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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

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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.

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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

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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

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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?

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