Thank you for your letter dated 12 July 2007 asking for a further explanation of the Government's view that the proposals in the Bill are compatible with the Convention rights guaranteed by the Human Rights Act 1998. Below, I set out the Government's views to the Committee's questions as requested.

At various points in your letter you request that a draft copy of Regulations be provided as soon as they are available. We aim to be able to provide some regulations in draft for the Committee sessions in October. However, where this is not possible, we will provide Committee members with detailed information about how we intend that these regulation-making powers in the Bill be used.

In drawing up regulations, the Department, and subsequently the Commission, will consult in detail with stakeholders, as has been the case during the development of the White Paper that led to this Bill. In particular, we will work closely with external stakeholders such as One Parent Families, the Child Poverty Action Group, Families Need Fathers, Resolution, the Scottish Law Association, Relate, and Citizens Advice, as well as the relevant authorities in Northern Ireland. Stakeholders have themselves emphasised that the Department needs to take the time to ensure that the legislative detail is correct.

New Enforcement Powers for C-MEC

Many of the new enforcement powers may in some cases engage Article 8. However, any interference with Article 8 rights is considered to be justified and proportionate. The child support regime as a whole is a response to a pressing social need. It is important, in the public interest, that, where necessary, effective action can be taken promptly to enforce the legal obligation to pay child support maintenance.

(1) Why does the Government consider that it is appropriate to leave these matters to secondary legislation, if they are relevant to compliance with Article 8 ECHR?

We do not consider that leaving these matters to secondary legislation will compromise the compatibility of our proposals. There is no doubt that the secondary legislation will be sufficiently clear and accessible to comply with the Convention. In making any regulations, we are required to comply with our obligations under the Human Rights Act. Some safeguards are to be found in secondary legislation as this enables the Department to respond to changing circumstances, which is essential to the provision of an effective and efficient service.

The Committee draws attention to clause 19 of the Bill (use of deduction from earnings orders as basic method of payment). This provision may engage Article 8 as such orders will alert a person's employer to their liability for child maintenance. As a safeguard, the clause requires that any regulations which provide for deductions from earning orders to be specified as an initial method of collection must also include provision that they not be used in any case where there is "good reason" not to do so. Matters relating to "good reason" are to be prescribed in regulations by the Secretary of State. In determining whether there is good reason, the decision maker will have to do so in accordance with such regulations. The clause does not specifically allow the Secretary of State to define good reason. The Secretary of State can prescribe matters which must, or must not, be taken into account by the decision maker when determining whether there is good reason. He can also prescribe circumstances in which good reason should be taken as existing or not existing.

The use of deduction from earnings orders as an initial method of collection is to be piloted. Research regarding the operation of the pilot scheme is currently ongoing with employers and other interested groups. This research will feed into those matters and circumstances which may be prescribed in relation to the determining of good reason. The operation of the pilot itself may also identify other matters and circumstances which should be prescribed in relation to the consideration of good reason. One of the key points of the pilot is that we test the effectiveness of the proposals and learn from it. Allowing the matters and circumstances around "good reason" to be prescribed in secondary legislation provides the necessary flexibility and allows the Department to respond to matters which arise in the course of the pilot and, later, through the operation of the provisions in practice.

The Committee also refers to clauses 21 and 22 (current account and lump sum deduction orders), which may also engage Article 8. Deduction orders can only be used in cases where the non-resident parent has failed to pay an amount of child maintenance due. In relation to current account deduction orders, provision will be made in regulations for the rate of the regular deduction under the order, likely to be monthly, not to exceed a specified amount. This specified amount will be linked to a percentage of the non-resident parent's assessed income. This follows the existing practice in relation to deduction from earnings orders, where the rate of protected earnings is set out in the Child Support (Collection and Enforcement) Regulations 1992 (S.I. 1992/1989). The percentage of assessed income to be specified is still actively being considered, particularly bearing in mind the move from net to gross income. Providing for the amount to be specified in regulations allows the Department to respond to changing circumstances, taking into account such matters as inflation and fluctuating financial markets.

(2) Why is the Government persuaded that the rights to appeal provided for in the Bill will be adequate to ensure that where the civil rights and obligations of non-resident parents are determined, they will have access to a hearing by an independent and impartial tribunal?

(3) Why does the Government consider that it is appropriate to leave these matters to secondary legislation, if they are relevant to compliance with Article 6 ECHR?

Clause 23 gives the Commission the power to make a liability order administratively where a person has failed to pay an amount of child maintenance. The requirement to obtain a liability order via the courts is being removed in order to significantly speed up the enforcement process and collection of arrears. It is estimated that on average it currently takes over 100 days to process and obtain a liability order from the court. Swift and effective enforcement is required to prevent the build up of arrears and to collect those arrears which are outstanding.

A person against whom an administrative liability order is made will be able to appeal to an appeal tribunal against the making of the order. The appeal tribunal which is referred to is that which currently hears appeals made under section 20 of the Child Support Act 1991 against decisions of the Secretary of State relating to the maintenance calculation. This clause adds to those decisions which are appealed to that tribunal. The appeal tribunal is an independent and impartial tribunal which complies with the requirements of Article 6.

The Secretary of State may only make Regulations with respect to the period within which the right of appeal must be exercised and the powers of the appeal tribunal in relation to the appeal. It is envisaged that period within which the appeal right must be exercised will be 28 days from the date the order is made. Regulations will, as a minimum, allow the appeal tribunal to quash the order, vary the amount in respect of which the liability order is made and strike out the appeal at an early stage if it is not made on one of the specified grounds. The detail around the exercise of appeal rights and the powers of a court or tribunal in relation to such appeals are often left to secondary legislation. An example can be found at section 32(5) to (7) of the Child Support Act 1991. The Secretary of State, in making such Regulations, must comply with obligations under the Human Rights Act.

Debt, Negotiation and Cancellation etc

(4) Why does the Government consider that it is appropriate to leave these matters to secondary legislation, if they are relevant to compliance with Article 8 ECHR?

The Committee draws attention to clauses 29 to 32 of the Bill, which provide a range of powers to enable the Commission to deal with child maintenance debt. These powers will result in an existing liability being reduced or extinguished or offset against another liability or another payment. While we have acknowledged that Article 8 rights might be engaged, we are confident that the limitations placed on the circumstances in which these powers will be applied makes it extremely unlikely that a person's private and family life would be affected.

A number of issues have been left to secondary legislation. This is because they are matters of detail or complexity that are more suited to secondary legislation or where some degree of flexibility is desired. For example, in clause 29 the kinds of payments which are to be set off against a non-resident parent's liability are best described in regulations and we may wish to change or add to these at a future date. Clause 30 provides the power to accept part payment. The regulations under that clause will include a requirement to obtain the consent of the person with care if the arrears would have been paid to them. We consider that this requirement is best left to regulations as the question whether arrears are due to the Secretary of State or to the person with care is not an entirely straightforward one. However, it is right that Parliament should have the opportunity to scrutinise the regulations and for that reason the first set made under the powers provided by clauses 30 to 32 will be affirmative.

It appears that the Committee is mainly concerned with clause 31, which includes the power to write-off arrears. This is essentially a tidying up measure. It is not the intention to write-off debt that the parent with care wants recovered. Before the Commission can take the decision to write-off any debt it must fall within the prescribed circumstances. These will essentially be where the person with care has asked the Commission to cease acting (for example, because the parties have reconciled or the child has died) or where the person with care or the non-resident parent has died and the opportunity to recover the arrears has passed. The regulations prescribing the circumstances will always be affirmative.

There is then a second test, which is in the primary legislation, that it appears to the Commission that it will be unfair or otherwise inappropriate to enforce liability in respect of the arrears. In the case of a person with care who has asked for action to cease on their case, they will have ample opportunity to change their minds and ask for the debt to be recovered. But if they do not do so, there comes a point where, in the interests of certainty, the Commission may take the decision to write-off the debt. It is at that point that they will apply the 'unfair or otherwise inappropriate' test. The regulations will make appropriate provision for the parent with care to be consulted before any decision is taken. We are confident that these safeguards are sufficient to prevent any breach of Article 8.

Information Sharing Gateways

(5) We would be grateful if you could explain why the Government considers that the gateways created by the Bill are compatible with Article 8 ECHR and, specifically, why the Government considers the broad information sharing powers proposed are necessary and proportionate to meet the objectives of the Bill.

Schedule 6 to the Bill sets out the information sharing gateways which are considered necessary for the Commission to exercise its functions. These provide for the sharing of information between the Commission (and persons providing services to the Commission) and HMRC, the Secretary of State (DWP) and the Northern Ireland Department. The provisions in Schedule 6 essentially replicate the existing gateways which are found in social security legislation and the Child Support At 1991 so that the Commission can access the range of information that is currently available to the existing Child Support Agency and so that the Department, HMRC and the Northern Ireland Department can continue to have access to child support information for the purposes of their functions. As the Commission will be a separate legal entity and no longer an extension of the Secretary of State, it is necessary to reformulate these gateways so that the Commission is explicitly covered.

Although Schedule 6 does not widen the existing gateways, in order for the Commission to achieve the policy aim of using historical tax data in the calculation of child maintenance, it will be necessary for it to place greater reliance on the information supplied by HMRC.

It is acknowledged that the information sharing gateways between HMRC, the Secretary of State and the Northern Ireland Department and the Commission are likely to fall within the general ambit of Article 8 but to the extent that there is any interference with Article 8(1), it is considered that the provisions are necessary and proportionate. This is because the Government is of the view that any disclosure and use of this information will be made in accordance with the law in pursuing a legitimate aim. It is considered necessary for the protection of the rights and freedoms of others and is proportionate as a means of pursuing that aim.

The aim of the provisions is to enable a much swifter and more accurate calculation of liability by using historical tax data. This will make the new system of child maintenance more efficient and effective from the beginning when an application is made. It will mean that many clients do not have to provide the same information twice to different arms of government. This will reduce the cost to the taxpayer of operating the system by using information already held on DWP and HMRC data bases. It will also reduce the burden on third parties, such as employers, from whom information has in the past been sought and which has not always been provided promptly or been accurate.

In addition to this it is believed that these information sharing gateways will increase the likelihood of maintenance payments being made sooner and reduce any build up of arrears. In cases where the non-resident parent does not co-operate with the Commission, an accurate calculation can be made from tax records or from data held by the Department. In addition to this such information will enable non-compliant, non-resident parents to be traced and ensure that appropriate and timely enforcement action is taken which will reduce arrears and ensure child maintenance flows regularly and quickly.

It must be noted that the criminal offence of unlawful disclosure of such information is extended to any member of, or of the staff of, the Commission and any person who provides, or is employed in the provision of, services by the Commission (sub-paragraphs (14) and (15) of paragraph 1 of Schedule 7 to the Bill).

(6) We would be grateful if you could explain the Government's view that the disclosure of information on individuals subject to a liability order is compatible with the right to private and family life enjoyed by the defaulting parent, their children or any new family.

Clause 35 provides the Commission with the ability to supply certain information about a non-resident parent to a credit reference agency. As identified by the Committee, one of the circumstances in which the Commission can do this is where a liability order is in force against that person. The purpose of this disclosure of information to credit reference agencies is to encourage compliance with the obligation to pay child support maintenance. It is acknowledged that rights under Article 8 may be engaged by these proposals. However, any interference with such rights is considered to be justified.

The disclosure will be made in accordance with the law and in pursuit of a legitimate aim (the protection of the rights and freedoms of others). The proposals are considered to be proportionate. The Commission has discretion as to whether to share a person's information with credit reference agencies. The Commission will have to consider whether in any individual case the sharing of information is justified. In any case where the disclosure could not be so justified, the Commission, as a public authority, would be under an obligation to exercise its discretion so as not share the information.

The type of information relating to a person that can be shared by the Commission will be prescribed in regulations. Also, the information which is disclosed to a credit reference agency can only be used by that agency for the purpose of furnishing information relevant to the individual's financial standing. Where a person makes full payment of the amounts owing under a liability order, that person's information will no longer be shared, unless there is consent to the continued supply.

Existing liability orders can currently be included on the Register of Judgments, Orders and Fines. This Register is available to the public, including credit reference agencies.

Contracting out

(7) We would be grateful if you could give reasons for your view on the adequacy of contract compliance as a means of protecting Convention rights.

(8) We would be grateful if you could explain whether or not your view is limited to the circumstances in which C-MEC might be empowered to contract out their functions.

(9) We would be grateful if you could explain whether your view represents a cross-government consensus on the adequacy of contract compliance as a means of protecting Convention rights.

Clause 8 allows the Commission to authorise a person to exercise any of the Commission's functions, but it ensures that the Commission will retain responsibility for the functions carried out by that person. Whenever an authorisation is given, sub-section (4) provides that anything done in the exercise of that function will be treated as if had been done by the Commission itself - and the same protection applies to any omissions. This is subject only to very narrow exceptions relating to any criminal proceedings brought against the authorised person or to contractual relations between the Commission and that person. Given that the Commission is a public authority for the purposes of the Human Rights Act, anything that is done incompatibly with the Convention rights will be unlawful under section 6(1) of the HRA and the victim will able to bring a claim under that Act against the Commission. Clause 8 accordingly ensures that the Commission will retain liability for any non-compliance with the HRA in the exercise of its functions, regardless of whether it performs those functions itself or contracts them out to an authorised person. The position of third parties will therefore remain unaffected by reason of a contractor exercising the function. In the Government's view, this provides proper protection for Convention rights.

In the Government's view, clause 8 and other statutory provisions of like effect provide proper protection for Convention rights. The Government will address the adequacy of contact compliance as a means of protecting Convention rights in other contexts (such as that which arose in the case of YL v Birmingham City Council) in its response to the Committee's Ninth Report of this Session on the Meaning of Public Authority under the Human Rights Act.

(10) Why does the Government consider that the publication of the personal details of defaulting parents a) serves a legitimate aim and b) will be accompanied by adequate safeguards to protect the private lives of children and other family members associated with the defaulter (as required by Article 8(2) ECHR).

A small number of non-resident parents have been named on the Child Support Agency's website. Those named have been convicted by a court of failing to give the Child Support Agency the information necessary to make an assessment of child support maintenance. The non-resident parent is given plenty of opportunity to supply the Child Support Agency with the information necessary to make an assessment. Where the non-resident parent chooses not to supply information the Agency may take action in accordance with its legal powers to prosecute the non-resident parent. The Agency does not prosecute as a first resort, giving the non-resident parent ample time to supply information. Where the non-resident parent chooses not to co-operate and is convicted of failing to provide information, publishing that parent's name on the Agency website is not in breach of Article 8(2) of the ECHR.

Interference with the non-resident parent's Article 8 rights is necessary in the interests of the economic well being of the country and to protect the rights and freedoms of others. Many parents with care are in receipt of state benefits or are on low incomes. If a non-resident parent does not pay child support maintenance the costs of supporting those children falls on others. Consideration also needs to be given to the rights of parents with care and qualifying children. It is in the public interest that a non-resident parent should pay child support maintenance as there is a legal obligation to do so. The naming of non-resident parents on the Agency's website is aimed at improving the compliance rates of the non-resident parents concerned in supplying information and making maintenance payments and deterring non-compliance by other non-resident parents.

In naming non-resident parents consideration was given to the private lives of others which might be affected. In relation to the interests of the parent with care and the qualifying children, the consent of the parent with care was sought to publishing of the non-resident parent's name on the website. With regard to the non-resident parent's new family, consideration was given to whether there were any facts known by the Agency which would preclude disclosure.

Careful consideration has been given to the responses to this policy from stakeholders and others and to the initial impact that this policy has had since the first set of names were published on the website last month. Initial consideration has shown that the number of visits to the relevant section of the Agency's website peaked on the day the policy was launched. However it quickly returned to previous levels, suggesting low levels of patronage of this part of the website and therefore questioning the potential effectiveness of the policy. In light of this no further names will be published at this time and the question of whether this policy has a role to play in the future will be kept under consideration.