---

The Earl of Onslow: I have listened to practically all of this debate. What has come out is that if we take away that benefit, crime will go up. The noble Baroness has not addressed that problem. She has rightly brought up the problem of the poorer estates that are vandalised. But will the taking away of benefit prevent one incidence of aerosol spraying, one television being nicked or one drug being pushed? Until she answers that question, I suggest that we should listen very carefully to what the noble Baroness, Lady Kennedy, said.

7.30 p.m.

Baroness Hollis of Heigham: The noble Earl is absolutely right to say that I have not answered that question. I have not come to it yet. I shall now do so, because that is the whole point of having pilots.

I do not accept the validity of criticisms which focus on this matter as if it were simply a criminal justice measure and see it only as a punishment measure designed to deter breaches, though we believe that also. We hope and expect that it will deter breaches because the completion of their community sentence is in the best interests of offenders. That is why the court in its wisdom made that judgment in the first place. It is not the DSS but the courts which decide that community sentences are the best way of providing punishment, reparation and rehabilitation. I should have thought that your Lordships would want to see anything that strengthens the capacity of the criminal justice system to deliver compliance with community sentences.

I acknowledge that there will be some who interpret the withdrawal of benefit as the punishment for something they have done or failed to do. At this stage, that is not our primary intent. What we are doing is attaching an extra condition to benefit. If you seek benefit, one of the conditions for retaining it is that you comply with a community sentence.

A few noble Lords--primarily those who have considerable expertise in this field--have raised ECHR issues. I refer in particular to the noble Lord, Lord Goodhart, and, to a lesser extent perhaps, the noble Lord, Lord Higgins. Those points were answered fully and elegantly by my noble friend Lord Goldsmith and so I shall not seek to answer the ECHR points in great detail. I shall defer to my noble friend Lord Goldsmith on those points. But I want to say that the statement I have signed on the face of the

22 May 2000 : Column 545

Bill--under Section 19 of the Human Rights Act 1998--I did not sign lightly; nor is it included in the Bill lightly. I took thorough advice and I sought repeated advice. After that I have had full legal advice. I believe that the case I have outlined, that this measure is part of the redefinition of the principles according to which benefit payments are made, is a strong one and an important element in the defence of any challenges to those measures in the courts. As my noble friend Lord Goldsmith said, we believe that these measures are proportionate to our objective aims and can and will withstand legal challenge.

Lord Goodhart: I am grateful to the Minister for giving way. Can she explain why the Government thought it necessary to impose this penalty immediately rather than wait until the court had in fact confirmed that there had been a breach of the order?

Baroness Hollis of Heigham: I am not going to duck this issue. I shall come on to precisely that point. But the noble Lord, with his experience, and his noble friend Lord Russell will know that in all DSS matters the decision to revoke a benefit on the grounds that there has been an infringement of the conditions of that benefit, whether a failure to turn up for an interview or a failure to hold down a job, is determined by the decision-maker in the DSS. It is no different here. It is determined by the decision-maker in the DSS on the evidence submitted by the probation officer.

Lord Goodhart: With great respect, who is a decision-maker here? It seems to me that under Clause 61 the consequences follow automatically. As soon as the information is laid, the consequences follow. No one takes a decision on that until the court does.

Baroness Hollis of Heigham: They no more or no less make a decision than they do on, for example, sanctioning JSA for failure to observe work-related conditions or, for example, the removal of some of the incapacity benefits--DLA and so on--on the grounds of medical evidence. In one case we get information from the employer and the decision-maker makes that decision; in another case the information on medical benefits will come from the doctor and the decision-maker--the DSS--will take that decision. In this case the information will come from the probation officer and the DSS decision-maker will make that decision. The analogy is complete. That is how the DSS works.

Decisions about the infringement of conditions of benefit in all of these areas have, ever since the DSS was established, been made by the DSS. That is why it is so important for me to try to seek to explain to the Committee that what we are concerned about here is the condition of benefit, as opposed to questions of second punishments and so on, on which, as a result, the decision-maker in the DSS will say that the benefit conditions have been infringed in exactly the same way as the doctor may say it or the employer may say it. On the basis of that information from the probation officer, the decision-maker will make a judgment.

22 May 2000 : Column 546

The noble Lord, Lord Dholakia, raised a point. However, as the noble Lord is not in his place, I shall write to him. The noble Baroness, Lady Kennedy, made a similar point. She suggested that these measures would be particularly harsh in their effect on women either because--I do not wish to misquote her--more women may be receiving community sentences or, alternatively, and possibly as well, because they have additional responsibilities that might make it more difficult for them to comply with community sentences. It is true that women have additional responsibilities. That is perhaps one reason why very few of them are given community sentences. Only 14 per cent of the 27,000 sentences given in 1998 were to women. But in laying down the conditions for those sentences, the courts and the Probation Service already take care to set conditions which take into account their other responsibilities. I would be amazed if in the case mentioned by my noble friend--the person whose child was seriously ill during the night--the probation officer did not think that that was a reasonable ground for not turning up for an interview the next day.

Baroness Kennedy of The Shaws: Perhaps I may deal with that point because it concerns the position of the probation officer being equivalent to, for example, a doctor saying that someone is no longer disabled. It really is not equivalent because what probation officers will say is that the duty rests with them. If someone is 20 minutes late, it is taken as a non-attendance. Whatever their excuse for being late, a non-attendance is marked as a failure. That is one failure. You need only one other failure. I mentioned a child keeping his mother awake at night, perhaps because of nightmares or earache. That is not enough to call out a doctor in the middle of the night; and what the Probation Service is not allowed to accept, and does not get from doctors, is retrospective medical notes. Doctors are not prepared to give families retrospective medical notes. The probation officer is therefore faced with two instances of failure to comply and an automatic obligation to inform the court and, in turn now, the benefit office. That is where the Probation Service feels most in despair about this requirement from government.

Baroness Hollis of Heigham: I should like to make two points in response. First, as my noble friend will know, women, including those with families and additional responsibilities, comply far better with community sentences than do men. If my noble friend's point was right, they would be less likely to comply.

Secondly, if my noble friend was right to say that their reasons were not acceptable, surely that would be taken into account by the courts. Perhaps I may proceed with this point before noble Lords intervene. We know that, of the 130,000 community orders issued each year, a little under 30,000 are breached. Less than one-half of 1 per cent of those, when they are reported to the courts, are not upheld by the courts. That

22 May 2000 : Column 547

amounts to around 400 cases out of a total of 30,000. Furthermore, 200 or so of those 400 cases are withdrawn.

In terms of the acceptability of the behaviour of probation officers in the judgment of the courts in upholding that behaviour, there is a far more professional standard of evidence and an infinitely higher standard of acceptance of that evidence. By contrast, in the case of doctors' submissions on DLA cases, around 40 per cent of decisions are overturned on appeal. Similarly, a high percentage of JSA cases are overturned on employers' evidence at tribunal. In that sense, the standard of evidence submitted by probation officers to the DSS that a benefit has been infringed is not only higher, but also is almost universally upheld by the courts.

Other noble Lords have raised questions as regards the timing of the sanction. I believe that the noble Lord, Lord Baker, referred to this. It is imposed at the point when the offender is referred back to the court for an "alleged breach" rather than after the court has found the breach proven. I hope that I am not putting an argument into the noble Lord's mouth, but several noble Lords have made that point. Our procedures follow those already in place as regards social security matters.

---