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As I said, I believe that if we treat people as helpless, they become helpless. That is bad education and bad social policy. It is neither just nor humane. The Bill as a whole seeks to instil responsibilities along with rights and should be commended for doing so.
I have reconsidered the matter but I have not changed my view that Clause 63 does offend. As I said on the previous occasion, a reduction of benefits as a punishment for misbehaviour probably does not in itself breach any convention right under the Human Rights Act if a proper trial has taken place.
A trial in a form which satisfies Article 6 of the convention is normally required before a criminal penalty can be imposed. However, the case law of the European Court of Human Rights plainly recognises that a decision may be taken to impose a penalty for an administrative offence or for professional misconduct in proceedings which do not comply with Article 6, provided there is a right to have a subsequent review of that decision on the merits by a proper court. "Administrative offence" covers such matters as minor traffic offences.
One important factor in deciding whether a case falls within the class of administrative offences is the seriousness of the penalty. I have to say that in this case a penalty of the loss of part or all of your benefits seems to me to be a very serious penalty for those who suffer it, and it is therefore quite possible that the seriousness of the penalty alone takes this into the class where reliance on a review by a court subsequently is not in any case enough.
However, I believe that there are two grounds on which this clause quite plainly impinges on convention rights under the Human Rights Act. First, at least where the penalty causes immediate and significant hardship it should either be imposed after the hearing by a proper court, or its operation should be suspended until the court can review the original decision. Secondly, all European Court of Human Rights cases where a subsequent review by a court has been held sufficient have involved a prior decision by some person or body authorised to impose a penalty. The problem here is that the penalty is imposed automatically as soon as the information is laid.
No one here has taken a decision at all. Certainly there has been no decision by the Secretary of State. The probation officer, as we have heard, is limited by very rigid rules. It is quite plainly a case, as the noble Earl, Lord Onslow, said, of punishment first and conviction later. That, I believe, is wholly unacceptable. If Amendments Nos. 114A to 114H are not accepted, this clause will be held to be in breach of convention rights as soon as it gets to court.
I should like finally to add that it is not just a matter of the Human Rights Act. What is proposed here is, I believe, a breach of the concept of justice as we have understood it in this country at least since the events at Runnymede nearly 800 years ago.
For example, the vast majority of people on benefit do not offend. A lot of people who do offend then do not breach their probation or their community service orders. So what we have here is what you might call the end of the line. Why are the Government proposing it? They are doing so because the community service orders are not working. The alternative is more prison, and we do not want to send people to prison. So this administrative withdrawal of benefit is for the purpose of reinforcing the community service order so as to avoid sending more people to prison.
It does not seem to me to be a very serious measure, because, when all is said and done, it is a measure which is being applied to people who have had penalties imposed upon them by a magistrate's court and have failed to fulfil their obligations. The answer lies with them, because, when this measure goes through, if magistrates' courts impose community service orders they will be warning those offenders that if they breach that community service order they will lose some benefit. They will be given advance notice of that. I think we ought to keep our feet well and truly on the ground and recognise that what the Government are doing is for the benefit of the system in the long term.
Baroness Masham of Ilton: My Lords, I should like to ask a quick question, and my vote will depend on the answer. Many of the people we are talking about live chaotic lives, as we have already heard. How can the Government get people into employment if they are unemployable? When they are in prison they get three meals a day, they are clothed and looked after; but when they are in the community what are they going to live on if they have no benefit?
Lord Goldsmith: My Lords, on the face of the Bill is a statement by my noble friend the Minister that in her view the provisions of the Bill are compatible with the European Convention on Human Rights. She has told your Lordships both on Second Reading and in Committee that the declaration was not one she made lightly but one made after repeated advice that the provisions of the Bill, particularly those being considered now, are compatible.
I ventured to say in Committee that though there was, as there so often is, scope for argument, in my view the Government were justified in taking that position. Nothing said by the noble Lord, Lord Goodhart, whose views and statements I always regard with considerable respect, has caused me to change that view.
I do not want to weary your Lordships with the reasons, but I will just summarise them in this way. First, the issue at stake, from the statistics given by my noble friend at Committee stage, concerns no more than 400 cases out of 30,000 where the magistrates do not uphold the view of the probation officer that there has been a breach. That is a very small number, and it indicates how very few cases there are which would result in an overturning of the decision--
Lord Goldsmith: My Lords, it is a question of whether or not, in accordance with the case law of the European Court, which the noble Lord, Lord Goodhart, and I agree exists, the European Court of Human Rights would say that in these circumstances there is a breach. That case law says clearly, even assuming--as I have been prepared to do for the purposes of this debate--that this is a punishment and therefore the full rigour of Article 6 of the convention applies. It says that it is not essential for there to be a decision of a court before the punishment is imposed.
It says that there are cases where, so long as there is a review by an independent and impartial court--which the magistrates' court is of course--which is what would happen in these cases, that may be compliant. I ventured to suggest that there are four reasons why this fell on that side of the line. These are: the fact that there is built in a safeguard of the magistrates' courts; the fact that we are talking of a relatively finite period of time of four weeks; and the fact that all benefit is not removed. In respect of income support, the proposal is that 20 per cent or 40 per cent may be removed and jobseekers will still be able to claim hardship allowance.
Finally there is the important fact, which was brought out so clearly by my noble friend the Minister in her winding up speech, that a decision taken by an officer at the moment of failure to meet a particular requirement is entirely consistent with the long history and principle in this field. I refer your Lordships to what she said then. This is not something which has been invented for this Bill. It has been the case time and again that a decision is made and is subsequently subject to review.
Lord Higgins: My Lords, we have had many fine speeches in this debate and only with considerable diffidence can one intervene in it. We also had a fine debate on the issue in Committee, when profound concerns were expressed on two issues: first, that benefit would be removed by executive action rather than by the court and secondly that that action would be likely to increase crime rather than reduce it.
In the light of that debate, my noble friend Lord Windlesham has tabled a set of amendments that meet both those concerns. The noble Lord, Lord Sheppard, suggested that we had to use both a stick and a carrot, but he did not address the subject of the amendments--that, if a stick is to be applied, it ought to be applied by the courts rather than by administrative action. That is of considerable importance.
At a similar stage in the Committee debate, the Minister pointed out that we are dealing with pilot measures. If I may mix my metaphors, the pilots are the thin end of the wedge. This is the direction in which the Government intend to go. For all the reasons that have been put forward so cogently this evening, I believe it is the wrong direction.
Like last time, some reference has been made to the European Convention on Human Rights. We have opposing views on that. I had an exchange with the noble Lord, Lord Goldsmith on the severity of the penalty. If the matter goes back to the courts, as proposed in the amendments, they can decide what is an adequate and sensible penalty. That would avoid the possibility of problems with the European Court of Human Rights. The courts could also ensure that there was a fair trial, removing the doubts that have been expressed. The courts can take into account whether the issue is compatible with the European Convention on Human Rights. On that point, the amendments would make the situation a great deal safer.
I have a sense that the House is anxious to come to a decision. Long experience suggests to me that, in those circumstances, one should not make the most brilliant speech that one could ever make. On the contrary, it is right to come to a conclusion.
This is a matter of profound importance. I believe very strongly in all the recommendations that have been made by outside bodies that are at the front end of these affairs. In Committee, we referred to organisations such as the Magistrates' Association, the Justices' Clerks' Society, the National Association of Citizens Advice Bureaux, the National Association of Probation Officers and the Penal Affairs Consortium, all of which believed that acting in this way without going back to the courts was likely to be counter-productive. Penalising people to the point of likely destitution will exacerbate the tendency of those who are already not among the most law-abiding to commit yet further crimes.
We believe that it is right to uphold the role of the courts and resist the movement towards administrative action. For that reason, I hope that my noble friends will join me in the lobby this evening in support of the amendment.
I have only one thing to add. I have always taken the view that, if one gets the amendments that one wishes, it is not appropriate to oppose the clause stand part. I very much hope that the House will realise the importance of the issue and support the amendments.
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