Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Hollis of Heigham moved Amendment No. 91:

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

[Amendment No. 92 not moved.]

Clause 18 [Financial penalties]:

Earl Russell moved Amendment No. 93:

    Page 18, line 45, leave out ("his absolute") and insert ("the reasonable exercise of his").

The noble Earl said: I hope that this will not take long. My purpose is probing in the first instance. I need to see the Minister's answer.

This amendment deals with the provision in Clause 18(2) that a penalty for arrears of child maintenance shall be,

    "determined by the Secretary of State in his absolute discretion".

My amendment would alter that to the "reasonable exercise of" his discretion. The real purpose of the probing is to discover exactly what the Minister believes to be the effect of the word "absolute". It is a word with slightly uneasy overtones. However, my specific question is: is it the Minister's intention that the clause should bar the exercise of judicial review? If that is her intention, what does she believe is the likelihood of it being effective?

Before she answers, I hope that she might bear in mind the ruling of the noble and learned Lord, Lord Woolf, which I have quoted before, in the case of Fayed v. Home Secretary, that if Parliament wishes to confer a power to act unreasonably it must say so in express words. I do not believe that these are express

8 May 2000 : Column 1358

words within the noble and learned Lord's meaning. However, that is something on which Ministers might wish to take future advice. Therefore, in the hope of hearing an answer which might reassure me that I do not need to take the matter further, I beg to move.

Baroness Hollis of Heigham: Amendment No. 93 relates to the provision which will enable the CSA to impose a discretionary financial penalty of up to 25 per cent of the maintenance owed where payments are unreasonably late or missed altogether. Penalty amounts will be set at the discretion of the Secretary of State and will be used by the agency basically as a tool in negotiations. The aim is to persuade non-resident parents to meet their responsibility to their children in full and on time rather than to impose the penalty.

The amendment alters the wording on the face of the Bill to specify that the use of discretion should be reasonable. This amendment is unnecessary. The penalty will not be imposed automatically. The circumstances which have led to a late or missed payment will be taken into account when considering whether a penalty would be reasonable. The non-resident parent's position is further protected in that he will be able to appeal to an independent tribunal against a decision to impose a penalty and/or the amount of the penalty.

The noble Earl asked also whether it will remove his right to judicial review. My understanding is that it will not.

The Government are determined to ensure that non-resident parents meet their financial responsibilities and, obviously, as we discussed earlier this evening, we shall seek to get tough on those who do not. This simple administrative penalty is to recognise the additional work involved when payments are received late or not made at all. The money will not be kept by the agency; it will go to the Treasury. We believe that it is right that the taxpayer should not have to foot the bill for the extra work that the agency has to do when maintenance has not been paid.

Earl Russell: The Minister does not need to explain the policy intention. I only want to know the effect in the Bill of the word "absolute".

Baroness Hollis of Heigham: I do not understand the noble Earl's question because any power must be operated reasonably. Therefore, there is no effect of the word "absolute". When the noble Earl asked me the second question about judicial review, I was able to tell him that that right is not lost.

Earl Russell: If the word "absolute" has no effect, why not withdraw it from the Bill?

Baroness Hollis of Heigham: Because we believe that it is right to protect the authority of the Secretary of State in that situation.

Earl Russell: How is that authority protected by the insertion of the word "absolute"?

Baroness Hollis of Heigham: Because, as far as I am aware, that is consistent with the arrangements under

8 May 2000 : Column 1359

the Social Security Administration Act, which we discussed earlier, as regards how the structures of decision-making, the workings of tribunals and so on are organised.

Earl Russell: Either this confers an arbitrary power or it is an example of the complaint of the noble and learned Lord, Lord Simon of Glaisdale, about the prolixity of the statute book. Either way, I am afraid that we must return to this matter. In the meantime, I beg leave to withdraw the amendment.

8 May 2000 : Column 1360

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Baroness Amos: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at twenty-seven minutes past midnight.

8 May 2000 : Column 1359

Next Section Back to Table of Contents Lords Hansard Home Page