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Lord Mackay of Ardbrecknish: I very carefully indeed said 6 and 6A, because Clauses 6 and 6A are the two clauses that have regard to the "actively seeking work" definition and the "availability for work" definition. Clause 6B deals with other matters, such as signing on, etc. They were not the matters referred to by the Delegated Powers Scrutiny Committee. The Scrutiny Committee concentrated on and drew our attention as a House to the terms "availability for employment" and "actively seeking employment". It is therefore in respect of Clauses 6 and 6A that I give the Committee an assurance that when on Report we come to Clause 34 I shall have tabled an amendment stating that the affirmative procedure will always be used.
Lord Richard: Perhaps I may press the Minister just a little further. He has been very kind and has given us assurances. He has bent a long way and we are all very grateful to him. Will he just have a little look at Clause 6B:
With great respect to the Minister, those provisions are too wide to be left to the negative procedure. If the Minister could go so far as to say that in relation to Clause 6B he would also be minded to consider activelyor, if I dare use the phrase in this connection, actively considerthat that clause, too, should be subject to the affirmative procedure, then I in turn will be prepared actively to consider that which the Minister has put to me.
Earl Russell: I am most grateful to the Minister for that reply, and most grateful also to the Delegated Powers Scrutiny Committee for a distinguished and extremely useful report. However, as the Minister has set out a general exposition of the government amendment and the thinking behind it, it might perhaps be in order for me to make some comment on that before we go further.
The amendment tabled by the noble Lord, Lord Richard, deals with parliamentary scrutiny. It enables us to look at the draft provisions and see what is happening. It does not deal with parliamentary control. It does not enable us to say, "No, we are not going to agree to this". Until we have sorted out the issues in regard to voting, that cannot be done merely by a change from negative to affirmative procedure.
I am most grateful to the Minister, to his department and to all concerned for the trouble they have taken in producing this new amendment. The amendment had to deal with three issues. The first test it had to face was a linguistic one; it had to improve the felicity and clarity of the Bill. Secondly, it had to face the test of drafting intention both in relation to the amount of regulation-making powers and putting into legislation matters which should have been for judicial consideration. Thirdly, as we get the receding of the waters with the removing of the muddy water of unclear draftsmanship, so the policy intention appears exposed for the first time. Inevitably, therefore, issues will arise as to those policy intentions.
In regard to the language and clarity of the Bill, the amendment is to a large degree successful. For once Humpty-Dumpty genuinely has had a great fall and all the King's Ministers will not put him together again. That I welcome. The new amendment makes the Government's intention a great deal clearer than it was before. It provides definitions of "available for employment" and "actively seeking employment". Of course, I do not find those definitions acceptable, but they are at least clearer and we shall therefore be able to have a lucid argument about them in due course.
In relation to the second test, that of drafting intention, I have given the Minister notice of a question as to whether there are actually fewer regulation-making powers in the amendment than there were in the original. I appreciate that it is a difficult question. The tendency has been to divide the Bill into more separate regulation-making powers for purposes of clarity. There is an appearance therefore of an increase in the number of regulation-making powers. I shall not hold the Government to that. But I will be surprised if the Minister can tell me that there was any decrease.
I am familiar with the defence of flexibility and I shall not waste time on it. I understand what the Minister wants. But I hope that he understands that there is also a possibility of conflict between that objective and that of parliamentary control. There is a balance to be struck. The Minister talks of not putting details in legislation. In principle that may be agreed ground, but the question is: what is a detail and what is not?
We are all familiar with the phrase, "The devil is in the detail". In social security legislation that is often the case. We have seen, even during the short time I have been here, a rapid escalation in the size of issue which is classified as detail. We are now seeing conditions of eligibility for benefit being classified as detail; we are seeing the disentitlement of whole groups of people being classified as detail. If the Minister thinks that that is detail, I can only say that not everybody in this Chamber agrees. The number of regulation-making powers still needs addressing.
I am concerned also about what I see as over-fussy draftsmanship; for example, attempting to set out in detail all the individual steps which shall be evidence that a person intends actively to seek employment, when one cannot do that. We must look at the person's conduct as a whole if we are to judge intention. That over-fussy draftsmanship was something that concerned us very much before. I cannot see that it has improved. I will give the Minister, therefore, for the amendment, one point out of three. I welcome that one very warmly. For the other two, we have yet some important points to comemore important than those hereand I leave those to later amendments.
Lord Shepherd: I am sure that all Members of your Lordships' House are grateful for the way in which the Minister responded to the amendment tabled by my noble friend Lord Richard. I cannot help but reflect that, close to Christmas, when my wife makes the Christmas cake, it is the icing at the end that really makes the cake so much more attractive. I suggest to the Minister that he has done well with the cake but he is missing the icing. He may not be able to go as far this afternoon as my noble friend wishes. My noble friend raised a matter of principle. If the Minister will give an undertaking that we can consult on these matters to see whether the whole of Clause 6 can be covered, that may be acceptable.
My noble friend's amendment goes only a short way in meeting the point raised by the noble Earl, Lord Russell, relating to parliamentary control. I recognise and support the idea of delegated legislation. But I have a funny feeling that over recent yearsmaybe stretching to 10, 15 or 20 years in order to get legislation through both Houses in ever-increasing amounts, there has been a tendency to say, "Let us avoid time in the House of Commons where it is most important and let us put this into regulation". I do not know whether, when he was considering the establishment of the scrutiny committee, the noble Lord was aware of the figures in terms of delegated legislation. Between 1988 and 1992 the amount of delegated legislation increased by over 50 per cent. That means that 50 per cent. more pieces of legislation are being passed in one form or another by this House and another place with only cursory interest.
We all know that when governments introduce Bills they table amendments of a drafting nature to turn what was originally drafted into something more closely resembling good law. But we are unable to do that in terms of regulations, and it is regulations that have a more direct impact upon ordinary people than primary legislation. I welcome therefore, as the noble Lord indicated in agreeing new Clause 6A, that those regulations should be taken by affirmative procedure. But even then, affirmative procedure is extraordinarily limited.
In relation to the negative procedure, because of the flexibility that exists in this Chamber those matters can be considered here by laying a prayer. If a prayer is laid, it must be taken. I look at my noble friend Lord Tonypandy. He is aware of the great difficulty in finding time in the House of Commons for prayers. There is therefore a vast area of legislation being passed with hardly any parliamentary control in relation to the House of Commons.
The time has come when we must recognise the enormous amount that is being done by delegated legislation. Both Houses of Parliament should look together to see which way the scrutiny of that legislation, with expeditionnot delay can be conducted. Then at least Parliament can be satisfied that it is not only primary legislation that is considered in detail but also delegated secondary legislation.
I conclude by thanking the Minister for the distance he has gone. Perhaps he can give us a little icing and make some overtures to my noble friend. If not, I shall follow my noble friend in whatever course of action he chooses to take.
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