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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

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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

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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

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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.


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