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Grand Committee

Tuesday, 5 February 2008.

The Committee met at half-past three.

[The Deputy Chairman of Committees (LORD FAULKNER OF WORCESTER) in the Chair.]

Child Maintenance and Other Payments Bill

(Third Day)

The Deputy Chairman of Committees (Lord Faulkner of Worcester): I must advise the Committee that if there is a Division in the Chamber while it is sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Clause 10 [Directions and guidance]:

Lord Kirkwood of Kirkhope moved Amendment No. 67:

The noble Lord said: I am happy to open a new day in a new week in Committee by moving Amendment No. 67 which is tabled in my name and that of my noble friend Lord Addington. I shall speak also to Amendments Nos. 73 to 75 and 85. This clutch of amendments makes any regulations relating to the new commission set up by the Bill subject to a formal reference to the child support advisory committee. The model is clear. Members of the Committee will be familiar with the work of the Social Security Advisory Committee, which has been an integral part of benefit law and policy making for many years. It provides a service by consulting on draft regulations that the department is bringing forward or which are in gestation within the department. It gives advice on those regulations, consults with stakeholders and produces conclusions that lead to a published report that is available to both Houses of Parliament when the regulations are debated. When I started to cut my teeth on social security legislation in an earlier incarnation in the House of Commons, it gave me considerable confidence that I had not completely missed the point when dealing with abstruse 90-minute debates on detailed technical regulations. For people who were coming to the subject for the first time, or who had some knowledge of a particular area but did not know the wider context of social security law, it was an invaluable aid that gave them—not just me—confidence that these were important matters of public policy.

Having spent 22 years in the House of Commons and two or three in your Lordships’ House—

Lord Goodlad: Too long!

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Lord Kirkwood of Kirkhope: It may well be too long. People get frightened by the technicalities of these important subjects. I point to the contributions that have been made during the passage of the Bill through both Houses. The number of people taking part in the debates is getting smaller, and the speakers who are not on the Public Bill Committee or party spokesmen could be numbered on the fingers of one hand. Therefore, there is value in having an independent interlocutor, without any axes to grind but with a great deal of expertise and knowledge in the field and access to a sophisticated network of stakeholders. That interlocutor can bring to bear corporate knowledge and experience built up over many years that shine light on and elucidate the finer points of some of the technical policy in the relegations. That will be the case when the commission is set up. It will set regulations. Indeed, the Minister has been hiding behind the commission with aplomb—probably rightly in many cases because it will be left to the commission to be successful in its own way of doing things. But I think that the commission will need to bring forward regulations and the department will need to sponsor the regulations. I for one would have an awful lot more confidence to look at the regulations as they come through, affirmative or negative as they may be, if they came with the seal of approval of an equivalent to the Social Security Advisory Committee—the child support advisory committee that would be set up in these amendments under consideration this afternoon.

The other thing that a child support advisory committee would be able to do is to make occasional special reports, as of course the SSAC can and often does, to great effect. Those reports would be on subjects that the committee believed, having regard to its experience of oversight of policy, should be investigated. The SSAC did a very good report not that long ago about call centres and the problems for clients who accessed the benefits system via that route.

There are lots of advantages to a committee that has a closer and more confident relationship with the department than the rest of the outside world—certainly opposition spokesmen—may have. It can anticipate problems and call attention to them and service an extensive network of stakeholders. So the proposition in front of the Committee is clear: we are asking for further help from people who would make it their business to study the development of the policy and the implementation and operation of the new work of CMEC as a commission, and help Parliament to digest its requests for secondary legislation.

The idea is not new. It was mooted first by the then Social Security Select Committee in 1999 to 2000, in another place. There was an instructive recommendation in the 10th report, which came to the conclusion:

The Government of the day set their face against that. The main reason, in so far as I could understand any reason at all, was that it would delay things, get in the

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way and take extra time—and there was a general nuisance value to any such committee. They decided that it would just make things harder and that the department had enough trouble without that. It may well slow down deliberation and may from time to time make life a little difficult for policy makers in the department, but my submission is that the value added by any such committee would far outweigh any drawbacks of that kind.

Another thing that I could adduce in evidence in support of the case is that we are just beginning to understand how the Child Support Agency legislation is being interpreted by the courts. There are some cases that have gone all the way through the legal process. One was the Smith case, which went all the way through the courts, because of the ambiguities that existed in the primary and secondary legislation about whether capital allowance should be considered as assessable income. I am absolutely certain. Knowing what I do about the work done by the SSAC, I am absolutely certain that it would have picked up such an ambiguity before the case went anywhere near the Court of Appeal. The case cost a lot of time, money and agony for those involved in it. It is my submission that a committee set up to do that work would have signalled that potential fault and that it could have been addressed long before the difficulties that it caused.

I turn briefly to the content of the amendments. It is a professional cut-and-paste job. I have just lifted the Social Security Advisory Committee provisions but those provisions have two things to which I should point. First, the Secretary of State can always override them, as he can under the SSAC rules, in an emergency or with the agreement of the committee if something goes wrong that needs to be fixed quickly. You can worry about the detail of the argument later. That is an important safety provision. That is enshrined in these amendments.

If the new commission has any sense, it will encourage a network of stakeholders. There are plenty out there who I am sure are willing to help. It should seize the initiative and try to encourage them to come in. They could all play a part in the newly constituted committee that I recommend in this group of amendments. All the necessary groups are there and, I say in passing, particularly non-resident parents. I have been studying this area of public policy for as long as anyone and I know that there are organisations such as Fathers 4 Justice and so on which work very hard, but they have a much harder job making representations on behalf of that important client group. Any such committee set up under these amendments would play a prominent role, as far as I am concerned, in the makeup of the committee that did the work.

In conclusion, for the additional level of assurance and the future operation and delivery of the new commission, this is a small price to pay in terms of extra administration and such extra bureaucracy that might be involved. I think it would give assurance to the client group which studies this policy area and it would give reassurance to parliamentarians that, when considering the regulations, they would be able

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to found them on some expert help that would guide them through the passing of the important secondary legislation that this primary legislation will provide for future consideration in Parliament. On that basis, I beg to move.

Lord Skelmersdale: I do not know about other Members of the Committee, but ever since this Bill hit your Lordships' House for First Reading, I have been inundated with advice from all over the place. I think the Minister has held two, if not three, meetings on the Bill in my presence. Outside organisations are consistently giving me advice. Needless to say, I agree with some of the advice and not with the other, but that is beside the point—the advice is there.

The noble Lord, Lord Kirkwood, wants to set up a new committee, a child support advisory committee, to give yet more specialist advice on the orders that will flow from time to time from this Bill. He made reference to the SSAC—the Social Security Advisory Committee—which already exists. I also noted the 10th report of the Select Committee in another place. My reaction is that it is one thing to extend the remit of the SSAC but quite another to set up a new and specialised committee. In this case, it is so specialised that half the time it will not be needed. There will be erratic need for advice to be given, as and when orders are proposed.

Another small, niggling point is that there is a provision in the rules governing the SSAC that, in normal circumstances, any order that flows from a Bill within six months of Royal Assent does not have to be referred to it unless the Secretary of State feels that there is a particular and peculiar need. I do not see that provision in this set of amendments, but I could have missed it.

The other thing is that of course I recognise that there may be occasions when it is necessary to override the SSAC and for the Secretary of State to do things so fast that there is not time to refer things to the committee, whether that is the committee that the noble Lord, Lord Kirkwood, wants, or the SSAC. I recognise that he has incorporated that into the formulation for his new committee; but to have nine to 11 people sitting around waiting for something to happen—I am afraid not.

3.45 pm

Baroness Hollis of Heigham: I have rather more sympathy with the push of the amendment. The SSAC does an extremely valuable job. The noble Lord is right that it normally comments on regulations after six months. The assumption is that within six months they come within the halo effect of parliamentary discussion. It is not dealing with an agency, so I would not think it appropriate to see the SSAC extending its remit to cover child support issues; they are a different sort of beast.

While it is highly desirable that the new Child Maintenance and Enforcement Commission and the new chair seek to extend their remit, particularly if the new board is going to be very tightly drawn, as I understand it probably will be, is there a reason why they cannot do it as is? In other words, does this need

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to be in the Bill? My hunch would be that this is the sort of thing on which the CMEC, being made up of good, sensible and competent people, will quickly determine whether it needs a wider circle of advice. My expectation is that it would want and need a wider circle of advice. Currently, the old Child Support Agency has the same wider circle of advice, involving groups such as Families Need Fathers. Is there any reason why it cannot be set up under the existing powers? I would be pretty unhappy about seeing such a prescriptive amendment being accepted. If my noble friend could give me the assurance that if the CMEC thinks that this is a wise move—as I would expect it to seek to do—it could do it, not just to deal with formal regulations, but to tap a wider body of opinion and views on child support as the context within which the new organisation operates and emerges.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord McKenzie of Luton): The Government are unable to accept the amendment for the reasons that I will outline. Perhaps I can start with the comments made by the noble Lord, Lord Skelmersdale, and my noble friend Lady Hollis. The noble Lord talked about the ethos of the DWP in consultation and engagement, and he expressed his view about the wide range of stakeholders around this issue with which he has had the opportunity to engage. I absolutely agree with that. Specifically in relation to the point raised by my noble friend Lady Hollis, I would have thought it would be entirely in the interests of the commission to want to have a wider stakeholder group with which to engage, perhaps on an ad hoc rather than a formalised basis, as suggested here. The DWP as the sponsoring department would similarly have its consultation with stakeholders. That is a particular reason why we do not want to accept the amendment.

The noble Lord, Lord Kirkwood, raises a fundamental point about the importance of effective scrutiny of legislation and having the appropriate body, whatever that may be, to assist in that. We honestly do not believe that the additional tier of scrutiny that the Child Support Advisory Committee would represent is necessary in this case. The noble Lord, Lord Skelmersdale, talked about the scale of issues in relation to the SSAC. Looking at its last report, the SSAC scrutinised on average 36 sets of proposed regulations. We set down in the dossier that we shared with Members who expressed an interest in this legislation the proposals for the earlier regulations that are coming through that have not yet been drafted, some of which will depend on the commission’s input. Once we are in steady state, the advice is that the commission is likely to be looking to initiate something like two sets of miscellaneous regulations per year, and for two sets of such regulations we do not want the sort of infrastructure that is proposed here, with the number of people, staff and all the costs that go with that.

The vast majority of regulations in the Bill are certainly likely to be operational—concerned with matters such as how cases will transfer to the new scheme, the formal content of notices, and deadlines for information to be provided to the commission.

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The people with the expertise to scrutinise them effectively are those with detailed knowledge of the operations of the commission, including, for example, the capability of IT systems and the interaction of overall plans and strategies. It is right that the Commission, as an arm’s-length body solely focused on child maintenance issues, provides expert advice to Ministers on the policy behind the required regulations and the development of the regulations themselves.

That work will of course be subject to the overall direction and approval of the commission’s board, including the non-executive directors. The non-executive directors are in place to provide impartial, expert and professional advice that reflects a diverse range of fields. In this way, they will have a key role in shaping the regulations. The chair of the commission, with approval of the Secretary of State, will appoint those non-executive directors with the appropriate knowledge and expertise. These will be people who are particularly able to take these regulation issues forward.

As we debated last week, it is clear that the board has the opportunity to set up committees and sub-committees so that it can draw in particular expertise for particular areas if it needs to. Nor should we forget the scrutiny of regulations already in place; not only the process by which there is an obligation to consult when regulations are being drafted, but also the role of the Merits Committee of your Lordships’ House. For that variety of reasons, this is an unnecessary proposal. It will not add sufficient value, and could be quite costly and cumbersome. There are better ways to continue to engage with stakeholders to ensure that the CMEC is engaged in a real success.

Lord Kirkwood of Kirkhope: I am not surprised by any of that, but I am disappointed. Two things strike me about what the Minister said. If he really believes—and I do not—that, in steady state, two regulations will be promoted by the commission a year, then there is an argument for adding it to the existing Social Security Advisory Committee. Its reason for not accepting the responsibility is that it would be too much work. Both these positions cannot be right. It may be that the committee is just ducking it because it is hard pressed, and it is. But if we are to have a steady state of two extra sets of regulations, it seems obvious to invite the committee to take this branch of semi-benefit law under its umbrella. It currently cannot because of how it is constituted and the provisions of its set-up. I will go away and contemplate, and perhaps talk to the Social Security Advisory Committee again. If its members could be persuaded that it would only be two sets of regulations a year, we might have a deal. I shall pursue that as a result of what the Minister has said.

The point that the Minister is missing, which the Committee must not miss, is that the value of what the Social Security Advisory Committee currently does is that it consults and publishes in the public domain. On websites, people can see what it says in detail. Any amount of stakeholder consultation that the commission does—which I encourage it to do,

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and we are all agreed that people are willing to help it—will be between it and the bilaterals, or the close communities that they serve. If this piece of public policy is going to take root and win public support, it should be much more broadly and widely promoted. The Social Security Advisory Committee, or some child support advisory committee, would be, in my view, an important part of that. On the basis that I will go away and think carefully about what the Minister has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Lord McKenzie of Luton moved Amendment No. 68:

(a) make any amendment to Schedule 1 that appears to the Secretary of State to be necessary or expedient in consequence of the Commission ceasing to be a Crown body;(b) provide for the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246) to apply, subject to such modifications and exceptions as may be prescribed, as if, on the Commission ceasing to be a Crown body, there were a transfer of an undertaking or business which is a relevant transfer.

On Question, amendment agreed to.

Clause 11 agreed to.

Clause 12 [Transfer of child support functions]:

Lord Skelmersdale moved Amendment No. 69:

The noble Lord said: I tabled Amendment No. 69 to prompt the Minister to offer me some clarification. I want to know why the Bill exempts the functions of the Secretary of State under Section 46 and not under Section 6 of the Child Support Act 1991. Section 46 is entitled “Failure to comply with obligations imposed

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by section 6” and those two sections are rather like love and marriage in the song, which go together like a horse and carriage.

Clause 12(2)(b) appears to reserve functions under Section 46 to the Secretary of State. Clearly, it is up to him to deem it right for people to be sanctioned by having their benefit withdrawn or reduced. I remember a discussion about this on the Welfare Reform Bill—no doubt the Minister does too—with which we had a happy time last year. This initial decision is taken under the powers of Section 6, not Section 46. Why is Section 6 not covered by Clause 12(2)(b). It may be that I have caused a slight fluttering in the doocot behind the Minister, but there must, I am sure, be a satisfactory explanation.

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