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Lord Brightman: My Lords, in supporting the amendment I intend to take a practical approach to the problem. I imagine myself as a judge faced with a case involving Section 23(5) of the 1999 Act. I read Section 25 and I learn that the Secretary of State has power to make an order granting specified rights to specified individuals in certain circumstances. I am told by the Section that the order may be made,
- "in such a way as the Secretary of State thinks fit, whether by amending Acts or instruments or otherwise".
So the Secretary of State has three options: he may use an amending Act; he may use a statutory instrument; or he may make the order "otherwise"—that is, in some other unspecified way. I shall assume in my imaginary case that the Secretary of State decides not to make the order by primary or secondary legislation but by an advertisement in The Times. My job as the judge in the imaginary case before me will be to decide whether an advertisement in The Times is enough.
A decision on that point will immediately confront me with the task of deciding what "or otherwise" means. I cannot avoid that responsibility. I must decide what "or otherwise" means. As a judge, I must try to reach a sensible decision, a sensible conclusion. The only sensible conclusion that I can think of is that "or otherwise" means "or some other reasonable means". I decide the case before me on that basis, hoping that I shall not be rapped over the knuckles by an appellate court.
The question now arises whether your Lordships are satisfied with an enactment which is so drafted that it is left to the discretion of the Secretary of State to decide what is a reasonable vehicle to use in order to change the law. In my view, such an enactment imposes a quite unacceptable burden on the judiciary and a quite unacceptable inroad into the democratic procedures of this country and should be rejected by your Lordships.
How is the judiciary to decide what are reasonable methods of changing the law other than the standard methods which are known to all of us? How is an employer to know whether the Secretary of State has made a valid order under the words "or otherwise"? How is the individual, who has purportedly had rights conferred on him by the Secretary of State, to know whether it is, after all, just an illusion because the Secretary of State has decided to use a device under Section 23 which some court decides is unreasonable?
Is this a precedent which those of your Lordships who today sit on the Government Benches would like to see in the hands of the Opposition if they one day sit on those Benches and form another government? To put the matter shortly, the words "or otherwise" are two words too far.
Lord Sainsbury of Turville: My Lords, as the noble Baroness indicated, we have debated this amendment on earlier occasions. I plead guilty to the fact that I did not think that this was a major issue. I apologise if I took it in a frivolous way. I have now looked at the matter in depth because clearly it is a matter of great concern to the noble Baroness.
Let me try to explain the nature of the situation. Looking again at the points she has made, I hope that I have identified the reasons for her belief that the term gives new and objectionable powers to the Secretary of State to by-pass Parliament. I can see how subsection (5) of Section 23 of the Employment Rights Act could be read in a way to suggest that it confers novel powers.
However, it is still my view that it does no such thing. Section 23 of the Employment Relations Act 1999 empowers the Secretary of State to extend the
coverage of statutory employment protection rights by order, and not by any other means, to individuals not currently covered by them. Subsection (1) lists the legislation containing the rights in relation to which the power can be exercised. Subsection (5) permits the Secretary of State to make an affirmative order that extends any of the rights conferred by this legislation either by amending Acts and/or instruments or otherwise.It is stated in Section 23(2) and again at the beginning of subsection (5) itself, that if the Secretary of State wishes to exercise the powers in this section to extend employment rights she can only do so by making an order. Section 23(2) states that,
- "The Secretary of State may by order make provision which has the effect of conferring any such right on individuals who are of a specified description".
- "whether by amending Acts or instruments or otherwise"
The noble Baroness may say that it is ambiguous but, taken with the rest of Section 23, it clearly has the meaning which I have given it. Furthermore, any order under Section 23 must be affirmative. Section 42 of the 1999 Act states that,
- "no order or regulations shall be made under sections 3,17,19 or 23 unless a draft has been laid before, and approved by resolution of, both Houses of Parliament".
As I sought to explain in our earlier debates on this amendment, its meaning is simply that, when making an order under the section, the Secretary of State can include provisions in it that extend employment rights, but do not amend any Act or instrument in order to do so. That is all that is meant by using the words "freestanding" although I accept that my use of that expression seems to have been confusing rather than enlightening.
Perhaps I may also explain that this is not the only use of the words "or otherwise" in legislation. I give two other uses of those words in other legislation. The first is Section 116 of the Finance Act 1991. That relates to regulations which provide that a charge to stamp duty does not arise or is reduced in certain circumstances. Section 116 provides that,
- "regulations may make any provision in such way as the Treasury thinks fit (whether by amending enactments or otherwise)".
- "in such a way as the Secretary of State thinks fit, whether by amending enactments or otherwise".
Nevertheless, the noble and learned Lords, Lord Ackner and Lord Brightman, have made very strong statements that they believe that this is not appropriate. Therefore, we have to take account of that very strong advice. We have to decide whether to do something which the noble and learned Lords, with all their experience, believe to be wrong in the circumstances and to balance that against the ability to have an instrument which stands on its own and, in those circumstances, gives slightly greater freedom to the Secretary of State.
In view of the very strong pleas by both noble and learned Lords that they do not believe the Government's measure is appropriate, on balance we are prepared to accept the amendment.
5 p.m.
Baroness Blatch: My Lords, before the noble Lord sits down, perhaps I may say that the Minister has been extremely ungracious. The noble and learned Lords, Lord Ackner and Lord Brightman, are highly respected Members of this House. But it is my noble friend Lady Miller who brought this matter before the House and the two noble and learned Lords. It is highly and extremely ungracious of the Minister not to accept the work of my noble friend, which deserves some credit at this stage of Bill.
Lord Sainsbury of Turville: My Lords, as the House will know, I have the very greatest respect for the noble Baroness, Lady Miller. She brought this point to the House and that was a very important thing. However, the point I was seeking to make, and which I stand by very clearly, is that we still believe that this is a perfectly proper situation, but given the very great experience of the two noble and learned Lords, we are prepared to accept the amendment. That is an appropriate way to make our decision although of course I accept that it was the noble Baroness who brought this matter to the House.
Baroness Miller of Hendon: My Lords, I thank the Minister for the gracious way in which he accepted my amendment. I also thank the noble and learned Lords, Lord Ackner and Lord Brightman, both of whom played such a large part in persuading the Minister to accept my amendment.
On Question, amendment agreed to.
Clause 48 [Work-focused interviews for partners]:
Baroness Turner of Camden moved Amendment No. 16:
- Page 56, line 19, at end insert—
The noble Baroness said: My Lords, the issue of work-focused interviews for the partners of claimants has been discussed both in Committee and at Report. I was not convinced by the arguments of the Front Bench on both occasions against the amendments that we put forward. We were advised by my noble friend Lady Hollis of Heigham, the Minister for Work and Pensions, who dealt with this issue for the Government at Report stage—I am glad to welcome her to the Front Bench again today—that the purpose of the provision in the Bill is entirely benign. The intention is to ensure that the partners of claimants are fully advised as to employment and training opportunities available. There will be no compulsion on them to accept the opportunities held out to them. The sanction of loss of benefit only applies to their failure to attend for interviews. She asked herself whether such interviews should be made compulsory. She answered that herself by saying that if they were voluntary people do not turn up. When people thought that interviews were compulsory and a condition of benefit, they then turned up.
I believe that there may be another reason why people do not turn up. They believe that going down "the Social", which is how some of them describe it, may involve them in accepting jobs that they do not want or feel are unsuitable for them. I made it clear on both occasions when I spoke on this clause that I do not like it at all. The noble Baroness did not persuade me that it was a good provision to appear in an Employment Bill. I share the view of the noble Lords who spoke and said that the clause is really more appropriate for a social security Bill because it is a social security matter rather than an employment one.
In response to my query as to why a claimant should lose benefit because her partner—the claimant is often likely to be a woman—will not go down to the office for interview, my noble friend said that the benefit being paid was a family benefit although the Bill does make specific reference to the benefit continuing to be payable to the claimant. But if it is a family benefit I do not believe that it makes much difference to my case. A family benefit, and a reduction to it, is normally likely to impact more on the woman in a couple than on the man. Why should she suffer simply because he will not attend for interview?
Not all couples live in harmony. Many women stay with unsatisfactory partners for numerous reasons, as we all know. Out of sheer wilfulness, he may refuse to go for an interview. My amendment seeks to deal with one of the reasons why a partner may not be willing to go for interview. In her response at Report stage, the noble Baroness said that the sanction of benefit
My noble friend says that the intention is entirely benign. I am sure that, so far as she is concerned, that is absolutely right, and certainly while she and her colleagues are in office I am sure that we can expect the legislation to be applied in a compassionate and benign way. But there is nothing on the face of the Bill to say so, and future governments may interpret legislation entirely differently. There is a case therefore for writing this important provision on to the face of the Bill. I hope that the Government will be prepared to look with more favour on the proposed wording. I beg to move.
"( ) The purpose of the interview shall be to advise the partner of available opportunities for employment or training (or both).
( ) Reduction of benefit under this section shall not be applied should the partner deem the employment or training on offer to be unsuitable in the light of his training, background and general circumstances."
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