMEC that may be contracted-out. It would not
be constitutionally appropriate for a third-party to have decision-making
power over who may leave the United Kingdom.
13. We welcome the provision in clause 43 of
the bill of a 'sunset clause' and express requirement for a review
after two years of the transfer of driving licence sanction powers
from the courts to CMEC. Given the concerns we have expressed,
we call upon the Government to include passport sanction powers
within this sunset clause and review.
1 HL Debates, 13 May 2008, col 962 (at Report stage);
for debate on the issue at Committee stage, see HL Debates, 7
February 2008, col GC665. Back
2
Section 28 of the 2008 Act inserted section 39B into the Child
Support Act 1991. Back
3
See e.g. Regulatory and Sanctions Bill, 1st Report of 2007-08,
HL Paper 16. Back
4
Section 28, amending the Child Support Act 1991. Back
5
Public Bill Committee, 3 March 2009, col 246 (Kitty Ussher MP). Back
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