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Baroness Hollis of Heigham moved Amendment No. 107:


The noble Baroness said: My Lords, in Committee your Lordships expressed concern that Clause 60 could have the effect of denying those with knowledge or experience of service life the opportunity to serve on pensions appeal tribunals. Noble Lords felt that this could be detrimental to tribunal hearings. I explained that my noble and learned friend the Lord Chancellor has always intended to continue to appoint people with knowledge or experience of service life to the pool of tribunal members.

However, the Government are alert to concerns raised in this House and I agreed to bring forward a government amendment to place a duty on the Lord Chancellor to appoint service people to a pool of tribunal members. I also undertook to write to the three presidents of the pensions appeal tribunals.

Government Amendments Nos. 107, 109 and 111 place a duty on the Lord Chancellor to appoint,


    "persons with knowledge or experience of service in Her Majesty's naval, military or air forces",

to the pool of tribunal members. It will also provide for people with "other" experience to be appointed. That will ensure that the presidents of the pension appeal tribunals at all times are able to select members of individual appeal tribunals from a pool that must include persons with legal qualifications, those with medical qualifications and persons with knowledge or experience in Her Majesty's Armed Forces.

I have also written to the presidents of the pensions appeal tribunals explaining the Government's purpose in bringing these changes and drawing to their attention the points raised by your Lordships during the debate.

The Government recognise the expertise that service people can bring to a tribunal in a similar way that legal and medical expertise is helpful. The Government have noted the concerns of this House and have laid amendments that will ensure that there are people with knowledge and experience of many of the services appointed to the pool of tribunal members and available to hear appeals. I hope that your Lordships will accept these amendments. I beg to move.

On Question, amendment agreed to.

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Lord Astor of Hever: My Lords, I thank the noble Baroness for moving these amendments. As regards Amendment No. 107, she promised at Committee stage that she would come back at Report with this amendment: it is a real break through. On behalf of the service charities and the veterans' groups, I thank the noble Baroness for her help in this matter.

On Question, amendment agreed to.

[Amendment No. 108 not moved.]

Baroness Hollis of Heigham moved Amendment No. 109:


    Page 62, line 27, leave out from ("2") to ("it") in line 28.

On Question, amendment agreed to.

[Amendment No. 110 not moved.]

Baroness Hollis of Heigham moved Amendment No. 111:


    Page 62, leave out lines 31 and 32.

On Question, amendment agreed to.

[Amendment No. 112 not moved.]

Clause 61 [Composition of central advisory committee]:

[Amendments Nos. 113 and 114 not moved.]

Clause 63 [Loss of benefit for breach of community order]:

Lord Windlesham moved Amendment No. 114A:


    Page 65, line 11, leave out from beginning to ("that") and insert ("a court makes a determination").

The noble Lord said: My Lords, in moving this amendment I wish to speak also to Amendments Nos. 114B to 114H, Amendments Nos. 115A to 115D and Amendments Nos. 116A to 116G. By the time we have finished this debate we should have made substantial progress through the long list of amendments on the Marshalled List.

Baroness Hollis of Heigham: That is very thoughtful of the noble Lord.

Lord Windlesham: It is a moment of amity which will shortly be shattered by what I have to say to the Government Front Bench.

This is the third time that arguments have been rehearsed against the inclusion in a social security measure of a pecuniary sanction when an offender who is subject to a community order is alleged to have failed to comply with the conditions of that order. Amendments Nos. 115 to 117, 119 and 120 would leave out the relevant clauses completely, whereas the remaining amendments concentrate on a single procedural change. It is on those that I shall concentrate in my remarks in opening this debate.

There is no need to repeat the full catalogue of objections which have been raised by practitioners outside Parliament as well as inside this House to the wholly misguided idea of withdrawing or reducing social security benefits from offenders for up to 26

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weeks in the period between a reported breach--I put emphasis on the word "reported"--by the probation officer and a court hearing.

In some cases the breach will be contested when it reaches court. It may not be proved. In others, the court may decide to continue a probation or community service order, either with no penalty or with a fine, or to substitute some other form of punishment. Often the order is revoked and the offender is sentenced to custody or to other penalties. The number of unexecuted arrest warrants is also an uncomfortable reminder of just how many offenders are no longer in touch.

All these outcomes result from court hearings. They are decided according to the circumstances of each individual case. But no such variety of disposal is allowed for by this Bill in the automatic sanction to be imposed by the benefits office once a breach has been reported by a probation officer.

Those of your Lordships who have not followed this issue closely will be surprised to hear that an alleged breach is enough to be treated as evidence that a condition of benefit has been abused, and the withdrawal of that benefit should therefore follow as a sanction. All that Ministers can offer by way of justification is that typically a person who abuses a community penalty is a chronic menace to a local community, terrorising or vandalising housing estates, and generally making the lives of the residents a misery. Anyone who read Hugo Young's polemic in last week's Guardian would have seen that reasoning brilliantly demolished. If indeed this is the rationale for the legislative response, it is not only rooted in deep ignorance--I use the word deliberately--of deviant behaviour and the most effective ways of countering it, but is a complete caricature of a contractual relationship.

Since there seems to be some misconception, let me spell it out. A contract must be between parties who know that they are entering into a relationship with one another. It is a species of agreement whereby an obligation is created by the parties to it, and not by the declaration of one party in the ignorance of the other. The adoption of what may seem to some members of the Government or their advisers as little more than a convenient rhetorical device, is in fact a debasement of language, as well as undermining the habits of legality. It is for those reasons that Amendment No. 114A, which is the key amendment, and the long list of amendments grouped with it, concentrates on what is in many ways the most important of several flaws in this part of the Bill.

If there is to be an administrative sanction attached, not to a condition of eligibility according to need but to the breach of a legal obligation in the shape of a community order, then it must be for the court, not for a government official, however conscientious, however fair-minded, to decide on whether or not an additional penalty is deserved, alongside those which are already at its disposal. This, and the consequential amendments, delay the implementation of the loss of benefit sanction until after the court has made a

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determination that an offender has failed to comply with the requirements of the appropriate order. I beg to move.

6.15 p.m.

Earl Russell: My Lords, when one goes into Committee to debate a matter with all guns blazing, very occasionally one comes out wondering whether the case was as strong as one thought. Sometimes, one comes out thinking that it was as strong as one thought but one can understand why people thought otherwise. Usually, one comes out thinking very much what one did when one went in. What is really unusual is to go into a debate in Committee with all guns blazing and come out thinking that the business that one is debating is very much worse than one originally believed.

A number of Cross-Benchers asked me what was our case on this issue. I told them: "Read the Minister's speech. You will find what concerns us much more clearly set out than we could do it ourselves". What we found was not merely an unjust procedure, not merely an unjustifiable measure, but a major realignment of the terms on which benefits are to be received, and what I fear may be a major agenda for the Government's second term if they should be fortunate enough to get one. That is quite a collection of mischiefs.

Perhaps I may deal first with the point about the procedure, which is the subject of the amendments. The amendments put forward in effect a single proposal and they are necessarily contingent on each other. The procedure is that if a person misses two probation appointments, he or she must be reported. It is the court's job, not that of probation officers, to decide whether the absence was justified. A person is deemed to have missed an appointment if he or she is 20 minutes late. I wonder how many of your Lordships have never been 20 minutes late for an appointment through no fault of your own. I suggest that it is only those who could justifiably support the proposition that the Government are putting forward.

As recently as this morning, as I was coming to the House, I might very easily have been 20 minutes late, because the favourite gremlins of the noble Lord, Lord Peyton of Yeovil, had taken up residence digging holes in a place in the road where no holes had been yesterday. A great many of us have been 20 minutes late because of signal failure on the London Underground. If we are to miss all visible legal means of support for a period which is an average of 41 days, and may on occasion be as long as 314 days, because of one signal failure on the London Underground, that will lead to a degree of animus against London Underground which may lead to vandalism and a great deal of delay to other people. That could be unfortunate.

I said in Committee that I had never known the case put as well as in the Minister's speeches against precisely this principle of loss of benefit before appeal in the Jobseekers Act 1995. I said that they were some of the most brilliant speeches that I had ever heard in

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this Chamber. I took the opportunity this morning to read some of them. The Minister said then that there was,


    "merely a doubt ... and one does not know whether an offence has or has not been committed ... the individual is being fined in advance of that doubt being established as valid. We still believe that that is monstrously perverse".--[Official Report, 27/4/95; col. 1107.]

She was concerned about the consequences. She said:


    "the vulnerable will continue on hardship and ... young, single people, childless couples and those perhaps with less easily diagnosed mental health problems will have no income at all ... As the noble Baroness, Lady Williams of Crosby, said the other night, they will not starve peaceably--at least I hope that they will not. They will beg, steal, become prostitutes and sell drugs. In the process they will become entirely unemployable ever again".--[Official Report, 25/4/95; col. 870.]

The message is clear. This is a thoroughly unfortunate series of procedures. We shall support the amendments.

Equally, we on these Benches are deeply concerned about the principle of the clause itself. The Minister is, of course, right in saying that it is not new to set conditions for benefits. But this represents, by her own confession in Committee, an entirely new type of condition. There have always been conditions for means-tested benefits related to sufficiency of means. There is no argument about that. Increasingly, since 1986, there has been a pile of conditions for means-tested benefits related to the claimant's attempts to avoid being in need. One might parallel them to intentional homelessness. These are the availability conditions and all that go with them. Those conditions are relevant in principle to the purpose of benefit. Our position on these Benches is that we believe that, before deciding whether such withdrawals of benefit are justified, we need to know what the effect will be--and we do not.

I have said enough on this point. It is not what we are dealing with; we are dealing now with an entirely different matter. The Minister's words in Committee were:


    "They are conditions associated with good citizenship, not simply with needs and entitlements".--[Official Report, 22/5/00; col. 542.]

That is an entirely new principle. What is more, it is one that the Government intend to apply again. The Minister said:


    "I would not on principle rule out further extensions, but it would be for Parliament to debate whether particular behaviour is sufficiently undesirable and to be so strongly discouraged that it merits the withdrawal of state support via the benefit system".--[Col. 543.]

Constitutionally, it is a perfectly correct answer: the vires are limited. But the principle that is stated is not limited. I take that to be the Minister's announcement that she is setting herself up as the Young Lady of Spain--she intends to do it again, and again, and again.

I really must press the Minister. What are the limits of this theoretical principle that she now claims? It will undoubtedly be an issue at the next general election. If the Minister cannot spell out any limits, she cannot

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blame me for saying that something might fall within them. If the noble Baroness states any limit, I will observe it.

The noble Baroness, Lady Massey stated:


    "Surely, it is fair that benefit systems should be seen to be applied to those who merit them".--[Official Report, 22/5/2000; col. 525.]

I ask her to consider what that principle might mean in the hands of the noble Baroness, Lady Young. Equally, as I am not making a party point but drawing attention to the fact that we disagree about "deserving", I ask the noble Baroness, Lady Young, to consider what it might mean in the hands of the noble Baroness, Lady Massey. We do not always agree on what is deserving. The threat to withdraw benefits from those who are not deserving could produce many unexpected consequences--most of them serious.

The noble Lord, Lord Windlesham, said that one cannot have a contract made by one party. I do not know when I consented to the alleged contract. The Government are correct when they say that there is a relationship between rights and responsibilities but it is not one that they have properly understood. There are rights and responsibilities on both sides. When there is disagreement over whether a citizen has defaulted, the courts, not the Executive, are the proper judge. Magna Carta is often wrongly invoked but that is its central principle and one in which I believe.

The chief responsibility of the state is to protect its subjects. Since the Poor Law and before, it has been recognised that that responsibility includes protecting people against starvation. If people are put outside that protection, one turns them into outlaws.

I have just one more quotation from the noble Baroness, in 1995:


    "If we outlaw from benefit some of our fellow citizens, assuredly we outlaw them from the law itself. Even the Victorians in their most penal and policing authoritarian mode--the classical economists--never did that. They always had available either outdoor or indoor relief. Why did the most severe and judgmental of Victorian moralists continue poor relief on the rates? They recognised that if they refused money for bread, those people would break the bakers' windows".--[Official Report, 25/4/1995; col. 870.]

The Government are offering a proposal to increase crime. I do not want that.


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