Welfare Reform Bill

I am sure that that is right. Amendments 174A and 174C to 174F remove from the commission the power to make an order disqualifying a liable person from holding or obtaining a travel authorisation—usually a passport—or a driving licence. Instead, those powers would be held by the courts. I am aware—it has already been cited—that on 23 April this year the Select Committee on the Constitution published a report expressing the opinion that it is "constitutionally unsatisfactory" for the commission to have that power. I am bound to say to the noble Lord, Lord Pannick, that I think that that is a lesser charge than "profoundly constitutionally significant", which was the noble Lord’s phrase. The noble Lord, Lord Goodlad, is, of course, the chairman of the Constitution Committee and, if I may say so, an extremely distinguished one at that. However, on this occasion, I find that I cannot agree with his position or that of the committee that he so expertly chairs. I draw that conclusion for a number of reasons, starting with two very important points relating to these powers as they stand in the Bill. First, the provisions are drawn such that the commission may make a disqualification order only if it can be shown that the non-resident parent has either wilfully refused or culpably neglected to pay the child maintenance for which he or she is liable. I shall refer to that as the "wilful and culpable test". The second point is that these powers are not intended to act as a punishment for non-payment. Along with other powers already available to the commission, a disqualification order has only one purpose: to encourage the liable person to pay the outstanding child maintenance debt that he or she owes. So it may be argued, as the Constitution Committee did, that, ""to impose sanctions and punish people"," should fall within the remit of the courts and not the executive. However, it does not follow that a decision to make a disqualification order such as we are debating today should not be made by the executive body whose very purpose is to ensure that parents who live apart from their children continue to make a fair contribution to their upbringing. The wilful and culpable test means that the commission cannot make a disqualification order on a whim. It means that before such an order can be made there must be proper consideration of the circumstances of the case, the non-resident parent must have accrued a child maintenance debt over a period of time, and the commission must first have attempted to use its other collection and enforcement powers to no avail, some of which I am bound to say operate by administrative procedures as we were debating last night. Those powers are extensive and include, for example, the ability to deduct money direct from earnings or from a bank account. Therefore, a decision to make a disqualification order may be made only after the commission has made every effort to ensure that child maintenance is paid and when, despite all its efforts, the non-resident parent has actively avoided his or her responsibilities and the children and parent with care are left wanting. I have said that a disqualification order is not a punishment measure. To support that further, the Bill ensures that a non-resident parent facing the imposition of such an order has a straightforward means to avoid it by paying the child maintenance debt owed or agreeing and sticking to a satisfactory payment arrangement with the commission. By the same means, a non-resident parent against whom an order is made can equally ensure that it is rapidly lifted. I am also convinced that when a court decides to impose a sanction, such as a disqualification order, it does so in the light of its prior dealings with the liable person—in other words, following conviction for an offence. In the case of a non-resident parent who owes child maintenance debt, the commission is best placed to make those decisions. Its experience of prior dealings with the non-resident parent means that it is best qualified to decide whether the non-resident parent’s actions meet the wilful and culpable test. When the commission makes such decisions, there are further safeguards. The commission is required to consider the impact on any children affected by a decision to make a disqualification order, and it must also consider the impact of a disqualification order on the non-resident parent’s ability to earn a living. There is one final safeguard. Clause 42 makes provision to ensure that there is a robust and proper right of appeal against a decision by the commission to make a disqualification order. If an appeal is lodged, the order cannot come into effect until it has been dealt with by a magistrate or a sheriff. Currently, the commission has the power to make an application to the court for commitment to prison or disqualification from driving, as the court considers appropriate. Although data are limited, there is evidence that a significant proportion of non-resident parents in these cases do not bother to attend the court hearing. Under the provisions we are debating today, the onus will fall on the non-resident parents to decide whether they want their day in court, which they will get by appealing the order. That system will mean that the court’s time is used more efficiently than it is currently, and therefore it will better enable the commission to focus its efforts to get more money to children. Amendment 174B would require an executive director of the commission—if it were to proceed—to approve the making of any disqualification order in relation to holding or obtaining a travel authorisation or a driving licence. I understand the concern of the noble Lord, Lord Goodlad, to ensure that a decision to make a disqualification order should not be taken lightly. I agree with him that in order to ensure that is so the decision-maker should be a person with the appropriate level of seniority. That must be right. However, with respect to the amendment, I do not consider that it is either necessary or appropriate for the decision-maker’s seniority to be specified in the Bill. Parliament has decided that the executive body responsible for operating the statutory maintenance scheme in Great Britain should be a non-departmental public body. While there was much debate over the detail of the Child Maintenance and Other Payments Bill, there was broad support for that particular element of the reforms. The principle of this amendment is fundamentally contrary to that approach. It would unreasonably constrain the commission’s ability to organise its work and its decision-making processes as it considers appropriate. Of course, the commission does not have an entirely free hand in that respect. It is obliged to ensure that all of its administrative functions are operated fairly and consistently and in accordance with human rights legislation. That, of course, includes the powers to make disqualification orders. In that respect, the commission will be held to account by the Government and the courts in respect of the way it operates these and other powers. Furthermore, a number of safeguards are already provided by the legislation. The commission must consider the impact of the decision on the non-resident parent’s ability to earn a living. It must assess whether the non-resident parent has met the wilful and culpable test, and it must consider, as I said a moment ago, the welfare of any child affected by the decision. Finally, there is a full and extensive right of appeal to a court against a disqualification order. Therefore, I believe that the existing framework is sufficient to ensure that the decision-maker is of the appropriate seniority in every case, and I believe that, combined with the additional safeguards that we have provided, that will ensure the appropriate level of protection for the liable person. Amendment 174G inserts a new clause that would amend the Child Maintenance and Other Payments Act 2008 so as to ensure that the power to make a disqualification order could not be exercised by another person on the commission’s behalf. By "disqualification order", I mean, of course, an order preventing the liable person holding or obtaining a travel authorisation or driving licence. Section 8 of the 2008 Act enables the commission to authorise any person to exercise any of its functions in whole or in part. Such authorisation may be subject to conditions, perhaps for a limited time, and may be revoked by the commission at any time. Anything done, or omitted to be done, under such an authorisation is treated as if the function had been exercised by the commission. Therefore, in effect, Section 8, as has been identified, allows the commission to contract out any of its functions to a third party. However, the noble Lord, Lord Goodlad, is absolutely right that a decision to make a disqualification order is serious and should not be taken lightly. Indeed, the Bill and other relevant legislation provide that the commission cannot do so without ensuring that certain conditions are met and that particular questions are considered. I can assure all noble Lords that a decision to make a disqualification order will be taken only by the commission and will not be contracted out under the provisions of Section 8. I therefore urge the noble Lords not to press their amendments. I am conscious that what I have just said is probably exactly the debate that we had a year ago, but it is the Government’s position, which I believe to be right. At the end of the day, the Bill is about effective mechanisms for getting payments to children, particularly in cases where people who have the resources to make them simply refuse to do so.