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Lord Mackay of Ardbrecknish: It might be for the benefit of the Committee if I intervene early in the debate in order to set out my reaction principally to the Delegated Powers Scrutiny Committee's report which was referred to by the noble Lord, Lord Richard. I welcome him to our deliberations on the Bill. Normally his noble friend Lady Hollis, myself and a few other season ticket holders spend
The Lord Privy Seal emphasised that on a number of occasions throughout his two contributions on that day. Some noble Lords will not be surprised to hear me underline the point and say that I too take seriously the reports of the Delegated Powers Scrutiny Committee, especially since I can claim to be one of its founder members. I remember the deliberations we had on the various kinds of delegated powers. I received a short lesson on matters such as Henry VIII clauses which stay with me and occasionally seem to come back to haunt me in my new capacity.
Given that I sat on that committee until I was asked to join the Government, I found the work interesting and I take what the committee says and its recommendations and arguments very seriously indeed. Those noble Lords who had season tickets to proceedings on the Pensions Bill will realise that I took on board the main criticisms made of that Bill in regard to the negative and affirmative procedures.
Thus I fully understand the concerns and anxieties which go wider than merely the issue with which I started. They address questions of the balance to be struck between the role of the courts and that of the legislature in determining the conditions under which people are entitled to benefit. They address questions about how the terms of social security benefits can be expressed in law while remaining responsive to constantly changing labour markets and social provisions. They address questions about how your Lordships' House should maintain its vital role of scrutinising the nuts and bolts of social security rules.
Those questions deserve a full response from the Government. The Committee will have seen from the Marshalled List that the Government seek to respond to the Delegated Powers Scrutiny Committee's report by bringing forward extensive amendments to the Bill, in particular to Clause 6 but also to Clauses 7 and 8, and to other provisions in the Bill. But before I come to the specific terms of the amendments (because they are part of the argument I wish to put to the Committee regarding the specific proposal by the noble Lord, Lord Richard, this afternoon) I wish briefly to set out our approach to secondary legislation in this area. It is central to our debate today and so I hope that I shall be forgiven for spending a few minutes on the issue. I refer especially to Clause 6 which deals with the definitions of "availability" and "actively seeking work".
JSA must also be responsive to changes elsewhere in the benefit system. It must be compatible with income support and other income-related benefits. It must dovetail with the provisions for in-work benefits to maintain incentives for people to move into work. It must be able to respond to the decisions of the courts.
Equally important, JSA must be able to change in the light of experience. Throughout the passage of the Bill, both in this House and in another place, there have been requests for special exemptions for particular groups or circumstances. Such requests come almost daily to social security Ministers. Where there are genuine problems in the terms of the legislation or where there are new issues to address, any government would often wish to respond quickly and decisively. But if to do so a government always had to have recourse to primary legislation, I believe it would place an intolerable burden on Parliament.
However, it is not and never has been the Government's intention to bring forward regulations which departed significantly from established policies of availability and actively seeking. Our intention was merely to provide for a more direct route through regulations rather than through the indirect route of treating or deeming people available or not available which legislation has until now employed. However, I recognise that Clause 6(1) of the Bill, with its stipulation that availability and actively seeking shall,
may have created the impression that we might be seeking to depart from established definitions. In the light of concerns expressed about the Government's intentions, we are now bringing forward the amendments which will be dealt with later this afternoon. On the other hand, I do not accept all the criticisms that are being expressed that the Bill is unprecedented in neglecting to provide full definitions for the terms and full details of the manner in which the conditions should apply. In responding to those criticisms, I should like to dwell for a moment on the history of the provisions.
Members of the Committee will look in vain in the current primary legislation for detailed provisions on availability. Section 25A(1) (a) of the Social Security Contributions and Benefits Act 1992 provides that:
That is all it has to say specifically on availability. It simply carries forward the provisions from the Social Security Act introduced by the Labour Government in 1975 which consolidated earlier legislation. However, its origins lie very much earlier. Since 1911 it has been a condition that a person must be available for work in order to receive benefit. That condition has been repeated in all subsequent pieces of legislation, but it has never been defined on the face of the primary legislation. That has been achieved through interpretations of the case law of social security umpires and commissioners, and through regulation.
To case law we owe the interpretation that a person must be willing and able to be employed, and that he must be ready to be employed immediately. To regulation we owe the provisions whereby a person may, or may not, restrict his availability. Such regulations were first introduced in 1955, when it was found necessary to review the operation or availability in relation to people who placed unreasonable restrictions as compared with insured contributors generally. It is salutary to recognise that government and Parliament were even then considering the same questions of the balance between broad provision and regulation. Thus, for 40 years now the provisions of availability have been carefully circumscribed by regulation. I will go on later to explain how we intend in JSA to build upon, not replace, the established interpretation of availability.
The condition that a person must be actively seeking employment has a more recent provenance, although it has always been to some extent explicit in the availability condition that a person claiming benefit must seek work. This condition was introduced in 1989. The level of detail in the provisions on the face of the Bill simply follows the established precedent of the previous legislation. The benefits Act 1992, which consolidated the earlier legislation provides in Section 25A(1) (a) that,
The legislation then provides for regulations with respect to the steps which a person is required to take in any week and the meaning of a "week", but no more. As with availability, so with actively seeking, regulations carefully limit and define the condition through setting out the steps which a person is required to take.
It was recognised fully in 1989 just how important it was to provide for such detail in secondary legislation. In bringing forward the Jobseekers Bill the Government were looking to follow that precedent, since in approach and in policy we are making no fundamental change to the condition of actively seeking work which Parliament has already approved.
I have set out the precedents for the conditions in Clause 6 because I felt it was important to explain why the Government took the approach we did in providing a clear regulation making power when we presented this Bill. We wanted to build on the provisions. And where we were making new proposals for the details of the terms of
Nevertheless, in the light of the views expressed on Clause 6 as presented in the Bill the Government have come to the conclusion that the current drafting of Clause 6 should be changed. We have listened carefully to the concerns voiced by many Members of your Lordships' House, in particular the concerns of my noble friends Lord Campbell of Alloway, Lord Boyd-Carpenter and Lord Renton, and by noble Lords on all the Benches opposite, that we should include a definition of the conditions of availability and actively seeking on the face of the Bill. In bringing forward amendments in response to these concerns we have been mindful of the recommendation from the Scrutiny Committee that the House should consider whether the Bill should be amended,
This is, I believe, what the noble Lord, Lord Shepherd, was looking for when he called in the debate in Committee for the Government to put more on the face of the Bill that would form a synergy with the delegated powers committee. I believe that the government amendments achieve that.
I shall deal in response to a later amendment with some of the details that are in my new Clauses 6, 6A and 6B. But I wanted just to set out the background to these definitions and draw to the Committee's attention that the three amendments in my name to which we shall turn later go a long way to respond to the points made by the Delegated Powers Scrutiny Committee.
I now turn to the point that the committee makes when it states that in particular the House may wish to consider whether the affirmative procedure should not apply to any regulations changing the meaning of the terms "available for employment" and "actively seeking employment" whenever these regulations are made. The committee recommended to us that, irrespective of any changes to Clause 6 that we may makeas I say, we have made very considerable changesthe House should consider whether the proposals for parliamentary control of the delegated legislation for the conditions of availability and actively seeking were sufficient.
I accept that there is a real concern in both Houses that regulations that affect the meaning and treatment of the two terms, "availability" and "actively seeking", should receive the full and proper scrutiny of Parliament. I mentioned at the beginning of my remarks my background as a founder member of the Scrutiny Committee. As my noble friend the Lord Privy Seal made clear last week, it was the Government's view that we had to take the findings and recommendations of the Select Committee very seriously indeed. I propose to come to the House at Report stage having tabled an amendment that will mean in future that Clauses 6 and 6A, which we shall discuss, will be subject to the affirmative procedure. I will table that amendment as an amendment to Clause 34, which, as the draftsman would say, is the proper place to table that particular amendment.
I have taken up a certain amount of time because this matter is important. I shall explain in a little more detail later the meaning of our Clauses 6, 6A and 6B. So far as concerns this particular issue; namely, the point of the Delegated Powers Scrutiny Committee that we should use the affirmative procedure whenever any regulations (formerly to have been made under Clause 6) are made under new Clauses 6 and 6A, I hope the Committee will appreciate that we have indeed gone a very long way in meeting the concerns expressed not only by noble Lords but also by the Delegated Powers Scrutiny Committee. I hope that with that assurance, the noble Lord, Lord Richard, will feel able to withdraw his amendment.
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