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Lord Simon of Glaisdale: I am sorry to interrupt the noble Lord again. I am afraid that I do not understand—probably because I have not looked at it recently—his reference to the County Courts Act. Surely under that Act there is no power for the individual creditor to fix the charges. But that is what is done in this statute and that is the matter to which I referred. The noble Lord is looking at the Act. It gives the Secretary of State power to fix the charges which he considers are incidental to the distress. It is that I am asking him about.

5.15 p.m.

Lord Mackay of Ardbrecknish: The position is as I have tried to explain. The Secretary of State of course, from this point of view, is the agency, and that applies too to its officers who are going to the court. I imagine

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that the charges are the charges relating to what the absent parent owes. I shall not continue to discuss these legal technicalities with the noble and learned Lord because, as I said, it would be as if I had attempted to play the No. 1 seed at Wimbledon when my tennis is not just poor but non-existent. The point is one of principle and that is what I invite the Committee to agree with me on.

The point of principle is that, if in the last analysis an absent parent has proved to be totally unwilling to pay his maintenance to the parent with care and to the children, we either take these drastic steps—I accept that they are drastic and I trust that they would be used only in extremis—or we simply hold up our hands and say, "Well, boy, you have got away with it. You have played us to the end game and the House of Lords has taken away our powers to make sure that you pay at the last". I do not believe that the Committee wants to do that.

Earl Russell: Does the Minister understand the case that argues that no intention, however good, should be pursued in total isolation from other considerations? His intention is good, but the Minister knows what is paved with good intentions.

Lord Mackay of Ardbrecknish: The intention is indeed good and I am glad to hear the noble Earl underline that. The problems of the absent parent ought to have been and will have been attended to through the assessment and through the departure, but we are talking about someone who is simply not paying. In those circumstances, as I have said, there has to be a final stop so that the absent parent cannot get away with it. Organisations like the one I mentioned would advise every absent parent to take the same route and, regrettably, a few would probably do so.

Lord Houghton of Sowerby: This is the first opportunity that we have had in this Chamber to review the Act which was passed several years ago and of which the Government have now had several years of experience. The noble Lord will have seen this amendment down on the Marshalled List. Can he say what use Section 35 has been in the recovery of payments from any person under the 1991 Act? Is there any known case of distraint? If not, or if it has been practically unused, can we not remove this theoretical incursion into the dignity and the rights of individuals? Why keep it in and let it stand as part of the monument of hostility and venom against this group of our citizens?

Lord Mackay of Ardbrecknish: The process has been used by the agency. I indicated why I thought it was necessary. The important point is that it is there also as a deterrent. It is not just a matter of the number of occasions on which it has been used, but the number of occasions on which it has been helpful to show an absent parent in these circumstances that, if he does not pay, there is a final action which the agency can take, which is unpleasant for everyone concerned and which the agency does not want to take but which has to be there if people are not to get away scot-free and pay nothing at all.

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Lord Simon of Glaisdale: We have at last got to the point of principle. The noble Lord says in effect that no one need suffer the inconvenience and humiliation of distress if he pays the debt. That is like saying that no one need suffer a black eye from the police if he is prepared to go quietly. That simply will not do.

The debate has been worthwhile, if only for the intervention of the noble Baroness, Lady Seear. It ill-becomes the noble Lord or anyone on the Treasury Bench to sneer in those terms at the Liberal Democrats. They have played a valiant part in this Bill, as in the 1991 Act, approaching it with great knowledge of the social background, the benefits system and with respect for the rule of law.

I asked the noble Lord a number of questions, which he declined to answer on the grounds that they were legal questions. In my defence, I say that I questioned this provision back in 1991 and again at Second Reading. However, the Minister may want to think about what has been said. It is obvious that this is a matter to which we shall wish to return at Report Stage, if only to highlight the particular matters to which I referred and which the Minister sidestepped. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 70:

Before Clause 18, insert the following new clause:

("Commitment to prison: evidence

. In section 40 of the 1991 Act, in subsection (11) (c), before "evidence" there shall be inserted "prima facie"").

The noble Earl said: This amendment also concerns the rule of law, but is in a very much more minor key. It is one to which I hope the Minister may respond favourably without too much difficulty or without great sacrifice.

The amendment deals with the clause in the 1991 Act bestowing a power of imprisonment, against which my noble friend Lord McGregor of Durris fought so heroically in 1991. At present I am not attempting to remove that power. I am taking up only one point in subsection (11) (c) of Section 40 of the 1991 Act, which concerns evidence. It states:

    "that a statement in writing to the effect that wages of any amount have been paid to the liable person during any period, purporting to be signed by or on behalf of his employer, shall be evidence of the facts stated".

I propose to insert the words "prima facie" before "evidence".

I do not object to the use of the evidence, I ask for it to be possible to deny it. The word "purported" in the 1991 Act itself indicates the possibility of a need for challenge. I ask for the support of any Member of the Committee who has ever received an inaccurate payslip. I beg to move.

Lord Mackay of Ardbrecknish: My Lords, the amendment relates to the provisions for committal to prison. As the noble Earl pointed out, its purpose is to give less weight to statements obtained from an absent parent's employer that wages had been paid. Such evidence is of course relevant for the court to consider when deciding if there was wilful refusal or culpable neglect on the part of the absent parent.

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In our earlier debate on issues surrounding collection and enforcement of child support maintenance, I made it clear that we do not envisage that the provisions relating to committal to prison will be used on many occasions. The agency has never used them. However, there will be some cases when it appears that the absent parent had the ability to pay but deliberately refused to do so and an application for committal will be appropriate.

Presumably the noble Earl intends with this amendment to make it more likely that a court will refuse an application. However, I can see no reason why a statement from an employer should carry less weight than other evidence, even when I hear the noble Earl mention mistakes in payslips. It is also important to understand that the Act does not make a statement from an employer conclusive evidence. It is for the magistrates to consider that evidence, along with any other evidence put forward by the Child Support Agency or the absent parent. In the previous court system there was always the power to send maintenance defaulters to prison. Therefore, this is not a new provision in this particular field.

My response to the noble Earl touches on a very fine point. It is for magistrates to consider that evidence. I suggest that if payslips are wrong, that is part of the evidence that the absent parent will lead.

Earl Russell: I am most grateful to the Minister. When he said that it is not conclusive evidence, he gave me the point for which I ask. It is possible to challenge it. I am very glad of that assurance, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell had given notice of his intention to move Amendment No. 71:

Before Clause 18, insert the following new clause:


. In subsection (3) of section 41 of the 1991 Act, at end there shall be inserted, "provided always that, if the absent parent shall resume residence with the parent with care, the Secretary of State may, with the agreement of the parent with care, waive any arrears, or any portion of arrears; if it appears expedient to him to do so, and provided always that no arrears shall be collected unless it is conducive to the welfare of the child to do so."").

The noble Earl said: This again is an issue which I argued at some length in 1991. It concerns the levy of child maintenance from the absent parent on income support. Income support is not a particularly generous benefit.

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