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Lord Peston moved Amendment No. 33:

Page 8, line 25, leave out ("an undue proportion of").

The noble Lord said: We now have a number of amendments which my noble friend Lady David and I have tabled on various matters relating to means-tested benefits. The first time this provision was raised by my noble friend Lady David, the noble Lord, Lord Boyd-Carpenter, and others intervened and the noble Lord, Lord Inglewood, said that he was still convinced that the Government were correct. He also said that he thought that the amendment was worth looking at in case the Government had missed anything.

I do not think that noble Lords would like me to repeat on amendment after amendment exactly the same arguments put so cogently by my noble friend and others. I wonder whether the noble Lord, Lord Inglewood, is willing to agree to this suggestion with, I emphasise, no commitment. I am not necessarily convinced that he will change his mind, but as we have made the point already I honestly do not believe that anything is achieved by going over the same ground time and again. Therefore, perhaps the noble Lord will undertake to consider the situation as a whole. Perhaps I may pause there to see whether the noble Lord will agree to that, but I then have an extra and different word or two to say about the amendment.

9 p.m.

Lord Inglewood: I am grateful to the noble Lord, Lord Peston, for his remarks. They appear to be entirely consistent with the approach that we discussed in respect of an earlier clause. I am very happy to proceed on the basis that we will reflect again on the points that have been

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made. Obviously, we cannot give any commitment but we will reflect upon them. On that basis, I am delighted to acquiesce in the suggestion.

Lord Peston: I thank the noble Lord. I deal now with the more substantive point: Amendment No. 33. The amendment is to leave out the words, "an undue proportion of". I am convinced that that is right. Essentially, the Government say that one should not distort the description or area so as to exclude, or include, people on the grounds that it contains those who are disabled or are of pensionable age. The matter of principle involved here is that one should not do it. The words "undue proportion" are neither here nor there. I do not say that it may not turn out that way, but that should not be the intention. I do not believe that the Government should insist on retaining an undue proportion of premises. I do not wish to use the wrong metaphor, but to sin a little is not, in my judgment, much better than to sin a lot. It is wrong to sin. I would have thought that all noble Lords would say that these companies should not be able to take into account the number of disabled or people of pensionable age. They just should not do it. I am puzzled as to why the Government believe it is all right for companies to misbehave a little but not if they misbehave a lot. I believe that the Government should say that that will not do.

Lord Skelmersdale: I believe that the noble Lord, Lord Peston, has misunderstood this part of the Bill. As I understand it, the director has a duty to make certain that a level playing field—to use a horrible expression—exists in these particular circumstances. I do not believe that the noble Lord should have a problem. It is not the companies who exert undue influence; it is the director who has to ensure that they do not.

Lord Peston: I am afraid that the noble Lord is wrong. This is concerned with the director considering the description of the area. I take that to mean the description of the area as formulated by the companies. If the director does so, I believe that it is even more wrong. It would be an outrage if the director bore in mind these matters in taking a decision. After all, the director is still a public servant. I freely admit that I may be wrong, but I understand that this is concerned with the director taking decisions about what companies propose to do.

Lord Skelmersdale: One makes an application for a licence and the director has the duty to decide whether or not to grant it. In formulating that decision he or she will take cognisance of these words in the Bill. However, to be safer, I give way to my noble friend.

Lord Cochrane of Cults: This matter presents a further problem. The words proposed in the amendment and in the Bill tend to provide a snapshot view of the area to which gas is to be supplied. We are not considering the supply of gas for just a day but for a number of years. Demographic shift may come into it. An area may go down hill or it may become gentrified (to use a ghastly word). In any event, its character may change. Does that

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then bring down the wrath of the director in order to reduce in one case or increase in another the proportion of customers who fall within that area?

Lord Inglewood: It is important to be clear that, in exercising her duties, the director is obliged to comply with the matters described in Clause 1 of the Bill: the general duties of the Secretary of State and director. Any decisions that the director may take in any particular circumstances have to be set against that backdrop. We are trying not to regulate the profile of licence areas down to the last consumer. Some variations nationally are to be expected. We reject the suggestion that all suppliers should be required to develop an identical portfolio of customers. It would be absurd to set supply companies quotas for certain numbers of different customers.

Reference has been made to the words "undue proportion", which appear in the amendment. It appears to me that the best way to see how the test works is to return to the underlying duties of the director. The words "undue proportion" may be described as the label that the director will use to identify whether or not there is any sin, to use the words of the noble Lord, Lord Peston. Clearly, there will be some people in these particular categories in every area. We are concerned with a situation where the matter gets out of kilter. To draw the description too tightly may make it very difficult for the director to grant licences, particularly if competitors threaten judicial review. We believe that "undue" gives a margin before she is required to reject an application. It is a form of words that is intended to be helpful to the director to enable the director in the circumstances of any particular case—every case will have different characteristics—to come to a proper conclusion on the facts.

Lord Peston: I always worry when I appear to be the only one who believes he is in step and that no one else understands the particular part of the Bill. My point is precisely what the noble Lord has said. Companies should not take account of the number of people who are disabled or of pensionable age in determining the area. Whether it is a lot or a few, they should not be allowed to take that into account. As I understand it, that is the nature of the Bill. Equally, the director should not be able to say to the companies that they do not have enough people in those areas. The companies may say that they have not framed it in that way but in a way that is convenient to them. It may also happen that those areas do not contain a lot of old people or the particular one does. My point is that that has nothing to do with it. That is the spirit of the Bill, and that is why "undue proportion" is wrong.

If "undue proportion" was right, they could say that they had looked at the number of old people and had decided that it was not an undue proportion; in other words, that they had borne it in mind and had decided to discriminate against old people, but they were not discriminating very much. I believe that that would be outrageous. However, that is the only way in which this particular part of the Bill can be read. In another context, I would say that both the companies and the director should be colour blind, to use that racist expression, or age blind and disabled blind. However, "undue proportion" would enable them to take it into account as long as it was

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not too much. I cannot believe that that is what the Government want or that they wish to go for that form of words. I beg to move.

Lord Inglewood: I am grateful to the noble Lord for explaining his concerns. I am sure that there is nothing between us in what we are trying to do. In these circumstances, we are endeavouring to ensure that in any particular instance a licence holder does not discriminate against those classes of people. We are talking about classes of people who will inevitably be dispersed and scattered throughout the community.

We do not want the applicant deliberately to frame his applications to, as it were, abandon them. Bearing in mind that wherever one looks in society some people fall into those categories, it is important to give some kind of indication and test to the director so that in looking at the matter against the backdrop of her general responsibilities she knows how to look at the way in which the applications may be drawn up to ensure that discrimination does not occur. We are concerned to avoid discrimination.

Lord Peston: I shall give up at this point. The noble Lord makes the correct point: we are concerned that there should be no discrimination. The Bill says, "Yes, there can be some as long as it is not unduly large", which is what "undue proportion" means. That is what I am trying to get over to the noble Lord. The Bill ought to say that there should be no discrimination. That is what he has just said. That is what my amendment does.

Perhaps we are becoming tired. That often happens at about this hour. If it would help the noble Lord, perhaps he would like to think about what I have said. I shall certainly reflect upon what he has said, and we will come back to it. I am genuinely puzzled, because since what he said is what I believe, what I do not seem to be able to persuade him of is that the Bill does not say what he says. Having said that, I think the best thing is to beg leave to withdraw the amendment now, and we shall come back to it.

Amendment, by leave, withdrawn.

[Amendments Nos. 34 and 35 not moved.]

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