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Mr. Deputy Speaker: Order. What the Minister has failed to do is not the matter before us. The hon. Gentleman is bringing to the debate matters that have nothing to do with the amendments.

Mr. Letwin: Clearly, I would not wish to challenge your ruling, Mr. Deputy Speaker, but I think it is material to the amendments before us to say that they fail to have the effects that they could and should have had if the Minister were the representative of a listening Government. However, I move on in order to avoid--

Mr. Deputy Speaker: Order. I like to be helpful to hon. Members. When making his case, the hon. Gentleman should make a connection with the Lords amendments. If he ties the amendments into his argument, it will be all right.

Mr. Letwin: I am very grateful to you, Mr. Deputy Speaker. As a relatively new Member, and as someone who is very new to a brief sojourn on the Front Bench, I shall pay great attention to your suggestions and requirements.

I deal now specifically with amendment No. 38. Clause 38(1)(b) states that a Minister may review a social fund determination


It was not quite with the "wild surmise" of Cortez that I came across amendment No. 38, but it was with a slight beating of the heart in anticipation of finding that, after long rehearsals in Committee, the Minister would indeed bring forward in amendment No. 38 an answer to precisely the terrible problems caused by that part of the clause. In Committee, I said:


    "What an extraordinary concept in such a context--the power is completely unconstrained."--[Official Report, Standing Committee B, 18 November 1997; c. 365.]

We went on to observe that we could very well have had before us a Bill that simply said that the Minister may do anything in such circumstances as he thinks fit, and that it would have been a very much shorter Bill than this

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extremely long one and could have saved us from much further consideration, but it would not have been in accordance with the way things are done under the British constitution.

I came to amendment No. 38 thinking that it would solve the problem because it adds to the clause a precise provision relating to the review. It allows a review to take place


The problem is that amendment No. 38 in no sense replaces clause 38(1)(b). Unless I am much mistaken, it adds still further licence--and that is an extraordinary thing to do.

Clause 38 provides an unconstrained power of review--without the constraint of circumstances or even an objective test of the constraint of circumstances. The Minister said in Committee:


In pursuit of that flexibility, the Minister drafted clause 38(1)(b), giving himself an absolutely open field. Then, presumably, one of his officials--I cannot imagine that he dreamt it up himself--suggested that there might be just a scintilla of doubt about whether at some time it might be necessary to do something that the wholly unconstrained power provided in clause 38 might not allow in an iron-cladded way without challenge from judicial review. I can only imagine that some brilliant, imaginative, ingenious lawyer in his Department suggested the possibility that some judge might be so steeped in the arcana imperii that he could find the basis for judicial review of a Minister's review of a determination in circumstances that he thought fit, but somehow avoided falling within the letter of the law. As a result, we have a majestic additional provision that the Secretary of State


    "may review such a determination on the ground that the person who applied for the payment to which the determination relates misrepresented, or failed to disclose, any material fact".

To any ordinary layman, amendment No. 38 is wholly unnecessary. It expands what is already astonishingly wide licence. However, when one considers it further, the position gets worse. We have failed utterly in our repeated efforts to understand what concrete circumstances the amendment addresses that are not addressed by clause 38(1). We continue to wrestle with the problem, but we are utterly defeated.

If a determination had been made and the applicant had misrepresented or failed to disclose a material fact, any rational Minister would think it fit to review the determination. I cannot imagine any circumstances on the face of the earth that would make it more plausible for a Minister to think it fit to review a determination than if someone had made an application and then failed to disclose or misrepresented a material fact. I bow to the Minister's immense imagination, of which I have had personal experience on numerous occasions in the House and outside, and ask him whether he has been able to dream up a circumstance in which he would not think it fit to review a determination if the applicant had failed to disclose or misrepresented a material fact. I do not anticipate his being able to provide such an explanation,

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because I do not believe that an ordinary human being can furnish one--not even someone as brilliantly imaginative as the Minister.

We have to ask why the amendment was introduced in another place. I was defeated by that, so I spent some time investigating the Official Report there. Earnestly, as a seeker after truth, I tried to find out from the Official Report in another place what was the logic that underlay this wholly mysterious clause. Perhaps there was a completely different logic, which revealed a vast new array of concerns that did not arise in Standing Committee. After all, the Minister had plenty of opportunities to introduce such an amendment in Committee. Surely something must have happened in the intervening period that revealed to the Minister the necessity for such a bizarre amendment. Astonishingly, the Official Report in another place does not reveal the slightest trace of an explanation for the amendment. It is most puzzling.

Unlike our previous debate about phoenix companies and their directors, where a gross abuse of constitutional and jurisprudential precedent has been perpetrated and the House will have cause to be ashamed of itself, amendment No. 38 does not matter in that human sense--at least, I hope not. It is simply a case of bad legislation that provides belt and braces and will probably undo itself in the process. Probably what will happen is that some lawyer, perhaps looking back at our debates, but perhaps not, will struggle desperately to find out how clause 38(1)(b) relates to what will become clause 38(1)(c) and make sense of it and, as a consequence, the full force of the clause will be modified in court.

6.15 pm

If the right hon. Member for Llanelli (Mr. Davies) were here, I am certain that he would be able to offer us guidance as he has done previously in Welsh debates. However, I cannot speculate about that. If we have what appears to be a very bad overlap--an unnecessary paragraph--the Minister should offer to remove subsection (1)(b)--that would be marvellous--or, which would be less good, not to insert amendment No. 38. The two together certainly make no sense whatever.

Finally, I refer briefly to amendment No. 41. The Minister has described it as a technical amendment; in a sense, it is. It tells us that, in making a determination, an inspector shall


I am not suggesting that all hell will break loose as a result of amendment No. 41--manifestly not. Probably the great majority of people will never hear of amendment No. 41. I suppose, alas, that most people will never hear of amendment No. 38 or clause 38 or indeed of me or my speech.

Mr. Burns: Nor will most people here.

Mr. Letwin: Indeed, as my hon. Friend points out, nor will many hon. Members. Yet amendment No. 41 enshrines rather a horrible principle that is all too familiar to those of us who sat through the interminable hours of debate in Committee. My hon. Friend described them as pleasurable, and they were from time to time, but only due to the charm of the Ministers and not to the charm of

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the legislation. We frequently found an extreme predisposition towards generality in respect of regulation-making powers and powers of review and determination. Here we find that generality in the very language of the Bill.

Amendment No. 41 refers to "general directions" and "general guidance". I do not know why the word "general" is included. I do not know what the Minister and his officials think would have been lost in the drafting of the amendment had it stated that "an appropriate officer or social fund inspector shall act in accordance with any directions issued by the Secretary of State and take account of any guidance issued by the Secretary of State." However, I know that words are not included in legislation introduced by any Government without a particular purpose. As the meaning does not require the term "general", it must have been included for a particular purpose. I take it that it is there to allow the Secretary of State to give guidance or direction on topics wholly unrelated to the determination of a review and to allow an appropriate officer or social fund inspector to have regard to a variety of issues that the applicant might have considered wholly irrelevant. If that is the purpose--the Minister is more than welcome to clarify the issue in an intervention or in his reply to the debate--it is quite sinister. I am sure that the Minister does not intend any ill to befall people.

Ministers will be aware, from many cases before the Benefits Agency, that citizens advice bureaux repeatedly find that, because of the bewildering array of other regulations, directions and guidance, innocent, ill- informed applicants experience treatment that they had not anticipated. If the inclusion of the word "general" is to permit exactly that kind of articulation, it is, to put it mildly, regrettable.

I have laboured--undoubtedly, looking at the faces of Labour Members--


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