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7 Feb 2008 : Column GC665
(8) In this section “disposition” does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise.
(9) This section does not apply to a disposition made before the coming into force of section (Orders preventing avoidance) of the Child Maintenance and Other Payments Act 2008.
On Question, amendment agreed to.
Clause 23 [Administrative liability orders]:
Lord McKenzie of Luton moved Amendments Nos. 176 and 177:
On Question, amendments agreed to.
Clause 23, as amended, agreed to.
Clause 25 [Disqualification for holding or obtaining travel authorisation]:
Lord Goodlad moved Amendment No. 178:
The noble Lord said: Amendment No. 178 stands in my name and those of my noble friends Lord Skelmersdale and Lady Verma and the noble and learned Lord, Lord Morris of Aberavon.
Clause 25 enables the Child Maintenance and Enforcement Commission to make, without reference to the courts, an order under which a person who fails to fulfil their child maintenance commitments is disqualified from holding a travel authorisation—in other words, a passport or identity card. It is also possible that under Clause 8, which allows CMEC to contract out functions, decisions about passports and identity cards may in due course be made by any employee of a business or organisation. In contrast to these provisions, CMEC must apply to a magistrates’ court to obtain a curfew order or one disqualifying a person from holding or obtaining a driving licence.
The freedom to leave and return to one’s country is recognised as a fundamental right in international law. In its report of 13 December last year, your Lordships’ Select Committee on the Constitution expressed the view that a civil servant or private sector employee should not be given the power to remove a person’s travel documents without reference to a court.
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The Minister said in correspondence that most people require travel documents such as a passport on relatively few occasions during the year, such as when taking foreign holidays. Clause 25 states that CMEC, and presumably any employee of one of its sub-contractors in the private sector, must consider before imposing an order whether the non-resident parent needs a travel authorisation in order to earn a living. But there is no mention in the Bill of family illness overseas or, indeed, any other consideration. It was the unanimous view of your Lordships’ Select Committee that confiscating someone’s travel documents is a sufficiently serious step that it should be overseen by the courts.
Under the Bill, an order would not take effect until the end of the 28-day period in which it can be appealed, so the argument that these provisions would enable swifter and more effective enforcement does not run. Indeed, the Select Committee said that it is not obvious that the scheme of the Bill—an administrative decision followed by a right of appeal with suspended effect—will meet the Government’s policy goal of avoiding an inevitably drawn-out court process any better than a straightforward power for CMEC to seek an order from a magistrates’ court.
The amendment will be succeeded at future stages of the Bill by further technical amendments, but its purpose today is to require CMEC to apply for an order from a magistrates’ court which is consistent with the judicial oversight envisaged by other sanctions in the Bill. I respectfully submit it for the consideration of the Committee and I beg to move.
Lord Skelmersdale: I am grateful to my noble friend Lord Goodlad for tabling this amendment, to which I and my noble friend Lady Verma were only too happy to add our names. Although the withdrawal of a passport can be an effective measure to force non-resident parents to stop neglecting their obligations, it should not be within the competence of the commission to decide on that matter as the Bill proposes. It had not occurred to me that this administrative arrangement might extend to what my noble friend referred to as a “sub-contractor”, and I wonder if he is correct in that. I am sure the Minister will be able to tell us.
The commission is to be set up to enforce parents’ financial obligations to maintain their children. Therefore the administrative liability orders being introduced by the Bill are, on the whole, fully understandable. However, withdrawal of a travel order authorisation goes beyond affecting a person’s financial status and interferes with one of his civil rights: the freedom to travel abroad. That remains the main argument for leaving the decision about a passport withdrawal, along with a driving licence ban and a curfew, to the courts. The reason to do so is that all administrative decisions should have strict, limited and accurate legal bases, while any interference in civil freedoms—of which the liberty to travel is one—should be undertaken under the rules of law which are more complex than a simple administrative scheme would allow. For example, orders are to be
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I am grateful for the receipt of a copy of the Minister’s letter to the Clerk of your Lordships’ Select Committee on the Constitution. It was extremely helpful, although I sent an email to my noble and learned friend Lord Lyell, who the Minister knows is very interested in this matter, to say, “Methinks the Minister protesteth too much”, and this is why. I am surprised, to start with, that in paragraph four the Minister stated that the commission is well placed to make both that judgment and that of the appropriateness of passport surrender. Why? Since the Child Support Agency performed badly and on many occasions was unable to collect information about the absent parent’s financial status, there is a serious threat that the new body will have neither the adequate capacity to collect the details of the person’s life nor the competence to assess in what ways a passport ban would affect his or her life.
Elsewhere, the letter comments that CMEC staff will have additional training before handling cases. Gosh, will they not need it? They need it just to prepare a case for the courts, but in a case that will almost inevitably be appealed from the word go, they will need it even more. I would assume—again, the Minister will correct me if I am wrong—that that training would be of a lesser sort, as the Bill envisages administrative action.
A point that has concerned all the committees that have examined the matter has been the assumption that a passport authorisation withdrawal has fewer consequences than a driving license withdrawal and can therefore remain an administrative decision, as the letter states in paragraph nine. That is simply an unjustified generalisation. It must be thoroughly recognized in what way a travel ban is going to affect the passport surrenderer’s everyday life, in exactly the same way as the court does before ordering driving licence withdrawal. That is the main reason why the decision on a passport ban, as well as the driving licence, should belong to the courts.
Moreover, the argument presented to defend the position that the passport and driving licence bans have different results is what I believe is called argumento dicto simpliciter, a misleading deduction when the examples given—such as that the passport ban is allegedly not affecting third parties—are used to lead to one general conclusion, when in fact they are too trivial so to do. Opposite examples proving that third parties can be affected by the travel ban exist and can be given, such as going abroad not only for holidays but for serious medical treatment, or sustaining other family links because one of the non-resident parents may well have family abroad—but will not be countenanced.
Paragraph seven of the report of the Select Committee on the Constitution states that the free movement of persons is strongly protected by
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Paragraph 11 of the letter explains that the main reason for introducing an administrative passport ban is to “take quicker and firmer” action against the non-resident parents for not fulfilling their obligations, whereas paragraph four, to which I have already referred, states that the withdrawal decision will not take effect until the person to be affected has time to appeal. Obviously, in those circumstances, it will defeat its very objective. Does the Minister really believe that anyone placed in the position of an administrative order for the withdrawal of a passport will not appeal? I cannot.
Paragraph 12 does not do the Minister's defence of this disgraceful proposal any good at all. Of course, tackling child poverty is one of the Government's priorities. Although that is clearly right—we have referred to it several times during the course of our debates—there is no link between the smoother flow of maintenance and introducing a passport ban, whether or not achieved administratively. Also, it is claimed in the paragraph that non-payers should understand how serious the consequences of evading their responsibilities may be, but it does not show why exactly an administrative passport ban should result in such greater awareness. The passport ban ordered by the court would just have the same effect. I am not objecting to the introduction of a passport withdrawal per se, but to the inappropriate way of achieving it.
To sum up, administrative travel authorisation withdrawal would be an exceptional way of interfering in civil rights, but I am afraid that the Government's explanations are not yet convincing enough to allow them to put this administrative modus operandi in the Bill. Unfortunately, we are in Grand Committee and neither my noble friend nor I can do anything about it at this stage. However, I observe the threat with which my noble friend concluded his speech, and am in total agreement with him.
Baroness Hollis of Heigham: There was no reference, in either of the interesting and valid points made, to proposed Section 39B(4) of the Child Support Act in the amendment:
“Before making an order under this section against a person, the Commission shall consider whether the person needs a travel authorisation in order to earn a living”.
The instances quoted by the noble Lords, Lord Goodlad and Lord Skelmersdale, might include, for example, a visit to family overseas on medical grounds or a need for urgent medical treatment and so on. Would the noble Lords be satisfied if my noble friend felt that a possible compromise might be to extend the grounds in new subsection (4) to, for example, take medical grounds into account, rather than to seek to make all such applications go through the courts?
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Lord McKenzie of Luton: I am grateful to the noble Lord, Lord Goodlad, for tabling the amendment; it was anticipated. It would prevent the commission from administratively disqualifying the non-resident parent from holding or obtaining a travel authorisation, and would require the commission to apply to the court for such an order.
While I acknowledge the concerns of Members of the Committee on this particular provision, I hope that I can convince them that the proposal in the Bill is the right way forward. First, however, I stress that the Government believe that we owe it to children who are not being financially supported to take swift and effective measures which may not always be appropriate to other forms of debt. I am sure that the whole Committee will agree that, when dealing with the hard core of non-compliant non-resident parents, the commission should be allowed to take robust action. We are firmly of the view that the threat of imminent action will be much more potent than the threat of a drawn-out court process. We believe this holds good, despite the fact that the order would not take effect until the time for appealing had expired.
In putting forward this legislation, the Government have investigated what enforcement measures international child support jurisdictions employ. As has been referred to, both the US and Australia make use of a form of administrative passport surrender or travel ban in order to encourage compliance with child maintenance payments. This was highlighted by the Work and Pensions Select Committee in their January 2005 report on the performance of the CSA, which recommended that the department further examine passport removal as a potential child support tool for use in this country. Indeed, that committee had a distinguished chair—whose name escapes me just for the moment.
Based on the experience of those other countries, we are of the view that the administrative disqualification of non-resident parents from holding or obtaining a travel authorisation will deliver fast and effective enforcement against those who have the financial means to pay child maintenance but refuse to do so. We have balanced the risks of doing this administratively with safeguards for the non-resident parent. In addition to the appeal provisions, a number of safeguards exist and have been included in the Bill. They will ensure that this measure is targeted against those who will not, as opposed to cannot, meet their financial obligations to their children.
I also emphasise that, where an appeal has been filed, the order would be stayed—as has been acknowledged—pending the hearing, determination or withdrawal of that appeal. Thus, the person affected would have the opportunity to access an independent and impartial tribunal before any civil right was directly affected by the surrender of the passport. The noble Lord, Lord Skelmersdale, asked me whether I believe that someone would appeal in every instance. I do not think that is necessarily the case; if someone acknowledges that they have the cash and the commission is intent on pursuing collection, that may just be the point at which they do what they should have done previously and cough up.
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We have heard a lot about individuals’ civil rights, but what about the rights of children to be properly maintained? What about the obligations and responsibilities of parents? We should bear in mind that if people deliberately delay paying the maintenance that is due, that could have a significant impact on the well-being of their children. The fact that it may take years—many years, in some instances—to collect the cash does not mean that there is ultimately no impact on the children. Many children may be in poverty now because that maintenance is not flowing when it should, and while collecting later may be some comfort, it does not alleviate the problem that arises in the interim.
Lord Skelmersdale: That might very well be so. We are not talking about this being the only sanction available to CMEC and therefore to the advantage of the parent with care. This is one of a range, two components of which automatically have to go through the courts first. I hope the Minister will come on to that point shortly.
Lord McKenzie of Luton: Indeed, I will come on to that. It will also be emphasised that when an appeal has been filed the order will be stayed, so the person affected will have the opportunity to access an independent and impartial tribunal. Additional safeguards include the requirement for the commission to assess the impact on the non-resident parent’s ability to earn a living prior to imposing the order.
The question of health issues was raised, such as when a family member needs to get medical support and treatment outside the country. There is no reason why that could not be taken into account in the determination of the application of this measure. It is not a requirement that the commission does this; it is a discretionary power. It does not need to be written into new Clause 39B(4) of the Child Support Act, but there is no reason why we could not think about emphasising the point. It runs right through the Bill that there is always an overriding requirement to consider the welfare of all children involved.
I stress that the commission must also assess whether the non-resident parent has wilfully refused or culpably neglected to support his or her children. That is the same test as is currently applied by the court when the CSA makes an application for the non-resident parent to be committed to prison or disqualified from driving. We are dealing with situations where the non-resident parent cannot pay. If the individual is so intent on going on holiday or travelling abroad and doing what they want to do, the remedy is in their own hands: they must pay what they should. It rests with them. It is not as though this is a restriction on anyone for life. It is very much in the hands of the non-resident parent, who should fall within the ambit of this provision only where it is clear that they can pay. All they need to do is pay and this is abrogated straight away.
Furthermore, the commission must consider the welfare of any child likely to be affected by the decision, which includes the children of the non-resident parent and members of his or her new family. In order that the commission meets its objective, we need to have a
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I realise that the Select Committee on the Constitution raised a number of concerns, and the Government have already issued their formal response. The noble Lord, Lord Skelmersdale, referred to it. In summary, we believe that administrative passport surrender will be an effective form of enforcement and deterrent for the reasons I have set out. I appreciate that the committee has posed legitimate questions about the relative importance of the individual in terms of holding a passport and the fact that such decisions are normally made by judicial determination, but I reiterate that we do not underestimate the important role a passport can play in an individual’s ability to earn a living, and the Bill makes it clear that the commission must consider that before imposing the order. We also argue that the commission is best placed, through its prior dealings with the individual, to make the decision on whether the non-resident parent has shown wilful refusal or culpable neglect to pay maintenance.
I shall expand on that. It is the commission in its dealings or lack of them with the non-resident parent that knows the history of the case, the basis of the assessment, the number of occasions when deduction from earnings orders have been defeated by someone changing their job, and the whole process by which a non-resident parent may have sought to avoid other enforcement mechanisms by prolonging his or her appeal. Under the wider range of enforcement powers, that information will be available to the commission, which will be able to make a judgment on whether the individual is intent on seeking to pay what is due or simply seeking to avoid it. It knows well, from a long track record of dealing with people who are intent on avoiding their obligations, when people are seeking to do that rather than when they cannot fulfil them.
I distinguish that because there are issues around the withdrawal of travel rights from, for example, people involved in soccer hooliganism. The court does that because the court would have been involved in the process of dealing with those people for what they have been up to prior to that. We are dealing here with a situation where the commission has been trying to deal with this individual; it knows their track record and what they have done or not done, so it is best placed to make these judgments—which, at the end of the day, are subject to a right of appeal and a process before the court. There is a balance in all of this, and that balance should rest with the right of children to be maintained by non-resident parents or parents with care. I hope noble Lords will be assured of the merits of this proposed action and feel able to withdraw the amendment.
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Lord Goodlad: I thank the Minister for the thoroughness with which he has addressed this issue both in his communications with the Committee and today. I think I can speak for other Members of the Committee in saying that, although it is outwith the terms of the amendment, we yield to no one in our desire to serve the interests of children. I hope he will accept that beyond peradventure.
We will scrutinise with great care what the Minister has said and whether or not it serves the interests of children in terms of the policy of the Bill to have an administrative decision followed by a right of appeal with suspensory effect, which meets the policy goal of avoiding an inevitably drawn-out court process, rather than a straightforward power for CMEC to seek an order from a magistrates’ court. That is an extremely important point and we will look at it carefully. I beg leave to withdraw the amendment.
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