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Child Maintenance and Other Payments Bill

moved Amendment No. 192: 192: Clause 33, page 34, leave out lines 6 and 7 The noble Lord said: The amendment is bracketed together with Amendment No. 193. I confess and apologise that the amendments do not even deserve the definition or description of ““probing amendments””; they are random deletions. I knew in my heart that something was wrong with Clause 33, but I could not work it out. I therefore just took out some text to remind me that something was to be done about it. I hope that the Minister will reflect on what is still a cause for concern north of the border. I acknowledge that Clause 33 is a bona fide attempt to accommodate minutes of agreement into the Bill system, but a minute of agreement is fundamentally different from maintenance orders, which are a device used in the Scottish jurisdiction and the Scottish courts. I had recourse to them when, in a previous incarnation, I was a family solicitor in south-east Scotland. They are quintessentially different because they are bilateral; they require no one’s interference and input other than that of the two parties involved. That is different from a court order, which is imposed. There may be an argument; there may be a debate; there may be a consensus sought and achieved in the arrival at a maintenance or court order, but it is ultimately handed down to the parties by the courts. A minute of agreement as currently practised north of the border is quintessentially different also because it is summarily enforceable. If we had minutes of agreement throughout the rest of the United Kingdom, abolishing Section 6 of the Child Support Act 1991, as the legislation does, may be made easier to track and stay on top of. We need to think more clearly in Clause 33 about the difference and why there is still friction between the child support and maintenance system and the family law system in the courts in Scotland. That is demonstrated by reference to two cases, of which the Minister will have been made well aware, I am sure. Resolution, Ms Kim Fellowes and her confederates north and south of the border will have made him aware that in the Isles case—commissioner’s case No. CSCS/5/97 1999, in Family Law Reports 37—a decision was handed down by the commissioner where he deemed that an extract of a minute of agreement registered in the Books of Council and Session constituted a ““maintenance order””. That is fundamentally wrong in Scots law terms. If anybody is in any doubt about that, they should look at another case from 2004; namely, Temporary Judge Coutts, 2 July 2004 in the Outer House of the Court of Session, Woodhouse v Wright, Johnston and Mackenzie. Mrs Woodhouse was obliged or felt it necessary to sue her solicitors on the basis that they gave her duff advice. The duff advice was found by Temporary Judge Coutts to be perfectly reasonable in the circumstances, and it stemmed from the fact that the commissioner in the earlier Isles case had made the deeming of a minute of agreement on all fours and in all points with the effect of a maintenance order. That inelegance obtains. Of course, it is possible to go to the Inner House of the Court of Session and get that changed. Temporary Judge Coutts, when he made the decision in 2004, said that, "““no decision about the competence of an Outer House judge to overrule a decision of the Social Security Commissioner””," was in play in his consideration of that case. He was careful not to get himself involved in trying to overrule the commissioner in the Isles case; he could not, anyway. The only court that is competent to do that in Scotland is the Inner House of the Court of Session. It would need to be a Paul McCartney case to get to the level where, unless you were not in your right mind, you would take a decision of that kind to Inner Court of Session jurisdiction to try to get the decision taken in the Isles case overturned. This is difficult territory and, with Clause 33, the Government have been genuinely trying to reconcile it in a way that makes sense. It is above my pay grade by a mile. All I can say is that some people north of the border in the Law Society of Scotland are looking carefully at this. I think they would like a minute of agreement registered in the Books of Council and Session and the sheriff court books to be removed from the maintenance orders listed in Section 8 of the 2000 Act—actually, it is not listed there; it was added by virtue of the Isles decision. Minutes of agreement should be considered as sui generis law in Scotland, so that in the longer term they can be allowed to continue to play a part, unfettered and unthreatened by the CSA or CMEC provisions in the Act. That may be a policy decision with implications that need to be thought through carefully. In spite of people’s best endeavours in trying to address the problem, it still is not quite right. That is the advice that I am getting from people who know far more about this than I do north of the border. The sensible thing might be for me to act as a broker and get the specialists who are making the arguments to me to talk to the specialists in the Minister’s office and the Bill team, to see whether we can make some reconciliation so that the two systems work more sweetly together than at the moment. The point has been made to me that provisions for non-resident parents being self-employed—a difficult category—are particularly conducive to a solution through a minute of agreement in Scotland. It is a long time since I practised law, but it has also been pointed out to me that there is now a widespread adoption of collaborative law, particularly in the court system in Aberdeen. In my day, law was always practised in the sheriff court in an adversarial context. Maybe the new systems of law are being developed to some effect and purpose in family cases to resolve things in a less adversarial way. If that is the case, it would be good to know and recognise that in the proceedings of the Committee. We are coming on to clauses that talk about pilot projects. This is straight off the top of my head, but CMEC might consider as an early pilot project developing the use of minutes of agreement that obtain north of the border in a way that has not been foreseen to date. That may be something for the future on which we need further discussion. My purpose in tabling these rather crude, slash-and-burn amendments—they make no sense on their own—was to raise a second-order but nevertheless important set of circumstances, on which we still have some development work to do if we are to be safe in the knowledge that, when the Bill is enacted, it will continue to serve the legal profession and its clients north of the border in the way that we hope and expect in future. I beg to move.