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Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, they are two examples of where we currently apply the same procedure. We need to transform those into JSA. I suggest to the noble Lord that to include the regulations which encompass those two groups on the face of the Bill would probably take up some clauses. That would also mean that we could not fine tune the regulations if that were necessary because the employment patterns of share fishermen changed, if we decided to make a change or if any other group came into being which needed the same kind of special treatment as the two groups that I mentioned.

Earl Russell: My Lords, before the Minister sits down, can he answer the question I asked him about what other governments might do under these powers? That question is central.

Lord Mackay of Ardbrecknish: My Lords, I am afraid, as I said to the noble Earl on one or two previous occasions when he asked that question, it is very

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difficult for me to look into a crystal ball and into the minds of future governments. I have explained the use we propose to make of this power. I suggest that in future if a government decided to use the power in a way which seemed not to be in the spirit or the meaning of the words in the Bill or the words I have used this evening, there would be recourse to the courts, for example, to make sure that the interpretation was correct and that that future government were acting legally and were not abusing their powers. However, I cannot envisage a situation in which a future government might decide to use these powers in a punitive manner, other than in respect of the two cases I mentioned, where I believe they are being used in a positive manner.

Baroness Seear: My Lords, will the noble Earl at least agree that any changes made in this House would be by the affirmative measure so that we should have a chance to see what was being done?

Lord Mackay of Ardbrecknish: My Lords, again with the leave of the House, perhaps I may say this. I believe that these powers would be by the negative procedure. I presume that that is the position at present. I shall have to check that. Without checking the detail, I believe that it is the negative procedure. I think that that is how it should be left.

Earl Russell: My Lords, with respect, I do not think the Minister understood the question that I asked. I was not asking him to look into the mind of a future government. I was asking a technical, legal question about the extent of the vires he is taking. With advice, I am sure that he must be able to answer that question. We need to know the answer in order to decide what to do with the amendment.

Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, I shall try to expand on the position. I am not a lawyer but I understand that these tests are very hard to judge in the way that the noble Earl asks. The courts and, in social security legislation, the commissioners can test a specific proposal against the vires test. Clearly, that is what would happen if in future a government seemed to be straying rather wide of what is viewed as the intention of the powers and someone wished to mount a challenge in that regard.

I am afraid that I cannot go any further to allay the noble Earl's suspicions about future governments.

Baroness Williams of Crosby: My Lords, let me respond to what the Minister said in response to my amendment. First, I am not sure that relying on precedent is always the wisest course if the precedent is bad—and there are some bad precedents in social security legislation.

Secondly, I share the concern of my noble friend about the vires. I do not believe that it would be impossible to draft the provision in a somewhat narrower way, as the noble Lord, Lord McCarthy, suggested, even if it did not deal with the specific examples the Minister gave. With a rather wintry smile, he tried to entice me into pressing the amendment in order to offend share fishermen up and down the country—and I am not as stupid as I look!

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However, before Third Reading, will the Minister consider whether this paragraph could be somewhat more narrowly drafted? I share the concern of noble Lords that it is so widely drafted that it could allow virtually any additional condition to be added to a jobseeker's allowance. From every point of view, that seems to me constitutionally undesirable. Therefore, I request the Minister to consider, not tonight at this late hour but before Third Reading, whether this paragraph could be more narrowly drafted. I urge him to look closely at the matter. I beg leave to withdraw the amendment, hoping that he will respond in that way.

Amendment, by leave, withdrawn.

Clause 25 [The back to work bonus]:

[Amendment No. 96H not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 97:

Page 21, line 30, after ("treating") insert ("the whole or").

The noble Lord said: My Lords, I was busy contemplating what the noble Baroness said to me about the two groups and share fishermen and thinking that it might be quite nice to be in a fishing boat this evening. I have been present when there have been a few fishing expeditions as the evening has progressed. I am slightly thrown by the fact that Amendment No. 96H was withdrawn. However, I am now where I should be in the Marshalled List and I can stop talking about my desires to be in a fishing boat this evening and talk about Amendment No. 97. I am a patient fisherman when I get the chance.

Amendment No. 97 is a technical amendment designed to ensure that the policy intention of this subsection can be carried out. It has always been our intention, where partners' earnings have contributed to the accrual of a back-to-work bonus amount, that the partner should benefit from any payments under the scheme. In the normal course of events, where a claimant receives a bonus payment any benefit from it will be shared by the partner.

However, there are, of course, cases where couples separate during a benefit claim. The intention of the subsection is to ensure that where a partner's earnings have contributed to a bonus amount, that proportion can be transferred to a subsequent JSA or income support claim by the partner, provided that he or she makes a claim within the appropriate linking period.

As currently drafted, the subsection states that

    "a prescribed part of an amount which has accrued towards a person's bonus"

can be treated as part of another person's bonus. Where it is solely partners' earnings which have caused the bonus amount to accrue, the present wording leaves some doubt as to whether the whole of the amount could be transferred to the partner's claim for JSA or income support. This amendment puts that right. I beg to move.

On Question, amendment agreed to.

Lord McCarthy moved Amendment No. 97A:

Page 21, line 39, at end insert:
("( ) The amount of the back-to-work bonus shall be reviewed annually in the light of the previous year's price inflation.").

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The noble Lord said: My Lords, Ministers have said all night that the central theme of the Jobseekers Bill is to get people back to work. I thought at one stage that they might set it to music, it goes rather well to "Jerusalem". We can sing it tonight because that is what the amendment is about. It deals with the back-to-work bonus and tries to make it more effective. So we can all sing "Jerusalem".

The back-to-work bonus has had a good press, rather too good. The trouble is that it does not go far enough. Funnily enough, it has been little debated in this House and it was little debated in the other place. It is a somewhat bizarre idea. It is supposed to deal with the problem of people who are unemployed and who do certain amounts of part-time work but cannot get back into full-time work, significantly because if they get back into full-time work they will lose money because of the earnings rule. However, it does nothing about the earnings rule itself; it maintains the restrictions exactly as they are. It says: "If you go back into full-time work, we will give you back half of what we take away while you are unemployed".

Many things are wrong with the back-to-work bonus as an incentive to "Jerusalem". The most important is that it depends upon discovery. First, you have to know that the individual is earning more than £5, in order that you can take the rest of the money away, or deduct it from the individual jobseeker's allowance, keep it in the piggy bank and give it back to him when he has a full-time job. But we know that in the majority of cases, because of the rules, we do not get discovery—most people in such situations do not declare the money. Of course they do not; we cannot blame them for it; the rule is ridiculous.

The efficacy of the provision depends on discovery or a sudden mass outbreak of honesty among all charladies in the country. That is not very likely. But the Bill does not deal with the heart of the problem, which is the earnings rule. The Government say: "Somehow, if we do this, we shall know how much they have; we shall stop it and only give half of it back".

However, that is only the first problem. The second is that the poor person in that position who has actually owned up and had the money taken away so that 50 per cent. of it is due to come back, will not know how much there is. Is a person supposed to keep bobbing into the Jobcentre every week, asking, "How much is in the piggy bank?". When there is enough, the person cuts it in half and goes back to full-time work. That is the miracle which will get people back into work. But it is a one-off payment; once a person has had it, that is it, he cannot get it again. He would have to remain out of employment for a long time to get the piggy bank up, and then he will get 50 per cent. of that if he is caught at it. So we say that the back-to-work bonus is a weak provision that should be improved. We suggest in this amendment that one of the ways it might be improved is for it to be reviewed annually in the light of the previous year's price inflation.

We know that the Government will say that that is no good because the back-to-work bonus is already indexed. In a sense it is, because it is 50 per cent. of what was declared. If that goes up, it is indexed. We are

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not talking about it being indexed in that way. It might be possible, for example, for the Government to say that the 50 per cent. could rise to 75 per cent. It might even rise to 100 per cent. It might even be linked to a rather more sensible earnings rule. In other words, in all kinds of ways this bonus could be improved, because it is in a pretty sick way at the moment. I beg to move.

11.15 p.m.

Earl Russell: My Lords, to try to add anything to that speech would be to gild the lily. I wish, however, to ask a few questions. First, is it possible that a situation could arise whereby a person was, let us say, £5 short of earning the bonus in the piggy bank and the need to earn enough to complete the bonus could act as a disincentive to going into employment. Secondly, is any uprating of the bonus that might occur to be done by the Department of Employment or by the Department of Social Security? If it comes into the social security uprating statement, then it will be by affirmative procedure and we shall know what is done. Thirdly, can the Department of Employment find better ways of publicising the decisions it takes about uprating? For many years I tried to find out whether it was uprating the youth training allowance and the bridging allowance. It was very difficult to find anyone who had the first idea. If I were to put down a Question for annual Written Answer about what is being uprated and what is not, would it be answered, and could we institutionalise it?

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