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Lord Higgins: My Lords, I am grateful to the noble Baroness for her response. Let me say right away that it was certainly not my intention to be in any way discourteous to the noble Baroness. But I could not have made it clearer at the Committee stage that we did not believe the situation which she described was satisfactory. I said:

Baroness Hollis of Heigham: My Lords, the noble Lord is in no position to anticipate what I would have replied in a letter as he did not choose to send me one. It was a hypothetical statement.

Lord Higgins: My Lords, had I done so I would clearly have received the same answer we have received this evening. It is not a satisfactory answer. The noble Baroness has again come to the House and said that she is not in a position this evening to say what is the Government position. The Government have had months to get together the various government departments in order to reach a decision. They are treating the House with contempt--I overstate it perhaps. They are not enabling the House to do its job of examining these issues, which are very important to a number of disabled and other individuals outside, if we do not know what is the position of the Government.

The noble Baroness has said that we can debate the matter on amendments. We need to know what is the position of the Government before we know whether we need amendments. For us to table amendments and then for the noble Baroness simply to stand up and say, "We do not know what the answer is yet", is not satisfactory.

I simply do not understand why the Government have been unable to reach a decision on this matter. None of us disputes that it is a difficult issue--it involves a number of departments and so on--but as far as concerns timing it is simply a matter of the Government taking all the various issues into account and making a decision.

Having said that, it does not seem to me that this is an inappropriate way of proceeding. As far as concerns Erskine May, perhaps the noble Baroness would care to look at page 479 of the current issue. There the point is made very clearly that this procedure in one form or another has been used on a number of previous occasions. It seemed to me a matter of urgency to bring the issue to the House. It seems to me that the Government are not giving the House a fair opportunity to consider these issues.

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The noble Baroness said, "This matter is not central to the Bill; it is a consequence of the Bill". Before we pass legislation that will affect a large number of disabled and other disadvantaged people, we have to consider what the implications are. It is not satisfactory to say that that is not central to the Bill. The fact that there can be serious consequences as a result of the Bill should be taken into account when we consider the specific measures which the Government have proposed. Those consequences follow from the actions which the Government are taking in the Bill. Therefore, to say that it is not central is to ignore the repercussions of the Bill. To argue that when considering a Bill one should not take into account its repercussions or ask the Government what they expect to do about the repercussions and, if necessary, have an opportunity to amend the Government's proposals about those repercussions is to take an extraordinarily narrow view of legislation and does not enable--

Baroness Turner of Camden: My Lords, has not the noble Lord tabled an amendment, Amendment No. 15, which deals with passported benefits? Why is it necessary to move this Motion now?

9.15 p.m.

Lord Higgins: My Lords, for the reasons I have mentioned, we should have known long since what the position is. We have tabled an amendment. But our tabling an amendment is not the way in which this should be done. The Government should put forward their proposals and we can then consider whether they are appropriate. If I understand correctly what the noble Baroness has said--

Baroness Hollis of Heigham: My Lords, the point is that there is nothing the Government can put down because what the noble Lord is concerned about is not part of the Bill. It is not primary legislation; it belongs to the regulations of another department. All the Government can do in due course is make a statement of their proposals. As my noble friend said, an amendment gives the opportunity for debate--precisely what we are doing now, and apparently we are to do it twice over--but there can be no consequences for this Bill. It is not part of the framework of this Bill and cannot be because it belongs to the regulations of another department. I am sorry that the noble Lord does not understand that point. That is not to say that this is not an important issue and cannot be debated. But the Government cannot bring forward amendments because it is not part of this Bill in terms of going from family credit to working families' tax credit. That is why there cannot be government amendments and therefore opposition amendments to amend the Government's position.

Lord Higgins: My Lords, with respect to the noble Baroness, that is not truly the position. If we can put down an amendment, so can the Government. It may be that such an amendment will require careful drafting, but there is no reason why one should not incorporate into the Bill an amendment to deal with this issue.

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The noble Lord, Lord Goodhart, made an alternative suggestion. In a number of respects the Government have been extremely good--I give them all credit--in putting forward draft regulations concerning both the Bill itself and the repercussions of the Bill. Therefore, it would have been possible for the Government to have done the same in this case. They could have put forward draft statutory instruments, although we would not have been able to amend them.

Lord McIntosh of Haringey: My Lords, perhaps I may, with the deepest respect, suggest to the noble Lord that there is a difference between government amendments and opposition amendments. Opposition amendments can be probing amendments. They can be defective but still have a value to the House in enabling it to debate the issues before Parliament. A government amendment has to be necessary; it has to be perfect; and it has to be relevant to the subject matter of the Bill. My noble friend Lady Hollis has made it clear that any decision about passporting would not require primary legislation and the regulations that would be necessary for it would not form part of the regulations dependent on this Bill. Under those circumstances, the noble Lord's suggestion that the Government should put down an amendment to the Bill on passporting simply does not stand up.

Lord Higgins: My Lords, these are technical matters.

Lord McIntosh of Haringey: My Lords, they are not technical matters; they are essential to the way in which we deal with government business in this House.

Lord Higgins: My Lords, the reality is that this is a matter on which the House should be able to express a view; and not only express a view but carry a view.

Baroness Hollis of Heigham: My Lords, that surely is the purpose of Amendment No. 15, to which my noble friend Lady Turner referred. That is the appropriate point for this discussion--not now and not on this Motion.

Lord Higgins: My Lords, I am not proposing to discuss the specific point on this Motion. We shall come to it, as the noble Baroness rightly said, on a later amendment. But, given the repercussions of what the Government are doing, we ought to have an opportunity to amend whatever the Government have in mind. At the very least we ought to know what the Government intend. That is why the suggestion of the noble Lord, Lord Goodhart, to publish draft regulations would be a way of doing it, albeit that we could not then actually amend them. It would perhaps be a second best solution. Otherwise, the Bill will disappear into the public domain with our having had no opportunity of discussing the substance of what the Government ultimately have in mind. The crux of the matter is that they have failed to consider this issue in time to give the House an opportunity of discussing and, it is to be hoped, amending their proposals.

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That said, as I say, there is certainly ample precedent for this procedure, but I do not wish for one moment at this stage to push the matter to a Division. However, I hope that the noble Baroness will take back the message to her ministerial colleagues that they have been appallingly slow and negligent in not sorting out this matter before now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Report received.

Clause 2 [Transfer of functions relating to tax credits]:

Lord Goodhart moved amendment No. 1:

Page 2, line 2, at end insert--
("( ) The Social Security Advisory Committee constituted under section 170 of the Social Security Administration Act 1992 shall be renamed the Social Security and Tax Credits Advisory Committee.
( ) Part XIII of the Social Security Administration Act 1992 shall have effect, in relation to working families' tax credit or disabled person's tax credit, as if references to the Secretary of State were references to the Treasury or the Board, as may be appropriate.")

The noble Lord said: My Lords, this amendment is a redrafted and, I hope, improved version of an amendment that I moved in Committee. The substantive part of the amendment is the second subsection. Its purpose is to ensure that the advice of the Social Security Advisory Committee continues to be available to whichever government department is administering tax credits.

At present, the Social Security Advisory Committee is governed by Part XIII of the Social Security Administration Act 1992. It has a number of statutory functions. Under Section 170 of the Act it has a duty,

    "to give ... advice and assistance to the Secretary of State in connection with the discharge of his functions under the relevant enactments". Also under Section 170, the Secretary of State,

    "may from time to time refer to the Committee for consideration and advice such questions relating to the operation of any of the relevant enactments as he thinks fit (including questions as to the advisability of amending any of them)". Under Section 172,

    "where the Secretary of State proposes to make regulations under any of the relevant enactments, he shall refer the proposals, in the form of draft regulations or otherwise, to the Committee". Under Section 174, the committee considers proposals submitted to it under Section 172 and makes a report on them with recommendations to the Secretary of State. The Secretary of State is then required, when laying any regulations before Parliament, to lay also a copy of the committee's report.

The relevant enactments are defined in the 1992 Act as including the Social Security Contributions and Benefits Act 1992; the Social Security Administration Act 1992 itself; and parts of the Social Security Act 1998. There are also corresponding provisions relating to Northern Ireland. I have not attempted to cover them in this amendment, but if it is accepted similar amendments would obviously have to be made for Northern Ireland.

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The effect of the Bill on the role of the Social Security Advisory Committee in relation to tax credits is unclear. Under Clause 2(1)(c ) and Part III of Schedule 2 to this Bill, the functions of the Secretary of State under the relevant enactments in relation to tax credits, so far as they are not transferred to the Treasury or to officers of the Board of the Inland Revenue, are transferred to the board itself.

No alteration is made by this Bill to the functions of the Social Security Advisory Committee. One of the functions of the Secretary of State is, for example, to refer any proposals for new regulations which he proposes to make to the Social Security Advisory Committee under Section 172 of the 1992 Act. Arguably, therefore, in relation to tax credit regulations, this is a function--that of referring proposals--which is transferred to the board, although not, it would seem, to the Treasury in cases where the regulation-making power is transferred to the Treasury under Part I of Schedule 2. But the Social Security Administration Act gives the advisory committee no power to advise anyone other than the Secretary of State or his Northern Ireland equivalent, and that power is not extended by the Bill so as to authorise the advisory committee to give advice to the board.

It seems to me, therefore, to be--if I may use an oxymoron--a plain ambiguity. It would seem absurd to say that one of the functions of the board is to refer draft regulations to the advisory committee, but the advisory committee has no power to comment on them. So does the board, by implication, have no power or duty to refer matters to the advisory committee, despite the general transfer of the functions of the Secretary of State to the board under the Bill, or does the advisory council, again by implication, have power to respond to references by the board, despite the absence from the Bill of any extension of the functions of the advisory committee?

In Committee I assumed that the board would have no powers or functions under Part XIII of the Social Security Administration Act, and the noble Baroness replied to my amendment on the same assumption. I apologise for not warning the noble Baroness that I was going to raise a new point on the construction of the Bill. I would have done so, but it was only when I was preparing this morning for the debate that I realised that the assumption on which we had proceeded in Committee might not be correct. Obviously, she will need time to consider the position, and to provide for that it is my intention to seek to withdraw the amendment today, but it may be necessary to bring it back at Third Reading to consider the legal position.

Whatever the position may be under the Bill as it now stands, it is important that the advisory committee should have a continuing role. In Committee the noble Baroness acknowledged the valuable work which the advisory committee carries out. There are many matters covered by the regulations which will apply to tax credit in the same way as they apply to other benefits. These include how claims are to be made; how decisions are to be taken; how decisions are to be revised; how decisions are to be appealed against; and how payments are to be made where they are not paid through the

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employer. The advisory committee has great experience in dealing with these matters, and it would be a terrible mistake to abandon this resource.

The noble Baroness said in Committee:

    "I recognise the concern of noble Lords that draft regulations on tax credits should be exposed to interested and expert parties for comments, as happens with SSAC. However, I can provide a response in that respect. The normal practice of the Inland Revenue is to publish all major regulations in draft for comment. In practice, they are reaching a much wider audience than would be the case with SSAC".--[Official Report, col. 657, 4/5/99.] With great respect, that is not an adequate answer. Of course, I welcome the fact that the Inland Revenue proposes a wide consultation. But, however wide that consultation goes, clearly the advisory committee should be one of the bodies consulted by the Inland Revenue. Of course, it should not be the only body that the Inland Revenue consults, but it should certainly be one of them.

I should say that the amendment does not propose to include the Bill as one of the relevant enactments. Regulations under Clause 6 for payment through employers are different from the kind of regulation which is considered by the advisory committee, and I do not think that the advisory committee needs to be consulted on those particular regulations. Possibly the regulations under Clause 15 should be included, but that would have made the amendment complicated, and therefore I have not pressed for it.

Finally, I have not yet mentioned the first subsection, which relates to the renaming of the advisory committee. I have included that as what might be described as a "sop" to the Government. The Government are convinced that by changing the name "family credit" to "working families' tax credit", people's perception of family credit will be changed. That may be true. Many Members of your Lordships' House have had experience of changing their names and many have found that, on doing so, other people's perceptions of them changed, even if their own perception of themselves did not. If it will help the Government to accept the principle of consultation with the committee, I am more than happy to propose a change in its name from the "Social Security Advisory Committee" to the "Social Security and Tax Credits Advisory Committee".

Be that as it may, the important feature is that this valuable source of advice on the sort of regulations that will have to be made to the administration of working families' tax credits should be made available to the Board of Inland Revenue in the same way as such advice has been available in the past to the Secretary of State and the Department of Social Security. I beg to move.

9.30 p.m.

Lord Higgins: My Lords, the noble Lord, Lord Goodhart, spelled out the points relating to his amendment in great depth and with considerable analysis. I do not want to add anything further, other than to say that it is right that he should raise such issues and to ask one very simple-minded question: Is there

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any problem with the advisory committee advising a government department rather than a government Minister?

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