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Standing Committee Debates
Child Support, Pensions and Social Security Bill

Child Support, Pensions and Social Security Bill

Standing Committee F

Tuesday 29 February 2000

(Morning)

[Mr. William O'Brien in the Chair]

Child Support, Pensions and Social Security Bill

10.30 am

The Minister of State, Department of Social Security (Mr. Jeff Rooker): On a point of order, Mr. O'Brien. There are a considerable number of Government amendments on the amendment paper, most of which are minor, technical amendments. There is a substantial new schedule and two matters of substance, one of which relates to the combined pension forecast, which is a data protection issue. We have tabled amendments to reform and modernise the housing benefit appeal arrangements.

The notes on clauses and schedules will be in the Room in time for this afternoon's sitting. To the best of my knowledge, barring unforeseen circumstances, which would have to be as serious as the wheel coming off, we do not propose to table any further Government amendments in Committee.

The Chairman: Before we move on, I should point out to the Committee that the number of the Government amendment to clause 54 was printed incorrectly as amendment No. 355 on yesterday's amendment paper. The correct number is amendment No. 354, which appears on this morning's amendment paper.

Clause 49

Loss of benefit for breach of community order

Mr. Paul Burstow (Sutton and Cheam): I beg to move amendment No. 329, in page 52, line 25, leave out from `(a)' to `the' in line 26 and insert

    `a court has determined that an offender has breached'.

The Chairman: With this we may take the following amendments: No. 344, in page 52, line 25, leave out

    `information is laid before a justice of the peace that'.

No. 345, in page 52, line 26, leave out `has failed' and insert

    `is found guilty by a court of having failed'.

No. 346, in page 52, line 29, leave out

    `information has been laid'

and insert

    `offender has been found guilty'.

No. 347, in page 52, line 32, after `then', insert

    `the court may order that'.

Mr. Burstow: I apologise for not being present at the beginning of the sitting.

Mr. Desmond Swayne (New Forest, West): Shocking.

Mr. Burstow: I am glad that the hon. Gentleman is shocked by that; I am shocked too.

The amendments are to a new and important part of the Bill, which deals with issues such as whether administrative procedures should be used in place of judicial procedures for imposing sanctions on offenders. That is fundamental to our consideration of the clause. I shall set in context our reason for tabling the amendments and say why we feel so strongly about clause 49. At its heart is a principle that we believe the Government should not advance.

Clause 49 and the other clauses in this part of the Bill provide for benefits to be withdrawn or reduced when an offender is in breach of a community sentence. The trigger is not a decision of the courts, but of the probation service to refer back to the courts a breach of a community service order. The Secretary of State will put in place the appropriate regulations for the administrative sanction.

The explanatory notes state that in 1998 about 30,000 people were referred back to the courts for breaching community sentences. According to a written answer on 22 February, the figure is 28,500. It has been difficult to obtain more detailed figures, so I hope that the Minister will give us more information. I tried to find out from the Home Office how many of the 30,000 breaches referred back to the courts were subsequently not proven. It would be useful to know how many of those people will have to pay back their benefits so that administrative arrangements can be made and we can know what costs are involved. There are practical considerations as well as matters of principle to be considered, and it would be helpful if the Minister would elucidate them in due course.

The Home Office is tightening its procedures in respect of breaches, and I understand that in future the number of acceptable absences will be reduced from three to two. Several of the organisations that represent staff in the probation service, including the National Association of Probation Officers and the Association of Chief Officers of Probation, believe that that will result, not in a reduction in breaches, but in an overall increase over time. It would be useful to know whether the Minister intends there to be an on-going evaluation of the impact of the clauses, should they be enacted, in addition to the evaluation of the pilot schemes referred to in the explanatory notes. I hope that the amendments will encourage the Government to reconsider the clauses, which should not be in the Bill.

It would be helpful if the Under-Secretary of State for Social Security (Angela Eagle) would explain what measures will be used to evaluate the pilot schemes and say how many studies are intended. Will there be control measures to compare what happens in the pilot studies with what happens outside the pilot areas? There should be an objective assessment of whether the tool achieves the changes that we want, or whether, as those in profession believe, the proposal will increase reoffending and non-compliance. We want to know how compliance will be evaluated and how reoffending will be monitored.

The Association of Chief Officers of Probation, the National Association of Probation Officers and the Penal Affairs Consortium, which represents about 41 different organisations, have made representations to members of the Committee about their concerns. I make no apologies for the fact that at least of two of my amendments were drafted by NAPO. I had a go at trying to draft the first amendment in the group myself; the three amendments taken together would have the same effect, which I shall explain in more detail in a moment.

In our debate on the amendments, I shall outline my principal anxieties about the clause, which have been expressed by those outside the Committee and which I hope are shared by hon. Members. I reiterate that reducing benefit by administrative means is a non-judicial form of punishment. It removes from the courts their power to deal with breaches of their own orders, which fundamentally undermines our judicial processes and is a breach of the separation of judicial functions from other functions of the state.

When a breach is proven, it appears that the courts cannot have regard to the benefits sanction that is being imposed; it would be useful to have on the record whether that is the case, as it appears to be the view of some outside the House. Can the courts take into account the sums that have been withdrawn by way of a benefits sanction when they frame their decision about the further sanctions to be imposed on an offender who has breached their order? The benefit is stopped on the basis of a person being found guilty before being proven innocent. That is a fundamental overturning of the ancient and essential principles of our system of justice. We should be clear about whether it is fair and justifiable to amend the law to enable administrative systems to operate in a different way from that of the courts. The proposal only applies to those on benefits. There is no equivalent sanction that will be applied to people in employment. There was no talk of providing a mechanism for an even-handed approach. According to research into the profile of people in this category, the unemployed are unsurprisingly quite prominent, and those most likely to be unemployed are black males. Consequently, it is likely that these measures will hit the ethnic minority population hardest.

The next major issue is the impact on families. Research reveals that the man—the offender will often make a judgment about how much he needs, and the family will be given only what is left over. Under the Bill, what is left over will be less—another serious cause for concern. Under the amendments, it would not be a matter of administrative convenience in the first instance. The trigger should not be the probation officer filing an information report to the courts to refer a breach of a community service order back to them. The trigger should be a decision by the courts that a proven breach has taken place. That is when this should be one of the potential sanctions that the courts have at their disposal.

The Government, however, do not argue that case. They believe that it should be an administrative procedure, separate from the courts. The amendments would ensure that the matter is not dealt with in that way. If the Government believe that this sanction will affect and modify offending behaviour for the good, the courts should be able to apply it. They could then weigh up the mitigating circumstances and other considerations to decide on the most effective measures.

That is the essence of our amendments—to establish whether the courts should decide on the sanction. Overall, our view is—and if there is a clause stand part debate, we shall argue it strongly—that the clause should not stand part of the Bill. If it is to stand part of the Bill, it would be at least partially improved if the amendments were accepted.

Mr. Eric Pickles (Brentwood and Ongar): The hon. Member for Sutton and Cheam (Mr. Burstow) achieved the almost impossible: he made me pleased to see a Liberal Democrat. At one stage in Committee, I thought that I might have to move probing amendments. I readily understand from the hon. Gentleman's interesting speech that he intends to press his amendments to the vote. I shall urge my hon. Friends to resist them and, if necessary, to vote with the Government.

The hon. Member for Sutton and Cheam is nevertheless right in one respect: the amendments are fundamental to clause 49. As the Opposition have now established a pattern of dealing with amendments, we intend to devote some time to clause 49, which is the heart of this part of the Bill. The first set of amendments raises one of the three issues that we believe are important—whether the amendments are likely to be judge proof.

Now that the Human Rights Bill has become law, we live in a slightly different world than before. I had the opportunity of talking to a senior colleague who had responsibility for these matters during the previous Conservative Government. I explained the intentions of the present Government and he expressed mild surprise—not because of the measures, which we fully support, but at the idea that it was possible to realise them. He said that the consistent advice of officials was that it was not possible to achieve these objectives, which would be challengeable. I therefore wish briefly to test the water and ensure that what we are seeking to achieve will pass muster in relation to the European convention on human rights.

10.45 am

Circumstances may not be as easy in Committee now as they were earlier. When the European convention was raised in our debates on the child support provisions, the Under-Secretary said that as lawyers had not alluded to it, there could not be a problem. A couple of weeks ago, however, our proceedings came to a halt because lawyers had not spotted a particular problem with the pension provisions. Frankly, were it not for the eagle eyes of the right hon. Gentleman, the Minister of State (Mr. Rooker), we might have been unable to achieve the Government's objectives because of lawyers' failure to identify a legal problem. I therefore want to set out some important problems for the attention of the Under-Secretary. I am open to persuasion: I shall be happy if the hon. Lady is able to persuade me of her views.

On Second Reading, some of our contributions offered a different solution to that proposed by the Government. We sought improved enforcement and fewer hearings—solutions to which the hon. Member for Sutton and Cheam referred when he spoke about the submission of the Association of Chief Officers of Probation. Its submission repeats many of the hon. Gentleman's arguments and it is worth putting a few sentences on record. It states:

    For all the above concerns, it is not difficult to foresee possible challenges to the scheme once it is in operation. These might be either because the withdrawal of benefit is triggered by an allegation—

the point made by the hon. Member for Sutton and Cheam—

    or on the grounds of increasing (rather than decreasing) non-compliance and further offending or, on a broader point, introducing differential sanctions according to offenders' circumstances, with only retrospective involvement from the Courts.

It would be despicable if sanctions led to more crime, as the hon. Gentleman suggested when he repeated the views of the chief probation officer. That is not an argument either against the Government's proposals or in favour of the amendment. If people are punished when they break the law, the view that it increases the likelihood of reoffending is an extraordinary doctrine. Perhaps we should increase benefits to offer an incentive to people convicted of various offences not to reoffend. That is utterly ridiculous. If people break the law, they must face the consequences. It is not legitimate to argue that people break the law to supplement their income and will continue to do so. If they do so, they should face increasingly greater punishments. After all, with measures such as community service orders, people have been given a second chance: they have been given a chance to put something back into the community. They have to understand that they must put something back if they are prepared to take from society.

It has been suggested—not by chief officers—that probation officers may be reluctant to lay such allegations before the courts because of the nature of their relationship with their clients. That is despicable. Probation officers' primary duty must be to society, not to their individual clients. Of course, probation officers are concerned about their clients, because they belong to a dedicated, caring profession, which we should admire. They want them to be able to reform their lives, but it would be wrong to suggest that if Parliament were to agree to the Government's proposals probation officers should hold back.

The Government propose that information should be put before the courts. That formal step begins a prosecution in the magistrates courts. If community service, probation or combination orders have been breached, the Secretary of State or the appointed person gives notification that the information has been put before the courts. The precise details of the process and whether there will be automatic reporting will be established by regulation. It would be helpful if the Under-Secretary would lift the veil on what those regulations are likely to state. Benefit is automatically reduced for a set period. That reduction will apply to non-contributory income support and jobseeker's allowance, which, I think, is a contributory benefit. Under the Bill, the information is withdrawn, the offender may receive back payments.

As has been made clear to me by leading counsel, the law on such matters is changing rapidly. The Opposition are always grateful to leading counsel who lend their services to help in the better drafting of amendments. I am indebted to them for the brief that I have received on the European convention on human rights, which puts it in a nutshell. It says that this is a rapidly developing field of law, with a distinctly mad thought process. Arguments that are, on the face of it, barking mad have often found favour. That is not especially reassuring, given that the courts will determine many of those matters.

The Government have refused to provide the legal advice on the clause. My hon. Friend the Member for Havant (Mr. Willetts) asked the Under-Secretary. My hon. Friend the Member for Havant (Mr. Willetts) asked the Under-Secretary about that on 18 January, and a written answer appears in Hansard at columns 430W to 431W. The Under-Secretary may think that I am about to castigate her for her refusal to release that information, but I shall only do so mildly, as that written answer is very full and, in many ways, a model response. In it, the Under-Secretary says that there are practically no problems under the provision, on which she has taken legal advice. She discusses article 6 of the convention, which deals with the right to a fair trial and to which the hon. Member for Sutton and Cheam referred. The Under-Secretary says that obligations under article 6 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 the Crown Court will establish the fact of the alleged breach, as now.—[Official Report, House of Commons, 18 January 2000; Vol. 342, c.430W.]

Of course, as the hon. Gentleman said, article 6 is about more than the right to a fair trial, as it deals with the determination of civil rights and obligations when criminal charges are brought. In such circumstances, people are entitled to a fair, public hearing and should be presumed innocent until proven guilty. The hon. Gentleman has a fair point about the effect of that on withdrawing benefit, as clearly that is an administrative, not judicial, decision. We hope that such cases are brought speedily to trial, but if that does not happen injustice will be done to innocent people.

Will the Under-Secretary put our minds at rest about the right to benefit being regarded as a civil right? If it is so regarded, there will be a problem, especially in relation to back payments and other adjustments. Perhaps the Under-Secretary will be able to clear the point up if I put a hypothetical case to her. I do not wish to dwell too heavily on the matter, but spending a little time on this group of amendments may save considerable time and repetition on future amendments.

Suppose someone who is subject to one of the orders takes out a loan for a car or hire purchase payments. If an allegation is made under the Bill, benefit will be reduced by the specified amount. If, six weeks later, the person proves not to have breached the order, how will that affect his ability to pay for hire purchase or a loan? Will the Government have to pay compensation? Are they sure that the Bill is judge-proof in that regard? The courts, not the Government, will determine the matter, as there will be a determined attempt to challenge the Bill.

11 am

We need to know whether the receipt of benefits is a civil right. That is why we were so taken by the Under-Secretary's written answer, which goes beyond the normal boundaries of such replies and begins to lay down a new doctrine—the Wallasey doctrine—on benefits. The Under-Secretary says:

    Benefits are conditional on the fulfilment of responsibilities to society.—[Official Report, House of Commons, 18 January 2000; Vol. 342, c.431W.]

I wholly approve of that, but it is not germane to this group of amendments, so I shall return to it later. However, I hope that we shall have an opportunity to examine in depth what people need to do to fulfil their responsibility to society and so receive benefits. That scrutiny, I believe, should be friendly.

We must consider a couple of other matters relating to the amendments, which, as the hon. Gentleman said, would fundamentally affect the operation of clause 49. For example, article 8, on privacy, affects the exchange of information. In her written answer the Under-Secretary said:

    Although the exchange of information between the Probation Service and the Benefits Agency may raise issues under Article 8, on privacy, the exchange proposed is the minimum necessary to achieve the legitimate aims of matching benefit rights to responsibility.—[Official Report, House of Commons, 18 January 2000; Vol. 342, c.431W.]

Again, article 8 raises a problem that goes much further than the Under-Secretary suggests. Article 8 deals with privacy and respect for someone's private and family life. It could come into play if loss of benefit affects the offender's home life or family ties, or if the family suffers because there is no money to take home for a spouse or child. Will the Under-Secretary address that issue which fully justifies my advice and definitely comes into the category of barking mad?

It is not necessary to go into such detail on other matters, which the hon. Member for Sutton and Cheam discussed in some depth. He read out probation officers' suggestion that the provision may be discriminatory. We have all received a copy of a letter dated 3 February from the Association of Chief Officers of Probation stating that the proposals assume that all offenders will be treated equally and that there will be no differential impact. The association gives several cases in which that will clearly not be so. First, it says, quite legitimately, that the proposals

    will only apply to offenders receiving income from benefits, and there is no equivalent sanction for those in work.

Controversially, but perhaps truthfully, it goes on to say that

    black males have higher unemployment rates than white males and are thus going to be over represented in the group of offenders liable to withdrawal of benefit.

It states that loss of benefit will clearly have a significant impact on the rest of the family's income, which is the article 8 point.

Article 14 now comes into play. Again, the Under-Secretary has been helpful. In considering article 14, she said that the proposals are part of the reform of welfare, whereby the right to benefits and responsibilities to society are closely linked. She said that the Government's

    concern is not only to achieve better compliance with community sentences, but to reflect the view that it is not fair that offenders who breach community sentences should have the same rights to benefits as those who comply.

I have enormous sympathy with that, but, sadly, article 14 goes a little wider and refers to discrimination on such grounds as social origin, property or other status.

The hon. Member for Sutton and Cheam dealt straightforwardly with the other status, as did the chief probation officers in their letter. People of certain social or ethnic origins are statistically more likely to end up on benefit. Such discrimination can arise. It is not only a question of race, but of dealing with people who live in poverty. There is a suggestion, certainly from those who briefed me, that the term ``benefit claimant'' has a status under article 14. The foundation of additional benefit could be the basis of discrimination, so I hope that the Under-Secretary will respond to that point.

I should like the Under-Secretary to comment on two other matters. The Government rely heavily on article 1 of the first protocol on the protection of property, but the Under-Secretary said that it

    does not apply to all Social Security benefits, although contributory Jobseeker's Allowance may be regarded as a ``possession''—[Official Report, House of Commons, 18 January 2000; Vol. 342, c.431W.]

Of course, we must ensure that people are entitled to the peaceful enjoyment of their possessions under the first protocol. They must not be deprived of them except in the public interest, subject to conditions provided by law. That is essentially what the Under-Secretary wants to do, but we know that the court applies a test of fair balance and proportionality. The test is whether it is in the public interest to confiscate property.

There is much case law on such matters. As a non-lawyer, I am grateful for the advice that I have received. I shall not go into the details, but I shall mention two cases by name: X v. Netherlands in 1971 and Muller v. Austria in 1975. They are directly relevant because it was found that contributory benefits were property, which is what the Under-Secretary said about jobseeker's allowance, but it was suggested that non-contributory benefits might also be property. If that is so, the caveat that the Under-Secretary entered when responding to my hon. Friend the Member for Havant is writ even larger.

Finally, I turn to double jeopardy, which was hinted at, but not quite explained by the hon. Member for Sutton and Cheam. Article 4 of the seventh protocol bans being punished twice for an offence. Under the Bill, the offender will suffer a penalty for a breach of community order, as he does under current legislation, and an additional penalty in the loss of benefit. The hon. Lady's point about article 7 not applying retrospectively does not stand up against the ban on double jeopardy in article 4 of the seventh protocol. Will she put our minds at rest about that?

I am sorry to have taken slightly longer than I intended. We would have tabled probing amendments, had not the hon. Gentleman fortuitously tabled his. We support the Government, but we want the two Houses of Parliament to decide such matters, as we do not see the point in enacting a Bill that will be rapidly deconstructed by courts applying the Human Rights Act 1998. If the hon. Lady persuades us that the provision is judge-proof, we will join her in not supporting the Liberal Democrat amendments. However, if she does not persuade us of that, there may well be merit in the words of the hon. Member for Sutton and Cheam, and we should not dismiss him out of hand. It sticks in my craw to say that: life can be hard at times.

The hon. Lady has the power to put our minds at rest by dismissing my concerns, but she can only do so by taking us into her confidence on the European convention on human rights. I readily accept that she is not keen on releasing legal advice, as past events in Committee have shown. However, she lifted a good quarter of the veil in her written answer, so she may as well go the rest of the way and give the curtain a good tug.

 
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