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Lord Mackay of Ardbrecknish: We are taking Amendments Nos. 34 and 36 together as both seek to remove the power to prescribe in secondary legislation various types of orders and agreements. I shall deal first with Amendment No. 34. It relates to departure applications on the grounds of financial commitments entered into prior to April 1993, that is prior to the coming into force of the 1991 Act. It is intended that such commitments can be cited as ground for a departure order but only where a clear agreement about the maintenance liability for the children was in existence. The rationale of the Government's proposal is that parents who thought the question of their child support liability was settled and entered into the commitment on that basis have been unduly disadvantaged by the child maintenance arrangements brought in by the 1991 Act. However, if no maintenance agreement existed there should be no question of meeting other financial commitments at the expense of support for children.

The sub-paragraph the noble Earl seeks to amend provides for the type of maintenance agreement which will allow a parent to qualify to apply for a departure under this ground to be defined in regulations. Despite the conclusion of the Delegated Powers Scrutiny Committee in its report, the noble Earl continues to press for regulation-making powers to be withdrawn. The proposed amendment would take away the power that enables the type of agreement entered into by absent parents and persons with care to be prescribed in regulations.

The effect of the amendment would be perverse in that it would allow a departure where, for example, the "legally binding agreement" was solely in respect of spousal maintenance with no agreement as to the maintenance liability for children, which is clearly not the intention of the provision. On the other hand, it would exclude other cases such as those where the parents had reached a child maintenance agreement via the old DSS liable relative arrangements. That is exactly the type of case which should be allowed to benefit from the provision.

Turning to Amendment No. 36, the delegated power which the noble Earl seeks to remove is required to allow for more detailed provision to be made for property and capital settlements which are not fully reflected in the formula assessment. The intention is that a departure will be considered if the "broad brush" allowance under the regulations introduced last April underestimated or overestimated the value of the transfer or because no allowance was made and the applicant believes that it should have been made.

This is a complex area and the list of provisions is likely to be lengthy, making it unsuitable for inclusion in primary legislation. It is therefore our intention to introduce regulations to define the type of property transfer which can be considered for a departure. For example, we may wish to prescribe that items such as a second-hand car, new and valuable items of furniture, jewellery, antiques and valuable paintings may be taken into account but not used household equipment or furniture with little or no resale value or the personal effects of the family who remain in the home.

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As with many aspects of the departure system, time and experience may indicate that some items should be added to or removed from the list. Members of the Committee will be well aware that changes can be made much more readily to regulations than to primary legislation and that they are therefore the most appropriate vehicle for dealing with this issue.

Regulations will, of course, be subject to the affirmative procedure since their exercise will directly affect access to the departure system. In common with the other delegated powers in the Bill, the case for this provision has been accepted by the Delegated Powers Scrutiny Committee. With that explanation of the sort of use that we shall make of the two regulation-making powers, I hope that the noble Earl will withdraw his amendment.

10.15 p.m.

Earl Russell: I very much hope that the Minister will take the Delegated Powers Scrutiny Committee quite as seriously as this when it finds against a Government Bill. The Government have been known—-

Lord Mackay of Ardbrecknish: Perhaps I may remind the noble Earl about the decisions I took on the Jobseekers Bill in pursuance of what that committee said.

Earl Russell: That is a fair point, but I believe I said "the Government" and not "the Minister". I did not mean to make any personal reproach of the Minister. The example I had in mind was the provision in the railways Bill to override the hybrid instrument procedures of this House. The committee expressed itself very strongly on that. The Government were not impressed. If they have the right to a judgment separate from the committee, then, although I take the committee very seriously indeed, so must I. I was also expressing a doubt about the policy intention. Without a doubt about that, I would not have pressed this matter further.

Before leaving the subject, I refer to the Minister's statement that changes can be made more easily by regulations. He did not say by whom. The Government are not the only people who want to change anything in the whole of our legislative system. Occasionally, some of the rest of us want to address the need for change in a particular area. When the matter we wish to change is in regulations it is, as this House discovered on 6th July 1992, extremely difficult to do anything about it.

I am still not at all clear what agreements of a prescribed kind, or any other, the Minister wishes to disregard. I am not at all clear how he intends to set about it. I am not sure that I am happy about it, but I shall read what the Minister said a great deal more carefully and decide what I think about it then. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 and 36 not moved.]

Earl Russell moved Amendment No. 37:

Page 26, line 40, at end insert:
("( ) When considering an application for a departure direction under this paragraph the tribunal shall have regard to the contents of section 25 and 25A of the Matrimonial Causes Act 1973.").

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The noble Earl said: Once more I begin to feel like Jack-in-the-box. This amendment again deals with grounds for departure. It attempts to provide that they shall be considered in terms of the eight factors listed in Section 25 of the Matrimonial Causes Act 1973. It is the same approach; namely, to subject the regulation-making power at the discretion of the Secretary of State to a certain number of general principles. As far as those principles are relevant, they include,

    "the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; any physical or mental disability of either of the parties to the marriage".

Those involve bringing together again responsibility for spousal maintenance and child maintenance. I agree with the point made by the noble and learned Lord, Lord Simon of Glaisdale, many times tonight, that separating those two simply does not work. It is now seen not to have worked. That is one of the arguments for going back to a court system.

The Minister constantly denigrates the court system, but compared with what we have had since 1991, absolutely anything would be a good system. I may be held to those words, but I hope not. Certainly the court system, warts and all, as it existed before 1991 was a very paradise compared with what we have had since, largely because it did attempt to work in the way in which the noble Lord, Lord Renton, outlined earlier this evening in terms of general principles which could then be applied to specific cases. The Matrimonial Causes Act 1973 has provided us with a very good example of that which I believe is tried and tested and which has worked a lot better than anything under this Bill has ever done. I beg to move.

Lord Mackay of Ardbrecknish: As the noble Earl explained, this amendment proposes that, in considering a departure application on the grounds that there has been a property or capital transfer between the parties, the child support appeal tribunal will have regard to the contents of Sections 25 and 25A of the Matrimonial Causes Act 1973. Section 25 lays down the matters to which a court is to have regard in deciding on maintenance payments or property transfers on divorce and so on. Section 25A imposes on the court a duty to consider for how long maintenance to the former spouse should be paid.

The amendment would result in a rather odd situation in that the Secretary of State would not be required to have regard to that legislation although a tribunal would. So where a tribunal was considering an appeal against a Secretary of State's decision, it would apply substantially different criteria from those on which he had based his decision. I doubt the noble Earl, Lord Russell, intended that to be the effect. I think he was trying to aim at the more general point.

We have accepted that where a property or capital transfer was made and it is clear that part of that settlement was made in lieu, or as an early payment, of child maintenance, the financial effect of that transfer should be recognised and reflected in a reduction of ongoing child maintenance liability. We have decided that the reduction

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should be made as a departure from the formula where the "broad brush" formula adjustment does not properly reflect the effect of the transfer.

In considering such a departure application the Secretary of State will look at the monetary value of the transfer in relation to the maintenance position and reduce the maintenance liability on the basis of the financial effect of the transfer where it would be just and equitable in all the circumstances of the case so to do. Regulations may provide for certain factors which should or should not be taken into account in considering the question.

We do not intend that those regulations should be comprehensive or overly restrictive: the decision-maker must be free to exercise his discretion as he sees fit. It may be that we will feel it necessary to include in regulations some of the matters covered in Sections 25 and 25A of the Matrimonial Causes Act, and they will be discussed at the appropriate time when the regulations are before this place.

However, there are aspects of the Matrimonial Causes Act which we do not feel should apply in the calculation of child support. For example, the Matrimonial Causes Act requires a court to consider not just the current financial circumstances of the parties concerned but also their future financial circumstances in terms of their future earnings capacity and any future financial obligations they may have. It also includes the conduct of the parties as, in some cases, a relevant consideration. That could mean, for example, that a departure decision might be influenced by the question of which party was at fault in causing the breakdown of the relationship. We believe that the conduct of the parties should decidedly not be a factor in considering a departure. I hope that with that explanation the noble Earl will feel able to withdraw the amendment.

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