HL Deb 25 April 1995 vol 563 cc794-910

3.21 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 6 [Availability for, and actively seeking, employment]:

The Chairman of Committees (Lord Boston of Faversham)

I should tell the Committee that, if Amendment No. 40 is agreed to, I cannot call Amendments Nos. 41 or 42.

Lord Renton

Before the noble Earl, Lord Russell, moves Amendment No. 40, I should like to suggest that it would be logical and helpful if we were to discuss with it Amendments Nos. 45 and 54. Each of those three amendments suggests leaving out certain words in Clause 6 on page 5, and the concepts of the three expressions which the noble Earl suggests should be left out overlap. I am not sure whether it is possible at this stage to suggest such a regrouping, but if it were possible I believe that it would be to the advantage of the Committee.

The Chairman of Committees (Lord Boston of Faversham)

As always, the Committee is in the hands of your Lordships. If it is desired to speak to those additional amendments at this time it is open to the Committee to seek to do so.

Earl Russell moved Amendment No. 40:

Page 5, line 11, leave out subsection (1).

The noble Earl said: I apologise for delaying the Committee. Because of the circumstances, it was not possible to have all my papers ready.

After a ceremony of such distinction it is difficult to avoid an impression of anticlimax. Yet, it is in the spirit of the humble Address which we have just carried that in the midst of unity there is division. That is part of our strength.

Amendment No. 40 proposes to leave out a provision that regulations may define the terms "actively seeking employment" and "available for employment". It is one of a series of amendments dealing with delegated powers in my name on the Marshalled List. I want to ask my usual five questions. Since this is the first amendment of the day I shall repeat them once.

First, why do the Government wish for a regulation-making power? Secondly, what do they propose to do with it? Thirdly, what else could be done with it? Fourthly, what are the extreme limits of what could be done with it? And, fifthly, how can the House give or withhold its consent to what is done under it?

For once I am not concerned primarily with the question of whether this provision should be in regulations or in primary legislation. I am concerned with whether it should be in legislation at all or whether we are dealing with something which should more properly be the responsibility of the courts.

The essential point about the provisions relating to "available for employment" and "actively seeking work" is that they are tests of intention. If we are to discover it, intention has to be examined on a case-by-case basis in the light of all the circumstances at the time. In the case of mens rea, the courts are fully used to trying to work out intention. But to attempt to set out in legislation one outward and visible sign which shall be taken for proof of intention is very difficult indeed.

There is a classic example on our statute book. That example is an Act of 1571 immediately following the papal bull excommunicating and deposing Queen Elizabeth I. Certain Back-Bench Members in another place introduced a provision which was designed to make it treason to convert Her Majesty's subjects to the Roman Catholic Church. Lord Burghley considered that provision. He was not happy with using the single act as evidence of intention and procured the amendment of the provision to read that it was treason to withdraw Her Majesty's subjects from their allegiance or, for that intent, to convert them to Rome. He put the judgment of intention back where it belonged—to the courts, That, I respectfully suggest, is a precedent for the spirit in which these regulations should be approached.

As the Renton Committee observed (I have not had time to look out the quotation, but I am sure that the noble Lord remembers it and will confirm its approximate accuracy), it is not humanly possible to foresee in drafting all the circumstances which may possibly arise. Therefore, if we attempt to set out outward and visible tests of actively seeking employment and being available for employment, we simply shall not get it right.

That style of draftsmanship has quite a long history. To my knowledge, it goes back to a series of Catholic penitentiaries originating from 10th and 11th century Germany. The intention of those penitentiaries, just like the intention of this Bill, was to restrict discretion in order to ensure that the legislators' intention was observed. A fixed tariff of penance was laid down for each possible sin, very much on the principles of the mandatory life sentence. That led the draftsmen into a welter of detail of possible sins so lurid that the Sunday Sport would hesitate to print some of them.

To take one or two of the milder examples, there was a provision in those penitentiaries providing a specific penance for the offence of buggery with a swan. There is a long-standing disagreement among historians about whether we use those penitentiaries as evidence that such sins were once committed or whether we use them as a memorial to over-fussy draftsmanship. Looking at this Bill, I am inclined to opt for the second. But even then the legislators of the penitentiaries did not get it all right. They provided for such an eventuality with a swan, but they never thought of providing for it with a goose.

So, if we try to define "actively seeking employment" and "available for employment" in regulation, we shall be changing those definitions all the time. We may often wish to withhold our consent from them. Whatever we do with them, those definitions certainly will not fit the circumstances of the individual case before the adjudication officer.

In their memorandum to the Delegated Powers Scrutiny Committee, the Government said that these are new powers in social security law. The expressions have never been defined in primary legislation, and there has never been an explicit power to define their meaning.

This is one case where our predecessors refrained from action for good reasons. I should like to know why the Department of Social Security does not propose to follow their example. I beg to move.

3.30 p.m.

Lord McCarthy

The noble Earl posed a number of very good questions to the Government. I hope that we shall receive answers sometime today. However, on this part of the Bill we have another, different question. It goes, I suppose, rather against the spirit of what the noble Earl said. Our view is that the definition as to availability and activity should not be left to regulation. We believe that it should be on the face of the Bill, because people wish to know what activity means and what availability means. If the courts are to interpret, we want them to have some definition to interpret.

We know that there are many reasons why the Government would wish to leave the matter totally unspecified in the statute. Anyone who has read correspondence from various interested parties, such as the citizens advice bureaux, with much practical experience of the operation of these terms, will know that out there in the field people do not know what the terms mean. Those people are concerned that they receive different ideas of what activity and availability mean from different employment units or jobcentres. There are considerable anxieties that, when we go over to regulation, in practice these terms will be tightened up in all kinds of ways, and that that is what the provisions will entail.

We believe that we should start with a definition. If the Committee will bide its time for a moment, the next amendment provides a definition for consideration. However, in the meantime we agree with the noble Earl that it should not be done by regulation.

Lord Renton

First, I wish to make it clear that I support the Government's view that the word "actively"—it is used in Clause 1, and again in Clause 6(2) and (3)—is vital to the application of the principles of the Bill. However, having said that, I believe that both the noble Earl, Lord Russell, and the noble Lord, Lord McCarthy, have made points which deserve our serious consideration.

We should consider carefully the question of secondary legislation in order to explain primary legislation. Secondary legislation can only have the intention of attempting to describe a number of hypothetical circumstances. When my noble friend replies to the discussion, he may be able to say that I am wrong about that. But it seems to me in the circumstances that that is all, fundamentally, that secondary legislation would do.

It is perfectly plain from experience and from the terms of the Bill that, in the practical circumstances in which people who look for work live, hypothetically circumstances can vary widely. Instead of relying upon secondary legislation in order to amplify the expression "available for employment" and "actively seeking employment", I should have thought it worth considering whether it would not be better to leave the matter to those who will have to decide those cases—mostly not the courts but those who have to decide appeals. If we are to go into hypothetical circumstances, we should bear in mind what has already gone before in the Bill. Clause 1(2) clearly sets out a number of practical circumstances. It seems to me to be rather difficult to elaborate those in great detail.

I had considered with the noble Lord the Chairman of Committees that the amendment could well be discussed with Amendments Nos. 45 and 54, also in the name of the noble Earl; we shall come to those amendments. However, I shall be obliged to refer to them for a moment in order to see whether the suggestion of secondary legislation is suitable in the particular circumstances bearing in mind those later provisions.

The next provision which the noble Earl wishes to leave out relates to Clause 6(2) (c), which states, A person who is not actively seeking employment is to be treated as actively seeking employment". I find that a very strange contradiction in terms. I have never come across a more complete contradiction in terms in any Bill in my 50 years' experience in Parliament. We shall no doubt have it explained to us. However, it makes one wonder whether secondary legislation would fit well into that particular, strange concept.

The next omission which the noble Earl suggests in Amendment No. 54 is to leave out paragraph (a) of subsection (3). Subsection (3) deals with what the regulations may do. First, the regulations may, make provision with respect to the steps which a person is required to take in any week if he is to be regarded as actively seeking employment in that week". I must say that I find that provision a little more sensible. But, again, the variation and the circumstances stretch the mind considerably. If regulations have to be made taking into account all possible steps, and no doubt some leaving out steps that are to be ignored, then we enter into a further complication.

I hope that I have said enough to make my noble friend Lord Inglewood, who is always so diligent in these matters, feel on reflection that he will have to do a great deal to convince the Committee that we need secondary legislation, and, if so, whether the way in which Clause 6 contemplates that it should be achieved is suitable.

Baroness Faithfull

I should like some help from the noble Lord, Lord McCarthy, on the words "actively seeking employment". I was in Easterhouse in Glasgow not so long ago. There is no work anywhere in that area. If a man is actively to seek work he will have to go into Glasgow. That involves fares, the money for which he does not have. Realistically, what does "actively" mean? In principle, it is right that people should actively seek work, but it is not always practical.

Lord McCarthy

I agree entirely with the noble Baroness's remarks. The problem is that so far we have not known what "actively" means; it means different things in different places. I take it that it now means what is in the jobseeker's agreement which will specify what the poor person has to do. If people do not follow the processes they will not be regarded as actively seeking work.

Lord Monkswell

The noble Baroness has highlighted one of the problems which will be caused by writing the precise arrangements into the regulations which will be approved by Parliament. There will be geographical variations in what will be considered acceptable in terms of actively seeking work. In the circumstances mentioned by the noble Baroness, reading the local paper may be the best that can be done. In other circumstances, attending the local Jobcentre and looking at the advertisements there may reasonably be expected. However, to write that variation into regulations is neither feasible nor practical.

As a way of dealing with the situation, one would be willing to consider the suggestion by the noble Lord, Lord McCarthy, and the noble Earl, Lord Russell. Let us have a broad definition of what Parliament means by "actively seeking work" and "being available for work". Then we could say: "Yes, that will be for interpretation by the officials in the department". That interpretation will be subject to legal challenge from time to time and, as a body of case law develops, there will be guidance from the courts on the interpretation of Parliament's will. That is a tried and tested way of conducting business in the country and running our social affairs. I commend it to the Committee because of the regional variations that have been highlighted as well as the variations over time of human activity and endeavour. What may be expected as reasonable for a person at one time may in a few months or years be considered unreasonable.

The other problem with the text of the Bill is the totally unreasonable element under Clause 6(2) (a), (b), (c) and (d). That would give Ministers the power to say that black is white and white is black. We should be careful in Parliament about even hinting that Ministers should have that power. It is totally unreasonable to suggest that Ministers should aspire to such powers.

Earl Russell

Before the Minister replies, I owe it to the noble Lord, Lord Renton, the Minister and anyone else who may wish to speak to take up the point about groupings. I apologise for not doing so straightaway. In the course of changing places at the end of the humble Address, I had not finished unpacking my papers.

Amendment No. 45 has many points of overlap with Amendment No. 40, but it makes one specific point dealing with compulsory training which I would prefer to keep ungrouped. Amendment No. 54 concerns behaviour and appearance, but Amendment No. 50, mentioned by the noble Lord, concerns next steps. I am happy for Amendment No. 50 to be grouped with this amendment, so if anyone else wishes to speak to it, they should take that chance now.

I take the point made by the noble Baroness, Lady Faithfull, as regards places where no work is available. I have a case in my briefing papers of a person required to make five job applications every week. He was disentitled to benefit because there were not five jobs available in the area in the relevant week.

Under Amendment No. 50 and the next steps, although prima facie it looks as though it is good draftsmanship, we may run into the risk of total enumeration in drafting. To touch briefly on Amendment No. 61, we may also be leaving out actions which people might take in order to seek work which regulations have not remembered to specify—of which there may he many [...]ples. I accept the grouping in relation to Amendment No. 50. However, I would prefer to say a brief word later on Amendment No. 45. I am grateful to the noble Lord, Lord Renton, for his remarks which were extremely interesting. I listened to them carefully and will read them carefully.

3.45 p.m.

Lord McCarthy

The noble Lord said that he was speaking to Amendment No. 50 which we wish to support. It leaves out lines 24 to 26 under which the Bill takes regulatory power to specify the steps which must be taken in any one week if someone is to he thought to be actively seeking work. It is a typical example of over-regulation, over-precision. It would give considerable power to the regulator, whoever it may be. Although the regulations may not be available to the unemployed, they will be available in the adjudicator's handbook and to those who work in employment exchanges. The wording is too precise and complicated and we support its removal from the Bill.

Lord Campbell of Alloway

I suggest that "available for employment" and "actively seeking employment" are the type of terms which, by tradition, are defined in primary legislation. It is taking matters too far along the line of delegated legislation to leave the terms to subsidiary legislation in such circumstances.

Baroness Faithfull

I apologise for rising a second time, but I wish to make another point born of my personal experience. Three men came to me to ask whether they could run a children's nursery because all their wives were working and they were doing nothing. I made arrangements for them to run the nursery, first, by giving them training and, secondly, by allowing them to run it in a health centre. Then their social security was withdrawn because they were not actively seeking work. Each of them went to the Jobcentre once a day, but there was no point in actively seeking work because there was none. Cowley works had just closed, as we all know. I am sorry I did not make that point earlier.

Lord Henderson of Brompton

I entirely agree with the noble Lord, Lord Campbell, and also follow the thinking of the noble Lord, Lord Renton. These matters are fundamental to the Bill and we were told that when considering Clause 1. It is difficult for us to reach a conclusion without the guidance of the Delegated Powers Scrutiny Committee which will no doubt have a view. We ought to know that view before we reach a decision.

I am strongly in favour of asking the Government to make an exception over the delegated powers which they seek to put in the Bill in favour of at least incorporating the amendments into primary legislation. As we are without the substantive report of the Select Committee, perhaps we should not take that step until we receive that report and then we shall be able to do something at Report stage. The amendments arc important and should not be in subordinate legislation.

Lord Inglewood

I begin by thanking the noble Earl, Lord Russell, for his extremely erudite and complete opening comments in support of his amendment. I shall also endeavour to take Amendment No. 50 at the same time, as I understand that is the wish of the Committee.

As I understand the noble Earl's proposition, he suggested that the key test that should be applied to the availability and "actively seeking work" criteria is essentially one of mens rea. One has to look into the minds of the persons concerned. That is the test by which you can define whether or not that is being done. If you do that, it would then seem to follow that cases of dispute will inevitably lead to adjudication and appeals, and to the courts. I understand the logic behind the noble Earl's thinking, although I suspect that it falls foul of the problems that were experienced in the 1930s, when the test was one of "genuinely seeking work" and the problem was how you identified that.

I should have begun my remarks by reiterating the comment that was made by the noble Lord, Lord Henderson of Brompton. Obviously, we are dealing with this matter in the absence of the committee's memorandum and that fact is very relevant to our debate.

The difficulty, in theoretical terms, about the route down which the noble Earl, Lord Russell, is going is that the purpose of this legislation is to try to operate the social security system. I suspect that that is why the noble Lord, Lord McCarthy, appeared to take a slightly different tack. If I understood the noble Lord correctly, his point was that it is crucial to have a definite, cast-iron, all-embracing, all-encompassing definition on the face of the Bill.

That point in turn contrasted slightly with what my noble friend Lord Renton said. He appreciated that there is a need to target and fine-tune in the context of this kind of legislation. Inevitably one is talking in many instances about what my noble friend described as hypothetical circumstances. Probably the best way to deal with the matter is to leave it to those on the ground who actually decide. Again, I understand the thinking behind that point. But it makes it difficult for there to be the necessary degree of certainty that is so important in our legislation, particularly when we are referring to matters of money and so on. It would leave considerable discretion in the hands of people and, while they will no doubt exercise that discretion entirely honourably, it will be difficult for those who are affected to know where they stand without going through the entire procedure.

Finally, in considering the debate about how one should approach this particular problem, I hear the remarks of my noble friend Lord Campbell of Alloway. The point was reiterated by the noble Lord, Lord Henderson of Brompton. My noble friend said that the right place for the definitions is on the face of the Bill.

In this regard, the Government face a very real problem. We are talking about the very wide-scale disbursement of public money to people in a wide variety of different circumstances. That money has been collected from the taxpayer and is to be given to people who, under the definitions that we are discussing, are considered to have an entitlement. I do not think that there is any disagreement between us and the Benches opposite. In the modern world we have to try to target the way in which these resources are disbursed in order to run the social security system effectively and in the public interest. I am extremely conscious of the very considerable experience that was represented behind the comments that were made, and I wanted to put it in that form. That is the approach that we have adopted in trying to deal with this matter.

Lord McCarthy

I agree with much of what the noble Lord says. He says that the court is uncertain, and the regulations are uncertain. Surely that is the case for putting definitions on the face of the Bill. The point is not that the Bill should merely tell the Government what some of the rules are (not cast-iron rules) but that it should tell the unemployed, the associations and the CABs what the rules are. They would have a framework within which they could tell people they would work. What is wrong with that?

Lord Inglewood

So far as it goes, nothing is wrong with that. However, if we are to target effectively, it will inevitably be necessary to have quite clearly defined targets towards which the resources will be directed.

Lord Campbell of Alloway

Perhaps my noble friend will forgive me for intervening. If we want to define the matter clearly, let us put it on the face of the Bill and let us then have an objective discussion across the Floor of the Chamber as to how the legislation operates in practice. What is the objection to the traditional position of putting a definition of this sort on the face of the Bill? I accept what my noble friend the Minister said, but what is his objection to my proposal?

Lord Inglewood

We can give an overall definition; but the detail of the targeting is, as the noble Lord, Lord McCarthy, said, the important matter. If circumstances change, we in turn would want to change. In Clause 33 special provisions are in place to try to make quite sure that Parliament exercises a considerably greater degree of scrutiny in practice over these matters than may ordinarily have been the case in the past.

Baroness Hollis of Heigham

Perhaps the Minister will give way. I am simply baffled by his use of the word "targeting" in this context. We are not talking here about money or numbers. We are talking about a definition, so that people know what the assumptions are, on the face of the Bill, as to what "actively seeking work" means. There is nothing to stop the Government amplifying any definition subsequently by regulation. That may indeed be appropriate. This amendment would turn what is at the moment a framework Bill into a Bill in relation to which at least those whom it affects will know where they stand. Secondly, what on earth has the word "targeting" to do with anything? If the Minister is saying that he does not want definitions on the face of the Bill because he may want to pursue particular groups as the spirit moves after the event, then Heaven defend us!

Lord Inglewood

The noble Baroness has made much of my case.

Baroness Hollis of Heigham

Will the Minister accept my conclusion that the definition should be on the face of the Bill?

Lord Inglewood

We have discussed this matter in very great detail. Perhaps it would be helpful to the Committee if I described what the Government feel is appropriate in these circumstances.

The amendments that the noble Earl proposed would have the effect of removing the power to define in regulations the main labour market conditions for receipt of JSA; namely, being available for and actively seeking employment. This would be to the detriment of the benefit. JSA provides the opportunity to define the availability condition in a fuller, clearer way than has hitherto been possible.

At present, as Members of the Committee will have found if they have studied regulations for unemployment benefit and income support, availability tends to be defined only indirectly. It is important that people have a clear understanding of the conditions on which their entitlement to jobseeker's allowance depends. They must be available for employment and seek employment actively. These are essential elements of our policy to encourage people back into work.

Under JSA, the availability and active seeking conditions will be defined in regulation rather than in primary legislation, following existing practice. This gives us the flexibility to adjust the benefit rules over time to reflect the realities of the labour market, and enables us better to help jobseekers to get back to work.

We rely on secondary legislation in social security legislation because of the degree of detail in specifying entitlement, and the need to incorporate sensitivity to the labour market and to maintain coherence with changes in other benefits. I reassure the Committee that the affirmative procedure will apply initially to all of the regulations. After that, regulations will be subject to scrutiny by the Social Security Advisory Committee.

As we have already made clear in the JSA White Paper, there will be a new definition of "available for employment" under JSA. Jobseekers will be required to be available for any work which they can reasonably be expected to do, usually for a minimum of 40 hours a week. Of course, people will continue to look for and obtain jobs across the full range of hours that are currently worked in our flexible labour market. That test ensures that they do not unnecessarily close off opportunities.

The definition of "availability" will allow people with disabilities to restrict their availability in accordance with their mental and physical condition. For the first time it will explicitly provide for carers to restrict their availability and it will enable people to restrict their availability on religious or conscientious grounds.

So far as concerns the definition of "actively seeking" I am happy to give the Committee an indication of our intentions. JSA regulations will carry forward from the current regulations the principle that a jobseeker must take steps to afford himself his "best prospects" of finding employment, subject to a test of reasonableness. As at present, regulations will also include a list of circumstances which are to be taken into account when assessing whether a jobseeker has met that condition. We intend that the list, as now, will include the jobseeker's skills and qualifications and the condition of the labour market. It will also reflect his progress to date in finding work.

We shall also carry forward the principle that taking one step in a week on one occasion is not normally sufficient. As at present, the list of steps will include actual job search: applying for jobs, registering with an agency, and so on. But in the JSA regulations we shall be extending the list to include actions which improve a jobseeker's employability, such as drawing up a CV, researching potential employers and alternative occupations, obtaining references, seeing a specialist adviser and attending short job-related courses, normally of no longer than two weeks in one year. That change is designed specifically to allow each jobseeker to focus on the actions that provide him with his best chances of getting work.

In his opening remarks, the noble Earl, Lord Russell, gave notice that he would ask five questions in respect of the delegated powers. I hope that he will feel that I have answered the first two of those questions in the comments I have already made.

With regard to the third question—what else could be done by the vires contained?—I do not believe that it would be useful to speculate on how a future government of any persuasion might wish to use the power. I can only answer for our current plans and intentions. I believe that there are already adequate safeguards within the parliamentary system to deal with the possible abuse of powers contained in primary legislation. All secondary legislation must be submitted to the Joint Committee on Statutory Instruments, which in particular has the power to report to the House subordinate legislation where "it appears to make unusual and unexpected use of the powers conferred by the statute under which it is made." It also reports provisions which exceed the powers of enabling statutes.

In the final instance, I believe that the courts are fully capable of handling genuine abuses of power. In addition to the JCSI, most secondary legislation relating to social security will be subject to scrutiny by the Social Security Advisory Committee which may, following any necessary consultation, make a report to the Secretary of State. If the Secretary of State then proceeds with the regulations he must lay before the House a copy of the report. That scrutiny will take effect for regulations laid more than six months after the enabling power commenced. We have already set out in the Jobseekers Bill that most regulations laid before that date, when jobseeker's allowance is first payable, will be subject to the affirmative resolution.

Perhaps I may briefly turn to Amendment No. 50. We believe that it is essential that jobseekers should keep in touch with the labour market. That is why the requirement to seek work actively is a condition to entitlement to JSA. The rules will be contained in regulations under Clause 6. Clause 6(3) (a) and (b) elaborate on our intentions for the regulations which will be drawn up under the clause. Amendment No. 50 seeks to remove that clarification.

The Committee may find it helpful to have an indication of our intentions. JSA regulations will carry forward from the current regulations the principle that a jobseeker must take steps to afford himself his "best prospects" of finding employment, subject to a test of reasonableness. All decisions on actively seeking employment will be subject to independent adjudication. As at present, regulations under Clause 6 will also include a list of circumstances which are to be taken into account when assessing whether a jobseeker has met the condition.

We intend that the list, as now, among other things will include the jobseeker's skills and qualifications and the condition of the labour market. It will also reflect his progress to date in finding work.

We shall also carry forward the principle that taking one step in a week on one occasion is not normally sufficient. As at present, the list of steps will include actual job search: applying for jobs, registering with an agency and so on. But in the JSA regulations we shall be extending the list to include actions which improve a jobseeker's employability, such as drawing up a CV or seeing a specialist adviser. That provision is designed specifically to allow each jobseeker to focus on the actions that provide him with his best chances of getting work.

I believe that the proposals that I have outlined represent the necessary balanced and reasonable approach. We believe that, in contrast, Amendment No. 50 is designed to undermine the actively seeking employment condition. Therefore I urge the Committee to reject it.

Lord McCarthy

Before the noble Lord sits down, perhaps I may ask him one question. He made a number of statements after he said what the Government had in mind before he turned to the questions of the noble Earl, Lord Russell, and before he went on to answer Amendment No. 50. My query is: was this new matter? Was this a new policy that he gave us or was he just rehashing and re-reading bits of the White Paper? Is there something new that we should read with great care?

Lord Inglewood

There is nothing new. It is all contained in the memorandum.

Lord Boyd-Carpenter

Before my noble friend finally sits down, can he say whether there is any precedent in any previous legislation for providing that words in the Bill shall, have such meaning as may be prescribed"? Are there any precedents for that, or is it a new expedient?

Lord Inglewood

Yes, this is not the first time.

Lord Boyd-Carpenter

Can the noble Lord say where the precedent is to be found?

Lord Inglewood

In order to give chapter and verse, I shall write to my noble friend.

Lord Campbell of Alloway

Will my noble friend the Minister possibly consider not opposing—or not having a Division—on the amendment at this stage? I find it difficult to support the amendment as it stands. I wish to see these terms enshrined in primary legislation for the reasons I gave briefly. The amendment does not in fact achieve that result. This is a matter of some importance. It transcends the actual importance of the Bill. I wonder whether my noble friend can possibly reflect on the matter and avoid a Division at this stage.

Lord Renton

Before the noble Earl informs the Committee of his attitude, I wonder whether he and indeed the whole of the Committee will bear in mind that my noble friend Lord Inglewood has given us a very long and detailed statement which he asks us to consider on the question of whether or not there should be secondary legislation to fulfil the Government's intention.

As I listened to my noble friend, I concentrated as hard as I could, but I found it impossible to reach a conclusion. Therefore, I think that perhaps we might agree on both sides of the Committee, including my noble friend, not to take a decision on this matter now but give ourselves time to study carefully and in detail what my noble friend said and if necessary come back at Report stage.

Lord Shepherd

I am a member of the Delegated Powers Scrutiny Committee. On behalf of my colleagues on that committee, I apologise to this Committee. For circumstances which I think are reasonably well known, we were not able to produce very much more than what is available as an interim report to the Chamber. Since becoming a member of the committee—I have been there from the outset—I have become more and more conscious of the fact that regulations impinge more upon the ordinary citizens of the country than does primary legislation. Yet we spend hours, if not days, on primary legislation and take a cursory interest in regulations and orders.

We also have a convention in this Chamber that we do not vote against orders. I know that we adapted a new system—it was when Conservative Peers were on this side of the Chamber and I was on the other side—by tabling resolutions to an order. That left it open to the Government to proceed, but it was a clear indication that we were only prepared to allow the orders to go through provided the Secretary of State had regard to what was moved by your Lordships in the resolution.

I do not remember a Bill of this nature in some 40 years. Primary legislation has a role and delegated legislation is an essential part of it, But delegated legislation should be broadly the implementation of that which is contained in primary legislation. Therefore, how does one deal with it in this Chamber? This Bill is basically a skeleton Bill. The noble Lord, Lord Inglewood, referred to it as a foundation Bill, but they mean the same thing. We have little idea of what the end product will be of the powers being given. We have had a debate this afternoon in terms of what is "actively seeking employment". There is no real definition, even from what I heard this afternoon, from anyone as to what is active pursuit. The noble Baroness referred to her difficulties, as did my noble friend Lord McCarthy. I am sure that if we were in our 'forties and 'fifties and lost our jobs with Shell, we would have difficulty in finding suitable employment.

Lord Hailsham of Saint Marylebone

I would.

Lord Shepherd

I am sure the noble and learned Lord could take on almost any responsibility and do it most effectively. But I come back to this fact. If this Bill were to proceed as it stands, we would need to look at the procedures for examining orders and regulations in a great deal more depth than we now do. I do not see that as a procedure which should apply to all delegated regulations. But in a Bill of this nature Parliament should have a closer look at what is being proposed.

The noble Lord, Lord Inglewood, said that the joint committee on delegated statutory instruments possesses certain powers, but those powers are extraordinarily limited. It can consider the vires and the extent of the powers being exercised. But when one has, as it appears in the Bill, powers being taken with no limits either at the beginning or at the end, I do not know how the committee could ever seek a judgment. Therefore, if the Government wish to pursue this Bill in its present form—I would hope that they would take note of the pleas from many quarters of this Committee—then they should make some effort, despite the difficulties which I can understand, of putting more on to the face of the Bill. That would form a synergy with the delegated powers committee. They would be providing a great service to Parliament and to the people affected by the legislation.

This matter will need to be considered between now and Report stage. I do not know how much the Delegated Powers Scrutiny Committee will be able to contribute. The size of the task is immense. We are limited in resources as to what we can propose as alternatives other than making broad-brush recommendations. It is not within the powers of this Committee or your Lordships at Report stage to bring forward anything but amendments which only touch the surface of the problem. The real problem lies in the way in which the Bill is constructed. If the Government, between now and Report, make an earnest endeavour to put on to the face of the Bill a clearly stated case, then the orders will fall naturally with it. If they do not do that, this Chamber and another place—I can only speak for this Chamber—will have to look at the way in which orders are considered and finally approved by us.

4.15 p.m.

Lord Harmar-Nicholls

I cannot go all the way with the noble Lord, Lord Shepherd, to whom we listen with care as a former Leader of the House and a member of the committee which looks into these matters. As I understand it, in giving advice to the Committee he said that no delegated regulation should differ from the general scope as set out in primary legislation. The noble Lord indicates that that was the message he wanted to convey. But that does not allow the Committee and the Chamber to work as effectively as it must.

Primary legislation can only take into account circumstances of which Parliament is aware at the time it enacts the primary legislation. The value—and the only value as I see it—of delegated regulations is that they can take into account at a later stage new circumstances which may have arisen after the primary legislation was put in place. On this occasion the opposite of what the noble Lord recommended should be the case. My noble friend Lady Faithfull gave two examples. It may well be that more examples of that sort will show themselves. In the light of that, there should be power to table regulations which will amend the primary legislation to meet the special needs of the examples we have just given. For that reason, I cannot go all the way with the noble Lord.

Lord Shepherd

I thought that for once the noble Lord, Lord Harmar-Nicholls, was on my side of the argument, but then he rather spoilt it. Will he agree with this? It is important that the first regulation is the right one. Later on we can improve by flexibility, by changes of what was the first regulation; but it is the first regulation that is important, particularly when one is establishing, as we arc now discussing, a specific issue. If the noble Lord is willing to go along with that, for once we shall be in agreement.

Lord Boyd-Carpenter

Will my noble friend be able—if he cannot do it now, at any rate at the next stage—to let your Lordships know whether there is any precedent in previous legislation for such a wide provision as that contained in this clause? The words, have such meaning as may be prescribed", are extremely wide. I do not recall—I am not an expert in these matters—any other statute where that provision is in such wide terms. Perhaps my noble friend can tell us whether that is so and which statute contains it.

Lord Campbell of Alloway

For the sake of the record, as I have been involved in this argument, I wish to state that I wholly agree with the noble Lord, Lord Shepherd, and respectfully wholly disagree with my noble friend Lord Harmar-Nicholls.

Lord Inglewood

Perhaps I can respond to one or two of the points raised, particularly to that of my noble friend Lord Boyd-Carpenter. I have in my hand a copy of the Social Security Contributions and Benefits Act 1992, which gives an example of this provision. It is not quite good enough for the proposition about which we were talking, but I shall come back to the Chamber with other examples because I am confidently advised that they exist elsewhere.

My noble friend Lord Renton and the noble Lord, Lord Shepherd, made some extremely important points, and I am grateful to them for their remarks. Clearly this matter is of importance and is close, and properly close, to a number of your Lordships' hearts. We shall certainly consider extremely carefully everything that has been said here this afternoon on the subject. But I reiterate the Government's position that the present balance between primary legislation and regulations is roughly right in what we are proposing for the JSA.

Earl Russell

This debate has shown the House absolutely at its best. I am grateful to all noble Lords who have taken part in it. The noble Lord, Lord Shepherd, is right that this goes to the heart of the way the Bill has been constructed. Therefore, though the debate has taken time, I hope that before we are through it may turn out to have saved us time. The noble Lord, Lord Campbell of Alloway, is also right that the issue goes far beyond the scope of the Bill.

It had never been my intention to divide on the amendment today. We need to wait for the report of the Delegated Powers Scrutiny Committee, which, as I have said before, has been delayed through no fault of its own. But had it been my intention to divide, the remarks of the noble Lords, Lord Henderson of Brompton, Lord Campbell of Alloway and Lord Renton, and the final concluding remarks of the Minister would have been enough to dissuade me.

The noble Lord, Lord Campbell of Alloway, argued for placing the terms on the face of the Bill. He knows perfectly well that that is a type of argument for which I am normally an enthusiast. However, it seems to me to be a little more tricky than that. The basic principles here are placed on the face of the Bill. They are in Clause 1(2)—the claimant must be available for employment and actively seeking employment. But what we have here in all these regulations is an attempt to prescribe what shall be taken for evidence of being available for employment and actively seeking employment. The passage that seems to bear on this is the passage in the Renton Report, which I quoted last Thursday and shall not quote again, about attempting by drafting to guide the court's definition of intention. It is over-detailed draftsmanship. That is why I did not go down the road outlined by the noble Lord, Lord Campbell of Alloway. It tempts me very much, but I could not see a way along it on this occasion.

I was particularly grateful to the Minister for the care he took to think through the issues raised by the amendment. I understand the difficulties of a test of "genuinely seeking work", but that is what we have with the way a lot of the actively seeking work tests are conducted at present. I also entirely take his point about what he called "the necessary degree of certainty". I appreciate what it does to someone to be deprived of something that he thought was an entitlement. However, if the Minister looks at the arguments of the Renton Committee, he will consider amending the words "the necessary degree of certainty" to the words "the desirable degree of certainty". Attempting to achieve certainty by more and more careful draftsmanship, however desirable it may be, is at the end of the day a will-o'-the-wisp.

The Minister will, I hope, now accept that the amendment does not remove from the Bill the test of actively seeking employment or of being available for employment. It merely avoids a whole lot of tests of the intention being set out in regulations, which I think is not the best place for them. Clearly, we all have a great deal more thinking to do on all sides of the Chamber before we get this right. I hope that there will be more discussion of it inside and outside the Chamber. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Lord McCarthy moved Amendment No. 42:

Page 5, line 11, leave out from ("Act") to end of line 12 and insert ("a person is available for employment if he is willing to do any work which he can reasonably be expected to do; and a person is actively seeking employment if he is taking such steps which are reasonable in his case as offering the best prospects of obtaining work and in this section "work" means employment either as an employed earner or as a self-employed earner and these terms shall have the same meaning as in section 2 of the Benefits Act).").

The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 61. Members of the Committee who are aware of the grouping will know that Amendment No. 44, in the name of the noble Earl, Lord Russell, has also been grouped. I am quite happy that that should be the case. If the noble Earl wishes in due course to press it to a Division I shall support him. However, I shall not speak to that amendment because he will be able to do that much better than I can. I am speaking in the first instance to Amendment No. 42 and I shall come in a moment to Amendment No. 61.

Here we are sticking out our neck. After having said that we believe that there should be something on the face of the Bill, we felt that we ought to put something on the face of the Bill. It is up to the Government to say whether they like it. It is a cock-shy. I am quite sure that things can be found to be wrong with it. Things can be found to be wrong with any definition. But it is the first attempt to say the kind of thing which we feel could be on the face of the Bill. Therefore, at page 5, line 11, we say leave out from ("Act") to end of line 12 and insert our definition: a person is available for employment if he is willing to do any work which he can reasonably be expected to do". That is the definition of "available". The definition goes on: and a person is actively seeking employment if he is taking such steps which are reasonable in his case as offering the best prospects of obtaining work". It goes on to define what "work" shall mean.

In other words, we are trying to introduce a concept of reasonability. We are suggesting that it is for the employment officer to say whether the jobs which are placed before the unemployed person are reasonable, bearing in mind the person's abilities, experience and skills. We are saying that the employment officer should specify the steps that are to be taken and the number of times which the individual has to attend per week in order to prove that he is actively seeking work—the number of ways in which he has to come back with his employment book, signed by employers. All these points come out in the evidence from the CABs. These things should be reasonable.

This concept is not unknown in legislation. Whenever we want to try to put in some kind of balance so that the argument can go one way or the other we use the term "reasonability". It is particularly useful, we would suggest, to the unemployed person if he considers that what he is being asked to do in terms of availability or activity is too much because he can then go out to the adjudication officer and say, "I believe that what was being asked of me was unreasonable". It then becomes a matter for the adjudication officer, who knows in broad terms what he has to take into account, to decide whether something is reasonable. That is the objective of Amendment No. 42. I shall say no more about it, but I shall wait to hear what the Minister says.

Amendment No. 61 states: make provision with regard to the steps which a person has taken which are in addition to or in place of one or more of those set out in his jobseeker's agreement to constitute evidence that he is actively seeking employment". What that means, or what we hope it means, is this. We know that the Bill and the White Paper—and, from what we have been told, the regulations—contain a great deal about steps which a person has to take. We understand that the object will be that those steps will now be embodied in a jobseeker's agreement. That agreement will have a kind of quasi-legal status. Anything which is outside those steps or does not fulfil those steps will constitute a breach of that agreement and therefore the denial of benefit. We are saying—we are not asking for this on the face of the Bill—that the regulations should take on the problem and in particular seek to deal with the problem of the steps which a person has taken which are suddenly in addition to or in place of one or more of those set out in his jobseeker's agreement.

Therefore, although it is not on the face of the Bill, the jobseeker has some idea from the regulations as to whether something additional and different is being asked of him outside the scope of the jobseeker's agreement. Further, if he does something outside the scope of the specific jobseeker's agreement, he has some kind of defence in the regulations by saying, "That kind of thing was anticipated. I could not go to the office three times this week because I was ill", or "I had a child to look after", or "I had to go on a training course." Those are the kind of steps which can set aside the provisions of a particular jobseeker's agreement. We want something in regulations which tells the unemployed person what he has to expect.

These are two primary attempts to introduce something into the legislation to give the unfortunate unemployed person some guidance as to what is expected of him or her. I beg to move.

4.30 p.m.

Earl Russell

I support Amendments Nos. 42, and Amendment No. 61. I shall speak also to Amendment No. 44 which is in my name. I shall try not to repeat myself. Between Amendment No. 42 and Amendment No. 44 I do not have any very strong preference. The purpose of Amendment No. 44, achieved also, I believe, by the other amendment, is to refer the issue to the test of intention. An adjudication officer may rule that a person is not actively seeking employment only if that person has deliberately diminished the likelihood of his finding work.

There are plenty of cases where people have got into trouble for things which were definitely not their intention. I give the example of a voluntary unemployment case but the principle also applies. Someone was held to be voluntarily unemployed having lost his job because his car broke down on the way to work. I doubt whether there is anyone in the House to whom that has not happened. Therefore, by the test of intention, that person would have been completely all right. All the criteria I was arguing for as regards the previous amendment are, I believe, met.

Amendment No. 61 is an interesting amendment and I am grateful to those who tabled it. It deals with what, in Catholic theology, is described as "works of supererogation" or, as it is described in innumerable citations, "actions above and beyond the call of duty". It allows to be taken into account actions by someone seeking work which do not happen to be those specified in the regulations but which nevertheless show a very great eagerness by that person to seek work. Again, by the test of intention, that is the sort of thing which, in any sensible world and between individuals, we would always take into account. Therefore, if the law were to prevent that, it would be a very great pity.

Lord Renton

I am pleasantly surprised and rather admire the constructive efforts which the Opposition have made in trying to avoid having secondary legislation on matters which could very well he covered by primary legislation. I go no further than that except to say that I hope that my noble friend Lord Inglewood will feel able to keep an open mind for the time being.

Lord Inglewood

Perhaps I may begin with the comments of my noble friend Lord Renton. As I said in the earlier debate about the wider issues, we shall consider all these matters very carefully.

I shall begin with Amendment No. 42. This amendment only serves to demonstrate how difficult it is adequately to provide for these complex terms in primary legislation and why it is necessary to do so in secondary legislation. The details of availability and actively seeking have always been set out in secondary legislation. It is by this route that we can most effectively encompass the different aspects of the modem labour market to which the benefit must be sensitive. It is through this route that consistency with other benefits both now and over time can most effectively be ensured; and it is through this route that small changes can best be made over time to reflect changes in the labour market or make changes in the light of experience of the effects of the labour market conditions of the benefit.

The definition gives no flexibility to define availability beyond what is reasonable in the case of each individual. For example, there is no link to hours, as in income support, or days, as in unemployment benefit. Thus it would be impossible to guide Jobcentre staff or adjudication officers in determining availability, which would lead to wide differences in the conditions applied to each individual with great scope for unfairness and inconsistency.

Let me emphasise once again that the Government are committed to meeting what I believe lies at the heart of what this and other amendments seek. The conditions of availability and actively seeking will be applied reasonably. The flexibility to agree the pattern of availability across the week will enable those who have difficulties working on any particular day—Sunday or otherwise—to take account of those problems while still meeting the normal terms of availability. In view of these commitments I would ask that the amendment be withdrawn.

While I can readily appreciate the reasoning behind Amendment No. 44, I cannot accept it. The noble Earl, Lord Russell, is, though, clearly and understandably anxious to assure himself that the new features in the active seeking provisions will be used responsibly. It is most certainly our intention that independent adjudication officers will, when determining whether a jobseeker has negated his chances of being offered a job, take into account all the circumstances of the case. The Committee can rest assured that we have no intention of penalising jobseekers who inadvertently negate their chances of being offered a job. I hope that the noble Earl will agree that that should cover the example of the car that broke down.

I do not, however, believe that the amendment would help to clarify this matter: indeed it would serve to confuse the issue. The Committee will, I am sure, appreciate that a term like "deliberate" is a very difficult term to use and interpret in legislation. Its presence in legislation might actually cloud issues, to the detriment of all, including the jobseeker. I therefore urge the Committee to reject the amendment.

Amendment No. 61 is unnecessary, and I am happy to make clear why. It is unnecessary because an adjudication officer will determine whether the steps a jobseeker takes to get back to work are sufficient to meet the actively seeking employment condition. And he will make that determination only on the basis of the provisions relating to actively seeking employment in Clause 6 and any regulations made under that clause. Consequently, any steps a jobseeker takes to get back to work which are relevant to his circumstances will be taken into consideration when assessing whether he has met the condition regardless of whether they are included in his jobseeker's agreement.

One of the principal purposes of the jobseeker's agreement is to enable a jobseeker to discuss and agree with an employment officer the most appropriate route to get back to work. It will provide an opportunity to focus on the types of activities that will prove most successful in their search for work. Completing a jobseeker's agreement will be a condition of receiving JSA. But the agreement is not a binding contract and it must not become a straitjacket. Many jobseekers will find that in any given week they take steps to find work that are not included in their jobseeker's agreement. And they may not in that week take every step that is in their agreement. It is only common sense for this to be reflected in the way the law operates, and that is what we have secured.

Of course, if more substantial matters arise, the jobseeker may decide, in consultation with the employment officer, that he would like to change the steps he has outlined in the agreement. In those circumstances, it will be possible to vary it. A jobseeker may, for example, after his permitted period ends, wish to expand the type of jobs that he wants to apply for. He may also need to vary his agreement if, for example, he had been looking for jobs as a lorry driver and had since lost his licence. It would be sensible in such circumstances for the jobseeker's agreement to be changed. Clause 8 provides the necessary power to do that. For those reasons the amendment is not necessary. Perhaps I may venture that it might be withdrawn.

Lord McCarthy

I thought that we were making much progress earlier but in the light of what the Minister has just said, I question whether we have. I thank the noble Lord, Lord Renton, for what he said. He is absolutely right. We are trying to keep down the secondary legislation element. We know that there has to be secondary legislation, and that answers many of the points the Minister has just made. But we like to have something on the face of the Bill which in some way can influence and determine what can be done by regulation. That is what is done over and over again in legislation and we do not see why it should not be done in relation to this Bill.

The Minister says that our amendment exemplifies how difficult it is to define "available" and "actively". Presumably that is why the Government have never tried to do so. But the Minister says that it will be done now in regulations. For the life of me, I do not understand what is the essential inherent superiority of the regulation method. They both use English. Why is it that it is so much easier to overcome this difficult perennial problem of defining "available" and "actively" by regulation? I do not understand. If we had to do the primary legislation in Latin or Urdu, I would see the point, but we use common English words, I hope, in primary and secondary legislation. So I do not understand why the Minister and the parliamentary draftsman find themselves to be so fluent when they put on their regulation hat and so stuck, and so unable to conjure words from the darkness, when they are writing primary legislation. Perhaps that can be explained to me.

Of course, we are saying that because it is difficult we should have a bit of both; we should have a bit of bold and a bit of italic; some primary legislation and some secondary legislation. Then perhaps we will get it right, however complicated it may be.

The Minister's other argument is that things change over time, and if things change over time and are complicated, then of course secondary legislation has certain advantages. I accept that. I accept that one of the main advantages of secondary legislation is that it is much easier to keep it up to date; to amplify it. But it is not a choice for us between primary and secondary legislation, it is a choice for the Minister. He likes only secondary legislation. He wants a few, spare, words which he read out to us, which could mean anything and which say that one can do anything. That is all he wants in primary legislation.

Finally, on Amendment 42 the Minister complains about the fact that we use the word "reasonable", as though it is part of the Government's case that they want to have permission to do something unreasonable. The only example he gave was that there was nothing in the amendment about reasonable hours. I accept that. It is a first attempt. If the Government were to come here this afternoon and say, "We do not mind your amendment, but you have done nothing about hours", the Government could take it away and put something else in its place, if they have a word that is better than "reasonable". I do not mind. I do not want the word "unreasonable", but I do not mind a different word so long as the Government accept the fact that there should be more on the face of the Bill.

I turn quickly to Amendment No. 61, because I know where I am. If one moves amendments in this place dealing with labour law one knows where one is when someone says that it is unnecessary. Of course the Minister says that it is unnecessary. The Government always say that. They would say that, would they not? It is necessary because if the provision we have put into the amendment—the noble Earl, Lord Russell, explained it extremely well and beyond the call of duty—could be done by an adjudicating officer I would rather people knew that it could be done by an adjudicating officer. I would not have guessed that it could be done by an adjudicating officer from reading the Bill because it is not in there. Even if it is in the regulations, I do not know how many people will read the regulations. I do not know how many people will read the Bill. But I know that those who assist and aid unemployed people will read the Bill, and, if they see something like that in the Bill, they will feel reassured. For those reasons we are minded to press Amendment No. 42 to a division.

4.44 p.m.

on Question, Whether the said amendment (No. 42) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 151.

Division No. 1
Acton, L. Jenkins of Hillhead, L.
Addington, L. Jenkins of Putney, L.
Archer of Sandwell, L. Kennet, L.
Ashley of Stoke, L. Kilbracken, L.
Avebury, L. Kintore, E.
Barnett, L. Lester of Herne Hill, L.
Beaumont of Whitley, L. Lockwood, B.
Blackstone, B. Longford, E.
Broadbridge, L. McCarthy, L.
Bruce of Donington, L. McIntosh of Haringey, L.
Callaghan of Cardiff, L. Mar and Kellie, E.
Carmichael of Kelvingrove, L. Merlyn-Rees, L.
Chapple, L. Molloy, L.
Cledwyn of Penrhos, L. Murray of Epping Forest, L.
Cocks of Hartcliffe, L. Nicol, B.
Dahrendorf, L. Peston, L.
David, B. Prys-Davies, L.
Dean of Beswick, L. Rea, L.
Desai, L. Richard, L.
Donaldson of Kingsbridge, L. Rix, L.
Dormand of Easington, L. Robson of Kiddington, B.
Ezra, L. Rochester, L.
Falkland, V. Rodgers of Quarry Bank, L.
Farrington of Ribbleton, B. Russell, E. [Teller.]
Fitt, L. Seear, B.
Gallacher, L. Sefton of Garston, L.
Geraint, L. Serota, B.
Gladwin of Clee, L. Shepherd, L.
Graham of Edmonton, L.[Teller.] Simon, V.
Stallard, L.
Glenamara, L. Stoddart of Swindon, L.
Gregson, L. Strabolgi, L.
Grey, E. Swinfen, L,
Halsbury, E. Taylor of Gryfe, L.
Hanworth, V. Thomson of Monifieth, L.
Harris of Greenwich, L. Tordoff, L.
Henderson of Brompton, L. Varley, L.
Hollis of Heigham, B. Wallace of Coslany, L.
Hooson, L. Wedderburn of Charlton, L.
Houghton of Sowerby, L. Wharton, B.
Hughes, L. White, B.
Hylton, L. Wigoder, L.
Jay of Paddington, B. Williams of Crosby, B.
Jeger, R. Williams of Elvel, L.
Aberdare, L. Borthwick, L.
Addison, V. Boyd-Carpenter, L.
Ailsa, M. Brabazon of Tara, L.
Aldington, L. Brigstocke, B.
Alexander of Tunis, E. Brookeborough, V.
Allenby of Megiddo, V. Brookes, L.
Ampthill, L. Burnham, L.
Argyll, D. Cadman, L.
Arran, E. Caithness, E.
Ashbourne, L. Caldecote, V.
Astor, V. Campbell of Alloway, L.
Astor of Hever, L. Campbell of Croy, L.
Atholl, D. Carnegy of Lour, B.
Balfour, E. Carnock, L.
Biddulph, L. Carr of Hadley, L.
Blake, L. Charteris of Amisfield, L.
Blatch, B. Chelmsford, V.
Blyth, L. Chesham, L.
Boardman, L. Clanwilliam, E.
Clark of Kempston, L. Mackay of Ardbrecknish, L.
Coleridge, L. Mackay of Clashfern, L. [Lord Chancellor.]
Colnbrook, L.
Courtown, E. Macleod of Borve, B.
Craigavon, V. Malmesbury, E.
Cranborne, V. [Lord Privy seal] Manchester, D.
Manton, L.
Cross, V. Marlesford, L.
Cumberlege, B. Miller of Hendon, B.
Davidson, V. Milverton, L.
Dean of Harptree, L. Morris, L.
Denham, L. Mottistone, L.
Dilhorne, V. Mountevans, L.
Donegall, M. Munster, E.
Dormer, L. Murton of Lindisfarne, L.
Downshire, M. Norrie, L.
Ellenborough, L. Northesk, E.
Elles, B. Onslow, E.
Elliott of Morpeth, L. Orkney, E.
Fraser of Carmyllie, L. Oxfuird, V.
Fraser of Kilmorack, L. Pearson of Rannoch, L.
Gardner of Parkes, B. Pender, L.
Gilmour of Craigmillar, L. Plummer of St. Marylebone, L.
Gisborough, L.
Goschen, V. Quinton, L.
Gray of Contin, L. Rawlings, B.
Gridley, L. Reay, L.
Haddington, E. Rees, L.
Hailsham of Saint Marylebone, L. Renfrew of Kaimsthorn, L.
Renwick, L.
Harding of Petherton, L. Rodger of Earlsferry, L.
Hardinge of Penshurst, L. Romney, E.
Harmar-Nicholls, L. St. Davids, V.
Harmsworth, L. Saint Oswald, L.
Hayhoe, L. Saltoun of Abernethy, Ly.
Hemphill, L. Seccombe, B.
Henley, L. Selborne, E.
Hives, L. Shannon, E.
Hogg, B. Sharples, B.
Hood, V. Shaw of Northstead, L.
Hooper, B. Skelmersdale, L.
Howe, E. Slim, V.
Hylton-Foster, B. Strange, B.
Inglewood, L. Strathclyde, L. [Teller]
Jenkin of Roding, L. Strathcona and Mount Royal, L.
Johnston of Rockport, L.
Killearn, L. Sudeley, L.
Kimball, L. Teviot, L.
Kingsland, L. Teynham, L.
Kitchener, E. Thomas of Gwydir, L.
Lauderdale, E. Trefgarne, L.
Lindsay, E. Trumpington, B.
Liverpool, E. Vivian, L.
Lloyd-George of Dwyfor, E. Walker of Worcester, L.
Long, V. [Teller.] Whitelaw, V.
Lucas, L. Wise, L.
Lucas of Chilworth, L. Wolfson, L.
Lyell, L. Wynford, L.
McConnell, L. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.54 p.m.

Baroness Hollis of Heigham moved Amendment No. 43:

Page 5, line 12, at end insert:

("() A Person who imposes restrictions on his availability for employment for one or more of the following reasons shall not, for that reason or reasons, be regarded as not available for employment—

  1. (a) his religious belief,
  2. (b) his conscience,
  3. 817
  4. (c) his childcare responsibilities (including responsibilities in respect of foster children),
  5. (d) his caring for a disabled or elderly person,
  6. (e) his mental or physical condition,
  7. (f) his attendance on a course of education, training or instruction designed to improve his prospects of obtaining suitable employment, or
  8. (g) his objection to working on Sundays or the Sabbath.").

The noble Baroness said: In moving Amendment No. 43, I shall speak also to Amendments Nos. 44A, 52, 53 and 60. They are probing amendments which seek to build into the Bill protection against discrimination as regards particular groups of people. We fear that they might otherwise fail the actively seeking work test either because of their ethnic origin, gender or religion; or because they are involved in voluntary activities such as childcare, study or are, say, retained firemen; or because of their mental or physical condition.

Employment staff are drawn from the same cross-section of the population as the rest of us. We know that the vast majority do their job professionally and impartially. However, inevitably they bring to bear past experiences and sometimes present prejudices. That was confirmed to me when some months ago I spent time in a social security office discussing social fund payments.

Most of the experienced and professional officers disagreed among themselves as to whom they would award social fund payments. They all aligned themselves with the experience of the person to whom they were giving the loan. The woman who favoured giving a social fund loan to the woman who was caring for an elderly parent was herself caring for an elderly parent. The woman who favoured giving additional funds to a lone parent was herself a lone parent. In other words, I know from my personal experience that good, trained, decent and sensitive staff nonetheless come with a perspective that is understandable, drawn from their own experience. We wish to press that issue in this cluster of amendments.

Our first anxiety is reflected in some of our debates about Sunday trading. Religious beliefs might lead someone not to want to work on the Sabbath, whether that be a Saturday, a Sunday or any other day of religious observance. Given present developments in the labour market, that might restrict them as regards working in the retail trade. It is important that on such grounds they do not lose their right to benefit, and we seek the Minister's clarification.

Similarly, there is the issue of conscience. At the extreme end of the scale is the person who is a Quaker, for instance, and is unwilling and morally unable to work in an industry associated with the arms trade. Another example might be a vegetarian who refuses to work in an abattoir or a meat processing factory.

The anxiety relating to ethnic origin can work both ways. I have seen it assumed that a well-educated black male will be more willing than his white counterpart to engage in manual labour. On the other hand, we have received reports from a London citizens advice bureau of a Bangladeshi man who was barely able to speak English and who sought a job in a kitchen precisely so that language would not be a problem. As proof of his job search he was required to submit the checking of advertisements in the Evening Standard, newspaper cuttings and letters. As he was unable to read, write or speak English, all those conditions were impossible and he could not meet them.

People may have caring responsibilities for children, the elderly or the disabled. With enough notice they can rearrange that caring responsibility but we fear that, unless they have the time and they can show evidence of that, they will not be regarded as properly available, even though we would all wish to help them to continue to be effective carers.

Local authorities have raised with us another group of concerns. The first relates to foster parents, in particular temporary foster parents who will take children for a short time until they go on to permanent placements. At present such temporary foster parents arc not required to sign on as being available for work because that would inhibit the very flexibility that local authorities and we as a society require them to have; to be available almost at a drop of a hat to take on a baby or a deserted small child as and when necessary. That is the present situation in respect of income support and unemployment benefit and we hope that it will continue in respect of JSA. We look to the Minister for reassurances to that effect.

Another situation which the local authorities have raised is that of retained firemen or lifeboat men. At the moment they are entitled to retain their benefit even though they may fall foul of the actively seeking work provisions. We seek an assurance from the Minister in that regard.

Equally, we must consider those undertaking part-time studies and those with a mental or physical condition. We wish to be confident that there will be no variation among local offices. The Government have accepted the question of hours but not, for example, the pattern of hours or the location of work. It may be essential for someone with a physical or mental condition to be close to home.

In other words, this is a portfolio of concerns which we believe may trespass on the notion of the availability for and actively seeking work. The worry is the degree of discretion to be exercised by front-line staff in determining the content of the jobseeker's agreement; the degree of discretion shown in determining whether or not the conditions have been fulfilled; and the degree of discretion exhibited by those officers when deciding whether or not to stop benefit for two weeks or indefinitely.

If the problems raised by this amendment are not addressed satisfactorily by the Government, we fear that certain groups—on grounds of ethnicity or health, or because they are in voluntary occupations or such occupations as being a foster parent, or because they have mental or physical disabilities—may disproportionately be denied benefit as they cannot be fitted easily into the tidy category of actively seeking work.

We believe that the likelihood of discrimination is considerable. The penalty or fine for the claimant is huge: he loses benefit. The opportunity to rectify that is belated and problematical. Therefore, we should welcome the Minister's reassurances in relation to those categories of claimants. I beg to move.

5 p.m.

Lord Swinfen

Amendment No. 52, which stands in my name, is grouped with this amendment. Therefore, I shall now speak to that amendment. I welcome the amendment moved by the noble Baroness, Lady Hollis. My amendment is also a probing amendment.

The purpose of the amendment is to provide protection against discrimination by Employment Service staff in the exercise of their powers under the Bill which, as the Committee will know, gives them new powers in relation to drawing up and enforcing the jobseeker's agreement. I am sure that most members of staff are conscientious but firm guidelines are needed to guard against discrimination and abuse of powers. I am sure that there will be no intention to abuse those powers but that may happen, as the noble Baroness, Lady Hollis, said, as a result of the circumstances and experience of the staff.

There is anxiety about discrimination against those with disabilities, particularly hidden disabilities, which are not taken into account in the incapacity for work test. For example, I understand that the National Association of Citizens Advice Bureaux sees many people who are refused employment on the grounds of being epileptic. Those with histories of mental illness also encounter prejudice in the employment market.

Other groups affected by prejudice in that market are older employees, young black men—I understand that the unemployment rate for that group in London is in the region of 62 per cent.—and refugees, whose abilities are often considerably underestimated. Unless the Employment Service staff are aware of those factors in the job market, the treatment of their clients, particularly in relation to the jobseeker's agreement, may also be discriminatory.

In addition, the pay and promotion structure of the Employment Service now includes targets for referrals of cases for adjudication. Those who have the greatest difficulty in finding work will be those who are most vulnerable and mostly likely to have their cases referred. A clear commitment to anti-discrimination practices is vital to ensure that jobseekers are protected and Employment Service staff are not pressured into making discriminatory decisions.

Baroness Williams of Crosby

I rise with great pleasure to support the amendments in the name of the noble Baroness, Lady Hollis, and the noble Lord, Lord Swinfen. I hope that the Minister will consider seriously accepting the amendments or tabling similar amendments on Report.

The noble Lord, Lord Swinfen, referred to the target set in the Employment Service annual performance agreement for 1994–95; namely, a target of 135,000 cases to be referred to adjudicators on the grounds of an arguable case—I use the words in the actual agreement—for disallowing benefit.

The amendment seeks to distinguish between those people who have no grounds for continuing to receive benefit because they are not seriously seeking work and those who are seriously seeking work but who have legitimate and powerful reasons for not accepting all the work which may be offered to them. Members of the Committee will know of the fears expressed by the Church of England, Roman Catholic bishops and representatives of the Islamic community. They fear that people who wish to worship on a Sunday may instead be obliged to work. Such people would be placed in an extremely difficult position of conscience. I am sure that the Committee would not wish to see that situation arise.

A second strong argument has been put forward by the noble Baroness, Lady Hollis. Some people, especially those with learning difficulties, those not in command of the English language, or those who come from an ethnic culture, are not immediately attractive to employers and may be disallowed benefit on those grounds alone. We know now that the proportion of cases disallowed benefit by the adjudicators has literally doubled in the past four years from 40 per cent. to 80 per cent. because the adjudicators are more likely to reject appeals than they were four or five years ago.

Therefore, I plead with the Minister to consider granting the protection we suggest. It is very carefully worded to ensure that it applies only to those who are bona fide seekers of jobs but who have genuine grounds of conscience, culture, education or handicap. Such people need that protection. I very much hope that this set of amendments will commend itself to the Committee.

Lord Rix

I rise to support briefly but enthusiastically the clarification proposed in Amendment No. 52 and the further clarification proposed in Amendment No. 43. Both amendments seek to achieve the same ends.

I wish to stress the problems of people with disabilities. I am glad that clarification is sought. I am sure that the Government, even at their most pigheaded and cloth-eared, are not suggesting that disabled people should be directed at employment for which their disability makes them totally unsuitable. If the rules are not absolutely clear and reasonable to those administering them, disabled people may find themselves dealing with officials who are neither clear nor reasonable. Therefore I support Amendments Nos. 43 and 52.

Lord Ashley of Stoke

I do not wish to duplicate the points already made. But I wish to add my voice in support of the amendment moved by my noble friend Lady Hollis. Like the noble Lord, Lord Rix, I support Amendment No. 52 in particular. I endorse the remarks made by the noble Lord, Lord Swinfen. Particular regard should be paid to those groups of people—those who are disabled and those who may be affected by the circumstances set out in that amendment. Unless we have that specific protection against discrimination, I am absolutely certain that it will result in tears for many thousands of people.

It is not a matter of accusing the staff in any way, but they are indeed taking on new responsibilities. They have not yet had the experience of dealing with such people. I am sure that the protection which would be afforded by the amendments, and the commitments and clarification involved, would be of great benefit. We are dealing with special circumstances which require special provisions. I hope that the Government will look upon the amendments sympathetically.

Earl Russell

Perhaps I may interject a few points about carers. First, I should like to ask the Government if they will look again at one point in the income support general regulations. It concerns the availability for work of those who have young children. The specification at present is that they are responsible for finding care for the child and for making themselves available for work within 24 hours; otherwise they are found to be "not available".

We believe that that 24-hour period is unrealistic. I say that because, until one is offered a job, one does not know what the hours will be, what travelling will be involved, what sort of care will be appropriate, or what kind of shifts are required. I should be most grateful to hear that the Government are prepared to consider a rather longer interval.

Secondly, I should like an assurance from the Government in the following respect. Where responsibility for care of young children is involved, I should like an assurance that they will not assume a priori, before knowing how that family manages its business, that only women are capable of being carers of children. I believe that that assumption is out of date. I would welcome an assurance that it will not be operative in the administration of the legislation.

I hope that the Government will think very hard about the matter. I ask them to study the speech in the Debate on the Address made by the right reverend Prelate the Bishop of Liverpool regarding the pressure that some retailers put on employees to work on Sundays. I believe that that is a very strong reason for thinking that legislation is needed.

Lord Inglewood

In responding to the amendments, I hope that Members of the Committee will bear in mind the fact that I shall be dealing with the nuts and bolts of the form of the amendments and also referring to the underlying concerns. Amendment No. 43 seeks to define the conditions of restricted availability on the face of the Bill. As with a number of other amendments that we have been discussing, I fear that the amendment serves only to demonstrate how difficult it is adequately to provide for this complex term in primary legislation and why we believe that it is necessary to do so in secondary legislation. The details of availability have always been set out in secondary legislation. It is by that route that we can most effectively encompass the different aspects of the modern labour market to which the benefit must he sensitive.

I understand why the noble Baroness and the noble Earl want to provide explicitly for areas of restrictions, but Amendment No. 43 would turn JSA away from its focus on jobseeking. Any restriction on grounds of religious belief, caring responsibilities, disability, or for training and study would have to be disregarded in determining availability. There is no provision to enable an adjudication officer to decide whether or not the restrictions are reasonable in themselves or reasonable in the case of the claimant, let alone reasonable in terms of the prospects of getting a job with the restrictions. The amendment would be unworkable.

Let me emphasise once again that the Government are committed to meeting what I believe lies at the heart of what the amendments seek. The conditions of availability and actively seeking will be applied reasonably. The steps which a person must take to be actively seeking should be those which offer him best prospects of securing work. People with disabilities will be able to restrict their availability in accordance with their mental or physical condition without reference to their prospects of securing employment notwithstanding their restrictions.

People with caring responsibilities—be they for children or for sick and elderly relatives—will be able to place restrictions on the hours of their availability. People with sincerely held religious or conscientious beliefs will be able to place restrictions on the type of work that they are prepared to undertake. For example, I believe that reference was made to Moslems. If a Moslem woman was under consideration, she would not be required to be available for employment which required working alongside men if that would cause difficulties. Equally, a vegetarian would not be expected to work in an abattoir. Those restrictions would be discussed with the ES adviser.

In addition, people will not be required to be available on their normal day of worship by virtue of the framing of the general 40-hour availability requirement. That will enable them to stipulate from the start of their claim that they are not available on, say, a Saturday because of their Jewish faith. I see that the noble Baroness wishes to intervene. I give way.

Baroness Williams of Crosby

I am much obliged. I should like to pursue the Minister on that point for just a moment. I do so because what he said is extremely important. Indeed, he has been very precise in using the phrase, "will not be required". Given the fact that that wording is not on the face of the Bill, can the Minister tell the Committee how we can ensure that the word "not" is applied in practice? For example, will it be in regulations or in the guidance to Department of Employment officers?

Lord Swinfen

Before my noble friend the Minister responds, perhaps I may make a further point. My noble friend specifically referred to Jewish people working on the sabbath. However, what is the position of an Orthodox Jew where the sabbath starts at sunset on the Friday and when, in winter, that can be as early as 3.30 in the afternoon? How will that position be affected?

Lord Inglewood

I shall respond, first, to the point made by the noble Baroness. In that respect, the matter will be dealt with in regulations. As I said, we shall approach the problems along the lines I described. The kind of comment made by my noble friend Lord Swinfen shows how complicated it can be accurately to deal with such matters so that the result can meet the religious requirements of the person concerned. However, there are many people with all kinds of different religious criteria involved. It is our intention that those requirements shall he met whenever it is possible to do so.

Earl Russell

Is the Minister aware that there can be very real difficulty, even for those of us in this Chamber who follow such matters with some care, in knowing exactly what is in the regulations or guidance? How does the Minister propose that such restrictions on availability should be made clear to an aggressive employer with a strong concern about his profit margins?

Lord Inglewood

The regulations are legislation and are publicly-available documents. Moreover, they have the sanction of the law behind them.

Lord Rix

Perhaps I may point out to the Minister that the two amendments to which he is referring—Amendments Nos. 43 and 52—give broad-brush definitions which everyone can understand. I should have thought that the wording defining the exact meaning of religious belief, conscience and so on would be clearly stated in the regulations. However, the broad-brush approach is in the amendments and, if they were accepted, it would therefore be clear in primary legislation.

5.15 p.m.

Lord Inglewood

It seems to us that the nature of our debate indicates that the right way is to put such matters in regulation. The more we look into the matter, the more detailed it seems we must he in order satisfactorily to resolve the particular problems we are trying to address.

The key to the issue is that there will he flexibility to agree the pattern of availability across the week which will enable those who have difficulties working on any particular day—whether it be a Sunday or otherwise—to take account of those problems while still meeting the normal terms of availability. In view of those comments, I ask that the amendment be withdrawn.

I turn now to Amendment No. 44A. Perhaps I may reassure the noble Baroness that we recognise the special role that part-time firefighters play and the service that they provide to the community; and, indeed, that applies equally to the other groups to which she referred. Part-time firefighters have historically enjoyed special treatment in unemployment benefits and we will continue that under JSA. We believe that the benefit regime should recognise that those firefighters provide the service in a way which is often combined with normal working patterns. Current provisions carried forward into JSA will continue to encourage and make it possible for unemployed people to provide such services.

The current special treatment for part-time firefighters is provided for in regulations. We will adopt the same approach in JSA as currently provided for in unemployment benefit. We intend to provide in regulations, under Clause 6(2), that people engaged in the performance of the duty of a part-time fireman maintained in pursuance of the Fire Services Acts 1947 to 1959 shall be treated as available for employment on the days they are acting as firemen. This is a detailed issue and we believe it is more suitable for secondary rather than primary legislation. I hope that with the Government's assurance the noble Baroness will feel able to withdraw her amendment. I wish now to move on to Amendment No. 52 which seeks to ensure that the labour market conditions—

Baroness Hollis of Heigham

The noble Lord, Lord Inglewood, is doing his best to answer some quite precise questions. On the original, so to speak, shopping list associated with Amendment No. 43, although he talked to some of the issues, he did not respond to the point about foster parents. Will he also answer that point please?

Lord Inglewood

As regards foster parents, the general position is the same as for other parents. JSA regulations will both enable people to restrict their availability in line with caring and contain an easement to enable the carer to have a 24-hour easement from the condition to be immediately available.

Baroness Hollis of Heigham

I do not think that was the point that was being made, and certainly the answer does not address it. As I understand it, at the moment foster parents are eligible for unemployment benefit which is not impeded by the fact that they may not be available for work because they have to be available to take a child on instant notice. We are not talking about long-term foster parents; we are talking about those who receive children on a temporary placement basis. They have a particular and protected position which we wish to ensure continues if they are to fulfil that job; otherwise they will lose their ability to be foster parents because the actively available for seeking work requirements will cut across that standby arrangement rather like the case of retained fire-fighters. Perhaps this is not the right time for the Minister to provide a detailed answer, but I hope that he will take note of that point. It is not the long-term foster parents I am so concerned about but rather the temporary foster parent who is in and out of fostering.

Lord Inglewood

I am grateful to the noble Baroness for her remarks. The general position is as I said, that foster parents are treated as other parents. However, having heard those useful remarks, it may be helpful if I respond to this matter later.

Amendment No. 52 seeks to ensure that the labour market conditions of JSA will be able to take account of the many different needs of people looking for work. I emphasise once more to my noble friend Lord Swinfen that this has always been our objective. Remarks have been made about possible discrimination in the operation of the Employment Service. I emphasise that there is a clear obligation and commitment on the service not to exercise any discrimination at all in the manner in which it carries out its functions.

Reference was also made to a target. It is not a target which is intended to try to ensure that a certain number of people are disqualified; it is a target which is intended to provide for the Employment Service what is anticipated to be the likely amount of referrals which should in turn be properly documented so that no one's time is wasted and the matter is dealt with properly. The Employment Service has a job to do which includes both paying out and denying payment. It is the job of the Employment Service to do that properly within the terms of reference which it is set. If the Committee is concerned that staff delivering JSA act in a discriminatory way, I hope this assurance will satisfy it.

Lord McCarthy

Given the noble Lord's preference, which he has shown throughout the day, for secondary as against primary legislation, does he not accept there is a special argument for the provision that we are discussing from the point of view of being declaratory of government policy? As far as I understand the noble Lord, he is not saying that there will be regulations about the matters in Amendment No. 52. But even if there are, is there not a special case for putting a commitment of this kind on the face of the Bill? Is it not more likely that it will be taken seriously inside the department if that is done?

Lord Inglewood

No, I do not think that that approach leads to that conclusion at all. The department's position in this regard is quite clear. The Government's policy in this regard is quite clear. I should have thought that ought to be sufficient. In general our policy is to include and not to exclude, to take account of all the facts in determining eligibility for benefit, not to ignore them. I fear that the provision envisaged in this amendment would be impossible to relate to real labour market needs and could result in some of the claimants qualifying for JSA when their intentions and actions meant that they were not genuine jobseekers. For that reason I must urge the Committee to reject this amendment.

Lord Swinfen

Before my noble friend sits down, can he tell the Committee whether the salary of the Employment Service staff is affected in any way by the number of cases that they refer to adjudication?

Lord Inglewood

No, it is not. Public sector pay is related to a person's contribution to the performance of the organisation. Employment Service annual performance objectives arc translated into local office standards. These are reflected in the individual's work-related objectives. In the case of an employment officer, these will include, for example, placings into work and accuracy and speed of benefit payments. There is not, and will not be, any correlation between the conditions of benefit for a jobseeker and an employment officer's pay. I hope that puts the matter beyond peradventure.

Earl Russell

The Minister has once again invoked the advantages of flexibility. Can I ask him how Parliament can have any input into that flexibility, and whether I am right in believing that it is still the basic principle that Parliament makes the law?

Lord Inglewood

The noble Earl is absolutely right. The law of the land is made by Parliament and there are procedures for dealing with primary legislation and, equally, for dealing with secondary legislation. As the noble Earl knows, in the case of this Bill the affirmative procedure will be used at the initial stages of the transition from the existing arrangements.

Earl Russell

What is this Chamber to do if something is done under these powers, not necessarily by this Government, to which we feel we cannot give our consent?

Lord Inglewood

We seem to be going back over a debate that we have had before. However, in a country where Parliament is sovereign and cannot hind its successors, that is a matter ultimately for Parliament in the future.

Baroness Hollis of Heigham

I also wish to ask the Minister a question before we decide what to do with this amendment. Will the Minister tell us whether there is any aspect of Amendment No. 43 concerning religious belief, conscience, childcare responsibilities, caring, mental or physical condition, attendance on a course of education or working on the sabbath, or concerning the matter of fire-fighters, on which I accept the Minister has given us a helpful reply, or concerning Amendment No. 52, that he disagrees with? Is there any of this that he is not proposing should not be covered by regulation?

Lord Inglewood

Without going through it with a fine toothcomb, I am not prepared at this point to give an unequivocal reply to that question. However, I can say that it is our intention to implement what I have described, as well as many other matters besides.

Baroness Hollis of Heigham

In that case, would the Minister care to enlarge on that answer? Is he saying that in principle he accepts all of these matters and in addition he has some other matters to cover, as yet unspecified, which therefore we will not be scrutinising in this part of the Bill? Will he tell us what he has in mind?

Lord Inglewood

There is an enormous amount of detail needed to get a comprehensive picture of the matters that we are discussing here. Certain new matters have been raised this afternoon. Therefore it is difficult for me to give a reply with the level of detail which I have been asked to do. I will merely return to my original proposition and say that we are committed to what I have already described—the general principles, and those principles will be implemented in the legislation. They overlap considerably with a number of the topics that the noble Baroness has raised.

Baroness Williams of Crosby

Before the noble Lord concludes his remarks, I wish to pursue two matters. First, the matter raised by the noble Lord, Lord Swinfen. Are we correct in believing that there was a target set in the Employment Service performance target for 1994–95 for 135,000 cases to be referred? Am I correct in understanding that the number of cases disallowed has risen more than twice over between the nine months of January to September 1994 and the same months in 1993? Will he stand by his assurance that this has no effect whatever on the decisions that are made by employment officers, because there seems to be some relationship between the rapid rise in disclaiming and the fact that this was a target set clearly for the Employment Service last year?

I wish to press the Minister on a further issue. He mentioned that there was a 24-hour period in which benefit was not disallowed to mothers of children who were given that period of time to make provision for childcare. Will he accept my assurance as a mother and the assurance of other mothers and fathers in the Chamber that it is difficult to arrange childcare of a satisfactory nature within 24 hours? I may have misunderstood the noble Lord but to drive mothers into making unsatisfactory childcare arrangements at the present time seems to me to have nothing whatever to do with the belief in the family to which most of us—indeed all of us—on both sides of this Chamber subscribe.

5.30 p.m.

Lord Inglewood

To reply to the second point raised by the noble Baroness, if one is actively looking for work, which is the test, one has to have some idea of how one will deal with these matters. It should not come as a complete surprise. That is an important aspect to be borne in mind when considering whether one wants to go down this particular avenue.

It is the case that the Employment Service has a target for its annual performance agreement, which this year is 135,000 submissions. I believe that the noble Baroness is correct in saying that that figure is an increase on the previous figure. The policy of the Employment Service is that those people who are entitled to benefits should have them and those people who are not entitled to benefits should not have them. That is a rather trite truism, but that is the basis on which the service operates. If the number of disallowances increases, that is a consequence of the policy.

Baroness Hollis of Heigham

I am still puzzled by the Minister's reply. He seems to suggest that we are throwing unreasonable demands at him by tabling these amendments. I remind the noble Lord that this Bill has been through the other place and has been explored. The amendment has been tabled for some considerable time. As the noble Lord, Lord Rix, rightly said in relation to Amendment No. 52, the general statement of principle is a fairly standard clause which is inserted into all sorts of local authority and government Bills and contracts.

We are trying to establish whether there is a difference of substance between us. In other words, we are trying to establish whether the Government do not accept that any of these grounds are reasonable causes for restricting availability for work or whether the only difference between us is whether they should be set out on the face of the Bill or in regulation. Will the Minister please tell us?

Lord Inglewood

The noble Baroness raises questions which I thought I had answered earlier, but I did not make myself clear.

There is an enormous amount of common ground between ourselves and the Benches opposite in terms of where the exclusions should fall. If my understanding of the arguments that have been put forward is correct, the main disagreement between us in this particular regard concerns how they should be incorporated in legislation. We believe that the method we propose will be more beneficial.

Baroness Hollis of Heigham

I take the Minister to be telling the Committee that he accepts the principle of the amendments. It is important to have written in Hansard, given the legal aspect, that he accepts the substance of the amendments and that he expects to embody the amendments in regulation.

Lord Inglewood

I cannot give a commitment that every nuance or item contained in the Opposition's proposals will be included in regulation. I can give the Committee a commitment that we accept the vast bulk of what has been proposed and that we intend to deal with those matters in regulation.

Baroness Hollis of Heigham

In that case, is the Minister saying that, after the Bill has spent several weeks in the other place and these amendments have been tabled, the Minister does not yet know what will be included in regulations under a Bill which is due to take effect in fewer than 12 months' time, despite the level of consultation? The Minister should know—in which case he should be able to tell us. Alternatively, if the Minister does not know, then we revert to the consideration discussed earlier by the noble Earl, Lord Russell, that this is a framework Bill to which the Government will subsequently give whatever meaning occurs to them when eating their cornflakes.

There is a real issue here. If the Government mean the Bill to cover those categories of people who are among some of the most socially valuable people in our society—such as carers, ethnic minorities or those with a learning disability—and the Minister accepts, as I believe he does, that it is right that those groups should be able to have a reasonable limit on their availability for work and should not be disqualified from benefit, can he explain to us why, apart from a devious wish to fill in the details later when he has had some thoughts, that should not be stated on the face of the Bill? If the Minister agrees with us that these groups should be covered, as it appears from his answer that he does, what is the advantage of dealing with the matter in secondary legislation, which your Lordships cannot discuss, which Parliament has no right to amend and which this Chamber has no right to negate, as opposed to having it on the face of the Bill? Why should it be left to the Government to define with hindsight rather than for this House to clarify what constitutes effectively a conscientious objection, or a mitigation or limitation on availability for work?

The Government opened by saying that with these amendments we were turning away from JSA. On the contrary, we are trying to make clear what it means to be entitled to JSA and what would constitute a reasonable limitation on availability for work in claiming JSA.

All that the Minister has said, and he has repeated it endlessly, is that the Government prefer to do this by regulation. He has given no reason. He simply reiterated it ad nauseam. We can only believe that he wants that flexibility either because he does not know what would be included in the regulations or because he suspects that if that information was shown on the face of the Bill it would not command the consent of this Committee. Which is it?

Lord Inglewood

I do not feel that I can usefully go over again what I said in reply to earlier comments from the noble Baroness, Lady Hollis. The position is clear. We believe that it is appropriate to deal with these matters by regulation. We had a debate on the subject earlier today and I explained to the Committee that we shall consider very carefully the matters that were raised in that debate.

We accept the general principles of the matters which the noble Baroness has raised and that, in the practical world, they should be dealt with along the lines she suggested. There will be other related matters which we shall also wish to deal with. All the circumstances outlined in the amendments will be grounds for acceptable restriction, and JSA will provide for them in regulation. However, in our view the terms of the amendment are unacceptable.

Lord Boyd-Carpenter

Will my noble friend deal with the point that the noble Baroness made—I believe wrongly—when she said that if these matters were dealt with by regulation, there would be no possibility of this House discussing them? Surely that is wrong? I should be grateful if my noble friend would nail that point.

Baroness Hollis of Heigham

There may have been a slip of the tongue. Perhaps I may reply to the noble Lord, Lord Boyd-Carpenter. I understood that I said that this House would have no opportunity to negate or amend the regulations. We shall have an opportunity to discuss them, but we have no control over the matter.

Lord Boyd-Carpenter

The noble Baroness has now amended her erroneous statement, so I need not trouble my noble friend further.

Baroness Hollis of Heigham

I believe that the problem was with the hearing of the noble Lord, Lord Boyd-Carpenter, which is unusual in this House, rather than a misstatement on my part.

Earl Russell

Perhaps I may confirm the recollection of the noble Baroness of what she said. I listened very carefully to that point, and she remembers it correctly.

Lord Swinfen

On every single important Bill we appear to have trouble with regulations. It is obvious that the regulations cannot be produced until the Bill is enacted. We are not in a position to have the regulations; but I should have thought that when a Bill is drafted, the Government must already be thinking of the type of regulations they propose to bring forward. Would it be possible to have some form of outline of the regulations published with each Bill? They could not be finalised until the Bill was enacted. Alternatively, could the Government ask both Houses to examine, and perhaps amend, regulations after the Bill has been passed?

The present situation appears to be thoroughly unsatisfactory. There is so much secondary legislation which Parliament does not have an opportunity to amend. Although we can discuss such legislation, once it has been decided by the other place, there is very little point in considering it. We cannot even throw it out.

Lord Ashley of Stoke

The Minister is faced with intransigence on both sides of the Chamber. The main reason is that we are dealing with a number of very vulnerable people. We feel that we shall let them down unless we get a clear and categoric answer from the Minister which is different from the one he has given so far.

Secondly, many of us who have experience of legislation know that eventually, if the Minister has his way tonight—and he may if the matter is put to the vote—and this matter goes through via regulation, many of these people will get in touch with us in years to come saying that they have been let down. The regulations may be interpreted differently from the way we recommend and they will feel let down and we will feel let down. That is why we are pressing the matter.

Lord McCarthy

I hope that the Minister will understand that I seek to help. He states that there is a great deal of common ground between us on the amendment. Could he give us an example of non-common ground? Is there any small piece of non-common ground in the amendment that he cannot accept? If he cannot do so today, can he give that information to us on Report or at some other stage?

Lord Inglewood

Perhaps I may remind the Committee that we produced a full memorandum on the use of delegated powers in the submission to the Delegated Powers Scrutiny Committee. It laid out exactly how we were hoping and intending to deal with these matters.

With regard to amendments and the procedure of the House, noble Lords may remember the remarks made by the noble Lord, Lord Shepherd, this afternoon when he addressed those matters. As I said then, we shall consider carefully what he said, as we shall do all remarks made by noble Lords in that debate.

The noble Lord, Lord Ashley, made the point that people will feel let down by what we propose to do. It is not the Government's intention to let down anyone who should fall within the scope of the Bill.

Baroness Hollis of Heigham

I thank Members of the Committee for joining in the debate. We are hearing a repeat of some of the concerns that were voiced in the first debate this afternoon on the scope of delegated powers. The noble Lord, Lord Inglewood, referred to the interim report. Perhaps I may quote from paragraph 13 on page 3. The Delegated Powers Scrutiny Committee stated: We will consider in our next report whether the bill provides sufficient parliamentary control over the power to define these terms". That is the issue. We still have not coaxed from the Minister what the problem is. He seemed to suggest in his reply to me and to my noble friend Lord McCarthy earlier that he agrees with the grounds. If that is so, he can have no objection to putting those provisions on the face of the Bill so that everyone knows where they stand. If the Minister does not agree, he has an obligation to tell the Committee on what grounds he disagrees. That he has failed to do. Therefore, our belief must be that he seeks obfuscation for the sake of it even though he has had ample opportunity for clarification.

That is much to be regretted. We do not propose to press the amendment tonight although we shall certainly return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 43A had been withdrawn from the Marshalled List.]

[Amendments Nos. 44 and 44A not moved.]

5.45 p.m.

Earl Russell moved Amendment No. 45:

Page 5, leave out lines 21 and 22.

The noble Earl said: I am sorry that I cannot give any relief from regulations, but there is little else in the Bill to discuss. The clause to which I wish to draw attention states: A person who is actively seeking employment is to be treated as not actively seeking employment".

In their memorandum to the Delegated Powers Scrutiny Committee, the Government state: Regulations under paragraph (d) will provide for people who are actively seeking employment to be treated as if they were not. This will include, for example, 16 and 17 year olds who are not actively seeking training as well as employment".

Therefore the power relates to the provision in Clause 3 and allows the Government to make training compulsory by regulation.

There is a serious case against the use of compulsion in that field. It is set out in the report of the citizens advice bureaux, In Search of Work, a copy of which I forwarded to the Minister some months ago. I do not believe that we need to go into it now. This is a serious decision on which two legitimate views may be held. The consequence of that decision, whenever the Minister in his wisdom sees fit to take it, is that people will be disentitled to benefit.

I must state here a personal view, but according to my conscience I can do no other than act on it. Totally disentitling people to benefit is always wrong, for very much the same reasons as the death penalty is always wrong. There may even be a case for saying that the death penalty is the preferable of the two because, so far as I am aware, you do not continue to suffer after it is inflicted. I stated, "so far as I am aware", and I can say no other.

We have here two major points on which the Committee is being asked to waive its right to give consent. One relates to the introduction of compulsory training; and the other to disentitlement to benefit. I always vote against a total disentitlement to benefit when it is in my power to do so. Therefore I do not see why I should be asked to hand to the Minister the right to impose such disentitlement whenever he likes and to do so in my name. I beg to move.

Lord Renton

As I stated when we discussed Amendment No. 40, the noble Earl has provided a useful service by moving Amendment No. 45. Clause 6(2) (d) needs to be considered in the light of paragraph (c). The two go very much together. One is in a sense a converse of the other. Superficially each is a contradiction in terms, but we must accept that.

Clause 6(2) (c) seems to me to be fair to the individual. It states: A person who is not actively seeking employment is to be treated as actively seeking employment". That is in fact an exemption. The converse proposition in paragraph (d) states: A person who is actively seeking employment is to be treated as not actively seeking employment". That could be unfair. The provision requires a tremendous amount of explanation in regulations. We have no idea yet as to precisely what the Government have in mind. I shall be interested to hear what my noble friend, Lord Inglewood, says. However, before giving this regulation-making power which affects the life of the individual to such an extent, and, incidentally, his financial rights to a jobseeking allowance, we are entitled to some quite specific statement from the Government. I shall be interested to hear it.

Lord McCarthy

It indicates great self-control on the part of the noble Earl, Lord Russell, that at this point he seeks to get rid of only the one provision, because there are four such provisions. The first statesA person who is not available for employment is to be treated as available for employment". The second states: A person who is available for employment is to be treated as not available for employment". The third states: A person who is not actively seeking employment is to be treated as actively seeking employment". The fourth states: A person who is actively seeking employment is to be treated as not actively seeking employment". In other words, the Bill contains all kinds of nonsense. I know that if one works one's way through the interim report of the Delegated Powers Scrutiny Committee there are definitions. But this is nonsense on the face of the Bill.

Baroness Faithfull

We have considered the clients, but we have not considered the people who have to administer this legislation in the local offices. I cannot imagine that they will ever understand what they have to do under these provisions. I support the amendment.

Lord Rix

If those lines had been written into one of the plays which I did in Whitehall in my former life, without doubt they would have been struck out of the script at the first reading!

Lord Inglewood

Clause 6(2) (d) allows regulations to prescribe circumstances in which for the purposes of this Act a person who is actively seeking employment is to be treated as not actively seeking employment. That would do no more than carry forward the provisions of the current legislation. The amendment, however, seeks to ensure that no such regulations could be made. Nevertheless, I can understand why other noble Lords should have some concern about what may appear to be an unusual provision. Let me therefore give the assurance that this provision, just like the power to treat certain groups as not available, may certainly not be used to exclude from benefit people who should receive JSA.

Many Members of the Committee will be aware that, when the issue was discussed in another place, Ministers were asked to consider whether there was a need for a provision of this kind to be carried forward into JSA. We have now given the matter careful consideration and concluded that we do have such a need.

We have made clear that it is in the interests of young people that they should not be on benefit and have provided the guarantee of a place on a youth training programme for all 16 and 17 year-olds. Where, however, in exceptional circumstances they are claiming jobseeker's allowance, the conditions of benefit which apply to them should be appropriate to their particular circumstances. We therefore intend that they should be required actively to seek training as well as employment.

That is where this provision will show its utility. We intend to provide that, unless they are actively seeking both employment and training, young people will be treated as not actively seeking employment. I believe that this is a sensible use of the provision to enable regulations to be made which will fully reflect the particular needs of one particular group of jobseekers.

In reply to my noble friend Lady Faithfull, in the offices the regulation, not the power, will determine what is done in any particular instance. I therefore invite the Committee to reject the amendment.

Lord Renton

Before my noble friend sits down, I have done my best to follow him but, as I understand it, he has made it clear that paragraph (d) is intended to cover circumstances where people are undergoing training. The Minister has mentioned no other circumstances, as I heard him, to be covered by the proposition. If that is so and it has that narrow effect, could that not be stated in the Bill instead of being left to regulations?

Lord Inglewood

That is an interesting point which we shall have to consider carefully.

Baroness Seear

Also before the noble Lord sits down, perhaps he will clarify one point which I have raised on a number of occasions in previous debates. The Government talk about training, but it is not just any training. It is futile to encourage intelligent people to take training for jobs which they do not wish to have and for which they have little talent. Is there no way of limiting the requirement for training to training for something after they have been positively advised and have agreed that they wish to train for it? We are always told, "There is training". That is not good enough. It must be appropriate training. Is there not some way for that to be recognised on the face of the Bill? Also the point is not limited to the youngsters, because nothing could be more awful for the trainers than having to train someone who does not wish to learn what is being taught, has no facility for it and will not use it later to any effect. The point needs clarifying.

Lord Inglewood

The noble Baroness is right about training. In the event of there being a jobseeker's agreement in place—as there will be—that matter will be discussed between the employment officer and the claimant so that they may reach a satisfactory decision as to the type of training that would be appropriate in the circumstances.

Baroness Hollis of Heigham

Again before the Minister sits down, perhaps he could help me further. Like everyone else, I was trying to puzzle out the meaning of paragraph (d). The Government's memorandum to the Delegated Powers Scrutiny Committee gave cases of 16 and 17 year-olds. The legislation tries to ensure that certain groups of people who are actively seeking work will, if they fail to obtain it, nevertheless not qualify for benefit. The Minister gives the example of 16 and 17 year-olds. Also, can he tell us about the habitual residence test? Will it apply to British nationals returning from abroad after 20 years who may be actively seeking work but who fail the habitual residence test? Will they be caught under the regulation?

Lord Inglewood

The habitual residence test is a quite separate issue from this matter.

Baroness Hollis of Heigham

But is the Minister saying that someone coming back from abroad who is actively seeking work and who is, in a sense, a foreigner, will not fall into this category or will not be treated as though he is not actively seeking work and is therefore not eligible for benefit? Is that so?

Lord Inglewood

I hope I understood the noble Baroness's point correctly. The habitual residence test is an entirely separate matter from this test.

Lord Boyd-Carpenter

I hope that the Minister will go a little further than he did in response to my noble friend Lord Renton. He put a reasonable proposition and I hope that the Minister will agree that this was so. Apart from the immediate point which arises, frankly, as it stands, the Bill looks ridiculous. Paragraphs (c) and (d), if they were in the press, would make it look as though the Government had gone crazy in their legislation. It is necessary to make it clear that, contrary to how it may look on paper, the Bill is not contradicting itself in successive paragraphs: it has an intended meaning. Although I believe I understand from the Minister what that meaning is, it is important that it should be spelt out and not brushed aside, if the Minister will allow me to say so, as it was when my noble friend Lord Renton raised the matter.

Lord Inglewood

I am grateful to my noble friend for his comments corroborating the value of the Bill. I listened carefully to his remarks and of course I did not intend any discourtesy or cursoriness in the manner in which I dealt with my noble friend Lord Renton's point. I assure my noble friends that this is a point which we shall have to examine carefully.

Earl Russell

It is not the Minister's courtesy that anyone has called in question: none of us would presume to do so. We call in question his flexibility. He has been uttering the word "flexibility" all the afternoon and we are asking him to practise what he preaches.

I am deeply grateful to my noble friend Lady Seear for her comment on suitable training. We have put down an amendment which bears on that point. I am also grateful to the noble Lord, Lord Renton, for the distinction which he made between paragraphs (c) and (d). Paragraph (c) is the prerogative of mercy. It is my understanding that, for example, it protects women in refuges who sometimes dare not go out to seek work for fear of pursuit.

Last night I wrote to the Minister on the point, but, since the letter will not have reached him yet, I would not presume to ask him to reply to it. Were we to attempt, against the interests of the subject, to do things as far-reaching as we can do under the prerogative of mercy, that would be very dismaying. It would be a kind of prerogative of mercilessness. That is not what we want.

I am grateful to the noble Lord, Lord Boyd-Carpenter, for his intervention, which I found extremely helpful. What I did not hear from the Minister was any real suggestion of a possibility that the provision might change. I was listening carefully and did not hear it. If I am mistaken I shall give way to him now. I ask the Minister one question: if it is my wish to vote against disentitlement under this power, would he rather that I did it now or when the regulations are placed before the House? I shall wait for his answer and act on it.

Lord Inglewood

It is rather like being asked, "When did you stop beating your wife?". It is a matter for the noble Earl to decide. It is entirely in his hands as to whether he would rather do it now or on some other occasion.

Earl Russell

In that case, I have no alternative but to ask the opinion of the Committee.

6 p.m.

On Question, Whether the said amendment (No. 45) shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 139.

Division No. 2
Acton, L. Graham of Edmonton, L. [Teller.]
Addington, L.
Ashley of Stoke, L. Gregson, L.
Barnett, L. Grey, E.
Beaumont of Whitley, L. Hardinge, V.
Blackstone, B. Harris of Greenwich, L.
Broadbridge, L. Henderson of Brompton, L.
Bruce of Donington, L. Hertford, M.
Hollick, L.
Carmichael of Kelvingrove, L. Hollis of Heigham, B.
David, B. Houghton of Sowerby, L.
Dean of Beswick, L. Hylton, L.
Desai, L. Jay of Paddington, B.
Donaldson of Kingsbridge, L. Jenkins of Putney, L.
Dormand of Easington, L. Kilbracken, L.
Dubs, L. Kintore, E.
Falkland, V. Lockwood, B.
Farringlon of Ribbleton, B. Longford, E.
Geraint. L. McCarthy, L.
Gladwin of Clee, L. Mclntosh of Haringey, L.
McNair, L. Seear, B.
Merlyn-Rees, L. Sefton of Garston, L.
Mishcon, L. Shaughnessy, L.
Monkswell, L. Shepherd, L.
Moyne, L. Simon, V.
Nicol, B. Stedman, B.
Stoddart of Swindon, L.
Peston, L. Swinfen, L.
Prys-Davies, L. Taylor of Gryfe, L.
Raglan, L. Thomas of Walliswood, B.
Richard, L. Tope, L.
Rix, L. Wharton, B.
Robson of Kiddington, B. White, B.
Rochester, L. Williams of Crosby, B.
Rodgers of Quarry Bank, L. Williams of Elvel, L.
Russell, E. [Teller] Young of Dartington, L.
Addison, V. Fraser of Kilmorack, L.
Aldington, L. Gilmour of Craigmillar, L.
Alexander of Tunis, E. Glenarthur, L.
Annaly, L. Goschen, V.
Argyll, D. Gridley, L.
Arran, E. Hailsham of Saint Marylebone, L.
Astor, V.
Astor of Hever, L. Harding of Petherton, L.
Balfour, E. Hardinge of Penshurst, L.
Belhaven and Stenton, L. Harmar-Nicholls, L.
Blake, L. Harmsworth, L.
Blaker, L. Hayhoe, L.
Blyth, L. Hemphill, L.
Boardman, L. Henley, L.
Borthwick, L. Hives, L.
Boyd-Carpenter, L. Hogg, B.
Brabazon of Tara, L. HolmPatrick, L.
Bradford, E. Hooper, B.
Brentford, V. Howe, E.
Brigstocke, B. Inglewood, L.
Brookeborough, V. Jeffreys, L.
Brookes, L. Jenkin of Roding, L.
Burnham, L. Johnston of Rockport, L.
Cadman, L. Kimball, L.
Caithness, E. King of Wartnaby, L.
Caldecote, V. Kingsland, L.
Campbell of Cray, L. Kinnoull, E.
Carnegy of Lour, B. Kitchener, E.
Carnock, L. Lauderdale, E.
Carr of Hadley, L. Lindsay, E.
Chalker of Wallasey, B. Liverpool, E.
Chelmsford, V. Long, V. [Teller.]
Chesham, L. Lucas, L.
Clanwilliam, E. Lucas of Chilworth, L.
Clark of Kempston, L. Lyell, L.
Coleraine, L. McConnell, L.
Coleridge, L. Mackay of Ardbrecknish, L.
Colnbrook, L. Mackay of Clashfern, L. [Lord Chancellor.]
Colwyn, L.
Cork and Orrery, E. Macleod of Borve, B.
Courtown, E. Malmesbury, E.
Cox, B. Marlesford, L.
Cranborne, V. [Lord Privy Seal.] Massereene and Ferrard, V.
Melville, V.
Crathorne, L. Mersey, V.
Crickhowell, L. Miller of Hendon, B.
Cumberlege, B. Montagu of Beaulieu, L.
Davidson, V. Mottistone, L.
Dean of Harptree, L. Mountevans, L.
Denham, L. Munster, E.
Donegall, M. Murton of Lindisfarne, L.
Downshire, M. Norrie, L.
Dundonald, E. Northesk, E.
Eden of Winton, L. Orkney, E.
Elles, B. Orr-Ewing, L.
Elliott of Morpeth, L. Pender, L.
Elton, L. Platt of Writtle, B.
Fraser of Carmyllie, L. Plummer of St. Marylebone, L.
Quinton, L. Strathcarron, L.
Rawlings, B. Strathclyde, L. [Teller.]
Renwick, L. Strathcona and Mount Royal, L.
Saint Albans, D.
St. Davids, V. Sudeley, L.
Saint Oswald, L. Teviot, L.
Thomas of Gwydir, L.
Saltoun of Abernethy, Ly. Trumpington, B.
Seccombe, B. Vivian, L.
Shaw of Northstead, L. Westmorland, E.
Skelmersdale, L. Whitelaw, V.
Slim, V. Wynford, L.
Sterling of Plaistow, L. Young, B.
Stodart of Leaston, L. Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.9 p.m.

Lord Swinfen moved Amendment No. 46:

Page 5, line 22, at end insert:

("() A sick or disabled person who imposes restrictions on the nature, hours, rate of remuneration, locality or other conditions of employment which he is prepared to accept, shall not be required to show that he has a reasonable prospect of securing employment where those restrictions are reasonable in view of the person's physical or mental condition; and for the purposes of this subsection, regulations shall prescribe what evidence shall be required and that any costs incurred in obtaining such evidence shall not be borne by the claimant.").

The noble Lord said: In moving this amendment, I should like to speak also to Amendment No. 47.

The requirements to be available for and actively seeking work should take account of the special problems that face disabled people. The Bill does not clearly describe what is meant by "available for work" or "actively seeking work". The criteria governing both are left to be defined in regulations. Without knowing exactly what people will be asked to do, it is impossible to know how disabled people might be disadvantaged or discriminated against.

Although subsections (2) to (4) of Clause 6 allow the Secretary of State to make provisions to ensure that disabled people are not asked to meet requirements that they cannot meet because of their disabilities, it is essential for that to be explicitly stated on the face of the Bill, and Amendment No. 46 does that.

As we do not know what exactly will be covered by "available for work", "actively seeking work" and the "jobseeker's agreement", it is difficult to describe circumstances in which disabled people may be unfairly penalised. Nevertheless, it is easy to envisage disabled people facing difficulties in meeting requirements such as those regarding the hours of work, their distribution throughout the working week, the number of job applications that they have to make —which may be limited very severely by the type of disability—the frequency of attendance at the Jobcentre, the method of approaching a prospective employer, the means of applying for a job and so on.

In the other place, the Minister seemed to indicate that disabled people who chose to sign on would not have to go through the availability test. In the Second Standing Committee on Statutory Instruments, &c., debating the draft Social Security (Incapacity for Work) Miscellaneous Amendments Regulations on 23rd March this year, the Minister (Mr. Hague) referred to disabled people being able to restrict their availability for work. He continued: New regulation 17A has nothing to do with those arrangements. It relates solely to people who have been found incapable of work and therefore have no need to restrict their availability. The purpose of the regulation is to ensure that people need only to show some connection with work or training for work to benefit from this new provision-to show that they can reasonably do some sort of work".—[Official Report, Commons; Second Standing Committee on Statutory Instruments, &c., 23/3/95; col. 12.]

I have given the Minister notice of a number of questions. I hope therefore that my noble friend will be able to provide comprehensive answers.

First, can my noble friend clarify the effect that Regulation 17A has on people who are regarded as incapable of work but want to sign on? Does the new regulation merely allow someone to prove only that he is capable of work for the purposes of jobseeker's allowance but has no effect on the conditions of availability and actively seeking work? Or does it mean that once accepted as capable of work under this regulation, a disabled person would—as Mr. Hague seemed to suggest—have no need to restrict his availability? Can the Minister also clarify how the regulation will operate in practice, taking as an example someone who is registered blind? If that person is on incapacity benefit but wants to sign on, is it the Benefits Agency or the Employment Service which assesses whether he can use the regulation? If he has been in work and is made redundant and wants to sign on as unemployed, will he be accepted as capable of work by the Employment Service? Or will he first have to go to the Benefits Agency to be assessed as incapable of work, then have to satisfy one of the two conditions under Regulation I 7A in order to be treated as capable of work, then go to the Employment Service to explain that he is capable of work and then justify any restrictions on availability?

I turn to Amendment No. 47, which is grouped with this amendment. The purpose of Amendment No. 47 is to allow people who are appealing to a social security appeal tribunal against the withdrawal of incapacity benefit on the basis that they are incapable of work to be automatically treated as available and actively seeking work for jobseeker's allowance purposes while waiting for their appeal to be heard. I understand that the citizens advice bureau considers that there is an unavoidable contradiction in the position of a person who is simultaneously appealing to a social security appeal tribunal on the grounds that he is incapable of work while seeking to satisfy an employment officer that he is available for work and actively seeking work. Yet many people who have their incapacity benefit withdrawn will be placed in that position.

I consider that to be unsatisfactory, not only for sick or disabled people who run the risk of being refused jobseeker's allowance, but also for Employment Service staff, who will have the difficult and time-consuming task of assessing a group of people in poor health who may very well be claiming jobseeker's allowance for a limited period until their appeal is heard. My proposed amendment thus has operational advantages as well as easing the position of sick and disabled people for the limited period of their appeal. I beg to move.

6.15 p.m.

Lord Rix

I rise to support Amendments Nos. 46 and 47 to which my name is also attached. I realise that perhaps I am speaking Canute-like against the tide of affairs this afternoon. But I again ask the Minister to agree to what is clear and reasonable being written into the Bill, thus helping all concerned later to understand the regulations. Perhaps, as I have made one allusion to my theatrical past this afternoon, I may be allowed to make another. I am better qualified than most to recommend belt and braces. In this case, I do so unreservedly.

Baroness Williams of Crosby

I also rise to support the amendments of the noble Lord, Lord Swinfen. Perhaps I may just advance one additional argument to those that he has already so eloquently marshalled. In the case of someone who is disabled, his ability to be able to contest a decision that he should be disallowed jobseeker's allowance is in many ways limited by the very fact of his mobility and the conditions under which he operates. The noble Lord, Lord Swinfen, is trying—he is absolutely right to do so—once again to put on the face of the Bill conditions that would have to be recognised by employment officers when reaching their decisions.

Once again, doubtless we shall be told that regulations will take care of that. But this concerns a group of our very vulnerable fellow citizens to whom I believe we have a special obligation to try to get out into the open the conditions which determine whether or not benefit is to be disallowed. Again I plead with Ministers to consider very carefully whether this provision could be put on the face of the Bill, rather than once again asking us to rely on regulations in a situation which relates to some of the most vulnerable people in our community.

Baroness Hollis of Heigham

We also should very much like to support the amendments so skilfully put forward by the noble Lord, Lord Swinfen. Earlier in the Committee stage and at Second Reading the Minister said that people who failed the incapacity benefit test would be able to move seamlessly and smoothly on to JSA. Among other things, that is what these amendments probe. I am afraid that we have no such confidence.

Over a quarter of a million people will either lose invalidity benefit but fail to gain incapacity benefit or would have received it but will not do so in the future. The Government themselves expect something in the order of 140,000 people to appeal. They will appeal because, although they have some points for incapacity, they do not have enough points to qualify them for full incapacity benefit. I shall perhaps give some examples in a moment.

While those people are appealing their right to receive incapacity benefit, either they can refuse to sign the jobseeker's agreement—in which case they may get income support with, attached to it, a 20 per cent. fine for the impertinence of appealing—or they will register for JSA, despite their reluctance, believing that it is the wrong benefit for them because jobseeker's allowance presumes the very capacity for work against which they are appealing. Naturally, they will feel that they are undermining their appeal. We fear that it will prejudge the case; the Minister assures us that it will not. We doubt those assurances. It must be right, in those circumstances, for the claimant to retain incapacity benefit until the appeal has been heard rather than accept either income support with a fine of 20 per cent. with the right of appeal, a penalty on appealing or, alternatively, to go for JSA which appears to undermine their case.

The experience on the ground leads us to believe that we are right in our fears. Last autumn there was a RADAR survey—one of the leading organisations for disabled people—which looked at 77 cut-off cases under the more generous invalidity benefit regime. It studied those 77 people who were denied invalidity benefit and therefore had to seek unemployment benefit on the grounds that they were capable of work. It found that of those 77 people, 37 per cent. (over one-third), having been refused invalidity benefit, had difficulty being accepted for UB on the grounds that they were not capable of work; 29 per cent. (over one-quarter) failed to obtain unemployment benefit.

The Minister tells us that there will be a smooth progression from incapacity benefit to JSA. Yet under the previous regime, when we had more generous benefits—invalidity benefit and UB—over one-quarter of the cases surveyed by RADAR were denied the first benefit and failed to obtain the second. What confidence can we have therefore in the Minister's assurance that it will be a seamless movement to one from the other, particularly under the new incapacity benefit test—Members of the Committee around the Chamber expressed their anxiety about this matter—on grounds of mental health?

Let me give an example. To qualify for incapacity benefit, one must acquire 10 points on the grounds of mental health; fewer than 10 points and one must go to JSA. Let us consider somebody with seven or eight points. Does he or she get upset by ordinary events so that it results in disruptive behavioural problems? That warrants two points. Do they become confused by conversations? That warrants two points. Can they look after themselves without help from others? That also warrants two points. Are they frightened to go out alone? That warrants only one point. The list produces a total of seven points for someone who is so easily upset that they exhibit disruptive behaviour, who becomes confused by conversation, who cannot look after himself without help from others and who is afraid to go out alone. They still do not qualify for incapacity benefit, yet we are told that they will nonetheless qualify for JSA; that they are capable of work. Does anyone believe that any employer can usefully employ somebody who becomes so upset by ordinary events that they exhibit disruptive behaviour; that they are confused by conversations; that they cannot look after themselves without help from others and are frightened to go out alone? Yet that person will lose incapacity benefit and he told on those grounds that he or she is eligible for JSA.

Any reasonable Employment Service officer, any adjudication officer—and, I suspect, any employer—will think that such a person is not effectively capable of work. That was the experience under the old benefit system and we have no reason to believe that it will not he the experience under the new benefit system. Therefore, we ask the Minister to ensure that while the appeals are going through, there is a seamless move so that anybody currently in receipt of incapacity benefit does not lose it while they are appealing. All the information we obtained indicates that many people, because they are partially disabled, will not and cannot reasonably qualify for JSA. They will lose on the one because they do not qualify for the points, and lose on the other because there is clear evidence of their incapacity for work.

We are extremely worried that the Government may he placing thousands and tens of thousands of some of the most vulnerable people in our community in between two benefits, the first of which is being denied to them and for the second of which they cannot qualify. We need more than reassurances from the Government, in the light of our current experience, on the interface of such benefits. I support the amendment.

Earl Russell

I shall not repeat what I have said before, but we clearly have a problem here. I accept that the problem does not arise from the Minister's intentions. Clearly at the employment office end the system is not working. The employment officers are finding a large number of people coming in whom they do not feel that they can place. Something therefore must be done to ease the pressure on the Employment Service. Removing the appeal penalty would be one way; accepting a concept of limited availability would be another.

I appreciate that we cannot ask for communications between the Minister and the Employment Service. But is the Minister listening to what is coming back from rank and file employment officers on the ground regarding the effects of this Bill on their daily workload? Is he prepared to do anything to ease that workload? Something must be done because the Minister's intention is not being effected. If the Government can think of any better way than these amendments, I shall listen with a great deal of interest.

Lord Ashley of Stoke

I should like to say a brief word in support of Amendments Nos. 46 and 47. I am particularly anxious that Amendment No. 47 should be accepted by the Minister. If it is not, the Bill as it stands is an inducement to schizophrenia.

The situation is that people who are appealing against a withdrawal of benefit must assert that they are incapacitated; by definition they must plead incapacity. Simultaneously they must satisfy an employment officer that they are fit for and seeking work. They cannot face both ways. The Bill as it stands means that they have no option but to do that. It is an impossible dilemma. If the amendments are accepted, it will provide a solution for them and for the Government.

The CAB informed many of the Members of the Committee this afternoon and gave us brilliant briefings. The CAB is clear that many people who have had incapacity benefit withdrawn will be placed in the position I stated. I accept its word and hope that the Minister will also and that he can do something about it. The CAB also said that it is afraid of a kind of ping-pong—its phrase not mine—with people in poor health being bounced between the Benefits Agency and the Jobcentre. I am sure that is right. People will go to one agency and be rejected; they will appeal to the other and again be rejected; and so the ping-pong will continue. Vulnerable people will suffer. Therefore, I hope that the Minister will give careful and sympathetic consideration to these amendments.

6.30 p.m.

Lord Inglewood

I shall begin with Amendment No. 46. We understand the concerns which lie behind this amendment. It seeks to recognise that the circumstances of people who have a disability need special consideration. I would assure the Committee that we have taken the needs of people with disabilities into account in drawing up the JSA labour market rules.

We intend to carry forward the current provisions in unemployment benefit and income support which allow a person with a mental or physical condition to place restrictions on the nature, hours, rate of remuneration, locality or other condition of employment which he is prepared to accept where those restrictions are reasonable in view of his condition. I hope that goes some way towards answering the point of the noble Earl, Lord Russell.

In the majority of cases, where a person wants to restrict his availability on health grounds, the employment officer will be able to accept the individual's assessment of the restrictions which are necessary. That is how the current provisions work in practice and we are not aware of any problems to which requirements to produce evidence have given rise. Employment Service staff in Jobcentres, where necessary with the support of disability specialists in placing and counselling teams, will be able to draw on their own knowledge and experience both on the impact of disabilities on occupations and on their effect on a person's prospects in their local labour market. In other cases, including those where the employment officer has any doubt about what is appropriate, the case will be referred to an adjudication officer. Depending on the circumstances, an adjudication officer may wish to seek evidence from the individual to demonstrate that his condition justifies the restrictions that he proposes to place on his availability.

Where a person is found capable of work under incapacity benefit, the disallowance notice will contain information on the functional areas in which limitations were identified. Provided that the claimant has consented, ES staff will be able to ask for this information when a claimant registers with them. That should normally be sufficient, if necessary, to verify the existence of a condition which restricts the type of work a person can do. The adjudication officer can also ask to see the detailed report provided by the Benefits Agency Medical Service doctor in the incapacity assessment.

My noble friend Lord Swinfen asked a specific question relating to new regulation 17(a). I should like to give him a full answer. Regulation 17(a) provides for cases where a claimant is incapable of work under the new definitions introduced with incapacity benefit if he wishes to claim unemployment benefit, and in future JSA, rather than incapacity benefit. He can be treated as capable of work for JSA purposes if, despite his disabilities, he can still undertake some forms of work. The provision is therefore a helpful one as it ensures that disabled claimants are not debarred from JSA even if they could be eligible for incapacity benefit.

In answer to the specific questions raised by my noble friend, first, the regulation deals only with the question of capacity. Once the claimant qualifies for JSA under it, he has shown only that he can be treated as capable for work and must then still go on to agree availability arrangements and, of course, look for work. Secondly, given the type of claimant concerned, it is, however, quite clear that in virtually all cases there would need to be agreed restrictions on availability. These will be agreed exactly as for any other disabled claimant in line with the nature of the disability. It is worth remembering that in both these questions we are dealing with volunteers—people who are keen to find work and have chosen JSA. In those circumstances, we do not anticipate major difficulties agreeing sensible availability arrangements.

I shall now move on to other points raised. If a blind person on incapacity benefit decides to sign on, he will make a claim for JSA. The Employment Service adjudication officer must decide whether he satisfies the regulation, because we are looking at evidence which is concerned with the claimant's ability to undertake work. This is a labour market issue. As the regulation makes clear, the AO will take into account any recent work or training record. If there is none, he can take into account any other factors he considers appropriate in deciding whether the claimant has a reasonable chance of obtaining work despite the fact that he has disabilities which would normally allow him to claim benefit as incapable of work. It should not be necessary for a blind claimant who is made redundant to have to go separately to the Benefits Agency for an assessment of incapacity before his claim can be decided. Our intention is to operate procedures which are as simple as possible for claimants who want to seek work.

I return to the amendment. It would involve prescribing what evidence an adjudication officer may require. I cannot agree that that would help the jobseeker or the adjudication officer. Adjudication officers make their decisions on the basis of the facts available. He should not be constrained in the evidence he may seek; similarly, what evidence the claimant may wish to provide should be up to him.

I now turn to Amendment No. 47. I have made clear that we want to include people with disabilities in JSA, not exclude them. But this amendment could mean that people with disabilities or indeed anyone dissatisfied and appealing against the incapacity test could get JSA even though they were not available for work or looking for it. That would be wrong. JSA is for jobseekers. People who are not capable of work will receive incapacity benefit.

Where a person appeals against a decision that he is capable of work, he will be able to claim JSA pending the outcome of his appeal if he makes himself available and looks for work. I appreciate that noble Lords may be concerned that that will prejudice his appeal. Let me reassure your Lordships. That will not be the case. The adjudicating authorities have made it clear in their judgments, and the chief adjudication officer has confirmed in published guidance, that making themselves available for work should not in any way prejudice their appeal.

There may be some people who do not wish to make themselves available for work pending their appeal. Existing invalidity benefit claimants, those in receipt of severe disability allowance and others who have been incapacitated for 28 weeks as of 12th April this year will be able to get their full income support personal allowance pending their appeal, if found capable at their first "all work" test. Any other person who first claims incapacity benefit on or after 13th April this year can also claim income support pending the appeal, but the personal allowance will be reduced by 20 per cent.

Lord Swinfen

I thank my noble friend for his answer, which has been long and involved. I should like to study it. Some more questions have come to mind during the course of this short debate. However, because I have not given my noble friend advance knowledge of them, he may prefer not to answer them now but to write to me.

At Report stage in the other place the Minister promised to ask the Secretary of State for Social Security to consult the Secretary of State for Health about how to encourage general practitioners to provide medical evidence free of charge to claimants who need it for the purposes of placing restrictions on their availability. Can my noble friend tell me whether there has been any progress with those discussions? More generally on that point, will he look again at the possibility of paying for medical evidence of that kind?

During the debate on Clause 1 on 20th April my noble friend said that the current unemployment benefit provisions would be carried through into jobseeker's allowance, stating: The acceptability of restrictions on availability would depend on the individual demonstrating a reasonable prospect of securing work".—[Official Report, 20/4/95; col. 626.] However, I understand that current unemployment benefit rules states exactly the opposite. The word "not" may have been lost in the reporting. But as this is a most important issue, can my noble friend clarify the point? If restrictions that are placed on availability for work because of physical or mental condition are considered to be reasonable, does the claimant then have to demonstrate that he still has a reasonable prospect of finding work?

Lord Inglewood

The actively seeking work criterion relates to the work that is being sought. I hope that will answer my noble friend's point. There has to be a reasonable prospect of obtaining the kind of work which is the subject of the agreement.

Without checking the matter myself, I would not want to make an unequivocal statement relating to whether the "not" had or had not been inserted in Hansard. I shall write to my noble friend.

My noble friend asked whether discussions had taken place between the Department of Health and the Department of Social Security and, if so, what the outcome was. Currently, those discussions are under way, but they have not yet been completed. We cannot take this matter any further until we are clear what the outcome of the discussions will be.

Lord Swinfen

The question of whether the "not" should or should not be there is an extremely important one as it totally reverses the unemployment benefit rules if the Minister is reported accurately. I am sure my noble friend would agree with me that the matter is so important that between us we should find a method of it being reported in Hansard.

I thank my noble friend for his answers to my questions. I shall read them in full in Hansard and give them my consideration. I may well come back to these two matters at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 47 and 48 not moved.]

Lord McCarthy moved Amendment No. 49:

Page 5, line 22, at end insert: ("() A person in regard to whom a question has arisen as to whether he is still available for and seeking work, is to be notified in writing that such a question has arisen and is to be given an opportunity to establish whether or not he is still available for and actively seeking work before a determination is made.").

The noble Lord said: This is a small amendment which seeks to take us back to the period when it was normal for a person about whom a question arose as to whether he was available for and seeking work—before he was, as it were, struck off—to be notified in writing so that he had some prior warning and so that he could come into the benefit office or the Jobcentre to explain the situation.

As I understand it, that provision was removed in 1992 as part of a general tightening up, seeking to make the actively seeking work test, first changed in 1989, more effective. The results were disappointing. So certain things were done, and the idea of sending the letter of warning was abolished. Together with many other things, the result has been that the number of disallowances has risen significantly.

It is not difficult to see why. To get rid of a simple administrative device of this kind is, in a very real sense, a denial of natural justice. The individual unemployed person may have had very good reasons for being unable to meet the activity or availability tests. The first knowledge that he or she would now receive in many cases is that the benefit has been disallowed whereas if a letter were sent it would presumably give some details of the way in which in future the unemployed claimant had fallen behind and had not carried out the provisions of the job agreement. Before the cancellation of the benefit some chance would be available to make a case at the office. We have had many examples put forward by the CAB of what seem quite unreasonable denials to individuals and to the CAB of benefit where prior knowledge of the kind that used to be provided by a letter would have significantly helped the unemployed person. I beg to move.

Baroness Williams of Crosby

This amendment emerges with more significance than I first thought when I started to explore it. Perhaps I may take the Committee back for a moment to November 1992 when the Social Security Advisory Council drew attention to the effects of the warning letter that, until 1991, had been regularly issued, as the noble Lord, Lord McCarthy, said, to those who were likely to find their benefit withdrawn.

At that time the advisory council pointed out in some very interesting figures that of 28,910 warning letters issued in the year 1989–90, in the vast majority of cases they were followed by action taken by the persons to whom the letters were addressed, pointing out that active steps were being taken to find work. Indeed, only 5,000 cases out of 28,910 were ever referred to an adjudication officer and of those only 1,768 were found to be justified. In other words, of nearly 29,000 warning letters under 2,000 cases were shown to be justified. So the warning letter had the exact effect that the Department of Employment at that time thought it would have. It led many of our fellow citizens to show reason why they should not have benefit withdrawn.

In December 1992 the noble Countess, Lady Mar, concerned about the findings of the Social Security Advisory Committee, led a debate on a Motion in this House in which she sought an assurance that if there were to be any major changes in the figures indicating that the abandonment of the warning letter had led to many more cases of disqualification, there would be further consideration given to the matter. In view of the number of instances during the progress of this Bill when the noble Lord, Lord Inglewood, I am sure for the best motives in the world, has told us to rely on the fact that employment officers will treat regulations with due sympathy and consideration, I would like to quote the words of the noble Lord, Lord Henley, who responded to the noble Countess's concerns as follows: On the basis of the evidence before us now, we are satisfied with the desirability of those regulations. But, if there were further evidence that these regulations are catching those whom it is not intended to catch and not dealing with those who consciously and deliberately fail actively to seek work, obviously we would then reconsider".—[Official Report, 1/12/92; col. 1332.] That was on 1st December 1992. From that time until now the number of warning letters has dropped dramatically. In 1990–91, the year after that in which the Social Security Advisory Council drew the attention of noble Lords to the issue, the number of letters of warning issued was 37,000. Of those, most led to no disqualification. In the following year, 1991–92, 25,097 warning letters were issued and of those less than 2,000 led to disqualification: in other words, less than 1:10.

However, last year 9,000 letters of warning were issued and there were 113,000 instances of disqualification from benefit. So it is not unreasonable to say that as the number of letters of warning declined the number of cases of disqualification increased. I do not seek to draw a direct correlation but the figures seem sufficient to justify a sense of real disturbance.

There is one other argument to explain why I believe that this amendment is one of the more important ones before the Committee. The submissions for adjudication on the issue as to whether benefit should be withdrawn, according to the annual performance agreement, depend on an arguable case with supporting information to show that the claimant is not available or actively seeking or willing to accept work.

I draw the attention of the Committee to the phrase, "an arguable case". Perhaps I should not risk saying this in the hearing of the noble and learned Lord, Lord Hailsham of Saint Marylebone, a former Lord Chancellor, although I believe he may agree with me. Normally, an arguable case is one where the argument is presented on both sides—in other words, the prosecution implies a defence. In this case the defence cannot be advanced because the defendant does not even know that a prosecution is being brought. As stated by the noble Lord, Lord McCarthy, the first the claimant knows is that his or her request has been disallowed without he or she being able to advance reasons to the contrary.

What makes the matter even more serious, as mentioned by the noble Lord, Lord McCarthy, is that on this issue turn the assurances given us in good faith by the noble Lord, Lord Inglewood. He told us that the set of regulations about which we were concerned in Amendments Nos. 43A and others, as regards reasons why people may not genuinely be available for work, ranging from the need for caring for their children or for an elderly relative or a religious objection such as not being willing to work on a Sunday, would be carefully taken into account in regulations. But if the person so affected does not even have the opportunity to argue that the reason they were not available for work or not actively seeking it was because they were not willing to work on Easter Sunday for religious reasons or they were unable to work in a particular job because an elderly relative had to be cared for, then what possible weight can be placed on a genuine promise that the regulations will reflect those needs?

For all those reasons I believe this to be an amendment which goes to the very heart of the rights of the individual citizen. The more I become familiar with the Bill the more profoundly concerned I am about its implications.

Lord Inglewood

Let me assure the Committee that under the JSA the jobseeker will receive full information about his or her position. The amendment is therefore unnecessary. Under current practice when a doubt is identified on a claim for unemployment benefit the claimant is notified in writing that the claim is being referred to an adjudication officer for a decision. The form explains the adjudication process in general terms. A further leaflet is available containing more details on each of the benefit rules. The claimant is invited to ask at the ES office for help with points not covered in either leaflet. We shall be following similar practices in JSA.

In response to the points made by the noble Baroness, Lady Williams, if we could see chapter and verse of instances where the system has broken down completely, that would enable us to see what we could do to put matters right. Another point raised by the noble Baroness related to Sunday working. One of the characteristics of the jobseekers' agreement is that it should be able to identify such points at that stage, thereby getting around the practical problems which, if they have occurred, must be extremely distressing and something that we would not want to condone.

I am puzzled by the second part of the amendment. If the noble Earl's concern is that the jobseeker must be able to put his case, let me reassure the Committee. If the adjudication officer has any questions about the jobseeker's case, he can and does ask the jobseeker to supply more information before he makes his decision. As we may discuss later, there is a system of transfer from the first adjudication officer to a second adjudication officer at the claimant's wish, if he is unhappy. Similarly, both before and after a decision, if more evidence or information comes to light, an adjudication officer must take account of the evidence and may revise his decision as regards the award accordingly.

But we must be careful about the perverse effects of the second part of the amendment. If it is intended to enable a jobseeker to be given a second chance to be available or to seek work actively in a given period, that would significantly weaken the incentive effect of the availability and actively seeking work condition.

Jobseekers must be available for employment and take steps to look for employment every week. Those are the conditions of entitlement to JSA, and we shall be seeking, through the jobseekers' agreement and in other ways, to make them as clear as possible to all claimants. If the jobseeker does not take the necessary steps, or has not been available for employment in any week, the employment officer must be able to refer the question on the facts of the case. He should not be hindered by considerations of what the jobseeker might do in the future, before the adjudication decision.

I should have referred to the letter at the outset of my remarks. The letter merely enabled the claimant not actively to seek work until he was warned to do so. Active seeking is a clear condition of benefit. The required steps are made clear to the individual from the start of his claim. Such a written warning in that regard should therefore be unnecessary.

Earl Russell

The Minister objects to the idea that the jobseeker should have a second chance. Is it not proverbial that a dog is allowed one bite? Why should the jobseeker be treated worse than a dog?

Lord McCarthy

I am not sure that I understand what the Minister is saying. If I understand him aright, he is saying that it is perfectly all right because we do it anyway, and the amendment is merely declaratory of the existing situation: A person in regard to whom a question has arisen as to whether he is still available for and seeking work". is, in fact, notified in writing. That is not quite the same way, but he is notified in writing: that such a question has arisen and is to be given an opportunity to establish whether or not he [or she] is still available for and actively seeking work". The Minister seems to be saying that we do it anyway and yet somehow, as the noble Baroness said, these letters are no longer sent. So the difference is that the decision is taken first. Is not that what the Minister is saying? The officer in the Jobcentre decides that the person is no longer fulfilling the tests, and the benefit stops. Subsequently he writes to the adjudication officer and then to the unfortunate unemployed person and says, "The benefit has gone, but I have written to the adjudication officer". Of course we know that in certain circumstances if the individual is vulnerable and in hardship, a lower rate of benefit can be paid. But if he is not, then no benefit is paid, and in the meantime what the unemployed person knows is that, subject to review by the adjudication officer, the benefit is stopped, and he is considered to be not actively seeking work. That is not the same thing at all. It is entirely different. What is wrong with having our amendment?

Baroness Williams of Crosby

Before the Minister responds to the noble Lord, Lord McCarthy, perhaps I may ask just one other question. It was not clear to me, although I recognise that the Minister is doing everything he can to help us, what was the position with regard to warning letters. There was a lack of clarity, at least in my mind, for which I apologise, as to when the claimant is supposed to read leaflets and when he receives a letter.

I am sure that the Minister will recognise that there is a real difference between receiving a personal letter and being expected to understand a leaflet. Having had the experience of being a Minister at the Department of Employment, I have to say that many of the leaflets are not completely clear. In Committee, we have talked on occasion about people with learning difficulties, people who may not have English as their first language and those who may not find it easy to read.

A person who is alerted by a letter will probably seek advice and help from a CAB or someone else. That is something that he will not know how to do if he is expected to find a leaflet.

As regards the objection that the noble Viscount raised about the danger—and I understand it well—that a warning letter might arrive some months after someone has started drawing benefit and that the person concerned only then takes action, I appreciate that that might well apply to someone who was anxious not to take work and who wanted to live on benefit. It is not impossible for the Department of Employment to send that letter after, let us say, a month or six weeks. I do not see why it has to wait four, five or six months to validate the noble Viscount's comments.

Lord Inglewood

I thank the noble Baroness for her contribution which was especially valuable bearing in mind, as she explained, her experience in the department in which I now have the privilege to be working. Just a small point en passant: would that I were a noble Viscount. I am not.

Baroness Williams of Crosby

I have upgraded the Minister.

Lord Inglewood

There are two separate letters here. We do not send a warning letter to people telling them to start active seeking, but we send a letter to the claimant advising him that the matter is being referred to the adjudication officer.

Baroness Hollis of Heigham

If the letter is being sent at the point at which the employment officer is referring to the adjudication officer, that means that there is a presumption that benefit will be stopped simultaneously with the sending out of the letter, rather than the letter being sent out in advance saying, "We are minded, and if there is good reason why we should not refer this", with the implication that the benefit will be stopped, which surely is the just way.

Lord Inglewood

I understand that the position is as described by the noble Baroness. It is important to be clear that in this case the benefit is payable so long as the criteria are satisfied; in other words, so long as the person concerned is in fact actively seeking work, Therefore, that is a matter of fact and not of opinion so far as concerns the point in time.

Baroness Hollis of Heigham

I am taken aback to be told that the position is as I have described it. Does that mean the Minister is saying that a letter will be sent in advance to any JSA claimant saying that there is some doubt about his or her availability for work and that unless that doubt can be satisfied there will he a referral, and that any problem of loss of benefit will begin only if the claimant has failed to respond to the letter, failed to meet that doubt and as a result the matter goes through to the adjudication officer.

Lord Inglewood

As I understand it, the benefit is payable for the duration of the time that the person is actively seeking work. I believe that I am right in saying that, if there is anxiety that the person may not be actively seeking work, the employment officer will advise the jobseeker at the same time as referring the matter to the adjudication officer—

7 p.m.

Baroness Hollis of Heigham

What happens to benefit during that time?

Lord McCarthy

During the time in which the letter is being sent and the adjudication officer is being informed, which may be two or three weeks, will the benefit continue to be paid?

Lord Inglewood

I am now in a position to reply. The benefit will be suspended. If the adjudication officer agrees, the benefit is disallowed; if not, the benefit is paid.

Baroness Hollis of Heigham

I believe that the Minister is somewhat confused. We are not talking about a situation between adjudication and appeal. We are talking about a situation in which doubt arises between the employment officer and the adjudication officer. I believe that the Minister is confusing the two situations.

Lord Inglewood

I do not believe that I am—

Lord McCarthy

The Minister used the word "suspended". During the period in which the letters are going backward and forward to the unemployed person and to the adjudication officer, will the benefit be suspended?

Lord Inglewood

That is as I understand the position—

Lord McCarthy

It is not the same because before the rules were changed the benefit continued to be paid in that period.

Lord Inglewood

I am afraid that I honestly do not know. Perhaps I may deal with a point raised by the noble Baroness, Lady Williams, about people who might have difficulty in speaking English. As I said previously, one of the characteristics of the jobseeker's agreement is that there is an interview between the employment officer and the jobseeker. Therefore, the position can be explained before the process gets under way. To some extent, that will go towards meeting the point which the noble Baroness made.

Baroness Williams of Crosby

I am grateful to the Minister for his response. I am sure that he will sympathise when I say that it does not fully meet the point. If the original jobseeker's agreement was an open, careful and detailed discussion of the difficulties and possibilities of employment, I fully accept what he said. However, one of the points that we on this side of the Committee have been making—and not without some awareness about how these things occasionally work in real life—is that the agreement may not sufficiently allow for the disabilities with which the particular individual must cope. That person may genuinely seek to find work but cannot because of the reasons given by the noble Baroness, Lady Faithfull, or because he or she is not attractive to employers. Benefit will be disallowed. The earlier situation in which someone could come forward before benefit was taken away and say, "Look, I have tried 20 employers and they have all told me that they don't want someone who lisps", offered a great advantage.

I believe that the Bill will lead us into more bureaucratic tangles and appeals at some expense to the public purse than would a simple decision to return to letters of warning. That would provide the Post Office with a little money and give the Civil Service and those concerned in the long period of exploring such issues a more efficient administration of the Bill.

Earl Russell

Perhaps I may tell a story which I hope no one will take personally, because it is not so intended. When I was an undergraduate I remember Mr. Hugh Dalton speaking and being asked what was the best degree for politics. He replied, "a second", because the first-class mind was too conscious of the possibility of error. I thought at the time that he was wrong and, having listened to the debate, I am sure that he was wrong. The possibility of error is the hub of the whole discussion.

The suspension of benefit may happen in error and it may cause gross hardship. One case, for example, involved a man no longer able to pay for electricity with all the food in his freezer, on which he hoped to live for two weeks, going bad. Another case involved someone who had to travel 30 miles to work without public transport. He relied on a lift from his mate, who later left the job. He was then unable to get to work and was disentitled to benefit on the ground that he was voluntarily unemployed.

Were a warning letter to be sent to the person in that position it would be very easy for the misunderstanding to be cleared up before the gross hardship of a fortnight's suspension from benefit, and with nothing to live on, was imposed. The possibility of error is the hub of the whole issue and I hope that the Minister will recognise that.

Lord Inglewood

The noble Earl is right. I wish to return in particular to his second example about the friend who drove the car and who left the job and left the other party high and dry. That is exactly the kind of incident that the jobseeker's agreement ought to take into account. It is a characteristic of the system that there is regular contact between the employment officer and the jobseeker. A change in circumstance is intended to be part of the flexibility of a jobseeker's agreement. The agreement can be adjusted and matters can be resolved in that way.

Lord McCarthy

The Minister told us that he does not know the answer to the question and I wish to know whether he can tell us the answer subsequently. We understand that previously a warning letter was sent to the person who was thought not to be actively seeking work. The noble Baroness, Lady Williams, said that at one time those letters were running at the rate of 37,000 per year, while the number of disallowances were 4,700 per year. Now the letters are running at the rate of 2,000 per year and the number of disallowances is 14,772 per year. Those two facts may be connected. That is the situation as we understand it and that is what the amendment seeks to prevent. It seeks to create a situation in which letters are received in advance.

The Minister described a situation in which a decision is taken by the employment officer that someone is not actively seeking work. Of course, the person can protest and go to an adjudication officer. In order to put that process into action, two letters are sent; one to the adjudication officer and one to the poor unemployed person who is no longer actively seeking work. In the meantime, that person receives no money. Is that right?

Lord Inglewood

Needless to say, I shall write to the noble Lord having made sure that I am right in my description. I understand that, in the circumstances that he has described, the benefit is suspended. Two separate letters have entered into our discussions. First, there is the possibility of the warning letter which at one time was sent. That process was discontinued because it was often used as a trigger for people to go out and actively to seek work when hitherto they had not been doing so, even though it was part of a condition of benefit—

Baroness Hollis of Heigham

Is that not what the Minister wants? To suggest that the warning letter was effective surely is exactly what the Minister wants. Or is he using this as an excuse to cut benefit rather than get people back into work?

Baroness Williams of Crosby

The 1992 report of the Social Security Advisory Committee made it clear that a great majority of cases were satisfactorily resolved after the warning letter had been sent. That is why we believe that the Government would be saved money and trouble if warning letters were again sent out.

Lord Inglewood

I understand the argument both noble Baronesses are putting forward. However, one is not meant to wait for the warning letter before one actively seeks work. One is meant to be actively seeking work ab initio and one should not wait for a warning letter to trigger that. That is the point.

Baroness Hollis of Heigham

The Minister's reply really will not do. It is not a question of waiting for a warning letter to trigger a person into seeking work. A person may well believe that he is meeting the actively seeking work requirement. The first that he knows that he is not doing so is when he receives a letter from the employment officer to tell him that his benefit is being suspended while the matter is referred to an adjudication officer.

Lord Inglewood

The point is that, with the jobseeker's agreement in place, much of the potential misunderstanding will be ruled out.

Earl Russell

The Minister seems to be saying that the Government withdrew the warning letter because it worked. I am reminded again of the first Lord Burghley's description of the High Commission: that it was rather a device to seek for offenders than to reform any. The Government's policy is beginning to sound rather the same.

Lord McCarthy

It is time for me to withdraw the amendment: it has had a very good run. The Minister has given an off-the-cuff answer. I hope that he will give us a full answer in writing. We want the Minister to say exactly how this matter was dealt with, how it is dealt with now and how it will be dealt with when the legislation comes into force. I hope that he can find a better answer than that he has given this evening. That answer implies that the Government would rather have a system that does not work than pay for a few weeks people who are not actively seeking work. It is a dreadful thought that the Government are prepared to break any system in order not to waste money. In that context, I beg leave to withdraw the amendment. We shall return to the matter on Report.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Viscount St. Davids)

I should point out that if Amendment No. 50 is agreed to, I cannot call Amendment No. 51.

[Amendments Nos. 50 to 53 not moved.]

The Deputy Chairman of Committees

In calling Amendment No. 54, I should point out that if it is agreed to I cannot call Amendments Nos. 56 or 57.

7.15 p.m.

Earl Russell moved Amendment No. 54:

Page 5, leave out lines 27 to 30.

The noble Earl said: I am sorry that it should have fallen to me to move such a particularly contentious amendment right on the hour of dinner. It concerns the clause in the Bill which allows for acts to be disregarded—that means, actively looking for work to be ignored—in circumstances connected with behaviour or appearance.

The Government are attempting to devise divine intentions from a single outward act. I admit that there may be people not actively seeking work who use a scruffy and unprepossessing appearance as a device to that end. On Second Reading, the noble Baroness, Lady Park of Monmouth, quoted such a case, Since that was based on the claimant's own confession, when he did not know that anyone of any substance was listening, I take it seriously.

To go directly from the outward appearance to a presumption of the intention which leads to a loss of benefit is not sensible. Again, it is extremely difficult to define intention in legislation. It is an individual matter and must be tackled individually. If the Government wish to get into trouble for a few weeks, they should go in for defining dress codes. That way lies nothing but trouble.

The problem with prescribing dress codes is that they change and while they are in the process of changing you start prescribing restrictions which are not acceptable. I take an example of a dress code in the process of changing. The court circular in 1851 said: Since no ladies will be present, trousers will be worn". The noble and learned Lord, who is not at present on the Woolsack, were he here, would have been the first to understand what was really the purport of that remark.

One need think only of the problems in relation to Sikhs being required to wear crash helmets in the 1960s from which the Government very sensibly backed off, and the problems that the French are having as regards the enforcement of headscarves in schools. There is endless scope for trouble.

When I wrote to the Minister about this matter on 27th November, I quoted the question of women being forbidden to wear trousers. I wondered then whether I was being rather old hat. It turns out that I was not. Recently, I received the latest report from the Equal Opportunities Commission. It was taking to court in Stoke on Trent the case of a woman who worked for the town's urban transport committee and who was dismissed for wearing trousers. Fortunately, the authority admitted that that was wrong and agreed an out of court settlement. But the case illustrates the endless problems which the Government may face if they go down the road of allowing regulations to prescribe dress codes.

I said of this clause at Second Reading that it was possible for an employment officer to disentitle someone's benefit if he did not like his face. The noble Lord, Lord Mackay of Ardbrecknish, shook his head at that point. I waited with great interest for the Government's reply to hear why he was shaking his head. I never did hear. If he can tell me this evening, I shall listen with great interest.

Perhaps I may ask the Minister to consider the case of Mr. Graham Gooch. Mr. Gooch has a fancy for wearing what is known nowadays as designer stubble. One could regard that—and I can imagine an employment officer regarding it—as evidence that Mr. Gooch was not actively seeking work whereas I can think of no one in the whole of the English cricket team who is more notorious for his addiction to hard work.

Therefore, the attempt to deduce the intention from the appearance may be very gravely mistaken. It also gives an employment officer the sort of power which it is not wise to give junior functionaries—indeed, which it is not wise to give to anyone. I should not be at all content for anyone to have that power over me. Where there is a personal relationship, there are personal feelings. Where there are personal feelings, there may be hostility. Where there is hostility, an unjust decision may be taken. That is why I believe that it is gravely mistaken to delegate power to take those decisions right down to the employment officer instead of having them taken by the adjudication officer who has no personal relationship with the claimant and who can take the decision merely on the basis of the facts. I should much rather that he were asked to consider such evidence which bears on the question of intention and to have the intention judged on the whole of the claimant's record.

If the Government go down the road I have described they will be treated mercilessly by the tabloid press. Some of that may be undeserved but not all of it. This amendment is designed to save the Government from that unpopularity. If they do not wish to be saved that is their right. But it is rather unfair on the claimants who will be deprived of benefits in the process. I beg to move.

Lord Swinfen

I support the amendment. My noble friend Lord Inglewood is probably too young to remember the days of the teddy boy. As a rule, teddy boys had a very poor reputation, 95 per cent. of which was totally undeserved. Of course, there were one or two tearaways but the rest of those who were teddy boys and who wore long greased hair, sideburns and what I considered to be rather unusual clothing, did so because they thought it was the height of fashion.

There are people in this country today who believe they are the height of fashion with coloured hair and odd bits of metal sticking out of their ears, noses and, indeed, lips. It is their right to dress in that way. It may not be suitable for every job, but it may well be perfectly all right and acceptable in other employment. The Government must be extremely careful about how they deal with the problem. They should not give employment officers the opportunity to exercise their own personal prejudices to the detriment of those seeking work.

Lord McCarthy

The best quotation regarding the amendment that I know is one from Miss Ann Widdecombe who said, "If he goes to an interview but presents himself in such a way that he negates the value of going, we can issue a direction and take that into account". One can see how that would happen. Of course, it would not happen if the poor person had a job. That is what happens to someone who keeps coming back to the employment office and keeps saying that he is doing his best. You cannot get him because he is inactive or because he is available, so you say, "Well, look what you look like! That's why you can't get a job". Indeed, we have all said it to all sorts of people. But, fortunately, we were not in charge of an employment office and we could not deny benefit. That is the power that the Government want to give.

Let us be clear on another factor. We are not saying that people in employment offices should not give advice because mothers and fathers give advice, as indeed do tutors; for example, they say, "If you don't get your hair cut, you won't get a job". But that is advice and of course you should give advice. However, you should not make threats, and you should not be able to say to someone, "Clean yourself up, or you won't be actively seeking work". Only a government who are totally obsessed with the fact that there must be jobs out there somewhere will go in for such considerations.

Lord Inglewood

As the noble Lord, Lord McCarthy, said, the context of the debate is a definition of the phrase, "actively seeking employment". As I explained, we regard it as axiomatic that jobseekers should keep in touch with the labour market. That is why the requirement to seek work actively is a condition of entitlement to JSA. The rules, as we have seen, will be contained in regulations under Clause 6. Clause 6(3) (a) and (b) elaborate on our intentions for the regulations which will be drawn up under Clause 6. Like Amendment No. 50, this amendment seeks to remove that clarification.

It is surely right that if a jobseeker undermines his chances of receiving a particular employment by, for example, his behaviour—and that is one of the aspects covered in the clause; it is not merely the way people dress—and is abusive to an employer at a job interview, he should not be able to claim attending that interview as an active jobsearch step.

Lord McCarthy

Can the Minister say how the employment officer will know that that is what happened? He will only have the employer's word for it.

Lord Inglewood

The message will come back to the employment officer who will then, no doubt, make inquiries of the person concerned as to what happened. However, if I may say so, that does not seem to me to be a very strong point in the context of the debate.

I turn now to what will not be done under the clause. Dress codes will not be established. Indeed, we return to the fact that we are talking about actively seeking work. As has already been described, in certain circumstances, for certain kinds of jobs which the person may be in the business of actively trying to acquire, a particular form of dress may be appropriate. Indeed, the designer stubble of Mr. Graham Gooch seems, in his case, and rather like Samson and his hair, to make him play cricket very well.

However, the main point—and it is one that I believe has been recognised by Members of the Committee on the opposite side—is that one's appearance does matter. The noble Earl, Lord Russell, was talking about the old days of the Court Circular, but the modern word for those opposite is "Folletting", is it not? In other words, one has to "Follett" oneself properly so that one looks the part.

The regulations will not go into detail about specific actions which will negate jobsearch. The other matter that I should like to make clear is that decisions will be taken by adjudication officers on the facts of the case.

I am sure that Members of the Committee will agree with me that the majority of jobseekers are genuinely committed to looking for work, and that they make every effort to try to find a job. They would not dream of undermining their chances of doing so by their behaviour or other such things. I see that the noble Lord wishes to intervene. I give way.

Lord McCarthy

I am much obliged. The debate is becoming curiouser and curiouser. If the employment officer was not there, the adjudication officer could not possibly have been there. Therefore, how would he know what to say?

Lord Inglewood

It is quite possible to form an objective opinion on the basis of the facts as they have been reported. That is the basis of the adjudication process. The way in which such matters are determined is that the information is, in the first instance, sent to the adjudication officer—and I understand that this is the way in which the system works currently—and the process of appeal moves on from that point.

Baroness Seear

What sort of information will be sent to the adjudication officer? Will a colour photograph be sent or will they just say that a chap turned up with a ring in his nose? For Heaven's sake! What will be sent to the adjudication officer?

Lord Inglewood

I should have thought that it was quite simple. Once what has happened has been established, an opinion can be formed on the consequences that flow from it.

Baroness Hollis of Heigham

On a more serious point, I believe that we established on the previous day of Committee that, in some cases, an employer might have 200 applicants for a job. He will not interview, perhaps, more than a dozen of them and he will not actually see all of them. The remainder will be rejected. A person may then say, "I am actively seeking work", but the officer will say, "No you're not, because of your appearance". What would constitute evidence for that?

Lord Inglewood

It is quite clear. In such circumstances, appearance will not have entered into the matter because the person would not have reached that stage.

Baroness Hollis of Heigham

Is the Minister saying that only when an employment officer has had verified information back from a potential employer that the reason he has refused someone a job is because of his appearance would that serve as a possible basis for disqualification from jobseeker' s allowance?

Lord Inglewood

The adjudication officer will be able to seek evidence from the claimant, the employer and the employment officer. He will need to make a decision on the facts of the case.

Baroness Hollis of Heigham

What evidence will he have from the employment officer, as opposed to that from the employer or the claimant?

Lord Inglewood

Depending on the facts of the case, he may have none.

There are, unfortunately, a few supposed jobseekers who are not prepared to put their best efforts into finding work and who are even prepared to sabotage their chances of finding employment. We want to ensure that people in that minority group cannot, on the one hand, undermine their chances of getting a job and, on the other, claim that the very activities that they have undermined are active jobsearch steps. That is why Clause 6(3) (b) makes it clear that regulations under Clause 6 will provide that actions that would otherwise be active jobsearch steps will be disregarded if they are undermined by the jobseeker. Amendment No. 54 seeks to remove that new and important provision. I urge Members of the Committee to reject it.

Earl Russell

The Minister has attempted to throw "Folletting" at us. I can only reply with my favourite quotation from Brakenbury in Richard III: With all this, my Lords Myself, have naught to do". Nevertheless, I accept what the Minister said; namely, that appearance does matter. Indeed, I believe that every parent in this Chamber accepts that fact. However, I also believe that every parent in this Chamber is well aware, as I am, that if one tells one's children that they are not keen on working because of their appearance and one then looks at what they do, one finds that one was absolutely, totally and unjustly wrong. It is that possibility of error which it seems to me is not allowed for in the regulation-based approach that we are discussing. There is simply no allowance for the possibility that one single item of appearance—or, indeed, one aspect of behaviour—may be supposed to be designed to avoid work when in fact it is no such thing.

I know people who hold highly responsible and senior posts who go about wearing earrings with a punk hairstyle. If I looked at those people, I would immediately think that they were not seeking work. However, I could not possibly be more wrong. Indeed, they are holding down highly responsible and onerous positions of a sort that I would not envy anyone. It is surely a subject in which we must know that the possibility of prejudice is infinite and the possibility of prejudice face to face is particularly clear.

I simply cannot accept the attempt to go down the road of taking one single overt act as being evidence of intention. Indeed I think the actual words of the Bill rise against the Minister, for the Bill provides for acts, to be disregarded in … circumstances … connected with … behaviour or appearance". That means that actual jobsearch activities may be ruled completely out of order and may not count because you do not like the person's appearance.

The Minister shakes his head, but how can the Bill mean anything other than that? I have read this clause a good many times by now and I cannot get any other meaning out of it. If there is any explanation on how it comes to have another meaning, I would be extremely grateful to hear it. It is attempting to make the single act the test. That, I have already argued today, is a profoundly mistaken approach to legislation. The intention should be based on a hearing involving all the person's conduct. But since I would much rather return to this issue with the report of the Delegated Powers Scrutiny Committee available to the Chamber, I think it would be inappropriate for the Committee to reach a decision tonight. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 55 had been withdrawn from the Marshalled List.]

Lord Mackay of Ardbrecknish

This might be a convenient moment for the Committee to adjourn. I suggest that the Committee stage begins again in one hour at half-past eight o'clock.

[The Sitting was suspended from 7.31 to 8.30 p.m.]

Lord Inglewood moved Amendment No. 56:

Page 5, line 27, leave out ("or omissions").

The noble Lord said: We have brought forward this essentially technical amendment in order to clarify our intentions for regulations which will be drawn up under Clause 6 and which are spelt out in more detail in subsection (3) (b).

First, we propose to extend in the regulations the actions which count as a step towards meeting the actively seeking employment test to include steps which can improve a jobseeker's employability. At present only steps which amount to actual job search are specified. Under JSA actions such as drawing up a CV or taking action to improve jobsearch skills will count as a step in actively seeking employment. I am sure that the Committee will welcome that.

Secondly, a jobseeker who deliberately undermines his chances of receiving particular employment by, for example, being abusive to an employer at a job interview, will negate that step. Clause 6(3) (b) makes clear that that is the intention of regulations to be drawn up under Clause 6. It is surely right that a jobseeker who undermines his chances of finding work in such a way should not then be able to claim that by attending the interview where the abusive behaviour took place he was actively seeking employment.

Taken together these two changes amount to balanced and fair improvements. On reflection, however, we feel that it is not necessary to include reference to omissions in Clause 6(3) (b). While it is certainly our intention to disregard acts which would otherwise help the jobseeker to satisfy the condition but which have effectively destroyed the chance of his being offered a job, we cannot envisage any circumstances where it would be necessary or desirable to disregard omissions. I therefore urge the Committee to accept this government amendment, which simply removes a redundant word from Clause 6(3) (b). I beg to move.

Lord McCarthy

In so far as we understand what the Minister is doing we do not see much wrong with it. Therefore, we do not oppose the amendment.

On Question, amendment agreed to.

[Amendment No. 57 not moved.]

Lord Wise moved Amendment No. 58:

Page 5, line 30, at end insert: ("() provide for voluntary work by unemployed people to be recorded as a positive outcome at any Restart interview carried out by an employment officer.").

The noble Lord said: Amendment No. 58 is grouped with Amendment No. 84 and I shall leave it to my noble friend Lord Norrie to deal with that amendment. The amendments are similar.

I am sure that we all recognise the importance to unemployed people of undertaking voluntary work and the benefits they derive from so doing while actively seeking full-time employment. Voluntary work is helpful in enabling them to keep in touch with the labour market. It also provides them with an opportunity to maintain and develop their existing skills, and possibly to learn new skills, while looking for a job. It maintains their self-esteem and confidence in their own ability. Eventually, the reference they obtain from the voluntary organisation, which they can show to a potential employer, giving proof of their commitment, timekeeping, reliability and so on, is of enormous benefit and greatly enhances their chances of obtaining a job.

The National Association of Volunteer Bureaux has many examples of how volunteering helps in jobseeking. Perhaps I may give a couple of examples from the many that have been sent to me. The first example is the case of a former soldier who was unable to find work. He started to do odd jobs for the elderly, arranged by a volunteer bureau. After obtaining a first aid certificate he became active with the St. John Ambulance service and then obtained a paid job as driver/handyman at a day centre for the elderly.

In another case a young man made redundant from his potential post, despairing of finding work, offered to do some driving for his local volunteer bureau. Before long he was helping the bureau with marketing, publicity and so on. He is now the paid manager of a large local voluntary organisation. The organisation says that it is difficult to believe that that confident young man could ever have felt the despair that he described. He is proud to tell of how volunteering kept him sane.

I have first-hand knowledge within my own family of how voluntary work helps in times of unemployment. One of my sons has twice been made redundant. I witnessed his despondency and despair during the difficult times when he was striving to find other employment. One could see the traumatic effect that had not only on him but on his wife and family. However, undertaking voluntary work, keeping his mind occupied and using his skills, kept him going. It was of immense help to him and in no way detracted from his efforts to gain employment, which I am thankful to say he has now achieved. His considerable ability is again recognised and fully used.

It is because of that first-hand knowledge and all the evidence that I have received of how people have attained work in all sectors of employment that I wish to see voluntary work for unemployed people recorded as a positive outcome at any Restart interview. Although the Department of Employment is, in general, sympathetic to unemployed people undertaking voluntary work, I feel that at the moment it shows a somewhat negative approach. There is fear among the voluntary organisations that, unless volunteering is recognised as a positive outcome, some local employment offices will continue to create difficulties. Jobseekers may well be told that they must undertake voluntary work only during the evenings and must spend all the rest of their time seeking paid work, whether or not much is available.

Such people often become depressed by their lack of success and are the people least likely to obtain employment when it becomes available. In some cases unemployed persons may be too scared to undertake voluntary work for fear that they will not attain a positive outcome from a Restart interview, and as a result will have their benefit withdrawn.

In reply to a letter from Mrs. Winbury, who is Vice-Chairman of the National Association of Volunteer Bureaux, my honourable friend Mrs. Widdecombe, who is the Minister responsible for JSA in another place, points out that a volunteer is allowed 48 hours' notice before he has to start a job if one becomes available. The regulations for actively seeking employment also take account of a person's voluntary work when an assessment is made as to whether that person has met the conditions. Mrs. Widdecombe goes on to say: The jobseeker's agreement will provide an opportunity for a jobseeker to focus his job search activities on his own circumstances and needs. It will set out the jobseeker's availability and any restrictions which he wishes to place on that and the steps he will take to find work. A jobseeker will be able to include voluntary work in his agreement. We do not, however, intend that voluntary work shall count as a step towards actively seeking as we believe the existing concessions strike the right balance".

I cannot agree that the existing concessions strike the right balance. I cannot understand the Government's reluctance to include voluntary work as a positive outcome. No extra costs should be involved. In fact the reverse could well be the case.

The Government recognise the importance of voluntary work. All the available evidence indicates the value to the unemployed of undertaking voluntary work. It positively assists them in their quest for paid employment. In no way is voluntary work detrimental to their actively seeking employment. I believe that it must be right to regard voluntary employment as a positive outcome at any Restart interview. I implore the Minister to give the amendment serious consideration. I beg to move.

Lord Swinfen

I support the amendment from my own experience. An acquaintance of mine who was unemployed obtained voluntary work in a care centre. With the new skills that he learned, he ended up, first, in part-time employment, and then in full employment. Voluntary work can give the unemployed person not only new skills but can also inculcate the habit of going to work, very often at a regular time. From my own experience of unemployment some years ago, it is a habit which is extremely easy to lose.

There is nothing detrimental to the Bill in the amendment. Even if my my noble friends do not like the exact wording, I hope that they will accept the principle underlying it. If they do not accept the amendment in the name of the noble Lord, Lord Wise, perhaps they will come back with their own amendment.

Baroness Hollis of Heigham

We on these Benches support Amendment No. 58, and Amendment No. 84 with which it is grouped. We all know that the best way to obtain a job is already to have one. In other words, remaining attached to the labour market is the best way to stay in the labour market. Part-time work, which may not be financially rewarding, enables the individual to remain in contact with the labour market. Voluntary work is part-time work which, although not financially rewarding, allows individuals that experience. For many it is a highly appropriate way to re-enter work. It is a form of on-the-job training, often more appropriate and more socially valuable than many of the training schemes run by the Employment Service or TECs. I do not believe that any noble Lords who have knowledge or experience, either themselves or within the family, of volunteering will deny that the experience of volunteering is more valuable to many people as a pathway to work than anything formally provided by government under their auspices which counts as a positive outcome.

We strongly support the amendment. At present the only positive outcome regarded as acceptable by the Employment Service is a job offer, the loss of benefit or a referral to an employment scheme run by the Employment Service or a TEC. We believe that that is not only too narrow but downright perverse. Only government-sponsored schemes count. Those of charities and other bodies do not, even though they are more valuable, more relevant and often a more effective pathway to work.

What happens if an unemployed person does voluntary work on a regular and reliable basis? Some of these points have been made but they bear emphasis. First, such a person is motivated to go into the office or workplace to construct a structured commitment to work in a routine and reliable way. Old skills are polished and new skills learned. It may mean the introduction to information technology required to organise a car driving service for hospitals or using driving skills to take vulnerable people to hospital. In the process those involved learn of salaried job opportunities; it is the voluntary way in.

Such volunteering is socially useful. Half the population undertake some volunteering. One-third volunteer on a regular basis. Their informal contribution to the society of which they are members is at least as valuable as many structured training courses. The majority of those who volunteer are in work precisely because they fear losing benefit.

The National Association of Volunteer Bureaux has dozens of instances, some of which have been quoted, of volunteering contributing towards the rebuilding the confidence of the unemployed on the one hand, and people who are volunteers having to withdraw from voluntary work for fear of losing their benefit.

Perhaps I may give examples. A former soldier, unable to find work, volunteered to work with the elderly. He took a first aid course. He is now the driver handyman at a day centre for the elderly. Nearer to my home, a neighbour's daughter who volunteered to hear children read at her local primary school is now a welfare assistant at that school. A young man, a volunteer at the coffee shop of a hospital for the mentally disabled, was apprehensive about the work but enjoyed the volunteering and is now training as a mental health nurse. That young man is my nephew. Without that voluntary work, he would not have found his way into not only a fulfilling career but paid and properly organised work.

I hope that the Minister can assure us tonight that he will take on board the substance of the amendments. If he does not do so, he is sending a signal that we in the House of Lords do not value volunteering, not only for the social value it offers those at the receiving end but for the training and educative opportunities it offers those people who volunteer. I am sure that the Minister will understand the reasons for supporting the amendment. I hope that he will now utter similar words.

Baroness Williams of Crosby

On 19th October 1993, the Prime Minister said: We want to strip away some of the unnecessary obstacles that stand in the way of voluntary work". I say amen to that. His Government and his party have consistently told us how important they regard voluntary work as being. Here we have the opportunity to turn the Prime Minister's words into reality. We have the opportunity to remove some of the unnecessary obstacles that stand in the way of voluntary work.

The noble Lord, Lord Wise, eloquently pointed out that one of the results of unemployment is that people rot away. Their morale begins to dissolve. Voluntary work can retain them in the world within which they wish to contribute to society. Like the noble Lord, a very close member of my family was unemployed for a year. Despite sending out literally hundreds of applications day after day, the factor that kept him going in the end was being able to help out by raising money for charity. I hope that the Government will consider the amendment carefully. Voluntary work should be regarded as a "positive outcome" in the statistics of the Employment Service. It is vital that the so-called description or definition of "positive outcome" is widened from the very narrow base that at present obtains. I can think of no better way to widen it than to include serious voluntary work within its ambit on the understanding that anyone who volunteers should be available for work if a real and serious job emerges.

It is almost beyond my understanding that the amendment can be rejected. It must be in the interests of a civil society, of the young people involved, and of seeking a constructive answer to the problem of unemployment. I hope that the Government will consider the matter with a view to coming forward at Report stage with the necessary amendments.

Lord Norrie

I support Amendment No. 58. First, it ensures that employment offices are given clear guidance. Secondly, it gives jobseekers a clear message that volunteering for charity work is an option as are education courses and skills training.

The amendment relates to Amendment No. 84 which stands in my name to which I will now speak. Now that the Bill introduces the jobseeker's allowance, it replaces both unemployment benefit and income support paid to people who are unemployed. The Bill also provides for the jobseeker's agreement to be entered into by a claimant and an employment officer, all of which is covered in Clause 7.

The purpose of my amendment is to specify in the jobseeker's agreement that volunteering would not jeopardise entitlement to the jobseeker's allowance provided that the claimant is available for work and actively seeking work. As the noble Lord, Lord Wise, said, under the current arrangements a claimant must be available for work at 48 hours' notice. That can cause difficulties for charities in reorganising volunteers, particularly where those volunteers have been supervising others. My amendment would allow an employment officer to offer more than 48 hours' notice in order to avoid such difficulties.

The United Kingdom has a proud record of voluntary service, performed willingly and without financial reward, for the benefit of fellow citizens. Members of this House have in the past played an active role in achieving that and still do so. I believe that the amendment would therefore particularly attract the Committee's attention.

I have a special interest in voluntary organisations working to conserve and improve the natural environment. From my personal experience I can say that volunteering is not only beneficial for society but is also of immense personal benefit to the volunteer. People who are unemployed can gain in experience, self-confidence and discipline, as well as acquiring the skills which would improve their prospects of employment.

It would be shameful if we were to deny those individuals a chance to benefit from such volunteering experience because of unnecessary obstacles or lack of clear understanding. That is a point ably made by the Prime Minister in his speech and one to which the noble Baroness, Lady Williams, alluded.

I am genuinely concerned that on the one hand charities are likely to lose their volunteers who fear losing the jobseeker's allowance. On the other hand, jobseekers will lose an opportunity to receive job training and new skills. My concern is shared by a number of voluntary organisations, all of whom have approached me on the matter. Indeed, the noble Lord, Lord Chorley, who is chairman of the National Trust, was unable to be here this evening but he has specifically asked me to table an amendment of this nature. Other organisations include the RSPB, the National Association of Citizens Advice Bureaux, the Volunteer Centre and the British Trust for Conservation Volunteers (BTCV). That organisation, of which I am president, will help to illustrate the situation.

Each year the BTCV supports in excess of 84,000 volunteers who are engaged in practical nature conservation work. Of those, 500 are longer term volunteers and it is estimated that about two-thirds of them could be affected by the legislation. BTCV's long-term volunteers, as well as helping with administration, public relations, community and schools work, also lead and co-ordinate the work of several thousands of short-term volunteers. The BTCV is concerned that if it loses the services of long-term volunteers because of the new arrangements, it will lose many thousands of people who would otherwise give their time freely. Have the Government visualised what the knock-on effect might be? They recognise, as do we all, the tremendous contribution volunteers make to our society, yet the new arrangements may deter large numbers of people from volunteering.

The Committee will appreciate that young people finishing education, with qualifications but no work experience, are in a "Catch 22" situation. In today's employment market, few organisations have the ability to train youngsters on the job. Employers will always look at prospective staff who have some training or experience. Long-term voluntary work enables people with qualifications but no employment to be trained on the job and acquire work experience and skills which could help them gain paid employment.

Will the Minister agree that it is more important to let youngsters escape from the "Catch 22" situation? Let us be realistic, there is no incentive for jobseekers to take up voluntary work if they are to lose their jobseeker's allowance. I hope that the Minister will consider my arguments valid and will be able to accept my amendment.

Baroness Nicol

I wish to support these important amendments. The United Kingdom is a nation of volunteers. It is estimated that each year 8 million people participate in regular volunteer work and a further 15 million adults are involved in some form of volunteering. The proportion of the population involved in some voluntary activity over a 12-month period rose from 44 per cent. in 1981 to 51 per cent. in 1991. That is an impressive figure in terms of human effort for merely the reward of doing the job.

We have heard from others that people in paid work are more likely than those outside employment to volunteer. It is suggested and is probably true that that reflects the difficulties that unemployed people may have in demonstrating their eligibility for benefit while volunteering. Volunteering is good for society and can be good too for the volunteer, especially one who is unemployed. As we have heard from others, it keeps them involved in the workplace and gives them a reason for keeping up their standards.

Let me illustrate the point by reference to the Royal Society for the Protection of Birds, of which until recently I was a council member. Over 7,000 people volunteer each year for the RSPB, including about 3,500 volunteers who work on the RSPB nature reserves. Many of them work for one or two weeks and experience no problems with their benefit. They carry out a wide range of management tasks, they work with visitors and assist with biological survey work. The RSPB provides training and supervision for volunteers. But a proportion of them come for longer periods. They are taking positive steps to improve their employment prospects and, at the same time, they contribute to the RSPB's work. Yet those longer term volunteers experience problems when claiming benefit. That is why the two amendments are necessary, to ensure that the problems do not become even greater with the new arrangement.

One RSPB volunteer, a Mr. Daniel Davies, was refused benefit while volunteering because of the short notice he was advised he would have to give. He was moved to say: The really galling thing is that it would be easier to stay at home than to volunteer". We have heard about the other organisations that support the amendments. We have also heard about the Prime Minister's support for the concept of volunteers and I have heard many other representatives of the Government saying the same thing.

I know that the Government have given an assurance that the current position will continue whereby volunteers are given 48 hours' notice. However, in the case of some longer term volunteers, notice longer than 48 hours could be justified where a considerable investment has been made in their training and where others are reliant on the contribution which the volunteer is expected to make. Such cases are not the rule but, like residential volunteering positions, they may warrant special provisions. The two amendments would cover the difficulties and I hope that the Government will feel kindly towards them.

Lord Inglewood

Like my noble friend Lord Wise, and all those who have spoken so feelingly, we recognise the value and importance of volunteering in the community. There can be no doubt that many people throughout the country who undertake voluntary work perform a wide variety of tasks which are of great value and benefit many others. Nor can there be any doubt that voluntary work can both help unemployed people to stay in touch with the labour market and provide an opportunity for them to maintain and develop their skills while looking for work. In recognition of that, there are significant concessions for voluntary workers in the current benefit rules for unemployed people and we will be carrying those into JSA regulations. I do not believe, however, that the amendment is an appropriate way to deal with either voluntary work or positive outcomes from Restart interviews.

All claimants who have been unemployed for six months are required to attend a Restart interview, and to continue to do so every six months as long as they remain unemployed. Related to this, the Employment Service, as part of its annual performance agreement with the Employment Department, has targets for positive outcomes achieved from certain Restart interviews. Examples of positive outcomes include job placings or a referral to a programme such as Training for Work. But voluntary work is in a different category from these examples, the crucial difference being that the claimant remains unemployed. Treating entering voluntary work as a positive outcome would therefore risk creating a perverse incentive to encourage people to remain unemployed. That cannot be right.

Moreover, no other positive outcomes are set out in legislation. Neither are any other Employment Service targets. Indeed it would be most odd to do so, since these are primarily management tools and they change from year to year to reflect the annual performance targets. If Members of the Committee such as my noble friend Lord Wise and the noble Baroness, Lady Nicol, know of problems on which they can give chapter and verse, please will they let us know? As I have already mentioned, it will carry forward important concessions from existing availability and "actively seeking employment" regulations. Jobseekers who undertake voluntary work will continue to be allowed 48 hours' notice before taking up the offer of a job. Any voluntary work which a jobseeker is undertaking will continue to be taken into consideration when assessing whether in any week he has met the "actively seeking employment" condition.

In view of the points that I have made about both the status of restart interviews and the concessions for those undertaking voluntary work which will carry into JSA, I do not believe that this amendment is necessary. I hope that this will satisfy my noble friend.

I turn now to Amendment No. 84. Current regulations provide that a person undertaking volunteer work can be deemed available for work provided that he or she is prepared within 48 hours' notice to attend an interview for a job with the Employment Service or DSS officers. If the purpose of this amendment is to seek to gain a commitment from the Government that these provisions will be carried forward into JSA, I can give that commitment. But it is very important to appreciate that any person undertaking voluntary work will have this reflected in their own jobseeker's agreement. That is because the agreement will record the terms of a person's availability and the steps which he or she intends to take to look for work.

The amendment as drafted would seem to require that the conditions relevant to volunteer workers must be specified in the agreement of every claimant. That would be very confusing. I am sure that my noble friend cannot have intended this effect. Against the background of that commitment, I hope that my noble friend will be satisfied.

9 p.m.

Baroness Williams of Crosby

Perhaps I may ask the Minister one question. I may say that I find him more interesting when he is speaking from his own heart than when he is reading a brief. The problem with the brief is that it does not allow for the real eventualities of the situation. What troubles me is this. If we can consider voluntary work as a positive outcome—not the first priority positive outcome, which would be to get a job, and not even the second priority positive outcome, which would be to get a training place, but at least within the realm of positive outcomes, which would then become the basis of his own instructions to the Department of Employment staff—all of us in this Chamber would feel happier than we do.

I wonder whether the noble Lord will take the matter back and think about the possibility of including voluntary service as at least one positive outcome among several. The case that has been made out by the noble Lord, Lord Wise, and others, is very convincing. I wonder whether the Minister will think about the possibility of some slight amendment of the positive outcome definition that he could bring forward on Report.

Lord Swinfen

As the noble Baroness, Lady Williams, just said, the Government have brought forward in recent years care in the community, an awful lot of which falls on the shoulders of voluntary organisations. These are non-profit making organisations which, in order to get the work that is needed done, rely to a very large extent on volunteers, both skilled and unskilled, to help them.

The noble Lord gave me the impression that he did not think that volunteering helped unemployed people. I do not know whether he has been unemployed or whether his advisers have been unemployed. However, I spent a two-year period unemployed. I must admit that the voluntary work that I was able to do was of very considerable assistance in keeping up morale and helping me to make the effort to go on attempting to get jobs the whole time rather than becoming dispirited.

Lord Inglewood

I can confirm that we do value voluntary work for the kinds of reasons that my noble friend Lord Swinfen has given. We are all agreed on the value of voluntary work. In response to the comments from the noble Baroness, Lady Williams, we shall certainly consider very carefully the remarks that have been made this evening and the points made to see whether we feel it would be appropriate to do something. Clearly, we have to keep the jobseeking aspects of the jobseeking agreement in the forefront.

Lord Wise

I am sure that my noble friend, as he said, has been most impressed by the speeches from all sides of the Committee. I thank him for his assurance that he will consider what the noble Baroness, Lady Williams of Crosby, said. That is most helpful.

I wonder whether he can confirm that the new guidance and training will be given to employment officers on the eligibility of volunteers for jobseeker's allowance. Can he give an assurance that the Government will consult the voluntary sector on the drafting of any new regulations? It would be most helpful if he could give such assurances. Perhaps my noble friend will reply to that point before I withdraw the amendment.

Lord Inglewood

I can confirm those matters.

Lord Wise

I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 59:

Page 5, line 30, at end insert— ("() provide that where a doubt arises as to whether the claimant is available for employment or actively seeking employment, or is to be treated as available for employment or actively seeking employment, an income-based jobseeker' s allowance shall be payable pending a determination by the adjudication officer at an amount determined in accordance with section 4 but reduced by 40 per cent of the claimant's personal rate which would otherwise be applicable to the claimant.").

The noble Baroness said: In moving this amendment, I should also like to speak to Amendments Nos. 69, 95 and 110.

As the Bill stands, if a frontline benefit officer believes that a claimant is not actively seeking work or is failing to meet the jobseeker's agreement, that officer can, as we explored earlier this evening, stop the claimant's benefit. If the person is judged vulnerable—for example if he or she is sick, disabled, pregnant or has dependent children—he or she may in the meanwhile get a hardship payment of some 60 per cent. A claimant who is not vulnerable—that is, if he or she is single or part of a childless couple—will receive nothing for two weeks, and then, if he or she is in hardship, a hardship payment until the adjudication officer has determined the case; whereupon, if the adjudication officer upholds the ruling of the benefit officer, that claimant may get a hardship payment if he or she is vulnerable and, if not vulnerable, absolutely nothing.

Why are we worried about this? We are worried for several reasons. First, the frontline employment staff are being asked to assess whether the jobseeker's agreement has been infringed or whether someone is not actively seeking work. It is an area of discretion which, for non-professional staff, I find almost unprecedented. How qualified will the staff member be to assess whether someone who has mild mental health problems is or is not being reasonable about their jobseeking activities? Will they be able to judge, as we also explored this evening, whether someone whose first language is not English or who has learning disabilities, understands what is entailed? What will happen when someone's behaviour or appearance affronts them—for instance, a punk hairdo, silver nose rings or Rasta dreadlocks—when all sorts of prejudices come into play? Will that be deemed reasonable excuse for "not seeking work"? That is especially so when the jobseeker's allowance has not been acceded to voluntarily in the first place and is regarded as coercive and unreasonable by the claimant from the beginning. So there is an area of discretion at that wicket gate.

Secondly, that area of discretion, which is so wide, must be and will be abused. That is reinforced by the fact—it is covered in an amendment that we shall explore later—that Employment Service staff are asked to increase their referrals to the adjudication officer where there is an arguable case. We know that each year the number of referrals has been ratcheted up: 135,000 in 1994–95 to 185,000 in 1995–96; and in practice this year's target has already been exceeded. Over and beyond the referrals, we know that the number of disqualifications—despite what the Minister told us earlier in Committee—has in fact doubled: 76,000 in the nine months from April to December 1993–94; 113,000 in a similar period, 1994–95. What the Minister should have mentioned at the time is that it means that while that referral process is going on, many people will lose two weeks' benefit as well as being put through all the complexities of stop/start with housing benefit and council tax benefit.

If benefit denial is locked in with performance-related targets, the most humane staff will be under pressure to deny people interim benefit; the less humane staff will have the perfect opportunity to pander to their prejudices. No one should have such power on a belief, whim, prejudice or on imperfect evidence to deny another human being the amount of money on which to live.

Our third concern is that those regarded as vulnerable may receive a hardship payment. That is another area of discretion which concerns us. Of those who applied in 1993–94, only 48 per cent. received such payments. At the last discussion that we had on this matter, the Minister was unable to tell us whether someone with 4, 5, 6 or 7 incapacity points, but not sufficient points to gain incapacity benefit, will automatically be regarded as vulnerable. I ask the Minister particularly to tell us whether somebody coming to JSA with incapacity points will thereby be judged as vulnerable. I hope so. But if not, there will be considerable distress on the part of those losing invalidity benefit who have fluctuating health conditions. How wide a category is "vulnerable"? Who will decide? Why, if those people are vulnerable, will there be a hardship payment made from the benefit office rather than a straight 40 per cent. deduction of JSA from the Employment Service?

Finally, in the fourth area of discretion, the appeal goes to the adjudication officer, who may recommend the restoration of JSA. But if he does not, the vulnerable will continue on hardship and the non-vulnerable—young, single people, childless couples and those perhaps with less easily diagnosed mental health problems—will have no income at all. As the noble Baroness, Lady Williams of Crosby, said the other night, they will not starve peaceably—at least I hope that they will not. They will beg, steal, become prostitutes and sell drugs. In the process they will become entirely unemployable ever again.

The continuing right to even 60 per cent. of benefit is, I should have thought, surely a severe enough penalty to help keep them off the streets. Deny them benefit for up to six months and send them back to the streets and they are lost to all of us. We beg the Minister not to do that. If we outlaw from benefit some of our fellow citizens, assuredly we outlaw them from the law itself. Even the Victorians in their most penal and policing authoritarian mode—the classical Ricardian economists—never did that. They always had available either outdoor or indoor relief. Why did those most severe and judgmental of Victorian moralists continue poor relief on the rates? They recognised that if they refused money for bread, those people would break the bakers' windows. As Richard Oastler, a Tory philanthropist and J. R. Stephens, a Methodist minister, said in the 1830s to people such as are in this Chamber: I put these things to the men of wealth and property … if the poor have no right to the rates, then the rich man has no right to his rents Precisely.

So there is Amendment No. 59—that where a doubt has arisen and there is a referral to the adjudication officer, a penalised JSA should be paid to all and should not be deducted from those who are surely innocent until proved guilty. Last year, 180,000 people were proved innocent. And there is Amendment No. 69—that if a claimant is pursuing his right to benefit through the appeals system, such benefits payments should continue in full if a Social Security Advisory Committee deems it a not unreasonable claim.

We have argued that because, first, we believe that under this Bill a person is being fined and punished in advance of being found guilty of an offence. That is what benefit stoppage means. Secondly, that person is being fined and punished in advance of being found guilty of an offence on the basis of the judgment of a relatively inexperienced and untrained frontline officer who has a Financial interest in increasing the number of referrals and therefore the temporary withdrawal of benefit. Thirdly, it is going to an adjudication officer who, if he finds against the claimant, will deny him any income whatever; yet all the appeals evidence shows that the record of decisions is weak, and that 39 per cent. of their judgments are in error or are unsatisfactory, as are 92 per cent. of those that go to appeal.

I find this part of the Bill so unbelievably awful that I am ashamed of all of us who collude in its provisions. I beg to move.

9.15 p.m.

Earl Russell

The noble Lord, Lord Acton, tells me that his great-grandfather is regularly misquoted. He said the words are in fact: "Power tends to corrupt and absolute power tends to corrupt absolutely". It is a significant qualification but some tendencies are a good deal stronger than others. Employment officers in this situation are being given something which has a great resemblance to absolute power over other individual human beings. The tendency to corrupt may not always be resisted. Temptation has been known to be succumbed to.

When we debated this element of the Bill on Amendment No. 3, we were consistently told that the power to disentitle is not an arbitrary power because it will be referred to an adjudication officer. It became very clear that that argument cannot carry any weight unless the benefit is allowed to continue until the adjudication. I suspect that one of the motives behind the Bill is to take the workload off the adjudication officers, who are already overworked. But by delegating it to employment officers, who are in the frontline and not in any judicial situation, it will only become more severe.

Most of us are not in any position to cope with the certain and total disappearance of every last penny of our income. We do not all have something laid by for a rainy day and, in particular, those who are on benefit do not. So, as the noble Baroness was saying, people need to take some sort of emergency action. In this context, yet once again, I will say how much I regret that the Department of Social Security has not undertaken any study of levels of debt among those on benefit.

People live on benefit. I have never known anybody who succeeded in paying off large sums of debt while on benefit. If one is trying to do that, one is without the resources that one needs to look for work and the unemployment—which we all want to see stopped—is prolonged. I appreciate that the Minister will say that there are payments for those who experience severe hardship. I will put again to the Minister a question that I put last Thursday. I asked him whether he could explain how one can be disentitled to a means-tested benefit without experiencing hardship. The Minister replied that we were beginning to go into hypothetical cases. That did not answer the question, but it most certainly begged it. The question whether those cases are hypothetical or actual is the hub of the whole argument. I should like to hear a real answer to that question tonight.

Lord Inglewood

We have made it very clear during the debates in another place that, where there is a doubt about whether a claimant satisfies the conditions of availability and actively seeking, benefit should be payable at a reduced rate in certain circumstances pending the adjudication officer's decision. All claimants in one of the prescribed vulnerable groups—those with children and caring responsibilities, the sick, the disabled and those whose partners are sick, disabled or pregnant—will be entitled to make a claim for JSA on grounds of hardship pending the decision of an adjudication officer on the jobseeking conditions. All claimants will have such access if the decision takes longer than two weeks to be made. In all cases it will of course be for the claimants to demonstrate that they would face hardship were they not to receive payments on that basis.

We believe that those arrangements are reasonable. We should remember that a jobseeker's agreement has been entered into by people so they know what is the general position. If, instead, all jobseekers had access to a reduced rate of benefit immediately, that would reduce incentives to meet the availability and active seeking conditions for benefit.

The noble Baroness, Lady Hollis, asked whether IB leavers would be a vulnerable group and able to obtain hardship payments throughout the whole time they are waiting for an adjudication decision. Where a person leaving invalidity benefit falls into one of the vulnerable groups because he has children, qualifies for a disability premium or is sick, he will be able to claim hardship payments from the outset. Otherwise, we propose that he should be treated like other childless claimants who are capable of work. However, my noble friend has given an assurance to the Committee that we shall consider this issue further, and we shall be doing so.

Baroness Hollis of Heigham

I thank the Minister for that comment. I was trying to press him on whether the carrying of points which show a degree of disability—in other words, a partial disability—will count someone as vulnerable. We know that if someone fits the vulnerable category without having partial disability, he is vulnerable. What I am trying to find out is whether someone who is clearly regarded medically as partially disabled or partially incapacitated and has five points, six points or seven points but not the 10 points for mental health or the 15 points for physical health which will give him incapacity benefit will count as vulnerable. Some of our concerns on the interface between the two benefits would be greatly removed if the Minister could give us that assurance.

Lord Inglewood

It is clear in the remarks I made that where the person concerned qualifies for a disability premium or is sick he will be able to claim the hardship payment from the outset. But, as I said, we are considering this and we shall look into the matter further.

Although I would urge your Lordships to reject the amendment, I should perhaps make it clear that I do not believe that the provision in Schedule 1(8), which we had intended should be sufficient to enable such hardship payments, is sufficient for our purposes. For that reason we have today tabled an amendment to address that particular problem.

Earl Russell

Is the Minister telling us that he has tabled an amendment to the Bill today? If so, may we see it?

Lord Inglewood

We have tabled an amendment to Schedule 1(8). We shall certainly make it available if the noble Earl has not seen it.

Baroness Hollis of Heigham

What does it say?

Lord Inglewood

As with all the amendments, it is extremely complicated.

Earl Russell

While the Minister waits for what the Leader of another place once described as "the curious process of osmosis" by which information reaches Ministers in this House, I should like to ask him a few questions. First, why are single people never presumed to be in hardship? Is this a form of family planning? If so, it is one I do not share.

The Minister mentioned the need to demonstrate hardship. Can he tell us exactly what a person has to do to demonstrate hardship? In the world in which I live, if one is disentitled to a means-tested benefit, that in itself demonstrates hardship. What else does a person have to do to demonstrate that he is in hardship?

Thirdly, I was very, very puzzled by the Minister's argument that if one keeps one's benefit until one has gone to the adjudication officer that reduces the incentive to conform to the system. I suppose one could say that the prospect of going through a trial in which an acquittal might possibly be the result rather than being immediately sent to prison reduces the incentive for criminals to keep the law. I very much hope that no government in this country will ever act on such an argument. Indeed, if the Prime Minister were to apply that doctrine of employment to his Ministers, I would be extremely surprised if he kept any Ministers for very long. Really, that argument is unacceptable, and I hope someone will think of a better one.

Lord Swinfen

My noble friend said that he had tabled an amendment to deal with this subject. He is the only person in the Committee to have seen the amendment. Is it possible for him to tell us what it is?

Lord Inglewood

Perhaps I may start with the amendment. It provides for hardship payments to be made in a case where benefit has been suspended or where a decision on conditions of entitlement has not yet been taken on a claim.

Baroness Hollis of Heigham

We know that that is the case for those who are leaving work either on grounds of misconduct or voluntarily. That was the concession made by the Minister in another place, Ann Widdecombe, in Committee. Our concern is with the actively seeking work clauses. Does that apply to actively seeking work as opposed to the other grounds, which are voluntarily leaving work and misconduct?

Lord Inglewood

It is an extremely big amendment. I can willingly provide a copy to the noble Baroness if she wants one and we can discuss it later. I thought that was the easiest way of dealing with it. The amendment is intended to achieve what we thought the part we are excluding was going to achieve.

Baroness Hollis of Heigham

Can the Minister answer that one question? Does it mean that someone falling foul of the referral to the adjudication officer on "actively seeking work" grounds will remain eligible for hardship payments throughout or does it apply just to voluntary misconduct? If so, why are the Government still perpetuating a distinction between voluntarily leaving work and misconduct on the one hand and ASW rules on the other, which are the basis of our concern? We know why the Government are extending the provision for voluntarily leaving work because it takes so long to come to appeal, but, as we have some of the same problems as regards "actively seeking work" judgments, the same rules should apply.

Lord McCarthy

We are operating like a parish council. This House has machinery which can produce this amendment. Why cannot the noble Lord go into the Library and get 15 or 25 copies for everyone? Why are we mucking about like this?

Earl Russell

I beg to move that the Committee do now adjourn during pleasure for five minutes while copies are provided.

Moved accordingly, and on Question, Motion agreed to.

[The Sitting was suspended from 9.27 to 9.32 p.m.]

Baroness Hollis of Heigham

I was enjoying listening to the Minister describe the intent of his amendment. As I see it, the key line is: In such circumstances as may be prescribed, a claimant may be treated as being entitled to an income-based jobseeker's allowance before his claim for a jobseeker's allowance has been determined". Will the Minister tell us what circumstances he envisages being prescribed?

Lord Inglewood

The circumstances we intend to be prescribed are those I have already described.

Baroness Hollis of Heigham

Will the Minister be kind enough to repeat what he said?

Lord Inglewood

They are that a person has children, qualifies for a disability premium or is sick, and also the existing provisions in that regard which are currently applicable. The amendment is intended to enable the process to take place, not to change the scope of the definitions.

Baroness Hollis of Heigham

What the amendment does is merely to say that claimants are entitled to an income-based jobseeker's allowance if they fit the existing categories of vulnerability, and, presumably, meet the hardship rule. The Minister has referred only to vulnerability. Does he require that they meet the hardship rule as well under the amendment? There are two hurdles obviously. Are we asking people to clear both?

Lord Inglewood

Yes, on the lines of the existing arrangements.

Baroness Hollis of Heigham

Therefore, we have not advanced any further. We are saying that those who are not vulnerable, although they may be in hardship, after two weeks may receive a hardship payment but that those who are not vulnerable and not in hardship will receive nothing, even though their case has not yet been determined. That remains the same.

Lord Inglewood

That is right. However, after the adjudication officer has determined, the benefit will, in the event of the arrangements being upheld, be backdated to cover the period for which it was suspended.

Earl Russell

I thank those who have taken the trouble to make the amendment available to us. However, it appears to say little more than "regulations may prescribe". It is an amendment signed in the usual way as regards this Bill; Humpty Dumpty. The intention may or may not be excellent but I do not see how parliamentary control, as distinct from scrutiny, can be exercised over anything done under it.

It sounds as though the principle that Parliament makes the law is in danger of obsolescence. Furthermore, having listened to what the Minister has said, I am not convinced that he has dealt with the substantive points of the amendment. The question of whether the Minister recognises that single people can experience hardship, and if not why not, was serious. The question of how one can be disentitled to a means-tested benefit without experiencing hardship was also serious. I have now asked that question three times and I badly want an answer. I cannot see that the amendment fits the bill. It is better than nothing but not, I regret to say, by very much.

Baroness Williams of Crosby

My heart rose when I read paragraphs (1) and (2) of the amendment and I considered that the Minister had gone some way to meet the case made by Members on all sides of the Committee. However, paragraph (5) firmly announces that most of the money paid can be recovered. I am unclear about where the money can be recovered from because, if the claim for benefit is disallowed, the claimant will have no money from which to be able to repay the amount extended to him. On the other hand, if his claim is regarded as being justified I do not see why on earth he should be expected to repay the amount; his position has already been recognised as a result of the adjudication. Therefore, paragraph (5) is either otiose or foolish and I wonder whether the Minister will reconsider it. Paragraphs (1) and (2) go some way towards meeting the case raised by Members on all sides of the Committee.

Earl Russell

Perhaps I may add a further comment. Is there any evidence as regards the tests that are to be used to demonstrate hardship? The proposition about demonstrating hardship was made some time ago by Mr. Roger Evans in another place. It is not a new government idea; they have had plenty of time to think about it. When we understand what the Government mean by demonstrating hardship, when we look at the evidence that is to be produced as proof of hardship, we might have more understanding of what they mean by "hardship". If we understand neither the meaning of "hardship" nor the meaning of "demonstration" we have not advanced any further. I trust that for the moment the process of osmosis is complete.

Lord Inglewood

I have been asked about the definition of "hardship". Currently hardship is not defined in regulations but is left completely to the discretion of the adjudication officer. We consider that it is right in JSA, which aims to set out a clearer sanctions regime, that criteria should be made more explicit in regulations.

In drawing up the regulations we will take account of the guidance issued by the chief adjudication officer in the past and we will listen to views. However, we would expect to prescribe factors which should be taken into account by the adjudication officer, including the level of resources available to the household; the risk of lack of any of the essentials of life, including shelter, food, clothing or heating; and the presence of family members particularly susceptible to risk—for example, children, elderly people or those in ill health or with disabilities. We shall carry forward the provisions under which a reduction equivalent to 20 per cent. rather than 40 per cent. of personal allowance applies where the household includes someone who is pregnant or seriously ill and the claimant has capital of less than £200.

The noble Baroness, Lady Williams, asked about the problems relating to the recovery of money. The noble Baroness puts her finger on the underlying problem behind advancing money. If people are not ultimately found to be entitled to it, they will not be in a position to repay it. Clearly, where money has been advanced and then some money is owing because the claims are upheld, the administrative reality will be that one will be offset against the other.

Baroness Williams of Crosby

It seems to me that that makes paragraph (5) somewhat otiose, but I may be drawing the wrong conclusion.

Earl Russell

We are becoming involved in arguments similar to those which have been taking place recently in the press about when life begins. We are arguing about when the entitlement to disentitlement begins. The Minister assumes that it begins from the very first referral. That is rather like assuming that, when a Motion is carried to reduce a Minister's salary by £1,000 per year, that lasts from the beginning of the Session of the Parliament in which it was done. In effect, that is retroactive.

We have here a situation which would be a great deal simpler if the disentitlement were to begin from the moment of adjudication because, after all, until that moment, it is not clear whether there is a right to disentitlement. The department is taking away the money in too much of a hurry. That is why the question of paying it back arises in the first place.

Lord Inglewood

In the context of this debate, the entitlement rests with the satisfaction of the various criteria. If the criteria cease to be satisfied, then the entitlement falls. That is the basis on which the approach that has been adopted has been built.

Earl Russell

Someone who is accused of murder is innocent until proved guilty. Why does not the same apply to someone who is accused of breaking benefit conditions?

Lord Inglewood

With the greatest respect to the noble Earl, the comparison is not entirely exact although if one were to extend the comparison further the point should be made that if someone is accused of murder, he is normally taken into custody and the matter is determined by a trial. Under this proposed scheme, the benefit is suspended until the moment of adjudication. If the decision is taken in favour of the claimant, the back-payment is made running from the period at which it was cut off. It seems to me that that is the equivalent of being released, having been found not guilty.

Lord McCarthy

The noble Lord chooses his examples very badly. You are taken into custody but you are not fined. The Government are fining these people.

Lord Swinfen

If someone is taken into custody, he is fed, housed and heated. If he has no benefit at all, he may lose his housing and he has nothing with which to pay for heat or food.

Lord Inglewood

That is one reason why I said that I did not think that it was a particularly good comparison and perhaps it was remiss of me to go in that direction. But there are also the hardship provisions which come into play should that eventuality arise.

Earl Russell

There is a case in the briefing papers which I have of somebody who visited a CAB office in North Wales. He had been disentitled. He had no electricity and no bed or food. He was spending the day lying on the floor in the dark. He told the CAB that he would rather be in prison because there he would have a bed and food. Is that what the Home Secretary really means when he says that prison works?

Baroness Hollis of Heigham

Perhaps we have reached the end of this debate. As I understand the intention when the Bill entered the Commons, if there was any doubt and the referral process took place, the disqualification from benefit for two weeks except where there was hardship applied to those voluntarily leaving work or leaving work for misconduct as well as to those excluded under the actively seeking work rules.

So far as I know, during the Committee stage in the other place, the Minister agreed that anyone voluntarily leaving work or leaving work as a result of being sacked through misconduct was entitled to continue to receive not just a hardship payment—and not to have to show vulnerability—but also to receive JSA paid in full throughout. That is my understanding of the situation; namely, that someone in those circumstances has JSA paid throughout the whole period.

The Minister is now insisting upon giving a different response about innocent until proved guilty or, indeed, guilty until proved guilty for someone actively seeking work from that applying to someone actually leaving work for what, in my view, is a much more serious offence; namely, misconduct in work. Can the Minister say why he will not align the actively seeking work benefit rules with those that he has already conceded for those voluntarily leaving work on grounds of either misconduct or for whatever reason?

9.45 p.m.

Lord Inglewood

My noble friend intends to deal with that aspect a little later. It may be for the convenience of the Committee if we were to deal with the matter at that point.

Baroness Hollis of Heigham

The Minister's response will influence whether or not I seek the opinion of the Committee on the matter. As I said, the Minister conceded that JSA benefit should continue to be paid while adjudication is pending, but he is denying it for actively seeking work cases where a much greater area of discretion may apply and where, therefore, as the noble Lord, Lord Swinfen, said, someone will be fined until he is proven innocent. We all know from last year's figures that 180,000 people were confirmed innocent; but 90,000 of them would have had to wait for weeks without benefit under the provisions of the proposed clauses. Can the Minister respond?

Lord Inglewood

Where a person has established entitlement to the jobseeker's allowance but there is doubt as to whether a sanction should be applied to him because he left his last job voluntarily or was dismissed for misconduct, payment of the JSA will be made in full pending the decision.

Baroness Hollis of Heigham

In that case, can the Minister tell us why that cannot apply to those actively seeking work?

Baroness Williams of Crosby

The point that the noble Baroness, Lady Hollis, is trying to make is that we are imposing stricter penalties on those who are described as not "actively seeking work" for reasons which may be overwhelmingly good—for example, they have to care for a dependent relative or they do not speak English very well—than we are on those who are actually guilty of, or responsible for, misconduct at work. They are treated far more generously. I am sure that the Minister will understand that we find that an extremely puzzling distinction for the Government to make.

Lord Inglewood

There is a difference between people who are meeting the basic jobseeking conditions and those who are not. If the person is meeting the basic entitlement conditions and is clearly a jobseeker, but a doubt has arisen as to whether he left a job voluntarily, he will then receive benefit until the question is resolved. However, where the doubt is about the basic jobseeking conditions, we cannot simply pay benefit automatically before a decision is reached. Nevertheless, we have heard the comments that have been made on the matter and we shall consider most carefully the points that have been raised.

Baroness Hollis of Heigham

Very well. Basically, we are saying that, where there is a doubt, the Government have built into the whole system an incentive to increase the number of referrals and, therefore, the number of temporary benefit suspensions. Those judgments have doubled in the past year. Is the Minister really telling Members of the Committee that the number of alleged work-shy people has doubled during that time?

We know that the introduction of performance-related pay and targets is impacting on the decision-making process. In consequence, people who may have a mild learning difficulty, a mild mental health problem or for whom English is not a first language or those who are vulnerable, incompetent and ineffective will now be fined with a loss of their benefit, whereas if they had actually lost a job through misconduct the benefit would continue.

It is probably too late to take the matter to a vote this evening. However, I can promise the Minister that we shall return to it on Report. I very much hope that the noble Lord can persuade us with rather more convincing arguments than those of us on this side of the Committee have heard tonight. Frankly, it is unfair and unreasonable that someone is fined, before the case has even been judged, by having his benefit suspended on the discretion, the prejudice, the insight or the lack of evidence of an untrained employment officer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60 to 63 not moved]

Lord Inglewood moved Amendment No. 64:

Page 5, line 34, after ("information") insert ("and such evidence as may be prescribed").

The noble Lord said: Any unemployed person will be familiar with long-standing arrangements that when he signs on for benefit every fortnight he actually signs a declaration that he is available for work and actively seeking work and that his circumstances have not changed. This declaration forms part of his claim for benefit for the preceding two weeks. Section 5(1) (h) and 5(1) (i) of the Administration Act provide the powers to require the signing of this declaration: subsection (1) (h) for example, provides for regulations, for requiring any information or evidence needed for the determination of such a claim … etc.".

Although in JSA—because it is an open-ended benefit—claimants will not be required to make a fresh claim every fortnight, we still intend that they should attend their Jobcentre regularly to show that they are available and actively seeking work. We therefore must make provision in JSA, in addition to the provisions concerning the claim for benefit carried in the Administration Act, to enable the normal practice of signing on to continue. The Government amendment is simply to keep the wording of the provision consistent with the wording in the Administration Act so that unemployed people can be required to sign a declaration on their regular attendance at the Jobcentre.

I turn to Amendments Nos. 67 and 68. At present a person claiming unemployment benefit makes a new claim for benefit every two weeks when he signs on at the Jobcentre. The claim is in arrears for the preceding two weeks. As a result, when a claimant fails to sign on—perhaps because he has found a job or simply cannot be bothered—there is no claim for benefit and no benefit is paid from the previous time when the claimant signed. Every claimant knows that if he does not sign, he does not get his benefit.

This amendment is designed simply to ensure that this existing practice can continue. The current provision in the Bill at Clause 6(5) enables regulations to prescribe that entitlement will cease from the point at which a claimant fails, without good cause, to attend the Jobcentre as requested. But because the basis of JSA is different from that of unemployment benefit, entitlement would continue until that point, contrary to current UB arrangements, unless the adjudication officer had evidence to determine that the conditions for benefit were no longer being met. But when claimants fail to turn up, we generally do not know why. There is, after all, no reason why claimants should tell Jobcentre staff.

We believe that most unemployed people who stop signing on would find it strange if they were pursued by adjudication officers for the reason why they had failed to sign on. They would equally find it strange if they continued to receive benefit for a period for which they had not signed on. This amendment is therefore necessary to ensure that benefit is only paid for the period for which the claimant demonstrated that he was available and actively seeking work by signing on. I beg to move.

On Question, amendment agreed to.

[Amendment No. 65 not moved.]

Earl Russell moved Amendment No. 66:

Page 5, leave out lines 38 to 41.

The noble Earl said: With the leave of the Committee—I have already given the Minister notice—I would like to be allowed to speak also to Amendment No. 70 as the matters raised are similar. Both concern the power to define good cause. Good cause, like intention, is one of those things which I should have thought was best defined individually and in judicial circumstances. Again, we are dealing with the question of the evidence that is to be taken into account in defining it. The Government's memorandum states that regulations will provide for matters and circumstances to be taken into account in determining good cause for failure to comply with such regulations. So we are to have regulations upon regulations: regulations to determine what may be a good cause for not complying with regulations.

This seems to me to be a case of the over-fussy draftsmanship with which the Renton Report is concerned, where the attempt to provide for every eventuality ends up in a failure to provide for all kinds of things which actually take place. To take one example, which was mentioned in the newspapers recently, some Members of the Committee may have read of the man who was taken into police custody and was being stripped for the cells when a boa constrictor emerged from his Y-fronts, where he said he kept it in order to keep it warm. I believe that boa constrictors feel the cold. In all the care that the department might take in listing good cause, could it possibly think of an employer who kept a boa constrictor in his Y-fronts? If the department forgot to enumerate that possibility, would it mean that that was not a good cause for leaving a job? I am frightened of disentitlement to benefit, but I can imagine circumstances in which I might be even more frightened of a boa constrictor.

That example illustrates the futility of trying to define good cause by regulation. It is much better to recognise that this is not a legislative matter but a judicial one. I beg to move.

The Deputy Chairman of Committees (Lord Lyell)

I have to advise the Committee that, if Amendment No. 66 is agreed to, I shall not be able to call Amendment No. 67.

Lord Inglewood

One of the key purposes of the jobseeker's allowance is to ensure that only those who are available and actively seeking employment receive the allowance. In order to ensure that jobseekers meet these conditions, it is essential to review the activities which they are undertaking to find work. This regular contact is not only to monitor their job search, but also to identify whether they need advice or help, which might perhaps be attendance on an employment programme or training course.

It is long-standing practice that unemployed people should attend their jobcentre regularly to demonstrate that they continue to be available for work and their circumstances have not changed in a way that would affect their benefit entitlement. That normally takes the form of signing on. Every claimant knows that if he does not sign on he does not get his benefit. We propose in JSA to continue with the requirement to attend the jobcentre and to maintain that link with entitlement to benefit. That is what this subsection achieves. The noble Earl's amendment would result in a claimant's failure to attend the jobcentre meaning nothing. The result would be that the claimant's refusal to give any information about his circumstances or his job search would mean nothing. I cannot believe that the noble Earl would accept that those were sensible results.

The requirements for claimants to attend and the types of information needed may change as circumstances and labour markets change. Hence, a power to make delegated legislation is suitable. Similar regulation-making powers are to be found in current regulations concerning the requirements to attend the office and give information in respect of a claim and concerning the requirements to attend for the purpose of interviews such as Restart interviews.

In addition to signing on, we have already made clear that the existing regime of in-depth interviews at 13 weeks and 26 weeks and six-monthly interviews thereafter should broadly continue within JSA. That is not to say that we might not require some jobseekers to attend the office on other occasions if we think it necessary in order to provide them with advice or to monitor their job-search activity more closely. For instance, the regular caseload interviews in the 1-2-1 programme have already proved a valuable approach for people under 25 who have been out of work for more than a year. The noble Earl's amendment would also mean that a claimant's failure to attend one of these interviews would make no difference to his receipt of benefit.

I now move to Amendment No. 70. The claimant may have a good reason for failing to attend the jobcentre to sign on or for a Restart interview. He may be sick; he may have a job interview; or he may be dealing with an urgent domestic problem. Subsection (5) (a) provides that entitlement will cease only if the claimant fails to attend without good cause. This carries forward existing practice where a person may make a delayed claim for unemployment benefit or will not be disallowed for failing to attend a Restart interview if he can show good cause. However, good cause is not defined in either case. It is important to provide for this issue through regulations.

Throughout JSA we aim to introduce greater clarity into benefit procedures and conditions. At present, the adjudication officer decides on the merits of each case whether the claimant has good cause guided only by precedent. This introduces uncertainty into the arrangements for claimant and jobcentre staff alike. By prescribing in a non-exhaustive list matters which are not to be taken into account by the adjudication officer, it will be clearer for all concerned whether or not the reasons for non-attendance should lead to the claimant losing benefit. Examples of good cause will include temporary sickness, domestic difficulties such as those caused by pressing caring responsibilities, and unforeseen emergencies.

It is important to be clear that the regulations provide a non-exhaustive list. There will still be flexibility for the adjudication officer.

10 p.m.

Earl Russell

I regret to say that that reply has entirely misunderstood the purport of the amendment. If the Bill provided that people shall not fail to attend their jobcentres without good cause, I would not have made a moment's protest. I object to the attempt to prescribe a series of requirements by regulation followed by an attempt to provide an exhaustive list of what shall be good causes for not complying with those regulations.

My specific concern is with the attempt to make an exhaustive list of good causes by regulation. It means that a certain cause will be good, or might be bad, no matter how severe the cause might be. That is not in the real nature of the case.

Lord Inglewood

I hope that the noble Earl will forgive my interrupting him. As I hope I made clear, the point is to establish a non-exhaustive list rather than an exhaustive list.

Earl Russell

I am relieved to hear that. It goes a long way to reassure me. However, if the list is to be non-exhaustive, I do not understand why it is worth making. One has to judge these matters on their merits. I cite the example of someone who has to walk five miles every day to his Jobcentre. Let us suppose that that person said one day that he could not attend the Jobcentre because he had blisters. I would not be happy with providing either that that was a good cause or that it was not. I should have thought that it depended on how bad the blisters were. The best way to find out would be to ask the man's doctor, and not to make another regulation. I believe that this is an entirely misguided method of legislation. During a moment of osmosis, we may think about whether this is really a sensible way to set about legislating. I look forward to hearing a reply.

Lord Inglewood

Throughout the Jobseekers Bill we aim to introduce greater clarity to benefit procedures and conditions. At present the adjudication officer decides on the merit of each case whether the claimant has good cause guided only by precedent. That introduces uncertainty into the arrangements both for the claimant and Jobcentre staff. By prescribing in a non-exhaustive list matters which are, or are not, to be taken into account by the adjudication officer it will be clearer for all concerned whether the reasons for non-attendance should lead to the claimant losing benefit.

Earl Russell

In its report the committee, chaired by the noble Lord, Lord Renton, explained most eloquently how the continuous pursuit of certainty leads in the end to a self-defeating growth in uncertainty. I have never seen that point demonstrated so clearly as today. I had no idea that the noble Lord was quite as right as he obviously is. Nevertheless, for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Inglewood moved Amendment No. 67:

Page 5, line 39, leave out ("without good cause").

The noble Lord said: I spoke to this amendment earlier. On Question, amendment agreed to.

Lord Inglewood moved Amendment No. 68:

Page 5, line 41, after ("subsection") insert: ("() provide for entitlement to cease at such time (after he last attended in compliance with requirements of the kind mentioned in subsection (4) (a)) as may be determined in accordance with the regulations; () provide for entitlement not to cease if the claimant shows, within a prescribed period of his failure to comply, that he had good cause for that failure;").

On Question, amendment agreed to.

[Amendments Nos. 69 and 70 not moved.]

Baroness Williams of Crosby moved Amendment No. 71:

Page 6, line 7, at end insert: ("() Regulations may provide for an income-based jobseeker's allowance (a "hardship allowance") to be payable to a person in need (a "vulnerable person") where the person would otherwise suffer hardship and—

  1. (a) is not available for work;
  2. (b) is not actively seeking work;
  3. (c) has not entered into a jobseeker's agreement; or
  4. (d) the question of his entitlement to jobseeker's allowance under sections 6, 7, or 8 has been referred to an adjudication officer for a determination.")

The noble Baroness said: This amendment has the objective of providing for a hardship allowance—the minimum level of benefit—in circumstances where the claimant is, for reasons determined, not available for work—that is to say, he does not satisfy the requirements defined in that terminology; where he is not actively seeking work—again he does not satisfy the requirements laid down for that definition; where he has not entered into a jobseeker's agreement; or, finally, the issue which we have discussed at some length in the Committee, where the adjudication has not yet taken place.

I shall not pursue the arguments at length because we have already deployed them a good deal in Committee. However, the force of the amendment is essentially that men and women should not be left without any means of legal sustenance of any kind in circumstances beyond their control where they are unable to draw benefit and are unable to draw any other kind of income.

The anxiety we have was expressed eloquently earlier in the Committee stages by the noble Baroness, Lady Hollis. She referred to the problem that arises when people have no legal means of income whatever. I find that we too easily dismiss the problem of how one obtains income in those circumstances. We too easily dismiss the possibility that people may be driven to crime or other acts against the legal structure of our society by their inability to obtain a basic income from any legal source whatever.

In view of the late hour, I shall not move Amendment No. 71 at great length. Its purpose is to try to provide as a basic final entitlement—not for those who are job-shy but for those who have gone through all the procedures to try to establish their right to legal entitlement—that they shall be entitled to a hardship allowance and a minimum level of benefit as an alternative to being driven to extra legal methods of trying to pay their basic bills. I beg to move.

Baroness Hollis of Heigham

I support Amendment No. 71 but perhaps I may ask the noble Baroness whether she was also speaking to Amendments Nos. 101, 102, 180 and 182.

Baroness Williams of Crosby

Yes, I should have been but I felt that in view of the time we should refer briefly to Amendments Nos. 101 and 102. I am sorry that I did not do so and am grateful to the noble Baroness for mentioning it. The purpose of Amendment No. 101 is to ensure that adjudication of any claims is made within a relatively short time and that where the adjudication is not made within 14 days, there should be a continuing entitlement to the jobseeker's allowance. We understand that the average period in which adjudication is made can be as long as 22 weeks or even longer. Therefore, at present, no allowance is made in the Bill to provide people with means of benefit to sustain themselves while they wait for a final adjudication.

We return to the point which has been made time and again about the Bill that people should not be found guilty while their proof remains to be heard. We should make the normal assumption of innocence until guilt is proven. In this case, that means that benefit should continue to be paid until the adjudication is made. With some of the most vulnerable and impoverished people in our society, it must be wrong to make a decision in advance of adjudication that tells against their right to benefit.

Baroness Hollis of Heigham

I thank the noble Baroness for clarifying Amendment No. 101 for us, as well as the other amendments in the group. We support them and Amendment No. 71.

As the noble Baroness explained persuasively to us, Amendment No. 71 involves our anxiety where the Government are withdrawing the statutory right to those who fail the vulnerability and hardship tests. Thousands will have nothing to live on; some will be awkward customers who insist on living. We have the experience of America, which shows what happens when they take to the streets. We have said less tonight about the others who will not have that fortitude to survive because they are vulnerable. English may not be their first language; they may have a drink problem or a moderate mental health problem which is not easily detected but which makes them virtually unemployable or, as we are increasingly learning, they may be on the streets because they come from a background (you can almost chart the history) of family abuse leading to local authority care, the Army and out on to the streets, never having experienced a satisfactory family life and being unable to survive outside some version or other of institutional care. And they are incompetent. They are vulnerable because they are inarticulate.

Therefore, because they are vulnerable and inarticulate, they are less likely to be able to persuade suspicious, doubting and sometimes cynical employment officers that they are vulnerable. The inarticulacy that makes them vulnerable is the precise reason why their vulnerability may not be recognised. They are not pretty; they are not persuasive; and they are not physically obvious in their portrayal of desperation. I do not believe that I am understating the position. We are sentencing them to the world of the street undead, the shadowy drifters, huddled with their dogs for warmth on the streets as we step over them on the way to the theatre. We should not do that to any fellow human being.

Therefore, we have two paths. We can provide—as I believe these Benches would infinitely prefer and, I suspect, in all good faith many Members opposite would prefer—that benefit should continue in full until the appeal has been heard, with a hardship payment continuing, as now happens in the case of unemployment benefit, if the decision goes against the claimant. So there would be a decent minimum competence, although still well below income support level. In that way no one ever again has the right to justify breaking a window because he does not have bread to eat. How can we morally sentence someone for breaking a window if we deny him the legitimate means of getting bread to eat?

If that is not acceptable to the Government—and we shall return to this matter on Report—the Government must take the other route. They must ensure that those unemployed people who are judged by the Employment Service to be neither vulnerable nor in hardship, even though they may be wrong on both counts, nonetheless have speedy access to adjudication and appeals so that their case may be heard. As the noble Baroness, Lady Williams of Crosby, said, in 1993–94 such appeals were taking up to 20 weeks. What are those people to live off in the meanwhile? They will have 20 weeks on the streets. Therefore we say that either the Government must continue to pay benefit until the appeal is heard, and thereafter hardship, or they must support an amendment to ensure an expedited appeals system so that at least those who are genuinely seeking work will have their benefit fully restored. I give my heartfelt support to all these amendments.

Lord Swinfen

I add my voice in support of these amendments. If my noble friend does not like the exact wording of them perhaps he will come back at the next stage with a revised version. I believe that when he looks at the moral question, he will not be able to refuse the amendments.

10.15 p.m.

Lord Mackay of Ardbrecknish

I understand the concerns expressed both in this short debate and in other debates that we have had to date on this issue. These are important matters. JSA hardship payments will indeed be the safety net in the benefits system for those who are required to be available for work in order to receive benefit. However, the Government's proposals for access to hardship payments should go a long way towards assuaging noble Lords' concerns—although I suspect that they will not do so fully. I suspect that some noble Lords opposite would like to pay benefits in pretty well every circumstance and not have any of the tests that I believe it is right we should apply. I shall treat each amendment in turn. I hope that I shall be forgiven if I do so in some detail and try at least to give Members of the Committee something to read and reflect upon tomorrow morning.

I turn first to Amendment No. 71. I can assure the Committee that hardship payments will be available to claimants who need protection in the circumstances set out in the amendment. Under the Government's proposals, where a question has arisen over someone's availability for work, a claimant will be able to be considered for a hardship payment under JSA throughout the period of consideration if he is in one or a number of prescribed vulnerable groups. Where the adjudication decision is taking longer than two weeks, claimants outside the vulnerable groups will also be able to receive JSA if they demonstrate hardship. We believe that is a reasonable and fair approach. The claimant has not demonstrated that he meets the normal conditions for benefit, therefore it cannot be awarded under normal conditions. But the hardship payments will provide the protection for those in vulnerable groups who need this right from the start, and we will extend this to all other claimants if the decision-making process is a lengthy one, and no decision has been reached that they have failed the labour market tests after a fortnight.

Where a decision has been reached that a claimant is not available for work, he will not be entitled to JSA unless he is in one of the prescribed vulnerable groups and demonstrates that hardship would result if no benefit were paid. This is exactly the situation which applies now in cases where a claimant is judged not to be actively seeking work. Hardship payments will protect the vulnerable but there is no reason at all why a healthy, childless claimant should receive benefit if he is not prepared to meet his basic obligations. The taxpayer should not be asked to provide funds to those who refuse to make themselves available, or to look, for work.

I realise that there is perhaps a slight gulf between this side of the Chamber and the other side on this issue, but that is the reasoning behind our decision to go down that particular road.

Paragraphs 8 and 9 of Schedule 1 contain the regulation-making powers to award benefit to people despite their failing to satisfy the labour market conditions. In addition to these provisions, as my noble friend has already indicated, we intend to bring forward amendments to the Bill in the current sitting which will allow payments to be made during the decision-making process, both at the outset of a claim and when an existing award has been suspended because of doubt as to whether a person is continuing to satisfy the jobseeking conditions. I have no doubt that we shall discuss those amendments when we come to them in the schedule. I hope that my efforts on the photocopier have been of a little help to the Committee.

Amendments Nos. 180 and 182 seek to define on the face of the Bill matters of detail concerning the definition of groups which will have access to payments and the definition of hardship itself. These are highly detailed matters which are more appropriate to regulations. The regulations in JSA which define the vulnerable groups with access to hardship payments will build on those currently applying in income support to claimants who fail to look for work. That includes households where the claimant or partner is pregnant; where the claimant is a member of a couple with responsibility for a child or young person; and where the claimant or partner qualifies for a disability premium.

We announced in the JSA White Paper that in addition to disabled claimants we would also include those who are sick. People who are incapable of work should normally be claiming an incapacity benefit. However, some claimants who suffer from a serious underlying medical condition, rather than a disability, may be fully capable of work, but may for dietary or other reasons be particularly seriously affected if all benefit is withdrawn. Consequently, we propose that where the claimant or partner has a serious medical condition of that type, they will have access to JSA hardship payments at all times, if they meet the normal hardship tests.

We are also widening the groups who can receive hardship payments to include those with caring responsibilities. We have looked carefully at how to define the group we are concerned to protect—those who provide substantial care to sick, disabled or elderly people. We wish to strike a sensible balance which recognises real need but does not include cases where the care provided is negligible. The clearest point of reference in the benefit system is the qualifying threshold for invalid care allowance, where there is clearly a significant caring responsibility for those in need.

The qualifying condition to ICA is that the person being cared for must be in receipt of the middle or higher rate of disability living allowance care component or of attendance allowance. We propose to set the same condition for carers' access to hardship payments. However, in view of the fact that the claimants involved are claiming a jobseeker's benefit rather than a carer's one, we do not propose to apply the additional ICA qualification of at least 35 hours a week caring. To qualify for access to JSA hardship payments the claimant will need to be providing regular care, but there will be no specific hours rule. Of course, if a carer qualifies for ICA he or she can choose not to be a jobseeker and can qualify for income support as a carer.

The test of hardship will be in relation to the effect on the person cared for, in the same way as the hardship assessment is made in respect of the effect on the child or young person currently in income support. We are confident that those definitions will strike the right balance between protecting the taxpayer from subsidising those whose unemployment results from their own choices and protecting those in vulnerable groups from hardship. The noble Lord's amendment would go further than that by opening up hardship payments to everyone at all times.

I am assuming, as I do in most cases, that the Committee want to hear responses to all amendments in the group. I do not believe the noble Earl spoke to them all but I am sure that what I have said will be considered important by those Members of the Committee who are concerned about this matter.

I turn to consider "hardship". Perhaps the noble Earl will indicate whether or not he wishes me to address the definition of "hardship", which I am happy to do though technically he did not speak to it.

Baroness Williams of Crosby

The noble Lord, Lord Mackay, will appreciate that I introduced this group of amendments on behalf of my noble friend. Perhaps I may say a word or two about the amendments, since he raised the issue, before he concludes his remarks.

Though I recognise from his earlier remarks that the Minister thinks that we on this side of the Chamber are going for a weak definition of "hardship" and "vulnerable person", Amendments Nos. 180 and 182 express those definitions in extremely tight terms. For example, we make it plain that somebody who claims sickness or disability must have that condition confirmed by a doctor; we make it plain that somebody who is pregnant or has dependent children under the age of 18 should be considered within the group of vulnerable persons.

The Minister kindly said that we would come back to this matter both on the schedules and at Report, and perhaps I can press him on two points which concern Members on all sides of the Committee. The first relates to a consistent problem of what has sometimes been described as "falling between two stools"; that is, those who satisfy our hardship definition but not the Minister's. In other words, they fall within the grey area between qualifying for disablement allowance and qualifying for JSA. We are extremely concerned about that group, and the amendments meet that point.

Secondly, I want to raise with the Minister the remarks he made regarding the people caring for dependent relatives or friends. I was somewhat worried by what he said, though I may not fully have understood it. I believe he said that the definition of caring must fall within the terminology of what is described as "regular" care, which has a requirement of a certain number of hours per week attached to it.

Perhaps I may bring to the Minister's attention that many people who care for elderly or dependent relatives, especially women who care for dependant parents, may do so on a basis that varies from week to week depending on the state of health of the parents. A rigid definition would therefore be extremely harsh. I am sure that the Government recognise, as do many of us in this Chamber, that caring for elderly relatives is a significant contribution to the well-being of this society and that nothing in the Bill should do anything to discredit it.

Lord Swinfen

I want to raise a small point which will help me and perhaps other Members of the Committee. When my noble friend replies on Amendment No. 182, will he say what qualifications an adjudication officer needs for his post and what training he receives? So much depends on the adjudication officer, and that is something we should know.

Lord Mackay of Ardbrecknish

At this time of night my noble friend may accept as an answer from me that I went into this matter in some detail on the first day of Committee in reply to the noble Earl, Lord Russell. My noble friend may therefore be content to accept a reference from me to Hansard of last Thursday. I hope that that will suffice.

Perhaps I may point out to the noble Baroness, Lady Williams, that I said quite clearly that we do not propose to apply the additional ICA qualification of at least 35 hours a week caring. To qualify for access to JSA hardship payments, the claimant will need to be providing regular care, but there will be no specific hours rule. I think that that answers her point.

The noble Baroness also referred to falling between two stools. As my noble friend has said on one or two occasions when we have got into these difficult debates, we shall reflect on what has been said on these matters. No doubt we shall be returning to them at Report stage. We can then perhaps discuss any specific cases that seem to us to be falling between two stools.

With regard to defining hardship, the noble Earl's amendment tries to define how hardship should be assessed. Currently hardship is not defined in regulations but is left completely to the discretion of the adjudication officer. My noble friend Lord Inglewood answered this point in the debate on Amendment No. 59 while I was making my efforts with the photocopier. I wonder whether I can be forgiven for suggesting that your Lordships would just hear me repeating what my noble friend has already said. If I refer your Lordships to that earlier response, I hope that will be satisfactory.

The new clauses proposed under Amendments Nos. 101 and 102 seek to make payment of benefit on account where there is a delay in adjudication or in the determination of an appeal. The Government consider that many of the provisions of these new clauses will be achieved by other means. We have already announced in another place that there will be access to benefit for many of those people who are awaiting adjudication officers' decisions.

Where a person has established entitlement to the jobseeker's allowance but there is a doubt as to whether a sanction should be applied to him—because he left his last job voluntarily or was dismissed for misconduct—payment of the allowance, as has already been discussed, will be made in full pending the decision.

Where the person has not established entitlement because of a doubt over his satisfying the entitlement conditions, we do not believe, as my noble friend has said on a number of occasions, that it is right automatically to pay benefit until the doubt is resolved. Nevertheless, we intend to make benefit available on the grounds of hardship. Hardship payments will be available in the first two weeks for those in certain groups, such as those with dependent children, and will be available to all claimants who demonstrate hardship from the third week.

The new clauses would seek to replace these hardship payments by payments of benefit on account. But your Lordships may be aware that provision already exists under Section 5(1) of the Administration Act for payments on account of entitlement to benefit to be made. This amendment would therefore mean double legislative provision for the purposes of the jobseeker's allowance.

However, the proposed new clause would go further than current provision. Existing regulations allow payments on account to be made only where the Secretary of State is of the opinion that there is, or may be, entitlement to benefit and then only on a discretionary basis. In cases where eventual entitlement to benefit is unlikely, automatic entitlement has never been considered a viable option.

Both this amendment and the existing regulations provide for the eventual recovery of payments on account either from the eventual entitlement to benefit or from other sources where there is no such entitlement. Because payments would be made automatically, inevitably they would be made to many people who were not, in the event, entitled to benefit. The administrative costs, and the difficulties where we have tried to recover benefit in such circumstances, do not lead us to believe that it is a very easy or cheap thing to do. That would be the same if payments on account were enlarged as the amendment would have us do.

The new clause on appeals, which is Amendment No. 102, would considerably extend the appeals procedure. It would allow appeals to a Social Security Appeal Tribunal against decisions of adjudication officers and decisions by the Secretary of State. That would introduce rights of appeal which do not exist for appellants in other benefits. I do not believe that would be equitable. Most decisions by the Secretary of State are excluded as they are mainly on administrative matters, such as how the claimant will be paid.

This clause would provide that, where an appeal has yet to be heard, the Secretary of State may apply to the appeal tribunal chairman for an order that no such payment should be made where the Secretary of State is of the opinion that the appeal is likely to be wholly unsuccessful. The proposal suggests further delay and further administrative costs both to the Employment Service and to the Independent Tribunal Service. There would be a greater burden on the chairman. Furthermore, I wonder what criteria the chairman of the tribunal would use when deciding to make a leaving order.

The aim of the Employment Service and the Benefits Agency is to ensure that decisions are taken as quickly as possible. We are examining ways of improving the speed of adjudication. But the primary goal must be that decisions whether of adjudication officers or appeal tribunals are taken after proper and full investigation of the facts. That will inevitably lead to delay in some cases. However, to make payments on account while the cases are under consideration, would present, as I have said, a considerable administrative burden, possibly lengthening delays, and could encourage more appeals. I hope that some of the things that I have said have been encouraging, but I accept that some of them have not been. I apologise for the quite long explanation, but there are a number of amendments here. I hope that the noble Baroness will be able to withdraw her amendment.

10.30 p.m.

Earl Russell

Before we go any further and as the Minister has drawn attention to the time of night, it seems an appropriate occasion to ask how far it is intended that we should go tonight. This is a major Bill and one cannot judge its importance by its length. I have always maintained, and did so at the beginning of the Committee stage, that our timetable is not working. It is now clear that we have a choice between extra time and going a great deal later than it is normally preferred that we should.

I appreciate that there are difficulties in both directions. But the Minister might remember that in the report on the sittings of the House, it was pointed out that it was not possible to use the procedure of shortening time and proceeding by consultation and by meetings in areas of acute political controversy. We have used that procedure where we could and it has been most helpful.

I drew the Government's attention to the major contentious issues in this Bill as early as 27th November and not enough common ground emerged for it even to be worth proceeding to a meeting. We have been finding important things. It has not been a set scrum: it has been open play, passing movements and openings have emerged. We have more important amendments to come than any that we have moved tonight. What is the opinion of the Committee on the best way to proceed? Something needs to be done. We cannot both rise early and complete our timetable.

Lord Mackay of Ardbrecknish

Is it possible to allow discussions to take place? Perhaps we can go on for just a little while longer until those discussions have taken place and we have seen what emerges. If the noble Earl is satisfied with that, I am content that we proceed in that way and shortly all will be revealed to those of us who are labouring at this Bill.

Is it helpful if I indicate that I have stopped speaking on Amendments Nos. 71, 101, 102, 180 and 182? I believe I invited the noble Baroness, Lady Williams, to withdraw her amendment in the light of my detailed explanation.

Baroness Williams of Crosby

I beg leave to withdraw the amendment, but I do not make any promises about not returning to some of the issues at a later stage.

Amendment, by leave, withdrawn.

Clause 6, as amended, agreed to.

Clause 7 [The jobseeker's agreement]:

Lord McCarthy moved Amendment No. 72:

Page 6, line 9, leave out from ("officer") to second ("is") in line 10, and insert ("whereby the claimant agrees to carry out a set of reasonable jobseeking activities in return for the provision by the employment officer of appropriate assistance, including relevant training or jobsearch schemes,").

The noble Lord said: If the Committee wants the good news—we have finished Clause 6. If it wants the bad news: on the original plan for this Bill we should have got to this point at 10 o'clock last night. We have been all day on Clause 6 and now we have reached Clause 7. I propose to move my four amendments very quickly.

The Explanatory and Financial Memorandum tells us that Clause 7, governs the jobseeker's agreement which will be entered into by a claimant and an employment officer. It also sets out how questions in relation to the terms of a jobseeker's agreement will be decided, and provides a right of appeal".

That is a very flattering view of what the clause does, because it is a one-sided agreement. Clause 7 prescribes that the employment officer and the adjudication officer will decide what goes into the agreement, and the applicant has no rights. In Amendments Nos. 72, 74, 76 and 82 we are trying to set out what some may describe as a rather disparate set of proposals which, if they were all acceptable to the Committee, would constitute something of a transformation in the jobseeker's agreement, which would then become something of a joint affair.

Amendment No. 72 inserts a definition of a jobseeker's agreement which includes a reasonable set of activities in return for appropriate assistance, including training, from the Employment Service; in other words, the concept would be that the jobseeker's agreement is a joint agreement. That is what an agreement is. One side has advantages and responsibilities; the other side has advantages and responsibilities; and there are obligations on both sides. In Amendment No. 72 we try to spell out what a balanced jobseeker's agreement might contain.

Amendment No. 74 has been grouped with the other amendments, and I saw no particular reason to take it out. But it is somewhat different because it deletes that part of the jobseeker's agreement, now subsection (2), which we are told bans any access to private law as a remedy. I have never understood why the Government want it to be so clear that the worker has no appeal against any part of the jobseeker's agreement, however wrongly it may be constituted from his point of view, and why there should be a subsection which rules out any access to external redress. So we propose to delete that part so that the Minister can tell us why it was put in in the first place.

Amendment No. 76 specifies how the terms of the jobseeker's agreement should assist the employment of the worker and only assist the employment of the worker, which is what the jobseeker's agreement is supposed to be about. It is supposed to be an institution to assist the employee. Either side can be allowed to propose terms and changes in the agreement. Once again in Amendment No. 76 we are trying to specify the kind of jobseeker's agreement which would be a truly joint agreement.

In Amendment No. 82 we add to subsection (6) an obligation—in some ways this is the most significant amendment—to find the worker employment which is appropriate to his age, skills, training or professional attainment. In other words, in the jobseeker's agreement there should be something that is reciprocal and does not merely say that the would-be employee has to be active and available, but that certain minimal, but important, responsibilities lie also with the Employment Service.

One might ask why we need such a transformation in the jobseeker's agreement. The answer comes from the evidence, much of it from the Government themselves, of the way the existing system is working; of the defects of the present jobplan system; of the remarkable evidence in the 1993 survey of the Employment Service when over 3,000 users were interviewed on how the present system works. Of those 3,000, 25 per cent, said they had never received any back-to-work plan; 50 per cent, said that they felt the existing back-to-work plan was useless; and 70 per cent, said that they thought that it was irrelevant.

We are saying that the objective way in which the Employment Service is working suggests that this is the last time one should seek to impose through the jobseeker's agreement a more coercive and bureaucratic system in which one forces people into a position in which they will become increasingly alienated from the operation of the Employment Service.

The Government's central problem is that getting jobs is getting more difficult. It has been getting more difficult throughout the recession and it is still extremely difficult. It is very difficult in particular for male workers and semi-skilled and unskilled workers. There are few full-time jobs of the kind they wish to take. If the Government were logical and humane, far from making more difficult the conditions under which one obtains unemployment benefit they would be making them easier. They would be saying, "However active and available these people are, we do not expect them to get jobs because we have to accept the fact that there aren't many jobs".

Of course, the Government cannot accept that because, if they did, people might ask, for example, "Why aren't you doing what as a Government you did in the 1980s, when through the job creation programme you took half a million people off the unemployment register?". That was a positive reaction to the previous recession but this time we do not have that reaction. We have the pretence that the reason why we have the long-term unemployed is that they are not sufficiently active and available and that they are not working hard enough.

We are saying that the contrary is the case; that if one wanted to bring the Employment Service up to date one would not impose a new form of coercion but would try to embody a joint agreement. That is what the four amendments seek to do. I beg to move.

Lord Inglewood

As I explained on Second Reading, the agreement will set out what the jobseeker has agreed to do to meet the availability for work and actively seeking employment conditions of JSA, which will be set out in regulations made under Clause 6 and approved by Parliament. Dealing quickly with one of the points in these amendments, both the jobseeker and the employment officer will be able to propose terms. Moreover, if they cannot reach agreement on the terms, either will be able to refer the proposals to the independent adjudication officer and then on through a defined series of appeals if appropriate. They will determine whether or not they will allow the jobseeker to meet the availability and actively seeking employment conditions, and whether it is reasonable to expect the jobseeker to comply with them. That is hardly a one-sided arrangement.

The jobseeker's agreement is at the heart of JSA. It is the key to ensuring that jobseekers receive individual help back to work. But it is clear from these amendments that, as the noble Lord concedes, the Opposition want something very different. They want to use the agreement as a means of placing specific, perhaps almost contractual, responsibilities on the employment officer. Certainly, the agreement will have attached information on the help that the Employment Service, as a whole, offers jobseekers in their efforts to find work. And the jobseeker, subject to eligibility rules and availability, will have access to the full range of Government help to get him back to work. Contrary to the comments of the noble Lord, Lord McCarthy, that is far from negligible, anticipating the order of 1.5 million opportunities for unemployed people next year. But it cannot be right that the individual employment officer should be bound to provide specific help. The agreement will not stipulate in advance in precise detail what help will be offered to individual jobseekers at particular points in their claim. The amendments are clearly intended to undermine the purpose of the agreement and we believe that they should be rejected.

Lord McCarthy

I did not expect anything else, especially at this time of night. I wish to make two points. First, of course we expect the agreement to be contractual. That is what an agreement is. One of the most annoying aspects is that the Government use a word of which I am very fond; that is, "agreement". It should be called "the jobseeker's imposition". It is not an agreement at all; it is being imposed upon people and they have no response.

Secondly and finally, we are not saying that the contractual obligations should be the personal responsibility of the employment officer; of course not. We are seeking to make them the responsibility of the Government. But you cannot make this Government responsible for anything. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Earl Russell had given notice of his intention to move Amendment No. 73:

Page 6, line 11, at end insert: ("() A person shall not impose a condition upon a jobseeker, under this Act, if that person has a direct financial interest in that condition not being, or being, fulfilled.").

The noble Earl said:

Before I do anything with Amendment No. 73, may I ask what decisions have been reached about our future business for the rest of the evening?

Lord Mackay of Ardbrecknish

All Members of the Committee will know that we are making slow progress. Equally, Members of the Committee know that there is a lot of important business to be dealt with on Thursday in relation to the Bill. If we could make some further progress this evening, that would ease the problems which may arise on Thursday. I hope that we can make progress this evening, before we eventually draw stumps. Speaking for myself and in particular for my noble friend Lord Inglewood, who is to deal with the next amendments, we shall try to keep our remarks as brief as we can, consistent with answering the points made. If we all try to do that, we should make progress before it gets too late, and that would relieve us of difficulties on Thursday, when there are important issues to be discussed.

Earl Russell

Is close of play being defined in terms of amendments to be reached or in terms of an hour for drawing stumps?

Lord Mackay of Ardbrecknish

That is almost like one of the amendments to the Bill. May I tell the noble Earl that it will be defined in regulations? It is not in my hands entirely but it would be extremely useful if we could reach the end of Clause 8. That seems to me to be a compromise between the point which we hoped to reach and where we are at this moment.

Earl Russell

Amendment No. 73 not moved.

[Amendment No. 73 not moved.]

[Amendments Nos. 73A to 76 not moved.]

Earl Russell moved Amendment No. 77:

Page 6, line 18, leave out ("in the officer's opinion").

The noble Earl said: This amendment proposes simply to delete the words "in the officer's opinion". I shall not explain again why I want to do that, because the Committee knows it well enough. But I should like to hear the Minister's reply. I beg to move.

Lord Inglewood

I am grateful to the noble Earl, Lord Russell, for his explanation of his concerns about the role of the employment officer in the drawing up of jobseeker's agreements. I believe, however, that they are misplaced. I should like to take the opportunity to explain our proposals in some detail. I hope thereby to reassure the noble Earl that his amendment is unnecessary.

When someone makes a claim for JSA, he will be given an interview with a trained employment officer. Together, they will seek to draw up a jobseeker's agreement which will give the jobseeker his best prospects of getting back to work. We expect that in most cases the jobseeker and the employment officer will quickly reach agreement. But, in cases where they cannot, the employment officer will not have the power to decide that the jobseeker's proposals are unsatisfactory. I make it quite clear that that will be a matter for the independent adjudication officer, not the employment officer.

If, in the employment officer's opinion, the jobseeker's proposals would not allow him to satisfy the availability for work or actively seeking employment conditions set out in legislation, he must refer the case forthwith to the adjudication officer. If the adjudication officer determines in the jobseeker's favour, that will decide the matter. The employment officer will enter into an agreement on the terms proposed by the jobseeker.

I fear that the noble Earl may have been misled by the use of the word "opinion" here. It does not mean that the employment officer can simply take his own view on the merits of the case. The position is the opposite of that. If, in his view, what is proposed by the claimant would not meet the availability and actively seeking employment conditions, he must pass the matter to the independent adjudication officer for a decision. I hope that that reassures the noble Earl.

Earl Russell

I know perfectly well that the Government refer to two sorts of amendment only: the unnecessary and the wrecking. I am not at all sure whether I am pleased that the present amendment is considered unnecessary rather than wrecking. I really do not see that the employment officer is in a good position to form a view. However, as I have not moved Amendment No. 73, I am not in a position to explain one of the reasons involved. Similarly, I shall not take Members of the Committee into debates on hardship payments yet again. The Minister knows my views and he can, therefore, assume that they are what they are. I believe that he understands them well enough. The Minister's response is totally unsatisfactory. But, at this time of night, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 78 to 84 not moved.]

The Chairman of Committees (Lord Boston of Faversham)

I should point out to the Committee that if Amendment No. 85 is agreed to I cannot call Amendments Nos. 86 to 89 inclusive.

Earl Russell moved Amendment No. 85:

Page 6, tine 26, leave out subsection (7).

The noble Earl said: The above is another delegated-powers amendment. The Government say in their memo that subsection (7) contains a power for regulations to prescribe the shortest and longest periods that a claimant may restrict his availability in respect of jobsearch during the early days of his claim, The Government wish to retain the flexibility to change that period as "circumstances require". Why do they wish to change that period? Do they want to make it longer or shorter? What sort of circumstances would, in the Government's opinion, require them to do so? Further, why is the department entitled to make law without Parliament being able to give its consent? I know that I have asked that question before, but it keeps on recurring and I have not yet heard an answer that satisfies me. I beg to move.

Lord Ingle wood

We will be carrying forward the current provision in which for up to 13 weeks from the beginning of a claim, jobseekers may restrict their availability and jobsearch to their usual occupation, if they have one, and to their usual level of pay. The period is to be specified in the jobseeker's agreement. The period should also correspond with the "permitted period" provided for in Clause 17 during which a claimant may refuse job offers outside his usual occupation without sanction. The length of the permitted period is determined by the adjudication officer in accordance with regulations.

If the correspondence between the provisions in the jobseeker's agreement and the Clause 17 period is to be maintained, it is clearly important that regulations under Clause 7 should specify the shortest and longest periods in the same way as regulations will do under Clause 17; the two must not come out of step, otherwise the determination of a permitted period might become unworkable. That is our concern.

Nevertheless, we accept that the correspondence between the provisions in Clause 7 and Clause 17 is not perfect. We are, therefore, considering returning to the provision at Report stage with an amendment which clarifies the relationship as regards the availability condition, the jobseeker's agreement and the sanctions provisions. I hope that that will satisfy the noble Earl.

Earl Russell

I thank the Minister for his response. Clearly I must wait to see his amendment which I shall read with care. I cannot say that I am in the least satisfied with what I have been told. For example, I have not been told under what circumstances the Government might want to vary the period or why; or, indeed, whether it is to be longer or shorter. Above all, I am listening over and over again to a department which believes that it can make the law without reference to Parliament.

Reference to Parliament under a regulation procedure is purely nugatory. We look at it; we speak. Like the Social Security Advisory Committee, we express our opinions and we have no more effect than that committee has when it moves that regulations be not proceeded with. I really will ask the Government to cease talking about parliamentary sovereignty until they are capable of practising it. But nevertheless, at this time of night, I shall beg leave to withdraw my amendment, but we will hear more. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86 to 88 not moved.]

Lord Swinfen moved Amendment No. 89:

Page 6, line 27, at end insert ("which, in the case of a disabled person who, within the 8 weeks prior to his claim for jobseeker's allowance has been determined capable of all work, shall be a period of not less than 13 weeks").

The noble Lord said: This amendment would enable people who come off incapacity benefit to sign on for jobseeker's allowance to still have a 13-week permitted period within which to seek work in their usual occupation. At least 150,000 long-term sick and disabled people are estimated to come off incapacity benefits and sign on for jobseeker's allowance in its first year. People who are likely to come off benefit are those who fail the new all work test of incapacity normally applied after 28 weeks of being incapable of work. Notionally this test, which will assess the claimant's ability to undertake certain functions such as reaching, walking etc., is supposed to show if someone is capable of any work. Those who fail the test and who will therefore not be entitled to incapacity benefits will be assumed to be capable of all work, even though they may score only just below the threshold level of 15 for incapacity benefit. Someone who scores less than that figure will not be eligible for incapacity benefit but could have a considerable disability; in other words, for example a person who had had an involuntary episode of lost or altered consciousness at least twice within the past six months before the claim would score only some 12 points.

Thousands of people with substantial disabilities will be expected to sign on for jobseeker's allowance. Normally unemployed people have a permitted period of 13 weeks within which to restrict their availability and job search activities to their usual occupation, the conditions applying to that occupation and the appropriate level of remuneration in that occupation. Others without a usual occupation have to widen their job search from the start of their claim. Paragraph 4.7 of the jobseeker' s White Paper confirms that the intention is to carry forward these provisions on to jobseeker's allowance. This amendment seeks to ensure that disabled people coming off incapacity benefit who are notionally considered to be capable of all work have a similar period of grace within which to consider searching for work within their previous occupation without having to be available for any work from the beginning of their claim. I beg to move.

Lord Ingle wood

As we made clear in our proposals for JSA in the White Paper, we will be carrying forward the current provision of the permitted period in which jobseekers may restrict their availability and job search to their usual occupation, if they have one, and to their usual level of pay for up to 13 weeks from the beginning of a claim. Our experience since 1989, when the permitted period was introduced, is that a maximum of 13 weeks is a reasonable period during which to restrict job search in this way. After 13 weeks, jobseekers should be prepared to widen their horizons rather than hold out for a specific job.

The amendment of my noble friend Lord Swinfen would provide that disabled people who have been found capable of work in the test for incapacity benefit in the eight weeks before claiming JSA could not be given a permitted period of less than 13 weeks. I do not think this amendment is necessary, and indeed for some disabled people it may not be desirable. To take up my noble friend's point, we have made it very clear throughout our deliberations over the proposals for the availability rules for JSA that people with disabilities will be able to restrict their availability in line with their mental or physical condition. That may mean that some disabled people with relatively severe problems, but who are still capable of some work, will be able to place substantial restrictions on their availability. But, if they are to achieve the goal of getting back to work which they share with other non-disabled jobseekers, they should make themselves available for as many jobs as their disability allows. We agree that in the first period of unemployment the best prospects of returning to work may lie in the area of the person's usual occupation. But after a maximum of 13 weeks they must be prepared to look more widely. People with disabilities should be treated no differently in this respect than able-bodied jobseekers, nor would most expect to be.

Lord Swinfen

I am not sure that I agree with what my noble friend said, but I shall not pursue the matter further at this time of night. I shall consider what he said and reserve my right to return to the matter at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 90 not moved.]

11 p.m.

The Chairman of Committees

If Amendment No. 91 is agreed to I cannot call Amendments Nos. 92 to 95 inclusive.

Earl Russell moved Amendment No. 91:

Page 6, line 28, leave out subsections (8) and (9).

The noble Earl said: I am afraid that even at this time of night this amendment has a high priority. It proposes to delete subsections (8) and (9), which provide for the making of regulations for the referral of cases to the adjudication officer. Of most concern is subsection (9) (b) which states that regulations may provide, criteria to which the adjudication officer is to have regard".

Throughout the course of the Bill we have been reassured about its potentially arbitrary implications by endless reiteration of the adjudication officer. But everything depends on which law the adjudication officer is to base his decision. We are now told that the adjudication officer is to "have regard" to criteria to be laid down in regulations.

That reminds me of the favourite example of the noble and learned Lord, Lord Simon of Glaisdale—the company involved in the South Sea Bubble, which took in capital and sold shares for a purpose "hereafter to be disclosed". The adjudication officer will make his judgments under law hereafter to be disclosed. I do not see how a self-respecting Parliament can approve that.

I also wonder why the Government have chosen words as mild as "have regard to". We have had a number of debates in this Chamber about the significance of the words "have regard to". I am not at all convinced that under those words the adjudication officer will be bound to keep any systematic law. If not, he is a petty tyrant. I only hope that he encounters some particularly pertinacious village Hampden before he is through.

We are told in the Government's memorandum that under this clause it is the intention of the Government that the powers created in this and the subsequent subsection constitute a substantial and systematic legislative framework. It is a substantial and legislative framework to which we have no opportunity to consent. What sort of legislation is that? We passed a humble Address today congratulating ourselves on our parliamentary government. I begin to think of Parkinson's law that when the history of an institution comes to be written it is on the edge of disappearance. What sort of parliamentary government is this? It does not seem to make very much sense.

In the Government's memorandum we are told that all the powers in this subsection relate to the process by which it will be conducted. I really cannot see that that is anything other than a misleading statement. Creating the criteria by which judgment is to be made is a good deal more far-reaching than simply organising the details of the process. If these criteria are so vague and uncertain as the words "have regard to" might imply, I cannot help wondering whether we shall have a great deal more in the way of judicial reviews than either public funds or the interests of claimants, or indeed the occupation of a great deal of time, might explain.

In effect, these criteria are the principal point of the whole Bill, the grounds on which people are to be disentitled to benefit. If we cannot consent to that I do not see what we are here for. We are spending a good deal of our night involved in a good deal of hard work, and if we arc to be deprived of our basic right to say "Content" or "Not Content" we are in pretty much of a mess.

I have had no answer all evening to any of the questions on how we can give or withhold our consent. Sooner or later, even at this time of night, I may start dividing the Committee because I have not received that answer. We really need an answer. I beg to move.

Lord Swinfen

I should like to assure my noble friend that the noble Earl, Lord Russell, is not the only person in this Chamber who is concerned with the very considerable amount of power to make regulations in the Bill. It may be a sign of an extremely idly and badly drafted Bill that it is written in such a way that it needs so many regulations; or a sign that the Bill had been written so quickly that insufficient thought had been given to it.

I am becoming seriously concerned, as is the noble Earl, about the amount of secondary legislation that we are being asked to agree on the nod—very often without the proper opportunity to discuss it, and certainly without the opportunity to amend it. There is, too, a convention that we should not even divide on regulations which have been passed in another place. My noble friends must give this matter very serious thought before we come to the next stage of the Bill.

Lord Inglewood

Perhaps I may begin with a point made by my noble friend Lord Swinfen. It was the concluding point of the noble Earl, Lord Russell. To some extent I shall go over matters that we discussed at the beginning of our debates.

Previous legislation in this area of the law is in many ways in its structure similar to that which we propose in the Bill. After all, the Bill takes over and replaces a significant element of existing social security legislation. One of the characteristics of that form of legislation—it has not occurred suddenly but over the years—is that it contains a considerable amount of secondary legislation in order to provide flexibility in the system. As we discussed earlier, one of the problems we face this evening is that we are discussing the matter without the report of the scrutiny committee.

My noble friend Lord Renton and the noble Lord, Lord Shepherd, made a number of important contributions to the debate which included reference to the way in which noble Lords deal with these matters, the conventions which apply in this Chamber when dealing with secondary legislation and how they vary from those which apply in another place.

We have specified the particular details of how we intend to deal with those matters in Clause 33 of the Bill to which we shall come later. During the earlier debate, I said that we would consider the matter carefully bearing in mind the comments made at the time. I hope at this late stage that that at least reiterates and explains the general position which the Government take.

There are two aspects regarding the noble Earl's amendment. The first is what I might describe as the smaller aspect. It is a point that the noble Earl made with reference to Clause 7(9) (b), which provides that regulations made under Clause 7(8) may in particular set out the criteria to which the adjudication officer is to have regard in making a determination on the proposed jobseeker's agreement. The criteria will be whether the terms of the proposed agreement are such that if the jobseeker complied with them, he would satisfy the availability and actively seeking employment conditions of JSA, and whether it is reasonable to expect him to have to comply with them.

This subsection will not go beyond that. It cannot and will not be used to add any extra conditions. It is simply them to ensure that the intention of the primary legislation is fully reflected in the drafting of the regulations.

Them is a wider point which is that the amendment seeks to remove Clause 7(8) which would take away the basic right of access to adjudication on the agreement. That is something which we are committed to providing in regulations under Clause 7(8). We believe that that would be a most serious and, I imagine, unforeseen consequence of the amendment. It also seeks to remove Clause 7(9) which makes clear that the adjudication procedure will, among other things, include the right of either party to instigate a referral to the adjudication officer and the right of the adjudication officer to backdate agreements if he considers that that would be appropriate. We do not believe that it would be sensible to remove the provisions.

Furthermore, the intention behind Clause 7(9) (d) is that the adjudication officer should be able to make constructive suggestions as to what is needed to make the proposed agreement satisfactory. That will greatly speed up the process of getting a satisfactory agreement.

The alternative which the amendment appears intending to bring about will be for the adjudication officer simply to tell the jobseeker that his proposals are not satisfactory, without offering any suggestions as to how they could be made more satisfactory.

We do not think that the amendment would do anything for the jobseeker, and we believe it would remove his right to independent adjudication of the agreement by dismantling the adjudication procedure that has been specially made for dealing with jobseeker's agreements. We cannot believe that to be in anyone's interests, let alone the jobseeker's.

Earl Russell

I thank the Minister for that reply. I take his point about dismantling the adjudication procedure. That was not my intention. I had assumed that if I removed the regulation-making power, the Government might spell out what their intentions were in primary legislation. I would then have been prepared to be as co-operative as I reasonably could about it.

I take the Minister's point that it did not happen suddenly. It is true that the price of liberty is eternal vigilance, and maybe in the past we have not been sufficiently vigilant. I accept that the basic criteria remain availability for work and actively seeking work. I shall not repeat all I said on the first amendment—God forbid! But the point keeps arising that we are dealing with the Government attempting to spell out in greater and greater detail what should be taken as evidence for those two criteria. It remains my conviction that the Government have gone down a deeply mistaken drafting road, and they have done grave damage to the Bill in the process.

Nevertheless, I can understand some of the arguments the Minister makes. Were Ito be certain that I would be able to vote on those criteria if I did not approve of them, then I would be prepared to reach a compromise on the rest of the argument. I was particularly interested in what the Minister said about the speeches of the noble Lords, Lord Renton and Lord Shepherd. I saw a faint glimmer of hope in those remarks, although I would not presume to misinterpret the Minister by taking it as anything more than that. I also agree entirely with what the Minister said—that it would be improper to reach any final decision on the matter before we received the report of the Delegated Powers Scrutiny Committee. For that reason, I beg to withdraw my amendment.

Amendment, by leave, withdrawn.

11.15 p.m.

Earl Russell moved Amendment No. 92:

Page 6, line 36, at end insert: ("No adjudication officer shall give a judgement creating a new condition for eligibility which has not been approved by Act of Parliament.").

The noble Earl said: The purport of the amendment is to ensure that regulations shall not create any new condition of eligibility for benefit. It is my long-standing concern that people should not he disentitled to benefit by the force of regulation.

In replying at Second Reading, the noble Lord, Lord Inglewood, said something about this matter which I think is slightly encouraging. It is buried somewhere in the papers I have here; I am sure that the noble Lord remembers it as well as I do. The question is not only whether he is creating a new formal condition, but also whether he is taking the business of spelling out what shall he evidence of the two basic conditions so far down the road that it amounts to a new condition.

This matter is a little like the famous problem of Sir John Suckling's silk stockings, which had been damed so often that none of the original material survived. The question is: were they or were they not a new pair of stockings? Similarly, if we have more and more expansion of what shall be taken as evidence of actively seeking employment, we shall have to ask where in effect a new condition has been created. So, when I ask the Minister whether he can repeat the undertaking that there will be no new condition of eligibility for benefit under regulations, he can take it to apply to new conditions built up by elaborating upon and expanding the old as well as to completely new legislation. Both of those are serious questions and the Committee deserves an answer. I beg to move.

Lord Inglewood

The agreement is the key to ensuring that each jobseeker is treated as an individual and receives individual help. The agreement will set out what that jobseeker has agreed to do to meet the availability for work and actively seeking employment conditions. It will provide a focus for discussing his or her personal plan to find work.

As I explained at Second Reading, it will not mean individual terms and conditions for receipt of JSA. Clause 7 of the Bill makes it clear that the agreement will set out what the jobseeker will do to meet the availability for work and actively seeking employment conditions of JSA. If the employment officer and the jobseeker reach agreement on that, that is well and good. But if the jobseeker is not satisfied with the terms being proposed to him for his agreement, regulations will enable him to refer the proposal to the adjudication officer.

As I understand it, the point that the noble Earl is anxious to establish is that the matters that may be contained in the jobseeker's agreement under this heading will not in any way go further than the criteria laid down in Clause 1(2) (a) and (c) of the Bill. I can give an undertaking that the subject matter of the agreement cannot go beyond the wider terms of reference contained in the legislation in respect of Clause 1(2) (a) and (b) so far as the requirements to satisfy being available for employment and being actively seeking employment are concerned. I hope that my remarks will satisfy the noble Earl and provide a proper reply to the question that he asked.

Earl Russell

I thank the Minister for that reply. It contains an element of encouragement. But we still have to pursue further the question of how far the evidence for the two basic tests may constitute a new test.

Let us take the example in Clause 6(3) that we debated this afternoon relating to behaviour and appearance. If I follow the line in the Minister's mind, I believe he would tell us that that did not constitute a new condition because it was simply a new way of looking at the basic condition of actively seeking employment. If he thinks along that particular tram line, then it is rather easier for him to give this assurance in complete sincerity than it is for me to accept it. As I look at that from outside, from my point of view it looks remarkably like a new condition for benefit. If I take that as a new condition for benefit, along that line of defining the question, would the Minister still be able to assure me that in the interpretation no new conditions for benefit will be created? Before he answers, I should say that I ask this question with the case of Pepper v. Hart in mind.

Lord Inglewood

I am most grateful to the noble Earl for his further questioning, which quite rightly is defining the position which I am taking here at the Dispatch Box. I am fully conscious of the doctrine in Pepper v. Hart and I am very anxious to have that properly in mind in the reply that I give. The difficulty that I have in responding to the noble Earl's question is the way in which he described my mind as working - if my mind can be worthy of such a name; let us say the way in which whatever it is between my ears works. On that basis he accepts that the reply that I gave to him is entirely consistent with the proposition that I enunciated earlier.

In responding to the noble Earl's question, the problem I have is that, if he looks at the matter in the way in which he is looking at the matter and if he reaches the conclusion on the facts that he reached, then I entirely accept the point that he is making. If, on that basis, I accept the point that he is making, I cannot then from his perspective, it seems to me, absolutely, finally and unequivocally state the proposition in the way in which I was looking at it, which would give him the same answer as the one that I reached. I hope that that will be at least of some help to the noble Earl.

Earl Russell

I am extremely grateful for that very careful and thoughtful reply. We have two different and sincere ways of looking at the question. I suspect that in the end it will have to be resolved in the courts and that resolution may he very expensive. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

Lord Inglewood moved Amendment No. 94:

Page 7, line 13, leave out paragraph (i).

The noble Lord said: The jobseeker's agreement is an innovation and the adjudication arrangements made in respect of it should reflect that. That is why the Bill provides a tailor-made adjudication procedure.

Perhaps if I speak to Amendments Nos. 94, 96, 97, 98 and 99 together, the whole thing will gel. Amendments Nos. 94 and 96 concern review of an adjudication officer's determination or direction by a different adjudication officer. Ministers have made clear in another place that it is our intention that either the jobseeker or the employment officer should have the right to such a review if they arc dissatisfied with the first adjudication officer's determination or direction. We believe that this is an important stage of the adjudication procedure for jobseeker's agreements. The effect of the amendments will be that any regulations made under subsection (8) will be required to make provision for such a review.

It has always been our intention that if the jobseeker is still dissatisfied after the review, he should have the right of appeal to the social security appeal tribunal. The purpose of Amendments Nos. 97 and 98 is to make clear that claimants must pursue their case in the right order; that is. by first seeking a review and only then by appeal to the SSAT.

These amendments will introduce additional clarity into the Bill and they reflect a wholly benign intent. I commend them to the Committee on that basis.

On Question, amendment agreed to.

[Amendment No. 95 not moved.]

Lord Inglewood moved Amendments Nos. 96 to 99:

Page 7, line 17, at end insert: ("() for the review of the adjudication officer's determination or any direction given by him, by a different adjudication officer, on the application of the claimant or of an employment officer;").

Page 7, line 19, after ("determination") insert ("on a review").

Page 7, line 20, at end insert ("on a review").

Page 7, line 21, at end insert: ("(bb) in relation to a social security appeal tribunal determining such an appeal, similar to any provision made by virtue of subsection (9) (d) or (e);").

The noble Lord said: I spoke to these amendments with the previous one. I beg to move.

On Question, amendments agreed to.

[Amendment No. 100 not moved.]

Clause 7, as amended, agreed to.

[Amendments Nos. 101 and 102 not moved.]

Clause 8 [Variation of jobseeker's agreement]:

Earl Russell moved Amendment No. 103:

Page 8, line 3, leave out subsection (1).

The noble Earl said: The provision that this amendment proposes to leave out provides that, A jobseeker's agreement may be varied…by agreement".

I have no objection to "agreement". My reason for moving the amendment, is that I am not certain whether this is repugnant to Section 1(2) (b), which says that it is a condition of the jobseeker's allowance that the claimant, has entered into a jobseeker's agreement which remains in force". No jobseeker's agreement; no benefit.

I am questioning whether "agreement", as properly understood, can ever be achieved, or whether it is achieved by duress. In fact, are the words repugnant to the rest of the Bill? Is the Bill, as it used to be put, felo de se? I beg to move.

Lord Inglewood

I shall confine myself to endeavouring to reply to the noble Earl's question. Under Clause 1(2) (b) a jobseeker's agreement must be in force for a claimant to be entitled to a jobseeker's allowance. This provision is not inconsistent with the rest of the Bill because these procedures only take effect where there is an agreement already in force. We are therefore talking about an existing agreement being varied, rather than an agreement coming to an end and another agreement being substituted for it. I hope that the noble Earl will agree that that meets his point.

Earl Russell

It is a serious attempt to meet my point. I am not altogether sure that it does. An agreement which is reached under duress cannot be validated by subsequent amendment, even if the duress continues. I am in a real difficulty in this regard and we shall return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 104:

Page 8, line 4, at end insert: ("() A proposal to vary a jobseeker's agreement may be made by a claimant at any time and within 7 days of making such a proposal he shall be granted an interview with an employment officer to discuss the variation.").

The noble Lord said: In moving Amendment No. 104, I shall speak also to Amendment No. 106. The idea behind Amendment No. 104 is that a jobseeker's agreement should be something which can be revised by the claimant; that in fact the claimant can revise it at any time and, within seven days of his making such a proposal, he should be granted an interview with an employment officer to discuss the variation. Amendment No. 106 says that the matter should be referred "forthwith" to an adjudication officer.

At the moment the clause only provides for future regulations and those future regulations may allow for a variation—we do not know because we have not seen them. But the clear balance of power, as we have been arguing all evening, lies with the employment officer rather than with the applicant for benefit or for employment. We want to strengthen the hand of the applicant. We are saying that an applicant who wants to change the agreement should be able to obtain an interview, and if there is no agreement from the employment officer then he should be able to obtain adjudication within seven days.

We have had many examples of the kind of advantages which may result for an applicant if this kind of flexibility can be built into the agreement. For example, a claimant may originally put into the agreement that he will attend the Jobcentre three times a week. Subsequently he may conclude that it is of more use, rather than going to a Jobcentre on those days, to go to a library and apply to advertisements through newspapers. In that case he may ask for a variation in the jobseeker's agreement. Or he may want to change his options with regard to training and employment programmes. For example, when a claimant signs on he may put into the agreement that he will go to a job club. But after five months he may decide that he does not want to do that; he would rather go on to a part-time education course which he thinks may be more helpful in enabling him to return to work. If the two amendments were carried the claimant would have an opportunity to ask for a change in the agreement and within seven days to have an interview. I beg to move.

11.30 p.m.

Lord Inglewood

Amendment No. 104 seeks to bring the detailed operation of the variation of agreements into the Bill. We do not believe that this is the right place for such detail.

Jobseekers will be able to vary their agreements at any time. It is not envisaged that variations will be necessary between advisory interviews. A jobseeker will, however, be able to seek a variation if it is appropriate. If, for example, a lorry driver who has been looking for general driving work loses his licence he would need to amend his agreement to reflect the change in his jobsearch plans.

The jobseeker will be granted an appointment as soon as possible. In most cases that will be in less than seven days. We do not, however, believe it will be sensible to use primary legislation in a way that could easily impede the operational flexibility of the Employment Service. For example, it would be most unwelcome if the Employment Service had to see someone wanting to vary his agreement in preference to someone who had not yet made a claim. The jobseeker who wants to vary his agreement will remain eligible for JSA provided he continues to meet the availability and actively seeking conditions, and his agreement is still in force. The agreement will be a flexible document. It does not impose a straitjacket on the jobseeker's search for work. This amendment perhaps assumes a greater rigidity than will be the case. That is why we do not support it.

Turning to Amendment No. 106, the adjudication procedure for proposed jobseeker's agreements and variations to agreements is set out in Clauses 7 and 8 of the Bill. Following views expressed by Opposition Members in another place, the Bill was amended by government amendment to Clause 7 to enable regulations to provide that referrals of proposed agreements to the adjudication officer must be made "forthwith". This brought the procedure into line with Section 20 of the Administration Act. There had never been any question that referrals of agreements should be made less speedily than other referrals. The amendment simply clarified that. We are therefore prepared to accept this amendment. I am most grateful to the noble Lord for proposing it.

Lord McCarthy

It just shows that one has to keep going! I am glad that the Government intend to accept Amendment No. 106. In that case I do not feel particularly annoyed that they do not intend to accept Amendment No. 104. It is typical of the Government that they say that these variations can be made at any time. They say "if appropriate" and "as soon as possible". It is also rather typical that the example given by the noble Lord of someone who can change his jobseeker's agreement is where he has lost his licence. Some miserable thing has to happen. Nevertheless, something happy has happened, and I am very glad that the Government have accepted the second amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees

I should tell the Committee that if Amendment No. 105 is agreed to I cannot call Amendments Nos. 106 to 109.

[Amendment No. 105 not moved.]

Lord McCarthy moved Amendment No. 106:

Page 8, line 15, after ("referred") insert ("forthwith").

On Question, amendment agreed to.

Lord Inglewood moved Amendment No. 107:

Page 8, line 34. after ("shall") insert ("—(a)").

The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 108 and 109. These amendments parallel Amendment No. 99, which your Lordships have agreed in respect of the powers of the Social Security Appeal Tribunal where the adjudication officer is given powers by regulations to be made under Clause 7. In the case of these amendments they apply to the variation of an agreement. It is only right that the arrangements for varying an agreement are the same as those for drawing up the original agreement.

I should perhaps start by saying that the structure of Clause 8 is such that the amendments your Lordships have also agreed in relation to review of an agreement—Amendments Nos. 96 to 98—will apply automatically to issues arising in relation to the proposed variation of an agreement. Subsection (7) provides that. As with an original agreement, the jobseeker who is dissatisfied with a variation to his agreement will have the right to a review by a second adjudication officer and then, if he is still dissatisfied, the right of appeal to the Social Security Appeal Tribunal. The amendment makes clear that the Social Security Appeal Tribunal will have the same powers as the adjudication officer to direct the terms on which the claimant and the employment officer are to enter into an agreement to vary the jobseeker's agreement. It also enables the tribunal to make such direction as it considers appropriate to backdate the coming into effect of an agreement. Finally, the tribunal will also have the same powers to terminate an agreement if a claimant fails to comply with a direction given by it within a prescribed period. I beg to move.

On Question, amendment agreed to.

Lord Inglewood moved Amendments Nos. 108 and 109:

Page 8, line 35, leave out ("which shall be").

Page 8, line 36, at end insert ("other than by virtue of paragraph (bb); (b) make provision, in relation to a social security appeal tribunal determining an appeal against the adjudication officer's determination, or against any direction given by him, similar to any provision made by virtue of subsection (6)(b) or (c) or section 7(9) (e);").

On Question, amendments agreed to.

[Amendment No. 110 not moved.]

Clause 8, as amended, agreed to.

Lord Mackay of Ardbrecknish

I beg to move that the House be resumed.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at twenty-four minutes before midnight.