Proposed new section 2F of the Social Security Administration Act 1992 provides that by direction, the Secretary of State may specify what is and what is not to be regarded as work-related activity in any individual case. Can I say at the outset that we welcome a personalised approach, tailoring directions to the individual concerned? We hasten to add that we need to see what this will mean in practice. That is the important question, as far as we are concerned.
However, subsection (3) of the proposed new section, relating to directions about work-related activity, contains a retrospective power for a direction of this naturewhat is and what is not to be regarded as a work-related activity. It is a retrospective power to have effect from a time before the giving of the direction in the case where it varies or revokes a previous direction. I think I am on reasonably firm ground in saying that this is a retrospective power, because the notes on clauses admit that it may be so. Were a retrospective power to be granted, it would be important to pause for a moment.
That is not to say that we are opposing this tooth and nail, or are seeking a Division on it. We would be doing less than our duty of parliamentary scrutiny, though, if we were not to raise the question of a retrospective power, given the general approach toward those powers in the line long of authorities on them, and a possible European dimension on such powers as well.
We do feel that it is important, wherever a retrospective power is granted, to at least ask questions and seek to elicit more information. In this case, what we need to know from the Government is just how this retrospective power would be used. We note that it would be retrospective in an individual case. Under the terms of this power, it would be possible for an individual who had been carrying out what they believed to be work-related activity, to have a later direction made saying that it was not work-related activity after all.
As always in cases of retrospective legislation, there is an individual aspect to it: what individuals knew at the time, what they believed to be the case and subsequent variations, and the question of how fair that is to individuals. I do not want to make too much of that because it is a general point about retrospective legislation. I just feel that we need to give pause for a moment and ask the Government for more information about it.