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Earl Russell: I thank the Minister for that reply. It contains an element of encouragement. But we still have to pursue further the question of how far the evidence for the two basic tests may constitute a new test.

Let us take the example in Clause 6(3) that we debated this afternoon relating to behaviour and appearance. If I follow the line in the Minister's mind, I believe he would tell us that that did not constitute a new condition because it was simply a new way of looking at the basic condition of actively seeking employment. If he thinks along that particular tram line, then it is rather easier for him to give this assurance in complete sincerity than it is for me to accept it. As I look at that from outside, from my point of view it looks remarkably like a new condition for benefit.

If I take that as a new condition for benefit, along that line of defining the question, would the Minister still be able to assure me that in the interpretation no new conditions for benefit will be created? Before he answers, I should say that I ask this question with the case of Pepper v. Hart in mind.

Lord Inglewood: I am most grateful to the noble Earl for his further questioning, which quite rightly is defining the position which I am taking here at the Dispatch Box. I am fully conscious of the doctrine in Pepper v. Hart and I am very anxious to have that properly in mind in the reply that I give. The difficulty that I have in responding to the noble Earl's question is the way in which he described my mind as working - if my mind can be worthy of such a name; let us say the way in which whatever it is between my ears works. On that basis he accepts that the reply that I gave to him is entirely consistent with the proposition that I enunciated earlier.

In responding to the noble Earl's question, the problem I have is that, if he looks at the matter in the way in which he is looking at the matter and if he reaches the conclusion on the facts that he reached, then I entirely accept the point

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that he is making. If, on that basis, I accept the point that he is making, I cannot then from his perspective, it seems to me, absolutely, finally and unequivocally state the proposition in the way in which I was looking at it, which would give him the same answer as the one that I reached. I hope that that will be at least of some help to the noble Earl.

Earl Russell: I am extremely grateful for that very careful and thoughtful reply. We have two different and sincere ways of looking at the question. I suspect that in the end it will have to be resolved in the courts and that resolution may be very expensive. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

Lord Inglewood moved Amendment No. 94:

Page 7, line 13, leave out paragraph (i).

The noble Lord said: The jobseeker's agreement is an innovation and the adjudication arrangements made in respect of it should reflect that. That is why the Bill provides a tailor-made adjudication procedure.

Perhaps if I speak to Amendments Nos. 94, 96, 97, 98 and 99 together, the whole thing will gel. Amendments Nos. 94 and 96 concern review of an adjudication officer's determination or direction by a different adjudication officer. Ministers have made clear in another place that it is our intention that either the jobseeker or the employment officer should have the right to such a review if they are dissatisfied with the first adjudication officer's determination or direction. We believe that this is an important stage of the adjudication procedure for jobseeker's agreements. The effect of the amendments will be that any regulations made under subsection (8) will be required to make provision for such a review.

It has always been our intention that if the jobseeker is still dissatisfied after the review, he should have the right of appeal to the social security appeal tribunal. The purpose of Amendments Nos. 97 and 98 is to make clear that claimants must pursue their case in the right order; that is, by first seeking a review and only then by appeal to the SSAT.

These amendments will introduce additional clarity into the Bill and they reflect a wholly benign intent. I commend them to the Committee on that basis.

On Question, amendment agreed to.

[Amendment No. 95 not moved.]

Lord Inglewood moved Amendments Nos. 96 to 99:

Page 7, line 17, at end insert:
("( ) for the review of the adjudication officer's determination or any direction given by him, by a different adjudication officer, on the application of the claimant or of an employment officer;").
Page 7, line 19, after ("determination") insert ("on a review").
Page 7, line 20, at end insert ("on a review").
Page 7, line 21, at end insert:
("(bb) in relation to a social security appeal tribunal determining such an appeal, similar to any provision made by virtue of subsection (9) (d) or (e);").

The noble Lord said: I spoke to these amendments with the previous one. I beg to move.

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On Question, amendments agreed to.

[Amendment No. 100 not moved.]

Clause 7, as amended, agreed to.

[Amendments Nos. 101 and 102 not moved.]

Clause 8 [Variation of jobseeker's agreement]:

Earl Russell moved Amendment No. 103:

Page 8, line 3, leave out subsection (1).

The noble Earl said: The provision that this amendment proposes to leave out provides that,

    "A jobseeker's agreement may be agreement".

I have no objection to "agreement". My reason for moving the amendment, is that I am not certain whether this is repugnant to Section 1(2) (b), which says that it is a condition of the jobseeker's allowance that the claimant,

    "has entered into a jobseeker's agreement which remains in force".

No jobseeker's agreement; no benefit.

I am questioning whether "agreement", as properly understood, can ever be achieved, or whether it is achieved by duress. In fact, are the words repugnant to the rest of the Bill? Is the Bill, as it used to be put, felo de se? I beg to move.

Lord Inglewood: I shall confine myself to endeavouring to reply to the noble Earl's question. Under Clause 1(2) (b) a jobseeker's agreement must be in force for a claimant to be entitled to a jobseeker's allowance. This provision is not inconsistent with the rest of the Bill because these procedures only take effect where there is an agreement already in force. We are therefore talking about an existing agreement being varied, rather than an agreement coming to an end and another agreement being substituted for it. I hope that the noble Earl will agree that that meets his point.

Earl Russell: It is a serious attempt to meet my point. I am not altogether sure that it does. An agreement which is reached under duress cannot be validated by subsequent amendment, even if the duress continues. I am in a real difficulty in this regard and we shall return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 104:

Page 8, line 4, at end insert:
("( ) A proposal to vary a jobseeker's agreement may be made by a claimant at any time and within 7 days of making such a proposal he shall be granted an interview with an employment officer to discuss the variation.").

The noble Lord said: In moving Amendment No. 104, I shall speak also to Amendment No. 106. The idea behind Amendment No. 104 is that a jobseeker's agreement should be something which can be revised by the claimant; that in fact the claimant can revise it at any time and, within seven days of his making such a proposal, he should be granted an interview with an employment officer to discuss the variation. Amendment No. 106 says that the matter should be referred "forthwith" to an adjudication officer.

At the moment the clause only provides for future regulations and those future regulations may allow for a variation—we do not know because we have not seen

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them. But the clear balance of power, as we have been arguing all evening, lies with the employment officer rather than with the applicant for benefit or for employment. We want to strengthen the hand of the applicant. We are saying that an applicant who wants to change the agreement should be able to obtain an interview, and if there is no agreement from the employment officer then he should be able to obtain adjudication within seven days.

We have had many examples of the kind of advantages which may result for an applicant if this kind of flexibility can be built into the agreement. For example, a claimant may originally put into the agreement that he will attend the Jobcentre three times a week. Subsequently he may conclude that it is of more use, rather than going to a Jobcentre on those days, to go to a library and apply to advertisements through newspapers. In that case he may ask for a variation in the jobseeker's agreement. Or he may want to change his options with regard to training and employment programmes. For example, when a claimant signs on he may put into the agreement that he will go to a job club. But after five months he may decide that he does not want to do that; he would rather go on to a part-time education course which he thinks may be more helpful in enabling him to return to work. If the two amendments were carried the claimant would have an opportunity to ask for a change in the agreement and within seven days to have an interview. I beg to move.

11.30 p.m.

Lord Inglewood: Amendment No. 104 seeks to bring the detailed operation of the variation of agreements into the Bill. We do not believe that this is the right place for such detail.

Jobseekers will be able to vary their agreements at any time. It is not envisaged that variations will be necessary between advisory interviews. A jobseeker will, however, be able to seek a variation if it is appropriate. If, for example, a lorry driver who has been looking for general driving work loses his licence he would need to amend his agreement to reflect the change in his jobsearch plans.

The jobseeker will be granted an appointment as soon as possible. In most cases that will be in less than seven days. We do not, however, believe it will be sensible to use primary legislation in a way that could easily impede the operational flexibility of the Employment Service. For example, it would be most unwelcome if the Employment Service had to see someone wanting to vary his agreement in preference to someone who had not yet made a claim. The jobseeker who wants to vary his agreement will remain eligible for JSA provided he continues to meet the availability and actively seeking conditions, and his agreement is still in force. The agreement will be a flexible document. It does not impose a straitjacket on the jobseeker's search for work. This amendment perhaps assumes a greater rigidity than will be the case. That is why we do not support it.

Turning to Amendment No. 106, the adjudication procedure for proposed jobseeker's agreements and variations to agreements is set out in Clauses 7 and 8 of the Bill. Following views expressed by Opposition Members in another place, the Bill was amended by

25 Apr 1995 : Column 908

government amendment to Clause 7 to enable regulations to provide that referrals of proposed agreements to the adjudication officer must be made "forthwith". This brought the procedure into line with Section 20 of the Administration Act. There had never been any question that referrals of agreements should be made less speedily than other referrals. The amendment simply clarified that. We are therefore prepared to accept this amendment. I am most grateful to the noble Lord for proposing it.

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