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The Deputy Speaker (Lord Elton): If this amendment is agreed to, I shall be unable to call Amendment No. 33.
Earl Russell: My Lords, I have a great deal more sympathy with this amendment. In addition to the other complaints about the language of subsection (4), this principle is a tautology. It reminds me of the judge who once said that an irresistible impulse was an impulse that had not been resisted. The subsection simply says that we may do what we may do what we may do and that a rose is a rose is a rose. It is a classic example of the point that I made a few moments ago. When a regulation-making power is created, the vires should be rather more tightly drawn to allow the department to do what it wants to do and not to do absolutely anything that it happens to think of afterwards. If we give such a power, we are in danger of making Parliament redundant. We ought to have some idea of what we are allowing the Government to do. The amendment deserves strong support and it raises a principle that is applicable in a good many other places. I am glad that it has been tabled.
Lord Skelmersdale: My Lords, I am sure that it would also be helpful if the noble Baroness could
explain in what manner these prescriptions, especially of the other elements, are to be made. Are they to be made by statutory instrument? If so, what sort of statutory instrument? If not, how are they to be made?
Baroness Hollis of Heigham: My Lords, I take the criticism of the wording. All I can say is that there is truth in a tautology by definition. I do not know whether that helps the noble Earl, Lord Russell.
The point is that the "prescribed manner of determination" includes the provisions in subsection (5)(a), (b) and (c). The amount of the family element may vary according to the age of the children or qualifying young persons, it may include provision for the amount of the individual element of child tax credit to vary according to the age of the child or qualifying young person, and so on. That has been prescribed. Subsection (4) gives some headspace so that primary legislation is not needed in order to adjust people's eligibility for child tax credit and working tax credit in the future.
The question upon which noble Lords are rightly pressing me is: under what circumstances might that additional flexibility be needed; and, basically, is it decent to have it? One of the best examples of that flexibility that I can give the House is on a personal level. I have been engaged in a good deal of work on child poverty. First, we know that the children who are most likely to be poor are those of workless families and children in families that should be receiving maintenance but are not in receipt of it; in other words, children of lone parents. We also know that the second group of poor children are those in disabled families. However, there is a third group of children about whom we know almost nothing—children in large families, those in families where there are four or more children. Very often, children in ethnic minority families are disproportionately poor when compared with most children.
At present, our benefit system concentrates help on the first child in the family, and not on the fourth, the fifth, or the sixth. In many ways—and quite understandably—the rates of child benefit produce a higher rate for the first child than for the subsequent children. That is the system at the moment because one parent, usually the mother, is most likely to drop out of work after the first child is born and that results in a fall in the family's income. It is also clear that there is a real degree of acute poverty at the other end; namely, with large families and reconstituted families. As presently structured, the child tax credit system seeks to add to wages that element for the family that a market wage does not properly reflect, because it is independent of family circumstances.
We may have got it right. However, speaking in a personal capacity from experience derived through my own department, there may well be a time when, having carried out further research and work on how we address and meet the poverty of large families—possibly ethnic minority families—we shall want to adjust the relativity of the different parts that make up the child tax credit. We shall need a power to enable us
to do so. We shall need such a power to rebalance, for example, the elements in the child tax credit so as to redress need.7 p.m.
Earl Russell: My Lords, if the legislation would say just that in the clause, I believe that it would meet most of our objections.
Baroness Hollis of Heigham: My Lords, I have given noble Lords an example of where I believe we may possibly wish to invoke such a power at some future stage, as and when research is completed and when we have a sensible strategy to underpin it. I am trying to persuade noble Lords that although this power is syntactically clumsy, if I may put it that way, it is also highly desirable in policy terms. Without such a power, we would freeze the existing component elements of the child tax credit. I had the support of the noble Earl, Lord Russell, earlier when we discussed why we need the two new tax credits when compared with the previous history of change. I said then that we had learnt from research, from pilot schemes, and from experience derived through developing these new systems.
We are not freezing now; those changes will continue to develop. We may need to revisit such matters but not by way of a major new Bill, which I hope will not be necessary. I am hoping that we shall see some stability. We may need to adjust elements in the balancing between the working tax credit and, say, the child tax credit elements—and, indeed, within different elements in the child tax credit. That is what this power will allow us to do. I cannot predict how it will be used in the future. However, I am confident that we need such a power.
Lord Skelmersdale: My Lords, before the noble Baroness sits down, perhaps she would be good enough to answer my question. In essence, I can find nothing in Clauses 64 or 65, which deal with orders, regulations and statutory instruments, that covers the prescription method that the Minister has just outlined as regards Clause 9(4). Obviously, it will not be a matter of primary legislation; indeed, no one would ever expect it to be.
Baroness Hollis of Heigham: My Lords, I understand that any new element introduced under this power will be covered by a statutory instrument and dealt with by way of the affirmative resolution procedure.
Lord Northbrook: My Lords, it seems to me that the system is already complicated. If we are to have further tinkering year by year, surely the whole process will only become more difficult.
Baroness Hollis of Heigham: My Lords, the noble Lord is, unusually, being unfair. All I am saying is that we—I use the collective "we"—have done the best we can, based on the information available to us. We believe that we have met the circumstances, but we are
not saying that we have perfect or complete knowledge. We need a power in order to rebalance the relationship between working tax credit and children's tax credit in the future; in other words, all the constituent elements of what goes into childcare.Perhaps I may give noble Lords another example. At present, we have had some very successful pilots on the education maintenance allowances for children aged between 16 and 18, which is in addition to child benefit. I can conceive that that scheme could be extended. If that were the case, that might have repercussions for child benefit, or for the family element involved. In such a situation, and if that were the policy push—I am not predicting it; I am just trying to give an example of where it could happen—we might need this power. Noble Lords need not worry: it is a benign power saying that we are not setting this provision in stone. It means that we can come back and make a judgment if, in the light of research and evidence, we need to do so. However, if we do so, it will be dealt with by way of the affirmative resolution procedure and noble Lords will have ample opportunity to scrutinise it properly.
The Earl of Northesk: My Lords, I thank the Minister for her reply, and, indeed, for the examples that she has given the House. I am also grateful for the sympathy expressed by the noble Earl, Lord Russell, and for the intervention of my noble friend Lord Skelmersdale. I remain unpersuaded that the drafting here is anything other than infelicitous. I take the Minister's point about flexibility, and the necessity for it from the Government's perspective. However, as we seem to be seeing with orders under the Regulation of Investigatory Powers Act 2000, that flexibility should not be used to undermine, or contradict, duly arrived at decisions of Parliament. The drafting as it stands on the face of the Bill creates the potential for that situation—
Baroness Hollis of Heigham: My Lords, this seems to misrepresent everything that has been said. I hope that I am not interrupting a pre-set wind-up here by the noble Earl, Lord Northesk. I have been at great pains to say that if we knew what circumstances we might need to take on board in the future, we would have built them into the subsequent part of the clause. It is precisely because we cannot do so that we need a residual power to enable us to introduce sensible, decent and intelligent measures to meet situations that could arise. I have tried to give noble Lords examples of entirely decent circumstances that could arise. If they should arise, we shall return to Parliament for proper parliamentary scrutiny.
If we remove this power, we could be responsible for denying any possible help to large families, or, indeed, the interaction of education measures relative to child benefit, unless we return with a full frontal piece of primary legislation that would have to take its place in
the queue. I am sure that the noble Earl would not wish to deny possible beneficiaries of benevolent changes as a result of such opportunities.
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