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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

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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

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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 be 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

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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 O ztu rk; 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

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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.

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