§ 4.40 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 resolve itself into Committee (on Recommitment) in respect of Clause 6 of the Bill.
§ Moved, That the House do now resolve itself into Committee (on Recommitment) in respect of Clause 6 of the Bill.—(Lord Mackay of Ardbrecknish.)
§ On Question, Motion agreed to.
§ House in Committee (on Recommitment) accordingly.
§ [THE VISCOUNT ST. DAVIDS in the Chair.]196
§ Clause 6 [Availability for, and actively seeking, employment]:
§ Lord Richard moved Amendment No. 1:
Page 5, line 11, at beginning insert:
("( ) No regulations made under this section shall be made unless a draft of the statutory instrument containing the regulations has been laid before Parliament and approved by a resolution of each House, whether or not those regulations are made before or after the date on which jobseeker's allowances first become payable.").
§ The noble Lord said: This amendment is grouped with Amendment No. 5. It is essentially the same point, whether one considers the original Clause 6 or the Clause 6 which is about to be moved by the noble Lord, Lord Mackay of Ardbrecknish. It is a simple amendment which I hope that I can move relatively simply. It may have some complicated results, but in essence the point I wish to make is simple.
§ Perhaps I may remind the Committee of the discussion that we had last week on the Motion to recommit Clause 6. The basis of the argument then was the report of the Delegated Powers Scrutiny Committee. I am delighted to see the chairman of that committee, the noble Lord, Lord Alexander of Weedon, in his place. In relation to Clauses 4 and 6 of the Bill, that committee felt that the procedures for dealing with regulations should be the affirmative procedures. It is perhaps important that we trace the argument to understand why the Delegated Powers Scrutiny Committee came to that conclusion and why I urge the Committee, too, to come to that conclusion.
The provisions for parliamentary control in the Bill are extraordinarily complex; they are almost Byzantine in their complexity. The Delegated Powers Scrutiny Committee analysed a difficult legislative passage in a few words. It stated:
There are five categories of parliamentary control, as set out [in the Bill]. The first three categories are normal: categories (4) and (5) go somewhat further than is usual in legislation of this kind".
To adopt an Americanism, "You can say that again".
The first three categories, the normal ones, are, first, delegated legislation subject to no parliamentary control, namely commencement orders and that sort of power; secondly, under some sections of the Bill subject to the negative procedure, and some subject to the affirmative procedure. The report continues with the fourth category:
Subject to affirmative procedure on first exercise and negative thereafter".
There is then an even more unusual category:
Subject to affirmative procedure if made before the date on which jobseeker's allowances first become payable, but to negative procedure if made thereafter".
§ As I understand it, that applies to all the other regulations in the Bill. The idea is that the jobseeker's allowance should first become payable in April of next year. Therefore if the regulation is made before April of next year, it is the affirmative procedure; if made after April it is the negative procedure. That seems both illogical, difficult to justify and somewhat burdensome.
§ Applying those provisions to the current Bill, the Delegated Powers Scrutiny Committee concluded in relation to Clauses 4 and 6 that the procedure should be the affirmative procedure. Again, I hope that the Committee will allow me merely to give the flavour of the Delegated Powers Scrutiny Committee's report on this.197
In relation to Clause 4 the further report states:
It is against the background of the views we have expressed above, and without prejudice to them, that we now review the specific provisions of the bill. Clause 4 allows the calculation of the amount of the jobseeker's allowance to be governed by delegated legislation. The Departments' memorandum states the provision follows current income-related legislation. In spite of the fact that it is precedented the Committee draws this provision to the attention of the House because the amount of the jobseeker's allowance will be fundamental to the operation of the statute".
It then states:
The House may wish to consider with care whether regulations under this Clause should not always be subject to the affirmative procedure regardless of when they are made".
§ That is as regards Clause 4. My amendment relates only to Clause 6 because it is only Clause 6 that has been recommitted.
In relation to Clause 6 the committee stated:
The House has already considered the possibility of restricting in some way the breadth of the powers to be exercised under Clause 6…If the House is satisfied that it is not desirable to amend the bill so as to limit the powers themselves"—
the House has not so decided because it has not amended the Bill as such—
we consider that the argument becomes stronger for improving Parliamentary control over the way in which those powers are exercised".
That is the crucial point. It is the basis of my submission to the Committee tonight.
The report continues:
In line with the views that we have expressed at paragraphs 5 and 7, we urge the House to consider most carefully whether, irrespective of whether Clause 6 remains in its current form"—
in other words, the clause as drafted, before the amendment to be moved by the noble Lord, Lord Mackay, is passed—
the level of parliamentary control provided for the exercise of the powers in that Clause is sufficient to ensure that the accumulation of changes does not result in an unacceptable level of uncertainty for those affected by the regulations. In particular, the House may wish to consider whether the affirmative procedure should not apply to any regulations changing the meaning of the terms 'available for' and 'actively seeking work', whenever those regulations are made"—
in other words, whether they are made before or after the Jobseekers Bill comes into force.
The fact of the matter is that either in the original Clause 6 as drafted or in the amended form to be proposed by the noble Lord there are too many provisions for regulations to be made. I do not wish to bore the Committee too much, but perhaps we may consider the proposed new, clarifying clause which the Government introduced when they recommitted the Bill. The amendment deals with the difficulties caused by the Delegated Powers Scrutiny Committee. What are the provisions? The proposed Clause 6 provides that,
Subsection (1) is subject to such provisions as may be made by regulations".
Subsection (3) states:
The following are examples of restrictions for which provision may be made by the regulations—(a) restrictions on the nature of the employment…(b) restrictions on the periods for which he is available; (c) restrictions on the terms or conditions of employment … (d) restrictions on the locality or localities within which he is available".
Subsection (4) states:
Regulations may prescribe circumstances in which, for the purposes of this Act, a person is or is not to be treated as available for employment".
Subsection (5) provides that:
Regulations under subsection (4) may, in particular, provide for a person who is available for employment—(a) only in his usual occupation, (b) only at a level of remuneration not lower than that which he is accustomed to receive",
or is to be treated as though he is available, and so on; I shall not bore the House. But a glance at the proposed amendment put forward by the Government tonight indicates that almost every subsection provides for regulations in relation to this part of the Bill.
§ My position is simple. It is this. The fact of the matter is that the meat of the Bill is contained in the regulations and not in the Bill itself. As the Delegated Powers Scrutiny Committee said, it is a skeleton or a framework Bill. In its wisdom or otherwise, the House decided not to amend the Bill in the way that we on this side of the Chamber suggested. However, in a situation in which the real substance of provisions which will affect the lives of people in this country who are subject to the Bill will be dealt with by regulation rather than by primary legislation, it is wrong that Parliament should not have a full opportunity to consider them. In our view, it would be wrong that matters of this importance should pass unremarked as a result of a framework Bill.
§ Perhaps I may make two more points. The tendency to legislate in this way is a temptation for all governments and from time to time they lean in that direction. It is much easier for them to legislate by regulation than in primary legislation and it is much easier to do it by the negative procedure than the affirmative. The regulations are scrutinised far less and observed far less, the Government can get away with far more and do not have to deal with difficult questions of interpretation or restive parliamentarians.
§ With regard to the Bill, the Government are not leaning, they are horizontal. In our submission, it is a point that would appeal to the Front Bench below the gangway on the Government's side, where the constitutionalists of the House tend to sit. It is time that we put some limitation on the Government's desire to avoid the proper examination of crucial parts of the legislation.
§ We have never hidden our view on the merits of the Bill. We regard it as a mean, nasty, rather vindictive piece of legislation which will make life more difficult for some of the most vulnerable sections of our society. However, that is not the point raised by the amendment. We believe that the Bill deserves greater, not less, scrutiny. Quite apart from one's view of the legislation, here there is a more fundamental constitutional point: how far are the Government entitled to go in denying such a Bill detailed parliamentary scrutiny? We believe that the least the Committee can do is to demand that the affirmative procedure be used for the regulations which are brought in under Clause 6, which are important and fundamental to the operation of the Bill and which are the meat of it. I beg to move.
§ Lord Mackay of Ardbrecknish
It might be for the benefit of the Committee if I intervene early in the debate in order to set out my reaction principally to the Delegated Powers Scrutiny Committee's report which was referred to by the noble Lord, Lord Richard. I welcome him to our deliberations on the Bill. Normally his noble friend Lady Hollis, myself and a few other season ticket holders spend 199 long nights in the Chamber, largely on our own. I wondered whether the noble Lord, Lord Richard, was anxious about that and had decided to do a bit of chaperoning this afternoon. I do not say whom he would chaperone!
When my noble friend the Lord Privy Seal introduced the Motion to recommit Clause 6 to the Committee, he said:the Government mean what we say when we say that we take seriously the reports of the Delegated Powers Scrutiny Committee."—[Official Report, 3/5/95; col. 1386.]The Lord Privy Seal emphasised that on a number of occasions throughout his two contributions on that day. Some noble Lords will not be surprised to hear me underline the point and say that I too take seriously the reports of the Delegated Powers Scrutiny Committee, especially since I can claim to be one of its founder members. I remember the deliberations we had on the various kinds of delegated powers. I received a short lesson on matters such as Henry VIII clauses which stay with me and occasionally seem to come back to haunt me in my new capacity.
Given that I sat on that committee until I was asked to join the Government, I found the work interesting and I take what the committee says and its recommendations and arguments very seriously indeed. Those noble Lords who had season tickets to proceedings on the Pensions Bill will realise that I took on board the main criticisms made of that Bill in regard to the negative and affirmative procedures.
Thus I fully understand the concerns and anxieties which go wider than merely the issue with which I started. They address questions of the balance to be struck between the role of the courts and that of the legislature in determining the conditions under which people are entitled to benefit. They address questions about how the terms of social security benefits can be expressed in law while remaining responsive to constantly changing labour markets and social provisions. They address questions about how your Lordships' House should maintain its vital role of scrutinising the nuts and bolts of social security rules.
Those questions deserve a full response from the Government. The Committee will have seen from the Marshalled List that the Government seek to respond to the Delegated Powers Scrutiny Committee's report by bringing forward extensive amendments to the Bill, in particular to Clause 6 but also to Clauses 7 and 8, and to other provisions in the Bill. But before I come to the specific terms of the amendments (because they are part of the argument I wish to put to the Committee regarding the specific proposal by the noble Lord, Lord Richard, this afternoon) I wish briefly to set out our approach to secondary legislation in this area. It is central to our debate today and so I hope that I shall be forgiven for spending a few minutes on the issue. I refer especially to Clause 6 which deals with the definitions of "availability" and "actively seeking work".
We believe that it is crucially important for social security legislation to retain a degree of flexibility. In that, it is following the precedents of previous administrations. 200 That need for flexibility is just as great today. With a benefit for unemployed people such as the jobseeker's allowance, it is important that the benefits administration and its rules of eligibility are sensitive to labour market conditions and can take account of the continual change to the structure of and demand for employment. That has always been recognised; but I believe that in recent years there has grown in all developed countries a new consensus over the importance of social security structures playing a central role in active labour market policy.
JSA must also be responsive to changes elsewhere in the benefit system. It must be compatible with income support and other income-related benefits. It must dovetail with the provisions for in-work benefits to maintain incentives for people to move into work. It must be able to respond to the decisions of the courts.
Equally important, JSA must be able to change in the light of experience. Throughout the passage of the Bill, both in this House and in another place, there have been requests for special exemptions for particular groups or circumstances. Such requests come almost daily to social security Ministers. Where there are genuine problems in the terms of the legislation or where there are new issues to address, any government would often wish to respond quickly and decisively. But if to do so a government always had to have recourse to primary legislation, I believe it would place an intolerable burden on Parliament.
The scrutiny committee recognises that there is a need for flexibility and, accordingly, a need for delegated powers in the Bill. It recognises how that serves:to keep the details of legislation off the statute book".The Government fully endorse that finding.
These considerations, I believe, apply in equal measure to the two principal labour market conditions for JSA that a person must be available for employment and must actively seek employment.
However, it is not and never has been the Government's intention to bring forward regulations which departed significantly from established policies of availability and actively seeking. Our intention was merely to provide for a more direct route through regulations rather than through the indirect route of treating or deeming people available or not available which legislation has until now employed. However, I recognise that Clause 6(1) of the Bill, with its stipulation that availability and actively seeking shall,have such meaning as may be prescribed",may have created the impression that we might be seeking to depart from established definitions. In the light of concerns expressed about the Government's intentions, we are now bringing forward the amendments which will be dealt with later this afternoon. On the other hand, I do not accept all the criticisms that are being expressed that the Bill is unprecedented in neglecting to provide full definitions for the terms and full details of the manner in which the conditions should apply. In responding to those criticisms, I should like to dwell for a moment on the history of the provisions.
Members of the Committee will look in vain in the current primary legislation for detailed provisions on availability. Section 25A(1) (a) of the Social Security Contributions and Benefits Act 1992 provides that: 201a day shall not be treated in relation to any person as a day of unemployment unless on that day he is capable of work and he is, or is deemed in accordance with regulations, to be, available to be employed in employed earner's employment.That is all it has to say specifically on availability. It simply carries forward the provisions from the Social Security Act introduced by the Labour Government in 1975 which consolidated earlier legislation. However, its origins lie very much earlier. Since 1911 it has been a condition that a person must be available for work in order to receive benefit. That condition has been repeated in all subsequent pieces of legislation, but it has never been defined on the face of the primary legislation. That has been achieved through interpretations of the case law of social security umpires and commissioners, and through regulation.
To case law we owe the interpretation that a person must be willing and able to be employed, and that he must be ready to be employed immediately. To regulation we owe the provisions whereby a person may, or may not, restrict his availability. Such regulations were first introduced in 1955, when it was found necessary to review the operation or availability in relation to people who placed unreasonable restrictions as compared with insured contributors generally. It is salutary to recognise that government and Parliament were even then considering the same questions of the balance between broad provision and regulation. Thus, for 40 years now the provisions of availability have been carefully circumscribed by regulation. I will go on later to explain how we intend in JSA to build upon, not replace, the established interpretation of availability.
The condition that a person must be actively seeking employment has a more recent provenance, although it has always been to some extent explicit in the availability condition that a person claiming benefit must seek work. This condition was introduced in 1989. The level of detail in the provisions on the face of the Bill simply follows the established precedent of the previous legislation. The benefits Act 1992, which consolidated the earlier legislation provides in Section 25A(1) (a) that,a day shall not be treated in relation to any person … as a day of unemployment unless … that day falls in a week in which he is, or is deemed in accordance with regulations to be, actively seeking such employment".The legislation then provides for regulations with respect to the steps which a person is required to take in any week and the meaning of a "week", but no more. As with availability, so with actively seeking, regulations carefully limit and define the condition through setting out the steps which a person is required to take.
It was recognised fully in 1989 just how important it was to provide for such detail in secondary legislation. In bringing forward the Jobseekers Bill the Government were looking to follow that precedent, since in approach and in policy we are making no fundamental change to the condition of actively seeking work which Parliament has already approved.
I have set out the precedents for the conditions in Clause 6 because I felt it was important to explain why the Government took the approach we did in providing a clear regulation making power when we presented this Bill. We wanted to build on the provisions. And where we were making new proposals for the details of the terms of 202 availability and actively seeking employment we set out clearly and at length—in the White Paper, throughout the passage of the Bill through another place, in Committee in your Lordships' House and in the delegated powers memorandum—how the regulations would be applied.
Nevertheless, in the light of the views expressed on Clause 6 as presented in the Bill the Government have come to the conclusion that the current drafting of Clause 6 should be changed. We have listened carefully to the concerns voiced by many Members of your Lordships' House, in particular the concerns of my noble friends Lord Campbell of Alloway, Lord Boyd-Carpenter and Lord Renton, and by noble Lords on all the Benches opposite, that we should include a definition of the conditions of availability and actively seeking on the face of the Bill. In bringing forward amendments in response to these concerns we have been mindful of the recommendation from the Scrutiny Committee that the House should consider whether the Bill should be amended,so as to provide a more detailed framework within which Ministers may exercise the powers to be delegated to them".This is, I believe, what the noble Lord, Lord Shepherd, was looking for when he called in the debate in Committee for the Government to put more on the face of the Bill that would form a synergy with the delegated powers committee. I believe that the government amendments achieve that.
I shall deal in response to a later amendment with some of the details that are in my new Clauses 6, 6A and 6B. But I wanted just to set out the background to these definitions and draw to the Committee's attention that the three amendments in my name to which we shall turn later go a long way to respond to the points made by the Delegated Powers Scrutiny Committee.
I now turn to the point that the committee makes when it states that in particular the House may wish to consider whether the affirmative procedure should not apply to any regulations changing the meaning of the terms "available for employment" and "actively seeking employment" whenever these regulations are made. The committee recommended to us that, irrespective of any changes to Clause 6 that we may make—as I say, we have made very considerable changes—the House should consider whether the proposals for parliamentary control of the delegated legislation for the conditions of availability and actively seeking were sufficient.
I accept that there is a real concern in both Houses that regulations that affect the meaning and treatment of the two terms, "availability" and "actively seeking", should receive the full and proper scrutiny of Parliament. I mentioned at the beginning of my remarks my background as a founder member of the Scrutiny Committee. As my noble friend the Lord Privy Seal made clear last week, it was the Government's view that we had to take the findings and recommendations of the Select Committee very seriously indeed. I propose to come to the House at Report stage having tabled an amendment that will mean in future that Clauses 6 and 6A, which we shall discuss, will be subject to the affirmative procedure. I will table that amendment as an amendment to Clause 34, which, as the draftsman would say, is the proper place to table that particular amendment.
203 I have taken up a certain amount of time because this matter is important. I shall explain in a little more detail later the meaning of our Clauses 6, 6A and 6B. So far as concerns this particular issue; namely, the point of the Delegated Powers Scrutiny Committee that we should use the affirmative procedure whenever any regulations (formerly to have been made under Clause 6) are made under new Clauses 6 and 6A, I hope the Committee will appreciate that we have indeed gone a very long way in meeting the concerns expressed not only by noble Lords but also by the Delegated Powers Scrutiny Committee. I hope that with that assurance, the noble Lord, Lord Richard, will feel able to withdraw his amendment.
§ Lord Richard
Before the noble Lord sits down, perhaps I may ask him just one question. He has very carefully referred to Clauses 6 and 6A. What about Clause 6B?
§ Lord Mackay of Ardbrecknish
I very carefully indeed said 6 and 6A, because Clauses 6 and 6A are the two clauses that have regard to the "actively seeking work" definition and the "availability for work" definition. Clause 6B deals with other matters, such as signing on, etc. They were not the matters referred to by the Delegated Powers Scrutiny Committee. The Scrutiny Committee concentrated on and drew our attention as a House to the terms "availability for employment" and "actively seeking employment". It is therefore in respect of Clauses 6 and 6A that I give the Committee an assurance that when on Report we come to Clause 34 I shall have tabled an amendment stating that the affirmative procedure will always be used.
§ Lord Richard
Perhaps I may press the Minister just a little further. He has been very kind and has given us assurances. He has bent a long way and we are all very grateful to him. Will he just have a little look at Clause 6B:Regulations under subsection (1) may, in particular … prescribe"—let us pay attention to this—matters which are, or are not, to be taken into account in determining whether a person has, or does not have, good cause for failing to comply with any such regulations".That provision is massively wide. Also, the regulations may prescribe,circumstances in which a person is, or is not, to be regarded as having, or not having good cause for failing to comply with any such regulations".With great respect to the Minister, those provisions are too wide to be left to the negative procedure. If the Minister could go so far as to say that in relation to Clause 6B he would also be minded to consider actively—or, if I dare use the phrase in this connection, actively consider—that that clause, too, should be subject to the affirmative procedure, then I in turn will be prepared actively to consider that which the Minister has put to me.
§ Earl Russell
I am most grateful to the Minister for that reply, and most grateful also to the Delegated Powers Scrutiny Committee for a distinguished and extremely useful report. However, as the Minister has set out a general exposition of the government amendment and the thinking behind it, it might perhaps be in order for me to make some comment on that before we go further.
204 The amendment tabled by the noble Lord, Lord Richard, deals with parliamentary scrutiny. It enables us to look at the draft provisions and see what is happening. It does not deal with parliamentary control. It does not enable us to say, "No, we are not going to agree to this". Until we have sorted out the issues in regard to voting, that cannot be done merely by a change from negative to affirmative procedure.
I am most grateful to the Minister, to his department and to all concerned for the trouble they have taken in producing this new amendment. The amendment had to deal with three issues. The first test it had to face was a linguistic one; it had to improve the felicity and clarity of the Bill. Secondly, it had to face the test of drafting intention both in relation to the amount of regulation-making powers and putting into legislation matters which should have been for judicial consideration. Thirdly, as we get the receding of the waters with the removing of the muddy water of unclear draftsmanship, so the policy intention appears exposed for the first time. Inevitably, therefore, issues will arise as to those policy intentions.
In regard to the language and clarity of the Bill, the amendment is to a large degree successful. For once Humpty-Dumpty genuinely has had a great fall and all the King's Ministers will not put him together again. That I welcome. The new amendment makes the Government's intention a great deal clearer than it was before. It provides definitions of "available for employment" and "actively seeking employment". Of course, I do not find those definitions acceptable, but they are at least clearer and we shall therefore be able to have a lucid argument about them in due course.
In relation to the second test, that of drafting intention, I have given the Minister notice of a question as to whether there are actually fewer regulation-making powers in the amendment than there were in the original. I appreciate that it is a difficult question. The tendency has been to divide the Bill into more separate regulation-making powers for purposes of clarity. There is an appearance therefore of an increase in the number of regulation-making powers. I shall not hold the Government to that. But I will be surprised if the Minister can tell me that there was any decrease.
I am familiar with the defence of flexibility and I shall not waste time on it. I understand what the Minister wants. But I hope that he understands that there is also a possibility of conflict between that objective and that of parliamentary control. There is a balance to be struck. The Minister talks of not putting details in legislation. In principle that may be agreed ground, but the question is: what is a detail and what is not?
We are all familiar with the phrase, "The devil is in the detail". In social security legislation that is often the case. We have seen, even during the short time I have been here, a rapid escalation in the size of issue which is classified as detail. We arc now seeing conditions of eligibility for benefit being classified as detail; we are seeing the disentitlement of whole groups of people being classified as detail. If the Minister thinks that that is detail, I can only say that not everybody in this Chamber agrees. The number of regulation-making powers still needs addressing.
205 I am concerned also about what I see as over-fussy draftsmanship; for example, attempting to set out in detail all the individual steps which shall be evidence that a person intends actively to seek employment, when one cannot do that. We must look at the person's conduct as a whole if we are to judge intention. That over-fussy draftsmanship was something that concerned us very much before. I cannot see that it has improved. I will give the Minister, therefore, for the amendment, one point out of three. I welcome that one very warmly. For the other two, we have yet some important points to come—more important than those here—and I leave those to later amendments.
§ 5.15 p.m.
§ Lord Shepherd
I am sure that all Members of your Lordships' House are grateful for the way in which the Minister responded to the amendment tabled by my noble friend Lord Richard. I cannot help but reflect that, close to Christmas, when my wife makes the Christmas cake, it is the icing at the end that really makes the cake so much more attractive. I suggest to the Minister that he has done well with the cake but he is missing the icing. He may not be able to go as far this afternoon as my noble friend wishes. My noble friend raised a matter of principle. If the Minister will give an undertaking that we can consult on these matters to see whether the whole of Clause 6 can be covered, that may be acceptable.
My noble friend's amendment goes only a short way in meeting the point raised by the noble Earl, Lord Russell, relating to parliamentary control. I recognise and support the idea of delegated legislation. But I have a funny feeling that over recent years—maybe stretching to 10,15 or 20 years —in order to get legislation through both Houses in ever-increasing amounts, there has been a tendency to say, "Let us avoid time in the House of Commons where it is most important and let us put this into regulation". I do not know whether, when he was considering the establishment of the scrutiny committee, the noble Lord was aware of the figures in terms of delegated legislation. Between 1988 and 1992 the amount of delegated legislation increased by over 50 per cent. That means that 50 per cent, more pieces of legislation are being passed in one form or another by this House and another place with only cursory interest.
We all know that when governments introduce Bills they table amendments of a drafting nature to turn what was originally drafted into something more closely resembling good law. But we are unable to do that in terms of regulations, and it is regulations that have a more direct impact upon ordinary people than primary legislation. I welcome therefore, as the noble Lord indicated in agreeing new Clause 6A, that those regulations should be taken by affirmative procedure. But even then, affirmative procedure is extraordinarily limited.
In relation to the negative procedure, because of the flexibility that exists in this Chamber those matters can be considered here by laying a prayer. If a prayer is laid, it must be taken. I look at my noble friend Lord Tonypandy. He is aware of the great difficulty in finding time in the House of Commons for prayers. There is therefore a vast area of legislation being passed with hardly any parliamentary control in relation to the House of Commons.
206 The time has come when we must recognise the enormous amount that is being done by delegated legislation. Both Houses of Parliament should look together to see which way the scrutiny of that legislation, with expedition—not delay —can be conducted. Then at least Parliament can be satisfied that it is not only primary legislation that is considered in detail but also delegated secondary legislation.
I conclude by thanking the Minister for the distance he has gone. Perhaps he can give us a little icing and make some overtures to my noble friend. If not, I shall follow my noble friend in whatever course of action he chooses to take.
§ Lord Skelmersdale
I rather think that the time has come for me to eat some humble-pie before your Lordships because for four years now I have been promoting, both publicly and privately, the idea that is incorporated in the Bill; namely, that there are many affirmative instruments to which in the modern day and age only lip service is given in this House and in another place. In other words, as time has gone by it has been felt that they should not be affirmative at all. Noble Lords can imagine my excitement when the Government, in terms of the Department of Social Security—my old department— and in this Bill in particular, picked up this idea of mine that orders should in the first instance be affirmative and thereafter go through the negative resolution procedure.
That was my initial excitement. The more I looked at the Bill the more I decided that, although the idea still had merit, this was not the Bill to do it on—and certainly not in the first instance. I am therefore very grateful for my noble friend's proposed amendment on Report to Clause 34 to make these orders continually by affirmative resolution. Having said that, I have a slight problem because in this House there is a convention, established now for some 30 years, that we do not vote on affirmative orders.
§ Lord Simon of Glaisdale
Does the noble Lord not remember that that was negatived specifically by a resolution of your Lordships' House?
§ Lord Skelmersdale
Yes, but that does not destroy the point I am seeking to make. In fact, if anything, it rather adds to it. The point I wanted to make is that the serious and direct parliamentary control in your Lordships' House, although not in another place, is through negative resolutions. The House still has the power, if it has the will, to, as the noble Lord, Lord Shepherd, has just said, pray against a negative resolution order. That is all very well, but we have only 40 days' praying time. With so many orders going through the Joint Committee on Statutory Instruments and being presented to your Lordships in the Minutes of Proceedings it is very rare that one can actually put down a prayer in time when one wants to have a prayer. The noble Earl, Lord Russell, has managed to find a way around this conundrum, which I am not sure is any more satisfactory, by putting down a Motion to annul a particular negative instrument once it has been enacted by default, as such things inevitably are.
I conclude that it is rather more valuable in this House to have a negative resolution than an affirmative resolution. That said, there have been enormous pressures in recent years to have affirmative legislation. On this 207 occasion the Government have conceded to that, and all credit to them for doing so, but when we look in the longer term, as the noble Lord, Lord Shepherd, has just suggested, we should bear all these things very much in mind. In the meantime, having eaten my humble-pie originally, I congratulate the Government.
§ Baroness Hollis of Heigham
It would be churlish of all of us not to be grateful to both the Delegated Powers Scrutiny Committee and to the Leader of the House and the Minister. The Government have listened to the voice of the House in an earlier debate and have come forward in a positive way. That was half of it. The other half of it is that what I fear the Minister may have offered us today is the shadow rather than the substance. He has agreed that he will come back at Report stage to move that amendments to Clauses 6 and 6A be by affirmative resolution but not, after April 1996, amendments to Clause 6B.
I wish to ask the Committee to help me in pressing the Minister as to why precisely he has drawn that distinction because they are two sides of the same thing. Clauses 6 and 6A set out what it means, to be confirmed and elaborated by regulation, to be available for work and to be actively seeking work. That is welcome. But Clause 6B goes on to say what counts as good cause and therefore a reason either for not doing X or doing X but continuing to receive benefit. In other words, what is the definition of when you have failed to do what is being asked?
The first part—Clauses 6 and 6A—sets out what you must do to be available for work and actively seeking work. Clause 6B says that you must have good cause if you are to continue to receive benefit but not to fulfil that. Clauses 6 and 6A are by the affirmative procedure. But Clause 6B—which is the other half of it concerning what counts as good cause so that you continue to receive your benefit if you do not meet these conditions—is still left uncertain to the negative procedure. The claimant remains on the quicksand with which he entered the system—knowing what he must do but not knowing when he cannot do it whether what he believes is good cause is regarded as good cause. That will not have been discussed in your Lordships' House as part of the affirmative procedure. It may be if the Opposition are alert enough to pick it up under the negative procedure, but that, as we all know to our cost, is a somewhat random way of doing it.
Why is the Minister giving us the half of it—what you must do—but not giving us the other half in Clause 6B as to what counts as good cause if, in the claimant's view, he cannot do it? We need the totality really to deliver what the Delegated Powers Scrutiny Committee and, I believe, your Lordships want tonight. If the Minister can do that we would all be well satisfied.
§ Lord Elton
The noble Baroness has nicely brought back the debate to the substance of this amendment and the effects on the people who are subject to the regulations which will be generated under it. In relation to the earlier discussion, I would just say that the clear difficulty we all labour under is having only three options. One is statute; the others are two forms of subordinate legislation, neither of which can be altered. They can be rejected or accepted, but they cannot be amended. That is the difficulty.
208 I do not think that this is the proper occasion to discuss whether that gap is too wide—as I believe it is—and whether there ought to be some further course which we could devise, though I do hope that the usual channels will note the general anxiety among your Lordships that this choice is difficult and does not always offer the right alternative. But the alternatives we have at the moment are just between these three courses.
I merely want to acknowledge the very major concessions my noble friend has announced to the concerns uttered at the earlier Committee stage—not merely by the recommittal but also by what he has put on the Marshalled List and what he has undertaken to put on the Marshalled List at Report stage. The alternative to doing what he advises is either merely a shift between one or other of the subordinate legislation procedures and having a whole mass of detail—we may call it detail. It may be very major for the individuals who are affected but for the actual volume of work to be done by Parliament, adjusting for this vast number of people, for these enormous differences in circumstances and for these constantly changing circumstances, to put all this into major statute is simply not in question. Therefore, I believe that my noble friend has made major concessions. Your Lordships should be satisfied by that and not accept the amendment.
§ 5.30 p.m.
§ Baroness Williams of Crosby
I shall be very brief. I also thank the Minister for having brought forward proposals which go some way to meet some of the issues which concern Members of the Committee. There are two other points which I should like to mention in the hope that the Minister might be able to look at them also. The first is that there is throughout the Bill a pervasive question raised to some extent by the noble Baroness, Lady Hollis, concerning what is a test of reasonableness. In many cases if one felt that the issue of reasonableness was brought into the Bill, one would feel more content about it. A great deal is left to regulation.
The second issue I wish to touch on is what one might describe as the rights or liberties of citizens which are not bitten on by the argument as regards flexibility. I understand the relevance of the argument on flexibility, but I cannot see how it applies to such things as the extent to which issues such as someone's race, religion, linguistic background or disability should be left to regulations to be safeguarded. I draw those two matters to the attention of the noble Lord, especially since he seems to be in such an extremely receptive state of mind this afternoon.
§ Lord Boyd-Carpenter
I express the gratitude which I am sure a great many of us feel to my noble friend the Minister for bringing forward this very substantial amendment to that part of the Bill to which, very properly in my view, great objection was taken at an earlier stage. Those of us with some experience of government know how difficult it is inside the machine of government to get major changes made in a Bill which is already at Committee stage. I believe that the Committee will feel that my noble friend the Minister has fulfilled a very important and effective task in 209 securing the very considerable improvements which are offered by the amendment which he will be moving. That is the real aspect of the matter. It is a relief to many of us to know that the Government are not persisting in the original attitude which they took on the Bill.
It will be very relevant to the Bill, as amended, to make clear the rather misty subject of the conventions regarding what your Lordships' House can do with either the affirmative or negative resolution. My own view is—and I suspect that it is shared by my noble and learned friend Lord Simon of Glaisdale—that there is in fact nothing to prevent your Lordships' House insisting, by vote if necessary, on either defeating an affirmative resolution or moving against a negative one. I know of no rule unless the provision can be classified within the broad concept of a money Bill. I know of no other limitation. In view of the increasing importance and significance of delegated legislation, it is very important to get this matter abundantly clear. I hope that my noble friend the Minister will feel able to say something very specific on this point.
The only other matter which I should be grateful for my noble friend to enlarge on is that originally raised by the noble Lord opposite. That is whether in addition to new Clause 6A, new Clause 6B will be covered in some form or other by the amendments which he proposes to bring forward on Report.
§ Lord Campbell of Alloway
Perhaps I may very briefly thank the Minister for the concession on new Clauses 6A and 6B. Is it right that that concession really seeks to implement any interpretation that can be put on the report of the Delegated Powers Scrutiny Committee, whereas on no interpretation of that committee's report can it be said to be requisite to give that concession on new Clause 6B? Is that the basis on which the concession is made? If so, I should like to support it and express my own personal gratitude for the manner in which the Government have produced Amendment No. 4 and compliment the draftsman on a truly magnificent piece of work.
§ Lord Mackay of Ardbrecknish
Perhaps I may briefly respond. I thought that I might do better in the marking system of the noble Earl, Lord Russell, than one out of three. All I can say is that with a marker as hard as that, thank goodness I am not one of his students! So that I do not dip below that one mark, I accept the point he made that because I have extended what was one clause into three clauses, there are, if one counted them, more individual positions where there is a delegated power. That is because the draftsman has advised tackling it in the way which the Committee sees before it.
The substantive point I am asked is why have I only dealt with new Clauses 6 and 6A and not accepted the argument on new Clause 6B? I believe that my noble friend Lord Campbell of Alloway put his finger exactly on the point. The Delegated Powers Scrutiny Committee says in paragraph 10 of its Further Report on the Jobseekers Bill:In particular, the House may wish to consider whether the affirmative procedure should not apply to any regulations changing the meaning of the terms 'available for employment' and 'actively seeking employment' whenever these regulations are made".210 The simple fact is that new Clause 6 in my name deals with availability and new Clause 6A deals with actively seeking. New Clause 6B does not deal with either of them in the defining way that new Clauses 6 and 6A do. It deals with matters like attendance at the Jobcentre and the information and evidence which the jobseeker should make available to the Employment Service and the Jobcentre officer.
I believe that I have addressed directly the point made by the Delegated Powers Scrutiny Committee. I have done so in the promise that I have made to bring forward an amendment at Clause 34 in order to do as has been suggested and to make regulations under new Clauses 6 and 6A always under the affirmative order and not, as currently proposed, only for a limited period and thereafter by the negative procedure.
The noble Lord, Lord Richard, may not agree with me, but I hope that he can see why I have reached this position because I have taken the very strong recommendations of the Delegated Powers Scrutiny Committee and the various opinions expressed in this Chamber. I like to think that I have done a little better than one mark out of three in actually responding positively to the recommendations. For that reason, I hope that the noble Lord, Lord Richard, will be able to withdraw his amendment which now really centres only on an argument over new Clause 6B. If he does not, I hope that my noble friends, and other Members of the Committee who take an interest in these matters, will accept that I have gone a long way to respond to the Delegated Powers Scrutiny Committee and that they will support me in the Lobby.
§ Lord Richard
I am very sorry indeed that the Minister, in his generous spirit this afternoon, has not found it possible to include new Clause 6B as well as new Clause 6A. I can see why he has left it out and I fully understand the reasons for that. But the merits of the argument have not been dealt with. The Minister has merely analysed why he has not dealt with it. I cannot respond to his blandishments even if I were to give him one-and-a-half marks out of three. It still seems right to test the opinion of the Committee on the other one-and-a-half marks.
§ 5.39 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 105; Not-Contents, 161.212
|Division No. 1|
|Addington, L.||Castle of Blackburn, B.|
|Airedale, L.||Chorley, L.|
|Archer of Sandwell, L.||Cocks of Hartcliffe, L.|
|Ashley of Stoke, L.||Darcy (de Knayth), B.|
|Barnett, L.||David, B.|
|Bath, M.||Dean of Beswick, L.|
|Beaumont of Whitley, L.||Desai, L.|
|Birk, B.||Donaldson of Kingsbridge, L.|
|Blackstone, B.||Donoughue, L.|
|Bruce of Donington, L.||Dormand of Easington, L.|
|Callaghan of Cardiff, L.||Dubs, L.|
|Carmichael of Kelvingrove, L.||Eatwell, L.|
|Erroll, E.||Mishcon, L.|
|Falkender, B.||Molloy, L.|
|Farrington of Ribbleton, B.||Monkswell, L.|
|Foot, L.||Monson, L.|
|Gallacher, L.||Morris of Castle Morris, L.|
|Gladwin of Clee, L.||Murray of Epping Forest, L.|
|Gould of Potternewton, B.||Nicol, B.|
|Graham of Edmonton, L. [Teller.]||Ogmore, L.|
|Greene of Harrow Weald, L.||Prys-Davies, L.|
|Halsbury, E.||Rea, L.|
|Harris of Greenwich, L. [Teller.]||Redesdale, L.|
|Henderson of Brompton, L.||Ritchie of Dundee, L.|
|Hollick, L.||Robson of Kiddington, B.|
|Hollis of Heigham, B.||Rochester, L.|
|Houghton of Sowerby, L.||Rodgers of Quarry Bank, L.|
|Howell, L.||Russell, E.|
|Hughes, L.||Scanlon, L.|
|Hylton, L.||Seear, B.|
|Jacques, L.||Sefton of Garston, L.|
|Jay, L.||Serota, B.|
|Jay of Paddington, B.||Shannon, E.|
|Jeger, B.||Shepherd, L.|
|Jenkins of Hillhead, L.||Simon, V.|
|Jenkins of Putney, L.||Simon of Glaisdale, L.|
|Judd, L.||Smith of Gilmorehill, B.|
|Kilbracken, L.||Stallard, L.|
|Kirkwood, L.||Stoddart of Swindon, L.|
|Lawrence, L.||Strabolgi, L.|
|Lester of Herne Hill, L.||Thomson of Monifieth, L.|
|Lockwood, B.||Tonypandy, V.|
|Longford, E.||Tordoff, L.|
|Lovell-Davis, L.||Turner of Camden, B.|
|McIntosh of Haringey, L.||Wedderburn of Charlton, L.|
|McNair, L.||Whaddon, L.|
|Mallalieu, B.||White, B.|
|Mar and Kellie, E.||Wigoder, L.|
|Mayhew, L.||Williams of Crosby, B.|
|Merlyn-Rees, L.||Williams of Elvel, L.|
|Milner of Leeds, L.||Williams of Mostyn, L.|
|Abinger, L.||Carlisle of Bucklow, L.|
|Addison, V.||Carnock, L.|
|Ailsa, M.||Chalker of Wallasey, B.|
|Aldington, L.||Chelmer, L.|
|Alexander of Tunis, E.||Chelmsford, V.|
|Alexander of Weedon, L.||Chesham, L.|
|Allenby of Megiddo, V.||Clanwilliam, E.|
|Annaly, L.||Clark of Kempston, L.|
|Archer of Weston-Super-Mare, L.||Clinton, L.|
|Ashbourne, L.||Colnbrook, L.|
|Astor, V.||Constantine of Stanmore, L|
|Astor of Hever, L.||Cork and Orrery, E.|
|Balfour, E.||Cornwallis, L.|
|Banbury of Southam, L.||Courtown, E.|
|Belhaven and Stenton, L.||Cox, B.|
|Biddulph, L.||Cranborne, V. [Lord Privy Seal.]|
|Bledisloe, V.||Crathorne, L.|
|Blyth, L.||Cross, V.|
|Boardman, L.||Cullen of Ashbourne, L.|
|Boyd-Carpenter, L.||Cumberlege, B.|
|Brabazon of Tara, L.||De L'Isle, V.|
|Brigstocke, B.||Dean of Harptree, L.|
|Brougham and Vaux, L.||Denham, L.|
|Burnham, L.||Denton of Wakefield, B.|
|Butterworth, L.||Digby, L.|
|Cadman, L.||Dixon-Smith, L.|
|Caithness, E.||Donegall, M.|
|Campbell of Alloway, L.||Eden of Winton, L.|
|Campbell of Croy, L.||Ellenborough, L.|
|Elton, L.||Mottistone, L.|
|Faithfull, B.||Mountevans, L.|
|Ferrers, E.||Mowbray and Stourton, L.|
|Finsberg, L.||Moyne, L.|
|Flather, B.||Nelson, E.|
|Foley, L.||Noel-Buxton, L.|
|Gardner of Parkes, B.||Norfolk, D.|
|Geddes, L.||Norrie, L.|
|Goold, L.||Northesk, E.|
|Goschen, V.||Orkney, E.|
|Gridley, L.||Orr-Ewing, L.|
|Harding of Petherton, L.||Oxfuird, V.|
|Harmsworth, L.||Park of Monmouth, B.|
|Hayhoe, L.||Peyton of Yeovil, L.|
|Henley, L.||Prior, L.|
|Hertford, M.||Rankeillour, L.|
|HolmPatrick, L.||Rawlings, B.|
|Hood, V.||Reay, L.|
|Howe, E.||Rennell, L.|
|Hunt of Tanworth, L.||Renton, L.|
|Hylton-Foster, B.||Romney, E.|
|Inglewood, L.||St. Davids, V.|
|Ingrow, L.||Saint Oswald, L.|
|Jeffreys, L.||Salisbury, M.|
|Jenkin of Roding, L.||Saltoun of Abernethy, Ly.|
|King of Wartnaby, L.||Savile, L.|
|Kingsland, L.||Seccombe, B.|
|Kinnoull, E.||Sharpies, B.|
|Kintore, E.||Shaughnessy, L.|
|Knollys, V.||Shaw of Northstead, L.|
|Lane of Horsell, L.||Shrewsbury, E.|
|Lauderdale, E.||Skelmersdale, L.|
|Leigh, L.||Stockton, E.|
|Lindsay, E.||Strafford, E.|
|Long, V. [Teller.]||Strange, B.|
|Lucas, L.||Strathclyde, L. [Teller.]|
|Lucas of Chilworth, L.||Sudeley, L.|
|Lyell, L.||Swansea, L.|
|McColl of Dulwich, L.||Swinfen, L.|
|McConnell, L.||Terrington, L.|
|Mackay of Ardbrecknish, L.||Thomas of Gwydir, L.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Torrington, V.|
|Macleod of Borve, B.||Trumpington, B.|
|Malmesbury, E.||Tugendhat, L.|
|Marlesford, L.||Ullswater, V.|
|Merrivale, L.||Wade of Chorlton, L.|
|Mersey, V.||Wakeham, L.|
|Miller of Hendon, B.||Wise, L.|
|Milverton, L.||Wolfson, L.|
|Monk Bretton, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.48 p.m.
§ [Amendments Nos. 2 and 3 not moved.]
§ Lord Mackay of Ardbrecknish moved Amendment No. 4:
§ Leave out Clause 6 and insert the following new Clauses—
§ Availability for employment
§ ("6.—(1) For the purposes of this Act. a person is available for employment if he is willing and able to take up immediately any employed earner's employment.
§ (2) Subsection (1) is subject to such provisions as may be made by regulations; and those regulations may, in particular, provide that a person—
- (a) may restrict his availability for employment in any week in such ways as may be prescribed; or
- (b) may restrict his availability for employment in any week in such circumstances as may be prescribed (for example, on grounds of conscience, religious conviction or physical or mental condition or because he is caring for another person) and in such ways as may be prescribed.
§ (3) The following are examples of restrictions for which provision may be made by the regulations—
- (a) restrictions on the nature of the employment for which a person is available;
- (b) restrictions on the periods for which he is available;
- (c) restrictions on the terms or conditions of employment for which he is available;
- (d) restrictions on the locality or localities within which he is available.
§ (4) Regulations may prescribe circumstances in which, for the purposes of this Act, a person is or is not to be treated as available for employment.
§ (5) Regulations under subsection (4) may, in particular, provide for a person who is available for employment—
- (a) only in his usual occupation,
- (b) only at a level of remuneration not lower than that which he is accustomed to receive, or
- (c) only in his usual occupation and at a level of remuneration not lower than that which he is accustomed to receive,
§ (6) Where it has been determined ("the first determination") that a person is to be treated, for the purposes of this Act, as available for employment in any week, the question whether he is available for employment in that week may be subsequently determined on a review of the first determination.
§ (7) In this section "permitted period", in relation to any person, means such period as may be determined in accordance with the regulations made under subsection (4).
§ (8) Regulations under subsection (4) may prescribe, in relation to permitted periods—
- (a) the day on which any such period is to be regarded as having begun in any case;
- (b) the shortest and longest periods which may be determined in any case;
- (c) factors which an adjudication officer may take into account in determining the period in any case.
§ Actively seeking employment
§ 6A.—(1) For the purposes of this Act, a person is actively seeking employment in any week if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment.
§ (2) Regulations may make provision—
- (a) with respect to steps which it is reasonable, for the purposes of subsection (1), for a person to be expected to have to take in any week;
- (b) as to circumstances (for example, his skills, qualifications, abilities and physical or mental limitations) which, in particular, are to be taken into account in determining whether, in relation to any steps taken by a person, the requirements of subsection (1) are satisfied in any week.
§ (3) Regulations may make provision for acts of a person which would otherwise be relevant for purposes of this section to be disregarded in such circumstances (including circumstances constituted by, or connected with, his behaviour or appearance) as may be prescribed.
§ (4) Regulations may prescribe circumstances in which, for the purposes of this Act, a person is to be treated as actively seeking employment.
§ (5) Regulations under subsection (4) may, in particular, provide for a person who is actively seeking employment—
- (a) only in his usual occupation,
- (b) only at a level of remuneration not lower than that which he is accustomed to receive, or
- (c) only in his usual occupation and at a level of remuneration not lower than that which he is accustomed to receive,
§ (6) Regulations may provide for this section, and any regulations made under it, to have effect in relation to a person who has reached the age of 16 but not the age of 18 as if "employment" included "training".
§ (7) Where it has been determined ("the first determination") that a person is to be treated, for the purposes of this Act as actively seeking employment in any week, the question whether he is actively seeking employment in that week may be subsequently determined on a review of the first determination.
(8) For the purposes of this section—
employment" means employed earner's employment or, in prescribed circumstances—
§ Attendance, information and evidence
§ 6B.—(1) Regulations may make provision for requiring a claimant—
- (a) to attend at such place and at such time as the Secretary of State may specify; and
- (b) to provide information and such evidence as may be prescribed as to his circumstances, his availability for employment and the extent to which he is actively seeking employment.
§ (2) Regulations under subsection (1) may, in particular—
- (a) prescribe circumstances in which entitlement to a jobseeker's allowance is to cease in the case of a claimant who fails to comply with any regulations made under that subsection;
- (b) provide for entitlement to cease at such time (after he last attended in compliance with requirements of the kind mentioned in subsection (1) (a)) as may be determined in accordance with any such regulations;
- (c) 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; and
- (d) prescribe—
- (i) matters which are, or are not, to be taken into account in determining whether a person has, or does not have, good cause for failing to comply with any such regulations; and
- (ii) circumstances in which a person is, or is not, to be regarded as having, or not having good cause for failing to comply with any such regulations.").
§ The noble Lord said: We now come to the three new clauses which are in my name on the Marshalled List and which replace Clause 6 in the original Bill. In responding to the amendment of the noble Lord, Lord Richard, I have already outlined some of the preliminary points that I might otherwise have made when introducing this amendment. I hope that the Committee will forgive me if I do not again go over that ground. I shall simply ask the Committee to consider the structure of this amendment in my name.
First, let me take new Clause 6, which deals with availability. We propose to devote the whole of this clause to availability. Clause 6(1) provides a broad definition; namely that:
a person is available for employment if he is willing and able to take up immediately any employed earner's employment".
§ It is not our intention with this definition to introduce anything new or additional to the current understanding of the term. That understanding is made clear by case law, as I have explained, which already defines and interprets availability in these terms. The effect of case law is also 215 that a person who is unable to accept offers of work either because he is precluded by law from working or because he is not in a position to respond to such offers is not available.
§ The vast majority of people who currently sign on for unemployment benefit and income support declare that they will accept immediately any work. However, we recognise that some people will want to restrict their availability in some way from that absolute condition to be willing and able to accept work immediately. Subsection (2) allows for that. It is our intention that regulations will provide that in any week a claimant who does not wish to make himself available at all times may limit his availability to a minimum of 40 hours. He may agree any pattern of 40 hours across the week, provided that that pattern does not limit unreasonably his prospect of securing work.
§ Thus a person who wanted to be available for night work only (10 p.m. to 6 a.m. Monday to Friday) or a person who wanted to be available for work on certain days only might meet the condition for benefit, provided that he or she showed that with that pattern they retained reasonable prospects of finding work.
§ People may also want to place restrictions on, for instance, the locality in which they are prepared to work. Again, it is our intention that the same labour-market test of retaining reasonable prospects of securing work will be applied under this subsection. Subsection (2) (b) recognises that there are certain classes of claimant who for specific reasons wish to place further restrictions on their availability.
§ Subsection (3) gives examples of how people may restrict their availability. Regulations will make provision for people who will be able to restrict the type of work they are prepared to accept on the grounds of conscience or religious conviction. Such restrictions will not be subject to the test of the prospect of securing work.
§ We shall make provision for people with disabilities. As we have made clear already in Committee, such restrictions on nature, hours, rate of remuneration, locality or other conditions of employment will be accepted where they are reasonable in view of the person's physical or mental condition and will not be subject to the test of reasonable prospects of securing work.
§ We will also, for the first time, make explicit provision for people with caring responsibilities to restrict their availability. They will be able to restrict the hours for which they are available below the normal 40 hours minimum where those restrictions are necessary in view of their caring responsibilities. They, unlike other jobseekers, will have to be ready to take up work only at 24 hours notice rather than immediately.
§ Baroness Williams of Crosby
Perhaps I may ask a question on this issue. Will it also be permissible for someone with caring responsibilities to restrict the place at which they can work, which can be crucial for someone in that situation?
§ Lord Mackay of Ardbrecknish
Just a few sentences ago I said that I had made it clear in Committee that restrictions on the nature, the hours, rate of remuneration, locality or other conditions of employment will be 216 accepted where they are reasonable in view of the person's physical or mental condition and will not be subject to a reasonable prospect of securing work. I imagine that the noble Baroness is asking that a person with caring responsibilities should not be asked to take a job so far away that it would damage their ability to carry out their caring responsibilities. If we are putting in restrictions which are necessary to take a proper view of someone's caring responsibilities, if the job entails them making such travelling arrangements that they cannot fulfil those responsibilities, it would not be reasonable to ask them to do so. I think that I am clear about that.
Subsection (4) is an important provision. Current legislation at Section 137(2) of the Social Security Contributions and Benefits Act enables regulations to make provision as to the circumstances in which a person is or is not to be treated as available for employment. Regulations under that provision deal with a wide range of very specific instances where it is appropriate for a claimant to be entitled or not entitled, notwithstanding the general rules for availability. Those provisions have been extensively used for a long time. For instance, they provide that people undertaking emergency duties such as crewing a lifeboat or as a part-time fireman, people attending court, taking part in training courses or people who are temporarily looking after a sick child can be treated as available for work. The list is extensive and deals with a range of specific issues. We intend to follow broadly the same approach in JSA.
Regulations to treat people as available will also make special provision for people undertaking part-time study and those undertaking voluntary work for no pay. Jobseekers pursuing part-time study in higher education or fewer than 16 hours of guided learning in further education will not be regarded as unavailable simply on account of their study if they are prepared to take a job—subject, of course, to the normal safeguards of "good cause". Volunteers similarly will be treated as available provided that they are prepared and can make arrangements to leave their voluntary work within 48 hours if a job offer is made to them. I believe that not all local office staff currently understand that voluntary work should not of itself prevent a person from being available. With the new regulations for JSA we will be making sure that the benefits of voluntary work—so clearly expressed by many noble Lords—are recognised properly.
The provision to treat people as not available for employment will also apply to certain specific groups. People such as full-time students, or women who are receiving statutory maternity pay within the maternity pay period, should not be entitled to JSA even though they can make themselves available for work. Those groups of people are adequately covered elsewhere by government provision.
Subsection (5) makes explicit provision, as pan of the conditions for availability, for a permitted period during which a person may be treated as available if he is only prepared to be available for employment in his usual occupation and at his former rate of pay. The Bill currently makes provision for such a period to be specified in the jobseeker's agreement. That might appear to imply that the jobseeker's agreement, by introducing the notion of the permitted period, itself gives rise (rather 217 than expression) to the conditions of entitlement to JSA. We made it clear during Committee, in response to concerns expressed by noble Lords, in particular the noble Earl, Lord Russell, that we would consider the balance of the provisions in the Bill. This specific provision in relation to availability is our response. As before, regulations will stipulate that the maximum permitted period will be 13 weeks and the determination of the length of the permitted period by an adjudication officer will depend on a number of factors, including the skills, qualifications and availability of employment in a person's usual occupation.
Before I leave the question of availability I should also remind your Lordships about provisions relating to the circumstances where a person may or may not refuse offers of employment. The noble Earl, Lord Russell, during our earlier debate in Committee suggested that an essential point about availability was that it was a test of intention and that any attempt to set out in legislation one outward and visible sign which shall be taken for proof of intention is very difficult indeed. I agree but only up to a point, because commissioners have made it clear time and time again that there are tests which can and should be applied about intention. But I do agree that in some circumstances a clearer test of whether a claimant is prepared to accept an offer of employment is to offer him a vacancy. In those circumstances we are dealing with specific details and can consider specific reasons why it is not reasonable that a person should or should not be expected to accept the offer of employment.
Under Clause 16 we will be carrying forward the current approach of specifying the circumstances which will constitute good cause for refusing an offer of employment. Those include any condition or personal circumstances where accepting the offer would subject him to excessive physical or mental stress, religious or conscientious objection, caring responsibilities, excessive travelling time and excessive in-work expenses. We also propose to bring forward an amendment to put on the face of the Bill, as current legislation provides, an exemption from sanction where a person refuses a vacancy which has arisen as a result of a trade dispute.
We believe that all those provisions provide appropriate protection against claimants being required to accept unreasonable offers of work.
I turn now to the new Clause 6A, which is to be wholly devoted to the active seeking condition. Regulations for unemployment benefit and income support currently provide for two aspects of the steps to be considered in the test of whether a person is actively seeking work. We are proposing to reflect both those aspects in the definition on the face of the Bill. The steps must be those which an individual can reasonably be expected to have to take. This is important because it recognises that jobseekers are individuals: a jobseeker with disabilities will not be expected to take the same steps as someone without those disabilities; a person looking for work in a skilled occupation will go about it in a different way from a person looking for a labouring job. Secondly, the steps must be those which give the jobseeker the best prospects of securing employment; thus the test is not a straightjacket but is sensitive to what is appropriate to help the individual secure a job.
218 Subsection (2) enables regulations to provide for this test in more detail. We intend that regulations under subsection (2) (a) should specify that, as now, the taking of one step on a single occasion during a week will not suffice unless that is all that it is reasonable for the individual to do in that week. Regulations will also provide for a non-exhaustive list of the steps which a person might be expected to take. As now, this list will include applying for jobs directly or in writing or registering with an employment agency. But for the first time it will also include steps which a person may take to improve his employability. Such steps might include producing a CV, researching into alternative occupations or, in some circumstances, attending short job-preparation courses.
Regulations under subsection (2) (b) will make it clear that all the circumstances of the case should be taken into account in determining what steps are reasonable in the case of the individual. As subsection (2) (b) makes clear, such considerations should include the person's skills, qualifications, his abilities and any mental or physical limitations. I recognise that some Members of this House have been concerned that, for instance, people with disabilities will be required to seek work in a way which they simply find impossible because of their disability. I hope that I have made it clear that this will not be the case.
Subsection (3) provides for the circumstances which we have already extensively discussed in Committee; namely, that where a person has taken steps designed to negate the value of his jobsearch—perhaps by presenting himself to employers in a way guaranteed to dissuade them from offering him a job—those steps should not be regarded as active jobsearch.
Subsection (4) enables regulations to provide for circumstances where a person is to be treated as actively seeking work. This is a counterpart to the provision under availability since in many of the circumstances where a person is to be treated as available he should be treated as actively seeking also if he is to receive benefit. Additional examples of the circumstances where a person might be treated as actively seeking are where he is taking part on an Employment Service course and will not be required to take extra steps to apply for jobs.
I would, however, draw your Lordships' attention to a significant difference from the provisions as currently set out in the Bill. My noble friend Lord Renton and others had some fun, as I could reasonably describe it, in criticising the provision currently at Clause 6(2) (d) of the Bill which provides for circumstances where a person who is actively seeking may be treated as not actively seeking. I understand that concern and it will, I suspect, do nothing to meet that concern if I were to point out that current legislation already provides for just that power in Section 137 of the Supplementary Benefits Act. The Government have always made it clear that we proposed to make one and one use only of that power; namely, to provide that to meet the condition of actively seeking employment 16–17 year-olds should also seek training. On reflection I now regard it as unsatisfactory that the Bill should propose such a wide-ranging power to treat someone as not actively seeking employment. We have therefore dropped this provision and have made specific 219 provision in subsection (6) for the case of 16–17 year-olds seeking training. I hope that that meets with your Lordships' approval.
Subsection (5) will enable regulations to provide for a person to satisfy the actively seeking test if he is seeking work only in his usual occupation during his permitted period. Subsection (8) will enable regulations to specify, for the first time, that where the person has previously been self-employed in that occupation he will, during his permitted period, be able to limit his jobsearch to self-employment.
I now turn to new Clause 6B, which we discussed earlier and on which there was a division of opinion. It carries forward the arrangements previously in Clause 6(4) to (6) concerned with claimants' attendance and the supplying of information and evidence. Any unemployed person will be familiar with the long-standing arrangements for attending regularly to sign on for benefit and to sign a declaration that he is available for work and actively seeking work and that his circumstances have not changed. Although as regards JSA, because it is an open-ended benefit, claimants will not be required to make a claim on each occasion, we still intend that they should attend their Jobcentre regularly in order to show that they are available and actively seeking work. That is a normal procedure and every claimant knows that if he does not sign on he will not receive his benefit.
One of the key purposes of JSA is to ensure that only those who are available and actively seeking employment receive the allowance. In order to ensure that jobseekers meet those conditions, it is essential to review the activities which they are undertaking to find work. The regular contact is indeed not only to monitor their jobsearch but also to identify whether they need advice or help, which might be attendance on an unemployment programme or on a training course. Each new claimant is given written notification of the day, time and place that he should attend to sign. From then on it is his responsibility to attend in accordance with the notice. Of course, we recognise that from time to time matters can arise which mean that claimants cannot attend at the right time. Benefit entitlement will not cease if they can show good cause for their failure. We are making specific provisions to enable matters to be set out which are or are not taken into account for the consideration of good cause.
In Committee we discussed a number of provisions relating to Clause 6 and to other parts of the Bill—but in particular to Clause 6. As I said earlier, when responding to the recommendations of the Delegated Powers Scrutiny Committee about the affirmative rather than the negative procedure being used, we have done so largely in response to the well-argued case of the committee. This is the other part of that equation, so to speak, and we have addressed the problem of availability for work and actively seeking work. We have attempted to put a definition on the face of the Bill as well as retaining the powers to prescribe the greater detail which will be required to run the system in regulations.
220 I hope that your Lordships consider that we have responded positively to the Delegated Powers Scrutiny Committee in this regard, as clearly was the case in respect of another regard. I commend the new clauses to the House. I beg to move.
§ 6 p.m.
§ [Amendment No. 5, as an amendment to Amendment No. 4, not moved.]
§ Baroness Hollis of Heigham moved, as an amendment to Amendment No. 4, Amendment No. 5A:
§ Line 3, leave out ("immediately") and insert ("within reasonable time").
§ The noble Baroness said: I apologise for the amendment being in manuscript form but your Lordships will be aware that we have all been pressed to scrutinise the new clause, which understandably has come to us very late. I hope that the Government will treat the amendment as a drafting amendment which they can therefore accept.
§ The amendment provides that a person would be regarded as being available for employment if he were willing and able to take up the work not immediately but within reasonable time. It embodies the understandings that the Minister gave to the House 14 minutes ago and the concessions that he has already made to the House; for instance, that someone with caring responsibilities would have 24 hours notice and someone with volunteering responsibilities would have 48 hours notice.
§ The amendment is a tidying up of this part of the new clause in line with the undertakings given by the Minister. It recognises that many of us have commitments which society encourages claimants of JSA to take on board as regards their families and organisations. The more that that is recognised the more that jobsearch is extended to jobs that we may regard as having unsocial hours, to late evening work and to Saturday and Sunday work. A jobseeker may not have anticipated that he would be expected to meet such unsocial hours and if he has other commitments he will need time to make arrangements.
§ The amendment in no sense alters what the Committee has already accepted and what the Minister has already conceded. It merely embodies it. I beg to move.
§ Lord Campbell of Alloway
I oppose the amendment, not because I object to the spirit of it but because, if it is passed, it will create a very woolly form of administration. The situation is perfectly satisfactory under the clause as drafted, which uses the words, "take up immediately", as implemented by the regulations, which then provide that that shall be done within 24 hours. If the words "within reasonable time" are inserted and the implementing regulation refers to 24 hours, that makes matters very difficult for the employment officer. In all the circumstances, I believe that it is best left alone.
§ Lord Inglewood
I am extremely grateful to the noble Baroness, Lady Hollis, for explaining the amendment and for the way in which she has approached the subject matter. While we may disagree as to the way in which it should be approached in a technical sense, there is considerable common ground between us in relation to what we are trying to do.
221 An effective availability condition is vital for any unemployment benefit and this has been one of the main underlying principles in drawing up the availability condition in JSA. Jobseekers must be available to take up work, and in order to ensure that they are open to as many job opportunities as possible, they have to be available to take up employment immediately.
This is not a new condition—it has been a long-standing principle in case law that those who wish to receive unemployment benefits should be available to start work immediately. The aim of the jobseeker is, and must be, to get back to work as quickly as possible. This means that he must be ready to start work immediately should the opportunity arise. To require any less would be to diminish the range of work for which the jobseeker might be eligible, and that would be in the interests of neither the jobseeker nor the labour market.
Of course we recognise that there are certain groups who will find it difficult to meet the immediate availability condition and that it would be unreasonable to expect them to do so. That is why we are carrying forward the concept of 24 and 48 hours' notice for special groups. Thus, a claimant who has caring responsibilities or who otherwise provides a service will be entitled to 24 hours' notice of any job or job interview. That gives carers longer to rearrange their caring responsibilities and be available for employment. Similarly, volunteers will be entitled to 48 hours' notice to rearrange their voluntary duties.
We strongly believe that these concessions will allow both carers and volunteers to participate in the labour market. Such people will, as now, need to plan in advance the best way of rearranging their responsibilities to fit in with any future employment that may be offered. In that way, when an opportunity of work arises, they will have some time to put these plans into place and take up work or attend an interview.
The requirement to be available immediately is longstanding and necessary. In today's increasingly flexible labour market, it is probably more important than ever before. Therefore, I feel that we must oppose the amendment.
§ Baroness Hollis of Heigham
I shall read the Minister's response. As the noble Lord, Lord Campbell of Alloway, said, it is important that Clause 6(1) should be understood, as modified by the subsequent subsections. There is concern in relation to carers and volunteers. We fear that the concession which the Minister has made will not perhaps be at the forefront of employment officers' minds when dealing with those matters unless it is written on the face of the Bill. However, I shall read what the Minister has said and return to the subject if necessary. I beg leave to withdraw the amendment.
§ Amendment No. 5A, as an amendment to Amendment No. 4, by leave, withdrawn.
§ 6.15 p.m.
§ Earl Russell moved, as an amendment to Amendment No. 4, Amendment No. 6:
§ Line 4, at end insert ("which his age. qualifications, and experience might reasonably enable him to undertake").222
§ The noble Earl said: I am not completely wedded to the words of the amendment and if the Minister wishes to suggest an alternative form of words, I would be perfectly willing to discuss them. However, in the text of the Government's amendment, I am worried about the requirement to take up immediately any employed earner's employment. That is quite a sweeping requirement. If I had not already determined to table the amendment, I should have done so as soon as I heard the noble Lord, Lord Mackay of Ardbrecknish, refer to "absolute availability". Those words caused me some alarm.
§ Some of us are suited to do some forms of work and some of us are suited to do other forms of work. To require us all to be available for any sort of work whatever will put us into work at which we will be no good at all and in which we might cause quite considerable harm.
§ I remember one person who was about to undertake driving lessons. He was asked to read a car number plate at 25 yards. He replied, "Where is the car?". I would not have required that person to take a job as a lookout. That would be extremely dangerous.
§ I remember the Minister—I believe that it was on 9th February—telling me that people were not all required to apply for jobs as professors of history. If he was right on that occasion, does this government amendment represent a significant change in the law? Are people in fact going to be required to apply for absolutely anything? If so, when is that change coming in?
§ I remember another case which was in the newspapers recently. A man held a job in a clothes shop fitting ladies with bras. The customers thought that he was not suitable for the work. He was dismissed from it. He brought a case under the Sex Discrimination Act and he lost. I think that it was quite right that he lost, but if this becomes law, will that man be required to apply for all similar jobs, even though we know perfectly well that he is not suitable to do them?
§ I take a case which could happen. Let us suppose that in time to come the Minister is no longer employed in his present capacity. Let us suppose that an employment officer were to require him, in order to prove that he is actively seeking employment, to apply for a job doing telephone fund-raising for the Labour Party. I believe that such jobs are advertised at the moment. Should the Minister refuse to undertake such a job? I would most warmly support his right of refusal. There is such a thing as an issue of conscience. We cannot have people altogether deprived of any choice whatever about the jobs for which they apply. They should apply for anything that they can reasonably do; that makes sense. But to say that they must apply for anything, however unsuitable, however much conscientious objection they have, however bad they may be at doing the job and however unsafe they would be, seems to me to come remarkably close to forced labour. Indeed, I suspect that absolute availability enslaves absolutely. I beg to move.
§ Lord Renton
It is just possible that my understanding of our wonderful language is not as good as that possessed by other noble Lords. But when I read the words,to take up immediately any employed earner's employment".223 I read that as a suggestion that it means that he is going to pinch somebody else's job. It seems to me that we should consider that very carefully.
There is an easy way to achieve the purpose of the noble Earl's amendment; that is, instead of saying "any employed earner's employment", we should simply use the words "any suitable employment". That might be worth considering.
§ Earl Russell
If it would assist the Minister, I should be entirely ready to go along with the suggestion just made by the noble Lord, Lord Renton.
§ Lord Skelmersdale
Surely the expression "employed earner's employment" already exists in social security law in some abundance? For example, I have in mind the contributions Acts where one talks about employed earners' contributions. Therefore, the term "employed earner's" must be well trailed; indeed, I believe that the phrase "employed earner's employment" is also well trailed.
However, I turn now to the amendment. I can well understand why the noble Earl has moved it. I say that because, generally speaking, in the initial period of unemployment and, therefore, of jobseeker's allowance, a person's age, qualifications and experience should bear very heavily; but, after the permitted period, which my noble friend the Minister restated this afternoon is to be 13 weeks, it seems to me to be quite sensible—indeed, it should be expected—for a jobseeker to be prepared to lower his sights a little to obtain work. In such a situation, an individual may be overqualified. Dare I suggest to the noble Earl that my noble friend the Minister might be slightly overqualified for the telephone job that he posited earlier.
I can see that there are circumstances in which the amendment would be appropriate, but I do not believe that that would always be the case. Therefore, one has to turn back to subsection (3)(a) of the proposed new Clause 6 (on page 2 of the Marshalled List) which describes,examples of restrictions for which provision may be made by the regulations".The first example deals with:restrictions on the nature of the employment for which a person is available".It seems to me that that would cover the noble Earl's point.
§ Baroness Williams of Crosby
Following the remarks made by the noble Lord, Lord Skelmersdale, I cannot help wondering whether the gibberish in previous social security legislation enacted under both parties is a particularly good argument for continuing with such language. The phrase used in the Bill is clearly not very plain to the ordinary man and woman in the street. I much prefer the formula proposed by the noble Lord, Lord Renton. I wonder whether the Minister would consider it seriously.
One of our problems is that the test of reason is crucial and reflects on the wording of the Bill. The phrase "suitable employment" is one that is widely understood by the public and by those who look to Parliament to try to explain the situation clearly to them. Following what 224 my noble friend said, it seems to me that the promotion of that phrase by the noble Lord, Lord Renton, encompasses exactly what this Chamber ought to do in terms of making legislation clear, transparent and obvious to those who are bound by it.
§ Lord Campbell of Alloway
With the leave of the Committee, may I respectfully ask whether we are dealing with the noble Earl's amendment or the suggestion made by my noble friend Lord Renton?
§ Lord Campbell of Alloway
Yes, but is it still proposed to introduce into the Bill the wording as set out on the Marshalled List?
§ Earl Russell
Yes, it is still proposed to do so. However, I would withdraw the amendment were the Minister to indicate any willingness to accept the proposal put forward by the noble Lord, Lord Renton.
§ Lord Wedderburn of Charlton
One would hope that the Minister would indeed be prepared to consider the arguments put forward by the noble Earl, Lord Russell. The point about "absolute availability" is surely a most important one. However, I should like to ask the Minister a question which enlarges the doubts about this part of the Bill which have emerged during our discussions. The Minister has already spoken this evening about employment and about work. In the White Paper issued by the Government last October, they took some pride—and, indeed it was in a sense a bright spot in that document—in saying that there would be an extension of what people could offer as regards being available for work. For example, people may be available for self-employment provided that they are prepared to take a job as an employee. It was claimed that that was a widening of the scope of the availability condition which recognised that people were moving into being self-employed.
Can the Minister say whether that extension has disappeared? I may be wrong, but it seems to me that it might be arguable that it has disappeared because in the original Bill—if I may call it that—there was no definition of the word "employment"; indeed, it was to be prescribed. However, in the Minister's new Clause 6(9),'employed earner's employment' has the same meaning as in the Benefits Act".It is of some importance for us to know whether that is a narrower formulation than that in the White Paper of being able to offer self-employment, especially in the case of people like those who have been cited this evening. For example, a carer may well be in a position of not being strictly in an "employed earner's employment". That is how I understand it, but the Minister can correct me if I am wrong. If that is so, the regulations would not be able to rescue someone in that situation who, although prepared to offer to take employment, could in fact only show that he was available for self-employment.
For once, I rather hope that the Minister and the Government have kept to their original intention. If the noble Earl's amendment were to be accepted, then being able to show that one could be suitable for a wide range of jobs in the broad sense would be quite important.
225 However, if the provision is limited to a narrower notion of employee, the importance of suitability is restricted to that area.
The Minister may wish to answer that question at a more suitable point. However, it is a thread which runs right through all the new clauses: employment is linked to "employed earner's employment" in the Benefits Act. Whether that has made any change in the intention of the original Bill and of the White Paper is, I submit, a rather important point which can suitably be discussed in regard to the proposed amendment.
§ Lord Inglewood
I must begin my comments on the amendment on rather similar lines to those that I used in connection with the previous amendment. I said then that I do not believe that, in terms of our aspirations, there is necessarily a great deal between the noble Earl moving the amendment and ourselves. However, we have approached the problem in a slightly different way.
Perhaps I may return to the principles which lie behind the Bill. To be entitled to JSA, jobseekers have to be available for any employment. That is one of the main labour market entitlement conditions of JSA, which carries forward existing case law and practice. The amendment seeks to qualify that basic condition in a way that, in our view, weakens the condition unacceptably.
Of course, we recognise one principle behind the amendment; namely, that jobseekers should have the opportunity to be available for and look for work in their usual occupation. That is why we are carrying forward the current provision of the "permitted period", as was mentioned by my noble friend Lord Skelmersdale, in which jobseekers may restrict their availability and jobsearch to their usual occupation and level of pay for up to 13 weeks from the beginning of a claim.
We will also accept, as we do at present, reasonable restrictions beyond the permitted period, provided that people retain reasonable prospects of employment. Any restrictions would be set out in the jobseeker's agreement and, like the rest of the agreement, would be subject to review from time to time. The longer the person is unemployed, the wider the range of work for which he is available should become. That is vital to the effective functioning of the labour market focus of JSA. The first priority for jobseekers is to get back to work. It is only fair to expect them to widen their jobsearch and to make the most of the opportunities available in the labour market.
There was considerable debate about the definition of the word "employment" and particular reference was made to the definition clause, Clause 6(9). Clearly our discussions have indicated that there is, perhaps, a degree of verbal confusion as regards the way in which the provision is formulated. However, we did that deliberately because of the relationship between this type of legislation and other social security legislation. The Government, as much as anyone else, want to see clear legislation. Of course, we can think about the matter to see whether we believe that any changes would help to clarify the meaning of the provision and thereby assist people who will actually be dealing with such matters on a day-to-day basis.
226 The noble Lord, Lord Wedderburn, raised an important point. Here, the condition is that they have to be available—perhaps I had better write to the noble Lord to explain it to him more clearly than I can at present.
I suspect that the noble Earl may be concerned that jobseekers may be forced to consider or apply for unsuitable vacancies notified to them by the Employment Service and be subject to a sanction if they do not do so. I emphasise that that will not be the case. When all is said and done, there is a difference between being required to be available, and having to do or apply for a particular job in question. If the claimant had good reasons why he should not accept the offer of a vacancy, they will be put to the adjudication officer, who will consider whether the jobseeker had good cause for his refusal. If the person's age, level of skill and experience meant that it was unreasonable for the jobseeker to apply for the job, the adjudication officer may well consider that he had good cause.
As regards a job as professor of history, the noble Earl, Lord Russell, would be infinitely better suited to that job than I. I would be unsuitable for that job. As regards the second example which the noble Earl gave, I do not feel well able to comment on that. However, as regards the final example he gave of a job raising money over the telephone for the Labour Party, it is not often that I offer disinterested advice to the Labour Party; but even if I were the only applicant for the job, I would advise the party not to accept me. I hope that I have made the Government's position clear in this regard. I urge the Committee to reject this amendment, and I hope that I have covered the point about which the noble Earl is concerned.
§ 6.30 p.m.
§ Lord Wedderburn of Charlton
Before the noble Lord sits down, I wish to ask him something. I do not wish to press him unreasonably—at least, not at this time. When he writes to me, I hope that he will send copies of the letter to everyone involved in this discussion. I hope that he will make clear whether we are debating a measure which is changing the range of those who come within the benefits which he claims the old clauses will offer. Will he make it clear in his letter whether those people are employees or whether they can be self-employed? The White Paper claims, at paragraph 4.3, that under the new scheme,Those whose usual occupation is in self-employment will be enabled to concentrate on returning to that line of work during their 'permitted period'".Is that still the case or is it not? I do not see how we can debate the Bill unless we know whether fundamentals of that kind are still there.
§ Lord Inglewood
I am glad to say that I am clearer about the position in this regard and that I can now clarify the position for the Committee. The position is quite simple. One can be available for self-employment but one must be available for employment.
§ Earl Russell
I am grateful to the Minister for his reply. Before I decide what to do with the amendment, I should be grateful for a few further replies. I understand that some of the questions about suitability may not come up until a person applies for a job. But can the Minister spell 227 out unambiguously that when a person has a job presented to him, he may yet retain a right to say, "I am not taking this job because I cannot do it", or that he may be able to say—as in the case of the job fundraising for the Labour Party—"I am not going to take it because I think it is wrong"? I should like clear answers to those two questions before I decide what to do with this amendment. If the Minister would consider that for a moment, I should be extremely grateful.
§ Lord Inglewood
The short answer is that it is always open to a jobseeker to turn down an offer of employment if there is good cause for doing that. That seems to me a fundamental principle. As regards the point that the noble Earl raised, it seems to me that there would be good cause if a person was unable to do the job. As regards his second question, I would object to doing the job that he has described but I do not think that one could say it was against my religion to do it. However, at the end of the day, it is a matter of seeing whether the test of good cause, as it is currently extensively defined, would meet the particular circumstances of the case.
§ Lord Campbell of Alloway
The situation would not arise because once the Labour Party discovered who my noble friend was it would not employ him anyway. Therefore that is a wholly hypothetical question.
§ Baroness Seear
There is an additional point; namely, that it is absolutely maddening from an employer's point of view—my memory goes back a long way on this—if totally unsuitable people are sent for jobs. It is highly desirable that there should be some selection before that point. There is the classic case of an employer who wanted a hydraulic engineer but who was sent a plumber. That sort of thing is extremely irritating. I hope that point will be taken into account and not only the point about what is convenient from the point of view of the employee. On what basis are the people in the Employment Service being paid? Does their pay in any way depend on the number of people they send forward for jobs or the number of people for which they get placements? It is important that we should know how they benefit in relation to the people they submit for employment.
§ Lord Swinfen
Before my noble friend responds to that point, perhaps he can tell the Committee whether a jobseeker's conscience can be taken into account. For instance, someone may be conscientiously opposed to the fur trade, and the only job on offer is one on a fur farm. Would that person be entitled to turn that job down and still be able to claim benefit? That, in my view, is a better analogy than a political one. However, that may be the only job going and the person concerned may have been looking for work for many months. Would he still be able to turn that job down on grounds of conscience?
The Earl of Dudley
On that same point, even if it is a fundamental principle that a jobseeker may be able to turn down a job, is there a safeguard written into the legislation that he can do so without risking being disqualified for the jobseeker's allowance, or forfeiting it?
§ Lord Inglewood
A number of questions have been asked. I shall begin with the most straightforward one that was asked by my noble friend Lord Swinfen. In the proposed new Clause 6(2)(b), one of the grounds for restriction of availability is conscience. I hope that answers my noble friend's point. Obviously that must be tied in with good cause, and it must be genuine conscience. That takes me to the point made by my noble friend behind me. If you have good cause for not taking a job, then the various provisions and penalties which can come into play will not come into play. The two most important points were made by the noble Baroness, Lady Seear. Her first point concerned the Employment Service sending unsuitable people to employers. It is not ever the intention of the Employment Service to do that. Its intention is to send people to jobs for which they are suitable. First, the Employment Service wants to try to put people into work; and, secondly, it does the Employment Service's reputation no good at all to be accused of sending "duff people to employers. That will reduce the achievements of the Employment Service on behalf of the unemployed. I hope that answers the points that have been raised on this matter.
§ Baroness Seear
The Minister did not answer my point about how staff in the Employment Service are paid. That is an important point.
§ Lord Inglewood
I apologise. I had a feeling in the back of my mind that there was a further point that I had not replied to. The staff in the Employment Service are paid on the same basis as staff in the Civil Service. There is a series of targets and rates which are assessed by an overall system. We shall deal with that issue in greater depth elsewhere in the Bill. I suggest that that would be the appropriate time to take up this point.
§ Earl Russell
The plot thickens. Are we now being told that an employment officer may affect the performance targets of his service if he does not send someone to apply for a vacancy? If that is the case, that would materially affect the situation.
The Minister has made a very gallant and careful attempt to reassure me. My misgivings have not entirely disappeared; they have been reduced. They have been reduced almost entirely by the invocation of good cause. That makes me the more concerned that under this Bill the Minister, and the Minister's successors—and we do not know who they will be —will have the power to define "good cause" by regulation. Therefore, the safeguard on which we now rely could be removed altogether. That is an issue which, together with the issue of performance related pay, my noble friend Lady Seear raised, both of which I shall address in the appropriate place. In the meantime, I beg leave to withdraw the amendment.
§ Amendment No. 6, as an amendment to Amendment No. 4, by leave, withdrawn.
§ Earl Russell moved, as an amendment to Amendment No. 4, Amendment No. 7:
§ Line 6, leave out ("may") and insert ("shall").
§ The noble Earl said: This is one of a series of amendments which replaces the word "may" with the word "shall". All the way through, the government amendment says simply that they "may" bring in 229 regulations. My noble friend Lady Williams pointed out just now that all the safeguards that we have been told about in relation to conscience, religious conviction, physical or mental condition or caring responsibilities are safeguards which the Minister may introduce in regulations. One casual act of omission could blow them all away in a puff of smoke. If we let the provisions go through in their present form there is nothing that we could do about that.
§ There is a whole string of such instances, and if we are to make the Bill watertight, and if we are to put any weight on a series of often quite useful assurances that we have been given, we need the Bill to be in a mandatory form. Without that we do not have any reassurance. I beg to move.
§ Lord Inglewood
I get the feeling that the noble Earl does not trust the Government. I have the suspicion that he thinks that the Government will welch on their commitments.
§ Lord Inglewood
We set out our intentions at length at the opening of this afternoon's debate. They repeat the proposals contained in the White Paper. I emphasise once again that the provisions for restrictions on availability are central to our policy on availability and central to JSA. We do not want to, would not and I suggest could not disappoint people with disabilities, carers and people with sincerely held religious convictions by failing to act on our commitments. Provisions will relate in different ways to restrictions on the nature of employment, on the hours in the week and the pattern of those hours across the week, on the terms and conditions of employment and on the locality within which a person may restrict his availability.
However, the regulations will be complex and the legal confines of a duty are sometimes difficult to interpret. A duty to make regulations creates a duty to make regulations to the extent set out in the primary legislation. Without in any way stepping back from our absolute commitment to provide for restrictions to availability in regulations, it is important to retain a degree of flexibility should we find, through experience, that the same results could be achieved in a more effective way but one which may involve using different powers. I regard a power to make regulations as more appropriate in these circumstances and therefore cannot accept the amendment.
§ Earl Russell
The Minister asks me to trust him and at the same time asks to retain flexibility. That reminds me a little of a Member in another place who once said that the King was like a debtor who said "I owe you nothing, yet pray trust me". He cannot really use both of those arguments. I should like to know which he will rely on.
The Minister seems a little surprised about my not trusting the Government. I can recall the noble Lord, Lord Rippon of Hexham, saying in this Chamber that it is not the business of Parliament to trust the Executive; that is 230 entirely independent of party. We are here to distrust the government—nothing personal, nothing to do with party. We are here to distrust governments of all sorts and all types. It was, after all, a Prime Minister of my own party, I regret to say, of whom it was said:Count not his broken pledges as a crime. He meant them, how he meant them, at the time".The person who wrote that is said to be none other than Lloyd George himself.
Therefore, I am sure that the Minister understands why I believe that it is important that we have a little more certainty. The Minister says that a problem would arise from a specific requirement to make regulations. I accept that. I understand it very well. However, I was not the one who insisted that this Bill should go down the regulation-making road. If the Government wish to put matters as vital as this in regulations, they must give us an assurance that they will actually make the regulations. Is the Minister prepared to give that assurance?
§ Lord Inglewood
Yes. I am in a position to give that assurance and do so willingly, if the noble Earl will believe me.
§ Earl Russell
I beg leave to give the Minister the benefit of the doubt and to withdraw the amendment.
§ Amendment No. 7, as an amendment to Amendment No. 4, by leave, withdrawn.
§ [Amendments Nos. 8 to 1O, as amendments to Amendment No. 4, not moved.]
§ 6.45 p.m.
§ Lord Wise moved, as an amendment to Amendment No. 4, Amendment No. 11:
Line 14, at end insert:
("and may 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: When this matter was last debated many examples of the way in which volunteering helped the unemployed were quoted. My noble friend the Minister appeared to be impressed by the arguments put forward. That is why I ask that the matter be considered again.
§ I believe that comparisons need to be made between government-sponsored schemes for the unemployed and the successes achieved by both formal and informal voluntary schemes.
§ Everyone accepts that the first priority of jobseekers must be obtaining paid work. However, it is also accepted that for a number of reasons jobseekers are often advised to take a place on a training scheme. Sometimes there are long waiting lists for such places. Many voluntary organisations are able to offer both formal and informal schemes to the unemployed which are just as helpful. I ask again that such opportunities are recognised as positive outcomes.
§ That happens informally now. One positive example was given to the National Association of Volunteer Bureaux only the other day by a woman graduate who is now employed by a local development agency in Cumbria. Her local employment office gave her every assistance when she wished to become a volunteer with 231 the British Trust for Conservation Volunteers. She gained administrative and managerial experience and found herself negotiating with parish councils and other bodies in the course of that work. She is adamant that but for that experience she would not have obtained her present post, which is not in the environmental field.
§ The negative side is that she told NAVB that people in a neighbouring area were discouraged from joining such a scheme because of the time commitment of 15 hours a week. If paid jobs were available it would be difficult to argue with that ruling, but they were not. It seems to many of us that such a scheme compares favourably with many official training schemes.
§ In 1993 Professor Alan McGregor of the University of Glasgow wrote an independent evaluation report which examined the work of five programmes run for unemployed people in the Greater Glasgow area. One of them consisted of work normally associated with a volunteer bureau. The unemployed were not compelled to join up nor asked to do set amounts of hours. During their involvement with the Glasgow Volunteer Centre they continued to sign on and had to meet normal benefit regulations—for example, regarding availability for work. The positive outcomes from this scheme were 57 per cent. Nearly 70 per cent. of those positive outcomes were job entries. That compares very favourably with official training schemes.
§ For those reasons, I once again ask that voluntary work be recognised as a positive outcome. As the noble Baroness, Lady Williams of Crosby, said in the last debate on this subject, that is not the first outcome. That must always be obtaining paid employment. But surely it is on a par or just behind official training schemes.
§ I should like to make one further point. The new allowance will be dealt with by benefit offices and employment offices. Will that cause further confusion? If it were to do so, surely that is another valid reason for counting volunteering as a positive outcome so that at least that situation is clarified.
§ In view of the considerable support that this ordinary amendment received at an earlier stage, and the response that the Minister gave, I hope that he may yet be persuaded to accept the amendment. I beg to move.
§ Baroness Williams of Crosby
I strongly support the amendment. Perhaps I may add two points to those that the noble Lord, Lord Wise, so eloquently made.
First, the term "positive outcome" is, as he indicated, a state of the art term. That it should be a positive outcome will affect what employment officers do. The term does not simply mean a positive outcome in the sense that we might say that it was a good thing for someone to gain a job as a volunteer if they were unemployed. The term involves an incentive for employment officers to encourage people to accept voluntary work, as I understand it.
Secondly, perhaps I may make this brief point in strong support of the noble Lord, Lord Wise. One of the greatest dangers of being unemployed over a period of time, even for someone highly motivated to obtain work, is the gradual rotting of that motivation and of losing the habit of work —not having to get up in the morning or to make 232 provision to get to work. That loss of motivation gradually begins to sour and undermine even the strongest personality. Any of us who have experienced living with unemployed people know that phenomenon.
The great advantage of permitting voluntary work to stand alongside the attempt actively to seek remunerative work is of significant and great importance. It is also of great importance to those who benefit from the work of volunteers, many of whom are becoming increasingly dependent on volunteers for assistance.
It is in strange symmetry that noble Lords today discussed the Mental Health (Patients in the Community) Bill which puts great emphasis on the work of volunteers in the area of care in the community. There is vital need for volunteers in that field, as in the care of aged people. Surely we should do everything possible to encourage and to respect volunteering. I strongly commend the noble Lord's amendment. I very much hope that the Minister will find it acceptable.
§ Lord Norrie
I, too, support my noble friend's amendment which gives full recognition to the value of volunteering where this would improve an unemployed person's experience, skills or job prospects.
Amendments Nos. 23 and 45 in this group concern unemployed people who offer their services as volunteers for charities or other voluntary bodies. The exact purpose of my amendments is to ensure that, before regulations are brought before Parliament, the voluntary sector will be consulted on relevant aspects of those regulations. As noble Lords may be aware, provision for consultation about regulations is relatively commonplace in legislation.
Let me give noble Lords two examples. Part of Section 91 of the Agricultural Holdings Act 1986 provides that regulations be subject to consultation with persons having experience of land agency and farming. In this case, it would be, for example, the National Farmers' Union which would discuss the content of the regulations. Part of Section 77 of the Charities Act 1992 provides for consultation with appropriate persons or bodies before regulations are made. For example, it might be the Church Commissioners or the NCVO. I believe that regulations arising from the Jobseekers Bill are a proper subject for consultation with the voluntary sector.
The Committee is aware of the extent and value of work undertaken by charities and voluntary organisations. We heard during Committee stage about the confidence, experience, self-discipline and skill which can come from volunteering. We heard of cases where volunteers had been deterred from valuable voluntary work because of benefit rules. We heard of the fears that the Bill could make matters worse for unemployed people who volunteer. Those fears are shared by the many voluntary organisations to which I alluded when we last debated the clause.
I was pleased that my noble friend Lord Inglewood was able to give very helpful assurances on that occasion. He confirmed that jobseekers who undertake voluntary work will continue to be allowed 48 hours' notice before taking up an offer of a job. He also stated that any volunteering work which a jobseeker is undertaking will be taken into consideration when assessing whether he or she is "actively seeking work".
233 My noble friend Lord Wise asked my noble friend the Minister to confirm that the Government will consult the voluntary sector on the drafting of any new regulations. The Minister said that he confirmed those matters. In the spirit of that reply, I trust that the intention of the amendment that I have tabled will be accepted by the Government.
Members of the Committee have expressed concern that regulations may be prepared without proper consideration or guidance from this House. One way to provide greater opportunity for reflection and avoid the pitfalls of haste would be to ensure that proper consultation takes place. This sort of consultation would help to draw from the enormous practical experience which exists within the voluntary sector. It would also assist in making the intention of regulations clearly understood and avoid inconsistency of application. It would help to ensure that the intention of Parliament and the Government at least to carry forward existing provision for unemployed volunteers is put into practice. In that context, I welcome the comments made by my noble friend Lord Mackay of Ardbrecknish this afternoon concerning Clause 6(4) of the Bill.
The commitment of the Prime Minister and the Government to volunteering is not at issue. I should like to remind the House that on 1st April 1995 the Prime Minister extolled the virtues of volunteering at the Conservative Central Council meeting in Birmingham. He said:Duty and Responsibility are instinctive to Conservatives as a Party, and as people. Ask the huge number of Conservatives who run Voluntary Services, Meals on Wheels, Citizens' Advice Bureaux, Red Cross shops, and a hundred thousand charities up and down the land … I … want to provide more opportunity for people to help others".The Prime Minister has publicly proclaimed the value of volunteering. We need to consider how best we can ensure that the regulations made under the Bill will encourage volunteers rather than impede them. It is in that spirit that I ask my noble friend to accept the principle of my amendments.
§ Baroness Hollis of Heigham
From this side of the Chamber we warmly support Amendments Nos. 11 and 23 and the double-backed amendments (if I may so call them), Amendments Nos. 30 and 45.
I believe that all the major parties are considering proposals for voluntary citizens' service—the chance for young people, especially those between 18 and 25 years, to volunteer for, say, three months with voluntary organisations concerned with homelessness, the disabled, the elderly or the environment.
There is no dispute in the Committee. We all recognise that volunteering allows both those who volunteer and those who receive the voluntary work to tackle issues of crime, unemployment, social fragmentation and the growth of inequality. We all recognise that volunteering helps to bond people to each other. As we explored at Committee stage, in the process it helps skilled volunteers in all kinds of positive ways in the world of work.
Yet the most recent survey reported by the Demos think-tank which featured in the national press showed that only 5 per cent. of the volunteers were unemployed. That is half the rate of the population. All the research shows that the more educated, wealthy and successful you 234 are, the more likely you are to be a volunteer. However, as the noble Baroness, Lady Williams, rightly said, those who have the most time and the most social need to find a purpose, and, as the noble Lord, Lord Wise, said, those most in need of skills, of openings in the labour market, knowledge of the labour market and networking, those unemployed people are the least likely to volunteer.
Community Service Volunteers suggests to us that the main obstacle is the stifling effect of the benefit system. Benefit rules prevent those who have the most to give and the most to gain from volunteering from doing so. Helping out in school for a couple of days a week may lose a person benefit.
Today I received a report from the National Trust. A recent survey of 25 volunteers who worked last year with the trust in the Lake District revealed that seven secured permanent or temporary posts with the National Trust, 12 obtained employment with other environmental organisations and six went on to higher education. As a result, there were seven jobs within the National Trust, 12 with other environmental organisations and six in higher education. Out of 25, that record of placement and improvement is almost unrivalled in any government scheme of which I am aware. Yet the National Trust reports that recently it closed down a project involving structured work experience for seven volunteers in Kent because of major difficulties with the employment service. After three months, benefit was refused and the employment office insisted that the volunteers should apply instead for government training schemes or seek work in fields unrelated to their qualifications and interests. How short-sighted can we be, and how short-sighted was that?
I have some questions for the Minister to reinforce those already raised. Will the Government consult not just about these regulations but, after April 1996, on any subsequent changes to regulations? In what way will they consult? Further, following the remarks of the noble Lord, Lord Wise, and given all the evidence on how successful a placement with a voluntary organisation is, will the Government allow such work to be treated as a positive outcome? All kinds of conditions may be attached, such as that the voluntary organisation is registered with the Employment Service; that with training, the placements are approved as appropriate by the Employment Service; and that the Employment Service should regard the training as reasonable. All those matters can be sorted out in the consultation which the noble Lord, Lord Norrie, suggested. We want people to work together on it.
Surely the Minister can accept that worthwhile work, with a worthwhile organisation which catches the spirit and commitment of the volunteer and where the organisation has a superb track record in placing people in permanent and secure work thereafter, must be an appropriate, acceptable and positive outcome. Will the Minister accept that?
Finally, I have one small point. Will the Government assure us that people receiving incapacity benefit will qualify in the same way as those receiving the jobseeker's allowance? They should also be allowed to continue to volunteer for 16 hours. Can we hope that the Minister will accept the spirit shared by the whole Committee that the major amendments are an important way not only to bring 235 people back into the world of work but into work which captures their commitment and offers them the best we can—a secure place for the future?
§ 7 p.m.
§ Lord Young of Graffham
As someone who has spent many years involved in such matters and who was the author of Restart, I wish to support the amendment, with an important caveat. It appears contradictory, but it is not. It is, first, that the voluntary work should be real and should involve a sufficient number of hours per week to be an adequate substitute for work. It should prevent the claimant from being able to look for work during that period. Secondly, it should be sufficiently short in duration, in terms of months, so as not to become a substitute for work itself. Voluntary activity is voluntary and should not be paid for by the state. With those caveats, I support the amendment.
§ Lord Swinfen
I wish to support the amendment, particularly as regards young jobseekers. They have often had little in the way of work experience and the opportunity of building up good references. It is always useful for a prospective employer to be able to obtain references as to an individual's capacity for work and his diligence. If that person has not previously been in work, surely the employer can go to a voluntary organisation and obtain a reference on how the voluntary work was undertaken. That would be an indication of how the paid employment would be undertaken.
§ Lord Inglewood
Having heard Members of the Committee on the subject this evening, I find that there is no doubt that we are all in agreement on the importance of volunteering in the community. As my noble friend Lord Wise and the noble Baroness, Lady Williams, said, not only is it of great assistance to those who are unemployed, since it helps them to stay in touch with the labour market and provides them with an opportunity to maintain and develop their skills while looking for work. But also, clearly, volunteers are a great help to the voluntary sector. That is one of the reasons why we are happy to consider the views of the representatives of the voluntary sector before regulations are drafted in the future.
Certain examples were given of the way in which, it was alleged, the activities of the Employment Service got in the way of people wishing to volunteer. Without having chapter and verse, it is impossible for me to comment on them. However, we believe that volunteering within the context of actively seeking and being available for work benefits people. We wish to see it happen if it is slotted in with the overall scheme of things.
As my noble friend Lord Norrie pointed out, one of the Government's proposals in the Bill is to make a number of significant special provisions for volunteers. It is important that we do not forget that. As I explained before, I am still unconvinced about the proposal to treat voluntary work as a positive outcome from a Restart interview. The position is that all claimants who have been unemployed for six months are required to attend such an interview and to continue to do so every six months as long as they remain unemployed.
236 The Employment Service, as part of its annual performance agreement with Ministers, has targets for positive outcomes achieved from certain Restart interviews. They are designed to maximise the effectiveness of the Restart process in helping claimants back to work. It is important to emphasise that. Examples of positive outcomes include placings into jobs and referrals to programmes. I do not think that it would be right to treat voluntary work as a positive outcome, since the jobseeker doing voluntary work—that was the point made by my noble friend Lord Young—is still unemployed.
Similarly and in parallel, it would not be appropriate or right to set out specific positive outcomes in legislation. After all, there are no positive outcomes listed in legislation at the moment. Nor for that matter are any other Employment Service targets. As we have stressed before, it would be most odd to do so, since those are primarily management tools which change from year to year.
In view of the commitments that we have given, I hope that my noble friends and the noble Baronesses will agree that it is not necessary to put such undertakings on the face of the Bill. I hope that in view of that they will feel able to withdraw their amendments. However, in saying that, I wish to emphasise that it in no way lessens our commitment to volunteers.
§ Baroness Hollis of Heigham
I am puzzled by the Minister's reply. I took his words down. He said that he was concerned about how volunteering and so on,slotted in with the overall scheme of things".He went on to argue that, nonetheless, volunteering and placement in an appropriate and, I hope, approved volunteer course would not be counted as a positive outcome. He reminded us that the function of the JSA was to support someone while they were actively seeking work. The Minister is of course right. But he failed to remind the Committee that one of the outcomes is not just a job, but a training course. That is fine. But perhaps the Minister can help by telling us why an approved placement with a voluntary scheme would not also count as equivalent to a training course. There could be negotiations with the voluntary organisations to see that that provision was met. Can the Minister tell us what aspects a voluntary placement would have to show for it to count as a training placement?
§ Baroness Williams of Crosby
Perhaps I may raise one other point before the Minister replies. He was extremely helpful on this issue at earlier stages of the Bill. I hope he will forgive my saying that I thought his answer had a certain bureaucratic ring to it. I fully accept that the phrase "positive outcome" may not be the appropriate phrase; but I am sure that it is well within the ingenuity of the Minister to find another phrase which would provide an incentive to employment officers to accept volunteering as a truly positive outcome, although he may want to use a word that is not a term of art, as this one is. Surely it would be possible in regulations to use such phraseology as, "It will be regarded as an outcome that can be widely accepted although it may not be in technical terms a positive outcome". I am sure that the noble Lord can easily find language which implies that the outcome 237 is positive without necessarily using the term of art to which his brief clearly objects. I ask him to consider that point.
§ Lord Inglewood
In relation to the points made by the noble Baroness, Lady Hollis, as to schemes, the crucial requirement in respect of the jobseeker's agreement is that the two tests must be met: availability for employment and actively seeking employment. Therefore any volunteering has to fall within the framework of those two criteria.
The point about voluntary work is that the volunteers who do it are willingly and constructively working for some organisation. The approved government schemes are exclusively focused on getting people back to work. We have already heard examples—most of them, I am glad to say, from my home county of Cumbria—of how voluntary work is of positive benefit in achieving a job. At the same time when people are doing voluntary work, that is not the prime purpose of the activity. The point about referrals to approved government programmes is that they are exclusively focused on the overriding objective; namely, to get the people concerned back into work.
§ Baroness Hollis of Heigham
Perhaps the Minister will forgive me for intervening. The Government's new Clause 6A states that,For the purposes of this Act, a person is actively seeking employment in any week if he takes in that week such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment".Why should that not include volunteering?
§ Lord Swinfen
I get the impression that my noble friend is on a slightly different tack to the rest of us. I get the feeling that he considers voluntary work to be an alternative to fully paid employment. I do not think that any other Members of the Committee take that view. What we suggest is that an unemployed person doing voluntary work can do it quite happily without it interfering with his or her jobsearch and at the same time can be of benefit to the community. Such people can give themselves additional skills, and possibly put themselves in a position to build up Brownie points, credit points and good referees who might help them towards finding work. I have the feeling that there is a misunderstanding on my noble friend's part. None of us suggests that voluntary work is an alternative to full-time employment, but it can be a very good adjunct to seeking full-time work.
§ Lord Inglewood
My noble friend Lord Swinfen is right. However, what he describes can be done now. Voluntary work has obviously in the past been of benefit to many people and will no doubt continue to be so in the future. The other point to remember is that voluntary work is one of the list of circumstances that are taken into account when determining whether someone has met the "actively seeking employment" condition. It is not the only criterion; it is one of the criteria.
§ Baroness Seear
Is the noble Lord's trouble that "positive outcome" is a term of art, and means something quite specific? Would it be preferable to use the term "a positive activity" or "a suitable activity" to be taken into 238 account at the restart interview? In that way we could get over the "term of art" problem which I believe is the noble Lord's difficulty.
§ 7.15 p.m.
§ Lord Inglewood
The noble Baroness is right. As I endeavoured to explain in my remarks, this is part of the means whereby the Employment Service measures itself for its own purposes. I do not believe that any Member of the Committee would dissent from the general proposition that doing voluntary work is helpful to people and should be encouraged. I am merely trying to make the point, and to emphasise, that the purpose and whole thrust of this legislation is to get people back into employment. That is the first and principal target that we have.
§ Earl Russell
The Minister has illustrated the harm that is done by the performance related concept of "positive outcome".
§ Baroness Hollis of Heigham
The problem is that "positive outcome", as the Government now have it, has two possibilities. The first is work—and we all agree that that is what we wish to see people able to accept. But it also includes steps to getting work: for example, a training place. We argue that voluntary work, subject to any conditions of consultation, should also be regarded as a step to getting work and should therefore count as a positive outcome. Voluntary work is not ultimately an alternative to full-time salaried work. It may be a worthwhile route to getting work and may take more than 16 hours a week, in the same way as training may take more than 16 hours a week. But it is an approved, recognised, well-regarded and appropriate step to work and should therefore be treated as a positive outcome in the same way as training is, although not in the same way as work is. That is the distinction that we ask the Minister to join with us in accepting. Can the Minister help us?
§ Lord Inglewood
The noble Baroness has helped me, but there is still a difference between us in emphasis and in the way that we describe these matters.
§ Lord Wise
I must confess to becoming more and more confused as the debate went on. Obviously I am somewhat disappointed in the remarks of my noble friend the Minister. I listened carefully to them. I thank all noble Lords and noble Baronesses who supported this amendment. I cannot for the life of me see why my noble friend cannot accept it. I am somewhat concerned that under the present arrangements unemployed people who volunteer can be treated inconsistently by local employment officers. Given the new regulations and the new allowance that will come into being, I fear that unemployed people may be unduly deterred from volunteering. That will possibly be so.
However, on the basis of the Minister's comments, I shall withdraw the amendment. I look forward to seeing at the next stage of the Bill how he proposes to deal with the issue of volunteering and consultation with the voluntary sector. I beg leave to withdraw the amendment.
§ Amendment No. 11, as an amendment to Amendment No. 4, by leave, withdrawn.239
Baroness Trumping ton
I beg to move that the Committee do now adjourn during pleasure until 7.50 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.19 to 7.50 p.m.]
§ Earl Russell moved, as an amendment to Amendment No. 4, Amendment No. 12:
Line 14, at end insert:
("Provided always that regulations shall not have the effect of creating any new conditions of eligibility").
§ The noble Earl said: Amendment No. 12 is an amendment of some importance and needs to be argued on two different levels. I heard what the Minister said on the first amendment about the use of regulations for detail. He will have heard what I said in reply; that from time to time what is defined as a detail tends to grow, as it has always been said the prerogatives of princes daily grow. The amendment attempts to put a line under that, to say that any new condition of eligibility for benefit such that a person could be deprived of benefit if he did not need it, is not a detail and should not be put into regulation under the Bill.
§ There is a perfectly serious political case to be made for that. Conditions of eligibility for benefit are serious matters. People's livelihoods are at stake. Last Sunday I heard the Secretary of State for Employment, speaking on "The World This Weekend" say that the British people should be subject only to laws made in the Parliament which they have chosen. With appropriate reservations and on the appropriate subject matter, we would agree with that entirely. But the Secretary of State's Bill does not entirely live up to his criterion. Regulations are not made in the Parliament which the British people chose; they are made by the Minister, as ministerial language occasionally reveals, and are merely rubber stamped, passed or put through a consultation process very much like that of the social security advisory committee in this Chamber.
§ That is the first point of principle. The other point, which goes to the nature of the way the Bill is drafted, is that the Bill sets out to prescribe so carefully all the tests, all the criteria, all the steps, that it is easy for some of them to go over the watershed and become in effect new conditions of eligibility for benefit. For example, the power by regulation to define, "good cause". The noble Lord, Lord Inglewood, went to great trouble to assure me about "good cause" earlier this evening. But, since regulation can change what is to be taken for "good cause", those reassurances can be valid only until the next lot of regulations are introduced. After that we must begin all over again. We are seeing a long series of steps being set out as proof that the claimant is actively seeking employment. They may not be the same steps that appear to the claimant to be the ones that put him in the best position to obtain employment. So, from the claimant's point of view, they may very well resemble conditions.
§ I can understand the Minister saying that he would not accept the claimant's word without question. That would be only proper. But what is or is not "good cause"; what are or are not "sufficient" steps to prove one is actively seeking employment are not the sort of things that 240 legislation can set out in exhaustive detail. They are matters which must be left to judicial resolution. If we set them out in detail the Government may find that they are prescribing new conditions of eligibility for benefit almost before they are aware that they have done so. This is something which needs judicial oversight and attention if respect is to continue to be given to the sovereignty of Parliament. Parliament must be able to spell out what are the conditions of eligibility for benefit and what are not. If Parliament cannot do that, the Minister will be left doing it on his own, which will get us into a situation where his will is law. That is not something which any real defender of parliamentary sovereignty could possibly stomach. I beg to move.
§ Lord Inglewood
I am grateful to the noble Earl, Lord Russell, for explaining his position in regard to this amendment and I now understand the point he is trying to make. It must be axiomatic that new entitlement conditions cannot be introduced through regulations as a matter of principle. If we look at Clause 6, subsection (1) is qualified by subsection (2). It is merely a matter of defining or refining the matters that are determined in new Clause 6(1).
In relation to the clause, it is clear that subsections (2) (a) and (b) relate to specific restrictions which cut down the scope of a wider provision contained in Clause 6(1). But the important point made by the noble Earl is one we discussed earlier this evening, at the beginning of this afternoon's debate. We explained to the Committee that we do not wish to extend the eligibility criteria by regulation; we believe that they should be set out clearly on the face of the Bill. The noble Earl is concerned that in some way, through the use of regulations—a mechanism of law-making which, from his perspective, is one which does not provide suitable parliamentary scrutiny—we will impose new conditions on the jobseeker which are not on the face of the Bill.
I must return to our earlier debate. As my noble friend explained, in regard to new Clauses 6 and 6A we intend that regulations made under the new clauses should be subject to the affirmative resolution procedure. That will bring Parliament further into the consideration of matters which, as the noble Earl explained, are obviously important to the working of the Bill. But the fundamental point—it is one to which I must return—is that we cannot add to the entitlement conditions on the face of the Bill by introducing new matters through subordinate legislation, because the subordinate legislation locks back to the matters which are on the face of the Bill.
I understand that the noble Earl may feel that that is an unsatisfactory reply. For him to take that view would be consistent with the position he has been arguing ever since we began to talk about this point some days ago. We do not seek now under existing legislation, nor do we seek under the JSA legislation, to extend the conditions of eligibility through secondary legislation.
§ 8 p.m.
§ Earl Russell
I am grateful for that reply. I hear what the Minister is saying. He is perhaps a little optimistic 241 about it. He said—I think I have his words down correctly—that it is axiomatic that regulations can create no new conditions. But paragraph 17 of Schedule 1 states:Regulations may require additional conditions to be satisfied with respect to the payment of a jobseeker's allowance to any person who is, has been, or is to be, in employment which falls within a prescribed description".That appears to be a specific gift of vires to impose additional conditions. I understand what the Minister says about the vires being locked back to what is in the Bill. I understand that the point is perfectly genuine. I am not convinced that it is sufficient, because the conditions are simply the very general ones of being available for employment and actively seeking employment.
I have had no answer at all to what is my very much deeper concern that the Bill is attempting to spell out in such detail what shall be taken as evidence of actively seeking employment and of being available for employment that the tests, just like performance indicators, take over from the real thing, that the shadow displaces the substance and that the things which are supposed to be evidence of actively seeking employment will themselves be elevated into conditions.
Clause 6(3) of the old Bill is a classic example of that, and I notice that no attempt has been made to change it in the new Bill. All the way through the Bill these tests and steps are being spelt out through regulation. They are going to be taken as evidence of the primary criterion—I think very often inappropriately taken as evidence; and, if inappropriately taken as evidence, if they appear to the Minister to be suitable tests when they do not appear to the rest of us to be suitable tests, they will appear to the rest of us to be new conditions of eligibility and, what is more, they will appear to the claimant to be new conditions of eligibility. I cannot let this Bill go until I can get some satisfaction on that point. I should be very grateful if I could have an answer to it.
§ Lord Inglewood
I shall begin by referring to the point raised by the noble Earl about Schedule 1. It will be used in very particular circumstances to adapt the JSA regime for groups who have access to benefit under special conditions who are given more favourable access in general. The two groups concerned will be share fishermen and temporarily stopped workers.
The general point which the noble Earl raised must be one of concern but it is certainly not the Government's intention that items which are evidence should by some process of osmosis or transmutation suddenly find themselves turned into items which are articles of principle and items of law. The noble Earl made that distinction and explained that he was concerned that this process may take place. All I can do, standing here at the Dispatch Box, is to recognise that there is at least a theoretical possibility that the distinction he makes could occur and explain that it is not the Government's intention that the distinction between evidence and law. should be blurred in the manner in which the noble Earl describes.
§ Earl Russell
I am grateful for that reply. I am particularly grateful for the reply about paragraph 17 of Schedule 1. If that could be spelt out rather more clearly, it might save me from moving an amendment to delete 242 that later on. The intention is one I can only welcome. But the words at present do not confine the Government to the intention the Minister stated.
On the question of evidence and intention, let me take a parallel case. Suppose one of our spouses should require as evidence that we love them that we present them with 12 red roses every day. We might think that there was a disjunction between the deed and the intention and that it was possible for one to exist without the other. The spouse would not think that. She would not think that she was creating any new test of love. She would simply think that if one loved her one would do what was required. The perception of those who are imposing the test is necessarily different from the perception of those who are receiving it. The Government really have to take that into their head. I understand that they do not think they are imposing new tests, but do they understand that the rest of the world, and possibly the courts as well, will not see it the same way?
§ Lord Inglewood
Perhaps it would be useful to talk about paragraph 17 of Schedule 1 on another occasion. The noble Earl was talking about the distinction between evidence and law and instanced the case of 12 red roses. The key to the process on which the Jobseekers Bill will proceed is that these things must be measured not subjectively but objectively—whether it is by the adjudication officer or ultimately by the Social Security Appeals Tribunal, the commissioner or the courts. In those instances they will have to act in accordance with the principles of natural justice. We have introduced concepts such as reasonableness and good cause—the noble Earl has referred to them and has expressed concern about the way in which they are bedded into the Bill—in order to give that objective standpoint from which these matters have to be judged rather than the purely subjective one which the noble Earl is concerned will find its way into the workings of the entire Bill.
§ Earl Russell
The Minister has spoken with the best of intentions but I think he has given vent to the deepest fallacy in Whitehall. That is the notion of the objective test. We are familiar with objective tests. The noble Lord, Lord Mackay of Ardbrecknish, and I have had many arguments about an allegedly objective test for incapacity benefit. The point about these tests is that they appear objective to the person who composes them but to anyone else they appear to be no such thing because they represent what appears to be objectivity to one particular mind with one particular outlook.
It really is not convincing. The desire to be objective is of course fine but it results in a search for outward and visible signs which may in fact be quite irrelevant to the criteria we are really trying to get at. It is the same with the whole Whitehall machinery of performance indicators. In my own professional field a good score on the performance indicators and a good performance are absolutely totally different. The one may totally inhibit the other.
I understand that the Minister thinks he is being objective. That really is not the human condition. The Minister is trying to be objective and that is a very, very different matter. I really must ask him to think a little more about this before the next stage of the Bill, when we must 243 return to it and, I am afraid, return to it in a great many places. It really will not do as it is. In the meantime, I beg leave to withdraw the amendment.
§ Amendment No. 12, as an amendment to Amendment No. 4, by leave, withdrawn.
§ [Amendment No. 13, as an amendment to Amendment No. 4, not moved.]
§ Baroness Williams of Crosby moved, as an amendment to Amendment No. 4, Amendment No. 14:
Line 23, at end insert:
("( ) Notwithstanding the provisions of subsection (3) above, in the case of claimants suffering from a physical or mental handicap restrictions appropriate to a claimant's capacities shall be acceptable even if they do not offer a reasonable prospect of employment.".
§ The noble Baroness said: In this amendment I can follow fairly directly from the point made by my noble friend on a previous amendment and perhaps again cast some light for the Minister as to why there seems to be so many amendments on these lines from this side of the Committee.
§ The problem with the Bill—and the Government's amendment has gone some way to meet it and, again, we are very grateful for it—is that it leaves the issue of the determination of the definition which is now on the face of the Bill still subject to regulation. In many cases, although those regulations may be conceived and drawn in the most farsighted and imaginative way, this is a Bill which will turn into an Act and that Act will be on the statute book. Governments come and go with different Secretaries of State for Employment. One has to allow for the possibility that they may not all be balanced and fair in their approaches. Therefore one has to look at what is actually said on the face of the Bill.
§ Therefore, I particularly draw the attention of the Minister to two aspects. The first is the broad aspect and I believe that my amendment and the ones grouped with it address themselves to the issue that Ministers will know has concerned this Committee time and again in the course of this Bill. I refer to the worrying gap between people so disabled or otherwise affected by mental or physical problems, that they are unable to meet the disablement income benefit tests yet for reasons connected with those disabilities they are also unlikely to get employment.
§ I shall give one striking example. Someone may have a physical disfigurement like a birthmark. That might mean that it was very difficult for him to get a job, although he tried very hard to do so, in virtually any work that involved interaction with the public yet for the purposes of disablement income benefit he would certainly fail to satisfy the conditions laid down. It is this gap, described at one stage by the noble Baroness, Lady Hollis, as the gap or stools between which disabled or handicapped people might fall, that this amendment addresses.
§ Secondly, the amendment uses the verb "shall" instead of what is repeatedly in the Government's amendments, especially new Clause 6B; namely, the verb "may". "May" leaves it to the employment officer to decide whether to take notice of these conditions, but "shall" requires him or her to do so. Therefore, this amendment lays down that the employment officer shall take into 244 account the restrictions that are appropriate to the claimant's capacities where they arise from a physical or mental disability.
§ The reason we have put in "shall" is that we want it to be a condition that has to be taken into account by the employment officer when he considers the position of the claimant and not one which is open to his or her discretion. Of course, for many claimants that is not relevant, but for those where it is relevant, we believe that it is part of the duty of taking into account genuine—and if I may use the Minister's own term—"objective difficulties"—and that shall be a requirement made on the employment and adjudication officer and not be simply something that he may or may not take into account.
§ The noble Lord may be able to assure me—to quote an earlier part of the Bill—that for 'may' we may read 'shall' and for 'shall' we may read 'may' which would go some way to comfort me, but not a very long way. Can the Minister address the main purpose of this amendment which is to deal with a particular group of our fellow citizens who, through no fault of their own, are disadvantaged in seeking employment? The terminology I have used is very close to that used by the noble Lord, Lord Swinfen, in Amendment No. 16. It tries precisely to indicate that work should be sought by a disabled person, that that disabled person should be available for work, but it necessarily must be within the terms of what his or her mental and physical capacities allow him or her to encompass. I hope that the Minister will take at least a sympathetic view considering the great difficulties in getting employment which already apply to this particular group of our fellow citizens. I beg to move.
§ 8.15 p.m.
§ Lord Swinfen
Grouped with the amendment of the noble Baroness, Lady Williams, are my Amendment Nos. 15 and 16. The purpose of Amendment No. 15 is to allow people appealing against a decision that they are not entitled to incapacity benefit nonetheless to be treated as available and actively seeking work until the point at which their appeal is heard. In the first year of the jobseeker's allowance at least 150,000 people are expected to be considered capable of work and therefore to leave incapacity benefit or income support and disability premium to sign on for the jobseeker's allowance. The Government have stated that in the year 1996–97 they expect about 190,000 appeals to be lodged against a decision that someone is capable of work, as reported in the Official Report of the other place on 28th March at col. 556.
Most of those 190,000 people will have little choice but to sign on as unemployed pending their incapacity appeal. They will have little choice because many people may want to protect their national insurance record by registering as unemployed. If they lose their incapacity appeal they will not be entitled to any national insurance credit for the period between the withdrawal of their incapacity benefit and the date of the appeal. As appeals are taking some 26.6 weeks, as reported at col. 745 of the Official Report of the other place on 17th March this year, that means that someone could lose half a year's national insurance credit if they lose their incapacity appeal.
245 The introduction of the 20 per cent. reduction in income support payments for people who do not sign on pending appeal, is not only an appeal penalty, but may result in additional numbers believing that they have little choice but to sign on for the jobseeker's allowance. Where the person's capacity for work is at the heart of their appeal, it makes sense, in my view, to treat the person as available for and actively seeking work just for the period pending their appeal. It makes sense because it is futile to make Employment Service staff assess someone's entitlement to the jobseeker's allowance when they may not qualify for it after a matter of weeks. It is likely to be time-consuming to assess what restrictions someone may need to place on their availability and to check on the steps that they are taking to actively seek work. It should not be forgotten that the employment staff will have the additional work load of disabled people coming from incapacity benefit and income support, whether appealing or not. If the staff have to spend their time chasing disabled people to ensure that they are really looking for work, they will have less time to assist other long-term unemployed people into jobs which, of course, is the whole point of the Bill.
Treating people as available and actively seeking work also makes sense because the individual is not placed in the position of having to show that they are available and actively seeking work when they may be ultimately considered incapable of all work. Already there is evidence from the citizens advice bureaux and disability organisations that Jobcentres do not consider that someone is really available and actively seeking work pending an incapacity appeal. That is hardly surprising given the logical inconsistency in a claimant being asked to present as being both capable of work and incapable of work at the same time. It does not sound logical.
If people fail the availability and actively seeking work conditions, they may be shunted back to the Benefits Agency for reduced rate income support. Such a person could also appeal against the decision that they were not available for, or actively seeking work, thus having two appeals in progress at the same time, one on incapacity and the other on the jobseeker's allowance. Surely that is not the Government's intention. It would be costly in terms of distress to the individual and to the department in terms of administration.
With regard to Amendment No. 16, which is also in my name, its purpose is to place on the face of the Bill the current law which allows for disabled people to restrict their work availability and not have to show that they have a reasonable prospect of finding work. The statement made by my noble friend during the Committee stage earlier on this Bill indicated that the intention is to carry forward current provisions about restricting work availability in the jobseeker's allowance. These appear in part in the Government's new clause.
Despite statements that the availability rules are to be carried forward, there remains some confusion about the precise position of disabled people who place reasonable restrictions on their availability. In Committee on 25th April, my noble friend was asked to explain his response (in the Hansard record of the debates on 20th April) when he stated that the acceptability of restrictions on availability would depend on the individual 246 demonstrating a reasonable prospect of securing work, as reported in col. 626, which is the reverse of the current rules. This issue does not appear in the Government's new clause. When answering, can my noble friend please clarify that point?
As already mentioned, with at least 150,000 more disabled people having their incapacity benefit withdrawn and therefore signing on, the Employment Service will be faced with an unprecedented number of disabled people who need to restrict their availability. Disability organisations remain concerned that the current law should be reproduced in full and that there should be clear guidance to Employment Service staff about the interpretation of these conditions. Placing the conditions on the face of the Bill will go some way toward ensuring that staff, claimants and advisers are clear about the conditions of entitlement.
There is already evidence that the system is failing to provide. I am sure that my noble friend will appreciate that the amendment will ensure that disabled people will be able to restrict their availability without consideration being given to their prospects of work, given these restrictions. It merely reproduces current law and will clarify the present position.
§ Baroness Hollis of Heigham
We on this side of the Committee would very much like to support the three amendments, moved so smoothly and illuminatingly today. What all these issues have in common is the question of the interface between the new incapacity benefit now in place and the new proposed jobseeker's allowance. We believe that at the heart of the problem lies the fact that the Government got things badly wrong and we shall find out over the next year or two how badly wrong they were. They got it badly wrong on incapacity benefit because they insisted on an either/or test of incapacity for work. Anyone who has worked with partially disabled people knows that the problem is a continuum and not an either/or situation. That is why we shall have so many problems in future.
The Government have given no recognition to the many people who currently receive invalidity benefit but may well be disqualified, and the many more who would have got it but will not now do so but nonetheless will not fit tidily into the definition of "jobseeking". Our fears about that were confirmed when I came across a parliamentary Answer in the other place given on 27th March 1995. It was a referral of claims to the Benefits Agency's Medical Service for the quarter to September 1994. They are references to the Benefit Agency's medical services for sickness benefit, invalidity benefit and severe disablement allowance. This is on the more generous interpretation before the one we have now. The figures for September 1994 for those claims show that 4,000 out of a total of some 31,000 people who appealed in that quarter were capable of undertaking their normal occupation and 27,000 were regarded as capable of some alternative work—I repeat, 27,000 capable of alternative work. We are concerned about those 27,000 as opposed to the 4,000 who could resume their jobs.
The Minister insists that there can be no problem. We believe—we have no reason to think that this is not still the case—that being partially disabled, those people will be denied incapacity benefit. Being partially disabled they 247 must then apply for the jobseeker's allowance, where their partial disability may so limit their capacity for work and ability to find work, if it exists, and then to keep it once they have it, that it will be deemed as being only partially available for work and partially able to qualify for any tests under "actively seeking work".
I know that the Minister insists that that will not be the case. But the Minister is speaking—if I may use a word of which he is very fond—of "hypotheticals". Why engage in hypothetical figures when we can read the book. The book includes the RADAR survey, which showed that even under the more generous, compassionate and lenient regime nearly one-third of the 77 cases which it followed up who were refused invalidity benefit because they were only partially disabled were also refused unemployment benefit because they were partially disabled. That is one third and, incidentally, not one of those who were refused invalidity benefit went on to find work—not one.
So what reassurances can the Minister give us that that will not continue to happen when it has happened in the past and is happening at the moment. Who are we talking about? We have tried to produce some profiles of possible claimants who may, we fear, fall between the two stools. Let me give a couple more examples.
Let us take the case of someone with physical incapacity. That is fairly easy to recognise and understand. Consider someone who comes within the invalidity benefit, the medical assessment for incapacity benefit—someone whose speech is so distorted that strangers have great difficulty in understanding it. He receives 10 points. That person also loses control of his bladder frequently, once a day or more —three points. Nonetheless, that person is refused incapacity benefit, even though he is probably suitable only for a job with little or no public human contact—perhaps a warehouseman or perhaps stacking shelves. But I forgot to mention that that person cannot use one arm in the sense that he cannot lift it to his head or carry any weight with it. For that, as it carries no points, he will still not get incapacity benefit; but it will certainly disqualify him from a job as a warehouseman or stacking shelves, which might be the only jobs which may fit that profile. Here, the employment officer may consider, justifiably, that the limitations on work are so severe that there is no reasonable chance of him finding work. He therefore disqualifies that person from JSA, at the same time denying him access to incapacity benefit.
Or let us take someone with a mental health problem—again a different example from the one that we gave during the last Committee stage. The person is unable to concentrate without sustained prompting, somewhat dangerous because he overlooks the risks associated with dangerous appliances and equipment, is unable to cope with changes in routine, is in distress because of severe mood fluctuations, prefers to be left alone for most of the day and gives up on tasks because of apathy or fatigue—all symptoms of quite severe depression. That person is virtually unemployable, yet with that profile he would get only six points of the necessary 10 points to render him eligible for incapacity benefit. I ask the Minister in the real world what job that person realistically would be available to do or to obtain or to hold. I do not ask about 248 hypothetical jobs but real jobs for a person with that profile of severe depression, unable to complete a task, wanting to be left alone and unsafe to be left alone. What job can that person do? He is disqualified from one benefit and apparently unable to be employed in work and therefore possibly disqualified from another. We need to know of such cases.
Perhaps I may move away from the vocabulary of two stools. What we fear is that in that situation, if the employment officer recognises, understands and sympathises with such symptoms, the claimant might quite reasonably fail the availability for work test on the grounds that his symptoms so limit what he can do that he cannot reasonably gain work. But if the employment officer does not recognise, understand or respect those symptoms, especially if they are in the field of moderate mental ill-health and he thinks that that person should simply pull himself together, he may regard him as not actively seeking work. If he is perceptive and supportive, he will fail the ability for work test; if not, he may fail the actively seeking work test. On one or the other, he will go down the middle. Hence the importance of the amendments.
We believe that restrictions relevant to disability may so handicap a person's ability to hold a job that the prospect of obtaining that work may be so limited that any employment officer could, as the Bill currently stands, refuse that person JSA—those very people who have already been disqualified for incapacity benefit. We need the Minister's help on this. It is no use him trying to assure us again that there will be a seamless web. There is plenty of evidence to the contrary already. We fear that that evidence will grow when we have two more restrictive and demanding benefits seeking to interlock with each other. We wholeheartedly support the amendments.
§ 8.30 p.m.
§ Earl Russell
I should like to add a brief word in support of two points. The first is restricted availability—allowing disabled people to put restrictions on their employment which do not provide a reasonable prospect of employment. We all know of disabled people who had no reasonable prospect of employment but who have nevertheless found it. Those are people who want to work, as so many of them do, but can work only in peculiarly favourable conditions. When they do work, they often work with great distinction to their benefit, to society's benefit and to the Treasury's benefit.
But were those people to be forced to accept conditions which were compatible with a reasonable prospect of employment, they would often be unable to meet them. If it were demanded that they should search for work on those terms, they would be unable to do it at all. If the Minister will accept Amendment No. 14 or Amendment No. 16 —I have no great preference—it would make it a lot easier to get disabled people into employment.
The other point concerns—I should like to ask the Minister seriously to take legal advice about Amendment No. 15—the appeal penalty for appealing against denial of incapacity benefit. Will the Minister take legal advice on whether that is contrary to Clause 40 of Magna Carta,To no one will we sell, refuse, or delay the operation of right or justice"?249 It is my understanding that that is still on the statute book. It is a law which is enforceable in our courts, and there is a long tradition in case law that precisely that sort of thing—placing a financial penalty on those who seek justice—is what that clause was intended to prevent.
If the Government were to lose a court case on this under Magna Carta, it could be extremely embarrassing and lead to a great deal of publicity. Perhaps I may ask the Minister to check first.
§ Lord Swinfen
Before my noble friend replies, the noble Baroness, Lady Hollis, gave examples of people with disabilities who might possibly be seeking work but might well be refused it. Will my noble friend give examples of the type of work the Employment Service will expect them to obtain and how many jobs of that nature it currently thinks are available?
§ Baroness Seear
Does not the Minister now see what a great advantage it is to have a professor of history sitting on one's Benches?
§ Lord Mackay of Ardbrecknish
I might do better with a lawyer from some of the questions that the noble Earl asks, but that is another matter. I am reminded by my noble friend that I have one. My doubts about the noble Earl's question on the Magna Carta is that I am not entirely sure that it encompasses the whole of the UK. I suspect that it does not. My part of the UK was not involved in the Magna Carta, but that may be a subject upon which I shall have to take further legal aid. I suspect that I would not receive legal aid if I tried to get a definition of that!
§ Lord Mackay of Ardbrecknish
Perhaps I may return to the serious matter before us, not that I am suggesting that the Magna Carta was not and is not serious.
I understand the concerns that lie behind these amendments. The easiest way to deal with them is to take them in turn. Amendment No. 14 seeks to recognise that the circumstances of people who have a disability need special consideration. I would like to assure the Committee that we have most certainly taken the needs of people with disabilities into account in drawing up the JSA labour market rules.
I cannot accept the amendment because it would add an unnecessary level of detail to the face of the Bill and it is also technically deficient, since it refers to "restrictions" offering reasonable prospects of employment. I shall address the intention behind it, with which I can agree. I hope to be able to show that the fears expressed in putting forward the amendment are not justified.
I have given those assurances before to the Committee. Déjà vu occurs to me when I think about the answer I have to give. I have given assurances, and I give them again. We intend to carry forward into JSA the current provisions in unemployment benefit and income support which allow a person with a mental or physical condition which limits the work he can do 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 250 condition, and with no requirement that such restrictions should be inhibited by any variation in the prospects of securing employment
There is an important principle here. We wish people with disabilities and others with a mental or physical condition to be able to participate as fully as possible in the labour market. The noble Earl, Lord Russell, made that point in his intervention. Many people with severe physical and mental disabilities can and do participate successfully in the labour market. But we recognise that for some, though by no means all, jobseekers the reality will be that their condition will mean that there is necessarily some reduction in their job prospects because of their condition. That is the reality and we accept it. Provided that jobseekers in those circumstances remain available to the extent that their condition permits, we want to ensure that they may be entitled to JSA and to offer them all the general and specialist facilities which the Employment Service has available.
On one of the Committee days I outlined some of the extra money that we were going to make available to the Employment Service to deal in particular with those people who are likely to come off invalidity benefit and not receive incapacity benefit in response to questions similar to those my noble friend has asked again tonight. This formulation will in fact be more generous than the amendment, as it is quite possible that jobseekers may have a physical or mental condition which limits their availability but that does not classify as a mental or physical handicap. I suspect that the disfigurements mentioned by the noble Baroness might come within the scope of that phrase. I hope that the positive statement I have just made helps to reassure the noble Baroness and other Members of the Committee who have spoken on this point.
We want to include, not exclude, people with disabilities from JSA. But the amendment could mean that anyone dissatisfied and appealing against the incapacity test could get JSA even though they were not available for work or looking for it. I cannot agree with that. JSA is for jobseekers, and no matter how many conditions or limitations have to be put on because of mental and physical disability, fundamentally it is still for people who can work, who are looking for work and are capable for work. People who are not capable of work will receive incapacity benefit. I do not know how many times I shall have to repeat the point about the two stools, but I draw the Committee's attention, as I have done on a number of occasions, to Schedule 1, paragraph 2(1), which states:The question whether a person is capable or incapable of work shall be determined, for the purposes of this Act, in accordance of the provisions of Part XIIA of the Benefits Act".That, I have said on a number of occasions, should ensure that the two stools problem does not arise.
Where a person appeals against a decision that they are capable of work, they will be able to claim JSA pending the outcome of their appeal if they make themselves available and look for work.
I appreciate that Members of the Committee may be concerned that this will prejudice their appeal. As I have made clear —and I repeat it—the adjudicating authorities have made it clear in their judgments, and the chief 251 adjudication officer confirmed in his published guidance, that making themselves available for work should not prejudice their appeal. There may be some people who do not wish to make themselves available for work pending their appeal. Existing IVB claimants, those in receipt of severe disability allowance and others who have been incapacitated for 28 weeks as of 12th April 1995 will be able to receive 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 1995 can also claim income support pending the appeal, although their personal allowance will be reduced by 20 per cent. because we do not believe that it would be reasonable to pay the full rate of income support for people who do not satisfy the normal conditions of entitlement.
I turn Amendment No. 16. I reassure the Committee that we are fully aware of the important role that disabled people can play in the labour market and of the difficulties which they can face. As I have said previously—and I am happy to say it again—we intend to carry forward the current provisions in relation to unemployment benefit and income support which allow a person with a mental or physical condition which limits the work that they can do to place restrictions on the nature, hours, rate of remuneration, locality or other condition of employment which he is prepared to accept when those restrictions are reasonable in view of his condition. Such people will not be required to show that they have reasonable prospects of securing employment. I believe that in that way our proposals already meet the concerns of my noble friend Lord Swinfen.
However, we prefer not to use the terminology in this amendment for two reasons. First, disability is not a term defined in the Bill and, secondly, people who are ill will be deemed available for work only for limited periods. There is, however, a difference between the two categories, since a person with a disability claiming JSA will be capable of and available for some work, but a person who is ill may not be capable of or available for work. Under JSA, we will introduce a specific easement in the treating provisions which will give people who are sick the chance to stay on JSA and be treated as available for work for up to two consecutive weeks. That will avoid the need for people to terminate and start claims within short periods of time, while ensuring the JSA is focused on the labour market.
Our proposals to set out in regulations that jobseekers can restrict their availability in line with their mental or physical condition should cover all jobseekers, including those who are disabled, who wish to restrict their availability on those grounds, depending on their particular circumstances. That is an example of why these matters, which are complicated and detailed if they are to cover the many situations that all Members of the Committee wish them to cover, are best left to regulation.
We shall also ensure that people's skills, qualifications, abilities and any physical or mental limitations will be taken into account in considering the steps that they have 252 taken to look for work. This formula has been tried and tested in current legislation and we believe that it is the right basis for JSA.
Those points aside, I acknowledge the anxieties of Members of the Committee about the balance between primary and secondary legislation. The regulations to which I have referred, and which are included in the new clauses that I have been discussing, will be dealt with by the affirmative procedure. Therefore, Parliament will be in a position to give a view on what we bring forward. However, I have made it crystal clear, and I know that words from Ministers at the Dispatch Box have gained slightly more importance as regards courts of law and so forth. I hope that the fact that I have been prepared to try to outline in detail the way in which we envisage the system will work as regards disabled people and those found to be insufficiently disabled to qualify for IB will reassure the Committee. I hope that the noble Baroness, Lady Williams, and my noble friend Lord Swinfen will withdraw their amendments.
§ 8.45 p.m.
§ Baroness Hollis of Heigham
The Minister said that he believed that his answer would cover all jobseekers. How does he explain the fact that people who were refused invalidity benefit were, on the grounds that they were partially disabled, refused unemployment benefit? The RADAR case was more than one-third. How does the Minister explain the matter if what he says is correct?
§ Earl Russell
I had some sympathy with the Minister when he said that he wondered how many times he would have to explain that this should not happen. As the noble Baroness has pointed out, however, the point is that it does happen. I am afraid the answer is that the Minister will have to explain that it should not happen until he finds a way of doing something to make sure that it does not. Surely that is fair.
I suggest that the Minister, before saying that the suggestion of Magna Carta was not to be taken seriously, first takes legal advice. He might get a shock. When he takes his legal advice he will see that Clause 40 was in the 1215 and 1225 enumeration.
§ Lord Swinfen
I do not know what the noble Baroness, Lady Williams, intends to do with her amendment but I shall not be pressing mine. I shall take the opportunity of reading what my noble friend said and will probably come back at a later stage.
As was said by the noble Baroness, Lady Hollis, the issue is not the incapacity benefit but the conditions of entitlement to the jobseeker's allowance of disabled people. If people have a disability sufficiently substantial to warrant an appeal under incapacity benefit it is ludicrous to expect them to have to show in each week of their claim that they are taking steps to find work when they may never be regarded as being capable of work.
We have on the statute book the Social Security (Incapacity for Work) Act; we are working through the Jobseekers Bill and we will soon be dealing with the Disability Discrimination Bill. All those fit together as regards disabled people. My noble friend should consider bringing forward a consolidation Bill in order to pull all three together to see how they work.
§ Baroness Williams of Crosby
I strongly commend the proposal suggested by the noble Lord, Lord Swinfen. We are illustrating the point that some of the proposals could be included in the Bill. What the Minister said was much more attractive and sympathetic than what is written in the Bill. That illustrates precisely the matter that we were discussing earlier today when we first discussed the issue of primary and secondary legislation; namely, a requirement that has nothing to do with the flexibility of the labour market and everything to do with the rights of disabled citizens.
Perhaps the Minister will be able to see his way towards putting some of the comments that he has made from the Dispatch Box into law; not least his useful phrase about what is appropriate to the physical and mental condition of the claimant. All Members of the Committee would be much happier. I thank the Minister for what he said and hope that he will draft it as an amendment to the Bill on Third Reading. I beg leave to withdraw the amendment.
§ Amendment No. 14, as an amendment to Amendment No. 4, by leave, withdrawn.
§ [Amendments Nos. 15 and 16, as amendments to Amendment No. 4, not moved.]
§ Earl Russell moved, as an amendment to Amendment No. 4, Amendment No. 17:
§ Line 24. leave out subsection (4).
The noble Earl said: The amendment seeks to delete subsection (4), which states:
Regulations may prescribe circumstances in which, for the purposes of this Act, a person is or is not to be treated as available for employment".
That is our old friend Humpty Dumpty in fancy dress. As the noble Lord, Lord Renton, pointed out at an earlier stage, a distinction is to be made between the two parts of the clause. I raise one for probing purposes and the other in the hope of seeing it changed. There is no objection to the prerogative of mercy. People are treated as available for employment when they are not available for employment. The case of women receiving statutory maternity pay has already been mentioned. That is a proper case.
§ I wish to ask the Minister about a point on which I trust he has now received my letter. It relates to women who have taken shelter in refuges as a result of domestic violence. I understand that the present position is that women in that situation, who very often cannot go out for fear of pursuit, are able to continue to receive benefit because they are treated as though they are available for work when they are not. That is a good illustration of why one needs to be careful about the drafting and why my own attitude to it cannot be cast in stone. I recognise the validity of those cases.
§ On behalf of Women's Aid, as well as on my own behalf, I should like to say how grateful I am to Mr. Alistair Burt for the care that he took on this subject when I had occasion to write to him in 1992. Therefore, I am concerned whether that exemption still stands.
§ But it is quite a different matter when one moves from the prerogative of mercy on to what one might describe as the prerogative of mercilessness—that is, treating people as though they are not available for employment when they are. When that is turned into plain English, it is a 254 power to deprive people of their right to benefit. Does the Minister now understand why I was not entirely satisfied by his answers about creating new conditions of eligibility for benefit?
§ If you disentitle a group of people to benefit because they are not jumping through one of the particular hoops set out in the Bill, that is in effect creating a new condition of eligibility for benefit. That is something which I cannot regard as proper ever to do by regulation. Therefore, I hope that the Government will spell out what they mean or will take it away. Next time they bring back Humpty Dumpty, perhaps they will put a rather thicker disguise over him. I beg to move.
§ Lord Mackay of Ardbrecknish
The provisions which this amendment seeks to delete are not new. I believe that it was my noble friend Lord Inglewood who addressed this matter on the last occasion and many remarks were made about Humpty Dumpty and Gilbert and Sullivan. Therefore, as Captain of the Yeomen of the Guard, it is perhaps more appropriate that he should do so. However, I have decided that I shall attempt to address the issues this evening. Having watched a rather excellent performance of the said "Yeomen of the Guard" performed by Welsh National Opera a week or two ago, I am an expert on the subject, or nearly.
I hope to be able to persuade the noble Earl that the powers that he wishes to delete are there for very good reason and the regulations made under the current provision have been used extensively for a long time. They do not deal with hypothetical situations, but with a wide range of very specific instances where I am sure all Members of the Committee would agree that it is appropriate for a claimant to be entitled or not entitled to benefit. The list is extensive, and therefore a wide power is needed; we intend to follow the same approach in JSA.
First, people engaged in certain emergency duties will be treated as available for the periods when they are undertaking those duties. These include lifeboatmen and part-time firemen, and people helping in a fire, flood, explosion, accident, natural catastrophe or a search for a missing person. Secondly, we intend to prescribe other situations which will enable claimants to be treated temporarily as available: for example, a domestic emergency, the need to look after a child while the person normally responsible is ill, or attendance at an Open University residential course.
But we also need a power to treat a limited number of groups as not available for employment—full-time students, women who are receiving statutory maternity pay within the maternity pay period, and prisoners on home release. They may be able to make themselves available for work, but the Government have made other provision for their support. The power will ensure that if any people in those groups make a claim for JSA, they will be treated as not available. I accept that that is not a power to be used lightly, but it is nonetheless important.
There has been some consternation over the original Clause 6(2). But the fact is that use is made of very similar powers under existing long-standing legislation, and in very large measure we intend simply to continue this usage. The regulations under new Clauses 6 and 6A will 255 be permanently subject to the affirmative resolution procedure. That will be a change to the way in which similar regulations are dealt with under existing statutes.
I understand the point which the noble Earl has made about women in refuges. We are still giving careful consideration as to how they should be catered for within the new benefit. At this stage, I am not in a position to give a firmer answer than that we are looking at that small group of women who have a serious problem.
I have explained which are some of the important groups of people who are covered by and who benefit from the provisions—lifeboatmen, firemen and people who do other similar jobs. Those are voluntary part-time jobs which people often do in addition to their normal work. When those people become jobseekers, we wish to ensure that they will carry on with those activities without their position being damaged. Therefore, I hope that explanation persuades the noble Earl that Humpty Dumpty has some justification in that regard.
§ Earl Russell
I am grateful to the Minister for what he has said about women's refuges. I hope that we shall hear how they are to be protected before the Bill leaves this Chamber. I shall give the Minister an opportunity to come back on that at a later stage. I do not believe that it will be contentious because I think that our hearts are in the same place; it is just something that we want to get right.
The Minister very nearly pushed me into the Division Lobby when he started mentioning full-time students as an example of a category that he wished to be able to disentitle under this provision. That was a major change in the law which has caused massive hardship around the country, as I know very well. It struck me then and it strikes me now that to be able to do that by a procedure by which this Chamber had absolutely no right to vote was an outrage. In fact, the Minister's example has illustrated precisely why I am not content to let that power remain.
I hasten to assure the Minister that I am not going into the Lobby now unless he attempts to force me, in which case I shall be happy to do so. In the meantime, I beg leave to withdraw my amendment; but I assure him that we shall hear more of this issue on this Bill and many others.
§ Amendment No. 17, as an amendment to Amendment No. 4, by leave, withdrawn.
§ [Amendment No. 18, as an amendment to Amendment No. 4, not moved.]
§ Baroness Turner of Camden moved, as an amendment to Amendment No. 4, Amendment No. 19:
§ Line 35, leave out subsection (6).
The noble Baroness said: In moving this amendment, I should like to speak also to Amendment No. 42 which is grouped with it. The amendment seeks to remove a subsection from the Government's new Clause 6 which reads:
Where it has been determined ('the first determination') that a person is to be treated, for the purposes of this Act, as available for employment in any week, the question whether he is available for employment in that week may be subsequently determined on a review of the first determination".
§ I am not at all clear what that means. I listened very carefully to the Minister when he made his speech in support of the new clause. I am still not clear about what 256 is intended here. Presumably, the first determination will have decided the question of availability and, therefore, entitlement. Apparently the question is to be determined at another review for that particular week.
§ That seems to me to be very unclear indeed. In what circumstances will a weekly entitlement be reviewed? It seems to me that that is importing a degree of uncertainty into the whole question of entitlement, and so on, that is not acceptable. I am sure that the Minister understands that for many unemployed people, it really is an extremely traumatic experience. If they are to have further pressure put on them as a result of uncertainty as to whether, as I read it, they may keep what has already been described as their entitlement, seems to me to be very unsatisfactory indeed.
§ I really do not understand what is meant by the clause. Of course, I note that it is repeated in the section dealing with "actively seeking employment". I hope that the Minister will be prepared to give us some explanation. As it stands, I question whether the provision is at all necessary. I beg to move.
§ 9 p.m.
§ Lord Mackay of Ardbrecknish
I should like to begin by welcoming back the noble Baroness, Lady Turner of Camden, to the long-running play of the Jobseekers Bill. As regards the two amendments to which the noble Baroness rightly referred, I can assure her that the two subsections do no more than carry forward current provisions. Indeed, Members of the Committee will find almost identical wording in Sections 25A(4) and 25A(5) of the Social Security Contributions and Benefits Act 1992. Members of the Committee may consider that that is not bad as a starter defence, but it is not a complete one.
Perhaps I may explain why I believe that the provision is necessary. As the noble Baroness is aware, there are a number of situations where regulations treat a claimant as being available for employment and as actively seeking it. In fact, we have just discussed some of those situations. In many cases, that is where the claimant has been or is to be engaged in some sort of urgent, worthwhile activity that made it impossible for him to satisfy the conditions of entitlement in the usual way. Indeed, I gave such examples in the previous debate.
In such situations, for example, a voluntary member of a lifeboat crew may report that his duties took him to sea in an emergency. In that situation he is entitled to be treated as satisfying the conditions. That is what happens and his JSA payment is not affected. However, the legislation must make allowance for the possibility that the situation may, in reality, not have been as he described it. Perhaps I may put it bluntly, although I believe that my example is not a good one because I do not think that anyone would do so. In fact, the lifeboat may not have been out at sea that week, or the claimant himself may not have been a member of the crew. If that is the case, obviously the claimant is no longer entitled to be treated as satisfying the conditions. Subsections (6) and (7) and their predecessors enable us 257 to have the treating decision reviewed on the receipt of new information. A fresh decision is therefore made as to whether the claimant did in fact satisfy the conditions.
I hope that that explanation will assist the noble Baroness to understand what I admit is a fairly convoluted piece of wording. My explanation should help the noble Baroness to realise why we believe that the provision is needed and the circumstances in which it might have to be used. I hope that the noble Baroness will feel able to withdraw the amendment.
§ Baroness Turner of Camden
I thank the Minister for his explanation. As far as it goes, it seems to me to be quite satisfactory. The Minister seems to be saying that there may be a fraudulent claim made and that the provision would be a way of catching up with it and, presumably, ensuring that the individual who attempted to perpetrate the fraud pays back the money. That is my assumption. However, on the other hand, that really is not terribly clear from the wording, as I believe the Minister accepted. I believe that the wording as it stands could, as I said earlier, import into the whole system an air of uncertainty as far as concerns claimants. Claimants may feel that the first determination is the determination which matters and that they can go on receiving their benefit for that week, and so on. They may feel that their benefit is quite secure because they have had a first determination.
I wonder whether the Minister will consider looking again at the wording. As he rightly said, it is "convoluted". It does not give the impression of the kind of situation that the Minister described in his answer. Of course, I shall not press the issue at this late hour of the night, but I would ask the Minister to look again at the wording because it is most unclear. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Hollis of Heigham moved, as an amendment to Amendment No. 4, Amendment No. 20:
§ Line 50, at end insert ("but circumstances constituted by or connected with a person's ethnic origin, sex, sexual orientation, age, disability or religion shall not he treated as evidence that he is not actively seeking employment;").
§ The noble Baroness said: In moving the above amendment I shall, with the leave of the Committee, speak also to Amendment No. 34. The amendments seek to ensure that the considerations, such as gender, ethnic origin, and so on, which may restrict the availability for the actively seeking work criteria, are, if you like, deemed good cause and should not be regarded as evidence that one is failing to make oneself available for work or failing actively to seek work.
§ The Government have rightly accepted in the new Clause 6 that there are external circumstances which may, with good cause, affect availability for actively seeking work. Indeed, we have gone through some of them already, such as caring responsibilities, physical and mental disabilities, religious convictions, and so on. The amendment adds to and overlaps that list. It is a perfectly standard formulation which is often now attached to job descriptions in local government and is, I should have thought, entirely unobjectionable. I doubt that any Member of this Chamber could argue that those 258 are not reasonable grounds. But, equally, I would doubt that any Member of this Chamber would argue that such discrimination does not currently occur within the labour market.
§ The CAB's report of a year ago entitled Unequal Opportunities proved just how extensive discrimination was in the labour market. There is sex discrimination; for example, where women working in a leisure centre were required to wear very short skirts, for reasons that we can guess. When that made some of them uncomfortable, they were dismissed. We also have countless cases of bosses harassing female staff, especially hotel managers. Very often, women fear to complain because, if they do so, they may lose their job. If they lose their job and go to a tribunal they will not find another job. Therefore, women tend either to endure what they should not or they go quietly and the harassment continues.
§ Equally, on racial discrimination, the CAB reported the case of an Asian client employed in a shop who, when he requested holiday pay, was told that it was only paid to white workers. There was also a black woman who was racially harassed at work by her personnel manager. She complained several times but with no result. The woman felt unable to take the matter to a tribunal because the personnel manager was also the chairman of the tribunal. There are also disabled clients in similar situations. Indeed, we could all recite examples in well-attested circumstances from the CAB, from newspaper reports, and so on. We can all give instances of discrimination in the labour market. Such stories hit the newspapers every day. But, beyond that, there are many more cases which go to the CAB which are never taken up by tribunals because the clients feel that their card would be forever marked as a troublemaker. That applies particularly in the case of women.
§ Therefore, we believe that the amendment is important because it serves two functions. First, we hope that it will tackle any prejudice that may exist in the minds of the Employment Service about availability for work. Secondly, if claimants are dismissed from work on those grounds, they are given additional protection when facing an adjudication within the Employment Service on whether they voluntarily left work or, possibly, left work through misconduct.
§ The Government may argue in a moment that, although this unfortunately and regrettably may still be true as regards some employers, it does not apply to the Employment Service and therefore such an amendment is unnecessary. I wish that were the case. When recently a highly paid, well trained professional police force could apparently enjoy the viciously racist so-called jokes of a well known so-called entertainer, and when dozens of cases are brought each year by serving police officers against their fellow officers as regards prejudice on grounds of race or gender, why should we expect comparatively untrained employment officers to be any different, particularly where so much is left to their discretion and their subjective interpretation?
§ However, there will of course be one difference between them and the police force: the cases brought by serving police officers were brought by people who 259 were themselves confident, trained and knowledgeable about their rights. How many clients of the Employment Service will have the same confidence, the same training and the same knowledge of their rights, especially when English is not their first language, or when they may have mental health problems or learning disabilities which make it hard to understand a conversation even though the employment officer may think with good reason that he has made himself unambiguously clear, or whose disability, appearance or religious beliefs may not be ones with which employment officers readily sympathise?
§ Our worries in this field are sharpened by three matters that have already been explored in Committee. First, the Government have increased the rate of doubts as a target figure. Secondly, there is an increasing suspension of benefit and, thirdly, there is an increasing refusal of hardship payment. Together these serve to legitimize a referral which is less an honest doubt than a less than honest and covert exercise of prejudice. Before the Minister replies, I wish to ask him whether he disagrees with any words in this amendment. If he does not, will he include them? What I hope he will not do is say that he agrees with the words but they are not necessary, when, in the world of work and of employers and in the world of the public service such as the police service, there is ample evidence to show just how necessary such protection is on the face of the Bill. I beg to move.
§ Lord Inglewood
Before talking about the substance of these two amendments I wish to talk briefly about Amendment No. 20, because I am slightly puzzled by it. I think it may be deficient. It applies to subsection (8) of Clause 6 (in the Government amendment). That clause of course is concerned only with availability for work, but this amendment is concerned with actively seeking work. Furthermore, subsection (8) is about regulations made under subsection (4) in relation to permitted periods. That seems limiting to what I presume are the noble Baroness's much wider intentions.
I suspect that the amendment, like Amendment No. 34, is probably intended 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 shall speak to it as if that were the case. Let me emphasise once more that this has always been our objective. That is why we are providing for people with disabilities to be able to restrict their availability in accordance with their mental or physical condition; that is why we are providing for people with religious or conscientious convictions to be able to restrict the types of jobs for which they are available; that is why we are introducing easements to the availability rules for carers. We have given a clear indication of our intentions by setting on the face of the Bill such groups as examples of the people who may restrict their availability.
The noble Baroness is obviously concerned that staff delivering JSA may act in a discriminatory way. Again I wish to give an absolute assurance about that. All staff in jobcentres will be mindful of the issues of sex and race discrimination. They will have clear guidance on 260 how to deal with people from different ethnic origins and with men and women in determining the steps that they are taking to seek work actively. Against that background, if there are examples of where this kind of behaviour has not occurred in line with the guidance, may we please be given chapter and verse on that? On behalf of the Employment Service we endeavour not to condone or permit the kind of behaviour to which the noble Baroness alluded in a different context but which she implied may be occurring in the Employment Service. If we want to ensure that that does not happen, we need to be given chapter and verse as regards certain incidents in order to root out the problems. If we cannot be given chapter and verse, I do not believe it is proper to level accusations at the Employment Service.
We will also take into consideration, when drawing up the regulations to define availability and actively seeking work, the requirements of the sex and race discrimination Acts. The noble Baroness gave a number of miserable examples of discrimination at the workplace. It is important to be clear that that is beyond the scope of what we are discussing now. Of course, proper legal redress is available. Clearly some of the behaviour which was described would undoubtedly be construed as constructive unfair dismissal.
I am sorry that after we discussed a similar amendment during the Committee stage on 25th April and the assurances we gave then we have to return to this issue. If I remember correctly, on that occasion members of the Committee were perplexed as to why we could not cover these issues in primary legislation. We have now made clear in our own amendments to Clause 6 how regulations will provide for the restrictions in availability on grounds, for example, of religion or mental or physical condition. However, the detail must be an issue for regulation rather than appearing on the face of the Bill.
As has been explained on many previous occasions our policy is to include, not to exclude; to take account of all the facts in determining eligibility for benefit, not to ignore them. We believe that that is best achieved in regulations.
I fear that the provision envisaged in the amendment would be impossible to relate to real labour market needs and could result in some claimants qualifying for JSA when their intentions and actions meant that they were not genuine jobseekers. That would not be to the benefit of either the taxpayer or the vast majority of jobseekers who are making every effort to find work. For those reasons I urge the Committee to reject the amendment.
§ Earl Russell
The Minister gave me some, perhaps unwitting, encouragement. He said that regulations "will" provide for these conditions. The Bill says "may". I asked the Minister to change that: perhaps he has now agreed.
§ Baroness Hollis of Heigham
I thank the Minister for that reply. To use a phrase of the Minister's, I am absolutely sure that he believes every word he said. The 261 difficulty is that I do not believe that he can deliver what he has promised us. I am convinced of his intention. In his phrase, he gives us an absolute assurance that discrimination will not occur. With the best faith in the world he can speak for himself, as I am sure he does, but he cannot give an absolute assurance that such discrimination will not happen.
The CAB has evidence to the contrary, and I am happy to make it available to him. None of us wishes to see that happen, and I am sure that we are entirely as one on that. I am sure that the Minister speaks for himself when he says that he believes, hopes and expects that it will not happen. However, we have evidence that it has happened, and we fear that it may happen. The last time the Minister asked for evidence we had some and he was kind enough subsequently to acknowledge that evidence. We have it in this case too.
Would discrimination be less likely to occur if this provision were on the face of the Bill? Alternatively, if the Minister feels that that is not the most appropriate way to proceed, and I do not necessarily disagree, will he at least give us an assurance that this issue will be drawn to the attention of staff as one of exceeding sensitivity, if not in the regulations, in the guidance to be issued to employment offices?
I hope that the Minister understands our position. This Bill is based on regulation, which offers double discretion—to the Secretary of State in terms of the regulations that he will introduce, and a further delegation of discretion to the employment offices. At this point I do not challenge that, but it is a discretion which is once or twice removed from Parliament. At the end of the day, employment officers, like police officers and the rest of us, represent a range of people. In the exercise of their discretion they will inevitably bring to bear their experiences, their value judgments and, let us face it, their prejudices. That is inevitable. I suspect that we all do that in certain circumstances and under certain pressures. We are trying to ensure that those officers are aware of the importance that this Chamber attaches to ensuring that that prejudice should not be exercised and to make employment officers self-conscious about it.
If the right way to proceed is not to place the issue on the face of the Bill, can the Minister at least give us an undertaking that it will be achieved through guidance and the matter will be drawn to the attention of employment staff? I hope that the Minister can help us on this.
§ Lord Inglewood
Yes. As I mentioned earlier when I gave the assurance that all staff in jobcentres will be mindful of the issues of sex and racial discrimination, they will have clear guidance on how to deal with people from different ethnic origins, and with men and women, in determining the steps they are taking actively to seek work. I hope that that provides the kind of foursquare assurance that the noble Baroness seeks in this regard.
§ Baroness Hollis of Heigham
Will we see that guidance in the form of regulations? Will it be part of the affirmative regulatory powers?
262 There appears to be a negative response from another quarter. Can we than hope that the Minister will undertake to send copies of such guidance to these Benches so that we can circulate it to relevant organisations? Is the Minister willing to give us that undertaking?
§ Lord Inglewood
Perhaps it would be best if I wrote to the noble Baroness giving the background to how we deal with these matters so that she will be fully seized of all the facts.
§ Baroness Hollis of Heigham
That will be welcome. The important issue is that we see the guidance and that it reflects what the Minister has encouraged us to believe tonight. I take it that that is what will happen. I beg leave to withdraw the amendment.
§ Amendment No. 20, as an amendment to Amendment No. 4, by leave, withdrawn.
§ Baroness Hollis of Heigham moved, as an amendment to Amendment No. 4, Amendment No. 21:
Line 50, at end insert:
("( ) that where a doubt arises as to whether the claimant is available for employment or is to be treated as available for employment, an income-based jobseekers'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;").
§ The noble Baroness said: I am sorry that we come to the amendment as late as we do; it is the fault of us all collectively. However, I believe that the amendment relates to one of the most worrying aspects of a rather worrying Bill.
§ It is a straightforward natural justice amendment. It provides that, where there is a doubt—I emphasise the word "doubt"; it is not a decision—that a claimant may not be fully available for work or is not seeking work sufficiently actively, and while that doubt is being investigated and resolved, that individual should continue to receive a benefit, albeit that the benefit would be only at 60 per cent. of the full rate. Why? Perhaps I may suggest three reasons.
§ First, as the Bill is being debated, and as a result of amendments in another place, the benefit sanctions being introduced are now increasingly complicated. If individuals are unemployed through alleged misconduct, or allegedly without good cause, they may continue to receive full JSA. So if someone is unemployed because he is a job leaver, he continues to receive full benefit while that factor is being investigated. But, if he is unemployed not because he is a job leaver but because he is a jobseeker, he may receive 60 per cent. of benefit immediately if he is both vulnerable and in hardship, or after two weeks if not vulnerable but in hardship, or he may receive nothing if apparently neither vulnerable nor in hardship. So he may receive full benefit, or reduced benefit immediately; after two weeks he may receive reduced benefit or he may receive nothing. Yet the individual would be unemployed in all those circumstances.
§ On a simple point of clarity I do not believe that that is fair. No one will know what they are entitled to. After all, all individuals simultaneously met the conditions of contributory benefit through national insurance and that 263 is on their record. That benefit should not be denied them while possible doubts are explored before they go on to a means-tested benefit. A means-tested benefit is in itself a statement of hardship. I believe that the amendment produces simplicity and clarity. If it were accepted, there would be full benefit for some and 60 per cent. for the remainder while all doubts were investigated and appeals heard.
§ My second argument follows on. It is an argument which the noble Earl, Lord Russell, has put forward frequently and most tellingly. How can someone who has had a means-tested benefit withdrawn—I do not refer to a contributory benefit but to a means-tested benefit—by definition not be in hardship? He has qualified for a means-tested benefit precisely because he already was in hardship: that is, without a partner in work; with little or no alternative income; and with little or no savings. He is already very poor. That was the qualification for receiving means-tested benefit. If he has received means-tested benefit for any length of time, he is likely to be even poorer.
§ By suspending benefit, even though that benefit may subsequently be repaid if the individual is found innocent, the Minister is pushing such claimants into a spiral of temporary loans at extortionate rates of interest, leading to arrears of rent and rates because housing and council tax benefits are passported to income support and JSA, as well as fuel debts, social fund loans, and the like. As Charles Booth taught us many years ago—we seem to be full of historical analogies tonight—people on irregular income cannot pay regular bills. Once locked into debt, even subsequent repayments are unlikely to clear up the mess.
§ If we adopt the amendment on clarity, my second argument is that it avoids very real hardship regarding people who are already in hardship by virtue of having qualified for means-tested benefit. My third and last argument is that the amendment is based on natural justice. According to the Government, a relatively untrained employment officer is required to increase the number of suspensions from benefit, because that is what the target of increased referrals of doubt involves.
§ I emphasise that no one on these Benches has any objection to increasing the number of referrals of doubt where there is a reasonable cause, so long as the claimant is not fined because the employment officer has a doubt. None of us has any objection to checks for fraud. None of us wishes to countenance fraud provided that the punishment follows the offence and does not anticipate it. At present, the Bill provides that punishment anticipates the offence. I suggest that only where there is a real risk to fellow human beings of violence, for example—perhaps someone who is drunk regularly is barred from driving a car—will he be detained or held on remand. In other words, he is punished in advance, so to speak, of his offence being heard. In all other cases, the punishment is imposed only after trial. Yet simply because a relatively untrained officer has a doubt, which could be an exhibition of prejudice if someone's behaviour or appearance is unpleasing or of incomprehension because someone is inarticulate, the applicant is punished in advance. Those 264 of us who do not claim benefit would not for one moment tolerate the degree of discretion which would allow someone to be fined in advance of an offence being established. We would all find it outrageous. But that is what we shall visit on some of the more vulnerable members of our society—the unemployed, the marginal, the not very competent and the not very articulate. It would be done on the ground, "It's all right for them because they are not one of us".
§ Were we then to find out that many, if not most, of those punished in advance were subsequently to be found innocent, even though reparation was made we would still be further outraged. Yet 180,000 people were referred to adjudication who were found on appeal to be innocent and 90,000 of them had to wait at least two weeks before adjudication and several months before their appeal was heard.
§ We are literally treating the unemployed worse than those arrested for a criminal offence. That point was also tellingly made by the noble Earl, Lord Russell. We are cutting off their income. As a method of turning the unemployed into petty criminals, it must be one of the most effective devised. First, harry the unemployed, then stigmatise them, then make them destitute and then encourage them into criminality: aren't we clever?
When finally the Equal Opportunities Commission argued that in cases of alleged discrimination there should be a presumption that discrimination had occurred and that the defendant—perhaps the employer—should have the responsibility of proving that it had not occurred, the argument was rejected by the then Secretary of State, David Hunt, in the following words:
fundamentally inconsistent with justice and the rule of law in this area. The idea that a person, on proof of certain facts, should be presumed guilty unless he can prove himself innocent appears hard to reconcile with natural justice".
David Hunt said that to the chair of the EOC on 19th July 1993. How then can the Government defend their position on imposing a fine in advance of an offence being established? I beg to move.
§ Earl Russell
This is one of the most important amendments of the day and I agree with practically every word that the noble Baroness said when moving it. I owe her an apology for the fact that my name is not to the amendment, for which there is a reason which the noble Baroness may or may not believe to be a good one. When I considered the amendment, I was in total agreement with what it aimed at, but I could not bring myself to put my name to an amendment which allowed a 40 per cent. disentitlement to benefit to someone who had done no wrong. I understand why the noble Baroness worded it that way. It was good politics. But occasionally one's gorge rises, even at good politics.
We went over some of the ground earlier. We were told that people should lose benefit if they did not meet the conditions of entitlement. That is not in dispute. But if we say that, as soon as the employment officer thinks people do not meet the conditions of entitlement they do not meet them, it is rather like saying that someone is guilty of a crime as soon as a policeman chooses that they should be charged with it. There are certain policemen who occasionally talk as if that ought to be 265 the law. Thank God, it is not. No one's suspicion, indignation or firm conviction that someone must have clone something is evidence that he has. Taking away from a person something which is still an entitlement is a judicial penalty which should not be inflicted without clear proof, a chance to make a defence and an investigation of the issues. A prima facie assumption of guilt is simply not warranted. The claim that the person does not meet the conditions when that is itself the question which needs investigation is a logical fallacy and a dangerous one.
If people are disentitled to 40 per cent. of their benefit, or indeed the whole of their benefit, we have to consider what they are to do. The noble Baroness, Lady Hollis of Heigham, raised the question of debt. This is at the very centre of the matter. Through catalogues, it seems possible for people on benefit to run up pretty high levels of debt. I have asked many times for the department to investigate levels of debt among people on benefit. I must ask it again to do so.
One of the main effects of being in severe debt when on benefit is that you cannot take on a new housing tenancy; you cannot put down a deposit; you cannot pay rent. If you have a bank account and you try to write a cheque, it will bounce. As a handicap to getting into employment, that is very severe indeed. Therefore when we let people who are on benefit fall deeper and deeper into debt, we make it harder for them ever to get back to work. This is another form of poverty trap, and a very powerful one. If we ensure that people cannot work, we prolong benefit dependency, we increase the cost to the Exchequer and we increase suffering to the person. In fact, we do the very reverse of what we want to do.
If people do not go into debt, the alternatives are perhaps even worse. To be pushed down into an underclass, a twilight world where you may have to conceal your identity, is to be pushed into a situation that it is very hard ever to climb out of. To do that to people who may have done nothing wrong is a criminal waste of potentially law-abiding and hard-working citizens. We do not have so many people in this country who are capable of doing a decent job of work that we should wantonly throw away those that we have. This is a vital amendment, and I hope that the Minister will listen to it.
§ 9.30 p.m.
§ Lord Mackay of Ardbrecknish
These amendments concern an area that we have debated on other occasions. On previous occasions they have shown up a considerable gulf between this side and the Benches opposite. I fear that they will do exactly the same this evening.
The issue of payment to claimants who have not demonstrated that they meet the conditions for benefit is indeed difficult. Where there is a doubt as to whether someone is entitled to JSA—whether he is a jobseeker or whether he is eligible—the Employment Service must refer the case for decision to an adjudication officer. The payment of benefit cannot be made on the normal basis. Where it appears that a claimant has not been available for work in the previous weeks, he should not receive 266 benefit for that period as if he had been. As the noble Earl, Lord Russell, noted, the noble Baroness, Lady Hollis, in her amendment appears to go some way to accepting the principle by providing for reduced payments in such circumstances. To that extent only, we are agreed.
However, unlike the noble Baroness and the noble Earl, we do not accept that everyone should have immediate and automatic access to benefit while the adjudication decision is reached. The jobseeker's allowance is a benefit that is intended to support claimants who are available for work. That is a central condition. If the claimant does not meet it, he has forfeited his right to the allowance.
Our proposals will, however, protect claimants in vulnerable groups by making hardship payments from the outset to those who show hardship. That includes all claimants who have children and cases where the claimant or partner is sick or disabled, pregnant or has caring responsibilities. Other claimants will receive hardship payments after two weeks. We believe that that is a reasonable period in the case of a childless, healthy claimant.
We believe that these proposals strike a fair balance. They reflect our basic principles; namely, to reinforce claimants' obligations in return for benefit, but also to protect the vulnerable. Both principles are important. The amendments of the noble Baroness do not give due weight to both principles, since they seek to continue to make payments automatically to everyone, even in cases where there is a clear doubt as to whether benefit conditions have been met.
The amendment would require us to make payments simply because a person chooses to make a claim to JSA, irrespective of whether he satisfies any of the basic conditions or whether he is in financial need. It would require us to make a payment to a claimant whose benefit is suspended in the course of a claim simply because in the past he received JSA, irrespective of any changes in his circumstances. As I have said before, the Government do not accept that proposition.
Members of the Committee questioned why we felt able to introduce a significant easement on current arrangements and pay benefit in full for sanctions when we are not proposing to do that for cases of doubt over entitlement. The point I made before is that we are dealing with two quite separate issues. In the case of a sanction the claimant has shown that he is genuinely unemployed, available for and actively looking for work. He is a jobseeker and has satisfied the entitlement. The only question at stake—it is an important one—is whether he has left or refused a specific job or refused to carry out a specific jobseeker's direction without good cause. They are one-off occurrences, serious in themselves, but do not necessarily mean that the claimant has failed to make himself available for or to look for work. We therefore consider it right to continue to make payments until the issue of doubt has been cleared up. That is quite different from saying that, just because someone is claiming JSA, we should pay him even though we believe he is not meeting the basic conditions for eligibility.
267 The noble Earl argued on a number of occasions that any person who qualifies for a means-tested benefit must automatically be in hardship if he is denied that benefit. The extent to which a claimant suffers hardship must depend on his specific circumstances. The current guidance to adjudication officers points out that they should take into account a whole range of factors, including the presence of particularly vulnerable family members and the length of time for which funds have been withdrawn. I should remind the noble Earl, for example, that it is possible for unemployed claimants to possess capital resources up to £8,000, wages from previous employment or access to pay from part-time work which they or their partner undertakes.
The key point is that we do not accept that claimants who do not satisfy their obligations should have automatic access to benefit financed by the taxpayer. They are not jobseekers and are therefore entitled to benefit only to provide protection against hardship. We accept that we should provide for claimants in particularly vulnerable situations—those defined in our vulnerable groups. I must say again that childless healthy claimants have a choice. If they want to receive JSA they must make themselves available for and look for work.
I appreciate that the noble Earl and the noble Baroness will not be satisfied by my answer. I suspect that they will also not be surprised—they have heard it on a number of occasions. But I fear that we shall have to continue to disagree on what I appreciate is an issue about which the noble Earl and the noble Baroness—but particularly the noble Earl—feel very strongly.
§ Earl Russell
The Minister is right that there is a gulf between us. I should like us to be able to understand each other's arguments well enough to be able to continue discussion across this gulf. At the moment I confess that I find the Minister's reply totally unintelligible. I observe what his position is but I simply cannot understand why.
I want to ask him, first, whether he recognises the concept of benefit as an entitlement. That may possibly be the hub of the whole debate. Secondly, I want to ask whether he recognises that the results of appeals show that the denial of benefit may be undertaken in error. I cannot see how else one can explain the fact that a large number of appeals are successful. Thirdly, he says that a claimant's hardship must depend on his circumstances. Clearly we all accept that. If he tried to define hardship in ways that said one could not be in hardship if one had savings, one could not be in hardship if one had wages left over from a previous employment, we might have argued about the details but we would at least have understood what the Minister was saying. We would have been on ground where some common criteria were possible.
What I simply do not understand is how. it can be possible for somebody who has no income except his benefit, to lose his benefit and not be in hardship. It is a little like a proposal to suspend him from a sky-hook and leave him there until something further is done. It is a kind of dropping out of the world. It does not make any sense to me at all.
268 I do not understand, either, why the Minister is so convinced that a person can be said to have broken the conditions of eligibility when what is being investigated on the appeal is precisely whether he has broken the conditions of eligibility. I said earlier that this sounded like the wrong kind of policeman, and unless I get a better explanation, I really cannot withdraw that description. It seems like an assumption that a person is guilty the moment he is charged with something.
It seems as if the Minister does not regard this judicial analogy as a fair one. If not, he must have some reason for not regarding it as a fair one. He must have some way of discriminating between the cases. I would love to understand what that is because then we might understand each other well enough to talk about this. That would at least be a comfort.
§ Baroness Hollis of Heigham
I was hoping to put some questions to the Minister, and so we need to continue this debate. Like the noble Earl, Lord Russell, I simply do not comprehend the ethical nature—I use those words purposely—of the Government's position. I shall put some questions to the Minister and then make a comment. First, does he accept that not to pay someone benefit is a fine or a penalty? Secondly, does he accept—I am following on from what the noble Earl, Lord Russell, said—that by taking away benefit from the moment a consideration is raised the Minister or the employment officer is assuming what he has yet to prove? Does the Minister accept that?
I followed the Minister's answer carefully, and I was quite interested in his linguistic shifts as his answer developed. Sometimes he said that the claimant was not meeting his obligations; sometimes he said, "even though we believe he is not meeting his obligations"; sometimes he said, "he does not satisfy his obligations"; sometimes he said that there is a doubt as to whether he satisfies his obligations. That is the problem. The Government are consistently acting as though to raise a doubt is itself to determine the case. They assume that the doubt of the employment officer carries the same weight as the judgment of the adjudication officer. In other words, the Minister is assuming what is yet to be proved and in the process is fining in advance of the offence being established.
I cannot believe that the Minister cannot ethically comprehend what is evil—I use that word advisedly—about that. None of us in this room would accept that in any walk of life where it affected us; but we shall do it to them out there because they do not have our voice, our weight, our clout or our status. It is evil to fine someone in advance of establishing whether an offence has been committed. The process of fining them will remove from people who are among the poorest of the poor even the barest of livelihoods. I hope the Minister can persuade me that there is some ethical basis and not merely Treasury money cutting to his reply.
§ 9.45 p.m.
§ Baroness Williams of Crosby
I apologise, for I was called out of the Chamber by an urgent message and therefore was not present when the amendment was moved. I shall be brief in what I want to add to what 269 has been said by my noble friend Lord Russell and the noble Baroness, Lady Hollis. I wish to make two points. First, this is a clear case of assuming guilt when innocence should be assumed until guilt is proven. I should like to suggest that Ministers might want to take legal advice again —in this case with regard to the section of the European Convention on Human Rights which particularly relates to the possibility of people being found guilty before any proof has been put forward to that effect. It adopts a piece of very old English law that people are innocent until proven guilty. It will be a question of whether this was regarded as that kind of legal proceeding.
Secondly, I hope Ministers will consider the implications of this amendment. I can only add to the very eloquent things said by my noble friend and the noble Baroness, Lady Hollis, the quite devastating experience of the United States as regards refusing any form of benefit to those who do not have children. As the Committee will know it has long been the case in the United States that only the so-called aid for dependent children applies in the case of people who have ceased to have unemployment benefit. There is no form of income benefit for people without dependent children.
The consequences have been dire. Sometimes I think that we should not follow the United States, but we seem to have a tendency to do so all the time. I cannot say whether it will happen in this country—I hope it will not—but there is no doubt that in the United States this has been a factor which has driven people into taking extreme measures in order to get some kind of income. Very often those measures take the form of low-level drug running. The outcome of that is far more expensive to society than occasionally giving benefit to people who, after six, eight or 10 weeks, may be found to be not entitled to it.
I do not believe, with respect—and I do respect it—that the Department of Employment has much experience of American welfare conditions. I do not believe that it has very much experience of the enormous levels of crime which have overtaken inner cities in the United States. I say that with due seriousness and some first-hand knowledge of what I am talking about. I accept everything that the Minister said with regard to the fact that claimants should not be entitled to benefit if they have drawn themselves out of the necessary conditions. But in this case we do not know whether they have.
I plead with Ministers to think again. The ultimate consequences for society and for public expenditure could be very much more grave than they recognise. When one compares the United States with some other countries like Canada, one has to draw the conclusion that one of the reasons for the problems is the non-entitlement to legitimate benefit for people who for one reason or another are unable to get work.
§ Lord Mackay of Ardbrecknish
I am not sure what I can add to my argument that will help Members opposite to understand it. I understand their argument but I do not agree with it. They probably understand mine but they do not agree with it, and that is the difference between us. I have made the point before that it is a question of judging entitlement. Some sort of legal 270 terminology has been pushed around as though we were talking about police and criminal matters—guilt, innocence, fines and so on. This matter has nothing to do with that.
We are talking about a benefit to which people are entitled if they meet the conditions. Earlier this afternoon I mentioned the principles of availability for work and actively seeking work. Claimants are entitled to those benefits only when they satisfy the entitlement conditions. If there is doubt as to whether they meet the conditions, it cannot be right to pay the allowance. That is the difference between us. The claimant then has to wait until that has been decided by the adjudication officer. A great deal was made—
§ Lord Mackay of Ardbrecknish
I did not interrupt the noble Baroness. As my argument develops I might just help her. I shall try to answer all her questions or at least those which I understood.
Of course, in any adjudication procedure some will be successful and others not. If they were all unsuccessful, the Benches opposite would be complaining that somehow I had rigged the rules against any claimant to make sure that all were unsuccessful. Therefore, I am not in the least surprised that some are successful and others are not. That is what one would expect from a system where an adjudication officer examines a case and decides whether the claimant is entitled to the benefit because he satisfies the conditions. That is the first clear point that I want to make.
On the matter of hardship, I have tried to explain some of the criteria and things for which the officers look when they examine for hardship. I explained that not all people who apply for these tests are totally without funds. Some may have capital resources up to £8,000; some have wages from previous employment or access to part-time work for themselves or their partner. Anyone who is in disagreement about availability for work has the alternative of taking steps to fulfil the conditions and not have a doubt placed on his availability and actively seeking work criteria. So I do not believe that this is such an either/or situation as the noble Baroness and the noble Earl try to make out.
Frankly, I think that it is extravagant to talk about this measure as being evil. My definition of evil and that of the noble Baroness are clearly poles apart. I do not believe that trying to run a benefits system which is fair to both claimants—as we are trying to be—and the taxpayer, who is fundamentally footing the bill for those benefits, can be described as evil. Trying to look after people in certain categories who can show hardship is perfectly sensible and reasonable. But saying to people who have not established whether or not they are eligible for the benefit, "I am sorry but until your basic eligibility is established, you cannot have this benefit", is neither wrong nor evil. In the opinion of the Benches opposite it may be misguided and they may not agree with it, but I do not think that extravagant argument helps this particular argument.
§ Baroness Hollis of Heigham
I wanted to interrupt because the Minister was making an elision from one statement to another. I wanted to break it at that point to see whether he could justify the leap that he was making. He is talking all the time as though people have to establish a benefit and, if there is a doubt, they do not receive it. That is not the situation at all. They have the JSA. The employment officer has a doubt as to whether they are meeting the conditions. It is presumed that because he has a doubt they are not meeting the conditions and therefore they are denied benefit until their innocence is established.
It is not the job of the claimants to establish the basic eligibility. There is already a basic eligibility. That is their entitlement. It is being denied on a doubt. The Minister moved from saying that a claimant was entitled to it if he met those conditions to saying that it was therefore entirely reasonable to stop it if someone doubted whether the claimant was meeting it while he was investigating. How is that fair to the claimants? It is not a penalty in advance of determining whether they are meeting the conditions. A doubt is not a determination. The Minister is treating it as though it were. That is what is not fair to a claimant who is entitled to that benefit until evidence has been found for the fact that he is not meeting those conditions and it has been so ruled. Doubt is not the same as adjudication. Would the Minister please comment on that?
§ Earl Russell
I listened to the Minister as carefully as I could. It is a genuine difficulty. I do not understand the position that he takes. I understand that he rejects the criminal analogy. I do not understand why.
Perhaps I may repeat what I believe were his exact words:They have an entitlement if they meet the conditions".There is no argument about that.
I own a house. I have an entitlement to that house if I meet the conditions. It is my property if I meet the conditions of having a proper and lawful title. Throughout its history, English law has been very heavily influenced by concepts of property. We have a traditional ruling that the right to vote is a form of property. I believe that we are thinking about this matter as though the entitlement to benefit is a form of property.
If one is to be deprived of one's property, first one retains possession pending the case; and, secondly, there have to be good reasons shown why one has no entitlement to the property before one can be moved out of it. Those have been fundamental principles of English law for about 1,000 years. If the Minister does not like the criminal analogy, I do not see why he will not accept this one.
The Minister is still repeating that there may be certain people on benefit who have savings. I understand that point. But why does he then not propose that the only exceptions from hardship payments should be those who do have those extra means of support? That would be an obvious way of looking for common ground, but because some people have extra money, I do not see the justification for depriving all those who do not have extra money, who are, after all, rather numerous.
272 I do not understand either the argument that says that single people are incapable of being in hardship. Hunger hurts just as much if you are single as if you are married. I hope that the Minister will think carefully about the powerful arguments put forward by my noble friend Lady Williams of Crosby. I, too, have seen that sort of thing in the United States. It is not pretty. It is a world in which people do not dare go out at night; a world in which everyone has to keep on big outside lights. That costs a great deal of money. It does a great deal less good than putting a meal in someone's stomach occasionally. I do not understand. I should like to, because then we might get on a bit faster.
§ Lord Mackay of Ardbrecknish
I am not sure that I can add much. I do not agree—I made that clear—with the attempt to compare a benefit and decisions about entitlement with guilt or innocence. Nor do I compare it with a house and one's property rights. One should look at the situation of the benefit itself and not try to draw in outside comparisons to bolster up a case.
I have made my position on this clear. I thought the noble Baroness was arguing on both parts of the situation where doubts may arise as to whether a claimant met the entitlement criteria. The first situation I might envisage is at the beginning of a claim when the officer has doubts as to whether the claimant is prepared to meet the two conditions we discussed earlier. Then during the claim doubt may arise as to whether the claimant is continuing to fulfil the conditions.
It is important to recognise that in JSA, as in the current system, it is not sufficient for claimants to satisfy the benefit conditions just once at the start of the claim. They must go on satisfying them and be able to show that they are available and actively looking for work in every week in which they wish to receive benefit. That is why, if the Employment Service has a doubt as to whether a claimant continues to meet the conditions, it must refer the claim to the adjudication officer for a decision on that point.
I return to the point I made previously. This is a benefit that people receive if they are fulfilling the conditions of entitlement. Those conditions are that they are available for work and that they are actively seeking work. I suggest to the Committee, as I have suggested on a number of occasions, that if someone feels that they are in danger of losing their benefit they can take steps to fulfil the two—I should have thought—fairly easily met conditions. They are conditions which the great majority of people who become unemployed meet, without any bother, without any help from the noble Baroness and noble Earl, and without getting into any of the problems paraded before us this evening. Most unemployed people manage without any trouble.
Most taxpayers, most people who are employed, who go out in the day to work and provide the taxes that allow us to run a generous benefit system in this country, would expect nothing less than that we insist upon those conditions being met. If they are not met, then, until we have resolved the issue, we do not pay benefit. That is the position that I believe most people would accept. I do not believe that the great majority of my fellow countrymen would consider that evil. I 273 believe that they would consider it a sensible and prudent use of the money that they themselves pay in taxes.
§ Earl Russell
Perhaps I may ask the Minister to withdraw the suggestion that we are arguing for benefits for people who do not meet the conditions. None of us is. What we are saying is that people should have the benefit until it becomes clear that they do not meet the conditions.
I understand that the Minister is no happier with the property analogy than he was with the other. I ask him then: what does he think is the moral basis of entitlement to benefit, or does he think that there is no moral basis to that entitlement?
§ 10 p.m.
§ Lord Mackay of Ardbrecknish
I do not intend to get into too much of a ping-pong game and I hesitate to argue with a professor of modern history about such philosophical issues. I believe that it is clear that if, rightly, we as a community decide to help people who are unemployed, we have the right to expect them to meet some conditions for that benefit to be paid. The conditions that we have decided they should meet—and I believe that most people agree—are that they are available for work and that they are actively seeking it. If they fulfil those conditions the entitlement to benefit follows. If they do not fulfil those conditions doubts are placed.
I accept—and I happily retreat from the position that I put forward to the noble Lord—that the noble Lord does not believe that benefit should be paid for all time regardless of entitlement. Perhaps we are narrowing the argument down. The period about which we are in dispute is the period between the employment officer having doubts and deciding that they are sufficient for him to communicate them to an adjudication officer and the adjudication officer making the decision.
I reiterate the fact that I believe that as the entitlement has not been established the benefit should not be paid. That is my position and I am afraid that we must agree to disagree.
§ Baroness Hollis of Heigham
The Minister said that the claimant would receive JSA if he fulfilled the conditions of entitlement, that those conditions were twofold—available for work and actively seeking work—and that the taxpayer would agree with him. I agree with the Minister, as does the noble Earl and every Member of the Committee, that if a claimant is not fulfilling the conditions of entitlement he is not eligible for the jobseeker's allowance. He may be eligible for something else but not for that allowance. The point is that we do not know whether he is meeting the conditions of eligibility. That is the difference.
I honestly cannot comprehend how the Minister can fail to distinguish between a doubt that is being investigated and a case that has been established. Does the Minister accept that there is a difference between doubting and proving? Does the Minister accept that? If we can understand whether the Minister agrees that to doubt is not the same as to prove we shall have narrowed the gap between us. To prove establishes the case; to doubt raises the question only.
274 Does the Minister accept the difference between doubting and proving? Does he accept that there is a distinction? I hope that the Minister will reply because that appears to be the basis of the difference between us. The Minister shakes his head.
§ Baroness Hollis of Heigham
The basis of the Minister's argument—and he has said it time and again in his answers tonight as he has switched from "has to establish", to "has to show", to "may be entitled to", "believes that" and so forth—is that when the employment officer has a doubt it is the same as showing that the person has committed the offence of failing to meet the JSA for which benefit may be withdrawn.
The Minister has continually said that entitlement to benefit has not yet been, so to speak, earned. We are talking about a situation in which someone is receiving JSA and it is being withdrawn on a doubt which has not been established. Yet that person is being punished in advance of the case being heard.
If the Minister cannot understand why we find that so deeply offensive and repugnant I do not know how we can communicate that. However, I promise him that we shall come back and if we cannot persuade him then perhaps we can persuade other Members of the Committee that, as the Secretary of State, David Hunt, said to the EOC, it is the principle of English law that one should not be presumed guilty until one's case has been heard. I beg leave to withdraw the amendment.
§ Amendment No. 21, as an amendment to Amendment No. 4, by leave, withdrawn.
§ Earl Russell moved, as an amendment to Amendment No. 4, Amendment No. 22:
Line 50, at end insert:
("Provided always that no words in this Act nor any regulations under this Act shall restrain the adjudication officer from considering factors which appear to him to be relevant to the claimant's eligibility under section 1(2) (a) and (c).".
§ The noble Earl said: This amendment is to be inserted after a provision that regulations may list factors which an adjudication officer may take into account in determining the period in any case. The amendment would provide that those factors listed in regulations should not be the only factors which the adjudication officer may be able to take into account. I hope that we may have a slightly better response on this amendment than we received on the last amendment.
§ What concerns me—and this is at the bottom of my concern about the accidental creation of new conditions of entitlement—is that if a whole series of factors which may be taken into account are set out, it may make it much more difficult to take into account other factors, those which any reasonable adjudication officer, hearing the case de novo and guided only by case law and by discretion, would obviously take into account. For example, a woman might refuse to take a job if her battering former partner happened to work in the same building. One would have thought that would have been perfectly reasonable. But if that is not listed as one of the 275 factors which the adjudication officer is allowed to take into account, is there a risk that he will not be able to do so?
§ I hope that the Minister understands the basis of my anxiety and that he can reassure me. If he cannot, then I may have to take the matter further but I hope that I shall not have to do so. I beg to move.
§ Lord Inglewood
The permitted period, which was introduced into benefit legislation in 1989, is an important concept. It is only right that claimants who have been regularly engaged in a particular type of work should have a reasonable opportunity to return to that work. The existing permitted period rule therefore allows claimants to refuse employment outside their usual occupation and at the rate of pay which they used to enjoy in that occupation for up to 13 weeks, and to restrict their availability accordingly.
I am pleased to say that in amending the original Clause 6, we are able to make it clear on the face of the Bill that in JSA the permitted period concept also applies both to claimants' availability and to their jobsearch activity. Members of the Committee will note that Clause 6(8) is worded in similar terms to the current Clause 17(5) and the provision in current legislation, and it is our intention that the prescribed factors for determining the permitted period will follow the precedent of current provisions. I should mention that this new Clause 6(8) enables Clause 17(5) to be deleted, and we shall be bringing forward an amendment to that effect on Report.
In particular, Clause 6(8) (c) enables regulations to prescribe factors which the adjudication officer may take into account in determining a permitted period. We intend broadly to continue the current list of factors: that is, the claimant's usual occupation and any relevant skills and qualifications which he has acquired; the length of the periods during which the claimant has undergone training relevant to his usual occupation; the length of the period during which the claimant has been employed in his usual occupation, and the length of time since he was so employed; the consideration that the more skilled the usual occupation and the greater the extent to which the skills in that occupation have been exercised recently, the longer the permitted period; and the availability and location of employment in his usual occupation.
But I should make it clear that Clause 6 does not mean that that must be taken as an exhaustive list. I hope that that answers the noble Earl's point. The adjudication officer will be able to take into consideration any other factor which he considers to be relevant. I believe that that is exactly what the noble Earl's amendment seeks to achieve, and I therefore hope he will agree to withdraw it.
§ Earl Russell
I am grateful to the Minister. I have received exactly the reply for which I was hoping and I beg leave to withdraw the amendment.
§ Amendment No. 22, as an amendment to Amendment No. 4, by leave, withdrawn.
§ [Amendments Nos. 24 to 31, as amendments to Amendment No. 4, not moved.]
§ Earl Russell moved, as an amendment to Amendment No. 4, Amendment No. 32:276
Line 66, leave out subsection (3) and insert:
("( ) A person's relevant acts (including his behaviour or appearance) may be considered when judging whether that person is actively seeking employment.").
§ The noble Earl said: The above amendment relates to the clause which deals with appearance and behaviour. It is a very much more moderate amendment than that which I moved in Committee. I still believe that the one I previously moved was the better amendment. Indeed, my noble friend Lady Williams of Crosby will probably say so. She believes that it is an extremely mild amendment. I must say that I have some sympathy with that view.
However, I like to compromise wherever I possibly can. Therefore, I have tried to retreat from a position where I would have asked that appearance and behaviour were not taken into account. My amendment merely asks that a,
person's relevant acts, (including his behaviour or appearance)".
be taken into account. What I found so disconcerting about the original proposals of the Bill was the provision that a person's jobseeking activities may be disregarded if those concerned do not like his behaviour or appearance. That seems to me to be an impossibly automatic slot-machine way of getting at intention. I say that because the person may have worked like a Trojan, and indeed may have held many jobs. He may also have applied for many jobs. But, on the form of the Bill, if someone does not like his face, it can be ruled that he is not actively seeking employment and he will be denied benefit.
§ We have before us again the point to which I keep returning about tests of intention. As I understand it, the concern of the Bill is to use appearance as a way of getting at people whose intention is not to find work. That case was dealt with by the noble Baroness, Lady Park, on Second Reading. However, one does not get at a person's intention by disregarding altogether some of his actions. That is simply a way of pinpointing one particular thing and never working out what a person really means. It will lead the Government into many problems. Once one starts to argue about people's appearance, one gets into problems.
§ I remember a case in the 1950s which was reported in the newspapers. It concerned a policeman on duty outside Buckingham Palace who was dismissed because he refused to shave off his beard. The official statement said, "In the opinion of the authorities, the beard was an unsatisfactory one". I can understand why there might have been a case for redeploying that person or for putting him on different duties; or, even, possibly, for dismissing him for insubordination as he was in such a job. But to say that that person was not actively seeking work when he was in fact proud of parading up and down with his brand new beard really does not seem to me to be at all reasonable. One simply cannot use a single thing as evidence of intention without taking the whole of the person's behaviour and actions into account. That is the most unreasonable part about the provision in the Bill. I beg to move.
§ Baroness Williams of Crosby
I support the amendment with great reluctance, as my noble friend pointed out, because I do not believe that it goes far enough. For one thing, I find it very odd to consider that 277 an act—and it is actually stated within the Government's amendment—is in fact behaviour and appearance. It seems to me to be an act of God rather than an act over which someone has any control.
However, I am more worried about something which is relevant to what my noble friend said, but not quite the same. I am most bothered about what is generally the difference in judgment between generations. I do not really understand why people like wearing nose-rings in their noses, or for that matter why young males like wearing earrings in their ears. However, I notice that many of my children's friends do wear earrings in their ears. It seems to me to be an inoffensive if not a strange activity. I am also well aware that many of their parents' generation become terribly upset about young men wearing earrings in their ears and about young women wearing nose-rings in their noses. But the essential point is that subsection (3) gives a very disturbing degree of credence to whether the behaviour or appearance of a person does or does not recommend itself to an employment officer—and well might not do so.
I think that there are strong arguments for pressing that point hard. I believe that behaviour and appearance are irrelevant to this issue, as distinct from willingness to try to seek work, willingness to fufill conditions every week as regards showing a real desire to be actively employed and a real desire to be available for work. I cannot see what behaviour or appearance have to do with that unless they constitute a deliberate attempt to avoid being employed—which seems to me highly unlikely—which would be caught by many other provisions of this Bill. I therefore ask the Minister to reconsider whether behaviour or appearance should be listed in subsection (3). This is not a matter of an act of a person but in some cases of acts beyond his control.
§ 10.15 p.m.
§ Baroness Seear
Does the Minister agree that some people have extraordinary appearances—extraordinary, that is, in the eyes of the employment officer, and possibly of the noble Lord and someone like me—which may be a positive recommendation for certain jobs?
§ Lord Swinfen
Grouped with this amendment is my Amendment No. 33. This amendment is intended to ensure that disabled people whose physical appearance may be misconstrued by others should not be considered by employment staff to have deliberately presented themselves in such a way as to negate their chances of finding work. There is ample evidence that disabled people are discriminated against in society, either directly or unconsciously. The Government themselves are putting forward at the moment a disability discrimination Bill to deal with this subject.
There is concern that someone with a disability could be considered to be not actively seeking work under this subsection. The way this subsection has been drafted could mean that someone with a facial disfigurement, who had been refused interviews or offers of work because employers could not cope with his physical appearance, could have his efforts ignored as steps actively to seek work. Surely that is not the Government's intention.
278 Some disabled people whose condition may not be obvious may nonetheless present an appearance as unkempt or sweaty as a result of symptoms of an illness or disability. Some disabilities such as anxiety states, diabetes and Brights disease cause heavy sweating. Someone with a mental health problem may have difficulties on occasion in presenting himself to an employer as the employer would expect, but this would be as a result of the disability, not because he had deliberately set out to fail a job interview. Can my noble friend give assurances that disabled people whose condition could result in a physical appearance which some employers or Employment Service staff may find unappealing should not be caught by this subsection?
§ Lord Harmsworth
From the point of view of an employer someone's appearance may be important. An employer has a right to expect a standard which would not upset a customer. From that point of view an employee's appearance may be relevant. I personally think that too much attention should not be paid to the kind of controls which this part of the Bill provides because reasonableness usually prevails.
§ Lord Mackay of Ardbrecknish
My noble friend has just made a common-sense point. Amendment No. 32 seeks to remove an important provision from the Government's amendment and so from the Bill. I wish to give the Committee a quick and clear indication of our intentions in this area. I am sure that the Committee will agree with me that the majority of jobseekers are committed to looking for work and make every effort to try to find a job. They would not dream of undermining their chances of obtaining a job by their behaviour or by deliberately presenting a certain appearance or dressing in a certain way which they knew would make them unacceptable to the employer.
However, there are unfortunately a few people who are not prepared to put their best efforts into finding work and who are prepared to sabotage their chances of finding employment. It is surely right that if someone undermines his chances of obtaining employment—for example, by being abusive to an employer at a job interview—he should certainly not be able to claim that attending that interview is an active job step. We want to make sure through the regulations that people in this minority group cannot, on the one hand, undermine their chances of getting a job while still claiming that the very activities that they have undermined are active jobsearch steps.
To Members of the Committee who are keen on beards, earrings and the like, perhaps I may give an example of where problems could be caused by someone who does not really want a job but has to fulfil the actively seeking work requirements. Perhaps on Humberside, where the food industry is a major player in the labour market, someone is sent along to a food processing factory, safe in the knowledge that the food processing factory has to ensure that it obeys all the standards and rules and health and hygiene regulations, exercises due care and diligence, and so on. One of those rules happens to be, certainly in the most sophisticated sector of the food processing industry, that if Members of the Committee were to visit the factory they would have to put on hairnets. If they had a beard they would have to put on a face mask. It would 279 be necessary to take off one's watch, one's rings and, regardless of one's sex, one's earrings, and leave one's jewellery outside. The courts take a very dim view of a piece of jewellery turning up in your Lordships' fish dish in the Lords' dining room. Therefore, I suggest that if someone says that they made a genuine effort actively to seek work, the fact that he told the potential employer that he would not take his earring out in order to work on the production line and certainly would not wear a face mask cannot be set aside and ignored.
There are common-sense situations which we ought to address to deal with that tiny minority of people who, I am afraid, do exist and who are quite capable of working out how they can obey the rules in order to remain entitled to benefit but make dashed sure that they do not get any job that they actively seek.
I hope that nobody thinks that anything that I have said sounds sinister or shows that I have some deep underlying motivation. It is simply a rule that we wish to include in order to prevent a very small number of people abusing the system. I believe that the fears that have been expressed tonight, and on other occasions, on this issue are totally unjustified.
Interestingly enough, Amendment No. 32 seeks to put a provision in the Bill that "relevant acts" shall be considered. However, there is no indication of what would count as a relevant act. Having removed the regulation-making power, how would anybody know what was a relevant act? The effect of the amendment is that much that would be dealt with in regulations would be left to the discretion of the adjudication officer. I am certain that that is not what the noble Baroness and the noble Earl would wish to bring about.
I turn now to Amendment No. 33. I am grateful to my noble friend for tabling the amendment. It raises an important issue and allows me, even at this late hour, to place a few sentences on the record which I hope will not only help him but, more particularly, will help anyone who falls into the category of persons he mentioned.
The current regulations provide that in determining whether a jobseeker has met the condition of actively seeking employment all the circumstances of the case, including physical and mental limitations, will be taken into account by the adjudication officer. That includes any aspect of his appearance connected with his disability. I should like to make it absolutely clear that that will be carried forward to the JSA regulations.
As I have explained, the regulations we discussed earlier provide for the making of regulations dealing with the acts of someone who would otherwise—
I had better start again. This has become quite convoluted. I was trying to go more quickly than I should have done and I shall probably have to go back a phrase and start again because I do not want anybody to be in any doubt when they read what I said about the issue.
I mentioned being carried forward in the JSA regulations, a point made explicitly in the references to physical and mental limitations in Clause 6A(2) (b). As I have just explained, Clause 6A(3) provides for regulations to make provision for acts of a person which would otherwise be relevant to be disregarded in certain 280 circumstances, including those constituted by or connected with his behaviour or appearance. This is intended to ensure that jobseekers who set out to undermine their chances of gaining employment will be penalised.
Again I should like to make it clear for the record, in case there be any doubt, this cannot and will not be used in relation to involuntary aspects of appearance, in particular those connected with disability.
I apologise for getting into a slight tangle in the middle. I hope that that clear statement to my noble friend, and of course on the record, will allay his fears on this regard.
§ Lord Swinfen
I find that a helpful statement. I thank my noble friend for making it. I am delighted that for once I am able to thank my noble friend regarding the Bill, and to do so quite genuinely.
§ Earl Russell
I thank the Minister for that reply. However, I am afraid that he has rather missed the point of my concerns about relevant acts. I knew that I had not specified relevant acts. I knew that the effect was to leave it to the discretion of the adjudication officer. The Minister states that I cannot have intended that. I do not see why not.
The Minister has convicted himself of going down the road of fussy draftsmanship against which the Renton report warns us. You really cannot set out in advance what all the relevant acts are to be. In the nature of language, you cannot know what is relevant until you have a question. You cannot have a question until you have a case. Therefore you cannot know what the relevant circumstances will be until you have the evidence of the case. That is why I did not put in the amendment the circumstances which were to be relevant. I believe that that is good legislation. I am sorry that the Minister thinks otherwise.
Unlike on one of the previous amendments, I understood what the Minister said this time. The point about the food factory is well taken. I agree that appearance may matter. My concern is that the Government are trying to achieve the point by disregarding other acts which would have been relevant. I seek to argue that that is the wrong way to go about it. I have not had a response to that suggestion.
As so often, I believe that the Minister is concerned with intention. His remarks about people who were not genuinely looking for work rather proved that that was the basis for his concern. One simply cannot get at intention if one chooses simple to disregard half the evidence. It is not a proper judicial procedure. I hope that he will think again about disregarding other evidence. Perhaps we can then find out whether it is the right procedure with regard to the person's whole record.
The Minister has not thought enough about the number of difficulties that he will get himself into once he starts going into appearance. The provision which allows him to disregard acts which would otherwise be relevant will only make the situation worse.
§ However, I do not believe I can take the matter further now. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.281
§ [Amendments Nos. 33 to 48, as amendments to Amendment No. 4, not moved.]
§ 10.30 p.m.
§ Earl Russell moved, as an amendment No. 4, Amendment No. 49:
§ Leave out lines 116 to 122.
§ The noble Earl said: The amendment again relates to methods of legislation. The words I am trying to delete are ones which allow regulations to prescribe matters which are to be taken into account or not taken into account in determining good cause, or circumstances in which a person is or is not to be regarded as having good cause for failing to comply with regulations. We cannot make law like that. We must set out the general principle and then judge whether the case meets it. The provision is trying to foresee all cases in advance and it does not work. It will lead to endless trouble: appeals, doubts, big cases. It will lead to a vast amount of legal expense. Even if it is not the intention to rule out other forms of good cause which the regulations do not happen to remember to prescribe, it will make it much harder for the adjudication officer to take them into account than it would otherwise have been.
§ It is becoming obsessive; it is legislation in the style of people who dust the furniture 12 or 15 times a day. I wish the Department of Social Security would make sure that it possesses a copy of the Renton Report, reads it carefully and drafts its legislation accordingly. I beg to move.
§ Lord Inglewood
A claimant may have a good reason for failing to attend the Jobcentre to sign on or failing to attend a Restart interview. He may be sick, he may have a job interview or he may be dealing with an urgent domestic problem. Subsection (2) (d) enables entitlement to cease or not to cease if the claimant shows within a prescribed period that he had good cause for his failure to attend. This carries forward existing practice where a person can 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. Good cause, however, is not defined in either case.
Throughout JSA, we are aiming 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. We believe that that introduces uncertainty and inconsistency into the arrangements for claimants. 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 or not the reasons for non-attendance should lead to the claimant losing benefit.
§ Earl Russell
I wish that both departments would read the Renton Report. That argument about certainty is the draftsman's will-o'-the-wisp. It is explained in the report far more clearly and powerfully than I could ever do it that the attempt to pursue certainty by total enumeration is destined to inevitable failure, at great expense and in great confusion. The desire for certainty I understand, share and respect. What I do not accept is that certainty can ever be achieved by that method.
282 I ask the Minister whether, when I raise points of this kind (which I shall continue to do) during the remainder of proceedings on the Bill, I may have replies which relate to the point of my concern. This is the wrong method of drafting legislation; it will lead to uncertainty, not certainty. It will lead to confusion, not clarity. If one could only get something by wanting it, life would be so simple. You get clarity—in so far as you ever do—only by having a general principle, the application of which to particular cases you have to leave to be settled judicially. You cannot possibly foresee the particular circumstances until you get to them. This provision is very gravely mistaken and we shall have to return to it. In the meantime, I beg leave to withdraw the amendment.
§ Amendment No. 49, as an amendment to Amendment No. 4, by leave, withdrawn.
§ Baroness Turner of Camden moved, as an amendment to Amendment No. 4, Amendment No. 50:
Line 122, at end insert:
("( ) Regulations made under this section shall provide that at each stage the claimant is notified of his right to appeal against any decision made and of the procedure to be followed.").
§ The noble Baroness said: I shall probably be told that this amendment is not necessary as there is provision in the Bill for the right of appeal. However, new Clause 6 is the core of this Bill. Regulations made under this section will determine whether claimants will receive their benefit. We have already voiced our concern that the likely effect of this Bill when it is on the statute book will be to diminish the number of people who receive the new benefit as compared with those receiving unemployment benefit. Indeed, that would appear to be one of its main purposes.
§ Procedures for appeal may be lengthy; and even if arrangements are made whereby benefit continues pending appeal—as indeed it should—people who have received an adverse decision will be very worried about their future entitlement prospects. It is absolutely essential that such people are advised at each stage, not only of their right of appeal if the decision is an adverse one, but also as to how to go about it and the procedures to be followed.
§ I cannot emphasise too strongly that we are here dealing with people who are mostly poor and extremely vulnerable. It is up to Parliament to ensure that the procedures that they have to follow in order to secure the benefits to which in many cases they may feel their contributions entitle them are as user-friendly as possible. I hope therefore that the Minister will feel able to accept this amendment. I beg to move.
§ Earl Russell
I am happy to support this amendment. The right of appeal is important. Notification of the right of appeal is something without which the right cannot be beneficial, as it should be. I do not think that we understand often enough quite what a fog most people dealing with the benefits system are in. After all, most of us can remember the sort of fog that we were in when we first arrived here, or in some cases in the other place, and were faced with Marshalled Lists, groupings, amendments and Bills and were trying to juggle them with each other. I was certainly in great confusion. I often still am. I do not see why we should suppose that people on 283 benefit are any better able to manage than we are. If they do not receive some help and guidance they may have all the rights in the world, yet if they do not know about them, if they do not find out about them and cannot exercise them, they are under a very extreme form of arbitrary power, even when there is no such intention—as I accept there very often is not—on the part of any of those dealing with them.
Therefore, a provision for notification of rights of appeal is essential. It is likely to do a great deal of good at very little cost, without the sacrifice of any principle of the Government. I cannot imagine that the Minister will have any objection in principle to this provision. He may try to tell us that it is unnecessary; I do not think that he can tell us that it conflicts with any of the principles of the Bill. I am sure that it does not, I am glad to say. If it does not conflict with any of the principles of the Bill, I wonder whether perhaps this is just one amendment in relation to which the word "resist" does not appear on the brief, or, if it does, it might even, for once in a blue moon, be deleted.
§ Lord Mackay of Ardbrecknish
The noble Earl may be at least momentarily pleased to hear that the word "resist" does not appear in my brief—however, the word "reject" does.
This amendment would ensure that claimants are told of their rights of appeal if their entitlement to JSA ceases because they fail to attend a jobcentre as required. It is not clear to me why the amendment picks out this particular circumstance, because benefit can be disallowed for a variety of other reasons, but there is no question of our failing to inform claimants of their rights. Claimants get a pack of general information when they first sign on. It includes information about their right to appeal against any decision by an adjudication officer.
It is true that there are agencies of government which are making considerable efforts to try to make forms understandable and readable, and they are often colour-coded to help people wade through them. I fully accept that sometimes they are difficult to understand because of the variations in the human circumstance for which they have to cater, but over the years we have made considerable advances to get away from what was pretty impenetrable language to language which people can understand.
Once a decision has been given, the claimant is sent written notification setting out the decision, explaining its effect, notifying the claimant of his right to appeal to a social security appeal tribunal and explaining the procedure. JSA arrangements will continue to follow that general procedure, and the arrangements in the case of decisions as a result of non-attendance will be no different.
The letter is a standard notification, and the last paragraph says,After a decision has been made by the adjudication officer you can appeal to a Social Security Appeal Tribunal. If you wish to appeal ask for a leaflet NI246 at either your Employment Service Office or a Benefits Agency office. You should appeal within three months from the date at the top of the decision letter. Leaflet NI246 contains full details about the appeal system and what happens at the appeal hearings284 That is the letter which is sent out to explain the situation. In addition, at the beginning claimants receive a pack of general information which informs them about their rights of appeal against any decisions of the adjudication officer. I hope that with those assurances the noble Baroness feels able to withdraw her amendment.
§ Baroness Turner of Camden
I am not surprised that the briefing to the Minister said "reject" because that has been the situation throughout our discussions this evening. However, I am grateful to him for the assurances he has given us this evening about the pack of information being available to claimants. I hope that adjudication officers and employment officers are trained in giving vulnerable people assistance, because that is what lay at the root of our arguments. Many people simply do not understand the procedures; they need to be told what they are and how to go about them if they are to obtain their full rights under legislation.
I do not intend to press the amendment. I shall look with interest in Hansard tomorrow to see the assurances that the Minister gave in some detail. In the meantime, I beg leave to withdraw the amendment.
§ Amendment No. 50, as an amendment to Amendment No. 4, by leave withdrawn.
§ Baroness Williams of Crosby moved, as an amendment to Amendment No. 4, Amendment No. 51:
Line 122, at end insert:
("( ) Entitlement to a jobseeker's allowance shall not cease on any grounds related to whether a claimant is available for employment or is actively seeking employment or has failed to comply with regulations under this section unless the claimant has been notified in writing that consideration is being given that his entitlement should cease.").
§ The noble Baroness said: At this late hour I hope I may be able to tempt the Minister into one of the great constitutional glories of our system: that he is perfectly able to get up and refuse to take any notice of an advice which says "reject" if in his view he feels it would be politically wiser, more sensible, more imaginative and more responsive to pay no attention to what the Box advised him to do. I strongly recommend to him the extraordinary delights that that brings to one if one ever tries it.
§ Having said that, let me turn for a moment to the arguments. The Minister will recall that, when we discussed this matter earlier in Committee, I put forward arguments—I shall not repeat them—based upon the proportion of cases where, having been notified, people took steps to try to come within the conditions laid down which, if not satisfied, might lead them to lose benefit. At that point it seemed to me that a considerable administrative load could be lifted off the Department of Employment and the Department of Social Security if it was indicated to people that their benefit might be lost if they failed to take steps to meet the conditions.
§ However, during the Committee stage we had a long and bitter discussion on an earlier amendment on the issue of the payment of benefit until such time as an adjudication takes place, and this amendment would go at least a little way to bridge the gap between the two sides of the Committee on that matter. At the very least, it would draw the matter to the attention of people who had, perhaps unwittingly, failed to satisfy employment officers 285 on the issues of actively seeking employment or availability for work, although they might believe that they had taken the steps that they thought were adequate to justify the continuation of benefit. By drawing this matter to their attention it would at the very least give them notice that the issue was now before the employment officer and would go before the adjudication officer, and that some steps might be taken by the claimant before that hearing was held.
§ On every ground it seems to me that this would ease what was one of the acute differences of opinion within the Committee and that it would be an issue on which the Government might well be able to concede—the giving of notification to people whose entitlement to benefit was indeed at risk for the reasons given. It is perhaps all the more important because one of the arguments of this side of the Committee was that this was a particularly tough penalty to exact. However, if the Minister feels unable to concede with regard to that tough penalty, I am sure he will agree with us that at the very least the person concerned should be warned that this was the danger he might be undergoing and that this was the penalty that might come his way unless he took steps to try to deal with the matter quickly.
§ If the Minister reads in Hansard tomorrow what he said on that earlier amendment he will find that he said repeatedly that it was open to people to take steps to satisfy the employment officer and the adjudication officer that they were actively seeking employment and that they were available for work—it was a matter for them. In those circumstances, notifying them what is at stake is surely the very least we might ask for to enable them to take the steps that would avoid this very heavy penalty falling upon them. I beg to move.
§ 10.45 p.m.
§ Lord Mackay of Ardbrecknish
I must say to the noble Baroness that time has gone very slowly today because she seems to have forgotten that at the beginning of the session I introduced three new clauses in recognition of arguments put to me by the Delegated Powers Scrutiny Committee. Indeed, I made concessions in response to the committee's arguments on affirmative orders. So I do not think I always say "resist" or "reject".
§ Baroness Williams of Crosby
I notice that the noble Lord has graciously conceded to the scrutiny committee. It would be very nice if he would now concede to noble Lords at the Committee stage of the Bill.
§ Lord Mackay of Ardbrecknish
I shall see what I can do at the next stage; but I do not think I can do that now. If the noble Baroness talks to her noble friend Lady Seear, she will find out that I made a concession to her on the Pensions Bill which quite took her breath away—the first concession she had had in 24 years, if my memory serves me right. My record cannot be bad if the noble Baroness got one out of me after none for 24 years.
To return to the amendment, I think the noble Baroness means that we should not stop payments of JSA on the grounds of doubt as to a person's availability or actively seeking unless we notify the jobseeker that consideration is being given by an adjudication officer 286 as to whether his entitlement should cease. That is precisely what we propose to do. It is what we do now. A jobseeker will always receive notification that his claim has been referred to an independent adjudication officer and, in consequence, suspended. If, on the other hand, the noble Baroness is concerned that we should notify jobseekers when an employment officer is merely contemplating whether to refer a matter to the adjudication officer, while we do not issue such notification we would not suspend entitlement either. Either way the amendment does not add anything to our proposed arrangements.
When we considered the old Clause 6 (if I may refer to it in that way) we discussed a warning letter that used to be issued by employment officers to people who it was felt were not meeting the actively seeking work condition. The warning letter was an Employment Service administrative procedure introduced after the actively seeking employment condition was introduced in 1989. Its purpose was to ensure that unemployed people understood the implications of not meeting that new condition. It was specifically intended to ensure that people were fully informed about the new condition.
In 1992, three years after the introduction of the actively seeking employment condition, we decided that it was no longer necessary to issue warning letters as unemployed people would by then be acquainted with the new actively seeking employment condition. It is discussed in detail when a person makes a new claim for benefit and at subsequent review interviews under the Restart programme. Claimants also sign a declaration fortnightly to say that they have been actively seeking work during the period that they are signing for. Also, it became increasingly evident that some claimants—I mentioned this last time—were behaving as though they needed to start meeting the condition only after they had received a letter. That certainly was not the intention. To ensure that all claimants were in practice required to seek work actively, the, logical consequence would be that we should issue a letter to that effect immediately at the start of each claim. I do not believe that that would be sensible.
The sensible approach is to ensure that claimants are fully aware of the requirement actively to seek employment from the start of their claim for benefit. The jobseeker's agreement will be of great assistance in making that clear to all. One of our main aims in introducing JSA as a whole, and one of the principal purposes of the agreement, is to ensure that jobseekers understand the conditions of receiving JSA. Of course, that includes including the requirement to be actively seeking employment.
To sum up, I do not believe we should issue warning letters to every jobseeker who is not meeting the availability, actively seeking employment or attendance requirements under Clause 6B. The requirements are made clear to all existing jobseekers when they first make a claim and regularly thereafter, and our ability to do this will be greatly enhanced by the jobseeker's agreement. If there is a genuine doubt this should be referred to an independent adjudication officer to make a decision. With 287 that explanation, including the one that I cannot either reject or anything else, I hope that the noble Baroness will withdraw her amendment.
§ Earl Russell
Can I beg the Minister at this time of night to choose his language in a way which will not tend to prolong our discussion? He is again saying that a person who has been warned is not meeting the conditions of the benefit. Does he understand that those words are a red rag to us? Can he word it a little differently so that we can get home tonight?
§ Baroness Williams of Crosby
Before we conclude this short discussion I ask the Minister to consider two matters. First, will he consider making certain that some kind of written indication is given to those young people who come onto the employment market who will not be familiar with the actively-seeking work clause and its implications for benefit should they fail to meet it? To us it is a really serious consideration.
Secondly, I ask him to consider—I am not asking the Minister to reply right now—whether jobseeker's agreements can say on the face of the agreement, which will be a written agreement signed by both the employment officer and the claimant, specifically what will happen if these conditions are not met, and that there is a possibility that benefit will be withdrawn in those circumstances. In that event every jobseeker who signs an 288 agreement will be aware of the implications if he does not satisfy those conditions: he may lose benefit and in any event he will lose benefit until such time as the adjudication takes place. I ask the Minister to consider that before we reach Third Reading. I beg leave to withdraw the amendment.
§ [Amendment No. 51, as an amendment to Amendment No. 4, by leave, withdrawn.]
§ Lord Swinfen
Am I allowed to ask a question at this stage? I want to know how far it is intended that we go on Monday on Report stage because some of us may wish to put down amendments to this particular clause. I understand that we have Report stage on Monday.
§ Lord Mackay of Ardbrecknish
I would like to be helpful to my noble friend, but that is a matter for the usual channels. I do not know how far they have got in their discussions as to how far we might get on Monday evening.
§ On Question, Amendment No. 4 agreed to.
§ Clause 6, as amended, agreed to.
§ Clause 6A agreed to.
§ Clause 6B agreed to.
§ House resumed: Bill reported with an amendment in respect of Clause 6.
§ House adjourned at five minutes before eleven o'clock.