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Lord Simon of Glaisdale: My Lords, I support this amendment for the reasons given by the noble Earl, which need no expatiation. I only add this and I do it at the risk of annoying equally the noble Baroness and the Minister, which would be a formidable combination to antagonise. I merely emphasise that the considerations which are set out in Amendment No. 8, upon which the noble Earl enlarged, would be just the sort of considerations that a magistrates' court would have weighed. Such courts would also no doubt weigh the objections which the Minister may be about to urge and, with the infinitely different circumstances between one case and another, they would have made an order which would be far more satisfactory than anything thrown up by the formula. I hope that the noble Earl will forgive me for saying that, in the circumstances, this is second best, but, given the circumstances, it is something that we should adopt.
Lord Mackay of Ardbrecknish: My Lords, these amendments concern provisions in Clause 6 and in the new Schedule 4B as introduced by Schedule 2. All of the amendments remove the right to make regulations, which I do not suppose will surprise those of your Lordships who have been with us during our deliberations on three or four of the Bills with which we have dealt this Session.
Amendment No. 5, which seeks to amend Clause 6, will be familiar to those of your Lordships who attended our debates in Committee. It concerns the power to make regulations to clarify those factors which should or should not be taken into account in considering whether it would be just and equitable to give a departure direction, and it provoked a lively discussion about the need to afford Parliament the opportunity to
I have already mentioned that the noble Earl, Lord Russell, expressed concern at Committee stage that the use of delegated powers in effect made it impossible for Parliament to have any input. I do not accept thatand I hope I can reassure your Lordships on that point. As I explained during the earlier discussion, the purpose of the regulations which will be made under the delegated powers in the new Section 28F, as introduced by Clause 6 of the Bill, is to prescribe particular factors which ought or ought not to be taken into account during the consideration of whether it would be just and equitable to all concerned to give a departure direction. For example, we do not intend that the question of who left whom, and in particular any apportioning of blame, should colour the judgment of the officer who is considering the departure. We may well, therefore, introduce regulations to provide that no regard should be had to the circumstances of the parents' separation.
Perhaps I may offer your Lordships a further example. We may prescribe that regard should be had to the level of any previous court order in deciding whether to give a departure direction. If the departure would reduce the maintenance payable to an amount less than the court order, it is right to ask whether that is fair.
Your Lordships may have noticed that the effect of this amendment, which does not remove the preceding paragraph of the clause, would be to focus the consideration of what was just and equitable exclusively on the financial circumstances of the absent parent and the person with care and the welfare of any child likely to be affected by the direction. For the reasons I have explained, we believe this is to give it too narrow a consideration. There is a need to specify other factors, and setting those down in regulations provides the necessary flexibility to add to or adjust them in the light of experience.
The noble Earl, Lord Russell, is always asking me about the need for regulations and about how they will be dealt with. These regulations will be subject to the affirmative procedure and so will be debated by Parliament before they come into effect. Setting down specific factors in legislation will guide decision-makers at all levels. Not only staff acting on behalf of the Secretary of State, but also child support appeal tribunals, will apply the regulations in reaching a determination. That would not be the case if, for example, the factors to be taken into account were simply set down in guidance, which would be guidance only for staff acting on behalf of the Secretary of State.
We do not intend that any regulations will be overly restrictive or will constrain the decision-maker's ability to exercise proper discretion. Certainly they will not attempt to give comprehensive guidance as to the correct course of action in any particular case or set of circumstances, but it will be right in some cases to provide clear guidance on what should or should not be relevant to a decision.
The next amendment, Amendment No. 7, which was also discussed in Committee, would make it possible for an application for a departure application to be made by any absent parent who had an expense not taken into account in the formula assessment. Your Lordships will be aware that the departure system is intended to allow for some flexibility in the small number of cases where the application of the maintenance formula causes genuine difficulty. But we must be able to prescribe the circumstances in which a departure can be requested; otherwise we risk a return to a totally discretionary system where it would be possible to place virtually any expense before the duty to support one's own child.
During the Committee stage of the Bill in another place, there was considerable discussion of the categories of expenses which should be included in the list and my honourable friend the Under-Secretary of State for Social Security gave an undertaking that we would be keeping the list of special expenses under review and would make adjustments if that proved necessary in the light of the piloting exercise. I am happy to reiterate that before your Lordships.
As I have already said in relation to the previous amendment, any regulations made under these delegated powers will be subject to the affirmative procedure and will be brought before Parliament for further consideration. Because the particular grounds will be set out in regulations, we shall be able (with the consent of Parliament) to fine-tune the system once it is up and running, should practical experience suggest that that is necessary.
I turn now to Amendment No. 8 which not only removes the power to make regulations but also substitutes a new sub-paragraph (2). I would draw your Lordships' attention to the fact that the new sub-paragraph appears to relate only to absent parents' circumstances. It is the Government's clear intention that both the absent parent and the person with care should have equal access to the departures scheme, provided of course that their circumstances were appropriate, and this amendment would cut across that. It would result in a very unequal scheme which would favour the absent parent and reduce maintenance payments by allowing the absent parent to place any of his other expenses above his children's needs.
I also find it strange that the amendment requires the Secretary of State to make a departure direction in respect of the full amount of certain expenses. This approach seems at odds with the whole concept of the new system of departures which is designed to permit people's detailed circumstances to be taken into account and to allow the position of both parties to be weighed carefully. The upshot might well be that some, rather than all, of an expense might be allowed. The noble Earl himself has railed against the rigidity of the formula, but when flexibility is offered (as it is here) he chooses to hem it in with restrictive provisions.
We spoke about these amendments at considerable length in Committee, and although I am happy to rehearse all those arguments again, perhaps I may concentrate on one or two of them. In doing so, I turn to Amendment No. 10. The noble Earl has explained that his main purpose in tabling this amendment once
This amendment relates to the provision for special expenses departures, in this case on the grounds of previously incurred debts. As your Lordships will be aware, debts incurred during the former relationship between the parents which are the responsibility of one of the parents will be one of the grounds for a departure from the formula. A departure will be considered where the debt was incurred while the absent parent was still living with the parent with care and the child to whom the assessment relates and the debt was incurred for certain specified purposes.
The principal situation we have in mind is where debts were incurred for the benefit of a child who was a dependant at the time but is no longer dependent. Such a child is not included in the current assessment and, without this provision, debts incurred on his or her behalf would not be eligible for consideration. However, we recognise that there may be a number of further situations where we would want to provide for a departure direction to be given, and those would be too complex to detail in primary legislation, which is why the provision contains a power to make regulations.
There may, for example, be situations where we might want to provide for a departure in certain circumstances where debts were incurred in respect of step-children. As step-children are not allowed for in the maintenance assessment, except by virtue of a departure direction, this amendment would exclude debts incurred for their benefit. I doubt very much whether the noble Earl would like that.
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