Tuesday, 29 January 2008.
The Committee met at half-past three.
[The Deputy Chairman of Committees (BARONESS FOOKES) in the Chair.]
Child Maintenance and Other Payments Bill
I make the usual statement: if there is a Division in the Chamber, I shall adjourn the Committee immediately and it will resume after 10 minutes.
1: Before Clause 1, insert the following new Clause—
“Objectives of the Act
(1) The primary objectives of this Act are—
(a) to affirm the right of children to be maintained by their parents;(b) to affirm the obligation of parents to maintain their children;(c) to affirm the right of persons with care of children to receive financial support in respect of those children from non-resident parents; and(d) to ensure that children share in the standard of living of both parents whether or not they are living with both or either of them.(2) The four primary objectives listed in subsection (1) are supported by the following subsidiary objectives—
(a) to ensure that obligations to birth and adopted children are not extinguished by obligations to stepchildren;(b) to provide that the level of financial support to be provided by non-resident parents for their children is to be determined according to their capacity to provide financial support;(c) to provide legislatively fixed standards in accordance with which the level of financial support to be provided by non-resident parents for their children should be determined;(d) to enable persons with care of children to receive support in respect of those children from parents without the need to resort to court proceedings; and(e) to provide a system whereby child maintenance payments can be collected by the Commission, and paid by the Commission to those entitled to the money.(3) It is the intention of Parliament that this Act should be construed, to the greatest extent possible with the attainment of its objects—
(a) to permit parents to make private arrangements for the financial support of their children; and(b) to limit interference with the privacy of persons.”
The noble Lord said: It is my pleasure to open this important Grand Committee stage of the consideration of the Child Maintenance and Other Payments Bill. I shall speak also to associated Amendment No. 3 in my name.
I am advised that I have to declare that I no longer have any personal, financial, residual or other interest in the proceedings of the Bill. Those colleagues who were present at Second Reading know that I made an application to seek to join the board of the Child Maintenance and Enforcement Commission. The bad news is that the application was rejected; the good news is that was done very quickly. The application was treated well within the 12-week response time for applications to the Child Support Agency; indeed, I think that it was done in about 12 minutes, rather than 12 weeks. I therefore look forward to the publication of the quarterly statistics tomorrow, and hope that all applications to the Child Support Agency in future are dealt with with such dispatch. For the avoidance of doubt, I say that I have no other pecuniary interest in the proceedings of the Bill.
Being a little obsessive about this subject, I may stray into making long contributions that try your Lordships’ patience, but I shall try not to do. I am pleased that we have been allowed to give slightly wider consideration than Second Reading allows not of what the commission is set up to achieve, because that is what Clauses 1 and 2 are about, but, having regard to the background of this troubled public policy area during 17 years—I have been involved in most of it—of where we have been, how we got here and what Parliament is trying to do. The Bill is clear: it is using as a template the Child Support Act 1991, which was configured for an entirely different time. As parliamentarians, we should at the outset make the important point to the department that this is a pretty rotten way to generate legislation. Pouring 38 clauses back into an Act that was in gestation in the department in the mid- or late-1980s to deal with entirely different circumstances and trying to back-amend it and ignore the 1995 and 2000 legislation do not add up to transparency in the legislation-making process and make it harder for people, unless they are specialist lawyers, to follow exactly what is going on in this important area of public policy.
We are left with that as a device. It is a shame, because we have had plenty of time to anticipate this legislation. I would have much preferred, as I think would all of us as parliamentarians, a free-standing Act which made sense in its own right. However, this is what we have; we have to make sense of the shape of the legislation that faces us in this Committee; and we will try our best.
The past 17 years have been a demonstration of policy failure. It is irrelevant whose fault that is, but I have not recently come across anyone interested in this area who thinks it has been anything other than a pretty abject failure. This is the third time of asking; we are trying to do the same thing in 2008 that we did unsuccessfully in 2000. We are focusing almost exclusively on the operational side of what is being done and the services that are available to parents with care and non-resident parents. I ask myself—as should the Committee, before it goes any further—whether that is sensible.
The Bill is about maintenance and enforcement and it sets up a commission, but is it about children? There are some amendments from colleagues in other parts of the Committee, and there is a sense that we should be thinking more about children and less about operational efficiency—not that operational efficiency is not the key to getting some of this policy right. We do not think enough about children. The new clause seeks to redress that by saying what Parliament wants. Clauses 1 and 2 state clearly the objectives of the commission we are creating, but there is a step before that, which is about what public policy should be and what we as parliamentarians want the commission to do as a policy objective, not just as operational requirements.
I have had this argument with Ministers before, and they always say, “We don’t do policy in statutes in our system”. I do not think that is true. There is evidence in the child support legislation that there are circumstances where policies are set out, and discretion and administrative decisions are made on that basis. It is necessary to have a policy statement at the beginning of the Bill to make it more effective in the future. The department may say that it is too late to change now, but that is not the Committee’s fault; the Bill has been knocking around the department for two or three years in one form or another. It is a carryover Bill and has had twice the amount of time that is normally allocated to Bills in the parliamentary process, so there is no excuse—there has been time to look at other ways of doing this. The department will say that it is about securing operational efficiency and I agree, but it should not be about efficiency to the exclusion of the policy and everything else.
I shall start by quoting an important article by Professor Nick Wikeley entitled Child Support Reform—Throwing the Baby out with the Bathwater?. He came to this conclusion about the failure of the policy to date and the potential failure that may be in the Bill we are considering:
“The failure of the Bill to engage with the real task of hammering out ‘basic principles’ disguises a reluctance on the part of politicians and policy makers to grapple with the underlying purpose of child maintenance”.
That is my case in this amendment, and it needs to be addressed. There is a real risk that the statistics, the bureaucratic objectives and the Secretary of State’s tasks and targets will dictate the policy in the Bill, particularly with regard to the abolition of Section 6.
Colleagues who have studied the Bill will know that we are going to take the policy forward by encouraging people to make their own decision about whether they stay in the system and use the services of the new commission. The sum and substance of the weight of the backlog will almost certainly lead the commissioner designate and his new board to think very carefully about how many people they want to admit to the new system because they are struggling to deal with the numbers already in it.
There are lots of statistics around and I could go on at length, but when I was reading up on all this over Christmas, one or two figures struck me as ones that we should bear in mind all through our proceedings in Committee. A Commons Answer given on 1 October 2007 obviously took its figures from the quarterly statistics issued last September. They show that currently some 881,300 non-resident parents are in arrears. Of those, 91,470 owe more than £10,000, while 5,440 owe £50,000 or more. We have more than 800,000 non-resident parents in arrears. If we look at that number the other way around, it means that an awful lot of parents with care are suffering from non-payment. That is the backlog which the new commission is being invited to take on in addition to a new system of assessment and calculation. It will be a good trick if the commission can manage it and I wish the staff well in their work. But if the Committee does not understand, in the course of our proceedings, that the risk of a third public policy failure is high, we are being less than honest about the reality of the situation.
The 1991 Act is not an appropriate platform and the suggestion set out in Amendment No. 1 would help in a number of ways. In plain English, it imports a clear instruction to the commission, seeks to demonstrate what Parliament thinks should happen and sets out both the primary and subsidiary objectives behind it. It is not original as it comes from the New Zealand template; I have amended it as best I can in my amateurish way to try to fit this legislation. I do not argue for a moment that it is technically competent as it stands, but the inference and clear purpose are there for all to see. I think it would help to implement this policy in a better way in the future.
I have come to the conclusion that the new clause points in the direction of a different way of administering the commission; I do not think that the Department for Work and Pensions is the right one any more. I hope that the new clause leads to serious consideration being given to the Ministry of Justice, where a lot of important mediation work is going on, some of which is working and some not. Mediation is an important part of this policy area. However, since we now have a Department for Children, Schools and Families, there is an unanswerable case that child maintenance should be delivered via that route in the future. I certainly do not think that the Department for Work and Pensions has dealt with this area particularly well. I exonerate the noble Baroness, Lady Hollis of Heigham, from that charge; I am not just being nice to her because she is sitting across from me. If I provoke her, she will attack me, and I would be unlikely to survive. But leadership in that department has been virtually incoherent for the simple reason that, since 1997, we have had eight or nine Secretaries of State—a new head of department roughly every 15 months. Each one has had to deal with a big department in which child maintenance represents the outer extreme. That is not the fault of the professionals or the agency, but it is a matter of fact. In my political opinion, it has not had the attention it deserves. There is a worry, too, reflected in my new clause, that this will be even more arm’s length than being at the back end of a big department that changes its leadership every 15 months.
There is a strong case for taking a new look and for Parliament to say that there are other ways of doing this and of brigading the policy-makers and the commission. If anyone ever had any doubt about that, they should read the National Audit Office report in 2006, House of Commons Paper 1174 entitled, Child Support Agency—Implementation of the Child Support Reforms—which was Christmas reading for me. It is a terrible document. I do not know what it looked like before the department agreed it with the National Audit Office, but it is an indictment of the CS2 reforms. One may say that this is looking backwards, but I have an American friend who often uses the phrase “it’s déjà vu all over again”—that’s the Americans for you. What will send me to my grave a very unhappy person would be ignoring what is in this report and doing the same all over again. We will get another NAO report after the operational improvement programme is finished in 2009 and there will be a Public Accounts Committee report in 2010. The objective of all this, I hope we are all agreed, is to try to get out of the place we are in and where we have been and try to make the situation better.
The Child Support Agency annual report, which was six months late because of technical difficulties with its client fund account—again for the 14th or 15th year—makes sobering reading regarding the extent of the problems. We should think again carefully about the policy and look at how in a modern sense children’s rights are much more to the fore. The UN Convention on the Rights of the Child has come on stream since 1991 when we first started to think about this. We are not doing the job properly in responding to these circumstances.
I do not want to tax the Committee but I feel strongly about this. We in the Committee would not be doing our job properly if we did not look at what is going on around us in relation to the principles in my new clause. A report was published in the Guardian on 23 January on the British Social Attitudes Survey. I commend it to colleagues. There is nothing new in it, but it is a sobering reassessment of just how volatile and chaotic—in the non-pejorative sense—family life is these days. The noble Baroness, Lady Hollis, who made a powerful Second Reading speech, made a feature of this and made me think about it. Everything she said is reflected in the survey, which takes an annual sample of 3,000 interviews conducted at length across the country by respected researchers. The report states that the survey,
“offers a picture of a fast-changing landscape of relationships and living arrangements, including partners who do not live together, unmarried, long-term cohabitees, “reconstituted families” made up of previously divorced parents and their stepchildren, and a rise in solo living”.
That is the kind of thing talked about at length. The social trends are against us. It will be harder to keep up with this churn. The hamster wheel will run faster.
The original architects of the 1991 legislation—it is easy to say this with hindsight and I was there, so I am as much to blame as anyone else—misunderstood the difficulty not just of doing the calculation but of maintaining the calculation. Coming from a benefit background, as the legislation does—wrongly, I now think—we are trying to keep that up week by week as families change week by week, so we never catch up. The 881,300 non-resident parents who are in arrears will take 16 years, according to my pocket calculator, to be reduced to zero.
That is where Amendment No. 3 comes in. It is a pretty amateur effort; it was meant to provide a sunset clause; it is not, but it will be by the next stage. The Minister helpfully sent us a letter about the amount that it was costing to raise £1 of income maintenance and projected that to 2016. It will take until then, if nothing else happens, if the new rules come in and if the operational improvement plan works—a very important qualification—to clear the backlog. We are ignoring David Henshaw’s sensible advice to draw a line and get a residual body to bear down on the debt as a separate and freestanding enterprise. That completely destroys the realistic chance of the new body ever getting off the bit.
I have two other references to recent newspaper reports. One was in the Guardian on Friday 7 December about a report done by the Liverpool Victoria—I may have referred to it at Second Reading—about the cost of bringing up children. The cooker pressure is increasing intensely in the cost of raising families. The researchers were quite taken aback by the extent to which an average family had to pay more: they reckoned, at today's prices, it cost £24.30 a day to look after a modern child accurately and well. They forecast that costs could rise by 42 per cent between now and 2012 to an average of £12,500 per year for each child. So the financial pressures under which the clients whom the Bill seeks to serve are increasing.
The third press report to which I refer is a report in the Guardian on 10 December which talked about some important work commissioned by the Ministry of Justice. The University of East Anglia researched conciliation in the courtroom. It found that it helped quite a lot with getting fathers to stay in touch with their children, but it did nothing to reconcile the parents. The researchers suggest that even more cases would have gone back to court, but for the fact that many parents were,
“too battle-weary to face the emotional and financial costs of further proceedings”.
There is a lot of work being done in the Ministry of Justice, and I wonder whether we are taking proper advantage of it.
This is a very important part of our proceedings. I want to make a case, as Amendment No. 1 does, for looking at a much wider objective. I want to enshrine a right that goes beyond what we are asking the commission to do, which merely continues the rights to maintenance. I want to put rights and entitlements in the hands of children and parents in the way set out in the new clause. If we do, that will give the new commission, which will be an arm's-length administrator and much less amenable to future parliamentary scrutiny, a clear idea. If the Bill is to be successful, it needs to be much more focused on the interests, rights and entitlements of children. I beg to move.
I believe that over the next few days and weeks the Committee is in for an unusual treat in that we have in front of us the Minister who is responsible for this whole area of child maintenance. He is not the first and he will not be the last. I hesitate to say that because I know that he does not like his job to be referred to as temporary. In his closing remarks, the noble Lord, Lord Kirkwood, did not appear to take account of the announcement which the Minister made at Second Reading and which is the subject of the next group of amendments—that is, he will remain in charge with the exception that under him will be a chief executive and a chairman of this new commission. Of course, he will not be responsible for day-to-day operations but then he never has been. However, he will be responsible for direction and guidance and for seeing that things go as the policy directs.
The other reason why the Committee is in for a treat is that over the past few years the Minister has shown himself in my presence to be very careful to listen and, once he has made up his mind that the arguments are correct, to act upon them. Until now, he has had to go through two other Ministers: the Secretary of State of the time and the Minister responsible for the Bill, who, in the two cases that I am thinking of, as he will remember, were Members of another place. Here, we have direct access and I look forward to it. The Minister says from a sitting position that he is not sure that he is, but I do not know why not. He is, for once, in a position of great power and I am all for it.
It was Maria in “The Sound of Music” who said:
“Let’s start at the very beginning, a very good place to start”.
The noble Lord, Lord Kirkwood, almost started like that because in his opening paragraphs he referred to what we are all talking about—that is, children. I shall come to the fact that children and their maintenance in the widest terms already exist in the legislation. However, it seems that the noble Lord has sought to go one better and put down a shopping list not only of what subjects are in the Bill but of what he would like to see in it. He described this as a “policy framework”, if I may use shorthand—I see him nodding. Not being very familiar with my thought processes, the noble Lord probably does not know that I am on record more than once as saying that I do not believe in shopping lists, nor purpose or objective clauses, even if they are basically correct. That may or may not be because many years ago I was, with different responsibilities, in the Minister’s position. I am sure that this first debate will help our discussion on the Bill, not least because it behoves us to remember some basic facts on child maintenance that get totally forgotten, or at least ignored,.
We are not really starting from here. However, we are, as they say, where we are. The Bill is legislation by reference, and I agree with the noble Lord, Lord Kirkwood, that it would be helpful to our debates to remember that this is an amending Bill. It amends the Child Support Act 1991 and, in part, the Child Support, Pensions and Social Security Act 2000.
The 1991 Act, unlike the 2000 Act, in neither of which did I take any part, starts with three guiding principles. These seem to be perfectly adequate. Section 1(1) of the 1991 Act—I see the Minister has it in front of him—states:
“For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him”.
Until now, “maintenance” has meant cash maintenance. I note the amendments tabled by the noble Lord, Lord Northbourne, and the two noble Baronesses which, quite correctly, seek to widen the meaning of the word “maintenance”. I shall discuss this when we reach the appropriate stage.
Subsection (2) goes on to say:
“For the purposes of this Act, an absent parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act”.
Subsection (3) states that,
“it shall be the duty of the absent parent”—
with whom we are chiefly but not entirely concerned—
“with respect to whom the assessment was made to make those payments”.
If that does not set out the background to what we are to discuss over the next few days and weeks, quite honestly, I do not know what does.
The Act goes on in Section 2 to put the welfare of children at the centre of what the Act—now Acts—seeks to achieve. That it did not achieve its objectives is not the fault of those first two sections. I therefore ask what is in the amendment of the noble Lord, Lord Kirkwood, that we need to add to the duties and general principles of this composite Act. After all, the first three parts of the Bill, with their accompanying schedules, plus Part 5, are purely and simply amending provisions.
As for the details, subsection (1)(a) in the amendment prompted me to think that we will not be considering children’s parents but children’s natural parents—and both of them at that. I remember children I have met who automatically call their stepmother or stepfather “mum and dad”. So, again, we should be talking about natural parents.
Going on with my guiding philosophy of an amending Bill, I fail to see the need for subsection (1)(c) in the amendment, which is a repetition of Section 1(3) of the 1991 Act. I do not understand what the noble Lord is getting at with subsection (1)(d). Even after listening to him quite carefully, I still do not understand. For example, what position would he like to see in regard to adopted children or children in care? It seems that neither group is to be covered by CMEC, although the Minister will correct me if I am wrong.
On subsection (2) in the amendment, I accept that paragraphs (b) and (c) are what Schedule 4 is all about, but I find it difficult to accept paragraph (a). The obligations to birth children may not be extinguished but, under Schedule 4, they can be reduced quite substantially, as we will be discussing later. Paragraph (d) fails to take into account divorce proceedings. I do not know what proportion of children qualify as a result of divorce because, as I understand it, the CSA does not collect such figures—again, if I am wrong, I am sure the Minister will correct me—but it must be a fair number. In any event, the Bill currently anticipates that child maintenance as a result of a divorce settlement will be binding for at least one year. As later amendments will show, I hope to persuade the Minister that this is far too short a period. I could go on but I feel that I would be doing the Grand Committee no favours by taking the Minister any further than the noble Lord, Lord Kirkwood, has already done.
With this amendment is grouped Amendment No. 3, which, as the noble Lord said, is an attempt at a sunset clause. It is not yet right but he assures us that, come the next stage of the Bill, he will put it right and be very firm on the subject. Sunset clauses are all very well if used judiciously. If, however, one is setting up a new organisation, as we are here, I do not believe that giving it only four or five years of life is the least bit sensible. Even with the transfer of staff, which we shall discuss in a moment, it will take a couple of years to bed down. That is inevitable with a new organisation, but it will give very little time before new legislation is required under this amendment.
I am sure that with all his parliamentary experience the noble Lord, Lord Kirkwood, must know that legislative opportunities do not grow on trees. A slot in the programme has to be fought for against competition from all other departments of state, and there is no guarantee of getting one in any particular year. What, then, is the noble Lord’s solution to continuing child maintenance after 2015 if the Government of the day cannot find time for replacement legislation? I do not want to be unduly alarmist but all sorts of things might need to be enacted in 2014. Then, come the following 1 January, there will be no modern system of child maintenance by absent parents and, presumably, as the CSA is killed off by this Bill, we will not even be able to go back to the old system under the CSA.
To sum up, I do not believe that this group of amendments adds anything to what we already have in the one and a third Acts plus this Bill.
I like objective clauses. We have normally failed to get them into a Bill but, where they have been put in, such as in the Education Act, they are enormously useful. I am not sure that the noble Lord, Lord Kirkwood, has this one entirely right, and I do not suggest that it is, but he asked why the previous two Child Support Acts have failed and why this one is going to fail, as I suspect it will. Perhaps we are not looking in the right place. The commission or its predecessors are effectively debt collectors. We all hate debts but we hate them much more if we think that they are unjust—that is, if we do not believe that they are based on a reasonable obligation. I suggest that the Government have to go right back to the beginning and make up their mind about what they, and the nation, believe to be the duties of parenthood and then start to educate people so that they understand that, if they have a child, whether carelessly or otherwise, they have certain relatively clearly defined responsibilities.
I support the intention of the noble Lords, Lord Kirkwood and Lord Addington, to explore the purposes of the Bill with their proposed new clause, which puts the child right at the centre.
Noble Lords will be aware that the church has always believed that the best environment for children is one where the parents love each other and support each other in the parenting. Of course, it taxes many of us in society and the church in particular—the clergy and the lay leaders—when we see couples’ marriages break down. However, with an increasing number of parents separating, it is essential that we get right the support and encouragement that we give parents in finding a workable solution in the best interests of the child.
It is a shame that the Bill is not more comprehensive in that it does not make a clear statement about the focus of these reforms—that is, to improve outcomes and the well-being of children. In focusing only on the mechanisms of child maintenance, surely it deals with only one part of the package which is needed to help parents to work together to help children to flourish. I would support a move to put the needs of the child right at the start of the Bill to remind parents and agencies what this is trying to achieve. I heard what the noble Lord, Lord Skelmersdale, said about shopping lists but I still support the noble Lord, Lord Kirkwood.
I thank the noble Lord, Lord Kirkwood, for tabling the amendment, because it was a good place to start our deliberations on the Bill, although we had more of a Second Reading speech than a Committee speech. I am grateful for the forensic analysis of the noble Lord, Lord Skelmersdale, much of which I agreed with.
Let me try to deal with why we have structured the Bill as we have. As the noble Lord, Lord Kirkwood, will be aware, the amendments are unlikely to have a significant practical effect. The operation of the commission and the statutory maintenance system would continue to be governed by the objectives set out in Clause 2, together with the functions and rules laid out in the rest of the Bill.
I believe that the noble Lord’s intention is, as he said, to propose a different starting place for our Bill—an entirely new piece of legislation centred around the legal right of children to maintenance and an obligation on parents to pay. Although I understand the argument behind that proposal, we should be clear that our objectives in this reform programme are more pragmatic. We do not apologise for that.
The noble Lord, Lord Kirkwood, asked: is this about children? Of course it is about children; it is all about children; it is all about making sure that we have more effective maintenance arrangements in place so that more money can be garnered for more children. That is exactly what the Bill is about. That is very clear from the objectives of the commission set down in Clause 2(1):
“The Commission's main objective is to maximise the number of those children who live apart from one or both of their parents for whom effective maintenance arrangements are in place”.
That is exactly what it is about.
Several noble Lords were saying that this should be a wider Bill about the welfare of children and parental responsibilities. Of course those are important issues. In a sense, the Bill is only one part of the package, but we will debate later how those wider issues are being picked up and addressed.
Our primary focus, building on experience from the past under different Administrations, has been to find practical solutions to getting maintenance flowing. Whatever the Bill’s philosophical wraparound, if it does not work in practice, it will not deliver for children. That is what we are about. We are, for example, establishing a new body to administer the child maintenance system and building a new information and support service. I should say to the noble Lord, Lord Skelmersdale, that the fact that it will be a Crown NDPB does not fundamentally change the distance of the arm’s-length arrangement with government, but I know that we will debate that under later amendments. We are about delivering a simplified assessment process and strengthening our enforcement powers.
That approach is in line with the comprehensive review of the child maintenance system by Sir David Henshaw. He did not consider the structure of the legislation a problem and made no recommendations about the rights of children. The two key policy issues that he identified were the difficulties created by compulsion—that is, the link with benefit to which the noble Lord, Lord Kirkwood, referred—and the lack of an incentive to comply. We are dealing directly with both of those by removing the compulsory link with the benefits system and dramatically increasing the level of the maintenance disregard.
However, I can assure the noble Lord that we are working with colleagues across government on joining up both policy and delivery. I think that the noble Lord, Lord Northbourne, was interested in that point and I will say a little more about it later. One option that we can consider is the consolidation of child maintenance legislation, and with that a fresh look at the interventions with other provisions, such as the Children’s Act. Of course we will need to be an integrated part of the crucial work of the Department for Children, Schools and Families.
Let me deal specifically with the challenge that we were wrong to start by amending the 1991 Act. Again, that was a practical decision. Two schemes are embodied in that Act, the current scheme and the old scheme. Most of the new measures in the Bill will apply to both schemes and will come into force in stages, so they will continue to run for a period. This makes it technically very difficult to introduce a new Act. Indeed, we have learnt the lessons of the past about big bang reform. However, we are planning to consolidate legislation for transparency once a single scheme is in force, and I believe that that is the right approach.
Returning to the Bill, I hope that the noble Lord recognises that now is not the right time to attempt a more radical redrafting of the legislation. His Amendment No. 3 proposes terminating the existing arrangements, specifically the existence of the Child Maintenance and Enforcement Commission, in 2015. The noble Lord, Lord Skelmersdale, spoke to this amendment. This would leave the child maintenance system with no delivery organisation. Given that we have yet to see the reforms outlined in this Bill implemented and that the Government have no proposals for a successor body, I do not believe it would be right to include such a provision in primary legislation.
I want to say a few words about the rights of children. Making legislation which is expressed in terms of children having a right to maintenance would not make the law clearer or more effective. Certainty, I suggest, comes from the law creating a statutory scheme that sets out how the duty of ensuring that non-resident parents pay maintenance is calculated and enforced, and from the creation of a new body with clear objectives and duties. Since 2002, the Government have put in place a substantial body of legislation that serves to promote the well-being of children. This reflects the principles of the UNCRC and creates an effective national framework to support positive outcomes, the Children Act 2004 being the most important of these. Further, the Children’s Plan, published in December last year, builds on those reforms and sets out the Government’s ambition for improving the lives of children and young people over the next decade. But this Bill is about effective maintenance arrangements, making sure that the cash flows to children.
The noble Lord, Lord Kirkwood, ranged over a number of issues around arrears, residuary bodies and so forth. We shall pick each of those up in the course of our deliberations so I will not deal with them more specifically now. The noble Lord, Lord Northbourne, asked why the previous schemes have failed and was a little pessimistic about the prospects for this one. I disagree with him on the latter point. There are a number of reasons which we could debate at length, such as the complexity of the IT systems, which were not up to scratch, and the effectiveness or otherwise of the enforcement powers, but in essence the agency was originally set up to draw back benefits for the Government. The lack of justice in that was perceived and people did not want to comply. This is different because it focuses on getting more children out of poverty, which I think will make a real difference.
I have spoken for long enough on this amendment, and I ask the noble Lord to withdraw it.
The noble Lord has just said that the original intention of the 1991 Act was—again I am paraphrasing—to claw back benefits, and to a great extent he is probably correct. But as I said earlier, we are where we are. The noble Lord gave that as the reason why absent parents in particular have taken against the CSA and the formulas it operates. But he has also said that this scheme is new and different. How is he going to persuade those recalcitrant absent parents that that is indeed the case?
That is a rather big question which I think we will pick up as we go through our deliberations, but I made the point for a number of reasons. We are increasing the benefit disregard from nil in respect of old scheme cases to £20, from £10 to £20 for current scheme cases, with a further increase in the disregard of up to £40 in 2010. That will be a significant incentive for parents to comply and engage with the process. However, there are other reasons as well. There is an obligation in the Bill for the commission actively to promote the taking up of financial responsibilities to children. That is part of the process, as is making sure that people who are still not prepared to comply pay—there are assessment issues about getting data directly from HMRC rather than having to rely on the non-resident parent, which has in the past made it very difficult for the system to work. At the end of the day, we must make it very clear that if people will not comply there will be robust enforcement powers. Effective systems in place will make the situation better and we will be more able to ensure that the enforcement powers are used to the full. That was a collection of reasons, many of which we will deliberate on further.
I do not know the intricacies of this system. It is not something that I have specialised in; but it is very distressing to have a situation where there is a declaration at the beginning of the existing legislation, as the noble Lord confirmed. My noble friend said what the purpose of the existing legislation is, yet some 881,300 absent parents are in default. As we all know this is a scandal—an absolute disgrace and a complete failure of all of us.
Are the Government and my noble friend right—after all he was in government and sees the problems as the Minister sees them—to turn down the idea of a more detailed declaratory clause at the beginning of the Bill? It would make the point that the Bill is about children and their welfare, not just about money getting to children, and the fact that they must share in the standard of living of both parents, whether they are present or not. Is that not a good idea? We should not close our minds to that. I have always had a great respect for the noble Lord, Lord Kirkwood—he was an MP in the Borders of Scotland. He knows a lot about this subject in detail. A bit of imagination in the Bill would remind us that it is about children as a whole, not just about money flowing to them. This business should not be just about cash. It has got to be about what absent parents do for their children.
Perhaps the Minister could think a little harder about this. The amendment may not be proposing the right declaratory clause—it has already been suggested that it probably is not—but it is not necessarily a thoroughly bad idea.
I agree with the noble Baroness that the framework she has just described is precisely what DCSF is engaged in. It is looking at supporting parents and promoting the welfare of children across a whole range of issues; but it is right, as part of that Government-wide approach, to be clear that we should have arrangements in place to encourage parents on a voluntary basis to enter into financial arrangements for the maintenance of their children and to put in place a statutory system for those who cannot reach agreement. If we move the focus too much away from what is, in a sense, a nuts-and-bolts Bill, for which we do not apologise, we run the risk of overloading the commission in what we are asking it to do and losing focus on that very key issue. At the end of the day, whatever other policies are wrapped around it—and I entirely agree that they are hugely important—if we cannot get the nuts and bolts of a maintenance system operating, we are going to deny prospects for thousands of children. That is what happened in the past and we need to improve on it. That is why we are right to focus the Bill as we have.
I am grateful for colleagues’ contributions. It has been an important debate. I am not confident that the flow and quality of the management information available to the commission will enable Parliament, looking just at quarterly statistics, to be sure that the consideration of children as a priority of the commission will be able to be monitored effectively or guaranteed. The amendment, inadequately drafted as it may be, seeks merely to give weight to the objectives and the importance attached to the people who run the commission, who will be under enormous operational pressure to reduce the case load at every conceivable turn, which is not the object of the exercise. The object is more broadly drawn.
I reject the assertion that there will be operational pressure on the commission to reduce the case load. There are two parts to the scheme, as I mentioned earlier. The first is to encourage voluntary arrangements, which is part—just part—of the agenda to encourage parental responsibility; the second is to make sure that an effective statutory system is in place. An information and support service, which does not exist at the moment, will be built. There will be a framework agreement which the DWP as the sponsoring department will impose on the commission. It will contain targets with which the commission will have to comply. It is not right to portray the commission as wanting simply to narrow down that in which it is engaged and get away with as little as it can. That will not be permitted under the scheme—we should be clear about that.
I do not know whether the management information that would enable us to judge that will be available. I am not seeking to impute bad faith to the professionals who operate the commission. If the CMEC scheme becomes understood, and is known to be efficient and to provide a good service to the public, it will increase the number of people who use it. If that happens, I do not see how the commission can conceivably deal with the legacy backlog. It cannot do both things at the same time. The policy is posited on losing 400,000 cases, because people will do their own thing. I do not know how robust that figure is, but I do not have anything better to offer. If the commission is not careful, it will end up trying to reduce case load so that it can live from day to day. At its core, the amendment, inadequately drafted as it may be, would achieve two things. We need to start asking children more—nobody in this process asks children. Let us bear in mind that children aged 12 in Scotland can make applications in their own right. Nobody goes anywhere near the children to ask whether they want the Child Support Agency’s support, and whether it helps their parents, their quality of life and their life chances. The amendment would shift the weight of that situation, so that more priority is given to consideration of children, as well as achieving the operational efficiency that we all want.
We have many things to discuss and we should move on, but, before we do so, will the noble Lord explain how simply writing into legislation an affirmation of the obligation of parents to maintain their children would change anything that he has just described?
I think it changes the quality of decisions made. It will also affect some cases going through the courts. We have had Kehoe coming up to the House of Lords, which found on a split decision. I was just reading the very interesting obiter dicta in that case by the noble and learned Baroness, Lady Hale, where she was arguing the case for child entitlement to be a focus of the law, so that the law could be understood a bit better in discretionary situations where administrative decisions are being taken.
I am not saying that the commission would get up in the morning to do anything substantially different, but the atmosphere and culture in which the organisation worked would change positively. The absence of some priority given to children is part of the policy failure that we have seen in the past. I make no greater or lesser claim than that. I have wearied colleagues; I know that I would be chancing my arm if I pushed this any further. I am grateful for the response; I will look carefully at what the Minister has said and think more on it. We have had a good debate; I am grateful for colleagues’ contributions. I will go away to reflect on that and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [The Child Maintenance and Enforcement Commission]:
2: Clause 1, page 1, line 4, leave out “a body corporate” and insert “an Executive Agency under the control of the Secretary of State”
The noble Lord said: This is another important aspect of the Bill that takes us into the question of whether we should have a body corporate, an executive agency under the control of the Secretary of State, or anything else. I shall speak also to Amendments Nos. 4, 5, 14 and 70. I hope that this will give us a chance to look at some of the questions arising from the David Henshaw report. It was a seminal piece of work that made a big difference, certainly to the way in which I looked at some of the issues that he was asked to study. Some of the other amendments, which I shall touch on briefly, deal with the operational improvement plan, the residuary body idea, staffing levels in the commission in future and professional staff rights to transfer.
I will try to make this as expeditious as I can. The first question that needs to be asked is: are we are creating a clean break? If he said anything, David Henshaw argued a compelling case that child support should be delivered by a very different business. He also considered that, given the existing agency’s operating model and organisational culture, which we have seen since it was set up, it would be impossible for it to,
“morph successfully into that new way of working”.
I was attracted by that and interested in his view.
He advocated a clean-break approach. We talked under the previous amendment about the importance of the drag factor and legacy issues. He considered that there were two areas of activity. One was engaged in making a rebranded new organisation efficient and fit for purpose, dealing with customers who could be dealt with where cases could be kept up to date in real time from day one. That was a very different operation and organisation; it required different skills, organisational cultures and performance management from a residuary body that did nothing but chase down debts with the resolve, rigour and professionalism necessary to deal with the big backlogs.
The Government quietly dropped Sir David's plans for two separate good-book, bad-book organisations. Instead, as I understand it, CMEC will have responsibility for legacy issues as well as new arrangements. Some questions arise about that. What is the Minister's answer to the charge that this is not a fresh start but a makeover? It will be impossible to argue anything else. The computers are the same; the contracts are the same; the chief executive is the same; the locations of business will be the same. Where is that fresh start, if that is what the Government claim it is?
What considerations will the new commission inherit in terms of the agency's debt book? We know that £1.5 billion is regarded as collectable to date. That is a lot of money and could make a lot of difference to a lot of families. What is the commission’s priority in terms of its objectives on chasing that debt? What is the new operating model? There is some concern that a lot of decisions seem to be being made before the board has even been put together. I noticed last week that Mr Plaskitt has ordered a new computer system for resource management at a cost of £1 million. The new board and commission will not have looked at any of that, so my fear is that when the new board meets for the first time, there will be nothing much left for it to decide in terms of the shape and scope of the business’s operating model.
Another point raised by Henshaw in connection with the new operating model concerns contracting out. Although I am not advocating this, Henshaw was very clear that the new commission would head towards what is essentially a commissioning body. We understand that the commission will make up its own mind on how to proceed once it is in place but we know that the current agency has been trialling the use of private debt collectors. I think that a target under the operational improvement plan was to collect £100 million of debt over three years. I have looked at the statistics but may not have understood them properly. However, looking at page 12 of the Child Support Agency report, I see that to date the debt collected via private collection vehicles has amounted to only £1.6 million, which is a long way short of £100 million. I also have some concerns about Vertex and how it is managing to deal with the clerical cases at CSA Bolton. Again, the Henshaw report had something to say about that, but I wonder how the new commission will deal with them.
Other questions also arise in relation to cost. I believe that the government amendments in this group will be moved by the Minister, but the only thing that I have seen is the Second Reading speech. If I understand it correctly, the idea is now to move back to a Crown non-departmental public body. Is that just because we forgot about the VAT? I understand that a Crown NDPB does not pay VAT but, left to its own devices, an NDPB would. There was no provision for the £140 million of VAT, so the Government had to change their plans at the last minute and turn it into a Crown organisation. However, that is only a rumour and I have nothing more than that to go on. I shall be very pleased to be corrected but, if that was even a factor in making a change at the last minute, it shows a worrying level of incompetence. It would be very good to have that rumour squashed, and I expect the Minister will do so.
There are other questions of cost relating to NDPBs and so on. I know that the commission will have to work within its budget but it is very difficult to work out exactly how much more expensive a commission of this kind will be. Because it is at arm’s length, there will obviously be location costs and new contract costs. We tried to work out the differences between a variety of models and the Government eventually decided to go for a Crown NDPB. I think that the Committee is entitled to be given some idea, plus or minus £50 million, of what its effect will be in the long run on the Budget and the public purse.
Finally, in relation to Amendment No. 2, I have a whole list of concerns about the commission operating at arm’s length from the Government. We will come to this later in Clause 10 but I am particularly interested in how the Government will use the directions and guidance powers to keep the commission in line. I do not know whether there have been any discussions about how the powers will be used but they certainly mean that ministerial control over how the commission decides to fulfil its main objectives will be lessened in the future.
I also have concerns about child poverty—a matter that we will come to later. It has to be acknowledged that the Government have done an enormous amount of work in that respect. Child poverty is to be a number one priority in things such as the public service agreements that have just been published in the Pre-Budget Statement. If the body is to operate at arm’s length, I would like an assurance that child poverty will be a high priority for it when it is up and running and that Ministers are confident they will not lose control over one of the key instruments of policy during the remainder of this CSR period.
As to the operational improvement plan, it is a pity that we are not having this debate on Thursday. We will receive the quarterly statistics tomorrow and the noble Lord, Lord Skelmersdale, and I will fall on them with great relish over breakfast and look at some of the targets. The operational improvement plan is flat. There have been some successes, which you would expect with £120 million being spent on developing the policy. It will come to an end in 2009 and I am worried that it will fail or be only partially successful. This relates to Amendment No. 4.
I give credit to the Ministers. The noble Baroness, Lady Hollis, was a key player in this and she was right to make the decision in 2000-01 not to take CSCS cases on to CS2 because the system would not have coped with it. There is an analogy here in taking a new system into operation without the operational improvement plan being completed over its programme timeline, but it had achieved the ambitious targets set out for it in the original document. I do not believe it will be complete by March 2009, although I think we will make progress. I hope we do.
There may be a case for delaying the implementation of the commission until the operational improvement plan has delivered every last one of its objectives. Apart from anything else, that will deal with some of the legacy issues and give the new organisation a fighting chance of survival once it starts up. However, the noble Lord, Lord Skelmersdale, and I will use our ingenuity to make sure that the quarterly statistics are made available to the Committee, in whatever guise, within the rules of order in future amendments.
The residuary body was a Henshaw idea and, from the way he argued for it, it certainly has some merit. I do not understand why one minute he was deep in the department getting advice from people who know what they are doing and being left to make a clear report on a residuary body, and then, a few short months later, the department turns its face against any such thing. It puzzles me why there should be such a change in such a short space of time.
Amendments Nos. 14 and 70 concern staffing levels. The professional staff within the agency do a first-class job. They have been messed around a great deal—the uncertainty has not helped them—and they will welcome the move to a Crown NDPB. But if the move is only to get the VAT fixed in the first three years and we then go back to being a non-Crown NDPB, they will be less enamoured with that. I beg to move.
We oppose the amendments to which the noble Lord, Lord Kirkwood, has spoken and prefer government Amendments Nos. 8 to 13, 17 to 22 and 68. We shall oppose Clause 13 standing part of the Bill and bring forward Amendments Nos. 71, 72, 208 and 209.
Let me begin by talking about the important government amendments within this group. As I made clear at Second Reading, it is the Government’s intention that the Child Maintenance and Enforcement Commission be given Crown status. This group of amendments will give effect to this. The staff of the Child Support Agency are essential to the success of our reforms and are supportive of the changes we are introducing. However, it has become increasingly clear that they have deep-seated concerns about the loss of their Civil Service status. Under the current draft of the Bill this would be lost as, on transfer to the new commission, they would become public servants.
As I made clear at Second Reading, we want the agency’s staff to look forward to, not to worry about, the launch of the commission. As a result, we have decided to make a relatively simple change and turn CMEC into a Crown NDPB, ensuring that staff will continue to be civil servants. There are also some accounting and financial advantages to that move. The noble Lord, Lord Kirkwood, asked about VAT. It is certainly true that a Crown NDPB has the prospect of VAT recoveries, which an executive NDPB would not. For government, it is a net nil, if one looks at it in aggregate.
This is not a substantive change to the governance arrangements for the commission. The new organisation remains a non-departmental public body led by an independent board and operating at arm’s length from Ministers. The new status is provided for by the amendment to paragraph 22 of Schedule 1. The amendment stipulates that the functions of the commission are to be carried out on behalf of the Crown. It is similar to legislation for other Crown bodies such as the Health and Safety Executive.
A number of other amendments are consequential to this change. For example, as staff will remain civil servants and their employer remains the Crown, there is no need to apply the TUPE regulations to protect terms and conditions and continuity of employment. As a result, we no longer need Clause 13 and propose its removal, which matches the proposal from the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Verma. Instead, we have brought forward a minor amendment to Clause 14, which will enable any employment rights and liabilities that need to transfer to the commission as the body with day-to-day responsibility for the staff to do so under a transfer scheme.
Amendment No. 70, also to Clause 13 and tabled by the noble Lords, Lord Kirkwood and Lord Addington, would ensure that professional staff in the commission continued to have access to vacancies and promotions across the Civil Service. As the commission’s staff will now be civil servants, I hope that noble Lords will agree that the amendment is unnecessary: staff will continue to have the same rights as now.
I return to the government amendments. We have also made a number of consequential changes to Schedule 1, which are needed to recognise that the staff of the commission will now be civil servants and that there is a role for the Minister responsible for the Civil Service in approving future terms and conditions. We have also removed the paragraph that provides staff with exemption from liability. As is standard practice in Crown bodies, including the CSA, staff will be indemnified by the Crown.
It is possible that, after a period of time, the advantages of Crown status will begin to recede. Given this, we intend to review the status of the commission after three years. Government amendments contain a new clause that would make it a legislative requirement. If such a review concludes that Crown status is no longer necessary, the clause provides an order-making power to make this change, including any necessary consequential amendments. We also make the relevant consequential amendments to Clause 52, making it clear that this will be subject to the affirmative procedure.
I urge noble Lords to accept the amendments that would introduce Crown status and those that are consequential. I was about to turn to the amendments of the noble Lord, Lord Kirkwood, but I think that the noble Lord, Lord Skelmersdale, may want to speak before I respond to them.
I have never been one to refuse an invitation, especially one produced like that. Before I start, for the avoidance of doubt I do not intend to have breakfast with the noble Lord, Lord Kirkwood. Even if we had the same reading matter, we probably would not have the same cereal.
The Minister has just explained a large group of amendments which I find extremely difficult to disentangle and debate. The noble Lord gives the impression—I hope it is no more and that this is not fact—that Her Majesty’s Government have a time agenda and have attempted to speed up the Committee stage of this Bill. As the debate on the last amendment showed, this Committee will not allow scrutiny to be sacrificed in the apparent hurry to get this Bill passed and on to the statute book. With such a large grouping, I can only hypothesise that these amendments have been scrambled together so that we may talk about the structure and composition of the commission.
Many of the amendments could almost be described as drafting amendments, although clearly they have the effect he has set out, which is that the staff of the commission will remain civil servants for the foreseeable future. One rather wonders why the noble Lord has taken a power in the Bill to get away with that and take the staff outside the Civil Service, which he has just said that he has done.
On whether Clause 13 should stand part of the Bill, I was rather nonplussed to discover that I had been pre-empted by the Minister, who got his name in before me even though I suspect that I tabled the Motion earlier. But I am well aware that that is the form in this House, so I do not complain particularly about it; I just comment. I originally proposed that Clause 13 should no longer stand part of the Bill because I wanted the noble Lord to respond to my concern that if the Bill makes provision for CSA employees to be transferred lock, stock and barrel, how will CMEC have a hope of being different from the CSA? The noble Lord, Lord Kirkwood, would probably agree with me on that point. Surely the same employees will inevitably bring with them the baggage of their former employment roles and duties, and thus the new CMEC, no matter what its new structure and intentions, will—to use the word of the noble Lord, Lord Kirkwood—morph back into that which came before it, and that which this Bill is expressly attempting to replace.
On Amendment No. 2, not only will CMEC have the staff, it will have the same computer system and the same CEO as the CSA. In private discussion over the past three weeks or so the Minister has assured me that the computer system is now up and running to a standard that he and I would expect. It would be extremely helpful if he could now confirm that publicly.
Another thing that we need to discover—and amendments to do this in more detail have been tabled—is the Henshaw report.
[The Sitting was suspended for a Division in the House from 4.53 to 5.03 pm.]
I cannot say that I was interrupted in full flood because I speak somewhat slowly, but perhaps I may use the expression “full exudation”. I was saying that CMEC will have the same staff, the same computer system and the same CSO as the CSA. The Minister needs to convince us that it really will be different in practice, which I am afraid—so far as I am concerned, anyway—he has not achieved so far.
One of the things that appears to be different now is that the Henshaw report—which is probably the point at which I left my remarks—envisaged quite large-scale contracting out of some of CMEC’s services. From what I have been reading as background to the Bill, Stephen Geraghty believes that is unlikely to happen, as he told the Select Committee of another place recently. Is it right that a body with net operating costs of more than £500 million in public money, dealing with around 2 million customers in a very sensitive area of policy, currently handling more than £6 billion in annual receipts and likely to be engaged in robust enforcement action, should have considerable autonomy from Ministers in its operating practice and policy? I heard the Minister, in response to one of the questions I put under the previous amendment, saying that in effect there was no difference between a non-departmental public agency and the procedure originally proposed in the Bill. I hope I have got that right. I am finding this difficult to grasp.
I hope what I said was that, as originally proposed, there would be an executive NDPB. The amendments now propose that there should be a Crown NDPB, but we still end up with an NDPB that is as arm’s-length from government as was originally envisaged. There are some differences, particularly around employment and the civil servant status of staff as well as some concerning accounting and finance, and each of those means that the body is distinct from just being an agency of the department, such as the CSA is now.
I understand that, but it was always intended that there should be a chairman and a chief executive, so from most practical points of view—I think I am right in understanding this from what the Minister has said—there is no difference. I understand that there is difference in the treatment of VAT, which he has just mentioned, and in employment law, but beyond that I cannot see that there is really very much difference. Have I still got it wrong?
I am not particularly worried about how the CSA is currently organised because it has a shorter life, as the noble Lord, Lord Kirkwood, might have put in his sunset clause. As I understand it, between two and three years is the proposal at the moment; in other words, it will come to a grinding halt somewhere in the financial period 2010-11. Is that correct?
We are getting into a bit of a dialogue here. Nothing comes to a grinding halt. The CSA will cease to be key operationally when there is a transfer of functions to the commission. Lots of things then follow on from that. When we get to 2010 we will get the new basis of assessment, but the function currently carried out by the CSA will move to the commission much earlier than that, possibly in July this year. It will be under the commission banner—obviously there are branding issues around that—and will take forward both the current issues and the development of the new system.
That is very helpful. The CSA does not quite come to a grinding halt as late as I thought, but much earlier.
I understood the Minister to say that the main reason for making CMEC a Crown body was because of the wishes of the staff. I hope that that means that the Crown status will be sufficient to retain talented staff. If not, the whole thing will be somewhat obviated.
The noble Lord, Lord Kirkwood, produced a couple of amendments that I have great difficulty with. Amendment No. 4 appears to mean that the Bill cannot be commenced until the operational improvement plan for the CSA has been completed, or, as the amendment says, “achieved”. When I first saw it I thought it was a probing amendment to ascertain where the operational improvement plan, instigated by Mr Geraghty, had got to and whether it applied to CMEC as much as to the CSA. Again, perhaps we will get an answer to that from the Minister.
I do not believe, though, that if we finish our debates on the right and fair use of sanctions—some of which, as later amendments show, are in contention—we should delay the commencement of the Bill any longer than strictly necessary, having regard to the parliamentary timetable. We know already that the staff are due to be transferred from the CSA to CMEC, but I cannot at this moment see that the Bill will require any more or any fewer of them. “Will the staff level complement go up or down?” is a rough, rapid translation of what I have just said. Were we to end up with more tribunals, for example, that would probably mean extra staff. However, I anticipate that they would be extra-curricular with regard to CMEC, so would not fit into the amendment.
Some activities, such as debt collection and the advisory service, are to be outsourced to private sector firms such as Ventura. I am grateful to the Minister for advising me of that latter arrangement. It makes sense, but it has not been explained exactly what Ventura is to do. It would not be fair to ask exactly what is in the contract, but I hope that by the time we finish Committee we will know at least what the intentions are of using Ventura. I hope that how to maintain the tripartite relationship between separated parents and children will be part of its remit. Indeed, I have an amendment later on to that effect.
Amendment No. 14 is in this group. We know already that staff are due to be transferred wholesale from the CSA to CMEC, but I cannot at this moment see that the Bill will require—I apologise, that is a repetition of what I just said. The Minister has been generous in stopping after explaining his group of amendments before going on to comment on those of the noble Lord, Lord Kirkwood, so I must not outstay my welcome. I would be grateful to receive as many answers to my questions as he feels he can usefully give me at the moment.
I have spoken to the government amendments and indicated previously that we would oppose the amendments tabled by the noble Lord, Lord Kirkwood. His Amendment No. 2 would see the commission operating as an executive agency under the control of the Secretary of State. Effectively, that would mean the continuation of the Child Support Agency. We believe that a more fundamental change is needed. There have already been several attempts to reform the CSA, which have failed. We believe that the move to a new organisation, operating under a new governance structure, will help provide a break with the past and build a platform for the future.
The change in governance is facilitated by the break with the benefit system. The child maintenance system will no longer be a guardian of benefit expenditure and so there is no need to keep the organisation close to central government. The commission will be concerned with establishing financial arrangements between two individuals. Given the personal and sensitive nature of this work, we consider an arm’s-length relationship with Ministers, as provided by an NDPB, is appropriate.
As an NDPB, the commission will have its own legal status, distinct from its sponsor department, and be led by an independent board. The board will be focused entirely on delivering a successful child maintenance system and will have the operational autonomy to make the changes it thinks appropriate. Within an executive agency there is not as great an opportunity for that single-minded focus. The most senior leaders of an executive agency are part of the leadership team of the entire department. They cannot always be focused on one key area of delivery, such as child maintenance.
Amendment No. 4 proposes that we do not move to the new governance structure until the Child Support Agency’s operational improvement plan has met its targets and objectives. I agree that the successful delivery of the plan is crucial to the success of our reforms, providing a stable platform on which the commission can build. I understand why it may seem beneficial to wait until the plan—in particular, the forthcoming IT changes—has been fully delivered before handing responsibility for the child maintenance system to the new commission. However, we believe that that would not be the right approach.
I shall answer the point made by the noble Lord, Lord Skelmersdale, about the IT system. I think that the discussion we had was about the delivery of a major upgrade to the system called PR1. As I understand it, that is still on track to be put in place towards the end of March. That is quite key to helping the business model under which the CSA and, at least initially, CMEC will operate. It is still being tested extensively.
It is important to recognise that the operational improvement plan was designed prior to the comprehensive reforms that will be brought in by the Bill. Although the benefits that the plan will bring remain relevant, it does not incorporate the key building blocks of the new child maintenance system, such as the removal of compulsion, new enforcement powers and, ultimately, the new approach to assessment. If we were to delay a handover to the commission, we would risk delaying those changes.
We believe that it is right to establish the commission and to give it responsibility for the remainder of the plan as soon as possible. That will allow for the development of an integrated change programme that includes the new measures enabled by the Bill. We believe that will facilitate the fundamental reforms we want and will help us maximise the number of effective arrangements as quickly as possible.
Amendment No. 5 proposes that the Child Support Agency continues to manage cases under the existing schemes and to have responsibility for outstanding debt. The amendment suggests that that arrangement continues until 2010. That approach has certain attractions; in particular, it would have provided the new commissioning body with the opportunity of a completely clean break from the legacy of the Child Support Agency.
We have two principal concerns, however. First, we do not believe that that approach would be the best use of resources. Instead of the new organisation building on the existing Child Support Agency, it would have to start from scratch. That would no doubt lead to significant duplication: a strong leadership team, for example, would be needed in both organisations. We would also be in the difficult position of having two organisations, with potentially different goals, competing for the same limited finances, and we could not flexibly deploy resources according to overall need, resulting in staff, IT and contracts in two chimneys.
Secondly, we want to introduce changes to the child maintenance system as quickly as possible, and our reforms will do that. By the end of the next financial year, for example, we will have removed compulsion, extended the maintenance disregard and introduced new enforcement powers, and those changes are all powers of the existing schemes. If a residuary body were managing the existing schemes, the new organisation would have no part in the implementation of those crucial reforms, and we did not think that that would be right. Linked to that, we were concerned that two organisations would lead to an incoherent experience for clients. The interplay between the different child maintenance schemes is complicated enough without adding organisational barriers.
After careful consideration, therefore, we decided to give responsibility for all aspects of the child maintenance system to the Child Maintenance and Enforcement Commission. The commission will work to a single set of objectives, allowing the process of change to be as seamless as possible for clients and enabling existing skills, knowledge and experience to be utilised to best effect.
Amendment No. 14 proposes that the commission must ensure that an appropriate level of staff is maintained to fulfil its functions. I recognise the underlying concern behind the amendment. Appropriate staffing levels are crucial to the delivery of an effective service, and decisions on headcount should be taken only on the basis of the strongest possible evidence and the most rigorous business planning. The Bill already requires the Commission to act in that way. Clause 3 requires the commission to exercise its functions in a way that is both efficient and effective. The commission could not exercise its functions effectively with insufficient staff and would be failing in its duty if it did not secure the resources necessary to maintain appropriate staffing levels.
I shall try to pick up on some of the points that have been raised. If I do not cover them all, I will happily have another go. Both noble Lords were eagerly awaiting the QSS. I am sure there will be a chance to debate the consequences of what those statistics contain later in our deliberations.
The noble Lord, Lord Kirkwood, asked about Vertex and how that was all going. He will be aware that the contract with Vertex was to cover clerical cases, which were driven by failures in the IT systems of cases that could not readily migrate from one system to another. One of the consequences of the changes to the IT systems currently proposed is that the impact of those situations should be reduced, and therefore reliance on some clerical cases being contracted out should diminish.
The noble Lord asked about the new operating model. That is down to the commission to develop; it will start with an operating model, but we want the commission’s expertise in developing that model. That touches on the point made by the noble Lord, Lord Skelmersdale, about staffing levels. Where those levels end up will depend very much on what that model is, particularly what happens on commissioning. Again, it is for the commission to develop those proposals through transition and at the end of transition.
Both noble Lords raised the point of why the new arrangements are different, and I have touched on that in part. They are genuinely different for a number of reasons. The first is that they uncouple the arrangements from the benefits system. People will no longer be compelled to use a statutory system. As part of that, parents will be encouraged to enter into voluntary arrangements but to be aware of, have access to and be supported in accessing the statutory system if they do not. That is a significant change. There are major changes around enforcement powers, and we have an information and support service, which we will debate and discuss later on, that is simply not in place at the moment. We have arm’s-length governance arrangements, which is a change; that allows the expertise of a separate board to develop the business model and to address the challenges and objectives that we are imposing upon it.
The noble Lord, Lord Skelmersdale, said that the system will be dealing with significant sums of money and commitments in an important policy area but will be entirely free from government. As the Bill identifies and the noble Lord, Lord Kirkwood, said, there are opportunities for guidance and directions to be given by the Secretary of State to the commission. We consider that directions would be few and far between; they are not necessarily the nuclear option, but they would not be a routine occurrence. We have provided in the Bill that directions would be subject to commercial confidentiality and would be tabled in Parliament. Guidance could cover a range of operational issues, small and large.
At the end of the day, the commission will secure its funding from the department and therefore the normal sort of arrangements will be in place: there will be a framework, a business plan will need to be developed and targets will be imposed on the commission so that there is a link and accountability to the Secretary of State and to Parliament. Again, we are discussing the issues of the report that has to be made in due course.
I hope that that has convinced the Committee that there is a distinction. This is a new start, although there is a prolonged transition to achieve it because we want to ensure that we do not do it in a way that means the IT systems cannot cope. We need to build that future over a few years. Having said that, I urge the noble Lord to withdraw the amendment.
The Minister gave us three distinct differences between the operations of CMEC and those of the CSA, and I readily understand them. The first of them, though, appeared to be—if I may paraphrase—that the lack of compulsion will encourage parents to use the new system. I find that very difficult to believe. I wonder what evidence he has of that.
I said that it was one of the key differences. I cited three. There are others that one could cite, particularly around the commissioning arrangements of the commission. Issues around compulsion are to do with not forcing parents with care on benefit to use the statutory system so that they will have the same choices as everyone else and be encouraged, if it is appropriate for their circumstances, to enter into voluntary arrangements. It is part of the dialogue to encourage parental responsibility. That is a significant change in approach and marks a difference with the past.
Yes. I obviously did not explain myself very well. Of course it marks a change from the past. What evidence does the Minister have that the fact that people do not have to use the new organisation will make it any more acceptable? There will still be a vast number of people who use it—and, if he is right, who choose to use it. That has to happen fairly and with a level of acceptance. The fact that people do not have to use it makes no difference to those who are using it, and indeed who have been using the CSA until now and will be carried on through the system.
The noble Lord is quite right; I accept that point. I suggest, however, that what would make the system more acceptable for those who use it would be better assessment arrangements that did not rely upon income details from people who did not want to engage with the commission and sought to avoid their responsibilities—so reliance on HMRC data will help the assessment process. The ability to update those assessments on an annual basis is a change that people will recognise makes assessments more current.
The increase in the benefit disregard, where both non-residents and parents with care will readily recognise the opportunity for more money being available to children without the state clawing it back, is another strengthened enforcement power so that, when an assessment is in place, parents with care can have the confidence that it will be properly enforced and collected. It is the collection arrangements that I think will build confidence in the new system. That sits alongside the encouragement for people to enter voluntary arrangements, underpinned by an information and support service.
I understand the philosophy of the voluntary system. I am not sure that I entirely share it, but that is a debate for another day. Given that most, or many, non-resident parents who have not lived in cohabitation with their children—in other words, they have a more casual relationship with them—have an unrealistically low estimate of what it costs to bring up a child, as all the research says they do, how confident is the Minister that by going for a voluntary arrangement one will increase the degree of responsibility between parents to come to mutually satisfactory arrangements for their children that do not translate into the non-resident parent paying far too little for what the child realistically needs?
My noble friend raises an extremely important point. Maintenance arrangements come into play in a variety of circumstances. People may have divorced or separated after living together for a long time and therefore would have a greater understanding of the resources of both partners. But with a casual relationship, I accept entirely that it would be much more difficult for the parent with care to make an assessment. A calculator or a ready reckoner will be part of the information and support service. But, in circumstances where it is clear that the parent with care has no idea of the income of the non-resident parent, an obvious choice would be to use the statutory system. An assessment would be undertaken and the arrangements that the commission would have to access HMRC data would kick in. It is a real issue and it is important that we build the information and support service on a robust basis and ensure that there is good information for parents with care around these issues.
We are all grateful to the Minister; he is generous and helps us in every way he can. However, he has not persuaded me that this is a clean break. I do not think he has convinced any of the people I have talked to who work within the professional staffing agency that this is a clean break. The test of that will be whether there is a big rebranding relaunch. If we are so confident that what we have got adds up to a fresh start, when is the launch party? Who will run it? What will be said? What is new that is going to make all the difference? It is not credible.
That is not to say that there are not improved policy positions. The Minister has mentioned some and if he could get a full disregard out of the Treasury there might be a case for having a party and being confident of making a difference. But from where we are now, if he thinks there is going to be a moment when suddenly the penny drops, the scales fall from people’s eyes and they think, “Oh, this is a new organisation”, he is not being realistic. I can think of other ways of expressing it, but I will not.
I do not think that the contract for the computer has finished development yet; it was recast in 2005 under the transformation of EDS scheme and is still going on. The contract ends in two years but I do not think they have finished developing it yet. PR1 is at least eight months late and known colloquially in the agency as “Please Run!” because it has been so delayed. It is a crucial release, as is the financial one which has also been delayed.
It was supposed to be introduced last autumn actually. However, I agree that what the Minister says is technically accurate; it was to be delivered within this financial year. I hope and pray that it will be.
But another question flows from that. April 2008 sees the finish of the CSCS contract, so who is going to run and be responsible for handling the computer platform for old cases after that? There may be a roll-on contract but it is very difficult to find out because people hide behind commercial confidentiality all the time. Perhaps the Minister can help clear up that worry.
I am sorry to be so obstinate about this, but perhaps the Minister can explain the reason for the three-year Crown NDPB. Why three years? The Minister makes a good case at first by saying this is the right format for the staff and so on, but suddenly that changes into the wrong format after three years. My spies, who are everywhere, tell me that this involves £140 million of VAT. The Minister may be right, these may be internal transactions within government, but I understand that somebody cocked up the budget. I am perfectly prepared to accept that that is not the case, if he says so, but I would expect him also to tell the truth and say whether that is a factor in financing this organisation. He is an accountant, so he should know. Is that the case? Is there a problem here? Is it why we are having a Crown NDPB only for three years?
The Minister is being generous and I hear myself shouting at him when I do not mean to. I am told that the key reason for the change from where we were previously—an NDPB in which everyone did the calculations and the policy arrangements on the basis of that; and then suddenly, without any explanation, it changed—was the fact that someone had forgotten to pay the VAT. I understand the technicalities of VAT; the Minister will know better than I do that it is dealt with by internal government transfer, so it does not add up to a big row of beans. But if the status of this body changed at this late stage for that reason, it demonstrates incompetence.
Just to make it absolutely clear, as I tried to before: it was one of the issues that caused the change of view. The noble Lord has visited the CSA, talked to staff and engaged them regarding the future—and that has been helpful and productive. I have done the same and everywhere that one has visited, almost the first question that came from staff concerned the loss of civil servant status. That was a concern around the department and whatever assurances might be given about access to job vacancies in the DWP and more widely within the Civil Service, and on access to the pension scheme and so on, there was a continuing concern by staff. Part of the deliberations was to make sure that that concern would not make it more difficult to launch the commission successfully. Yes, the VAT was one of the issues, but, frankly, a Crown NDPB was not the only route for dealing with that issue. Again I say: across government it was a net nil.
A net nil. I concede, although I want to study what the Minister said. I am pleased that he has taken the trouble to try to explain the issue. I do not understand why it has changed after three years; if it is that good, it should be a policy proposal and stand the test of time. I am told that a Crown NDPB is somehow more expensive and can operate only for three years until the matter is sorted out. I agree that the staff are a key consideration in all this and I hope that their interests are being looked after. I am happy not to press these amendments; we will have a chance to return to some of the technology questions later. I am sure that we will all benefit from studying what the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 to 5 not moved.]
Clause 1 agreed to.
[The Sitting was suspended for a Division in the House from 5.38 to 5.49 pm.]
Schedule 1 [The Commission]:
6: Schedule 1, page 45, line 9, leave out “one or more” and insert “not more than three”
The noble Baroness said: The amendments attempt to secure a little more clarity and precision in the Bill’s description of the commission. The past 10 years of child maintenance have not been beyond reproach. It is therefore essential to the well-being of Britain’s less advantaged young that CMEC does not fail. That starts with the Bill’s proposals being watertight in theory so that they may be watertight in practice.
Amendments Nos. 6 and 7 seek to discover the size of the commission. Although we are wary of there being too large a number of directors on the board of any commission, we chose as a maximum three executive directors and four non-executive directors to ensure that the Bill was consistent. Paragraph 20(2) of Schedule 1 dictates that the non-executive functions committee cannot be made up of fewer than three members of the commission. It must therefore be set out that there are three members of the commission.
Amendments Nos. 15 and 16 would ensure that any committee or sub-committee bred by the commission would not be entirely unrelated to it. While we do not advocate the committee and the commission having the same membership, as it would inhibit originality of thought and lead to a dangerously entrenched membership, an element of continuity between the two bodies is important. We hope that the amendment would help ensure that any committee became a working arm of the commission. We must not waste valuable resources and threaten the success of the Bill by allowing any margin for inefficient and ineffective disputes. If Her Majesty's Government are keen to realise joined-up government, we should deliver that practice at all levels. I beg to move.
I thank the noble Baroness for the spirit in which she moved the amendment. I agree that we must do everything that we can to ensure that CMEC succeeds. The amendments seek to examine and ratify particular aspects of the governance structure that we have proposed for the commission.
As has been explained, Amendments Nos. 6 and 7 would limit the number of executive directors appointed to the board of the commission to a maximum of three, and the number of non-executive directors appointed to a maximum of four. That would limit board membership to nine, including the chair and commissioner.
We have deliberately chosen not to specify the size of the board absolutely, which is consistent with the constitution of other NDPBs such as the Pensions Regulator and the Pension Protection Fund, which do not have a board maximum set in statute. Given the level of change expected in the commission as the reforms are introduced and take effect, the commission itself will be best placed to determine the most effective board size—in other words, the members of the board—to meet the statutory responsibilities for which it is accountable to Parliament. Similarly, the decision whether to have committees and sub-committees, and what the membership of such committees should be, should be a decision for the board alone.
The commission remains responsible for ensuring that its statutory functions are exercised in the manner prescribed in legislation. To support the commission in its ability to delegate functions as it sees best, we have provided that the board may form a committee for any purpose and that, if it chooses, it may delegate any of its functions to it in addition to any member of the board or member of staff. In giving the board the ability to create committees for any purpose, we also believe that it is important that it is given the ability to determine the membership of such committees. We have therefore provided that committees can include individuals who are not members of staff, which enables the commission to draw on as wide a body of expertise as possible. For example, it is possible to envisage a committee with responsibility for policy development that might include stakeholders such as one-parent families, or that the audit committee might include an employee of the NAO.
Amendments Nos. 15 and 16 would require that a member of the commission—in other words, a member of the board—must serve on every committee. While we might expect that to be the case, depending on the number of committees and sub-committees that might need to be established, it could be impractical. As we have established an independent board to make the best operational decisions, we believe that we should leave the composition of committees to the board. However, regardless of the committee structure, the board will remain accountable for the overall performance of the commission and for the attainment of its objectives. On the basis of that explanation, I hope that the noble Baroness will feel able to withdraw her amendment.
I thank the Minister for his considerations. It would be useful to probe a little further into the size the Minister envisages for the committee. There must be a limit to how big or small it will be.
Turning to Amendments Nos. 15 and 16, if we are going to encourage the continuity of a programme, we shall need some sort of continuity in the membership of the board. The amendments are probing in nature to ask about the size of the committee.
On the latter point, one could envisage that it would normally be the case that at least one member of the board would serve on a committee or sub-committee, but if we were to preclude the alternative we might rule out situations where perhaps a minor technical issue needed to be addressed or outside expertise needed to be available to take forward a particular policy development. All that is entirely appropriate. The noble Baroness is absolutely right to say that if that happens, there should be processes for reporting back and thus ensuring continuity of information about the deliberations about a particular sub-committee. However, if we were to say that there could never be a situation where a member of the board did not serve on a committee or sub-committee, that would be unduly restrictive.
On the first point, I do not have a fixed view about the number envisaged by the commission because I have not checked the numbers sitting on the boards of other NDPBs. I imagine that it varies. As I have said, it is for the commission to determine that. Obviously it will have clear reporting lines about its immediate objectives back to the Secretary of State and it will want to make sure that it has the mix of skills that it needs. Similarly, I imagine that it would have to have due regard to the fact that it does not want to overload the board with people who are not making a contribution. However, I think that we need to leave it to the commission.
8: Schedule 1, page 47, line 21, leave out “, who is to be an employee of the Commission”
9: Schedule 1, page 47, line 22, at end insert—
“( ) The chief executive is employed in the civil service of the State.”
10: Schedule 1, page 47, line 26, after “may” insert “, with the approval of the Minister for the Civil Service,”
11: Schedule 1, page 47, line 32, at end insert “and the Minister for the Civil Service”
12: Schedule 1, page 47, line 33, leave out “employees” and insert “staff”
13: Schedule 1, page 47, line 36, after “may” insert “, with the approval of the Minister for the Civil Service,”
On Question, amendments agreed to.
[Amendments Nos. 14 to 16 not moved.]
17: Schedule 1, page 50, line 31, leave out paragraph 22 and insert—
“22 (1) The functions of the Commission, and of its members, are to be exercised on behalf of the Crown.
(2) For the purposes of any civil proceedings arising out of those functions—
(a) the Crown Proceedings Act 1947 (c. 44) applies to the Commission as if it were a government department, and (b) the Crown Suits (Scotland) Act 1857 (c. 44) applies to it as if it were a public department.”
18: Schedule 1, page 51, line 6, leave out paragraph 24
19: Schedule 1, page 51, line 36, leave out sub-paragraph (1)
20: Schedule 1, page 52, line 1, leave out from “increase” to end of line 2 and insert “in the sums payable out of money provided by Parliament that is attributable to the provision of relevant pensions”
21: Schedule 1, page 52, line 2, at end insert—
“( ) In sub-paragraph (2), “relevant pensions” means pensions, allowances or gratuities under section 1 of the Superannuation Act 1972 (c. 11) payable to or in respect of persons who are or have been in the service of the Commission.”
22: Schedule 1, page 52, line 24, leave out “employees of the Commission” and insert “staff appointed under paragraph 10”
On Question, amendments agreed to.
Schedule 1, as amended, agreed to.
Clause 2 [Objectives of the Commission]:
23: Clause 2, page 1, line 8, leave out subsection (1) and insert—
“(1) The Commission’s main objectives are—
(a) to maximise the number of those children who live apart from one or both of those parents for whom effective maintenance arrangements are in place;(b) to secure the payment of any arrears of child support maintenance including sums owed pursuant to the Child Support Act 1991 (c. 48) prior to the establishment of the Commission.”
The noble Lord said: I shall speak also to Amendments Nos. 27 and 36. We can dispatch this small group of amendments with some speed, but we need to spend a little time on debt. Amendment No. 23 seeks to insert into the objectives set out in Clause 2 the recovery of debt as a specific aim, while Amendments Nos. 27 and 36 are less significant but have the same purpose, which is to try to tighten up the language and thus reduce the wriggle room for misunderstanding, misapplication or misdirection of the powers to which the objectives in this clause relate. The purpose behind that is simply that if this is to be more of an arm’s-length organisation, we need to make the legislation as clearly stated as we can.
I shall detain the Committee briefly on the question of the importance of adding debt to its core objectives as we set up the new commission. I refer directly to the evidence given by the noble Lord, Lord McKenzie, to the Public Bill Committee in the House of Commons on 17 July at Question 83. He was asked about write-off of historic debt. I shall quote three sentences of his reply, which really stimulates the amendment. The Minister said:
“We would like as many of those old debts to be cleared as possible. Obviously, that is quite resource-intensive, and Stephen”—
that is, Mr Stephen Geraghty—
“may wish to comment on that”,
as he does later.
“One of things that it is proposed we do is, rather than write off debt, create a provision for reflecting the effect of inflated or uncollectable debt in the account. However, those debts would remain in being and would not be written off until there is consent from the parent with care”.
I would like better to understand what that relates to. It was reinforced later by Mr Geraghty at Question 84, when he said:
“There comes a point in any debt collection exercise where it is a question of how much we can get. I think that we are a long way from that, but presumably the commission and Parliament will, at some point, want to consider whether they want to keep the debts going”.—[Official Report, Child Maintenance and Other Payments Bill Committee, 17/7/07; cols. 34-5.]
That is the background to the amendment, and it raises some rather obvious questions. They are not easy questions because, for reasons to which we alluded earlier, there is a lot of uncollected debt, some of it allegedly recoverable and some not. In tabling the amendment, I noticed—this made me even more concerned—that the Child Support Agency annual report already has a footnote, which I confess that I do not fully understand, that suggests that some of that debt is already parked. That is not to say that it is not on the books; it remains on the books, but it is in a different part, in a footnote, and it is harder for people who are not accountants to find.
Net debt balance is obviously a bookkeeping exercise; I understand that. What I want the new commission to take to its heart as a core objective is to comb through individual cases. That is what parents with care who are owed substantial sums of money are expecting. It is only because of the lack of computer facility and compliance that we are unable to do that with the expedition that people would like.
In other clauses, the Bill certainly gives new, useful powers to the agency. That will give the commission, by the end of 2009, at the end of the operational improvement programme, a much more realistic handle on what is the debt book and what is collectable. However, the proposals are very cautious, the proposals for write-off deliberately so. That is probably right because, as Mr Geraghty said in his evidence to the Public Bill Committee, the agency is a long way from knowing how much it can get. I think that the estimates are best guesses rather than anything more robust.
Arguably, at some stage, the commission will have to come clean and write to the parents with care involved to say that it does not intend to take any more steps to try to effect recovery of some of those debts. I do not know how that can be done in bulk, but I know that the parents with care I talk to expect nothing less than that their cases will be addressed individually, that some day they will have a day of reckoning and that they will be told what is realistic to be recovered and what is not.
If we do not have a clear set of guidelines in Clause 2 that are core principles, the suspicion will be that the commission will quietly turn its back and tiptoe away from those parents. That would be unconscionable, because some of that debt has been accrued because of the incompetence of the agency, which failed to take, or delayed, appropriate action by not using the powers it had had since 1991. As a result, people have lost money—some of them substantial sums. They ask me, why should the Government simply gallop away to a shiny new future and leave all those people behind? That is a perfectly valid question. Amendment No. 23 is the only way that I can think of trying to give them some comfort that in the future this new commission will be held to account in terms of collecting arrears.
Finally—we will come on to these matters in later clauses—if it turns out that large proportions of these historic legacy debts are to be written off, we need a compensation scheme to deal with it. Where it can be demonstrated that the fault lies in the past incompetence of the agency, expecting people to ask the independent case assessor to take action and go through the formal compensation process would be completely inadequate for the task. A special new compensation package would be needed that could deal sensibly with the numbers we would be talking about. Where the debt was uncollectable on cause shown because the agency did not do its job, there would be some accounting and some money would flow. But none of that can happen until we see what kind of effort the commission makes with these huge residual legacy debts. I could weary the Committee with the statistics; I will not, but I strongly recommend that if we do not put something in the core objectives of this commission on collection of debt, it will be part-forgotten and people will suffer as a result. I beg to move.
I and my noble friend Lady Verma have added our names to the last two amendments in the group, Amendments Nos. 27 and 36, but I shall first speak to Amendment No. 23. For the first time this afternoon, I have some sympathy with the noble Lord, Lord Kirkwood, who will be surprised to hear that.
[The Sitting was suspended for a Division in the House from 6.07 to 6.19 pm.]
I think we should continue.
I am very happy to continue but I am sorry that I shall have to do so in the absence of the noble Lord, Lord Kirkwood. Presumably the noble Lord, Lord Addington, is going to take over.
I was saying, to the appreciation of the noble Lord, Lord Kirkwood, that I have some sympathy with Amendment No. 23 which stands in his name. I believe that the collection of child maintenance should be continued even though a child has passed into the age of adulthood. I am somewhat confused because the Government seem keen to reduce this. I do not know whether there is a statutory age for the end of childhood because it appears to differ depending on the circumstances. At certain moments, it appears to be 18. If you are adopted, you need the court’s approval to marry at 16 but this requirement ceases at 18. Proposals are afoot to reduce the voting age but I do not know whether that has any bearing on the age of majority. The Government are being somewhat schizophrenic. They propose that the legal age for youngsters to leave education shall be raised to 18; until just the other day you could buy cigarettes—of which I was guilty—at 16 but alcohol at 18; you can join the Army at 16 but not be sent to a theatre of operations until you are 18. So I am not to blame for being confused about the legal age for the end of childhood. I hope the Minister can clear that up for me.
Whether or not he does so, and whether childhood ends at 16 or 18, or even in between, I must return specifically to the amendment. The fact that the qualifying child is now grown up and may well not be living with his or her former parent with care makes no difference to the outstanding debt which may have arisen when he or she was younger. The question that does not seem to be answered by the legislation is: who does the money belong to? To my mind, it should be clear that the money is for the good of the child. So whilst he—this is not sexist, the Interpretation Act applies—is living with the parent with care the money is to be in the control of that parent, as it would be for any minor. When he becomes an adult or moves out or both, the money should go directly to him. Not only that, but the backlog that was not paid by the absent parent when he was a child should still be paid and, again, to him. There should be no age cut off point for this.
I have a sneaking suspicion that the Minister agrees with me—in principle anyway. However, the question that he must answer is whether he agrees that this issue is important enough to be included as a main objective in the Bill, which is what the amendment of the noble Lord, Lord Kirkwood, seeks. Perhaps I may gently suggest to the noble Lord, Lord Kirkwood, that it should be a secondary consideration and therefore would be more appropriate in subsection (2).
Amendment No. 27 is a probing amendment to explore why there seems to be a get-out clause in the stated objectives of CMEC. Clause 2 sets out the commission’s objectives, one of which is to support applications for child support maintenance under the 1991 Act and to ensure that there is compliance with the parental obligations set out in that Act. However, as the Bill stands, CMEC must secure compliance only “when appropriate”. I certainly understand that there may be situations when securing compliance may not be appropriate, or indeed there may be individual scenarios in which it is impossible, but, as the Bill stands, this judgment rests entirely with CMEC. Essentially, CMEC has the power to be judge and jury over whether it may or may not pursue maintenance arrears.
I feel that that proviso lacks precision. Although that might not be intended in the drafting, it could be interpreted as a loophole. Does the Minister agree that it is unacceptable for the commission to decide for itself when it is appropriate to require a non-resident parent to meet his obligation and when this can be simply ignored? What standards of appropriateness does the Minister have in mind? Surely the priority should be the potential benefit of the maintenance arrangements, and that is what should determine whether the commission seeks to ensure compliance. However, with the commission as the final arbiter of what is appropriate, there is no guarantee that any other potentially unrelated reason is used to shirk the responsibility of ensuring compliance. Can the noble Lord explain the need for the commission to decide for itself when it does its job and when it does not have to?
Arguably, the commission should be under a legal duty to secure compliance in all cases. I understand that there may well be practical difficulties with this. I offer the example of the non-resident parent having no money, which might make compliance impossible in some individual cases. I want to be able to take account of difficult exceptions because I do not want to pass an unenforceable Bill but, as it is currently phrased, the scope for avoiding compliance with the law is simply too loose and too wide. Can the Minister give examples of when he thinks it would be appropriate for the commission to ignore the requirement for non-resident parents to meet their statutory obligations?
Amendment No. 36 is an attempt to tighten and strengthen the link between the work of CMEC and its objectives. I am forced to promise yet another amendment, one to put in the Bill a precise and exact proviso. With such wishy-washy phrases as “aim to pursue” and “have regard to” the Bill can make a claim towards its grand and good objective of improving child maintenance arrangements for those children living apart from one or both parents—or can it? Those phrases, perhaps conveniently, do not bind the Bill to its objectives and therefore create room for the possibility of under-achievement. I am sure the Minister would agree that there is simply no point in passing the Bill unless noble Lords and Members of another place are confident that it will realise what it promises. Her Majesty’s Government’s record on child maintenance so far has not been exemplary and it is our duty to the children who rely on financial assistance that it should become so.
We on these Benches are not going to give Her Majesty’s Government any opportunity to duck out of their commitments without being held to account. I am convinced, of course, that the Minister would wish for that too, and thus I cannot imagine that he will have any objection to my speaking and adding my name to the last amendment in this group tabled by the noble Lord, Lord Kirkwood.
I am grateful to noble Lords for tabling the proposed amendments, each of which I shall address in turn. Amendment No. 23 proposes that the main objective of the commission should be extended to include a subsection requiring the commission to secure the payment of arrears owed under the Act. I understand these concerns but I believe that the amendment is unnecessary. The commission will already be required to pursue all arrears, regardless of when they arose, under the objective which requires it to secure parental compliance with the Child Support Act 1991 where appropriate. Indeed, the Bill brings in new enforcement and debt management powers to prevent new debt building up and to enable accumulated debt to be recovered.
I should also like to take the opportunity to reassure noble Lords that a range of targets will be published in the commission’s business plan that will underpin each of the commission’s objectives, and these targets will be agreed between the department and the commission in a process which has not yet begun. While we cannot commit to anything at this stage, we would expect the collection of outstanding debt to be part of the range of targets.
Returning to the current drafting of the subsidiary objective, the words “when appropriate” are needed because Section 2 of the 1991 Act requires the commission to,
“have regard to the welfare of any child”,
when exercising discretionary powers. Indeed, this is a provision to which the noble Lord himself referred at the start of our deliberations. This must take precedence over other considerations. If we removed the words “when appropriate” as suggested in Amendment No. 27, the commission would be caught between two absolute requirements: always to secure compliance under the Act and always to have regard to the welfare of any child. The current drafting of Clause 2 prevents that situation arising, thus ensuring that the commission can always have regard to the welfare of the child.
The noble Lord, Lord Skelmersdale, pressed me on specific examples. There could be situations where pressing a non-resident parent could have a particularly difficult impact on the welfare of a child in his new family; or there could be issues of violence around the potential family situation which could be exacerbated by the pursuit of debts. If the noble Lord presses on why it should be the commission that makes that judgment, it is because the commission would generally be possessed of the information best to make that judgment.
Finally, Amendment No. 36 seeks to strengthen the link between the commission’s objectives and the functions. I can reassure the noble Lord that by requiring the commission to pursue and have regard to its objectives, it can only exercise relevant functions in a way that it believes will help meet them. The proposed amendment to ensure that the commission is bound by its objectives when exercising a relevant function would do nothing to change or strengthen this. Furthermore, the current wording reflects standard drafting for such matters rather than any weakness in the link between objectives and functions. There is, for example, a similar approach in the Financial Services and Markets Act 2000. In the light of that explanation, I ask the noble Lord to withdraw his amendment.
I turn to some of the additional points that were raised. The noble Lord, Lord Kirkwood, mentioned my appearance before the committee in another place and made reference to provisions in accounts. We were then reinforcing the point that the commission should be dealing on a case-by-case basis with individual debtor situations. Obviously, when accounts are drawn up, a judgment is always made about the extent to which a debt book is collectable. It would be normal in those accounts to make a provision against the gross total. It does not mean that any particular debt has been written off and will not be pursued; it merely makes an aggregate judgment about the extent to which, ultimately, that debt will be recovered.
I should make it clear that any write-off of debt would require the consent of the parent with care. A qualification might be where the non-resident parent is deceased and the estate is not in a position to deal with the amount due. At the moment, it cannot be, but there is a provision in the Bill which will enable the estates of deceased persons to be pursued. That is why that provision is there.
The Bill includes a range of new powers which the commission will be able to use for the collection and management of historic debt. However, we have listened to concerns raised throughout the Bill’s progress and we have decided to introduce an amendment which we will discuss later in Committee. The amendment will ensure that all new and existing enforcement mechanisms, including liability orders, can be applied to debt at any age, in particular debt which accrued before July 2000 and which we had not previously been able to use court-based enforcement tools to collect. I stress that there are no plans to write off debt where a parent with care wants it collected.
The noble Lord, Lord Skelmersdale, asked about the definition of “child”. For child maintenance purposes it broadly follows the child benefit qualifications. It is therefore up to the age of 16 and after that it depends on whether the child is in education and the type of education in which he is engaged.
It depends. The noble Lord asserts that we are raising the school-leaving age—I am not sure whether he put it quite in those terms—but that is not quite what is proposed. The Government are looking at a range of measures to encourage people to stay at school or to go into some sort of training or further or higher education. There has been a recent amendment to increase the age to 20 as regards child benefit. I am looking for support at the back.
I do not want to pursue the point now. Perhaps the Minister will consider all the complications involved in the 16 or 18 age limits, or even beyond. In certain circumstances, a mentally handicapped child is expected to stay on at school until 19, which is yet another complication.
There is a Division in the Chamber so we shall suspend the Sitting for 10 minutes.
[The Sitting was suspended for a Division in the House from 6.34 to 6.44 pm.]
When we broke off I was yet again quizzing the Minister. I am tempted to say “teasing” but it was not a tease; it was a valid point about the end of childhood as CMEC would see it and the statutory basis for it. I had almost got it out of my mouth that as this is such a complicated subject he might like to consider writing to me, which I would find perfectly acceptable.
I am grateful for the opportunity. I shall certainly do so and copy the letter to other noble Lords who have spoken or shown an interest today. Having been saved by the bell, I shall take the opportunity to make reference to Clause 39, which indicates what the meaning of “child” is for the purpose of these provisions. I shall make sure it is covered in correspondence.
I am happy to withdraw the lead amendment in this group, but perhaps the Minister can clarify one thing for me. I understand what he said about the debt position but I am not clear yet whether it is the overall intention, delivered by whomsoever—whether it is the Child Support Agency, the commission, the Government or a combination of the three—that at some point each case will be looked at by someone. While there will be no bulk treatment, will people get a reckoning? However this is delivered, at the end of the day will every case be looked at and either written off with an explanation or activated and enforced? Will that happen in every individual case? If the answer is yes, I will happily withdraw the amendment.
My understanding is that these matters will be dealt with on an individual case-by-case basis. I cannot in all honesty say to the noble Lord that there may be no circumstances where you get to some sort of residual pot—we just do not know what will happen operationally—but the intention is to look at them on a case-by-case basis, especially if they are interim assessments possibly to generate a negotiation. But always it will require the parent with care’s consent before debt is written off.
24: Clause 2, page 1, line 12, at end insert—
“( ) to promote among parents and prospective parents awareness that every parent has a responsibility (shared with the child’s other parent) to do their best to provide for the welfare 8and supportive parenting of their child;”
The noble Lord said: I shall speak also to Amendments Nos. 25 and 35. Amendments Nos. 24 and 25 suggest an additional objective for the commission. They would require it to set child maintenance in the context of the wider responsibilities of parenthood, while Amendment No. 35 defines those responsibilities. The amendments would impose a duty on the commission to inform and educate the public, especially fathers and prospective fathers, about their responsibilities for their child’s welfare and supportive parenting.
To be successful, any society must make suitable provision to ensure that its children get the nurturing, education and parenting they need to fulfil their potential. As a society, we must be clear about what part we expect parents to play in this process. If not, we risk the state being overwhelmed by the need for surrogate parenting because of a lack of parents to care for their children themselves.
In this country today there are significant groups of fathers who do not accept or do not understand why they have any responsibility for parenting their child. The kind of groups I have in mind include fathers who have fertilised a child having been misled by the mother about contraception or some reason of that kind; fathers who have been brought up in a macho culture which believes that to father a child is a scalp on your belt and you have no responsibility towards the child thereafter; or immigrant fathers in this country who have come from societies where children are brought up by the village, the community or the tribe, with the father having little or no involvement.
The law is not clear on the responsibilities of parenthood. The Children Act 1989 defines a parent’s responsibility thus:
“In this Act, ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
What does that mean? In a recent Question, I asked the Government for a further definition. Their reply was that the research necessary to answer the question would be “too costly”. That Answer makes it abundantly clear that a simple definition is needed to help parents understand their obligations.
In striking contrast to the 1989 Act, the Children (Scotland) Act 1995 defines parental responsibility clearly and concisely, stating that,
“a parent has in relation to his child the responsibility … to safeguard and promote the child’s health, development and welfare … to provide, in a manner appropriate to the stage of development of the child … direction … guidance to the child”.
A parent has the responsibility also,
“if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and … to act as the child’s legal representative, but only in so far as compliance with this section is practicable and in the best interests of the child”.
Why should Scottish children have the advantage of their parents knowing clearly what their parenting responsibilities are while children south of the Border do not? The definition in Amendment No. 35 is derived directly from the wording of the Scottish Act.
The amendments would clarify and promote understanding about the law as it stands, and about the shared values of our society and the custom of the country in respect of the role and responsibilities of parents. By making both parents’ obligation to their child and to society absolutely clear, and by promoting knowledge on the subject, the amendments would, among other things, probably significantly reduce the number of claims made to the commission and the number of attempted evasions. They could also help to reduce the sense of injustice which is often caused by the collection of child maintenance from those men who do not know, or were not warned of, their potential liability.
They would serve another important role by making it absolutely clear that in our society fathers as well as mothers have parenting responsibilities to their child. They would put firm ground under the feet of teachers in schools whose job it is to provide relationship education and lead discussion with boys about sexual behaviour and their role as future parents. They would serve the same purpose for those whose job it is to prepare male migrants seeking to acquire citizenship in this country. I beg to move.
I have put my name to the three amendments. There is no definition of parenting in any primary or secondary legislation. It is to be found in a number of cases in the Court of Appeal and in occasional cases in the House of Lords. However, they are not instantly available to most people, particularly not to those who are involved in the unhappy breakdown of their relationship, whether it is a marriage or a partnership. There are practical reasons, in addition to those given by my noble friend Lord Northbourne—I agreed entirely with every word he said—why having a definition in this legislation would be very helpful.
First, in a large number of cases, the money to be paid to children is not the only issue to come before a court or has to be discussed by a mediator or by lawyers in cases where lawyers are involved. When a couple separates, it is usual to look at whether the house or flat is rented or owned and whether the children are to see the non-resident parent—usually the father. Contact is extremely difficult to manage if the mother does not have an assurance that the father will pay.
Technically, money and contact are totally separate issues, but as a matter of human reality, the mother usually says, “If you are to see your child, what are you going to pay?”. In cases such as those referred to by my noble friend Lord Northbourne, where the parent—usually the man but not always—does not see why he should pay, there is nothing to point to other than the fact that he should pay because the legislation says that he must. However, there is the important concept that both parents have responsibility for their child and that part of sharing that responsibility is to pay. There is no question but that the mother, as the primary carer, will pay, because usually the money given by a father is not enough to support a child. Therefore, it is very important that the non-resident parent who is asked to pay under legislation is also made fully aware of the concept of the obligation of responsibility.
I wish to make two practical points. If there are lawyers or mediators in the case, they could say, “You are expected to be responsible, as is shown in the legislation”. My noble friend Lord Northbourne and I are hoping to include this in the Children and Young Persons Bill. We want it to be set out clearly across the board that there is responsibility in payment and responsibility in the care of children. Perhaps more importantly, many of these fathers—they are generally fathers—do not have lawyers and will not be in discussion with the mother’s lawyer, if she has one. However, almost certainly a court will be dealing with the separated couple and, after they have separated, will pick up the pieces for them in relation to the rented flat or the owned house and the contact arrangements and so on. Whether it is someone in the magistrates’ court, the district judge or occasionally the circuit judge, he can point to this legislation and say that it really matters. He will say not simply, “You’ve got to pay because the legislation says so”, but, “You have got to be responsible for your children”. The meaning of “responsibility” is set out in Amendment No. 35. We need Parliament to make a statement in primary legislation that responsible parenting matters a great deal in relation to money, children and everything that goes with the breakdown of the relationship between parents.
Even in a case such as my noble friend Lord Northbourne described, where a father says that he did not intend to have children, he has a responsibility under the Child Support Act and this legislation and he needs to be told as well as anyone else that it is not just a money matter. The child is born and the grown-ups have to be responsible for that child. It is the issue of responsibility that my noble friends Lord Northbourne, Lady Finlay and I are extremely keen to push forward.
Although one may think that this is all a bit of a concept and rather vague, I have to tell noble Lords that, having been a lawyer and a judge, I would have been helped, as other judges will be helped, by having this in primary legislation.
I hesitate to intervene in an issue where views are strongly held. I suspect that all of us want to see responsible parenting, and anything which can be done to encourage it should be done. But, again, I have a real hesitation about putting what I regard as rhetorical statements in the Bill in the hope that somehow they will affect behaviour. The noble and learned Baroness, Lady Butler-Sloss, said that this would be a great help to judges. However, most of the children we are talking about do not come out of divorce arrangements, so their cases do not go before the courts. They come out of informal or cohabitation relationships—
Forgive me, but I did say specifically that I was referring to either the separation of a couple or the situation after a marriage breakdown. I am well aware that 40 per cent of children are born in a relationship outside of marriage and I was careful not to limit this to marital breakdown.
I accept that, but the point is that most of the children whom the agency will be working with will not come from a divorce situation because usually the parent with care will not be on benefits and therefore the children will already be within the voluntary system. The children whom the CSA, and eventually CMEC, largely deal with are those where the parent with care is on benefit and the man is either on benefit as well or is a fairly low earner, and the relationship is generally casual or one of cohabitation. This is not a matter to which lawyers may usefully point because those are not the children whom we are dealing with.
My second point is that the proposal may be helpful for lawyers in the relatively rare cases where a divorced non-resident parent is being irresponsible, although, in my experience, those fathers who need to pay most do so because they are coming out of marriages in which they have bonded with and become attached to their children. They know how much it costs to bring them up and so they will pay. It is the group that does not come within the ambit of lawyers that presents the problems. Therefore, my concern is that this proposal seems to suggest that those who work to ensure the flow of maintenance—the CSA and then CMEC staff—are being asked to become social workers. We have been careful at every stage of these Bills—in 1991, 2000 and today—to separate the question of child maintenance from contact and all the other issues that can arise. A number of fathers’ organisations would like to see it attached, but I do not think it is reasonable to expect CSA or CMEC staff to take on the responsibility of trying to act as social workers between warring parents. Their job is to ensure the flow of money.
Although I sympathise with the objectives and do not disagree with them, I really do not believe that such wording is appropriate in this legislation, as it is in other Bills such as the Human Fertilisation and Embryology Bill, where we have also been arguing whether a similar form of words should be included. No doubt the same applies to other Bills related to children. There is a place for such words, but not in a Bill to establish an appropriate mechanism to deliver adequate child maintenance.
Earlier, I signalled that I was in general agreement with this set of amendments. I most certainly shall not renege on that. However, unlike the noble Baroness, Lady Hollis, with all her experience of these matters, I feel that it is important to include something similar to these amendments in the Bill. The noble Baroness made an objection, saying that, although the noble and learned Baroness, Lady Butler-Sloss, felt that it would be helpful for the courts, the mediation service, solicitors and, I suspect, the judges to be able to point to words such as these, it would be equally helpful, for example, to Ventura or to a member of the staff of the commission when seeking to persuade someone that, notwithstanding the extra enforcement powers mentioned by the Minister, this is a duty on both parents. When I spoke earlier about a wider interpretation of “maintenance”, I meant exactly that. The noble Lord and the noble Baroness have been talking about how to define that wider interpretation of “maintenance”, which is not just money.
I have no doubt that, like the noble Baroness, Lady Hollis, the Minister will object to these amendments by arguing that the CMEC cannot perform all roles and therefore stretch its resources. I can allow the Minister to anticipate my argument against this. It is that the encouragement of a relationship between the absent parent and their child is not just a case of emotional welfare. If the non-resident parent develops a relationship with their child, they will mostly develop a feeling of responsibility towards him and therefore be more inclined to support him financially. In fact, it promises to be a better enforcement of duty than any commission, court or sanction. I certainly support the idea behind these amendments.
I am reluctant to get involved in this legal argument that is raging over my head. Australians have found a way to fix some of these problems and Professor Patrick Parkinson came over here. Andrew Selous and Paul Rowen in the Public Bill Committee identified some important policy moves and developments along these lines. The Australian model is simple. It has a system of family relationship centres in shopping malls. They are a mile away from benefit offices, Jobcentre Plus offices or HMRC offices: they are where people need to find them.
Professor Parkinson said that the success of these centres is that fathers come into them. I am accustomed to mothers beating a path to one’s door and looking for help. Perhaps it is the function of Australia, but it is having a lot of success in keeping fathers attached to their children simply by the development of these ideas but through a system that is different and separate from a commission. The commission will not have time on its hands. I was certainly persuaded by the plea of the noble Baroness, Lady Hollis, on that. The commission will have enough to do and, if it does what it is asked to do, it will be a good trick and it will be extremely lucky.
At the same time, this sentiment is a powerful part of getting an effective service to families. In an ideal world, you would not need to put it in the Bill. The case being powerfully made is that it may have to be in the Bill so that something gets done, even if it is just the commission saying to the Ministry of Justice or the Department for Children, Schools and Families, “We’ve got to get together and replicate the kind of thing that is done in Australia”. I am not saying that it is perfect there and I do not know that much about it, but it is done on the basis of serving one in 300,000 individuals. That scheme is in its early days of rollout and implementation, but it seems to be working and is doing the kind of things that these important amendments refer to. There is something there that is important to the future success of this policy. If I were pressed, I would have to say that I would support the amendments, but with an important proviso that you are asking a lot of people in the commission who are not looking for extra things to do.
I have put my name to three amendments in this group. Amendment No. 28, which I do not want to spend a lot of time on, talks about maintenance from both parents based on the right of each child, and I exhausted that argument earlier. Amendment No. 33 is what I like to think of as my “granny amendment”, because when in a previous incarnation I was a solicitor doing consistorial work dealing with broken families in a part of the world that is slightly more matriarchal, it was always the granny who fixed the problem. This was a long time ago when extended families were more extant. Responsible grandparents, or parties like them, can play a role, particularly in relation to Clause 6, where the wife, mother or parent with care is frightened to refer under the new system. Someone needs to be able to shoulder the blame for that and deal with the non-resident parent’s anger and distress when that happens. There is a powerful role for grannies. My granny was certainly a powerful figure in my life. There is a case for looking at third-party involvement in this.
On Amendment No. 34, I made the point in passing that children aged 12 can make full applications in their own right to the organisation in Scotland. It has never been clear to me why that is restricted to Scotland; but no doubt family lawyers will tell me that it is to do with the age of majority or minority or something. Children aged 12 are perfectly capable of being asked sensible questions about effective parenting, about what they want done, about how they see the relationship with their father being continued somehow, but we do not ask any questions of 12 year-olds or anyone of a minority age. We should think about that in relation to some of the more general arguments that I have been making.
In so far as they go, these amendments have added a lot to our debates and I would support holding on to these thoughts when considering the rest of the amendments. I hope that the noble Lord will get some satisfaction that, however they are delivered, he will get where he wants to be, whether it is by putting these requirements in the Bill or not.
As the noble Lord, Lord Kirkwood, said, this has been a heavyweight discussion. I start by speaking to Amendments Nos. 24, 25, 30 and 35. They seek significantly to extend the remit of the commission beyond child maintenance to include the promotion and encouragement of parents’ responsibility to provide welfare and support for their children and the encouragement of absent parents’ relationships with their children.
Of course I have some sympathy with the noble Lord’s intentions, which fit well with overall government policy towards children and their parents. However, I agree with my noble friend Lady Hollis that we must ensure that the primary focus of this Bill is to maximise the number of effective maintenance arrangements in place. That is what the Bill is about.
Noble Lords will recognise the enormous challenges facing the commission. At present, for example, there are no large-scale services providing information on child maintenance options and no support to put in place suitable maintenance arrangements. With the removal of compulsion, it is therefore essential that the commission concentrates on putting in place effective and easily accessible services to ensure that, when compulsion is removed, parents have access to support that will help them move into appropriate and effective maintenance arrangements.
As we touched on earlier, the Department for Children, Schools and Families has lead responsibility across government for family policy. Supporting parents in supporting their children is a strong theme throughout its recently published Children’s Plan. The commitments in the Children’s Plan have a number of synergies with the work of the commission. In particular, it outlines the DCSF’s commitment to,
“work across government and with other organisations to launch work on how better to support parents (including non-resident parents) and their children during and after family breakdown”.
In the light of that, we are already working with officials in the DCSF who have responsibility for the commitments in the Children’s Plan to ensure that the commission feeds into the development of policies in this area and that information and support are seen as part of the overall provision of services for separating parents. This is because we want to ensure that lessons learnt from the commission are utilised across government. We also want to ensure that parents can be effectively linked to appropriate support at whatever point they access government-funded services. We are keen to ensure that, where possible, government-funded services are effectively joined up to prevent parents becoming confused by the system or failing to engage with services. The Children’s Plan sets out a vision for more co-location of services to support this joining up. The Government also recognise that services will be more effective if the people using them are involved in the design and delivery planning of the service, and the Children’s Plan sets out proposals for parents to be involved in this at a local and national level.
The noble Lord, Lord Northbourne, referred to the debate on the Children and Young Persons Bill. Noble Lords may be aware that, because of this debate, my noble friend Lord Adonis has agreed to consider whether there is a case for amending the Children Act 1989 to include a more substantive definition of “parental responsibility”. However, he has made it clear that at this stage the Government are not committed to such a change. If that were to come about, I suggest that that Act would be a more appropriate place for such a definition.
In any event, as I understand it, the amendments are not seeking to define parental responsibility in a broad way; rather, I believe that they focus on promoting responsibility. The noble and learned Baroness, Lady Butler-Sloss, who is hugely experienced in this area, said that it would be helpful to the courts, to the extent that they are involved, to have something that they could point to when encouraging arrangements to be put in place. I am not sure that the amendment provides the required definition but, in any event, if you wanted something to point to, is there not already a definition in the 1989 Act? It may be inadequate but there is a definition there which makes reference to parental responsibility, as expanded by case law. If you want something to point to so as to help and encourage engagement in maintenance arrangements, I question whether there is not already something there for the courts to use.
Under Clause 4, there is a requirement to promote child maintenance. The commission must take such steps as it thinks appropriate for the purpose of raising awareness among parents of the importance of taking responsibility for the maintenance of their children and making appropriate arrangements for the maintenance of children who live apart from them. That is the proper role of the commission set in the context of the wider policy in which the Department for Children, Schools and Families is engaged.
I believe that we have a shared agenda here. The question is how best we can move it forward, but I honestly do not think that this Bill provides the right mechanism.
I hope that I have provided noble Lords with the reassurance that we are part of a wider government agenda for focusing on parents and their needs. However, I cannot accept these amendments because they significantly extend the remit and responsibility of the commission beyond the central objective on which we need it to focus.
Amendment No. 28, tabled by the noble Lord, Lord Kirkwood, links back to our earlier discussion on the proposal for a new approach to child maintenance legislation. The amendment would make it an objective of the commission to prepare a scheme of child maintenance based on this new approach. Our earlier discussions set out our position on these changes. The Bill focuses on solving the immediate problems facing the child maintenance system. Furthermore, the noble Lord’s proposals would require fundamental changes and, while the commission would almost certainly have a role, central government is best placed to lead on such changes, especially in view of the work of DCSF.
Amendment No. 33 would enable third parties to make a statutory maintenance claim on behalf of a child when a voluntary arrangement can be shown to be harmful to the child’s long-term interests. This would negate one of the key things we are trying achieve with the repeal of Section 6 by reintroducing a form of compulsion and state intervention for some cases. It would therefore undermine our aim of encouraging parents to make their own decisions about maintenance for their children and raise again the potential for a state-imposed solution regardless of their wishes.
The commission will introduce a high-quality information and support service to enable parents to make informed choices about the maintenance arrangements that suit them and their children best. This may be a voluntary arrangement, a court consent order or a statutory maintenance arrangement. The amendment will allow anyone to make an application regardless of their relationship to the child, and there is no indication of what tests would be applied to determine whether a voluntary arrangement by the parents would be harmful to the child’s long-term interests, or, indeed, who would be responsible for applying that test.
Amendment No. 34 seeks to extend to children aged 12 and over in England and Wales the right to make an application for a maintenance calculation. As has been noted, this provision already exists in respect of such children in Scotland. As the Committee will be aware, in Scotland children have different rights to children in England and Wales and different legal systems exist. Under Scots law it is presumed that children aged 12 and over have the capacity to make informed decisions about legal proceedings which affect them and the ability to instruct a solicitor to raise court proceedings, which could, for example, include suing a parent for aliment, the obligation on a parent to maintain a child. When we replaced a court-based system for child maintenance with the CSA scheme, we wanted to ensure that provision was included that enabled Scottish children of 12 and over to retain the ability to apply for maintenance.
In England and Wales there is no such tradition of children being allowed to seek maintenance from the courts on their own behalf. This has always been done by their parent or guardian. We believe there is no case for changing the laws of England and Wales to match those of Scotland in this respect. In any event, we understand that this right is rarely utilised in Scotland. We do not believe that extending it to children in England and Wales would meet a real need. We would not want to disrupt the structures of family law simply to take account of the different legal framework in Scotland.
In view of what I have said, I urge the noble Lord to withdraw the amendment.
In the light of Clause 4, which I have not given sufficient attention to—I apologise—the concerns of the noble Baroness, Lady Hollis, the noble Lord, Lord Kirkwood, and the Minister seem to me to be rather less, because the commission must take the steps it considers appropriate for the purpose of raising awareness. Once you have got to raise awareness of the need for taking responsibility for maintenance, it is a very short step for an employee of the commission to get to the stage that the noble Lord, Lord Northbourne, and I require. It is already in the Bill that the commission has got to do counselling. I ask the Minister why this would not slot in very neatly under Clause 4, not under Clause 2.
Before the Minister answers that point, surely the problem is that the word “maintenance” is interpreted throughout the system, by the noble Lord and by the Acts we have had up to now, as financial maintenance—and the buck stops there. What the noble Baroness and the noble Lord, Lord Northbourne, are after is to have a very much wider definition of maintenance, and I remain convinced that they are right.
I certainly do not disagree that there should be definitions of responsibility, the engagement of parents and the welfare of their children, all of which goes beyond a definition of maintenance whether it is focused just in terms of money or on a more general provision of facilities. But I come back to the point that Clause 4 is about taking responsibility for maintenance, not the wider issue, important though it is. It may well be that in some circumstances it is quite a small step, but I am sure that with her great experience, the noble and learned Baroness would acknowledge that there can be other circumstances where it is quite a big step. That is why we believe that the balance struck here to promote maintenance is right. The broader issue is something for part of a broader government agenda.
I am grateful to all noble Lords who have spoken. Obviously it is an extremely complex issue and we have heard some interesting contributions. I do not think I can respond usefully now, so I shall take away what the Minister has said. However, one point did strike me. The noble Lord said that all this stuff is not really for us because our job is just to process the claims that come in. We are already inundated with claims that we cannot handle, so we certainly cannot do anything else. But if you are in a boat which is filling with water and you cannot bail it out fast enough, what about trying to mend the hole so that less water can get in? This is what I am suggesting and the reason I think it is important in this context is because it is only by reducing the demand that the agency will ultimately solve its problems.
Perhaps I may make it clear that I do not assert that the commission has no role in the broader agenda. For example, part of the information and support service will no doubt be that of cross-referring individuals to give them access to mediation and a whole range of other services. I do not assert that the commission will simply put blinkers on and only drive cash transfers; of course it is wider than that. But this agenda should not be its specific role, and that is where we part company on this.
I asked the Minister whether he would add to the consideration, because surely there will be intercourse—I suppose that is the word—between the department of the noble Lord, Lord Adonis, and the Minister’s own department on exactly this subject. Given what the Minister has just said, would he consider adding strength to the arm of the noble Lord, Lord Adonis, in his consideration with Ministers and the Secretary of State in his department of this matter? I say that because I remain of the opinion, even after listening to the counter-arguments produced on the other side of the Committee, that somewhere in the system CMEC needs a phrase in legislation to point to.
I will certainly liaise with my noble friend Lord Adonis and talk to him about this exchange in Committee, as I am sure will the officials. We need to make sure that we are joined-up in all this. The Children’s Plan sets out a clear path of where we should be working together, so let us put it into practice on this issue.
I am most grateful; I think that the Committee has probably had enough of that one. I am very happy to withdraw the amendment, on the understanding that I shall probably bring the matter back at a later stage.
Amendment, by leave, withdrawn.
[Amendment No. 25 not moved.]
The Committee stands adjourned until Thursday 31 January at 2 pm.
Committee adjourned at 7.29 pm.