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Earl Russell moved Amendment No. 27:

Page 25, line 21, leave out ("may") and insert ("shall").

The noble Earl said: Amendments Nos. 27 and 38 are cases of what I may describe as "negative discretion" where discretion is used to restrict the legal rights that people might otherwise have enjoyed rather than for purposes of the prerogative of mercy. I shall endeavour to be fairly quick because I hope that the Minister can give me some at least moderately reassuring answers.

Amendment No. 27 deals with the provision for departures. The grounds for departures are to be laid out in regulations. The schedule lays down that the Secretary of State "may" make regulations. Why can it not say "shall"? Does that cautionary use of the word "may" indicate that the Secretary of State, after having all this power to create departures conferred on him and after all the fanfare of trying to make out that all injustice is now rectified, may not do anything about it? If so, I may be tempted at some later stage to press the amendment. I hope that there is a minor reason why the provisions state "may" and I look forward to hearing what it is.

Amendment No. 38 deals with circumstances being prescribed by regulations in which the Secretary of State may disregard travel costs. Again, we have no limit on the vires of that. As the Minister knows, I am interested not only in regulations and in the policy intention, but also in what other people could do with the regulations at some future time. I am afraid that that will always be the case. When regulation-making powers are granted, if we want an early night it be worth drafting them in such a way that other people cannot do too many different things with them. I beg to move.

Lord Mackay of Ardbrecknish: Amendment No. 27, as the noble Earl explained, seeks to place a duty on the Government to prescribe all the categories of special expenses listed in the new Schedule 4B, as introduced by Schedule 2 to the Bill, as grounds for departure. I am happy to assure the Committee that it certainly is the Government's intention to bring forward regulations to cover all of the areas mentioned in the schedule, but I do not consider it appropriate that the primary legislation should impose such a duty.

We have given careful consideration to the expenses that parents should be able to rely on as grounds for a departure. It would, of course, be possible to draw up a very long list of expenses which any individual may have. But it would be wrong to place all other expenses ahead of child maintenance. We have always made it clear that child support should be the first call on a parent's income, not the last. We must guard against a return to the old system where child support had become almost an option after all other possible expenses had been met. A parent's first duty must be to support his child whenever he is in a position to do so.

We have made it clear that, at least at the outset, the departure system will be tightly circumscribed. The

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formula assessment will be the norm; departures will provide the flexibility to deal with the exceptional. The list of expenses in the schedule is framed to meet the major concerns which have arisen since the scheme began operating, and there is a power to include other types of expenses should this at any time be considered right. At the same time, experience may show that there are good reasons why a particular type of expense should no longer be included as a ground for making a departure direction. It should be open to the Government to propose amending the list of expenses—whether by adding to or subtracting from the list—if that seems right. I am happy to repeat the assurance I gave a minute or two ago that it is the Government's intention that all these areas will be included.

I turn now to Amendment No. 38 which, as the noble Earl, Lord Russell, explained, seeks to remove reference to one of the additional grounds for departure. This is the provision to allow either party to argue that the travel-to-work costs of the other party should not be allowed in the formula assessment. From April, the Government introduced a broad-brush allowance into the maintenance formula to meet high travel-to-work costs. It is our intention to allow the other parent to apply for a departure direction where the application of this allowance is unreasonable.

We recognise that many absent parents, and indeed parents with care who are in work, have always travelled some distance to work, or may have no option but to live a long way away from their place of employment; for example, because their job has relocated or there is no suitable employment in their local area. In such cases it is right that there should be provision for some allowance in the formula to take account of high travelling costs. That is why the Government introduced the broad-brush formula allowance in April. Furthermore, where the broad-brush formula allowance does not properly reflect the cost an individual may incur in travelling to work, he may apply for a departure from the formula so that some account is taken of these extra expenses.

Having said that, there will be instances where an individual is able to satisfy the simple conditions to qualify for a broad-brush formula allowance but it can be argued that it is unfair to allow that to lead to lower maintenance for his children. For example, where an individual has chosen to move some considerable distance from the area where he works, in the full knowledge that the journey is not served by public transport and that travelling costs will be high, the other party may reasonably argue that he should accept the consequences of that choice and not seek to defray the costs at the expense of his children. For those reasons, and having heard my explanation, I hope that the noble Earl will withdraw his amendment.

Earl Russell: I am grateful to the Minister for the care which he has taken. He tempts me once again to enter into a discussion of his claim that child maintenance ought to take priority over all other expenses. I shall resist the temptation, but I shall not promise to do it all night. If the Minister wants us to get on, he would be wise not to go on

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asserting the general points of his thoughts, which a large number of people are likely to want to challenge. I resist the temptation, but only for the time being.

I understand what the noble Lord is saying about the policy intention as regards Amendment No. 38. As I understand it, he means to introduce a provision on intentionality very much along the lines of intentional homelessness. It is not quite the happiest of precedents, but at least it is intelligible. That view, although neither true nor interesting, is at least intelligible, as Bernard Shaw might have put it. But if that is the Minister's policy intention, why does he not say so? Why wrap it up in this general Humpty-Dumpty formula, saying that he can leave out anything he likes; ignore anything he likes and give the Secretary of State discretion to do whatever he likes? It is not the right drafting way of achieving that policy intention.

As regards the main amendment, I am not entirely satisfied with what the Minister said. At this time of night I shall not go into the reasons why, although I believe that he can probably guess pretty well all of them. However, he has given me the major assurance that I wanted that the Secretary of State definitely will introduce regulations. With that, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 28:

Page 25, line 22, at end insert ("including the costs of car ownership when it is impossible or unreasonable to expect the applicant to travel to work by any other method").

The noble Earl said: This amendment is of some importance; indeed, it is one of the most important amendments which I have left tonight. The Minister is familiar with the general outline of the argument. In fact in the Statement on 23rd January he went so far as to express a very faint scintilla of sympathy for it, but it was very faint. He did not lead me into any false hopes.

My concern in this amendment, which deals with car ownership, is that people must remain able to continue going to work. That is in the interests of the children because maintenance cannot be paid if they do not; it is in the interests of the taxpayer because those people cannot pay taxes if they do not; it is in the interests of parents with care if maintenance is in any way above income support level as it is, sometimes.

Sadly, an increasing number of people live in places, especially country areas, where they cannot go to work unless they travel by car. It is a time too when, in the spirit of the Jobseekers Bill, people are being encouraged to travel longer and longer distances to work. If you have a car, you may not find that going to work takes up a particularly high proportion of its use, but if you cannot maintain the car you cannot work. So unless the formula allows you to meet the standing costs of owning a car (the road fund licence, the insurance and the MOT) then you cannot go on working. Also, as often happens—it has happened to a number of the people who have corresponded with me about the Bill—you may be buying the car on an instalment payment system. If you cannot pay those instalments, then you cannot continue to go to work.

I had a letter from someone who was caught by all those things; he called the Child Support Agency helpline to ask

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how he should cope. He was advised to sell his car. That cannot make sense. I know that the Social Security Select Committee was not persuaded by that point, but its reasons for not being persuaded were less than clear.

If the Minister will not accept the amendment, the Government will be pushed into a position where they find that they are under pressure to lay on adequate public transport to every place in the British Isles. The cost implications of that are fearsome. You cannot press people to do what they cannot do. The interests of keeping people in employment need to come first; neither children nor anyone else benefits if that is not the case. I beg to move.

9.15 p.m.

Lord Mackay of Ardbrecknish: As the noble Earl explained, the amendment seeks to place a duty on the Government to provide for the cost of car ownership where the use of a car is essential for the purposes of travelling to work.

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