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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.

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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 Those already struggling on benefits could well be tempted to commit crime if benefits are reduced, or even worse, withdrawn".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

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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

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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.


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