Previous Section Back to Table of Contents Lords Hansard Home Page

Page 1, line 12, after ("for") insert ("and is seeking").

The noble Lord said: My Lords, in moving this amendment, which is directly related to Amendment No.4, I shall at the same time speak to Amendments Nos. 41, 42, 51, 59 and 65. Like many other amendments on the Marshalled List, these derive from the work of my noble friend Lady Turner. I echo all the remarks that have been made about the work that she has done. We are very sorry that she is not with us this afternoon.

The central aim of the amendments—it was an idea very close to my noble friend's heart—in effect is to take out of the Bill the word "actively" in the phrase "actively seeking work", and indeed take it out of employment practice. As she said, you cannot inactively seek work. If you seek work, you are seeking work actively. In principle, we do not need the word "actively".

Much more importantly, in the Employment Service, in practice since its entry the actively seeking work test has become synonymous with the transformation of the service.

It is the most notorious change in the administration of the employment benefit service over the past 15 or 16 years—not merely the phrase, but the way it has been

20 Apr 1995 : Column 597

interpreted. Therefore the object of these amendments is to insert into line 12 of the Bill on page 1 the words "and is seeking". The Bill would therefore read as follows:

    "is available and is seeking employment;".

To reassure those who think this might mean that as a result of this amendment everybody would get employment benefit without any tests, I must remind your Lordships of what would remain in Clause 1 of this Bill. The object of Clause 1 is to reserve the Government's position so that anyone who is seeking the jobseeker's allowance can be denied that allowance on 10 related grounds. That is what this clause says. It is a bit like the National Lottery. You have to get through 10 of the right holes; you must have 10 of the right numbers to get any money. You have to be sufficiently available for work to satisfy the officers of the employment service, and you have to agree to sign the jobseeker's agreement. They have to agree to let you sign it, because if they disagree with the conditions that are in it they may not let you sign the agreement, in which case you are stopped. You have to be available for work and active for work. You have to have paid enough contributions or you will not get any money. You must not have too much capital or any income or else you will not get any money. You must not be engaged in remunerative work. You must not be incapable of any work. I admit, to be fair to the Government, that is very difficult to operate. It is very difficult to be incapable of any work these days: almost anybody who stands up or leans to is capable of work. But there it is: it is in the Bill. You cannot be receiving any education; you cannot have a pension; and you must not have left the country. You have actually to be here.

If you get through all these holes with all these qualifications, you can get a jobseeker's allowance. The point I want to make is that we are not seeking to knock down all these barriers. There are still seven barriers to getting money. You have still to get through seven of the gateways. We are just trying to affect the "actively seeking work" test. That is all this amendment means. It affects at the most two or three of the barriers.

What is the case against deleting, or redefining—because some of our subsequent amendments seek to define "actively" if we cannot get the Government to take it out—the "actively seeking work" test? It is partly an argument from history and partly an argument from contemporary practice. In October 1989 the Government decided to modify the availability for work test. It changed the adjudication officer's guide, which said that in future applicants for unemployment benefit were required to take active steps.

All the evidence is that from that moment the number of disallowances significantly rose. In 1992—and, in my opinion, more significantly still—the rules were changed. The employment officers no longer wrote warning letters if they felt that an applicant was getting close to being in breach of the "actively seeking work" test. Now there are no warning letters: we have a later amendment about this. An applicant will simply get taken off employment benefit.

20 Apr 1995 : Column 598

This is perhaps the most important thing of all: in 1994 the employment staff who administer this test, who you would have thought were supposed to be the most objective of people involved, were placed on performance-related pay. Many of you will know already how strongly the Government resent any indication that they might be placed on performance-related pay themselves, but it is perfectly appropriate for everybody else. It is perfectly appropriate for members of the employment staff, who now have a vested interest because they get bonus points for getting people disallowed in respect of benefit. If performance-related pay goes far and fast enough, Her Majesty's judges will get performance-related pay for convictions and for sentences. We have not got that far yet.

However, this was a quasi-judicial function, I would submit; and I would also submit that the effective operation of the service depended upon applicants believing that they were getting some kind of judicial assessment by an independent person who, if he was not on their side, at least was not against them. Nevertheless, we now know that within the year there were three times as many disqualifications as there were before, and the number of references to adjudication officers rose. That is the history of what has happened through the manipulation of the activity test in the administration of the employment service.

Those of you who have been interested in this Bill will know that we have been inundated with evidence and testimony from all kinds of interested parties, and in particular from the citizen's advice bureaux giving concrete examples of people who have come to them saying—and this is under the present system—they must attend three times a week; they must get a list of jobs; they must produce a diary which shows that they have been to see a series of employers, who have signed in the diary to say that these people have turned up. You will know of the complaints from employers who say that they have received all kinds of useless applications. You will know the demotivating consequences that have come to the notice of officers in the citizens' advice bureaux of people going after ludicrous jobs for which they have no qualifications. You will know of the rising tide of despair and of poverty for people who suddenly find that the Giro has not come this week and that they have been declared not eligible for unemployment benefit.

We do not say that by passing this amendment this will be cured. There are lots of other amendments referring to other parts of this Bill that would do that; but we say that this use of the "actively seeking work" test is the most simple, straightforward and significant sign of what is wrong with the employment service. We ask your Lordships to take it from the Bill. I beg to move.

4.45 p.m.

Earl Russell: I am not in the habit of quoting my own speeches, but in case the Minister should be tempted to say that I have changed my mind, I thought I might

20 Apr 1995 : Column 599

quote what I said on the 1st December 1992 when we were debating the latest "actively seeking work" regulations. What I said was this:

    "We on these Benches support the requirement that people should actively seek work. We do not regard it as acceptable that people should simply take benefit and do nothing. But that is not the only factor we regard as right. We also believe it is right that people should not die of starvation and that the use of starvation as an instrument of policy is unacceptable."—[Official Report, 1/12/92; col. 1311.]

You may remember in the Bill of Rights that the dispensing power was abolished as it has been exercised of late. We think that people should seek work, but we oppose the "actively seeking work" requirement as it has been exercised of late. We agree with what the noble Lord, Lord McCarthy, said about the withdrawal of the warning letter. We agree very strongly indeed about the withdrawal of hardship pay. That is in fact our biggest single grievance.

We also agree that it is not right that people should be sent chasing round to all sorts of jobs for which they are obviously unsuitable. In fact on 1st December 1992, the noble Baroness, Lady Hollis of Heigham, said she believed that this was leading some employers not to use the Jobcentres. That is extremely unfortunate for all of us. We on these Benches also agree with the Social Security Advisory Committee, which said:

    "We understand that it is not possible to draw up regulations in such a way as to identify precisely those people who clearly have no intention of actively seeking work and who seek to maintain an alternative lifestyle supported by state benefits."

Ever since 1986 that has been a legislative Holy Grail which the Government have been pursuing. I do not believe that they will ever find it by a legislative route. Legislation cannot foresee all cases; it cannot be defined precisely enough.

The "actively seeking work" regulations, as used at present, are creating a great deal of hardship to no practical effect, especially of late—I use those words literally—as they have been exercised since April 1994. In the period from April to December 1994, 14,472 people were disentitled to benefit compared with 4,247 in the equivalent period the year before. Does the Minister have any information of what happened to those people afterwards? That is not an idle question. One cannot judge the effectiveness of a policy without knowing what its effect actually is. That is something on which the Government must undertake research and that research should be debated by us all.

I want also to support Amendment No. 41. It takes a much more sensible approach to the problems of drafting which arise in this case. It proposes to insert,

    "in order to qualify for payment of a jobseeker's allowance under sections 2 and 3 of this Act, a claimant must be available for and seeking work".

It leaves out the rather frenetic quality of "actively" which is not always easy when there is no work to seek. But it lays down in general terms the principle that people should be available for work and that they should seek it. It leaves the interpretation of that to be settled by the courts in relation to the individual claimant on the circumstances of the individual case.

20 Apr 1995 : Column 600

I happened to be in the Chamber on 7th March last when the noble Viscount, Lord Goschen, was answering a Question on the use of mobile phones while driving. He was being pressed to make that a specific offence. The noble Viscount, in my opinion very wisely, was resisting the use of the specific offence on the ground that the law could not foresee all contingencies. For example, the late Mr. Robert Maxwell was once convicted of driving without due care and attention for using a battery razor while driving. The law cannot foresee all the various instruments that a person may use when driving. It must stick to the general principle and apply it in relation to the circumstances of the case. I was reminded of an academic colleague's explanation of why there were so many capital statutes during the 18th century. He said that the MP who demands the death penalty for stealing his turnips, never stops to think that the catastrophe which happened this year to his turnips may happen next year to his potatoes.

The problem with the Bill, and with a lot of the drafting which has been coming out of the Department of Social Security in recent years, is the attempt to specify everything in too great detail; the attempt to foresee all the contingencies. The noble Lord, Lord Renton, taught me, when replying to amendments that I moved, that the more detail one specifies in the Bill, the more often one needs to try and change it. That is why the Department of Social Security has moved into this rather frenetic pursuit of flexibility. It is an exercise in perpetual contortionism. It would have done much better to have studied the report of the Renton Committee on the drafting of legislation which I was studying at two o'clock in the morning and which I found to be extremely interesting. That committee—I quote it with trepidation in the presence of no less than two of its members—said in paragraph 10.11:

    "too much weight should not be given to possible uncertainty about the application of general principles to particular factual situations: even where legislation is framed so as to deal with specific instances, as it generally is in this country at present, some situations are almost sure to be overlooked, thus leaving an area of uncertainty",

and that has to go to the courts. The committee went on to say,

    "The adoption of the 'general principle' approach in the drafting of our statutes would lead to greater simplicity and clarity. We would, therefore, like to see it adopted wherever possible. We accept, however, that this approach to a large extent sacrifices immediate—though not eventual—certainty and places upon the courts a heavier responsibility in identifying the intention of the legislature when applying legislation to particular circumstances".

It would be interesting to study the drafting policies of the Department of Social Security in the light of its relations with the courts over the past 20 years. I was looking last night at a work by the noble and learned Lord, Lord Scarman, English Law: The New Dimension, published in 1974. The noble and learned Lord thought then that the courts were hesitant in venturing in detail into the area of social security. He even quoted Professor Richard Titmuss as saying that in social security the law had practically nothing to offer, which is a view that practically nobody would advance now. Since then we have had a much more activist approach by courts to social security. I refer to the judgment of the noble and learned Lord, Lord Woolf, in 1990 in the

20 Apr 1995 : Column 601

social fund case. And if I may be forgiven for mentioning a sub judice case only so far as to say that it is interesting, I can refer to the case of Bate v. Chief Adjudication Officer in the Court of Appeal on 30th November last. That represents a case where the department thought that the courts had not expressed their true intention. The Renton Committee had something interesting to say about that approach also. Quoting the comments of the judge it said,

    "These comments are the result of endeavours on the part of the legislature to ensure against the possibility that the legislation will be construed by someone, in some remote circumstances, so as to have a different effect from that envisaged by those preparing the Bill in question. As one Parliamentary draftsman has put it: 'The object is to secure that in the ultimate resort the judge is driven to adopt the meaning which the draftsman wants him to adopt. If in so doing he can use plain language, so much the better. But this is often easier said than done'".

The committee slightly understated its case; I do not think it can be done at all. It is because the Department of Social Security has been so determined to try to bind the judge to adopt the meaning of the draftsman that we have this frenetic pursuit of detail which has led to this enormous growth in the use of regulations and therefore to problems about how this House may give its consent. Some conversation between the Minister and the noble Lord, Lord Renton, may be extremely helpful in avoiding future problems. Meanwhile, I make these points because this amendment is drafted in the way social security legislation should be drafted, and I am pleased to support it.

Next Section Back to Table of Contents Lords Hansard Home Page