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Lord Campbell of Croy: My Lords, I am glad to follow the introduction by the noble Earl, Lord Mar and Kellie. I say straight away that I have known him for many years, in fact since he was at school, and that he has an immense knowledge of social work in Scotland, having worked for many years in that field himself. We should therefore take note of what he suggests.

When I saw Amendment No. 17 I was not sure whether the noble Earl simply did not want the Bill to apply to Scotland; whether he wanted alternative drafting for Clauses 4 and 5; or whether he wanted a separate Scottish Bill, which was another possibility. Having heard him speak, I recognise that he does not want the Bill to apply to Scotland.

The noble Earl referred, as I have done several times in your Lordships' House in recent years, to the fact that it is not illegal in Scotland to make direct payments in certain circumstances and that that has been practised in Scotland without the need for it to be done indirectly through a third party. However, it is not something which all local authorities have felt able to do.

The noble Earl was able to help the House by showing that the system operates in Scotland but only in certain circumstances. When the proposals came forward for a system of direct payments in this country, I was keen that it should extend to Scotland and that if there was to be fairly complicated legislation, which all of us now realise is the case, it would be a pity if Scotland were to miss an opportunity to address the whole subject of direct payments.

Therefore, while I follow and understand what the noble Earl suggested, I would prefer a discretionary system for all local authorities in Scotland along the lines--it cannot be in the same words as we have different systems in Scotland--that apply to the rest of the United Kingdom. I shall not go into all the other details about people moving north and south of the Border and having different systems. Given this opportunity of a United Kingdom Bill--we have separate clauses dealing with the Scottish system and Scottish law--it would be a pity for Scotland to be taken

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out of the Bill, as suggested by the noble Earl, although I recognise and respect his reasons for putting forward the suggestion.

Baroness Masham of Ilton: My Lords, as a Scot--even though I live in England, once a Scot always a Scot--may I ask the Minister for an assurance that the good schemes now working in Scotland will not be restricted by the legislation. Such an assurance might please the mover of the amendment.

Baroness Cumberlege: My Lords, it is always with trepidation that I cross Hadrian's Wall and although I am quite tempted I am not so foolish at this hour of the night to become involved in constitutional issues.

I am advised that the amendments prevent direct payments being made available in Scotland. We would not want to deny people in Scotland access to the new freedom on the same basis as the rest of the United Kingdom. As my noble friend Lord Campbell, a former Secretary of State for Scotland, undoubtedly knows, Scottish local authorities have a power under the Social Work (Scotland) Act 1968 to make cash payments to individuals. But those cash payments may be made only in exceptional circumstances constituting an emergency; for example, to pay for food, fuel or accommodation. It is a very limited power. Those cash payments may not be used to substitute for mainstream community care provision on a planned and regular basis.

The noble Baroness, Lady Masham, asked whether payments would be jeopardised by the Bill. My understanding is that they will not. I shall write to the noble Baroness and to the noble Earl if that is not the case.

Local authorities also have powers under Section 10(3) of the 1968 Act to make payments to certain voluntary organisations. As part of their own activities, those organisations may themselves make payments to assist individual adults to purchase community care services. Neither of those powers is equivalent to the powers created by the Bill. Clause 4 will enable local authorities in Scotland to pay money directly to individuals on a planned and regular basis to enable those people to secure for themselves the community care services they need. With the amendment, local authorities in Scotland would not have that new power. Accepting the amendment would disadvantage disabled people in Scotland who would be deprived of the opportunity to receive direct payments on the same basis as people in the rest of the United Kingdom.

Clause 5 makes a minor technical amendment to ensure that the provisions of Section 13 of the Social Work (Scotland) Act 1968 continue to relate to Section 12 of that Act as originally intended. We see no reason to remove it. With that explanation, I hope that the noble Earl will see fit not to press the amendment.

The Earl of Mar and Kellie: My Lords, I said that I am in favour of this type of activity. There is a good deal of confusion in social work as to how the provisions of Section 12 are to be interpreted. It is confusing not just for me but for all those trying to provide a service. There is a genuine debate about the

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remarks of the noble Earl, Lord Lindsay. I am glad to see that he is in his place. In his Written Answer he referred to people requiring assistance in exceptional circumstances constituting an emergency and where doing so would be more cost effective. I would interpret that as two separate conditions; others have not done so.

I was hoping that the noble Baroness could tell me who would be responsible for issuing the guidance for Scotland. If she can tell me, I would be very appreciative.

Baroness Cumberlege: My Lords, I am sorry that I did not mention it. It is the Secretary of State for Scotland.

The Earl of Mar and Kellie: My Lords, it has become easier to withdraw the amendment. I am extremely grateful for that last piece of information. Without more ado, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Consequential amendment]:

[Amendment No. 18 not moved.]

7.45 p.m.

Baroness Hamwee moved Amendment No. 19:

Before Clause 7, insert the following new clause--

Power to make regulations

(". In this Act the power to make regulations shall be exercisable by a statutory instrument which--
(a) on the occasion of the first exercise of any such power shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament; and
(b) thereafter shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Baroness said: My Lords, the amendment replicates one I moved at the previous stage. It proposes that regulations should in the first instance be the subject of the affirmative resolution procedure and thereafter the negative resolution procedure. In her answer to the amendment in Committee the Minister said that the main drawback was the need to find parliamentary time every time the Government wished to amend. She also said that the amendment would be inconsistent with existing legislation in the community care field where Members have been content to allow the negative resolution procedure. It was quite late when we discussed the amendment on that occasion and I did not pick up that the criticism was the need for parliamentary time. I want to clarify that point and to suggest that we have not yet fulfilled what I think are parliamentary responsibilities because of the order in which we are dealing with different issues. I am suggesting that there should be one occasion when parliamentary time is required unless there is a problem in your Lordships' eyes or in the eyes of Members of another place.

Although parliamentary time would be required if the amendment were agreed to, it would not be excessive parliamentary time. I am sure your Lordships agree that Parliament is the servant of those whom we represent or serve, that Parliament should not be master, and that parliamentary time should not be our master beyond

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what is reasonable. We are dealing with the Bill at a time when details are out for consultation. A response is not required until 23rd February and the Minister cannot, I imagine, say tonight how long it will take for the Government to react to that consultation. By definition, until it is over it will not be known what the level of response is. I do not know about quantity, but it is clear that in terms of quality there is a very considerable response.

One of the things that has impressed me most since I arrived in your Lordships' House is the level of contribution by members of the public and by interest groups. We ask for their contributions. We regard ourselves as a pluralist society and therefore we should listen to their contributions very carefully and consider them formally. I say that in the context of what I believe to be an increasing blurring of the line between the legislature and the Executive. We are by definition dealing here with legislation. There are aspects of this legislation that should be considered by Parliament. They will come within regulation. I accept that they may be subject to annulment, but is it not right and proper that we set ourselves the goal of devoting parliamentary time to consideration of the specific issues that we believe may be addressed by the consultees? With regard to the client groups, the Minister said that the Government will not consider those groups until after consultation. That alone appears to answer my argument in the affirmative; namely, that it is proper to come back to your Lordships' House with that response and consider it in a formal manner. I beg to move.

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