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Lord Mackay of Ardbrecknish: I am not sure about the answer to that question, but certainly the court cannot start to look into the details of the assessment and re-judge the issue. What the court is able to decide is whether or not, in the circumstances presented by the agency, a case has been madepresumably on the grounds that the person has not paid and has persistently declined to do so. It is very much the last possible step that the agency would take. On those grounds, the magistrate or sheriff would have to be satisfied before he took such a step, as is the case with any magistrate or justice of the peace before he actually signs any kind of document in terms of the various orders that he is asked to sign. One has to satisfy oneself that the person appearing and asking for whatever order it may beand in this case it would be a liability orderhas made a justifiable case.
Therefore, while the magistrates' court cannot query the assessment itself, as I explained, like justices of the peace and other such people who are asked to sign documents regarding a wide range of matters in the law, those concerned must be satisfied that the person asking them to sign has made a proper case.
However, the important point is that we are dealing with someone who has had every possible opportunity to obey the law and pay the maintenance to the parent with care of the child or children. That is a fact. We are discussing the stage where we are, so to speak, at the end of the line. No onesuch as the agency or the Governmentlikes to make use of the distress provisions. But, frankly, in those cases I do not see what else one can do except to say to the absent parent, "Well, it's a fair cop. You've won and we can't do anything about it. You can walk away and we can't do anything".
Baroness Seear: The Minister has told us what he thinks the crux of the matter is. However, for those of us who support the noble and learned Lord, the crux of the matter is that the power is in the hands of administrators and not those of the judiciary. That is what we cannot and will not tolerate.
Lord Mackay of Ardbrecknish: I am not in the least surprised by that because the party that the noble Baroness represents has made it perfectly clear all along that it would repeal the Act; that it does not like the agency; and that it would prefer to go back to the previous system with all its imperfections which, of course, are only imagined by those of us who think of it as imperfect. The noble Baroness obviously thinks that the system was perfectly fair and reasonable.
Baroness Seear: What the Minister is saying is totally untrue. Of course we do not support the wrongs which were done before. It is not a choice between two things; what we object to is what the Government are continuously doing. They are undermining the independence of the judiciary and putting the power into the hands of administrators. That is what we will not tolerate.
Lord Mackay of Ardbrecknish: I believe that there is a gulf between us on the matter. The previous system did not work in the view of most people. It certainly did not work in the view of the great majority of parents with care. We believe that if the agency had the chance it would and could run properly; indeed, it will run properly once the refinements in the Bill are introduced.
Earl Russell: No one is maintaining that the previous system was perfect. However, did the Minister hear what I said on the previous amendment; namely, that pendulums always swing too far? Will he respond to it?
Lord Mackay of Ardbrecknish: I am not sure whether it is the law of physics that pendulums swing too far. If that were so, I do not believe that clocks would work. I understand the noble Earl's point and, to a certain extent, he is right. We are introducing the departure system in the legislation. That means that we recognise that there are some legitimate concerns about the workings of the 1991 Act. We are taking such steps in the Bill and, when they are in place, we believe that the system will run very much better. It is to be hoped that it will work to the benefit of the many parents with care who were not and are not receiving their maintenance because of the behaviour of some absent parents.
Lord Simon of Glaisdale: The Minister has not answered the question that I asked. It is possible that I put it too generally. I asked whether this gives exceptional powers to the agency or its officersor, indeed, to the Secretary of Statewhich are not available to the ordinary individual creditor. Perhaps I should put it more specifically.
Is there any power, except in retrospect, for a private individual levying distress through the courts in the way that the Minister described to fix his own amount of the charges? That is the first specific question.
Is that according to the ordinary law? My recollection is that certainly an illegality relates back. I do not understand the reference to an irregularity. There are three things that are hedged round the law of distress. One is that an illegal distress renders the proceedings void from the beginning and gives rise to special damages, the second is an irregularity and the third is an excessive distress. Perhaps the noble Lord can explain the meaning of irregularity here and explain whether it does notas in the cases to which I have referred since intervening on this occasionconfer an
Lord Mackay of Ardbrecknish: I do not intend to get into a legal debate with someone of the noble and learned Lord's eminence any more than I would take myself to Wimbledon in the next week or two and ask to play against the No. 1 seed. I hope that the noble and learned Lord will accept that I am not going to get into too deep legal waters with himI fear he knows his way about much better than I. In the first place of course an ordinary individual can apply to the court for a debt judgment and can then apply for distressand the CSA is no differentonce the liability order is obtained from the magistrates' court. Therefore, the procedure of distress is
Lord Mackay of Ardbrecknish: I knew that I should not have played legal tennis with the noble and learned Lord. It is a matter of where the agency starts in making these formula assessments. As I said earlier, the magistrate (or the sheriff in Scotland) will not be in a position to get into the detail of how the formula assessment has been made up and whether it is right or wrong. That is not part of his role. I am not sure what the magistrate or the sheriff does in the case of an ordinary and private individual and to what extent the sheriff or the magistrate would explore whether the debt was a proper debt and what evidence was in front of him that it was a proper debt. Clearly the agency starts from the assessment formulait is a public agencyand therefore it comes to the court with a debt which it has arrived at through the formula and through the fact that the absent parent has not paid, not just for a week or two but for some considerable time.
The noble and learned Lord asked whether I could give any other examples as regards the regulation-making powers. The regulation-making powers relating to distress mirror the provisions in the County Courts Act 1984. On the question of the provision relating to trespass and whether it accords with the ordinary law, there are parallel provisions in the same-
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