'(1) In section 143 of the Social Security Act 1975 (reciprocity with other countries) the following subsection is inserted after subsection (1)—
(1A) An Order made by virtue of subsection (1) above may, instead of or in addition to making specific modifications or adaptations, provide generally that this Act shall be modified to such extent as may be required to give effect to the provisions contained in the agreement or, as the case may be, alterations in question.
(2) In section 15 of the Child Benefit Act 1975 (reciprocity with other countries) the following subsection is inserted after subsection (1)—
(1A) An Order made by virtue of subsection (1) above may, instead of or in addition to making specific modifications, provide generally that this A0 shall be modified to such extent as may be required to give effect to the provisions contained in the agreement or, as the case may be, alterations in question.".
(3) In section 32 of the Supplementary Benefits Act 1976 (reciprocity with other countries) the following subsection is inserted after subsection (1)—
(1A) An Order made by virtue of subsection (1) above may, instead of or in addition to making specific modifications, provide generally that this Act shall be modified to such extent. As may be required to give effect to the provisions contained in the agreement in question.".
§ (4) Any enactment mentioned in subsections (1) to (3) above and any enactment from which section 143 is derived (whether directly or indirectly) shall, in relation to any Order made or having effect as if made thereunder before the commencement of this section, be treated as if at the time when the Order was made that enactment contained the relevant power provided by this section'.—[Mrs. Chalker.]3.53 pm
§ Brought up, and read the First time.
§ The Under-Secretary of State for Health and Social Security (Mrs. Lynda Chalker)
I beg to move, That the clause be read a Second time.
As I have told the hon. Member for Renfrewshire, West (Mr. Buchan) the clause is tabled as a result of a point raised by the Joint Committee on Statutory Instruments in respect of the Social Security (Austria) Order 1981.
In the last few days the Committee has challenged a drafting convention that has been used since 1948 by successive Governments. I am advised that there is substance in that challenge, which we should not ignore. Hon. Members will be familiar with the background, which is, briefly, that nowadays so many people are migrant workers—that is, they spend their working lives in more than one country—that there is often a need to combine social security records and rights in more than one country.
That is done by treaties negotiated with other countries, usually referred to as reciprocal agreements on social security. Agreements have been made with 30 countries. They are given effect to by Orders in Council. The established practice is to provide that current social security legislationshall be modified to such extent as may be required to give effect to the provisions775 contained in the new agreement. That avoids the impossible task of identifying and scheduling each modification of our own extensive social security legislation that is required to apply to the cases covered by reciprocal agreements.
The agreements secure rights that would otherwise not exist. I understand that the Joint Committee has no qualms about the principle underlying traditional practice. However, as is its function, it questions the vires. My legal advice is that I should accept that the legal basis is and has been questionable. The new clause provides the necessary powers for the future and legitimises what has been done in the past.
§ Mr. Bob Cryer (Keighley)
I am pleased that the Government have tabled the new clause. It is a response to the representations by the Joint Committee on Statutory Instruments. The Committee expressed doubts about the authority of section 143 of the Social Security Act 1975 where it contemplates specific provision in an order. The Minister has responded and argued correctly that there should be primary legislative provision other than that.
I do not speak about the arrangements on behalf of the Committee. However, the provision of legislation such as this, in spite of its being valid in primary legislation, creates a difficulty. Future orders will have full and complete statutory authority, unlike the Socal Security (Austria) Order, and the user will have to consult two documents. He will have to consult both the order and the convention.
The instrument contains in a schedule the general terms of the convention, but the detailed changes to the primary legislation cannot be so scheduled. The user has to apply the detailed changes. How will the user obtain access to the information? He will have to buy a copy of the statutory instrument, which costs over £2, and he will also have to consult the convention. When an order refers to two documents, which are usually not available from Her Majesty's Stationery Office, the user is faced with additional costs.
I ask the Minister to examine the possibility of including the maximum information in the instrument that effects the changes. That is a slightly different question from the one that the Minister answered comprehensively, when she said that the new primary legislation would give full authority. One instrument would overcome the practical difficulties.
§ Mr. R. A. McCrindle (Brentwood and Ongar)
I do not oppose the new clause. I commend it to the House. However, the subject of reciprocal agreements comes before the House so rarely that I must take the opportunity to ask the Minister to consider whether provision of social security benefits under reciprocal agreements remains the most effective way of achieving the objective that we share.
I have received much correspondence over the years revealing massive discontent by British citizens settled abroad, not least because of the wide inequalities between countries. If I am a British old-age pensioner settled in Spain I have wide access to social service provision, whereas if I am settled in Portugal the provision to which I have access is comparatively small. If I am an old-age pensioner living in Canada, although the Canadian authorities are prepared to move toward reciprocal 776 agreement, for a variety of financial reasons that I understand, the British authorities are not prepared to move.
I hope that the Minister will turn her attention to the whole basis of reciprocal agreements and consider whether, because of the injustice that so many people feel, that method continues to be the only or best way of achieving justice for British people settled in many different parts of the world.
§ Mrs Chalker
I thank the hon. Member for Keighley (Mr. Cryer) who is Chairman of the Joint Committee on Statutory Instruments. That Committee's work brought the problem to our notice. I accept that there are difficulties for the user in having both an order and a convention. However, the social security department of the country with which we have a reciprocal agreement usually has a working document that brings together the aspects of the order and the details of the convention, which are not contained in one document.
We also have an extensive overseas department within the DHSS which can give advice. One of the problems that I might bring to the notice of the House—it concerns what my hon. Friend the Member for Brentwood and Ongar (M. McCrindle) said—is that very often pensioners who retire abroad do so without getting adequate advice or without asking for any advice before they contemplate this change. Successive Administrations have had some difficulty in bringing to the notice of pensioners or other people who go to work abroad the exact way in which the regulations work. I am always willing to re-examine the question of bringing information to the notice of potential claimants and to make sure that people are aware of their rights in this, as in many other ways, but to bring it together in a single document would probably make it inordinately expensive—the very point at which the hon. Member for Keighley was hinting.
Through the Department, and particularly through our overseas branch, we should do everything possible to advise persons who take up occupations abroad what they should do and what class of contributions they should pay to contribute towards their benefits in the long term, and shall give them advice, both in advance or during their absence abroad, but if they settle permanently in another country it is the responsibility of that country with whom we have a reciprocal agreement also to advise them of the way in which this will work out.
Turning to the comments made by my hon. Friend the Member for Brentwood and Ongar, I understand that many pensioners who have settled abroad are not happy if they fall into the category in which they cannot receive increases in pension claimed after they leave this country. He is very well aware of the very difficult on-cost that that would present, and of the fact that before people go abroad they know of this situation which has existed under Governments of both parties for a very long while. We aim in every case to give advice well in advance, and as the numbers of reciprocal agreements increase year by year we hope very much that the knowledge will also be more readily available to people who are employed by companies working both in this country and abroad.
In addition to the 30 agreements that already exist, I have recently signed an agreement with Mauritius, which is now awaiting ratification. Some of the agreements already considered—the hon. Gentleman referred to 777 Portugal—have been drawn up not just for the convenience of the British Government but for the convenience of the particular Government with whom we have the reciprocal agreement.
This clause is a step forward. We cannot do all the things that we would like to do but I hope that the Committee will accept it in good faith, because we wish to make sure that we are totally within the law and not in any way acting ultra vires.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.