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Social Security Bill

8.34 p.m.

House again in Committee on Clause 11.

Lord Goodhart moved Amendment No. 13:

Page 6, line 29, leave out ("subsection (3) and section 36(3)") and insert ("section 36(3) below, in the circumstances set out in subsection (3)").

The noble Lord said: In moving the above amendment I shall speak also to Amendment No. 14. Under Clause 11(3) the circumstances in which a decision can be superseded are entirely a matter for regulations. We believe that that is too wide and our amendments would restrict the power to supersede a decision to grounds upon which a decision can be reviewed under existing law.

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The decision of the Secretary of State could be superseded on any ground under our Amendment No. 14, as set out in subsection (3)(a). A decision of the appeal tribunal or of social security commissioners could, however, only be superseded on the grounds in paragraphs (i) to (iv) of our amendment; that is, they could not be superseded on the grounds of being erroneous in law, the reason being that the tribunal and the commissioners are higher authorities on a question of law than the Secretary of State. Therefore, the Secretary of State cannot take the view that their decisions on the law are erroneous.

In Committee in another place the Government said that the grounds set out in our amendments are those which they intend to use, but that they wanted to keep some flexibility to enable them to add to those grounds in the future by statutory instrument. The power of the Secretary of State to supersede an earlier decision is very important. We believe that the parameters for that should be set by primary legislation. I beg to move.

Baroness Anelay of St Johns: I rise to express my support for Amendment No. 13 and to speak also to Amendment No. 14. These amendments have also been tabled in the name of my noble friend Lord Higgins. Clause 11 gives the Secretary of State power to make a decision which supersedes one made under Clauses 9 and 10, as has been explained by the noble Lord, Lord Goodhart--that is, other than discretionary Social Fund decisions or one made by an appeal tribunal or a commissioner. I notice that the 10th report from the Delegated Powers and Deregulation Committee, to which I referred earlier, states in paragraph 10:

    "These powers may seem wide, but the explanatory memorandum (paragraph 52) explains that they will be used for only two limited purposes. Provided that the Minister is prepared to give an undertaking to this effect, the Committee therefore considers that the negative procedure is appropriate".
Of course, I respect the committee's recommendation. I would ask the Minister today to give such an undertaking to this Chamber as a very minimum response to the amendment.

I support the principle which underlies this amendment and Amendment No. 14. It is surely a fundamental principle of liberal democracy--and I use the word "liberal" in its broadest sense at this stage. I believe that the party sitting to my right does not have a monopoly of belief in the value of liberal democracy at any stage. As I said, I believe that it is a principle of liberal democracy that decisions should be made and unmade predictably. In this case subsection (3) will govern whether the unmaking of decisions can be predicted because it explicitly states that there are no restrictions on the circumstances under which the Secretary of State may unmake a decision, apart from constraints that may be imposed by regulation.

The Bill lays down explicit power that any regulation may be made at any time. When we combine the general intent of the clause with subsection (3), the subject of this amendment, the Secretary of State is given wide power to unmake decisions, thereby necessarily introducing a significant element of unpredictability into

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the Bill without any constraint on that unpredictability other than a vague gesture towards regulations which may encapsulate constraints.

The amendment seeks only to place some constraints on the way and the basis on which, decisions may be unmade. It therefore seeks to reintroduce at least some element of predictability into decision making. I certainly see the merit in that. I hope that the Minister who responds will also see merit in that. I support the amendment.

Earl Russell: My noble friend Lord Goodhart drew attention to the Minister's claim to what he described generously as flexibility. The noble Baroness, Lady Anelay, said correctly that this introduces a large element of unpredictability into the operation of Clause 11(3). The Minister in another place said that he wanted to keep the flexibility in case,

    "further opportunities to modernise the process arise. There may in future be a need to be more precise".--[Official Report, Commons, Standing Cttee B, 30/10/97; col. 91.]

This is a classic case of the principle "or else some other reason why" which, as I mentioned in relation to Amendment No. 9, means not being allowed to the claimant. It is also an example of the Secretary of State taking power to do whatever he likes. It is therefore a classic example of what has become known as the Cambises clause after Cambises, King of Persia, who was said to have a law to say that he did whatever he liked. Far too often the Secretary of State does that. I am not sure that Cambises is a good precedent to follow in English law.

8.45 p.m.

Lord Hardie: These amendments raise again the issue of primary as opposed to secondary legislation which we discussed earlier this evening. For the benefit of the Committee I should explain that it is our intention that the powers in this clause to supersede decisions will be used when an error in the original decision has not been identified within the dispute period of one month, or when there is a relevant change of circumstances.

We intend to provide in regulations that a decision may be superseded where there was ignorance of, or a mistake as to a material fact, or an error of law in the original decision, or there has been a relevant change of circumstances (or one is anticipated), or a decision falls to be reconsidered under the relevant sections of the Jobseekers Act.

It will be apparent to anyone who studies the provisions of the proposed new Subsection (3) of the amendment that the regulations will cover the points mentioned in that subsection. The real issue here is whether those reasons should be contained in primary or secondary legislation. We believe that there are good reasons why secondary legislation is more appropriate. The department wishes to be in a position to respond over time to issues which will inevitably arise as the new arrangements for decision-making and appeals are implemented. In that regard I think I am saying no more and no less than the Minister said in another place. For example, there may be a need in the future to make the

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wording of the regulations more precise, to maintain the spirit behind the provision, or to close loopholes which emerge. Or it may be that particular kinds of decisions require specific sets of rules defining matters in more detail. There is a risk that if we were required to seek parliamentary time to amend primary legislation, we would not be able effectively to incorporate lessons learnt from practical, operational experience.

I address the point raised by the noble Baroness, Lady Anelay, with regard to the Delegated Powers and Deregulation Committee. The Committee will recall that at the beginning of my reply I indicated that it was our intention that the powers to supersede decisions would be used in the two circumstances mentioned by the committee. However, I am not able to give explicit assurance that the powers will be used only for those two purposes for the reasons that I have explained; namely, that the new legal structure for decision making and appeals contains substantial changes and, as time progresses, lessons will be learnt. It would be more appropriate to have the flexibility of regulations rather than require to amend primary legislation. I hope with that explanation the noble Lord will withdraw his amendment.

Lord Goodhart: I would have preferred to see the matter dealt with by primary legislation rather than being left to secondary legislation. However, it is not a matter I wish to press further. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 14 not moved.]

Lord Haskel moved Amendment No. 15:

Page 6, line 42, at end insert--
("(3A) Subsection (1)(a) above does not apply in the case of a decision of the Secretary of State under subsection (1)(c) of section 9 above where the relevant enactment within the meaning of that section is section 121C or 121D of the Administration Act (liability of directors etc. for company's contributions).").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

Earl Russell moved Amendment No. 16:

After Clause 11, insert the following new clause--

Independent case examiner

(" .--(1) The Secretary of State shall ensure that any complaint concerning an officer acting on his behalf under sections 9, 10 and 11 above is properly investigated and the results of the investigation notified to the complainant.
(2) The Secretary of State shall appoint an independent case examiner to consider the complaint of any complainant not satisfied with the result of the investigation into his complaint by the Secretary of State under subsection (1) above.
(3) The independent case examiner shall publish each year a report on complaints investigated, their outcome and his recommendations to prevent the recurrence of such complaints.").

The noble Earl said: This amendment seeks to set up an independent case examiner for complainants to address if they are not satisfied with an internal complaints procedure. It is an extremely modest

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amendment. It relies on the principle of the Citizen's Charter. I am a little surprised to find myself doing that. It is a real measure of my modesty. The principle is a well-publicised and easy to use complaints procedure with independent review wherever possible. That already exists in the Contributions Agency and in the Child Support Agency. It would do something to relieve discontent which builds up from time to time. It would also do something to relieve pressure on existing organisations. In particular it would relieve some of the pressure on the ombudsman.

During the period from May to October 1997 the ombudsman investigated 194 cases involving 20 government departments. Some 121 of those involved the Department of Social Security. I imagine that a large proportion of those were child support cases. The Inland Revenue, which came second, was quite a long way behind. The figures measure the complexity of the business involved rather than any administrative failing in the department. But they do indicate considerable pressure. A measure of this kind might also relieve pressure on Ministers who may receive as a result rather fewer letters than they do at present. I see from the Minister's expression that he does not believe that. Perhaps that cynicism is justified. Perhaps if the measure would not result in Ministers receiving fewer letters, they may not receive a steadily increasing number of letters as they might otherwise have done. Perhaps the Minister finds that a little more persuasive.

The measure might also relieve pressure on MPs' surgeries. It seems that social security complaints take up a large part of the time of those surgeries. It might well be in the interests of justice and because it could involve expert mediation and knowledge of where to go and which button to press, it could succeed in resolving some grievances. Therefore it may do a modest amount of good. There have been worse reasons for putting forward amendments. I beg to move.

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