Third Report
Child Maintenance and Other Payments Bill
Introduction
1. Parts 1 to 3 of this bill are concerned with
child support maintenance: the bill establishes a Child Maintenance
and Enforcement Commission to take over from the Child Support
Agency the functions of calculating and enforcing the payment
of child support maintenance under the Child Support Act 1991
("the 1991 Act") (Part 1); it also transfers those functions
to the Commission (Part 2), and confers additional powers of enforcement
on the Commission and amends the rules governing the calculation
of child support (Part 3). Part 4 is unrelated: it provides for
lump sum payments to those who suffer, or the dependants of those
who before their death had suffered, from diffuse mesothelioma;
and it provides for the recovery of amounts representing such
payments, and other payments made to sufferers of asbestos-related
diseases or their dependants, from certain compensation payments
they receive in respect of such diseases.
2. The Department for Work and Pensions (DWP)
has prepared a memorandum for the Committee explaining the delegated
powers conferred, or amplified, by the bill, printed at Appendix
1.
3. We wish to comment on the following provisions.
Objectives and functions of the Commission —
clauses 3(2) and 11(2)
4. The main objective of the new Commission is
described in clause 2 by reference to 'children who live apart
from one or both of their parents', and two of the Commission's
principal duties (imposed by clauses 4 and 5) are expressed in
relation to such children. Moreover, the Secretary of State has
power, by negative regulations under clause 3(2), to confer functions
on the Commission in addition to those imposed or transferred
by the bill, where he thinks it necessary or expedient to do so
in relation to any of the Commission's objectives. This is a wide
power whose scope is defined only by the Commission's objectives;
and its 'main objective' is itself susceptible to being supplemented
by regulations under clause 11. If the bill cannot itself limit
the range of additional functions which might be conferred by
secondary legislation, we consider that the power under clause
3(2) should be subject to affirmative resolution.
DEFINITION OF "CHILD LIVING APART FROM A PARENT"
— CLAUSE 11(2)
5. Clause 11(2) enables the Secretary of State,
again by negative regulations, to make provision about when a
child is, or is not, to be regarded for any purpose of Part 1
as living apart from a parent. The categories of child to which
the Commission's main objective applies can therefore be adjusted
by regulations. In paragraphs 34 and 35 of its memorandum, the
department explains that it expects the power to be used for 'complex
cases' (such as children at boarding school, or with multiple
residences) and that the regulations will tend to contain technical
details. But it is not clear how the notion of 'a child living
apart…' is intended to interact with the notion of a 'qualifying
child' for whom child support arrangements may be made under the
1991 Act, where that and the related expressions 'non-resident
parent' and 'person with care' are all defined in section 3 of
the Act itself, with the power to make regulations confined to
the margins of those definitions. While it will undoubtedly be
expedient to provide in regulations for less common circumstances
and for cases of some complexity, we consider that this power
feeds through to the core of the Commission's main statutory purpose
and so ought to attract the affirmative procedure.
Fees — clause 6
6. Clause 6 enables the Secretary of State to
make regulations about the charging of fees by the Commission.
Subsection (2) particularises the matters about which the regulations
may make provision, including who is liable to pay. Section 47(2)
of the 1991 Act itself limits the power to require payment of
such fees to payment by the non-resident parent, the person with
care or (in Scotland) the child concerned and we consider that
this bill should similarly specify who may be made liable to pay
any fee charged, although an affirmative power to add to categories
specified in the bill would not be inappropriate.
Monitoring of curfew orders — clause 26
(new section 39O(4))
7. Clause 26 inserts new sections in the 1991
Act to enable the Commission to apply to a court for a 'curfew
order', requiring a person to remain at a specified place for
specified periods. Extensive provision about curfew orders is
made in the primary legislation itself (new sections 39J to 39Q)
, and the powers in new sections 39R and 39S to make supplementary
provision in regulations are subject to affirmative procedure
on first exercise. New section 39O (page 26 of the bill) provides
for the monitoring of compliance with a curfew order, and it is
envisaged that the person responsible for monitoring compliance
should be able to exercise some discretion in permitting departure
from its strict terms. Subsection (4) enables provision to be
made in negative procedure regulations about the nature and duration
of absences which may be allowed, notwithstanding the curfew order,
and the conditions which may be imposed for the purpose.
8. In paragraph 132 of its memorandum, the department
justifies the negative procedure on the ground that the regulations
will contain matters of detail. But, in our opinion, a curfew
order is a restraint on personal liberty of the same kind as may
be imposed under section 37 of the Powers of Criminal Courts (Sentencing)
Act 2000, which contains no provision equivalent to that of subsection
(4) of new section 39O; so there is no existing provision under
the criminal justice regime on which regulations under subsection
(4) might be modelled. We consider that, although the balance
of provision for curfew orders between the bill and regulations
is appropriate, the first exercise of the power in new section
39O(4) should be subject to the affirmative procedure.
Transfer of arrears — clause 32 (new section
49A)
9. Clause 32 inserts a new section 49A into the
1991 Act to enable the Commission to transfer outstanding child
maintenance debt to a third party. New section 49A(3)(a) makes
provision for regulations specifying the circumstances in which
debt can be transferred. At paragraph 150 of their memorandum,
the department says that "it is intended that the permission
of the parent with care to whom the debt is ultimately owed will
be sought before any debt is sold". We consider that a
limitation by reference to such permission should appear on the
face of the bill unless the Government can satisfy the House that
the power is justified in its present unrestricted terms.
10. New section 49A(4)(b) further enables the
Secretary of State, by regulations subject to the negative procedure,
to allow the Commission to prevent the collection of debt by the
purchaser in circumstances specified in the regulations. Paragraph
151 of the memorandum explains that the regulations "will
provide for a company to cease enforcement action if the safety
or welfare of the parent with care or relevant child was at risk."
We draw this power to the attention of the House because it
could potentially be exercised in a way which might allow the
Commission to prevent a third party who had bought outstanding
child maintenance debt from collecting that debt.
Pilot schemes — clause 38
11. Clause 38 introduces a new section 51A into
the 1991 Act to enable provision made in any regulations made
under that Act to be 'piloted' in particular areas or for particular
categories of persons, including those selected on a sampling
basis. The provision made here is almost identical to that made
by section 28 of the Child Support, Pensions and Social Security
Act 2000, save that the power there was narrower, being confined
only to the 'piloting' of changes made to the 1991 Act by the
2000 Act. The power in section 28 is exercisable subject to affirmative
procedure, and in its memorandum to the Committee in 2000, the
department (then DSS) observed that the affirmative procedure
was appropriate given the novel nature of the provision which
might be made in exercise of the power. The power in section 28
(which is to be repealed by the bill) is not yet in force and
so its exercise remains 'novel'. The memorandum on this occasion
does not refer to the power conferred by new section 51A, so there
is no explanation for the department's apparent change of view.
We consider that the affirmative procedure remains appropriate
for the introduction of pilot schemes.
Mesothelioma: lump sum payments: conditions of
entitlement — clause 44
12. Clause 43 provides for lump sum payments
to be made to a person suffering from diffuse mesothelioma, or
to the dependant of such a person who has died. Unlike the provision
for lump sum payments in similar cases of asbestosis-related illness
or death under the Pneumoconiosis (Workers' Compensation) Act
1979 ("the 1979 Act"), there is no requirement for the
sufferer to have established entitlement to industrial injuries
disablement benefit in relation to the disease (on the footing
that it is work-related). The amounts of the payments under clause
43 are to be prescribed in regulations subject (as under the 1979
Act) to the affirmative procedure. However, while the conditions
of entitlement to a payment are provided for in clause 44, it
is apparent that, of the three entitlement conditions which apply
to sufferers (subsection (1)) and their dependants (subsection
(2)), the second and third are in each case entirely dependent
on regulations, and the first can be supplemented by regulations
under subsections (3)(e) and (4)(d).
13. Although it is the case (as stated in paragraph
173 of the memorandum) that most regulations to be made under
the 1979 Act are subject to negative procedure, the 1979 Act itself
sets out the conditions of entitlement as respects both sufferers
and dependants, whereas clause 44 leaves much to regulations.
In view of the change of balance here between the bill and
regulations, we consider that the first exercise of the powers
in clause 44 to make regulations should be subject to affirmative
resolution.
Consequential provision — clause 54
14. Clause 54(2)(a) confers a Henry VIII power
to amend or repeal primary legislation by negative regulations
in consequence of provision in the bill. In paragraph 194 of its
memorandum, the department suggests that the negative procedure
is appropriate in this instance 'because it reflects the general
practice for such clauses', and it cites section 319(2) of the
Pensions Act 2004 as a precedent. In fact, the exercise of that
power is (by virtue of section 316(2)(q) of that Act) subject
to affirmative procedure. Nevertheless, the power here is confined
to making consequential amendments - it does not extend to incidental
or supplemental amendments in Acts, where the House would usually
expect to have the opportunity to approve the provision in question.
There is however a precedent for the negative procedure for a
similar power in section 27 of the Welfare Reform Act 2007, which
we found acceptable (5th Report, Session 2006-07, paragraph 37)
and we are satisfied that the negative procedure is not inappropriate
in the present case.
Employment Bill [HL]
15. A memorandum from the Department for Business,
Enterprise and Regulatory Reform, printed at Appendix 2, explains
the delegated powers in this bill: at clauses 3(2) (new section
207A(6)), 9(1) (new section 19A(6)) and 20. Clause 4 imposes a
limit on an existing power. There is nothing in any of the delegations
which we wish to draw to the attention of the House.
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