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Lord Mackay of Ardbrecknish: I do not agree with the noble Baroness that people who are floated off benefit in the kind of circumstances we are talking about are necessarily pushed into poverty.

Baroness Hollis of Heigham: They can be.

Lord Mackay of Ardbrecknish: It is a long-standing rule in all benefits systems that as income increases from whatever source, people float off. It would be illogical to run a benefits system in which they do not float off. I consider this provision to be wholly unnecessary in the context of the departure scheme because it is that scheme which we are looking at. I am now talking about the parent with care. I believe that she is likely to apply only if she wishes to receive an increased level of maintenance. Therefore, it seems illogical to then give the Secretary of State power to deny her that increase because of what he considers to be in her best interests. I would have thought that that choice should be left to the parent with care.

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The amendment before us also suggests that consideration of the welfare of children should be a guiding principle when processing departure applications. I agree fully with the intention of this section, but hope that I can explain to the noble Earl that it is unnecessary. Section 2 of the 1991 Act requires the Secretary of State to have regard to the welfare of the child when considering any discretionary power conferred by the Act. That clearly applies to his consideration of any departure application. In addition, in the context of departures, new Section 28F(2) (c) already specifically provides that the Secretary of State shall have regard to the welfare of any child affected by the direction. Therefore the noble Earl's proposed amendment is unnecessary.

Finally, the amendment specifies that the Secretary of State, in determining a departure direction, shall have regard to any information he may have which appears to him to be relevant, in applying the general principles in the new Section 28B(2). Again, I seek to assure the noble Earl that the amendment is not necessary. It is implicit, and a rule of common sense, that the Secretary of State will take account of all relevant information when considering a departure. It is not necessary to specify that in general principles.

I apologise for the length of my response on this amendment, but the noble Earl, as usual, has raised some important issues. There is one I may not have mentioned. It is when the absent parents perceive themselves to be worse off than on benefit. I am not sure whether it is the absent parent or parent with care. At any rate, it is the perception of being worse off on benefit.

It is clear from correspondence and other discussions that we have had that many absent parents think that they should be left with more than income support amounts of income after paying all their costs of feeding and clothing themselves, heating their homes, and so on. In other words, they perceive income support levels as pocket money; but income support has to meet the cost of those basic needs (clothing, heating, and so on) for those people for whom it is the benefit.

I hope that I have managed to reassure the noble Earl that at least some of the points that he has raised are already covered in the Bill. There are other points upon which, I am afraid, we profoundly and fundamentally disagree, as I suspect I am increasingly finding myself doing as the Committee stage develops. Some of those matters were raised in the other place, but his honourable friend Miss Lynne did not move many amendments of this type in Committee in the other place, and we are now perhaps seeing—courtesy of the noble Earl—a wider exposition of his party's position.

I have to say that we disagree fundamentally over the whole question of whether the agency is required to make sure that absent parents face up to their responsibilities to their children. I hope that on those parts on which the noble Earl and I are at one he is content, and on the parts where we disagree, I hope that he will withdraw the amendment.

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Lord Simon of Glaisdale: The Minister has no need to apologise for the length of his reply, because, as he said, the amendment raises an important point. The first point relates to the words:

    "the Secretary of State shall have regard both to the general principles",

and those, as the noble Lord said, are the fundamental principles behind the Bill.

The clause goes on to say that the Secretary of State shall have regard not only to both those important principles stated in the legislation, sanctioned by Parliament, scrutinised by both Houses, but also:

    "to such other considerations as may be prescribed".

That means prescribed by the Secretary of State. Of those, we know nothing. Parliament will not know what it is doing in sanctioning those words.

Constitutional history goes back a very long way. It goes back to the Statute of Proclamation of Henry VIII. He claimed to change the law by proclamation: what he prescribed was the law. I think, with all temerity in the presence of the noble Earl who is the leading historian of the period, that matter of government by decree, by what is prescribed by the Executive, was contested, and a bitter and costly civil war was fought on it.

The matter was resolved finally in an episode we call the Glorious Revolution—the Glorious Revolution because it vindicated the principle that the laws of the land were made by Parliament, and were not just what the Executive prescribed.

That principle was recognised and adhered to throughout the two succeeding centuries. Towards the end of the last century, there began to be encroachments upon it. That was because at that time collectivism became a popular political philosophy. However, that encroachment was contested; and it has only been recently that we have had the fresh attempt to encroach on parliamentary power to legislate by the Executive with its pretension to legislate as it prescribes.

I have been critical of the Bill, as I was of the 1991 Bill, as an Executive encroachment on Parliament and on the judicature. The essence of the 1991 Act was a wholesale arrogation by the Executive of the jurisdiction by lay magistrates. Lay magistrates go back to the middle of the 13th century. They have been a bulwark of our local judicature ever since, but at one sweep their jurisdiction was taken away and put into the hands of an executive agency.

I should say, in case it might be misunderstood, that I am one of the first to agree that we are singularly fortunate in this country in our Civil Service. We rightly pride ourselves on the fact of its probity and on its loyalty—your Pontings and your Pottingers are very rare creatures indeed—but it is an elite. We need that elite because it is a repository of power, and all power tends to corrupt. The first sign of the corruption is an itch for greater power. That we have seen in this legislation and much of the other social legislation.

We can be certain that if we pass, without protest, the words:

    "such other considerations as may be prescribed",

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that will be paraded triumphantly as a precedent for the next Bill of this type. Last century, the great poet wrote:

    "From precedent to precedent where freedom broadens down".

In this legislation, we see bureaucracy broadening down from precedent to precedent.

Whatever else comes out of this, I trust that the Committee will accept Amendment No. 19. As for Amendment No. 20, together with the general principles stated in the Bill, those are of course matters that the magistrates all took into account. The noble Earl does not ask that their consideration should have priority. I cannot think how the Minister ever got that into his head. What the clause says is that the Secretary of State "shall have regard to". He shall take into account any representations made to him.

Of course, just as any court takes into account any representation made to it without the statute book being littered with verbiage of that kind, so, presumably, the Secretary of State under the proposal of the noble Earl will take into account the various matters that he raises. He will not give them, as the Minister appears to think, priority to the exclusion of a duty to the children but will merely give consideration to them, as he certainly should.

7 p.m.

Lord Renton: I hope that Members of the Committee, and in particular the noble Earl, Lord Russell, will forgive me for not having been present for the first part of the discussion. I wish that I had been. In view of my earlier comments about our current methods of legislating, perhaps I may make the following remarks.

I said previously how important it is that we should state the intention of Parliament in general principles for the guidance of those who must enforce the law or obey it. I welcome the method used in subsection (2) and, indeed, apart from line 33 on page 4 of the Bill, that in subsection (1). The noble Earl has properly suggested that that line should be left out.

I also welcome Amendment No. 20 because the noble Earl is enlarging general principles—he is not simply going into hypothetical circumstances—which is a sound way to legislate. He is enlarging the general principles—

Lord Simon of Glaisdale: Hear, hear!

Lord Renton: I am pleased that the noble and learned Lord, Lord Simon of Glaisdale, agrees with that point. The noble Earl was wise to move the amendment and I shall be interested to hear what my noble friend on the Front Bench has to say, if anything.

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