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Lord Inglewood: Before talking about the substance of these two amendments I wish to talk briefly about Amendment No. 20, because I am slightly puzzled by it. I think it may be deficient. It applies to subsection (8) of Clause 6 (in the Government amendment). That clause of course is concerned only with availability for work, but this amendment is concerned with actively seeking work. Furthermore, subsection (8) is about regulations made under subsection (4) in relation to permitted periods. That seems limiting to what I presume are the noble Baroness's much wider intentions.

I suspect that the amendment, like Amendment No. 34, is probably intended to ensure that the labour market conditions of JSA will be able to take account of the many different needs of people looking for work. I shall speak to it as if that were the case. Let me emphasise once more that this has always been our objective. That is why we are providing for people with disabilities to be able to restrict their availability in accordance with their mental or physical condition; that is why we are providing for people with religious or conscientious convictions to be able to restrict the types of jobs for which they are available; that is why we are introducing easements to the availability rules for carers. We have given a clear indication of our intentions by setting on the face of the Bill such groups as examples of the people who may restrict their availability.

The noble Baroness is obviously concerned that staff delivering JSA may act in a discriminatory way. Again I wish to give an absolute assurance about that. All staff in jobcentres will be mindful of the issues of sex and race discrimination. They will have clear guidance on

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how to deal with people from different ethnic origins and with men and women in determining the steps that they are taking to seek work actively. Against that background, if there are examples of where this kind of behaviour has not occurred in line with the guidance, may we please be given chapter and verse on that? On behalf of the Employment Service we endeavour not to condone or permit the kind of behaviour to which the noble Baroness alluded in a different context but which she implied may be occurring in the Employment Service. If we want to ensure that that does not happen, we need to be given chapter and verse as regards certain incidents in order to root out the problems. If we cannot be given chapter and verse, I do not believe it is proper to level accusations at the Employment Service.

We will also take into consideration, when drawing up the regulations to define availability and actively seeking work, the requirements of the sex and race discrimination Acts. The noble Baroness gave a number of miserable examples of discrimination at the workplace. It is important to be clear that that is beyond the scope of what we are discussing now. Of course, proper legal redress is available. Clearly some of the behaviour which was described would undoubtedly be construed as constructive unfair dismissal.

I am sorry that after we discussed a similar amendment during the Committee stage on 25th April and the assurances we gave then we have to return to this issue. If I remember correctly, on that occasion members of the Committee were perplexed as to why we could not cover these issues in primary legislation. We have now made clear in our own amendments to Clause 6 how regulations will provide for the restrictions in availability on grounds, for example, of religion or mental or physical condition. However, the detail must be an issue for regulation rather than appearing on the face of the Bill.

As has been explained on many previous occasions our policy is to include, not to exclude; to take account of all the facts in determining eligibility for benefit, not to ignore them. We believe that that is best achieved in regulations.

I fear that the provision envisaged in the amendment would be impossible to relate to real labour market needs and could result in some claimants qualifying for JSA when their intentions and actions meant that they were not genuine jobseekers. That would not be to the benefit of either the taxpayer or the vast majority of jobseekers who are making every effort to find work. For those reasons I urge the Committee to reject the amendment.

Earl Russell: The Minister gave me some, perhaps unwitting, encouragement. He said that regulations "will" provide for these conditions. The Bill says "may". I asked the Minister to change that: perhaps he has now agreed.

Lord Inglewood: Regulations will be made. It is a permissive power in the Bill.

Baroness Hollis of Heigham: I thank the Minister for that reply. To use a phrase of the Minister's, I am absolutely sure that he believes every word he said. The

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difficulty is that I do not believe that he can deliver what he has promised us. I am convinced of his intention. In his phrase, he gives us an absolute assurance that discrimination will not occur. With the best faith in the world he can speak for himself, as I am sure he does, but he cannot give an absolute assurance that such discrimination will not happen.

The CAB has evidence to the contrary, and I am happy to make it available to him. None of us wishes to see that happen, and I am sure that we are entirely as one on that. I am sure that the Minister speaks for himself when he says that he believes, hopes and expects that it will not happen. However, we have evidence that it has happened, and we fear that it may happen. The last time the Minister asked for evidence we had some and he was kind enough subsequently to acknowledge that evidence. We have it in this case too.

Would discrimination be less likely to occur if this provision were on the face of the Bill? Alternatively, if the Minister feels that that is not the most appropriate way to proceed, and I do not necessarily disagree, will he at least give us an assurance that this issue will be drawn to the attention of staff as one of exceeding sensitivity, if not in the regulations, in the guidance to be issued to employment offices?

I hope that the Minister understands our position. This Bill is based on regulation, which offers double discretion—to the Secretary of State in terms of the regulations that he will introduce, and a further delegation of discretion to the employment offices. At this point I do not challenge that, but it is a discretion which is once or twice removed from Parliament. At the end of the day, employment officers, like police officers and the rest of us, represent a range of people. In the exercise of their discretion they will inevitably bring to bear their experiences, their value judgments and, let us face it, their prejudices. That is inevitable. I suspect that we all do that in certain circumstances and under certain pressures. We are trying to ensure that those officers are aware of the importance that this Chamber attaches to ensuring that that prejudice should not be exercised and to make employment officers self-conscious about it.

If the right way to proceed is not to place the issue on the face of the Bill, can the Minister at least give us an undertaking that it will be achieved through guidance and the matter will be drawn to the attention of employment staff? I hope that the Minister can help us on this.

Lord Inglewood: Yes. As I mentioned earlier when I gave the assurance that all staff in jobcentres will be mindful of the issues of sex and racial discrimination, they will have clear guidance on how to deal with people from different ethnic origins, and with men and women, in determining the steps they are taking actively to seek work. I hope that that provides the kind of foursquare assurance that the noble Baroness seeks in this regard.

Baroness Hollis of Heigham: Will we see that guidance in the form of regulations? Will it be part of the affirmative regulatory powers?

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There appears to be a negative response from another quarter. Can we than hope that the Minister will undertake to send copies of such guidance to these Benches so that we can circulate it to relevant organisations? Is the Minister willing to give us that undertaking?

Lord Inglewood: Perhaps it would be best if I wrote to the noble Baroness giving the background to how we deal with these matters so that she will be fully seized of all the facts.

Baroness Hollis of Heigham: That will be welcome. The important issue is that we see the guidance and that it reflects what the Minister has encouraged us to believe tonight. I take it that that is what will happen. I beg leave to withdraw the amendment.

Amendment No. 20, as an amendment to Amendment No. 4, by leave, withdrawn.

Baroness Hollis of Heigham moved, as an amendment to Amendment No. 4, Amendment No. 21:


Line 50, at end insert:
("( ) that where a doubt arises as to whether the claimant is available for employment or is to be treated as available for employment, an income-based jobseekers's allowance shall be payable pending a determination by the adjudication officer at an amount determined in accordance with section 4 but reduced by 40 per cent. of the claimant's personal rate which would otherwise be applicable;").

The noble Baroness said: I am sorry that we come to the amendment as late as we do; it is the fault of us all collectively. However, I believe that the amendment relates to one of the most worrying aspects of a rather worrying Bill.

It is a straightforward natural justice amendment. It provides that, where there is a doubt—I emphasise the word "doubt"; it is not a decision—that a claimant may not be fully available for work or is not seeking work sufficiently actively, and while that doubt is being investigated and resolved, that individual should continue to receive a benefit, albeit that the benefit would be only at 60 per cent. of the full rate. Why? Perhaps I may suggest three reasons.

First, as the Bill is being debated, and as a result of amendments in another place, the benefit sanctions being introduced are now increasingly complicated. If individuals are unemployed through alleged misconduct, or allegedly without good cause, they may continue to receive full JSA. So if someone is unemployed because he is a job leaver, he continues to receive full benefit while that factor is being investigated. But, if he is unemployed not because he is a job leaver but because he is a jobseeker, he may receive 60 per cent. of benefit immediately if he is both vulnerable and in hardship, or after two weeks if not vulnerable but in hardship, or he may receive nothing if apparently neither vulnerable nor in hardship. So he may receive full benefit, or reduced benefit immediately; after two weeks he may receive reduced benefit or he may receive nothing. Yet the individual would be unemployed in all those circumstances.

On a simple point of clarity I do not believe that that is fair. No one will know what they are entitled to. After all, all individuals simultaneously met the conditions of contributory benefit through national insurance and that

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is on their record. That benefit should not be denied them while possible doubts are explored before they go on to a means-tested benefit. A means-tested benefit is in itself a statement of hardship. I believe that the amendment produces simplicity and clarity. If it were accepted, there would be full benefit for some and 60 per cent. for the remainder while all doubts were investigated and appeals heard.

My second argument follows on. It is an argument which the noble Earl, Lord Russell, has put forward frequently and most tellingly. How can someone who has had a means-tested benefit withdrawn—I do not refer to a contributory benefit but to a means-tested benefit—by definition not be in hardship? He has qualified for a means-tested benefit precisely because he already was in hardship: that is, without a partner in work; with little or no alternative income; and with little or no savings. He is already very poor. That was the qualification for receiving means-tested benefit. If he has received means-tested benefit for any length of time, he is likely to be even poorer.

By suspending benefit, even though that benefit may subsequently be repaid if the individual is found innocent, the Minister is pushing such claimants into a spiral of temporary loans at extortionate rates of interest, leading to arrears of rent and rates because housing and council tax benefits are passported to income support and JSA, as well as fuel debts, social fund loans, and the like. As Charles Booth taught us many years ago—we seem to be full of historical analogies tonight—people on irregular income cannot pay regular bills. Once locked into debt, even subsequent repayments are unlikely to clear up the mess.

If we adopt the amendment on clarity, my second argument is that it avoids very real hardship regarding people who are already in hardship by virtue of having qualified for means-tested benefit. My third and last argument is that the amendment is based on natural justice. According to the Government, a relatively untrained employment officer is required to increase the number of suspensions from benefit, because that is what the target of increased referrals of doubt involves.

I emphasise that no one on these Benches has any objection to increasing the number of referrals of doubt where there is a reasonable cause, so long as the claimant is not fined because the employment officer has a doubt. None of us has any objection to checks for fraud. None of us wishes to countenance fraud provided that the punishment follows the offence and does not anticipate it. At present, the Bill provides that punishment anticipates the offence. I suggest that only where there is a real risk to fellow human beings of violence, for example—perhaps someone who is drunk regularly is barred from driving a car—will he be detained or held on remand. In other words, he is punished in advance, so to speak, of his offence being heard. In all other cases, the punishment is imposed only after trial. Yet simply because a relatively untrained officer has a doubt, which could be an exhibition of prejudice if someone's behaviour or appearance is unpleasing or of incomprehension because someone is inarticulate, the applicant is punished in advance. Those

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of us who do not claim benefit would not for one moment tolerate the degree of discretion which would allow someone to be fined in advance of an offence being established. We would all find it outrageous. But that is what we shall visit on some of the more vulnerable members of our society—the unemployed, the marginal, the not very competent and the not very articulate. It would be done on the ground, "It's all right for them because they are not one of us".

Were we then to find out that many, if not most, of those punished in advance were subsequently to be found innocent, even though reparation was made we would still be further outraged. Yet 180,000 people were referred to adjudication who were found on appeal to be innocent and 90,000 of them had to wait at least two weeks before adjudication and several months before their appeal was heard.

We are literally treating the unemployed worse than those arrested for a criminal offence. That point was also tellingly made by the noble Earl, Lord Russell. We are cutting off their income. As a method of turning the unemployed into petty criminals, it must be one of the most effective devised. First, harry the unemployed, then stigmatise them, then make them destitute and then encourage them into criminality: aren't we clever?

When finally the Equal Opportunities Commission argued that in cases of alleged discrimination there should be a presumption that discrimination had occurred and that the defendant—perhaps the employer—should have the responsibility of proving that it had not occurred, the argument was rejected by the then Secretary of State, David Hunt, in the following words:


    "fundamentally inconsistent with justice and the rule of law in this area. The idea that a person, on proof of certain facts, should be presumed guilty unless he can prove himself innocent appears hard to reconcile with natural justice".

David Hunt said that to the chair of the EOC on 19th July 1993. How then can the Government defend their position on imposing a fine in advance of an offence being established? I beg to move.


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