Child Support, Pensions and Social Security Bill

HL Deb 22 May 2000 vol 613 cc488-553

The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Hollis of Heigham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.]

Clause 56 [Rights of appeal]:

[Amendment No. 169 had been withdrawn from the Marshalled List.]

Clause 56 agreed to.

Clause 57 [Time limit for appeals]:

On Question, Whether Clause 57 shall stand part of the Bill?

Lord Astor of Hever

I rise to give my objections to the Question that Clause 57 stand part of the Bill. We seek to ensure that the present time-limit in relation to an appeal will remain as 12 months. We believe that the current time-limit within which to lodge an appeal works satisfactorily. The United States has a 12-month time-limit for its appeals.

There is some concern that if the time-limit is reduced to six months, servicemen and women who suffer illness or incapacity may not have sufficient time to gather the information necessary for an appeal. Appeals are long and tortuous processes, and such men and women will have had to go through the problems of the initial claim. Accordingly, the 12- month period should remain.

Baroness Carnegy of Lour

I rise to support my noble friend Lord Astor of Hever. The Law Society of Scotland is concerned about this issue. Six months seems to be a short time. I hope that the Minister will give an adequate explanation of why she believes that the people in the circumstances that my noble friend has mentioned will find that six months is long enough.

Baroness Hollis of Heigham

First, I apologise to the House for the delay in business. The preceding business collapsed faster than I had expected. I apologise. Did the noble Lord wish to—

Lord Denham

My Lords, perhaps I have been in this House too long. In the old days, if the noble Lord who was to move the business did not turn up in time, we went on to the next business.

Baroness Hollis of Heigham

There were reasons for the delay which the Front Benches know about, but I apologise.

This clause provides new time-limits for war pensions appeals. Currently, there are two time-limits, a three-month time-limit and a 12-month time-limit, but some appeals are not subjected to any time-limit. Furthermore, those time-limits can be extended indefinitely if the appellant shows "reasonable excuse" for not bringing an appeal earlier. In practice, almost all late applications are heard and therefore there is no effective appeal time-limit.

It may help if I describe how the current provisions came about. Much of the war pensions appeals legislation dates from 1943. Naturally, the provisions were generous, acknowledging the very real difficulties that people faced at that time in both claiming a war pension and appealing against decisions. We can see that approach reflected in the test of whether a late appeal should be accepted. The appellant was only required to demonstrate that he, or she, had a "reasonable excuse" for delaying bringing the appeal. Legislators in 1943 did not attempt to provide for the many possible reasons people would have for not bringing an appeal within the specified time. But the legislators always envisaged that all appeals should be subject to a time-limit.

The effect of using that legislation, more than 50 years later, is that tribunals are asked to consider whether a decision, sometimes made decades before, was made correctly. It is a time-limit about appeals only, and not the initial decision. This is a time-consuming business as the tribunal attempts to ascertain the appellant's circumstances as they existed when the decision was made—possibly 10 years earlier, 20 years earlier or longer—and to apply the medical understanding and legislation that existed at that time. That does not help the tribunal to reach just decisions.

The provisions in this clause will require appellants to appeal closer to the time when the decision is made, when the facts of the matter are clear and not subject to assumptions about conditions that existed in distant memory. Hence interim decisions will retain the current three-month appeal time-limit but all other appeals will be subject to a six-month time-limit.

We have proposed a six-month appeal time-limit, which is a more generous time-limit than appeals to almost any other tribunal. This is because we recognise a debt of gratitude and because we need to strike the right balance, recognising that war pensioners' appeals have not previously been subjected to time-limits, unlike other appellants such as social security appellants.

I am aware that there has been some concern—as voiced this afternoon by the noble Lord, Lord Astor, and the noble Baroness, Lady Carnegy of Lour—that a period of six months does not provide vulnerable and perhaps grieving people with sufficient time in which to bring an appeal. I should perhaps add that, before the appeal time-limit starts, a person will have made a claim for a war disablement pension or a war widows pension, provided the necessary information, and received a notification of the outcome. The appeal time-limit will therefore start some months after the event that precipitated the claim.

I should perhaps add that introducing these provisions does not alter the position that war pension claims originally are not time limited. It is the appeals only that are to be time limited. Indeed, the War Pensions Agency continues to receive new claims from people who are now identifying conditions that they attribute to service undertaken 50 or more years ago. The appeal time-limit applies only from the time the claim is decided. I also know that people are concerned that there may be changes in medical opinion, and if your Lordships want, I can discuss that further.

This clause also contains a provision that would enable the appeal time-limits to be varied either up or down. We have no intention of doing that, but we want to see whether the changes that we propose in this clause make good sense. Certainly the advice that we have had from some ex-servicemen's organisations is that they feel comfortable with the proposals.

We intend to replace the "reasonable excuse" provision with regulations that where there are late appeals, they must be accepted within the 12 months following the statutory appeal time-limit. These regulations, which will be subject to the affirmative procedure, will enable war pensioners to know the circumstances in which a late appeal may be accepted by the presidents of the pensions appeal tribunals.

Decisions made before the new time-limit is commenced will have transitional protection. People who receive a decision before this provision is commenced will have at least one year from the notification of the decision in which to bring an appeal, excepting those interim decisions that are currently, and will remain, subject to a three-month appeal time-limit. The new appeal time-limits will apply to people for whom decisions are made on and after the commencement date. I should also add—I am sure that this will be of interest to your Lordships—that the War Pensions Agency intends to contact war pensioners, by post and through articles in magazines, to advise them of their new appeal rights and the changes in the appeal time-limits.

I hope that your Lordships will agree that there is no limit to the time within which the original claim may be brought. Clearly, some illnesses or disabilities may occur significantly later than the point at which the injury occurred. However, we believe that this is reasonable and, as far as I am aware, no deep concerns about the matter have been raised by the relevant organisations. It seems reasonable that the appeal should be within six months of that decision, otherwise a decision could come 20 years after the original circumstance and an appeal 20 years after that. Clearly, it would be unreasonable in those situations to expect a tribunal to be able to make a decision that was informed by the circumstances at the time. I believe that the proposal is reasonable. If, at any subsequent stage, we need to vary it in the light of the workings of the proposals, I shall be happy to come back to your Lordships. I hope that that explanation and putting the matter on the record will be helpful to the organisations concerned. I ask the noble Lord to agree that the clause be accepted by the House.

Lord Astor of Hever

I thank the noble Baroness for that full answer and I thank my noble friend Lady Carnegy for her support.

In respect of the Minister's answer, I am not convinced that the reasons that we have heard are good enough to reduce the appeal time-limit on the face of the Bill to six months. However, I shall read Hansard carefully and I shall discuss the matter with the Law Society of Scotland and the service organisations. In the mean time, I shall not press my opposition to the Question.

Clause 57 agreed to.

Clause 58 agreed to.

Clause 59 [Constitution and procedure of Pensions Appeal Tribunals]:

Lord Astor of Hever

moved Amendment No. 170: Page 62. line 42, leave out ("other persons") and insert ("persons with knowledge or experience of service in Her Majesty's naval, military or air forces"). The noble Lord said: In moving Amendment No. 170, I shall speak also to Amendments Nos. 171 and 172. The purpose of Amendment No. 170 is to retain an ex-service member as a member of the tribunals. That is essential to maintain the credibility of the PAT as seen by the appellant. It would not be right to have only civilians sitting in judgment. The purpose of Amendment No. 171 is to remove the option of not having a service representative on the tribunal. We want to ensure that both service and disability representatives are included. Amendment No. 172 would give credibility in the eyes of the claimant that members of the tribunal understand the nature of warfare and service life. Even many widows do not know exactly what their late husbands did.

These amendments have the support of the Royal British Legion, SSAFA and the RAF Association. I declare an interest as a former Army officer who received a lump sum compensation for noise-induced hearing loss and as president of the Earl Haig branch of the Royal British Legion. I beg to move.

Lord Renton

I support my noble friend, Lord Astor, in this group of amendments. In matters of this sort, as in all matters of justice, it is important not only that justice should be done, but that it should be seen to be done. It is more likely to be seen to be done in fixing service pensions, especially if they are pensions which result from injuries on active service, if those who have the responsibility of awarding and fixing the pensions have the sort of sympathy and understanding needed. Claimants are more likely to get that from people who have themselves served in the Armed Forces.

Baroness Hollis of Heigham

These amendments seek to maintain many of the current arrangements that apply to the composition of the pensions appeal tribunal. Amendment No. 170 would require the Lord Chancellor to appoint a service member to the tribunal. Amendment No. 171 would place a requirement on the Lord Chancellor to appoint lay members with specific experience to the tribunal, and Amendment No. 172 seeks to prescribe the military service the lay member should have.

The intention of this part of Clause 59 is to enable the Lord Chancellor to create a pool of people with the expertise required to hear all the appeals within the jurisdiction of the pensions appeal tribunal. Pulling together the expertise that is necessary to deal with individual appeals will be a matter for the presidents of the pensions appeal tribunals. As such, the clause provides that each of the tribunal's jurisdictions should have a pool of people with the skills, expertise and experience to decide the issues.

Subsection (3) of Clause 59 provides that the schedule to the Pensions Appeal Tribunals Act 1943 will include a new paragraph 2A. The first subparagraph—that is, paragraph 2A(1)—defines three categories of tribunal members; that is, those who are legally qualified, those who are medically qualified and those termed as "other persons". The following sub-paragraphs stipulate the qualifications required of the tribunal members, describing the legal, medical and other qualifications. As such, it is not appropriate to introduce a definition of "other persons" into that sub-paragraph, particularly in an amendment which does not recognise other expertise that could be helpful to the tribunals. Amendment No. 170 is therefore unnecessary and I hope the noble Lord will feel able to withdraw it.

Amendment No. 171 would amend paragraph 2A(4) which deals with the definition of "other persons". As written, the clause requires the Lord Chancellor, to have regard to the desirability", of appointing persons with knowledge or experience of service in Her Majesty's naval, military or air forces and matters relating to the disability of persons. Amendment No. 171 would make those appointments compulsory.

It is the intention of the Lord Chancellor always to include people with knowledge or experience of service life and of disablement in the pool of people to hear appeals. The legislation has been phrased in this way to provide for the smaller jurisdictions, such as Northern Ireland, where the number of appeals are low (around 100) and therefore the number of tribunal members is small. In those instances, the unexpected loss of a tribunal member could result in the jurisdiction being incomplete and therefore unable to operate. It is solely to provide for that eventuality that the clause has been phrased in this way.

But the concerns of the Committee have been heard and I assure Members that the Lord Chancellor will appoint people with service experience to the tribunal. If it helps, and in response to the speeches made by both the noble Lords, Lord Astor and Lord Renton, I am happy to come back on Report with an amendment placing a duty on the Lord Chancellor to appoint persons with knowledge or experience of Her Majesty's naval, military or air forces to the pool of tribunal members; in other words, putting a duty on the Lord Chancellor in the Bill, if that would meet the Committee's concern. I appreciate at the moment it is an understanding. If the Committee is willing, I am willing to respond with a government undertaking.

Amendment No. 172 also relates to the subparagraph which deals with the appointment of "other persons" and provides for people with "similar military experience" to be appointed. Unlike the previous amendment, the problem here is that we are dealing with a group of people who are diminishing in number. The phrase we use in the Bill, knowledge or experience of service", will enable the Lord Chancellor to appoint people with a wide range of service experience to the pool of tribunal members. It will be for the independent presidents of the tribunals to allocate people to the individual tribunals. Again, I am more than happy to write on the Committee's behalf to the presidents of the pensions appeal tribunals to ensure that they are aware of the concerns of the Chamber.

Our problem is that there is a shrinking number of people with an exact match of appropriate service. That is why we are seeking to establish a pool on which the Lord Chancellor may draw and from which the presidents of the tribunals may appoint to any specific tribunal. If it meets the Committee's concern, I shall bring an amendment forward on the face of the Bill for the Lord Chancellor to appoint such a pool, and I shall write to the presidents of the appeal tribunals drawing attention to the anxieties expressed today. With those undertakings, I hope that I have met the noble Lord's concerns and that he will be content to withdraw the amendment.

4.15 p.m.

Lord Astor of Hever

I thank the Minister for that helpful reply and my noble friend Lord Renton for his support. I was comforted by the Minister's reassurance that the Lord Chancellor normally appoints people to tribunals with knowledge and experience of service life. I am sure the Committee will be happy for the Minister to come back with an amendment on Report as she suggested. I shall consider her words in detail and discuss them with the service organisations with whom I have been in touch, for I know this is a matter of great concern to them. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 171 and 172 not moved.]

Clause 59 agreed to.

Clause 60 [Composition of central advisory committee]:

[Amendments Nos. 173 and 174 not moved.]

Clause 60 agreed to.

Baroness Strange

moved Amendment No. 175: After Clause 60. insert the following new clause—

("CHAPTER IV

WAR WIDOWS' PENSIONS

WAR WIDOWS' PENSIONS—ENTITLEMENT .—(1) The Secretary of State shall review the operation of this section when—

1. (a) a report on the armed forces pension scheme has been laid before Parliament by the Secretary of State for Defence; and
2. (b) the results of any public consultation upon a report as cited in paragraph (a) above have been published;

and a report of any review carried out under this section shall he laid before Parliament. (2) Subject to subsection (3), a widow in receipt of a widow's pension under any of the enactments mentioned in subsection (4) ("the DSS pension") and in receipt of a pension paid under the Armed Forces Pension Scheme shall on remarriage or when living together as husband and wife with a member of the opposite sex only retain the Forces Family Pension (attributable). (3) Subsection (2) does not apply to a widow in receipt of a basic pension under section 44 of the Social Security Contributions and Benefits Act 1992; and a widow in receipt of such a pension who has remarried or is living together as husband and wife with a member of the opposite sex may not retain the Forces Family Pension (attributable). (4) The enactments referred to in subsection (2) are—

1. (a) the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983, and any order reenacting the provisions of that order,
2. (b) the Personal Injuries (Civilians) Scheme 1983, and any subsequent scheme made under the Personal Injuries (Emergency Provisions) Act 1939,
3. (c) any scheme made under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, or the Polish Resettlement Act 1947 applying the provisions of any such order as is referred to in paragraph (a),
4. (d) the order made under section 1(5) of the Ulster Defence Regiment Act 1969 concerning pensions and other grants in respect of disablement or death due to service in the Ulster Defence Regiment.").

The noble Baroness said: This amendment puts me fair and square on the horns of a dilemma. I do not know what sort of animal a dilemma is, but I suspect it closely resembles a patchwork, painted, fibreglass cow. A friend of mine jumped on one in Florida last week to celebrate her eightieth birthday and cracked her ribs most painfully. Although not as spry as an 80 year-old, I feel that with this amendment I am being pressed very closely by the dilemma's horns.

On the one hand this amendment refers to the Armed Forces family attributable pension, which is created by prerogatory instrument and is totally in the domain of the Ministry of Defence. To move it at all in a Bill on social security is therefore irrelevant—and unfair to my noble friend the Minister, who already has a massive Bill on her plate. She has always been a warm and sympathetic friend to the war widows and I hope will continue to be so—as she is to me.

What makes it worse is something which I discovered only on Thursday: that my noble friend the Minister of State for Defence, Lady Symons of Vernham Dean, is unavoidably away in Washington today and so is unable to answer for her department. That is one horn of the dilemma. It is aggravated by the fact that, even now, the Ministry of Defence is conducting its pension review which should come out this summer. Whether summer starts on May Day or when the cuckoo singeth loud or whether we should "cast no cloots till May be oot" or whether summer is some late, movable feast which waits for the House to rise before deliberations are announced, as has happened before, I do not know. I am a natural optimist and I know that the Ministry of Defence will consider the case of these few ladies with care and with sympathy.

Some of these ladies, however—and this is the other horn of the dilemma—would like to remarry. I know of at least 10 who would. With the splendid advent of the Prime Minister's baby, we are all thinking about babies. Perhaps these ladies have children who would like to have a baby brother or sister themselves. This second pension has been contributed to by their husband. Both the Royal British Legion and SSAFA support us in our belief that this pension should be for life.

I know that this is not the time or the place to move the amendment, but these ladies are not proud, arrogant and pushing themselves forward. They are gentle, brave and restrained. I have a clear duty to them to move the amendment so that others can speak on their behalf. I beg to move.

Baroness Fookes

This amendment stands also in my name. I am very anxious indeed to see justice done to this small group of ladies about whom the noble Baroness, Lady Strange, speaks so eloquently, as she has done for many years. Like her, I appreciate that this is not strictly a matter for the noble Baroness; none the less it is an opportunity to state the case once again and also, through the medium of this Chamber, to urge upon the Ministry of Defence the absolute necessity of coming to a decision on their behalf quickly. I am increasingly concerned about the length of time reviews take. It seems to be becoming a substitute for action. I hope therefore that, at the very least, we can urge upon those who represent the Ministry of Defence the necessity for coming to a decision quickly and in favour of these war widows.

Perhaps I should explain that I have no financial interest but I am a vice-president of SSAFA, which has urgently called for action to be taken. I am also newly appointed as a vice-president of the War Widows Association, of which the noble Baroness, Lady Strange, is president. Slightly strange, you may think, since I am neither wife nor widow; but it is a very important post which I take seriously. I do urge upon the House the importance of looking with sympathy and concern upon the plight of these very few war widows who, in my view, have such a strong case.

Lord Astor of Hever

I strongly support this amendment, so eloquently and clearly moved by the noble Baroness, Lady Strange. The noble Baroness told the House last year that she would return to fight another day, and I am delighted that she has. Like the noble Baroness, Lady Strange, and my noble friend Lady Fookes, I have considerable sympathy for the position in which the Minister finds herself. I know that in opposition and in government she has campaigned long and hard for war widows.

It is a tragic fact that death can come to very young service personnel. These are not just faceless people. The soldier who drove me throughout my tour of duty in Northern Ireland, Trooper Durber, was subsequently killed there, aged only 26. He left a widow and two young children. Death can also come from the most unexpected quarter. In 1982 a bomb killed an officer, a warrant officer, two soldiers and seven horses in Hyde Park. I had served with the warrant officer, Corporal Major Bright. He left a widow and two children.

Over the last year this country has had troops—unarguably the best in the world—on active duty in high-risk locations such as Iraq, East Timor, Bosnia, Kosovo, and now Sierra Leone. The Government are responsible for their safety while they are there but also, in the event of any of them being Idled, for their widows.

The question therefore arises of how we as a country look after the widows in a compassionate and responsible way. The answer is quite well, so long as they remain single for the rest of their lives. As soon as they remarry or cohabit, they lose every penny of their pension. We make it financial suicide for them to rebuild their lives and provide stable family units. Their children will not have the chance to belong to a loving family unit again. This really cannot be right.

Every independent review has recommended a pension for life. Hopefully, the Armed Forces pension review will report soon. Were the noble Baroness, Lady Symons of Vernham Dean, here today, she might have been able to tell the House the date. Even Mr Jeffrey Rooker, the Minister in the other place, has now accepted that there would be minimal cost implications in accepting this amendment. I therefore hope that the noble Baroness will do so.

Lord Craig of Radley

After what has just been said by the noble Lord and by the two noble Baronesses, it does not rest with me to try to make the case further. However, I should like it on record that I have strongly supported this particular proposition for a long time. The situation has seemed to me quite inequitable and I very much hope that, even if it cannot be found a place in this Bill, action will be taken to put right a longstanding and iniquitous wrong.

Earl Russell

I express my regrets to the noble Baroness, Lady Strange, that neither my name nor that of my noble friend Lord Goodhart is on her amendment. Our problem was that we both wished to put our names on the amendment. It took us the immense length of time of 24 hours after Second Reading to resolve that. By the end of those 24 hours there were no spaces left on the amendment. I ask the noble Baroness to accept both our names as being there in spirit.

We on these Benches are firmly committed to this amendment and have been so committed for a long time. I say "for a long time". We have been debating the issue for a very long time. An overwhelming case has been made out for it many times over. We have been given assurances that it is under review many times over. It is proverbial that hope deferred maketh the heart grow sick. If the noble Baroness is feeling more than a little impatient for the conclusion of these reviews, I would not be surprised.

I take her points about the flexibility of summer and, in the light of the present state of our climate, one begins to wonder whether summer will in fact ever arrive. I hope that something will happen about this quickly, therefore.

The position taken hitherto by the Ministry of Defence is completely out of date with modern views about the status of women. As I understand the ministry's thinking, it is that if a woman is being kept by one man she need not be kept by another man. That is completely out of date. The pension should not be seen simply as the substitute for a man. It should be seen as a compensation for a loss, for suffering, and for a loss incurred in the Crown's service.

Whenever this matter is debated, we hear a great deal about the problem of ring-fencing. I do not believe that to be nearly as difficult as it is made out to be. If officials make out that it is too difficult to cope with, I cannot help thinking that they underrate their own ingenuity. The category of those who are in the Crown's service, in jobs that necessarily incur danger, is limited. However, service in the Armed Forces does incur some danger even in peacetime. Many things have to be done on manoeuvres where some risk is necessarily inherent; indeed, very sadly, some deaths may happen even in carefully and properly planned manoeuvres. So these are deaths in the service of the Crown. If the Crown wants to be loyally served, it must recognise that fact.

There are problems in the Armed Forces now, with recruitment and, even more so, with retention. The armed services have a considerable struggle in adapting to a world in which women have independent careers. They cannot follow their husbands around the globe because they have interests, bases and prospects of their own. That is just one sub-set of the need of the MoD to come to terms with such social change. If it does not do so, all our Armed Forces will be in danger. I conclude by quoting from a letter written by Lord Howard of Effingham to Lord Treasurer Burghley on the day that the Spanish Armada was sighted off the Lizard: God send Her Majesty not now to stay for charges".

4.30 p.m.

Lord Alli

I rise to express my support for this amendment. I should like to associate myself with all the previous speakers in this respect. I believe that a pension should be for life and that these widows are being treated badly. However, I should like to turn to the question of co-habiting partners and to those who lose a partner in service. In the debate last October, the noble Baroness raised the case of a pilot who lost his life in service. He left a fiancée who was expecting their first child but who was not entitled to a pension.

I believe that we should review the arrangements for co-habiting partners. Indeed, this seems to be an ideal opportunity to do so. There is much to be learnt from the private sector where the rules as regards cohabitation are much better than those which apply to the public sector; for example, some 75 per cent of pension schemes in the private sector recognise the rights of co-habiting couples. I urge my noble friend the Minister to look at this area in more detail to see what can be done for co-habiting partners.

Lord Mackay of Ardbrecknish

For the benefit of noble Lords who are fairly new to this place, I should explain that I have a special interest in these matters because I preceded the noble Baroness, Lady Hollis of Heigham, in her job at the Department of Social Security and was the Minister with responsibility for war pensions. I am pretty certain that I could give the Committee a preview of the Minister's speech, having made it myself on a number of occasions. I suspect that the noble Baroness will be as unhappy in delivering that speech as I was on the occasions that I had to deliver it. I was successful on all those occasions in persuading this Chamber not to take the matter to a vote, although, as noble Lords may recall, I was less successful on one or two war pensions issues and was defeated by the noble Baroness, Lady Strange, and her large army of supporters. I shall return to that point presently.

Before the commencement of this debate I checked my file and came across an important letter from the MoD. It was written by the Minister of State for the Armed Forces, a certain Dr John Reid and thus noble Lords will realise that the letter is not exactly of yesterday's vintage. In the letter, Dr Reid says that the, Government has commissioned a comprehensive review of the arrangements for the payment of compensation to Service personnel or their dependants, for injury, illness, or death as a result of their military service … Experience from the Gulf conflict and operations in Bosnia underlines the need for arrangements which properly reflect the special nature of the commitment which Service men and women make to the defence of our country". I should have been quite happy with that and, indeed, with the advice that the noble Baroness will undoubtedly give noble Lords—namely, to await the outcome of that review—but then I noticed that the letter was dated 8th December 1997. That review has been a long time in coming.

I must repeat the important point that I have made in this Chamber on a number of occasions. Thanks to pension splitting on divorce, which was taken through this place by the noble Baroness, Lady Hollis, and which followed a White Paper that I presented to the House before the 1997 election, we have the following anomalous position. Let us take, for example, two service families who live side by side. One of those couples may divorce and the wife will be able to claim a portion of the pension pot of her former husband. The husband in the other family may be killed, leaving his wife with a widow's pension which I, and war widows, accept is a generous one. So both women would, so to speak, be alone without husbands.

However, if both women decided to remarry, the divorced woman would keep her share of the pension pot and be able to translate it into a pension when she reached retirement, but the widow would lose hers. That cannot be fair. In my view, the way that we have treated war widows on remarriage has never been fair. It is particularly unfair when both the Government and the Opposition agree that we have made the situation regarding widows' pensions in the military even more ludicrous by way of the pension splitting on divorce.

On the last occasion that we debated this issue, much was made by the noble Baroness, Lady Symons of Vernham Dean, of the read-across factor. Indeed, so much was made of it that I actually wondered whether the scale of read-across was pretty well equal; in other words, that as many people in the other services of the Crown and of the community are likely to be killed in the line of duty as applies to military personnel. Therefore, I have tabled some Questions on this, relating to "service-attributable deaths" in each of the past five years. In November 1999, the noble Baroness, Lady Symons, replied, and informed me that the total number of "attributable deaths" in the Armed Forces was 138. The noble Lord, Lord Bassam of Brighton, replied regarding the fire service where, of course, dangers are encountered daily. The total number of deaths in that service during those years was 13. The noble Lord also informed me that the total number of deaths in the police service was 28, of whom, rather worryingly, 21 were killed in road accidents.

It appears from that information that the scale of attributable deaths in the military is quite markedly different from the scale applying to the other services, so I do not want to hear about the read-across. I have a second argument against the latter. I have in mind the fact that this Chamber defeated the then government on the question of restoration of the war widows' pension on second widowhood. As far as I know, no effort has been made to extend the read-across argument to the police, the fire service or anyone else regarding the concession that the Conservative government were forced to make in this respect. Therefore, I hope that the Minister does not have mention of the read-across in her speech and that any such mention has been removed.

Those are the main arguments that I wish to put before the Committee, but. I have just one further point to make. When we discussed this issue last year, I suggested to the noble Baroness, Lady Strange, that she should withdraw her amendment so as to allow the MoD to move quicker. However, we are a year on and nothing much has happened. Indeed, this matter has been debated since 1994. The arguments that I put before noble Lords during the years before the election were, "Just wait! The MoD is reviewing the situation. All will be well; it will come up with a conclusion". The only thing that will force the MoD to come forward with a conclusion is for noble Lords to defeat the Government and insist on this new clause being inserted into the Bill—

Lord Alli

I hope that I may ask a simple question: why did not the noble Lord do this when he was in office?

Lord Mackay of Ardbrecknish

I thought that I had explained that, but the noble Lord was not present when I did so. Like the noble Baroness, Lady Hollis, I was the Minister responsible for social security and I had to deal with the MoD on this issue. I have no doubt that the noble Baroness will have written a few letters to the MoD on this matter; T wrote a few myself. However, all the response I obtained was that there was a review. That is the short answer. Therefore I am aware of the prevarication that arises. I suspect that the noble Baroness, Lady Hollis, is as convinced as I was with regard to this issue. However, the only way that the noble Baroness will be given a sword in her hand is through this Chamber putting the amendment on the face of the Bill. Contrary to the advice I gave last year, I hope that the noble Baroness, Lady Strange, will press her amendment to a Division and that Members on all sides of the Committee will support it.

Lord Renton

It comes as no surprise that perhaps the noble Baroness, Lady Hollis, and, at one time, my noble friend Lord Mackay of Ardbrecknish, with their ministerial responsibilities had it in mind that they had to be fair to widows other than war widows. However, my noble friend Lord Mackay of Ardbrecknish and others who have spoken have already pointed out that war widows are in a more difficult and, indeed, often a more desperate position. I hope that I may emphasise the reasons for that. I do not think that it is unjustifiable to attempt to generalise. One reason is that war widows are nearly always younger than other widows. Another reason is that they and their late husbands have had less chance to build up some savings for their retirement. As has been mentioned, war widows are often left with young families and no husband to support them. They must do their best for their families. If we were to evade the proposals put forward by the noble Baroness, Lady Strange, we would place war widows at a disadvantage which they do not deserve. Therefore I, too, earnestly hope that the Government will be sympathetic towards her amendment.

Baroness Carnegy of Lour

I am sure we are all sorry that the noble Baroness, Lady Symons of Vernham Dean, who is the Minister responsible for defence, is not present. However, I remind the Committee that the Long Title of the Bill includes the following words: to amend the law relating to occupational and personal pensions and war pensions". This Bill is about war pensions. The noble Baroness, Lady Hollis of Heigham, who is the Minister responsible for social security, speaks for the whole Government when she replies to this Bill. Therefore we do not want to be told that because the Minister responsible for defence cannot be present this is an inappropriate matter to discuss. I hope that the Minister will not persuade the noble Baroness, Lady Strange, to withdraw her amendment. I believe that it is perfectly appropriate to move this important amendment at this stage. I shall support it if the noble Baroness presses it to a Division.

Lord Davies of Coity

I certainly applaud the confession of the noble Lord, Lord Mackay, when he expressed regret at sentiments that he had expressed on this issue in the past from the Front Bench of the previous government. Nevertheless I do not believe that the argument he proposes with regard to the Ministry of Defence and the Department of Social Security holds as much water as he thinks. At the end of the day Cabinet decisions and government decisions are taken. I suspect that the Government adopt exactly the same stance as did the government of which the noble Lord, Lord Mackay, was a member, and for exactly the same reasons. Therefore I expect Members of the Committee on the Benches opposite to act tonight as they did when they were in government and support the Government on this issue.

4.45 p.m.

Lord Elton

I did not intend to speak but I was astonished to hear what the noble Lord, Lord Davies of Coity, has just said. It is only noble Lords on the Front Bench who have any official capacity in this debate. The rest of us are free to do what we like. It is not the case that everyone who has held office must think that they have always been right and that if they were wrong they must still maintain that position. My noble friend has described a situation with which I am familiar. About a decade before the time of which my noble friend spoke I sat in that rather dreary office in Alexander Fleming House and faced the same problems. Interdepartmental squabbles are nothing whatever to do with this Chamber, or with the Front Bench opposite because the Front Bench opposite answers for the Government. As the noble Lord, Lord Davies of Coity, has rightly said, the issue we are discussing is one to be resolved in Cabinet. The function of Parliament is to control the executive, not to give it free rein. If it needs a steer, I should have thought that the Committee is in a good position to do so this afternoon.

Lord Stoddart of Swindon

Support for the amendment has been expressed on three sides of the Chamber, and, indeed, from this side. I lend my voice to that support. I should not want it to be thought that the Labour Benches were not sympathetic to the aims of the amendment. I know that many of my noble friends on these Benches are indeed sympathetic to those aims. I sincerely hope that we can achieve them. My noble friend was certainly in favour of this kind of amendment when we were in opposition. I feel sure that she has not changed her mind. Even if my noble friend cannot accept the amendment, will she give all sides of the Chamber, including these Benches, an assurance that before we conclude all stages of the Bill a provision can be inserted in the Bill, either by herself or by someone else, that will achieve the objective of the amendment of the noble Baroness, Lady Strange?

Baroness Hollis of Heigham

The proposed new clause raises an issue that was debated last year during the passage of the then Welfare Reform and Pensions Bill. As the Committee has noticed, it was not then—as it is now—a matter for the DSS, but for the MoD. At that time my noble friend Lady Symons explained that the Government have enormous sympathy for the widows who would achieve a lifetime award of a pension as proposed in the amendment. She sends her apologies to the Committee. As has been said, she is in Washington on government business and regrets—as I do, obviously—that the amendment is having to be discussed in her inevitable absence. This longstanding engagement is one that she cannot break. However, we are only at Committee stage, we still have the Report and Third Reading stages. As my noble friend will certainly be present at those later stages to discuss noble Lords' concerns and will perhaps be able to respond to them in greater detail than I can tonight—

Lord Astor of Hever

Does not the Minister accept that she is answering for the Government at this point?

Baroness Hollis of Heigham

Yes, but the Bill concerns DSS pensions and the pension we are now discussing is an MoD attributable war pension. Of course I speak on behalf of the Government. However, the whole push of the speech of the noble Lord, Lord Mackay, was that the department that has to be persuaded of the merits of the amendment is the MoD. I therefore expressed, perfectly properly, my regrets and those of my noble friend that she cannot be present this evening. I suggest that Members of the Committee may consider it prudent to put their arguments to my noble friend when she is present at Report or subsequent stages of the Bill. I note that two noble Lords wish to speak. I give way to either or both.

Lord Elton

I do not wish to be unpleasant or personal; I am speaking about offices, not people. The proceedings of the House were adjourned this afternoon because the Minister was not able to be in the Chamber when the Committee wished to proceed with business. For her to then argue that any decision on the business in hand should be deferred because another member of the Government—who shares that responsibility, but not the responsibility of the Dispatch Box—cannot be here to answer in person is beginning to make the House of Lords look as though it is dependent on the convenience of government Ministers in order to pursue its business. I am sure that is not the noble Baroness's intention. I repeat that there is nothing personal in this, but we have to defend the dignity of the House—and that is now in issue.

Lord Mackay of Ardbrecknish

I shall be a little gentler than my noble friend, who makes a valid point. If we are to be asked to wait until the noble Baroness, Lady Symons of Vernham Dean, can be here, either on Report or at Third Reading, can we have a guarantee that we shall hear, not that there is to be another review, but that she will come forward with an amendment that will do what the Committee wishes to be done?

Baroness Hollis of Heigham

Perhaps I may return to this point later. Let me carry on with what I was going to say and let us see whether it deals with the points raised.

As I said, my noble friend explained last summer that the MoD is currently undertaking a review of the Armed Forces pension scheme. I understand that an announcement is due to be made during the summer. The review will include consultation with all parties with an interest in the pension arrangements for the Armed Forces. I am sure that those who speak for the War Widows Association will put their case eloquently and forcefully, as has been demonstrated today.

The review of the Armed Forces pension scheme has to be wide ranging and comprehensive. There are many different pension schemes in the public and private sectors and we need to consider how the best elements of these schemes can be incorporated into providing a pension scheme that meets the needs of all servicemen and women. As the Committee will know, in many respects private sector schemes are nowadays very different from public sector schemes; they have different arrangements for widows who remarry and, to respond to the point made by my noble friend Lord Alli, they have different arrangements for trustees, for example, to allow named dependants—including same-sex partners—to inherit a widow's pension. So there are obviously those considerations. As I say, we need to see how the best of those schemes can be incorporated into building a pension scheme that meets the needs of all servicemen and women.

In his remarks, the noble Lord, Lord Mackay, made two points in particular. First, he said that this was unfair to the widows of servicemen when compared to the pension sharing of divorced wives. It is true that, under pension sharing, pension rights are to he treated as property and that a divorced wife will keep her pension share, regardless of whether she remarries later. But she will not necessarily be better off. The widow whose husband dies as a result of service receives an attributable pension, which is paid at a higher rate than the normal Armed Forces pension as it includes an element of compensation. So it is more generous than a divorced wife would get from a share of her husband's occupational scheme. Secondly, a widow receives a pension from the time of her husband's death, whereas a divorcee would have to wait. Thirdly, of course, even 'when a widow remarries the pension that she would get for her children—which is again relatively generous, and rightly so—continues.

Lord Mackay of Ardbrecknish

Before the noble Baroness leaves that point, I do not think that she has put up a good argument. While of course a divorcee will have to wait until she reaches retirement age to receive the pension, she will still receive the pension even if she remarries. The lady whose husband is killed in action loses her pension for ever the moment she remarries—unless, of course, she is widowed for a second time. But she will lose it for ever as far as her marriage to the serviceman is concerned. Even though I accept that her pension starts immediately and is, rightly, far better than that of a divorcee, that does not alter the fact that a divorcee keeps the pension on second marriage.

Baroness Hollis of Heigham

Yes, but the widow, of course—as your Lordships expressed against the advice of the noble Lord on an earlier occasion—is able to regain it following, possibly, the end of a second marriage. That was a decision of your Lordships.

The point I was making is that that is one of the reasons why the war widows' pension is more generous than the settlement of a divorced wife of a serviceman. It reflects the different circumstances in which she finds herself, including the fact that she loses her pension on remarriage. However, she keeps the pension for the children. I do not think we disagree on those facts.

The second point of the noble Lord, Lord Mackay—from his experience as a former Minister for war pensions—challenged the notion of the costs involved. We know, for example, that if we were to ring-fence a figure it would be based on something like 2,500 war widows below the age of 60. Based on their historical remarriage rates—I am sorry to use such a cold phrase—the additional costs would be about £3 million per year, but buying back the superannuation liability in retrospection would cost some £400 million a year. The read-across to the public service—including the fire service, the police and so on, as the noble Lord suggested—would cost about £150 million a year. Again, if it were to be made retrospective, the cost would grow. In other words, the cost for the narrow group ring-fenced in this amendment is relatively modest, but I do not think that it would be right or proper to confine any such amendment to that very narrow group. Despite what the noble Lord, Lord Mackay, said, the read-across costs are quite significant.

Lord Mackay of Ardbrecknish

I am grateful to the noble Baroness. There is a point relating to the read-across which she has not addressed. She has made no attempt to argue the read-across on the pension being restored on second widowhood, as far as I know. If it has been ascertained, I should be interested to hear it. That is a major point. I urge caution on the noble Baroness. I remember the figures I used for restoration on second marriage, all cleverly obtained by the Treasury. The noble Baroness herself, in her usual very able way, rubbished my figures to such an extent that I went back and had them checked in my presence. Frankly, the figures were out of all proportion to the £40 million that restoration actually costs. So I do not, frankly, believe the figure of £400 million.

Baroness Hollis of Heigham

It is £40 million. The noble Lord is quite right. None the less, the read-across to the rest of the public sector is calculated to be £150 million. I think it was the figure that the noble Lord gave to the House when he was on these Benches. He has said nothing today to suggest that those figures are not correct.

We believe that if we are making provision for one group of people, it is right that others should be considered; in other words, there is a wide Treasury interest as well as an MoD interest. The Armed Forces pension review is working with other pension providers to ensure that, where appropriate, the Government's approach to pension provision is fair and even-handed.

The Committee has put its points strongly. Those points have been heard by the Government in this Chamber and in another place. I am asking the Committee to wait for a few more weeks until the review has been completed and my noble friend the Minister who answers for Defence in your Lordships' House—who is, unfortunately, absent today—is in a position to respond in the kind of detail that the House and the War Widows Association have a right to expect. As I said, we are at Committee stage now; we have a Report stage and a Third Reading to go. I ask my noble friend Lady Strange—I call her my noble friend because we have together, on many occasions, tried to do our best for war widows and for the War Widows Association—to withdraw her amendment. I shall ensure that the MoD receives the concerns of the Committee and that my noble friend is fully briefed should we wish to return to this at Report stage.

I suggest that with a review to be published by the MoD only a matter of a few weeks away, which will then go out to consultation, it would not be appropriate for the Committee to pre-empt that review and that consultation exercise. As I say, that will come before your Lordships' House at the appropriate time. The Committee will be in a better position to make an informed decision as to how this matter should progress after my noble friend has returned and after the forthcoming review and the consultation that will follow it. In the light of that, I ask the noble Baroness to withdraw her amendment.

Lord Elton

Before the noble Baroness sits down, I shall do nothing to persuade the noble Baroness, Lady Strange, to stay her hand today. It would be easier for her to come to a conclusion if the Minister, who has held forth inducements to delay—including the expected return of her noble friend, a review, and a consultation on that review—could tell us what stage the Bill will have reached by the time the consultation is concluded so that we know what the Government are going to do. Will it be on Report or at Third Reading? If the Minister cannot answer "Yes" to either, I see no reason to wait at all.

5 p.m.

Baroness Hollis of Heigham

If a review is to be published in the next few weeks—in June is my understanding—and with the possibility that the Bill will have concluded its stages in your Lordships' House by the end of July, is the noble Lord really suggesting that the consultation exercise, which involves full consultation with all the servicemen's organisations, the War Widows Association and possibly other organisations as well, should be compressed into the space of two, three or four weeks in order to meet that request? That would make a mockery of the consultation. The organisations out there, for which noble Lords have spoken today, have a right to be heard.

Lord Elton

I have made no such suggestion. Unless something very unusual happens, we will not prorogue before November. We have the whole of the spill-over for Third Reading. This is a Bill brought from the Commons. It has no further stages there except consideration of our amendments to it. I am suggesting nothing extraordinary or hasty but simply that we should know that the House's decision will not be deferred beyond the point at which the noble Baroness's arguments cease to have force.

Baroness Hollis of Heigham

It will be in your Lordships' hands as to when the Bill leaves your Lordships' House. I am saying that the review is due to be published in the next few weeks. Those are the words I have been given and I have no reason to believe that there has been any slippage on that. As a result, it will then go out to consultation. I cannot tell the noble Lord how long is envisaged for that consultation exercise. It is usually a minimum of three months, particularly over a summer period possibly when members of organisations may well be away. But it would not be unreasonable for your Lordships to have that information in mind. Clearly, in the light of what the noble Lord has said, it would be up to the MoD to try to expedite the consultation exercise. However, given that this is such an important matter, with such read-across effects to other public sector bodies, it would not be reasonable to compress that consultation in order to meet the timetable here today.

Different stages of the Bill are due to be taken. If your Lordships are not happy with the review and the consultation exercise and the MoD and government response to it, there is ample opportunity for your Lordships to revisit the issue. But I would hope that when the review is published and goes out to consultation it will embody positions which your Lordships might feel address some of the concerns expressed today. As a result, your Lordships might wish, in an individual capacity or representing organisations, to put forward evidence to that effect. As a result, that would carry extra weight with the Government. That is the point I was making about timetables.

Lord Elton

The noble Baroness made the point that we would be able to return to the issue after those processes were completed. The point that I hope your Lordships have seized is that there will be no ability to return to it effectively if the Bill is already on the statute book. All I am asking the noble Baroness is whether the reasons she is offering us for delay are valid, because if the processes she has described are complete after the Bill is out of our hands, they are not relevant.

Baroness Hollis of Heigham

I am in a dilemma here, too. Your Lordships know perfectly well—certainly someone as experienced as the noble Lord, Lord Elton—that, if a review document is going out to consultation, there is usually agreement with the organisations concerned as to how long that consultation period will be, particularly when that consultation document is being issued over the summer. Given that, I really do not think that I can go beyond what I have already said to your Lordships.

I wish to make one final remark. At the end of the day, I am not arguing about the merits or otherwise of the proposal. That argument has been well addressed and aired in previous discussions in your Lordships' House. What I am saying is that, with a review document due to come forth fairly quickly and with the consultation process following, it is not in my view appropriate for your Lordships to seek to prejudge the issue. Your Lordships are entirely free to do so, but it would seem to be wise to respect the nature of a consultation exercise, which, as I have said, I would expect to take place over the summer.

Lord Carter

Perhaps I may help the Committee on this point. I clearly do not wish to discuss from the Dispatch Box the timing of Bills but the fact is that there is a legal requirement for certain Bills before the House—for example, the Terrorism Bill—to receive their Royal Assent by the Summer Recess. With regard to other Bills, like this one, it would be desirable but not legally essential for them to receive Royal Assent by that time. We have not yet thought of a date for Report. By the time that date becomes available and is clearer, we shall know much more about the timetable of the consultation. So your Lordships will not lose anything by accepting what my noble friend has proposed.

There will be a Report stage. When we reach the Report stage, noble Lords will know exactly the state of the consultation and the likely reporting date. If noble Lords then feel that that is too long, they can take the necessary action. If they are satisfied with that process, they might wish to deal with the matter in a different way on Report.

Lord Henley

As the Government Chief Whip has intervened, will he then go further and offer an assurance that, irrespective of the date of the Report stage, he will be able to delay the Third Reading until possibly November to allow us to see both the document and the results of the consultation promised by the noble Baroness, Lady Hollis?

Lord Carter

That was a good try! I see some noble Lords opposite whom we do not often see here, so I understand the Opposition Chief Whip's anxiety on this matter. Obviously, I cannot say that I can delay the Third Reading until November. I have said that we have to get the Committee stage, Report and Third Reading of certain Bills by the summer and that, by the time this Bill has a date for Report stage, noble Lords will be much better informed. We can inform noble Lords about the nature of the consultation and its timetable and they can then decide at the Report stage what to do with the proposal from the noble Baroness, Lady Strange.

Baroness Park of Monmouth

Perhaps I may suggest to the Minister that there is no reason why the Committee should not express its view—incidentally, I have spoken before on this subject: I am not new to it—and let that be taken into consideration when the consultation comes along. We are surely part of that consultation. The amendment is a means of expressing our view. Moreover, we have expressed it on several earlier occasions. I shall be very interested to know what new factor might emerge, other than money and the availability or lack of it, that could change that. As far as I understand it, the Government's difficulty is very much more with the extension of the decision to a number of other deserving parts of society than with the actual issue of the MoD. That is why I think it would be wrong to forgo our chance now of expressing our view on this very limited, precise matter. We have gone over it many times before. I cannot see why we should not express our view now and have it taken into consideration in the consultation.

Baroness Strange

I do not know what to say or what to do. So many noble Lords have spoken and I thank them all. I should like to thank my noble friend Lady Fookes, who is also the vice-president of the War Widows Association, my noble friend Lord Astor of Hever, who made a moving speech, my noble and gallant friend Lord Craig of Radley, my noble kinsman Lord Russell, my noble friend Lord Alli, my noble friend and former enemy Lord Mackay of Ardbrecknish, my noble friend Lord Renton, my noble friend Lady Carnegy, my noble friend Lord Elton, my noble friend Lady Park of Monmouth, my noble friend Lord Stoddart of Swindon and, particularly, my noble friend Lady Hollis, who has been really sweet and has listened to absolutely everything.

I am very sorry to have to do this to her—I really am. Perhaps even now, if it could see the amount of support that there is for it, the Ministry of Defence might consider moving this small item forward in a separate agenda. I do not know that I shall even allow my noble friend the Chief Whip to have another bite at the cherry. He will just have to gobble me up now. I shall cross my fingers, shut my eyes and fling myself onto the patchwork, fibreglass cow. I wish to test the opinion of the Committee.

5.10 p.m.

On Question, Whether the said amendment (No. 175) shall be agreed to?

Their Lordships divided: Contents, 143; Not-Contents, 117.

Division No. 1
CONTENTS
Addington, L.	Goodhart, L.
Alderdice, L.	Hanham,B
Anelay of St. Johns, B.	Harris of Greenwich, L.
Astor of Hever, L.	Hayhoe, L.
Attlee, E.	Henley, L.
Avebury, L.	Higgins,L.
Baker of Dorking, L.	Hogg,B.
Barker, B.	Holme of Cheltenham, L.
Beaumont of Whitley, L.	Hooper, B.
Biffen,L.	Hooson, L.
Blackwell, L.	Howe, E.
Blaker, L.	Hunt of Wirral,L.
Blatch, B.	Hylton, L.
Bledisloe, V.	Jenkin of Roding, L.
Bowness, L.	Jenkins of Hillhead, L.
Brabazon of Tara, L.	Jopling, L.
Bradshaw, L.	Kirkham, L.
Bridgeman, V.	Knight of Collingtree, B.
Brigstocke, B.	Lincoln, Bp.
Brougham and Vaux, L.	Luke, L.
Burnham, L.	Lyell, L.
Buscombe, B.	McColl of Dulwich, L.
Byford, B.	McConnell, L.
Campbell of Alloway, L.	Mackay of Ardbrecknish, L
Campbell of Croy, L.	Maddock, B.
Carlisle of Bucklow, L.	Mar and Kellie, E.
Carnegy of Lour, B.	Masham of Ilton, B.
Chadlington, L.	Mayhew of Twysden, L.
Clark of Kempston, L.	Miller of Hendon, B.
Clement-Jones, L.	Monson, L.
Colville of Culross, V.	Montrose, D.
Colwyn, L.	Moore of Lower Marsh, L.
Cope of Berkeley, L.	Mowbray and Stourton, L.
Courtown, E.	Murton of Lindisfarne, L.
Cowdrey of Tonbridge, L.	Naseby, L.
Cox, B.	Newby, L.
Craig of Radley, L.	Nickson, L.
Cranborne, V.	Northbrook, L.
Dahrendorf, L.	Northesk, E.
Dean of Harptree, L.	Norton of Louth, L.
Denham, L.	O'Cathain, B.
Dholakia, L.	Onslow, E.
Dixon-Smith, L.	Oppenheim-Barnes, B.
Eden of Winton, L.	Oxfuird, V.
Elles, B.	Palmer, L.
Elliott of Morpeth, L.	Park of Monmouth, B.
Elton, L.	Pearson of Rannoch, L.
Enroll, E.	Phillips of Sudbury, L.
Ezra, L.	Prior, L.
Fookes,B.[Teller]	Quinton, L.
Freeman, L.	Reay, L.
Gardner of Parkes, B.	Redesdale, L.
Geddes, L.	Rees, L.
Geraint, L.	Rennard, L
Gilmourof Craigmillar, L.	Renton, L.
Glentoran, L.	Rix, L.

Roberts of Conwy, L.	Strange, B. [Teller]
Roll of Ipsden, L.	Strathclyde, L.
Roper, L.	Swinfen, L.
Rotherwick, L.	Taverne, L.
Russell, E.	Tebbit,L.
Saltoun of Abemethy, Ly.	Tenby, V.
Sandberg, L.	Thomas of Walliswood, B.
Scott of Needham Market, B.	Thomson of Monifieth, L.
	Tordoff, L.
Seccombe, B.	Trefgame, L.
Sharpies, B.	Waddington, L.
Shaw of Northstead, L.	Waverley, V.
Shutt of Greetland, L	Wilberforce, L.
Smith of Clifton, L.	Williams of Crosby, B.
Stern, B.	Windlesham, L.
Stewartby, L.	Young, B.
NOT-CONTENTS
Ahmed, L.	Hogg of Cumbemauld, L.
Alii, L.	Hollis of Heigham, B.
Amos, B.	Howells of St Davids, B.
Archer of Sandwell, L.	Hoyle, L.
Ashton of Upholland, B.	Hughes of Woodside, L.
Bach,L.	Hunt of Chesterton, L.
Barnett, L.	Hunt of Kings Heath, L.
Bassam of Brighton, L.	Irvine of Lairg, L. (Lord Chancellor)
Berkeley, L.
Billingham, B.	Islwyn, L.
Blackstone, B.	Jay of Paddington, B. (Lord Privy Seal)
Blease, L.
Borrie, L.	Jeger, B.
Bragg, L.	Jenkins of Putney, L.
Brennan, L.	Kennedy of The Shaws, B.
Brett, L.	Layard, L.
Brooke of Alverthorpe, L.	Lea of Crondall, L.
Brookman, L.	Lipsey, L.
Brooks of Tremorfa, L.	Lofthouse of Pontefract, L.
Burlison, L.	Lovell-Davis, L.
Carter, L.[Teller]	Macdonald of Tradeston, L.
Christopher, L.	Mclntosh of Haringey, L. [Teller]
Clarke of Hampstead, L.
Cocks of Hartcliffe, L.	Mclntosh of Hudnall, B.
Crawley, B.	MacKenzieof Culkein, L.
David, B.	Mason of Barnsley, L.
Davies of Coity, L.	Massey of Darwen, B.
Dean of Thornton-le-Fylde, B.	Merlyn-Rees, L.
Desai, L.	Molloy, L.
Dormand of Easington, L.	Morris of Castle Morris, L.
Dubs, L.	Murray of Epping Forest, L.
Eatwell, L.	Nicol, B.
Elder, L.	Patel of Blackburn, L.
Evans of Parkside, L.	Paul, L.
Evans of Temple Guiting, L.	Pitkeathley, B.
Evans of Watford, L.	Plant of Highfield, L.
Falconer of Thoroton, L.	Ponsonby of Shulbrede, L.
Farrington of Ribbleton, B.	Prys-Davies, L.
Faulkner of Worcester, L.	Puttnam, L.
Filkin, L.	Ramsay of Cartvale, B.
Gale, B.	Rea, L.
Gavron, L.	RendellofBabergh, B.
Gibson of Market Rasen, B.	Sainsbury of Turville, L.
Gilbert, L.	Scotland of Asthal, B
Gladwin of Clee, L.	Serota, B.
Goldsmith, L.	Shore of Stepney, L.
Gordon of Strathblane, L.	Simon, V.
Goudie, B.	Smith of Gilmorehill, B.
Gould of Potternewton, B.	Stone of Blackheath, L.
Grabiner, L.	Strabolgi, L.
Grenfell, L.	Taylor of Blackburn, L.
Hardy of Wath, L.	Thornton, B.
Harris of Haringey, L.	Tomlinson, L.
Harrison, L.	Uddin, B.
Haskel, L.	Walker of Doncaster, L.
Hayman, B.	Warwick of Undercliffe, B.
Hilton of Eggardon, B.	Wedderburn of Charlton, L.

Whitaker, B.	Williams of Mostyn, L.
Wilkins, B.	Woolmer of Leeds, L.
Williams of Elvel. L.	Young of Old Scone, B

Resolved in the affirmative, and amendment agreed to accordingly.

5.20 p.m.

Clause 61 [Loss of benefit for breach of community order]:

[Amendment No. 176 had been withdrawn from the Marshalled List.]

On Question, Whether Clause 61 shall stand part of the Bill?

Lord Windlesham

In speaking to the question of whether Clause 61 should stand part of the Bill, I will speak also to the subsequent Motions on whether Clauses 62, 63, 64 and 65 should stand part of the Bill.

These clauses are controversial. If they are enacted, they will authorise loss of benefit for an alleged breach of a community order. The Government's proposals were strongly criticised on all sides of the House at Second Reading. Since then, as the full significance of what is proposed has become apparent, the opposition has intensified.

So what is so unusual and objectionable about these clauses? Put simply, it is that the procedure put forward by the Government confuses administrative practice—that is, the conditions that apply to entitlement to, or disqualification from, social security benefit—with the sentencing of offenders. Entitlement to benefit is based on need. Needs do not change when conditions of community orders are not observed.

A probation order or community service order is—there should be no mistake about it—a non-custodial penalty. It is at the discretion of the court to decide, once guilt has been established, whether an offender convicted of a less serious offence is sentenced to a term of imprisonment, or receives a fine, or whether that person is sentenced to a community penalty. If sentenced to a community penalty, the offender will be subject to supervision by a probation officer who has the responsibility to see that the sentence of the court is properly carried out. If, for example, the offender fails to report regularly, or does not carry out allocated tasks of community service, after one warning he or she will be at risk of being taken back to the court. Enforcement of community orders by the Probation Service has recently been strengthened. A great deal of work has been done to that end. Two independent surveys have indicated the scale of the improvement that has taken place over the past 12 months. Just a few weeks ago, the Minister of State at the Home Office, Paul Boateng, congratulated the Association of Chief Officers of Probation on the improvements that had been made in enforcement by the service.

The crucial point to keep in mind is that the decision on whether there has been a breach is taken not by the probation officer; it is taken by the court after a judicial hearing. The court may be satisfied that there is a reasonable explanation, and may continue the order. It may, and in many cases does, agree to the withdrawal of the application by the Probation Service because new information has come to light since the original notification of breach. It may revoke the order and re-sentence either to custody or to a further non-custodial penalty.

I rehearse the sequence of events, which will be familiar to some but not all Members of the Committee, because it is into this well-established legal order, statutory and evolutionary, that the Department of Social Security has blundered. One is bound to ask why, unlike other proposals for the reorganisation of the Probation Service which are contained in the Criminal Justice and Court Services Bill currently before Parliament, there has been no prior public consultation or discussion with the services affected. The proposal came as a complete surprise.

Loss of benefit was first announced by the Prime Minister when introducing the Government's legislative programme in another place last November. It was part of a package of six punishment-related items included in a "tough on crime" section in the Queen's Speech. Since then, every public service that will be directly affected in its implementation has gone on record as deploring the intention to withdraw or reduce social security payments as soon as an alleged—I repeat, alleged—breach of a community order is reported to a local benefit office by the Probation Service.

The highly responsible Association of Chief Officers of Probation has been joined by the National Association of Probation Officers, the Magistrates' Association, the Justices' Clerks' Society, and the Commission for Racial Equality in a rare display of unanimity. If this is a listening Government, surely Ministers have an obligation to listen, rather than to dig themselves further into what is an indefensible position.

The Penal Affairs Consortium, representing no fewer than 41 organisations concerned with the penal system, goes further than the injustice of what is proposed and describes the measure as, retrograde, counter-productive and bound to increase crime". Such a perverse outcome is a real possibility if offenders who are attempting to establish themselves in a local community suddenly find that they have no money, or that their income, which is already set at a low level, is reduced. We should remind ourselves that many are drug or alcohol misusers for whom the court has decided that a period under supervision offers the best hope of overcoming their addiction, so reducing the prospect of further offending in future. For them, as for many others, whether caused by impoverishment, recklessness or resentment, reoffending is often impulsive and irrational.

Since deterrence—which it seems the Government had in mind in introducing the proposal—depends on rational calculation, it will be at its least effective in such circumstances. The idea of sending messages by way of legislation is simply absurd. It is impossible to avoid the conclusion that the full implications of the proposal were not properly thought out before it was announced. Since then, the Government seem to have had difficulty in comprehending why the clauses are wrong in principle and likely to prove counter-productive in practice.

The intention of my noble friends, if I may so describe them in different parts of the Committee, is to provide an opportunity for the Government to hear at first hand from those who have experience of the workings of the penal system just why these clauses are so objectionable, and to give them an opportunity to reconsider.

5.30 p.m.

Baroness Kennedy of The Shaws

I have put my name to a number of amendments because of my profound concerns about these proposals. I agree with the noble Lord, Lord Windlesham, that these provisions are an attack on the poor. They create a discriminatory punishment which applies only to the poorest in our society: those on benefit. This punishment will not apply to the drug-taking sons of the privileged or the shoplifting wives of the well-to-do who are in breach of community orders. It is a double punishment, and the inherent unfairness of it is wrong in principle. It is an extraordinary departure. In addition to the courts, a department of state will now mete out punishment. The Secretary of State, Mr Alistair Darling, is to dress himself up in the clothes of the Lord Chancellor.

I was worried because perhaps this was the new big idea of government. In a moment of reverie, I imagined the development of that idea into other areas. Perhaps next month child benefit will be stopped if children are taken on holiday in term time, or tax relief will be reduced if one's dog fouls the pavement. This matter should concern the Committee. The proposal represents an unacceptable cross-over between different arms of government. The "Big Brother" quality of this thinking should create alarm and despondency. People should not be duped into thinking that it is a reasonable response to anti-social behaviour. The proposals are an affront to human rights not only because they are discriminatory but because they punish in advance of conviction. They breach Articles 6, 7 and 14 of the European Convention on Human Rights and the Human Rights Act which is to come into force in the autumn. I believe that in particular cases other articles will also be violated; for example, when the punishment impacts on the children of offenders.

On the previous occasion when the Committee debated these provisions the Minister disagreed with me when I said that women and children would be affected. I took the opportunity to discover whether my fears about the effect on women and children were unfounded. Eleven per cent of those on community sentences are women. It is believed by the agencies involved that two-thirds of those women have children. For example, a single parent with one child would face a reduction in benefit from £90 to £70 a week, which would be a minimal benefit. I ask the Committee to consider what effect that would have on the ability of an individual to cope. Last but not least, this measure is a sure-fire way to increase crime. It takes little imagination to envisage what people may do when they lose a significant proportion of their income. This proposal will increase the temptation to steal, burgle, solicit for prostitution or sell drugs—all the matters about which we are so concerned.

I am sure that initially many members of the public would regard this as a sensible proposal to prevent people who had been placed on probation or other community service orders from cocking a snook at the system and failing to fulfil their obligations. However, the proper way to deal with breaches of court orders is to bring people back before the courts. In that way a proper judgment can be made as to whether a breach has occurred. In my experience—I have spent 25 years in the courts—often poor people who are placed on probation have a multiplicity of social problems.

One of the purposes of a community order is rehabilitation and to bring a degree of order into lives which sometimes have become chaotic. The purpose is to help people who are trying to kick a drug habit or alcoholism to cope so that eventually they can return to work or to training and play a part in society. But that takes time, and in the early stages people can find it very challenging. To get one's children up for school in such circumstances can be hard. One may miss an appointment because one has been up all night with a child who is sick or suffers nightmares; or one may have to deal with a neighbour who has overdosed, or one may forget to set the alarm clock. Such instances taken together may result in the probation officer being obliged to refer the case back to the courts. A second failure to attend is now a ground on which the Probation Service must report back to the court.

Under this proposal there is a duty to inform the Benefits Agency. Sometimes the court finds that there is a reasonable excuse; if not, the offender is punished. That is the right way to deal with it because the court is the proper arbiter. This proposal is not in keeping with the values of a Labour government. Our principles are based on abiding values, of which I am proud. Those values are not about handouts, but about looking out for the poor and giving them ways to throw off their impoverishment, crushing discrimination wherever we see it rather than fostering it, creating equality before the law, not differentials and double punishment, and protecting citizens from unfair treatment by the state. It is not for us to become the state and to invent exquisite new ways to punish. When it comes to civil liberties, there is no third way.

Lord Carlisle of Bucklow

One of the advantages of Committee stage when one has not taken part in the Second Reading is that one has had an opportunity to read the speeches made on that occasion. All I can say is that, having read the speeches of my noble friend Lord Windlesham, the right reverend Prelate the Bishop of Lincoln, and the noble Baroness, Lady Kennedy of The Shaws, I agree with every word that each has said. To repeat their words would be tautologous and, therefore, I intend to be brief.

I believe that what is proposed in these clauses is wrong in principle and that it would be wholly counter-productive in practice. First, it is wrong in principle because the withholding of benefits is used as a non-judicial means to punish and attempt to enforce the orders of the courts. Secondly, it is wrong in principle because it clearly involves a double penalty. In those cases where a breach is proved, the withdrawal or reduction of benefit is a further punishment on top of the order of the court. Thirdly, it is wrong in principle because it discriminates between those who are out of work as against those who are in work as to the form of penalty that they face. Fourthly, to impose a reduction of benefit on an allegation of breach of an order rather than on a finding of a breach is a principle that I regard as both novel and unacceptable.

As far as concerns practicality, I believe that the measure will be wholly counter-productive. The fact is that most of those who are on probation or subject to community service orders have a history of thieving and stealing of various kinds. To impose greater poverty on the poorest at that time by this measure will substantially increase the temptation for them to commit further offences. Undoubtedly many will fall to that temptation and commit further offences. Therefore, the effect in practice will be to increase rather than reduce the amount of crime.

I strongly believe that those who are in breach of a condition of a probation order, particularly a community service order, should be dealt with severely by the courts. Community service is accepted and intended to be an alternative to imprisonment, and it is right that those who breach a community service order should realise that they stand in real jeopardy of losing their liberty.

I understand that 21 per cent of those who were brought back before the courts in the past year for breach of community service went to prison. It would not worry me if that figure were far higher. I believe that they should be warned clearly of the effect. But to attempt to punish them in the way that the Bill provides is, I believe, wrong in principle and will fail in practice.

5.45 p.m.

Earl Russell

If I do not repeat what has been said in the three previous speeches, it is only because I am not addicted to the gilding of lilies.

The penal affairs case against the clause, and the attendant comet of other clauses which form its tail, is so overwhelming that, having listened to the speeches made already, any sensible government would withdraw the clause. But there is also a social security aspect. As the only social security specialist with his name to the amendment, I think that it would make sense if I concentrate on that part of the argument.

It seems as clear from the social security perspective as from the penal perspective that the effect of the proposal would be to increase crime. In the words of the Penal Affairs Consortium, pushing poor people into even greater poverty must increase the temptation to steal, burgle, rob, shoplift, solicit or sell drugs. One might add that it is particularly likely to do that if those people, because they are a pre-selected sample, already have experience of crime. If we are on our uppers, we tend to rely on those skills we know. If we are criminals, the skills we know are those of crime, and the temptation to use them may be irresistible.

The Minister may tell me that that is a rebuttable presumption. If the noble Baroness tells me that, I shall not argue with her. But I think she knows that she is in no position to rebut it because she and her predecessors have failed conspicuously to collect the evidence upon which it might be rebutted. We have no significant body of evidence on how those who are disentitled to benefit make a living. The Minister knows that I have questioned her and her predecessors on this issue for quite a long time and have not received answers. If it were not true that the measure will increase crime, the Minister is in no position to make the case.

It is a slight exaggeration to say that the noble Baroness knows of no evidence. In a debate immediately before the Easter Recess in which my noble friend Lord Addington spoke, the Minister recommended one piece of government research: the DfEE Research Report 86 on the effect of sanctions on jobseeker's allowance. In that report I find one and a quarter pages on the effect of sanctions. It states that people experienced considerable hardship, but those who were single experienced slightly greater hardship. Doubtless the Minister will make much of hardship payments. I invite her, not for the first time, to explain why the Government believe that single people by definition cannot be in hardship. I have never understood that argument and I have never heard a coherent explanation.

The report quotes one person who had been sanctioned saying that he, just scraped through, but it wasn't easy at all". It does not say how those people make a living, what sources of income were available to them, whether they were legally or illegally obtained, how far short of benefit levels they were, and what things they had to forgo in order to live. Until we know those factors we are in no position to judge the effects of benefit sanctions. Since that ignorance is the result of deliberate inaction by the Department of Social Security, I think that I am entitled to describe it as culpable negligence. Before the proposal is reintroduced, that culpable negligence must be put right.

Noble Lords have touched on the fact that the benefit is withdrawn before a hearing. I shall not soon forget the speeches made by the Minister herself against that proposal when it was introduced in the Jobseekers Act. They were some of the best speeches I have ever heard in Parliament; and I still agree with every word of them. The noble Baroness will point out that the benefit forgone can be withdrawn if the penalty were found to be mistakenly imposed. But you cannot hang your stomach on skyhooks. If your benefit is withdrawn for several weeks, you will be unable to postpone eating until you get the benefit back. You have to do something in the meantime. Some of the people in that position will adopt what the Children's Society described as risky survival strategies: theft, sleeping rough, begging, drug pushing—crime of various kinds. I am advised that drug couriers can make £50 for one single trip. That must look very tempting if you do not know where your next meal is coming from. "Lead us not into temptation" is advice which might be heeded by legislators as well as others.

I am sure the Minister will say that this is not a penalty. That does not sound particularly convincing. I am reminded of the story of Kaiser Wilhelm (as he subsequently became) at the age of five being spanked by his nurse. The nurse said solemnly, "This hurts me as much as it hurts you", to which the Kaiser replied, "Oh, and in the same place?". The argument that it is not a punishment is just about as convincing as that.

However, for the sake of fair play I take the argument on the premises on which the DSS has chosen to advance it. I take it on the letter from Mr Alistair Darling in The Times of 11th May replying to letters from the noble Lord, Lord Windlesham, and myself. Mr Darling said that the proposal is based on the clear principle that rights to benefits are conditional on an individual fulfilling their responsibilities to society. As the noble Baroness, Lady Kennedy of The Shaws, pointed out, that is dangerously open-ended. I am not clear what might be done in future under it.

On conditions to benefits, we need to make some distinctions. At Second Reading, the Minister said that conditions to benefits have been imposed before. Yes, they have, but we need to consider under what headings. First, in means-tested benefits there is inevitably a condition about the sufficiency of means. None of us argues about that. Secondly, there is a condition about being available for work. There is plenty of room for argument on both sides about that. On the one hand, it is a valid principle that the need can be seen, like intentional homelessness, as self-inflicted if the person is not seriously trying to get out of it. On the other hand, it is an equally valid principle that starvation is a punishment which should not be inflicted by authority in civilised society. We on these Benches have debated the issue at considerable length among ourselves on various occasions. The position we take is that since both those principles are valid in the moral plain we should judge between them according to the effects that disentitlement has. We should judge by the consequences if ever we can find what those are. Meanwhile the benefit claimant should be given the benefit of the doubt.

However, with Mr Darling's letter we are in an altogether different line of country. There is nothing in this new condition to benefit about whether the person is attempting to get work. It is not even a condition of a probation order that you should actively seek work. The condition is based simply on the fact that the Secretary of State happens to disapprove of the activity in question. Once you get into disentitlement to benefit because the Secretary of State disapproves of the activity in question, you are in very dangerous country. Secretaries of State are addicted to disapproval; it is part of their professional apparatus. Once we get that far, surely we are back in the territory of the distinction between the deserving and the undeserving poor. I heard the Minister powerfully and movingly denounce that many times when she was in opposition.

The idea that some of the poor are undeserving is always tempting to those who have property. I do not believe that we should encourage it, especially when by doing so we are wandering into an area where we confuse the business of two ministries. Late last weekend, I happened purely by chance to be looking at the 13th report of the Social Security Advisory Committee. It was considering a quite different measure, but it stated a general principle which is worth thought: Caution is required to ensure that inter-departmental policies are compatible before making receipt of a social security benefit dependent upon satisfying a non-money related condition. Care is also needed to ensure that the introduction of additional requirements does not make the administration of social security benefits unnecessarily complex and correspondingly expensive". There are problems here. If people lose their benefits, what will happen to their repayments of Social Fund loans? I know that they keep housing benefit, but what will happen if they are paying some of their rent out of income support? What will happen to instalment payments to the utility companies? What will happen to the £5 which they are required to pay as child maintenance if they are in receipt of income support?

If that goes, the Minister must abandon the position she took about the absolute priority of money for child maintenance. If it does not go, she must abandon the insistence she then made that she cannot imagine any situation in which people are unable to pay what they were assessed for under the Child Support Act.

The Government are not so much shooting themselves in the foot as shooting themselves in the toes one by one. It is a wistful procedure. We should stick to the basic simple principle that benefits are not given for being good; they are given for being in need.

Viscount Tenby

I rise to speak briefly in support of the amendment tabled by the noble Lord, Lord Windlesham, and others. I say "briefly" advisedly since the principal objections to the measure were admirably covered by the noble Lord both at Second Reading and earlier today. The logic and common sense of what he has said has been strongly reinforced from all sides of the Committee.

I shall not dwell on what the measure will do to the disadvantaged because it was much more ably expressed by the noble Baroness, Lady Kennedy, and the noble Earl, Lord Russell. However, like others, I have received representations from the Probation Service at all levels and from the Penal Affairs Consortium. In order to complement those, I have been in touch with the Magistrates' Association. Here I must declare an interest as a member of that association and as a magistrate on the supplementary list. I have also been in touch with the Justices' Clerks' Society of England and Wales. In every single case, grave reservations were expressed about this extremely dubious initiative. Their concerns concentrated in the main on the leapfrogging over the due process of law; potential double punishment for the same offence for some but not for others; the implications for this country under forthcoming human rights obligations this autumn—and that despite the Minister's assurances at Second Reading—and, perhaps most importantly, the effect that it will have on the Probation Service and its delicate relationship with offenders. I could easily enlarge on that list, but the clock ticks on and the Committee stage has been long.

I have some sympathy for the Minister. She has already been under fire today under MoD rules of engagement. She is now being charged with an unauthorised poaching expedition into a territory of the law. Like many other Members of the Committee—and these are not weasel words—I have great respect for the Minister and her passionate promotion for what she believe in, but I hope that in this case she will allow me to say that it is a pretty rum do all round! It is difficult to see why the many minefields around such a proposal were not spotted well in advance. For example, unused though I am to the workings of the Whitehall machine—and I say that almost thankfully—I find it odd in the extreme that one great department of state, the Home Office, has allowed itself to be "cut up" by another, the Department of Social Security.

One simply cannot, and certainly should not, mix up the law and the executive in this way and confer powers on the executive ahead of trial. Unless my appreciation of English constitutional history is seriously flawed, that is a fundamental fact about the constitution of this country. Accordingly, I most warmly urge the Minister to think again, having heard the compelling arguments advanced tonight, and to give us all grounds for hope. Once that subtle and precious link has been broken, the first step towards possibly greater infelicities in the future will have been taken and that is a serious matter.

Lord Davies of Coity

Someone would have to be totally insensitive not to be moved and to have sympathies with the arguments expressed today. However, some of the expressions were emotive and perhaps went further than necessary. Furthermore, there was a measure of unfairness as regards the proposals put forward by the Government.

We must recognise that law and order is becoming an increasingly major problem. The observance of it is undoubtedly worsening; crime is increasing; and prisons are overcrowded. We know that in large measure community service orders are not working. We have heard comments about a penalty for the poor. The vast majority of poor people on benefit are not offenders. Certainly, the vast majority of people on benefit, poor or otherwise, are not offenders. In this provision, we are talking about people who are offenders.

I understood the noble Earl, Lord Russell, to say that benefit is for need and I understand that. However, we also know that from time to time there has been fairly widespread benefit fraud. Whether that is committed by people who offend in another area of crime perhaps cannot be totally quantified, but the Government want to see people subject to community service orders fulfilling their responsibilities. If they do not, they place at risk their entitlement to benefit. It is one measure in the armoury of provisions in our legal system; for example, fines, community service orders, conditional discharges or imprisonment. The last thing I would want to see is the abandonment of community service orders because we would then have to return to the issue of imprisonment.

It seems to me that this provision will not be used very easily; it will be used to try to bring about a greater degree of observance of a penalty that has been imposed by a court. If it succeeds in doing that, then of course the benefit will not be removed. I believe that this is the way in which the Government want to approach the matter. There may well be amendments to be made to the provision; nevertheless, I believe that there has been a measure of unfairness in the way that it has been described this afternoon.

6 p.m.

Baroness Carnegy of Lour

I remind Members of the Committee that we are legislating for Scotland as well as for the rest of the United Kingdom. I believe that the noble Lord's defence of what the Government are doing may be echoed somewhere in Scotland, but I have not yet heard it. What I have heard is very much more the line put forward by the noble Baroness, Lady Kennedy of The Shaws.

I wish to ask the Minister one or two questions about the way in which Clause 61 in particular will operate in Scotland because I do not believe that anomalies make it any more acceptable. First, as I read the Bill, a JP will report to the Secretary of State that an offender is not carrying out a community service order properly. As Members of the Committee know, a JP in Scotland is not the same as a magistrate in England and Wales. It is the view of the Law Society of Scotland, and it is certainly my view, that the sheriff should perform that function. It is a grave matter to remove someone's benefit before it is proved that the order is being broken and for it to be done by a Scots JP. That is no reflection on JPs, but it should be done at the sheriff's court. I should be grateful if the noble Baroness would say whether that change is under consideration.

Secondly, I want to ask what happens if the noble Baroness, Lady Kennedy., is right and Clause 61 becomes law in Scotland and is found in a Scottish court to be in contravention of the convention on human rights. As I understand it, if a Bill has been passed by the Scots Parliament, it can be struck down by a Scottish judge in a Scottish court. However, this will be a UK Bill. I should like to know what happens if a Scottish judge finds that it is in contravention of human rights. That could happen at any time once the Bill becomes law because the convention on human rights is already incorporated in Scots law. There may be no difference. However, I should like to know the answer to that question. Certainly, I believe that the Committee needs to know whether the Bill is to be treated differently in the Scottish courts.

My final question is why there have been no pilot schemes in Scotland. The social work system in Scotland is very different from the probation system in England and Wales.

Baroness Hollis of Heigham

Perhaps I may help the noble Baroness on that point. Pilot schemes are proposed in the Bill. I certainly take the point that perhaps one of them should be exercised in Scotland. However, the noble Baroness is asking us to anticipate what has not yet happened.

Baroness Carnegy of Lour

I thank the noble Baroness and I apologise for my mistake. However, the Bill states quite clearly that there will be pilot schemes in England and Wales but not in Scotland. I should like to know whether that has anything to do with the fact that, under the Bill, one benefit which the Government propose that it should be possible to remove from an offender is the training allowance. The whole area relating to training is a matter that has been devolved to Scotland. The Bill has been altered to allow for that. I believe that Clause 61 is probably absolutely accurate. However, I wondered whether that was one reason why it was proposed not to have pilot schemes in Scotland. If it is not, then it seems to me absolutely essential that there should be pilot schemes there, and I hope that the noble Baroness will be able to answer that point.

Lord Dholakia

I welcome the proposal of the noble Lord, Lord Windlesham, and other noble Lords to oppose the clause. Like the noble Lord, Lord Carlisle of Bucklow, I also concur with almost everything that was said during Second Reading of the Bill.

Perhaps I may take just one thread of the arguments that have been advanced. Ethnic minorities are twice as likely as their white counterparts to be unemployed. In some areas, the proportion would be even higher. Sentencing research has already demonstrated clearly how the criminal justice system works against the interests of the minority community. This is not the place to elaborate on such researches. However, perhaps I may draw the attention of the Committee to the research conducted by Roger Hood of the Centre for Criminological Research at Oxford, which bears out what I have said.

In this country, between 15 per cent and 18 per cent of the prison population in male prisons is black and up to one in four women in British prisons is black. Why do I say that? I do so because the Commission for Racial Equality is seriously concerned about the implication that the proposal to withdraw benefits will have to the disadvantage of ethnic minorities. If they are serving a community sentence, they are more likely to be in receipt of benefits than are their white counterparts. The commission is concerned also that the withdrawal of benefits will follow an alleged but not proven breach.

The commission wrote to the Minister, Alistair Darling MP, about its concern, particularly in relation to the aims of the Race Relations (Amendment) Bill, about which we had a substantial discussion in this House, and the aim of the amendment approved by the Government. The Bill extends the Race Relations Act 1976 to those functions of public authorities that currently are not covered under the Bill. A policy which in its application operates to the disadvantage of a particular racial group who are proportionately less able to comply with the conditions or requirements of that policy would be unlawful unless it could be justified. I ask the Minister to consider whether justification for the proposed measure outweighs its likely disproportionate impact on ethnic minorities.

I was interested to hear the noble Lord, Lord Davies of Coity, talk about the prison population. I had put a Question to the Minister—to which I have received a reply only today (I hope that it will be printed in today's Hansard)—about the impact of community sentences and the breach of those sentences. I asked the Minister what is the estimated likely increase in the number of people imprisoned each year and the average daily prison population as a result not of this particular clause but of Clause 46 of the Criminal Justice and Court Services Bill, which concerns the breach of community orders, warnings and punishment. The Minister replied: We expect that the new proposals will be effective in persuading offenders to comply with their community sentences. In the short term, it is possible that there will be an increase in the numbers imprisoned. It is difficult to make firm estimates of the numbers involved, but if the new statutory warning scheme is ignored by half of those offenders who currently fail to comply without good reason on one or more occasions, some 25,000 additional offenders could be imprisoned resulting in an increase in the average daily prison population of about 1,900". That is the impact on the prison population of breaches of community service orders, either directly or indirectly. I ask one question. What is the Labour Party's estimate of a reasonable prison population in this country? We are already at the point of competing with Turkey. How low do we have to sink?

Baroness Stern

I, too, support the noble Lord, Lord Windlesham. I do not wish to detain the Committee or the noble Baroness long. The arguments have already been put very convincingly, but I should like to add two points. I have spent many years of my life working with the people with whom this clause is concerned; that is, people in all kinds of trouble. Often their trouble with the law was the least of their worries.

All the research from the Home Office and from the Government's admirable Social Exclusion Unit bears out this experience. Many of the people we are talking about are struggling. There is one image of them as violent, offensive, thuggish and yobbish: many epithets can be found about them in the pages of any newspaper. There is another side that those who work with offenders, especially younger offenders, see often. The 19 year-old who does not look his age and who comes to a project, a day centre or to see his probation officer on a Monday morning full of misery. What sort of weekend has he had? He has tried to protect his mother from being beaten by his father. He has tried to look after the three younger children and feed them. He has suffered more than usual from the headaches he gets but he does not have a GP and the doctors on the estate where he lives are not very sympathetic to people like him.

According to Home Office Research Study 167, Offenders on Probation, nearly half of the people subject to probation and community penalties said they suffered from a long-term illness compared to 13 per cent in the general population. That is the background of many of the people subject to community penalties and that case could be multiplied many thousands of times. These are the people who will be subject to this provision. They are already very poor.

It may be said that these are all excuses and that there are no excuses for crime. These are not excuses but explanations of why this measure is grossly inappropriate. It will have another effect. When dispensing justice, one has to be just.

As the noble and learned Lord, Lord Woolf, said in his famous and sadly neglected 1991 report on the prison system: There must … be justice in our prisons. The system of justice which has put a person in prison cannot end at the prison doors. It must accompany the prisoner into the prison". Nor must it end once the community sentence has been passed. The aim of the justice system is to get offenders to play by the rules; to respect the law; to understand justice and injustice; and to stop treating other people unjustly.

This provision is clearly unjust. If so many noble Lords think it is unjust, so will offenders subject to community orders. Those in work will continue to receive money. Those without work will be deprived of benefit before a hearing. This measure makes the task of those working to get offenders back into society very much more difficult. It is desperately hard work—painstaking work for which too little credit is given. This measure will make their work even harder and the outcome will be one that nobody wants: fewer people helped into law-abiding lives, more social exclusion and more crime.

6.15 p.m.

Baroness Massey of Darwen

There was reference at Second Reading to punishment fitting the crime; to the quality of mercy; and other more classical references from the noble Earl, Lord Russell. We have heard today a great deal of eloquence about community sentencing and benefit entitlements. My noble friend Lady Kennedy of the Shaws spoke very emotively and passionately. However, she does not speak for or represent the vast majority of Labour Back-Benchers.

I want to make a few simple points underlined by the commitment in the Bill to evaluate the system of community sentences before rolling the scheme out. The points I make are about deterrents, choice, rights and responsibilities and setting examples.

Members of the Committee are aware that community sentences are given to and indeed chosen by offenders whose crimes are not so serious that prison is the only appropriate measure. Community service orders, probation orders and combination orders impose sanctions through some restriction of liberty for offending behaviour and making reparation for the community; for example, by performing unpaid work. In many cases, successful completion of community sentences improves the opportunities of employment for the offender. Completing a community sentence requires self-discipline in attending appointments with the Probation Service and others and turning up for work on a community service placement.

I, too, am a supporter of civil liberties of many kinds. I do not believe in punishment for punishment's sake. I believe in justice and playing by the rules. I believe that people, particularly young people referred to by the noble Baroness, Lady Stern, need to be provided with information and education to make choices in their lives. I believe that they also need frameworks and boundaries set by families, society and ultimately themselves. I believe it does no one any good, in fact it might do harm, to encourage choice, in this case choice of a community sentence, to set frameworks and then not sanction a breach of commitment. What is that saying to the offender? What is it saying to those who might offend? What is it saying to society in general?

We have now introduced citizenship education in our schools as part of the curriculum. It would be a travesty not to advocate and set examples of responsibilities as well as rights. Surely we should be saying loudly and clearly to our young people that civil liberties also carry civic duties and that offending should carry sanctions, not only for the sake of society but of the offender. There is nothing wrong with disapproval sometimes.

I understand that around 130,000 community sentences are handed down each year in England and Wales. In 30,000 cases a year, offenders have to be referred back to court because they have not complied with their sentences. This situation surely calls for action.

The Bill contains powers to withdraw selected benefits from offenders who fail to comply with community sentences. I will not go into detail; that is well known. Your Lordships are also aware that the pilot scheme will permit hardship payments, even if the jobseeker's allowance and the training allowance are withdrawn, but only the element of selected training allowances, which equates with the participant's underlying jobseeker's allowance, will be withdrawn. Any additional premium, top-up payment or payment of expenses will remain payable subject to continued participation in the scheme. The allowances selected will include those payable to participants in work-based learning for adults and the New Deal for young people. Housing benefit entitlements will not be affected.

This is surely about deterring people from breaching a contract they make with the state and making it clear that breach of contract will result in sanctions. Yes, it does send messages. Surely, it is fair that benefit systems should be seen to be applied to those who merit them and not to people who choose—I emphasise the word again—to fail to comply with agreed rules. There are conditions applicable to most aspects of life including good citizenship. We all have to learn the conditions and learn obligations to society. I believe that there are key principles at stake here, principles of being fair and being seen to be fair. I do not want to get into the draconian views of welfare and benefit sometimes voiced in the "vox pop" interviews. I strongly support welfare for those who deserve it and who have an entitlement to it. I also believe that people can learn and should learn to respect a system of rights and responsibilities. We must encourage them to do so. This is why I reject the amendment.

The Lord Bishop of Hereford

The right reverend Prelate the Bishop of Lincoln is very sorry indeed that he is not able to be here. His name is associated with these amendments. He has been called back to the diocese on urgent business. I want to express my agreement with this proposal and my support for it. I agree completely with what has been said by many Members of the Committee—the noble Lord, Lord Windlesham, the noble Earl, Lord Russell and the noble Baroness, Lady Kennedy of The Shaws. Breaching a community service order is a very serious matter. It is not something which can be overlooked and it is not something which is trivial. But what the Government are proposing is an extremely blunt and immoral instrument with which to deal with that particular alleged offence.

It is quite right that if someone is alleged to have breached a community service order, he should go back to the courts as soon as possible. It is for the courts to establish whether there is a breach. The circumstances of each case must be established. Those cases will be extremely different, from person to person. What is the proper course of action for each of the 65 per cent of those under probation supervision who are on benefits and who would be punished by this proposal?

I do not want to reiterate the arguments which have been set so eloquently before the Committee, but I want to express my support for the Motion and I apologise for the absence of the right reverend Prelate the Bishop of Lincoln.

Lord Elton

Perhaps I may respond briefly to the intervention of the noble Baroness, Lady Massey. She has addressed the practicalities of this debate in a manner which is very attractive to a large number of people outside this Chamber and to some Members on all sides of the Committee. Therefore, in turn, it needs to be addressed.

We are debating two matters: principle and practice. The case about principle, which my noble friend Lord Windlesham and others have advanced, is unanswerable in the form in which it has been put. Sometimes practicalities argue against principle. One can bend principle because practicalities make it difficult to enforce or unreliable in effect.

But I do not believe that that is so now. Many people, including the Association of Chief Officers of Probation, have adduced the way in which those provisions will work. The noble Baroness said that there must be fairness; that people expect punishment to be fair; that if you breach the order, you should be punished. My noble friend did not suggest that that should not be the case. He has merely said that it should be done by the courts; that these orders are an alternative to imprisonment; and that those who are subject to them should be exposed to the risk of imprisonment if they fail to comply.

The noble Baroness said that the appeal to the hearts of Members of the Committee because of hardship is overstated because there will be hardship payments. In the provisions, we learn that those will not be available until two weeks after the orders bite. So is it possible to survive for a fortnight on an empty stomach but not for six weeks or six months?

The noble Baroness said also that the payments for housing benefit would not be affected. But housing benefit payments are often less than rents. What happens to the unfortunate person who must meet those payments out of income? Even if he receives a hardship payment, the whole amount is not clawed back and the income element is untouched by the hardship payment.

We need to look at the practical effects of the proposed provisions. The practical effect is that many people, who are fairly incompetent at managing their lives in any event, will find it impossible to do so without resorting to crime.

Baroness Thornton

Along with my noble friend Lady Massey, it is important that I put on record that my noble friend Lady Kennedy does not speak on behalf of many of us on the Back Benches here. I say that partly because recent publicity featuring my noble friend, certainly over the past weekend, suggested that somehow my noble friend is seen as the conscience of this Labour Government. My socialist conscience is in good working order and functioning very well.

What exercises my conscience is the notion that this Government are not listening or taking seriously the terrifying nature of the lives being led by some of our citizens on the estates and in the housing schemes where violence, robbery and vandalism are a huge problem. Perhaps I may say to the noble Earl that the people on those estates are not usually property owners. Do they not also have a right to be heard in this debate? This proposal is consistent with the Government's philosophy of being tough on crime and on the causes of crime.

Earl Russell

Is the noble Baroness able to rebut the proposition that this proposal will increase crime?

Baroness Thornton

I say that the proposal is consistent with the philosophy which underpins the New Deal, welfare reform and the crime and justice policy. It is a philosophy about rights and responsibilities. I shall answer the noble Earl's question when I address that point at the end of my remarks.

However. I find it puzzling that some Members of the Committee, including those on this side, speak of rights and responsibilities as a kind of pick-and-mix. It is a pick-and-mix idea of rights and responsibilities. Those people imprisoned in their houses may feel that the rights are all on one side and they may ask who is taking the responsibility.

This is not a stand-alone measure because, of course, it is part of a jigsaw of measures. It is important to support it as one small part of that.

Finally, I believe that there is an odd alliance here which includes the noble Earl, Lord Russell, and my noble friend Lady Kennedy. I know that they must be aware that when probation and community service orders are broken, the end result is that people are put in prison. I know that they cannot believe that that is a good outcome. However, I am not quite so sure about the Benches opposite, particularly after listening to the Leader of the Conservative Party, Mr Hague, on this subject during the past week. I merely say that that must give people cause for thought.

The Earl of Mar and Kellie

I want to ask a single question about the application of this Bill in Scotland. In view of the fact that the criminal justice system has been devolved to the Scottish Parliament, will it be intra vires for the Secretary of State to run a pilot scheme in Scotland?

Lord Christopher

I would like to indicate that from these Benches there is certainly not total unanimity about what should be done in this regard. I had better explain where I come from. For some time before 1998, I was involved with three charitable bodies concerned with penal reform and with offenders. The best part of that time was spent as chairman of NACRO, one of the organisations which was a party to the representations which have been made to many Members.

It has always seemed to me that the concept of deterrence was very confused. We live in an extremely penal-oriented society but one man's deterrent is another man's incentive. I have little doubt that the prospect of going to prison would be a 120 per cent deterrent to the Minister. Indeed, the very fact of being anywhere near the thought would be dreadful to her.

But I am puzzled by the belief that the withdrawal of this money will deter those who are under those two particular forms of sentence to whom the prospect of going to prison is not a deterrent. I find that totally unconvincing.

Perhaps I may say to my noble friend Lady Massey that most of the people that she is talking about could not spell the word "contract", let alone understand it. One problem is in being cost-effective in dealing with crime, its consequences and offenders. I assure the Committee that I should not wish to be classed as wet, soft Left or pink in this concept because I was one of the major players in producing the Audit Commission's report on mis-spent youth. I commend it to a number of Members of this Chamber who have not read it. If there is a failing with the youth justice system, it certainly will not be cured by these clauses in the Bill.

I do not want to repeat what others have said before me. As I have indicated, I wish to be constructive. I have no quarrel at all with being tough on those who break that contract and in dealing with them. But the subtleties of the matter need to be understood. Only about a third of those who are taken hack to the courts are given a prison sentence. Where do the other two-thirds fall?

I believe that the real answer lies in doing something tough quickly and getting those allegedly in breach before a magistrate fast. I understand that on average it takes about six weeks. In some parts of the country I believe that it takes a good deal longer, which is utterly ridiculous. If we want people to feel that there is a deterrent and that if they are caught they will be dealt with quickly, we must deal with them quickly. Because we have dealt with them so slowly—as set out in the misspent youth report—the whole system has fallen into disrepute with such people.

There is also the belief that somehow or other the public will feel satisfied if this provision is enacted. Of course, in terms of taxation and cost, the price will be a great deal heavier. I have no doubt whatever that the consequences of this will lead to increased, often nuisance crime. I see no constructive point in that at all.

Perhaps I may conclude with an anecdote. In the 1960s I used regularly to visit two London prisons, where I spoke to prisoners who were due for release within two or three months. After a short while it was borne in upon me that, whether one liked it or not, it was desirable to try to remove any possible causes of grievance on release. Many of these men and women look for something to justify doing what they should not do. I came across several prisoners who returned to prison quickly. They had left prison, got a job, promised their wives that they would go straight and so on. Then pay day came on the Friday and they found that the inspector of taxes had taken 30 per cent of their pay so they went home with a lot less than they had thought or had promised to go home with.

That is a simple, mechanistic issue that, I hope, has been dealt with. I found the Inland Revenue extremely co-operative. At the end of the day a form was produced and given to any prisoner who wanted it so that he or she left prison with a piece of paper saying, in the majority of cases, that he or she is not liable to pay any tax. Therefore, the potential sense of grievance is removed.

This proposal invents a new potential sense of grievance. It will not be understood, except in its simplistic form. I hope that we shall not be required to vote on this matter as I hope that the Minister and the Government will think through whether there is not a better answer to dealing with this problem.

6.30 p.m.

Lord Baker of Dorking

I hope that the Minister will carefully consider the points that have been made not only from this side of the House and from the Liberal Democrat Benches, but also from the Benches behind her. The measure that she proposes is offensive on two grounds of principle.

The first principle is that the responsibility for trying to condition criminal behaviour lies with the Home Office. Those of us concerned with bringing in criminal justice Bills know only too well that this is an immensely complex measure. Whatever proposals one brings forward, one must be satisfied that one will not increase the incidence of crime, rather than reduce it. That requires a long study of criminological reports which are available only in the Home Office, in our system, or to various criminological departments in our universities. That is not the responsibility of the Department of Social Security. The Minister cannot be expected to make the case convincingly on this point because she is not responsible for such matters. Previous Labour governments and previous Conservative governments have always observed that important principle. The consequences of the Minister's suggestion is that quite lowly paid officials in the Department of Social Security will make a decision which was never intended to be part of our criminal justice system.

The second principle is that I do not believe that one should use the withdrawal of benefits and entitlements as some sort of further punishment. For many years, the noble Lord, Lord Christopher, represented the interests of the Inland Revenue and he could advise the Minister that if one of his staff had been convicted of grievous fraud, convicted and sent to prison, his or her Civil Service pension would not be removed.

When a judge was found guilty of smuggling—I believe, bootleg liquor into this country from France—there was a suggestion that his pension should be removed. The noble and learned Lord, Lord Hailsham, the then Lord Chancellor, said that he would not do that, thus preventing other judges following suit.

The principle is wrong, as the noble Earl, Lord Russell, said. This measure cannot be used as a yo-yo penalty to withdraw entitlements. If it can be used in relation to breaches of community orders, why not use it in relation to breaches of probation orders? The Minister will say that such a person has been convicted. What about someone who breaches a probation order six times and commits six offences in between? Shall we try to condition his or her behaviour by using these sorts of penalties?

I suggest that the Minister should listen carefully to the words of the noble Baroness, Lady Stern, who has spent most of her life and career dealing with offenders, prisons and criminals. She probably has a greater understanding of the motivation of criminals than anybody in this House. The Minister should also listen to the noble Lord, Lord Christopher.

This is the sort of proposal that is dreamt up on a Saturday afternoon in No. 10, when the spin doctors have come in and said, "The Sundays are going to say that we are weak on law and order; come on, Tony, come up with some really clever idea, a spiffing wheeze that will get us the headlines for a few days". They have had the headlines for a few days; they will have the headaches for years.

Lord Brookman

Perhaps I can intervene on that point which I regard as somewhat unkind and grossly unfair. In relation to the opening remarks of the noble Lord, Lord Windlesham, who asked why the Department of Social Security blundered into these proposals, if he listened to the noble Lord, Lord Davies of Coity, and the noble Baroness, Lady Thornton, he would understand why the Government had to do something about the situation with which the people in this country live. It is absolute chaos out there. I do not know how many noble Lords visit the areas that have been referred to, but they are out of hand and running wild. Our people require a government who care more about the poor than did the Conservative government during their 18 or 20 years in power. We are talking about a government who genuinely care; something needs to be done.

This is not necessarily a complete solution, but it is a solution to how to deal with the problem. This is not a solution devised by judges or barristers. We have heard a lot from them this afternoon, protecting, some would say, their own interests, as ever. It is about a government who are trying to deal with the specific problem. I suggest that they be given our best wishes to proceed in the way that they intend.

Lord Windlesham

Before the noble Lord sits down, can he say how there would be greater protection in the neighbourhoods that he has described so emotively if offending is increased as a result of this measure?

Lord Brookman

I take the view that this Government are concerned with responsibilities and benefits. Why cannot these people toe the line when they know the issue with which they are faced?

Lord Goodhart

Reducing benefits as a punishment for non-compliance with a community order is profoundly objectionable. The reasons have been expressed extremely powerfully by my noble friend Lord Russell and, with the exception of four speakers from the Government Back Benches, by everybody else who has spoken. It appears, not only from the speech of the noble Lord, Lord Christopher, but also from the body language of a good many who have not spoken, that those on the Government Back Benches are at least as much in support of the noble Baroness, Lady Kennedy, as they are in support of the Government's position.

These points have all been made extremely well by many speakers. I want to concentrate, therefore, on a more limited question; that is, whether Clause 61 complies with the European Convention on Human Rights. I am doubtful whether, in itself, reducing benefits as a form of punishment is a breach of the European convention. I am tempted to say that it amounts to inhuman treatment under Article 3, but it possibly falls a little way short of that. I see from his body language that the noble Lord, Lord Goldsmith, clearly takes that view.

I shall not go through the other arguments, save to say that it is well known that one of the defects of the European convention is that it does not deal in any way adequately with the problem of discrimination. While the noble Baroness, Lady Kennedy, pointed out effectively and unchallengeably that the provision discriminates against the poor, and my noble friend Lord Dholakia pointed out, equally effectively and unchallengeably, that it discriminates against ethnic minorities, they do not in themselves constitute breaches of the European convention as it now stands. But what is plainly in breach of the convention is the fact that the proposed punishment is to be imposed before conviction.

This is an extraordinary provision. Clause 61 may be, in form, a civil penalty. But in substance it is a criminal one because it imposes a penalty for misbehaviour. It will undoubtedly be recognised as criminal proceedings by the European Court of Human Rights when these provisions, if they become law, are challenged, as they plainly will be.

The European Convention on Human Rights provides, as does British law, a presumption of innocence. What happens to that presumption of innocence under Clause 61? What we have here is not a presumption of innocence, but a presumption of guilt because the penalty is imposed as soon as the information is laid and the Secretary of State has been notified of that fact. It is true that under Clause 61(6), if the court finds that there has been no failure to comply with the community order or there has been a reasonable excuse for non-compliance, the offender has those benefits made up. But that is not good enough. As my noble friend Lord Russell pointed out, the reduction of benefit will in itself cause severe hardship and it is not good enough, in the end, to say that the offender may receive back the money that he or she should have had in the first place. That will not compensate for the hardship caused by the unjustified withdrawal of benefits.

Why do the Government want to impose sentence before conviction? There seems to be no reason. It does not necessarily undermine the principle of Clause 61, even if one sticks to that.

Lord Davies of Coity

Perhaps the noble Lord will give way. I am intrigued by the question of penalty before conviction. How would the noble Lord answer if the legislation were framed in such a way that the person going before the courts was given a community service order on the understanding that, if they broke it, they would lose benefit?

Lord Goodhart

It would still have to be proved that they had broken the order. Surely, it would be better to wait a few weeks and make sure that a harsh penalty is not being imposed on an innocent person; a person who is innocent of the breach of the order.

The specific element of imposing penalty before conviction is almost certainly contrary to the European Convention on Human Rights and is perhaps the most objectionable of all the objectionable features of this clause.

6.45 p.m.

Lord Archer of Sandwell

I am grateful to the noble Lord for giving way. I say nothing of the merits of his argument. But if he is predicting the way in which an application to the Court of Human Rights might emerge, does he remember the case of Duhs v. Sweden, where an ex post facto remedy by a court was regarded as justifying what was done?

Lord Goodhart

The facts of that case are a long 'way from the facts of this case. I do not believe that, in a case of this kind, the court would find any justification for imposing a penalty before the conviction.

I conclude by saying that I feel that this is perhaps the most objectionable provision of what is, in itself, an entirely objectionable clause. I hope that in due course the whole of Clause 61 will be withdrawn by the Government.

Lord Goldsmith

The question of the legality of this provision was rightly raised by the noble Lord, Lord Goodhart. There was a risk that that question might go by default; that it might be assumed by Members of the Committee, in the light of comments that were made, that this provision would be unlawful. I want to spend a few moments on that issue. I do not want to say anything about the question of underlying policy, on which so much has been said so powerfully on both sides of the argument.

I agree with the noble Lord, Lord Goodhart, that the question of legality depends upon Article 6 of the European Convention on Human Rights. I agree with him, and that is why I was noticeably shaking my head, that this cannot be a question of inhuman treatment, nor does he suggest that it would be. Nor can it be given the state of the law on discrimination; in my view, a question of unlawful discrimination. My noble friend Lady Kennedy of The Shaws referred to Article 7—no punishment without law—but should this Bill be passed by this Parliament, that could not be an issue.

Reference was also made by several Members of the Committee to the principle of no double punishment. In so far as that is to be found in the European Convention on Human Rights, it is to he found in a protocol which, so far, this Government have not ratified. In any event, the idea that more than one detriment may follow from a single act is well known, well understood and happens quite frequently.

The real question, therefore, relates to Article 6. What is the substance of the requirement of that: article? First, that those who have their civil or criminal rights to be determined, should have them determined by a court, independent, impartial, in public and in a reasonable time. But—and this is the substance and the purport of the intervention of my noble and learned friend Lord Archer—the European Court of Human Rights, in its jurisprudence, recognised that that does not require that in every case the penalty be imposed only at the time of determination by a court. There are a number of cases—my noble and learned friend referred to one—the case of Ozturk; the case of Malige is another, and in its judgment the court said that, where a penalty is criminal in nature there must be the possibility of review by a court which satisfies the requirements of Article 6 § 1, even though it is not inconsistent with the Convention for the prosecution and punishment of minor offences to be primarily a matter for the administrative authorities". That refers back to earlier jurisdiction of the court and is a commonplace in certain countries that, for certain minor offences, administrative authorities impose sanctions which have to be paid at that stage. There is the right to determination by the court and, on determination, that penalty is returned, so long as that court is, as magistrates' courts undoubtedly are, public, impartial and hear the offences within a reasonable time. Those conditions are required.

I recognise that there is scope for argument, as there always is under the European Convention on Human Rights, as to which side of a line something would fall. There are certain features about this regime, however, which justify the view which my noble friend the Minister has expressed on the face of the Bill, pursuant to legal advice which the department has received, and she has told your Lordships that this will comply with the ECHR.

Those conditions seem to me to be these. First, the very important fact that, under the proposed legislation, the question of whether or not ultimately the benefit is to be lost is for the magistrates' court. That is plainly a critical consideration. Secondly, the degree of punishment involved—and I am prepared for these purposes to treat it as such.

My understanding is that under the proposed regulations this will be limited to a four-week deprivation; secondly, that it will not be a complete deprivation of benefit, depending upon the circumstances of the individual. Reference has been made to a hardship allowance remaining available and to income support not being completely removed. Finally, the approach corresponds to the general approach taken under the legislation, where the conditions for benefit are determined by administrative act in the first instance.

Those considerations lead me to the view therefore that on the question of legality this is not, in the words of the noble Lord, Lord Goodhart, certain or almost certain to breach the ECHR. I take the opposite view. I recognise that there is a grey area but, having regard to the jurisprudence of the court which exists, I take the view that the Government are justified in putting this forward on the basis that it will not do so. As the Minister has said in this House, should it turn out that the court takes a different view, effect will have to be given to that. As it stands, however, I suggest that your Lordships should not consider this matter on the basis that it will be illegal. On the basis of the merits of the argument, I say nothing.

Lord Ackner

Before the noble Lords sits down, can he help me in this matter? He says that the real question is whether there has been a breach of Article 6. Is not the real question whether punishment before conviction is an insult to one's elementary sense of fairness?

The niceties of the European law, deeply stimulating to the lawyer, have absolutely no relevance to the question here of fairness. How does he deal with that?

Lord Goldsmith

It is very refreshing to hear the noble and learned Lord, Lord Ackner, dismiss law in that way. As the noble and learned Lord will have heard, my observations to your Lordships were addressed to one argument which has been advanced in support of the proposition that these clauses should not stand part of the Bill, namely that these provisions will be unlawful.

I made it very plain that it was no part of what I was dealing with to say anything about the policy of the matter. That is for your Lordships to determine and others on both sides of the House have spoken eloquently about it.

So far as the law is concerned I believe, particularly in the light of the observations of the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Goodhart, and of others, that it is important to address the question of legality. That is what I have sought to do and I hope that it will be of some assistance to your Lordships.

Lord Phillips of Sudbury

The noble Lord, Lord Goldsmith, spoke of other jurisdictions and used the words "minor administrative penalties". Is it the noble Lord's thinking that withdrawal of benefits could conceivably be viewed as minor in the circumstances with which we are dealing here?

Lord Goldsmith

Yes. I emphasise the limit in terms of time and in terms of amount. I do not doubt for a moment that, for the individual involved, the effect is significant; but when one looks at this in the overall context of the criminal law, punishments, procedures, and puts it in the scale, the European Court of Human Rights has recognised that, so long as there is a right of review by a court which offers these guarantees—which the magistrates' court does and which is required under this Act—then it does not breach the European Convention on Human Rights. As the noble Lord puts it, the punishment is placed first or, as I believe the Minister will explain it, the condition for the benefit is triggered at an earlier stage. I was prepared to approach it on the basis of punishment, in order to deal with the argument.

Lord Warner

I apologise for missing the beginning of this debate, but I have an excuse. Perhaps I may offer the excuse to your Lordships and make a few comments on this issue from my perspective as chairman of the Youth Justice Board. I have been out of London, launching a youth offending team, following the excellent report from the Audit Commission on misspent youth. I am pleased to be able t o say that these changes are going extremely well.

Perhaps I may be allowed to offer a few points on the policy underlying this. If it is your Lordships' wish that I should not then I will, of course, sit down.

I will take that silence as consent to go ahead! First, there is the issue of conditionality. There is in this provision the notion of conditionality of benefit. This is not a new principle. Conditionality for paying benefit is a long-established principle, as I know from my own experience of working in social security.

What may be deemed a little novel is the idea that conditionality should be linked to breaches of criminal justice orders. The conditionality of social security benefit payments, however, is part and parcel of the individual's contract with the state. The state agrees to pay benefits on certain conditions if certain contingencies arise. We are doing no more in this provision, I suggest, than extending that to another part of the individual's contract with the state. In this circumstance the contract is one in which the individual has undertaken to abide by the terms of a particular court order. The terms of the court order and the arrangements for its enforcement have been made clear to that individual. This provision does no more than produce a lower alternative penalty than the existing arrangements for breaches of that court order, which is imprisonment.

The noble Baroness has made it clear that the terms of this punishment will be no more than a four-week deprivation of the benefit and there will be hardship provisions. That does not seem to me to be a very onerous set of circumstances if you consider the alternative, which might be imprisonment for the breaches of the court order.

The noble Lord, Lord Baker, implied that all wisdom in these matters should reside in the Home Office. A lot of wisdom does reside in the Home Office. I suggest to the noble Lord, however, that it is also apparent that not all of the changes which the previous government introduced to the criminal justice system were the result of carefully researched and weighed proposals, supported by a basis of academic research. Sometimes, I suggest, people make judgments about sensible ways forward in the light of circumstances which people face.

On the issue of whether or not people understand, it seems to me that the suggestion that people do not understand the consequences of a community order is rather patronising. They have been through this process. The circumstances have been explained to them. They have knowingly breached the contract that they have undertaken to carry out. The response proposed in this clause, it seems to me, is proportionate to the offence that they have committed.

7 p.m.

Lord Ackner

Before the noble Lord sits down, I have a question for him. I understand his application, generally, of the principle of "conditionality", but I should like some assistance on the following: who is to establish whether the condition has been broken?

Lord Warner

The decision maker responsible for the enforcement of the community order in the first place would draw the attention of the justice to the fact that there has been a breach of the condition.

Lord Ackner

To say that someone would draw the attention of the justice to the fact that there has been a breach seems to concede that the court is the organ which makes the decision.

Baroness Hollis of Heigham

Perhaps I may assist the noble and learned Lord. The procedure is virtually identical to one where an employer, for example, reports to the DSS that someone has voluntarily left work or, indeed, where a doctor dealing with an incapacity benefit or DLA form has stated that the person is better and no longer entitled to claim. Such information would be re-laid to the decision maker within the DSS who makes the decision. The same procedure would be followed here.

Lord Phillips of Sudbury

Members of the Committee are grappling with what is ultimately a practical issue, not a theoretical one; namely, whether this clause will or will not assist the aims that we all share to reduce criminality and aid the rehabilitation of offenders. The noble Lord, Lord Warner, has a great deal of experience in these matters, so I put this question to him. Can he say why the National Association of Probation Officers, whose members will have more to do with this than any other group of people, is so fiercely opposed to this clause?

Lord Warner

I do not wish to trade views on the National Association of Probation Officers with the noble Lord. However, the association has not always supported well-intentioned and well-thought-out reforms for some parts of the criminal justice system. On this occasion, it is possible that, like all human beings, it may be in error as to the possible consequences.

Lord Stoddart of Swindon

I have been sitting here throughout the debate. Therefore, I intend to say a few words on the subject. I thought that we believed in equality before the law in this country. However, it seems to me that there is no equality before the law in this case because some people can be punished in advance of being convicted. So there is no equality before the law. That is a tenet that we ought always to keep in mind.

My noble friend Lord Brookman said that something must be done, which is something that we are always hearing. Of course, something must be done; but what must be done must be right. I do not believe that what we are proposing to do here today under this clause is the right way to proceed. Indeed, if such a provision had been proposed by a Tory government and put forward by, for example, Mr Redwood, there would have been a public outcry. I also have a feeling that that public outcry would have been very ably and brilliantly articulated by my noble friend the Minister—and quite rightly so. I am sorry that she is not doing that today.

My noble friend Lady Kennedy of The Shaws is not without friends on these Benches. I am glad that she is not without friends because if the Labour Party is about anything, it is about justice. It is certainly about justice for the poorest people in our community. That is another reason why I believe that this clause is wrong. It does not do the right thing for our people—I repeat, "for our people".

I should also like to add that our justice system does not usually embark upon administrative punishments. People in this country have believed over many hundreds of years that justice must not only be done, it must be seen to be done. Administrative justice taken in an office in Whitehall, or elsewhere in a regional office out in the country, cannot be seen to be done; indeed, justice cannot be seen to be done. On every count, there is no way in a democratic country that such a provision should be written into our law. Like my noble friend Lord Christopher, I hope that my noble friend the Minister will give us the assurance tonight that she will take this provision away and reflect further upon it. If she does not and the matter goes to a vote, I shall feel tempted—perhaps obliged—to vote with those who oppose the Question that Clause 61 stand part of the Bill.

Lord Higgins

Anyone intervening in the debate at this stage can do so only with an immense feeling of diffidence and inadequacy. The arguments advanced by many noble Lords have, in many cases, been the result of many years of experience in the very areas now under discussion, whether social security policy issues or, indeed, the law. In his opening remarks, my noble friend Lord Windlesham reflected on years of experience at the forefront of such issues; and, indeed, was backed up by no fewer than two former Home Secretaries.

Clearly this is a matter that goes straight across party lines. All the signatories opposing the Question that Clause 61 stand part of the Bill come from different parts of the Chamber—for example, from my own side, from the Liberal Democrat Benches, from the Labour Benches and, indeed, from the Bishops' Benches. This is a matter of very great importance. Many quotes have been given from outside organisations that are concerned with the issue. I should add that I do not believe that I have received a single representation from an outside body which is actually in favour of what the Government propose. As many quotations have been given, I shall refer to just one or two.

I am quite considerably influenced by the National Association of Citizens Advice Bureaux, which is certainly very much in the frontline as regards these issues. It says that, the proposal to link compliance of community orders with payment of social security, could put many of our clients in a vulnerable position. These measures are part of the Government's crime reduction strategy, but we fear that far from reducing crime, the proposals, if introduced, could have the opposite effect. Those already struggling on benefits could well be tempted to commit crime if benefits are reduced, or even worse, withdrawn". In partial reply to the noble Lord, Lord Goldsmith, I do not believe that one should underestimate in any way the severity of the penalties on those who are already extremely poor.

One noble Lord on the Back Benches opposite said that the Labour Party is in favour of protecting the poor. But these measures will undoubtedly have a serious effect on many very poor members of our society. I understand that the Penal Affairs Consortium, which has already been mentioned, considers that this measure is objectionable in principle and that it will prove counter-productive in practice. It says that pushing poor people into even greater poverty must increase the temptation to steal, burgle, rob, shoplift, solicit or sell drugs.

Finally, I quote from the National Association of Probation Officers: The effect of reducing benefit by administrative means is a non-judicial form of punishment. The measures will remove from the courts their power to deal with breaches of their own orders". All these matters give grave cause for concern. The basic thread of the argument is the following. While we on this side of the Committee of course strongly support measures to improve law and order, if the measure itself will be counter-productive—as so many organisations outside the Chamber which are concerned with this matter believe to be the case—clearly there is no point in introducing it. We need to consider that matter from a practical point of view.

I was rather surprised to note that there was no reference to the European Convention on Human Rights until late in the debate. These matters were not raised until the intervention, first, of the noble Lord, Lord Goodhart, and then of the noble Lord, Lord Goldsmith. I am not a lawyer and I have not taken legal advice on these matters. However, the implementation of the European Convention on Human Rights with regard to British law is very much in its infancy. The Minister has stated clearly on the face of the Bill: In my view the provisions of the Child Support, Pensions and Social Security Bill are compatible with the Convention rights". I believe that that matter may give rise to problems because we do not know on what advice the Minister has made that statement. To say the least, the exchange between the noble Lords, Lord Goodhart and Lord Goldsmith, suggested that there is some doubt on this matter. It would be helpful to know whether the statement is based on the advice of lawyers in the Department of Social Security or on that of lawyers in the Foreign Office. Where does the legal advice originate? While it is a well-established convention, which I support, that the source of advice to Ministers should not normally be revealed, none the less I believe that we should be given some idea of the authority on whose advice the statement was made.

In another place my honourable friend Mr David Willetts strongly expressed his grave doubts about whether the measure conformed with the convention. He asked on what basis the statement made in another place that the Bill was compatible with the European Convention on Human Rights was justified. Ms Eagle replied in considerable detail on 18th January. Some of the points that she made are technical and legal. As a non-lawyer I find that to some extent they rather fly in the face of common sense. Ms Eagle stated: The obligations under Article 6 of the Convention (the right to a fair trial) are complied with as those affected by this measure will have a right of appeal to an independent tribunal in respect of the decision to withdraw or reduce benefits and the magistrates or Crown Court". will assess the matter. There may be a right of appeal, but that is a right of appeal against a conviction which has not yet been incurred. We are talking about purely an administrative act. Therefore, to talk in terms of a right of appeal seems to me a rather strange way of looking at the matter.

There is an even more technical reply with regard to Article 7 (no punishment without law). A similar point is made to that made by the noble Lord, Lord Goldsmith, this evening; namely, that, Article 7, does not arise as the measure (even if it was regarded as criminal in nature) will only apply to those given community sentences after this Bill has become law and been commenced. There will be no retrospection".—[Official Report, Commons, 18/1/00; WA430.] I do not think that anyone suggested that there would be retrospection. But, be that as it may, it would appear that there is no question of there being no punishment without law; that is to say, without a statute having been passed, but, rather, of whether there should be any punishment without a trial. I give way.

Lord Goldsmith

I am grateful to the noble Lord for giving way. Although Article 7 is said to concern the matter of no punishment without law, it concerns retrospection. That is all it is about. It is about not holding people guilty of criminal offences which were not criminal at the time that they were committed.

7.15 p.m.

Lord Higgins

I entirely defer to the noble Lord's vastly greater knowledge as I have none on this subject. However, I am trying to draw attention to a number of serious problems which we believe need to be addressed.

As regards discrimination, we seem suddenly to have got into the philosophical mode of saying that there is a contract between the community and the state, but that it applies only to people who are on benefit. The people who are on benefit will be penalised by the measure we are discussing. An extra penalty may be imposed on people on benefit. The extra penalty will not be imposed on people who are not on benefit. I should have thought that by any standards that must be discriminatory. Therefore, as I say, I believe that serious problems arise with regard to these matters and their compatibility with the European Convention on Human Rights.

Earlier this afternoon we defended the position of the Minister who replies on behalf of the Government. We understand that that is her duty this evening. However, I wonder whether the practice which was available—indeed, I believe that it is still available in the House of Commons—of asking the opinion of the Law Officers on a particular Bill might be adopted in this instance. Up to now that has not been possible as the Attorney-General and the Solicitor-General have both been in the other place. However, that is no longer the case. Perhaps by the time we reach Report stage the Attorney-General may care to give us a more definitive view on the matter, given the clear division of opinion between the noble Lords, Lord Goodhart and Lord Goldsmith. I leave these legal matters on one side, but I believe that some serious issues have arisen which ought to be considered between now and Report stage.

The noble Lord, Lord Goldsmith, appeared to argue that the penalties we are discussing are not severe. Others have referred to the hardship fund. Many of the people we are discussing claim income support. Another discriminatory aspect arises in that connection in that the penalty that is imposed will depend on which benefit the person involved is claiming. There is a huge difference between the levels of different benefits. I forget the exact figures but perhaps the noble Baroness can remind us of the sums that might be lost in terms of income per week. As I say, a discriminatory aspect arises with regard to the different benefits that are awarded.

The hardship fund is discretionary. I understand from what organisations outside have told me that under the circumstances we are discussing a pregnant woman could find her benefit reduced to 80 per cent of its normal level. A mother with dependent children could find that her benefit is reduced to 60 per cent of its normal level. The benefit may be cut only for a short period of time. On the other hand, it may be cut for a considerable length of time. One cannot say that these are not important penalties. The allegations that are made against people should be examined before a decision is taken.

Lord Goldsmith

Again I am grateful to the noble Lord for giving way. I never said that these measures were not important. I recall that I said, in answer to the intervention of the noble Lord, Lord Phillips of Sudbury, that to the individuals concerned they would be important. I said that in the range of criminal penalties and criminal sanctions (assuming these to be such for these purposes), from the most serious to the least serious—the European Court of Human Rights having said that at the lower end it is not necessary that there should be a finding by a court before an administrative sanction is imposed—in my view, having regard to the features I have identified, these objectively would fall into that lower category. I never suggested that it would not be important to the individuals concerned. Indeed, I believe I said that it would be.

Lord Higgins

I fully accept what the noble Lord said on both points. It is common ground between us that these penalties are severe—that may not be exactly what the noble Lord said—for the people at the front end. I fear this may cause them serious problems. I notice that I have the assent of the noble Baroness, Lady Kennedy of The Shaws, in this regard. They are penalties which will seriously affect individuals, and they will be imposed simply as a result of allegations being made against them.

None the less, we have had a fine debate on this subject. Many important issues have been raised. I am inclined to the take view expressed by the noble Lord, Lord Christopher—again speaking with considerable experience—and I hope that the Government will take the clause away, think very carefully about it, and realise that there are very serious problems here that the Committee may well not accept.

Baroness Hollis of Heigham

As the noble Lord, Lord Higgins, said, we have had a careful, thoughtful and fascinating debate. I do not know about being fascinating, but I shall try to be at least careful and thoughtful in my response.

The proposal that these clauses should not stand part would remove from the Bill our proposals to link entitlement to benefit to compliance with community sentences. The Committee will know that we are reforming the welfare state. We believe that this issue is about contract. In a foreword to the Green Paper A New Contract fir Welfare, the Prime Minister stated: on the basis of a new contract between citizen and state, where we keep a welfare state from which we all benefit but on terms which are fair and clear … It is a contract between us as citizens. It needs to be a fair deal … one which is fair within and between generations". This measure is about rights and responsibilities in relation to benefits—that is why it is a DSS matter; it is not primarily a criminal justice matter. The Government believe that rights to benefits and the fulfilment of responsibilities to society must be clearly linked. Our general approach is that it is right for people of working age who are able to work to do what they can to help themselves back into work and into society. If they do not meet this basic condition, then benefit should not be made available on the same basis as for those who do.

In the case of the community sentence sanction, we do not believe that it is fair, as my noble friends Lord Brookman and Lord Davies of Coity said—nor would it be regarded as such by those who do meet their obligations to society by paying taxes to support those on benefit, by avoiding crime or by assiduously serving the sentences that they are given—that community sentence offenders who do not keep their part of the bargain with society should expect to be supported on the same terms as everyone else. Those who are able to turn up and sign for their benefits but not able to turn up to meet their probation officer, should not expect the same terms.

I acknowledge the point, made particularly by the noble Earl, Lord Russell, that this is an extension of the principle of conditionality that has been within our benefit system for some time. Our benefits system is not, and never has been, a birthright. As my noble friend Lady Kennedy of The Shaws said, it is not simply about needs and entitlement. It is more complicated than that. We impose, as did the previous Government, as a society conditions for the receipt of benefit and, with the reform of the benefit system, we are indeed imposing some new conditions. They are conditions associated with good citizenship, not simply with needs and entitlement.

Underpinning that concept of good citizenship, obviously, is work. The conditionality already in the social security system associated with work and training for work is reflected in measures developed for the New Deal for unemployed people, in the work-focused interviews in the ONE service, and in the longstanding conditions for entitlement to jobseeker's allowance. Those, of course, attract sanctions of up to 26 weeks' loss of benefit.

Earl Russell

Does the Minister understand that when she takes the principle of linking rights and responsibilities as a rule for the imposition of legislation, she is taking a sound principle of private morality and, by importing it into the public sphere, she is turning it into an authoritarian imposition of government judgment? It does not belong here.

Baroness Hollis of Heigham

I do not accept that for one moment. One of the deep divisions between myself and the noble Earl, Lord Russell—I hope I am not doing his position an injustice—is that he believes that someone has a birthright to benefit; an entitlement to benefit that no one has a right to sanction. We do not believe that. Benefit is the result of a decision by taxpayers—all of us—to support people who cannot for good reason support themselves. Where people can support themselves, they should; and where those people fail to abide by other conditions of their benefit entitlement—for example, by turning up for interviews on time and so on—that, too, should attract sanctions.

I do not always agree with the Conservative Benches, obviously, but here there is a profound difference between myself as a representative of the Government and the noble Lord. We believe that if society offers people benefits because they are not in a position to support themselves, society has a right to expect appropriate behaviour from them. I agree with the noble Lord that there can be arguments about what is "appropriate"—I accept that—but that we have the right to impose such conditions and exact sanctions if those conditions are broken seems to be not in dispute. I should be surprised if the Committee felt that benefit was an entitlement come what may in our society.

There is a different kind of conditionality associated with a different kind of good citizenship—the noble Earl, Lord Russell, has pressed us today and on Second Reading about departing outside the realm of benefit—which concerns the preparation for parenting, the Sure Start maternity grant. Payments are to he made on the birth of a child to those in receipt of means-tested benefits and tax credits in exchange for confirmation that they have received appropriate advice from health professionals on maternal health and the health and welfare of the new-born. Previously, all new mothers had to do was to provide evidence of pregnancy; now, if they do not seek and receive that advice, no payment is made. The benefit payment of the Sure Start maternity grant is made conditional on mothers seeking appropriate healthcare, something outside the benefit field.

The completion of community sentences is manifestly a question of good citizenship and, like work and preparation for parenthood, it is beneficial to the individuals themselves. These are criminal sentences and, as noble Lords have described, by virtue of that fact they contain an element of punishment and of reparation. We want compliance so that offenders' debts to society are repaid. But we also want compliance, as my noble friend Lady Massey said, because there is a rehabilitative aspect to community sentences. Completion is, or should be, beneficial to the offender. There may be no obvious direct link between the breach of a community sentence and the need for benefit, as there is between the requirement to seek work and benefit receipt, but those links are partly in the eyes of those speaking today.

We regard looking for work and complying with community sentences as important obligations to society which involve people doing their part to help themselves. As my noble friend Lady Massey said, that may be in terms of work skills, of basic literacy, of the discipline of coming in on time and behaving appropriately. All those matters may be part of a community sentence. It is appropriate behaviour which we hope will result in offenders not continuing to offend. Compliance with community sentences is closely linked to playing a full part in society through work. We do not believe that these issues are unrelated.

This measure is limited in its extent. In no way does it confer powers to extend conditionality beyond breaches of community sentences. Again, I was pressed on this by the noble Earl, Lord Russell. I would not on principle rule out further extensions, but it would be for Parliament to debate whether particular behaviour is sufficiently undesirable and to be so strongly discouraged that it merits the withdrawal of state support via the benefit system.

This measure sits squarely with the direction for the reform of welfare that we should be pursuing. We do not want to continue sending mixed messages about what is and what is not acceptable behaviour by paying money from the public purse to those who have, despite repeated chances, shown themselves not willing to abide by the rules that society has set down. Those originally sentenced to a community sentence rather than a prison sentence who then go on to break it can—I speak now wearing my hat as someone who has served on a city council and represented a rather poor ward for 25 years—make life on our poorer estates an absolute misery for residents. When I have been canvassing over the years those residents have put to me that they are utterly baffled why they as taxpayers are expected to support them with benefit while in the meantime they continue to engage in bullying behaviour, hooligan behaviour and vandalising behaviour. They do not understand why they, as law-abiding residents, should continue not only to accept that behaviour but financially support it by paying benefit while the offenders themselves fail to observe their community sentence.

The Earl of Onslow

I have listened to practically all of this debate. What has come out is that if we take away that benefit, crime will go up. The noble Baroness has not addressed that problem. She has rightly brought up the problem of the poorer estates that are vandalised. But will the taking away of benefit prevent one incidence of aerosol spraying, one television being nicked or one drug being pushed? Until she answers that question, I suggest that we should listen very carefully to what the noble Baroness, Lady Kennedy, said.

7.30 p.m.

Baroness Hollis of Heigham

The noble Earl is absolutely right to say that I have not answered that question. I have not come to it yet. I shall now do so, because that is the whole point of having pilots.

I do not accept the validity of criticisms which focus on this matter as if it were simply a criminal justice measure and see it only as a punishment measure designed to deter breaches, though we believe that also. We hope and expect that it will deter breaches because the completion of their community sentence is in the best interests of offenders. That is why the court in its wisdom made that judgment in the first place. It is not the DSS but the courts which decide that community sentences are the best way of providing punishment, reparation and rehabilitation. I should have thought that your Lordships would want to see anything that strengthens the capacity of the criminal justice system to deliver compliance with community sentences.

I acknowledge that there will be some who interpret the withdrawal of benefit as the punishment for something they have done or failed to do. At this stage, that is not our primary intent. What we are doing is attaching an extra condition to benefit. If you seek benefit, one of the conditions for retaining it is that you comply with a community sentence.

A few noble Lords—primarily those who have considerable expertise in this field—have raised ECHR issues. I refer in particular to the noble Lord, Lord Goodhart, and, to a lesser extent perhaps, the noble Lord, Lord Higgins. Those points were answered fully and elegantly by my noble friend Lord Goldsmith and so I shall not seek to answer the ECHR points in great detail. I shall defer to my noble friend Lord Goldsmith on those points. But I want to say that the statement I have signed on the face of the Bill—under Section 19 of the Human Rights Act 1998—I did not sign lightly; nor is it included in the Bill lightly. I took thorough advice and I sought repeated advice. After that I have had full legal advice. I believe that the case I have outlined, that this measure is part of the redefinition of the principles according to which benefit payments are made, is a strong one and an important element in the defence of any challenges to those measures in the courts. As my noble friend Lord Goldsmith said, we believe that these measures are proportionate to our objective aims and can and will withstand legal challenge.

Lord Goodhart

I am grateful to the Minister for giving way. Can she explain why the Government thought it necessary to impose this penalty immediately rather than wait until the court had in fact confirmed that there had been a breach of the order?

Baroness Hollis of Heigham

I am not going to duck this issue. I shall come on to precisely that point. But the noble Lord, with his experience, and his noble friend Lord Russell will know that in all DSS matters the decision to revoke a benefit on the grounds that there has been an infringement of the conditions of that benefit, whether a failure to turn up for an interview or a failure to hold down a job, is determined by the decision-maker in the DSS. It is no different here. It is determined by the decision-maker in the DSS on the evidence submitted by the probation officer.

Lord Goodhart

With great respect, who is a decision-maker here? It seems to me that under Clause 61 the consequences follow automatically. As soon as the information is laid, the consequences follow. No one takes a decision on that until the court does.

Baroness Hollis of Heigham

They no more or no less make a decision than they do on, for example, sanctioning JSA for failure to observe work-related conditions or, for example, the removal of some of the incapacity benefits—DLA and so on—on the grounds of medical evidence. In one case we get information from the employer and the decision-maker makes that decision; in another case the information on medical benefits will come from the doctor and the decision-maker—the DSS—will take that decision. In this case the information will come from the probation officer and the DSS decision-maker will make that decision. The analogy is complete. That is how the DSS works.

Decisions about the infringement of conditions of benefit in all of these areas have, ever since the DSS was established, been made by the DSS. That is why it is so important for me to try to seek to explain to the Committee that what we are concerned about here is the condition of benefit, as opposed to questions of second punishments and so on, on which, as a result, the decision-maker in the DSS will say that the benefit conditions have been infringed in exactly the same way as the doctor may say it or the employer may say it. On the basis of that information from the probation officer, the decision-maker will make a judgment.

The noble Lord, Lord Dholakia, raised a point. However, as the noble Lord is not in his place, I shall write to him. The noble Baroness, Lady Kennedy, made a similar point. She suggested that these measures would be particularly harsh in their effect on women either because—I do not wish to misquote her—more women may be receiving community sentences or, alternatively, and possibly as well, because they have additional responsibilities that might make it more difficult for them to comply with community sentences. It is true that women have additional responsibilities. That is perhaps one reason why very few of them are given community sentences. Only 14 per cent of the 27,000 sentences given in 1998 were to women. But in laying down the conditions for those sentences, the courts and the Probation Service already take care to set conditions which take into account their other responsibilities. I would be amazed if in the case mentioned by my noble friend—the person whose child was seriously ill during the night—the probation officer did not think that that was a reasonable ground for not turning up for an interview the next day.

Baroness Kennedy of The Shaws

Perhaps I may deal with that point because it concerns the position of the probation officer being equivalent to, for example, a doctor saying that someone is no longer disabled. It really is not equivalent because what probation officers will say is that the duty rests with them. If someone is 20 minutes late, it is taken as a nonattendance. Whatever their excuse for being late, a non-attendance is marked as a failure. That is one failure. You need only one other failure. I mentioned a child keeping his mother awake at night, perhaps because of nightmares or earache. That is not enough to call out a doctor in the middle of the night; and what the Probation Service is not allowed to accept, and does not get from doctors, is retrospective medical notes. Doctors are not prepared to give families retrospective medical notes. The probation officer is therefore faced with two instances of failure to comply and an automatic obligation to inform the court and, in turn now, the benefit office. That is where the Probation Service feels most in despair about this requirement from government.

Baroness Hollis of Heigham

I should like to make two points in response. First, as my noble friend will know, women, including those with families and additional responsibilities, comply far better with community sentences than do men. If my noble friend's point was right, they would be less likely to comply.

Secondly, if my noble friend was right to say that their reasons were not acceptable, surely that would be taken into account by the courts. Perhaps I may proceed with this point before noble Lords intervene. We know that, of the 130,000 community orders issued each year, a little under 30,000 are breached. Less than one-half of 1 per cent of those, when they are reported to the courts, are not upheld by the courts. That amounts to around 400 cases out of a total of 30,000. Furthermore, 200 or so of those 400 cases are withdrawn.

In terms of the acceptability of the behaviour of probation officers in the judgment of the courts in upholding that behaviour, there is a far more professional standard of evidence and an infinitely higher standard of acceptance of that evidence. By contrast, in the case of doctors' submissions on DLA cases, around 40 per cent of decisions are overturned on appeal. Similarly, a high percentage of JSA cases are overturned on employers' evidence at tribunal. In that sense, the standard of evidence submitted by probation officers to the DSS that a benefit has been infringed is not only higher, but also is almost universally upheld by the courts.

Other noble Lords have raised questions as regards the timing of the sanction. I believe that the noble Lord, Lord Baker, referred to this. It is imposed at the point when the offender is referred back to the court for an "alleged breach" rather than after the court has found the breach proven. I hope that I am not putting an argument into the noble Lord's mouth, but several noble Lords have made that point. Our procedures follow those already in place as regards social security matters.

Lord Baker of Dorking

I did not raise the matter at all.

Baroness Hollis of Heigham

I am grateful to the noble Lord for confirming that he agrees with the point I am making here.

I repeat: our procedures here are entirely in line with the way that social security matters have worked for 50 years. As in all benefit sanctions, the decision maker in the Benefits Agency will review evidence. That happens now with evidence from a doctor or employer. For example, an employer might state that someone should not be eligible for benefit because they left their employment voluntarily, but the claimant may argue that it was in fact a case of constructive dismissal. A case such as that poses a much more grey and difficult problem for the decision maker than do the circumstances we are considering here. The decision maker will come to a conclusion based on information purveyed by the probation officer; information which, as I have already said, is almost universally upheld by the courts.

The decision maker will reduce benefit as provided for in the Bill on the basis of a certificate from the Probation Service that an offender has failed to observe his community sentence and has therefore been referred back to court for a breach. The offender then has a right of appeal against the benefit decision as he would have in the case of other benefit sanctions or decisions by the appeals service. In addition, the criminal court will hear and consider all the evidence relating to the breach to determine whether the breach is proven. That remains entirely a matter for the criminal courts.

A number of questions about Scotland were put by the noble Baroness, Lady Carnegy of Lour, supported by the noble Earl. Obviously DSS matters are not devolved. I was asked specifically, as this matter is devolved to Scotland, whether it would be infra vires to run a pilot in Scotland. As I say, that: is a reserved matter and it would therefore be infra vires to run such a pilot in Scotland.

Baroness Carnegy of Lour

Will the Government now capitulate and not hold a pilot or will they ask the Scottish Parliament to do so?

Baroness Hollis of Heigham

In Scotland at present, loss of benefit can occur when information is presented to a justice of the peace rather than a sheriff. The decision to withdraw benefit rests with an impartial decision maker at the Benefits Agency in Scotland in the same way as in England and Wales. This follows when proceedings are commenced by the issue of a warrant.

If I have not fully answered the noble Baroness's question, perhaps I may do so in writing. I do not for a moment profess to be very familiar with Scottish law.

Baroness Carnegy of Lour

I wish to press the noble Baroness only on the pilot schemes. If Scotland is not to run pilot schemes on its own system because it is a devolved matter, that is very serious indeed. Surely the Government need to reconcile this with the Scots Parliament and have pilot schemes there, organised by them.

7.45 p.m.

Baroness Hollis of Heigham

I take the point made by the noble Baroness and I shall seek further advice on it. As I said in my reply to the noble Earl, my understanding is that although DSS matters are not devolved, the process of jurisdiction is devolved. That is the reason for the element of complexity here and that is why, at this stage, we do not propose to extend the pilot schemes to Scotland.

We believe that the benefits sanction needs to be implemented quickly and with certainty if it is to get across the message that community sentences are to be respected and that observance of a community sentence forms an appropriate part of entitlement to benefit. That is what we are seeking to achieve here. Having an automatic sanction which commences at the point when the probation officer notifies the department that someone is not observing their community sentence and is therefore having their case referred to court is a simple and effective deterrent to offenders who might otherwise be tempted to breach their sentence.

I mentioned earlier that we all know that the Probation Service does not lightly refer people back to the courts. We know also that court decisions made following those referrals are almost invariably upheld.

The noble Earl, Lord Onslow, the noble Lord. Lord Windlesham, the right reverend Prelate the Bishop of Hereford and my noble friend Lord Christopher all pressed me on the point that this measure would be counter-productive in that it will encourage more crime. They have argued that once benefit is removed, people become poorer and thus they will be incited to commit more crimes. However, when we examine community sentences, I wonder whether that is true. I take the point that that might happen in the case of drug offences, which were mentioned by the noble Lord, Lord Windlesham. But community sentences are also imposed for violent assault. Assault is not a crime connected to poverty; it is connected to unacceptable behaviour. Other sentences are imposed for burglary, theft and motoring offences. Again, those offences have little to do with poverty but a great deal to do with law-breaking and lawlessness. If someone tears around an estate in a car he has stolen and does not have a licence to drive, that has little to do with poverty. I do not see why someone's propensity to commit crime will be increased—

Earl Russell

I think that the Minister has missed the point here. We are not here discussing the nature of the previous offence. We are concerned with whether the absence of benefit creates an extra incentive to crime.

Baroness Hollis of Heigham

That, of course, is precisely the kind of matter that will be reviewed in the pilot studies. We are not aiming for immediate implementation across the entire country should Parliament so agree. We shall run pilot schemes to see whether some of the concerns raised by noble Lords tonight are validated by the evidence. We shall examine whether a certain type of behaviour should be met by a sanction on benefit and whether that sanction leads to greater compliance with community sentences. That, I am sure, all noble Lords would wish to see.

We hope that the existence of a sanction will mean that it will not have to be implemented very often. A clear message is to be given that benefit will be put at risk if the sentence is breached. It will be given by the court on sentencing and by the Probation Service both on first contact with the offender and after the first unacceptable failure to comply with the sentence. The sanction will not be invoked until the second offence. In my view, that will give offenders a strong incentive to comply with their sentences. It will focus their minds on the need to keep in touch with their probation officers, turn up for work and turn up to meetings in exactly the same way as they manage to turn up to sign on and collect their benefit. If they can sign on for benefit, they should be able to attend interviews with their probation officers. If, after a sanction, they feel compelled to commit further crimes, then, as now, they will face the full rigour of the law. There is no need for offenders to turn to crime as a result of these measures. All they have to do is to comply with their sentences.

The noble Lords, Lord Windlesham and Lord Carlisle, suggested that the clear message behind these sanctions would not be received because offending is often unplanned and opportunistic and thus leads to a failure to keep to a community sentence. That suggests that there is nothing we can do to influence the behaviour of certain offenders. I do not accept that. I do not think that offenders who keep repeating their offending behaviour should use that behaviour as a form of blackmail in order to avoid sanctions to benefit.

Indeed, that line is not acceptable to the Front Bench in the House of Commons. I was particularly interested in the remarks made by the noble Lord, Lord Higgins, in which he appeared to give rather greater weight to the views expressed by the citizens advice bureaux than to those of his own Front Bench in the other place. For example, Mr Eric Pickles, who leads for the Conservative Party on this Bill, stated, I believe that the Government are doing the right thing". He continued, If a person is in receipt of benefit, why should we have to shell out money so that person can defy a lawful order of the court? I am not in the business of funding people who break the law". He went on to say that if the provision did not work, we should tighten up the punishments further still.

The noble Lord's honourable friend, Edward Leigh, who also served on the committee and is a trained lawyer, said: The Government's action is absolutely right. There will be a tremendous cheer for what they are doing in the housing estates, where people are fed up with those who seem to have no idea that society is made not just by rights but by duties". That was the position of the Conservative Front Bench, who want to be strong, tough and vigilant in regard to crime—a position which I note was not shared by the noble Lord, Lord Higgins, in this debate.

Certainty of outcome has been shown to improve compliance. A recent example is the home detention curfew system which has had a success rate of over 90 per cent. All the criminology that I was taught as a student makes the point that the certainty of either being caught or being punished—and there is an absolute certainty in this case as regards loss of benefit if there is a second offence or failure to comply with a community sentence—is far more effective than the severity of the sentence.

As a result, I am confident that the Probation Service will operate the scheme in a professional manner. It will not want the measures in the Bill to fail in their deterrent effect as a result of any reluctance on its part to refer offenders to court. The more successful this measure is in encouraging compliance—and that is what the pilots should tell us—the fewer will be the cases that the Probation Service will have to refer to court, enabling it to use its resources to assist offenders to benefit from their sentences rather than on prosecuting breaches. Therefore, I hope that the Probation Service will see this as an important new weapon in its armoury to encourage offenders to comply with their sentences rather than as undermining any work that it may be doing with offenders.

A second point made in this debate is that as a result, this provision affects not just the offender—and Members of the Committee may feel it appropriate that the offender should feel some hardship; after all, this is meant to bite on the offender—but that there could he a problem for the offender's dependants, possibly including a partner and children. The period of the benefit sanction is limited to four weeks. I do not believe that anyone would be made homeless as a result of such a sanction. I remind the Committee—

Earl Russell

I beg the Minister's pardon. Four weeks is for the pilot schemes; however, I understand that when the Bill is operative the period might be extended to 26 weeks.

Baroness Hollis of Heigham

In which case regulations would have to be made and it would be for your Lordships to debate them, as it would be for another place.

I remind the Committee that employment-related sanctions and JSA already run for up to 26 weeks. We recognise that offenders with families may still decide to breach their sentence. For those receiving income support, which will include the majority of the most vulnerable people subject to these provisions, benefit will continue to be paid, albeit at a reduced rate, for the four-week period. In other words, we have in place a system of hardship payments broadly similar to that which has operated for many years in cases where employment-related sanctions are imposed. In extreme cases, to protect the position of dependants, payments of JSA, including hardship payments, may be split. If, for example, someone is vulnerable—responsible for a child, where the claimant or partner is disabled or pregnant, is a carer, has a chronic medical condition or has left care within the past three years—people do not have to wait a fortnight for the hardship payments; they can he paid immediately.

I was asked about the consequences and the evaluation of this policy. It is subject to a subsequent amendment, but perhaps I may comment briefly. The experience of the pilots will determine much better than can speculation to what extent our hopes or the concerns expressed by Members of the Committee are realised. I shall say more about that in relation to the next amendment.

The evaluation exercise will examine precisely the issues that have been raised, including crime levels, breaches, benefit claiming, jobseeking, as well as practical issues in relation to the different parties operating the sanction and the take-up of hardship provisions. We shall not extend the policy nation-wide before we have considered carefully the findings of the evaluation.

In conclusion, this is a measure concerned with the conditions attached to benefit. To describe it as an extension of benefit conditionality rather than as punishment that offends justice is not simply being sophistical; it is a genuine difference of perspective, concerned with justice between the majority of members of society who, through their taxes, contribute to the support of people on benefit and those who repeatedly break community sentences, to the disturbance, harassment and often real grief of the areas in which they live, yet who none the less expect to be supported even though they fail to meet their obligations and act with impunity.

I urge Members of the Committee to understand where the Government are coming from. I ask the Committee to appreciate the weight that will be carried by the pilots to see whether our hopes or the concerns expressed are realised. In the understanding of where the Government are coming from—namely, that we think it right and appropriate to attach these conditions to benefit if a community sentence is breached—I commend these clauses to the Committee.

Lord Windlesham

I shall be brief. In our adversarial system it is never easy to get governments to change course. Once legislative proposals have been announced and publicised—especially if they are aimed at the general public—and have passed through the House of Commons, it is unrealistic to suppose that they will be readily abandoned or even amended.

It is the duty of this place to exercise some pressure and to bring to bear the weight of informed public opinion. Although a number of Government Back-Benchers spoke in support of the proposal, the debate was notable for the views of those with professional experience of dealing with offenders, sometimes a lifetime's experience, such as the noble Lord., Lord Christopher, on the Government Bench, the noble Baroness, Lady Stern, on the Cross-Benches, the noble Baroness, Lady Kennedy, on the Government Benches, and the noble Lord, Lord Dholakia, on the Liberal Democrat Benches. These are people who have given a large part of their working lives to dealing with offenders. Their comments were not put forward on the basis of assertion, or of party loyalty. It goes much deeper than that.

In replying, the noble Baroness gave a forthright defence. It was an able defence, as we have come to expect from her. But every part of the proposal was defended and justified without any indication of giving consideration as to how it might be changed in some respect.

Baroness Hollis of Heigham

I apologise for intervening after having spoken for so long. Will the noble Lord not accept my point about pilots and their full evaluation before the scheme is unrolled? Is it not appropriate to see whether the proposal works, and whether the noble Lord's fears are validated?

Lord Windlesham

I take that for granted. The pilot scheme was part of the blueprint from the start. That is not a concession. It was part of the original design, and thank goodness it was. We shall await the results of the pilot scheme with interest.

The noble Lords and I who put our names to the Motion do not intend to oppose the Question this evening that Clause 61 shall stand part of the Bill, nor the following clauses, Clauses 62 to 65. However, we shall certainly return to this matter again on Report. Unless the Government have a change of heart in the interval, the result may be very different.

Clause 61 agreed to.

Baroness Amos

I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee stage begin again not before 8.59 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.