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Lord Skelmersdale: I rather think that the time has come for me to eat some humble-pie before your Lordships because for four years now I have been promoting, both publicly and privately, the idea that is incorporated in the Bill; namely, that there are many affirmative instruments to which in the modern day and age only lip service is given in this House and in another place. In other words, as time has gone by it has been felt that they should not be affirmative at all. Noble Lords can imagine my excitement when the Government, in terms of the Department of Social Securitymy old departmentand in this Bill in particular, picked up this idea of mine that orders should in the first instance be affirmative and thereafter go through the negative resolution procedure.
That was my initial excitement. The more I looked at the Bill the more I decided that, although the idea still had merit, this was not the Bill to do it onand certainly not in the first instance. I am therefore very grateful for my noble friend's proposed amendment on Report to Clause 34 to make these orders continually by affirmative resolution. Having said that, I have a slight problem because in this House there is a convention, established now for some 30 years, that we do not vote on affirmative orders.
Lord Skelmersdale: Yes, but that does not destroy the point I am seeking to make. In fact, if anything, it rather adds to it. The point I wanted to make is that the serious and direct parliamentary control in your Lordships' House, although not in another place, is through negative resolutions. The House still has the power, if it has the will, to, as the noble Lord, Lord Shepherd, has just said, pray against a negative resolution order. That is all very well, but we have only 40 days' praying time. With so many orders going through the Joint Committee on Statutory Instruments and being presented to your Lordships in the Minutes of Proceedings it is very rare that one can actually put down a prayer in time when one wants to have a prayer. The noble Earl, Lord Russell, has managed to find a way around this conundrum, which I am not sure is any more satisfactory, by putting down a Motion to annul a particular negative instrument once it has been enacted by default, as such things inevitably are.
I conclude that it is rather more valuable in this House to have a negative resolution than an affirmative resolution. That said, there have been enormous pressures in recent years to have affirmative legislation. On this
Baroness Hollis of Heigham: It would be churlish of all of us not to be grateful to both the Delegated Powers Scrutiny Committee and to the Leader of the House and the Minister. The Government have listened to the voice of the House in an earlier debate and have come forward in a positive way. That was half of it. The other half of it is that what I fear the Minister may have offered us today is the shadow rather than the substance. He has agreed that he will come back at Report stage to move that amendments to Clauses 6 and 6A be by affirmative resolution but not, after April 1996, amendments to Clause 6B.
I wish to ask the Committee to help me in pressing the Minister as to why precisely he has drawn that distinction because they are two sides of the same thing. Clauses 6 and 6A set out what it means, to be confirmed and elaborated by regulation, to be available for work and to be actively seeking work. That is welcome. But Clause 6B goes on to say what counts as good cause and therefore a reason either for not doing X or doing X but continuing to receive benefit. In other words, what is the definition of when you have failed to do what is being asked?
The first partClauses 6 and 6Asets out what you must do to be available for work and actively seeking work. Clause 6B says that you must have good cause if you are to continue to receive benefit but not to fulfil that. Clauses 6 and 6A are by the affirmative procedure. But Clause 6Bwhich is the other half of it concerning what counts as good cause so that you continue to receive your benefit if you do not meet these conditionsis still left uncertain to the negative procedure. The claimant remains on the quicksand with which he entered the systemknowing what he must do but not knowing when he cannot do it whether what he believes is good cause is regarded as good cause. That will not have been discussed in your Lordships' House as part of the affirmative procedure. It may be if the Opposition are alert enough to pick it up under the negative procedure, but that, as we all know to our cost, is a somewhat random way of doing it.
Why is the Minister giving us the half of itwhat you must dobut not giving us the other half in Clause 6B as to what counts as good cause if, in the claimant's view, he cannot do it? We need the totality really to deliver what the Delegated Powers Scrutiny Committee and, I believe, your Lordships want tonight. If the Minister can do that we would all be well satisfied.
Lord Elton: The noble Baroness has nicely brought back the debate to the substance of this amendment and the effects on the people who are subject to the regulations which will be generated under it. In relation to the earlier discussion, I would just say that the clear difficulty we all labour under is having only three options. One is statute; the others are two forms of subordinate legislation, neither of which can be altered. They can be rejected or accepted, but they cannot be amended. That is the difficulty.
I do not think that this is the proper occasion to discuss whether that gap is too wideas I believe it isand whether there ought to be some further course which we could devise, though I do hope that the usual channels will note the general anxiety among your Lordships that this choice is difficult and does not always offer the right alternative. But the alternatives we have at the moment are just between these three courses.
I merely want to acknowledge the very major concessions my noble friend has announced to the concerns uttered at the earlier Committee stagenot merely by the recommittal but also by what he has put on the Marshalled List and what he has undertaken to put on the Marshalled List at Report stage. The alternative to doing what he advises is either merely a shift between one or other of the subordinate legislation procedures and having a whole mass of detailwe may call it detail. It may be very major for the individuals who are affected but for the actual volume of work to be done by Parliament, adjusting for this vast number of people, for these enormous differences in circumstances and for these constantly changing circumstances, to put all this into major statute is simply not in question. Therefore, I believe that my noble friend has made major concessions. Your Lordships should be satisfied by that and not accept the amendment.
Baroness Williams of Crosby: I shall be very brief. I also thank the Minister for having brought forward proposals which go some way to meet some of the issues which concern Members of the Committee. There are two other points which I should like to mention in the hope that the Minister might be able to look at them also. The first is that there is throughout the Bill a pervasive question raised to some extent by the noble Baroness, Lady Hollis, concerning what is a test of reasonableness. In many cases if one felt that the issue of reasonableness was brought into the Bill, one would feel more content about it. A great deal is left to regulation.
The second issue I wish to touch on is what one might describe as the rights or liberties of citizens which are not bitten on by the argument as regards flexibility. I understand the relevance of the argument on flexibility, but I cannot see how it applies to such things as the extent to which issues such as someone's race, religion, linguistic background or disability should be left to regulations to be safeguarded. I draw those two matters to the attention of the noble Lord, especially since he seems to be in such an extremely receptive state of mind this afternoon.
Lord Boyd-Carpenter: I express the gratitude which I am sure a great many of us feel to my noble friend the Minister for bringing forward this very substantial amendment to that part of the Bill to which, very properly in my view, great objection was taken at an earlier stage. Those of us with some experience of government know how difficult it is inside the machine of government to get major changes made in a Bill which is already at Committee stage. I believe that the Committee will feel that my noble friend the Minister has fulfilled a very important and effective task in
It will be very relevant to the Bill, as amended, to make clear the rather misty subject of the conventions regarding what your Lordships' House can do with either the affirmative or negative resolution. My own view isand I suspect that it is shared by my noble and learned friend Lord Simon of Glaisdalethat there is in fact nothing to prevent your Lordships' House insisting, by vote if necessary, on either defeating an affirmative resolution or moving against a negative one. I know of no rule unless the provision can be classified within the broad concept of a money Bill. I know of no other limitation. In view of the increasing importance and significance of delegated legislation, it is very important to get this matter abundantly clear. I hope that my noble friend the Minister will feel able to say something very specific on this point.
The only other matter which I should be grateful for my noble friend to enlarge on is that originally raised by the noble Lord opposite. That is whether in addition to new Clause 6A, new Clause 6B will be covered in some form or other by the amendments which he proposes to bring forward on Report.
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