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Lord Inglewood: Perhaps I can respond to one or two of the points raised, particularly to that of my noble friend Lord Boyd-Carpenter. I have in my hand a copy of the Social Security Contributions and Benefits Act 1992, which gives an example of this provision. It is not quite good enough for the proposition about which we were talking, but I shall come back to the Chamber with other examples because I am confidently advised that they exist elsewhere.

My noble friend Lord Renton and the noble Lord, Lord Shepherd, made some extremely important points, and I am grateful to them for their remarks. Clearly this matter is of importance and is close, and properly close, to a number of your Lordships' hearts. We shall certainly consider extremely carefully everything that has been said here this afternoon on the subject. But I reiterate the Government's position that the present balance between primary legislation and regulations is roughly right in what we are proposing for the JSA.

Earl Russell: This debate has shown the House absolutely at its best. I am grateful to all noble Lords who have taken part in it. The noble Lord, Lord Shepherd, is right that this goes to the heart of the way the Bill has been constructed. Therefore, though the debate has taken time, I hope that before we are through it may turn out to have saved us time. The noble Lord, Lord Campbell of Alloway, is also right that the issue goes far beyond the scope of the Bill.

It had never been my intention to divide on the amendment today. We need to wait for the report of the Delegated Powers Scrutiny Committee, which, as I have said before, has been delayed through no fault of its own. But had it been my intention to divide, the remarks of the noble Lords, Lord Henderson of Brompton, Lord Campbell of Alloway and Lord Renton, and the final concluding remarks of the Minister would have been enough to dissuade me.

The noble Lord, Lord Campbell of Alloway, argued for placing the terms on the face of the Bill. He knows perfectly well that that is a type of argument for which I am normally an enthusiast. However, it seems to me to be a little more tricky than that. The basic principles here are placed on the face of the Bill. They are in Clause 1(2)—the claimant must be available for employment and actively seeking employment. But what we have here in all these regulations is an attempt to prescribe what shall be taken for evidence of being available for employment and actively seeking employment. The passage that seems to bear on this is the passage in the Renton Report, which I quoted last Thursday and shall not quote again, about attempting by drafting to guide the court's definition of intention. It is over-detailed draftsmanship. That is why I did not go down the road outlined by the noble Lord, Lord Campbell of Alloway. It tempts me very much, but I could not see a way along it on this occasion.

I was particularly grateful to the Minister for the care he took to think through the issues raised by the amendment. I understand the difficulties of a test of

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"genuinely seeking work", but that is what we have with the way a lot of the actively seeking work tests are conducted at present. I also entirely take his point about what he called "the necessary degree of certainty". I appreciate what it does to someone to be deprived of something that he thought was an entitlement. However, if the Minister looks at the arguments of the Renton Committee, he will consider amending the words "the necessary degree of certainty" to the words "the desirable degree of certainty". Attempting to achieve certainty by more and more careful draftsmanship, however desirable it may be, is at the end of the day a will-o'-the-wisp.

The Minister will, I hope, now accept that the amendment does not remove from the Bill the test of actively seeking employment or of being available for employment. It merely avoids a whole lot of tests of the intention being set out in regulations, which I think is not the best place for them. Clearly, we all have a great deal more thinking to do on all sides of the Chamber before we get this right. I hope that there will be more discussion of it inside and outside the Chamber. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Lord McCarthy moved Amendment No. 42:

Page 5, line 11, leave out from ("Act") to end of line 12 and insert ("a person is available for employment if he is willing to do any work which he can reasonably be expected to do; and a person is actively seeking employment if he is taking such steps which are reasonable in his case as offering the best prospects of obtaining work and in this section "work" means employment either as an employed earner or as a self-employed earner and these terms shall have the same meaning as in section 2 of the Benefits Act).").

The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 61. Members of the Committee who are aware of the grouping will know that Amendment No. 44, in the name of the noble Earl, Lord Russell, has also been grouped. I am quite happy that that should be the case. If the noble Earl wishes in due course to press it to a Division I shall support him. However, I shall not speak to that amendment because he will be able to do that much better than I can. I am speaking in the first instance to Amendment No. 42 and I shall come in a moment to Amendment No. 61.

Here we are sticking out our neck. After having said that we believe that there should be something on the face of the Bill, we felt that we ought to put something on the face of the Bill. It is up to the Government to say whether they like it. It is a cock-shy. I am quite sure that things can be found to be wrong with it. Things can be found to be wrong with any definition. But it is the first attempt to say the kind of thing which we feel could be on the face of the Bill. Therefore, at page 5, line 11, we say leave out from ("Act") to end of line 12 and insert our definition:

    "a person is available for employment if he is willing to do any work which he can reasonably be expected to do".

That is the definition of "available". The definition goes on:

    "and a person is actively seeking employment if he is taking such steps which are reasonable in his case as offering the best prospects of obtaining work".

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It goes on to define what "work" shall mean.

In other words, we are trying to introduce a concept of reasonability. We are suggesting that it is for the employment officer to say whether the jobs which are placed before the unemployed person are reasonable, bearing in mind the person's abilities, experience and skills. We are saying that the employment officer should specify the steps that are to be taken and the number of times which the individual has to attend per week in order to prove that he is actively seeking work—the number of ways in which he has to come back with his employment book, signed by employers. All these points come out in the evidence from the CABs. These things should be reasonable.

This concept is not unknown in legislation. Whenever we want to try to put in some kind of balance so that the argument can go one way or the other we use the term "reasonability". It is particularly useful, we would suggest, to the unemployed person if he considers that what he is being asked to do in terms of availability or activity is too much because he can then go out to the adjudication officer and say, "I believe that what was being asked of me was unreasonable". It then becomes a matter for the adjudication officer, who knows in broad terms what he has to take into account, to decide whether something is reasonable. That is the objective of Amendment No. 42. I shall say no more about it, but I shall wait to hear what the Minister says.

Amendment No. 61 states:

    "make provision with regard to the steps which a person has taken which are in addition to or in place of one or more of those set out in his jobseeker's agreement to constitute evidence that he is actively seeking employment".

What that means, or what we hope it means, is this. We know that the Bill and the White Paper—and, from what we have been told, the regulations—contain a great deal about steps which a person has to take. We understand that the object will be that those steps will now be embodied in a jobseeker's agreement. That agreement will have a kind of quasi-legal status. Anything which is outside those steps or does not fulfil those steps will constitute a breach of that agreement and therefore the denial of benefit. We are saying—we are not asking for this on the face of the Bill—that the regulations should take on the problem and in particular seek to deal with the problem of the steps which a person has taken which are suddenly in addition to or in place of one or more of those set out in his jobseeker's agreement.

Therefore, although it is not on the face of the Bill, the jobseeker has some idea from the regulations as to whether something additional and different is being asked of him outside the scope of the jobseeker's agreement. Further, if he does something outside the scope of the specific jobseeker's agreement, he has some kind of defence in the regulations by saying, "That kind of thing was anticipated. I could not go to the office three times this week because I was ill", or "I had a child to look after", or "I had to go on a training course." Those are the kind of steps which can set aside the provisions of a particular jobseeker's agreement. We want something in regulations which tells the unemployed person what he has to expect.

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These are two primary attempts to introduce something into the legislation to give the unfortunate unemployed person some guidance as to what is expected of him or her. I beg to move.

4.30 p.m.

Earl Russell: I support Amendments Nos. 42, and Amendment No. 61. I shall speak also to Amendment No. 44 which is in my name. I shall try not to repeat myself. Between Amendment No. 42 and Amendment No. 44 I do not have any very strong preference. The purpose of Amendment No. 44, achieved also, I believe, by the other amendment, is to refer the issue to the test of intention. An adjudication officer may rule that a person is not actively seeking employment only if that person has deliberately diminished the likelihood of his finding work.

There are plenty of cases where people have got into trouble for things which were definitely not their intention. I give the example of a voluntary unemployment case but the principle also applies. Someone was held to be voluntarily unemployed having lost his job because his car broke down on the way to work. I doubt whether there is anyone in the House to whom that has not happened. Therefore, by the test of intention, that person would have been completely all right. All the criteria I was arguing for as regards the previous amendment are, I believe, met.

Amendment No. 61 is an interesting amendment and I am grateful to those who tabled it. It deals with what, in Catholic theology, is described as "works of supererogation" or, as it is described in innumerable citations, "actions above and beyond the call of duty". It allows to be taken into account actions by someone seeking work which do not happen to be those specified in the regulations but which nevertheless show a very great eagerness by that person to seek work. Again, by the test of intention, that is the sort of thing which, in any sensible world and between individuals, we would always take into account. Therefore, if the law were to prevent that, it would be a very great pity.

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