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Baroness Hollis of Heigham moved Amendment No. 21A:


Page 4, line 38, at end insert:
("( ) No regulations made under this section shall be made unless a draft of the statutory instrument containing the regulations has been laid before Parliament and approved by a resolution of each House.").

The noble Baroness said: My Lords, with this amendment we revisit regulations, especially affirmative regulations as they affect Clause 4. I asked the Shadow Chief Whip for an appropriate entrance line on Clause 4, but his imagination and mine failed. If inspiration strikes in the next three or four minutes, I shall do my best to amplify his comments on Clause 4.

The whole House was pleased at the way in which the Government responded to the report of the Delegated Powers Scrutiny Committee on Clause 6. The Government defined both availability for employment and "actively seeking work" and put those definitions on the face of the Bill in new Clauses 6 and 7; and in response to the amendment moved by my noble friend Lord Richard last Thursday on recommitment the

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Government also agreed to go for the affirmative procedure on those new Clauses 6 and 7, although not, alas, on what was then Clause 6D.

Even at this late hour I should like to remind the House that the Delegated Powers Scrutiny Committee was equally concerned about Clause 4. Noble Lords will perhaps recall that paragraph 8 of the final report of the Scrutiny Committee did not seek new definitions in Clause 4 but was clear that the regulations in Clause 4, just as in Clause 6, should come about by affirmative procedure. I quote:


    "Clause 4 allows the calculation of the amount of the jobseeker's allowance to be governed by delegated legislation ... in spite of the fact that it is precedented the Committee draws this provision to the attention of the House because the amount of the jobseeker's allowance will be fundamental to the operation of the statute. The House may wish to consider with care whether regulations under this Clause should not always be subject to the affirmative procedure regardless of when they are made".

The reference on Clause 4 that the House may wish to consider the clause with care is stronger in its phrasing than a similar proposal that the House should handle Clause 6 by affirmative procedure, where the House was asked simply to "consider" the clause. Following the lead of the Leader of the House and the advice of the Delegated Powers Scrutiny Committee, the House agreed to move by affirmative resolution on Clause 6—which we were asked merely to consider. We are now looking at Clause 4, which we were asked in even stronger language by the Scrutiny Committee to consider with care. I hope that the House will follow suit.

The Government agreed only that Clause 6 should be recommitted. Therefore the issue of delegated powers in Clause 4 could not be discussed on recommitment. Yet, as I pointed out, the Scrutiny Committee's request that it should be done by affirmative procedure was stronger for that clause than it was for Clause 6.

It may be that the Minister will say—I have to anticipate him since we are not in Committee—that the proposed levels of JSA will be included in the annual social security uprating statements, which of course come by affirmative resolution procedure. But other regulatory powers in Clause 4 which also affect financial eligibility will not be in that uprating statement and could therefore escape scrutiny. I hope that the Minister, in the spirit in which the House accepted that Clause 6 should be by affirmative procedure, will accept Clause 4 likewise. I beg to move.

Baroness Williams of Crosby: My Lords, I rise only briefly to support the amendment moved by the noble Baroness. I again underline her point that the House has an obligation to consider very carefully indeed the findings of the Select Committee on delegated legislation. Clause 4, along with Clauses 6, 7 and 16, were thought by the committee to be matters of considerable constitutional import. We have dealt with Clauses 6 and 7 by the recommittal of the Bill and the commitment to an affirmative procedure. But we have not dealt with the strictures on Clause 4, or for that matter on Clause 16.

Clause 4 is of the essence, since it is part of the essential function of Parliament to consider at all times the position of expenditure based upon taxation and the

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taxpayer's interest, to which the Minister, who is currently otherwise engaged, has referred time and again throughout this debate. He has spoken time and again about the responsibility that the Government feel for taxpayers.

Parliament cannot fulfil its obligation to taxpayers if it does not know anything about the amounts of public expenditure and the commitments to payments made in a Bill because they are all subject only to regulation. Constitutionally, I must say, I find it in many ways even more offensive that the House had no idea—nor did the other place—about the kinds of sums that we are thinking of when we talk about the "prescribed amounts". That applies to hardship as well as to the jobseeker's allowance, and to the income based jobseeker's allowance in particular.

So, in supporting the noble Baroness, I do so at least as much for constitutional reasons as for reasons connected with the substance of the Bill. I wonder whether, having, I think very sensibly, accepted that the affirmative resolution procedure was constitutionally appropriate to Clauses 6 and 7, the Minister might now seriously consider in the light of the Select Committee's recommendations—the Select Committee was an all-party committee and included many distinguished Members of the Government's own party—that there should at this stage be an acceptance that the affirmative resolution procedure should apply in this instance also.

Lord Skelmersdale: My Lords, as the House will know, over some time I have been an astute watcher of the debate between the negative and affirmative resolution. It occurs to me as regards this particular clause—although I am very cognisant of the fact that I said last week that this Bill was not the Bill in which to have variable order-making powers, if I may so précis my remarks—that, with the exception of the annual operating statement mentioned by the noble Baroness, Lady Hollis, I know of no other instance, including, incidentally, prescription charges, which is made by affirmative order. Therefore, I should like to learn from my noble friend the Minister whether there are any other instances. That would help me to make a judgment.

The other point that occurs to me is that at this late hour noble Lords are apt to withdraw amendments by the dozen. That applies to Back Benchers on this side as well as to the Opposition parties. I do not know whether the noble Baroness, Lady Hollis, will wind up the debate or whether indeed it will be the noble Baroness, Lady Williams. It would be helpful to me in making a judgment on this amendment to know whether this matter will return at the next stage of the Bill or whether the answer given by my noble friend the Minister will be satisfactory.

Lord Mackay of Ardbrecknish: My Lords, in moving these amendments, both the noble Baronesses have made reference to the report of the Delegated Powers Scrutiny Committee. It will not surprise your Lordships to know that I considered the report very carefully, as I do all the reports of the scrutiny committee. As some noble Lords will remember, I pointed out at Re-commitment that I was a founder member of the committee. Perhaps, therefore, that gives

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me more reason than most for reading with a great deal of care what it says and taking seriously its recommendations, as indeed we did in the case of Clause 6. There, we agreed that there were strong grounds for changing the arrangements for parliamentary control.

However, in the case of Clause 4 I do not feel that the grounds are quite so strong. I am not so convinced that we should change the system of parliamentary control proposed in the Bill and move to affirmative resolution for all time. In its report, the committee states that the amount of the jobseeker's allowance will be fundamental to the operation of the statute. Clearly that is so. However, the regulations made under Clause 4 will set out much more than the simple benefit rate. In particular for income-based jobseeker's allowance they will cover the detail of the make-up of the allowance—that is, all the detailed entitlements and conditions for the various premium payments and technical details of help with housing costs and mortgage interest payments.

To answer my noble friend, the regulations made under the comparable powers in income support are not subject to the affirmative resolution, in recognition of the fact that they are extensive, highly technical and require updating and adjusting regularly. If we went down the affirmative route, every small change, perhaps simply to align the arrangements for the change in another income-related benefit, would have to be subject to debate in each House.

The main regulations under Clause 4 will fall to be made under subsection (5). The intention is that the rates and rules for the award will be aligned across the income-related benefits. Minor amendments to regulations made under the current comparable powers are generally made several times a year. On most occasions, they follow a decision by a commissioner or a court. They are often very minor amendments which change a few words or a line in the regulations to clarify the original policy. On other occasions, a minor change elsewhere in the benefits system could require an adjustment; for example, to the technicalities of conditions relating to receipt of premium payments or to a definition.

I do not believe that it would be a sensible use of parliamentary time to have those done by affirmative order. However, I can assure your Lordships that the first set of regulations made under this clause will be by affirmative order. They will set the structure and initial rates of the new allowance. Earlier this evening I answered questions about how we envisage that working. Thereafter, we will have a duty to review the rates each year under the general uprating provisions. The noble Baroness, Lady Williams, discussed that. As we all know, the uprating order is itself subject to the affirmative resolution, so offering a clear opportunity each year for scrutiny and debate over changes to the rates.

There are two quite different issues involved in this clause. There are those regulations which will at the beginning set out and lay down what the size of the benefit will be. Thereafter, there are the annual uprating regulations. Those will be done by affirmative order. The other regulations under the clause are highly

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technical in nature. When one looks across to the other parts of the benefit system, including the parts that will be replaced by the JSA, these are done by the negative procedure. I believe that these two different procedures—the affirmative and the negative—match the two different types of changes that we will need to make in the future using the regulations.

Having heard my explanation I hope that the noble Baroness will feel able to withdraw her amendment. If she does not, and we have to go into the Division Lobbies, I hope that my noble friends will support me.


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