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Earl Russell: My Lords, I am grateful to the Minister for one point in that reply. I am grateful for his admission that the second tier review is not an appeal. In 1991 we spent a great many hours seeking to induce his predecessor to agree to precisely that point. I am very glad that we have won the point now, even if somewhat belatedly. It does not partake of any of the proper characteristics of an appeal. The name of the officer undertaking the review is not given. The complainant does not know whether the officer is a different person. If we do not know who the person is, we do not know whether there can be conflict of interest or whom to hold accountable for the decision.

That is not justice; it is administration. It is at the heart of our complaint that administration is taking over from justice.

Lord Mackay of Ardbrecknish: My Lords, I appreciate the noble Earl giving way to me. Surely if the aggrieved party can have the problem resolved by what the noble Earl calls an administrative process, that is a perfectly satisfactory solution. A solution is reached a good deal more quickly and more easily, with the backstop that if the person is not satisfied his right of appeal is not altered.

Earl Russell: My Lords, that argument would carry a good deal more weight if the CSA were capable of getting more than 50 per cent. of its decisions right. Judging by some of the correspondence that I have seen from the CSA, I wonder whether it always knows that it has conducted a second tier review. Internal communication within the CSA seems to me to be a good deal less than perfect.

I cannot help wondering whether the Minister would entrust his car to a garage where there was a 50-50 chance that the garage would remember to tighten the wheel nuts. I can tell him that I would not. It makes the case for a proper appeal procedure all the more important.

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I was a little disconcerted by the Minister's argument that we cannot have a proper appeal procedure because people might use it. It reminds me a little of the case of,

    "A man in the restaurant at Crewe

    Who once found a mouse in his stew.

    Said the waiter, 'Don't shout, don't wave it about,

    Or the rest will be wanting one too'".

Yes, indeed, if justice is available, the rest will be wanting one too. If injustice, or perceived injustice, grows, then so must recourse to the courts to deal with it. The argument that everyone might want it is one which does a great deal more than I hope the Minister intended. One could use that argument to wipe out practically any appeal against an action of power. That really would be contrary to the rule of law. I hope that it is not what the Government intend.

In one form or another, we shall have to look at the issue again because as it stands at present the situation is totally unacceptable. I do not think that we shall get any further by pursuing the matter across the Chamber tonight. Therefore for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Lord Simon of Glaisdale moved Amendment No. 27:

Before Clause 18, insert the following new clause:

("Enforcement of liability orders by distress: repeal of section 35 of 1991 Act

. Section 35 of the 1991 Act shall cease to have effect.").

The noble and learned Lord said: My Lords, the amendment relates to the remedy of distress which is vouchsafed to the Secretary of State in addition to the other powers that I rehearsed earlier. As your Lordships know, distress stems from a very ancient and primitive sphere of jurisprudence; namely, the time of self help.

When I raised the matter in Committee, I asked the Minister a number of specific questions about Section 35 of the 1991 Act. I also asked him a general question. The noble Lord was not then in a position to answer those specific questions which he said were questions of law. I have today received a letter from him dealing with the specific points that I raised. I am most grateful to him; I have had time to read the letter before the debate.

I do not propose to refer to the specific points, although they may arise on the general question which I asked the Minister and which remains unanswered. It is this. Section 35 gives the Secretary of State the right of distress. Does it give him additional powers over and above the ordinary rights of distress? If so, what are those powers? If not, what is the sole purpose of Section 35?

The matter arises in this way. Section 33(2) of the Child Support Act 1991 states:

    "The Secretary of State may apply to a magistrates' court or, in Scotland, to the sheriff for an order (a 'liability order') against the liable person".

Under subsection (4) neither the court nor the sheriff is given power to question the maintenance assessment under which the payment for child support maintenance falls to be made. In other words, as I understand it, they

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may not question the operation of the formula, however defective it has proved in the past. That comes under Section 33, liability orders.

Section 35 states:

    "Where a liability order has been made against a person ('the liable person'), the Secretary of State may levy the appropriate amount by distress and sale of the liable person's goods".

Perhaps I ought to read from subsection (7):

    "The Secretary of State may make regulations supplementing the provisions of this section".

One then has a liability order obtained from the magistrates' court. I now read from Halsbury's Laws of England in the edition edited by my noble and learned friend Lord Hailsham of Saint Marylebone. I need read only the first few words of Section 5 in the article on distress:

    "5. Distress under Magistrates' Courts Act 1952".

That Act has now been consolidated. Paragraph 442 states:

    "Jurisdiction. Where default is made in paying a sum adjudged to be paid by a conviction or order of a magistrates' court the court may issue a warrant of distress for the purpose of levying the sum".

In other words, when a liability order has been obtained from the magistrates, the magistrates may issue a warrant of distress.

I have examined the procedure under the Magistrates' Courts Act and there is some difference from Section 35. One asks why it exists. I ask again: what additional powers have been taken? Why is it necessary to have Section 35 at all when the issue of a liability order may immediately result in distress under the Magistrates' Courts Act? Either Section 35 gives additional power once again to officials or it is unnecessary. I beg to move.

9 p.m.

Earl Russell: My Lords, I am happy to support the amendment, to which I have put my name. Distress is an extreme power. It provides the right of entry; it lays down in Section 35 that no one is to be a trespasser. It is almost the nearest thing allowed under the rule of law to a Hobbesian state of war. It is an act almost forcibly to take what is owing to one.

That is an extreme power which may be justified in a situation which is properly controlled by the rule of law. In some cases, that extreme power needs to exist. But to be subject to distress for an assessment against which one has no legal appeal and which stands a 50 per cent. chance of being erroneous is too much. The contrast between those two things shows quite how far the 1991 Act went in exalting the powers of the Executive against the powers of the law.

If one is to be subject to those powers, one must be able to appeal against them. If the powers are to be claimed, there must be some good reason for believing that the debt which they are being used to collect is due. Without the right of appeal and with that rate of error, I do not see how we can have that.

There must also be some reason to believe that the debt can be recovered. We may find that that presents some difficulties. According to the report of the Audit Commission, which appeared an hour or two too late for us to use it in Committee, the agency itself told the

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National Audit Office that the total outstanding debt contained a growing core not yet quantified which was not likely to be collected.

So if we use distress to try to collect something that is not likely to be collected because the person does not possess sufficient property, we are getting into uncomfortable territory. I am reminded of a document I once saw recording the distresses taken from John Hampden's tenants for ship money. They had taken away from them as distresses their family Bibles and their frying pans. They were getting down to the bare minimum. We do not wish matters to get to that point. Nor do we want distress to be used where the legal powers are inadequate.

Another point which was made by the Audit Commission and which I do not believe the Minister will be able to get round is that many of the debts arise from interim maintenance assessments. Because they are incorrectly dated, they are legally unenforceable. If I am to be the victim of a distress for an inaccurately assessed debt on a maintenance interim assessment which is not legally enforceable because the date is wrong, I cannot do anything with the bailiff who comes into my property. What appeal have I? Is that not being subject to an arbitrary power? And is it not the kind exaltation of the Executive which is very hard to combine with the principles of government by consent?

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