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Before she answers, I hope that she might bear in mind the ruling of the noble and learned Lord, Lord Woolf, which I have quoted before, in the case of Fayed v. Home Secretary, that if Parliament wishes to confer a power to act unreasonably it must say so in express words. I do not believe that these are express
Baroness Hollis of Heigham: Amendment No. 93 relates to the provision which will enable the CSA to impose a discretionary financial penalty of up to 25 per cent of the maintenance owed where payments are unreasonably late or missed altogether. Penalty amounts will be set at the discretion of the Secretary of State and will be used by the agency basically as a tool in negotiations. The aim is to persuade non-resident parents to meet their responsibility to their children in full and on time rather than to impose the penalty.
The amendment alters the wording on the face of the Bill to specify that the use of discretion should be reasonable. This amendment is unnecessary. The penalty will not be imposed automatically. The circumstances which have led to a late or missed payment will be taken into account when considering whether a penalty would be reasonable. The non-resident parent's position is further protected in that he will be able to appeal to an independent tribunal against a decision to impose a penalty and/or the amount of the penalty.
The Government are determined to ensure that non-resident parents meet their financial responsibilities and, obviously, as we discussed earlier this evening, we shall seek to get tough on those who do not. This simple administrative penalty is to recognise the additional work involved when payments are received late or not made at all. The money will not be kept by the agency; it will go to the Treasury. We believe that it is right that the taxpayer should not have to foot the bill for the extra work that the agency has to do when maintenance has not been paid.
Baroness Hollis of Heigham: I do not understand the noble Earl's question because any power must be operated reasonably. Therefore, there is no effect of the word "absolute". When the noble Earl asked me the second question about judicial review, I was able to tell him that that right is not lost.
Earl Russell: Either this confers an arbitrary power or it is an example of the complaint of the noble and learned Lord, Lord Simon of Glaisdale, about the prolixity of the statute book. Either way, I am afraid that we must return to this matter. In the meantime, I beg leave to withdraw the amendment.
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