Lords Sitting of 15 May 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.
Lord Netherthorpe Lord Netherthorpe —Sat first in Parliament after the death of his father.
The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business, I take the opportunity to inform the House that I have accepted an invitation to deliver the McDermott Lecture, at the Queen's University, Belfast, on Friday 19th May. Accordingly, I trust that the House will agree to grant me leave of absence for Friday 19th May.

War Crimes Act 1991
2.38 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway asked Her Majesty's Government:
When those under investigation (some since 1988) will be told whether they are to be tried under the War Crimes Act 1991; and whether any other such investigations are to be instituted.
The Lord Chancellor: My Lords, the Crown Prosecution Service has received initial advice from senior Treasury counsel. Having carefully considered that advice, further inquiries are in hand in relation to certain potential defendants. It is not possible at this stage to predict whether or when any prosecution will be initiated, nor to say when those individuals who remain under investigation will be told whether or not they are to be prosecuted. If any further allegations were to be made, it would be for the police to consider whether any further investigation would be justified.
Lord Campbell of Alloway: My Lords, I thank my noble and learned friend for that reply. Is it not apparent from Mr. Attorney's answer in another place on 28th April that there were only seven initial references to Treasury counsel? No definitive references have been made as regards the 20 remaining persons under consideration, 14 of whom have been under investigation since long before the passing of the Act. Why is it that no definitive advice has been sought by the Director of Public Prosecutions in any one of the 20 cases? Why has not the Director of Public Prosecutions made a decision either to charge or to exclude on the available evidence, as was done in Scotland by the Lord Advocate a year ago?
The Lord Chancellor: My Lords, my noble and learned friend the Lord Advocate made decisions in relation to Scotland on the basis of investigations there
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which, as I understand, had been completed. The position in England and Wales is that seven cases have been reported by the police to the director, who is in consultation with my right honourable and learned friend the Attorney-General, as his consent is required in relation to any prosecution. The remaining 13 cases are still being investigated by the Metropolitan Police. Of the seven, certain further investigations have been requested. Your Lordships can be assured that my right honourable and learned friend the Attorney-General is anxious to reach a concluded view on these cases as soon as possible. But the investigations are necessarily complicated and he would wish to be sure that they were being properly conducted.
Lord Williams of Mostyn: My Lords, is the noble and learned Lord able to assist us on the date of the oldest investigation into these matters, the ages of any prospective defendants who remain alive, and whether or not it would be fair, prudent and appropriate to set some definitive cut-off point for these investigations which have now gone on for so long?
The Lord Chancellor: My Lords, the: investigations could only proceed once statutory authority for them had been given. Therefore, so far as concerns the police investigations, none dates before the granting of the statutory authority for them to take place. The noble Lord asked about the ages of those under investigation. My impression is that the oldest is around 84 years of age and the youngest of the order of 69 years of age. One's estimate as to whether they are old or comparatively young will depend, perhaps, on one's standpoint. In relation to investigations, I think that it is quite impossible to set a time limit if investigations are being pursued. So much depends on the course that the investigations take. But I have already given your Lordships the assurance of my right honourable and learned friend the Attorney-General that he is anxious to complete this matter as quickly as possible. As my noble friend Lord Campbell of Alloway said, he has the example of my noble and learned friend the Lord Advocate in Scotland to bear in mind and possibly to seek to emulate.
Lord Boyd-Carpenter: My Lords, is my noble and learned friend aware that, in an answer given in another place a few days ago, it was admitted that six police officers were fully employed on these investigations at a monthly cost of £77,000? Are we going to go on wasting the time of valuable officers who could be dealing with more serious and difficult questions of crime? Must we go on spending money in this way?
The Lord Chancellor: My Lords, my noble friend will be aware that I am as anxious as he is not to spend taxpayers' money unnecessarily. However, the question of precisely what investigations are required is a matter that has properly to be left to the judgment of those responsible for the investigations. These matters are serious and involve serious allegations. It is right that they should be properly investigated. I believe that those charged with the investigations are seeking to carry them out properly, as speedily as possible and with due regard to proper economy.
Lord Mayhew: My Lords, is it not now six years since the Hethrington-Chalmers report stated that the major obstacle to fair trials was the age of the suspects and the witnesses? That was six years ago. Is it not unsatisfactory that proceedings should still be dragging on without any prosecution being taken, and without any evident end to the proceedings? Might not the Government have been much wiser to follow the advice of this House in the whole matter of war crimes trials?
The Lord Chancellor: My Lords, as regards the Government following the advice of this House, obviously its advice was carefully considered in the other place, which had the advantage of the views of this House before the second occasion on which the Bill was introduced there. Noble Lords do not need me to tell them the result of the vote in the other place. As far as dragging on is concerned, it is a question of trying to carry out the investigations properly. Anyone who knows anything about them—and I am sure that that includes all your Lordships—will appreciate that they are not easy investigations to conduct, having regard to the nature of the allegations. I repeat, those responsible for the investigations are anxious to bring them to a conclusion as quickly as possible, always having regard to the importance of the issues at stake and the need for careful and wise decisions.
Viscount Tonypandy: My Lords, is the noble and learned Lord aware that the age of 83 years is nothing compared with the crime that has been committed? Does he agree that if I can remember what happened 50 years ago—and I am older than the oldest person whom the noble and learned Lord mentioned—other people can remember? Is the House further aware that yesterday I listened to a Jewish service in Cardiff and to a former victim of Auschwitz? She remembers, and these people remember. Murder is murder, and it does not become less because time has passed.
The Lord Chancellor: My Lords, if it were not for my faith in the credibility of the noble Viscount, I would have great difficulty in believing that he is as old as he claims. I am sure that your Lordships will agree with his view that recollections can be very strong in respect of certain events, even after the passage of time. Those who suffered in the events to which the noble Viscount referred, have very good reason for remembering well. Of course, in a fair trial recollections have to be tested. For example, recollections as regards identification would be important. All those are considerations to be taken into account in reaching a wise decision on the conclusion of these investigations.

Nuclear Policy
2.49 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they will reconsider their nuclear policy in the light of the argument in Paper II on Nuclear Proliferation published by the International Security
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Information Service and written by Ronald Higgins and Professor John Ziman FRS, contending for "a higher realism than present national self-absorption."
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Henley): My Lords, while we welcome most contributions to the nuclear debate, we believe that we already pursue the policies which most effectively promote peace and stability.
Lord Jenkins of Putney: My Lords, I thank the Minister for that Answer. Does he agree that there is a degree of criticism about Trident at a very significant level—indeed, even the necessity for it is now being questioned—and that similar criticisms are being raised by bodies apart from that to which I refer in my Question, which is a well-known non-partisan organisation? Is the Minister aware that Field Marshal Sir Nigel Bagnall is quoted in The Times as questioning the whole necessity for Trident? Is the Minister further aware that in this House the noble and gallant Lord, Field Marshal Lord Carver, has done the same from time to time? In all those circumstances, will not the Government at least have another look at their nuclear policy which is becoming incredible?
Lord Henley: My Lords, I simply do not accept what the noble Lord says. As I have said on many occasions, we maintain a minimum deterrent which both contributes to NATO's strategy of war prevention and is the ultimate guarantee of our own national security. The noble Lord has been putting his points for a great many years. His analysis of what happened in the past has, I believe, been proved wrong while Her Majesty's Government's viewpoint has been proved right. It is possibly about time that the noble Lord reconsidered his point of view.
Lord Chalfont: My Lords, does the Minister accept that there are some of us who, reading the phrase "national self-absorption" in the Question believe that the policy of a British Government should be to secure the interests and safety of the British people? If that is "national self-absorption", long may it survive.
Lord Henley: My Lords, I agree totally with the noble Lord. Perhaps I can assist by informing him that just before the reference to "national self-absorption", quoted by the noble Lord, Lord Jenkins, in his Question, appear the words:
"That hope could appear Utopian".
That might help the noble Lord.
Lord Mayhew: My Lords, is the Minister aware that at the recent non-proliferation conference, the Government's agreement to the signing of a comprehensive test ban treaty without reservations and to a cut-off in the production of fissile materials helped towards the achievement of what I think was a very welcome consensus at that conference? Is it not deplorable that the Chinese Government, who accepted the consensus, have today conducted a nuclear test?
Lord Henley: My Lords, the noble Lord is correct. We heard today that the Chinese have tested a weapon. The Chinese issued a statement which includes a clear commitment to abide by the comprehensive test ban

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treaty when it is agreed; we expect them to honour that commitment. We shall pursue that point with them and we shall continue with our commitment to try to reach a conclusion to the treaty by the end of 1996.
Lord Jenkins of Putney: My Lords, does the Minister agree that circumstances have changed completely since Trident was decided upon at enormous cost—in fact, eventually at double the estimate? We no longer have two superpowers and the purposes for which Trident was built have disappeared. In all those circumstances, is it not worth taking another look at the situation?
Lord Henley: My Lords, there are still two powers with very large quantities of nuclear weapons. As my right honourable friend the Foreign Secretary made clear at the beginning of the nuclear non-proliferation treaty, we do not think that we should be negotiating reductions in the size of our nuclear arsenal, which has already been reduced considerably, until we see those of the Russians and the United States reduced very considerably.

Bahrain: Human Rights
2.53 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell asked Her Majesty's Government:
Whether they are initiating international action to secure compliance by Bahrain with internationally recognised standards of human rights in respect of torture, detention without trial and the use of firearms against peaceful demonstrators.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the Bahrainis are well aware of the importance of observing human rights, including in the areas identified by the noble and learned Lord.
Lord Archer of Sandwell: My Lords, in thanking the Minister for that Answer, may I ask her whether there is any reason to doubt the reports by Amnesty International of firing on peaceful demonstrators, of withholding medical assistance to the injured, of detention without trial (or without a proper trial), and of the use of torture? More generally, does the Minister agree that there are some governments whose human rights records are so horrifying that they exclude themselves from normal, civilised, international discourse, and, if so, would she include Bahrain?
Baroness Chalker of Wallasey: My Lords, while we cannot overlook the allegations that have been made, it is perfectly fair to say that Bahrain has made considerable progress in recent years. However, we remain concerned about the number of deaths and casualties during the recent disturbances. We have seen no evidence that the Bahraini police used excessive force to contain peaceful demonstrations, but there really is a difference when the demonstrations become
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violent—and that is when the police resorted to the use of tear-gas and rubber bullets. However regrettable we may find it, that was the situation at the time.
I understand what the noble and learned Lord says about torture and about the other allegations that have been made. There is no substantiated evidence of the mistreatment of detainees, but we shall continue to examine any allegations of torture. If the noble and learned Lord knows of any, I hope that he will put them to us. I believe that a visit to Bahrain by Amnesty International would be of great benefit. It would be useful if that organisation could sit down with the Bahraini Government and agree the terms of a visit, because that is the only way in which we can make progress.
Baroness Blackstone: My Lords, i:5 the Minister aware that Amnesty International has asked to visit Bahrain and to observe the trials, which currently take place in camera? Can the Minister comment on reports from Amnesty International that Bahrain has resorted to the disgraceful practice of detaining children in lieu of relatives wanted by the authorities? Have the Government protested to Bahrain about that or raised the matter in any international forum?
Baroness Chalker of Wallasey: My Lords, I note what the noble Baroness said about the arrest of children who may be relatives of dissidents. We have no reliable evidence that that is happening, but I shall inquire further because, as the noble Baroness knows, neither the Government nor her own party believe that any detention without trial is right. There is no doubt but that those who have not yet been charged or released should soon be either charged or released.
I am glad to hear that Amnesty International has asked to visit Bahrain. I believe in the great importance of dialogue on such matters with organisations such as Amnesty International. I shall go into the. details of this matter following Questions this afternoon.
Lord Avebury: My Lords, may I suggest to the Minister that when looking at the detention of children as a means of bringing pressure to bear on their parents, she might glance at the case of Miss Afaf Al-Jamri, who was detained in order to bring pressure to bear on her father, the distinguished former MP and judge, Shaikh Al-Jamri, and that of her sister, Mansoora Al-Jamri, who was due to take her final examinations for a BA the week before last but who was detained by the security forces on her way into the examinations and prevented from taking them, again as a means of bringing pressure to bear on Shaikh Al-Jamri? Does the noble Baroness agree with her colleague Mr. Douglas Hogg that dialogue is the way to solve the political problems of Bahrain and that any dialogue has to include the principal signatories of the petition which was signed by 250,000 people and which called on the Amir to restore the 1973 constitution and Parliament, and that without such a dialogue, the disorders are likely to continue indefinitely?
Baroness Chalker of Wallasey: My Lords, I think that I said in answer to the previous question that we believe that dialogue is necessary and desirable. There

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is a clear need for us to take a close interest in all these cases—indeed, we are already doing that—including the case of Shaikh Abdul Al-Jamri. We are also aware of the concern about Mansoor Al-Jamri's recent visit to the United States, which was a cause of the disagreement with the Bahraini Government. He is a naturalised UK citizen and holds a UK passport. We shall certainly look into what he is doing.
However, I must say this. However concerned we are about the way in which the Bahraini Government are dealing with opposition groups, those opposition groups must act responsibly and within the law. Although this may seem a hard thing to say, I believe that, unless they do so, they are letting down their own case because this is a matter that will be resolved only by dialogue and by acting within the law. That begs the question of whether the law is yet right, but it is the only way to proceed responsibly.
Lord Archer of Sandwell: My Lords, in the light of what the Minister has said about the value of a visit to Bahrain by Amnesty, will she make her view known to the Bahraini Government?
Baroness Chalker of Wallasey: My Lords, I have no doubt that they read your Lordships' proceedings, but I shall bring it to their attention.

Official Languages: English and Welsh
3 p.m.
Viscount St. Davids Viscount St. Davids asked Her Majesty's Government:
Whether English is the only official language in use in the United Kingdom.
Lord Lucas: My Lords, there is no concept of an official language enshrined in English or Scottish law. However, the Government accept the principle that for official purposes in Wales the English and Welsh languages should be treated on a basis of equality.
Viscount St. Davids: My Lords, I thank my noble friend for that Answer. Is he aware that many members of the Civil Service appear to be ignorant of the existence of the Welsh Language Act and are too often quoted in the national press as stating or implying that English is the only language used in the UK that has a status recognised by statute?
Lord Lucas: My Lords, my noble friend was kind enough to send me one such press cutting. I can understand why it has got his goat—or perhaps I should say wedi cael ei afr. Such statements are wrong in fact and wrong in principle. If they have been made, we regret it.
Viscount Tonypandy: My Lords, is the Minister aware that there is a widespread belief in Wales that Welsh is the language of Heaven—in which case he should give further consideration to the extent to which it is official?
Lord Lucas: My Lords, if Welsh is the language of Heaven, there is not much hope for me.
Lord Hailsham of Saint Marylebone: My Lords, when the Royal Assent is given in this House in the more formal way, is it not traditional for the words La Reine le veult to be used?
Lord Lucas: My Lords, English is a very catholic language and is influenced by many things. I am not aware of any current use of Welsh, but in view of what my noble and learned friend has said, perhaps that should be encouraged.
Lord Elis-Thomas: My Lords, since I have the responsibility for promoting the Welsh language on earth, in view of the Government's excellent record in the UK in this field, is it now their intention to become a signatory to the European Charter promoted by the Council of Europe for regional or minority languages?
Lord Lucas: My Lords, the question of whether we should become a signatory to the European Charter is still under consideration, but nothing in that charter would require us to do more than we have already done for the Welsh language. We are proud of our record over the past 16 years in the support and promotion of Welsh in Wales.
Lord Campbell of Croy: My Lords, are we not overlooking yet another language in the UK, much used in official documents and known as gobbledegook? Should not that language be suppressed as much and as firmly as possible since it is usually unintelligible to any linguist?
Lord Lucas: My Lords, certainly, and my noble friend will be interested to know that today a document called Plain English and How to Speak It arrived on my desk in the Department for Education. I hope that we shall endeavour to do that in future even if we have not done so entirely in the past.
Lord Bruce of Donington: My Lords, in those circumstances, does the Minister agree that it is high time that Her Majesty's Government took the lead towards the abolition of Eurospeak?
Lord Lucas: My Lords, I have had to wait a long time—I think it is about 10 months—for the noble Lord to be able to ask me a supplementary question about Europe. I am glad that he has done so, and I agree with him.
Lord Morris of Castle Morris: My Lords, if we may return, even briefly, to the general ambience of the Question on the Order Paper, and since the question of the Welsh language has been raised, will the Minister tell the House which public utilities and private companies in Wales have prepared and had accepted schemes for the use of the Welsh language in the services that they provide? Will he tell us when precisely the Government hope to lay before both Houses of Parliament the guidelines prepared by that excellent body Bwrdd Yr Iaith Gymraeg (the Welsh Language Board) as required by the Welsh Language Act 1993?
Lord Lucas: My Lords, I never can answer the questions asked by the noble Lord, and so I am not surprised to be unable to answer this one. I shall write to him with the answers for which he asks.
Viscount St. Davids: My Lords, is my noble friend aware that the Treasury is reported in the press as having consulted the provisions of the Welsh Language Act in formulating the criteria for open-ended investment funds? Will my noble friend please ensure that all government departments follow that excellent example?
Lord Lucas: My Lords, sometimes reluctantly, but inevitably, all departments pay a great deal of attention to what the Treasury says.
Lord Morris of Castle Morris: My Lords, as we have just a minute on the clock, may I ask the Minister an easy question to which I have no doubt he will know the answer off the top of his head or out of his brief? Will he tell us whether Welsh-speaking prisoners in English prisons are or are not allowed to have Welsh language books, periodicals and videos?
Lord Lucas: My Lords, there is no prohibition on them having such things. Whether they are provided for Welsh speakers or speakers of any other language on this planet depends on the conditions in the prison and the prison authorities, but it is in principle our policy that such material should be provided within reason.

Jobseekers Bill
3.6 p.m.
Lord Strathclyde: My Lords, on behalf of my noble friend Lord Mackay of Ardbrecknish, I beg to move the Motion standing in his name on the Order Paper.
Moved, That the order of 4th May be vacated and that the amendments for the Report stage of the Jobseekers Bill be marshalled and considered in the following order:

Clauses 1 to 20,

Schedule 1,

Clauses 21 to 40,

Schedules 2 and 3.—(Lord Strathclyde.)

On Question, Motion agreed to.

Goods Vehicles (Licensing of Operators) Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that this Bill be now read a second time. The Bill consolidates the statutory system for the licensing of operators of heavy goods vehicles which was set up by Part V of the Transport Act 1968. That system was modified by the Goods Vehicles (Operators' Licences, Qualifications and Fees) Regulations 1984, part of which implemented obligations arising under the common transport policy of the European Communities.
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Both the 1968 Act and the 1984 regulations have been heavily amended. The most recent amendments, made by the Deregulation and Contracting Out Act 1994 and which are yet to come into force, will replace the present system of licensing whereby operators' licences expire five years after they are issued with a system of continuous licensing. Under the new system, operators' licences will continue in force indefinitely unless withdrawn on grounds relating to the licence-holder's conduct or on other grounds.
The law in this area is much in need of consolidation, and I should like to take this opportunity to thank the draftsman for continuing this important consolidation work. If your Lordships are content to give the Bill a Second Reading, it will be referred in the usual way to the Joint Committee on Consolidation Bills. I commend the Bill to the House.
Moved, That the Bill be now read a second time.— (The Lord Chancellor.)
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Criminal Appeal Bill
3.8 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that this Bill be now read a second time. The Bill is a measure of very great importance for it goes to the very heart of our criminal justice process, to its effectiveness and its integrity, and to the public's confidence in the effectiveness and lightness of that system. We all share a desire to see our criminal justice system process operating to the highest possible standards of fairness and integrity. We all share the goal of a system that wherever possible prevents miscarriages of justice in the first place and which is capable of delivering swift and effective remedies when things have not worked out as they should.. The Bill will help us achieve these goals.
The Bill is designed to reinforce and extend the powers of the courts in criminal appeals and to establish a new and independent system for identifying and correcting miscarriages of justice. In so doing, the Bill implements some of the key recommendations made by the Royal Commission on Criminal Justice in July 1993. I pay tribute to the manner in which that wise and eminent body under the chairmanship of the noble Viscount, Lord Runciman of Doxford, has illuminated the way forward in this major area of change. With the benefit of the consultations which we undertook following publication of the Royal Commission's report, we are able to bring before your Lordships' House legislation which will, I believe, be of immense, and lasting, public benefit.
I now turn to the detailed content of the Bill. Part I clarifies and strengthens the powers of the respective Courts of Appeal in England and Wales and in Northern Ireland. All the provisions either respond to the recommendations of the Royal Commission or improve the Courts of Appeal's operations in other ways.

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The Bill places an appeal against conviction on a point of law on the same footing as other appeals against conviction and sentence. Leave to appeal in such cases will therefore be required in future, save where the trial judge has certified the case as fit for appeal. This provides a sensible mechanism which will filter out those appeals on a point of law which are without obvious merit.
The Bill clarifies the grounds for allowing and dismissing an appeal. It replaces the current formula which involves three confusing and overlapping grounds with a simple test. Under the Bill, the court will allow any appeal where it considers that a conviction is unsafe. It will dismiss any other appeal. This simple test effectively consolidates the existing practice of the Court of Appeal. I was delighted to see that the noble and learned Lord the Lord Chief Justice welcomed it when the Bill was introduced in another place earlier this Session.
The Bill lowers the threshold for the admission of fresh evidence by the Court of Appeal along the lines recommended by the Royal Commission and provides a means for beginning or continuing an appeal on behalf of a person who has died.
The Courts of Appeal in England and Wales and in Northern Ireland respectively will be able to direct the new commission to investigate certain matters relating to an appeal before the court on its behalf and to report its findings to the court. Although we believe that this power is likely to be needed only rarely, it represents an important addition to the court's powers to remedy wrongful convictions.
Part II of the Bill deals with the establishment of the criminal cases review commission. At present, the power to refer cases to the Court of Appeal where a miscarriage of justice may have occurred lies with the Secretary of State. But, as I believe we would all now agree, this is not the most appropriate place for such powers to lie. A fresh approach is required in which these powers are exercised by a new, and independent, body; hence the creation of the commission.
The commission will be constitutionally separate from, and independent of, both government and the courts. It will examine cases in England and Wales and Northern Ireland and determine whether they should be referred to the courts in the respective jurisdictions. It will be able to refer any conviction or any sentence, or both, to the relevant court. And it will be able to refer summary cases as well as those which were tried originally on indictment. The commission will be accessible and open. It will have strong and effective investigative powers and it will be well resourced to carry out its task.
The final decision on any case which is referred will continue, however, to rest with the courts—the relevant Court of Appeal, if the case was tried originally on indictment, or the Crown Court, or a county court in Northern Ireland—following the referral of a summary case. The Government believe that this is the right division of responsibilities, the commission investigating and referring and the courts determining the resulting appeals.
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The members of the commission will be appointed by Her Majesty the Queen on the recommendation of the Prime Minister. All appointments will be publicly advertised and candidates selected based on their ability to do the job in hand. At least one-third of the members will be required to be legally qualified and two-thirds must appear to the Prime Minister to have experience or knowledge of the criminal justice system. One member, at least, must have relevant knowledge or experience of the criminal justice system in Northern Ireland. We believe that given their requirements, members of the commission will between them bring as wide a range of relevant knowledge and skills to the work as it is possible to provide. And they will need all of their skills, for the task which they face is a difficult and complex one.
The financial memorandum in the Bill sets out our best estimate of the additional costs involved in setting up the commission. I believe it sufficient to say therefore only that we believe that the commission will be properly resourced and able to deal with its anticipated workload as efficiently and as effectively as possible. We believe it possible, at least initially, that the commission may receive up to twice the number of representations as are made to the Home Office and the Northern Ireland Office at present. The commission will need to employ up to 60 staff. That is about three times the number currently engaged in such work within my department and that of my right honourable friend the Secretary of State for Northern Ireland.
The recruitment of its staff will be a matter for the commission but we expect that it will comprise, like the membership of the commission, a broad mix of legal, investigative and administrative skills and experience. These posts will, like those of the members of the commission, be filled following open advertisement.
In establishing a strong and independent body we have not lost sight of the need to ensure that the commission is fully accountable for its work. That is a necessary counterpart to its independence. The Bill contains provisions that will require the commission to report annually to the Secretary of State. It will also be required to keep proper accounts. Both its annual report and its audited accounts will be laid before Parliament.
The commission, like other non-departmental public bodies, will have to work within the budgetary requirements imposed upon it. The Secretary of State will agree with it a corporate plan establishing its operational goals and levels of performance. Thus the commission will be fully accountable for the work which it does.
My right honourable friend the Home Secretary will continue to be responsible for the law under which the commission will operate but he will take no part in the day-to-day decisions and administration of the commission.
At present, the only means by which miscarriages of justice in summary cases can be corrected in England and Wales and Northern Ireland is the exercise of the Royal Prerogative of Mercy. But although a free pardon removes the effect of the punishment, it is clearly unsatisfactory that the Royal Prerogative of Mercy does not quash or reverse the conviction. That is something

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only the courts can—and should—do. The Bill therefore provides, for the first time, for summary convictions, following investigation, to be referred to the Crown Court in England and Wales and to a county court in Northern Ireland.
However, many summary cases are very straightforward. They do not need the kind of detailed investigation which the commission will undertake before referring cases to the courts. For these, the Bill provides in Part III a very simple and straightforward remedy by extending the existing powers of the magistrates' courts in England and Wales to reopen a case to rectify earlier errors. At present, only the cases of those who pleaded not guilty to an offence at trial can be reheard in this way. The Bill enables magistrates' courts to reopen cases irrespective of the plea made at trial or the time which has elapsed since the case was heard provided that this would be in the interests of justice. The Bill makes comparable provision for Northern Ireland. This is an entirely new power for the Province.
In view of the many changes that will be made as a result of this Bill, we have also considered whether changes should be made with regard to the availability of the Royal Prerogative of Mercy. We have concluded, however, like the Royal Commission before us, that this would still be needed for the exceptional case. The Bill therefore empowers the commission to refer any case to the Secretary of State for him to consider recommending the exercise of the Royal Prerogative of Mercy and to give him its reasons when making such a referral.
It is necessary, however, to guard against the possibility that the role of the commission, and its responsibilities for investigating and referring cases to the courts, may be undermined by the Secretary of State's continuing capacity to receive petitions for a free pardon from others besides the commission. The Bill therefore also enables the Secretary of State, when considering whether he should recommend the exercise of the prerogative in relation to any conviction, to refer any matters to the commission for its opinion and then to treat that opinion as conclusive of the matter referred. This avoids the need for parallel investigations into the same matter having to be undertaken by two different authorities. And it ensures that any necessary investigation into the soundness of a conviction in a relevant case will be made by a body empowered, and resourced, to consider whether a miscarriage may have occurred.
The Bill gives the commission all the powers that it will need to carry out its investigations effectively and thoroughly. It will be able to obtain the assistance of police forces and other bodies by requiring them to appoint an investigating officer to make inquiries on its behalf and in accordance with its directions and, if necessary, under its supervision; require the appointment of an investigating officer from a different force or other public body from that which investigated the crime originally; insist that it approves the choice of the investigating officer before an investigation takes place; direct that any investigating officer cease to act as such and that he be replaced by another if his performance is not satisfactory; make its own inquiries,
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commission its own expert opinions and tests; and obtain access to documents held by police forces and other bodies. The commission will also be able to obtain relevant papers and other material held by my right honourable friends the Home Secretary and the Secretary of State for Northern Ireland as a consequence of their having considered possible miscarriages of justice cases under their existing powers. It will be clear from that that we expect the commission to take charge of the investigations carried out on its behalf. It will be the commission which will be responsible for investigating possible miscarriages of justice and for evaluating the results before deciding whether to refer.
The Bill requires the commission to be satisfied before making a reference that there is some new element—whether argument or evidence in conviction cases, or argument on a point of law or information in sentence cases—which the courts have not previously considered and which gives rise to a real possibility that the conviction or sentence will not be upheld by the relevant court so that it is of sufficient weight, in the context of the whole case, to merit referral. The Government believe those to be broad and sensible criteria. And they clearly define the boundaries between the commission's functions and those of the courts. We can see no useful purpose in the commission referring any case in which there is nothing new for the courts to consider.
The commission will give its reasons to the courts for referring the case. But that will not amount to a recommendation on the merits of the resulting appeal. As I indicated, that will be entirely a matter for the courts to determine in accordance with their normal powers and procedures.
As the House, I think, already knows, the Government agree with the Royal Commission that those seeking a review of their case by the commission should be kept properly informed of the progress of any inquiries being made into their case and that they should be given a full and reasoned explanation of any decision not to refer their case to the courts. The Bill therefore provides for the commission to give a statement of its reasons to the court when referring a case—which it will copy to the parties to the resulting appeal—and its reasons to the convicted person when it decides not to refer.
The extent to which the commission will disclose information in other circumstances will be a matter for the commission itself to decide. As it will be conducting investigations, not legal proceedings, questions of disclosure will fall to be dealt with accordingly. It will also be able to keep applicants informed of the progress made in investigating their cases, and to disclose information to them so that in the interests of fairness applicants will be able to make further representations in the light of matters found by the commission.
But as possible miscarriages of justice often raise sensitive matters, their investigation requires careful handling. The Bill accordingly makes it an offence for a member of the commission, a member of its staff, or an investigating officer, to disclose any information gathered by the commission in the course of its activities, save in the circumstances set out in the Bill.

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The gateways for disclosure provided in the Bill are, however, sufficient to enable the commission, where it thinks fit, to disclose relevant information in the way I have indicated today.
The Criminal Appeal Bill is a very important Bill. The public look to us to create a criminal justice system which is strong, effective and fair; one where the innocent have nothing to fear; one in which the guilty are rightly punished; and one, above all, in which all can have confidence. The Bill represents a further step towards making our system the best it is possible to provide. I commend the Bill to the House.
Moved, That the Bill be now read a second time.— (Baroness Blatch.)
3.24 p.m.
Lord McIntosh of Haringey: My Lords, I hope that I shall be the first of many to welcome the Bill. As in another place, it has been welcomed by those on all sides of the House. The Opposition did not divide against it on Second Reading in another place, not that we should ever dream of doing so here.
As the Minister said, it is a very necessary and important Bill and it is long overdue. Without going any further back into history, we must pay tribute to Mr. Kenneth Baker for his response to the miscarriages of justice which became apparent during his term of office as Home Secretary and for his wisdom in appointing the noble Viscount, Lord Runciman, as chairman of the Royal Commission. Unfortunately the noble Viscount has obligations today in Paris and he has asked me to express his apologies to the House for not being here, but he hopes to take part in the later proceedings of the Bill.
The Runciman Commission report two years ago received a very wide welcome; indeed, it was largely welcomed by the Government. We appreciate that. Of course we regretted that some of the recommendations of the Royal Commission were implemented in the Criminal Justice and Public Order Act last year; but this recommendation—which in many ways is the most important of all the Runciman recommendations—was not included in that Act and is therefore a year later than it might otherwise have been. Indeed, it is no secret that we were proposing to table amendments to the Criminal Justice and Public Order Bill to incorporate a commission or an authority very much along those lines. We were deterred only by the publication in April last year of the very fair and excellent Home Office discussion document which forms the basis of this Bill.
The fact that it is necessary and long overdue does not mean that it is an easy matter for which to legislate. The relationship between any independent authority of this kind and, in particular, the Court of Appeal is very tricky to establish and very tricky to maintain. It is essential that the Court of Appeal and the commission should have a mutual respect for and clear understanding of each other's role in order that they can operate effectively what is really rather like riding a tandem.
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It is also extremely important—and I shall return later to this issue—that they should both have the complete confidence of the public and all those involved in the criminal justice system. I have some reservations about the ability of the Bill as drafted to provide that confidence. But in general it seems to us that this attempt to redefine the role of the Court of Appeal and to relate it to the new independent commission is very much along the right lines.
Of course, the existing system was never static. It underwent a number of changes during its life, some of which were very welcome, while some were less welcome. Sir John May, in his second report on the Maguire case—he was also a member of the Royal Commission—talked about the self-imposed limits which the Court of Appeal set itself. It is well known that C3 in the Home Office, fulfilling the role which it is now proposed that the commission should fill, was essentially reactive rather than proactive: it responded only to recommendations rather than carrying out its own investigations.
The result of that has been that, as the Royal Commission said at paragraph 11.9 of its report:
"the role assigned to the Home Secretary … is incompatible with the constitutional separation of powers as between the courts and the executive".
That is the very serious defect in our existing law which this Bill is designed to remedy.
If, therefore, the Bill is to succeed as fully as it might do—and we are very keen for it to do so; indeed, we are most keen to be constructive in our approach to the Bill at all stages—there are a number of defects to which I have to draw attention and which I believe will need to be considered most carefully. If I devote the bulk of my speech to those defects, that does not mean that I believe that the Bill consists only of defects.
The first defect must concern the appointment and the membership of the commission. The procedure proposed is that the chairman and the members of the commission should be appointed by Her Majesty on the recommendation of the Prime Minister. The analogy for that is the procedure for the appointment of Lords Justices of Appeal. I am not in any way going to criticise that procedure except to say that it is very private; it is not at all open. There is no scrutiny of any kind of the appointment of Lords Justices of Appeal and perhaps there should not be. But such a commission, if it is to maintain and deserve public confidence, ought to be rather more open. We ought to consider whether there should be some sort of independent parliamentary scrutiny of the membership of the commission rather than the procedure proposed in the Bill. That is the first problem that I have with the appointment of the commission.
There are also rules laid down in the Bill for the membership of the commission. Fundamentally, such people would need to have a knowledge and understanding of the criminal justice system. My first reaction to that is to hope that it does not mean that a knowledge and understanding of the criminal justice system are equated with legal training. Indeed, there are many people other than lawyers who are involved in the system, who are knowledgeable about it and who ought

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to be included in such a commission. I shall not put up with any mutterings on the matter from my noble friend the Leader of the Opposition who is sitting behind me. It also occurs to me that the commission's clients are in fact those who have been accused and convicted of crimes. Therefore, there ought to be some attempt to ensure that the membership of the commission does not include people who have been convicted of crimes but does include people who come from the same social and ethnic background as those who are in the end their clients; in other words, the commission should be a good deal more open than I believe the Government propose. I see that the noble Baroness wishes to intervene. I give way.
Baroness Seear: My Lords, surely the noble Lord cannot possibly mean that villainy is confined to one class.
Lord McIntosh of Haringey: My Lords, of course I do not. But I believe that the noble Baroness would agree that the range of social class among villains is much wider than that of lawyers.
A Noble Lord: Oh, no!
Lord McIntosh of Haringey: My Lords, the second, and perhaps the single most important, issue on which we question the judgments made in the Bill concerns the investigatory role of the commission and how it will go about that task. I was interested to note that the Minister made virtually no reference to that in her opening speech, although she must know that it is the issue which has caused by far the greatest anxiety. Indeed, not only Justice and Liberty but also the Bar Council and the Law Society have all referred to the matter with varying degrees of discontent.
The Bill provides that the investigation should be carried out on behalf of the commission by members of public bodies. "Public bodies" are defined in the Bill so as to include a wide range of bodies other than the police. But the Explanatory and Financial Memorandum to the Bill makes it quite clear that it is intended that the great majority of investigations carried out on behalf of the commission will be undertaken by members of police forces. Investigations of officers of other public bodies are expected to be very rare, so the impact on the resources of such bodies will be minimal.
I question whether that is right either as a prediction or as a prescription. I question whether it is right that there should be such a firm presumption that virtually all investigations should be carried out by the police. There are many other investigative skills which are not necessarily those of the police and which ought to be involved in the investigations carried out by the commission. For example, investigations of fraud very often require the skills of the accountancy profession, although I agree that that is not the concern in this case. However, the investigative role of Customs and Excise is very important in a number of cases and, indeed, in criminal cases. The role of forensic scientists—and the Royal Society of Chemistry has made that case effectively—is important in the investigation of miscarriages of justice. Still more, I doubt whether it is
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right, as the Bill proposes, that the investigation should in general be carried out by the police force that was responsible for the original investigation.
I appreciate that during the passage of the Bill in another place some amendments were made which increased the power of the commission to veto investigating officers proposed to it by the chief of police. But, nevertheless, it seems to me to be fundamentally in conflict with the requirement that there should be public confidence in the commission that it should be expected very largely to go back to the original police forces which were responsible for the investigation now being challenged and expect them to carry out the reinvestigation. It seems to me to go beyond the expectation that people will have of the integrity and independence of the investigation.
I am not impressed by the analogy which is made with the Police Complaints Authority. That authority contains a number of dedicated and skilled people, but the effect of the Police Complaints Authority over the years has been that 90 per cent. of complaints have resulted in no disciplinary action. I cannot believe that that is a good analogy for our new commission.
We are told that to go back to the original police force is right because it is cheaper and because the investigators need police power and accountability. However, I suggest that those objectives could be achieved in other ways. In particular, I should like to suggest that at least part of the investigative work commissioned by the commission should be undertaken by its own staff; in other words, even though some of the work will have to be carried out by police forces, nevertheless, the bulk of it should be done by people who are working for the commission, who are responsible to the commission and, indeed, who are members of its own staff. Where that is not the case, the presumption should be that, if the investigation is carried out by the police, it should be carried out by a force other than the one which carried out the initial investigation.
The third major issue which we have to consider is disclosure. There is a peculiarity in Clause 17 about disclosure by the Secretary of State to the commission itself which will have to be subject to amendment later on. But the most important provisions on disclosure are found in Clauses 23 and 24. In November of last year the Divisional Court in a judgment on the Bridgewater case said that applicants should be able to see and comment on evidence on which they have been or might be refused. It was said that that was an important principle of fairness. That judgment is not overturned by the Bill. But the fear must be that the formulation of Clauses 23 and 24, which turn disclosure on its head and put the primary emphasis on confidentiality, with only exemptions proposed in Clause 24, will weaken the power and will of the courts and of the commission to make the necessary disclosures to applicants. Therefore, the fear is that the provisions will weaken the Divisional Court ruling in Hickey and others.
The fourth major query which we have: is on what the Minister called the simple rule that the court believes that the conviction is unsafe. That is not what Runciman said. The phrase used by the Royal Commission was "is

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or may be unsafe". The existing rule used by the Court of Appeal is "unsafe or unsatisfactory". We can agree that the words "or unsatisfactory" do not add significantly to it. But surely there is a need for a lower test than "is unsafe". In saying that, I have the support of the Bar Council and the Law Society, as well as Justice and Liberty.
Fifthly, surely there is a need for a lower test which may not cause the conviction to be quashed immediately but could, for example, trigger a retrial. Surely there is need for a recognition of the phrase "lurking doubt" which arose in the first place in 1968 or 1969 in the Cooper case. There is a need for recognition that something has to be done if there is a material irregularity in the investigation or the trial. We shall be putting down amendments about the criteria for quashing the conviction at a later stage. Indeed, I draw attention now to the minority report by Professor Michael Zander to the Royal Commission. It seems to me that there is a great deal of wisdom in his views about the necessity for correcting not only what happened at the trial but also looking at serious defects in the pre-trial proceedings.
Sixthly, there is the issue raised in Clause 13 about new evidence or argument. I wonder whether it is not more suitable to ask whether the issues have been adequately raised or adequately considered at the original trial; in other words, not to rely simply on new evidence. I return now to relatively minor matters because I appreciate that I must bring my remarks to an end—the question of legal aid and preparing cases for submission, which has been raised by a number of those concerned, and the question which the Law Society has raised about the leave to appeal, which is the issue in Clause 1 of the Bill.
It is clear that there is—I am sure that there are other issues—a great deal of meat in this Bill which is, I accept, an honest and honourable attempt to deal with the great problems which exist with the present system. There is still amendment to be done and it is the role, I suggest, of your Lordships to undertake that task. We shall do our best to help that.
3.43 p.m.
Lord Rodgers of Quarry Bank: My Lords, as the House will recall, this Bill was apparently an afterthought in the Government's legislative programme for this year, being identified only in the vaguest way in the gracious Speech. We are nevertheless glad to see it. It is, as the Minister said today, a Bill of great importance.
When the noble Baroness referred to the Bill in the debate on the Address, it sounded like a short and simple measure. The Bill as drafted is rather more substantial, but not the worse for that. In another place it took a whole day on Second Reading and virtually a whole day on Report, with over 12 hours in Committee in between. I would not expect your Lordships to be quite so prodigal with your time, but there is much that deserves detailed scrutiny and the Bill could be improved by amendment.
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In her speech on 22nd November last, the noble Baroness asked for a general welcome for the Bill. That welcome was given and is being repeated today. As the noble Lord, Lord McIntosh, said, there was no vote on Second Reading in another place, which is unusual enough especially with a Home Office measure. That, I think, is a way of judging the extent to which it has support across all Benches. However, I hope that a general welcome and support from all sides will produce a reciprocal response from the Minister. I hope that, as we are supporting her Bill sympathetically, she will in turn consider supporting our amendments. It is, after all, a constitutional duty of this House to improve Bills and I am sure that she will have an opportunity of sharing in that process.
When I spoke previously in your Lordships' House the noble Baroness gave me what I think I must call a thorough ticking off. I had the temerity to be critical of the Home Secretary in relation to penal policy. I had criticised his attitude to what I called "saloon bar populism" and said that in penal matters his rule appeared to me to be a case of,
"Give me a misconceived perception and I will yield to it". — [Official Report, 27/4/95; col. 1089.]
The Minister is a loyal and doughty fighter—I have no quarrel with that—and she admonished me. The noble Lord, she said, referring to me, has,
"not for the first time, personalised much of what he said". — [Official Report, 27/4/95; col. 1094.]
Of course she was right; indeed I did that. However, we do not have an anonymous system of government in this country. We have heads of great departments of state who exercise personal authority. They like to stamp their own style and ideas on their departments. That is how we work; that is how governments of all parties work. Indeed, it is how the Minister herself works. She is a strong and positive Minister. Things are different because she is there. Therefore, I shall continue to personalise Home Office policy when it is clearly policy made on the initiative of the Home Secretary. Indeed, if in response to the Minister's strictures I ceased doing so, I would be unable to praise the present Home Secretary for bringing this Bill forward. Other Home Secretaries could have brought before Parliament provisions for a criminal cases review commission — indeed, the noble Lord, Lord McIntosh, referred favourably to Mr. Kenneth Baker—but they did not do so. Michael Howard has done so, and with the Minister's permission I thank him for that.
Most of the points that I wanted to pursue on the Bill are matters for Committee. They need detailed and precise discussion. I would also like to hear the views of other noble Lords, both today and later, especially those with close experience of the criminal law. If the Bill is to be improved their views are crucial. There are only two points to which I wish to refer, as against the six of the noble Lord, Lord McIntosh. The first concerns the funding of the review commission. The noble Viscount, Lord Runciman, who chaired with such distinction—as is generally agreed—the Royal

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Commission on the criminal law, had offered in a lecture elsewhere some afterthoughts about its conclusions. He said:
"I wish we had argued more strongly the need to ensure that the new criminal cases review authority … is properly—which means abundantly—funded".
I asked in the debate on the Address for Ministers to confirm that that would be the case. The noble Lord, Lord Mackay of Ardbrecknish, gave the undertaking. He baulked at the word "abundantly" but not at "properly". The Minister has used the same word today. But the Financial Memorandum is not reassuring. The net cost of the commission's accommodation and administrative overheads appears to be £3.5 million. That seems modest and I hope that it does not mean any restraint on the independence of the commission to make whatever provision it thinks necessary for its work. I agree that it is reasonable. One would take for granted that it must agree its budget with the Home Secretary from year to year, but I hope that the Minister in winding up today will confirm again that there will be no unreasonable restraint upon the money which the commission may spend.
However, much more worrying than the question of the cost of accommodation and administrative overheads is the assumption that the Bill will not give rise to extra demands on police resources. I find that difficult to believe. It would be very unfair if police forces received no extra help whatever when many are under great financial strain at present and some are reducing their services to the public.
My second point relates, as I am sure will the remarks of other noble Lords, to Clause 18 and, more generally, the question of who should carry out the investigations initiated by the commission and whether it should have discretion to appoint an in-house team.
In Committee in another place the noble Baroness's colleague, Mr. Maclean, said on this matter that the Government were not convinced that an in-house investigative team will be helpful or necessary. It would add significantly to the commission's costs and would not be an efficient use of resources. However, I can find no quantification of those costs. Ministers may say that it is not the main consideration, but they have introduced the idea of its relevance and it would have been irresponsible to do so without having relative data. I hope that later this afternoon the Minister can say—because there will have been time to check the figures—what "significantly" means. What estimate have the Government made of additional costs at the centre and the savings in police resources that may follow from independent investigation?
As to the principle of either an in-house team, which seems most practical, or a team hired for specific investigations, I hope very much that the Government will agree at the end of our debate in this House to an element of flexibility being built into the Bill. This is an independent commission. It will be independent of the Government and independent of the courts. The Government want it that way, and I am sure that your Lordships will want it that way. However, not everyone has faith in our system. If the commission fails to establish itself in the public eye as independent some
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of its purpose will be lost. Not everyone will feel that investigations undertaken by police forces will ever be wholly independent of the Government and the courts—what I have called "the system" in all its separate parts.
I do not understand why the option of alternative means of investigation should not be written into the Bill. If the independent commission found that an in-house team would be unhelpful or unnecessary—words which the Minister used in another place—of course it would not employ one. That would be its independent decision, not the Government's, as revealed in the omission from the Bill. At the very least there ought to be provision in the Bill for second thoughts by which, if the commission so desired, it could be given such further powers by statutory instrument. Neither the Minister nor this House, nor those who may compose the commission, can know how the process will work. We cannot know now how it could be most effective in its purpose. All I suggest to the Minister is that if that option were available, if necessary by statutory instrument, it could be taken up without resort to primary legislation, which would not be a sensible use of the time of this House.
I hope that the Minister will consider that possibility. As I say, it would introduce flexibility. It would be a reasonable compromise which might command wide support. It could make this, which is a good and welcome Bill, even better. In that spirit, I hope that the House will send the Bill on its way.
3.54 p.m.
Lord Taylor of Gosforth: My Lords, before I address the House on the Bill I hope that four Lordships will consider it right and appropriate if I make brief mention of the late Lord Goodman and say how sad we all are at his passing. I should like to pay a personal tribute to the enormous contribution he made to the law and to public life generally.
Noble Lords: Hear, hear!
Lord Taylor of Gosforth: My Lords, the Bill raises two issues of fundamental importance both for the individual and for the public as a whole. First, a sound system of criminal justice requires an appeal process which is accessible, reliable and comprehensible in order to safeguard the right of those charged with criminal offences to be punished only if the admissible evidence proves them to be guilty. That is in accord with the right to liberty enshrined in article 5 of the European Convention on Human Rights, the importance of which has been recognised by this House in passing the Bill recently presented by the noble Lord, Lord Lester of Herne Hill. In that regard, there are a number of respects in which the Criminal Appeal Act 1968 has been thought capable of improvement.
Secondly, public confidence in the criminal justice system requires a mechanism for dealing with alleged miscarriages of justice when fresh material comes to light after all conventional avenues of appeal have been exhausted. In that regard the Royal Commission recommended references back to the Court of Appeal by an independent body rather than, as hitherto, by the Home Secretary.

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The Bill before us addresses both of those important issues. I am glad to say that I support it. In doing so I speak not only for myself but with the concurrence of a group of senior judges with great experience both in the practice of the criminal law and in the Criminal Division of the Court of Appeal whom I have consulted on both the policy of the Bill and its detailed provisions.
At the heart of any appeal system is the test to be applied when deciding whether a conviction should be quashed or upheld. Clearly, the Court of Appeal cannot, and should not, carry out a complete retrial of the case, acting as judge and jury and reaching its own conclusions as to the facts. The role of the Court of Appeal is rather to decide whether anything in the conduct of the trial or in any fresh evidence which has come to light casts doubt upon the safety of the conviction or whether the court is otherwise unconvinced that the verdict is safe. But the public also demand, and rightly so, that the guilty should be convicted and that their convictions should be upheld. The appeal court must therefore have a statutory test which provides the proper criterion for determining whether a conviction should be quashed or affirmed.
In its report the Royal Commission recommended that Section 2 of the 1968 Act ought to be redrafted,
"in view of the present overlap between the grounds of appeal and the confusion over the scope of the proviso"
to that section. Its recommendation that the court should decide upon the safety of the conviction has been broadly followed by the Government. The new test—whether the conviction is unsafe—will, in my view, be concise, just and comprehensible to the ordinary citizen without narrowing the present grounds of appeal. It will assist the Court of Appeal and those who appear before it. And it will help appellants to understand more readily what is at stake and the reasons for the court's decision.
There has been criticism of the fact that the precise test recommended by the Royal Commission has not been adopted. In my view, however, there is no merit in including in the test the words "or may be unsafe" since the implication of doubt is already inherent in the word "unsafe". A conviction which may be unsafe is unsafe.
I turn to Part II of the Bill. In some instances, even after a case has been considered on appeal, new evidence or a new factor comes to light which makes it necessary for further consideration by the Court of Appeal. The other major limb of the Bill meets that requirement by the establishment of the long-awaited criminal cases review commission. As your Lordships have heard me say before, I very much support the setting up of an independent body to investigate alleged miscarriages of justice, and I was delighted when, seemingly at the last moment, time was found by the Government for its establishment in the present legislative programme. The Court of Appeal will continue to be the final arbiter of the safety of convictions and it will be the commission's role to refer appropriate cases to the court. I believe that the need for a body independent of the government and the courts, whose task will be to consider and, where necessary, to
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investigate such cases is well established. In the other place, this aspect of the Bill was welcomed from all sides.
The commission will also provide valuable assistance to the Court of Appeal under Clause 14 of the Bill which empowers the court to commission investigations during the course of an appeal. In my view, although it will not be necessary to invoke it frequently, the demands of justice and efficiency call for such a power. It will allow the Court of Appeal to institute investigations other than by the parties themselves without the delay which would be caused by the dismissal of the appeal and subsequent application to the commission.
There are some subsidiary points to which your Lordships may wish to give consideration in Committee. The Bill provides an opportunity to clarify the provisions of Section 23 of the 1968 Act which deal with the admission of new evidence and I hope that the Government will soon be able to bring forward amendments. The power of the commission to refer sentence only cases to the Court of Appeal causes me some disquiet and was criticised in another place on the ground that the commission might in its early years receive a great number of applications of this nature which could leave it struggling to cope with the caseload it will inherit of allegedly flawed convictions, which is what the commission is essentially about.
There may also be an opportunity in the Bill to improve the procedures presently followed when a life sentence is imposed in a case of murder—in particular, regarding recommendations by judges as to the minimum term to be served. The current system for setting the so-called "tariff' period does little to enhance public confidence in our system and was recently criticised by the Court of Appeal. These are relatively modest reservations, however, and I strongly commend the Bill to your Lordships.
4.2 p.m.
Lord Alexander of Weedon: My Lords, I also warmly welcome this Bill. I do so both from my experience at the Bar and, more particularly, as chairman of Justice, the all-party law reform group which exists to promote law reform and maintain and enhance human rights.
In the criminal law, the consistent aim of Justice as an organisation is to improve processes so that they have the twin effects of increasing the prospects that the guilty will be convicted while improving safeguards against wrongful convictions.
Justice has experience over more than 30 years of looking into suggested miscarriages of justice. There is no other body which has existed to do so on a regular and structured basis. Not long ago Justice was described in The Times as,
"a place of last resort when official procedures have failed".
In the course of this extensive work, Justice became convinced many years ago of the importance of the creation of a review body, independent of the courts, the police and the executive, to examine complaints and initiate appropriate proceedings for appeal to the courts.

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We strongly so submitted to the Royal Commission on Criminal Justice, so well chaired by the noble Viscount, Lord Runciman.
We welcomed the clear and unanimous view of the Royal Commission that a new review body, wholly independent of government, was needed. So I warmly compliment the Home Secretary, Mr. Michael Howard, on his decision to implement the Royal Commission report. In introducing the Bill he said,
"We share a common interest in ensuring that our system is the best we can provide, that it contains all the necessary safeguards to minimise the possibility of a wrongful conviction, the most effective appeals procedures that we can devise, and the best machinery for investigating possible miscarriages of justice".
Those are uncontroversial aims, but it is good to hear them so positively stressed. On the same occasion, the Home Secretary also said,
"We need a new investigative body that is constitutionally separate from, and visibly independent of, both Government and the courts. We also need to clarify and strengthen the powers of the Court of Appeal to identify and resolve doubtful cases at the earliest opportunity".—[Official Report, Commons, 6/3/95; col. 23.]0
These words demonstrate the Home Secretary's wholehearted commitment to the Bill, and no doubt its inclusion in the current legislative programme reflects his determination. I would like to thank him for his personal commitment to ensure this excellent and most positive development for improving criminal processes. I would also add that strengthening the procedures for guarding against miscarriages of justice serves to raise confidence in the criminal justice system as a whole. This is crucial in establishing guilt in cases where charges are properly brought home against an accused.
The Home Secretary rightly laid stress on ensuring that the machinery for the new commission was as good as it could possibly be. In this spirit, I should just like to comment on two aspects of the machinery which is created by the Bill. First, it is obviously important that the investigation should be efficient and should be seen to be independent. I welcome the fact that members of the review body will include a mix of lawyers and non-lawyers. The Royal Commission rightly said that the precise numbers and mix must depend on its workload. I also agree with the Royal Commission report that, in general, investigation should be carried out by police forces. But I also believe —it is again what the Royal Commission recommended—that the review body should have on its own staff people with relevant investigative experience. I believe that the machinery would work better if there were a small core of police officers, possibly seconded for a period from their current police service, who were a part of the central team.
My noble friend the Minister said in opening the debate that it is vital for the commission to have strong and effective investigative powers. I agree and welcome that commitment. But under the Bill at present the commission has no power to appoint its own independent investigators from its own staff in any circumstances. I think that there would be much to be said for its having at the very least a residual power to appoint independent investigators in particularly sensitive or complex cases. I know that an all-party amendment to provide such a power was narrowly
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defeated in another place, but I would hope that consideration would be given to this proposal again both by the Government and by your Lordships' House.
The second issue that I wish to raise relates to disclosure of evidence. In the past, the absence of full disclosure of evidence has been one source of miscarriages of justice, and also a major grievance to applicants whose cases the Home Office has refused to refer to the Court of Appeal. In summary, those applicants did not have the material which had been gathered in response to their complaints properly disclosed to them, nor any opportunity to answer the information which was influencing the Home Secretary in his decision. They met what was in many cases quite simply a brick wall. That was recognised by the Divisional Court in its judgment in Ex parte Hickey and Others last year. The court held that fairness required that applicants should be able to see and to comment on evidence which had previously been refused to them so that they could challenge its accuracy or make further representations. This is crucial to ensure that justice is done, and is seen by applicants to have been done. As the Divisional Court judgment said:
"Principle dictates that, absent powerful countervailing considerations, advance disclosure is required. It is required in the interests both of fairness and informed decision making. Without it an adverse decision may not be right; it will not be fair".
This is a point of real substance. In one case with which Justice has been involved for more than five years, which relates to the conviction of a man called Sammy Davis for rape, many of those who have looked at the case believe that there are very real doubts as to whether he was guilty. But the Home Office did not feel it appropriate to disclose the result of their investigations to his advisers. In the Divisional Court case to which I referred and after disclosure of the evidence had finally been made, the court took the view that there was a clear ground for hearing an appeal as the conviction might be unsafe. This illustrates just how important it is that the advisers to the applicant should have an opportunity to consider the evidence.
Doubts have been expressed as to whether the provisions of Clauses 23 and 24 of the Bill preserve this emphasis. They would appear at first sight to provide for a general duty of confidentiality which is qualified by some limited exceptions. These exceptions are very general and do not specify the occasions or purposes for which disclosure is required. Concern was expressed about the provisions in another place. Ministers in response helpfully stated that the same approach which was established in the recent court judgment would in practice be followed, saying:
"In our view, the Commission will be governed by the same duty of fairness and by the resulting requirements of disclosure".
So I welcome the clear statement today from my noble friend the Minister that the Government recognise that it is important in principle that information should be disclosed to the applicant. It is in fact elementary because only in that way can the applicant have the chance to answer new material and only in that way can the procedures of the commission be sufficiently transparent to be seen to be fair. I believe that exceptions, if they arise, should be rare.

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I wish to refer briefly to one other point. As the noble and learned Lord the Lord Chief Justice pointed out, Clause 2 of the Bill provides that the Court of Appeal shall allow the appeal,
"if they think that the conviction is unsafe".
Anxieties have been expressed as to whether that sufficiently covers the situation where the conviction might be unsafe; but, again, in another place the Minister in response—and I have no doubt that my noble friend will confirm this—stated that what is described as the "lurking doubt" test would still apply. The confirmation of the noble and learned Lord the Lord Chief Justice of his understanding on this was welcome. As he said, a conviction is unsafe if it may be unsafe and if that is clearly established so that no one is in any state of doubt, it is extremely welcome.
Before concluding, I should just like to state my support for the view expressed by the noble and learned Lord the Lord Chief Justice on the desirability of the Court of Appeal considering certain possible changes which affect those sentenced to life imprisonment. In particular, where the judge states in open court a "recommendation" that a prisoner should serve for a minimum period of years, that recommendation—albeit stated in open court—is not an order, as I understand the law, from which an appeal may be brought. I believe that the present position with regard to mandatory sentences and the executive procedures which are involved in implementing them is far from satisfactory in general. But I recognise that that is a wider topic than falls within the Bill. I ask that careful consideration be given to the proposal of the noble and learned Lord the Lord Chief Justice.
I end where I began. I warmly commend the principle of the Bill to the House and again express gratitude to the Home Secretary for the personal impetus he has put behind this most worthwhile reform.
4.13 p.m.
Lord Mishcon: My Lords, is it not amazing that it has taken until this year for us to consider a power that was vested in the Home Secretary to refer cases, where he saw fit, to the Court of Appeal because there was doubt about a conviction? All Members of this House have respect for politicians, even if those outside the House do not share it. However, how extraordinary that this power and right in regard to our system of justice should be reposed in the Home Secretary. How extraordinary that it should take until now for us to be considering powers to investigate where matters of miscarriage of justice occur.
I hope that your Lordships will not think this self-advertisement, but I am reminded that reference has been made to the report on the Maguire case by that fine judge, the right honourable Sir John May. In the Maguire case there was a conviction which was lifted only in 1991. I wish to read from page 67 of the report. Sir John May wrote in 1985:
"in May 1985 Lord Fitt initiated a debate in the House of Lords on the Maguire case, pressing the Government to reopen it. He was supported from all sides of the House and Lord Mishcon, Labour
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front bench spokesman on Home Affairs, made a new and specific request to the Home Secretary (although he said he was speaking in a personal capacity)".
Then there is the quotation of what I suggested to the Home Office Minister at that time:
"to appoint independent scientific advisers to look at the evidence that was given and advise the Secretary of State whether there are grounds under the section [17 of the Criminal Appeal Act 1968] for him to consider that there is new evidence".
Then in his report Sir John May takes us through the evidence that was given from the Home Office as to why that suggestion was not acted upon. I read from page 71, paragraph 11.43:
"On repeated requests to establish a scientific committee Mr. Stanton's advice was clear".
In parenthesis, I may say that he was a grade 7 official in the C3 Division of the Home Office. The report quotes Mr. Stanton's advice:
"These approaches must continue to be resisted. We do not know what conclusions, if any, a committee of scientists might arrive at. There would be pressure for the Secretary of State to act on the basis of any recommendations (for example, referral) it might make, leaving potentially awkward decisions to be made, and setting a dangerous precedent. Arguably it remains up to the Maguires and their supporters to demonstrate a case, not for the Secretary of State to explore it himself'.
That was in 1985. If that scientific committee had been appointed as scientific advisers to the Home Secretary on the Maguire case, would it have taken until 1991 for that miscarriage of justice to be redressed?
So I have a personal sense of satisfaction that we now have a Bill before us under which the investigatory work will be carried out, not by a politician but, with our usual reverence for the separation of powers, by an independent body that will have the power to investigate.
It is all very well to give bodies created by Parliament the power to do things. It is easy for us to put that permissive power on to the statute book. After all the publicity that has been given to grievous miscarriages of justice, the public will have great expectations that this body will deal promptly and thoroughly with applications and that it will have the power to investigate and the intelligence to reach proper decisions. Are we satisfied that, when the Bill becomes an Act of Parliament by the statutory instrument that the Secretary of State will be empowered to issue, this will be a body capable of carrying out this work?
I believe that the figure given was 730 cases per annum now being considered by C3 division of the Home Office. I believe I heard the Minister say in her very lucid account of the provisions of this Bill that provision was being made for that figure to be doubled, certainly in the first year, and perhaps even trebled. I thought that she said doubled, but let us take it for granted that it is to be trebled. That is not a bad estimate. One can imagine the number of people who will be encouraged to say, "My case is one of a miscarriage of justice. By the grace of God, there is now a commission to which I can apply".
One also has to add that cases now with C3 division will be passed on to the commission. Are we satisfied that we shall have people of sufficient ability and training to staff the commission? Not everybody is satisfied, if I may say so with deep respect, that the

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officials of the Serious Fraud Office are necessarily of the calibre that we expected. Nor is everybody satisfied that those who run the Child Support Agency are of the ability that we anticipated. I hope therefore that remuneration of officials of the commission will be adequate to attract people who are genuinely able to deal with the administrative work that will be required as well as with the investigative work.
It is not just a question of our having faith in the police. I hope that in this House we shall always state in regard to the police what is the experience of most of us; namely, that the majority of our police force are brave, decent, honourable people who are doing a most difficult job. Having said that, we all know from our own experience—and it is only human—that a minority do not live up to that reputation. The public are a little suspicious of any inquiry being handed over to the police when it relates to the propriety of police action.
We cannot do without the police on such inquiries and investigations. But it would be awfully sensible for people in the police force to think of this commission as a correct step in their career, be it for a period of five years or whatever, so that their loyalty is not to their local police force but, as my noble friend Lord McIntosh suggested, to the commission itself. That must be the right way of doing things, rather than just passing work out to the police. As was rightly said from the Liberal Democrat Benches, one has to take into account the fact that, so far as the police are concerned, they are over-burdened as it is. Unless we want —noble Lords will forgive the expression—slick, quick work done of a not very thorough nature, we really must see that this is not just a matter of referral to a police force, and certainly not to a force that is involved in whatever may be the inquiry.
In conclusion, if we are trying to build an edifice of justice within the system of which we are rightly proud, please do not let us think again in purely non-practical terms. The man or woman who will apply to this commission will not, in 99 cases out of 100, be very literate and will not understand the process. We have to realise that there will be no justice unless the application that is made, the reaction to the possible communications from the commission, the reaction to new evidence that is procured and the submissions that the case is a proper one for the Court of Appeal are assisted by lawyers. When we talk about being assisted by lawyers, there is no point in trying to escape the inevitable conclusion that in 99 cases out of 100 that must be done on legal aid. We must take that fact into account. Otherwise, if we set the system up without making proper provision for people to obtain justice, our attempts at justice are half-hearted.
4.26 p.m.
Lord Campbell of Alloway: My Lords, at this stage of the debate I shall be very brief, address just three points and put down a marker for an amendment. Like all other noble Lords who have spoken, I welcome this Bill. As to the statutory test under Clause 2, I had already made a very rough note that "what may be unsafe is unsafe". Then I heard the noble and learned Lord the Lord Chief Justice indeed say so. That is a
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sufficient test. With respect, I do not support the suggestion that was made that the test should be that it "may be unsafe".
However, from my own practical experience there are worries about the lurking doubt. In the case of Heibner— in which I was not instructed at the time and am not instructed now—it is on record that the Court of Appeal held expressly that there was a lurking doubt and refused the application. This is not the moment to take up your Lordships' time. The case is on record and may be consulted. Therefore, let us not suppose that the lurking doubt is wholly dispensed with. If anybody is interested, I could find the reference in my chambers.
Secondly, clearly the Home Office and the police must be under an obligation, a duty, to disclose all relevant material in accordance with the ex parte Hickey decision mentioned by my noble friend Lord Alexander of Weedon unless there are compelling reasons not to do so. That will require some careful drafting. In principle, however, I support everything that was said on that matter by my noble friend.
The third point is that, as my noble friend said, there should be some form of residual power to appoint an independent investigator—a staff member—in difficult or contentious cases.
The marker for the amendment that I wish to put down at the end of Part I as a new clause affects the jurisdiction of the Court of Appeal and is to the effect that, where a person makes an application on or before arraignment to quash an indictment, an appeal shall lie to the Court of Appeal from the decision of the Crown Court either refusing or granting the application. That is not a matter that I should argue at this stage and take up time with it. But it is a matter which has received the interest and, to some extent, the approval of my noble and learned friend the Lord Chief Justice on another Bill. In fact, it would save a considerable amount of delay and a considerable amount of expense. It would also, broadly speaking, accord with the broad requirements of the fair dispensation of justice.
4.31 p.m.
Baroness Mallalieu: My Lords, as, a practising member of the criminal Bar, I too welcome the Bill. I hope that the House will forgive me if a little of what I say is tinged with some personal unhappy experience. As a junior counsel, I was unhappily involved in the original trial of the Maguire family and their first rejected appeal against conviction. My client served many years of imprisonment before that injustice was recognised and acknowledged. More recently, I represented one of the Taylor sisters, both at the trial and later in the Court of Appeal. That was a case in which the failure of the Crown to disclose vital information to the defence emerged only after two young girls had served the first year of a life sentence. In that case, the miscarriage of justice was recognised and corrected by the Court of Appeal the first time round.
The need for a body such as that proposed by this legislation is now universally recognised. Victims of miscarriages of justice for many years have had to pin

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their hopes of righting what is a truly terrible wrong on attracting the attention and support perhaps of a dedicated lawyer prepared to work for nothing often over many years; or on capturing the attention and interest of an investigative journalist; or on the support of a Member of this House or another place who was prepared to take up the cause; or on a churchman who might have become interested in the case and was prepared to intercede; or, indeed, on the organisation Justice, of which the noble Lord, Lord Alexander of Weedon, is chairman and which, over some 30 years, has helped something of the order of 800 people a year who go begging for help when they see no other route to redress the wrong. Many people, of course, are simply dependent, or have been up to, now on family and friends and their efforts, and also, above all, on a great deal of good luck.
The proposed review body fulfils a real and urgent need. At risk of sounding as though I am carping, which I am not, perhaps I may just sound a few words of caution. Public expectations of this measure are very high. In fact, they are unrealistically high. Although the Bill can play an important part in fighting miscarriages of justice, such miscarriages of justice will still take place and there will still be many which cannot be corrected by this mechanism. It is just worth saying, as others have said before me, that every case in which a crime has been committed and the offender has escaped the due process of law is in itself a miscarriage of justice. This machinery, which is necessary and beneficial, cannot address those matters. It has to be looked at as part of a package which must include improved crime prevention, effective use of police resources and policing generally, and more assistance to the victims of crime.
There will still be miscarriages of justice which no body such as this can uncover or correct. We must be vigilant in looking at the way in which our criminal law is applied and is working to see where those danger areas are to be found. Perhaps I may give one example. In the legislation before this House in 1993—what is now the Criminal Justice Act—a number of changes were made which, for example, altered the rules in relation to corroboration and to the right of silence. When, for instance, a sexual complaint is made and only the accuser and the accused know the reality of the position, unless the accuser later admits that he or she has not told the truth, a miscarriage of justice will, or is likely to, remain uncorrected.
Having said that, the Bill must be part, in the public's perception, of an overall pattern of tackling both sides of the equation. It is essential that the public must have confidence in this body and indeed in the Court of Appeal. That confidence must be based, first, on the conviction that it is a truly independent body, independent of both government and the police, and, secondly, on the knowledge that the body is competent and has sufficient resources in order to carry out what will clearly in some cases be expensive operations. It may be necessary to instruct experts, find witnesses and take evidence. I am greatly encouraged by what the noble Baroness said about the adequate funding which,
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she maintains, will be available. But the public must be satisfied that the body will be fair, both in its composition and in its decisions—not just fair but seen to be fair.
When I started at the Bar in 1970, there was a notorious chairman of one of the busiest London magistrates' courts who, after he and his colleagues had been in retirement deliberating on a case for some time, was alleged to have told the defendant, "We think there is a doubt in this case but you are not going to have the benefit of it." That story may be apocryphal, but there is no doubt that the necessity for all parts of the criminal justice system not merely to be fair but to be seen to be fair is far more readily appreciated today by the judiciary at every level. I shall not say that it is impossible but it is difficult to find the bad tempered or obviously biased judges of yesteryear. But such fairness is also crucial because the press monitor the way in which justice is seen to be done in public and the public care about it.
So, with those points in mind, there are just four matters that I ask the noble Baroness to consider when she comes to reply. First, as other noble Lords have said, this review body will be under enormous pressure, particularly at the outset, from the number of cases likely to be referred to it. I echo the words of the noble Lord, Lord Mishcon, about the essential need for legal aid to enable applicants to prepare their applications to this body. It is precisely those who are inarticulate and ill educated or who may suffer forms of mental or other disability who are likely to be most prejudiced when trying to ensure that their application to this body is presented in such a way that it is selected for review. That seems to me to be one area in which, if legal aid is not available, there is a real possibility that miscarriages of justice may fail to be identified at the very start of the process.
Secondly, I echo what other noble Lords have said about the need for independence in relation to the police. I readily understand why the Government at this stage have opted for, at any rate, the majority of the investigations to be carried out by serving police officers. I am concerned that, particularly as time goes on—one knows this from other bodies where investigations are required—it is often the case that a pattern emerges in the numbers of cases coming before the body.
An in-house staff may be able to deal with matters very much more expeditiously and have considerably greater experience than police officers who are brought in for limited periods of time. I echo what other noble Lords, in particular the noble Lords, Lord Rodgers of Quarry Bank, Lord Alexander of Weedon and Lord McIntosh of Haringey, have said. At the very least let us see in the Bill flexibility which will enable at a future date in-house investigative teams to be set up where that seems appropriate.
The third matter I wish to mention is one on which I have been partly reassured by what the noble and learned Lord the Lord Chief Justice had to say. Together with both sides of the practising profession I was concerned about the substitution of the single unsafe test in the Court of Appeal. I was anxious, as many are, that

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there should be no raising of the threshold for a successful appeal. I hope that the Minister will be able to reassure those of us who are concerned about that matter. I understand that one of her colleagues in another place has been able to give that reassurance. It would be unfortunate if, in attempting to provide a single simple test, we were to lose, for example, the capacity of the court to deal with the lurking doubt case. It seems to me and to many other practitioners that if it appears that a conviction is unsafe the Court of Appeal should quash the conviction; if it appears that it may be unsafe there may well be good grounds for a retrial. The Court of Appeal has in recent years been using its power to order retrials more frequently with—I hope to be forgiven for speaking from personal experience—excellent results. In a retrial in which I appeared very recently, some three years after the original trial, more witnesses had been found than were available three years before.
The last matter I would ask the noble Baroness to consider when she comes to reply is the question of disclosure. I have absolutely no doubt that there would he many, many more cases of miscarriages of justice but for the recent development in the law in relation to disclosure. I understand that the Government and others are under pressure to take steps to ease the difficulties which the police are finding in complying with the present requirements. It may be that this matter may come before the House in due course in a future Criminal Justice Bill. In both the Maguire case and the Taylor case, to which I have referred, wrongful convictions resulted from a failure to disclose material. From what the noble Baroness has said already, and from what I hope she may say in reply, I trust that openness will be the order of the day, that there will be disclosure to the commission of all documents where the Home Office has previously reviewed a case, and that the applicant should see the commission's report and any statements and opinions or other reports which accompany it unless it is in the public interest not to do so or the sensitivity of the material prevents it. In other words, I hope that she will assure us that there will be a presumption in favour of disclosure.
I welcome the Bill, as have all others who have spoken. Improved as I think it can be, I believe that it will do a great deal to restore confidence in the criminal justice system and ultimately in the rule of law too.
4.44 p.m.
Lord Merlyn-Rees: My Lords, I welcome the Bill. It is a prime example of how events move a government to act in what in retrospect is obviously an inevitable way. I welcome the Bill to correct obvious weaknesses in the criminal justice system which have been too common in recent years. I am glad that the noble Lord, Lord Mishcon, mentioned the Maguire case. The noble Baroness, Lady Mallalieu, mentioned it in terms of practical experience. Much of what appears in the Bill and in the Royal Commission report stems from the original May inquiry.
My interest in this matter arose when I was Northern Ireland Secretary and Home Secretary and later because of a personal concern about the guilt of the Guildford
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Four and the Maguires. I, too, wonder how the new body will work. I learnt a great deal that concerned me in a programme on Yorkshire Television. Television programmes do not always perform a valuable service but the Yorkshire Television inquiry into the Guildford case was very revealing. I learnt a great deal from a visit to Styal prison to see Carole Richardson, who as a 17 year-old girl had been sentenced to life imprisonment. When I visited her she was 33 or 34. She is no longer in gaol. Anyone who has been involved in the criminal justice system as a politician could not travel back on the train without wondering what one does to correct the system. The medical staff at Styal prison said to me, "This girl is not guilty". They all said that. But that is not enough. There was something wrong with the system.
There is a need for a complete change in the procedures. C3 are not bad people but they are given an almost impossible task to carry out as civil servants. They should be freed in some way from dealing with alleged miscarriages of justice. When in a certain case I attempted correspondence with the Court of Appeal I was made to feel as if I was a rather foolish non-lawyer who should not interfere in those matters. The person I was writing about is now out of gaol. I am not pretending that there is an easy way through those problems but the legislation before us today is endeavouring to find a way.
I had a few constituency cases in a part of the world which the noble Baroness, Lady Mallalieu, knows well because her father was a Member of Parliament in that area. The constituents did not know what it was all about. They felt that there was something wrong. I pursued the case through C3. We shall have to be very careful when cases are submitted from such people because they will be dissatisfied at the end of the day unless the new body clearly explains why the case has been turned down—if the position is otherwise, there will be little problem.
For all these reasons I became involved with what the Royal Commission called the "cardinal's deputation". Led by the Cardinal of Westminster, it included the late Lord Devlin—I heard queries today about old men but I can only hope that I have as razor sharp a mind as Lord Devlin did when he was well over 80 and approaching 90—the noble Lord, Lord Jenkins of Hillhead, and the noble and learned Lord, Lord Scarman who, because of family illness, is not present today. The Bill owes much to the cardinal and his staff, to Robert Kee, who did more than assist us, and to Alistair Logan, a solicitor, who fits the category which the noble Baroness, Lady Mallalieu, described. He is a solicitor who almost sacrificed his career in order to pursue a case from which he could make little or no money.
I feel I should mention other people before raising one or two points. Much is due to Christopher Mullin, a Member of Parliament in another place. He is a classic nuisance figure. He does much better on the Back Benches than ever he would do in wasting his talents as a Minister. I was in Italy during the war. When Rome was falling we came across an Irish priest who had been helping RAF men and also soldiers to escape. When we asked, "What are you going to do now?", he said, "I'm

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going to help the Germans escape". Whatever government may appear in the next year or two, Chris Mullin will be there being a nuisance, because he cares not for man nor beast. In the other place and here in a different fashion, I have no doubt, such men are important.
We owe much to the Royal Commission and the noble Viscount, Lord Runciman, who together marshalled the arguments for change. I hope that the minority report by Professor Zander will be looked at carefully when we come to Committee and Report stages. I do not wish to speak as if we were at those stages, but there are a number of issues I ask the Minister to look at beforehand because I do not have the same view as others about the meaning of certain clauses.
The report explains at the beginning of Chapter 11 why it recommends the establishment of a new independent body. After raising the question of accountability, it deals with,
"the powers it may need to investigate cases".
A number of your Lordships have raised that point this afternoon. That is the most important part of the commission.
The Home Office issued a very good press release on 23rd February. It states that the commission would, "direct and supervise investigations". As a former Home Secretary I asked myself whether I directed anything in that respect. The press release refers to "direct and supervise investigations". Will there be supervision and direction of the police? I have never noticed in the past that when a police force was asked to look into a case it was directed by the Home Office. The press release goes on to say,
"direct and supervise investigations undertaken on its behalf".
So these are not policemen. I pull back from getting into a Committee or Report stage, but for reasons I shall come to in a moment I have the feeling that more can be done under this Bill than one thinks.
To those noble Lords who are to participate in the later stages of the Bill, I commend the scheme issued by the Home Office as to how the new system works. I shall not go into it all. It states,
"The CCRC will have new powers to … require a police investigation".
That is fine. It goes on to say that it will,
"approve [the] appointment of investigating officers"—
which means policemen—and,
"supervise investigation".
The noble Viscount, Lord Runciman, said:
"Although the Royal Commission envisaged investigations being carried out by a designated police force under the direct supervision of the new review body"—
it is this direct supervision which I do not understand—
"that body should not be precluded from recruiting onto its own staff trained investigators"—
a point that has already been made—
"who would not necessarily be serving police officers".
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The Archbishop of Westminster wrote a letter to The Times and I shall use just a few lines of it. The letter states,
"The Bill appears to provide no reserve power for the Commission to instigate and carry out investigations using only its own suitably qualified staff, and it appears to leave the Commission with insufficient powers effectively to plan, direct and supervise police investigations".
Under the present terms I do not see the commission supervising the police and calling in the deputy chief constable of a county force and asking, "Have you done this; have you done the other?" That is what supervision and directing means.
I was looking hopefully at the Bill as it has been drawn. Clause 18 requires the appointment of an investigating officer. Does that have to be a policeman or policewoman? Clause 20 refers to Sections 16 to 19 as being,
"without prejudice to the taking by the Commission of any steps (including obtaining, or arranging for others to obtain, statements and opinions and commissioning, or arranging for others to commission, reports) which they consider appropriate".
That follows on from Clause 14(1) which states,
"Where a direction is given by the Court of Appeal under"—
another section of the Act—
"the Commission shall investigate the matter specified in the direction in such manner as the Commission think fit".
The commission can do what it likes. I see nothing to prevent the commission from calling others to work for it apart from the police. I understand the problem. A policeman has the right to question, but someone else would not have that right. I see this new commission as having far greater powers than is perhaps realised. When I operated with C3 we had practically no powers. In this Bill there is reference to "any power".
I welcome this Bill and I ask for clarification on those points as regards the powers of the commission because we shall debate it at a later stage of the Bill. I am convinced that, as well as the police, we should have other investigators. I have had a police guard for the past 22 years. I owe the police a great deal. I am not being anti-police, but there are aspects of certain happenings in recent years where one questions what the police have done. One can question what politicians have done. I support the police completely, but the new commission should have powers to investigate other than with the police themselves. We shall come back to that point. In preparation for that I say to the Minister that we need explanations of what those clauses of the Bill, as drawn, mean.
4.56 p.m.
Baroness Blatch: My Lords, I have noted with some pleasure and with much relief the general welcome for the Bill. I have also listened carefully to the very valuable points and expressions of concern which have been made. I shall of course try to address many of the points but constraints of time will prevent me from answering every single point. No doubt, much will have to wait until further stages of the Bill.

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It has been common ground in our discussions that the Bill is concerned not only with the pursuit of justice but also with the issue of confidence that justice is done and is seen to be done. I welcome the support which noble Lords have given to those fundamental principles.
The noble Lord, Lord McIntosh, opened the debate in terms of the points of criticism. I take into consideration very much all those points of concern that have been made in a very constructive way against the background of a general welcome for the Bill. The points made by the noble Lord, Lord McIntosh, have properly been echoed by many others during the course of the debate.
The first point considered what is meant by members with knowledge and experience. The noble Lord gave some examples of what he meant. It is not intended that they should all be lawyers—or even any of them. They may include former police officers, prison governors, forensic psychiatrists or probation officers, just to name four examples. The body will not be confined to people with absolute knowledge of the law.
The noble Lord, Lord McIntosh, and many others, including my noble friend Lord Alexander and the noble Baroness, Lady Mallalieu, were concerned about disclosure. The point made by the noble Lord, Lord McIntosh, was that the provisions in the Bill would weaken the judgment in, for example, the Hickey case. I do not agree. The Bill requires the commission to provide a fully reasoned explanation of any decisions not to refer a case. The Bill also provides gateways through which the commission can disclose information in other circumstances. These are sufficient to enable the commission to keep applicants informed of the progress made in investigating their case and, in line with the judgment in the Hickey case, to disclose information so that in the interests of fairness they can make further representations on matters that the commission has found in the course of its inquiries.
The noble Lord, Lord McIntosh, referred to the criteria for the commission to refer cases to the courts. The requirement that there should be some new evidence or argument is a broad one. It will enable the commission to refer any case to the courts in which some new point has come to notice which might lead the court to take a different view as to the safety of the conviction. The current grounds for allowing or dismissing an appeal are complex and overlapping. Under the Bill the Court of Appeal is required to allow an appeal against a conviction if it thinks that the conviction is unsafe, and to dismiss the appeal in any other case. That change clarifies the terms of the existing law and, in essence, restates the existing practice of the Court of Appeal. It has been warmly welcomed. Indeed, I noted the welcome given to it by the noble and learned Lord the Lord Chief Justice.
The discussion paper gave a broad welcome to the Royal Commission's formula of "is or may be unsafe" because the Government recognise the need to bring clarity and simplification into these matters. However, the Royal Commission's formula goes wider than the current practice of the Court of Appeal and was on examination found to be uncertain in its effect. The formula in the Bill provides a simple test which effectively restates the existing practice of the court. It
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does not narrow the grounds for allowing an appeal. Noting the reservation made by my noble friend Lord Campbell of Alloway, I have to say, consistent with the points made by my noble friend Lord Alexander and the noble Baroness, Lady Mallalieu, that the provisions retain the "lurking doubt" element of the current test for allowing an appeal.
The use of police investigators has been mentioned by many noble Lords. Under the Bill, the commission may obtain opinions and reports from, and have inquiries carried out by, whoever is appropriate. That might include accountants, psychiatrists or forensic scientists. However, where inquiries require the expertise and skills of the police, it is both the proper and most effective solution for that work to be conducted by police officers under the commissioners' direction and supervision.
On that point, perhaps I may turn to the issue raised by the noble Lord, Lord Merlyn-Rees. The noble Lord's understanding of this was about right. In effect, we are empowering the commission to use the police—not requiring it to use the police as the only means of exploring a case.
Perhaps I may reiterate what I said earlier. The Bill gives the commission all the powers it will need to carry out its investigations effectively and thoroughly. It will be able to obtain the assistance of police forces and other bodies by requiring them to appoint an investigating officer to make inquiries on its behalf and in accordance with its directions and, if necessary, under its supervision. It will be able to require the appointment of an investigating officer from a different force if it thinks that appropriate or from public bodies other than those which investigated the crime originally if it thinks that the case would be prejudiced by the use of the same force when it is possible to engage a different force. It will be able to insist that it approves the choice of investigating officer before an investigation takes place. It will be able to direct any investigating officer to cease to act as such and to direct that that individual officer be replaced by another if his performance is not satisfactory.
The commission will be able to make its own inquiries and commission its own expert opinions and its own tests. It will be able to obtain access to documents held by police forces and other bodies. It will also be able to obtain relevant papers and other material held by my right honourable friends the Home Secretary and the Secretary of State for Northern Ireland as a consequence of their having considered possible miscarriages of justice under their existing powers. They will have the powers to operate in the way that was suggested by the noble Lord—
Lord Merlyn-Rees: My Lords, I am grateful to the Minister for more fully explaining the provisions. Will the commission have the power to employ former policemen as investigating officers? I am not talking about replacing the police force, but given that an understanding of what the police do in investigations is not given to everybody, might not a former policeman have a useful role to play?
Baroness Blatch: My Lords, in answer to the noble Lord's point, under the law serving policemen have particular powers of investigation which cannot be replicated in other bodies. Therefore, there will be a distinction in how such people are engaged by the commission. If other people are engaged, they will not have the same powers as are enjoyed by serving police officers.
Lord Rodgers of Quarry Bank: My Lords, the noble Lord, Lord Merlyn-Rees, is seeking to clarify an important point. The financial statement refers to the cost, to which I referred earlier, as being £4.3 million for accommodation and administrative overheads. Do I understand that there is provision within that sum for the in-house investigations to which the noble Lord refers if that is what the commission wants?
Baroness Blatch: My Lords, I am not dealing with costs at the moment; I am dealing with the powers not only of the commission but of serving policemen and others engaged in the investigative work. I shall refer to the question of costs in a moment.
A major change from the current arrangements will be the use of police investigators working under the active direction and supervision of the commission. That, and the power of the commission to insist on an outside force, provides the necessary independent element in such investigations.
My noble friend Lord Alexander was concerned that the review body should have a core of investigators among its staff, such as seconded police officers. We agree. It is our intention to have among the commission's staff people with a police background, but we believe that their efforts will be most useful to the commission if they are employed in advising members on the direction and supervision of a number of investigations rather than being forever away from the commission, embroiled in detailed inquiries on the ground.
Extending that point, my noble friend Lord Alexander asked: why not give the commission its own investigators to look into particularly difficult and contentious cases? The problem is that almost every applicant will consider his or her case to be difficult or contentious. If some cases were deliberately withheld from the police on those grounds, how would other applicants be given confidence that they had been fairly treated and what incentive would the police forces have to take responsibility for imperfect investigations if they were barred from correcting mistakes made in difficult cases? It is a question of other people being engaged in such work "where appropriate" and of incorporating the use of directly employed staff.
The noble Lord, Lord Rodgers of Quarry Bank, expressed concern about the need for the commission to be properly funded. He also raised that point in an intervention. It will be our aim to ensure that the commission is properly funded, consistent with our obligations to ensure that public funds are used with regard to value for money. The value-for-money aspect cannot be disregarded. The police already undertake substantial investigations in such cases from within their existing resources. We do not at present
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consider that there will be any significant additional burden but, of course, we shall have to keep that position under review. We have noted what noble Lords have said.
The noble and learned Lord the Lord Chief Justice was concerned about the extra burden from sentence referrals. The Secretary of State has the power to refer any sentence imposed following a conviction obtained on indictment. We receive representations on sentence in about 50 cases each year. Some are representations on the sentence alone, while some cover both conviction and sentence. Some decision has to be made about how they are to be dealt with in the future. We considered three options: leaving the power with the Secretary of State; providing an extended right of appeal to the courts; and transferring the power to the new commission. We concluded that giving the task to the new commission was the best, most cost-effective and sensible solution. The commission is empowered and resourced to investigate and could take on the question of an alleged wrongful sentence without difficulty.
The noble Lord, Lord Rodgers of Quarry Bank, was concerned about the costs of in-house teams for investigations. The costs of in-house investigations have not been assessed and we have insufficient data on which to base such an assessment. As I have said, the police at present meet the costs of an investigation by them into an alleged miscarriage of justice on behalf of the Secretary of State. No figures are available for those costs. They are not recorded separately from those regarding other investigations by the police. The Government consider that providing an in-house team would not be cost-effective because, first, it would add considerably to the commission's costs. Demand for investigations into larger, more complex cases is likely to fluctuate and it is therefore difficult to establish a unit of optimum size. At times, some of the officers in the unit would be under-occupied; at others, necessary investigations could be delayed because the officers needed to do the work were engaged on other cases.
Officers of such a unit would have to be accountable for the exercise of police powers and subject to disciplinary arrangements in respect of their operational duties. Special arrangements would also be needed to give them access to training opportunities and to keep them in touch with developments in police practice, investigative techniques, and so forth.
Experience shows that in a significant number of cases the investigation required is straightforward. It would be far quicker and more cost effective to ask the force concerned to undertake the work. It knows the background to the case and where to find the people concerned. It would be less effective to use a group of officers unfamiliar with the case to make the same inquiries. If trained, experienced investigating officers were to be seconded to the commission they would not be available for other duties when not investigating for the commission. All of that is with the caveat that, where appropriate, of course the commission would employ the right people for the job in hand.

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The noble and learned Lord the Lord Chief Justice asked about appeal procedures being created for judicial recommendations in mandatory life sentence cases. My right honourable friend the Home Secretary is aware of the noble and learned Lord's concerns and has written to him on that point. We are not convinced that the issues raised are straightforward. There is a difference between mandatory and discretionary life sentences, and the different procedures are established to reflect that difference.
The noble Lord, Lord Mishcon, referred to handing over inquiries to the police, especially when they are investigating police propriety. The proposal is not to hand over inquiries to the police—the point made by the noble Lord, Lord Merlyn-Rees. The commission's independent members and staff will be directing and supervising police inquiries as closely as they consider that to be necessary. There should be no doubting the thoroughness with which the police already investigate miscarriages of justice, but of course that point was well made by the noble Lord, Lord Mishcon.
My noble friend Lord Campbell of Alloway put up a marker. I wonder whether he will forgive me and allow me to think more about that marker. The noble Baroness, Lady Mallalieu, asked me about legal aid, and whether it would be available to those wishing to make representations. Legal aid through the green form scheme will continue to be available to those wishing to make representations to the commission— whether initially to the commission or at a later stage in the light of the results of any investigations by the commission—but no additional provision is needed, because once the commission looks into a case it will of course be doing any necessary investigations.
The noble Baroness, Lady Mallalieu, and others, were concerned about disclosure. She asked the straight question as to whether there would be a presumption in favour of openness. I can unequivocally answer yes, subject of course —I hope the noble Baroness will understand this—to the necessary confidentiality in relation, for example, to witnesses.
The noble Lord, Lord Merlyn-Rees, referred to the work of Cardinal Hume and others who made representations on behalf of the Guildford Four. Perhaps I may pay my tribute to the noble Lord, Lord Merlyn-Rees, because I am aware that he was a member of that group of people which did such sterling work.
I hope that noble Lords will forgive me but I shall address the individual points much more fully in Committee. The Government recognise the importance of establishing a new review body which will be of long-term benefit to the maintenance of the quality of, and indeed public confidence in, the criminal justice system. I believe that the broad welcome that many of the provisions contained in the Bill have received will enable that goal to be achieved. My hope is that we shall establish the commission as soon as may be. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Jobseekers Bill
5.14 p.m.
Reports received.
Clause 1 [The jobseeker's allowance]:
Earl Russell Earl Russell moved Amendment No. 1:
Page 1, line 9, at end insert ("and a jobseeker's allowance shall not be suspended, or terminated, by an employment officer, or an adjudication officer, if that officer has a financial interest in that decision.").
The noble Earl said: My Lords, I had spent some time trying to produce a draft of the basic principle behind the amendment when I found that it had been done very much more felicitiously than I could have done it in the words of the committee chaired by the noble and learned Lord, Lord Nolan. The first of his principles is that holders of public office should take decisions solely in terms of public interest. They should not do so in order to gain financial or other material benefits for themselves, their family or their friends. I would wish to add to that also for their service, for any dedicated public servant the better financing of one's service means as much, or, indeed, more, than the better financing of oneself. It has the effect of enabling one to do all sorts of things one could not otherwise have done. It is as intoxicating as the transition from opposition to government, which is well known to be something which has attractions for large numbers among us.
There is a considerable problem about this already. If we look at the CAB report entitled In search of work, about which I have already corresponded with the noble Lord, Lord Ingle wood, we have cases which might cause some concern. Paragraph 2.22 refers to the leader of a Restart course saying to someone on the course, "I am not supposed to know they get a bonus for signing you off. Paragraph 2.10 refers to a claimant who made her own arrangements to go to the Job Club instead of it having arranged through the employment officer. The employment officer said, "Why didn't you wait for me to suggest that to you? I'm on a bonus scheme". She was then told that no one could stay on the course above a certain time and was taken off it.
We know well, for the Minister confirmed it when we were in Committee, that for the Employment Service a benefit penalty is counted as a positive outcome. We know well also, for he confirmed, this also in Committee, that the service has a target for referrals to the adjudication officer. The Minister made great play of the fact that referrals to an adjudication officer is not the same thing as disentitlement. It is referral for consideration. I will ask the Minister, first, why does he think that it is a better service if more people are referred to the adjudication officer? That is not self evident to me.
I understand of course that we are not dealing with the equivalent of a conviction; we are dealing with the equivalent of a police decision to prosecute. But suppose that, when those of your Lordships who drive leave the House by car, the police have a performance target to prosecute a certain percentage of us, either for speeding or for driving with excess alcohol. I think that some noble Lords would protest volubly, indeed, on occasion,

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too volubly. I think that there would be a strong feeling that it was an abuse of the police process to give them such a performance target. Indeed there is a tradition— many centuries old—that the police do not choose to prosecute on every occasion. There is often sense in that. Anyone who thinks otherwise should look seriously at the character of Angelo in Measure for Measure.
The criterion, as the Minister put it to us in Committee, is that there is a reference to the adjudication officer in any case where there is an arguable case that the person is not meeting the conditions of entitlement. I wonder why he did not agree to have the criterion used by the CPS—where there is more than a 50 per cent. chance of success. That is a much more reasonable criterion and one which need not have given the officer any particular incentive to try to find rules for the advancement of his service.
In such a case we want decisions to be taken on the merits. A decision taken for the advantage of the employment officer or of his service appears to many of us to be a corrupt practice. I am well aware that there are many among us honourable men who disagree profoundly with that view. We have in our society a considerable amount of disagreement about what is corrupt. Therefore, the real question before us is what the law should do when there is a difference about what is corrupt and what is not. For reasons of legitimacy, I argue that it is better to take the more stringent stand. A sense of corruption has a profound delegitimising effect, much like that of taking power as the result of a contested election result. It is not good for one's standing.
The Minister may wish to argue that the amendment is unnecessary. If so, long may it remain unnecessary. But if it is on the statute book, it is likely to remain unnecessary in a way that it might not otherwise. I beg to move.
Lord McCarthy: My Lords, it is difficult to see why the Government should object to the amendment. The noble Lord, Lord Mackay, said:
"There is no link between the performance targets of the Employment Service and the adjudication officers' decisions".—[Official Report, 20/4/95; col. 608.]
The noble Lord, Lord Inglewood, said:
"There is not, and will not be, any correlation between the conditions of benefit for a jobseeker and an employment officer's pay".—[Official Report, 25/4/95; col. 825.]
The problem is that there were reasonable grounds for believing that, nevertheless, that may be the case at the moment. In order to clarify the situation beyond any doubt, we argue that the Government should agree to the amendment.
Since 1991 the Employment Service has published no fewer than five operational plans. I am grateful to the noble Lord, Lord Inglewood, for allowing me to see all of those plans. I argue that, if one reads the plans, it makes sense to assume that there is some such link or correlation. If there is no link or correlation I should like either one of the Ministers to explain the targets in the operational plans; in particular, three targets.
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First, there is a target in the operational plan that 10 per cent. of claims will not be pursued. How do officers know that 10 per cent. of claims are not worth pursuing? Secondly, there is a target in the operational plan that, depending on the year, between 5 per cent. and 8 per cent. of claims—the number has risen from 45,000 to 185,000—shall be submitted to adjudication officers on the grounds that the applicant is not available or actively seeking work. How do they know that in advance? Thirdly, there is a target in the operational plan that between 2.5 per cent. and 3.5 per cent. of claimants shall be found to be processing fraudulent claims. How do they know? Why do they fix such targets unless they want those targets to be achieved? How are those targets to be achieved unless the Employment Service officers, including the adjudication officers, ensure that those targets are achieved?
Why is there a tendency for those targets to rise and at very worrying rates? As regards the plan for 1995, if one adds together the fraud rate and the rate for references to adjudication officers which appear every year, one might construct what I call a "skiving index". It is the assumed rate of skiving. In 1994–95, 205,000, or 70.4 per cent., of the registered unemployed were targeted as skivers. In 1995–96, despite the fact that registered unemployment has fallen, 267,000 unemployed people are skiving. Therefore, 11.1 per cent. are skivers, which is a rise of some 50 per cent. I must tell the House that at that rate by the year 2000 all jobseekers will be skivers.
It does not matter if they are not because there is a similar rise in the disqualification rate. One cannot believe that the skiving rate and the disqualification rate are unconnected. In 1993–94, from April to December, there were 76,000 disqualifications. In 1994–95, from April to December, there were 113,000 disqualifications. That is 48.6 per cent., so it will take a little longer; if by the year 2000 all jobseekers are not skivers, by the year 2005 they will all be disqualified anyway.
How can it be that such targets do not influence the performance of the officers concerned? Year after year—I could quote if I wanted to waste the time of the House—the operational plan has spelt out the link between the pay of those officers and the targets, aims and objectives of the service. In 1992–93 the plan stated:
"The aim has been to relate rewards to the individual's contribution to the business objectives".
Of course, the targets are part of the business objectives. In 1995–96 it stated:
"The aim is to ensure that each person"—
that is each adjudication officer, for example—
"has a performance and development agreement closely related to their office or section's operational or business plans".
The targets are part of the plan.
I find it impossible to believe that there is not a connection. If one looks, for example, at the Civil Service pay agreement, which has existed since 1989, one finds that all those officers have four or five alternative box ratings in which they can be placed. They are placed in those box ratings according to their annual report markings. Could an adjudication officer be given an "outstanding" rating—a Box 1—unless he

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or she had met and surpassed the target for disallowances? Could he or she possibly reach an "acceptable and effective" rate—a Box 3—unless the target had been hit? Would not he or she be given a Box 4 or a Box 5—that is not an acceptable target—unless they had found the necessary percentage of fraud? What is the point of those targets unless they are built into the objectives of the individuals concerned?
I do not suggest that those officers' targets are concerned only with disqualifications and the finding of fraud. Of course they are not; many other targets are built into their performance-related pay; for instance, whether they can get the target proportion of long-term unemployed people into employment and whether they can pay the benefits speedily within the prescribed time. Of course, there are other items in the necessary report objectives and markings of those officers. However, it is implausible and unbelievable that those targets have nothing to do with what they achieve in their performance-related pay.
Therefore, I have four questions for the Minister. What are the targets for if they do not affect individual performance? Where do the targets come from; how do they get there in the first place; why is it assumed that some claims are not worth pursuing, that some will be fraudulent and that some will be disallowed? Thirdly, why is it that after four years of depression and unemployment we find that those figures are galloping upwards and upwards until, if they gallop for long enough, everybody will be disallowed? Fourthly and finally, how can the Government, if they have any decency or sense, oppose the amendment?
5.30 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, the discussion in Committee revealed a great deal of confusion about the Employment Service's targets and what they mean for individuals. From what I have heard, I believe that the confusion remains, because some of those misconceptions have been repeated this afternoon. Therefore, I should like to set out clearly what I believe to be the essential role of the Employment Service in administering unemployment benefits and the function of targets in its work, for I believe that there is nothing inconsistent or improper in our approach. I start by making clear that there is no question of any annual performance agreement target interfering with the independence of adjudication officers. I hope that that sets to rest at least one of the hares which the noble Lord, Lord McCarthy, set running. The adjudication officers are charged with ensuring that the law is applied correctly in an individual's case. They receive guidance on applying the law from the Chief Adjudication Officer. There is no question of AOs being rewarded for allowing or disallowing cases. Like all ES staff—for AOs who make these decisions are all ES staff—they work: to individual performance objectives. They are not set, and will not be set, objectives that relate to the nature of their decisions. Their objectives refer to the volume of the cases that they are handling and the speed with which they make their decisions. The quality of decisions, in terms of the evidence quoted and the legal
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basis on which the AO made the decision, is monitored by the Central Adjudication Service, which is a body statutorily independent of Ministers.
I now move on to the position of front-line ES advisory staff. Their first duty in this matter is to ensure that only those who are entitled to benefit receive it. The taxpayer has a right to expect that benefits should not be paid to people who fail to meet the conditions of JSA, which are set out clearly for all jobseekers at the beginning of their claim and in their jobseeker's agreement. The alternative would be overpayments to thousands of people which would be practically impossible to recover. That would not be responsible management of taypayers' money. ES staff also have a duty to ensure that benefit payments to claimants are not unnecessarily suspended. If they have a doubt about the claimant's entitlement they must be able to substantiate that doubt with clear and accurate information for the adjudication officer to make a decision. Both these facts are important and should be reflected in how ES staff are guided in their work.
The targets set for the Employment Service in its annual performance agreement with the Secretary of State for Employment are carefully balanced. The noble Lord, Lord McCarthy, asked me what they were for. They focus on the effectiveness of the Employment Service in getting unemployed people, especially disabled people and the long-term unemployed, into jobs; the speed and accuracy of benefit payments; ensuring that benefit is paid correctly to those entitled to it; and the quality and cost effectiveness of its service. The ES and its staff must strive to meet all those targets. I cannot believe that noble Lords would object to such targets as that to place 1.9 million unemployed people and the targets in relation to long-term claimants, unemployed placings in inner cities and disabled people. I cannot believe that any noble Lord would object to those targets being part and parcel of the Employment Service targets.
There is no question of one of the many targets achieving priority at the expense of others. Just as targets are now encouraging the Employment Service into its best ever performance in helping people back to work, so it is right that targets should improve its work in its duty towards the taxpayer and the claimant in its accuracy of referrals to adjudication. Those targets are set on the basis of experience over previous years in the work of the Employment Service. Those data are collected year on year and it is on that basis that new targets are set.
The annual performance agreement was referred to by the noble Earl. I believe that that is what concerned noble Lords in Committee. The APA for 1995–96 sets a target of 185,000 submissions to independent adjudication:
"where there is an arguable case for supporting information to show that the claimant is not available for, actively seeking or willing to accept work".
That is 185,000 submissions out of some 4 million odd claims per year. This target is reinforced by a requirement on the face of the APA for monitoring of the quality of referrals and of the numbers that are returned as inadequate. It is not, therefore, a target for

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disallowance, termination or suspension of benefit. It is a requirement for ES staff to meet high quality standards in the identification of doubt over a claimant's availability or job search.
I fear that this may still have been rather misunderstood by some noble Lords in our discussions in Committee. The quality of submissions is an essential element, with those that are defective being carefully monitored. The point here is again one of balance. The individual employment officer should refer cases where he has a real doubt about entitlement. But he should not refer where he cannot substantiate his doubt with clear evidence. In short, he must do his job as well as he can, and he will be assessed according to how well he succeeds in all aspects of that. One consequence, I am pleased to say, is that in recent years the quality of referrals has gone up sharply. There are fewer and fewer examples of adjudication officers being given inadequate information on which to base a decision— something which the Chief Adjudication Officer has in the past had cause to criticise in his monitoring of the work of ES adjudication.
Much is made of how those performance indicators are brought together to deal with the agreed standard of people in the Employment Service. Overall performance assessments are made on a range of boxes A to D: Box A means that the objectives have been exceeded; Box B means that the objectives have been met; Box C means that some objectives have been met; and Box D that few or no objectives have been met. Every year the service negotiates the distribution of the available performance pay budget and the ratio of allocated performance shares with the Employment Service unions. That often results in annual increments as people move up the incremental scale. It may determine how they move within grades. People are promoted, move up the scales and are paid extra in relation to how well they perform. I cannot at least believe that my noble friends think that that is a foolish way to try to run the Employment Service.
To sum up, the checks and balances contained in the targets which are set for the ES as a whole, and which are contained in public documents in the specific target for referrals to adjudication and in the way that those are managed in individual cases, enable me to assert unequivocally that the system does not lead staff for their own gain to suspend claimants from benefit. I am myself certain of that. However, I recognise that there has been concern in this House. If your Lordships would welcome further assurance about this matter, I will give a commitment to write to the Chief Executive of the Employment Service to remind him of the sensitivity of the target. ES staff must be absolutely clear that their performance management will relate only to doing their job properly. In the particular case of this target—
Lord McCarthy: My Lords, when the noble Lord writes to the Chief Executive, will he ask him, because he does not appear to be able to answer this himself, where the targets come from and why the targets that we do not like are rising at the rate of 50 per cent. per year?
Lord Mackay of Ardbrecknish: My Lords, I am sorry that the noble Lord did not hear me answer his question as to where the targets come from. I said that
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the targets are based on the experience of previous years and the data which are collected from year to year. The targets are based on the experience of previous years. Your Lordships may be interested to know that in the last period for which I have information, which is for the year up to last December, something like 81 per cent. of all the referrals were found by the adjudication officer to be such that benefit should not be paid. That suggests, as I said earlier, that the actual referrals are pretty accurate in identifying people who are not obeying the three conditions of being available for work, actively seeking work and being willing to take a job. In an attempt to try to be helpful—
Baroness Williams of Crosby: My Lords, I am grateful to the Minister for giving way. The noble Lord explained in considerable detail, for which I am sure Members of the House are most grateful, the reasons behind the targets and asked us to accept that their purpose is indeed to make the service as efficient as possible. Therefore, I wonder—and I ask the question genuinely—why the Minister does not feel able to accept the amendment, which, after all, would be wholly compatible with everything that he has said and which would go a very long way towards reassuring Members on all sides of the House.
Lord Mackay of Ardbrecknish: My Lords, I thought I had explained that, when one looks at the targets all together, they can have an effect on how an Employment Service staff member is treated as regards what increments he receives. If he has not done a good job and, obviously, if he has fallen down on a number of the performances that I mentioned, then perhaps he will not receive the increment that he might otherwise have expected. Indeed, he may not be promoted to the next scale as he might otherwise have expected. I believe that the amendment would stop that happening. I actually believe that it might stop people working for the Employment Service because everyone who works for the service pays income tax and, therefore, has some financial interest as regards the amount of government money—that is, taxpayers' money—which is being paid out. Therefore, it might not be a terribly easy amendment to put into effect, even if one were minded to do so. However, I was trying to be helpful and allay the fears of some of your Lordships in that respect when I said that I would write to the Chief Executive of the Employment Service to remind him of the sensitivity of the target.
As I said, Employment Service staff must be absolutely clear in the matter. I see that the noble Baroness wishes to intervene. I give way.
Baroness Turner of Camden: My Lords, I am much obliged. If unemployment goes down, why do the targets go up? I still do not understand.
Lord Mackay of Ardbrecknish: My Lords, as the noble Baroness will know, the targets have just started. The data that we have from the previous year show that we have in fact achieved those targets, and we then move them up. However, if unemployment continues to fall and falls dramatically, then we will, inevitably, begin to see a downturn in some of those targets. But,

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at the moment, with the level of unemployment as it is, the number of people who form its base actually give rise to something over 4 million claims. Therefore, 185,000 referrals does not seem to me to be unreasonable, especially if one goes out into the world and talks to any businessman. Such people will tell many tales of people who were not actually terribly keen on being offered a job, who were not actively seeking work and who did not really want to be very available. I do not not want to pray that in aid very much, but everyone knows that that happens. As I said, I do not believe that the figure of 185,000 is unreasonable.
I return now to what I said I would do as regards the Chief Executive of the Employment Service. Employment Service staff must be absolutely clear that their performance management will relate only to doing their job properly. In the particular case of this target, that means making to the best of their ability accurate and high quality referrals to adjudication and not volumes of referrals which may be ill considered and of poor quality. As I mentioned before, one of the things that we have already noticed about the targets is that the quality of the information upon which the adjudication officer has had to work has actually improved.
I believe that the amendment unfairly questions the professionalism and standards of the Employment Service. I hope that the House will accept the assurances that I have given. However, if the noble Earl decides to press the matter to a Division, I trust that my noble friends will support me in the Lobby.
5.45 p.m.
Lord Campbell of Alloway: My Lords, before my noble friend the Minister sits down, I should like to ask him the following question. I take it that my noble friend is giving an absolute assurance to the House that the employment officer has no financial interest in the decision? If that is so, then the amendment, if it were carried according to its drafting, is, as I believe the noble Baroness suggested, meaningless. Therefore, why continue with it? My respectful answer would be, because it is meaningless. We have reached the stage where we have a categoric assurance. Whatever may be said, thought or objected to about targets—and I understand the concern—is irrelevant to the drafting of the amendment.
Lord Shepherd: My Lords, the Minister has undertaken to write a letter. I am sure that the House will welcome that undertaking. However, will the Minister also undertake that such a letter will be written between now and Third Reading and that a copy of it will be placed in the Library so that those of us who are worried about the matter will be able to read it?
Lord Mackay of Ardbrecknish: My Lords, I am in the hands of the House in such matters. However, I believe that I should reply first to my noble friend, because, to all intents and purposes, I am supposed to be the last speaker in the debate apart from the noble Earl who has to sum up and tell us what he intends to do with his amendment.
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I must tell my noble friend that there is a little difficulty involved here. The person who makes the decision is the adjudication officer. He has no targets in that respect. I had hoped that I had made that absolutely clear. The targets are referred to in the 185,000 submissions that the front line officer must make to the adjudication officer where there is an arguable case, with supporting information, to show that the claimant is not available for, actively seeking or willing to accept work.
So far as concerns the question put to me by the noble Lord, Lord Shepherd, I have indeed said that I will write to the chief executive. However, I am not sure that I will be able to do so before Third Reading, though I will certainly try to do so.
Earl Russell: My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for his intervention, but the amendment is fighting a fashion and fashions have a habit of growing and becoming more extreme. Therefore, if the amendment were unnecessary at present, that would be no evidence that it would be unnecessary next year. There is sense in building dykes to ensure that the sea can come so far and no further.
I am grateful to the Minister for the care with which he replied to the amendment. I accept that he spoke entirely according to his conscience and with the greatest care that he could. But I wish that he would not make out that we do not understand what he is saying. I believe that I understood what he said. Having read carefully what he said in Committee, he certainly said exactly what I expected him to say. If that is the criterion involved, I think that I understand it.
The Minister began by saying that he would set out the Government's position clearly. Whenever a Minister utters the word "clearly", one expects obfuscation. The Minister went on immediately to argue that the adjudication officer had no financial interest in the decision. We accept that that is, at present, correct. The burden of my argument was about the target for the employment officer, who, after all, is in the front line and making the first decision about referral.
The Minister said that targets do not relate to the nature of those decisions. For a moment he took my breath away. I went scurrying back to study the Hansard report of what he said during the first day of the Committee proceedings. But then the Minister immediately repeated the point himself, so my checking up was unnecessary. The noble Lord confirmed that there is a target of 185,000 referrals to adjudication officers. We understand that they are referrals and not judgments. However, we think that they are absolutely improper, and we also think that what the Minister said about disentitling people who fail to meet the conditions is begging precisely the question of this amendment. It is assuming precisely what needs to be proved.
The Minister argues that it is an unfair suspicion of the adjudication officer or of the employment officer to think that they might be influenced by a performance target. But here he is on what I might describe as "McCarthy's fork". Either he is not influenced by the target in which case it is unnecessary, or he is influenced by it in which case we believe it is corrupt. I know other

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people do not agree with us but is it wise to have something on the statute book which half the House believes to be a corrupt practice? I ask the opinion of the House.
5.50 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 78; Not-Contents, 135.

Division No. 1

CONTENTS

Addington, L.

Liverpool, Bp.

Archer of Sandwell, L.

Longford, E.

Barnett, L.

Lovell-Davis, L.

Beaumont of Whitley, L.

McCarthy, L.

Blackstone, B.

McIntosh of Haringey, L.

Brain, L.

McNair, L.

Bruce of Donington, L.

Mallalieu, B.

Carmichael of Kelvingrove, L.

Masham of Ilton, B.

Chorley, L.

Mason of Barnsley, L.

Clinton-Davis, L.

Merlyn-Rees, L.

Cocks of Hartcliffe, L.

Milner of Leeds, L.

Craigavon, V.

Mishcon, L.

David, B.

Monkswell, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Donaldson of Kingsbridge, L.

Nicol, B.

Dormand of Easington, L.

Palmer, L.

Ewing of Kirkford, L.

Rea, L.

Falkland, V.

Redesdale, L.

Freyberg, L.

Richard, L.

Gallacher, L.

Rochester, L.

Geraint L.

Rodgers of Quarry Bank, L.

Russell, E. [Teller]

Gould of Potternewton, B. [Teller]

Saltoun of Abernethy, Ly.

Graham of Edmonton, L.

Seear, B.

Grey, E.

Sefton of Garston, L.

Halsbury, E.

Serota, B.

Shaughnessy, L.

Hamwee, B.

Simon V.

Henderson of Brompton, L.

Stedman, B.

Hollis of Heigham, B.

Stoddart of Swindon, L.

Howell, L.

Strabolgi, L.

Hylton-Foster, B.

Thomson of Monifieth, L.

Jay of Paddington, B.

Tordoff, L.

Jeger, B.

Turner of Camden, B.

Jenkins of Hillhead, L.

Varley, L.

Jenkins of Putney, L.

Waverley, V.

Kilbracken, L.

White, B.

Kirkhill, L.

Williams of Crosby, B.

Lawrence, L.

Williams of Elvel, L.

Lester of Herne Hill, L.

Williams of Mostyn, L.

NOT-CONTENTS

Addison, V.

Boyd-Carpenter, L.

Aldington, L.

Brabazon of Tara, L.

Allenby of Megiddo, V.

Brentford, V.

Ashbourne, L.

Brigstocke, B.

Astor, V.

Brookes, L.

Astor of Hever, L.

Brougham and Vaux, L.

Balfour, E.

Butterworth, L.

Banbury of Southam, L.

Cadman, L.

Belhaven and Stenton, L.

Caithness, E.

Birdwood, L.

Campbell of Alloway, L.

Blaker, L.

Carnock, L.

Blatch, B.

Chalker of Wallasey, B.

Bledisloe, V.

Chelmsford, V.

Boardman, L.

Chesham, L.

Borthwick, L.

Clanwilliam, E.

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Clark of Kempston, L.

Macleod of Borve, B.

Courtown, E.

Malmesbury, E.

Cox, B.

Manton, L.

Craigmyle, L.

Marlesford, L.

Cranborne, V. [Lord Privy Seal]

Massereene and Ferrard, V.

Merrivale, L.

Cumberlege, B.

Mersey, V.

Davidson, V.

Miller of Hendon, B.

De Freyne, L.

Milverton, L.

Dean of Harptree, L.

Mottistone, L.

Denton of Wakefield, B.

Mountevans, L.

Dilhorne, V.

Mowbray and Stourton, L.

Dixon-Smith, L.

Moyne, L.

Eden of Winton. L.

Munster, E.

Elles, B.

Nelson, E.

Elliott of Morpeth, L.

Norrie, L.

Elton, L.

Northesk, E.

Fanshawe of Richmond, L.

O'Cathain, B.

Ferrers, E.

Oppenheim-Barnes, B.

Flather, B.

Orkney, E.

Foley, L.

Orr-Ewing, L.

Fraser of Carmyllie, L.

Oxfuird, V.

Fraser of Kilmorack, L.

Pearson of Rannoch, L.

Gardner of Parkes, B.

Pender, L.

Goschen, V.

Platt of Writtle, B.

Gray of Contin, L.

Plummer of st. Marylebone, L.

Prior, L.

Haig, E.

Rankeillour, L.

Hanson, L.

Harding of Petherton, L.

Rawlings, B.

Rees, L.

Harmar-Nicholls, L.

Renton L.

Harmsworth, L.

Renwick, L.

Hemphill, L.

Rodger of Earlsferry, L.

Henley, L.

Romney, E.

Hives, L.

St. Davids, V.

Holderness, L.

Seccombe, B.

HolmPatrick, L.

Sharples, B.

Hood, V.

Simon of Glaisdale, L.

Hooper, B.

Soulsby of Swaffham Prior, L.

Hothfield, L.

Stewartby, L.

Howe, E.

Strange, B.

Inglewood, L.

Strathcarron, L.

Knollys, V.

Strathclyde, L. [Teller]

Lauderdale, E.

Sudeley, L.

Lindsay, E.

Suffield, L.

Liverpool, E.

Teynham, L.

Long, V.

Thomas of Gwydir, L.

Lucas, L. [Teller]

Torphichen, L.

Lucas of Chilworth, L.

Trumpington, B.

McColl of Dulwich, L.

Ullswater, V.

McConnell, L.

Vivian, L.

Mackay of Ardbrecknish, L.

Wakeham, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Wynford, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.59 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 2:
Page 1, line 10, after ("Act") insert ("and in particular subsection (2A) below).
The noble Baroness said: My Lords, in moving Amendment No. 2 I shall speak also to Amendments Nos. 5, 96B and 96D. The amendments are concerned with vulnerability and the definition of vulnerability.
The Government have allowed that where a doubt has arisen in relation to availability for or actively seeking work nonetheless someone who is both vulnerable and in hardship should continue to receive a penalised benefit of some 60 per cent. of means-tested JSA. In

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the amendment we do not deal with the issue of doubt, although we shall explore that issue later. Nor are we concerned with the 60 per cent. sum, woefully inadequate though we believe it to be. We deal instead with who is deemed under the Bill to be vulnerable. We attempt to define vulnerability, particularly, as your Lordships will see, in Amendment No. 5.
The Government may object to the amendment on one of two possible grounds, or on both. They may object that this is a matter for regulation and should not therefore be on the face of the Bill. That would be one argument against the amendments. A second argument would be a substantive one; namely, that some of the categories of claimant listed in Amendment No. 5 do not seem to the Government to be vulnerable and should not be included. I shall speak to each of those arguments briefly.
I shall deal first with the argument that such a definition should not be on the face of the Bill. The whole House made it clear when we dealt with the recommittal of Clause 6 and throughout the Committee stage of the Bill that it was deeply dissatisfied that so much was being left to regulation. The Minister himself admitted at Second Reading that this was a skeleton Bill and policy details would be left to regulation and statutory instruments. In other words, the details would be left to the discretion of the Minister and therefore would be beyond the proper scrutiny of the House and beyond the power of the House to amend.
The concept of vulnerability is pivotal to the Bill. It is pivotal because it defines what someone who is vulnerable—for example, a carer—may reasonably be expected to do when seeking and being available for work. It is pivotal in the sense that it defines eligibility for a hardship payment. We believe that it is sufficiently pivotal for it to be on the face of the Bill. Otherwise a major area of policy is beyond the capacity of this House to modify in debate. If it is put on the face of the Bill then claimants, staff and advisory bodies know where they stand.
The amendments are not inflexible. The final category in paragraph (h) of Amendment No. 5 allows for additional groups of claimant not covered in the list to be included. At the very least it ensures that those groups listed are defined as vulnerable.
Therefore, the first argument, which I hope your Lordships will accept, is that the concept of vulnerability is so important to the Bill that it should not be left to regulation but should be on the face of the Bill so that we can all see what is meant by it.
The second argument that the Government may advance against the amendments could be that some of the groups listed should not be designated as vulnerable. I wish to emphasise that, with one exception, this definition of vulnerability is entirely consistent with all the assurances that the Minister has so far given us. It is also entirely consistent with the concept of vulnerability used by the Department of the Environment in relation to eligibility for priority housing should someone become homeless. The only addition in the housing legislation which is clearly not relevant here is the case of people coming out of prison
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or a long-stay institution such as a former mental hospital. Under JSA such people would be eligible for income support rather than this allowance.
Therefore, the definition is consistent; with what the Minister has said so far, with one exception. It is consistent with existing definitions of vulnerability used by the Department of the Environment in relation to homelessness and priority eligibility for rehousing.
The one addition in the amendment, which reflects the nature of the Bill, relates to those with incapacity points but who nonetheless do not have sufficient incapacity points to qualify for incapacity benefit. They should also be added to the list. All the other groups— women who are pregnant, those who have dependants, carers, people with an illness or disability defined by a general practitioner, the homeless, those under 18 or living in a refuge—are covered by the housing legislation. I believe that the Minister has accepted that all of those groups are potentially vulnerable. As I said, the only addition is to take account of the new incapacity benefit legislation. Someone who has points which would begin to qualify them for incapacity benefit but not sufficient points to obtain incapacity benefit would be deemed to be vulnerable for the purposes of JSA.
Why do we propose that addition? Many noble Lords who spoke in Committee on the Bill were worried about the interface between incapacity benefit and the jobseeker's allowance. People who fail to meet the either/or test for incapacity benefit will not be credited with the 15 points for physical disability or the 10 points for mental health problems. They will fail to get those points and will not receive incapacity benefit. They will therefore be required to conform to the jobseeker's agreement. We are worried and have expressed that anxiety on many occasions, and many of your Lordships have joined with us in expressing that concern, that some people may fall between the two stools. They will not be eligible for incapacity benefit but, because of their partial disability, they will not be eligible for the jobseeker's allowance.
The noble Lord, Lord Inglewood, has repeatedly given an "absolute assurance" that if someone is refused incapacity benefit they will obtain jobseeker's allowance. He has said that there will be no gap between the two benefits through which the partially disabled may fall. I am afraid that his "absolute assurance", which he gave the Committee in good faith, does not explain why people already fall through the gap between the two benefits. I have quoted the RADAR survey before. RADAR showed that in approximately 77 cases of people being refused invalidity benefit nearly one-third were then refused unemployment benefit. They fell between the two, just as we feared. That is happening now. Incidentally, none of those people was able to find work.
We fear that because a gap exists now and people fall into that gap the Minister's absolute assurances, though given in good faith, cannot cover some of the eventualities. We fear that the gap will widen.
I believe that the Government do not want that gap to exist, and I believe that they certainly do not want it to widen. If the Government were minded to accept them,

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the amendments would help to bridge that gap. How? Because they flag as vulnerable a claimant who is partially disabled and has some points towards incapacity benefit as accredited by a GP or by the Benefits Agency's own medical service, but not enough to qualify. What is that flagging likely to mean? It means two things. First, such flagging of someone as vulnerable will shape the perceptions of the employment officer. It will ensure that he understands that someone with partial disability—which could be a physical condition such as chronic angina or, more worryingly, a mental health problem such as chronic depression, or a moderate learning disability—is regarded as vulnerable in terms of the labour market. It will ensure that a sensitive and appropriate jobseeker's agreement will reflect that partial disability.
If there is doubt about abiding by those terms, and when dealing with mild or moderate mental health problems, flagging someone as vulnerable will also ensure, secondly, that that person, if in hardship, is immediately eligible for a hardship payment while those doubts are resolved and will not be required to wait a fortnight or so for benefit.
If one has been on invalidity benefit and for many years has been regarded as disabled, coming off that benefit as a result of the introduction of the new incapacity benefit legislation will be traumatic for many partially disabled people. They will be fearful, anxious and frightened as they are expected to re-enter an already overstocked labour market, bringing with them a track record of chronic ill health, irregularity of work, probably a lack of attachment to the labour market and lack of suitable labour skills. They are deeply apprehensive; they are in poor health.
If we have to force such people back into the labour market —that is what the incapacity benefits legislation does—at the very least I would hope that we could allay their fears somewhat by flagging such claimants as vulnerable, thus ensuring a more sensitive jobseeker's agreement and immediate eligibility for hardship benefit should they fail to meet the requisite tests. I beg to move.
Earl Russell: My Lords, I must apologise to the House that I was still making my way back after Telling when the noble Baroness rose to move the amendment. I am correct, am I not, that the noble Baroness moved Amendment No. 2, which is grouped with Amendments Nos. 5, 96B and 96D?
I strongly support the amendments, with the sole reservation that they are painfully modest. The amendments deal with the right to severe hardship payments pending appeal. I should like to express my regret to the Minister that we became so heated when we debated the issues last Thursday night. I have tried my level best to understand what he said. I hope that I have improved the understanding between us; I am not sure whether I have succeeded. However, as I expound what I believe he was getting at, perhaps he will correct me if I have understood incorrectly; I may well have done so.
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Two issues caused me considerable bewilderment as regards the Minister's arguments last Thursday night. First, why did he consider that he was allowed to take away benefit without due process? That question goes very deeply to this issue: how far is social security subject to the rule of law? Secondly, why does a suspicion that a person does not meet the conditions of entitlement constitute proof?
Of course, the hub of the issue is the basis of entitlement to benefit. The noble Baroness and I suggested that, as with a prosecution for crime, the basis should be innocence until proved guilty. The Minister did not like that argument. I suggested that the basis might be similar to that of the law of property: you have the right to remain in occupation of your property until you are proved not to have a title to it. As the phrase runs, possession is nine points of the law. That goes back a great many centuries. The Minister did not like that suggestion either.
I have since taken legal advice on the question: what is the basis of entitlement to benefit? The advice that I have received is that it is to be treated as a civil right. However, that gives the same assurances and the same protections in many ways as if it were property.
I have read what the Minister said. It seems to me that the hub of his argument rests on the question of burden of proof. At col. 273 of the Official Report of 11th May, the Minister said:
"As the entitlement has not been established the benefit should not be paid".
I believe that if you meet the means-tested conditions, it is prima facie evidence of entitlement until proved to the contrary. But, if I have understood the Minister correctly, the situation is more like the 11-plus examination. You have to go through an examination before you are eligible. But, like the 11-plus examination of days gone by, it is very often wrong. I do not find that notion of entitlement persuasive. It is doubtful whether it is compatible with present law.
I wish to raise one technical point with the noble Baroness and the Minister on Amendment No. 5. The amendment provides protection for women in refuges. As I understand it, those women have hitherto been protected under the availability rules. They are treated as though they are available for work even though they are not. I trust that the noble Baroness agrees that; if it appears better to Women's Aid and to the Government that that should remain so, the matter should be tidied up at Third Reading. The Minister promised us that before debate on the Bill concludes he will tell us how women in refuges are to be treated. I hope that he is now in a position to do so.
I ask the Minister this question once again. If a person meets the test for eligibility for means-tested benefit but does not receive it, how can he not be in hardship? I accept the answers that he gave: that they have savings or relatives caring for them. That will not be the position for most of the people involved. Therefore, why does the Minister believe that we can disentitle them yet not put them into hardship?
The Minister listened to what my noble friend Lady Williams of Crosby said about the effects of disentitlement in the United States. Since she spoke, we

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have had a new report from NACRO on social policy and crime. It supports, with a wealth of footnotes, everything that my noble friend said. If the Minister considers the amendment in terms of costing, I believe he will find that the provision is cheap at the price.
6.15 p.m.
Baroness Williams of Crosby: My Lords, I make one point in addition to those so forcefully made by the noble Baroness and my noble friend Lord Russell. It relates to a specific group in a list of vulnerable persons which we discussed perhaps less than some of the other groups.
The House debated with sympathy and due consideration the position of those who are not so disabled that they draw disablement benefit but, equally, have some disability which makes employment unlikely or difficult to attain. However, there is another group. My noble friend touched on it. I wish to ask the Minister about that group. Let me make this plain to noble Lords in the House who may wonder about the sheer modesty of the amendments. We have accepted a 40 per cent. reduction from the already relatively low level of income benefit—we have not accepted it; we have attempted to encourage the Government to concede on the issue of the most vulnerable groups.
The two groups that I wish to talk about are referred to in the list of vulnerable groups. They are those under the age of 18 who are living independently, or those in refuges. My noble friend referred to battered women in refuges. But there is, too, the group of children or young people in refuges who are escaping from physical, sexual and other forms of abuse. I am pleased to see present the right reverend Prelate, who knows one of the poorest areas of this country. He will know, as I know, that it is a real problem. The young people have fled their homes for overwhelmingly good reasons because they have suffered abuse of a kind that I shall not at present seek to illustrate by examples. However, there are horrendous examples. Those young people should not be compelled to live in absolute poverty while their cases are being adjudicated.
In the same way, women who are liable to be severely battered and beaten up should not be compelled to return home because they have no means of continuing to live in a refuge. Indeed, I ask seriously whether the Minister considers that it can possibly be right to drive people back to such conditions in those situations.
I raise one other issue. If there is no legitimate form of income for a young woman or young man who has been abused or treated with violence in her or his own home, and she or he is therefore living rough to escape, the alternative is all too often prostitution. This House should think carefully before taking any steps which might drive young men and young women in that direction. The report from NACRO bears out the fact that many young people are driven to prostitution when they have no other source of legitimate income, if they are not driven to crime.
Lord Swinfen: My Lords, this group of amendments is designed to ensure that a vulnerable person is not totally destitute while waiting for the decision as to
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whether he or she will obtain the jobseeker's allowance. It may not be the right way to tackle the: problem in the Bill. It may be better for it to be done by regulation. But I hope that, when replying to the group of amendments, my noble friend will be able to assure the House that vulnerable people will not be left destitute, possibly having to find an income by an immoral or illegal activity. How will such people be supported? They are vulnerable and need support. How will they be funded? How will their children be provided for? I hope that in reply my noble friend will address that point. There may be other ways in which support will be given, but as a civilised country we must give vulnerable people some support.
Lord Henderson of Brompton: My Lords, I support the amendment. Does the Minister agree: with the list in subsection (2B) in Amendment No. 5? I find it difficult to believe, running through the list, that he could maintain that any single provision should not be there.
On the other hand, I should like to see the provisions in the Bill because the case that has been made out for them is incontrovertible on humanitarian and also on legal grounds and they should be on the face of the Bill. In a year when we shall enact one of the disabled persons Bills now before Parliament, it is entirely right that Amendment No. 5 should be put on the face of the Bill. It should also have the power, which the amendment would not give, to add to the list. That is, not to amend the list: I do not believe that we should subtract any provision from the list but I see no reason why a power should not be added which would make the amendment more agreeable to the Government. By statutory regulation, by either the affirmative or negative instrument, the list could be added to, but it should not be in any way diminished.
In this Session of Parliament, disabled people who are called "vulnerable" in the amendment should be specially cared for under the Bill. Therefore, I strongly support the inclusion of the amendment.
Lord Mackay of Ardbrecknish: My Lords, I understand some of the anxieties that have been expressed by the noble Baroness and other noble Lords this evening on these issues. JSA hardship payments will be the safety net in the benefit system for those who are required to be available for work in order to receive benefit, so it is important to ensure that vulnerable claimants are effectively protected.
Amendment No. 5 is the crux of the noble Baroness's proposals. The amendment deals exclusively with cases where a decision is awaited on whether a claimant is available for and actively seeking work or whether he has entered into a satisfactory jobseeker's agreement. It does not deal with cases where an adverse decision on those matters has already been made. The noble Baroness has been quite clear that it is this group which particularly concerns her because the issue of doubt has not, in this case, been resolved. Interestingly enough, Amendments Nos. 96B and 96D would remove our power to make hardship payments to people after such a decision. I am not entirely sure that that was the noble Baroness's intention.

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So we are looking here only at cases where we do not know whether someone is entitled to JSA because we do not know whether they are available for work, or we do not know whether they are actively seeking work. It cannot be acceptable to pay benefit automatically to people before we know whether they meet the entitlement conditions. That would not be a responsible use of public funds.
We take the view—and I think this may be the main difference between us—that the same principle applies mid-claim if it appears that the claimant is not continuing to satisfy benefit conditions. I must remind the House once again that JSA is a conditional benefit. People are expected to do something in return for the money they receive. They must satisfy the conditions not just once at the beginning of a claim, but throughout a claim. Therefore, if a doubt arises, then the case must be referred to adjudication and once again benefit should not, in our view, be payable on the normal basis as if no doubt had ever arisen.
We agree that it is right to afford protection to the vulnerable faced with a situation of hardship. I can assure your Lordships that hardship payments will be available to vulnerable claimants who need that protection. The Government's proposals broadly follow the pattern that currently applies in actively seeking work cases under income support. Where a question has arisen in JSA over whether someone is actively seeking work, or on his availability for work, a claimant will be able to be considered for a hardship payment throughout the period of consideration if he is in one of the prescribed vulnerable groups.
However, where the adjudication decision is taking longer than two weeks, claimants outside the vulnerable groups will also be able to receive JSA if they demonstrate hardship. We believe that is a reasonable and fair approach. The claimant has not demonstrated that he meets the normal conditions for benefit, therefore it is not awarded under normal conditions. But the hardship payments will provide the protection for those in vulnerable groups who need this right from the start, and we will extend this to all other claimants if the decision-making process is a lengthy one and if after a fortnight no decision has been reached that they have failed the labour market tests.
Paragraph 10 of Schedule 1 contains the regulation-making powers to award benefit to people despite entitlement not having been established. This will apply both at the outset of a claim and when an existing award has been suspended because of a doubt as to whether a person is continuing to satisfy the jobseeking conditions.
Amendment No. 5 also seeks to define on the face of the Bill matters of detail concerning the definition groups which will have access to benefit as "vulnerable groups". As I have outlined to your Lordships before, the regulations in JSA which define the vulnerable groups with access to hardship payments will build on those currently applying in income support to claimants who fail to look for work. That includes households where the claimant or partner is pregnant; where the
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claimant is a member of a couple with responsibility for a child or young person; and where the claimant or partner qualifies for a disability premium.
We are expanding this definition, in line with our commitment in the White Paper, to cover people who are sick and disabled. People who are incapable of work should normally be claiming an incapacity benefit. However, some claimants who suffer from a serious underlying medical condition, rather than a disability, may be capable of work, but may for dietary or other reasons be particularly seriously affected if all benefit is withdrawn. Consequently, we propose that where the claimant or partner has a serious medical condition of this type they will have access to JSA hardship payments at all times, if they meet the normal hardship tests.
We are also widening the groups who can receive hardship payments to include those with caring responsibilities. We have looked carefully at how to define the group we are concerned to protect—those who provide substantial care to sick, disabled or elderly people. We wish to strike a sensible balance which recognises real need but does not include cases where the care provided is negligible. The amendment of the noble Baroness would make for an unworkable gateway.
The clear starting-point in the benefit system is invalid care allowance, which goes to those with significant caring responsibilities. The qualifying condition to ICA is that the person being cared for must be in receipt of the middle or higher rate of disability living allowance care component or of attendance allowance. We propose to set the same condition for carers' access to hardship payments. However, in view of the fact that the claimants involved are claiming a jobseeker's benefit rather than a carer's one, we do not propose to apply the additional ICA qualification of at least 35 hours' a week caring. To qualify for access to JSA hardship payments the claimant will need to be responsible for regular care, but there will be no specific hours rule or prescribed pattern of caring.
Of course, if a carer qualifies for ICA he or she can choose not to be a jobseeker and can qualify for income support as a carer. And I would remind your Lordships that ICA remains payable for eight weeks after the recipient ceases to be a carer, which provides a period of grace before some ex-carers come into the ambit of JSA.
We are confident that these definitions will strike the right balance between protecting the taxpayer from paying benefit where there may be no entitlement, and protecting those in vulnerable groups from hardship. The noble Baroness's amendment would go much further than this by paying benefit automatically to most groups when we do not know whether they are entitled to it. It would also through its final subsection open hardship payments up to everyone at all times.
The noble Earl, Lord Russell, asked me whether it was legal to suspend benefit on grounds of doubt. It is a longstanding feature of social security law that benefit can be suspended. Section 5(1) (n) (i) of the administration Act allows regulations to provide for suspension:
"where it appears to the Secretary of State that a question arises whether—
(i) the conditions for entitlement are or were fulfilled".
Parliament has approved that principle, which will apply in JSA as it does in other benefits.

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I now turn to the question of people with one or more points from the IB test. I cannot accept that we should go so far as the noble Baroness wishes in her amendment. Many people would score a point or two in the test, but that does not mean that they are necessarily particularly vulnerable to hardship. Those who do not qualify—
Earl Russell: My Lords, I beg the Minister's pardon. I merely seek clarification. Are we debating Amendment No. 3, to which the Minister is addressing himself, or is that still to come?
6.30 p.m.
Lord Mackay of Ardbrecknish: My Lords, I am addressing the amendments that are grouped with this one, No. 2: Amendments Nos. 5, 96B and 96D. I am attempting to address the points that were made and am dealing with the point made by the noble Baroness about IB tests.
As I said, many people would score a point or two in the test, but that does not mean that they are necessarily particularly vulnerable to hardship. Those who do not qualify for a disability premium but who have a serious health condition would indeed fall into a vulnerable group. We do not believe that we should go further than that and include everyone with a minor health problem.
The noble Baroness, Lady Williams, asked me about young people who are the homeless victims of violence or are otherwise destitute. She suggested that they should not have to wait for an AO decision without benefit. Claimants in these categories do not have to wait for an AO decision on a claim. They can qualify with a severe hardship direction. That is the Secretary of State's decision and is a completely separate issue from the one that we are currently considering.
I recognise that this is a sensitive area. But these are matters that will be dealt with in regulations and which will require, I have little doubt, fine tuning over time in order to deal with new problems as they arise and difficulties that we may wish to address. I can tell the noble Earl, Lord Russell, that I have already undertaken to look at provisions for women in refuges. I cannot go further than simply to repeat that commitment. I am of course willing to consider all the points made by noble Lords and to look at whether there is a genuine case for extending any of the provisions when we come to the regulations.
However, what I cannot do is accept that people should always have access to benefit whatever their action or status. I have said on a number of occasions that in order to qualify for this benefit a person has to meet the principal qualifications; namely, to be available for work and actively seeking work. We have gone a long way in the running of the system to attend to those people who are in particularly vulnerable groups, and we shall continue to do so in JSA. However, to go further and to put on the face of the Bill the suggestions set out in the noble Baroness's amendment would be wrong. If the noble Baroness does not withdraw her amendment—I understand that she feels strongly about many of these issues and therefore she may not—I hope that my noble friends will vote against it.
Earl Russell: My Lords, before the Minister sits down, I wonder whether he will be kind enough to say that he will write to me when he is clear about what is to be done on the issue of women's refuges.
Lord Mackay of Ardbrecknish: My Lords, I will certainly do that.
Baroness Hollis of Heigham: My Lords, first, I thank noble Lords on all sides of the House for their support for this amendment and for a very helpful and well-informed short debate.
We have two areas of disagreement with the Government. I have to say that our fears have not been allayed on either. First, on the issue of doubt relating to Clause 5(2) (a), I noted the Minister's words. He said that JSA was a conditional benefit and the claimant must satisfy the conditions for it. We agree. But when a doubt has been raised, we do not know whether the claimant has or has not satisfied the conditions. We shall know that only after adjudication. That is the size of the gap between us; namely, that the Minister persists in believing that to fine someone in advance of their case being heard is acceptable within the conventions as well as the ethic of natural justice. We shall return to that point.
The second point that the Minister made related to what he—I shall not say "dismissed" because that sounds too cavalier—labelled as "matters of detail" so far as the groups were concerned. That was his phrase. I do not think that these are matters of detail at all. The groups concerned would not regard as "matters of detail" whether or not they are regarded as vulnerable. That phrase was perhaps a little unfortunate.
We are dealing here with some of the most marginal and vulnerable groups within the group that is potentially and actually unemployed. We are dealing with women who have been abused and who are in refuges; with people who are coming off incapacity benefit, even though they may have received invalidity benefit for many years, and who are frail, worried and apprehensive; with young people who have come out of care and who are on the streets; with carers who may look after someone for 15, 20 or 25 hours a week; with people who are themselves marginalised and vulnerable or who care for such people. That is not a matter of detail at all. It is at the heart of this Bill. If we as a society cannot make decent minimum provision for such groups, I am afraid we should be ashamed of ourselves.
At the end of the Minister's speech, to which I listened very carefully, I am still left totally confused as to what groups the Minister will regard as vulnerable and therefore who will become so through the regulations. So far as I could see (I ticked off the list as he spoke) those who are pregnant or have a dependent child will be covered by vulnerability. Foster children were not mentioned, but I imagine that the same would apply. The Minister shakes his head. Is he saying that the definition does not apply to someone with a foster child? I presume that in this case a foster child is treated as a dependent child; the

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Minister has not so far suggested that there is any difference. Perhaps he will write to me if I have misunderstood him.
He had a query about carers, but went on to say that a carer has been defined as either someone engaged in caring for over 35 hours a week and entitled to ICA, or alternatively as someone not receiving ICA because he or she does not care for someone for over 35 hours a week but who is nonetheless regularly caring. That definition will affect a jobseeker's agreement because the employment officer has to recognise that condition, as we have all accepted, and it can simply be cross-referred into this amendment; there need be no problem there.
The Minister agreed illness, physical or mental disability confirmed by a registered practitioner. He said that he would write to the noble Earl and, I hope, to others of us in regard to the situation of women in refuges. As for those who are homeless, is the Minister saying that such people are not vulnerable when they are living on the streets and are under the age of 18, coming from a history of community and residential care? Are those people not vulnerable?
It seems that the two groups that the Minister is not willing to cover are, on the one hand, those who are homeless and on the streets—particularly those who are under 18 and who are potentially vulnerable, as we know, to prostitution and criminality—and, on the other hand, those coming off disability or incapacity benefit who have some partial disability and therefore some points but who are not registered as vulnerable. That seems to be the difference between us. Is the Minister really saying that those two groups are not vulnerable and should not be covered? Do your Lordships believe that someone who has enjoyed invalidity benefit and has now lost it, particularly if they have a mental health problem which is not necessarily easy to diagnose, is not vulnerable? Is the Minister really saying that somebody who is under 18 or is homeless is not vulnerable and destitute? Is the Minister saying that? I cannot believe that your Lordships share such a view or believe that such groups are not vulnerable.
The Minister has gone a long way towards accepting the list but not those two groups. I do not understand that. Before I decide what to do with the amendment, perhaps I may ask one further question. He said that the definition of vulnerability will come through regulation. Specifically, will the regulation under this clause be by affirmative procedure or not? Can I have a reply to that question?
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, if I heard the question aright, I believe I am right in saying that all the regulations to do with JSA in the first six months when we are setting it up will be by the affirmative procedure, as I recall. It is for a little further on than we are today. But that will be the case; thereafter, of course, it will be the negative procedure. I hope that that helps.
Baroness Hollis of Heigham: My Lords, I take it that the Minister is saying that he will expect these regulations therefore to come under the affirmative
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procedure, for the first time. So for any subsequent editions the list obviously will not be so treated. I want to get this point right because there seems to be some ambiguity. Is the Minister saying that if he wished to take some of these groups off the list of vulnerability after April 1996, he could do so by the negative procedure? I am sorry to have to engage this point but it has not been raised before. Will the Minister reply?
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, the point has not been raised before. Probably a little further on we can raise it again, but I am happy to try to be helpful. Let me be clear that at the first time of setting out these regulations, they will be by affirmative order. Thereafter any change adding or subtracting will be by the negative procedure. I think that that is perfectly clear.
Baroness Hollis of Heigham: My Lords, I thank the Minister for responding to the point. However, in the light of his reply, I must confirm that the Minister is not able or willing to give us assurances on what are in my view two very vulnerable groups: those coming off invalidity benefit who have partial disability but have no guarantee that they will be regarded or treated as vulnerable either in terms of their jobseeking agreement or in terms of their continued eligibility for hardship payment should a doubt be raised as to their availability for work on the one hand, and the same problem with the homeless and those under 18 on the other.
Moreover, given that any changes to the potential list that the Minister has outlined for us may, after April 1996, be reduced and this House will have no capacity to amend and may not even have the opportunity to scrutinise, I seek the opinion of the House.
6.42 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 59; Not-Contents, 114.

Division No. 2

CONTENTS

Barnett, L.

Henderson of Brompton, L.

Beaumont of Whitley, L.

Hollis of Heigham, B.

Bledisloe, V.

Howell, L.

Brain, L.

Hughes, L.

Carmichael of Kelvingrove, L.

Hylton-Foster, B.

Craigavon, V.

Jay of Paddington, B.

David, B.

Jeger, B.

Dean of Beswick, L.

Jenkins of Hillhead, L.

Dormand of Easington, L.

Kilbracken, L.

Dubs, L.

Kirkhill, L.

Ewing of Kirkford, L.

Lawrence, L.

Falkland, V.

Lester of Herne Hill, L.

Geraint, L.

Liverpool, Bp.

Graham of Edmonton, L. [Teller.]

Lockwood, B.

McCarthy, L.

Grey, E.

McIntosh of Haringey, L.

Hamwee, B.

McNair, L.

Hardinge, V.

Mason of Barnsley, L.

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Mishcon, L.

Sefton of Garston, L.

Monkswell, L.

Stedman, B.

Newcastle, Bp.

Stoddart of Swindon, L.

Nicol, B.

Taylor of Blackburn, L.

Palmer, L.

Thomson of Monifieth, L.

Perry of Walton, L.

Turner of Camden, B.

Redesdale, L.

Varley, L.

Whaddon L.

Richard, L.

White, B.

Rochester, L.

Williams of Crosby, B. [Teller.]

Rodgers of Quarry Bank, L.

Russell, E.

Williams of Elvel, L.

Seear, B.

Williams of Mostyn, L.

NOT-CONTENTS

Addison, V.

Kenilworth, L.

Aldington, L.

Kimball, L.

Allenby of Megiddo, V.

Kinnoull, E.

Astor, V.

Kingsland, L.

Balfour, E.

Lauderdale, E.

Belhaven and Stenton, L.

Lindsay, E.

Blaker, L.

Liverpool, E.

Blatch, B.

Long, V.

Boardman, L.

Lucas, L.

Boyd-Carpenter, L.

Lucas of Chilworth, L.

Brabazon of Tara, L.

McColl of Dulwich, L.

Brigstocke, B.

McConnell, L.

Brookes, L.

Mackay of Ardbrecknish, L.

Brougham and Vaux, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Butterworth, L.

Cadman, L.

Macleod of Borve, B.

Caithness, E.

Malmesbury, E.

Campbell of Alloway, L.

Marlesford, L.

Carnock, L.

Massereene and Ferrard, V.

Chalker of Wallasey, B.

Miller of Hendon, B. [Teller.]

Chelmsford, V.

Milverton, L.

Chesham, L.

Mountevans, L.

Clanwilliam, E.

Mowbray and Stourton, L.

Clark of Kempston, L.

Moyne, L.

Colwyn, L.

Munster, E.

Courtown, E.

Norrie, L.

Cox, B.

Northesk, E.

Craigmyle, L.

Oppenheim-Barnes, B.

Cranborne, V. [Lord Privy Seal.]

Orkney, E.

Orr-Ewing, L.

Cumberlege, B.

Oxfuird, V.

Dean of Harptree, L.

Pearson of Rannoch, L.

Deedes, L.

Pender, L.

Denton of Wakefield, B.

Platt of Writtle, B.

Dixon-Smith, L.

Plummer of St. Marylebone, L.

Eden of Winton, L.

Rankeillour, L.

Elles, B.

Rawlings, B.

Elton, L.

Renton, L.

Ferrers, E.

Renwick, L.

Flather, B.

Rodger of Earlsferry, L.

Fraser of Carmyllie, L.

Romney, E.

Gardner of Parkes, B.

Seccombe, B.

Greenway, L.

Sharples, B.

Hacking, L.

Simon of Glaisdale, L.

Haig, E.

Soulsby of Swaffham Prior, L.

Hanson, L.

Strange, B.

Harding of Petherton, L.

Strathcarron, L.

Harmar-Nicholls, L.

Strathclyde, L. [Teller.]

Hemphill, L.

Sudeley, L.

Henley, L.

Suffield, L.

Hives, L.

Teynham, L.

Holderness, L.

Thomas of Gwydir, L.

HoImPatrick, L.

Torphichen, L.

Hood, V.

Trumpington, B.

Hothfield, L.

Ullswater, V.

Howe, E.

Vivian, L.

Inglewood, L.

Wakeham, L.

Jeffreys, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.50 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 3:
Page 1, line 12, at end insert ("or, if he falls to be treated as not available, he shall nonetheless be entitled to a jobseeker s allowance where he has been assessed as capable of work under Part XIIA of the Benefits Act, but he has been awarded one or more points in respect of one or more descriptors applied under the all-work test").
The noble Baroness said: My Lords, this amendment touches on two issues in particular: first, the interface between incapacity benefit and jobseeker's allowance; and, secondly, the interface between unemployment benefit and income support, which is being replaced by JSA. I shall deal with the second issue first. On availability for work, JSA represents the bringing together of unemployment benefit and income support, but both of those at the moment have, if one likes, different responses to the situation of availability for work. At the moment, if someone is receiving unemployment benefit and doubt arises about whether he is available for work, his benefit is continued until the doubt is resolved. If he is on income support, however, and a doubt arises about availability for work, the benefit is removed until the doubt is resolved. In amalgamating these two benefits the Government have adopted the much harsher income support rules, where benefit is stopped the moment a doubt arises, rather than the more reasonable rules of unemployment benefit, where benefit is stopped only where it is proven that the claimant is not available for work. We shall continue to debate the wrong done to people who are punished in advance of being found guilty, which is what stopping a benefit merely on a doubt entails.
The first aspect of the amendment is that if a claimant falls to be treated as not available for work, whether following the employment officer's doubt or following a judgment by the adjudication officer, he should nonetheless be entitled to a hardship payment if—this is the second part of the amendment—he has some points coming from the incapacity benefit test even though they are not sufficient to qualify him for incapacity benefit.
Why are we revisiting this matter following the previous amendment? The disabled person to whom the Minister referred in the previous discussion who is eligible for such hardship payment comes within a definition that is very narrowly drawn. Such a person has to be in receipt of a disability premium such as DLA, be registered blind or have a serious underlying medical condition. A disability premium is paid to meet the financial cost of care and mobility of someone who is disabled. It is seldom paid to someone, who has, for example, a mental health condition. Therefore, most people with a mental health condition will not get a disability premium and therefore they will not come within the Government's definition. That is reinforced by the fact that the DSS's own research—Report No. 19—shows that of those on invalidity benefit only 19 per cent. also obtained DLA. Therefore, DLA is a very narrow definition of disability, particularly for someone with a mental health or learning disability.
This amendment would widen the notion of disability for hardship purposes to include the partially disabled—those who fail to get fewer than 10 points on the mental health test or fewer than 15 points on the physical health test. About whom are we talking? In particular, such an amendment would pick up those who have not filled in the JSA form properly because they have a moderate learning disability. At the moment they would lose JSA. It would pick up those who may place too many restrictions on the nature of the work they are willing to accept, perhaps because they are frightened to go out alone. At the moment they would lose JSA. It would pick up those who may fail to turn up for an offer of work because that day they experienced a panic attack. At the moment they would be disqualified from JSA. It would pick up those who may fail to attend a Restart interview because, quite simply, they were unable to comprehend the message or the instructions. At the moment such people would fail JSA. By failing JSA they would lose benefit.
The point I am trying to make, perhaps inadequately, is that, because of the very nature of partial disability, particularly in the areas of mental health and moderate learning difficulties, by making them more eligible for hardship payments we will cost them their hardship payments precisely because they suffer panic attacks, precisely because they do not comprehend a conversation and precisely because they suffer from strong mood swings. Those are the very reasons why such people need special consideration. Yet those characteristics will cost them the consideration they should have.
It does not have to be like this. If such claimants come with points validated by the incapacity benefit system those points could be the passport, a clear simple and obvious passport, to the Employment Service and to hardship payments. But, unless we accept such an amendment, those who are partially disabled will find that their very disability renders them regularly offending against a JSA agreement and thus they will lose all benefit. It is important that we protect them. I beg to move.
Earl Russell: My Lords, this amendment deals with people not of incapacity but of limited capacity. The Minister may regret that we keep returning to this situation. I accept entirely the assurances that both Ministers have given us that they wish to deal with this category of cases. Their intentions are entirely adequate. Our reason for returning is that they have not made those intentions effective. The cases keep on coming of people who are found ineligible for incapacity benefit but are not signed on when they go to the Employment Service. So long as the cases go on arising we must keep on returning to the problem of finding some adequate way of providing for them. The Minister will, I hope, forgive us that.
Let us take, for example, epileptics. I speak with feeling on this subject because I have had epilepsy in my own family. My grandfather was an epileptic while being a distinguished Member of another place. I understand perfectly well that people who are epileptics can work and can do so extremely successfully. But we
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are also dealing with the attitudes of employers. A case came to the National Association of Citizens Advice Bureaux recently of someone who had been working perfectly adequately until his employer discovered that he was epileptic and said, "We don't want any epileptics here", and produced a cock and bull reason for dismissal involving a voluntary unemployment penalty while it was investigated. That is typical of the kind of reason, to return for a moment to a previous amendment, why we want benefit paid during appeal.
Here again, we also return to the effect of performance-related pay. Placing people in employment is a positive outcome. I do not think there is any argument about that, but there is room for argument about the effect of it, because if placing people in employment is a positive outcome, the employment officer is likely to take more trouble over those who are easier to place in employment because he will be scoring more successes. He is likely to take a rather dim view of finding his office, as he would see it, cluttered up with large numbers of people whom it is extremely difficult for him to place in employment. That is a quite unfair interference with his performance. That is the sort of problem which we are getting and which explains why employment officers are making so many difficulties about people coming off invalidity benefit being allowed to sign on. I hope that the Minister will pay some attention to what is actually going on on the ground and do something to make his will to stop it effective.
Lord Swinfen: My Lords, those who have spoken have done so extremely ably. All I can say is that I support this group of amendments.
7 p.m.
Lord Mackay of Ardbrecknish: My Lords, we have had a considerable amount of discussion about our proposals for people who leave incapacity benefit and claim JSA. I very much appreciate the concerns expressed by the noble Baroness and the noble Earl. We share these concerns that people with a physical or mental condition have needs which require special consideration. I can assure your Lordships—I have done it before and I am happy to do it again—that we have drawn up the JSA proposals and in particular the availability rule, taking account of these requirements.
The noble Earl, Lord Russell, mentioned that examples keep on coming. It would be quite hard to keep on coming considering that incapacity benefit has just started. I appreciate that the noble Earl was actually referring to invalidity benefit and the situation before the incapacity benefit came in. One of the targets which I hope he will approve of, although he disapproved of others earlier, is a target which says that the objective is to offer people with disabilities particular help and advice in finding and retaining work or appropriate training and to help and encourage employers to make work or training opportunities available to them. Four per cent. of total unemployed placings achieved will be for people with disabilities. In that regard I hope that he sees the target as a positive one.
Earl Russell: My Lords, I am grateful to the Minister for that, but, before giving employment officers contradictory targets, I ask him to remember the fate of the chameleon that was put on tartan. It dropped dead.
Lord Mackay of Ardbrecknish: My Lords, perhaps I may suggest that it would depend entirely on what the tartan was and how much trouble it would entail.
I now turn to Amendment No. 3. I am a bit perplexed about it. The amendment provides that a person who has failed the all-work test in IB but has been awarded at least one point, who will be treated as not available, should still receive JSA. We intend to use the power to treat people as not available, as was discussed in some depth in Committee, to treat a limited number of groups as not available: full-time students, women who are receiving statutory maternity pay within the maternity pay period, and prisoners on home release. The reason for this is clear. Although people in these groups may be able to make themselves available for work, we have made other provision for their support. The power will ensure that, if any people in these groups make a claim for JSA, they will be treated as not available. I see no reason why people who have failed the all-work test and who fall into one of these three groups should receive JSA when other, more appropriate, provision is available.
Having listened to the two speeches, I suspect, however, that the intention behind the amendment is to allow people who have failed the IB all-work test and do not make themselves available for work to receive ISA without fulfilling the availability condition. If this is the intention, I cannot agree that this is correct. A decision on IB that a person is capable of work will apply across all other benefits. I have mentioned that on a number of occasions. Thus a person who has failed the all-work test will automatically be capable of work under JSA and will be entitled to allowance provided he is available for work. As I have said many times before, all JSA claimants will be able to restrict their availability in line with their physical or mental condition, and with no requirement that such restrictions should be inhibited by their prospects of securing employment. This will, of course, apply equally to those who have failed the all-work test.
As regards Amendment No. 28, I reassure the noble Baroness that we want to include, not exclude, people with disabilities in JSA and to this end we have taken the needs of people with disabilities into account in drawing up the JSA labour market rules. We intend to carry forward the current provisions in unemployment benefit and income support which allow a person with a mental or physical condition to place restrictions on the nature, hours, rate of remuneration, locality or other condition of employment which he is prepared to accept where those restrictions are reasonable in view of his condition.
I would like to emphasise to your Lordships, however, that the first priority of jobseekers is to find employment and to this end it is vital that jobseekers are available for employment. The noble Baroness's amendment would seek to ensure that disabled claimants can claim JSA without fulfilling one of the main labour
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market entitlement conditions. It would be wrong to open up the availability condition to people who are not prepared to be available for employment.
The amendment specifically refers to people who have failed the all-work test but have been awarded one or more points in respect of one or more descriptors applied under that test. This would include, for example, someone who cannot walk more than 400 metres without stopping or severe discomfort, or someone who cannot answer the telephone and reliably take a message. I assure the noble Baroness and your Lordships that 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. As I have said many times before, and I am happy to say it again, provided that jobseekers in these 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.
Where the claimant or partner would be entitled to a disability premium or where the claimant or partner has an underlying medical condition which means that they would be at risk, payment of JSA can be made at any time that hardship can be demonstrated, even when the claimant is not available for work.
I turn to Amendment No. 76. I entirely accept that where it is unreasonable, by reason of a disability, for a claimant to take a job or to accept an offer of a place on an employment programme or training course, that person should not be penalised by facing a benefit sanction. Before an adjudication officer imposes any sanction he would always consider whether the claimant had good cause for such actions. Current regulations, which we will be following in JSA also, already specify that he should take into account harm to the person's health and excessive mental or physical stress to which the job or programme might subject him. Therefore, if the kind of disability identified by the all-work test meant that the job offer was inappropriate or the training arrangements unreasonable, appropriate protections against sanction are built into the system.
I should add, of course, that, even where a sanction is applied because the person was not considered to have had good cause for his actions, a disabled person, or someone with an underlying medical condition which would put them at risk if benefits were withdrawn, would have access to hardship payments throughout the period of sanction.
However the amendment would go much further. No sanction could be applied, whatever the circumstances, if the person had been awarded one or more points against the descriptors of the all-work test. This is a pretty sweeping exemption. A person could be sacked from a job for gross misconduct but could receive full benefits as if nothing had happened. A person could refuse any job offer, however reasonable, even where it was fully compatible with his disability, and continue to receive the same level of benefits. A person could refuse

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a place on a training course, even one specially designed for his special physical or mental needs, and not face any consequences.
The noble Baroness used her example again. I presume that it was the same example which she used in Committee; namely, a person with quite severe depression getting only six points. I have looked in some detail—
Baroness Hollis of Heigham: My Lords, I did not.
Lord Mackay of Ardbrecknish: My Lords, then it was another example. I thought that the noble Baroness was harking back to the example she had already used in Committee. If she was not I shall not go over that. It is undoubtedly the case that one has to look at all these cases in the round and at the person in front of the doctor, as it will be, making the decisions. It is difficult to come to decisions across the Dispatch Box about hypothetical cases, as I had been about to point out to the noble Baroness if she was putting the previous case—
Baroness Hollis of Heigham: "Hypothetical" again?
Lord Mackay of Ardbrecknish: Our reforms to incapacity benefit have been designed to break the dependency culture of people who can in some cases, despite a reduced level of capacity to work, play a role in the labour market. The amendment would simply open up the possibilities of people resting on benefit despite all the offers of help and assistance open to them. I cannot believe that that is in the interests of the labour market, the taxpayer, or, least of all, those individuals concerned. Therefore, I am afraid that I cannot accept the amendment. I hope that it will be withdrawn.
Baroness Hollis of Heigham: My Lords, I thank the Minister for that reply. However, I wonder whether he yet understands why we are worried. A partially disabled claimant who does not now qualify for incapacity benefit but who has received invalidity benefit —that is, he is pretty seriously disabled, but has failed the 10 to 15 point test—must now seek JSA. He has to meet two conditions: that he is available for work and that he is actively seeking work. The Minister rightly said that the actively seeking work test will reflect the claimant's degree of partial disability.
However, there are two problems. The first is the availability for work test; the second is the notion of what constitutes a "disabled person". First, the availability for work test, as opposed to the actively seeking work test, requires an additional set of tests which a disabled person who has a mental health problem, such as suffering panic attacks, or who is unable to go out of the house alone, may fail by virtue of his disability, thus rendering himself ineligible for benefit.
The second problem that the Minister failed to address is the definition of a "disabled person". The definition that the Minister offered is of someone receiving a disability premium, which is somebody on the disability living allowance; someone who is registered blind, I understand, or someone with a serious
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underlying medical condition. The problem is that most people with a mental health problem, who have some points from the incapacity test, do not qualify under the Minister's definition of a "disabled person" because they do not qualify for DLA, they are not registered blind and they may not be regarded as having a serious underlying medical condition. Such a person will have been sufficiently "disabled" a year, six months or even a month ago to receive invalidity benefit but has come off that benefit (although not qualifying under the new definition of "disability") and therefore has no protection at all. That is the group of people we are trying to help.
We accept that many people have a physical disability which is easily understood and appreciated by a relatively untrained employment officer and that they will not be at risk. However, someone with a moderate mental health problem or with a learning disability who has come off invalidity benefit will not, under the Minister's definition, qualify to be labelled—perhaps I should say "flagged up" because the word "labelled" has an unfortunate overtone—as a "disabled person". Such a person can be treated as though he or she is not disabled even though, to return to the Minister's example, that person may exhibit agitation, confusion or forgetfulness which results in accidents. That would count for one point. Such a person's concentration may be sustained only by prompting—again, one point. Such a person may be frequently distressed for part of the day due to mood fluctuations—again one point. The claimant's mental stress may have been a factor in making him stop work—two points—or he may frequently feel scared or panicky for no obvious reason. Again, that scores two points, making a total of seven points. However, that person does not qualify for incapacity benefit or meet the Government's definition of "disabled". That person is virtually unemployable, yet is likely to fail the availability for work test, the actively seeking work test and, without any protection being flagged up, will be incomeless.
If I have mis-stated the case, I ask the Minister to correct me, but I believe that I am right in saying that such a person will not get incapacity benefit, will not be regarded as "disabled" under the Government's own definition, and will probably be income-less. However, only a month or two months previously, such a person would have been in receipt of invalidity benefit.
Given the previous voting, there is probably no point in seeking a Division at this stage, but I think that what we are doing to some extremely vulnerable people should rest heavily on us this evening. We refused to regard them as vulnerable in the previous amendment and the Minister has not accepted that we should flag the situation at the interface with employment officers and adjudication officers when it comes to determining benefit, yet those people are virtually unemployable and without protection as they enter an overstocked labour market. We should be very worried about them. I hope that the Minister shares our concern and that, as and when we return to this issue, possibly when we consider the regulations, we shall be able to encourage him to move further than he has tonight. If we do not, we shall

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be leaving some of the most vulnerable people on our streets extremely vulnerable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: My Lords, I beg to move that further consideration on Report be now adjourned until 7.55 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.16 to 7.55 p.m.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 3A:
Page 1, line 12, at end insert ("and, notwithstanding any other provisions in this Act, in the case of a person who is responsible for the care of another, "available" in this context shall mean available for employment at 48 hours' notice").
The noble Baroness said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 23A. This is a simple, straightforward amendment. We all recognise, including the Government, the degree to which care in the community depends upon the willing support of carers. Government support for the Bill relating to carers introduced in another place by my honourable friend Mr. Wicks is evidence of that.
Throughout the Bill the Government have agreed that carers may restrict their hours of work as part of their jobseeking agreement. We know that most carers do not receive incapacity support premiums. They do not receive ICA. A survey by the Carers National Association found that about 60 per cent. of carers were in financial difficulties because of their caring responsibilities. Those are difficulties that would be overcome if they could re-enter the world of work.
Although we still have to persuade the Government that carers may reasonably put restrictions on location and type of work, we accept that the Government have allowed carers to limit the hours that they may work. In one important sense—beyond location and type of work—we feel that the responsibility of carers has not been recognised adequately in the Bill; that is, they have to be available for work on 24 hours' notice.
As I said, this is a simple amendment. There is no cost involved. It suggests that carers should be required to be available on 48 hours' notice only. Why is that necessary? We would all agree that young, single people without dependants would expect to be immediately available. We have all agreed, and the Government have accepted, that volunteers with commitments to organisations for which they are working should be able to give 48 hours' notice. Those volunteers are often working with old people in old people's homes and with disabled people.
If doing so as a volunteer one is entitled to offer 48 hours' notice, why if one is doing the same work but on a one-to-one basis as a carer—the same elderly or disabled people—should one be allowed only 24 hours' notice to make oneself available for work? Is not that unreasonable?
In Committee the noble Baroness, Lady Williams, argued that it was unreasonable to provide child care on 24 hours' notice. Tomorrow we shall be supporting the amendment tabled by the noble Lord, Lord Northbourne, which provides for seven days' notice because we accept that it is crucial for the well-being of young children that they have secure and kindly care.
I have to say as a parent and a former carer of my elderly parents that finding good childminders was simplicity itself compared to finding care for elderly people. The local authority will have a list, for example, of registered childminders. There will be nurseries and there may be grandparents. It is infinitely harder to find a carer where, for example, an elderly person is becoming increasingly confused at perhaps the onset of Alzheimer's disease or may be incontinent and requiring personal toileting. But because that person may need less than 35 hours a week in care, the carer is not eligible for ICA. How easy will it be within 24 hours to find someone to undertake such demanding, difficult and not always pleasant jobs? How does one ensure that the person is gentle, kind and reliable and that the elderly or disabled person will get on with him or her? I suggest that it is not possible to achieve that within 24 hours. It would be difficult within 48 hours but at least it would be possible.
The alternative is that a conscientious and loving carer of an elderly parent, in particular, will turn down a job if within 24 hours he cannot find someone he trusts. He will then be threatened with loss of the JSA. The Minister may well say—and he would be right—that the job for which the carer can apply will reflect the hours that he is available. But carers work up to 45 hours per week unpaid. Few jobs will allow a perfect dovetailing of the employer's hours with caring responsibilities. That is fine if the caring is a modest 10 or 15 hours per week. However, trying to dovetail with work 30 or 32 hours' caring per week will be difficult and untidy. It is certain that the carer will need to have alternative and additional back-up arrangements at home in order fully to meet the employer's demands, even if he takes a reduced-hours job knowing that the person being cared for is safe and comfortable at home.
We ask for a tiny concession which will bring the situation of carers of disabled and elderly people into line with those volunteers who care for elderly and disabled people. It would also give the carer a real possibility of re-entering the world of work as he would wish. He would have a reduced-hours job knowing that there was satisfactory back-up care in place. It would help to float the carer off the poverty and social isolation that he is likely to face. I hope that on grounds of compassion and consistency the Minister will accept the amendment. I beg to move.
8 p.m.
Baroness Williams of Crosby: My Lords, I support the amendment and wish to advance two arguments in addition to those put forward by the noble Baroness, Lady Hollis. The first argument is that we are living in

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a society in which the proportion of elderly people is constantly growing. Most families can expect to have at least one elderly dependent person. As we know from the figures projected forward to the end of the millennium and beyond, approximately one elderly person will be dependent on every two working people by the year 2010. The number of working people, or those hoping to find work, looking after a dependent elderly relation will not diminish but increase. Many working families will have to care for an elderly dependent relation.
I advance that argument because Ministers may say that if people satisfy the available-for-work and actively-seeking-work criteria they must be able to get away from their caring responsibilities. However, they will find that in real social truth the combination of o caring responsibilities and attempts to obtain a remunerative job will become common for an increasing number of our fellow citizens.
Furthermore, if we cannot rely on voluntary carers within the family or the wider community there is no way in which we will be able to support by statutory services the number of elderly people for whom we must be responsible and must look after. That would be wildly expensive and an outcome that few elderly people would prefer.
My first argument is that, given the fact that in the Bill Ministers are legislating not only for today but for the next few years and beyond, and given that the noble Lord, Lord Mackay, has consistently relied on precedent from previous social security Acts in order to justify some of the provisions in the Bill, any precedent that we now set could be most important. Therefore, I urge that in this instance, where we are looking at a large population of dependent elderly people in their 80s and 90s, Ministers will give fresh consideration to this relatively modest amendment.
There is a second argument which is in a sense caught up with Amendments Nos. 6 and 77. I shall not attempt to argue them now but merely point out the heavy penalties for failing to meet the condition of the jobseeker's allowance; for instance, those involved if one falls in the category of giving up a job or without sufficiently good reason refusing a job offered. We are trying to amend that heavy penalty which, as the Minister knows, can amount to as much as 26 weeks' loss of benefit.
I turn to the point so ably argued by the noble Baroness, Lady Hollis; namely, that the possibility of someone losing his allowance because he failed to satisfy the condition of the jobseeker's agreement—that condition being his availability for a certain job at a certain time—could mean a very heavy penalty. If the carer failed to accept a job when it was offered to him, he could face not only the difficulty of taking up a job but the loss of the jobseeker's agreement and the benefit that goes with it.
The 24-hour rule is difficult to satisfy. Anyone who has had the care of an elderly relative or parent will know that one of the hardest things in the world is not to find another carer but to settle down the elderly relative with a new carer. That can be a nightmare, as
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almost every woman with an elderly dependant knows. The 24-hour rule is not in line with common sense nor with mildly humane practice.
I urge the Minister to consider this modest amendment. The job of looking after elderly or difficult parents or relations is not enjoyable. Probably no one would like to give that task priority over accepting a remunerative job. There is no temptation to "skive", as described by the noble Lord, Lord McCarthy. The Minister could well make a concession which would be to the good of care in the community, to elderly people and a cohesive, decent and mutually supportive society. I support the amendment.
Baroness Seear: My Lords, as President of the Carers National Association, I declare an interest. I strongly support what has been said and I hope that the amendment will be accepted. It would be highly desirable if more than 48 hours were allowed; it costs nothing to give a longer period of time in which to make arrangements.
It is highly desirable that carers should return to the labour market. Many of them will be out of the labour market for so long that returning will be very difficult. They will become a problem to themselves and to society as a whole. Therefore, anything that eases their way back into the labour market is an advantage. The proposal will cost the state nothing and carers will have more time to make difficult adjustments.
The people for whom they are caring are extremely difficult to satisfy. They make a great fuss about having anyone other than their daughter or whoever it may be caring for them. If the arrangements are not satisfactory, the carer will be out of the job in no time because he or she will not be able to put up with the rows at home. The proposal does not create a precedent and the Government could go to at least 48 hours, preferably more. That would help in a number of ways.
Lord Swinfen: My Lords, grouped with this amendment is Amendment No. 23A, which stands in my name. I do not know which is the better of the two amendments. Perhaps an amendment should be made to this part of the Bill; perhaps an amendment should be made to Clause 6, where my amendment is placed
Anyone who has any experience of trying to arrange care knows that it can take a great deal longer than 48 hours to obtain satisfactory care. In this instance, I declare an interest because the association for which I work provides carers for a number of disabled people living independently in their own homes. My wife is also involved in providing care for various people.
I do not know whether your Lordships have any experience of trying to get hold of social workers on Friday afternoons. It is probably easier to get blood out of a stone, because Friday afternoons are for case work conferences. It is terribly difficult to get through to social services to speak to anyone responsible. In fact, if a new case crops up which gets through to them, it is normally passed on to a charitable organisation such as SSAFA in the hope that it will do the work that afternoon and over the weekend.

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In addition, some carers have very complicated arrangements which involve a number of people. Those arrangements all need to be unravelled before the carers can go to work and suitable arrangements put into place. As other noble Lords have said, in particular in relation to an older person, it is extremely important that the person being cared for at the very least accepts, but preferably gets on with, those who are caring for him. We all become more difficult to please as we get older. I admit that. My family will tell you that it is increasingly difficult, not just year by year but week by week.
As I said, discussions with other carers may take longer than 24 hours. A number of carers are also caring for more than one person. According to the General Household Survey in 1990, one-fifth of carers are caring for at least two people. That means that the process must be gone through not once but twice.
I have an example, with which I shall not bore the House, of one carer who looks after people in two different parts of London and is therefore liaising with two different sets of social services departments. London is quite small compared with many other parts of the country. Time and travel are also factors to be taken into account; so is being able to contact the relevant person when necessary and not being told that he is out on a case and will not be back until the following day or that there is a stand-in operating for him who knows absolutely nothing about the case being dealt with.
In practical rather than legal terms, 48 hours is the very least that is required. I hope that my noble friend will be able to give some sort of sensible and satisfactory answer to this amendment.
Lord Inglewood: My Lords, an effective availability condition is vital for any unemployment benefit. 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 should normally be available to take up employment immediately.
We recognise, however, that it would be unreasonable to expect people with caring responsibilities to meet the same availability arrangements as other jobseekers. That is why in JSA we shall be introducing for the first time a specific easement of the availability rule to allow general restrictions on the period that carers should have to be available during the week. They will be able to limit the number of hours that they are available, below the minimum of 40 hours to be applied to other jobseekers, in line with their caring responsibilities. That is significant recognition of the importance which we attach to caring responsibilities in society.
It may also help if I draw attention to the way the new rules will fit together to the advantage of those with caring responsibilities. In practice, many carers will be able to arrange the terms of their restrictions on availability so that they will not be required to be available on several days in the week. That will not affect their entitlement to JSA. Since no carers will be expected to be ready to take up work on a day on which they had agreed that they would not be available, the practical effect of those new flexibilities will be that in many instances carers will be given time to respond to offers of work.
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Those are substantial easements from the general availability rule to meet the needs of carers. However, I have reflected carefully on the amendments put forward by the noble Baroness, Lady Hollis, and my noble friend Lord Swinfen. Both recognise that people with caring responsibilities who wish to participate in the labour market will, as now, need to plan in advance the best way of rearranging their caring responsibilities to fit in with any future employment that they may be offered. Both recognise, however, that carers require no less time than voluntary workers to put their plans into place and take up work or attend an interview.
I have listened carefully to what the noble Baroness and my noble friend have said. I am pleased to be able to make a commitment that carers should, like volunteers, have a full 48 hours' notice. Those are details to be covered in regulations under Clause 6, as we have already made clear. If the noble Baroness and my noble friend will agree to withdraw their amendments, we will undertake to bring forward the appropriate regulations to give effect to what their amendments seek to achieve.
8.15 p.m.
Baroness Hollis of Heigham: My Lords, I thank the Minister for that reply with more than usual sincerity. I also thank those noble Lords who took part in the debate. It is clear that the Minister has considered this matter since Committee, but if he had not done so I am sure that the quality of contributions which we have heard this evening from all sides of the House, from noble Lords who spoke with far greater expertise than I have of the practical problems of caring, would have persuaded him. However, I am grateful and this will be warmly welcomed by the carers' associations. I obviously do not need to press the amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 and 5 not moved.]
Earl Russell Earl Russell moved Amendment No. 6:
Page 1, line 23, at end insert:
("( ) A jobseeker's allowance shall not be suspended, under section 18 of this Act, for a period exceeding six weeks").
The noble Earl said: My Lords, this deals with disentitlement. It provides that total disentitlement should not continue beyond six weeks.
Like many other amendments that we have discussed today, it is extremely modest and should cause no great problems. Before we attempt any consideration of disentitlement, we should know what happens to those who are disentitled to benefit. As far as I know, the Government have made no serious attempt to find out the answer to that question. We are always told that the Department of Social Security does not make policy on anecdotal evidence, although since the habitual residence regulations I am not quite sure whether that is still the case. But here, as far as I can see, the department has no evidence at all, not even anecdotal evidence.
If we are to assess whether disentitlement is good and to what extent or for how long it is good, before extending it, as this Bill does, we need to have a faint idea of what is the effect. Surely that is not an over-ambitious request.
There are some obvious hypotheses which can be formed, some of them supported by a MORI report on severe hardship payments for 16 and 17 year-olds, which I believe is the only serious research on the effect of disentitlement that we have. This evening we have heard about the risks of prostitution. They are real. There is a 17th century case of an Oxford head of house who died, having regrettably been swindled by the trustee of his pension fund. According to Anthony Wood:
"Whether the females lived honestly, 'tis not for me to dispute it".
Many times I have asked the Department of Social Security to carry out some serious research into the problems of debt among those on benefit. They can be serious and a real obstacle to returning to employment.
As regards problems of health, there has been a recent Crisis report on the spread of TB among the homeless. The figures are quite alarming. In 1983, the average rate of TB among the population in general in south-east London was 80 per 100,000. In hostels and day-care centres in London in 1994, it was 2,000 per 100,000. That is not just a local London result. In Glasgow hostels, again among the homeless, the rate was 1,456 per 100,000. There is similar evidence from New York.
Of course, TB is an extremely expensive illness. The Minister may well find that if he goes in for increasing disentitlement in the way that this Bill does, he will spend more money than he saves.
The Minister has argued throughout, and most notably on the second amendment today, for moving away from a concept of entitlement towards a very much more strictly conditional attitude to benefit. Nobody wishes to encourage people on benefit to do nothing, to take advantage, and so on. Provided that it is compatible with subsistence, a benefit penalty is perfectly defensible. But I believe that the Minister introduces total disentitlement at his own peril. When he goes home this evening, I hope that I do not have to mean those words literally. I beg to move.
Lord Swinfen: My Lords, I believe that it is a very good idea to have a time limit for which the allowance should be suspended. But being somewhat cynical I wonder whether a time limit as long as that suggested is wise. The very fact that there is a limit on time often means that that time is worked right up to before the decision is finally made and the suspension removed. That is something about which one would have to be most careful.
Lord McCarthy: My Lords, the object of the amendment is to reduce the maximum period under the Bill of 26 weeks for which there can be a suspension. One is bound to ask the Minister to explain and defend the present period. Why is it unreasonable to propose that the allowance should not be suspended,
"for a period exceeding six weeks",
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under Clause 18 of the legislation? Why is that considered to be unreasonable? Presumably it is because the present maximum period of suspension proposed under the Bill is required. It is required because, on average, we are told that it takes that long. On 20th April (at col. 592 of Hansard) someone on this side of the House asked the Minister what was the average waiting time on appeals, some of which would be subject to the suspension procedure. As I understand it, the Minister said that it would be too expensive to find out. Nevertheless, the average time on all appeals was 22.4 weeks. The Minister also said that the adjudication officers processed to the independent tribunal service in 21 days on average. Therefore, what is the 26-week period for?
The Minister was kind enough to send me a copy of the operational plan for 1995–96. It is interesting to note that, whereas there are targets for virtually everything—for example, placings, interviews, the non-pursuance of claims, the dispatch of benefits, the number of frauds and the size of efficiency savings—there is nothing about reducing the appeals period so that it would not be so necessary to have such a long period of suspension. It seems to me that it is up to the Government to explain why the amendment is unreasonable.
Baroness Williams of Crosby: My Lords, there is one further aspect of the amendment to which I should like to draw the Minister's attention. It is an aspect which has not yet been widely discussed in our debates. It is perhaps a little late to start now with a new subject, so I shall do so only briefly. I am concerned particularly about subsection (5) (b) of Clause 18 and the circumstances in which a jobseeker's allowance is not payable where, your Lordships will recall, the penalty could be one of 26 weeks. My point relates to the particular circumstances listed under subsections (5) and (6).
Subsection (5) is where regulations will prescribe the conditions rather than subsection (6) which is subject to adjudication. I am more concerned with subsection (5) because it falls within the area of regulations rather than that of adjudication. My particular concern under paragraph (b) is that the whole set of conceivable penalties applies in the case of someone who has neglected to avail himself of a reasonable opportunity to take a place on a training scheme, or who has given up a place, failed to attend or lost his place, and so on.
Will the Minister consider the fact that in subsection (5) (b) we have virtually withdrawn all the normal sanctions of the market, which are that the consumer can in certain circumstances walk away from something or a product which is utterly unsatisfactory? He or she cannot be compelled to buy, swallow or otherwise take on board an unsatisfactory product. But why should the product be unsatisfactory? Of course in many cases it will not be. Indeed, there are many very good training schemes and there are some excellent ones; but there are also some very bad ones. I speak as the Minister who first introduced the youth opportunity scheme, which was the very beginning of the process under which we said that 16 to 18 year-olds should be trained and should normally not be expected to be part of the labour market. Therefore, I know of what I speak. I have been

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to visit many training schemes and have seen some quite frightful ones, including one where the entire time was spent on arranging paper flowers and where the contractor still got paid for such training.
However, my particular concern is encompassed in a most interesting article which appeared in the Financial Times on 3rd May on the subject of TECs. I shall quote just one short passage from it:
"In the current financial year Tec budgets have been slashed overall by as much as 19 per cent … with a 24 per cent reduction in expenditure on training the long-term unemployed".
The article continues:
"Tec executives [are concerned about] the new funding regime introduced this year by Mr. Portillo. Aimed at ensuring greater value for money, they believe it will make training disadvantaged groups, such as the physically and mental disabled, less attractive".
Therefore, I should like to ask the Minister for an assurance on the issue. What happens if a young person has either been offered a wholly unsatisfactory training scheme or has found it most difficult to get on such a scheme because of the reductions in the budget mentioned by the Financial Times? Further, what happens if such a young person wants to point out that from his point of view the scheme is serving no useful purpose whatever and that he is simply compelled to be there by the threat of withdrawal of benefit for as much as possibly 26 weeks? I am not saying that that would happen in every case, but that is the maximum sanction.
Will the Minister at least consider before Third Reading whether there might be some mechanism—and the Citizen's Charter springs to my mind—whereby a young person on an absolutely unsatisfactory training scheme should have some redress to an employment officer or an adjudication officer so that he cannot be compelled to continue such a course which, because of present arrangements under which contractors are paid, will mean that the contractor will continue to be paid as long as that young person is on the course? Ministers are withdrawing, although I am sure that they are not doing so conscientiously or deliberately, the entire consumer sanction. It seems to me that we should not bring up our 16 and 18 year-olds to recognise that there is no power whatever in the free market for them to have the consumer goods that they require and from which they will benefit.
Lord Monkswell: My Lords, perhaps I may also intervene in the debate. I should like to suggest that one of the things that the Government need to consider is the object of the exercise in terms of suspending benefit. For example, is it to save money? In that case, the longest period of suspension of benefit—up to 26 weeks—may be quite sensible from the Government's point of view, and I am trying to look at the whole matter from their point of view. Alternatively, is the object to persuade jobseekers to take the course of action, and change their approach to the matter in a way that the Benefits Agency thinks will be positive in terms of their being more acceptable to the job market?
If the object is the latter—I hope that the Government will say that it is not the former; that it is not just an exercise in cutting expenditure—and what the Government are seeking to do is to persuade jobseekers to change the way that they approach things and thereby
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apply for more jobs, change their appearance or appear at certain times in a timely manner, and so on (in other words, all the things that the Government have mentioned as giving rise to the need for such sanctions), surely it makes sense that the sanction should be similar to what one might describe as a short, sharp shock. Moreover, surely such sanctions should be reviewed after a fairly short period so that the Government or the civil servants involved in the whole process can make a judgment as to whether they are actually working.
On that basis surely there should be mechanisms in place that enable an early review of a case. I am thinking in terms of weeks rather than months. I am thinking in terms of a period of one or two weeks alter which the Benefits Agency, or whoever it may be, could hold an interview with a jobseeker and ask him or her whether he had changed his way of going about things. First, there needs to be a mechanism for reviewing a case and, secondly, there needs to be a carrot, if you like, in front of the jobseeker in the form of an employment officer saying, "If you change your situation, you will get your jobseeker's allowance back". It is important that we look at the shortest possible suspension period rather than thinking of a longer suspension period. I hope that the Government will respond to those comments.
8.30 p.m.
Baroness Seear: My Lords, it is a great waste of time and money and an employer's time and money if people are being trained who are not suitable for the training programme to which they have been sent. That can easily happen. A bad mismatch between training and a trainee is expensive and time consuming. It is much better that the trainee leaves the training if it is not right for him. This could arise as a result of mutual agreement. It may be well understood that the trainee should not be attending a particular course of training. No employer and no trainer wants to have someone on a training course when that course is unsuitable and the trainee does not wish to attend it. The penalty for leaving training in that situation should be a minimum and not a maximum penalty.
Lord Inglewood: My Lords, I recognise that the noble Earl is concerned with the length of sanctions in Clause 18 when benefit will not be payable. I regret to have to tell the noble Earl that I cannot accept a maximum of six weeks. Our experience in the 1980s showed that maximum periods of disqualification of six and then 13 weeks were simply not effective in discouraging people from making themselves unemployed. Returning to six weeks as a maximum would send the wrong signals to unemployed people. We would, I am sure, again see a rise in the number of people leaving jobs of their own accord without making suitable arrangements for their future employment or income, or refusing for no good reason to take jobs offered to them.
It is important, however, to recognise (hat a sanction of 26 weeks is not the norm. Where adjudication officers find that there are mitigating circumstances they do not impose the maximum sanction. I wrote last week to the noble Baronesses, Lady Hollis and Lady Seear, with the

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information that the average length was significantly less than 26 weeks. Only 21 per cent, of the cases leaving voluntarily attract a maximum sanction; only 40 per cent, of misconduct cases do so. That gives a clear indication that adjudication officers are weighing up the complex range of circumstances behind any decision to leave a job.
As regards the point made by the noble Lord, Lord McCarthy, where you have an average, that is the average of a scatter or a range with a top end and a bottom end. He also made a point about the time taken in clearing appeals. The important fact here is that that is dealt with by the independent tribunal service. We are trying to establish whether ways can be found to speed up the process. Ministers have discussed the importance of this work with the president of the Social Security Appeals Tribunal and are committed to making improvements. Progress is being made. Clearance times for appeals against unemployment benefit decisions—
Lord McCarthy: My Lords, I want to get the noble Lord right. Is he telling me that in 1995 there are people who say, "I will not leave this job voluntarily because I could be disqualified for 26 weeks", whereas if they could only be disqualified for six weeks they would leave their jobs? Is the Minister saying that that applies in 1995?
Lord Inglewood: My Lords, I was merely pointing to the evidence that has come to the attention of the Employment Service which lies behind the decision to adopt a flexible approach.
Lord McCarthy: My Lords, what evidence?
Lord Inglewood: My Lords, I referred to it. For the reasons I have given, I cannot accept an amendment from the noble Earl which would seek to alter the current maximum of 26 weeks. The noble Lord also mentioned suspension, or the non-payment of benefit. We have made it perfectly clear, both in this House and in another place, that payment of JSA will not be suspended pending the adjudication officer's decision. In the case of sanctions under Clause 18, benefit will continue to be paid until the adjudication officer has made a decision.
Amendment No. 77 removes the stipulation that the minimum period of sanction that can be prescribed under Clause 18(2) is one week, and the maximum period that can be prescribed is 26 weeks. As your Lordships will be aware, these sanctions relate to the circumstances set out in Clause 18(5); that is, refusal or failure to carry out a jobseeker's direction or to attend a training scheme or employment programme. But let me assure your Lordships that the Government's intention, clearly set out in the White Paper, is that the regulations will establish a two-week sanction for these circumstances, rising to four weeks if the claimant persists in his refusal or failure. We believe it is right to set a clear penalty so that unemployed people will be under no doubt of the consequences if they reject our help and assistance without good cause.
Baroness Williams of Crosby: My Lords, as the noble Lord is discussing subsection (5), I hope he will forgive me for returning to this matter. I strongly suspect that the officials in the Box did not expect to hear the question that I raised. Therefore, I hope the Minister will address it for a moment. I am not asking for an immediate answer. However, a serious situation arises from the absolute inability to be able to exercise a right of judgment that the training course one is on is totally useless to oneself and possibly also to the employer. I want to press the Minister on the point that there should be some channel under which a responsible and decent young man or woman on a training course which is wholly unsuitable should be able to complain or to raise the issue before the process of even a two or four-week sanction starts to operate. I am sure that the noble Lord, Lord Inglewood, will understand that this is a reasonable question. It arises from my own experience of some terrible training schemes being run alongside some good ones.
Lord Inglewood: My Lords, I was hoping to try to elaborate on the reply that I had half given to the noble Baroness. She is absolutely right to say that this is an important point. There are two categories of people we are talking about. For those who fall within the scope of Clause 18, the provision which applies in these circumstances is that of good cause. That provides a safeguard for the person concerned. However—perhaps this is more important—one of the important differences that will be introduced by the jobseeker's allowance is the relationship that will exist between the jobseeker and the relevant employment officer whom the jobseeker will meet on a regular basis and with whom he will be able to discuss his particular problems and predicaments as they emerge. I believe that built into the system there is this beneficial characteristic of increased contact with the system.
As regards the category of young people we were discussing earlier, not only is there contact with the Employment Service if they come within the scope of JSA, but there is also the Careers Service, the TECs and possibly an employer, if that is appropriate, with whom they can discuss their problems. I do not believe anyone in this House would dissent from the basic proposition which the noble Baroness, Lady Seear, made; namely, if one mismatches trainees and training, one will not take matters forward.
As the amendment appears to recognise, we must retain flexibility in the whole matter we are debating. That is particularly important bearing in mind the comments of the noble Earl, Lord Russell, and my noble friend Lord Swinfen. If there are matters which would subsequently lead the Government to think that there was a requirement to adjust the periods of sanction, we believe that the way we have arranged matters will enable that to be done satisfactorily and easily. If this period is to be revised—
Baroness Seear: My Lords, the Minister is being understanding about the points we have made. I wonder whether between now and Third Reading he could consider the possibility that where the trainer or the employer and the trainee agree that the training on

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which the trainee has embarked is not suitable, there could be no penalty, or a greatly reduced penalty, and that that could be written into regulations if not on the face of the Bill. That seems a sensible arrangement. The people involved in the training could reach an agreement that it is not appropriate. If that is mutually understood and agreed, surely there could be a safeguard of the trainee's position.
Lord Inglewood: My Lords, I shall certainly reflect on the comments of the noble Baroness. However, I suspect that what she suggests may not be necessary.
To return to the amendments, we believe that we need more flexibility than is offered by a maximum of six weeks. I can confirm that we have no intention of ever prescribing a longer period than 26 weeks. For that reason I urge the House, if we vote on the matter, to reject the amendment.
Earl Russell: My Lords, I am extremely grateful to all the noble Lords who supported the amendment. I am also grateful to the noble Lord, Lord Swinfen, for what I might describe as his very supportive opposition to it. I take his point. I agree with it, and in a perfect world I might have drafted the amendment accordingly.
I am grateful to the Minister for his attempts to accommodate the points made by my noble friends Lady Williams of Crosby and Lady Seear about training. Those are important points. No useful purpose is served by training which does not train.
As recently as last Sunday one of the people in our Whips' office, when coming to see me about amendments, spoke while waiting on the station platform to someone who attends a job club. The person described how he was being taken through a long process of identifying colours. He was not being tested for colour blindness. That sort of thing is a waste of time and a waste of public money. It serves no useful purpose except the creation of a hoop through which people have to jump. Therefore, it would be very much appreciated if the Minister would look into the matter.
Some time ago my noble friend Lady Seear produced a case of somebody who wanted youth training as a garage mechanic and was offered training as a hairdresser. That is not suitable, and the person will not learn anything from it.
The basic bones of the reply underneath the Minister's attempts to be reasonable in every way he could were, nevertheless, not acceptable. I do not believe that he expected them to be acceptable any more than I expected the amendment to be acceptable. The Minister said that during the 1980s the Government discovered that a benefit penalty of six weeks was not effective. Has the Minister considered whether that may possibly have been because there were no jobs for people to find? Has the Minister considered that it may have been partly due to the fact that it is not only Cabinet Ministers who ought to have the human right to say that there are some circumstances in which they cannot serve with honour? I was going to use the phrase "the dignity of labour", but in the end I am thinking of human dignity. That is the right of every person on earth, and beyond a certain point, if one imposes sanctions on people who feel that they cannot stay in a
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job, one deprives them of their human dignity. One comes very close to crossing the line that separates labour from slavery. That causes us deep concern.
I have listened to the Ministers throughout this evening. I hear a rapidly changing attitude to benefit, in particular, a rapidly changing attitude to the concept of entitlement in which this Bill is itself a milestone. I hear the end of the Beveridge concept of the safety net to which every person in the country is entitled. That is not a concept that Beveridge invented. To my certain knowledge, it goes back to the Poor Law of 1601. I believe that it goes back a great deal further than that.
Therefore, in this very conditional approach to benefit, there is almost a justification by works, earning benefits step by step. We hear a rejection of many centuries of our culture. That causes me deep concern. It is an abdication of responsibility, and an abdication of responsibility which makes us very much less one nation than we were previously. If the Government abdicate responsibility, what can they say if the unemployed abdicate responsibility equally? Nobody should abdicate responsibility, and if we: do not want other people to do so we should set an example.
I shall not push the matter to a Division tonight, because of the generosity of the Minister's response to those points on which he was free to think about the matter. I beg leave to withdraw the amendment, but we have not heard the last of it.
Amendment, by leave, withdrawn.
8.45 p.m.
Clause 2 [The contribution-based conditions]:
Lord Inglewood Lord Inglewood moved Amendment No. 7:
Page 2, line 19, leave out from ("not") to end of line and insert ("entitled to income support.").
The noble Lord said: My Lords, in moving Amendment No. 7, I shall speak also to Amendments Nos. 8, 9, 10, 111 and 112. These amendments are a small tidying-up exercise which align the wording of the Bill with that which currently applies in the Benefits Act.
The provisions affected are intended to prevent the making of duplicate awards of JSA and income support to the same claimant, or duplicate awards of benefit to members of the same family. As your Lordships know, both JSA and income support are intended to cover the needs of the whole family, so clearly that would be inappropriate.
The current wording in the Bill does not quite achieve that, as it refers to benefit being "payable". The term "payable" implies that an award of benefit has been made and benefit is due to be paid to the claimant in a given week. In most cases, if the claimant is entitled to receive JSA or income support benefit will normally be payable. However, in a small number of circumstances, for example, if a claimant is undergoing a sanction or if the sum awarded is less than 10p, the benefit is not in fact payable. In those circumstances it would be possible for the claimant or another family member to have a new award of benefit while the first award was still open. There is a risk of confusion and overpayments where that occurs.
By referring to entitlement that confusion is removed. However, the amendment in no way removes the choices open to the claimant and his family to choose the benefits and claiming arrangements they prefer. If a claimant wants to switch between income support and JSA he needs only to terminate one claim before the next is made. The same applies if a couple wish to swap arrangements for claiming JSA. I commend the amendments to the House. I beg to move.
Lord McCarthy: My Lords, although I consider that the concept of entitlement is somewhat hypothetical, we do not oppose the amendment.
On Question, amendment agreed to.
Clause 3 [The income-based conditions]:
Lord Inglewood Lord Inglewood moved Amendment Nos. 8 to 10:
Page 3, line 1, leave out from ("not") to end of line and insert ("entitled to income support;").
Page 3, line 2, leave out from ("family") to end of line 3 and insert ("one of whose members is entitled to income support;").
Page 3, line 4, leave out from ("family") to end of line 5 and insert ("one of whose members is entitled to an income-based jobseeker's allowance;").
On Question, amendments agreed to.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 11:
Page 3, line 7, after ("work") insert ("provided that the remuneration exceeds the applicable amount (determined in accordance with regulations under section 4) for the claimant and his family, regardless of the hours worked").
The noble Baroness said: My Lords, I hesitated because I hoped that the Minister would move this amendment among his blockbuster.
I am sure that Amendment No. 11 will commend itself to the Minister because it keeps people in work and cuts the social security Bill—objectives which I am sure we all share. It concerns the adult dependency hours rule, which I find one of the most perverse twists of the Bill.
Let us go back a step. After six months a claimant is moved on to means-tested JSA. His partner's earnings are taken into account, as are their savings. As the benefit is income-related, some 70,000 people will lose it altogether. On this side of the House we deplore the introduction of means testing after six months rather than a year. However, at least the means-testing rules are coherent. They are income related. They are coherent until one comes to the cruel twist of the hours rule. Let me explain.
Two couples live side by side. In each family one partner earns £63 and the other partner receives contributory JSA. Neither couple has children. In one household they move on to means-tested JSA. In that first house the woman is earning £63 a week in a job, say in a shop, which pays £3.50 an hour. She works 21 hours a week. Her partner can then claim a further £21 a week in means-tested JSA after deductions. Their total income is £83.
At the house next door the woman also earns exactly the same sum, £63. However, she has a harder time because she receives only £2.50 an hour for cleaning in the shop in which the other person is an assistant. She
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therefore works 25 hours a week, not 21 hours, for the same money. It is heavy cleaning work; she is tired. But because she works more than 24 hours, he can receive nothing from JSA or income support because of the hours rule. Therefore the person who earns £63 has it set against JSA and receives an additional £20—a total income of £83, as well as access to the back to work bonus. Next door the person earns £63, receiving no JSA, and has a total income of £63. She receives £20 less than her neighbour and has no access to the back to work bonus. Why, my Lords?
JSA is not only a means tested benefit. It has to face another, in my view irrelevant, hurdle—the hours rule. If you have no children and work for 24-plus hours, you lose all entitlement to means-tested JSA irrespective of whether the pay is £20, £60 or £80. Literally, the woman in the second household cannot afford to work because we have constructed for her a marginal tax rate of over 120 per cent. She works for £63 and loses £73. The couple cannot afford to do that.
The hours rule is sensible for couples with children because it marks the point at which you come off income support and go on to family credit, whereupon your income is topped up. We have no problem with that. But where there are no children and therefore no family credit, the hours rule still applies. The consequence is that the hours rule cuts right across the income related rule to ensure that many people who are below income support level cannot be topped up. As the Government have admitted, 60,000 couples will be below income support level because they are foolish enough to continue working.
No couple can live on such an amount. What happens, my Lords? If the partner cannot reduce her hours to below 24, she will come out of work because to work will make her poorer. Therefore, instead of paying that couple £20 in addition to the £63 to top them up to the JSA level, we now pay them the JSA of £73 instead. That does not top up the earnings; it replaces them. We then make it harder for either person caught in the benefits trap ever to return to work. Are we not clever? We have penalised work; we have penalised the very low paid; and we have added to the benefit bill all at the same time. We are very clever; we should be proud of ourselves. It is all because of a redundant and unnecessary hours rule.
If JSA is to be means tested after six months, so be it. But for those without children we should not add the double hazard and double penalty of an hours rule. The provision is redundant. It is cruel, costly, cynical and short sighted. It is stupid too. I hope therefore that the Minister will accept the amendment. It will keep people in work and save us all some money. I beg to move.
Lord Skelmersdale: My Lords, on the face of it, the noble Baroness's amendment has much merit. I go along with all the arguments that she adduced for childless couples. But, unfortunately, the amendment would need some reworking because it refers to "the claimant and his family". A family is more than a couple.
Lord Swinfen: My Lords, what is the point of the hours rule? The important point relates to the income of the couple, not just to the hours worked. Regarding the

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person who works long hours at low pay, it may be the only skill that he has. He may be working extremely hard to support his family. He should not be penalised.
When he replies, can my noble friend tell us what research has been undertaken into the cost or savings of abolishing or retaining the hours rule? When drawing up the Bill, no doubt my noble friends have undertaken research to ensure that the legislation works sensibly.
Earl Russell: My Lords, it is an important amendment. The noble Baroness outlined her arguments about the effect of the Bill on couples as long ago as 1st December when she spoke on the uprating Statement. That was a remarkably able speech, as was her speech on the subject at Second Reading.
I do not know what I would have done about these points had I been a Minister. However, I know that I would have asked long ago for some fairly serious work to be done on the force of the points made and various alternative ways of meeting them.
With the Bill we have constructed an unintended consequence which may be somewhat serious. I listened to the Minister in Committee defending the hours rule. He seemed to me to be aware that he was in some difficulty. I believe that there is room for a good deal of thought on the subject.
There is room also for a good deal of thought about the effect on couples. The noble Baroness concentrated on one potentially harmful effect—getting people to give up work. However, it is not the only harmful effect of the measure. Couples are put into a situation where it is not economically sensible for them to continue to work as a couple. But there is no bar on them continuing to work separately. The structure that the Bill sets up is also an incentive to the break up of marriages. I am not nearly as panicked about the spread of divorce as are some noble Lords. But I believe that where people wish to remain married, forcing them apart by the use of economic tools is a very high crime indeed. It is a wanton interference with an attempt to live a loving and stable private life. That is something that legislation should not do.
When the Minister replies, I beg him to indicate that there is serious thought about the pit into which the Government have inadvertently walked and that they are seeking some way of getting out of it. I hope that they will remember the first law of the noble Lord, Lord Healey, on holes: when you are in one, stop digging, and then you might get out some day.
Lord Mackay of Ardbrecknish: My Lords, let me say first that I have some sympathy and agreement with the noble Baroness in that we both want the benefit system to support and reinforce incentives for those who want to work. However, while I am sympathetic to much that she said, I do not think we should exaggerate the problem here. The great majority of claimants—even single or childless claimants—will always be better off in work than on benefit. They will usually be better off financially in the short term, and for many people a relatively low-paid job may be the first step to a higher paid job in the longer term. The Government have taken important steps to make sure that for most people there is a clear financial advantage in working. The reforms
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of the in-work benefits at the end of the 1980s and the introduction of family credit have had a major impact on helping people to take and stay in relatively low-paid work. We are taking further steps with the introduction of JSA to help partners of benefit claimants to take and stay in work. Ten thousand to 20,000 couples are expected to benefit from the change in the couples hours rule in JSA and IS, increasing from 16 to 24 hours a week with the introduction of JSA, and a partner's earnings will help to build up the back to work bonus.
Despite my sympathy for the noble Baroness's aims, I cannot accept that we should guarantee that claimants will always and in every case be better off in work than on benefit. There are some people with high mortgages, for example, for whom that guarantee would effectively rule out almost every job that was available in their locality or at their skill level. At the same time, taxpayers in relatively low paid work would be financing the system which kept that claimant on benefit. I do not believe we can go as far as the noble Baroness suggests in her amendment and actually offer people a guarantee of a minimum income through the benefit system in the way that her amendment would like. The jobseeker's allowance is designed to help unemployed people and their families. As I said before, it is a long standing principle in income-based benefits that couples are treated as a single unit and benefit is payable only if neither is in remunerative work. Of course, I accept that the rule means that a number of couples—and I think it would be a tiny minority—could find themselves working over 24 hours with pay, as described by the noble Baroness. But I believe that it would be a very tiny number of people in that position.
9 p.m.
Baroness Hollis of Heigham: My Lords, if the Minister will allow me, I gave the Government's own figures and I am sorry if he missed them. From the Government's figures it is not a tiny minority; the figure given in the other place was that 60,000 couples would be affected.
Lord Mackay of Ardbrecknish: My Lords, I suppose it depends on how one defines a minority as against the 4 million people who are unemployed and making claims for benefit who come on to the system in one year.
Lord McCarthy: My Lords, is the Minister telling us that there are 4 million unemployed? We have been saying that for years.
Lord Mackay of Ardbrecknish: My Lords, that is a clever point but the noble Lord knows very well that I referred to the 4 million earlier this afternoon. Perhaps he was out of the Chamber at the time but the 4 million are the people who make new claims during the year. Perhaps I may remind the noble Lord that many cease being unemployed. Unemployment has fallen by over 600,000 since the end of December 1992. The figure is continuing to fall—a fact which probably does not particularly please the noble Lord because it takes away one of his constant complaints about the Government. That was a nice intervention, but I fear that it was on entirely the wrong point.

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My noble friend Lord Swinfen asked about the cost of abolishing the rule. It is extremely difficult to give a reliable cost, but the figure could be between £20 million and £50 million, if we assume that fewer than half the employed earning couples and fewer than a quarter of the self-employed—
Earl Russell: My Lords, perhaps I may ask the Minister to withdraw the charge that the fall in unemployment does not please those of us on this side of the House. It pleases us but we would like to be even more pleased.
Lord Mackay of Ardbrecknish: My Lords, I am delighted to say that of course I know that it pleases noble Lords on the other side of the House just as it pleases us. I trust that it will continue to please us all for many months to come.
However, to return to the question, as I mentioned earlier in my speech we have tried to address the problem by the introduction of family credit. As your Lordships know, we have announced plans to pilot a new in-work benefit for single people and childless couples which would help those without children who cannot qualify—obviously because they do not have children—for family credit. That is the way in which we would like to tackle the incentives problem which I agree exists for a small minority of people. With that explanation of how we hope to tackle the problem I hope that the noble Baroness can withdraw her amendment.
Lord Swinfen: My Lords, before my noble friend sits down, I asked him what was the purpose of the hours rule. I do not understand it. I should have thought that the finances of the couple were the most important point. What is the purpose of that rule? It seems to me to be totally illogical.
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, perhaps I may answer my noble friend. In the course of my speech I said that it is a long standing principle in income-based benefits that couples are treated as a single unit and benefit is payable only if neither is in remunerative work. On the point about the 16-hour rule, which now becomes the 24-hour rule, it is a lessening of the condition that the benefit is paid for couples who are unemployed. My noble friend still looks puzzled. The purpose is to encourage people to take up part-time employment. But clearly, as they move towards full-time employment, they cease to be unemployed as a couple. I should have thought that was self-evident. One has to draw the line somewhere. We are moving the line to 24 hours. I should have thought that was a reasonable dividing point between defining people as being in part-time work and beginning to become full-time workers.
Lord Swinfen: My Lords, with the leave of the House, I am sorry but I still do not understand how the number of hours of work during the week at a very low wage affects the income. It is the income of the couple that is important. I do not understand why working more than a certain number of hours at an extremely low wage should deprive someone of benefit.
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, perhaps I may help my noble friend. It seems to me that there are two ways of considering work. I should have thought that the number of hours worked was a factor. As my noble friend will recall, we define 40 hours as the kind of availability that people should have for work. I have made the point that as people increase the number of hours they work then surely my noble friend can see they move from a position where they are doing part-time work to where they begin to work longer than is defined, in the normal sense of the word, as being unemployed. I am sorry that I cannot help my noble friend further.
Lord Swinfen: My Lords, with the leave of the House, we are not talking about the jobseeker, but about the jobseeker's partner. I understand that the jobseeker must be available to work, but not his partner.
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House again, I have said twice that it is a long standing principle in income-based benefits that couples are treated as a single unit and benefit is payable only if neither is in remunerative work.
Baroness Hollis of Heigham: My Lords, I do not usually say this but I believe that the Minister is totally unpersuaded by his own case and he cannot therefore expect to persuade us of it. He has accepted almost every argument we have adduced. For example, he said that we want people to be better off in work than in benefit. The fact that the Government not only support family credit, as we do—and the noble Lord, Lord Skelmersdale, is absolutely right, we are talking about those without children—but also that they propose to pilot an in-work benefit for childless couples exactly addresses our problem. However, what the Government will do is to introduce a new benefit extending family credit. Incidentally, it would help if the Minister could tell us the cost of that as against the cost which he gave his noble friend Lord Swinfen of £20 million to £50 million for this proposal.
The Government propose to introduce a new in-work benefit when all they have to do for a large number of people is simply to abolish the hours rule. That rule was introduced in 1988. It has not been written in tablets of stone ever since the Victorian or the Elizabethan Poor Laws. I should have thought that all the evidence showed that the system is not working. For childless couples the hours rule forces them to choose between working and not working. My example was of them working for £63 a week, or not working and having benefit as a couple for £73 per week. Alternatively, as the noble Earl, Lord Russell, said, they could break up as a couple. Those are the choices they have. To get around that dilemma—and the Minister conceded tonight that it is a dilemma—the Government will bring in some fancy new benefit, an in-work benefit which will apply to many more people, in order to deal with the problem when it could simply be achieved by repealing the 24 hours rule.
I realise that this is not Committee stage and I apologise if I am stretching the tolerance of the House. With the leave of the House, will the Minister explain, since he introduced the material in connection with the

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new in-work benefit for childless couples, the advantages of that over scrapping the 24-hour rule, as we suggest tonight? Is it cheaper? Will it help more people? How quickly can it be applied, and will it, or will it not, help more people back into work? Can the Minister help us on this point?
Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, I understand that this amounts to Committee procedure and I shall go no further with this matter. The point about the test that we shall apply in relation to family credit type benefit for single people and childless couples is that it will affect not just a partner but the individual himself. It will not simply affect the partner rule.
As I explained, the partner rule has to do with the fact that the unemployed couple are treated as a couple. When they claim benefit they are treated as a couple, and therefore there has to be some kind of dividing line. I accept that the noble Baroness thinks that our dividing line is unacceptable, but I explained why her amendment would render some people who receive very high income support—for example, mortgage support— virtually unable to take any job because they would not be able to get a job that would give them more income than their benefit.
Baroness Hollis of Heigham: My Lords, I do not understand that point at all. The new changes in the mortgage system would overcome the very problem that the Minister adduced. That is not a relevant argument. The Government have taken steps to overcome that problem for people going onto income support. The Minister is saying that he prefers to pilot an in-work scheme that will top up the joint income of one person in work rather than abolish the hours rule so that the person in part-time work can set that against a JSA in a pound for pound deduction and then top up.
The advantage of the second path, namely abolishing the hours rule, is that it will indeed do what the Minister wants. It will allow one person in a partnership to use part-time work as a stepping stone to full-time work or to an adequate income. If the 24-hour rule is abolished, you are more likely to find people in relatively unskilled, relatively low-paid part-time work in the hope and expectation that it may be a springboard. If the rule is kept in place, you cannot reasonably expect anybody rationally to choose to stay in work, even if it is a passport to full-time work, and knowingly be poorer as a result. The Government are imposing this choice on people: stay in low paid work, or leave work and get a more adequate benefit. Can the Government be surprised when people do the rational thing and go for the benefit, which is £10 or £15 higher, rather than for work that brings in £10 or £15 less? The Government recognise that. They are to pilot an in-work scheme to top up. We could argue about the sense in that.
I do not see why the Government are going by the more cumbersome route when they can go by the simpler route and abolish the 24-hour rule. It is simple. All you have to do is wipe out a couple of lines of the Bill. Instead, we are going through an elaborate array of pilot schemes, checks and audit trails, testing back on everything, seeing whether we extend it, and primary
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legislation. We are going through all of that, when instead all that we have to do is accept this amendment, which would have the same effect.
Why are the Government making life so difficult for themselves? Why do they have to spend more money and take more time to be less effective in doing what this amendment would offer? I had always thought that one of the definitions of bureaucracy was essentially that it was rational. I thought that there were many other disadvantages to bureaucracy, but at least it was rational. I have now even given up on that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 12 to 15 not moved.]
Lord Inglewood Lord Inglewood moved Amendment Ho. 16:
Page 3, line 26, leave out subsection (4).
The noble Lord said: My Lords, we have had substantial debates on the provisions of the Bill relating to 16 and 17 year-olds. My noble friend the Minister has just given a very full definition of our approach. However, it still appears that there is much between the Government and the Opposition on this issue. I hope, however, that we may all be able to agree on some government amendments in this group. I should like to take some time to explain them.
In Committee we had a long debate over Clause 15(3) (b), as it now is. This deals with the revocation of the severe hardship direction if it appears to the Secretary of State that the young person has failed to pursue or has rejected an opportunity. The noble Baroness, Lady Hollis, argued that there should be a provision on the face of the Bill that the direction should be revoked only if the young person had acted "without good cause". My noble friend resisted this on the grounds that it was unnecessary because the Government's arrangements with training and enterprise councils and the Careers Service effectively provide this sort of protection to young people. But the noble Baroness argued most persuasively and my noble friend agreed to consider her points further. We have done so carefully. I shall rot speak to Amendment No. 66 on today's Marshalled List but I undertake that there will be a similar amendment on tomorrow's Marshalled List. Our amendment will make clear that it is open to the 16 or 17 year-old who has rejected or failed to pursue an offer of training to say that he had good cause for so doing. If he does not do so, of course, the direction is revoked, as now. But if he does, and as a result it appears to the Secretary of State that he has shown good cause, then the direction will remain in force. I have several times explained that this situation is exactly as it is now in practice, but we have been persuaded that it is right that this important protection should appear on the face of the Bill. This is, I think, precisely what the noble Baroness was seeking, and I trust that she will accept my undertaking.
Amendments Nos. 16, 62, 67, 72 and 105 deal with the provisions in the Bill relating to the definition of "training" for 16 and 17 year-olds and related issues. This is another matter which we debated fully in

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Committee. The noble Earl, Lord Russell, approached it with all his customary passion for questioning regulation-making powers.
I remain convinced that the definition of training for the purposes of JSA must be in regulations, not primary legislation. Only regulations will provide the flexibility needed to keep pace with developments in training. New qualifications and training methods are being brought forward all the time. The Government's own programme of modern apprenticeships is a major reform of the training system for young people and has been very widely welcomed.
On top of this, the definition must be able to respond to different arrangements in different parts of the country. Government sponsored training in this country takes account of individual and local needs within a national framework, ensuring high quality. We do not have every trainee learning the same thing at the same time in all parts of the country. We have encouraged diversity and competition. In England and Wales, different TECs make different arrangements. That breeds quality. In Scotland, the system itself is different. It operates under different legislation and in place of TECs there are the local enterprise companies, Scottish Enterprise and Highlands and Islands Enterprise. The arrangements lead to training of the highest quality.
In the memorandum to the Delegated Powers Scrutiny Committee and in our debates on this Bill in Committee, we explained that our intention was that the regulations would define training as certain training provided for 16 and 17 year-olds pursuant to arrangements made under Section 2 of the Employment and Training Act 1973. In response to a debate earlier on the Bill, we have been considering whether we could provide noble Lords with a more useful definition at this stage. Your Lordships will understand that I am not drafting the regulations now as I speak, and these words may change between now and the publication of the draft regulations, but we have in mind a definition such as:
"training for young people provided directly or indirectly by a TEC under its operating agreement with the Secretary of State",
and the equivalent in Scotland. I should explain that "operating agreement" is the term for the contract between the Government and the TEC. It is a long and detailed document and I shall ensure that copies are available in the Library.
We have concluded that the existing power to define the meaning of "other assistance" in regulations is too broad. As your Lordships are aware, we are very mindful of the need to use regulation-making powers sparingly and in the right context. We propose, therefore, that if regulations so provide, training will include:
"assistance to find training or employment, or to improve a person's prospects of being employed, of such a kind as may be prescribed".
We propose to put that on the face of the Bill. I hope that noble Lords ill find it acceptable.
This group of amendments is intended to bring about these changes. Amendment No. 62 removes from Clause 15 a reference to "other assistance". I do not speak to
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Amendments Nos. 64 and 65 but give an undertaking that there will be similar amendments on tomorrow's Marshalled List.
Amendments Nos. 16, 67 and 72 remove from Clauses 3, 15 and 16 the powers to define the meaning of "training" and "other assistance" in regulations. Amendment No. 105 adds a power in Clause 34 to define the meaning of "training" in regulations and a provision that, if regulations so prescribe, "training" includes assistance to find training or employment or to improve a person's prospects of being employed, of such a kind as may be prescribed.
In these amendments we have shown a willingness to listen to advice from the Benches opposite. In particular, I have given an undertaking that we shall introduce the concept of "good cause" into Clause 15 and we will limit the scope of the definition of "other assistance". I have also given your Lordships a further, clear indication of our intentions as to the definition of training for the purposes of JSA. I hope that your Lordships will be able to approve these amendments.
9.15 p.m.
Earl Russell: My Lords, the Minister is quite right that these amendments show that the Government have listened to what has been said on this side of the House. I thank them very warmly for doing so. In particular, I thank them for the "good cause" provision in Amendment No. 66. I am very pleased indeed to see it.
I am also entirely happy with Amendment No. 16, the amendment which is on the Marshalled List at the moment. I already previously moved such an amendment in my own name, even though it was not in quite the same package as the Minister's. I also welcome that amendment.
I am interested in and shall read carefully what the Minister said about the regulations and the definition of training. Before we leave the subject, perhaps I may ask him whether he would expand a little on the phrase "training … provided … indirectly by a TEC". I think I understand what he means by it. It probably means something to which I would not object. But I should welcome more explanation and possibly a slightly tighter definition. I presume that he is referring to franchising arrangements of one kind or another. If so, that is not in principle unacceptable, but I would want to be satisfied about the monitoring that is being done in relation to it.
I have slightly more problems about the amendment involving the definition of training. In this respect I want to speak to Amendments Nos. 104, 106 and 106A, which are also in this group and are in my name. The purpose of a definition is that a court should be able to decide whether the activity is within the definition or without it. A definition is one that must provide a test: does the activity meet it or not? We have attempted to provide a definition. It is taken out of the Employment and Training Act 1973, which is where the Government say in their memorandum to the Delegated Powers Scrutiny Committee they have gone for their definitions. The intention of these amendments is not in any way to be unhelpful.

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Amendment No. 104 defines an employment programme as meaning,
"a programme which significantly improves the claimant's chances of finding employment".
A court can consider: does it or does it not? Does it qualify or does it not qualify? It is a meaningful question. Amendment No. 106 defines training as meaning,
"training that assists persons to select, train for, obtain and retain employment suitable for their ages and capacities".
Again, it provides a test: does the activity meet it or does it not? Amendment No. 106A defines training schemes as meaning,
"schemes that assist persons to select, train for, obtain and retain employment suitable for their ages and capacities".
None of those definitions is meant to be controversial. They are meant simply for the purpose of providing a test so that the court can consider whether something does or does not meet them.
However, when I look at the Government's amendment, Amendment No. 105, I cannot welcome it in the way I have welcomed other government amendments in this group. It begins with words which are painfully familiar to us:
"'training' has the meaning prescribed for the purposes of this Act".
How on earth is a court to decide whether something is or is not a training scheme by virtue of that definition? It really is not on. I admit that the second part of the amendment, that it,
"includes assistance to find training or employment, or to improve a person's prospects of being employed",
is a good deal more welcome. That is a good part of the amendment. But it still goes back to the same old language and ends up with the words,
"of such a kind as may be prescribed".
It may be an uncharitable suspicion but I am beginning increasingly to wonder whether the purpose of this style of drafting is to give the Government powers which are immune from scrutiny by the courts because they are so meaningless that the courts cannot decide whether anything meets them. I give an example of training actually provided by a TEC in the North-West. The person concerned was supposed to be training as a pipe fitter. The employer providing the placement had so little work that the trainee was unable to get any experience. As a result, the whole of one year's trainees failed to reach the required standard because they had been unable to complete the necessary assessments for qualification. That story would fail our definition of training—and I think quite rightly too—but it would pass the Government's definition of training because it has so little precise meaning that I really cannot see how anything could fail it.
I know that Amendment No. 105 is not formally before us until late tomorrow night, but I will beg the Minister, in the spirit of the report of the Delegated Powers Scrutiny Committee, to come back with a little more explanatory definition, with a definition that actually defines. If he does not do that, whatever time of night it comes up, I cannot guarantee my reaction to it.
Lord McCarthy: My Lords, the noble: Earl has said virtually everything that one can say about these amendments. I thank the Government because, despite all the qualifications, I accept that there has been some movement. There has not been much movement on training and how much movement there: has been on "good cause" we have to wait until tomorrow to find out. However, at least there has been some movement. There is an indication that we have made some impact on what the Government say and for that we are extremely grateful.
I am looking forward, but not with much hope, to what the Government say about the amendments of the noble Earl, Lord Russell, because I commend them to the Government. They have the advantages which he states, but they are also a way of coming back to a theme which we have sought to make at different stages of the Bill—that is to say, that the jobseeker's position should be reciprocal. There should be something which is not merely what the jobseeker has to give when he signs the jobseeker's agreement, but which the Employment Service itself has to give in reply. In the noble Earl's definitions of "employment" and "training" there is something reciprocal which the service has to give to the jobseeker as well as what he has to demonstrate to the service. I shall be extremely interested to hear what the Minister says about those amendments.
Lord Inglewood: My Lords, I would like to begin with some of the points raised by the noble Earl, Lord Russell. He made reference to training provided indirectly by TECs. It is the case that the training and enterprise councils do not normally provide training directly. It is provided by training providers under contract to the TECs and they are obliged to monitor the quality of what is provided. That is done through the contracts to implement quality assurance: arrangements according to standards set by the Secretary of State. These standards are known as the TEC quality assurance supplier management. The acronym is TQASM which I cannot pronounce. The requirements apply uniformly to all TECs. TECs are also obliged, through their contracts, to take any action required as a result of quality audits.
I listened to the comments of the noble Earl and the noble Lord, Lord McCarthy, about the; definition of "training". Obviously, we shall reflect on the comments which have been made. At the same time I ask your Lordships to reflect on the comments I made when I introduced the amendments. They go into some detail about what the Government propose in this regard.
I turn to the noble Earl's amendments. I thank him for the explanations he gave. I shall take each in turn and explain why we believe that they should not be accepted. As I said before, the overwhelming majority of people who become unemployed make every effort to find work at the earliest possible opportunity. There is an enormous turnover in the labour market. Over one-third of a million people leave the claimant count each month. Of those who become unemployed, about half leave benefits within three months and around two-thirds leave within six months. Therefore, for the vast majority of people the question of training and

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employment programmes is simply not an issue nor should it be a central feature of the conditions of eligibility.
For those who do become long-term unemployed, again the vast majority actually welcome the opportunity to improve their skills, re-examine their career prospects, and re-motivate themselves to return to the world of work. The issue of being required to take extra action does not arise.
Experience shows, however, that a small minority seek to abuse the benefit system and persist in ignoring the help available to them. Without benefit sanctions there would be nothing to protect the taxpayer and the national insurance contributor from such abuse. That is why separate sanctions are needed for people who refuse to take advantage of the help offered through employment training programmes. That is nothing new. Such sanctions have long been a feature of benefit legislation. Conditions penalising the refusal to attend courses were first introduced in the Unemployment Insurance Act 1920 and have been a feature of unemployment benefit legislation ever since.
Our intention is to prescribe specifically the employment programmes as we do now for which there should be a benefit penalty if a claimant refuses to attend. That is the sensible and clear solution to ensure that there is no doubt on the jobseeker's part or on the part of the Employment Service staff as to which programmes do or do not fall within the scope. On the contrary, the noble Earl's definition would lead to considerable uncertainty as to what did or did not significantly improve the claimant's chances of finding employment. Parliament, through its approval of regulations, must be able to decide whether programmes fall within the scope of Clause 18.
Turning to Amendment No. 106, I have given a firm and clear explanation of how we propose to deal with the definition of "training" for the purposes of 16 and 17 year-olds receiving JSA. We have tabled a series of amendments to that effect and there will be further similar amendments on tomorrow's Marshalled List.
The noble Earl's amendment proposes a variation on a theme. I should like to explain why we do not believe that that proposed variation would be appropriate. The amendment is very wide. It proposes that such training should be defined as training schemes that,
"assist persons to select, train for, obtain and retain employment suitable for their ages and capacities".
I do not think that we would disagree with that as a general definition of "training"—indeed, as the noble Earl said, the words have been taken from the Employment and Training Act 1973—but we do not think that it will do as a definition for the purposes of JSA. As I have explained, what we want to capture in the definition is, essentially, government-sponsored training for young people, such as youth training and modern apprenticeships; and 16 and 17 year-olds will be required to register for youth training. The noble Earl's definition goes much wider. It has many of the problems of uncertainty and lack of parliamentary control that I have already mentioned in relation to the definitions of "training schemes" and "employment programmes". Is
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the noble Earl proposing that 16 and 17 year-olds should be able to register for any sort of training that meets his definition?
9.30 p.m.
Earl Russell: My Lords, the Minister says that my definition is very wide, but surely it is not as wide as,
"such meaning as may be prescribed".
Lord Inglewood: My Lords, as my noble friend and I have explained on several occasions, it is important both that we provide a clear definition so that people know what it means, and that we provide flexibility in the system as circumstances change over time. That is the important thinking behind the approach that we have taken in our definitions in this regard. How can we be certain about the quality of such training? We hear a lot from the Opposition Benches about the quality of youth training, but at least we have the ability (through contracts with TECs and other arrangements) to control the quality of youth training. In the noble Earl's proposed world, would there be any way of controlling that quality? Surely it would be a free-for-all—and I do not think that that is what the noble Earl wants.
We believe that the noble Earl's amendments are well intentioned but misguided. I very much hope that he will recognise that and withdraw them, bearing in mind the commitments that I have given. If he does not and if we divide on them, I shall have to ask the House to reject them.
On Question, amendment agreed to.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 16A:
Page 3, line 30, at end insert:
("( ) Where consideration is being given to payment of an income-based jobseeker's allowance to a person under paragraphs 8 and 9 of Schedule 1 on grounds of hardship, any person whose income is such as to entitle him to income-based jobseeker's allowance calculated in accordance with section 4 shall be deemed to be in hardship.").
The noble Baroness said: My Lords, this is a very simple amendment. Within JSA, for six months there is a contributory—that is, a non-means tested—benefit. If the employment officer has any doubt, JSA may be stopped unless the claimant is both vulnerable and in hardship. That is followed by means-tested JSA. Again, if the employment officer has any doubt, JSA may be stopped unless the claimant is both vulnerable and in hardship.
We tried—unsuccessfully—earlier this evening to put a definition of "vulnerable" on the face of the Bill. The Minister said that that will be done by regulation. But what of hardship? The point of the amendment is to try to understand why the Government need a concept of "hardship". We are arguing that, if people qualify for means-tested JSA, have they not already been means-tested, and does not the fact that they receive JSA demonstrate that they are already in hardship—or to put it as the noble Earl, Lord Russell, so tellingly puts it, is there anybody who has had means-tested JSA withdrawn who is not thereby in hardship?
Let us remind ourselves of the rules of eligibility for a means-tested benefit. They are very restrictive: neither you or your partner may be in work; and you must have little or no savings and no other income. Once obtained, the level of JSA is extremely low. Again, let us remind ourselves of the figures. If you are 24, under 25, JSA is worth £36.80 a week or about £5 per day. It is worth £6.50 a day if you are single and over 25 or £5 a day each if you are one of a couple.
Most of us could live on £5 a day for a while, if we came to that benefit with well-stocked food cupboards, decent clothes, adequate furniture, heating and lighting, and water bills already paid for a quarter in advance. One can then survive. But if instead you are single, 24, in a poorly furnished bedsit, living from day to day, that £5 a day is all you have on which to live; for all food, clothes, toiletries, cleaning materials, heating, lighting and water. In addition, that £5 a day has to cover all broken pieces of china, any torn towel, any dead light bulb. It also has to cover the cost of seeking work, buying newspapers with their job advertisements, a phone card, postage stamps, the travel costs of bus and tube fares to interviews. At 24, £5 a day will, I guess— looking at my sons' budgets—buy you cereal for breakfast, sandwiches for lunch and chips for an evening meal, some instant coffee, and sugar, and one return tube trip at £2 to look for work. That is all it will buy, and after that you are still rather hungry and decidedly scruffy.
Being on benefit means that unless you can scrounge or shoplift, a new tube of toothpaste means missing a meal or an interview. You can walk, of course, but having your shoes resoled takes the money available for lunches for three days.
Will anyone here say that if you are trying to live on £5 a day for food, clothes, heating, and lighting, travel, job search work, toiletries—the lot—you are not already in hardship? If your Lordships agree with that, as I think you will, why in heaven's name is any further test of hardship needed except to humiliate the unemployed still further? I beg to move.
Baroness Williams of Crosby: My Lords, I support the amendment. It is the first amendment of a group of amendments with the dreaded arrival of regulations where there is no indication of what they will lay down. It is the part of Clause 4 to which the Select Committee on Delegated Powers drew the attention of the House. It asked that great care be taken by the House over this clause.
We shall come later to another group of amendments—age-related allowances—upon which this also has a bearing, but at the moment I shall just keep to the one clause which is affected by the failure to put on the face of the Bill any indication of what someone's entitlement might be.
The House may like to be reminded that in Schedule 1, paragraph 9, to which the amendment refers the,
"income-based jobseeker's allowance to which a person is entitled … is to be payable at a prescribed rate"—
which means prescribed by regulations with no clues for the rest of us as to what that rate might be, and—
"for it to be payable for a prescribed period".
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There are no clues for the rest of us as to what that period might be. We are in effect consigning most of our disadvantaged fellow citizens to an unknown rate for an unknown period in a way which does not enable the House now, or at any later time, to debate whether it is enough to live on.
The noble Baroness, Lady Hollis of Heigham, has tried to give some kind of definition in the amendment, which we support, so that there is some indication of what is meant by hardship by relating back to the present levels of income benefit. It is at least an attempt to put on the face of the Bill some guide posts as to what the amounts may be.
I hope that when he responds to the amendment the Minister will be able to say something other than what is on the face of the Bill—which is; virtually an open-ended non-commitment, to coin a phrase—about what will be the position of the people who are already suffering hardship as a result of the operation of Schedule 1, paragraph 9, which leaves the matter wide open.
Lord Mackay of Ardbrecknish: My Lords, this amendment would effectively remove the test of hardship from hardship payments for all income-based claimants who fail to meet the entitlement conditions. The noble Baroness will not be surprised to hear me say that this is not acceptable to the Government. The hardship payment arrangements in JSA strike a balance between protecting taxpayers from subsidising those whose unemployment results from their own choices and protecting the vulnerable from hardship. The claimants who are dealt with under paragraphs 8 and 9 in Schedule 1, to which this amendment refers, are people who are required to look for work in order to receive benefit. If a person is not genuinely available for work, or refuses to look for it, he is not entitled to receive a benefit for people who are jobseekers. The only basis on which payments are to be made to such claimants is to protect those who are in vulnerable groups. Other claimants have a choice; if they want to receive benefit they must make themselves available for and start looking for work.
The test imposed by the amendment is simply that the claimant satisfies the income-based conditions for JSA. Let us remember that someone can have capital of up to £8,000 and still satisfy the means test for income-based JSA. The claimant could be doing some part-time work, as could his partner. That is not what we mean when we speak of hardship.
Under JSA, it will be for the adjudication officer to decide whether to award benefit on grounds of hardship. He will take into account all the circumstances of the case, including alternative access to funds and capital. We shall be placing in regulations the core criteria which adjudication officers must take into account when considering the question of hardship. This is currently left completely to discretion, with guidance from the chief adjudication officer. But we consider that it must be right for a benefit of last resort to take into account individual circumstances. That is the way in which hardship will be determined, not by an absolute financial limit.

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There will be in regulations core criteria which the adjudication officers must take into account when considering the issue. That ought to be a step forward. I hope that with that explanation of our intentions the noble Baroness will withdraw her amendment.
Baroness Hollis of Heigham: My Lords, it is too late tonight to do anything other than withdraw the amendment. However, I remain completely unconvinced by the Minister's reply. He drew a distinction between hardship and the JSA allowance on two criteria. The first was that the claimant or his partner might be in work. Of course, under the JSA a single person can keep only £5 from that work and a couple £10. We are not talking about large sums; it is only £5 extra for a single person in part-time work. As regards capital, if a single person has more than £3,000 he will not receive the JSA. As regards a couple with £3,000 to £8,000, £1 is deducted each week for every £250. That will quickly eat away at any residual capital.
The amendment is not as the Minister described—to seek to remove the test of hardship. We are trying to define the test of hardship by aligning it with eligibility for receipt of the JSA. We are saying that the JSA is a means-tested benefit. It is a minimalist benefit, but it takes into account a very modest amount of saving and a very modest disregard of £5 for an individual. The JSA is a means-tested benefit on which one is barely able to live for any length of time, which is why we have such pressure on the social fund.
It is amazing to say that over and beyond that we need an even more grudging test as regards an income on which to live and below that of the JSA, which already sends people into debt collectors hands, disconnections and the Social Fund loan trap. I wish that the Minister would depart from giving hypothetical examples and move into the real world. He would then see what it was like to try to live on less than £5 per week, which is what he is signalling people towards. At this time of night I have no choice but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Clause 4 [Amount payable by way of a jobseeker's allowance]:
The Deputy Speaker (Lord Brougham and Vaux): My Lords, in calling Amendment No. 17, I should advise the House that, if Amendment No. 17 is agreed to, I cannot call Amendment No. 18.
Earl Russell Earl Russell moved Amendment No. 17:
Page 3, leave out line 34.
The noble Earl said: My Lords, this amendment, which is in my name, is grouped with Amendments Nos. 18 and 19, which cover the same point by a similar route. I have no strong preference as regard the drafting of the amendments. The point which they all address is the age-related structure of benefit—the lower benefit for the under-25's.
The Minister will know that that has never been acceptable or clearly intelligible to us. A number of justifications have been put forward for it. I believe that the current justification is that those aged under 25 are alleged to have lower wages.
First, we do not see why that is at all relevant to what we regard as a subsistence benefit. It does not cost any less to live if you are under 25. A pack of butter in the supermarket costs exactly the same whether you are 25 or 70. It does not make sense to argue that younger people have less need for a subsistence benefit. In fact, the contrary is often the case.
The Government's justification in terms of lower wages really does not seem to make any sense at all because, after all, a good many groups earn wages lower than the average. None of the other groups on that list is singled out for a lower rate of benefit. We should think it outrageous if they were. Why are young people different? Why is there this discriminatory provision? The young widely regard it as that and it is causing a great deal of resentment.
It also seems to me to be falling for the concept of the average. Averages do not eat; people do. If the average of a group is below that of other groups, it does not mean that any particular individual is in that position. Even if it were a justification, which it is not, it would be thoroughly misconceived because it does not consider the needs of individuals, which is what the benefit system is all about.
There is a good deal of evidence that the basic level of benefit is low enough to make living extremely difficult. The National Consumer Council report, Your Food, Whose Choice? has a great deal of evidence on that, as does the report from the National Children's Home. But, if it is difficult to live on the ordinary rate of benefit, it is even more difficult to live on the rate of benefit for the under-25s.
I hope that the Minister will not return this evening to the argument which claims that young people can all live at home, because by this time the Government must surely have learnt that, in the real world, a great many of them cannot. From time to time the Minister must have watched birds throwing their young out of the nest He must have observed, from the rather pathetic first attempts at flying, that that is occasionally done rather prematurely. That weakness among bird parents is shared with human parents. The vast majority of teenagers who live away from home do so because their parents have thrown them out or, as I believe my noble friend Lady Williams said earlier this evening, because of abuses of a type which would make none of us argue that they should continue to live at home.
It is really not reasonable to insist that teenagers should live at home. If the Government were really serious about that argument, they would extend the child premium for income support up to the age at which they believe people should cease to be continually living at home. I have asked them to do so many times, but I have met with very considerable resistance. When the Government withdraw that resistance, I shall believe that they mean what they say about living at home. But

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as they have not withdrawn it, I do not believe that they mean what they say and I hope that they will not say it again.
I shall leave the House with one case of real hardship. It relates to a young man of 18 in Nottingham who was living on the lower rate of income support. He came under the supervision of the probation service because he had been caught stealing in order to pay his poll tax. If that young man had not been law abiding, he would not have needed to go into crime. That is the sort of thing that the Government push people into by having a rate of benefit which is really too low for subsistence and which has no rational justification. I beg to move.
Baroness Dean of Thornton-le-Fylde: My Lords, I express my support for Amendment No. 17. While doing so, I may refer to Amendment No. 18 which arrives at the same point but by a different route. I shall also be speaking to Amendment No. 19. The amendment would remove the age discrimination—because that is what the clause provides for at present—as regards payment of "contribution-based" benefit. In fact, it means that the claimant is being fined for being a certain age. I say that because there is no discrimination regarding the terms under which they contribute. Indeed, a young person may have been in work from the age of 18 to, say, the age of 23 and have paid contributions based on his income in the same way as everyone else. Yet, because that person is of that age, he is discriminated against when it comes to drawing benefit and that benefit is reduced.
The Minister said in Committee, at col. 681 of Hansard, that it was a well-established feature of income support that young people receive a lower rate of benefit. Well, it may be established but that does not make it right; indeed, it is wrong. Moreover, because it is wrong, it should be changed. In fact, in 1988 the Social Security Advisory Committee said that it was wrong to introduce the provision in such a discriminatory way. Eighteen to 24 year-olds will receive £36.80 per week instead of £46.50. Both are very small sums of money on which to live. The problem is that, if it is the lower rate, the person is penalised even more and is expected to live on £5.25 a day which must cover all except rent; for example, all one's food, heat, lighting, water, clothing, household goods and, yes, the cost of looking for work.
The Minister may say, as he said previously, that 75 per cent. of that age group live at home as if that is the answer to all their problems. But what if the members of the family at home are also unemployed? They cannot claim support for that 18–20 year-old because he or she is an independent person under the Bill and is receiving the reduced rate of benefit. I suggest that one cannot automatically assume that, because someone is living at home, there is the resource, the wherewithal or, indeed, the commitment to look after such young people.
We have before us a really nasty little clause which gets at a small number of people but does so in a very profound way. Amendment No. 19 is a natural follow-on to Amendments Nos. 17 and 18. The Bill currently says that the age-related amount will be applicable and will be determined "in accordance with
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regulations". We keep returning to that point time after time; indeed, as did the scrutiny committee. What will the regulations contain? What requirements will they make of young people? What penalties will be imposed? What tasks will the young people be expected to fulfil in order to qualify for benefit? There is no indication in that respect and we would like the Minister to outline the nature of those regulations.
Many nasty comments have been made about the Bill. It has been said that it is mean and that it penalises people in a way that does not help them when they need a helping hand. As regards the age group we are discussing, I believe that the legislation will condition their attitude to society for the rest of their lives if they are discriminated against in the way proposed and treated in the appalling way suggested by the Bill. Such young people have paid their contributions and are entitled to the benefits without having such discrimination aimed at them. I hope the Minister will accept that point and indeed that he will accept Amendments Nos. 17 and 19.
Lord Swinfen: My Lords, I support these amendments. Many of these young people are still growing and therefore they need more food than those of us who have reached rather more advanced years. Because they are still growing they will require new clothes in order to be smart enough to go to job interviews. Those clothes are not always easy to get. Because they are young they are likely not to have family commitments and therefore will be expected to go very much further in search of work, and they will consequently need to pay the additional travelling costs.
Lord Mackay of Ardbrecknish: My Lords, these amendments are designed to carry forward current unemployment benefit rules and would mean that contribution-based jobseeker's allowance would be paid at a flat rate regardless of age. We had these amendments and this debate in Committee. Everyone who has spoken has suggested that they do not wish to hear my arguments again. I regret to say that they will hear them again because I think they are good arguments and I believe they should be accepted in defence of what the Government propose in this clause.
One of the major aims of JSA is to introduce a simplified and equitable benefit structure for unemployed people. We are doing this by bringing unemployment benefit and income support together. It is a well-established feature of income support that young single people receive a lower rate of benefit. Under JSA we shall be adopting the same treatment for all unemployed young people. I have said before—and noble Lords rather predicted I would say again—that the lower benefit rates recognise the fact that younger people generally have lower earnings expectations and commitments. The average earnings for the 18 to 24 age group are less than two-thirds of the average for all adults, and the large majority—about 75 per cent.—of young people receiving income support do not live independently, and the lower rate also reflects this.

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However, young people who have families can claim income-based JSA and receive the same rate of benefit as any other family in the same income circumstances. Where the claimant does not live at home, he can obtain housing benefit on the same basis as anyone else. The best thing we can do for this group is to help them get into work, and that is what we are doing. The Employment Service has been testing special programmes geared to the needs of young people, and national programmes will provide something like 130,000 places from this April. The lower rates that will be payable to young people in JSA, as I said, carry forward the well-established principles currently operating in income support. They reflect the lower commitment and earnings expectation that young people generally have.
Having listened to noble Lords, I do not expect them to agree with me or to be won over by my argument. I think my position is perfectly clear; I understand their position. However, I am afraid that there is rather a gulf between us.
Earl Russell: My Lords, I thank the Minister for that reply and I thank all those who have spoken. I am glad that the noble Baroness, Lady Dean, drew attention to the fact that the family may also be unemployed. That is a distressingly common situation. It creates real hardship and it makes the denial of the child premium up to the age of 18 all the more relevant. It also emerged from the MORI report that when parents throw out 16 and 17 year-olds, one of the commonest reasons for doing so is that they cannot afford to support them because they receive no benefit. Therefore the policy is achieving precisely the opposite of its intention.
I also thank the noble Lord, Lord Swinfen, for his point about growing people of that age eating more, needing more new clothes and costing more. I can confirm from my memory as a parent, as I think many of us can, that he is exactly right.
I understand the Minister's weariness with hearing our arguments, as we are weary of hearing his. However, it is important that it should remain on the record that it is a measure which does not enjoy general consent. This is not something which is accepted simply by passage of time. There is no Burkean title of prescription for this to go on. So long as there is the least risk that anybody may say that there is, it is an issue which we shall have to continue to reintroduce. I regret the time it takes, but the continuing lack of consent cannot be signified in any other way.
I ask the Minister one precise question. If he is able to intervene and give me the answer to it I shall be happy to give way to him. Can he give me a guarantee that when regulations determine the age-related amount those regulations will not widen the gap between the young and the over-25s? If he can give me that guarantee it will be very welcome and it will make a difference to me.
The Minister said that he wanted to introduce a structure which is simplified and equitable. He has not done so. He has not got within miles of it. I
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cannot see how it can be a simplification to introduce a whole lot of different rates which have to be calculated and when people's entitlement and the applicable amount changes on their birthday in the middle of a financial year. That does not sound like a simplification to me. As for it being equitable, I have never heard anything less equitable in my life. It is discriminatory, as the noble Baroness, Lady Dean, said, and it is causing real anger among the young.
The Minister should listen occasionally to the youth and student Liberal Democrats. Whenever we put before them any policy paper which has inadvertently, perhaps because the drafter was not thinking about it, omitted to rule out age discrimination absolutely, immediately they put down an amendment demanding that we put that right. More power to their elbow: we do.
10 p.m.
Lord Mackay of Ardbrecknish: My Lords, perhaps the noble Earl will allow me to intervene before he concludes. I can tell him that the same rates will apply as apply currently in respect of income support, so the gap will not be widened.
Earl Russell: My Lords, I am grateful for that small but very real mercy. I thank the Minister for it.
That does not, of course, put the basic problem right. I still simply cannot understand the argument about lower earnings. I am sorry to be so thick. I have listened to it many times, but I really cannot make it out. It seems to me that the Minister is on a fork. Our problem is why it is relevant. We cannot see that it ought to be relevant at all because we think it is a subsistence benefit. I have had no answer to that point. I have gone for five years without an answer to it, and I may go another five years without one, but I shall keep on asking.
If it is relevant, why is it relevant only to the case of youth? Why is it not relevant to other groups with lower earnings? Take, for example, people with disabilities. We all agree that the disabled tend to have lower average earnings than others. Imagine the outcry if a rule were introduced that people with disabilities would get benefit at a lower rate than others. The Minister would be swept away by the indignation. It does us no credit that we are not expressing the same indignation on behalf of the young, on behalf of people who are still learning a sense of social responsibility and whose sense of social responsibility is likely to be determined by the example they are set by us. I do not look forward to that. Can the Minister explain to me sometime before we are through with the Bill why low earnings are relevant and why they are only relevant to this group?
I have heard these answers many times. I am no nearer understanding them than I have been. I shall beg leave to withdraw the amendment for tonight, but at Third Reading I hope that I may receive a response which actually answers the questions I am asking. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 to 20 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 21:
Page 3, line 43, at end insert:
("( ) Regulations shall provide for a prescribed amount of earnings to be disregarded in calculating the amount payable by way of a jobseeker's allowance, and that prescribed amount shall be reviewed annually in the light of the previous year's price inflation").
The noble Baroness said: My Lords, in moving Amendment No. 21 I speak also to Amendment No. 60. We are again addressing the issue of disregards. We attempted to raise the issue in Committee in respect of the earnings of part-time workers. However, that did not meet with support from the Minister. Amendment No. 21 allows for the amount of the disregard—the amount that an unemployed person can earn before the benefit is affected—to be the subject of regulations instead of the fixed amount current with the present arrangements.
The amendment also proposes that the amount should be reviewed annually in the light of inflation. Surely that is sensible and in line with what occurs with regard to most social security benefits. The Government are anxious, so they say—we have heard it stated again tonight—to get people back to work; hence their proposal for a back-to-work bonus. Those moves are entirely welcome. However, they should not be seen as invalidating the need to improve disregard arrangements.
Welcome as the back-to-work bonus is, it will only help those who manage to obtain an offer of full-time employment which they accept. Such moves do not help those who cannot find suitable employment but who may obtain casual or part-time work. I do not understand the Government's objection to what seems to be a useful way of getting people involved in the job market again, even if only in a very modest way.
Amendment No. 60 deals with much the same principle. The amendment attempts to ensure that,
"Any amount prescribed in regulations as a limit upon capital or income affecting eligibility to a jobseeker's allowance shall be reviewed annually in the light of the previous year's price inflation".
That is a similar principle to the one enunciated in Amendment No. 21.
I hope that this time round the Government will tell us that they have considered the issue of part-timers since we discussed it in Committee and have decided to regard the amendments as entirely acceptable. Amendment No. 21 seems very reasonable to me. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, in Amendment No. 21 the noble Baroness returns to an issue on which I am sure we shall yet again find it difficult to reach agreement. As I explained in the earlier debate, we share the desire to improve work incentives for unemployed people and their partners. But raising earnings disregards is an expensive, and, more importantly, an uncertain way of doing that.
Taking the expense first, if we had increased the current earnings disregard in line with inflation since 1988, then the cost in JSA would be approximately £15 million. Applying this across the other benefits—income support, housing benefit and council tax benefit—would add on in the region of another £75 million per annum. This is a total cost of £90 million.
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The noble Baroness contends that we have not taken into account certain behavioural factors in our estimates. I do not know and I do not suppose that the noble Baroness knows either, how far the earnings disregard is a factor which unemployed people consider when undertaking part-time work. There are many other issues, such as childcare, which may or may not influence a person's decision to undertake part-time work. What we can say is that, while increasing the disregard might encourage some claimants to take up work, it might have the opposite effect on others. By reducing the financial incentives to take up full-time work which takes them off benefit, an increase in disregards could simply encourage some claimants to remain on benefit combined with small earnings. We therefore cannot accept that increasing the disregard automatically every year in line with inflation is necessarily the best and most cost-effective option for helping unemployed people.
No government in the past have adopted the policy of increasing disregards regularly each year. When inflation is low such a policy would add only pence to the disregard. We prefer to use resources to introduce substantial new incentives for unemployed people to move out of unemployment into work. We have brought forward new measures like the back to work bonus whereby claimants will receive a lump sum equal to half their earnings above the disregard when they go back to work. That is far more generous financially to many claimants than simply putting up the disregard by a few pounds. Of course, it deals with the difficult bridge problem between being out of work and going into work. We have discussed, and agreed about, the existence of the problem on a number of occasions. Although we have disagreed about some of the details of the partner's rule, we have taken the measure which increases the partner's hours rule from 16 to 24 hours, and the whole £600 million package of work incentives announced in the last Budget is designed to do what we believe would be a more effective job than index-linking disregards.
I am not sure to what extent the noble Baroness addressed Amendment No. 60 which concerns capital limits. As she rightly points out, it is the same issue. I believe that, just as with earnings disregard, increasing the capital limits annually would not be the best use of resources. Uprating them on an annual basis would simply lead to already scarce resources being diverted to those people who already have some means of their own. That would, as I have said before, represent poor targeting when the priority must be maintaining benefit levels, improving help for those most in need and, above all, helping unemployed people back into jobs.
I believe that the present limits strike a reasonable balance by allowing people to maintain a cushion of savings to fall back on, while expecting those with more substantial capital to use some of their resources towards their own living expenses. However, I can assure the noble Baroness and other noble Lords who I know are interested—although they have not spoken this evening because of the lateness of the hour—that capital limits are kept and will continue to be kept under review. They have been and will continue to be uprated from time to

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time, but only as and when resources and priorities allow and not through the automatic method which the noble Baroness seeks in her amendment. I hope that with that explanation she will feel able to withdraw her amendment.
Baroness Turner of Camden: My Lords, I am not surprised at the response I received this evening because, with one or two exceptions, the Minister has not been favourably disposed towards the amendments we have moved from this side of the House. He said that people might be discouraged from going for full-time employment and prefer to go for low paid part-time employment in order to benefit from increased disregards. However, I believe he overlooks the fact that for many people it is difficult to obtain full-time work. They take part-time and often badly paid casual work because that is all that is available. It seems to me that if that is all that is available, people should not be discouraged from taking it. By improving the disregard situation they might be encouraged into taking some form of employment, even though it may not be what they ideally desire.
As to the Minister's comment about capital limits, I note that he said that they are kept under review, but I am not happy about that. I do not know when they were last reviewed. Perhaps some time ago. I fear that it was certainly not recently. It is not necessarily the right response simply to say, "We cannot move these because it will all be terribly expensive". It seems to me that practically everything we cite as being responsible and responsive to people's needs is regarded as being off limits because it is too expensive.
As the Minister rightly said, we have not had much of a debate this evening because it is late. Therefore, it is not my intention to press the matter to a vote, although I regard the response we have had as not being at all satisfactory. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 21A:
Page 4, line 38, at end 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.").
The noble Baroness said: My Lords, with this amendment we revisit regulations, especially affirmative regulations as they affect Clause 4. I asked the Shadow Chief Whip for an appropriate entrance line on Clause 4, but his imagination and mine failed. If inspiration strikes in the next three or four minutes, I shall do my best to amplify his comments on Clause 4.
The whole House was pleased at the way in which the Government responded to the report of the Delegated Powers Scrutiny Committee on Clause 6. The Government defined both availability for employment and "actively seeking work" and put those definitions on the face of the Bill in new Clauses 6 and 7; and in response to the amendment moved by my noble friend Lord Richard last Thursday on recommitment the
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Government also agreed to go for the affirmative procedure on those new Clauses 6 and 7, although not, alas, on what was then Clause 6D.
Even at this late hour I should like to remind the House that the Delegated Powers Scrutiny Committee was equally concerned about Clause 4. Noble Lords will perhaps recall that paragraph 8 of the final report of the Scrutiny Committee did not seek new definitions in Clause 4 but was clear that the regulations in Clause 4, just as in Clause 6, should come about by affirmative procedure. I quote:
"Clause 4 allows the calculation of the amount of the jobseeker's allowance to be governed by delegated 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. 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".
The reference on Clause 4 that the House may wish to consider the clause with care is stronger in its phrasing than a similar proposal that the House should handle Clause 6 by affirmative procedure, where the House was asked simply to "consider" the clause. Following the lead of the Leader of the House and the advice of the Delegated Powers Scrutiny Committee, the House agreed to move by affirmative resolution on Clause 6—which we were asked merely to consider. We are now looking at Clause 4, which we were asked in even stronger language by the Scrutiny Committee to consider with care. I hope that the House will follow suit.
The Government agreed only that Clause 6 should be recommitted. Therefore the issue of delegated powers in Clause 4 could not be discussed on recommitment. Yet, as I pointed out, the Scrutiny Committee's request that it should be done by affirmative procedure was stronger for that clause than it was for Clause 6.
It may be that the Minister will say—I have to anticipate him since we are not in Committee—that the proposed levels of JSA will be included in the annual social security uprating statements, which of course come by affirmative resolution procedure. But other regulatory powers in Clause 4 which also affect financial eligibility will not be in that uprating statement and could therefore escape scrutiny. I hope that the Minister, in the spirit in which the House accepted that Clause 6 should be by affirmative procedure, will accept Clause 4 likewise. I beg to move.
Baroness Williams of Crosby: My Lords, I rise only briefly to support the amendment moved by the noble Baroness. I again underline her point that the House has an obligation to consider very carefully indeed the findings of the Select Committee on delegated legislation. Clause 4, along with Clauses 6, 7 and 16, were thought by the committee to be matters of considerable constitutional import. We have dealt with Clauses 6 and 7 by the recommittal of the Bill and the commitment to an affirmative procedure. But we have not dealt with the strictures on Clause 4, or for that matter on Clause 16.
Clause 4 is of the essence, since it is part of the essential function of Parliament to consider at all times the position of expenditure based upon taxation and the

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taxpayer's interest, to which the Minister, who is currently otherwise engaged, has referred time and again throughout this debate. He has spoken time and again about the responsibility that the Government feel for taxpayers.
Parliament cannot fulfil its obligation to taxpayers if it does not know anything about the amounts of public expenditure and the commitments to payments made in a Bill because they are all subject only to regulation. Constitutionally, I must say, I find it in many ways even more offensive that the House had no idea—nor did the other place—about the kinds of sums that we are thinking of when we talk about the "prescribed amounts". That applies to hardship as well as to the jobseeker's allowance, and to the income based jobseeker's allowance in particular.
So, in supporting the noble Baroness, I do so at least as much for constitutional reasons as for reasons connected with the substance of the Bill. I wonder whether, having, I think very sensibly, accepted that the affirmative resolution procedure was constitutionally appropriate to Clauses 6 and 7, the Minister might now seriously consider in the light of the Select Committee's recommendations—the Select Committee was an all-party committee and included many distinguished Members of the Government's own party—that there should at this stage be an acceptance that the affirmative resolution procedure should apply in this instance also.
Lord Skelmersdale: My Lords, as the House will know, over some time I have been an astute watcher of the debate between the negative and affirmative resolution. It occurs to me as regards this particular clause—although I am very cognisant of the fact that I said last week that this Bill was not the Bill in which to have variable order-making powers, if I may so précis my remarks—that, with the exception of the annual operating statement mentioned by the noble Baroness, Lady Hollis, I know of no other instance, including, incidentally, prescription charges, which is made by affirmative order. Therefore, I should like to learn from my noble friend the Minister whether there are any other instances. That would help me to make a judgment.
The other point that occurs to me is that at this late hour noble Lords are apt to withdraw amendments by the dozen. That applies to Back Benchers on this side as well as to the Opposition parties. I do not know whether the noble Baroness, Lady Hollis, will wind up the debate or whether indeed it will be the noble Baroness, Lady Williams. It would be helpful to me in making a judgment on this amendment to know whether this matter will return at the next stage of the Bill or whether the answer given by my noble friend the Minister will be satisfactory.
Lord Mackay of Ardbrecknish: My Lords, in moving these amendments, both the noble Baronesses have made reference to the report of the Delegated Powers Scrutiny Committee. It will not surprise your Lordships to know that I considered the report very carefully, as I do all the reports of the scrutiny committee. As some noble Lords will remember, I pointed out at Re-commitment that I was a founder member of the committee. Perhaps, therefore, that gives
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me more reason than most for reading with a great deal of care what it says and taking seriously its recommendations, as indeed we did in the case of Clause 6. There, we agreed that there were strong grounds for changing the arrangements for parliamentary control.
However, in the case of Clause 4 I do not feel that the grounds are quite so strong. I am not so convinced that we should change the system of parliamentary control proposed in the Bill and move to affirmative resolution for all time. In its report, the committee states that the amount of the jobseeker's allowance will be fundamental to the operation of the statute. Clearly that is so. However, the regulations made under Clause 4 will set out much more than the simple benefit rate. In particular for income-based jobseeker's allowance they will cover the detail of the make-up of the allowance—that is, all the detailed entitlements and conditions for the various premium payments and technical details of help with housing costs and mortgage interest payments.
To answer my noble friend, the regulations made under the comparable powers in income support are not subject to the affirmative resolution, in recognition of the fact that they are extensive, highly technical and require updating and adjusting regularly. If we went down the affirmative route, every small change, perhaps simply to align the arrangements for the change in another income-related benefit, would have to be subject to debate in each House.
The main regulations under Clause 4 will fall to be made under subsection (5). The intention is that the rates and rules for the award will be aligned across the income-related benefits. Minor amendments to regulations made under the current comparable powers are generally made several times a year. On most occasions, they follow a decision by a commissioner or a court. They are often very minor amendments which change a few words or a line in the regulations to clarify the original policy. On other occasions, a minor change elsewhere in the benefits system could require an adjustment; for example, to the technicalities of conditions relating to receipt of premium payments or to a definition.
I do not believe that it would be a sensible use of parliamentary time to have those done by affirmative order. However, I can assure your Lordships that the first set of regulations made under this clause will be by affirmative order. They will set the structure and initial rates of the new allowance. Earlier this evening I answered questions about how we envisage that working. Thereafter, we will have a duty to review the rates each year under the general uprating provisions. The noble Baroness, Lady Williams, discussed that. As we all know, the uprating order is itself subject to the affirmative resolution, so offering a clear opportunity each year for scrutiny and debate over changes to the rates.
There are two quite different issues involved in this clause. There are those regulations which will at the beginning set out and lay down what the size of the benefit will be. Thereafter, there are the annual uprating regulations. Those will be done by affirmative order. The other regulations under the clause are highly

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technical in nature. When one looks across to the other parts of the benefit system, including the parts that will be replaced by the JSA, these are done by the negative procedure. I believe that these two different procedures—the affirmative and the negative—match the two different types of changes that we will need to make in the future using the regulations.
Having heard my explanation I hope that the noble Baroness will feel able to withdraw her amendment. If she does not, and we have to go into the Division Lobbies, I hope that my noble friends will support me.
Baroness Hollis of Heigham: My Lords, I thank the Minister for that very careful reply. I shall obviously study it further and see whether we wish to revisit this matter at Third Reading. By the leave of the House, I shall withdraw the amendment.
The Chairman of Committees (Lord Boston of Faversham): My Lords, is it your Lordships' pleasure that the amendment be withdrawn?
Noble Lords: No.
The Chairman of Committees: My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say "Content". To the contrary "Not-Content". I think the "Not-Contents" have it.
Amendment negatived.
Baroness Williams of Crosby Baroness Williams of Crosby had given notice of her intention to move Amendment No. 21B:
Page 4, line 38, at end insert:
("( ) No regulations shall be made under this section unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.").
The noble Baroness said: My Lords, I have no need to move this amendment which is very much along the same lines as Amendment No. 21A. I recognise that the Minister did a great deal to remove some of the concerns that we have on this aspect of the Bill. Some still remain, but he met some part of our disquiet. I thank him for his reply.
[Amendment No. 21B not moved.]
Lord Mackay of Ardbrecknish: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at twenty-nine minutes past ten o'clock.