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Baroness Kennedy of The Shaws: My Lords, perhaps I, too, may express contentment that the Minister has made this concession. The government amendments go some way to meet the concerns expressed at previous stages by those who put their names to the amendments tabled by the noble Lord, Lord Windlesham. Like the noble Lord, I am deeply concerned that conditionality is to be extended in this way to include behaviour such as breaches of community service or of probation orders. Once the state decides that persons who are not well behaved should lose benefit it treads a very dangerous road. However, for the moment the Government are not to be moved on that matter. I hope that in the fullness of time they may be persuaded not to take this authoritarian route, which I deeply regret. However, I am pleased that the Government recognise the need for due process before anyone is at risk of losing benefit.

I am also delighted that by Amendment No. 12 my noble friend Lady Hollis seeks to add the words "without reasonable excuse". This means that a probation officer has a greater degree of discretion than originally provided for in the Bill. It also means that there would not be a reference to the court or the benefits office in cases where there had been a failure to attend perhaps because of illness, responsibilities towards children or other matters, which would greatly concern noble Lords and the community at large. Many people on community service and probation orders have multiple social problems and it is difficult to get their lives back on track. This is not about being paternalistic but about recognising the reality of the problems faced by people who are on

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probation. Sometimes probation officers are very reluctant to see people lose benefit because that loss only adds to their problems and exposes them to greater risk of committing crime. I am grateful that the new wording has been included so that the matter will be referred either to the court or the benefits office only where there is no reasonable excuse. I support the amendments.

Earl Russell: My Lords, I should like to express my great gratitude to the Minister and the noble Lord, Lord Windlesham, for the work they have put into these amendments. First and foremost, they are a conspicuous demonstration of the virtues of political skill. These days political skill is not always admired as I believe it should be. As with the skill of a good soldier, so the skill of a good politician is often best expressed in the avoidance of unnecessary battles. That is what has happened here, and I welcome it very warmly.

Like the noble Baroness, Lady Kennedy, I welcome in particular the introduction of the concept of reasonable excuse. I recall that the Minister and I clashed on Report on the interpretation of the old test. The Minister has proved herself to be right in the most delightful manner possible, for which I thank her.

I shall not reopen the argument about the clause as a whole. I agree with everything said by the noble Lord, Lord Windlesham, and the noble Baroness, Lady Kennedy. However, as the noble Lord, Lord Windlesham, said, that is for another day. Meanwhile, if the Minister will forgive me, I have just one slightly light-hearted remark to make. Whenever I observe a government Minister correcting our drafting, I am irresistibly reminded of a cat washing its kittens. It was needed, and it was well done.

Baroness Carnegy of Lour: My Lords, earlier today the Minister was kind enough to tell me that she would endeavour to discover whether the changed procedure in Scotland had been worked out. I do not know whether the Minister is yet able to give me that information or will write to me subsequently. However, on 10th July in response to a Question for Written Answer tabled by my noble friend Lord Windlesham, the Minister described the procedure in Scotland before the change. It is important to know whether the new procedure has been settled.

I remain anxious about the absence of a pilot scheme in Scotland. Obviously, it is possible to tell from a pilot scheme in England the reaction of young offenders to the loss of benefit. However, it is not possible to tell from such a pilot scheme whether the system will work smoothly. My colleague Mr David McLetchie, a Member of the Scottish Parliament, has tabled a Question asking whether the Scottish Executive under its devolved powers is willing to run a pilot scheme. I hope that that is helpful. The Government have not seen fit to ask the Scottish Executive about it.

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However, if that Question brings about such a pilot scheme, it should help the smooth working of the scheme.

9.15 p.m.

Lord Higgins: My Lords, after the matter was raised at Second Reading by my noble friend Lord Windlesham we had fine debates in Committee and on Report on the complex issues raised by the Government's original proposals. Like my noble friend I should have preferred the matter not to have appeared in the form that it did in the first place. None the less I am very glad that the Minister has prepared a series of amendments in conjunction with my noble friend which meet the main points raised even though the situation may not be perfect.

Much was said in Committee and on Report about whether the Government's original formula was contrary to the European Convention on Human Rights. Despite the fact that there was a division of opinion then, my personal view is that the amendments before us will get the Minister off the hook. If we had not had these amendments, I believe that that would not have been the case.

As on previous occasions, I am reminded of the late Iain Macleod's dictum. When a government Minister made a major concession, he replied, "You don't shoot Santa Clause". I have always taken that to mean that one does not continue to debate indefinitely when the Minister has made the concession. On that basis, I congratulate my noble friend and the other all-party signatories on the matter. I believe that we, as a revising Chamber, have fulfilled the duty which falls upon us.

Baroness Hollis of Heigham: My Lords, I am grateful for the warm welcome given to the amendments. Perhaps I may respond to the substantive point raised by the noble Baroness, Lady Carnegy of Lour. Because social security is not a devolved matter, the Scottish Executive has no power to pilot the scheme. If the finding of the pilots in England and Wales suggest that a pilot in Scotland would be desirable before the possibility of extending the policy nationally is determined, we shall consider that in consultation with the Scottish Executive. Although the procedures differ between the two, we think that similar operational issues would arise. But if we have any reason to think otherwise we shall pursue the matter further.

I am grateful for the remark about not shooting Santa Clause, particularly as the noble Lord sought to do precisely that when I was accepting Amendment No. 3 on behalf of my noble friend Lady Castle. To refer to accepting an amendment as "mugging" is not the usual meaning of the word. None the less, in the spirit of good will and harmony I am grateful to your Lordships.

On Question, amendment agreed to.

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Earl Russell moved Amendment No. 13:

    Page 65, line 7, leave out from ("(5),") to end of line 8 and insert ("the court may impose a loss of benefit at a rate not greater than the prescribed amount, and for a period not exceeding the prescribed period").

The noble Earl said: My Lords, in moving Amendment No. 13 I speak also to Amendments Nos. 14 to 18, 20 and 24. This is not intended as a group to reopen any past arguments. The clause is now water under the bridge. The procedure is now water under the bridge. These amendments are concerned with ameliorating the operation of a clause which is not being disputed on this occasion.

The amendments attempt to do two things to the clause. First, they would make penalties under Clauses 63 to 67 non-mandatory. They would allow a discretion in the extent of penalty to be imposed. Secondly, they would reduce the extent of the penalty: the amount to not above 20 per cent and the duration to not above four weeks. These are serious, practical proposals which contradict nothing which has happened in the House so far.

I have always thought that if a mandatory sentence happened to be just it could only ever possibly be so by coincidence. The point about a penalty is that the punishment should fit the crime, not the criminal offence. Even with a criminal offence so grave as murder, one murder, as we all know, is not the same as another. I shall not elaborate on the argument. It is familiar. But circumstances must always affect cases.

I noticed recently a report in the newspapers of a very early case brought under a parenting order. A woman's child was failing to attend school regularly. She made the point, very reasonably I thought, that she was not in a good position to check whether the child was going to school since in this glorious flexible labour market of ours she was required to start work at 4.30 every morning. In those circumstances, I should have thought one might at least think twice about whether some mitigation of penalty were reasonable. On the other hand, if someone were offending for the fifth or sixth time, one might possibly consider whether some increase of penalty might be in order. Simply making it all flat rate, a mathematical tariff, is Plato's theory of justice again. I have never believed in it. I still do not.

As regards the amount, I am sure that the Minister will argue that the purpose of a sanction is to cause hardship. That is not immediately in issue as at this moment no argument is being made about whether there should be a sanction. The question is one of proportionality between the offence and the sanction imposed on it and how much hardship should be imposed in relation to how much offence.

I suspect that the Minister will say that there should be enough to cause compliance, but, if you consider the history of the criminal law, that must always be a utopian objective. Even when death was the normal penalty, it never once stopped offending. Even in countries which apply Sharia law, it never stops offending. I am afraid that offending will go on as long as human beings go on. If that is the Minister's objective, she will never achieve it.

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Therefore, we need to know how much suffering is caused and what is the effect of applying sanctions at any particular level. I presume from the present shape of the clause that the Minister believes that 20 per cent is not enough. I look forward to hearing her tell me why she believes that 20 per cent is not enough and we may perhaps carry on the debate from there. I beg to move.

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