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Lord Hardie: My Lords, I thought I had dealt with that point earlier by indicating that there will be guidance set out indicating how one identifies a look-alike case. That guidance will be formulated in consultation with the president of the Independent Tribunal Service and with the Chief Social Security Commissioner.

Clearly the Secretary of State, if she is involved in an appeal, must obviously think that the issue is worth pursuing. If, in terms of the guidance, the case can be determined by the same legal point as in the lead case, then it is appropriate that the Secretary of State should determine that this is indeed a look-alike case.

If at the end of the day the Secretary of State, having called back the decision and having decided in accordance with the determination of the tribunal--this would arise only where the determination was against the claimant; clearly, if it was in his or her favour, the Secretary of State would find in favour of the claimant--that the decision of the look-alike case was against the claimant, then the Secretary of State would reach a similar decision. At that point the claimant would have the right of appeal to the tribunal against that decision. So we are not cutting out a right of appeal. The claimant can still appeal to the tribunal against the decision of the Secretary of State if the claimant considers that the Secretary of State is wrong in determining that this is a look-alike case.

Amendments Nos. 33 and 34 would prevent the Secretary of State from requiring a tribunal or commissioner to refer the case to her or to deal with it as though the lead case had been decided unfavourably to the claimant without the agreement of a panel member. That could result in inconsistent treatment of look-alike cases, as panel members may have different interpretations as to whether or not a case is a look-alike..

As I have indicated, we think there is a role for the judiciary in the identification of look-alike cases and in the preparation of guidance. That is where the consultation with the president of the Independent Tribunal Service and the chief commissioner would come into play.

There is a balance to be struck between judicial consideration of cases and administrative efficiency, and, where many cases turn on the same straightforward issue of law as a result of a decision in a lead case, it is our view that the arguments for continuing to allow judicial consideration of each individual case are not sufficiently strong. As it stands, the Bill will prevent cases where there is a substantive issue of law to consider from waiting in line to be decided by commissioners while a run of "look-alike" appeals are determined.

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It is our submission that these provisions are sensible, and in the light of my explanation I invite the noble Earl, Lord Russell, to withdraw his amendment, and, ultimately, the noble Baroness, Lady Anelay, to withdraw hers.

Earl Russell: My Lords, I thank the noble and learned Lord for his small crumb of comfort in relation to the guidance. But it was a very small crumb indeed. If the Secretary of State is not a competent authority to identify a look-alike case, then arguably the claimant is not either. After all, we have been talking all day about the difficulty of ordinary claimants in understanding precisely what are the legal issues behind their cases. That provision may lead to a good many representations. However, I am not at all sure that they will be directed to the cases where they are most needed.

I think that the noble and learned Lord has not entirely taken on board the case that I am making; namely, that the identification of a look-alike case is actually a judicial power. The Secretary of State is no doubt a person of very great ability and very wide knowledge. But she is not judicially qualified. She does not have the authority to take judicial decisions. I think the noble and learned Lord came very near to shooting himself in the foot at one point when he referred to courts in the past having refrained from listing cases of this type. If the courts take such a decision, they are at least a competent authority to take it. Whether it is a good thing from a social security point of view and from the point of view of the interest of the claimant is quite another question and one that is not before us at this moment. The courts at least have the authority and the knowledge and legal understanding to do it.

Part of the trouble with talking about a look-alike case is that whether matters look alike depends on exactly where you are looking from; it is not an absolute question, it is a relative one. So the Secretary of State will probably be considering only one legal principle, which happens to be the one that is the present object of departmental policy. That is fair enough. But cases may be look-alike or not look-alike from completely different perspectives, according to some completely alien legal issue which, although it has not occurred to the Secretary of State because it is not what she happens to be thinking about, would occur fairly quickly to somebody who is properly and professionally legally qualified.

Naturally, I do not intend to divide the House at this time of night. However, in begging leave to withdraw my amendment I am a long way from being satisfied that these issues have yet been properly addressed. I hope that thought about them may continue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 and 34 not moved.]

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Clause 27 [Restrictions on entitlement to benefit in certain cases of error]:

Earl Russell moved Amendment No. 35:

Leave out Clause 27.

The noble Earl said: My Lords, this amendment seeks to delete Clause 27. That deals with what has come to be known as the anti-test case rule. This deals with cases where there is a dispute about how far back an entitlement to benefit may go. Where there is a case that finds an entitlement in a particular place, the position under the anti-test case rule is that entitlement goes back only to the point of the judgment in the case. In fact, the judgment is being treated as if it were legislation.

In Clause 27 the anti-test case rule is extended from appeals and reviews to the High Court, to the House of Lords and even, to my great surprise, to the European Court of Justice. Here again I believe there is real room for doubt about Parliament's competence. According to my understanding, it is not within the power of Parliament to bind the powers of the European Court of Justice. Those powers are derived from the European treaties, which we in this House cannot unilaterally alter. At the very least, I hope to hear that the European Court of Justice will be taken out of this clause.

The anti-test case rule has been a matter of considerable litigation in the past and of some dispute in this Chamber. The question that arises is: what is the distinction between judgment and legislation and what is the nature of entitlement? The department's position, if I understand it correctly--and I should be grateful to be corrected if I do not--is that the entitlement is to be treated as if it were created by the judgment. But the judgment does not change the law; the judgment interprets the law as it already was from the making of the statute or the regulation which is before the court.

I believe that the entitlement to the benefit is much more like a peerage in abeyance than like something conferred for the first time by the judgment. It is the practice of this House that a peerage in abeyance is legally a peerage, whether the House's Committee for Privileges recognises it or not, until--in some cases maybe five centuries later--the House recognises that there is a valid line of succession and the person takes his or her seat. Since I accept the assumption of the noble and learned Lord, Lord Scarman, that all social security law rests on entitlement, with a few exceptions which have been made by recent legislation, I believe that that is the right way to treat the matter.

In the case of Bate v. Chief Adjudication Officer, which went to the Court of Appeal, Lord Justice Millett, commenting on the provision in the 1990 Act that the court should treat past judgments as if they had not been made, said that this provision attempted not so much to change the law as to rewrite history. He said in that case that the Secretary of State's interpretation of Parliament's intention was so unreasonable that Parliament could not possibly have intended it. The Appellate Committee of this House saw that case otherwise. There is here a real issue to be addressed.

When there is so much doubt about whether this is the right way to set about the matter, whether the function of a judgment is correctly interpreted and

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whether the nature of entitlement is correctly interpreted and a much more fundamental doubt about how far this Parliament can bind the European Court of Justice, I believe that there is something here that needs a good deal more thought and more round-table discussion, preferably in private, than we have yet had. I beg to move.

Lord Hardie: My Lords, we had a long and interesting debate on this clause during the Bill's Committee stage, at which time the Government brought forward a number of amendments to address concerns which had been expressed by noble Lords. Indeed the noble Earl, Lord Russell, and the noble Baroness, Lady Anelay, acknowledged the significant movement on the part of the Government in meeting their concerns.

I have listened carefully to the continuing concerns of the noble Earl, Lord Russell, about some of the provisions of the clause and will try to provide him with some reassurance. However, it is clear that there may be some fundamental disagreement about the Government's policy in this area and I therefore cannot promise to meet all his objections.

The noble Earl, Lord Russell, suggested a round-table discussion. I and my fellow Ministers are more than happy to discuss concerns with noble Lords at any time. If the noble Earl wishes to have a further discussion between now and Third Reading, about this or any other matter, I shall be pleased to accommodate him.

It might be helpful if I first explain the intention behind the clause. The clause deals with restrictions on entitlement to benefit where a decision by commissioners or a court overturns the view of the law that was previously applied by the Secretary of State. It replaces and clarifies existing provisions currently in Sections 68 and 69 of the Social Security Administration Act 1992. The clause applies where a commissioner or a court makes a decision in an individual case which reinterprets the law in a particular area. Where the Secretary of State makes a decision after the lead case has been decided following a claim for benefit or to revise or supersede a decision, the restrictions provided for in the clause will apply. Claimants to whom the restrictions apply will have the increase in entitlement as established in the lead case paid from a common date, set in regulations.

Occasionally, a long-standing interpretation of the law is overturned by the courts. The restrictions on arrears are intended to protect the public purse. Without a power to restrict arrears, the new interpretation of the law could mean that increased benefit would be payable to large numbers of people from the date of their original benefit decision. The Government do not believe that it is an effective use of limited resources to make large payments of arrears of benefit for past periods following a reinterpretation of the law. The Government want to target benefits better and not become involved in a system of poorly targeted and arbitrary payments. What is more, trawling through thousands of cases to find the ones affected would cost time and money--money which would be better spent on improving services for all claimants. We want to make sure that the department's expenditure is focused

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where need is greatest. This clause means that the department can exercise proper stewardship of the public purse by making sure that changes in interpretation of the law do not consequently result in a large amount of unforeseen pubic expenditure.

The noble Earl, Lord Russell, referred to the question of binding the European Court of Justice. The provisions of this clause, and those currently included in Section 68 of the Social Security Administration Act, do not seek to bind the European Court of Justice. The clause restricts arrears in certain cases where a new interpretation is placed on the law by a commissioner or a court. Subsection (6) makes it clear that decisions of the European Court of Justice are determinations of a "court". It is not a new provision. Restrictions on arrears in look-alike cases will apply equally following decisions made on a lead case by the European Court of Justice and decisions made by other courts. The provision does not propose to bind the European Court of Justice. The restrictions of the clause do not apply to the lead case which is decided by the European Court of Justice. In his judgment on the Bate case, the noble and learned Lord, Lord Slynn, was not persuaded that the result of the application of the anti-test case rule was incompatible with European Community Law.

An analogy was made with peerages in abeyance. I regret that I am unable to advise noble Lords of the precise reference, but it is my recollection that there was a report of the Committee for Privileges about peerages in abeyance. The noble Earl referred to a period of 500 years. My recollection is that the committee indicated that after a hundred years peerages in abeyance ought not to be resurrected. If I am wrong, I shall write to the noble Earl about that.

I believe that we are all agreed that this is a very complex area of social security law. I have tried to explain these provisions as clearly as I can. I have also pointed out the Government's wish to meet as many of your Lordships' concerns as we possibly can and I have indicated our willingness to have further discussions with any noble Lords who wish to have such discussions. I have also indicated that we have moved a considerable way forward on this matter. In the light of my explanation, I commend the clause to the House and hope that the noble Earl will feel able to withdraw his amendment.

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