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Earl Russell: I thank the Minister for his response. Clearly I must wait to see his amendment which I shall read with care. I cannot say that I am in the least satisfied with what I have been told. For example, I have not been told under what circumstances the Government might want to vary the period or why; or, indeed, whether it is to be longer or shorter. Above all, I am listening over and over again to a department which believes that it can make the law without reference to Parliament.

Reference to Parliament under a regulation procedure is purely nugatory. We look at it; we speak. Like the Social Security Advisory Committee, we express our opinions and we have no more effect than that committee has when it moves that regulations be not proceeded with. I really will ask the Government to cease talking about parliamentary sovereignty until they are capable of practising it. But nevertheless, at this time of night, I shall beg leave to withdraw my amendment, but we will hear more. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86 to 88 not moved.]

Lord Swinfen moved Amendment No. 89:


Page 6, line 27, at end insert ("which, in the case of a disabled person who, within the 8 weeks prior to his claim for jobseeker's allowance has been determined capable of all work, shall be a period of not less than 13 weeks").

The noble Lord said: This amendment would enable people who come off incapacity benefit to sign on for jobseeker's allowance to still have a 13-week permitted period within which to seek work in their usual occupation. At least 150,000 long-term sick and disabled people are estimated to come off incapacity benefits and sign on for jobseeker's allowance in its first year. People who are likely to come off benefit are those who fail the new all work test of incapacity normally applied after 28 weeks of being incapable of work. Notionally this test, which will assess the claimant's ability to undertake certain functions such as reaching, walking etc., is supposed to show if someone is capable of any work. Those who fail the test and who will therefore not be entitled to incapacity benefits will be assumed to be capable of all work, even though they may score only just below the threshold level of 15 for incapacity benefit. Someone who scores less than that figure will not be eligible for incapacity benefit but could have a considerable disability; in other words, for example a person who had had an involuntary episode of lost or

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altered consciousness at least twice within the past six months before the claim would score only some 12 points.

Thousands of people with substantial disabilities will be expected to sign on for jobseeker's allowance. Normally unemployed people have a permitted period of 13 weeks within which to restrict their availability and job search activities to their usual occupation, the conditions applying to that occupation and the appropriate level of remuneration in that occupation. Others without a usual occupation have to widen their job search from the start of their claim. Paragraph 4.7 of the jobseeker's White Paper confirms that the intention is to carry forward these provisions on to jobseeker's allowance. This amendment seeks to ensure that disabled people coming off incapacity benefit who are notionally considered to be capable of all work have a similar period of grace within which to consider searching for work within their previous occupation without having to be available for any work from the beginning of their claim. I beg to move.

Lord Inglewood: As we made clear in our proposals for JSA in the White Paper, we will be carrying forward the current provision of the permitted period in which jobseekers may restrict their availability and job search to their usual occupation, if they have one, and to their usual level of pay for up to 13 weeks from the beginning of a claim. Our experience since 1989, when the permitted period was introduced, is that a maximum of 13 weeks is a reasonable period during which to restrict job search in this way. After 13 weeks, jobseekers should be prepared to widen their horizons rather than hold out for a specific job.

The amendment of my noble friend Lord Swinfen would provide that disabled people who have been found capable of work in the test for incapacity benefit in the eight weeks before claiming JSA could not be given a permitted period of less than 13 weeks. I do not think this amendment is necessary, and indeed for some disabled people it may not be desirable. To take up my noble friend's point, we have made it very clear throughout our deliberations over the proposals for the availability rules for JSA that people with disabilities will be able to restrict their availability in line with their mental or physical condition. That may mean that some disabled people with relatively severe problems, but who are still capable of some work, will be able to place substantial restrictions on their availability. But, if they are to achieve the goal of getting back to work which they share with other non-disabled jobseekers, they should make themselves available for as many jobs as their disability allows. We agree that in the first period of unemployment the best prospects of returning to work may lie in the area of the person's usual occupation. But after a maximum of 13 weeks they must be prepared to look more widely. People with disabilities should be treated no differently in this respect than able-bodied jobseekers, nor would most expect to be.

Lord Swinfen: I am not sure that I agree with what my noble friend said, but I shall not pursue the matter further at this time of night. I shall consider what he said and reserve my right to return to the matter at the next stage. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 90 not moved.]

11 p.m.

The Chairman of Committees: If Amendment No. 91 is agreed to I cannot call Amendments Nos. 92 to 95 inclusive.

Earl Russell moved Amendment No. 91:


Page 6, line 28, leave out subsections (8) and (9).

The noble Earl said: I am afraid that even at this time of night this amendment has a high priority. It proposes to delete subsections (8) and (9), which provide for the making of regulations for the referral of cases to the adjudication officer. Of most concern is subsection (9) (b) which states that regulations may provide,


    "criteria to which the adjudication officer is to have regard".

Throughout the course of the Bill we have been reassured about its potentially arbitrary implications by endless reiteration of the adjudication officer. But everything depends on which law the adjudication officer is to base his decision. We are now told that the adjudication officer is to "have regard" to criteria to be laid down in regulations.

That reminds me of the favourite example of the noble and learned Lord, Lord Simon of Glaisdale—the company involved in the South Sea Bubble, which took in capital and sold shares for a purpose "hereafter to be disclosed". The adjudication officer will make his judgments under law hereafter to be disclosed. I do not see how a self-respecting Parliament can approve that.

I also wonder why the Government have chosen words as mild as "have regard to". We have had a number of debates in this Chamber about the significance of the words "have regard to". I am not at all convinced that under those words the adjudication officer will be bound to keep any systematic law. If not, he is a petty tyrant. I only hope that he encounters some particularly pertinacious village Hampden before he is through.

We are told in the Government's memorandum that under this clause it is the intention of the Government that the powers created in this and the subsequent subsection constitute a substantial and systematic legislative framework. It is a substantial and legislative framework to which we have no opportunity to consent. What sort of legislation is that? We passed a humble Address today congratulating ourselves on our parliamentary government. I begin to think of Parkinson's law that when the history of an institution comes to be written it is on the edge of disappearance. What sort of parliamentary government is this? It does not seem to make very much sense.

In the Government's memorandum we are told that all the powers in this subsection relate to the process by which it will be conducted. I really cannot see that that is anything other than a misleading statement. Creating the criteria by which judgment is to be made is a good deal more far-reaching than simply organising the details of the process. If these criteria are so vague and uncertain as the words "have regard to" might imply, I cannot help wondering whether we shall have a great deal more in the

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way of judicial reviews than either public funds or the interests of claimants, or indeed the occupation of a great deal of time, might explain.

In effect, these criteria are the principal point of the whole Bill, the grounds on which people are to be disentitled to benefit. If we cannot consent to that I do not see what we are here for. We are spending a good deal of our night involved in a good deal of hard work, and if we are to be deprived of our basic right to say "Content" or "Not Content" we are in pretty much of a mess.

I have had no answer all evening to any of the questions on how we can give or withhold our consent. Sooner or later, even at this time of night, I may start dividing the Committee because I have not received that answer. We really need an answer. I beg to move.


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