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Lord Richard: My Lords, I start by thanking the noble Viscount the Leader of the House for giving us some of the practical details of the ceremony that is to take place. As regards the Motion I am very happy indeed to welcome it on behalf of the Opposition from these Benches. It seems to me that there are three principal reasons why it is right for us to remember VE-Day and for us to commemorate this occasion.

First, as the noble Viscount the Leader of the House said, the end of the European war represented a considerable military victory. After many years of fighting and after much travail the Allies succeeded in defeating a determined, efficient and dedicated enemy and it is right and fitting that we recall that feat of arms. Secondly, for us and for many of our allies the end of the war represented a triumph for democracy and for democratic ideals. It says much for this country that throughout the war Britain remained a functioning parliamentary democracy in which the government and Ministers were held publicly accountable and responsible. That, too, should be remembered and underlined.

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Thirdly, 1945 gave the world the opportunity of devising institutions for international co-operation to try to ensure that such a war would not happen again. This year is also the 50th anniversary of the founding of the United Nations and that, too, we should recall. Finally, we should not forget that the war did not end in May 1945. In the Far East it continued until August and I for my part certainly read the proposed humble Address as encompassing both conflicts. It is right that we celebrate at this time but let us remember those for whom the ending of the war came somewhat later. It gives me great pleasure to support the Motion.

Lord Jenkins of Hillhead: My Lords, I think the previous time that we had a declaratory and commemorative Motion of this sort was just over seven years ago for the 300th anniversary of the Glorious Revolution. Although a few Members of your Lordships' House owe their fame, their fortunes and their titles to that change of regime, it was, I suppose, a minority interest and not very closely within our collective memory. The events of 50 years ago are a very different matter. It must be the case—such is our age structure—that over half the Members of your Lordships' House probably have adult memories of those May days 50 years ago. I congratulate the noble Viscount the Leader of the House on producing a Motion which, if I may say so, is both compendious and appropriate.

The noble Viscount the Leader of the House had the good sense to be born after VE-Day and even the noble Lord, Lord Richard, was of relatively tender years at that date, so I suppose that I am the first Member of your Lordships' House with adult memories of 50 years ago to speak on the Motion although I am consoled from feeling too isolated on age grounds by the prospect that the noble Baroness, Lady Hylton-Foster, will speak immediately after me.

I was briefly on leave in London in those May days and I remember thinking at the time, and also retrospectively, that the national mood was a curious intermingling of relief, exhaustion and hope. In a sense the relief has proved extremely well founded. We have after all enjoyed 50 years without any major war, which is almost unprecedented. I think that successive governments of this country can take a good deal of credit, through our being a key founder member of NATO—the most successful alliance in history—for the fact that that has been so. The hope may in some ways have turned out a little more disappointing —the hope certainly of finding a cure for our economic evils or a satisfactory role for Britain in the world. However, it is a considerable offset to that that we have had a secure half century of peace.

This is a Loyal Address and it is appropriate that in it we draw attention to the steadfastness of King George VI and his consort who is still brilliantly alive at the present time. Nearly the whole of the 50 years on which we look back today have been passed under the reign of the present Queen. That reign has been an unprecedented record of devoted service and

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constitutional impeccability. My noble friends and I join with enthusiasm in the final sentence of the Motion and indeed in the Motion as a whole.

Baroness Hylton-Foster: My Lords, we on the Cross Benches welcome the opportunity to commemorate a victory of parliamentary democracy over cruel Axis dictatorship. We join in the welcome so eloquently expressed this afternoon to commemorate and give thanks to the Armed Forces and the civilian population for all that they did, and also to remember with pride the unstinting example shown by His late Majesty, King George VI and by Her Majesty our beloved Queen Mother.

At the same time we should remember with gratitude the part played by the Commonwealth, which came to our aid at a particularly difficult time. In particular I would like to mention the Indian Army and the regiments who fought so gallantly in our defence in North Africa, Italy, the Middle East and southern Asia at a time when we would not have won the war without their help. It is right that Parliament should take the initiative to lead the nation in commemorating in both May and in August in order to celebrate the complete end of the Second World War.

The Lord Bishop of Lichfield: My Lords, perhaps I may associate those who sit on these Benches with what has been said and express my appreciation of the arrangements which have been made. I should like to make one comment. The Chief Rabbi has recently suggested that by keeping the past alive we can be sure, or can seek to be sure, of keeping our future free. I believe that a humble Address which draws attention to the cost of the peace achieved 50 years ago can remind us of the need for vigilant strengthening and protection of that peace which we now have for both the present and the future. Therefore, because memory can in that way be a guardian of liberty, those who sit on these Benches gladly support the Motion that the humble Address be presented to Her Majesty in order to mark the 50th anniversary of the end of the Second World War.

On Question, Motion agreed to nemine dissentiente: the said Address ordered to be presented to Her Majesty by the Whole House; and the Lords with White Staves were ordered to wait on Her Majesty to know when Her Majesty would be pleased to appoint to be attended with the said Address.

Business of the House: Debates, 26th April

3.20 p.m.

Viscount Cranborne: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the debate on the Motion in the name of the Lord Williams of Elvel set down for tomorrow shall be limited to three hours and that in the name of the Lord Donoughue set down for the same day to two and a half hours.—(Viscount Cranborne.)

On Question, Motion agreed to.

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Carers (Recognition and Services) Bill

Brought from the Commons; read a first time, and to be printed.

Jobseekers Bill

3.21 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

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

The Chairman of Committees (Lord Boston of Faversham): I should tell the Committee that, if Amendment No. 40 is agreed to, I cannot call Amendments Nos. 41 or 42.

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

The Chairman of Committees (Lord Boston of Faversham): As always, the Committee is in the hands of your Lordships. If it is desired to speak to those additional amendments at this time it is open to the Committee to seek to do so.

Earl Russell moved Amendment No. 40:


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

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

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

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

First, why do the Government wish for a regulation-making power? Secondly, what do they propose to do with it? Thirdly, what else could be done

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with it? Fourthly, what are the extreme limits of what could be done with it? And, fifthly, how can the House give or withhold its consent to what is done under it?

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

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

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

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

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

To take one or two of the milder examples, there was a provision in those penitentiaries providing a specific penance for the offence of buggery with a swan. There is a long-standing disagreement among historians about whether we use those penitentiaries as evidence that such sins were once committed or whether we use them as a memorial to over-fussy draftsmanship. Looking at this Bill, I am inclined to opt for the second. But even

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then the legislators of the penitentiaries did not get it all right. They provided for such an eventuality with a swan, but they never thought of providing for it with a goose.

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

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

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

3.30 p.m.

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

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

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


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