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Lord Renton: I am pleasantly surprised and rather admire the constructive efforts which the Opposition have made in trying to avoid having secondary legislation on matters which could very well be covered by primary legislation. I go no further than that except to say that I hope that my noble friend Lord Inglewood will feel able to keep an open mind for the time being.

Lord Inglewood: Perhaps I may begin with the comments of my noble friend Lord Renton. As I said in the earlier debate about the wider issues, we shall consider all these matters very carefully.

I shall begin with Amendment No. 42. This amendment only serves to demonstrate how difficult it is adequately to provide for these complex terms in primary legislation and why it is necessary to do so in secondary legislation. The details of availability and actively seeking have always been set out in secondary

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legislation. It is by this route that we can most effectively encompass the different aspects of the modern labour market to which the benefit must be sensitive. It is through this route that consistency with other benefits both now and over time can most effectively be ensured; and it is through this route that small changes can best be made over time to reflect changes in the labour market or make changes in the light of experience of the effects of the labour market conditions of the benefit.

The definition gives no flexibility to define availability beyond what is reasonable in the case of each individual. For example, there is no link to hours, as in income support, or days, as in unemployment benefit. Thus it would be impossible to guide Jobcentre staff or adjudication officers in determining availability, which would lead to wide differences in the conditions applied to each individual with great scope for unfairness and inconsistency.

Let me emphasise once again that the Government are committed to meeting what I believe lies at the heart of what this and other amendments seek. The conditions of availability and actively seeking will be applied reasonably. The flexibility to agree the pattern of availability across the week will enable those who have difficulties working on any particular day—Sunday or otherwise—to take account of those problems while still meeting the normal terms of availability. In view of these commitments I would ask that the amendment be withdrawn.

While I can readily appreciate the reasoning behind Amendment No. 44, I cannot accept it. The noble Earl, Lord Russell, is, though, clearly and understandably anxious to assure himself that the new features in the active seeking provisions will be used responsibly. It is most certainly our intention that independent adjudication officers will, when determining whether a jobseeker has negated his chances of being offered a job, take into account all the circumstances of the case. The Committee can rest assured that we have no intention of penalising jobseekers who inadvertently negate their chances of being offered a job. I hope that the noble Earl will agree that that should cover the example of the car that broke down.

I do not, however, believe that the amendment would help to clarify this matter: indeed it would serve to confuse the issue. The Committee will, I am sure, appreciate that a term like "deliberate" is a very difficult term to use and interpret in legislation. Its presence in legislation might actually cloud issues, to the detriment of all, including the jobseeker. I therefore urge the Committee to reject the amendment.

Amendment No. 61 is unnecessary, and I am happy to make clear why. It is unnecessary because an adjudication officer will determine whether the steps a jobseeker takes to get back to work are sufficient to meet the actively seeking employment condition. And he will make that determination only on the basis of the provisions relating to actively seeking employment in

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Clause 6 and any regulations made under that clause. Consequently, any steps a jobseeker takes to get back to work which are relevant to his circumstances will be taken into consideration when assessing whether he has met the condition regardless of whether they are included in his jobseeker's agreement.

One of the principal purposes of the jobseeker's agreement is to enable a jobseeker to discuss and agree with an employment officer the most appropriate route to get back to work. It will provide an opportunity to focus on the types of activities that will prove most successful in their search for work. Completing a jobseeker's agreement will be a condition of receiving JSA. But the agreement is not a binding contract and it must not become a straitjacket. Many jobseekers will find that in any given week they take steps to find work that are not included in their jobseeker's agreement. And they may not in that week take every step that is in their agreement. It is only common sense for this to be reflected in the way the law operates, and that is what we have secured.

Of course, if more substantial matters arise, the jobseeker may decide, in consultation with the employment officer, that he would like to change the steps he has outlined in the agreement. In those circumstances, it will be possible to vary it. A jobseeker may, for example, after his permitted period ends, wish to expand the type of jobs that he wants to apply for. He may also need to vary his agreement if, for example, he had been looking for jobs as a lorry driver and had since lost his licence. It would be sensible in such circumstances for the jobseeker's agreement to be changed. Clause 8 provides the necessary power to do that. For those reasons the amendment is not necessary. Perhaps I may venture that it might be withdrawn.

Lord McCarthy: I thought that we were making much progress earlier but in the light of what the Minister has just said, I question whether we have. I thank the noble Lord, Lord Renton, for what he said. He is absolutely right. We are trying to keep down the secondary legislation element. We know that there has to be secondary legislation, and that answers many of the points the Minister has just made. But we like to have something on the face of the Bill which in some way can influence and determine what can be done by regulation. That is what is done over and over again in legislation and we do not see why it should not be done in relation to this Bill.

The Minister says that our amendment exemplifies how difficult it is to define "available" and "actively". Presumably that is why the Government have never tried to do so. But the Minister says that it will be done now in regulations. For the life of me, I do not understand what is the essential inherent superiority of the regulation method. They both use English. Why is it that it is so much easier to overcome this difficult perennial problem of defining "available" and "actively" by regulation? I do not understand. If we had to do the

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primary legislation in Latin or Urdu, I would see the point, but we use common English words, I hope, in primary and secondary legislation. So I do not understand why the Minister and the parliamentary draftsman find themselves to be so fluent when they put on their regulation hat and so stuck, and so unable to conjure words from the darkness, when they are writing primary legislation. Perhaps that can be explained to me.

Of course, we are saying that because it is difficult we should have a bit of both; we should have a bit of bold and a bit of italic; some primary legislation and some secondary legislation. Then perhaps we will get it right, however complicated it may be.

The Minister's other argument is that things change over time, and if things change over time and are complicated, then of course secondary legislation has certain advantages. I accept that. I accept that one of the main advantages of secondary legislation is that it is much easier to keep it up to date; to amplify it. But it is not a choice for us between primary and secondary legislation, it is a choice for the Minister. He likes only secondary legislation. He wants a few, spare, words which he read out to us, which could mean anything and which say that one can do anything. That is all he wants in primary legislation.

Finally, on Amendment No. 42 the Minister complains about the fact that we use the word "reasonable", as though it is part of the Government's case that they want to have permission to do something unreasonable. The only example he gave was that there was nothing in the amendment about reasonable hours. I accept that. It is a first attempt. If the Government were to come here this afternoon and say, "We do not mind your amendment, but you have done nothing about hours", the Government could take it away and put something else in its place, if they have a word that is better than "reasonable". I do not mind. I do not want the word "unreasonable", but I do not mind a different word so long as the Government accept the fact that there should be more on the face of the Bill.

I turn quickly to Amendment No. 61, because I know where I am. If one moves amendments in this place dealing with labour law one knows where one is when someone says that it is unnecessary. Of course the Minister says that it is unnecessary. The Government always say that. They would say that, would they not? It is necessary because if the provision we have put into the amendment—the noble Earl, Lord Russell, explained it extremely well and beyond the call of duty—could be done by an adjudicating officer I would rather people knew that it could be done by an adjudicating officer. I would not have guessed that it could be done by an adjudicating officer from reading the Bill because it is not in there. Even if it is in the regulations, I do not know how many people will read the regulations. I do not know how many people will read the Bill. But I know that those who assist and aid unemployed people will read the Bill, and, if they see something like that in the Bill, they will feel reassured. For those reasons we are minded to press Amendment No. 42 to a division.

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4.44 p.m.

On Question, Whether the said amendment (No. 42) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 151.

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