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Lord Simon of Glaisdale rose to move, as an amendment to the Motion, That the Bill be now read a second time, at end insert ("but that this House regrets that the Bill does not fully obviate the hardships and injustices caused by the Child Support Act 1991; that it maintains those provisions of the 1991 Act which are inconsistent with the long-established principles of the rule of law; and that, like the 1991 Act, it is largely a skeleton Bill, leaving its effect to be achieved by subordinate regulations, orders or prescriptions.")
Your Lordships will be grateful to the Minister for the very clear and engaging way in which he has moved the Second Reading of this Bill. But that very ability and clarity emphasise the absence of what your Lordships were looking for in the Second Reading speech, without which we shall have another legislative disaster like the legislation which became the 1991 Act. That Act has been an unprecedented legislative disaster. It has caused injustice; it has caused hardship; it has caused enormous public expense resulting in administrative chaos. Having listened to the noble Lord, from what he said your Lordships would have no idea that that was the history of the matter. In fact, your Lordships will not have had such bland assurances since we debated the 1991 Bill. Unless these things are recognised, we are in for another legislative disaster and further hardship.
The noble Lord said that it was easy with hindsight to see that things were not altogether right. But it was not a question of hindsight. Your Lordships, with foresight, identified precisely the things that have gone wrong. I am very glad that the noble Baroness, Lady Hollis, the noble Earl, Lord Russell, the noble Baroness, Lady Faithfull, and the noble Lord, Lord Houghton, are speaking in this
Indeed, business was so arranged that it was impossible politically for your Lordships to amend the Bill. I have the timing. There were three days spent in Committee. The earliest time at which we adjourned was nearly a quarter-past 10 and the latest just short of midnight. There were two Report days. On the first we adjourned just short of 11 o'clock and on the second day just short of 1 o'clock in the morning. At Third Reading our proceedings were altogether truncated because the Chief Whip had arranged business for the following day and we were assured that unless we finished the Third Reading of the Bill the other business would be lost. It is your Lordships' practice to let any government get their business done, so the Third Reading was truncated. I am sorry that the noble Lord, Lord Mishcon, is not here today. He played a prominent part in 1991. I remember him saying at Third Reading that he would postpone his observations on the way in which the Bill was a skeleton Bill until the debate that the Bill do now pass. But there was no opportunity for him to tell us that, although in fact the matter had been analysed.
The Minister said todayand it has been said beforethat there was general approval of what was proposed in the 1991 Act; namely, that an absent parent should pay reasonable maintenance for the support of the child. But that is what the pre-existing law said. The magistrates' courts had jurisdiction to fix reasonable maintenance for the child and for the mother on exactly the same basisthat is to say, what was reasonable under the circumstances and as was stipulated in the 1991 Act.
It has been again criticised that there were discrepancies between the decision of one tribunal and another. Of course there were. In this class of case, one case has infinite differences from another. What the courts did, but what was not done in the 1991 Act, was to allow such things as the cost of travel to work, the cost of travelling to keep contact with an absent child and the exceptional circumstances where there had been a transfer of property at the cost of foregoing maintenance. All those sorts of things were taken into account by the magistrates. That resulted in one case being different from another. But those are exactly the cases that are taken up in this Bill under the name of "departure". It did not require hindsight to see that such provisions would be needed. They were identified by foresight, and now, belatedly, the claim is made that the Government are being entirely reasonable in introducing provisions which were asked for at the time of the 1991 Act.
This Bill and the 1991 Act made no difference to the general underlying principle; namely, that an absent parent should pay what maintenance was reasonable in the circumstances for an absent child. However, the legislation removed the jurisdiction to award the maintenance from the magistracylay justices knowing local conditions who were close to the cases upon which they had to adjudicate. The legislation transferred that jurisdiction from the "great unpaid", as they are called, to the "great well paid" of Whitehall. That has resulted in the disasters with which all of your Lordships are familiar.
The other odd thing that was done, and is perpetuated, is to transfer to the Child Support Agency, which operates a formula, the jurisdiction to deal with a child's maintenance while leaving the jurisdiction to deal with the mother's maintenance still in the hands of the magistrates. Of course, common sense tells us that you cannot deal with the one without dealing with the other. They are intimately interrelated. But those provisions remain.
Therefore, we have to try to repair the damage that has been done by a fixed formula, a sort of procrustean bed, which no doubt eliminates some inconsistencies by lopping off a bit of the scalp at one end and a bit of the toes at the other. You do get consistency in that way, but can the Government really claim that the result of setting up the Child Support Agencyoperating that extraordinary and incomprehensible formulahas obviated all inconsistencies?
I have dwelt on those aspects because, unless there is recognition that things have gone seriously wrong, they will go seriously wrong again. These days we are not only concerned with our own bureaucracy. Those of us who wish to see ourselves at the heart of Europe, promoting its cohesion, are embarrassed by the bureaucracy of Brussels. However, it is no use girning at that bureaucracy when we fail to put our own bureaucracy in order.
I should like to deal with one or two issues that are mentioned in the middle part of my amendment. I prefer to leave the first part to the noble Baronesses and the noble Earl, who are much more conversant with such matters. The second part deals with the rule of law. The classic statement of the rule of law is, as your Lordships know, contained in Dicey's Law of the Constitution. Dicey dealt with various aspects, one of the most important being that all citizens, including officials, are amenable to the ordinary law of the land. Let us consider the 1991 Act in that respect. Officials are given leavepowerto enter private premises. They may enter the premises of the employer. They are also given the power to interrogate employers and fellow employees. Those are exceptional powers, mercifully not vouchsafed to the ordinary citizen.
There is also the exceptional remedy of distress. That is self-help in repayment of a debt. It is a harsh procedure. Therefore, the common law makes sure that it is operated only with safeguards. However, in 1991 all those safeguards were swept away. Officials can now levy distress without any of the common law safeguards.
Those are three aspects of the matter. The fourth is that officials are given leave to breach Inland Revenue confidentiality. The noble Lord, Lord Houghton of Sowerby, has much to say about that and I am glad that he is to speak today. Those four invasions of the rule of law are left inviolate by this Bill which is supposed to ameliorate the situation.
Moved, as an amendment to the Motion, That the Bill be now read a second time, at end insert ("but that this House regrets that the Bill does not fully obviate the hardships and injustices caused by the Child Support Act 1991; that it maintains those provisions of the 1991 Act which are inconsistent with the long-established principles of the rule of law; and that, like the 1991 Act, it
Baroness Hollis of Heigham: My Lords, on this side of the House we have always believed that, although parents may divorce each other, they may not divorce themselves from their children. By having a child, both parents commit themselves to a family covenant to support, and to ensure the well-being of, that child. However, we also believed that the old court system was breaking down. Barely one-quarter of lone parents received regular maintenance. The amount was often low, irregularly paid and payment was seldom enforced. To that degree, therefore, and for those two reasons, we supported the principle, the concept, of the Child Support Agency.
However, the Child Support Agency, as established by the Government, was deeply flawed. As the noble and learned Lord, Lord Simon, rightly said, it is not a question of the Government not knowing that. They knew it; they were told it; they were warned about itand they ignored all that. From the beginning, the Government in their arroganceI do not use that word lightlyignored opposition from all around the House. They ignored opposition from almost every voluntary organisation and they ignored the experience of the Australian system.
What have we been saying? What have all those in opposition to the Act consistently said? First, they said that the 1991 Act was harsh both on the parent with care, usually the mother, and on the absent parent, usually the father. It was harsh on the parent with care because it merely replaced that parent's benefit pound for pound with maintenance, often leaving that parent poorer. I shall return to that point later. As was repeatedly said in 1991, that Bill was clearly not a child support Bill, but a Treasury support Bill.
From all around the House, we also argued that the Bill was harsh on absent parentsusually menespecially the low-paid absent parent, and especially those absent parents whoover half of such men arewere in second families with stepchildren. Such men found that clean-break settlements and the costs of travel to work and seeing their children were not taken into account. They found themselves obliged to maintain the children of their first marriage while out of decency often maintaining the stepchildren the new partners brought with them.
In 1991, 1993, and 1994 we told the Government repeatedly that absent parents, especially low-paid absent fathers, could not support two families without plunging both into poverty, but the Government muttered imprecations about the taxpayer and ignored us.
Thirdly, all of us around the House told the Government that the formula was too rigid; it needed to be more inclusive and more flexible; to include matters such as property settlements and the like; and to allow for appealsthe Government now call them departures from the formulato reflect that the world outside, people's lives and people's incomes, are not as tidy as the Treasury would have us believe.
Fourthly, we were all, I think, worried about administrationfrom problems of privacy and civil liberties, upon some of which the noble and learned Lord has already commented, to worries about threats of violence to women who failed to disclose the information that the Government were seeking. We were worried about contested paternity cases, and, above all, the simple ability of the organisation to take on such a huge swathe of cases all at once.
Finally, we believedwe argued this at the timethat all those problems were compounded because the Government refused to follow the Australian experience and insisted upon making the Act retrospective. Nearly all the problems that have so far arisen flow from that. It meant that many people who had made a court settlement, which however generous to one party or unreasonable to another, was, nonetheless, a legal settlementa framework upon which both parties expected to get on with the rest of their lives and to make other financial commitments accordinglyhad that settlement overturned at a stroke. The Government were not forgiven.
Those were our worries, and that is why we have so much sympathy with the substance of the amendment moved by the noble and learned Lord. We have reservations only about that part of his amendment which suggests that the Bill is inconsistent with the rule of law, which is why we shall not support it as presently worded. But the worries outlined by the noble and learned Lord are exactly right. We debated them, we referred to them, and we returned to them as regulations came before your Lordships' House. At every stage, on every occasion, the Government ignored your Lordships' House.
Having ignored parliamentary dissent, the Government then found themselves overwhelmed by extra-parliamentary dissent and have created such a culture of resistance that the Act has become unenforceable. That is why we are seeing it amended today. It is not because the Government want to amend the administration to make it more equitable, but because the Act has become unenforceable. Just like the poll tax, now the CSA. The Government Benches remind us strongly of the dying years of the Bourbons who learnt nothing and forgot nothing. We all know what happened to them.
The Bill is the second part of the package outlined in the Government's document, Improving Child Support. For starters, that is a misnomer: it does not improve child support, but it does improve the Child Support Act. Taken together, to what extent do the regulations and the Bill meet the five criticisms that I have outlined? Because it is the last chanceI mean itfor the Government to get the agency right.
First, does the Bill improve the position of the parent with care? Barely. Lone parents are poor: 42 per cent. of those having deductions for social fund loans are lone parents; nearly half are having their benefits top-sliced for fuel debts; and over half of them have rent arrears. When, under the CSA, their benefit is replaced by maintenance, many find themselves worse off because their maintenance payments, unlike income support, can be irregular, and mothers with care are on and off. If the CSA
It is even worse than that, because once a mother loses benefiteven if it is replaced pound for pound with maintenanceshe loses the passported benefits, such as free school meals, which go with income support. As a result, under the Act many women who care for their children at poverty levels are worse off, and the Bill does not make them any better off. That is why we on this side will argue for the principle of introducing a disregard in order, at the very least, to ensure that women are no worse off by going onto maintenance from benefit and thus losing access to free school dinners and the like.
Will the Minister also tell us to what extent such women will be deleteriously affected by the new changes in mortgage support for people on income support, particularly when they go on to maintenance? What protection will they then have in order to keep a roof over their heads? I hope that the Minister will come back to that point for us.
We shall be pressing, as I said, for the principle of a modest disregard. In the other place the Minister had two objections. The first was on the grounds of cost, and the second was on the grounds that it was a disincentive to work. On the first of those, the Minister is expecting to make significant benefit savings when the Bill is running smoothlysome £800 million a year. We ask that a small proportion of those savings be recycled back to targetone of the Government's favourite words, and certainly one of their most used wordsthe poorest and most vulnerable; that is, women on the poverty line. We refuse to accept that, when we recycle some fraction of savings, that is therefore an expenditure commitment. It is the difference between gross and net savings, and an honourable difference.
Secondly, I am confident that the Minister will argue that a disregard is a disincentive to work. I have a couple of points to make on that. First, perhaps other noble Lords may share my apprehensions about expecting a parent with a child of one year and one of three years to be back in work, against her choice, leaving those children to other people to look after them. The Government are merely offering a back-to-work bonus which will take at least four years to be arrived at, and gives the wrong money to the wrong mothers at the wrong time for the wrong reasons. Most lone parents want to work, and seek work when their children are of school age. The problem that stops them is child care and the new arrangements still do not allow for any of that. So, are the mothers with care better off? No; barely. But for the back-to-work bonus, which will be irrelevant for most of them, mothers with carethose who have remained silent over the past two yearsare not being helped one little bit.
Does it improve the other groupthe absent parents? Yes, but disproportionately for the better-off who have shouted loudest. What would one expect when the Government have bowed to the pressure of the sharp-elbowed? They have had a ceiling placed on their contributions. We welcome the fact that property settlements on a broad-brush basis are to be taken into account, although we urge the Minister to extend that and
Thirdly, we ask whether the formula is too rigid. The Government are belatedly accepting the Australian principle of appeals on well defined grounds. The Minister calls them "departures", but they are the same as the Australian grounds. It is right that either side should appeal and we welcome that. However, if the Australian evidence is anything to go by, approximately 40,000 appeals will be added to the 140,000 appeals that the Minister expects in respect of incapacity benefit and the high number from jobseekers. Can we hope that the independent tribunal system will cope with that? What will be the implications for legal aid? Will the Minister tell us what numbers he expects?
More worryingly is our anxiety about the quality of the administration, which we have continuously raised. Last October, the chief child support officer found that 86 per cent. of child support assessments were incorrect or unsound. In other words, he found that six out of seven were incorrect or unsound; that only one in seven was correct. That was confirmed by the National Audit Office. As a result, in January the ombudsman reported that he had,
The chief child support officer, the National Audit Office and the ombudsman have all stated that the CSA administration is faulty. Therefore, we cannot be assured when those in the Child Support Agency tell us that women fearing violence are fully protected or that benefit deductions, which are running at 60,000 and take £10 away from women who refuse to co-operate, are correct. If six out of seven such formulations were previously suspect, why should we now have any confidence in the figures?
I repeat the fact that those problems would have been greatly mitigated had the Government learnt from Australia, where the introduction of a similar agency was relatively trouble-free. The reason was that the Australian system was not retrospective, which brings me to the final criticism of the Act. In our judgment, that failure was the greatest folly of all.
The Government are now removing from the review of the Child Support Agency all maintenance cases in respect of which the parent with care is not in receipt of benefit. That effectively means that in respect of all those families the Act is no longer retrospective. While that is to be welcomed on the one hand, on the other it introduces new unfairnesses. Women in low paid work may well receive low and erratic maintenance and have few powers to obtain it. We hope that the courts will be more pro-active and that in more cases women will return to the courts to claim the maintenance that the law has bestowed on them. Equally, we hope that the settlements will increasingly come more into line with the CSA.
In many ways, the Bill meets many of the anxieties that we have expressed time and again since 1991. It helps the absent parent; it introduces a modified appeals system; it removes retrospection in respect of non-benefit cases; it mayand I hope willimprove the administration of the agency; and it introduces new flexibility into the formula. We welcome all that. Butand it is a very large "but"the Bill does virtually nothing for the parents with care and therefore for the children of the first marriages. They remain as poor as ever. The maintenance payments may be as erratic as ever, and their ability to enter the world of work as difficult as ever. The number of children in poverty grows annually. The Government concede that some 50,000 first families will be worse off as a result of the Bill and its accompanying regulations. Two million children are in single parent families and three-quarters of those families are in receipt of income support. Many will become poorer as a result of the Bill.
However, because women caring for children will not go on strike, will not walk away, will not defy the Government and will not abandon their children, as many of their partners have done, they will be punished for being law abiding while their former partners will be rewarded for their law breaking, for refusing to pay. The Government have acceded to the pressure not of the lawful but of the law breakers. They have mitigated the plight not of the poorestthe parents with carebut of the less poorthe absent parentswho in all circumstances are better off than the parents with care.
The Government have listened to those who have shouted a macho message. I do not say that they should not have listened, because at this stage any listening is welcome. However, those who stayed mute, in particular the mothers, have received nothing. And all because the Government in their arrogance refused to listen the first time around, the second time around and the third time around.
Now that we are dealing with this Bill, will the Government exhibit the same arrogance and the same indifference to parliamentary opinion? Will they again refuse to listen? Will the Minister's brief be marked with the word "resist", as it was again and again and again during the passage of the Jobseekers Bill? We want the Child Support Agency to work, but it will work only if it is seen as being fair and equitable. It is not that yet, which is why the Bill must be amended.
I said at the beginning that parents who support their children are fulfilling their family covenant. But we as a society have a covenant; that all children should have the chances and opportunities that we wish for our own
Earl Russell: My Lords, before normal service is resumed, I hope that the House will join me in expressing our sympathy for the Minister for the extraordinary burden of work that he is having to carry at present
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