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Lord Ackner: Before the noble Lords sits down, can he help me in this matter? He says that the real question is whether there has been a breach of Article 6. Is not the real question whether punishment before conviction is an insult to one's elementary sense of fairness?

The niceties of the European law, deeply stimulating to the lawyer, have absolutely no relevance to the question here of fairness. How does he deal with that?

Lord Goldsmith: It is very refreshing to hear the noble and learned Lord, Lord Ackner, dismiss law in that way. As the noble and learned Lord will have heard, my observations to your Lordships were addressed to one argument which has been advanced in support of the proposition that these clauses should not stand part of the Bill, namely that these provisions will be unlawful.

I made it very plain that it was no part of what I was dealing with to say anything about the policy of the matter. That is for your Lordships to determine and others on both sides of the House have spoken eloquently about it.

So far as the law is concerned I believe, particularly in the light of the observations of the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Goodhart, and of others, that it is important to address the question of legality. That is what I have sought to do and I hope that it will be of some assistance to your Lordships.

Lord Phillips of Sudbury: The noble Lord, Lord Goldsmith, spoke of other jurisdictions and used the words "minor administrative penalties". Is it the noble Lord's thinking that withdrawal of benefits could conceivably be viewed as minor in the circumstances with which we are dealing here?

Lord Goldsmith: Yes. I emphasise the limit in terms of time and in terms of amount. I do not doubt for a moment that, for the individual involved, the effect is significant; but when one looks at this in the overall context of the criminal law, punishments, procedures, and puts it in the scale, the European Court of Human Rights has recognised that, so long as there is a right of review by a court which offers these guarantees--which the magistrates' court does and which is required under this Act--then it does not breach the European Convention on Human Rights. As the noble Lord puts it, the punishment is placed first or, as I believe the Minister will explain it, the condition for the benefit is triggered at an earlier stage. I was prepared to approach it on the basis of punishment, in order to deal with the argument.

Lord Warner: I apologise for missing the beginning of this debate, but I have an excuse. Perhaps I may offer the excuse to your Lordships and make a few

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comments on this issue from my perspective as chairman of the Youth Justice Board. I have been out of London, launching a youth offending team, following the excellent report from the Audit Commission on misspent youth. I am pleased to be able to say that these changes are going extremely well.

Perhaps I may be allowed to offer a few points on the policy underlying this. If it is your Lordships' wish that I should not then I will, of course, sit down.

I will take that silence as consent to go ahead! First, there is the issue of conditionality. There is in this provision the notion of conditionality of benefit. This is not a new principle. Conditionality for paying benefit is a long-established principle, as I know from my own experience of working in social security.

What may be deemed a little novel is the idea that conditionality should be linked to breaches of criminal justice orders. The conditionality of social security benefit payments, however, is part and parcel of the individual's contract with the state. The state agrees to pay benefits on certain conditions if certain contingencies arise. We are doing no more in this provision, I suggest, than extending that to another part of the individual's contract with the state. In this circumstance the contract is one in which the individual has undertaken to abide by the terms of a particular court order. The terms of the court order and the arrangements for its enforcement have been made clear to that individual. This provision does no more than produce a lower alternative penalty than the existing arrangements for breaches of that court order, which is imprisonment.

The noble Baroness has made it clear that the terms of this punishment will be no more than a four-week deprivation of the benefit and there will be hardship provisions. That does not seem to me to be a very onerous set of circumstances if you consider the alternative, which might be imprisonment for the breaches of the court order.

The noble Lord, Lord Baker, implied that all wisdom in these matters should reside in the Home Office. A lot of wisdom does reside in the Home Office. I suggest to the noble Lord, however, that it is also apparent that not all of the changes which the previous government introduced to the criminal justice system were the result of carefully researched and weighed proposals, supported by a basis of academic research. Sometimes, I suggest, people make judgments about sensible ways forward in the light of circumstances which people face.

On the issue of whether or not people understand, it seems to me that the suggestion that people do not understand the consequences of a community order is rather patronising. They have been through this process. The circumstances have been explained to them. They have knowingly breached the contract that they have undertaken to carry out. The response proposed in this clause, it seems to me, is proportionate to the offence that they have committed.

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7 p.m.

Lord Ackner: Before the noble Lord sits down, I have a question for him. I understand his application, generally, of the principle of "conditionality", but I should like some assistance on the following: who is to establish whether the condition has been broken?

Lord Warner: The decision maker responsible for the enforcement of the community order in the first place would draw the attention of the justice to the fact that there has been a breach of the condition.

Lord Ackner: To say that someone would draw the attention of the justice to the fact that there has been a breach seems to concede that the court is the organ which makes the decision.

Baroness Hollis of Heigham: Perhaps I may assist the noble and learned Lord. The procedure is virtually identical to one where an employer, for example, reports to the DSS that someone has voluntarily left work or, indeed, where a doctor dealing with an incapacity benefit or DLA form has stated that the person is better and no longer entitled to claim. Such information would be re-laid to the decision maker within the DSS who makes the decision. The same procedure would be followed here.

Lord Phillips of Sudbury: Members of the Committee are grappling with what is ultimately a practical issue, not a theoretical one; namely, whether this clause will or will not assist the aims that we all share to reduce criminality and aid the rehabilitation of offenders. The noble Lord, Lord Warner, has a great deal of experience in these matters, so I put this question to him. Can he say why the National Association of Probation Officers, whose members will have more to do with this than any other group of people, is so fiercely opposed to this clause?

Lord Warner: I do not wish to trade views on the National Association of Probation Officers with the noble Lord. However, the association has not always supported well-intentioned and well-thought-out reforms for some parts of the criminal justice system. On this occasion, it is possible that, like all human beings, it may be in error as to the possible consequences.

Lord Stoddart of Swindon: I have been sitting here throughout the debate. Therefore, I intend to say a few words on the subject. I thought that we believed in equality before the law in this country. However, it seems to me that there is no equality before the law in this case because some people can be punished in advance of being convicted. So there is no equality before the law. That is a tenet that we ought always to keep in mind.

My noble friend Lord Brookman said that something must be done, which is something that we are always hearing. Of course, something must be done; but what must be done must be right. I do not believe that what we are proposing to do here today

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under this clause is the right way to proceed. Indeed, if such a provision had been proposed by a Tory government and put forward by, for example, Mr Redwood, there would have been a public outcry. I also have a feeling that that public outcry would have been very ably and brilliantly articulated by my noble friend the Minister--and quite rightly so. I am sorry that she is not doing that today.

My noble friend Lady Kennedy of The Shaws is not without friends on these Benches. I am glad that she is not without friends because if the Labour Party is about anything, it is about justice. It is certainly about justice for the poorest people in our community. That is another reason why I believe that this clause is wrong. It does not do the right thing for our people--I repeat, "for our people".

I should also like to add that our justice system does not usually embark upon administrative punishments. People in this country have believed over many hundreds of years that justice must not only be done, it must be seen to be done. Administrative justice taken in an office in Whitehall, or elsewhere in a regional office out in the country, cannot be seen to be done; indeed, justice cannot be seen to be done. On every count, there is no way in a democratic country that such a provision should be written into our law. Like my noble friend Lord Christopher, I hope that my noble friend the Minister will give us the assurance tonight that she will take this provision away and reflect further upon it. If she does not and the matter goes to a vote, I shall feel tempted--perhaps obliged--to vote with those who oppose the Question that Clause 61 stand part of the Bill.

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