Jobseekers Bill

HL Deb 16 May 1995 vol 564 cc414-88

3.5 p.m.

Lord Mackay of Ardbrecknish

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be now further considered on Report. —(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.

Baroness Hollis of Heigham moved Amendment No. 22A:

Before Clause 6, insert the following new clause:

Payment of benefit when awaiting determination.

(". Where a doubt arises as to whether the claimant is available for employment or is to be treated as available for employment under section 6, or actively seeking employment or to be treated as actively seeking employment under section 7 an income-based jobseeker's allowance shall be payable pending a determination by the adjudication officer at an amount determined in accordance with section 4 but reduced by 40 per cent. of the claimant's personal rate which would otherwise be applicable.").

The noble Baroness said: My Lords, the amendment is one of natural justice: that one should not be punished before one's case has been heard and a decision made as to whether one is guilty. I hope that because the amendment relates to natural justice, all noble Lords will feel able to support it.

Let us suppose that you are unemployed for more than a year and that you are in receipt of the jobseeker's allowance, which is worth about £5 a day and is all you have to live on. Suddenly, without a warning letter or any chance to discuss the matter, you discover that your benefit has been stopped. You have no income at all. Why? Is it because you have been found guilty of not meeting the conditions of the jobseeker's allowance? No. It is because a junior, relatively untrained employment officer wonders whether you are actively seeking work, has a doubt and refers your case to the adjudication officer for decision.

There is nothing wrong with that. The case reviews and spot checks are entirely welcome. However, your benefit will stop not when you are found guilty by the adjudication officer but from the moment the junior employment officer has a doubt and sends your case for review. We assume that it is an honest doubt but the junior employment officer has a target of referrals to meet and perhaps he has not yet met it. So he sends your file along for review and the moment that he does so your benefit is immediately stopped. You are fined in advance of your case being heard. You are punished before you are found guilty. As a result of a doubt—not a decision—you have nothing to live on. As a result of a doubt your entire income is taken away.

Why do we object to the proposal, and why have we tabled this amendment in order to correct it? First, on the ground of simple, natural justice. So far as I am aware, in no other walk of life are you punished in advance of being found guilty. Even if you are suspected of a major offence at work, you are suspended on full pay. But not if you are unemployed living day to day. In that case, your benefit is taken away while your case is merely being investigated. It is assumed that you are guilty of the offence that has yet to be proved.

The Minister has said repeatedly, including last night, that only if a jobseeker is meeting the conditions of entitlement to the jobseeker's allowance and is available or actively seeking work is he entitled to the benefit. We agree, but until the offence is established, how do we know whether the jobseeker is or is not meeting the conditions of entitlement? The Minister has always argued—and I hope that he does not do so again today—as though a doubt is the same as a decision; that to suspect someone is a good enough reason for finding him guilty and denying him benefit. I am not talking about people who have never received JSA but about those who are currently in receipt of it and whose benefit will be stopped because of a doubt.

When the Minister replies, I beg your Lordships to ask themselves one question. Is a doubt in the mind of a junior employment officer the same, and should therefore be visited with the same penalty, as a decision made by the adjudication officer? If a doubt is different from a decision, why is benefit stopped in advance of being found guilty?

Therefore, our first argument is that, in all fairness, punishment should follow the offence being established. The second argument is that if one does not follow that route the consequences for those on JSA will be devastating. A jobseeker is living on barely £5 per day. He is often hungry and scruffy because that £5 per day must pay for all his food, his clothing, cleaning materials, heat, light and fuel bills. It must cover his costs for travelling to interviews, train fares, tube fares, newspapers to see the job advertisements, postage and phonecards. After all, if he attends two interviews in one day, the tube fare will take £4 of his £5 for that day. That £5 is all that stands between him and utter destitution. And yet, because of a doubt, not a decision, that £5 is taken away while the doubt is investigated.

From whom is it taken? It is not taken from the clever people, the real fiddlers, because they will always be able to manipulate the system. It will be taken away from those, for example, for whom English is a second language or from those suffering from a mild learning difficulty or from those who are inadequate or incompetent. What then, my Lords? That jobseeker cannot buy food and he certainly cannot keep himself clean. He cannot afford to travel to look for work. We shall have put him on the streets and we shall have trapped him on the streets. As a result, he will live off the streets, not by starving quietly but by begging, thieving, shoplifting, prostitution or selling drugs. We shall have outlawed him because if he cannot live on £5 a day within the law he will find a means of living outside the law.

We have taken that £5 away not because he is guilty but because we think he may be guilty. We do not know whether he is, or is not, but he will have been fined all the same. If we are not willing to continue that £5 a day on grounds of justice, should we not do so on grounds of decency towards him and as a form of social insurance for us?

None of us wants fraud or for people to cheat the system. But, for heaven's sake, let us ensure that when we punish someone by taking away his benefit—the £5 per day which stands between him and destitution—that is done because we know that he is guilty of the offence. Surely we should not treat people who are awaiting a decision as though that decision has already been taken.

Finally, perhaps I may quote David Hunt, the former Secretary of State for Employment. He was asked to regard an employer suspected of discrimination at work to be presumed guilty but, quite rightly, he refused because, he said, It is fundamentally inconsistent with justice and the rule of law in this area. The idea that a person on proof of certain facts should be presumed guilty unless he can prove himself innocent appears hard to reconcile with natural justice". David Hunt was right. He was right to protect employers in that way. I ask your Lordships today to similarly protect the unemployed. I beg to move.

3.15 p.m.

Earl Russell

My Lords, the debate on this issue has been somewhat prolonged because there has been quite a deep culture clash between the two sides of the House. We are acting on two quite different sets of theoretical assumptions and we have not yet succeeded in finding a common language in which to discuss them.

To us it appears perfectly simple that when someone is accused of not meeting the conditions necessary for entitlement to benefit he should be innocent until proved guilty. He should not be disentitled to benefit until there has been a hearing before the adjudication officer. For us, that rests on a concept of benefit as an entitlement, a civil right; something which, if you meet the means-tested conditions, you enjoy until it can be proved that there is a good reason for taking it away. It is a right of citizenship.

Clearly the Minister does not see it in that way. A great deal of time has been spent on trying to find out how or why the Minister does not see it in that way. He thinks that it is perfectly justifiable to disentitle people to benefit before the proof of the offence. In fact, I believe that he thinks that the word "offence" is misplaced. If he thinks that to be so, I should be grateful if he will explain why, because that may help our understanding.

He also seems to believe that the accusation of not meeting the conditions amounts to proof. As near as I can follow what the Minister said, that seems to rest on two premises on his side. The first is the premise which he stated clearly last night; namely, that JSA is a conditional benefit. That is clear enough; it is. Secondly, the Minister seems to have reversed the burden of proof. He seems to be arguing now that you should not receive JSA until you can prove beyond a reasonable doubt that you meet all the conditions necessary for entitlement rather than that you should continue to receive the benefit until he can prove that you do not meet those conditions. That is a major change and I should like to know why it has happened.

It is likely to cause grave hardship. If you take all benefit away from people, possibly wrongly and on a ground which turns out on appeal to be unjustified, at the very best you plunge those people deep into debt and make it more difficult for them to clamber back into earning a lawful living. That is a great pity.

There is a danger here that we may be looking at, in effect, the end of the Beveridge principle of the safety net and at the end of an assumption that people have an entitlement to protection through the benefit system unless a specific offence can be proved against them. We now have an idea that you have to jump through a whole series of hoops before you can enter the benefit system. I do not know why that change has been made and I should be grateful for an explanation. I have heard no reason for it. Not only will it cause grave hardship but it will also generate expense. A few moments ago at Question Time we heard that the Minister does not yet know what those costs will be. Until he knows, at least on grounds of financial caution, perhaps he should go a little easy on disentitlement.

But there is another major issue behind this which was raised 21 years ago by the noble and learned Lord, Lord Scarman; that is, how far the field of social security is subject to the rule of law. It is a field in which the broad concepts of common law have a slightly more tenuous hold before tribunals than they sometimes do in the courts. It is a field in which the administration of the law depends very heavily on statute and regulation. Therefore, it is one in which it is difficult for the law to exercise sufficient control over the power of the Executive. As that affects people's welfare so deeply, that is a matter for regret.

The noble and learned Lord, Lord Woolf, giving judgment in the social fund case in 1990, commented that it was impossible to believe that Parliament had done anything so arbitrary, save that Parliament had. That is a comment which can very often be made in the field of social security. It is because we believe in terms of Parliament controlling the Executive, and as we have been told many times that it should, that that should be put under control. We want social security governed more than it is now by the concepts of the rule of law. 'That is my strongest reason for supporting the amendment.

Lord Palmer

My Lords, I think that the amendment is a classic example of what your Lordships' House can do. It is about defending people's basic rights. If the Government really want support throughout the country, I feel that the Minister must accept the amendment. That will also give the Government an opportunity to show that they care about the less privileged members of society. I strongly support the amendment in the best traditions of the House.

Lord Mackay of Ardbrecknish

My Lords, before I turn to the amendment now before the House, I hope that your Lordships will allow me to refer back to a debate that we had on the first day of Committee, Thursday, 20th April. When responding to the amendment moved by the noble Earl and supported by the noble Baroness which invited me to defer the introduction of the jobseeker's allowance until April 1997, I explained that we were closely monitoring the progress towards implementation and that we had commissioned an external review of the work being carried out on implementation of JSA. I then added: If we conclude, for whatever reason and at whatever date, that the arrangements being made for the introduction of JSA in April 1996 are such that there is an unacceptable risk that things might go wrong, then we shall certainly consider alternatives. One of the alternatives would be to delay the date of introduction".—[Official Report, 20/4/95; col. 590.]

As I have made clear on a number of occasions, the Bill aims to help people into jobs, to improve services to people while they are unemployed and to achieve better value for the taxpayer. The Government's priority is to introduce the allowance successfully through the network of 1,200 jobcentres for unemployed people throughout the country. That is a large and complex undertaking. It involves development of two substantial new computer systems and very large-scale training programmes. As I said, we have kept the project under close review and substantial progress has been made. But we have now concluded that sticking to the planned date would entail risks to the smooth delivery of services to unemployed people.

Therefore, the Government have decided that the jobseeker's allowance should be introduced in October 1996. However, that does not affect our policy. The transitional arrangements for JSA will be such that the duration of an unemployed claimant's entitlement to unemployment benefit will, from April 1996, be the same as it would have been had JSA been introduced on that date. I am pleased to be able to tell the House that the plans for the introduction of the back-to-work bonus are unaffected. The bonus will be introduced as planned in October 1996. As I said on 20th April, one of the objectives of the jobseeker's allowance is to improve the service that we offer to jobseekers. We do not intend to put that at risk. I hope that your Lordships do not mind me making clear at the beginning of today the decision that we have come to on that important issue.

I turn now to the amendment before us which concerns an area which we have debated on a number of occasions. In fact the amendment is couched in very similar terms to one which the noble Baroness tabled at the recommitment of Clause 6. I have to disappoint both her and the noble Earl by saying that I have not had a change of heart since then.

Where there is a doubt over whether someone is entitled to JSA—whether he is a jobseeker—then the Employment Service must refer this for decision to an adjudication officer, and payment of benefit cannot be made on the normal basis. If it appears that a claimant has not been available for work in the previous weeks, he should not receive benefit for that period as if he had actually been available. It really seems that the noble Baroness has accepted that principle in her amendment in providing for reduced payments in those circumstances.

However, unlike the noble Baroness, we do not accept that everyone should have immediate and automatic access to benefit while the adjudication decision is reached. Jobseeker's allowance is a benefit which is intended to support claimants who are available for work. That is a central condition and if the claimant has not shown that he is, he cannot expect to receive the allowance just as if nothing had changed.

The great majority of claimants have no difficulty in meeting the basic conditions. In cases where the Employment Service makes a referral for a decision, 80 per cent. are subsequently found to be not meeting the conditions by the adjudication officer. In those circumstances, I do not see a case for moving to automatic payments for all claimants throughout the period of adjudication, as the noble Baroness wishes. I see that the noble Baroness wishes to intervene. I give way.

Baroness Williams of Crosby

My Lords, I am much obliged. I have a question to ask the Minister on a matter to which he referred regarding the first Committee day. At that stage, on 20th April, the Minister told us that work was being done to ensure the implementation of the Bill on 26th April 1996. We now understand that there may be a delay of six months. In the light of the fact that the Government obviously do not have plans for the introduction of the jobseeker's allowance—and, therefore, it could be subject to further delay—could the Minister be persuaded to reconsider introducing such a draconian measure as removing all benefit in the case of someone where there is doubt about his satisfying the conditions before bringing in the jobseeker's allowance, so that we know that the system is working well, given that we are refusing all income to a substantial number of our fellow citizens and giving them no redress in that respect?

Lord Mackay of Ardbrecknish

My Lords, the matter in front of us will actually come into place when the jobseeker's allowance itself comes into effect. As I told the House a few minutes ago, that will now be in October 1996. At that stage we hope to introduce all the parts of the jobseeker's allowance that we have been discussing. Indeed, I mentioned the position as regards the transitional arrangements for the duration of unemployment claimant's entitlement to unemployment benefit which will change from April 1996. However, the other parts—namely, the proposals that we have outlined to the House over some days—will come into effect in October 1996.

I was just about to deal with the point raised by the noble Earl. As he elegantly says, I believe that there is a problem as regards language. I do not consider that we are actually looking at whether or not an offence has been created; we are actually looking at whether or not someone is entitled to receive that particular benefit. If someone is actively seeking work or if he is available for work, those are the basic entitlements which enable him to claim jobseeker's allowance. That is a difference of language which I am afraid runs through much of our discussions. However, there are other issues in respect of which we are looking at "offences" and where we are looking to impose a sanction. The way in which we deal with such circumstances is quite different from the way in which we deal with the question of entitlement.

Earl Russell

My Lords, can the Minister explain what he means by the word "entitlement"? If he does so, it might get us a little further in the proceedings.

Lord Mackay of Ardbrecknish

My Lords, we have gone into the question of entitlement in some detail. Quite clearly, so far as concerns receiving income-based jobseeker's allowance, what income a person has comes into the matter. However, as regards the employment conditions, entitlement depends on availability for work, which we have defined in Clause 6, and on actively seeking work, as set out in Clause 7. Those are the important considerations. Before a person's claim can be validated, he has to show that he is actively seeking work and that he is available for work. I believe that those are two very clear preconditions to someone receiving jobseeker's allowance.

However, our proposals—for those of your Lordships who have followed them—will protect claimants in vulnerable groups by making hardship payments from the outset to those who show hardship. That includes all claimants who have children, and cases where the claimant or partner is sick or disabled, pregnant, or has caring responsibilities. Other claimants will receive hardship payments after two weeks. We believe that that is a reasonable period in the case of childless, healthy claimants.

We have been over the issue on a number of occasions before, both in Committee and indeed on recommitment. The arguments on both sides have not changed much. I fear that there is still a gulf between us. Our view remains quite firmly that, until entitlement is established, it would be quite wrong to pay benefit. I realise that the parties opposite do not accept that, but I am afraid that I cannot agree to the amendment. I hope that those concerned will agree to withdraw it. However, if they do not do so, I hope that my noble friends will support me in the Lobby.

Lord Wedderburn of Charlton

My Lords, before he sits down, I have a question for the Minister. Is the speech that he has just made perhaps related to a different concept of burden of proof from that which my noble friend put forward? Is it not the case that the Minister has spoken of it appearing that someone is not available for work? Therefore, surely that person would not be able to make a prima facie case. It may be that someone can make a prima facie case that he meets the conditions but the employment officer says that he still has a doubt. It is surely to the second case that my noble friend's amendment is addressed. Where he can make a prima facie case that there is still a doubt which must go to appeal, surely in those circumstances he or she is entitled to retain the benefit or allowance in the interim.

3.30 p.m.

Lord Mackay of Ardbrecknish

My Lords, with the leave of the House, I shall respond to that point. What we are talking about is the doubt that exists in the mind of the Employment Service officer about a case. He must then refer it to an adjudication officer. As I think we discussed at some length yesterday, the situation is that the Employment Service official who makes the reference has to be sure that there is an arguable case with supporting information to show that the claimant is not available for, actively seeking, or willing to accept work. That is the situation. As I think I mentioned earlier, something like 80 per cent. of the cases are found by the adjudication officer not to meet these conditions.

Baroness Hollis of Heigham

My Lords, I thank noble Lords who have taken part in the debate and I thank too those who have come to listen to the debate on a Bill which is often technical. We appreciate that. We have two questions to decide this afternoon. The first—to repeat the question put by the noble Earl, Lord Russell—is: does an accusation of an employment officer equal proof? Is there a difference between accusation and proof? If there is a difference between accusation and proof, the penalty should not start until proof has been established.

The Minister made much of the point that 80 per cent. of referrals by the employment officer go to the adjudication officer and are upheld. That may be the case but the argument would apply even if 95 per cent. were upheld. One is still innocent until proved guilty. However, the Minister conceded that 20 per cent. of those cases are found to be valid at adjudication. That is one in five, 20 per cent. What is more—the Minister did not tell us this —185,000 of the cases that then go to appeal are found to be valid. That is not some trivial number. The chief adjudication officer has said that in 92 per cent. of all cases which go to appeal he is uneasy about the quality of evidence.

Lord Hailsham of Saint Marylebone

My Lords, I hope that the noble Baroness will forgive me for intervening in her excellent speech. Does it not occur to her that the whole of her argument is based on a false premise; namely, that the rules of criminal law, which are riot in issue in this case, should apply to a case where someone is entering an office and asking for money? He must establish something before he obtains that.

Baroness Hollis of Heigham

My Lords, I am grateful for the intervention of the noble and learned Lord, Lord Hailsham. It allows me to clarify a point which perhaps I failed to do when I introduced the amendment; namely, that we are not for the most part talking about people who are seeking to establish an entitlement to JSA which they have never had. The noble and learned Lord, Lord Hailsham, would, I think, be broadly correct if that were the situation. However, we are not talking about that situation. We are talking about someone whose entitlement has already been established and who is already receiving the benefit. Then, because an untrained employment officer thinks there may be a possibility that the claimant is not actively seeking work, that benefit is denied to the claimant, perhaps without any discussion and without a warning letter. The employment officer denies the claimant the benefit while that doubt is being explored.

On that basis I hope that the noble and learned Lord, Lord Hailsham, will accept that he is on our side because here an existing entitlement is being withheld on grounds of a doubt. 'Therefore, the principles of criminal law should surely follow. It was noticeable that the Minister, in reply to my amendment, said all the time, "He appears not to have been available". The Minister chose his words carefully. He said that the claimant who is already in receipt of JSA "appears not to have been available". He did not say that the claimant was not available for work but that he appeared not to be available. What we are saying is that until it is established that the claimant is not available for work, he should have the benefit of the principle of British justice, which is that one is innocent until proven guilty.

That is the first question we have to answer today. Is a doubt the same as a determination? Is an accusation the same as proof? The second question is: on the basis of that doubt is it fair to take away someone's livelihood—someone who is already in receipt of JSA—of just £5 a day and send him into destitution on a doubt? Can we do that? Can we send someone into destitution on a doubt? I was wrong when I said that there were two questions facing us— one, whether an accusation is the same as proof and the other about destitution. There is a third. Your Lordships regularly, as a House, protect the rights of the most marginal and most vulnerable against the Executive when necessary and when that is correct. In my view this is very much a House of Lords question. I hope that your Lordships will take that course today. I ask the opinion of the House.

Baroness Oppenheim-Barnes

My Lords, before the noble Baroness sits down I wish to ask her a question. In the case of the 80 per cent. who are proved to be ineligible, what are the practicalities of trying to reclaim this money from them when they have been paid during the period until they have been proved to be non-eligible? How is this money to be recovered because it is money belonging to every taxpayer in the country?

Baroness Hollis of Heigham

My Lords, the noble Baroness is quite correct. The benefit stops from the moment that an offence has been established and not before. That is surely what we all accept, is it not? We do not punish in advance of the offence being established; we punish at the point that the offence is established. That is what we would achieve today. As I say, if we support this amendment we will be saying that punishment follows the establishment of an offence. If noble Lords do not support the amendment, what this House will be saying is that on a mere doubt we can deny someone a livelihood of £5 a day that stands between him and destitution. I do not think that we should do that on a doubt but only if we are sure of our facts. That is why we have an adjudication system. On the theory we are discussing we do not even need an adjudication system; the doubt of an employment officer would be enough. It is because it is not enough and because we make that distinction that I ask your Lordships to give your views on the amendment.

3.37 p.m.

On Question, Whether the said amendment (No. 22A) shall be agreed to?

Their Lordships divided: Contents, 121; Not-Contents, 145.

Division No. 2
CONTENTS
Addington, L.	Hylton-Foster, B.
Archer of Sandwell, L.	Irvine of Lairg, L.
Ashley of Stoke, L.	Jay, L.
Avebury, L.	Jay of Paddington, B.
Barnett, L.	Jeger, B.
Beaumont of Whitley, L.	Jenkins of Hillhead, L.
Birk, B.	Jenkins of Putney, L.
Blackstone, B.	Judd, L.
Bridges, L.	Kennet, L.
Brookes, L.	Kilbracken, L.
Bruce of Donington, L.	Kinloss, Ly.
Callaghan of Cardiff, L.	Kirkhill, L.
Carmichael of Kelvingrove, L.	Lawrence, L.
Carter, L.	Lester of Herne Hill, L.
Castle of Blackburn, B.	Listowel, E.
Chapple, L.	Lockwood, B.
Chorley, L.	Longford, E.
Cledwyn of Penrhos, L.	Lovell-Davis, L.
Clinton-Davis, L.	McCarthy, L.
Cocks of Hartcliffe, L.	McGregor of Durris, L.
Crook, L.	McIntosh of Haringey, L.
Darcy (de Knayth), B.	Mackie of Benshie, L.
David, B.	McNair, L.
Dean of Beswick, L.	Mallalieu, B.
Dean of Thornton-le-Fylde, B.	Mar and Kellie, E.
Desai, L.	Mason of Barnsley, L.
Donaldson of Kingsbridge, L.	Mayhew, L.
Donoughue, L.	Merlyn-Rees, L.
Dormand of Easington, L.	Milner of Leeds, L.
Dubs, L.	Monkswell, L.
Eatwell, L.	Morris of Castle Morris, L.
Ewing of Kirkford, L.	Moyne, L.
Ezra, L.	Nelson, E.
Falkender, B.	Nicol, B.
Fitt, L.	Northbourne, L.
Foot, L.	Ogmore, L.
Gallacher, L.	Palmer, L.
Geraint, L.	Parry, L.
Gladwin of Clee, L.	Perry of Walton, L.
Gould of Potternewton, B.	Peston, L.
Graham of Edmonton, L.	Rea, L.
Grey, E.	Redesdale, L.
Halsbury, E.	Richard, L.
Hamwee, B.	Robson of Kiddington, B.
Harris of Greenwich, L.	Rochester, L.
Haskel, L. [Teller.]	Rodgers of Quarry Bank, L.
Healey, L.	Russell, E.
Henderson of Brompton, L.	Sainsbury, L.
Hollis of Heigham, B.	Scanlon, L.
Holme of Cheltenham, L.	Seear, B.
Hooson, L.	Sefton of Garston, L.
Howell, L.	Serota, B.
Howie of Troon, L.	Shepherd, L.
Hughes, L.	Simon, V.
Hylton, L.	Stallard, L.

Stoddart of Swindon, L.	Wedderburn of Charlton, L.
Strabolgi, L.	Whaddon, L.
Tope, L.	White, B.
Tordoff, L.	Wigoder, L.
Turner of Camden, B.	Williams of Crosby, B. [Teller.]
Varley, L.	Williams of Elvel, L.
Wallace of Coslany, L.	Williams of Mostyn, L.

NOT-CONTENTS
Aberdare, L.	Harding of Petherton, L.
Addison, V.	Hardinge of Penshurst, L.
Ailsa, M.	Harmsworth, L.
Aldington, L.	Hives, L.
Alexander of Tunis, E.	Hogg, B.
Ashbourne, L.	Hood, V.
Astor, V.	Howe, E.
Balfour, E.	Inglewood, L.
Banbury of Southam, L.	Jenkin of Roding, L.
Belhaven and Stenton, L.	Johnston of Rockport, L.
Blake, L.	Kingsland, L.
Blatch, B.	Kinnoull, E.
Boardman, L.	Knollys, V.
Borthwick, L.	Lane of Horsell, L.
Boyd-Carpenter, L.	Lauderdale, E.
Bruntisfield, L.	Lindsay, E. [Teller.]
Burnham, L.	Liverpool, E.
Butterworth, L.	Long, V.
Cadman, L.	Lucas, L.
Carnock, L.	Lucas of Chilworth, L.
Chalker of Wallasey, B.	McColl of Dulwich, L.
Charteris of Amisfield, L.	McConnell, L.
Chelmer, L.	Mackay of Ardbrecknish, L.
Chelmsford, V.	Mackay of Clashfern, L. [Lora Chancellor]
Chesham, L.
Clanwilliam, E.	Macleod of Borve, B.
Clark of Kempston, L.	Marlesford, L.
Cockfield, L.	Merrivale, L.
Coleraine, L.	Mersey, V.
Coleridge, L.	Middleton, L.
Cornwallis, L.	Miller of Hendon, B.
Courtown, E.	Milverton, L.
Cranborne, V. [Lord Privy Seal.]	Monckton of Brenchley, V.
	Monk Bretton, L.
Cranworth, L.	Morris, L.
Crathorne, L.	Mountevans, L.
Cullen of Ashbourne, L.	Mowbray and Stourton, L.
Cumberlege, B.	Munster, E.
Davidson, V.	Noel-Buxton, L.
Dean of Harptree, L.	Northbrook, L.
Denton of Wakefield, B.	Northesk, E.
Dilhorne, V.	O'Cathain, B.
Dixon Smith, L.	Onslow, E.
Dormer, L.	Oppenheim-Barnes, B.
Dudley, E.	Orkney, E.
Dundonald, E.	Orr-Ewing, L.
Ellenborough, L.	Oxfuird, V.
Elles, B.	Pender, L.
Elliott of Morpeth, L.	Perry of Southwark, B.
Ferrers, E.	Peyton of Yeovil, L.
Flather, B.	Pym, L.
Foley, L.	Quinton, L.
Fraser of Carmyllie, L.	Radnor, E.
Gage, V.	Rankeillour, L.
Gainford, L.	Rawlings, B.
Gardner of Parkes, B.	Rawlinson of Ewell, L.
Geddes, L.	Renfrew of Kaimsthorn, L.
Gisborough, L.	Renwick, L.
Goschen, V.	Rodger of Earlsferry, L.
Gray, L.	St. Davids, V.
Gray of Contin, L.	Salisbury, M.
Gridley, L.	Saltoun of Abernethy, Ly.
Haig, E.	Sandford, L.
Hailsham of Saint Marylebone, L.	Seccombe, B.
	Sharples, B.

Shaw of Northstead, L.	Thomas of Gwydir, L.
Simon of Glaisdale, L.	Torphichen, L.
Skelmersdale, L.	Trefgarne, L.
Skidelsky, L.	Trumpington, B.
Slim, V.	Ullswater, V.
Stewartby L.	Vaux of Harrowden, L.
	Vivian, L.
Stodart of Leaston, L.	Westbury, L.
Strange, B.	Wolfson, L.
Strathcarron, L.	Wynford, L.
Strathclyde, L. [Teller]	Young, B.
Terrington, L.	Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.

Resolved in the negative, and amendment disagreed to accordingly.

3.47 p.m.

[Amendment No. 23 not moved.]

Clause 6 [Availability for employment]:

[Amendment No. 23A not moved.]

Earl Russell

My Lords, Amendment No. 24 deals with training. It attempts to tighten the definition of training by adding the word "suitable" training. It does not require people to make themselves available for absolutely any old form of training: it has to be suitable.

Some of your Lordships may remember Mr. Wackford Squeers in Nicholas Nickleby who used to greet the members of his class with the words: "w-i-n-d-e-r, winder, a casement. Go and clean it!" In Dotheboys Hall that passed under the name of education. I do not wish to suggest that anything as extreme as that has happened in training, but the law has lo provide for contingencies. If training is to have the usefulness we would all like it to have, it must be suitable. There is an actual case of employment training in carpentry where the organisers carried on with the course, although they were not able to afford any wood.

The purpose of training—

Lord Mackay of Ardbrecknish

My Lords, my noble friend and I are having some difficulty. The noble Earl is speaking to Amendment No. 24 and the word "suitable" which he wishes to insert would come not before "training" but before the words "employed earner's employment". I know how careful the noble Earl is, but I wonder whether he has picked up the wrong piece of paper. I marvel at the way he manages to juggle all the amendments and to speak almost without notes. I am quite envious of him. But in this case, while I understand the point he is making, I believe that he is addressing it to the wrong place.

Amendment No. 24 states:

"Page 5, line 12, after ("any") insert ("suitable").

The subsection would then read, For the purposes of this Act, a person is available for employment if he is willing and able to take up immediately any suitable employed earner's employment". I believe that the noble Earl is speaking about training. I hope that that is helpful.

Earl Russell

My Lords, I am most grateful to the Minister. As he may have observed, I had not merely picked up the wrong piece of paper, I had not had time to return to my place to pick up any piece of paper. Although I would have begged to move the amendment, my noble friend Lady Williams of Crosby has the right piece of paper.

Baroness Williams of Crosby moved Amendment No. 24:

Page 5, line 12, after ("any") insert ("suitable").

The noble Baroness said: My Lords, I apologise on both our behalves. However, I was locked outside the Chamber at the time.

Lord Skelmersdale

My Lords, if the noble Baroness will forgive me, surely the right procedure is for the Question to be put and for the noble Baroness to say her piece.

Noble Lords

No.

The Chairman of Committees (Lord Boston of Faversham)

My Lords, was the noble Earl, Lord Russell, moving the amendment, or has it been moved by the noble Baroness, Lady Williams of Crosby?

Baroness Williams of Crosby

My Lords, I must apologise for whatever confusion my noble friend and I have managed to put the House in. However, I am glad to say that I believe I rose to my feet at the right moment. I am learning slowly.

The purpose of the amendment is to follow up a significant point raised by the noble Lord, Lord Renton, during the Committee stage. Noble Lords will recall that we had considerable discussion about the definition of the words "available for work". In seeking to meet that condition, we were concerned that a claimant might find a job proposed to him that was unsuitable in terms of his capabilities, training, experience and possibly even his age and physical and mental condition.

The introduction of "suitable" before "employment" ensures that when a jobseeker fulfils the conditions of a jobseeker's allowance—and if he fails to fulfil those conditions he may lose benefit for a period of several weeks or even months—the employment officer would be obliged to consider carefully whether the employment was suitable for the claimant.

One of the arguments for the Bill which Ministers advance is that the jobseeker's agreement is a step towards a closer fit between claimants and the jobs which they might be sent to fill. That is a perfectly proper ambition. But as Members of this House, we are concerned that the fairly draconian steps which can be taken vis-à-vis a claimant's entitlement should not fall at the first fence because the employment officer has suggested as a condition that the jobseeker seeks jobs which simply do not suit his or her capabilities, talents and, for that matter, experience.

Noble Lords on this side of the House believed that the point made by the noble Lord, Lord Renton, was extremely sound. The amendment lays upon the employment officer some responsibility to reach his side of the agreement so that agreement is genuinely mutual and not another word for a form of coercion. Therefore we picked up the points raised by the noble Lord, Lord Renton, and embodied them in an amendment. We sought to reach the noble Lord to discuss the matter with him, but for various reasons were unable to do so.

I add one further point. Although the word "suitable" is tiny, it helps to give the Bill some validity in terms of meeting the needs of both sides—the employment officer and the claimant. Concern has been expressed again and again on this side of the House that the agreement might be little more than a set of conditions which have to be satisfied without considering the specific human characteristics of the person before the employment officer. We wish to make it a genuine agreement. We genuinely wish to remove elements of unacceptable coercion. Therefore I strongly commend this small word to the House. Both sides will then have to meet on a reasonable basis without the scales being heavily weighted in one direction or the other. I beg to move.

Baroness Seear

My Lords, I remind the House—in particular the supporters of the Government on the Benches behind the Ministers—that the agreement is between three parties rather than two: the Employment Service, the claimant and the person who will employ him. No employer wishes to have an unsuitable person foisted on him. If one is considering satisfactory employment lasting for any length of time, all three parties have to be satisfied that it is suitable, not least the employer.

Baroness Turner of Camden

My Lords, I support the amendment. When we discussed the recommitted Clause 6, we had a little amusement at the possibility of a Member of the Government Front Bench, perhaps after the next general election, being offered a job as a Labour Party fund-raiser. However, the amendment raises a serious point. There is a widespread view—I confess that I share it—that the Bill is intended to get people off the unemployment statistics and into employment —perhaps any employment—so that they can no longer be classified as unemployed, and, even more important from the Government's point of view, off contributory benefit which they can have as of right.

During discussion of the Bill, the Ministers' responses to a range of amendments have done little to allay that fear. There may well be mismatches which are almost as great as the example of a former government Front Bencher being offered a Labour Party job. The discussions yesterday made it clear that there will be pressure on employment officers and others concerned with the administration of this legislation to get people into employment and off benefit.

Once the legislation gets down to the grass-roots operational level, so to speak, that pressure may well be translated as getting the applicants into any job. Unemployed people have real fears that they could be forced into unsuitable work—and work, moreover, which would make it much more difficult for them later to get back into the type of work for which they have skills or training. The unemployed insurance or bank clerk—there are many more of those than there used to be since financial services are no longer a secure employment area—could well feel that a stint at stacking shelves in a supermarket might mean that he or she will not be able to get a job in financial services again. Future employers would not be impressed by the job record, and openings in their chosen field could well be blocked off. Moreover, people used to desk work or white collar employment may not be physically suitable for work requiring manual effort.

These are genuine fears of people cast out of employment through no fault of their own but simply because of reorganisation, restructuring, introduction of new technology, increased competitiveness, and so on. Those people are the victims of government policy. It is the Government who have encouraged companies to become ever more competitive, to cut back on staff, to introduce job flexibility, and so on. That has introduced widespread insecurity in the employment field, even among people who are in employment.

If what the Minister said is to be given credence, let him accept the amendment and spell out on the face of the Bill that people will not be forced against their will into unsuitable employment or risk losing the very low level of benefit which will be available to them as a jobseeker's allowance. I have pleasure in supporting the amendment. I hope to hear that the Minister agrees to accept it.

Lord Renton

My Lords, I regard this as merely a drafting matter. However, the provision has one or two other minor advantages of substance. I hope that I may be forgiven for repeating a thought that entered my mind at an earlier stage of the Bill: that anyone reading this subsection would, unless one reads it exceedingly carefully, think that it was referring to pinching someone else's job.

The introduction of the word "suitable" would, to a great extent, dispose of that concept even if it is regarded as not being frivolous. The expression "employed earner's employment" is taken from the benefits Act and it is right that in order to preserve the continuity of statutory phraseology it should again be used in this Bill. However, we must be careful how we use it so that it does not give a misleading impression.

Apart from clarity in drafting—and from that aspect the amendment has a great deal to commend it—I suggest that from the Government's viewpoint it has the positive advantage that "suitable" is a word of limitation. It benefits not only the person applying for the jobseeker's allowance, but it limits the well-known expression "employed earner's employment". So from the Government's point of view of naturally wishing to control the circumstances in which the jobseeker's allowance is awarded, as well as clarifying the position for the person employed, the word "suitable" should be inserted. It can do no harm. If it provides clarification and, as I suggest, "suitable" is a word of limitation, then the amendment could well be accepted.

4 p.m.

Lord Skelmersdale

My Lords, I am sure that my noble friend Lord Renton is right that the amendment limits the Bill in the way that he suggests. However, it worries me that, as the noble Baroness, Lady Seear, said, there are three parties. Therefore, who is to decide who is suitable? Is it the potential job applicant? Is it the potential employer or is it the official in the Department of Employment?

Lord Renton

My Lords, although it is not the Committee stage perhaps I am in order in offering my noble friend an immediate answer to the problem which he raised. The word "suitable" in the context in which my noble friend and I suggest it should be used here means "suitable in the light of the other provisions of the Bill". That is plain enough.

Lord Inglewood

My Lords, I am extremely grateful to the noble Baroness for explaining the background to the amendment, which covers important matters of real interest to your Lordships, as our debate has shown.

As Clause 6 makes clear, taking its cue from existing case law, jobseekers have to be available for any employment in order to receive JSA. I have said repeatedly why this is so central to the effective functioning of JSA as a labour market allowance. The first priority of jobseekers must be to make every effort to find work as quickly as possible. That is why it is vital that jobseekers are open to as many job opportunities as possible.

Both the Employment Service and jobseekers have a role in ensuring that no opportunities are closed off to the jobseeker. Defining "availability" as the willingness and ability to take up any suitable employment would be detrimental. It is very difficult for an individual to predict in the absence of a specific offer whether a job would be "suitable" or not. Some people might well decide rather arbitrarily and without proper knowledge that particular jobs were "unsuitable" and hence not make themselves available for them. Surely that is wrong. The labour market is wide, flexible and constantly changing. We want to avoid the rigidities of the past and to encourage jobseekers to think broadly about their potential and abilities. But I should say straight away that there is no question of the Employment Service forcing people into unsuitable jobs.

Perhaps I may pick up the point made by my noble friend Lord Skelmersdale and the noble Baroness, Lady Seear. The Employment Service cannot in any way compel an employer to take someone on. The Employment Service's wish is to place people in employment. If the service acquires the reputation of continuously offering people who are wholly unsuitable, it will degrade its reputation and reduce its efficacy in putting people into work.

I should now like to explain some of the safeguards in the system. There are three features of which I should particularly like to remind your Lordships. I wish to talk briefly about restricted availability.

First, as I have emphasised several times before, and as Clause 6 makes clear, we will be allowing restrictions for certain groups as part of the availability condition. We intend to provide that certain groups will be able to restrict their availability, for example, on grounds of mental or physical condition, religious conviction or because a person is caring for another person. The regulations will allow certain people to restrict their availability to what is in effect a suitable range of work.

Moreover regulations will provide that in any week a claimant who does not wish to make himself available at all times may limit his availability to a minimum of 40 hours. He may agree any pattern of 40 hours across the week provided he retains reasonable prospects of securing work. Jobseekers will also be able to restrict their availability in other ways (for example, in terms of location or type of work) again provided that they retain reasonable prospects of securing employment.

I now wish to talk about refusal of employment; but before coming to my second point, I should perhaps just emphasise to your Lordships; that it would be very difficult to come to a practical and workable definition of what would constitute a person's availability for suitable employment. I wish to focus on the point raised by my noble friend Lord Renton. The question of availability concerns whether jobseekers are able and willing to take up a job, not whether they actually do so. The best way to protect the jobseeker from being obliged to take an inappropriate job is through the rules on the sanctions for refusal of employment. Under JSA, as now, a person will not receive a sanction for refusing an offer of a job if he has good cause for doing so.

If a jobseeker has good reasons for not accepting an offer of a vacancy, those reasons will be put to the adjudication officer who will consider whether the jobseeker had good cause for his refusal. In most instances, if a job was unsuitable the employment officer would simply not refer the claimant to the vacancy at all. I wish to return to a point which I made on a number of previous occasions—that it is in the inherent characteristics of the changes to the system that we propose that a long-term relationship is built up between the jobseeker and the employment officer. They can and will talk to each other and discuss items such as what they are looking for and how the jobsearch will proceed.

However, if the employment officer presented a job which the jobseeker turned down, and then on reflection the employment officer came round to the jobseeker's point of view, the matter would go no further. It is only if the employment officer concludes that the jobseeker has not shown good cause for refusal that the matter is then put to the adjudication officer. He will independently consider whether the jobseeker had good cause for that refusal.

In short, if there were grounds which meant that it was unreasonable for the jobseeker to apply for the job—for example, because of the jobseeker's level of skill, because of any mental or physical condition, because of caring responsibilities—then the adjudication officer may well consider that he had good cause.

Finally, I wish to say a few words about employment on trial. We recognise that people may be nervous about taking jobs which are new or unfamiliar to them. That is the kind of point to which the noble Baroness, Lady Turner, referred. The "employment on trial" rule addresses that fear. It ensures that certain unemployed people will not receive a benefit sanction if they give up their work in certain conditions. At present, employment on trial is open to those who have been unemployed for 26 weeks and who leave a job having tried it for a minimum period. Under JSA, the employment on trial provisions will be extended to those unemployed for 13 weeks or more.

I have deliberately spent a little time on this matter, but I hope that my having set out our approach in this way will reassure the noble Baroness and that she will withdraw her amendment.

Baroness Williams of Crosby

My Lords, I thank the noble Lord for his reply but remain somewhat unpersuaded by it. It seemed to me to be very much the kind of answer which the Civil Service might provide, but I wish to draw to his attention two real anxieties. Employment officers will do their best to meet the spirit of the Bill, if it is enacted. Therefore, the likelihood is that an employment officer will do everything in his power to submit the name of the jobseeker for a range of jobs which he might be able to do but which might well fall short of the definition of "suitable employment". Perhaps I may give two examples from different aspects of the field.

First, the taxpayer in this country has sunk into the education of a number of highly qualified people amounts as high as a quarter of a million pounds. That is what it roughly costs to train a medical doctor. There is range after range of qualifications that have been financed by the taxpayers of this country. Without the word "suitable", a person might be submitted for far lesser jobs, in which his qualifications are not necessary and not useful.

I am also concerned about the failure to protect the employment officer should he decide to wait in order to put forward somebody's name for a job that would be more suitable, given that person's qualifications. In the past couple of years we have seen a rising level of unemployment among skilled and qualified people. By giving the employment officer so little discretion to decide whether somebody is suitable for a job we encourage him to submit the names of people in whom the investment has been very large, rather than waiting to see whether there is more suitable employment for them.

My second anxiety arises from the fact that without the word "suitable" we are in effect weighting the scales too far, in the triangle to which my noble friend referred of employment officer, claimant and employer, in the direction of the employment officer. In response to the noble Lord, Lord Skelmersdale, this amendment qualifies the powers of the employment officer. That is the only person whose power is qualified by the addition of the word "suitable". In my view the scales are being tipped too far against the claimant—and many claimants will be sincere and genuine people—unless the claimant has the right to discuss in effect what employment would be suitable, given his particular qualifications.

As somebody who, all my life long, has been on the opposite Benches to those of the Conservative Party, I have respected the sense that they have always had of profound fairness. I fear that this aspect of the Bill departs from that principle of fairness. I therefore must seek the opinion of the House.

4.12 p.m.

On Question, Whether the said amendment (No. 24) shall be agreed to?

Their Lordships divided: Contents, 124; Not-Con tents, 150.

4.20 p.m.

Baroness Hollis of Heigham moved Amendment No. 25:

Page 5, line 30, at end insert ("and in particular, a person shall be entitled to refuse to make himself available for employment where the average weekly remuneration would produce an income less than the amount of means-tested benefits to which he is entitled.").

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 31. This amendment would protect the jobseeker from being required to accept a job that pays below JSA or the old income support rates. Why is that? It is because that rate is a poverty rate and we do not believe that people should be required to make themselves poorer in consequence.

What is the old income support/JSA figure? It is less than £37 a week for someone under 25; it is £46.50 for a single person over 25; and £73 for an unemployed couple without children—in other words, £5 a day for each of them. Most of us cannot survive even on that sum—the existing jobseeker's allowance—without getting into debt, scrounging from friends and family who themselves may be unemployed or needing Social Fund loans. That is a poverty line. It is basic. One cannot live below it. Yet, with the abolition of the wages councils and with compulsory competitive tendering in public services, wages for the low paid are falling. There are now nearly 1.25 million people earning less than £2.50 an hour and a third of a million people earning less than £1.50 an hour, which is well below income support/JSA levels.

Also, more and more jobs are temporary and not, as we would understand it, full-time jobs. They comprise 25 hours, 28 hours or 30 hours. That is too many hours to combine with another job but not enough hours to float that person above income support level and off the poverty line. In consequence, 3 million people at the moment earn less than £57 a week and too little to pay national insurance contributions. About whom are we talking? We are talking about people who work in hairdressing, catering, shops, cleaning and retailing and those who are care assistants and work in old people's homes. Those low-paid people are weak, scattered, not organised in trades unions and are not any more protected by wages councils. They are in no position to defend themselves as wages are pressed down and down.

But, the Minister may argue, are not they at least pricing themselves into work by accepting such low rates of pay? On the contrary, since the abolition of the wages councils, over 18,000 jobs have been lost in the industries that the wages councils protected, while at the same time the pay for those jobs has fallen. Cutting wages does not create more jobs; it merely pays less for the same job.

Who are willing or able to afford to accept such jobs which now pay below income support levels? They are mostly women whose partners are in work and who are therefore above the poverty line. Because her partner is in full-time work, she can afford to take a low-paid job. As a household they are above the poverty line even though her pay as an individual may be below it. So this amendment does not affect them.

But it is a very different situation for someone who is currently on jobseeker's allowance, either as a single person or as one of an unemployed couple, who is required by an employment officer to take a job which brings his or her income down below that poverty line, below income support and below jobseeker's allowance. For an unemployed couple that figure would be £73 a week. Let us suppose that the man in that partnership is offered a job stacking shelves at £2.20 an hour—now a perfectly standard wage for stacking shelves—for 30 hours a week. It is not a part-time job but a semi-full-time job. How much would 30 hours a week at £2.20 an hour bring in? It is £66 a week, which is some £7 a week less than the poverty line JSA figure of £73 a week that the couple needs to live on. That is before he pays national insurance and before any travel to work costs are taken into account. If that person is required to take that job at £66 a week, which pays less than JSA, then JSA or income support is no longer, as the noble Earl, Lord Russell, said, a safety net below which no one needs fall. Instead, it has become a trapdoor through which the lowest paid fall.

Employers will be able to fix wages at whatever level they will. Why stop at £2.20? Why not pay £1.75, £1.50 or £1.25 an hour? They know as employers that they will have the support of the employment officer acting, if one likes, as a sergeant-major, requiring people to take jobs which make them poorer than if they were to remain on benefit. How will they do that? The employment officer will say, "Take this job which pays less than JSA or you will lose JSA altogether." That is not a labour market. That is forced labour, at exploitative pay. What will be the consequence? If the couple have no children and one is required to take that 30-hour £66 a week job, they will be forced to live below the poverty line. They will get into debt, scrounge or go into fraudulent work—the black market or black economy work.

However, if they have children they will receive family credit, which is a top-up in-work benefit for those with children. The result is that over the past four years the cost of the family credit benefit has soared. It has more than doubled. That is not because people have had more children but because employers have cut wages, knowing that the state will take the strain and top them up again. The employer has exported his wage bill to the rest of us as taxpayers. Why should we permit that? He has not done it more widely simply because people without children have been able to refuse jobs that pay less than income support. As a result, income support has effectively operated as a minimum wage below which wages may not fall.

Unless we accept the amendment, income support will not act as a minimum wage in the future. If, in the future, anyone on JSA can be required to take any job, irrespective of whether it pays above or below income support levels, then that floor of decency, that safety net for us as citizens and taxpayers, has gone. Employers can pay what they want and either "you" as a jobseeker or "we" as taxpayers, will subsidise and subscribe to an unlimited wage subsidy for employers.

The result is again a "Morton's fork". If a couple have no children, they are required to live below the poverty line; if they have children, we as taxpayers will subsidise the employer's wage bill to take them above the poverty line. Below the poverty line they are in destitution; above the poverty line, with children, we subsidise the employer. Neither of those alternatives is fair or acceptable. How do we stop it? By saying that no one should be required to take a job that pays below income support levels; that no one should be made poorer in work than on benefit—the level of benefit itself being our poverty line. I beg to move.

4.30 p.m.

Earl Russell

My Lords, I offer my support to both the amendments, which are important. They would put a floor underneath the wage at which people may be required to work, and would put it at the level of income support. Putting people below that level causes considerable hardship. While I appreciate that that is not necessarily regarded in all quarters as conclusive, nevertheless it is not negligible.

For example, I am aware of a case of somebody discussing his job plans with his employment officer, who worked out a budget which covered his actual outgoings—council tax, mortgage and so forth. Repossessions are not cheap, either for the country or for those who suffer them. The claimant then sent in that calculation, with his employment officer's approval, and was deprived of benefit on the ground that he had placed unreasonable restrictions on his availability. That does not seem to me to be a practical way of going on. There must be a floor underneath the wages at which people can be required to work, especially where we do not really have a free market; where the labourer cannot bargain because he is not given the freedom to do so. In particular, people should not be compelled to take jobs which pay commission only. I have known people quite well who are involved in looking for jobs in the part-time, deregulated labour market and they have come across jobs which no one in any civilised country should ever be compelled to take. There are limits.

I understand that that is not recognised as conclusive by all concerned, and we must therefore consider costs. I stress that I am always prepared to consider costs, but we must get them right. We have already heard reference today to the new book by Mr. Frank Field reported in the papers last Saturday which estimated that 50 per cent, of our population were on means-tested benefit. I have had no time since Saturday to check that figure. What Mr. Field says must always be taken seriously and I regret to say that that figure is by no means self-evidently absurd. As far as I can check, about half of Mr. Field's figure results from people on means-tested, in-work benefits who are being subsidised by the state because the wages paid by the employer are too low. I am sure we all agree that there are circumstances in which that can properly be done, but there must be a check on it, otherwise the temptation on the employer to free-load on the state is irresistible.

If 25 per cent. of our population are being paid wages so low that the state has to subsidise them, then the state is taking on a financial burden in the face of which it ought to hesitate. For example, we know that the cost of housing benefit is causing considerable concern to the Chief Secretary, as well it might. He has not recognised the problems, although when he says that there is a problem, he is unquestionably right. Again, the cost of housing benefit is largely the result of wages which are too low to sustain people in the housing market in which they have to be if they are to be able to work at all. To a lesser extent one can say the same of council tax benefit and family credit. But the three of them together give rise to a burden which the state should not multiply unnecessarily. I entirely agree with the Minister that the interests of the taxpayer need considering. I do not think in this regard that they are being considered in a sensible way.

When we were in Committee I drew the Minister's attention to a Written Answer I was expecting about the fall in public revenues during the past financial year. It so happened last week that the Minister signed the Answer himself, so it will already have come to his attention and I thank him for it. He may have noticed that the biggest drop in revenues was in income tax. If I remember rightly, although I do not have the figure by me, it was a drop of 1.2 per cent.

The Minister has reminded us many times in the course of the passage of the Bill that we have more people in employment than we had a year ago. He conceded that we welcome that, as he does. But when we have more people in employment and less revenue in the form of income tax, we need an explanation. The most likely explanation—I should like to know what information there is to sustain or oppose this conjecture—is that it is the result of falling wages. If we pay people less wages, we pay less tax; we damage the state's tax base and put an increasing burden on the diminishing number of people who are still receiving a big enough income to pay large sums of tax.

The state therefore is shooting itself not only in the foot, but in both feet. It may claim that it is creating more jobs. Supposing it is; I am in favour of public spending to create more jobs, but we must be careful how we do it. For some projects of job creation the price can be too high. This is very likely one of them. If the state wants to create jobs, it could find cheaper ways of doing so.

Finally, when we discussed the hypothesis of creating jobs, I should like to recall the Minister's attention to the incident of Bottomley's list. This occurred during the debates on wages councils in 1990. Mr. Peter Bottomley asked the Government what the studies were that supported the contention that a floor under wages destroyed jobs. They gave him a Written Answer listing 26 studies. None of them proved the point and four argued directly for the opposite. The Government's case therefore rests on a shaky evidential foundation. To shoot oneself in both feet as a result of bad evidence is not clever.

Baroness Williams of Crosby

My Lords, I should like to add to the remarks of my noble friend Lord Russell, and the noble Baroness, Lady Hollis of Heigham, on this extremely important amendment. My first point concerns the operation of a free market.

In a free market the price that is eventually set is one that balances supply and demand and therefore reflects the position of those two forces. Let me draw the attention of the House to what the Bill says. It contains what philosophers call "a prisoner's dilemma". The claimant is asked to say what is the lowest wage for which he would be willing to work. That refers to the documents circulated during the Committee stage of another place where the Minister of State indicated the kinds of question that would be asked in a jobsearch review. I understand that it is already part of the existing procedures.

One of those questions is, "What is the lowest amount of wages before stoppages that you will be willing to accept?" No similar question is asked the other way—such as, "What is the highest wage you would be willing to pay to get this job done?" As I understand it, if the claimant refuses to answer the question he may be in breach of the conditions of the jobseeker's agreement. If he does answer it, how does he do so? If he sets the figure too low his family and his relatives may suffer. If he sets it too high he will be regarded as having imposed an unreasonable condition on his availability for work.

That is not a free market but a coerced market in which one side is being asked to tie itself in advance by stating a condition which immediately changes the whole of the terms of a free market bargain and the other side is being required to say nothing at all. Even from the point of view of the philosophy espoused by many who believe in an unrestrained free market, it has to be said that this is a very strange piece of legislation indeed.

There is a second consideration I wish to bring to your Lordships' attention. It is one which has been very effectively advanced by my colleagues. It reflects the difficulty that will be thrown up, if this amendment is not passed, in trying to move to a reconstruction of the welfare state in which we put the emphasis on subsidising, not people to stay unemployed, but jobs to enable them to be employed. The case deployed by the noble Baroness and by my noble friend is that the route to that much more satisfactory kind of welfare state—one already being explored by a number of research centres and brains trusts —would effectively be barred by the sheer scale of the subsidy required from the state unless there is some minimum level which employers need to pay in order to have a job filled. I believe that that is a very sensible route to follow. We need to get away from the culture of dependency to that of self-employment and employment in order to retain one's own self-respect.

If this amendment is not passed, effectively we shall make going in that direction so expensive for the taxpayer that we shall make it virtually impracticable. Therefore, I strongly support my noble friend and the noble Baroness because I believe that the consequences of not passing this amendment are very large indeed. They are consequences which in effect bring us very close to a form of coercive labour.

Lord Inglewood

My Lords, I shall begin with a few words about the amendments themselves before going on to the substantive argument that lies behind the debate of the past few minutes.

Amendment No. 25 seems somewhat muddled. Its purpose seems to be to prevent people being penalised for not being available for work which would pay them less than their means-tested benefit entitlement. The wording of Amendment No. 31 is even more extraordinary. If I am reading it properly, the type of employment that a claimant may or may not refuse to seek is irrelevant. The expression "whether or not" means that whatever the claimant does or does not do, he is to be treated as actively seeking work. In other words, the amendment would appear to us to have the effect of enabling every JSA claimant to be treated as actively seeking work. I accept that that is not the intention of the noble Baroness. Her intention is similar to that of Amendment No. 25, so that claimants could avoid seeking work which would pay them less than their means-tested benefit entitlement.

Baroness Hollis of Heigham

My Lords, I do not wish to bandy words. I know that the Minister understands the point of these amendments, but as regards Amendment No. 31,1 believe that his remarks and strictures would only be true if it said, whether or not he refuses to seek employment [and] where the average weekly remuneration". That is clearly not the case. The amendment states, whether or not he refuses to seek employment", which is then modified or constrained by the rest of the sentence, where the average weekly remuneration would produce an income less than the amount of means-tested benefits to which he is entitled". The phrase, whether or not he refuses to seek employment is understood in the context of the "average weekly remuneration". It would not be so understood if there were either a comma or an "and" there.

Lord Inglewood

My Lords, I thank the noble Baroness. I am not sure that I agree with the construction of the words on the page, but I do not want to make a point about that because it is important that we address the substantive argument which is why we are here this afternoon.

We are still very unclear exactly of the compass of these amendments. What exactly do they mean? Do they mean and refer to the amount of income-based JSA that the claimant receives while he is unemployed? That would have unfortunate consequences. I should remind the House that income-based JSA will include amounts to cover claimants' mortgage interest payments, just as income support does now. We have all heard of cases where claimants' benefit entitlement is hundreds of pounds a week because of this rule. Is the noble Baroness suggesting that claimants in this position should be able to refuse work which does not provide them with that sort of money? That really would enable them to remain on benefit forever. That is a matter she must deal with. Perhaps the noble Baroness means her amendments to refer to income-based JSA entitlement, but excluding mortgage interest relief.

I wish to go back and look at the reference to the level of remuneration. That appears not to take account of the in-work benefits such as family credit, which people can claim once they are in work. As my colleagues and I pointed out many times, family credit and other reforms of tax and benefits mean that virtually all claimants are better off in work.

But, regardless of the exact detail of what the amendments are supposed to refer to, I cannot accept them. They stipulate that the average weekly remuneration in the employment is to be taken into account. There may be no great difficulty in determining the probable average amount of weekly income. But do we take into account benefits in kind offered by the job? Do we include travel-to-work costs or child-minding fees? How can a jobseeker know about how such matters would affect his level of income before taking a job?

I pose the questions to make the point that it would be virtually impossible in practice, as well as wrong in principle, to make such a calculation on the basis of the level to which each individual jobseeker could restrict their availability indefinitely. That is why I am not going down some kind of spurious and hypothetical Dutch auction route which the noble Baroness has previously tried to tempt us with.

We believe that people should not hold out indefinitely for a given level of remuneration. On previous occasions we have talked about the permitted 13-week period and how, over time, if the jobseeker cannot find a job within that period restricted to his previous rate of remuneration and sphere of activities, the extent of the job search has to be widened. That is important in the context of the comment made by the noble Baroness, Lady Williams, about the level of remuneration indicated in the relevant documentation. It shows where we are starting from.

Considerable play has been made about levels of remuneration, the number of jobs at a particular rate of pay and other jobs at other rates of pay. It is important, looking at the picture in the round, to identify which sort of jobs one is talking about; full-time, part-time and so on. I have mentioned family credit. We have also indicated that we are proposing a pilot scheme in respect of single people and childless couples.

4.45 p.m.

Baroness Williams of Crosby

My Lords, I hope that the Minister will forgive me. I am only addressing the fact that I believe the brief he is referring to does not take adequate note of the fact that the noble Baroness specifically distinguished between those families who were entitled to family credit and those who were not. Indeed, a large part of her remarks were devoted to that aspect. In all fairness to her, I should make that plain to the House. She did not pretend that certain families without children were entitled to family credit, but equally she did not pretend that those with children would not get family credit if they were driven to very low-paid jobs.

Lord Inglewood

My Lords, I thank the noble Baroness. I would not wish to be unfair to anybody. However, I should remind your Lordships that Clause 6(5) enables a claimant with a usual occupation to restrict his availability during the permitted period. In determining the length of the permitted period, which can be up to 13 weeks, a number of matters will be taken into account. As we have discussed previously, these will include the claimant's skills and qualifications, and the length of time he had been engaged in his usual occupation. As I said, after the permitted period, he will not be expected to be immediately available for any rate of pay, but he will certainly need to start widening his horizons, since— quite honestly—there is no point in holding out indefinitely for a rate of pay that may no longer be realistically attainable. After six months, we would expect the jobseeker to place no restrictions concerned with the rate of pay. It is the case that two-thirds of those who lose their jobs are already back in work by that point.

Rates of pay are only directly relevant to Clause 7 for the purpose of the permitted period provisions in Clause 7(5). Claimants can confine their jobsearch to their accustomed rate of pay during the permitted period determined under Clause 6(5), and if they do so they will be treated as actively seeking employment.

Apart from that, Clause 7 simply requires a person to take such of the steps he can reasonably be expected to take in order to have the best prospects of securing employment. There is no mention of pay in this; provided the claimant is taking steps that give him his best prospects of securing employment, the rate of pay is not of immediate relevance. I suggest that the noble Baroness is confusing availability for employment with the actively seeking test. Let me be quite clear. Provided that jobseekers remain available for any work within any restriction imposed, there is nothing to prevent them concentrating their search for work to highly paid jobs in the City, academia, local government or anywhere else, if the steps they are taking to do that give them their best prospects of securing work.

Two points have been raised which I should like to address directly. I turn first to that raised by the noble Earl, Lord Russell, who returned to a matter that we debated at some length in Committee. I refer to commission-only jobs —that is, jobs which pay no salary and where the reward comes by commission. I suggest that in many cases the contractual nature of such employment would be self-employment. Jobseekers do not have to make themselves available for self-employment (although they may do so if they wish) nor will they face sanctions under Clause 18 for refusing self-employment. If the adjudication authorities took the view that a person had been offered "employment" even though the work in question consisted only of work that paid no salary, they might also take the view that the reason for refusal was not the level of remuneration but the nature of the employment in question and that the jobseeker therefore had good cause for refusing it.

The fact is that we are not aware of adjudicating authorities ever having had to consider such a case. That is because the Employment Service, while it agrees to display vacancies that offer commission only, instructs its staff that claimants should be warned to consider such vacancies carefully before applying for them. Staff do not refer claimants to such jobs against their wishes. Of course, some claimants would welcome the opportunity to work on that basis and many who do so earn substantial sums of money.

The other point raised related to forcing people into work which was some form of exploitation. As I explained on a previous occasion when we debated this matter, it is axiomatic that the way in which the Employment Service operates is reasonable. The Employment Service does not, for example, try to put people into jobs which would be illegal or where the job would in some way endanger them under the health and safety regulations. Over the course of a year, about 4 million people claim through the Employment Service and we cannot find any example since 1989 (during the period that the present rules have been in place) of the Employment Service placing people in work where it has been, essentially, an instrument of exploitation on behalf of the employer. Bearing in mind all that has been said, I must stress that we cannot find any examples of that.

Lord McCarthy

My Lords, is the noble Lord saying that it cannot be exploitation and that it cannot be unreasonable if it is just a matter of money? Is the noble Lord saying that if, after six months, the: jobseeker is sent somewhere, offered a job or presented with an opportunity by an employment officer and the only thing wrong with the job is not that it is illegal, but that it offers starvation wages that are way below the level of the jobseeker's allowance, that is perfectly reasonable and is not exploitation?

Lord Inglewood

My Lords, I said earlier that I was not going to enter into a hypothetical Dutch auction because we had plenty of opportunities for that in Committee. I go back to the point that I made: very large numbers of people are dealt with by the Employment Service and we cannot find an example to back up the extreme hypothetical instances quoted by the Benches opposite.

Lord McCarthy

My Lords, but that is because the noble Lord will not accept, and would not allow an employment officer to say, that an offer was unreasonable if it involved starvation wages. He does not recognise that as exploitation. That is why he cannot find a case. He prevents any case.

Lord Inglewood

My Lords, no. I think that I explained it absolutely clearly.

It is in the interests of jobseekers to show maximum availability to get back to work, and not to restrict their jobsearch. The main cause of poverty, as study after study has shown, is not low wages but the lack of a job—and the more jobs, the more income tax. It is gratifying to note that seasonally adjusted unemployment fell in April to 2.328 million, a decrease of 18,900 on the month, which is the 20th consecutive monthly fall.

As the honourable Member for Birkenhead commented in the same document as the noble Earl, Lord Russell: Defining the poverty line is a political Eldorado for any welfare scheme". We do not believe that that is the right way to approach this. We believe that the effect of the amendments might be to close off opportunities for jobseekers of getting back into work. That is why I cannot accept them.

Earl Russell

My Lords, before the noble Lord sits down, will he discuss some of the arguments that have been raised about the cost to the Exchequer?

Lord Inglewood

My Lords, the possible extent of such a debate is limitless. However, we do not believe that the right way to mitigate the open-ended commitment to helping people is by going down the route which the noble Earl advocates.

Baroness Hollis of Heigham

My Lords, I thank all noble Lords who have contributed to this debate, particularly those on the Liberal Benches. The Minister made two points. First, he challenged us by saying that the amendment is defective because it is unclear. The Minister knows perfectly well what we are talking about—perhaps I should say that he would have known perfectly well if he had been listening to the speeches. We were saying that nobody should be required to accept a job which pays less than the jobseeker's allowance which, as I spelt out, is £37 per week for a single person under 25; £46.80 per week for a single person over 25, and £73 for a couple. I had hoped that I had made that abundantly clear. I am sorry that the noble Lord felt obliged to say that it was not clear.

We dealt with the question of mortgage payments last night. That point is covered by the changes in the mortgage procedure. We are talking about the level of JSA as a benefit by comparison with the pay offered in a Jobcentre. I had hoped that I had made that perfectly clear. I do not think that the noble Lord was fair to suggest that the amendment, as moved, was unclear.

The noble Lord's second point was that we were not sufficiently clear about who might be affected. The noble Lord is the most courteous of Ministers, but on this occasion, as the noble Baroness, Lady Williams, said, I do not think that he paid us the courtesy of listening to what was said.

I had hoped that we had made it clear that we were distinguishing between couples without children and couples with children. We said that the consequences of failing to pass the amendment would be equally devastating, but in different ways. Why? Because a couple without children or a single person will not be entitled to an in-work top-up benefit. Therefore, they are required to accept a job which pays less than income support or JSA. That is what they are stuck with. They will be earning an income that is below the poverty line. We have said that that is an exploitative wage by any definition. We are talking about jobs that pay less than the noble Lord, myself or anybody else in the Chamber accepts as the minimum poverty level. That is why income support is set at the level that it is—because it is the minimum poverty level; yet those without children are being asked to work for less than that. We are saying that that is unacceptable because it is exploitative.

Although those with children get family credit to top up wages, and that overcomes their immediate poverty problem, it does so at the expense of creating a social security problem for the rest of us. What happens? We, as taxpayers, then top up that poverty exploitative wage to above the poverty line because they have children. What does that mean? It means that the employer can cut wages to wherever he will, because he knows that he can export his wages bill onto us as taxpayers.

Without children, a couple are below the poverty line; with children they are above the poverty line, courtesy of the taxpayer subsidising the employer. I had hoped that we had made it clear that either of those alternatives is unacceptable. It is unacceptable if a couple have no children because they are semi-destitute; it is unacceptable if they have children, because we, as taxpayers, are subsidising the wage bill which should be paid in the wage packet.

The Minister's third argument was that we had no evidence of that happening. I have to tell the Minister— we said this in Committee—that a recent survey of Jobcentres in Manchester showed that nearly one-third of the jobs on offer were paying less than JSA/income support rates. They are no longer protected by wages councils.

When the Minister therefore says that there is no point in someone holding out for a rate of pay which is not realistically obtainable—I quote his words—what is he saying? A rate of pay that is no longer realistically obtainable? If all the employer is willing to offer is £2 a week are jobseekers supposed to accept that? Are they expected to accept £1 a week, £1.50, or 50p a week? Is it reasonable for a couple without children to work for 30 hours a week at 50p an hour and earn £15 a week and have no in-work benefit? Is that what the Minister is saying? It is reasonable to work for £15 a week—30 hours a week at 50p an hour? That is the implication of the Minister's refusal to accept the amendment.

The moment one refuses to put in a floor below which wages cannot fall, some employers—the most exploitative—will take advantage of that to pay below it, because they know that people in the labour market have no choice: without children they will be below the poverty line; with children we, as taxpayers, will be subsidising them because the employer refuses to pay an adequate wage.

I ask your Lordships to support us tonight. While we want —as indeed we do want—people to enter the labour market, we are equally concerned about the cost of the social security bill. How will we stop the social security bill for family credit, rising and rising, and rising? We can only stop that happpening by ensuring that employers cannot pitch wages where they will, knowing that we will prop them up. A vote for the amendment is a vote not just to help people back to work but to cap the social security bill, rather than offer employers an open invitation to pay what they will, knowing that you, I, us, will take the strain. I should like to test the opinion of the House.

5.3 p.m.

On Question, Whether the said amendment (No. 25) shall be agreed to?

Their Lordships divided: Contents, 121; Not-Contents, 160.

Division No. 3
CONTENTS
Addington, L.	Hamwee, B,
Airedale, L.	Harris of Greenwich, L.
Archer of Sandwell, L.	Haskel, L.
Ashley of Stoke, L.	Healey, L.
Avebury, L.	Henderson of Brompton, L.
Barnett, L.	Hollis of Heigham, B.
Beaumont of Whitley, L.	Holme of Cheltenham, L.
Birk, B.	Hooson, L.
Blackstone, B.	Houghton of Sowerby, L.
Bridges, L.	Howell, L.
Brookes, L.	Howie of Troon, L.
Bruce of Donington, L.	Hughes, L.
Callaghan of Cardiff, L.	Hylton, L.
Carmichael of Kelvingrove, L.	Inchyra, L.
Carter, L.	Irvine of Lairg, L.
Castle of Blackburn, B.	Jay, L.
Chapple, L.	Jay of Paddington, B.
Chorley, L.	Jeger, B.
Cledwyn of Penrhos, L.	Jenkins of Hillhead, L.
Clinton-Davis, L.	Jenkins of Putney, L.
Cocks of Hartcliffe, L.	Judd, L.
Darcy (de Knayth), B.	Kennet, L.
David, B.	Kilbracken, L.
Dean of Beswick, L.	Kirkhill, L.
Dean of Thornton-le-Fylde, B.	Lester of Herne Hill, L.
Desai, L.	Listowel, E.
Donaldson of Kingsbridge, L.	Lockwood, B.
Donoughue, L.	Lovell-Davis, L.
Dormand of Easington, L.	McCarthy, L.
Dubs, L.	McGregor of Durris, L.
Eatwell, L.	McIntosh of Haringey, L.
Erroll, E.	McNair, L.
Ewing of Kirkford, L.	Mallalieu, B.
Falkender, B.	Mar and Kellie, E.
Fitt, L.	Mason of Barnsley, L.
Foot, L.	Mayhew, L.
Gallacher, L.	Milner of Leeds, L.
Gladwin of Clee, L.	Mishcon, L.
Gould of Potternewton, B.	Molloy, L.
Graham of Edmonton, L. [Teller.]	Monkswell, L.
	Morris of Castle Morris, L.
Gregson, L.	Nelson, E.
Grey, E.	Nicol, B.

Northbourne, L.	Shepherd, L.
Ogmore, L.	Simon, V.
Palmer, L.	Stallard, L.
Parry, L.	Stedman, B.
Perry of Walton, L.	Stoddart of Swindon, L.
Peston, L.	Strabolgi, L.
Plant of Highfield, L.	Taylor of Blackburn, L.
Redesdale, L.	Tonypandy, V.
Richard, L.	Tope, L.
Robson of Kiddington, B.	Turner of Camden, B.
	Wallace of Coslany, L.
Rochester, L.	Wedderburn of Charlton, L.
Rodgers of Quarry Bank, L.	Whaddon, L.
Russell, E.	White, B.
St. John of Bletso, L.	Wigoder, L.
Scanlon, L.	Williams of Crosby, B.[Teller.]
Seear, B.
Sefton of Garston, L.	Williams of Elvel, L.
Serota, B.	Williams of Mostyn, L.

NOT-CONTENTS
Aberdare, L.	Gardner of Parkes, B.
Addison, V.	Geddes, L.
Ailsa, M.	Gisborough, L.
Aldington, L.	Goschen, V.
Ampthill, L.	Gray of Contin, L.
Arran, E.	Gridley, L.
Ashbourne, L.	Grimston of Westbury, L.
Astor, V.	Haig, E.
Astor of Hever, L.	Hailsham of Saint Marylebone, L.
Balfour, E.
Banbury of Southam, L.	Harding of Petherton, L.
Belhaven and Stenton, L.	Hardinge of Penshurst, L.
Blake, L.	Hives, L.
Blatch, B.	Holderness, L.
Boardman, L.	HolmPatrick, L.
Borthwick, L.	Hood, V.
Boyd-Carpenter, L.	Howe, E.
Brabazon of Tara, L.	Inglewood, L.
Brookeborough, V.	Jenkin of Roding, L.
Bruntisfield, L.	Johnston of Rockport, L.
Burnham, L.	Kimball, L.
Butterfield, L.	Kingsland, L.
Butterworth, L.	Kinnoull, E.
Cadman, L.	Knollys, V.
Carnock, L.	Lane of Horsell, L.
Carr of Hadley, L.	Lauderdale, E.
Chalker of Wallasey, B.	Leigh, L.
Charteris of Amisfield, L.	Lindsay, E. [Teller.]
Chelmsford, Bp.	Liverpool, E.
Chesham, L.	Long, V.
Clanwilliam, E.	Lucas, L.
Clark of Kempston, L.	Lucas of Chilworth, L.
Coleridge, L.	McColl of Dulwich, L.
Courtown, E.	McConnell, L.
Cox, B.	Mackay of Ardbrecknish, L.
Cranborne, V. [Lord Privy Seal.]	Mackay of Clashfern, L.
	Macleod of Borve, B.
Cumberlege, B.	Malmesbury, E.
Davidson, V.	Marlesford, L.
Dean of Harptree, L.	Masham of Ilton, B.
Denton of Wakefield, B.	Massereene and Ferrard, V.
Dilhorne, V.	May, L.
Dixon-Smith, L.	Merrivale, L.
Dudley, E.	Mersey, V.
Dundonald, E.	Miller of Hendon, B.
Eden of Winton, L.	Milverton, L.
Ellenborough, L.	Monckton of Brenchley, V.
Elles, B.	Monk Bretton, L.
Elliott of Morpeth, L.	Moore of Lower Marsh, L.
Elton, L.	Morris, L.
Ferrers, E.	Mountevans, L.
Flather, B.	Mowbray and Stourton, L.
Foley, L.	Moyne, L.
Fraser of Carmyllie, L.	Munster, E.

Norrie, L.	Sharples, B.
Northbrook, L.	Shaw of Northstead, L.
Northesk, E.	Simon of Glaisdale, L.
O'Cathain, B.	Skelmersdale, L.
Onslow, E.	Skidelsky, L.
Oppenheim-Barnes, B.	Slim, V.
Orkney, E.	Soulsby of Swaffham Prior, L.
Orr-Ewing, L.	Stewartby, L.
Oxfuird, V.	Stodart of Leaston, L.
Pender, L.	Strange, B.
Perry of Southwark, B.	Strathcarron, L.
Peyton of Yeovil, L.	Strathclyde, L. [Teller]
Prior, L.	Sudeley, L.
Pym, L.	Teviot, L.
Quinton, L.	Thomas of Gwydir, L.
Radnor, E.	Torphichen, L.
Rankeillour, L.	Trefgarne, L.
Rawlings, B.	Trumpington, B.
Rawlinson of Ewell, L.	Ullswater, V.
Renfrew of Kaimsthorn, L.	Vivian, L.
Renton, L.	Wade of Chorlton, L.
Renwick, L.	Wakeham, L.
Rodger of Earlsferry, L.	Westbury, L.
St. Davids, V.	Wise, L.
Salisbury, M.	Wolfson, L.
Sandford, L.	Wynford, L.
Seccombe, B.	Zouche of Haryngworth, L.

On Question, amendment agreed to.

5.13 p.m.

Lord Northbourne moved Amendment No. 26:

Page 5, line 32, at end insert: ("( ) Regulations shall prescribe that a person who has responsibility for caring for a child under the age of 3 years shall not be required to be available to take up any employed earner's employment at less than 7 days' notice.").

The noble Lord said: My Lords, in Committee I tabled an amendment directed towards the position of young single mothers. The noble Lord, Lord Inglewood, convinced me that I was wrong in regard to mothers who did not wish to take up employment in that they would be covered by income support. I have satisfied myself that the amount of income support is equal to the amount of the jobseeker's allowance.

Amendment No. 26 is a modest amendment and is directed towards the position of a single mother with a young child who wishes to go out to work. Some mothers will wish to go to work but others will not. As drafted, the Bill requires a mother or father who is the single carer of a young child to be available within 24 hours to take up work. I suggest that we should not legislate against the best interests of the child. There is no doubt that poor quality childcare and childminding are very much against the best interests of the child and can be damaging. A great deal of research shows that. The arrangement of good quality childcare takes time, even if granny is to look after the child. Granny may have a part-time job and may need time to make other arrangements and so forth.

I suggest that seven days is not an unreasonable period to provide. I accept that one cannot tell a young parent whether he or she should go out to work or stay at home and look after the child. I accept that one cannot tell parents what to do about childcare. However, we must not put in their way obstacles which make it more difficult to obtain proper childcare and which militate against it. That is the purpose of the amendment. I hope that the Minister will be able to give me some comfort and tell me that if he cannot accept the amendment the issue will be covered in regulations or guidance. I beg to move.

5.15 p.m.

Baroness Dean of Thornton-le-Fylde

My Lords, I support the amendment and thank the noble Lord, Lord Northbourne, for tabling it again. It is sensible and proposes a small measure which shows a degree of compassion. It provides that the potential employee, shall not be required to be available to take up any employed earner's employment at less than 7 days' notice". It does not provide that potential employees cannot be required to attend an interview; therefore, during that period they could be arranging employment. It provides a period of seven days within which it is hoped arrangements can be made for the child, who is an important factor.

It is not a case of judging whether it is better for a child up to the age of three to have the parent staying at home. It does not state whether the parent should go out to work or not. It does not make a moral judgment. Many parents go out to work because they have to. Many parents seek to go out to work because they do not wish to be dependent on the welfare state; they wish independently to provide for their children. However, if a job is available and they are able to obtain it, it is right that they should be given a period within which to make arrangements for their children. Seven days is a reasonable period.

We would all agree that a child is not a parcel that one can pick up today and park tomorrow, even if one can find good childcare facilities which are not as prolific in the UK as they should be. The child must be made aware that he or she is to be looked after by someone else. A sensible parent may wish to take the child to the carer before he or she goes to work on the first day. The parent may wish to introduce the child to the carer and make sure that the child is happy and contented in the situation.

We are dealing only with children up to the age of three. They are toddlers who perhaps have not been out of the care of the person who has looked after and had responsibility for them. This is a small but important measure. I hope that the Minister is able to support it.

Baroness Williams of Crosby

My Lords, concessions that have been won by Members on all sides who are critical of the Bill have tended to be bite-sized. The amendment represents another bite-sized concession and would reflect a sense of humanity on the part of the Government because it recognises the real world.

I speak as someone who for many years represented a constituency in another place. There, many children, both parents being out to work, found themselves alone in the house in the evening. They were latchkey kids. They had keys hanging around their necks because no one was at home to let them in. Sometimes they played, not only in their own gardens, but up and down the street. They were a danger to drivers and to themselves.

The noble Baroness, Lady Dean, gave an example of what it is like in the real world trying to cope with young children when one does not have much money, support or a strong supportive family. In new towns, one of which I represented, there is not a nearby generation of grandparents to turn to. Therefore, the parent is locked into a two-generation situation.

This House is supposed to be concerned with family values and the noble Lord, Lord Northbourne, has argued consistently that doing anything which will cause the break-up or challenge the stability of the family is a very unwise path to follow. This relatively modest amendment recognises the acute dilemmas of women with children who are dependent on them. Those women must try to find adequate childcare and that does not mean just a neighbour, the youngster down the road who wants to make a few extra pounds a week, or the teenage girl who has just come out of school and agrees to look after the children for a few hours and who may not realise the dangers of, for example, paraffin stoves. It is an essential safeguard to allow mothers time to find proper childcare for their children.

The Government have seen the point of our arguments as regards volunteers and others with special needs, and that is extremely welcome. I hope that they can look also at this dilemma and respond to it sympathetically.

Lord Inglewood

My Lords, perhaps I may begin with a few general words about the jobseeker's system and then focus on the particular amendment moved by the noble Lord, Lord Northbourne.

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 that it would be unreasonable to expect people with caring responsibilities to be available immediately. That is why in JSA, as we have now agreed, carers will be entitled to 48 hours' notice of any job or job interview. That gives carers longer to rearrange their caring responsibilities and be available for employment.

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 may be offered. When an opportunity of work arises, they will have 48 hours' notice to put these plans into place and take up work or attend an interview.

Over and above those special arrangements for notice, the new JSA availability condition will provide further flexibility for jobseekers, and in particular for carers. In JSA, we will 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 an important recognition of the importance that we attach to caring responsibilities in society.

It may help if I draw attention to the way the new rules will fit together to the advantage of those with caring responsibilities.

Baroness Hollis of Heigham

My Lords, I had understood that the word "carers" does not refer to parents but to those caring for, for example, the elderly, the disabled and so on. Is the Minister now saying that a parent caring for a child is also now a "carer" and that therefore the 48-hour concession now applies to those parents?

Lord Inglewood

My Lords, yes. Perhaps the noble Baroness will allow me to finish my explanation. 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 carer will be expected to be ready to take up work on a day on which he had agreed that he would not be available, the practical effect of these new flexibilities will be that in many instances carers will be given more time to respond to offers of work.

There is a balance to be struck between ensuring that carers make themselves available for as many job opportunities as possible and making sure that they have a reasonable time to make other arrangements for their caring responsibilities. I was unable to accept the amendment moved by the noble Lord, Lord Northbourne, (whose expertise is well-known and has been alluded to) during Committee because, in effect, it excused any person with a child under two years of age from being required to be available at all. The noble Lord has, I accept, moved a great deal to take account of the concerns I expressed but I believe that his present amendment would still, in fact, tip the balance to the detriment of carers' responsibility—and I use that word in its widest sense. I urge your Lordships' House to take account of the considerable new flexibilities for the treatment of carers that we have introduced for JSA which do not exist in UB or IS.

As I understand the position, unmarried mothers would receive the same money whether they are in receipt of income support or the jobseeker's allowance. The important point is that there is nothing to prevent those women availing themselves of the services of the Employment Service to assist in obtaining work if they wish to do so. The amount of money concerned is the same. It is merely a matter of retaining the integrity of the jobseeker's system, which is intended for people available and looking for work compared with people who are receiving income support but who happen to be looking for a job. I believe that that answers the problem to which the noble Lord has referred.

Lord Northbourne

My Lords, perhaps I may clarify what the Minister has just said. I believe that he said that a person who is drawing income support may search for work but would not be subject to the 48-hour constraint. Is that correct?

Lord Inglewood

My Lords, I believe that those receiving income support are in a position to negotiate according to their circumstances. Once they have started the job, they go forward from there. But it is right that they do not face the 48-hour constraint, which may be a difficulty.

Lord Swinfen

My Lords, before my noble friend finally sits down, he mentioned in his reply the jobseeker's agreement. Am I right in thinking that anyone who cares for another person, whether elderly, disabled or a small child, can reach an agreement with the Employment Service staff that he may or may not be available for work for a period longer than 48 hours if the Employment Service staff can be persuaded that, in the circumstances, that is not only reasonable but is necessary, because sometimes it may take longer than 48 hours to arrange such matters?

Lord Inglewood

My Lords, there are two separate issues here. The first concerns the period within which people must make themselves available; that is, 48 hours. Reference has also been made to the amount of time per week for which a jobseeker must make himself available. In the case of an ordinary jobseeker, that is 40 hours. In the case of those who have various responsibilities, the amount of availability may be reduced. It is a characteristic of the system that the jobseeker may plan for which parts of the week he makes himself available. Therefore, the reality is that by combining the 48-hour rule and the availability rule, there is a considerable degree of flexibility as to when the person actually starts work. That is the crucial point.

Lord Northbourne

My Lords, I think that I understand what the noble Lord is saying but I still find it necessary to have from him an absolute clarification. We are not necessarily talking only about unmarried mothers. We may be talking about mothers, or indeed fathers, who have been deserted or are single for whatever reason. Am I right that people receiving income support who at the same time are seeking a job may make their own arrangements in relation to the delay before the job is taken up? Am I correct in believing that?

Lord Inglewood

My Lords, that is my understanding.

Lord Northbourne

My Lords, on that basis, and subject to reading what the noble Lord has said, I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 26A:

Page 5, line 32, at end insert: ("( ) For the avoidance of doubt, it is hereby declared that the ejusdem generis rule applies to this subsection.").

The noble and learned Lord said: My Lords, in moving this amendment I fear that I must start with a string of apologies. After the most important social and economic issues which your Lordships have been discussing, this raises a technical point of statutory interpretation. Further, it is always expressed in Latin and so it appears in the amendment in Latin. I remember, when we were consolidating the Scottish law of criminal procedure, that some of us queried whether it was really necessary that so much of the statute should be in Latin. But that great Scottish judge, Lord Guest, came to the rescue of the draftsman and said firmly, "Yes", it was desirable, at which point we all shut up. So there is a precedent for the words appearing in Latin in the amendment.

Thirdly, I am afraid that lawyers have a very odd way of pronouncing Latin.

A noble Lord

Not at all!

Lord Simon of Glaisdale

My Lords, the rule of ejusdem generis is a rule of common sense, with the courts basing themselves on what Parliament presumably intended by its formulae. A characteristic instance would be a measure concerned with the transport of animals where the legislation might say that it applies to calves, lambs and other animals. Of course, "other animals" covers the whole animal kingdom, but the courts always said that that could not have been the intention of Parliament. Parliament cannot really have meant that menagerie animals should be included. It must be animals like, say, kids and foals if you are going to rely on the words "other animals". In other words, the generality is construed with reference to the particular instances that go before. It is construed ejusdem generis, of the same sort.

What the draftsman has done in this amendment—and, in my submission done most valuably—is to follow a suggestion made by the Renton Committee on preparation of legislation which is still a very rich ore that is insufficiently mined. The committee suggested that it would be a valuable indication if examples were given of the sort of generality that is to be applied.

In those circumstances, this must be to some extent a probing amendment because it seems to be inherent in the fact that when you give examples you are giving particular examples of a generality and those examples are meant to be followed. Therefore, the other instances will be of the same sort of which the examples are exemplary. It could well be said—indeed, I believe it probably is to be said —that when examples are given the courts will, in effect, apply the ejusdem generis rule and people reading the statute will do the same. It is for that reason that I have tabled the amendment in declaratory form. It may well be unnecessary, but I thought that it might be useful for your Lordships to know to what sort of instance, apart from these examples, the draftsman intends the subsection to apply. I beg to move.

5.30 p.m.

Earl Russell

My Lords, the noble and learned Lord is, as usual, quite right. I believe that he owes the House no apology whatever for putting forward legal terminology in legal language. After all, we are making law and we need to have some understanding of what we do. The rule to which the noble and learned Lord has drawn attention is, of course, very much to the point. Perhaps I may give your Lordships an example of something which offends against his rule. I have in mind the butchers shop which used to be in the market at Oxford and which advertised itself as, "Family, University and Pork Butchers".

Noble Lords

Oh!

Earl Russell

My Lords, I believe that the understanding of the rule would be very much assisted if we were to accept what the noble and learned Lord suggested. It would clarify the intention of Parliament in a way which I hope would be very helpful to the courts, which may have to consider such matters in the future. The Minister may be able to meet the suggestion if he were to speak with the case of Pepper v. Hart in mind.

Lord Renton

My Lords, I rise to express my support for the noble and learned Lord, Lord Simon of Glaisdale. As the noble and learned Lord referred to a recommendation of a committee of which I had the honour to be chairman, I can merely say to him how grateful I am to him for supporting our recommendation and suggesting to your Lordships that it is one that could be followed.

Of course, we do have rather similar circumstances to what we find in subsection (3). But, sometimes, when we have those circumstances, a different situation arises because there is another legal rule of interpretation which is exactly what my noble and learned friend Lord Hailsham has just reminded me of the expression that I was just about to use: expressio unius est exclusio alterius, if you express one thing, you are deemed to exclude others. I say that just as a precaution and to point out that in subsection (3) that principle cannot apply because we have the expression which reads: The following are examples of restrictions"— not exclusive examples— for which provision may be made by the regulations". That indicates that other instances could be given. If other instances are to be given, we must accept the advice of the noble and learned Lord and confine those instances to similar matters. I say that because if we dared to translate the expression ejusdem generis, we could say, "Well, let's use the expression 'similar matters'". However, I think that we had better not do so.

Lord Inglewood

My Lords, I am extremely grateful for the most useful contribution made by the noble and learned Lord, Lord Simon of Glaisdale. I should like to reiterate the comments made by the noble Earl, Lord Russell, by saying that the noble and learned Lord never needs to have any reason to apologise to the House. In his remarks, the noble and learned Lord drew attention to the very valuable and useful legal principle of ejusdem generis.

Having prefaced my remarks with those words, perhaps I may turn to the clause and section which we are now discussing. I must admit that I am slightly puzzled in this case as to how the application of such a rule to subsection (3) would work. Subsection (2) of the clause allows regulations to make provision enabling a claimant to restrict his availability for employment in certain prescribed ways. Subsection (3) lists a number of examples of such restrictions. They are restrictions on the nature, the terms and conditions of employment for which a claimant is available; and the periods for which and locality or localities within which he is available. Although they are simple examples and the list is obviously not exhaustive, I must begin by saying that we have no plans to provide for any other types of restriction.

Allowing a claimant to restrict his availability is, by definition, an easement of the general rule. My noble friend and I have, on many occasions in this House, given assurances about the circumstances in which such a restriction will be acceptable. The sorts of restriction which we have listed at subsection (3) are, we believe, reasonable and fair. Although we have no plans to allow others, it is clear that any such restrictions would be in the claimant's interest. Why else should we allow easements to the basic availability rule?

We believe that making subsection (3) subject to the ejusdem generis rule would not protect the claimant, as there is nothing to protect him from. It is not possible to create restrictions to a claimant's availability—which are easements on the entitlement condition which he has to meet —which damage his interests. In subsection (3) the restrictions relate to the, nature of the employment…the periods for which he is available…the terms or conditions of employment for which he is available; restrictions on the locality or localities within which he is available". It seems to us to be difficult to think of any further restrictions which would fall outside that rather general description of what could be done. We will certainly reflect on the comments of the noble and learned Lord and we would be pleased to discuss the point further with him if he felt that would be useful because he has taken a valuable initiative here. However, I hope that against that background and explanation of our approach to this matter, the noble and learned Lord might consider withdrawing his amendment at this stage.

Lord Renton

My Lords, before my noble friend sits down, I wonder whether he would agree with me, in view of what he has said—that the four particular matters which the Government have in mind may be covered by regulations—that it would be better not to use the expression "examples" because the word "examples" implies that there could be other matters. If there are arguably other matters, then those other matters should be dealt with under the ejusdem generis rule.

Lord McCarthy

My Lords, before the noble Lord sits down, I should say that I agree with that. If I understood correctly what the noble Lord said, he said that he had no intention to extend the examples. How can you have a series of examples, which are examples of something larger, which you have no intention to extend?

5.45 p.m.

Lord Inglewood

My Lords, I would say to the noble Lord, Lord McCarthy, that we are talking about the restrictions and not the examples. I would say in response to the point made by my noble friend Lord Renton that the restrictions that will be brought in will not be all encompassing because logically, were that to be the case, there would be no definition of availability for employment at all. I am not convinced that the logic of my noble friend's comments takes him to the conclusion that he suggested to me.

Lord Simon of Glaisdale

My Lords, I am most grateful to your Lordships who have participated in and to the Minister who has replied to the debate. However, I noticed that he carefully differentiated his pronunciation of the Latin phrase from the way the noble Lord, Lord Renton, and I pronounced it. Even so, I am not sure he went as far as the way the ancient Romans would have expressed it. I entirely agree with the comments that were made by the noble Lord, Lord Renton, and the noble Lord, Lord McCarthy. It seems to me that when you give examples you are implying that there are other matters of which they are exemplary. I very much hope that this way of drafting by examples, as indicated by the Renton Committee, will be pursued. I would very much welcome a chance of discussing the matter with the draftsmen and First Parliamentary Counsel. If the noble Lord, Lord Renton, would consent to join in such a discussion, it would, I think, be useful. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 27 and 28 not moved.]

Clause 7 [Actively seeking employment]:

Earl Russell moved Amendment No. 29:

Page 6, line 16, leave out ("to have").

The noble Earl said: My Lords, Amendment No. 29 deals again with the tendency of the Bill to have what are, in effect, hidden provisions, hidden requirements and hidden steps that the claimant may be required to take. I beg the pardon of the House for having lost my place. I was too busy listening to the noble and learned Lord, Lord Simon, whose speech was most interesting and most enjoyable.

Amendment No. 29 and Amendment No. 30, which is consequential upon it, deal with requirements which may be brought in by regulation subsequent to the passage of this Bill. They purchase specifically on Clause 7(1) and the steps which a person may take if he is actively seeking employment. The Bill in its present form refers to, such steps as he can reasonably be expected to have to take in order to have the best prospects of securing employment". It is the words "have to" to which this amendment takes exception. There are no steps specified at present which the claimant has to take. Therefore whatever steps the claimant will have to take will be specified in regulation in the future. We do not yet know what they are. As so often in the Bill, we are being asked to approve a pig in a poke. As so often in the Bill, the Government are not relying on the general provision expressing a general principle in the way recommended by the noble Lord, Lord Renton; they are setting out to prescribe, one after another, all the things that a claimant should do and all the steps which he must take in order to prove that he is actively seeking employment. Indeed so many steps are contemplated that one sometimes wonders whether this Bill was written by John Buchan in conjunction with Lewis Carroll.

I do not think that that is a sensible approach to the drafting of legislation and I do not think it is a sensible approach to seeking employment, because the best steps for a person to take when seeking employment may depend on all sorts of things. They may depend, for a start, on what sort of employment a person is seeking. If he is seeking academic employment, there are all sorts of things I would advise him to do which I certainly would not advise him to do if he was seeking a job as a bricklayer. If he was seeking a job as a fisherman, there are all sorts of things I might advise him to do which I would not advise him to do if he was seeking a job as a garage mechanic. Therefore the suitable steps depend on the nature of the work, on where the person is and on what travel one can reasonably expect him to undertake. They also depend on a person's circumstances, such as caring responsibilities, to which reference has already been made.

I simply do not think any legislators, however wise, can set out in advance all the steps which we can require all the claimants to take. If they try to do so, we shall have an endless refinement of regulation upon regulation upon regulation—the sort of proliferation of pages in the statute book to which the noble and learned Lord, Lord Simon of Glaisdale, has so often called our attention, and a great deal of confusion and a great deal of hardship on the ground.

A great deal of the disentitlement to benefit which is likely to happen under this Bill will happen for failure to take various steps prescribed by regulation. We on these Benches believe that even with the best will in the world we cannot always be sure that those steps will be in the client's interest as a way to finding work. There may be circumstances where a client may reasonably fail to take those steps. As we have not succeeded in persuading the Government that claimants should retain benefit pending an appeal, we must return to the restrictions on the steps that they are prepared to take. I may approve a list of steps; I may not approve a list of steps; but either way I want to know what the steps are before I am asked to approve them. I beg to move.

Lord Inglewood

My Lords, I have been looking carefully at the amendments during the noble Earl's speech and I think that there is a great deal of common ground between us. I shall try to explain that. Let us consider the effect of the two omissions. Is it the noble Earl's intention in removing the reference to "reasonable" steps, that the regulations could in effect make provision for a jobseeker to take any sort of steps, whether reasonable or not? I do not believe that it is. The first priority of all jobseekers should be to get back to work as soon as possible. The requirement for the jobseeker to take such steps in any week as he can reasonably be expected "to have" to take in order to have the best prospects of securing employment, is intended to give a clear signal to jobseekers of what is expected of them.

We have spent some time on this matter since the first Committee sessions and receipt of the views of the Delegated Powers Scrutiny Committee. The wording we have come up with is the product of considerable deliberation, and it may help the House if I try to explain.

What we have tried to do here is to put an objective question at the root of the actively seeking work condition. That is the commonsense query "what do I have to do in order to have the best chance of getting a job?" That is then qualified by a reasonableness test as set out in the provision. To delete the words "have to" would take away that commonsense standard. The question is no longer "what should be done, subject to any limitation of reasonableness?" but "what is it reasonable to expect the claimant to do?" I suggest that chat second question is harder to answer, because it immediately makes all aspects of the test more relative.

To give an example, I, knowing my nephew (in fact I have no nephew, so this is a hypothetical nephew), might judge that I could reasonably expect him only to do the tiniest amount to find work. It might be optimistic to the point of being entirely unreasonable to expect him to get out of bed before noon. But in order for him to have the best prospects of finding employment I know that he must make greater efforts than that. We must consider not what I reasonably expect him to do but what he can be expected to have to do. That is the point here, The steps a jobseeker should take are those that in reality he can be expected to have to take in order to have the best prospects of securing employment.

I should explain that the current regulations state that: the taking of one step on a single occasion during a week shall not be sufficient unless taking that step on that occasion is all that it is reasonable for the person in question to do in that week". They also contain a non-exhaustive list of steps which may be acceptable as steps towards meeting the actively seeking employment condition. Our intention is to continue that approach in JSA. As we have made clear, however, we propose to broaden the list of steps so that it will include not only steps that are actual jobsearch, as at present, but also steps that will improve a jobseeker' s employability.

To sum up, we believe that it is up to jobseekers to lake responsibility for their steps to find work. Those steps must, however, be reasonable and must take full account of their circumstances. Clause 7(2) (a) is intended to provide for that.

I hope that that explanation answers the noble Earl's questions. If it does, I hope that he will consider withdrawing the amendment.

Earl Russell

My Lords, I am grateful to the Minister for the care he has taken in responding to the amendment. There is common ground on intentions. I understand why he has proceeded as he has, but I am still not happy. I think that he is trying to achieve something that would be very good if he could achieve it but which is impossible to achieve.

I understand why the Minister wanted an objective question, but I do not believe that amid the variety of people and jobs that might be concerned any such thing is possible. The noble Lord has chosen a question which appears to be objective. However, I do not believe that it is any such thing. Case law, regulation and confusion will make clear that it is not. I understand why it would be attractive to the Minister were it possible for the test not to be relative. That would make life a lot easier. So would a great many things make life easier which will not happen.

To take the Minister's own example of his hypothetical nephew, which I much enjoyed, in general what he said about his nephew getting out of bed before noon may be perfectly reasonable and sensible. However, suppose, for example, that his nephew is seeking employment and is well qualified as a jazz drummer or a nightclub bouncer and regularly comes home late from any work he may get and goes to bed at 4 o'clock in the morning. In that case his getting out of bed at noon may not be altogether unreasonable. There is inevitably an element of relativity in the very nature of the whole question that the Bill asks. That is why I believe that this attempt to use compulsion and to set out the steps which people have to take is, at the end of the day, profoundly mistaken.

I do not believe that I shall change the Government's mind through the Division Lobbies, even were I to win a majority there. I shall come back to these questions in one form or another, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

Lord Swinfen moved Amendment No 30A:

Page 6, line 30, at end insert: ("( ) Regulations shall provide that where a doubt arises as to whether a person is actively seeking employment or is to be treated as actively seeking employment, an income based jobseeker's allowance shall be payable pending a determination by the adjudication officer, where the person has placed reasonable restrictions on his availability as a result of illness or disability, and hardship would otherwise result if that payment were not made.").

The noble Lord said: My Lords, in moving Amendment No. 30A, I shall speak also to Amendments Nos. 31A and 31B.

The purpose of the first of the amendments is to enable disabled people who have placed some restrictions on the work for which they are available still to qualify for hardship payments and reduced income-related jobseeker's allowance if there is a doubt that they have not actively sought work in a particular week.

People who do not meet the basic labour market conditions of being available for and actively seeking work are to be disallowed jobseeker's allowance until such time as they change their intentions or behaviour to meet the conditions. That is set out in the jobseeker's allowance White Paper at paragraph 4.36. Where subsequently the Employment Service has some doubt about the conditions, there will be no hardship payment pending a final decision, unless the person is in a vulnerable group. The definition of "vulnerable" is therefore crucial in determining whether any payment is to be made at all.

The amendment seeks to do two things. First, it seeks to widen the proposed definition of disability to include people whose restrictions on their work availability resulting from a physical or mental condition have already been accepted as reasonable. That is an easily identifiable group of claimants who may otherwise be faced with no jobseeker's allowance payment at all. Secondly, the amendment only affects situations where there is a doubt about a claimant satisfying the condition of actively seeking work, not the availability condition.

With an estimated 150,000 disabled people moving from incapacity benefit to jobseeker's allowance in its first year, it is important that a definition of sickness and disability should take account of the needs of that particular group of people, who may fail not only the incapacity test but also the labour market conditions of jobseeker's allowance.

An example from a citizens advice bureau shows that people who may not score enough points in the all-work test of incapacity may present problems in fulfilling the condition of actively seeking work. A bureau in eastern England reported the case of a client in his late 50s, who was living with his mother, whose benefit had been suspended for failing to show evidence that he was actively seeking work. The bureau said that he had trouble with reading, writing and communicating and became nervous when meeting strangers. The CAB described him as "slightly mentally retarded".

Unless classed as vulnerable, the claimant would have no access to any payments for at least two weeks and up to a maximum of 26 weeks. Furthermore, people who are not entitled to hardship payments have no recourse to social fund crisis loans for living expenses.

My noble friend stated that some people who are sick or disabled could fall within the definition of vulnerable and therefore qualify for hardship payments, but only where they have a serious medical condition (as reported in our proceedings for 25th April at col. 887 of Hansard) or are eligible for the disability premium (col. 873).

Regarding the phrase "serious medical condition", when my noble friend replies, will he clarify how that is to be defined, giving examples, and say what evidence will be required to verify the condition?

As regards the disability premium, it is likely that few people signing on following withdrawal of incapacity benefit will continue to receive the premium. In order to qualify for the disability premium in the first place, the disabled person has to be registered as blind or in receipt of disability living allowance care or mobility components. Research into invalidity benefit claimants indicates that fewer than one in five receives the disability living allowance or equivalent benefits for care and mobility needs. If a similar proportion is replicated in the numbers coming off incapacity benefit to sign on, less than 25,000 could qualify as vulnerable for hardship payments.

Restricting the definition of a disabled person to someone who is eligible for the premium is therefore likely to miss out many vulnerable people with ill health or disabilities, many of whom may have other needs which do not fall neatly into the qualifying conditions for the premium. Using as a definition people who have restricted availability on health grounds would be easier administratively as it is using a definition which has already been accepted and would include a wider group of people who would certainly be vulnerable. It would provide a much needed cushion for those disabled people who may have been moved from incapacity benefit on to jobseeker's allowance, many of whom would be likely to have to place some restrictions on their availability for work. Such people may be in danger also of losing jobseeker's allowance in the event of just a doubt—not proof—that they have not been doing enough to seek work.

The purpose of Amendment No. 31A is to treat as actively seeking work someone who is appealing against withdrawal of incapacity benefit. Amendment No. 31B treats as actively seeking work someone who is appealing against the withdrawal of incapacity benefit when scoring at least five points in the all-work test of incapacity.

The amendments seek to tackle the issue of people appealing against the withdrawal of incapacity benefit who may not be in a position to fulfil the labour market conditions for jobseeker's allowance. The amendments seek to treat such people as actively seeking work pending their incapacity appeal. It means that they would still have to show that they were available for work, albeit with some restrictions on their availability, but they would not be required to take steps actively to seek work until after their appeal has been heard.

The second amendment is a narrower version of the first as it would be limited to people who had attracted at least five points in the all-work test of incapacity, suggesting some significant disability. People scoring over five points could include someone who "sometimes cannot rise from sitting without holding onto something" and "sometimes cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again". That would score a total of six points. Situations where "strangers have some difficulty in understanding his speech" would score eight points.

In earlier debates on the Bill the Minister confirmed that signing on will not prejudice an incapacity appeal. However, he failed to answer the point that an incapacity appeal can prejudice a claim for jobseeker's allowance. There is already evidence that people appealing an incapacity decision are regarded by Jobcentres as not being capable of, or available for, or actively seeking, work, pending an appeal hearing.

I have recently had brought to my attention the case of a disabled person with polio. Because of his subsequent condition he was told that he would not be able to get work in any event and could not be considered capable of seeking work even though he wished to do so. If the Minister cannot concede the point about exempting such people from the labour market test, can he give some assurances that all incapacity appeals will take no longer than four weeks to be heard so that if people are stuck in a twilight zone between benefits it occurs only for a limited period of time. I beg to move.

6 p.m.

Lord Carter

My Lords, I am pleased to support this group of amendments from these Benches. The arguments have been extremely well marshalled by the noble Lord. There is no need for me to be other than brief.

We had a somewhat similar debate at a previous stage of the Bill. The amendments deal with a problem that we all recognise from different angles. It will be interesting to see how the Government reply to the cogent arguments of the noble Lord.

Amendment No. 30A is carefully worded. It refers to "reasonable restrictions" on availability and the "hardship" which would result. It is important that the Minister answers the question put by the noble Lord, Lord Swinfen, and gives some estimate of those whom the Government consider will qualify for hardship payments. The amendment deals with the special situation of sick or disabled people and we have already discussed this at earlier stages of the Bill. The situation has been set out clearly. I hope that when the Government reply they will say how the situation regarding sickness and disability is to be taken into account, how hardship and vulnerability are to be defined, and so on. If the rules do not look after that group of people which is particularly hard hit, we believe it important that the Government make the position regarding sick and disabled people absolutely clear. Delays in determination by adjudication officers will be a specific problem for sick and disabled people who have enough problems seeking and finding employment.

A number of later amendments deal with different aspects of the problem. However, this group of amendments is intended to deal with one of the aspects, as the noble Lord, Lord Swinfen, explained. It is exemplified in Amendments Nos. 31A and 31B.

Amendment No. 31B refers to a person who scores five or more points in respect of one or more descriptions in the all-work test. That is clear. The amendments deal with a specific problem which the rules should deal with. We are pleased to support the amendment from these Benches.

Baroness Darcy (de Knayth)

My Lords, I support the amendment so clearly moved by the noble Lord, Lord Swinfen, and in particular Amendments Nos. 31A and 31B. I understand that at present appeals take about 26 weeks. Therefore, a person would have to show what steps he was taking in actively seeking work for each of those 26 weeks.

We have had much discussion about reasonableness, relative or otherwise, on another amendment. Does the Minister consider it reasonable that someone who may ultimately win his appeal and may be judged incapable of work should have to go through those steps for 26 weeks?

Earl Russell

My Lords, there was a dreadful sting in the last sentence of the speech of the noble Lord, Lord Swinfen. He faced the Minister with an alternative which seems to me perfectly fair: either procure the hearing of appeals within four weeks or concede the amendment. It is a perfectly fair alternative. I should have thought that accepting the amendment was the easier of the two.

I ask the Minister to spare a thought for the employment officers with 150,000 people of limited capacity formerly on invalidity benefit coming at them. I should imagine that it is rather worse than being a Minister with 150,000 amendments coming at him.

There is bound to be a good deal of confusion. During that confusion there is bound to be hardship. That hardship will fall on people of limited capacity who will not be able to deal with it well. The amendment acts as a holding operation to reduce the amount of hardship and confusion while the service beds down to what the Minister himself has admitted will be a process of adaptation that will take a certain amount of time and effort. The amendments are sensible, modest, limited and directed to the needs that they are designed to meet.

Perhaps I may ask the Minister to consider a political point. The Secretary of State—no less—has frequently warned (most recently in the Daily Mail of 8th March) about the amount of agitation and protest that he sees coming down the line on the subject of incapacity benefit. I have no idea whether the Secretary of State is right; he may well be. He is concerned, he says, about whether the Government will be able to hold the line against the protest. If the Government wanted to hold the line, I should have thought they would find themselves much better placed to do so if they could show that they had made some manageable limited concessions to meet the problem and, what is more, that they had done so in response to an amendment moved from their own Benches.

Lord Mackay of Ardbrecknish

My Lords, the noble Earl invites me to consider what it would be like if 150,000 amendments came at only one Minister. There are two of us here and it feels a little as if 75,000 are coming at each of us. I am happy to say that I ducked out of the one that was conducted in Latin, which was perhaps just as well.

My noble friend Lord Swinfen has returned to matters which he addressed in Committee on a number of occasions. I notice that he has moved his place a little and is directly behind me. I suppose that prevents my giving him a look of a certain kind occasionally without making it too obvious by turning right round—only physically. However, I understand the concerns he has raised and those of other noble Lords about the position of disabled people who may suffer hardship if an allowance is withdrawn in the circumstances we are discussing here. The Government intend to make provision in two ways for disabled people through the list of vulnerable groups who can have access to hardship payments.

First, as my noble friend accepted, we will allow access to payments for claimants who have a disability premium. The award of the premium recognises that the claimant has a significant disability which means that he may be vulnerable to hardship. The second provision we are making is that any claimant who does not qualify for the premium but who has a serious medical condition which could mean that the withdrawal of funds had particularly serious effects for his health will also be able to have access to payments.

I believe that the second provision should address many of my noble friend's anxieties. Many claimants may place restrictions of one kind or another on their availability as a result of a medical condition. In many cases those may be minor in nature, as in the example chosen by the noble Earl, Lord Russell—who is always good for examples. He suggested that someone with rather poor eyesight would not be likely to succeed in a job as a look-out. However, that person's general health may still be good and he would be perfectly capable of a range of work. I therefore believe that the conditions we have suggested will mean that those claimants who have serious difficulties as a result of their disability will have access to hardship payments. I do not wish to go as far as the amendment suggests.

My noble friend asked how I would define "serious medical condition", for hardship purposes. We wish to allow the adjudication officers discretion to consider individual circumstances and therefore we do not propose to set out a list of specific conditions which could exclude some claimants and not take account of the severity of the condition. We have in mind that an adjudication officer will be able to award hardship payments to claimants who have conditions which mean that they have special needs relating to the condition and that they are particularly vulnerable to hardship. For example, a person with diabetes might need to maintain a particular diet. We are still considering the details of the arrangements which will be set out in regulations and we are happy to consider the views of my noble friend and other noble Lords which have been expressed on the matter.

Perhaps I may turn to Amendments Nos. 31A and 31B. We debated the same issues at an earlier stage, so I understand what is behind my noble friend's amendments. Like other amendments, they seek to recognise that people who have a disability deserve special consideration. I have given the House assurances many times that we have taken the needs of people with disabilities into account in drawing up the labour market rules for JSA. I am a little disappointed to have to do so again, but I am happy to lay out what the special considerations are.

The way the system will work is that people who are found capable of work under the all-work test will equally be capable of work for JSA. I believe I made that clear on a number of occasions. Those who wish to appeal against the IB decision can claim JSA, pending the outcome of the appeal, if they make themselves available for work and look for work. In addition, provision has been made for those who do not wish to make themselves available for work pending their appeal. Existing IB claimants, those in receipt of severe disability allowance and others who have been incapacitated for 28 weeks by 12th April 1995, will be able to get their full income support personal allowance pending their appeal if found capable at their first all-work test. Any other person who first claims IB on or after 13th April 1995 can also claim income support pending the appeal. In the second case, the personal allowance will be reduced by 20 per cent. because we do not believe it reasonable to pay the full rate of income support for people who do not satisfy the normal conditions of entitlement.

The first priority of jobseekers is to find employment. To that end it is vital that all jobseekers are available for and actively seeking employment. My noble friend's amendments would mean that certain people who have been found capable of work under the all-work test would not have to fulfil the actively seeking employment condition. I realise that the amendments are aimed at those who are contesting the decision that they are capable of work. I am sympathetic to the situation which many such people find themselves in. But I think it wrong simply to waive the actively seeking employment condition in these cases.

At an earlier stage of the examination of the Bill, my noble friend Lord Swinfen expressed the view that people who are awaiting an appeal should not have to take steps to find work when they may never be regarded as being capable of work. I realise that some of those who appeal against the IB decision will be successful in doing so. But it is equally true that some will not. Rather than waiving the requirement to be actively seeking employment, I think it better to enable the rules to respond sensitively to each person who finds himself or herself in this situation.

Let me explain again how JSA will be geared to fitting in with the needs and capabilities of people with mental and physical disabilities. Of course, I recognise that some claimants—whether or not they are contesting a decision on IB—will have a condition that may affect their job prospects. We intend to carry forward the current provisions in unemployment benefit and income support which allow a person 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. In other words, such claimants who are appealing against an IB decision will have to be available for employment only to the extent that their condition permits. In addition Clause 7(2) (b) of the Bill enables regulations to provide for certain circumstances to be taken into account in satisfying the actively seeking employment condition. Such circumstances will have to be taken into account in determining whether a person is taking such steps as he can reasonably be expected to take in order to have the best prospects of securing employment. The Bill lists physical and mental limitations as relevant circumstances. I can give an explicit assurance that we shall make regulations which cover these circumstances.

I also remind noble Lords that if a claimant or partner would be entitled to a disability premium or has an underlying medical condition which would put them at risk, payment of JSA can be made at any time that hardship can be demonstrated, even when the claimant is not actively seeking work.

As I have said many times, we shall also continue to offer people with physical and mental conditions all the general and specialist facilities which the Employment Service has at its disposal. Putting this all together, I trust it can be seen that we shall offer a sensitive and helpful environment to all those on JSA who have a mental or physical condition whether or not they are appealing against an IB decision.

I hope that my noble friend will accept that we recognise the difficulties encountered by people with disabilities. I have spoken at some length because I believe it is an important subject and I know that my noble friend and other noble Lords feel strongly about it. I hope that what I have said will persuade those who are deeply interested in the subject that we have taken into account and given consideration to the special needs of particular groups about whom my noble friend is concerned in his amendment. I hope that having listened to my explanation he will feel able to withdraw it.

Lord Carter

My Lords, before the noble Lord sits down, is he able to answer the question I put to him, as did the noble Lord, Lord Swinfen, about the Government's estimate of the number of people who will qualify for hardship payments?

Lord Mackay of Ardbrecknish

My Lords, I am afraid that I am not able to give that answer now. I will look into the matter and write to my noble friend and to the noble Lord.

Lord Swinfen

My Lords, the Government are very slowly moving towards the ideas that we hold. However, it is like trying to drain Loch Lomond by the misuse of a quaich. It is very hard, slow work. My noble friend did not address the administrative point that was raised by me and by the noble Earl, Lord Russell; namely, that employment offices will be absolutely swamped with appeals and it would therefore be administratively much safer and better to deal with disabled people as actively seeking work pending the appeal.

I shall have to read with great care my noble friend's response on Amendments Nos. 31A and 31B. My objective, as I am sure he realises, is to prevent disabled people from falling between two stools. At the moment I have the feeling that both stools are in the cupboard and not available for use and that at the same time my noble friend is actively plying the plane, narrowing down each stool while I am busy trying to get them out of the cupboard. I shall look very carefully at what my noble friend said, but I have a strong feeling that I shall be returning to these matters at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 to 31B not moved.]

Lord Dubs moved Amendment No. 32:

After Clause 7, insert the following new clause:

("Refugees etc

. A person who is a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967 or has been granted exceptional leave to remain by the Secretary of State; and

1. (i) is attending for more than 15 hours a week a course for the purpose of learning English so that he may obtain, or improve his prospects of obtaining, employment; and
2. (ii) on the date on which the course commenced, had been in Great Britain for not more than 24 months, or had been granted leave, as defined in section 33(1) of the Immigration Act 1971, not more than 12 months previously;

shall be treated as available for employment under section 6 and as actively seeking employment under section 7 but only for a period not exceeding nine months.").

The noble Lord said: My Lords, refugees are in the main highly motivated and often skilled individuals. Their problem on arriving in this country is how they can adapt their skills to the British job market. One of the key elements in equipping themselves to compete in the job market is the ability to learn English. Without access to education, the prospects for refugees are either no job at all or a poorly paid job well below their skills and abilities and possibly their previous training. Adapting to the job market in this country is the key. That means the opportunity to learn English. I contend that at the moment the scales are tipped very much against refugees. I seek an opportunity in this amendment to demonstrate that simple proposition.

The situation is made even worse by the change in the hours rule—the reduction in the permitted hours of study while actively seeking work from 21 to 16. It is also indirectly made worse by the new provisions that asylum seekers, before they are given refugee status or exceptional leave to remain, may now be charged overseas levels of fees and are to be treated by colleges as overseas students. Colleges have a discretion, but the effect may well be that while people who have come to this country seeking safety are waiting for their status to be determined, the level of overseas fees will debar them from study altogether. Effectively, therefore, when they are given a status that enables them to stay here, they are left with the difficulty of not being able to move into colleges because of the other restrictions upon them.

This amendment is extremely modest. It refers to a period of up to nine months during which such people should be regarded as being available for work or actively seeking work. My purpose is to seek the understanding of the Government. Perhaps I may anticipate the Minister's response. It may well be that, technically, my amendment is not appropriate or correct, and that I should seek to amend the provisions regarding income support rather than JSA. I appreciate that point. I seek from the Government some understanding of the dilemma and an opportunity to move forward on the issue. I beg to move.

Earl Russell

My Lords, today, 50 years after VE Day, seems a very important moment to recognise the debt this country owes to its refugees. Recently, I attended a degree giving ceremony at the University of London. One of the people awarded an honorary degree was the woman who organised the influx of academic refugees in the years after 1939. That was an enormous job of work, and the degree was very well earned. Being given honorary degrees with her were two former refugees she had helped to bring into the country and get settled. They are both now Nobel Prize winners. There were also two children of the refugees whom she had helped to settle. That is a pretty substantial gain for this country from the work of one person. And that is true not only in this country. At Yale I worked in a department where some 25 per cent. of the members were refugees from Hitler. That is a colossal concentration of talent. This country does not always remember to what extent it has cause to be grateful.

It is perfectly common for refugees, when they arrive, to have either no English or very limited English. The United States has the same experience. Its success in handling the problem is a measure of its success as a country. Limited capacity in English is a problem. We are always coming up against it when we discuss restricted availability for work. It causes a great many problems and gives the benefits system a great many headaches. Therefore if refugees can be taught English, that is a good public object. It is in the public interest by all possible criteria. However, while they are being taught English they must eat, and that involves some visible means of support. We do not need to insist that JSA is necessarily the right vehicle, or that a specific statutory provision is necessarily the only way of doing it.

There are a number of ways in which the Minister could handle this question. He might prefer to do so through income support. He might prefer, as the Government have hitherto handled the question of women in refuges, the prerogative of mercy tucked into the availability rules; namely, the provision that people may be regarded as available or not available. That is one perfectly practical approach. Or he might adopt the method provided by the amendment. We do not insist that it should be done in one particular way. We believe, however, that it should be done in one way or another. It is not merely in the interests of claimants, but in the interests of this country, and of a wider civilisation of which we are all part.

The Lord Bishop of Liverpool

My Lords, I support this very modest amendment, as described by the noble Lord, Lord Dubs. To echo what the noble Earl has just said, it is indeed in the interests of this country, and in its economic interests over a very short time. Not so many migrants have come into Liverpool in recent years because jobs have been very short. But it happens that a substantial Somali community has settled there. That is why I am prompted to speak. A high proportion of those people do not speak English. My information is that the community includes people who are very gifted in different professions and skills. The language barrier blocks them totally. If, for reasons of our crude, selfish advantage, they are not helped to get through that barrier, they may in the long term become a drain on the benefits system of this country. If, however, they are helped through the educational barrier, they will make a very substantial contribution.

6.30 p.m.

Baroness Williams of Crosby

My Lords, I should like to make just one additional point. When I was a Minister at the Home Office, one of our responsibilities was to deal with the influx of East African Asians who had left their country very suddenly and arrived in this country with very little knowledge of it and, in many cases, had not visited it before. Those people have made a tremendous contribution to this country and have become economically a very significant group.

What often characterises refugees is that they are either exceptionally enterprising or exceptionally courageous people. In many cases either they have stood up against an unacceptable political regime or they have shown a degree of enterprise which is unusual in the country from which they have come. Therefore, as the right reverend Prelate said, they make a great contribution to this country.

There is one other strictly practical point that I should like to put to the Minister. Over the past year the United Kingdom has accepted about 1,000 refugees from Bosnia. I understand that consideration is being given to whether more refugees from that country should be accepted. Very few people in Bosnia speak any English. It is not even the first foreign language of that country. Therefore, if we are to be fair to those people and give them a real chance to settle in this country, make a contribution to it, and begin to rebuild their shattered lives, this kind of relatively modest amendment allows them the opportunity to do so.

In the great tradition of this country, which has always welcomed refugees and regards that as one of the tests of a truly libertarian country, I hope that the Minister will give sympathetic consideration to this amendment.

Lord Desai

My Lords, I rise to support briefly the amendment moved by my noble friend Lord Dubs. What I like about the amendment is the general principle in it, which goes beyond refugees, although it speaks only of refugees; namely, that we ought to help people acquire skills to enable them to integrate into the community and to seek jobs. That is very important. That applies not only to refugees but to many ethnic groups and especially to the women. Many ethnic minorities have the same need. At some stage we shall have to say that we ought actively to help people to learn the language so that they can integrate into the community and become economically useful as well.

Lord Mackay of Ardbrecknish

My Lords, let me begin by saying that the Government recognise that special rules within the benefit system are necessary for some refugees who have recently entered the country and who wish to undertake an English language course to improve their prospects of employment.

Such special rules currently exist in income support legislation. Refugees, who have been in Great Britain for not more than 12 months, and who are attending a course of more than 15 hours a week for the purpose of learning English, are able to receive income support for up to nine months without being required to be available for work. I suspect that the Bosnian refugees whom we have allowed to come here as refugees would certainly fall into that category.

I believe this is a generous provision. It allows refugees who are undertaking a full-time English course to continue to receive benefit. It is also much more generous treatment than applies to other claimants who, as your Lordships will know, are not able to receive income support or JSA if they are studying full-time. This income support provision will continue when JSA is in place. There is therefore no need to provide for the kind of treatment available in JSA which this amendment suggests.

If I heard him aright, the noble Lord, Lord Dubs, however, argued that his amendment, which would provide for even more generous treatment in JSA, as I said, is necessary because the current provisions do not go far enough on two grounds. Perhaps I may address those concerns in turn.

First, there are the people given exceptional leave to remain in the United Kingdom. As the noble Lord quite rightly pointed out, the current provisions provide for a distinction between refugees and those given exceptional leave to remain in the UK. Whether someone is given refugee status or exceptional leave to remain is, of course, a decision made by the Home Office, and the distinction between the two is an important one.

No doubt I do not have to remind the noble Lord, Lord Dubs, who is a great expert on all these matters, about that distinction. But it may help your Lordships understand my argument if I say that exceptional leave to remain cannot be equated with refugee status, as it represents a temporary permission to stay in cases where it would be unreasonable or impracticable to enforce departure. Exceptional leave decisions can be reviewed. I do not believe that it would be right to blur this distinction by changing benefit rules so that we effectively upgraded exceptional leave status to refugee status. However, that does not mean that those given exceptional leave cannot study English. Like all other claimants, they will be able to study part-time without it affecting their benefit position.

The noble Lord understands that and that the 16 guided hours learning comes into that. I should point out to him that, although on the face of it it looks like a change from the 21 hours—we have had considerable debates on this issue as the Bill has proceeded—the two definitions are quite different. The guided hours learning takes account of the way in which further education has developed and has moved away from how we managed to define part-time courses previously. In fact, in the round, the same number of people will receive the easement which the up to 16 guided hours allows as were receiving the easement which the up to 21 hours rule allowed. I hope that that is helpful to the noble Lord when thinking about people with exceptional leave.

The noble Lord may also be concerned about the current 12-month rule, as part of this situation. We recognised that delays in decisions on refugee status were causing a problem for genuine refugees. That is why we introduced a package of measures, including the Asylum Bill, and a substantial increase of staff aimed at trying to reduce the delays. Those measures have allowed us to bring down the average decision time in new cases from 18 months to around eight months. If the problem still exists, I do not believe that extending the 12-month limit is the answer. In any case, refugees who become caught in that, so to speak, will still be able to study part-time up to 16 guided hours without it affecting their benefit once the 12-month period has expired.

I believe that the current rules operating in income support, which allow certain refugees to study English full-time, are generous and effective in helping members of that vulnerable group improve their employment prospects. They will also, as the noble Baroness said, help them to integrate into life in the United Kingdom. The amendment of the noble Lord, Lord Dubs, would extend the provisions in a way which I do not believe can be justified.

I hope that I have given the noble Lord sufficient assurances about the continuation of the current rules in income support. I can assure him that we shall certainly reflect on the points that he made. I hope that he can accept my assurances and will be able to withdraw his amendment.

Lord Dubs

My Lords, I draw some comfort, but not overmuch, from what the Minister said. It would be wrong to trespass on the time of the House by going into a detailed set of answers to what he said. I shall limit myself to a couple of remaining concerns.

One concern is that, as I understand it, the special provisions mentioned by the Minister apply to asylum seekers before they are given their status. As he said, the waiting time for a decision to be made is now shorter than it was. I certainly welcome that. However, it means that the benefit that an asylum seeker receives is limited to the shorter time period. Given that asylum seekers often arrive shocked and traumatised by their experiences, they need a little more time to adjust in this country before they are able to take the step of working out their future and moving into education.

The Bosnian refugees, to whom reference was made earlier, are a case in point. I met some of them when they first arrived here. They had been detained, as it were, in Serb camps not long before they arrived in this country. Certainly they were very shocked and traumatised. Not many of them could have stepped into learning English all that quickly. But, now that they have been in this country a little longer, that is precisely what they want the opportunity to do. However, the Bosnians themselves, or many of them, have exceptional leave to remain or limited leave to remain. They are the very people who suffer from the distinction between refugee status and having exceptional leave to remain. I do not agree with the Minister when he wishes not to blur the distinction between the two. Although having exceptional leave to remain is not a permanent status, it has in the past been a status from which people have been able to benefit for quite some time and they have often been allowed to stay. To deny those people an opportunity to improve their English and to move into the job market, or to make it more difficult for them, is neither in their interests nor in the interests of this country.

I draw a little comfort, but only a little, from what the Minister said. Serious problems remain and I should like to return to this issue on a future occasion. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Clause 9 [The jobseeker's agreement]:

Earl Russell moved Amendment No. 33:

Page 7, line 36, at beginning insert: ("( ) If a claimant fulfils section 1(2) (a) and (c) he shall be considered to be complying with the terms and conditions of a jobseekers agreement.").

The noble Earl said: My Lords, in moving this amendment I shall speak also to a large group which includes Amendments Nos. 34, 36, 37, 40 to 59, and also Amendments Nos. 75, 78 and 83. I gave Ministers notice of the change in the grouping.

Lord Hay, one of the courtiers of King James VI of Scotland and I of England, was a great advocate of the principle of conspicuous consumption. He invented, in the course of his entertaining—which was lavish and based on the motto "Spend and the Lord will send"—the device of the "ante supper". Guests were brought in to supper and an enormous lavish feast was set out before them. Just as they were about to begin to eat the whole thing was taken away and an even more lavish supper was brought in instead of the "pathetically moderate display" that was put on the table when the guests first arrived. It was the most wonderful principle of ostentation. This group of amendments suggests that what we have before us is an ante Bill and that once it reaches the statute book it will be carried away and a whole new series of legislative principles, even more lavish and extreme, will come into force behind it.

I should say a word about the grouping before I go any further. The grouping includes a string of government amendments. I make no objection to any of those amendments; indeed, some of them were initially my amendments and the Government have put their name to them, for which I thank them warmly. The agenda may not be exactly identical in the two cases, but when one's amendment is accepted by the Government one cannot do other than welcome it with great gratitude.

My speaking to this group as a whole will not present any problem to Ministers when they wish to move their amendments. If I were to push this group to a Division the consequence would be that those government amendments would be agreed; but whether the Government, in those circumstances, would still agree with their own amendments is something we would have to wait to discover. But should I withdraw my amendment, or if it is pushed to a Division and not accepted, the government amendments could perfectly well stand on their own. They can easily be moved and I for one will not in any way oppose them. The grouping therefore will cause no problem.

The central principle of the group of amendments—here I express my gratitude to Anton Obholzer in our Whips' Office, who has done a superb job of work on them—is Amendment No. 33 which states: if a claimant fulfils section 1(2) (a) and (c) he shall be considered to be complying with the terms and conditions of a jobseekers agreement". In fact, it seeks to ensure that the Bill only requires people to be available for employment and actively seeking employment; that all the detail should be left to traditional interpretation rather than being set out in a plethora of new terms and conditions which will come in after the Bill reaches the statute book.

There are two key clauses to be considered and all the rest of our amendments are contingent and consequential upon them. Amendment No. 34 to Clause 9(1) proposes to delete the words that a jobseeker's agreement, complies with the prescribed requirements in force at the time when the agreement is made". That is legislation in the future perfect. The future perfect is no doubt an amusing tense with which to play games, but it is a rather dangerous one for legislation. It is a tense which is necessarily contingent. I know of only one time when it was used for serious legislation, which was the Coronation Oath of King Edward II who was made to swear to accept such good laws as the community of the realm "shall have chosen". It was construed by his barons as being an abolition of the royal veto. The king naturally did not agree and ended up being deposed. So legislation in the future perfect is capable of creating serious problems because one is agreeing to one knows not what. Clause 9(1) allows for the taking away of the ante supper and the bringing in of the new supper; the more lavish display, the contents of which we cannot even now guess at.

The next thing we want to do is to delete Clause 18(5), which is something else that the Minister can bring in by regulation. The clause states: The circumstances referred to in subsections (1) and (2) are that the claimant … has, without good cause, refused or failed to carry out any jobseeker's direction which was reasonable, having regard to his circumstances". Subject only to the uncertain test of "reasonableness", it is self guided by regulations which we have not yet seen. The jobseeker's direction can tell the jobseeker to do pretty well whatever it likes. It is within the classic definition of an arbitrary power.

The same clause also allows regulations to deal with a claimant who has, without good cause, neglected to avail himself of a reasonable opportunity of a place on a training scheme or employment programme". There is provision, therefore, for the possibility of bringing in compulsory training—for adults as well I believe. I do not know what may come in under that. There is much more which I shall not deal with at this time. Noble Lords can look for themselves at the rest of Clause 18(5).

We are told in the Government's memorandum to the Delegated Powers Scrutiny Committee, in their exposition of what they want to do with Clause 9, that they intend to use it to introduce by regulation a substantial and systematic legislative framework. Your Lordships can see what brought me back to the idea of the ante supper. It is the substantial and systematic legislative framework which will be the real Bill; this Bill is only the ante supper and is not really of any importance. It is what is to be brought in afterwards, behind the curtain, which will be important.

That is why we want to bring the Bill back to the two basic conditions of entitlement; that the claimant should be "available for employment" and "actively seeking employment". We are prepared to leave the interpretation of that to the adjudication officer, to an appeal tribunal and ultimately to higher judicial authorities. It is a question which must be settled individually or it cannot be settled properly at all. The rest of our amendments are taking-out provisions to require a claimant to observe terms and conditions which are brought in by regulation.

It is hard enough to legislate in the present without trying to legislate in the future perfect as well. Let us give it up. I beg to move.

Lord Inglewood

My Lords, I hope that it may be of assistance to the House to explain the Government's position generally and their amendments which I shall move, and to speak to the noble Earl's amendments which he has already spoken to. In his opening remarks, he referred to the eating habits of the 17th century epicurean, Lord Hay, and his dinners. Just as he had a fore-dinner, I hope that my speech will succeed it as the main dinner.

In Committee on 11th May the Government brought forward important amendments to those parts of the Bill which deal with availability for employment and actively seeking employment. Your Lordships were pleased to approve these, and they now form part of the Bill.

In introducing those amendments, my noble friend the Minister said that we would also be tabling amendments to the clauses dealing with the jobseeker's agreement and variations to the jobseeker's agreement, now Clauses 9 and 10. Noble Lords will have seen from the Marshalled List that we have met this commitment. These amendments are proposed in the same spirit as the government amendments that your Lordships considered in Committee and approved on 11th May, and we hope they will be welcomed by the House in the same way.

I should like to begin by explaining briefly the thinking behind these amendments. As my noble friend the Minister made clear in Committee, we fully understand the concern to secure the right balance between primary and secondary legislation. As your Lordships are aware, we have taken careful note of the report and recommendations of the Delegated Powers Scrutiny Committee. The committee's final report did riot make any recommendations in respect of the clauses dealing with the jobseeker's agreement. But we have considered the views expressed in the committee's interim report. We have re-examined carefully the clauses that deal with the jobseeker's agreement with the view that new provisions, and, in particular, new decision-making procedures, should be specified on the face of the Bill.

If I may, I should now like to say a few words about the purpose of the jobseeker's agreement and how we intend that it will work in practice. The jobseeker's agreement is central to JSA. It will be the means of ensuring that every jobseeker has a plan to help him back to work. It will also ensure that every jobseeker understands clearly the conditions of receiving JSA and the nature of the help that they can receive from the Employment Service.

At the start of his claim for JSA, the jobseeker will have an interview with a skilled employment adviser (this is the person called, more formally, the "Employment Officer" in the Bill). The jobseeker and the employment adviser will discuss the jobseeker's work experience and qualifications, the sort of work he is looking for, his availability and his plans for getting back to work and a range of other issues. Together, they will seek to draw up a jobseeker's agreement.

The agreement will set out what sort of work the jobseeker is looking for and what he is going to do to find it. For example, it will record the number of job applications and visits to the Jobcentre he is going to make, and any other steps that have been agreed, such as drawing up a CV or researching potential employers. It will also record details of his availability and any agreed restrictions. For example, if he is a carer, the agreement will record that he has to be available only at 48 hours' notice, as we have already discussed this afternoon.

The agreement is an important way of ensuring that jobseekers understand right from the outset the conditions of receiving JSA, and how their benefit may be affected if they do not satisfy those conditions. It will contain a statement that the jobseeker understands that he must continue to be available for employment and actively seek it; that he may be asked to give evidence of what he has done and has been advised to keep a record; and that if he does not do enough to meet these conditions, his allowance may be affected and his case will be referred to the adjudication officer, in which case he will be informed. He will also be told about his right of appeal.

The agreement will also set out the nature of the help back to work available from the Employment Service. It will explain that Jobcentres display up-to-date details of job vacancies and that the Employment Service will not display vacancies which discriminate against jobseekers on the grounds of race, religion, sex or disability, and that people of all ages will be encouraged to apply; that the Jobcentre can offer information about opportunities on employment and training programmes and schemes to help people become self-employed; that when the jobseeker attends the Jobcentre, his progress in getting back to work will be reviewed with an employment adviser; that wherever possible, the jobseeker will see the same person who understands his circumstances, or someone from the same team; that he will also be able to receive information about other social security benefits, including in-work benefits.

When the jobseeker and the employment adviser have drawn up the agreement, they should both sign it. The jobseeker will thus have an agreement in force and will have satisfied the condition of entitlement contained in Clause 1(2) (b) of the Bill. The jobseeker will be given a copy of the agreement and the original will be kept in the office. It will be used as a basis for discussing the jobseeker's progress in finding work when he attends the office.

If at any point the jobseeker or the employment adviser feel that the agreement needs to be changed, they can suggest this. Again, they will discuss the situation and draw up what is called a "variation" to the agreement. We envisage that variations will be needed in particular if the jobseeker is still unemployed at the end of his permitted period, when he will be required to widen the range of jobs he is available and looking for beyond his usual occupation and rate of remuneration. Variations may also be needed from time to time to respond to changes in the labour market or the jobseeker's circumstances. For instance, if the jobseeker has gained a new qualification, he may find that this opens up new job opportunities. Equally, if, for example, a jobseeker has been looking for driving work but loses his licence, he will have to refocus his search for work on other occupations.

We have heard from time to time that the jobseeker's agreement will be forced on jobseekers. I hope I have reassured your Lordships that it will in fact be the outcome of a dialogue between the jobseeker and the employment adviser. But we recognise that it may not in all cases be possible for the jobseeker and the employment adviser to reach agreement. As Ministers have explained repeatedly in this House and in the other place, that is why the Bill provides an extensive procedure for independent adjudication and appeal. Again, at the risk of trying the House's patience, I should like to explain this briefly.

The jobseeker and the employment adviser will be able to refer a proposed agreement or variation to an independent adjudication officer. I should say at this point that I am grateful to the noble Baroness, Lady Hollis, and the honourable Member for Withington in the other place, for their suggestions earlier in the passage of the Bill that the referral to the adjudication officer should be made "forthwith". This is now provided in the Bill.

Adjudication officers carry out their functions independently of Government under the Social Security Administration Act 1992 and receive guidance on carrying out their adjudication duties from the chief adjudication officer, not the Secretary of State. When he receives a proposed agreement or variation, the adjudication officer will consider it and determine whether, if the jobseeker complied with it, he would satisfy the availability and actively seeking employment conditions of JSA; and whether it is reasonable to expect him to have to comply with it. If the jobseeker or the employment adviser is dissatisfied with the adjudication officer's determination, either may seek to have it reviewed by a different adjudication officer. If the jobseeker is still dissatisfied, he, but not the employment adviser, will have the right of appeal to the social security appeal tribunal; and thence to the commissioner on a point of law.

We recognise that the agreement is a new feature of benefits for unemployed people, and we have therefore provided a number of features in the adjudication procedure over and above the standard procedure set out in the Administration Act. First, the adjudication officer will be able to direct the employment adviser to enter into an agreement on such terms as he considers appropriate. If, for example, the adjudication officer considers that both the jobseeker's and the employment adviser's proposals are unacceptable, he may suggest terms which he considers appropriate rather than simply rejecting what is put to him. The employment adviser will be required to enter into an agreement on the basis put forward by the adjudication officer. This is a constructive provision, wholly to the jobseeker's advantage.

Secondly, the adjudication officer will be able to backdate a jobseeker's agreement. For example, if he considers that the jobseeker's proposals were acceptable all along, he will be able to back-date the agreement to the start of the claim; or, if appropriate, he will be able to back-date it to an intermediate point.

Thirdly, there is the provision that I have already mentioned for a review by a second adjudication officer before the case goes to the social security appeal tribunal. The intention of this is that cases will be dealt with quickly and simply. It will be to the advantage of the jobseeker to be able to have his case dealt with in this way. But of course, as I have made clear, if he is still dissatisfied after the review, he will be able to appeal to the social security appeal tribunal.

Finally, the adjudication officer will be able to bring a jobseeker's agreement to an end where the jobseeker fails to comply within a prescribed period with the adjudication officer's decision that his agreement should be varied. This will prevent the jobseeker from being able to keep to the original agreement indefinitely when the adjudication officer has decided that his agreement must be varied.

Your Lordships have been very patient in listening to this explanation. I should now like to turn to the government amendments themselves, Nos. 37, 40, 42, 43, 45, 50, 51, 53, 54, 56 and 59 on today's list. I am pleased to see that in several cases the noble Earl, Lord Russell, and the noble Baronesses, Lady Williams and Lady Seear, have tabled amendments which are identical to the Government's. It is clear that they, too, have been considering the Scrutiny Committee's interim report and are suggesting to the Government exactly the same means of meeting it as we are indeed proposing. I am glad of that. I think it shows this House at its best when, on a non-partisan basis, we try to work towards common solutions.

The amendments appear extensive in the sense that there are many words on the page. But that is largely a matter of drafting. They are actually quite simple in their intent. They go to the heart of what I have said about the Government's response to your Lordships' concerns about the balance between primary and secondary legislation.

Clauses 9 and 10 contain a number of regulation-making powers. We have re-examined each of these carefully with a view to seeing whether or not the powers could be removed and the provisions could be put on the face of the Bill. I would like to set out our main conclusions. First, Clauses 9(8) and 10(5) at present enable regulations to provide for a proposed jobseeker's agreement or proposed variation to be referred to the adjudication officer. It has always been our intention to make these regulations. We have given commitments to this effect to both Houses and in the memorandum to the Delegated Powers Scrutiny Committee. Our purpose in proposing to deal with these matters through regulations was to provide sufficient flexibility to deal with detailed procedural matters. But we have decided on reflection that it is not necessary for this to be provided through regulations and that these are matters which can be dealt with in primary legislation. That is the purpose of Amendments Nos. 40 and 51.

Secondly, Clause 9(9) (b) at present provides that regulations may provide criteria to which the adjudication officer is to have regard in making his determination. Noble Lords have asked us what those criteria will be. The noble Earl, Lord Russell, and his colleagues have tabled Amendment No. 46 on today's Marshalled List which addresses this very issue. We have always made clear that the criteria—the only criteria—will be those set out in the provisions of Clause 9(8) (a) and (b) and repeated in those of Clause 10(5) (a) and (b). As I have explained, these are: whether the proposed agreement (or variation) would allow the jobseeker, if he complied with it, to satisfy the availability for employment and actively seeking employment conditions of JSA; and whether it is reasonable to expect the jobseeker to have to comply with the proposed agreement.

Noble Lords have rightly asked why, if those were the only criteria that we had in mind and they were already on the face of the Bill, we needed the regulation-making power in Clause 9(9) (b). We want the JSA regulations to be as clear as possible. The current legislation on unemployment benefits is contained in many different regulations. JSA offers an opportunity to consolidate the legislation. Setting out the criteria in the regulations so that all the key provisions on the adjudication of the agreement can be found in one piece of legislation would make it easier for those who administer JSA and for jobseekers and advisory organisations. But we understand the concern that this provision has provoked. We propose, therefore, that it should be removed altogether and your Lordships will see that it does not appear in Amendment No. 45.

Thirdly, Clause 9(9) (c) provides that regulations may provide for the adjudication officer to make his determination before the end of a prescribed period. Our intention here was to ensure that adjudication matters are dealt with promptly. That is in the jobseeker's interest. We proposed, therefore, a power to set a time-limit in regulations. As the memorandum made clear, we believed that regulations would provide the flexibility to deal with different circumstances. On re-examination, however, we have concluded that we can put this on the face of the Bill. Amendment No. 45 states that the adjudication officer shall so far as practicable dispose of it in accordance with this section before the end of the period of 14 days of the date of the reference". I should point out that a drafting error has crept into subsection 9(a). The reference to, 14 days of the date", should read, "14 days from the date". There is a similar mistake in subsection 6(a) of Amendment No. 56. We propose to amend that on Third Reading. That brings this aspect of the Bill into line with Section 21 of the Social Security Administration Act. I hope that your Lordships will welcome that.

Fourthly, noble Lords, and the noble Earl, Lord Russell, in particular, have sought assurance that the jobseeker's agreement will not be capable of being used to impose individual conditions of entitlement on jobseekers. We have repeatedly given this assurance, pointing to the provisions in Clause 9(8) (a) and (b) and Clause 10(5) (a) and (b), which I have already mentioned. This has always been our clear intention. It has not changed. On re-examination, however, we have concluded that the Bill could be drafted more clearly in this respect. In particular, we have decided that we should remove any scope that there might be for confusion between the terms and conditions of a jobseeker's agreement and the conditions of entitlement to JSA. That is the specific purpose of Amendments Nos. 37, 42, 43, 50, 53 and 54, and it is reflected in other amendments. As I have said, I am very pleased to see that, in the case of several of these, my noble friend the Minister's name has been joined with those of the noble Earl, Lord Russell, and the noble Baronesses, Lady Williams and Lady Seear.

Perhaps I may also draw your Lordships' attention to two small technical matters. In all but one respect, the purpose of Amendment No. 56 is to make the changes that I have already explained. The minor exception is subsections (6) (b) and (c) of the amendment, which deal with the procedure by which the adjudication officer will be able to direct that an agreement should be varied and bring it to an end if the jobseeker fails to comply with that direction. Those provisions make no changes of substance to the equivalent existing provisions of Clause 10(6) (b) and (c) of the Bill. But we consider that the drafting of these provisions is a little unclear in some respects and we have dealt with that in this amendment in order to avoid any possibility of confusion.

I should also mention that, if carried, the amendments will result in an additional clause in the Bill. Currently, Clause 9 deals with the jobseeker's agreement; Clause 10 deals with variations; and matters connected with reviews and appeals are dealt with in both clauses. In an effort again to make the Bill as clear as possible, we are proposing that Clause 9 will deal with the agreement; Clause 10 with variations; and Clause 11, introduced by Amendment No. 59, with reviews and appeals. This is a matter of drafting and involves no changes of substance other than those that I have already explained.

There is one final point that I would like to make before sitting down. The changes that we are proposing to make to these clauses will result in a genuine and substantial reduction in the number of regulation-making powers. I do not wish to get into a counting exercise, but noble Lords will be able to see for themselves that that is the case. The small number of regulation-making powers that will be retained by the amendments are needed to deal with very specific and generally procedural matters.

I turn now to the amendments. I hope that I shall cover them all comprehensively. On Amendment No. 33, the noble Earl, Lord Russell is, I think, once again seeking reassurance. I am entirely happy, once again, to offer him and the noble Baroness that reassurance. We believe that the amendment is quite unnecessary. As I have explained to the House on previous occasions, the jobseeker's agreement is a supportive measure intended to help each jobseeker to decide how he should best tackle returning to work and then set that out. I can reassure your Lordships that it certainly does not impose additional eligibility conditions, and neither the employment officer nor the independent adjudication officer will be able to impose individual conditions of benefit.

The agreement will give expression to the steps the jobseeker has agreed to take to find work, and the terms on which he is prepared to be available for work. It will act as a reminder of the discussion with the employment officer and what he has agreed to do to meet the availability and actively seeking entitlement conditions.

Once the jobseeker has an agreement in force, the key to his continued receipt of jobseeker's allowance will, however, be the actual steps that he takes to find work, and his actual availability for employment. The agreement will be used to help to establish that jobseekers meet the conditions of availability and active seeking, but abiding by the precise letter of what is in his agreement will not be the test of whether someone continues to meet the conditions.

That is an important point, and it is right that your Lordships should have focused on it, now and previously. I hope that it will reassure your Lordships to note that in the revised Clause 9 which we have tabled, we have removed the power to prescribe criteria against which an adjudication officer should make a determination about a disputed agreement. The reference was never intended to add to the eligibility conditions, but we understand the concern that it provoked. We have, therefore, done away with the reference specifically to make it absolutely clear that there is no question of the agreement setting different standards of availability and actively seeking conditions than are applied by the basic condition.

We are in the business of helping as many people as possible back to work as quickly as possible. We do not intend to tie up their efforts with unnecessary red tape. To introduce the concept of complying with the jobseeker's agreement into the Bill would, in fact, be to add an additional requirement, and I am sure that the noble Earl would not want that. Employment and adjudication officers would want to know what would happen if the jobseeker were to fail to comply with an agreement. That is not a requirement we want or need to introduce.

I hope that the noble Earl and the noble Baronesses are reassured by my explanation, and by the government amendments that have been tabled in relation to the jobseeker's agreement and to which I have referred. By far the greater part of the provisions relating to the jobseeker's agreement, with the exception of minor technicalities, is now part of the primary legislation in this Bill.

Turning to the other amendments, I thank the noble Earl for his explanation of Amendment No. 34. I was curious to know what concerns there could be about the detailed provisions of the agreement.

I should like to reassure the noble Earl, Lord Russell, and other noble Lords that that power is benign. Our intention is to make regulations that set out what will be needed to constitute an agreement—broadly speaking, the headings that it will contain.

The intention is to include things such as the jobseeker's name, his availability, the sort of work he is looking for, any period that is agreed in which he can restrict his availability and jobsearch to his normal occupation and rate of pay and a dated signature of both the jobseeker and the employment officer.

I hope that the noble Earl will be reassured that the regulations under subsection (1) will be used only to clarify the requirements of the agreement, and not to add any additional requirements. Our purpose is only to provide clarity as to what constitutes an agreement, and to ensure that agreements are made in a standard form.

Perhaps I may thank the noble Earl, Lord Russell, for his explanation of Amendment No. 36. I am sure that he is satisfied that the Bill would benefit from the additional definitions that subsection would bring. I must, however, assure him, and other noble Lords, that not only is it unnecessary but it is also in some respects misconceived.

As I have explained to the House on previous occasions, the jobseeker's agreement is a supportive measure intended to help each jobseeker decide how he should best tackle returning to work. I can reassure your Lordships that it certainly does not impose additional eligibility conditions, and neither the employment officer nor the independent adjudication officer will be able to impose individual conditions of entitlement to benefit.

The agreement will give expression to the steps the jobseeker has agreed to take to find work, and the terms upon which he is prepared to be available for work. It will act as a reminder of the discussion with the employment officer and what he has agreed to do to meet the availability and actively seeking entitlement conditions. The phrase "terms and conditions" as used on the face of the Bill means nothing other than the contents of the agreement.

As I have explained previously, once the jobseeker has an agreement in force, the key to his continued receipt of jobseeker's allowance will be the actual steps that he takes to find work, and his actual availability for employment. The agreement will be used to help to establish that jobseekers meet the conditions of availability and active seeking, but abiding by the precise letter of what is in his agreement will not be the test of whether someone continues to meet the conditions. For example, if a person states in his agreement that the will apply for jobs in a factory, there is nothing to stop him from applying for jobs in the local supermarket as long as he continues to satisfy the actively seeking test. No one could possibly want that to be the case. The amendment is therefore misconceived.

I hope that it will reassure your Lordships to note that in the revised Clause 9 that we have tabled we have in any event removed the references to the "terms and conditions" of an agreement. The reference was never intended to be confused with the eligibility conditions, but we understand the concern that it provoked. We have, therefore, done away with the reference specifically to make it absolutely clear.

With regard to Amendments Nos. 41 and 52, I made the Government's position on that issue clear in the earlier debate. We agree with the noble Earl, Lord Russell, and the noble Baronesses, Lady Williams and Lady Seear, that the Bill should be amended to remove any scope for confusion between the terms and conditions of the jobseeker's agreement and the conditions of entitlement to JSA. We have dealt with that in a series of amendments.

With regard to Amendments Nos. 44 and 55, it is clear from the range of amendments tabled that clarification is sought of the distinction between the phrases "terms and conditions" of the jobseeker's agreement and the "conditions of entitlement to JSA".

As I explained earlier when introducing the government amendments the intention has always been clear but we have recognised that the drafting of those provisions gave rise to some concern. Our amendments have dealt with that by replacing references to the "terms and conditions" of an agreement with "terms" or simply "the proposed agreement". I was pleased that those amendments received cross-party support.

Amendments Nos. 44 and 55 raise a related issue upon which I should like to spend a few minutes. As I have already explained to the House, the Bill provides that the adjudication officer will consider two matters. Would the proposals allow the jobseeker, if he complied with them, to meet the availability and actively seeking employment conditions of JSA? And is it reasonable to expect the jobseeker to have to comply with the proposed agreement?

To be clear, what the Bill is saying here is that it is possible that the proposed agreement would allow the jobseeker, if he complied with it, to satisfy the availability and actively seeking employment conditions. But the adjudication officer will be able to determine that it would be unreasonable to expect him to have to comply with the agreement. That offers an important protection to the jobseeker.

Take, for example, a proposed agreement which stated that the jobseeker would apply for 90 jobs a week. Applying for 90 jobs a week would clearly enable him to meet the actively seeking employment condition, but it would be unreasonable to expect him to have to do so. Or, take the example of a proposed agreement which stated that a declared anti-vivisectionist would be available for jobs as an assistant in a laboratory that uses animals for its testing. Again, that would be unreasonable because there are many other types of job for which the jobseeker could be available in order to meet the availability condition.

In both those cases, the adjudication officer would be able to determine that it was unreasonable to expect the jobseeker to have to comply with the agreement. He would be able to suggest changes to make the agreement reasonable and the employment officer would have to enter into an agreement on the basis upon which the adjudication officer has directed.

That is the distinction that the Bill is making here. These amendments, however, suggest that, in considering the proposed agreement, the adjudication officer should determine whether it is reasonable to expect the jobseeker to have to comply with the availability and actively seeking employment conditions. That is a different question. We have had extensive debates on the availability and actively seeking employment conditions. I do riot propose to reopen that issue now.

I hope and believe that I have covered comprehensively the various points contained in the amendments tabled by the noble Earl. I hope that we have made our position clear and that that will reassure those who have tabled the amendments so that they may feel able not to move them and to support the Government's amendment.

7.15 p.m.

Baroness Turner of Camden

My Lords, before the Minister sits down, perhaps I may ask him a question about his amendments. New Clause 11 provides that any determination of an adjudication officer under that clause shall be binding. However Amendment No. 59 states: Any determination of, or direction given by, an adjudication officer…may be reviewed (by a different adjudication officer) on the application of the claimant or of an employment officer". There is then a procedure for review and appeal, which I welcome. If that is so, should not new Clause 11 contain a rider to the effect that it is binding, subject to the provisions of the new clause put forward in Amendment No. 59? Otherwise, it looks as though the adjudication officer makes a final decision, and that is it.

Lord Inglewood

My Lords, I am grateful to the noble Baroness for drawing that point to our attention. We shall look at it, and, if the problem is as she described, we shall respond accordingly.

Baroness Turner of Camden

My Lords, I thank the Minister.

Earl Russell

My Lords, before the Minister sits down, am I right in understanding that since he spoke early to assist the House and to open his own amendments, it is still in order for other noble Lords to speak if they wish?

Lord Inglewood

My Lords, indeed, that is the point of the exercise.

Baroness Williams of Crosby

My Lords, I thank the Minister for that full, if rather rapid, exposition of the Government's amendments, which I have done my best to follow. I hope that he will forgive me for asking what may be a stupid question, but it would be helpful to have an explanation as it is one of the key reasons why my noble friends Lord Russell and Lady Seear and I tabled this group of amendments. I am referring to subsections (9) and (10) of the amendment tabled by the noble Lord, Lord Mackay of Ardbrecknish, and, in particular to the adjudication officer.

The noble Lord, Lord Inglewood, said—he went a long way towards reassuring me—that one of the purposes of the long government amendment was to deal with the original part of the Bill we found objectionable; in particular, the possibility of the regulations laying down criteria.

Lord Inglewood

My Lords, I apologise to the noble Baroness, but I did not properly understand to which subsection she was referring, and so it is pointless going on.

Baroness Williams of Crosby

My Lords, I was going at the Minister's own speed in order to satisfy the Government Whip. If she will he merciful to me, I shall take it a bit more slowly. Subsection (9) of Amendment No. 45 deals, among other things, with regulations being able to prescribe the criteria that the adjudication officer must have in mind. As the Minister said, one of the matters that my noble friend and I found objectionable was the possibility that, by regulation, criteria for adjudication could be added. The Minister said —I think with considerable understanding of our worries—that there was never an intention to add to the criteria the adjudication officer would have to bear in mind, thereby qualifying to some extent his or her own independence.

The new clause appears to meet most of our objections. However, one worry remains with me and perhaps the Minister can put my mind at rest. Subsection (10) in Amendment No. 45 reads: Regulations may provide … for such matters as may be prescribed to be taken into account by an adjudication officer in giving a direction under subsection (9) (c)". My concern is that that could be a complex way of reinstating the issue of adding to the criteria which the adjudication officer must bear in mind. It may be that the wording fully meets the point. However, on a simple woman's reading of it, I am not sure that it does.

Lord Inglewood

My Lords, I am always suspicious when I hear simple women's questions—and simple men's questions too. I understand that the clause is to enable the adjudication officer, when a reference is made to him, to propose an agreement for the parties to enter. I understand that in doing so he will be in the same position as the parties were when they first began discussing the matter. The purpose of the clause is to enable the adjudication officer to operate within exactly the same constraints as regards the agreement as the employment officer would have had to operate at first instance.

Baroness Williams of Crosby

My Lords, that sounds a little like, "If I say no I mean yes; if I say yes I mean no", which we came to earlier in our discussions today. I shall ponder upon what the Minister has said and, if I do not fully understand it, I shall ask my noble friend to return to the matter at a later stage.

Earl Russell

My Lords, I am most grateful to the Minister for that reply. Obviously, I must read it in considerable detail and I suspect that I must read it more than once. I found it very helpful as far as it went. I am particularly grateful to the Minister for his comments on the phrase "terms and conditions". He penetrated exactly what was in my mind when I tabled the amendments and I have never been quite so glad to be told that I was confused. On that point, the confusion is now entirely clarified.

I was also extremely grateful to the Minister for his examples, which I found entirely helpful. I am not certain that I was so entirely convinced by his replies to my own amendments. In respect of Amendment No. 34, Clause 9(1), I was reassured by the Minister's exposition of the Government's intentions. I was particularly reassured to be told that my amendments are unnecessary. As your Lordships know, the Government have two categories of amendment; the unnecessary and the wrecking. If I had been told that this was a wrecking amendment, I should have been most anxious indeed. However, as I am told that it is an unnecessary amendment I am a great deal less anxious.

I am grateful for the Minister's reassurance that the powers are in their intention benign. I wish to draw his attention to the fact that before we are through a little further drafting might be helpful. I can see nowhere in Clause 9(1) a statement to the effect that any requirements necessarily must be benign. However good the Government's present intentions may be, this Government or any government will not be here for ever.

In the past the Minister has been a little unsympathetic to the argument about the powers of future governments. The Delegated Powers Scrutiny Committee comments on precisely that issue. The House may wish to bear in mind, however, that whatever the current intention of the departments, the powers would remain capable of being used to make amendments of substance.

Being reassured about the Government's intentions is not necessarily the end of the matter. Leaving powers lying about is a little like leaving unexploded bombs or mines: one may not intend to detonate them but in 10 or 20 years some unsuspecting person may detonate them to devastating effect. Is there any possibility of the Government agreeing to tighten the wording of Clause 9(1) so as to bring it into line with their intentions, with which I shall not argue, as the Minister stated them?

Furthermore, I thought that the Government were a little unwise to use an argument from silence about the Delegated Powers Scrutiny Committee having made no criticism about the wording of Clause 9 as it stands. The Committee stated: There is nevertheless a strong argument that the bill is no more than a skeleton bill, in spite of the Departments' arguments as to why the powers are needed to the extent provided for. The Committee must accordingly draw to the attention of the House the extent of the powers Parliament is being asked to delegate to Ministers". With a general remark such as that, I would have thought that to make an argument ex silentio based on the words of the Committee is of very little weight.

But the Minister has said much for which I owe him nothing but thanks. Proceeding any further tonight would be inappropriate. I shall ask him to bear in mind the possibility of tightening the wording of Clause 9(1). I may wish to return to the matter later when I have read carefully what the Minister has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Lord McCarthy moved Amendment No. 35:

Page 7, line 37, leave out from ("officer") to second ("is") in line 38, and insert ("whereby the claimant agrees to carry out a set of reasonable jobseeking activities in return for the provision by the employment officer of appropriate assistance, including relevant training or jobsearch schemes,").

The noble Lord said: My Lords, we have had a long debate and have dealt with 24 amendments. For a long time the parties involved in the debate were arguing about which amendment would be pre-dinner and which would be after dinner. If we do not take this amendment at fair lick, I do not suppose that there will be any dinner—

Baroness Trumpington

My Lords, I cannot call the dinner break or adjournment for pleasure until 7.30 p.m., so it is up to your Lordships—and they will get dinner.

Lord McCarthy

My Lords, does that mean that at 7.30 p.m. the noble Baroness will order me out of the House?

Baroness Trumpington

My Lords, no.

Lord McCarthy

My Lords, I am glad about that. The amendment deals with the appalling Clause 9 and goes to precisely the same part of the clause as the previous amendment which was the subject of a marathon debate. We are trying to take out what we regard to be a largely meaningless phrase. It is: and which complies with the prescribed requirements in force at the time when the agreement is made". We wish to include words that are more precise and relevant to the central problem facing the jobseeker. We wish to put on the face of the Bill in place of the largely meaningless phrase which now appears a provision in respect of the jobseeker's agreement which states: whereby the claimant agrees to carry out a set of reasonable jobseeking activities in return for the provision by the employment officer of appropriate assistance, including relevant training or jobsearch schemes".

That is intended to make the agreement a real agreement; a network of mutual obligations. As was said by Members on this side of the House when a similar amendment was moved in Committee, that is what an agreement is supposed to be. The Oxford English Dictionary states that an agreement is "A mutual understanding; a reconciliation; a covenant; a treaty; a contract; an accord which produces a harmony of interest after an interchange or exchange". That is what an agreement is and that is what we want the jobseeker's agreement to be. When a similar amendment was moved in Committee, the noble Lord, Lord Inglewood, said that the jobseeker's agreement, will set out what the jobseeker has agreed to do to meet the availability for work and actively seeking employment conditions of the JSA". The jobseeker, he said, could propose terms so that the procedure was not entirely one-sided but if there was no agreement there was adjudication plus a defined series of appeals. Our point is that if there is adjudication, it will be on terms prescribed by the employment officer, the terms which he suggests are a reasonable JSA. I believe that if one reads what was said by the noble Lord on that occasion he accepted our point because he went on to say: The Opposition want something very different. They want to use the agreement as a means of placing specific, perhaps almost contractual, responsibilities on the employment officer". We accept that. We should like the employment officer to have a responsibility to help and we should like that prescription of responsibility to be on the face of the Bill.

The Minister said that, it cannot be right that the individual employment officer should be bound to provide specific help".—[Official Report, 25/4/95; col. 895.] I suggest now—and I would have suggested it at the time had it not been so late—that the Minister knows better than that. He knows that we are not asking for professional help or requiring that to be specified precisely on the face of the Bill. The help, if help there be, would be given by the Employment Service as a whole, not by individual employment officers.

Therefore, we are asking why there should not be a commitment to some kind of exchange—a set of reasonable jobseeking activities agreed by the jobseeker and, on the Employment Service side, what we call appropriate assistance in training, jobsearch and so on.

The difference arises when we come to adjudication. We argue that the jobseeker would be strengthened a little, but not over-strengthened. He can argue that what he has been asked to do is not appropriate or reasonable. I ask the Minister and the Government to consider that. If the amendment cannot be accepted, I ask the Government to tell us whether it would be possible to include something of that sort in the regulations. I beg to move.

Lord Inglewood

My Lords, the jobseeker's agreement is being introduced to help jobseekers discuss, agree and set out their best route back to work. It will be a useful tool for each jobseeker in his search for work and will allow him to focus on the steps that he has agreed to take to find work and any restrictions that he has placed on his availability.

Each agreement will set out the jobseeker's intentions in terms of availability and actively seeking employment. The form of the agreement will also include a section which explains the help which the Employment Service offers to all jobseekers in their efforts to find work. The point about that is that the inherent obligations of the Employment Service are founded in statute rather than on a contractual relationship with the jobseeker in question. The agreement will not, and could not, stipulate in advance and in precise detail what help will be offered to individual jobseekers at particular points in their claim. Each jobseeker will have access to the full range of government help to assist in getting him back to work. That will be offered by the appropriate employment officer at the appropriate point in the claim and will depend on the needs that the jobseeker and the employment officer have identified at that time.

It seems to us that the amendment suggests that the employment officer should offer specific assistance as part of the agreement. We believe that that could become cumbersome. The effect, which I am sure we all agree is undesirable, would be that whenever the Employment Service's support to the jobseeker changed, it would become necessary to seek a variation of the agreement to reflect that fact.

We return to the point we debated on the previous occasion to which the noble Lord, Lord McCarthy, referred. The jobseeker's agreement is not a contract. The jobseeker is not compelled to do precisely what is in it each week and neither is it sensible to bind the Government to particular forms of assistance from the outset. The point is that JSA is a conditional benefit. It is important that claimants should understand that conditionality. That is what the agreement is for. It sets out what the claimant agrees to do to meet the conditions of benefit—no more and no less. What can be the difficulty with that? To me it is sensible that the claimant should have a clear view of what a particular claimant in particular circumstances needs to do to find work.

To some extent our debate has involved a series of semantic gymnastics but one point which the noble Lord, Lord McCarthy, raised related to the input which a jobseeker might have in the case of a dispute and adjudication about the agreement. We must return to the point which the noble Baroness, Lady Williams of Crosby, made on an earlier amendment; namely, that there is power for the adjudication officer to bring forward his own proposals if, having heard both the jobseeker and the employment officer, he feels that a different arrangement from that proposed by either is appropriate. This system envisages the involvement of the jobseeker to a greater extent than has been the case hitherto. In that way we believe that the jobseeker will be able to play a full part in mapping out the steps that he should take to get back to work.

Lord McCarthy

My Lords, the amendment does not refer to specific assistance. If it did, something slightly different might be provided in regulations. I am saying to the Government that if they do not like our words, they should put in some other words, but for God's sake, put some words in.

Secondly, the Minister says that it is not a contract. That is right but, of course, if the jobseeker breaks it he does not receive the benefit. In that sense it is a contract. It is not a contract because there is nothing which the jobseeker can enforce against the Employment Service. That is why it is not a contract. It is an imposition and if I were not in this House at this time of night I would say it was a bloody imposition. It is certainly an imposition.

Thirdly, the Minister says that the claimant must have a clear view and that that is the intention. Yet he will not agree to include in the contract anything which specifies or illustrates in any way what is the responsibility on the Employment Service side. I do not wish to go through all this. There are so many different ways in which we disagree. The Government's attitude towards the jobseeker and the jobseeker's agreement reminds me of Groucho Marx. In "Duck Soup", Groucho says to Mrs. Witherspoon, "Don't read the small print, we haven't written it yet". 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. In moving that Motion, I suggest that the Report stage begin again not before 8.40 p.m.