Social Security (Breach of Community Order) Regulations 2001

HL Deb 02 April 2001 vol 624 cc639-55

5.11 p.m.

Baroness Hollis of Heigham

rose to move, That the draft regulations laid before the House on 20th March be approved [12th Report from the Joint Committee].

The noble Baroness said: My Lords, in moving the regulations, I shall speak also to the Motion tabled by the noble Earl, Lord Russell. Sections 62 to 66 of the Child Support, Pensions and Social Security Act allow specific benefits to be reduced or withdrawn from community sentence defaulters. Where a court has determined that a person has failed to comply with the requirements of a designated community sentence, these sections allow the Secretary of State to impose a benefit sanction by reducing or withdrawing specific benefits and training allowances.

The provisions were debated at length during the passage of the Bill and I do not intend to return to the arguments today. However, the Act inevitably left much of the detail to secondary legislation. The regulations before the House today provide that detail. But before outlining the contents of the regulations, I should like to spend some time describing how we shall introduce the provisions on a practical level.

It was always our intention to pilot and evaluate the measures before making any decision to extend them on a national basis. I can confirm, therefore, that these pilots will start in October this year and will last for one year. For an offender to be included in the pilots, he must come under the supervision of the probation service in one of the four pilot areas. Using figures supplied by the Home Office, we do not expect more than 3,000 claims over the year of the pilot exercise.

How will the pilot schemes operate? The first point to emphasise is that each offender will have ample opportunity to comply with the terms of his order before any consideration is given to imposing a sanction. He will know well in advance that his benefit is at risk if he breaches, having been initially warned by the court at the time of sentencing about the possible consequences of failing to comply with the community order. This warning will be reinforced by his probation officer when he commences his order.

It is for the probation service to determine when an offender should be returned to court for breach proceedings. Under national standards for the supervision of offenders in the community, offenders must be returned to court no later than a second unacceptable failure to comply. The probation service uses its professional judgment as to what is an acceptable or unacceptable failure, within Home Office guidelines.

Once the referral to court has been made. the first step is for the probation service to notify the Benefits Agency that the offender has been referred to court for breach proceedings. When the agency receives this information, it will issue a warning letter to the offender irrespective of whether he is on one of the affected benefits or not. This letter will advise that, if the court goes on to determine that he has been in breach of the order and he is in receipt of one of the relevant benefits or training allowances, he will incur a benefit sanction. In this way, the offender is made aware once again of the link between compliance with his community sentence and benefit receipt.

If the court then goes on to determine that an offender is in breach of the terms of his community nity sentence, the probation service will notify the Benefits Agency again. The agency will then undertake a check to confirm that the offender is in receipt of one of the relevant benefits or training allowances at that time.

There is no element of discretion about the imposition of the benefit sanction. If a court deems that an offender is in breach, then a sanction must be imposed. If the offender is not in receipt of one of the relevant benefits when the check is made, the Benefits Agency will retain the notification and check on a weekly basis for a further four weeks to see whether a claim is made. If the offender does make a claim in this period, the sanction will be applied for the remainder of the four-week period from when it would have started had a claim been held.

I turn to the pilots and evaluation. We fully intend to conduct a full and independent evaluation of the policy. A competitive tendering exercise has awarded the contract to an independent Oxford-based research organisation. Perhaps I may take a little time to detail the main aims of the evaluation. First, we want to assess the operational impact on the Benefits Agency, the probation service and the Employment Service. How do we best ensure good liaison between the parties involved? What are the implications for staff? Are there resource implications? By examining how the measures operate in practice, we will identify any improvements needed in procedures.

Secondly, we want to examine the behavioural impact of the sanctions on offenders and others involved. For example, do the benefit sanctions encourage greater compliance with community sentences or more active job-seeking?

These regulations provide the detail for the imposition of a benefit sanction for those offenders under particular community sentences and in receipt of specific benefits or training allowances.

Regulation 2 prescribes which training allowances, paid under Section 2 of the Employment and Training Act 1973, are affected by these provisions. These are the programme known as Work-based Learning for Adults and the New Deals for the unemployed. Some types of payments under Section 2 of the Act, such as those payable in employment zones, are excluded from these provisions.

Regulation 3 prescribes the period during which a breach of community order sanction is to apply to a person. It prescribes the commencement date and duration of the sanction period, both for those in receipt of one of the prescribed benefits at the time when the Secretary of State is notified of the court's decision and those who claim those benefits during the period in which the sanction may be applied. For the pilots, the benefit sanction will be imposed for four weeks.

Regulation 4 prescribes the percentage reductions to be applied to the amount of income support payable to a person during the period of a sanction; sets out the minimum amount of benefit which is to remain in payment; and provides for the rounding of amounts and for the date on which changes in the rate of benefit payable are to take effect. Income support is not withdrawn from an offender incurring a sanction under these provisions. It is reduced by 40 per cent of the single adult rate unless the claimant or a member of the family unit is either pregnant or seriously ill when the reduction is limited to 20 per cent of this reduction.

Regulation 5 prescribes that, where one member of a joint-claim couple is determined to have breached a community sentence, the offender is sanctioned on his or her part of the benefit while the "innocent" member continues to receive his or her part of the benefit entitlement provided that this person continues to meet the conditions for receipt of jobseeker's allowance and is not subject to a benefit sanction in his or her own right.

Regulations 6 to 11 prescribe the circumstances in which a person who is determined to have breached a community sentence is to be treated as a person in hardship and, therefore, entitled to apply for a reduced rate of income-based jobseeker's allowance. These provisions largely replicate the existing hardship provisions in the Jobseeker's Allowance Regulations 1996.

Hardship payments are likely to be made where the offender has no alternative source of finance and is likely to suffer hardship as a result of the imposition of the benefit sanction. Offenders in defined vulnerable groups can apply for a hardship payment immediately. These groups encompass family units where a member is pregnant, sick or disabled or where there are children. Where the offender or his family's personal circumstances do not include one of these categories, he may apply for a hardship payment two weeks after the sanction has been applied. A hardship payment is assessed by deducting 40 per cent of the single person's allowance from the overall benefit entitlement, or 20 per cent if the offender or a member of his family comes within a vulnerable group.

Payments relating to employment programmes, which will continue in payment during this period of a sanction under these provisions, are disregarded in the assessment of resources available to the individual or family where a claim for hardship payment is made.

Regulations 12 to 17 make similar provision to those in Regulations 6 to I1 in relation to the payment of hardship payments to members of joint-claim jobseeker's allowance couples. These provisions largely replicate the existing provisions in the Jobseeker's Allowance (Joint Claims) Regulations 2000.

Regulations 18 to 20 provide for the exchange of information from the probation service to the Benefits Agency from the initial notification of the start of breach proceedings to the reimbursement of benefit if the offender successfully appeals against the court determination.

Regulation 18 requires the probation service to provide to the Secretary of State in writing certain information relating to the offender as soon as information alleging a failure to comply with a relevant community order has been laid before the court. This will enable the Benefits Agency to send a warning letter. Regulation 19 requires the probation service to provide to the Secretary of State in writing certain information relating to the offender as soon as a court has determined that a failure to comply with a relevant order has occurred. Regulation 20 requires the probation service to provide to the Secretary of State in writing certain information relating to the offender as soon as a court has quashed or set aside on appeal an earlier determination that a failure to comply with a relevant order has occurred. Regulation 21 allows information relating to community orders or social security to be retained and used for the purposes of evaluating and monitoring the effect of this particular benefit sanction and for the purposes of maintaining statistics. This is to allow the evaluation to be carried out.

These regulations set out the details of how the linking of entitlement to benefits with compliance with community sentences will work in practice. The benefit sanction underlines that rights to benefits should be matched by responsibilities to society, and that includes the condition of entitlement to benefit. It makes it clear that rights to support from the state are conditional on offenders fulfilling their wider obligation to society to comply with their community sentences.

Finally, I confirm that these regulations are compatible with the rights and freedoms under the European Convention on Human Rights. I commend these regulations to the House. I beg to move.

Moved, That the draft regulations laid before the House on 20th March be approved [12th Report from the Joint Committee].—(Baroness Hollis of Heigham.)

Earl Russell

My Lords, I should like to speak to the Motion which stands in my name, which states: That this House calls on Her Majesty's Government to withdraw the Social Security (Breach of Community Order) Regulations 2001 and lay new regulations which may only be brought into force by a further order which shall be subject to the approval of both Houses of Parliament". The Minister said that she would speak to it, but I did not hear that she had very much to say about it. From our past exchanges I believe that the Minister is aware what it is that I want to know. My complaint here is that the proposal involved in these regulations for benefit sanctions on those who are in breach of community orders is based on insufficient information. We want sufficient information before we can decide whether any such measure can be justified or defended.

I hope that the Minister may be able to provide at least a little assistance on the first matter. I should like to know with more precision exactly what information will be collected in the course of the pilots. I should like to know what income those who are subject to these sanctions will have left to live on. I have here the Home Office circular which says that the object includes, to examine the impact on offenders' compliance with sentence requirements, offending behaviour, claiming behaviour, compliance with training schemes, financial circumstances, and to assess any additional cost that the scheme incurs". That is very mildly encouraging, but your Lordships will agree that the focus is much more on addressing offending behaviour than the financial circumstances of the claimant. It is an extremely imprecise reference. If the Minister were able to flesh that out a bit and provide a little more precision I would find it extremely helpful.

We also want to know what kind of effect such sanctions are likely to have on the behaviour of the person who suffers them; namely, whether, as has been suggested by many people before, they tend to increase rather than reduce crime. I hope we all agree that if the measures that we are discussing increase rather than decrease crime, to that extent they are misguided. We should like to know the effect on the health of those concerned. Can the Minister tell us how many people subject to the pilots will be checked out if they disappear from the records? If they vanish will t hat fact be recorded? Will the pilots say that x percentage of people could not be traced? Will the pilots record what percentage of the people concerned became homeless? If the Minister is able to reply "yes" to all those questions it will be extremely helpful.

I also draw attention to two items reported in this morning's Independent. One is a Private Member's Bill to be introduced by Mr Woolas, Member for Oldham East and Saddleworth, which proposes to deprive people of social security benefits, including housing benefit—therefore, on a much wider basis than these regulations—for failure to include their names on the electoral register. I should welcome an assurance that the Government will give no support to any such Private Member's Bill. It rather suggests what I have feared for some time; namely, that the tendency to deprive people of social security benefits for any behaviour that we happen not to like is in danger of becoming addictive. That is something which needs attention.

The second matter is a press release put out today by the National Association of Probation Officers. The association advises its members to refuse to impose this sanction because it believes its effect is likely to be to increase crime. I have the press release here and, if she wishes, I can show it to the Minister afterwards. The position of someone in the public service who is asked to do what he believes to be wrong in terms of his own professional standards is an extremely difficult one. Everyone who has been in public service since the process of centralisation began in 1988 has experiences which lead him to sympathise. Speaking for myself, I would consider resigning from my profession rather than directly disobeying a lawful command. But in those circumstances I must ask the Minister for an assurance that if any members of the probation service resigned rather than comply with this measure they would not suffer the penalty of voluntary unemployment. I believe that that is a point of some importance.

As the Minister pointed out, this is a mandatory sentence and there is no element of discretion in this measure. There was no blush on her face as she said it, and I was sorry to observe that fact. When we engaged on this matter in the Social Security Fraud Bill the Minister attempted to argue that the research that we wanted carried out was impossible. I have consulted my honourable friend Professor Webb, whose expertise in matters of social policy research will be recognised by the Minister, as indeed I recognise hers. My honourable friend dealt with the Minister's point that in relation to the Social Security Fraud Bill one would have too small a sample. He said that there was no objection whatever to testing the effect of sanctions on a rather larger sample of those who had experienced it. Under the New Deal in the quarter January to March 1999, 4,636 people were sanctioned. At the end of that quarter there was a total of 48,750 subject to sanctions. I do not believe that even the Minister asked for a sample quite as large as that. It would be perfectly easy to take that sample, or some part of it, and assess the effect. That would create a rebuttable presumption that the effect in this case might be similar.

If the Minister wished to rebut that presumption she would have to find a way to do research on the present sample. I observe the noble Baroness to shake her head, but if she cannot get the information that we need to evaluate this matter she should fall back on the good traditional maxim "when in doubt, don't". The Department of Social Security has always said that it monitors the consequence of every measure that it introduces. If it cannot monitor the consequence of this one it should not do it.

The Minister invoked hardship payments, as one was sure she would. I simply do not understand how anybody can suffer a loss of 40 per cent of benefit without being in hardship. If that is possible, benefit levels are 40 per cent too high. One cannot see even the Treasury recommending that one should go before the electorate and defend a 40 per cent cut in the overall levels of benefit, especially in the light of the arguments of the Acheson Report that the present levels are too low.

Mr Harry Fletcher argues on behalf of the National Association of Probation Officers that, the only alternative source of income will be begging or stealing. This will increase crime". There is research accessible to the Government which suggests that there might be something in that. Ministers have referred me over and over again to research reports 15, 18 and 86 of the Department for Education and Employment. There is no quantitative information in those reports. There are a series of impressionistic comments and general reflections.

I have in my hand a quotation from someone who had been disentitled. He said: They're asking for trouble, they're asking for people to steal". That is not, by itself, a research finding, but it creates a research question that calls for a research answer. We have a study of 16 and 17 year-olds in South Glamorgan, published in 1994. It was an in-depth study of a sample of 26, of whom 20 had become criminal—four of them on a full-time basis. I admit that that was a total disentitlement, and not a 40 per cent disentitlement, so the effect could be different.

But that is a question on which information should be available to us. It seems to me a lamentable lack of curiosity that that information is not there.

It is also suggested in those research reports that to a great extent what happens is that people borrow from relatives, friends and other people. That may well be the case. If so, it underlines the point I have made many times that we need information on the level of debt among those on social security benefit. It also raises what I find rather the more worrying reflection that the impact of these sanctions may weigh quite disproportionately on the solitary. The solitary and misfits are over-represented anyway among those on social security. If they experience a degree of hardship which others with stable families do not, that may well have a discriminatory effect which I do not believe is what the Government intend. But if that is what they are doing, they ought to know.

We shall be told in return a great deal about rights and responsibilities. We are dealing with the question of how severe the effect of the sanctions may be. The Minister will agree that the right to life is a human right. It is not contingent on the discharge of responsibilities. Since the noble and learned Lord, Lord Williams of Mostyn, played such a distinguished part in approving the protocol of the European Convention on Human Rights, the death penalty in this country has been illegal, without any reference to responsibilities. I supported that and I applauded it, as did many on the Government Benches. The right to eat is a human right. It is not contingent on responsibilities. Convicted prisoners enjoy it; convicted terrorists enjoy it. If the Minister says that what we are debating is on a quite different level, that is an evidential proposition which she must be prepared to quote evidence to sustain. I hope that she will agree to do so. If she does not, she will be taking a very large leap in the dark in a way which I regard as incompatible with the Department of Social Security's high standards of respect for evidence.

I look forward to the noble Baroness's reply. Whatever happens, in the not too far distant future this issue, in one form or another, must go before the voters. I shall listen to them with great interest, as I shall to the Minister.

5.30 p.m.

Lord Windlesham

My Lords, the order before the House is the final chapter of one of the more extraordinary parliamentary episodes of the current Session. It has taken 12 pages to produce what is effectively a face-saving settlement to a controversy that occupied a great deal of time earlier in the Session. The Government climbed down after considerable pressure from all parts of the House, including their own Benches. Ministers decided to abandon what was one of the most inappropriate penal sanctions ever put before Parliament. The sanction was that after one warning an offender who was subject to a community penalty—very often a probation order, but a range of other community penalties as well—and who was believed to have committed a further breach of the order would have his or her welfare benefits reduced or withdrawn in advance of any court hearing.

After considerable opposition to that proposal, it was moderated by the Secretary of State for Social Security. I acknowledge the helpful part played by the noble Baroness, Lady Hollis, in the compromise that the sanction would be retained, but only until after a finding of guilt by the court. That is where we now are. However, the Department of Social Security has no business to be involved in penalties for breaches of a court order at all. What has happened is that the Home Office too has been ploughing its furrow on the same issue; that is, breaches of community orders.

In a major Act of Parliament carried in the same Session—the Criminal Justice and Court Services Act 2000—there are penalties for breaches of community orders. I see the noble Lord, Lord Dholakia, in his place. My recollection is that he took part, as I did, in debates during that Bill in which we discussed what would be the appropriate penal response to a second breach. The Lord Chief Justice spoke on the same issue at Report stage. In brief, where a court has found that there has been a second breach after a warning, a mandatory sentence of imprisonment will be imposed. In this way, many of the Department of Social Security's clients will end up in custody in any event so the whole purpose of the order will have been defeated.

That is all I want to say. I am an intruder on the territory normally occupied so eloquently and effectively by my noble friend Lord Higgins. My noble friend suggested that I might like to take this opportunity to speak on the issue again, and I have taken advantage of the invitation to do so.

Viscount Tenby

My Lords, as I spoke briefly on the issue to which the noble Lord, Lord Windlesham, referred, perhaps I may from the Cross Benches reiterate my anxiety about the Department of Social Security coming into what is basically a penal matter. The noble Lord, Lord Windlesham, pointed that out. I also noted with great interest the remarks made by the noble Earl, Lord Russell.

I recall saying on the previous occasion that this matter was debated that I could not understand why the Home Office permitted the department to trespass on its territory in this way. According to my knowledge of the Home Office, the department must have had a very powerful and persuasive spokesman. However, quite apart from those considerations, a court of law, in the form of the magistrates' court, will deal with this. As the noble Earl said, if there are two breaches of a community service order, these people will in any case end up in custody.

Surely the most serious argument here is that the probation service has stated in effect that it is not going to operate the regulations, trial or no trial. One must also hear in mind the fact that if benefit is removed from such people who are, on the whole, completely disorganised individuals whose daily lives have been disordered for years until eventually they come before the court, the chances are that they will reoffered. They will have to do that in order to buy food, meet their heating costs and so forth.

I hope that the Minister will listen carefully to the remarks that have been made during this short debate. I know that she will because she is most conscientious and meticulous in these matters. Perhaps she will be able to accommodate, at least to an extent, the views of noble Lords in her reply.

Lord Higgins

My Lords, I have listened with great interest to the contribution from the noble Earl, Lord Russell, as well as to the interventions from my noble friend Lord Windlesham and from the noble Viscount, Lord Tenby. We debated this matter at considerable length and, if I may say, with considerable passion at earlier stages. My understanding is that the order effectively implements what was then the state of play that we had reached.

Although I have checked my post today, I have not received any further notice or press release from the probation service. If the officers are responding in the terms mentioned by the noble Earl, that is a matter which we shall need to consider very carefully. Having said that, I look forward to the Minister's comments on what is obviously an important matter involving considerable points of principle.

Lord Dholakia

My Lords, I apologise for intruding on the debate, given that the noble Lord, Lord Windlesham, has spoken for many noble Lords who were instrumental in raising this issue on a number of occasions when the relevant criminal justice legislation was passing through your Lordships' House. I am delighted now to be able to support the resolution set down in the name of my noble friend Lord Russell.

I note that the Minister has indicated that pilot schemes will be set up and will commence in October. Those of us who work in the field of criminal justice are aware of the developments. I believe that we do not necessarily need to run the pilot schemes to find out the precise impact such rules will have on offenders who have breached their community orders. Sufficient research is already available which gives a good indication of what is being sought here.

As a result of an all-party amendment proposed by the noble Lord, Lord Windlesham, the Government were prevented from applying this sanction before the case had come before the court. However, even with this improvement, the measure is counter-productive and bound to increase crime. Pushing people into even greater poverty must increase the temptation to steal, commit burglary, shoplift, solicit for prostitution or sell drugs.

The measure is effectively a double punishment and therefore is unjust. The courts will retain all their current powers to impose penalties for breach of orders, ranging from fines to imprisonment, and the withdrawal of benefits will be additional to whatever penalty the court imposes. Moreover, the double punishment will apply only to the poorest offenders because it will not affect offenders who are in work.

Inevitably, it will also affect other innocent family members, including young children, through its impact on total family income. As such, it surely raises a moral question about how society should deal with the families of offenders.

The national standards of the probation service now require that an offender must be returned to court for breach of an order on a second failure to comply. This could mean being 20 minutes to half an hour late for a probation or community service appointment on two occasions. The degree of hardship involved in the reduction or withdrawal of benefit will often be wholly disproportionate to the seriousness of the offence, especially as it will be additional to whatever punishment the court decides is appropriate for the breach.

There is a real risk that the measure could deter some probation officers from taking people back to court for breach of an order. We support the Government's view that community sentences should be strictly enforced. There is no problem about that. Furthermore, probation officers should be rigorous in returning people to court for persistent non-compliance. However, if probation officers know that the result of that action will be unjust and draconian, there must be a temptation not to record failures to comply in order to avoid such consequences.

The Government have argued that benefit entitlement has always been conditional; for example, there are benefit sanctions if someone in receipt of jobseeker's allowance does not actively seek work or if women do not co-operate with the CSA. However, requirements that benefit claimants should be willing to co-operate with attempts to find them employment or obtain maintenance are related directly to their need for benefit. In contrast, there is no direct relationship between breach of community sentences and the need for benefits to be paid to an individual who has no income. For that reason, the reduction or withdrawal of benefit introduces a gratuitous element which gives it all the hallmarks of an additional punishment.

We hope that the Government will think again and will withdraw this misguided measure. It is one thing to be tough on crime and criminals, but there is a real danger that the action proposed by the Government will lead to more crime. We have enough problems in our prisons today without the Government adding to them by enacting this ill-conceived legislation, and in particular the regulations before the House.

Perhaps I may also offer a word of warning. We should remember that black youngsters are up to twice as likely to be unemployed. Given that, we shall see a greater proportion of this group going through the criminal justice process. Although we have reached a late stage, the time is right to look again at these regulations.

5.45 p.m.

Baroness Hollis of Heigham

My Lords, as I expected, this has been a thoughtful and considered debate which has gone over issues that were discussed very thoroughly during the passage of the Bill. I have tried not to reopen the arguments, but I suspect that I shall need to trespass on some of those issues as I develop my reply.

I should like, first, to answer as best I can the points raised by the noble Earl, Lord Russell. His argument appeared to suggest that we could not and should not go ahead with pilot schemes before we have sufficient information to know what will be the effect of the pilots. With respect, the noble Earl knows perfectly well that that is the point of holding the pilot schemes. That is why we are introducing them—in order to ascertain the effects. If they work well. I hope that he will join me in wishing to extend them. If they do not work, we should be foolish to pursue them.

Earl Russell

My Lords, that is why I prefaced my remarks by saying that the Minister would save me a good deal of trouble if she could tell me more about the kind of information to be gathered by the pilots.

Baroness Hollis of Heigham

My Lords, I was about to do that. However, that is not an argument not to run pilot schemes. The point of the pilots is to gather sufficient information to judge whether this is a viable policy and to learn from and build on that experience so that we can work towards a possible national roll-out.

The noble Earl asked what the pilot schemes will examine, aside from what I have already outlined. The researchers will look at the impact of this sanction on long-term reconviction rates and the duration of breach of proceedings. Furthermore, we shall build up a profile of the kind of offender who is affected by the sanctions. We shall gather the views and perceptions of staff involved in administering the pilot exercise, as well as collecting the views and knowledge of offenders about the sanction.

Research methods will include not only analysis of the administrative data, as well as in-depth interviews from focus groups and of key members of staff in the probation service, the Benefits Agency and the Appeals Service, but also in-depth interviews with offenders. Thus the answers to the questions raised by the noble Earl—where would resources be found to make good shortfalls in income and what will be the effect on health?—should come to light after detailed interviews are held with offenders, as well as the postal survey of magistrates and justices' clerks. I fully expect that the kind of issues raised by the noble Earl will show up there.

I hope to give the noble Earl an assurance about housing benefit. We are talking about a four week sanction. Housing benefit will remain in payment throughout and, therefore, there should not be a direct effect on homelessness. Obviously, I accept that housing benefit does not necessarily in all cases fully cover the gap between the single reference rental, the local reference rental, the single room rent and the rent paid, but we are talking about four weeks and, given that most rent is paid monthly, we have no evidence to suggest that this would result in any risk of an increase in evictions or homelessness. Certainly, it is one of the issues we will be monitoring, but the point is that housing benefit as such—the core payment—will remain in place.

If the noble Earl wishes to intervene to make any further points about what the survey will be seeking to establish, I am very happy to extend my comments at this point.

Secondly, the noble Earl pressed me about the remarks in today's Independent attributed to Mr Woolas in another place. I read the article for the first time when I was on the train coming into London today. All I would say is that there is no official knowledge of this—and, therefore, no official views on it or support for it—in either the Home Office or the DSS as of today; it is news to us. I am sure that the noble Earl would not wish to press me beyond that. It is not a Home Office or DSS measure.

As to the Probation Service, I was asked what would happen if probation officers refused to impose the sanction. Probation officers do not impose the sanction. The whole point of the amendment of the noble Lord. Lord Windlesham, if I can put it that way—which the Government took over and together, around the House, we hammered out a compromise—is precisely that that decision does not rest with probation officers.

As professionals, probation officers will be required, within the guidelines of the Home Office, to determine whether—and they have appropriate discretion in this field—a person has broken a community sentence without reasonable grounds. Those reasonable grounds—including issues of health, an emergency with childcare and so on—were explored in your Lordships' House. That is a probation officer's job; he or she does nothing, as such, apart from reporting what he or she is doing to the Benefits Agency. The sanctions will follow the court decision, not the probation officer's referral. The probation officer is therefore not involved in sanctioning the individual.

Earl Russell

My Lords, I am sorry to intervene again. I have Mr Fletcher's press release here. He states that probation officers are to be advised not to report the breach of the order so that the court sanction would not be triggered.

Baroness Hollis of Heigham

My Lords, if he is saying that probation officers, when handling someone on a community sentence who broke that community sentence, were prepared not to take that person back to the court at all for fear of triggering a benefit sanction, I suggest that we would then have to look very carefully at the professional discipline of the Probation Service. I hope that that situation would not arise. Probation officers have an overriding responsibility to the offender to keep him on the straight and narrow and to the court to exercise that responsibility.

It should be remembered that a community sentence is an alternative to a custodial sentence. If a person does not abide by the terms of a community sentence, then, as indicated in the Criminal Justice Act, the court has a right to bring that person back and to decide whether, in the light of that breach, that person should now complete the rest of his or her sentence in prison.

Where someone has fragrantly broken a community sentence, to say that a probation officer can make a decision not to take that person back to the court, as the law lays down, would raise serious questions about what is the nature of the professionalism, the job, the duties and the responsibility to the wider community of the Probation Service. Like everyone in your Lordships' House, I hope and expect that that situation will not arise because probation officers will understand their responsibilities.

Lord Windlesham

My Lords, before the Minister leaves that point, can she help the House with this conundrum: if a second breach is established—and would, therefore, under her proposals, attract withdrawal of benefit—how would that relate to the fact that, once the breach is proved, it will attract a mandatory penal sanction, either of imprisonment or some other penalty? There appears to be no relationship between the two pieces of legislation. I have refreshed my mind by reading the summary of the Criminal Justice and Court Services Act; there is no reference to benefit withdrawal.

Baroness Hollis of Heigham

my Lords, I believe that the noble Lord is intervening to make the same point that he made in his speech. I was hoping to come to that in due course. I am happy to try to deal with that now, if the noble Lord wishes, but I was seeking to complete my responses to the noble Earl, Lord Russell. If the noble Lord will allow me, I shall come back to that point later.

The third point raised by the noble Earl, Lord Russell, related to the question of sample size. I was shaking my head about my concern in regard to the sample size for the fraud Bill, where we are talking about 300 cases. This has nothing to do with the fraud Bill. The concern here is not the size of the sample. I entirely agree that a sample of the size we may be talking about would be large enough to get the information needed. However, this is a different issue: the sanction runs for only four weeks and, in some cases, concerns a restricted amount of benefit withdrawal:£20 off the rate for a single person on the hardship scheme; £10 off if they are seriously ill or pregnant. To try to assess the impact of £10 per week times four weeks in terms of a person's health, state of well-being and so on—all issues that the noble Earl and I have explored many times—would be 'very difficult.

The problem with the fraud Bill was the size of the sample; the problem with this Bill, in terms of trying to assess the effect in any quantitative way, is the very short period for which the sanction runs. It is very difficult to work out what the effect may be of £10 or £20 off an income of £120, coming down to £100, over four weeks.

Certainly, by going for the qualitative method of interviewing those affected, and given that this is being carried out by an independent national centre for social research—which is entirely independent of government—I hope that the research will be of decent quality and allow us to evaluate whether this system is effective in encouraging people, largely young people, to abide by their community sentence.

I do not pretend for one moment that the sanction will not have an effect on people. That is the point of a sanction; the whole of the social security system is based on conditionality. If the only way for a sanction not to have an effect would be to raise benefit levels across the board by the amount that the benefit sanction would take away, that would not be an acceptable position for the Government.

The noble Earl, together with the noble Lord, Lord Dholakia, and the noble Viscount, Lord Tenby, said that the effect of this would be to make poorer those people who already had offences behind them; that they would seek to make up their income by begging or stealing; that that would increase crime and, therefore, this measure is self-defeating.

I am sorry, but there are alternatives. One is to abide by the community sentence; the other is to find a job rather than receive benefit. We are told that these people are so feckless that they cannot manage to attend interviews and so on, and that therefore it is unreasonable to expect them to get their lives in order and to turn up for a probation interview. I remind the House that nearly 40 per cent of those convicted of burglary, violence against the person, criminal damage, fraud or forgery in 1998 received a community sentence. A quarter of those convicted of sexual offences or robbery in 1998 also received a community sentence.

These are not trivial offences due to fecklessness, incompetence or an inability to get lives together; they are serious offences which would, under other circumstances, have merited a custodial sentence. The community has the right to be protected, particularly those most affected by such crime; that is, those people on the poorest council estates, who often suffer severe harassment, threat and worry as a result of people failing to abide by the community justice system and, frankly, cocking a snook at it. We have a responsibility to protect those who cannot withdraw behind privet hedges into the privacy and security of their own homes; who have to live cheek by jowl with young men and women who fail to respect appropriate behaviour in society.

As to the point about fecklessness, these are people who have their lives sufficiently in order that they can attend an interview to sign on to get their benefit, but somehow cannot manage to attend an interview in order to meet their probation officer. That is fecklessness being turned off and on to suit the individual. I give way to the noble Lord, Lord Windlesham.

Lord Windlesham

My Lords, that was a very eloquent statement; but the noble Baroness appears to be unable to get her mind around the fact that conduct of that sort will result automatically in criminal penalties following a conviction in court. Penalties are provided by the criminal law, up to and including imprisonment. So why are Ministers in the Department of Social Security instructing their unhappy department to add some special penalties of their own?

6 p.m.

Baroness Hollis of Heigham

My Lords, the DSS has always believed that benefits come with conditions attached. I know that that view is not entirely accepted by the House, but I believe it is accepted by the major opposition party. The condition may, for example, be that a claimant is available for and actively seeking work. It may be, as with the Child Support Agency, the requirement for a woman to name the father of her child where there is no good cause for her not to do so. If the condition is that a person observes the terms of a community sentence, in the Government's view that is a proper condition to attach to benefit. That is what we are seeking to do.

Earl Russell

My Lords, before we leave this topic, will the Minister concede that the desire to protect the community against crime is common to us both; the point at issue is which of us is doing it?

Baroness Hollis of Heigham

My Lords, pilot schemes have been set up to determine whether this measure will be effective in controlling the level of criminality which makes life on so many of our poorer council estates an absolute misery for those who are trying to lead decent and respectable lives there. If the pilot schemes do not work, I shall be one of the first to say so. If they do, I hope that I shall equally have the noble Earl's support in extending the scheme on a nation-wide basis.

I now turn to the points made by the noble Lord, Lord Windlesham. He asked about the interaction between Section 53 of the Criminal Justice and Courts Services Act and these regulations. That section provides for the court to decide whether, when an offender is in breach of his sentence, he will nevertheless go on to complete his order successfully. If the court believes that he will, it will allow the order to continue but will impose a penalty; if the court believes that he will not, it will impose a penalty of imprisonment. It is, therefore, wrong to say that all offenders will go to prison and as a result this provision is nugatory. There is one other point. Section 53 has not been commenced and will wait until the resources are available.

I hope that I have addressed the additional points raised by the noble Viscount, Lord Tenby, and the noble Lord, Lord Dholakia. I hope that the noble Lord, Lord Dholakia, does not believe that this provision in any sense bears unreasonably heavily on any one section of the community, such as the black community. It is the case that young people of Afro-Caribbean background may have a higher offending rate and a higher community sentence rate than other young people of, say, Asian, Chinese or Indian background, but the provision applies across the board to women and to men; and it applies to people irrespective of their ethnic background.

We are saying that all of us in the community, as taxpayers, have a right to expect young people—this applies largely to young people—to observe their community sentences. If on a second offence they have failed to do so—in other words, they have been brought back before the court—this trigger will come into play.

As I said, we are experimenting in four pilot schemes. The schemes will be carefully, professionally and independently evaluated. If the effect on crime and on recommittal is not what we hope it will be, obviously that will bear heavily on whether we decide to roll out the scheme nationally if we are in a position so to do. But the way to find out is to go for the pilot schemes. The House accepted this idea at the time; I hope that noble Lords will accept it today. I commend the regulations to the House.

On Question, Motion agreed to.