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

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

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

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

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

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

That point in turn contrasted slightly with what my noble friend Lord Renton said. He appreciated that there is a need to target and fine-tune in the context of this kind of legislation. Inevitably one is talking in many instances about what my noble friend described as hypothetical circumstances. Probably the best way to

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deal with the matter is to leave it to those on the ground who actually decide. Again, I understand the thinking behind that point. But it makes it difficult for there to be the necessary degree of certainty that is so important in our legislation, particularly when we are referring to matters of money and so on. It would leave considerable discretion in the hands of people and, while they will no doubt exercise that discretion entirely honourably, it will be difficult for those who are affected to know where they stand without going through the entire procedure.

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

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

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

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

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

Lord Inglewood: We can give an overall definition; but the detail of the targeting is, as the noble Lord, Lord McCarthy, said, the important matter. If circumstances change, we in turn would want to change. In Clause 33 special provisions are in place to try to make quite sure

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that Parliament exercises a considerably greater degree of scrutiny in practice over these matters than may ordinarily have been the case in the past.

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

Lord Inglewood: The noble Baroness has made much of my case.

Baroness Hollis of Heigham: Will the Minister accept my conclusion that the definition should be on the face of the Bill?

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

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

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

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

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

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

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

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

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

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

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

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unusual and unexpected use of the powers conferred by the statute under which it is made." It also reports provisions which exceed the powers of enabling statutes.

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

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

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

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

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

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


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