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Page 14, line 43, leave out subsection (3).
Page 15, line 1, after ("section") insert ("and section (Termination in cases of failure to furnish information) below").

The noble Lord said: I beg leave to move these two amendments formally. I have already spoken to them.

On Question, amendments agreed to.

Clause 23, as amended, agreed to.

Lord Hardie moved Amendment No. 75:

After Clause 23, insert the following new clause--

Termination in cases of failure to furnish information

(". Regulations may provide that, except in prescribed cases or circumstances, a person--
(a) whose benefit has been suspended in accordance with regulations under section 22 above and who subsequently fails to comply with an information requirement; or
(b) whose benefit has been suspended in accordance with regulations under section 23 above for failing to comply with such a requirement,
shall cease to be entitled to the benefit from a date not earlier than the date on which payments were suspended.").

The noble Lord said: I beg to move Amendment No. 75. I have already spoken to this.

On Question, amendment agreed to.

On Question, Clause 24 agreed to.

On Question, Whether Clause 35 shall stand part of the Bill?

Lord Archer of Sandwell: I apologise for interrupting the smooth flow which we had achieved. I understand the problem which Clauses 25 and 26 are intended to address.

Noble Lords: Clause 35.

Lord Archer of Sandwell: I am sorry. I misheard.

Clause 35 agreed to.

Clause 59 agreed to.

Lord Hardie moved Amendment No. 76:

Transpose Clause 59 to after Clause 72.

The noble and learned Lord said: This is a wholly technical amendment to relocate Clause 59 into the part of the Bill dealing with benefits. I beg to move.

On Question, amendment agreed to.

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Clause 25 [Decisions involving issues that arise on appeal in other cases]:

On Question, Whether Clause 25 shall stand part of the Bill?

Lord Archer of Sandwell: All things come to those who wait. I apologise for having twice interrupted the smooth flow of our business. As I was saying, I appreciate the problem which Clauses 25 and 26 are intended to address. Although I appreciate that there cannot be a grouping in this case, it may be in the interests of expedition if I may be permitted to mention in speaking to Clause 25 some of the matters which it has in common with Clause 26.

Sometimes a question of principle arises for discussion on a specific case and upon that decision there may depend the decision in numerous other cases. They may be first instance decisions--the subject matter of Clause 25--or they may be decisions on appeal--the subject matter of Clause 26. In either situation it clearly would be inviting chaos and be extremely profligate of time and expense to say that all the depending cases should proceed to an individual decision and that each dissatisfied claimant should then pursue such further remedy as may be open; and if they are awarded a benefit which transpired not to be payable, that should be paid and, if necessary, subsequently recovered. Clearly, of course, it would be more sensible to await a decision on the question of principle which can then be applied to all the cases. I at least would not seek to dispute that.

However, that leads to some further questions. First, who is to decide whether the outcome of a specific case really does depend on the decision in the lead case? In other words, who is to decide whether it really is a lookalike case? The Bill's answer in both situation is: the Secretary of State. But in relation to the first instance decisions, falling within Clause 25, that confers on the Secretary of State a discretion whether to put the whole process on ice, with no powers for the claimant to proceed to appeal. In relation to appeal cases, within Clause 26, the proposal is even more startling. The Secretary of State is a party to the proceedings. Should we really leave a party to the proceedings to decide whether the proceedings should be stayed and whether they really do require to await a decision in the lead case.

That has been described by Deputy Commissioner Edward Jacobs as the constitutional difficulty. It raises the question: should the tribunal not have at least a discretion as to whether the proceedings should be stayed; and if it should, then no legislation is necessary. It is open now to a tribunal chairman to direct that a particular case shall not be listed until some other event; for example, until the law has been clarified.

The problem is dealt with in the presidents' circular 9. One of the prospects floated in circular 9 is the possibility of class actions. As I understand it, my noble and learned friend the Lord Chancellor is already considering whether class actions should be generally introduced into our system. It is not a simple question

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because one would have to ensure that all those involved had an opportunity to make representations as to whether they should be part of a class action; whether, for example, they do have a lookalike case. There are possible ways of organising this. NACAB or some other non-governmental organisation may attempt to take under its wing all the claimants concerned to see whether it is possible to organise between them how the matter should be conducted.

That brings us to the second question: is the applicant to have no opportunity of arguing whether his case really is a lookalike? He or his representative may wish to say, "But the issue in my case does not depend on a decision in the lead case. It is distinguishable for these reasons"; and someone should have an opportunity of hearing that submission and considering it.

In circular 9 it is assumed that the president would give a directive, because at the time that was drafted this proposal had not come forward. The Bill makes no corresponding provision for addressing arguments to the Secretary of State. What the Bill provides is that a decision on the question whether a claimant is entitled to some or all of the benefit claimed shall be suspended at the discretion of the Secretary of State. That would be tolerable if some of the issues addressed by the noble Earl, Lord Russell, on Monday were taken into consideration. It may be sensible not to pay the whole of the benefit until the issue is resolved. But, meanwhile, the claimant may be getting deeper into debt; losing his or her house; having no longer a meal in the larder or a pair of shoes which do not let in the rain.

My noble and learned friend was kind enough to write to me on this subject and I really am grateful to him for that. He pointed out that the Government have put down an amendment to ensure that arrears are paid back to the date of the claim. That clearly is a welcome concession. But for the claimant it is not really a solution to be assured that after you have starved your estate will be duly paid.

Administrators like to see administration conducted neatly and economically. The noble Earl, Lord Russell, made that point earlier today. They are none the worse for wanting to see things conducted tidily. However, some of us are also concerned that they should be conducted fairly. Those of us who have seen for themselves the daily lives of some of the underprivileged may be anxious to see that they are also conducted with a measure of compassion.

I agree that there are no easy, painless answers, but I hope that my noble and learned friend will, if he cannot satisfy us today, take back Clauses 25 and 26 and consider whether there may not be a fairer and more compassionate solution.

Earl Russell: I agree entirely with everything the noble and learned Lord, Lord Archer of Sandwell, has said. We have here a quite remarkable example of what appears to me to be unaccountable power. I take the point that the Secretary of State is taking a decision in which she may appear to be an interested party; and, of course, like any other human being, she is capable of error. I do not understand how such error can be

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controlled. I hope I may be forgiven for taking a leaf out of the noble and learned Lord's book and mentioning one or two points which may concern Clause 26 as well.

Normally one would rely on judicial review to control the mistaken exercise of this power. However, when I look at Clause 26, I find in subsection (7)(b)(i) that the powers which can be controlled include,

    "an application for, or for leave to apply for, judicial review of the decision under section 31 of the Supreme Court Act 1981".
I am not aware, though I am an amateur in these matters, of any case where Parliament has previously taken power to forbid the use of the power of judicial review.

Indeed, having followed some of the arguments of the noble and learned Lord, Lord Woolf, and others, I am extremely interested in the relationship between the powers of Parliament and the strength of the principles of natural justice. I believe that here Parliament is attempting to venture into constitutional territory where, so far as I am aware, it has never ventured before. It is attempting to use the power of statute to override the principles of natural justice. Whether Parliament can do that, so far as I am aware has never yet been determined. There are some types of legal case which it is much better and in all our interests not to have determined at all because victory either for one side or the other creates a tilt in the balance of power within our constitution which can be very disturbing.

As someone concerned with the principles of judicial independence, I am considerably concerned about the powers in Clause 26(2) where the,

    "Secretary of State ... may serve notice requiring the tribunal or Commissioner"
to do something. That the Executive can require the courts to do this, that or the other is not my understanding of how things have usually worked here. In fact, it is a possibility, the extension of which has quite alarming implications. Meanwhile, as the noble and learned Lord said, the claimant is left without benefit.

I am reminded, sorrowfully, of the story of the Englishman, Irishman and the Scotsman. The Englishman's hat blew off and fell down a well. They could not reach it, but they decided that if the Irishman held on to the top of the well and the Scotsman held onto the Irishman and the Englishmen held onto the Scotsman, he could just reach the hat. Just as the Englishman was reaching down to pick up the hat, the Irishman at the top said, "Hold on hard while I spit on me hands". The claimant, like the Irishman, may hold on, but it will not do him much good.

7.30 p.m.

Lord Higgins: I do not wish to detain the Committee for very long. I have much sympathy with the view which the noble and learned Lord, Lord Archer, has expressed with his vast experience in these matters. There would seem to be a very serious problem here inasmuch as the Secretary of State would seem to be an interested party. While, as the noble Earl, Lord Russell said, anyone can make errors, it is obviously rather more suspicious if one is made by an interested party.

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Between now and Report stage we need to give further thought to the extent to which these matters can be resolved. I particularly take the point about people awaiting benefit, but who do not get it while this no doubt sometimes very lengthy legal process takes place.

The other point, which is a cause of particular concern, is to what extent the arrears are paid. On the assumption that meanwhile the person has not become totally destitute or homeless, one must at least hope that the arrears are back-dated to a reasonable date.

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