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Lord Swinfen: I should like to assure my noble friend that the noble Earl, Lord Russell, is not the only person in this Chamber who is concerned with the very considerable amount of power to make regulations in the Bill. It may be a sign of an extremely idly and badly drafted Bill that it is written in such a way that it needs so many regulations; or a sign that the Bill had been written so quickly that insufficient thought had been given to it.

I am becoming seriously concerned, as is the noble Earl, about the amount of secondary legislation that we are being asked to agree on the nod—very often without the proper opportunity to discuss it, and certainly without the opportunity to amend it. There is, too, a convention that we should not even divide on regulations which have been passed in another place. My noble friends must give this matter very serious thought before we come to the next stage of the Bill.

Lord Inglewood: Perhaps I may begin with a point made by my noble friend Lord Swinfen. It was the concluding point of the noble Earl, Lord Russell. To some extent I shall go over matters that we discussed at the beginning of our debates.

Previous legislation in this area of the law is in many ways in its structure similar to that which we propose in the Bill. After all, the Bill takes over and replaces a significant element of existing social security legislation. One of the characteristics of that form of legislation—it has not occurred suddenly but over the years—is that it contains a considerable amount of secondary legislation in order to provide flexibility in the system. As we discussed earlier, one of the problems we face this evening is that we are discussing the matter without the report of the scrutiny committee.

My noble friend Lord Renton and the noble Lord, Lord Shepherd, made a number of important contributions to the debate which included reference to the way in which noble Lords deal with these matters, the conventions which apply in this Chamber when dealing with secondary legislation and how they vary from those which apply in another place.

We have specified the particular details of how we intend to deal with those matters in Clause 33 of the Bill to which we shall come later. During the earlier debate, I said that we would consider the matter carefully bearing in mind the comments made at the time. I hope at this late stage that that at least reiterates and explains the general position which the Government take.

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There are two aspects regarding the noble Earl's amendment. The first is what I might describe as the smaller aspect. It is a point that the noble Earl made with reference to Clause 7(9) (b), which provides that regulations made under Clause 7(8) may in particular set out the criteria to which the adjudication officer is to have regard in making a determination on the proposed jobseeker's agreement. The criteria will be whether the terms of the proposed agreement are such that if the jobseeker complied with them, 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 them.

This subsection will not go beyond that. It cannot and will not be used to add any extra conditions. It is simply there to ensure that the intention of the primary legislation is fully reflected in the drafting of the regulations.

There is a wider point which is that the amendment seeks to remove Clause 7(8) which would take away the basic right of access to adjudication on the agreement. That is something which we are committed to providing in regulations under Clause 7(8). We believe that that would be a most serious and, I imagine, unforeseen consequence of the amendment. It also seeks to remove Clause 7(9) which makes clear that the adjudication procedure will, among other things, include the right of either party to instigate a referral to the adjudication officer and the right of the adjudication officer to backdate agreements if he considers that that would be appropriate. We do not believe that it would be sensible to remove the provisions.

Furthermore, the intention behind Clause 7(9) (d) is that the adjudication officer should be able to make constructive suggestions as to what is needed to make the proposed agreement satisfactory. That will greatly speed up the process of getting a satisfactory agreement.

The alternative which the amendment appears intending to bring about will be for the adjudication officer simply to tell the jobseeker that his proposals are not satisfactory, without offering any suggestions as to how they could be made more satisfactory.

We do not think that the amendment would do anything for the jobseeker, and we believe it would remove his right to independent adjudication of the agreement by dismantling the adjudication procedure that has been specially made for dealing with jobseeker's agreements. We cannot believe that to be in anyone's interests, let alone the jobseeker's.

Earl Russell: I thank the Minister for that reply. I take his point about dismantling the adjudication procedure. That was not my intention. I had assumed that if I removed the regulation-making power, the Government might spell out what their intentions were in primary legislation. I would then have been prepared to be as co-operative as I reasonably could about it.

I take the Minister's point that it did not happen suddenly. It is true that the price of liberty is eternal vigilance, and maybe in the past we have not been sufficiently vigilant. I accept that the basic criteria remain availability for work and actively seeking work. I shall not repeat all I said on the first amendment—God forbid! But the point keeps arising that we are dealing with the

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Government attempting to spell out in greater and greater detail what should be taken as evidence for those two criteria. It remains my conviction that the Government have gone down a deeply mistaken drafting road, and they have done grave damage to the Bill in the process.

Nevertheless, I can understand some of the arguments the Minister makes. Were I to be certain that I would be able to vote on those criteria if I did not approve of them, then I would be prepared to reach a compromise on the rest of the argument. I was particularly interested in what the Minister said about the speeches of the noble Lords, Lord Renton and Lord Shepherd. I saw a faint glimmer of hope in those remarks, although I would not presume to misinterpret the Minister by taking it as anything more than that. I also agree entirely with what the Minister said—that it would be improper to reach any final decision on the matter before we received the report of the Delegated Powers Scrutiny Committee. For that reason, I beg to withdraw my amendment.

Amendment, by leave, withdrawn.

11.15 p.m.

Earl Russell moved Amendment No. 92:


Page 6, line 36, at end insert:
("No adjudication officer shall give a judgement creating a new condition for eligibility which has not been approved by Act of Parliament.").

The noble Earl said: The purport of the amendment is to ensure that regulations shall not create any new condition of eligibility for benefit. It is my long-standing concern that people should not be disentitled to benefit by the force of regulation.

In replying at Second Reading, the noble Lord, Lord Inglewood, said something about this matter which I think is slightly encouraging. It is buried somewhere in the papers I have here; I am sure that the noble Lord remembers it as well as I do. The question is not only whether he is creating a new formal condition, but also whether he is taking the business of spelling out what shall be evidence of the two basic conditions so far down the road that it amounts to a new condition.

This matter is a little like the famous problem of Sir John Suckling's silk stockings, which had been darned so often that none of the original material survived. The question is: were they or were they not a new pair of stockings? Similarly, if we have more and more expansion of what shall be taken as evidence of actively seeking employment, we shall have to ask where in effect a new condition has been created. So, when I ask the Minister whether he can repeat the undertaking that there will be no new condition of eligibility for benefit under regulations, he can take it to apply to new conditions built up by elaborating upon and expanding the old as well as to completely new legislation. Both of those are serious questions and the Committee deserves an answer. I beg to move.

Lord Inglewood: The agreement is the key to ensuring that each jobseeker is treated as an individual and receives individual help. The agreement will set out what that jobseeker has agreed to do to meet the availability for

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work and actively seeking employment conditions. It will provide a focus for discussing his or her personal plan to find work.

As I explained at Second Reading, it will not mean individual terms and conditions for receipt of JSA. Clause 7 of the Bill makes it clear that the agreement will set out what the jobseeker will do to meet the availability for work and actively seeking employment conditions of JSA. If the employment officer and the jobseeker reach agreement on that, that is well and good. But if the jobseeker is not satisfied with the terms being proposed to him for his agreement, regulations will enable him to refer the proposal to the adjudication officer.

As I understand it, the point that the noble Earl is anxious to establish is that the matters that may be contained in the jobseeker's agreement under this heading will not in any way go further than the criteria laid down in Clause 1(2) (a) and (c) of the Bill. I can give an undertaking that the subject matter of the agreement cannot go beyond the wider terms of reference contained in the legislation in respect of Clause 1(2) (a) and (b) so far as the requirements to satisfy being available for employment and being actively seeking employment are concerned. I hope that my remarks will satisfy the noble Earl and provide a proper reply to the question that he asked.


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