Child Support, Pensions and Social Security Bill

– in the House of Lords at 3:12 pm on 27th June 2000.

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Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security 3:12 pm, 27th June 2000

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.--(Baroness Hollis of Heigham.)

On Question, Motion agreed to.

Clause 38 [Preservation of rights in respect of additional pensions]:

Photo of Lord Rix Lord Rix Crossbench

moved Amendment No. 74:

Page 33, line 22, after ("provide,") insert ("subject to subsection (4C) below,").

Photo of Lord Rix Lord Rix Crossbench

My Lords, I understand that psychologists explain both ancient and modern Sisyphean insistence on pushing boulders up mountains, only to see them roll down again, by a deeply-rooted conviction that a little ground is gained each time and the labour has not been therefore wholly in vain. Like my noble friend Lady Greengross, who is to follow me, whose labours I support, I am pushing once more in the hope of again gaining a little ground with Amendments Nos. 74 and 76. I note that the noble Lord, Lord Higgins, is more ambitious and is offering the prospect of solving all our problems by a substantial reversal of the onus of proof.

There are essentially three views on the SERPS saga, assuming agreement that all has not been as it should have been. View one is that the halving of SERPS inheritance was simply wrong and should be cancelled in its entirety. That is a tenable view, but I think that the battle has been lost. View two is that in failing to advertise the change, and indeed in positively denying the change, the department lost the right to save on pension inheritance for the whole period of duff information and all the people who are potentially affected by that duff information. That view is also valid, although I fear it, too, represents a lost battle.

The third view is that at least we should give special treatment within a compensation scheme to those who have been particularly disadvantaged, preferably on the face of the Bill, but in regulations and through ministerial undertakings about the scope of those regulations, if this is the best we can do. It is this third view that I am continuing to pursue today. If the Minister is turning her face against the face of the Bill--I coin a phrase, as it were--and if we could see the regulations in draft during the summer as part of the consultation process, it would assure us that these regulations will allay fears about the way in which claims would be handled.

I have, very modestly, targeted just two groups to add to those who have given incorrect or incomplete information either by letter or by telephone. I confess that I would have liked to include a further group; namely, those who had retired before the department became a little more forthcoming with the facts. I sense that I am on a loosing wicket with this one, too; but, rather like the England Test team, at least I can blame the wicket rather than the batsman. Nevertheless, I hope those other batsmen who have already retired are given a second innings when the rules of the game are being rewritten.

My surviving two groups are those who relied on departmental leaflets which were clearly misleading, and those who, whatever they may or may not have relied on, are now, by virtue of disability, unable to defend their own interests in pursuing a compensation claim. My noble friend Lady Greengross is targeting a third group of people who asked questions and might reasonably have expected to receive the right answers, whereas what they actually received was misleading or incomplete.

I hope very much that the Minister will be able to offer today the assurances we are both seeking about justice being done. Were she minded to underpin justice by accepting the amendment of the noble Lord, Lord Higgins, so be it. I beg to move.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, I must begin by congratulating the noble Lord, Lord Rix, on the way in which over a considerable period of time he has pursued this issue. As a result of that there has been a greater clarification of the present position. This matter first came to light some considerable time ago. Indeed, we debated it at length in the course of the debates on the Welfare Reform and Pensions Bill in October 1999. Subsequently there have been statements by the Government, notably on 15th March of this year, saying what the Government intend to do about it.

However, I am concerned about the timing and the way in which this matter has developed. It has been a considerable time since the matter first came to light. In the course of the debates last year we were told that there was to be an ombudsman's report. That report was in due course produced. But it took one year to produce it when the ombudsman merely examined six illustrative cases. That was a very long time indeed to deal with six illustrative cases. It is also true, as I pointed out on previous occasions, that the ombudsman's report was far from clear on precisely what its recommendations were, although the Government have said that they accept them.

That is really the basis of my amendment. I comment only briefly on Amendment No. 76 standing in the name of the noble Lord, Lord Rix. Paragraph (b) of the amendment deals with people who,

"have a serious mental disability and as a result they are incapable of establishing a claim and they are likely to remain incapable throughout the duration of the scheme".

Whatever else may happen, I certainly hope that when the Government come to produce their final scheme they will include provision for that category of person and others who may, in one way or another, be either physically or mentally incapable of dealing with the matter.

The earlier part of the noble Lord's amendment states that:

"A person shall be deemed to have received incomplete or incorrect information and to have relied on it if--

(a) they read one of the relevant Benefits Agency leaflets and took the incorrect or incomplete information contained in it into account", when deciding what to do. Essentially, people who wish to receive compensation under the Government's proposals now face two hurdles, or at least that appears to be the case until eventually we discover what are the precise proposals. The first hurdle is that the person making the claim needs to demonstrate that he or she was misled or received incomplete information. The second hurdle is to prove that, as a result, he or she sustained a loss in one way or another.

Estimates of the amounts involved in terms of costs vary considerably, but there is little doubt that this sad saga is probably the most expensive administrative mistake of all time. I believe that the estimates vary between £2.5 billion up to £5.9 billion between 2000 and 2050. Of course, those costs will be spread over some 50 years. Nonetheless, this will be a major item of expenditure. We do not know how, in practice, the Government's proposals are going to work. We are still remarkably in the dark on this.

In his opening remarks, the noble Lord, Lord Rix, said that my proposal covered the whole problem. However, it covers only half of the problem. My amendment states that,

"regulations shall be based on the presumption that claimants have received incorrect or incomplete information unless the Secretary of State provides proof that the information the claimant received was correct and complete".

My amendment, unlike that in the name of the noble Lord, Lord Rix, does not deal with the second leg of the argument; namely, whether people did or did not incur losses as a result of having been misled.

That brings me to the report of the ombudsman. I shall need to quote from it at some length at the point at which he discusses what happens when a department makes an administrative error. The ombudsman wrote to me in response to my inquiry, following an exchange on the Floor of the House in which the Minister said that if I wanted to know the opinion of the ombudsman, then I should write to ask him. I did so. This is part of his reply:

"It is reasonable in such circumstances to ask someone who claims to have been misled and to have suffered an injustice to prove his or her case. That is the normal requirement before the Department of Social Security will consider compensating someone who claims to have been misled or misdirected by the Department and as a consequence to have acted, or failed to act, in a way that has been to his or her disadvantage".

The ombudsman goes on to say:

"In the case of SERPS, the Department's leaflets were not accurate; and incomplete and misleading advice was given by staff of the Department and the Benefits Agency. The department has acknowledged that".

In the course of his investigations, he concludes:

"I suggested to the Department that the onus of proof was therefore reversed. It was for the Department to prove that someone would not have acted differently if they had not been misinformed. It seemed to me that the normal rules of the Department's non-statutory scheme of financial redress for maladministration would be inappropriate. The presumption had to be that anyone who could reasonably claim to have been misled and in consequence to have acted, or failed to act, to their detriment had a prima facie claim for redress".

My amendment therefore states that it is accepted by the Government and by Parliament that people were misled. The reason for that is twofold: either they received the leaflet, in which case there cannot be the slightest doubt that people were misled--especially when taking into account the report from the ombudsman; or alternatively, for one reason or another they did not receive the leaflet and, as a result, they will have assumed that the original situation remained the same--that their widows would have been entitled to the full amount of SERPS. For those reasons, all my amendment--which is modest--seeks to do is to ensure that the Government's position is set out very clearly on the face of the Bill. It is extremely important that that should be done at this stage.

In his report the ombudsman stated that the department,

"will also need to take account of the fact that most of those misled by DSS or BA are likely as a result to have decided no action on their part was needed, because they had been led to believe that a surviving spouse was secure in an entitlement to full inheritable SERPS".

Thus, if my amendment is accepted, the overall effect would be to ensure that the individuals concerned will be told in the leaflets to be issued in due course by the department that they do not have to prove, unless the department can prove to the contrary, that they were misled. However, they will still have to prove that they suffered loss as a result. In that regard perhaps my amendment is a little more rigorous than that tabled by the noble Lord, Lord Rix.

At the beginning of my remarks I stated that I was worried about the length of time it has taken to reach a resolution on this issue. We still do not know precisely what are the Government's proposals. In his report, the ombudsman pointed out that he, too, did not know the details and therefore he was unable to comment at this stage. One might think that he could perhaps have reported a little more broadly. In any event, given that this matter has been under consideration quite literally for years, we cannot simply leave it until the regulations are published. We need to reach a point where, at least as regards the first hurdle, we know exactly where we stand. I hope that that point can be clarified this afternoon.

Surely the department has by now some idea of what is to be contained in the regulations. Perhaps, as she has done so often and so courteously in the past, the Minister could provide us with them at this stage so that they could be debated during the course of the passage of this Bill. If we wait then we shall not be able to discuss them and to put down amendments to the Bill which could cover any points that we did not like, given that the regulations themselves will not be subject to amendment. It will be too late for this House to take a view on what should be done. We shall remain in ignorance of the exact details here.

At least as far as concerns the first hurdle, I hope that, when the House considers Amendment No. 75, it will take the view that this point should be clarified beyond any doubt whatever.

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, on previous occasions I have expressed grave reservations about whether a protected rights scheme is the best way to address the awful problem of inherited SERPS. However, today I shall limit my comments to the amendments before the House, which look at who should be covered by the scheme.

I very much welcome the amendment tabled by my noble friend Lord Rix. It has my full support and I hope that it will receive the support of the Government. I also have a great deal of sympathy with the approach adopted by the noble Lord, Lord Higgins, in his amendment. His amendment accepts that there is an obligation, albeit a moral one, for people to be positively informed of changes.

Amendment No. 76A, standing in my name, is a modest attempt to explore the current view on the definition of "incomplete information". It attempts to highlight the position of some people who fall into the category of being, not misinformed, but only not informed. They have a particular reason to believe that they should have been told of any changes. This might include those who, prior to 1986, based their decisions to contribute to SERPS at least in part on information they had been given as regards the inheritance provisions. Those people may have sought information about their future pension rights, but may not have asked specifically about the situation as regards their spouses, because I think that they would have taken it for granted.

I wish to consider in particular those people who asked for a pension forecast in order to plan their retirement. They were given one, but one without any specific guidance as regards their spouses. A number of people who have contacted organisations such as Age Concern have found themselves in this position. They believe that the information they received was incomplete because, although they were given detailed information about their future pensions, no reference was made at the time to changes in the law. I appreciate that consultation is on-going and that there will be further opportunities to consider the regulations. However, I would very much welcome the Minister's assurance that in looking at the definition of "incorrect or incomplete information" careful consideration will be given to the issues I have outlined.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 3:30 pm, 27th June 2000

My Lords, on behalf of these Benches I support the spirit behind all these amendments. I pay particular tribute to the noble Lord, Lord Rix, who has fought the battle in this House extremely valiantly and with good effect. I hope that he will continue to have that effect. He is now supported on the Cross-Benches--he was not when the battle began some considerable time ago--by the noble Baroness, Lady Greengross. I also support the amendment spoken to by the noble Lord, Lord Higgins.

As the noble Lord pointed out, there has been a cock-up on a massive scale in which a great many people have suffered. It is not by any means easy to decide who has and who has not suffered. It is something about which we on these Benches have felt very strongly ever since the matter was first raised in Parliament, which I believe was towards the end of 1998 by my honourable friend Mr David Rendel in another place.

This is a case where justice has to be done to the many people who have suffered. I very much hope that the Minister will be able to reassure us that when the regulations are published, which cannot be too soon, they will take into account the points raised in these amendments and in the debates which have taken place on this and other occasions.

Photo of Lord Renton Lord Renton Conservative

My Lords, I agree with noble Lords and the noble Baroness, Lady Greengross, who have tabled amendments to Clause 38. There is no doubt that confusion could arise unless something is done. I say in passing that for reasons connected with the mentally handicapped, among others, the noble Lord, Lord Rix, and I have tried our best to help. But on this occasion I prefer Amendment No. 75 in the name of my noble friend Lord Higgins. I believe that this matter would be more forcefully and clearly dealt with if that were done in accordance with regulations to be drafted. For that reason, and if the matter comes to a Division, I would be obliged to support my noble friend.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I was unable to be present when this matter was discussed in Committee. I had to catch an aeroplane. I have read the debate and I am filled with admiration for the clarity with which noble Lords on all sides of the House discussed the matter. The issues are perfectly plain as a result of that discussion, and that is very clever considering that it took place between 10.15 and 11 at night. That was wholly admirable. I pay tribute to noble Lords. My noble friend Lord Higgins, the noble Lord, Lord Rix, and the noble Baroness, Lady Greengross, have reiterated their concerns.

I speak in particular to Amendment No. 75 because it is all-embracing. It is a very important principle. The nub of the matter is that the ombudsman said that the burden of proof should be shifted and the onus should be on the department to prove that a person has not been misled, instead of a person having to prove that he had been. The Government have accepted that in a number of ways and they are on record as having done so.

The Government want to put that decision into action following consultation and by their own route through regulations. Although the noble Lord, Lord Goodhart, said from the Liberal Democrat Benches that he supported all the amendments, he seemed to believe that regulations would do. My noble friend makes the point that the principle should be enshrined on the face of the Bill. We have not seen the regulations and it does not appear that we shall until the Bill has become law. Unless something of that nature is put on the face of the Bill we cannot be sure that this clear principle will be included.

I hope that the House and the Minister will accept my noble friend's amendment. If she does not, she needs to give us a full assurance that a government amendment would make the point clear at Third Reading. I do not believe that the House should leave the matter to chance. Regulations are not a suitable method for implementing this matter in any case because the detail will count. Unless we are sure that the principle is there the regulations may easily escape. I support my noble friend's amendment, as my noble friend Lord Renton has done.

Photo of Lord Elton Lord Elton Conservative

My Lords, I rise to speak briefly only because the noble Baroness, Lady Greengross, in speaking to her amendment, said in her closing remarks that in some way a palliative might be applied to her wish to have an amendment involving a reduction and that there would be regulations which we could discuss. The frustration of this place is that we can discuss regulations but we cannot amend them. Almost never do we reject them. I cannot remember when regulations were rejected. Therefore, once we get to Third Reading and beyond, the rabbit is out of the hutch and there is nothing that can be done. The Government always prefer to proceed by regulation for fairly obvious reasons. My noble friend has left them with the opportunity, but merely stated the principle on which the regulations should be based. I should have thought that we are all agreed on that. I hope that his amendment can be accepted.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, we have debated the issue of inherited SERPS on many occasions. Like your Lordships, I endorse the tenacity, good humour and degree of detailed information that the noble Lord, Lord Rix, has brought to this matter on numerous occasions. I admire some of those virtues more than others.

We shall debate the matter once again once the regulations for the inherited SERPS scheme are drafted. I know that noble Lords opposite are suddenly filled with distaste for regulations, but perhaps I may point out that for 18 happy years the government of that time were perfectly pleased to carry quite substantial items through regulations without their necessarily being in the affirmative. This sudden change of heart when in Opposition is rather churlish. We are rather more scrupulous about using the affirmative rather than the negative procedure compared with the previous government.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, does not the noble Baroness agree that the issue we are now talking about is of a magnitude unlike almost any other for so many people? To have to deal with that matter by regulations in this House seems churlish.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, on the contrary, we shall be bringing forward the structure of a scheme, but its details may involve quite specific levels of payment. They need to be uprated without having to return to primary legislation, otherwise we shall fall foul of the Henry VIII principle. It been well established in the field of social security that matters involving numbers normally have to be dealt with through regulations for uprating without involving primary legislation and all its consequences.

Photo of Baroness Warnock Baroness Warnock Crossbench

My Lords, I am grateful to the noble Baroness for giving way. The point is not that the detail has to be on the face of the Bill, but the principle. If the principle is there we may be content for the detail to come through regulations. I also point out that it may be true that a great deal was done by the Conservative government through regulations, but that was not willingly accepted by many Members on the Cross-Benches.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, I do not mean to sound discourteous, but noble Lords who have a particular concern often wish to see matters on the face of the Bill which in other areas they would regard as inappropriate because they are either declaratory or, alternatively, far too detailed.

Noble Lords will know, particularly on the Benches opposite--I see a smile of recognition from the noble Lord, Lord Higgins--that parliamentary draftsmen are very anxious that legislation should be tight and fitted to the appropriate purpose and that it should not embody broad statements of principle on the one hand, which come through statements made at Second Reading, nor the kind of detail that comes through regulations. Obviously, if your Lordships feel that the wording of proposed legislation should be amended, it is in your Lordships' hands to do so. However, so far as I am aware, we are following the broad principle established by parliamentary counsel and accepted by this House over many years.

Consultation about regulations is under way and I am grateful for the constructive contributions that many noble Lords have already made to this exercise. This is a problem that we have inherited. I am particularly grateful to the noble Lord, Lord Rix, for his amendments because it gives me the opportunity to reassure the House about the way in which we envisage deciding claims to the inherited SERPS schemes. It also gives me an opportunity to say a little about how we propose to allow for the situation where a would-be applicant for redress is no longer able to provide evidence of what happened because of mental disability.

As your Lordships know, we undertook to consult widely, including the parliamentary ombudsman, the National Audit Office, the Social Security Advisory Committee, Age Concern, and other organisations, about the operation of the scheme. I am grateful to the noble Lord, Lord Rix, and to the noble Baroness, Lady Greengross, for their contributions.

Our consultations are still progressing and I should not want to prejudge the outcome. I hope noble Lords will also understand where I am coming from and that I cannot anticipate some of the detail on which noble Lords might reasonably seek assurance until those consultations are complete.

This debate has reflected concern about the hoops and hurdles that many fear we may put in the way of applicants for redress. We have accepted the Parliamentary Commissioner's report and we are designing the scheme in a way that provides ready access to redress for those who are entitled to it.

If I disagree with the noble Lord, Lord Rix, it is about the best way to put the provision into law. He prefers to add it to the face of the Bill. While I appreciate his intentions and largely share the aims of his amendment, I should not want to pre-empt the results of the consultation exercise. I therefore prefer that the Government use the greater flexibility that is provided by setting out the detail in regulations. The Bill sets the framework for the scheme, but we are not yet ready to define all the rules in detail and we need the maximum scope to respond to points such as those raised by the noble Lord, and other points that we have probably not yet anticipated.

Having said that, I am clear on the two issues raised by the noble Lord in his amendment. I shall now follow my script quite closely and my words may be made available for circulation to organisations in order to provide advice and at least giving the reassurances that the noble Lord seeks.

The noble Lord's first point related to people who received one of the leaflets that provided incorrect or incomplete information about the rules on inheritance of SERPS additional pension. I am clear that anyone who read one of those leaflets and who took the information contained in the leaflet into account in making decisions about building up their pension satisfies the principal test. That would also include people who took into account information passed on to them by, for example, friends or relations who had read the relevant leaflets. I am happy to confirm that this includes the clients of organisations such as Age Concern and citizens advice bureaux who were given incorrect or incomplete advice obtained originally from the DSS.

When the time comes for people to make their claims, we envisage asking them a few questions about how and roughly when they saw a leaflet. I want to make it clear that we shall not expect them to produce the leaflet or to quote it verbatim. Their own account of what they did is likely in many cases to be enough to reach the decision that they are entitled to redress to have their rights preserved. We have not finally decided what the regulations will say, and I should not want to be prescriptive at this point about all the circumstances we expect to cover, but I am happy to tell your Lordships that we shall make that clear.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, I am grateful to the noble Baroness for giving way. Yes, of course, it is true that if people saw the leaflet or if they were wrongly advised by someone who had seen it, they were misled. But it is also true that people who did not see a leaflet for one reason or another thought that the situation was the same as they had originally thought; consequently they, too, have been misled. In other words, anyone who believed that he or she was entitled to widow's SERPS was misled, and that is what the amendment seeks to address.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security 3:45 pm, 27th June 2000

My Lords, the noble Lord refers to his own amendment. I am dealing with the amendment moved by the noble Lord, Lord Rix. If the noble Lord will do me the courtesy of waiting until I have finished responding to the noble Lord, Lord Rix, I shall be happy to engage in the debate on his amendment and perhaps address his point.

The second part of the amendment of the noble Lord, Lord Rix, deals with people who may have received incorrect or incomplete information but who are no longer able to make a claim for themselves for redress because they suffer a severe and continuing mental disability. That is an issue that the noble Lord helpfully raised as part of our consultations.

I am happy to confirm that we accept the spirit of the noble Lord's amendment and want to make sure that such people are covered in an appropriate way that is unambiguous. I am not in a position now to define precisely what the outcome will be. We have work to do on a definition of the people we should wish to include. We also have more to do to decide exactly how we should allow for people in that situation. But our intention is clear. People with a severe and continuing mental disability will not be disadvantaged in their ability to obtain redress. On that basis, I hope that the noble Lord, Lord Rix, will feel able to withdraw his amendment. I have done my best to give him the assurances that he sought in moving it.

I am grateful also to the noble Baroness, Lady Greengross, for her contributions on this subject. I know that she is concerned that the SERPS scheme should work as effectively as possible. The noble Baroness's amendment refers to circumstances in which a person could reasonably have been expected to be informed about the SERPS reduction and that such circumstances should be taken account of when considering whether or not a person satisfies the first test. As the noble Baroness said, she is concerned that those people who made inquiries about their pension entitlement. For example, they may have asked for a pensions forecast but did not specifically ask about widows entitlement--this overlaps with the concerns of the noble Lord, Lord Higgins--and who had a reasonable expectation to be informed about the widows changes.

The amendment as drafted could have a very wide application. I am not sure whether the noble Baroness is arguing the point, but we could not, for example, accept that her amendment embraced those who might argue that they should have been notified individually of the changes in the law. We went over this ground in Committee and I can only repeat that I do not believe that a special case should be made for inherited SERPS. This is only one of three significant changes made to state pensions in the Social Security Act 1986.

If the Government accepted that people had a reasonable expectation of being told about the change to inherited SERPS, would it not mean that the other changes introduced at that time should also not apply to them if they were not personally told about them? Of course, they were not. These changes included, for example, that entitlement based on the 20 best years was no longer to be the case but was to be based on the whole working life; and they included the difference in accrual rates. The provision with regard to widows is of lower financial significance than the 20 best years provision. People were expected to rely on the information in the leaflet, and there was never any suggestion that they should be individually notified about the changes or, if they were not individually notified, that they were entitled to be protected from their impact. The case of inherited SERPS and widows must therefore be aligned with the other changes that took place as a result of the 1986 Act.

I accept the point that inherited SERPS is an exceptional case in that the information was consistently omitted from departmental leaflets for 10 years. Even after it was included, many people were still given incorrect or incomplete information. There is no disagreement about that. I accept also that the noble Baroness seeks to ensure that the scheme operates fairly. But my comments in relation to the noble Baroness's amendment also apply here. We are still consulting. We have not finally decided on the regulations.

What I am concerned to establish is that we should not accept, or appear to accept, the principle that everyone was entitled to individual notification. That has never been the way of government legislation. As we are still consulting, it would be premature to be prescriptive at this stage. However, we shall certainly take account of the views expressed to us on these points. On that basis, I believe that the noble Baroness's amendment is premature and I hope that she will feel able to withdraw it.

As to Amendment No. 75 in the name of the noble Lord, Lord Higgins, on 15th March I repeated the Government's statement about inherited SERPS. The noble Lord was quick to highlight the issue of where the burden of proof should lie in an application for redress under the scheme. He urged, as did the ombudsman, that it should lie with the department. The noble Lord, Lord Goodhart, quoted from the ombudsman's report and urged the Government to accept that the scheme should cater for people who took no action and would have difficulty demonstrating that they would have acted differently if correctly advised.

The words used in the Statement in another place and repeated by myself were:

"I intend to accept all the recommendations made by the NAO and the ombudsman".--[Official Report, 26/3/2000; col. 1609.]

Among other things, the Government accept that the burden of proof lies with the department. We accept also the ombudsman's point that the inherited SERPS scheme must be capable of a global solution that includes providing redress to persons who were misled and took no action.

Amendment No. 75 requires us to presume that all applicants under the scheme received incorrect or incomplete information unless they were specifically given the correct information. That goes much further than the amendment of the noble Baroness, Lady Greengross. It does not allow for the situation in which a person had neither received nor requested any information. The noble Baroness's amendment deals with persons who raised a query being expected to cast a wider net for information.

The noble Lord, Lord Higgins, was logically contradictory. He said that the first test was whether the person would have acted differently, to avoid financial detriment. If one accepts that a person did not know positively about the change--the amendment presumes they were misled--I do not see how the second test of suffering loss could be established, if the individual did not know there was any change that might produce the loss that followed.

On the basis of the noble Lord's case, anybody who did not know about the change would be entitled to compensation--provided they could show financial loss. But if they did not know--and did not know the action they might have taken if they had known--one cannot logically move on to the noble Lord's second step.

The noble Lord is looking puzzled. There are two steps. First, it is expected that the person can show that they were misled. The burden of proof is on the department. If a person claims that they relied on the information to take action--or to decide not to take any action--with resulting financial consequences, they move on to the second step of financial detriment. The noble Lord seems to be saying that somebody who did not know--whether or not they were misled because they had no information at the time--could subsequently show that they suffered financial loss. We cannot know whether they suffered financial loss if they did not know at the time about the changes and the action they might have taken.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, either they were misinformed--that is common ground--or they thought the situation was as originally stated, which was that the wife would inherit the full SERPS. If they did not know about the change, they may not have made provision for their wives as they otherwise would have done.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, how could they know now what they would have done then, if they had known what they did not know? The noble Lord's second position cannot hold. If they did not know, they could not have known what they might have done if they had known. By definition, that has to be true. I will send the noble Lord a note to that effect.

The change to SERPS inheritance was only one of three significant changes in the Social Security Act 1986. The others were the 20 best years calculation, the reduction over 10 years from 25 per cent of earnings to 20 per cent, and the reduction in the survivor's pension from 100 per cent to 50 per cent. In 1995 there were further major changes. The link between SERPS and alternative pension provision was broken and the annualisation formula was introduced--matching a person's earnings to the years in which they were earned. Finally, there was the equalisation of state pension age, so that women would not be able to collect their SERPS until age 65--the same as men.

If the Government accepted that people had a reasonable expectation of being told about the change to inherited SERPS, would that not mean that the other changes that I have outlined would also not apply to people who were not personally told about them? Although the information was contained in the leaflets, the previous administration did not tell people personally about those changes. People who did not pick up the right leaflet would also have remained ignorant of the change to the 20 best years rule.

It has never been the Government's position that they are responsible for people's ignorance of changes to the law. We have here the much narrower situation in which the then government persistently gave misinformation in leaflets. Our changes are intended to redress that situation.

The Government have already publicly accepted the NAO and ombudsman's recommendations. We are consulting widely on how to put them into effect and will put the resulting regulations before the Social Security Advisory Committee, Public Administration Select Committee and the ombudsman. As a final stage, the recommendations will come before both Houses of Parliament and require your Lordships' approval.

The situation that we inherited was not that people did or did not know about the change but that some--we do not know how many--were misled as a result of the then government's continued propagation of misinformation. We are seeking to correct misinformation, not lack of information. That is the difference between the noble Lord's amendment and our position. The Government have never been responsible for correcting lack of information--only misinformation of which the Government were the author. The inherited SERPS scheme must provide redress to individuals and the regulations that establish it must satisfy various interested parties--including the ombudsman.

I hope that I have addressed the issues raised by the noble Lord, Lord Rix. I have gone as far as I can to meet the concerns of the noble Baroness, Lady Greengross, although they are still for discussion. The noble Lord, Lord Higgins, is asking us to take a step much farther--one that his government would not have contemplated in the 1985 and 1986 Acts--in saying that unless a person was notified by the Government, it must be assumed that they were misled. That has never been the Government's position. No government could adopt such a position. However, where government were the author of misinformation, they have a moral and, in my view, legal and financial obligation to correct the situation--which is what we propose in good faith. With that explanation, I hope that noble Lords will not press their amendments.

Photo of Lord Rix Lord Rix Crossbench

My Lords, before the Minister sits down, did I hear her say that organisations will have the opportunity to see draft regulations before they are laid?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, if we are asking organisations to take part in drawing up the regulations, I see no reason not to allow that. A different status applies, in terms of consultation, in respect of official organisations such as the Social Security Advisory Committee.

Photo of Lord Rix Lord Rix Crossbench

My Lords, there has to be some logic in rolling boulders up hills. If one is persuaded that the chances of getting further are remote, the logic is to call a halt. The Minister has helpfully gone as far as the Government are prepared to go at the pre-regulation stage. I appreciate and welcome her assurances--particularly the opportunity to study and comment on the draft regulations before they are laid and past amending.

Like the actor I once was who wishes to believe his kind notices, then is surprised when the box office is disappointing--I am happy to say that I was rarely in that position--I wish to believe the Minister's kind words and will be most surprised if the regulations are disappointing. In light of the Minister's undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Higgins Lord Higgins Conservative

moved Amendment No. 75:

Page 33, line 36, at end insert--

(""(4B) The regulations shall be based on the presumption that claimants have received incorrect or incomplete information unless the Secretary of State provides proof that the information the claimant received was correct and complete."").

Photo of Lord Higgins Lord Higgins Conservative

My Lords, I beg to move Amendment No. 75 and seek the opinion of the House.

On Question, Whether the said amendment (No. 75) shall be agreed to?

Their Lordships divided: Contents, 166; Not-Contents, 135.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

[Amendments Nos. 76 and 76A not moved.]

Clause 39 [Home responsibilities protection]:

[Amendment No. 77 not moved.]

Photo of Baroness Fookes Baroness Fookes Conservative 4:10 pm, 27th June 2000

moved Amendment No. 78:

After Clause 42, insert the following new clause--


(" . The Secretary of State for Social Security shall consult the relevant Governments about a full or partial uprating of British state retirement pensions for British pensioners living overseas and report on his findings and recommendations within one year of this Act receiving Royal Assent.").

Photo of Baroness Fookes Baroness Fookes Conservative

My Lords, in moving the amendment which stands also in the name of the noble Lord, Lord Goodhart, I speak also to Amendment No. 79.

These amendments have previously been the subject of debate in this House. However, I make no apology for again raising the issue since they seek to redress a longstanding grievance. I go further than "grievance" and say a longstanding injustice. They relate to British pensioners living overseas who do not have annual upratings which pensioners living in this country receive.

The fact that a grievance is old makes it no less vivid or unkind for those who are the victims. I know from discussions that individuals and organisations overseas feel very aggrieved by the failure of successive governments to do anything about the situation. It is all the more remarkable when one bears in mind that the noble Lord, Lord Shore of Stepney, who was a member of the Cabinet which made the decision in the first place, spoke on the subject in recent months, explaining that the only reason upratings for overseas pensioners were not allowed was that there were severe exchange control difficulties at a time when tourists were allowed to take out only £50 in currency. He said that there is a clear moral case for uprating. That lends strength to my own views that it is high time that the grievance is redressed.

I am, of course, aware of the cost. I know, for example, that there are some 190,000 British pensioners in Australia and many other parts of the world. But the grievance is compounded by the fact that there is a lottery depending on where one happens to live overseas. If one is within the European Union one is covered by its requirement that one is treated equally. If one goes to those countries where there is a reciprocal arrangement, all is well. If one happens to go to other countries, notably Australia and Canada, where there is no such agreement, one is stuck with the size of the pension when one left the country. Noble Lords can imagine the miserable pension for someone who may have been retired for 30 years. That is not impossible. Many people live in positive penury because of this arrangement. I bring this issue to your Lordships' House because those people are by definition elderly. They lack the pressure which people in this country can bring to bear. It behoves those of us who are here to speak firmly on their behalf.

I know that the argument is always one of cost. Crudely encapsulated, the Government's view is, "This will cost a great deal of money. We have better things on which to spend it". It may be crude, but I believe that that sums up their argument. That will be dressed up by the Minister when she responds. Having heard the arguments previously, I believe that I could give a fair representation, if I chose to do so, of the arguments that the noble Baroness will deploy in due course. I believe that it is high time that we did something about the matter.

Recognising that cost is an issue, I have sought to modify what I should like to see--a total uprating immediately, and backdated--on the line that politics is the art of the possible. It is a theme I first heard the noble Baroness, Lady Thatcher, declaim when she first came into Parliament many years ago. Given that politics is the art of the possible, I have suggested a compromise whereby the Secretary of State should consult with the other relevant governments as to whether there could be at least a partial uprating. There are several possibilities: that there should be no backdating but that the provision should come into effect only from the point when it comes into law; or that it should go only to the older pensioners over, let us say, 75, 80 or 85--those who are most likely to be in the direst need. There would be other possibilities with which I shall not bore your Lordships today.

Having sought to make a move in this direction, I hope that the Minister will look more sympathetically on this case. I repeat: it is a longstanding injustice. It is compounded by the fact that it depends where one lives as to whether one has an uprating. I believe that the time has now come to take definitive action. I beg to move.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I have put my name also to the amendment. I believe that the provision that removes the right of overseas pensioners to an annual uprating in line with those who are resident in this country is one of the most mean-minded pieces of legislation that has ever been placed on the statute book. These are people who worked in this country; they paid their national insurance contributions in this country; and they paid tax on their earnings in this country. They are surely as entitled to a full state pension for the period while they worked in this country as anyone else.

The fact that they now live abroad, and perhaps pay taxes abroad, is irrelevant. Indeed, if it has any relevance it can be said to strengthen the argument for giving them the full pensions to which they are entitled on the ground that by deciding to live abroad they have removed themselves from any obligation on this country to provide care for them through the National Health Service or through the publicly-funded social services.

I can see no justification in logic for saying that people who live overseas, and who are drawing pensions which they have earned by their contributions in this country, should see those pensions decline in real terms year by year. It is not as though the pensions were earnings linked in which case one might say that there is no logical reason why they should share in the increased prosperity of this country. But to remove their right to maintain their pension in real terms seems intolerable.

If there is any logic in the decision, it lies solely in the fact that few of these pensioners have votes and the issue is, therefore, irrelevant to a future general election. I regard that as a wholly inadequate ground of objection. It is time that the pensions of overseas pensioners were restored; and, if not restored, at least restored to the extent proposed by the noble Baroness, Lady Fookes, so that at least in future they will receive the uprating along with anyone else who is entitled to it in this country.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I support the amendment so reasonably and cogently argued by my noble friend Lady Fookes and the noble Lord, Lord Goodhart.

All that is sought under Amendment No. 78 is that,

"The Secretary of State for Social Security shall consult the relevant Governments".

The Governments most relevant appear to be Australia and Canada. It is totally reasonable that such consultation should ensue albeit that there should be no retrospective effect, albeit that perhaps some compromise should be arrived at, and albeit that some special consideration should be made as regards age. Surely, this House should support an amendment that seeks only consultation on these matters. On that, in view of the way in which this has been presented by both my noble friend and the noble Lord, I strongly support this amendment.

Photo of Lord Renton Lord Renton Conservative

My Lords, I too support the amendment. I go a little further than my noble friend Lord Campbell of Alloway in hoping that Amendment No. 79 will be considered as linked very relevantly with Amendment No. 78 because, after all, Amendment No. 78 calls upon the Government to consult other governments. Amendment No. 79 would require--when consultation has been successful presumably--that the Act of 1992 should be amended in the way proposed.

I hope that no Members of your Lordships' House will think that people who go to spend their retirement abroad should not have sympathy. Indeed, in my opinion they should have plenty of sympathy. They may be British citizens who have married people abroad. There may be those who have served in our Foreign Service for many years, whose service, perhaps for the last 20 years, kept them in one country and they may feel that is the country in which they would like to end their days. There are those who have been in business abroad and done great things for this country in that regard who have a house and home abroad and they want to remain there. Of course, there are those--and we are familiar with the situation--who, for health reasons, have been advised that they should live in a warmer climate than we have consistently here. There could be other reasons also. I hope that there will be no lack of sympathy on the part of the Government in this matter.

There are two other things I should add. There are a good many foreigners living here in retirement, and we welcome them. Perhaps it is too vague a proposition to mention, but we should bear in mind that increasingly this is becoming one world.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench

My Lords, I should like to support the amendments presented by the noble Baroness, Lady Fookes, and the noble Lord, Lord Goodhart. This is a question of equity, and quite a lot of people in this world look to the House of Lords to deal with questions of equity. This question has been on the table a very long time. We should at least launch the possibility of correcting the current situation.

For myself, I find it hardly possible to defend a situation in which British pensioners living overseas are deprived of any uprating on their pension. It is not necessarily a world-wide problem because it does not arise in the European Union; it is mainly a problem in a certain number of major Commonwealth countries such as Australia and Canada. What we are talking about are people who have worked all their life in the United Kingdom, or a lot of it, and then decided that they wished to reside for the latter part of their life in those countries, perhaps because they had or have had family there.

I agree with those noble Lords who said that Amendment No. 78 is extremely modest. If one cannot accept Amendment No. 78, I really wonder what one can accept. The absolute minimum that should be done now is to launch a consultation with the governments of those countries. That would be a rather small first step, but at least it would be launching the process of creating a much fairer--I repeat "fairer"--situation for British pensioners resident overseas. I hope that the Government will be able to respond favourably to these amendments.

Photo of Lord Selsdon Lord Selsdon Conservative

My Lords, I have found myself working around the world most of my life. This has been the issue that has been raised again and again by British nationals abroad. It is, in part, the money. Your Lordships may be aware that in some parts of the world even the Church is seeking to help impoverished British elderly gentlemen and women. They made a decision at a particular time in their lives, most of them with great patriotic feeling, where they had served either in the Commonwealth or in this country, as to where they would be safest and best for their twilight years. They had no knowledge of the economic incompetence of successive governments that would lead to the desperate devaluation of sterling, and they suffered there. They had no knowledge of the extra benefits that were beginning to accrue to the elderly.

For example, this morning I received an extremely kind letter suggesting that, as I was approaching the age of 75, I might no longer have to pay for a television licence. I know that the average age of your Lordships' House is rising, but I am still just below the average age. I receive letters from airlines suggesting that, as I have reached a certain age, I might be able to travel free provided that I do not talk about it, or travel cheaply on certain airline flights.

There are many countries that look after their elderly. Why should we, who have our elderly more widely spread than any other nation, desert them? It is true that we do not think about them. We do not care. It is communication that is of importance. Many of them are on the breadline. That feeling of poverty becomes worse when there is a happily married couple who have joined their children in a particular country and those children move on and one of the couple dies and the other is at a loss, still in a way in a strange land. We know the names, we know the addresses; they are easy to find. We should think of ourselves as a caring nation rather than uncaring one.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, I intervene only briefly because my noble friend Lady Fookes has made the case so eloquently, as have other Members in other parts of the House. This is an issue that has been going for very many years; I feel bound to say, for as long as I can remember. The sense of injustice has not diminished and to some extent has been exacerbated by the extraordinarily random way in which uprating takes place. Out of something like 840,000 pensions paid, about 460,000 are not uprated. The division between the countries where they are uprated and those where they are not can only be described as bizarre. They include the European Economic Area countries; not the European Community countries. They include, quite arbitrarily, Norway, Iceland and Liechtenstein. I am not clear whether those countries also have reciprocal arrangements. Perhaps the noble Baroness can tell us whether Liechtenstein has a reciprocal arrangement. There are also a number of other countries which have genuinely reciprocal arrangements, ranging from the Philippines to Turkey and Cyprus to Yugoslavia, including the former republic apparently. People in those countries are all uprated and many people in other countries are not.

Having said that, I know that it has been a longstanding problem and I fear that I cannot, keen though I would be to do so, commit myself to Amendment No. 79.

Amendment No 78 has a great deal to be said for it, not least because the arrangement which has been standing for 46 years with Australia appears to have been terminated or is about to be terminated. The noble Baroness shakes her head, in which case no doubt she can clarify the position since the time when she made an announcement back in April. If there has been a change, I imagine that the House will welcome it.

At all events, if my noble friend Lady Fookes does not press the amendment to a Division today, I hope she will consider very carefully bringing back Amendment No. 78 at a later stage, because there seems to be a considerable argument for consulting rather more broadly on this issue with countries of such varied natures that are either included or excluded.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security 4:30 pm, 27th June 2000

My Lords, given the noble Lord's "on the one hand" and "on the other hand", I was trying to work out where he was standing. However, I am happy to give him the information he requested about Liechtenstein. It is true that we have a reciprocal obligation with that country and, as far as I know, it affects all of 10 citizens. Therefore, it is not such that it would swamp our finances.

New Clauses 78 and 79 have a familiar purpose. They attempt to redress the situation where more than half of UK pensioners who live overseas do not receive annual cost of living increases in their retirement pensions. We have discussed the issue on many occasions. I am aware that many of your Lordships have strong views on the subject and that there is strong feeling among many UK pensioners overseas. The noble Baroness, Lady Fookes, said that she could make my speech for me--I am sure that she could make it better than I can--but I anticipated the arguments which she would bring before the House.

Amendment No. 78, which commits the Government to consultation, is not, as the noble Lord, Lord Williamson, seemed to suggest, a modest one. I believe that it is shrewd and clever and subtle and ingenious, but it is not a compromise or first step. As the noble Baroness will know, on all occasions the relevant governments--in particular Canada, Australia, New Zealand and South Africa where most people with frozen pensions live--have been pressing us to take this step and I believe that I know what the outcome of the consultation may be. I will tell your Lordships why--

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I am obliged to the Minister for giving way. The proposal is neither ingenious nor clever. It is a step towards a humane compromise and that is all.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, I was about to say why I do not believe it is a compromise. At any reception I attend when the relevant ambassador or high commissioner is present, I am pressed on the point. I do not want to say that consultation is a waste of time, but the facts are what they are. There is no equivalence between the position of the governments of Australia or Canada and our own.

Perhaps I may remind your Lordships of the figures. I know that Members on the Liberal Democrat Front Bench are well aware of them because we have exchanged them previously. As far as we know, 17,000 Australian pensioners live in this country while 214,000 UK pensioners live in Australia. In other words, it is hugely to the financial advantage of the Australian Government and hugely to the financial disadvantage of the British Government to move even in the direction suggested by the noble Baroness. The inequity of population applies also to Canada. As far as we know, 9,500 Canadian pensioners live in the UK while 138,000 UK pensioners live in Canada. The same inequity is true of New Zealand; 7,500 live here while 34,000 live there. Alas, I do not have the figures for South Africa.

That shows that disproportionately and overwhelmingly the flow of money would not be equal. The money going from this country to our pensioners in other countries and the money coming from other countries to their pensioners here would not be equal. Overwhelmingly, the flow would be from this country to Australia, New Zealand, Canada and South Africa. Therefore, if I sound critical of the concept of consultation it is because I believe that we can anticipate the result. The points have been made to me in person by the relevant high commissioners or senior government officials when I have visited those countries.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, is the Minister telling us that it is wrong to do an injustice to a few people but quite all right to do an injustice to a lot of people?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, no, I am saying that at the end of the day it is a question of where your financial priorities lie. I shall make the point more fully in a moment. The noble Earl would ask us to equalise the benefits as between those under 25 and those over 25. He would regard that inequality as an injustice and I understand his point of view; he has argued it over many years. Is he about to say to me, "You should do that and somebody has to find the money for it"? We could go down a shopping list; indeed, the noble Earl has tabled amendments on the single-room rent. Does he regard that also as an injustice? I can see where he is coming from, given the research and the views he has expressed in the past.

Nevertheless, it is not enough to say that there is an injustice or an anomaly. One must also say how one rates the reparation of that in terms of the financial contours of the Budget. The noble Earl must say how his proposal will be financed and the Official Opposition Benches must say where they are going to make cuts in order to fund their proposal.

When we last debated the Bill in your Lordships' House, the noble Earl was distressed that changes in some of the pension arrangements were to be funded by cutting half of the Social Fund. It was proposed that £90 million would be taken out of the fund and the noble Earl, Lord Russell--and I was cheering him on--wanted to know from where else the noble Lord, Lord Higgins, would fund his proposed change.

The change to complete unfreezing would cost about £300 million; a partial unfreezing, say, for those over 75, which the noble Baroness suggested would be a compromise, could cost half of that sum. Those are substantial amounts and the changes must be funded at the expense of other priorities.

Perhaps I may remind your Lordships that UK pensioners are paid anywhere in the world and we pay some 870,000 pensioners in more than 150 countries. In 1999, the UK paid more than £1 billion in retirement pensions to pensioners living abroad. Some 470,000 of those pensioners have what is commonly referred to as a "frozen" pension. That means that the pension remains fixed at the rate payable when the person chose to leave the country. The pension remains permanently at that rate or at the rate initially awarded on retirement if a person is already resident abroad.

There are two broad grounds for uprating. They are paid within the European Economic Area, in the Channel Islands and the Isle of Man and in about a dozen other countries where certain long-standing social security agreements, mostly dating back to the 1950s, exist. Apart from a case in which the agreement was made earlier and not implemented until later--I believe it was in the Dominican Republic--I am not aware of any change made throughout 18 years of the previous administration in order to advance the general cause or to renegotiate any new bilateral agreements.

The policy has been followed by successive governments ever since retirement pensions and widows benefits became payable world-wide in 1955. I am sorry, but it is not a priority for this Government to reconsider. When the Social Security Select Committee considered the matter in 1996, it recognised that priorities for public expenditure would inevitably be taken into account in considering the issue. We know that that cost is likely to be £300 million a year and I believe that if the noble Lord, Lord Higgins, proposes to support the amendment in a Division tonight he is under an obligation to tell us how it is to be funded. I could point out to him that there is still another £90 million in the Social Fund and I suppose that he could raid the last of it, but he has to say from where the funding will come.

In 1995, a Member of Parliament said:

"I hope that the House will remember that any increase in spending commitments involving sending money to people overseas will of course mean corresponding reductions in our expenditure here at home. Members should bear that in mind".

That was not said by me and not even by the noble Lord, Lord Mackay, although I have many quotations showing his position. It was said by a then fairly junior member of government, Mr William Hague. Only five years ago, the now Leader of the Official Opposition said that he did not regard this as a priority and that if it was to be supported by his government other reductions in expenditure would have to be found. If the precedent is the Social Fund or abolishing the New Deal for lone parents or the working families' tax credit, I would ask your Lordships to consider where your priorities lie. The change has to be funded from somewhere.

With regard to the Australian point, I was not shaking my head and saying that the situation had moved on since the matter was raised in the House in April. I meant merely that people seem to believe erroneously that Australia uprates British pensions. It does not. It allows British national insurance contributions to count for the Australian means-tested pension in the same way as we allow Australian national insurance contributions to count against eligibility for our non-means-tested pensions. If Australia decides to move away from that agreement, perversely the British Government will save money because more Australians benefit from the arrangement in this country than do our British people in Australia. It affects only 3,000 people; not the 200,000-odd people who are resident there.

Therefore, I am afraid that our policy is clear. We do not consider unfreezing to be a priority call on resources. We want and need to focus help on pensioners in the UK and we want to do most for those who need it most. I do not need to talk about winter fuel payments, TV licences or the minimum income guarantee. I do not even need to talk about our proposals for the introduction of the new pensioner credit to reward thrift on which we hope to go out to consultation in due course.

I recognise that people feel strongly about this matter. However, my first point is that people chose to leave this country in the knowledge that their pensions would be frozen. Secondly, if we were to uprate, as has been suggested, or even to go for consultation, what would the outcome be with regard to the position of other governments? It would cost £300 million, and that would have to be found from somewhere. We believe that our priorities lie elsewhere. Therefore, the Government do not plan to unfreeze UK pensions paid abroad, and I hope that noble Lords will not pursue these amendments.

Photo of Lord Selsdon Lord Selsdon Conservative

My Lords, before the noble Baroness sits down, I take some of the points that she made in her charming way. However, a problem exists which is not purely monetary; it is one of understanding. Perhaps her department could produce a small leaflet to be sent to pensioners explaining the position. They would at least then feel that someone had cared for them in some way, whatever the outcome.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, I am happy to ask officials to look at the literature that we give to people at the point at which they make their decision in order to ensure that they are as fully informed as possible. I believe that that is an entirely reasonable point to make and I shall certainly follow it up. Of course, if anyone writes to us from overseas--indeed, I receive letters regularly on this subject--I shall be happy to send the type of information to which the noble Lord referred.

Photo of Lord Monson Lord Monson Crossbench

My Lords, before the noble Baroness sits down for the second time, when she says that pensioners left this country in the full knowledge that their pensions would be frozen, does she agree that they could not have had knowledge of the way in which inflation would totally destroy the value of those pensions?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, that may be true but, equally, although I am not sure that many overseas pensioners with a right to vote will have voted for the present Government, they will be pleased to see that under this Government inflation is now below 2 per cent. Whatever arrangements one makes with regard to pensions, one tries to predict what will happen, whether it be in relation to annuity rates or whatever. None the less, when pensioners left this country--and many will have left during periods of high inflation--they knew what the situation was likely to be regarding their state pensions. The literature is quite unambiguous. I have read the leaflets myself and they are clear. People knew what they were doing and chose to make that decision.

One must consider the cost. Arrangements could not be made with only one country; I suspect that there would need to be open consultation with all the big countries. The cost would be £300 million a year and rising; more so if inflation were to return. That represents a significant part of the budget and that is why the noble Lord, Lord Mackay, regularly resisted the proposal in this House against the wishes of his own Back-Benchers. It is why Mr Hague made the points at least as forcibly in 1995 as I have tried to do today.

Photo of Baroness Fookes Baroness Fookes Conservative

My Lords, I had anticipated what the noble Baroness would say and particularly that she would call in aid the record of previous Conservative governments. However, I had a small hope that new Labour might bring forth a new policy. Clearly, it is in the same mould as the old government. That said, I am disappointed that what I considered to be a more modest compromise has not been accepted by the noble Baroness. I do not believe that my modest suggestion is worth going to the stake for; indeed, I should prefer to bring forward a somewhat bolder, more full-blooded clause at a later stage. Therefore, at this point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79 to 81 not moved.]

Clause 43 [Member-nominated trustees]:

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 4:45 pm, 27th June 2000

moved Amendment No. 82:

Page 37, line 42, at end insert--

("( ) After subsection (3)(a) there shall be inserted--

"(aa) that the employer shall have no part in the selection of member-nominated trustees, and".").

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, we have now reached a group of amendments which deal with the matter of trustees and governance by trustees. In Committee I moved an amendment designed to ensure that employers played no part in the selection of member trustees. It was not accepted by the Government and today I come back with a slightly different wording which makes the intention absolutely clear.

Under the trustee route, which allows significant flexibility but which is not to be subject to prior consultation with members, the present trustees, who in many cases will not include member trustees, can propose selection by a panel where the employer representatives participate so long as they are in a minority position. It is not clear how the member representatives on the panel will be derived, and it is often the case that senior managers and directors are members of the scheme and their inclusion could shift an employer minority to a majority on the panel.

Managers will be able to make a lot of fuss about competence and experience that may or may not be justified, particularly if there is proper training for trustees, in order to select the management candidates whom they want rather than those who might take an independent view. Candidates may also be deterred from applying if they conceive the panel to be employer-nominated.

Of course, some employers basically oppose the involvement of employee trustees. The present arrangements leave a loophole through which they can exercise undue influence. The amendment seeks to establish that the law requires not only member-nominated trustees but member-selected trustees. Employers have to be told that they must accept representatives of members on the trust board and that they should not attempt to control who those members are.

In putting forward this amendment, I wish to declare an interest as a member of my union, MSF. My union feels strongly about this issue, which is why I return to it on Report. It is very necessary that employees have confidence in their pension scheme, and that is one of the objectives of my amendment. I beg to move.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, Amendment No. 82 would prevent employers taking part in the selection of member-nominated trustees. It applies equally to arrangements under Section 16, the trustee route, and Section 18A, the employer route. We discussed briefly a similar amendment in Committee. In that case, the amendment was presented somewhat differently in that it provided that only members or member representatives would be involved in the selection of member-nominated trustees. This amendment approaches the same issue from another direction by seeking to exclude employers from any involvement in the selection of member-nominated trustees.

As I explained in Committee, the trustee route will provide that, where there are more nominations than vacancies, the final selection will be made either by means of a ballot of the members or by a selection panel. We shall consult on the details of regulations in due course. However, the intention is that, if selection panels are used, they must comprise a majority of scheme members or their representatives. On the other hand, the amendment would exclude the employer from sitting on a selection panel alongside members or member representatives. We see no reason to be quite so restrictive.

One of the key objectives of the proposals is to avoid disrupting existing arrangements wherever possible. The effect of the amendment would be to force changes on a number of schemes with long-standing nomination and selection arrangements where the final selection is made by a panel that includes a representative of the employer. I believe that that would be a shame and we should ask ourselves whether it is really necessary.

Under the employer route, employers will have the right to propose bespoke nomination and selection arrangements for their scheme. The proposal must provide for a minimum of one-third member-nominated trustees. However, the provisions are more flexible and for that reason must be approved by the members. There will be more scope for the employer to determine the selection arrangements under this route. That is undeniable. However, the final choice will be from individuals who have been nominated by scheme members; and, most importantly, the proposal will be adopted only if the members agree to it.

Although the amendment would have much the same effect as our proposals, it would force many schemes to change their arrangements for no good reason. I understand fears that employers may use their position to try to secure their preferred candidate. We have very good relationships with OPRA, which my noble friend served with such distinction for many years, and with the many representative bodies in the pensions industry. If there were evidence that the involvement of the employer was having undesirable effects, they would be quick to let us know.

The way the legislation is drafted in the Bill would allow us to respond quickly to any changes by changing regulations. Our new provisions provide the opportunity for schemes to meet the new requirements with the minimum of disruption. They allow for flexibility without undermining the key aim of getting member trustees on to trustee boards. I would remind your Lordships that these proposals have the full support of all the key organisations in the pensions industry and I would be sorry if we were to lose that support now. In the end, the decision firmly remains with members and I hope that in the light of this explanation my noble friend will feel able to withdraw her amendment.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I thank my noble friend for her explanation of government policy on this issue, and I am not at all surprised at what she has said. Of course part of the argument is that it is not desirable to disrupt existing arrangements, and one would agree with that if they are satisfactory.

The reason for my bringing forward this amendment again in a different form is that it has been apparent to me that a number of unions are not happy that the existing arrangements actually operate effectively. However, I understand that there is to be consultation on the regulations and no doubt there will be an opportunity for some input at that time, particularly if (as seems likely) there is some dissatisfaction with existing arrangements in some quarters. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

moved Amendment No. 83:

Page 38, line 41, at end insert--

("(10) The Secretary of State shall make regulations providing that all trustees should be required to have attended an approved training course explaining the role and responsibilities of trustees within six months of being either elected as a member-nominated trustee or appointed as a trustee by the scheme's sponsoring employer.

(11) These regulations shall also prescribe the content of such an approved training course.

(12) The failure of a trustee to attend such a course within six months of being either elected or appointed as a trustee shall nullify the trustee's election or appointment.").

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, this amendment deals with the training of trustees. In Committee I moved an amendment designed to make mandatory the training of trustees. There was general agreement at that time that it was very necessary that pension fund trustees should be trained. As we all know, the duties are now quite onerous and the expectations of scheme members are substantial. The scandals of the past, notably that of the Maxwell affair, have to some extent undermined confidence in occupational pensions, despite their success during the past 20 years in providing benefits to former employees.

I recall saying in Committee in response to my noble friend the Minister that we had scored a small victory the last time around, because she agreed with much that had been said and had undertaken that there would be consultation with the industry to see what could be devised. I understand that she has been as good as her word. The consultations have taken place. One of the reasons for the amendment therefore is to ask her to tell the House what the Government's view is following those consultations.

Of course the organisations consulted have also written to me, and I am sure they will also have written to a number of your Lordships. So I have some idea of the reactions to the proposals. I believe the Engineering Employers Federation, which was responsible for briefing me at Committee stage in support of compulsory training, is still of the same view although the CBI, while supporting the principle of trustee training, is concerned about the cost of policing a statutory requirement and about the administrative and financial burdens generally that it might impose. It favours legislation for a requirement for training to be made available to trustees at employers' expense. Others favour "best practice" guidelines and disclosure requirements so that in annual reports to members those in charge of schemes would be required to state their policies on trustee training and say which trustees had undergone training, together with the nature of that training.

I still favour some form of compulsion, but I appreciate that it is necessary to secure the willing co-operation of the pensions industry and of pension schemes to bring this about. I am glad that our amendment in Committee prompted an examination and discussion of this very important topic. I therefore wait with interest to hear from the Minister what the Government's response has been both to the debate that we had in Committee and to the consultations which I know have taken place since then. I beg to move.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, we on these Benches agree with the noble Baroness, Lady Turner, that all trustees and not just member-nominated trustees should receive training as regards their role and responsibilities. However, we do acknowledge that inevitably there are some practical difficulties with introducing legislation to make trustee training compulsory and in ensuring that it is enforced.

Like the noble Baroness, Lady Turner, we have been contacted by a number of bodies since these amendments were tabled. We have taken their observations on board and accept that making trustee training compulsory at this stage is not appropriate. We are aware of the administrative and financial burdens that a statutory training regime would entail. The cost of policing a statutory requirement and of accrediting training would be very high and the costs could well outweigh the benefits.

As the noble Baroness has just said, at Committee stage the noble Baroness the Minister promised that she would take this issue away and consult further with the pensions industry. I therefore look forward to hearing what suggestions the Minister has for promoting and encouraging trustee training as right and normal, without direct government intervention.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I rise to say that I have received a briefing paper from the National Association of Pension Funds, which opposes the idea of compulsory training, for reasons which appear to me to be quite persuasive. It seems to me that we are in a situation where employers are not obliged to provide pension funds for their employees. It is good practice for them to do so, and a large number do, but there is a risk of over-regulation here and I think that this increases the risk that employers might be persuaded to abandon pension funds because of the complications involved.

It is clearly good practice that the trustees who need it--not all of them do--should receive training, but I hope that will be dealt with as a matter of good practice and perhaps as a matter to be shown in the annual report of the pension fund rather than as a matter of compulsion.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, Amendment No. 83 would require that all trustees are required to undertake an approved training course explaining the role and responsibilities of trustees, and that regulations would prescribe the content of the training. Anyone not receiving such training within six months of becoming a trustee would have their appointment revoked.

We debated the subject of trustee training in Committee. It was clear to me then that there is a great deal of support in the House for the principle of compulsory trustee training. Trustees have overall responsibility for the proper running of a pension scheme under the rules of the scheme and in accordance with the Pensions Act. It is vital, therefore, that they have a full knowledge and understanding of their role and responsibilities.

I said in Committee, as your Lordships have acknowledged, that I would like to go away and talk to the pensions industry to see how they felt about the idea of compulsion. My officials have been talking to representatives of various organisations, including the Occupational Pension Schemes Joint Working Group, the TUC, OPRA, the CBI, the Pensions Management Institute and the Association of Corporate Trustees. I should say that the Occupational Pension Schemes Joint Working Group comprises representatives of the National Association of Pension Funds, the Association of Pension Lawyers, the Association of British Insurers, the Society of Pensions Consultants and the Association of Consulting Actuaries. In effect I believe that the officials have spoken to all the major organisations in the pensions industry. I think they have done a very thorough job since the Committee stage and I am grateful to all of them for taking the time to consider and respond at such short notice. I am also grateful to the organisations involved.

All the groups we consulted recognise the importance of trustee training and I am pleased that the Government, the Opposition and the pensions industry can all speak from a common position on this. However, of all the people we spoke to, only the TUC actively supports the idea of making training for trustees compulsory. Given that we all agree that trustee training is a good thing, perhaps it would be helpful to set out the reasons why the Government are not in favour of making it compulsory.

First, there was a general concern that it would add to the regulatory pressures on occupational pension schemes. I believe that the noble Lord, Lord Goodhart, touched on this: as ever, we have to find the right balance between placing regulatory burdens on business and protecting the interests of scheme members. We cannot justify imposing extra costs and burdens without firm evidence that there is a problem which needs fixing.

There are also genuine concerns about practicality and cost. What seems like a simple idea could be difficult to implement. For example, many trustees come with very different backgrounds and experiences and the schemes themselves are also varied. There are obvious differences between defined benefit schemes and defined contribution schemes. Back in the winter of 1994-95, when I knew nothing about pensions, my noble friend Lady Turner patiently and painstakingly took me through the elementary building blocks of pension provision, explaining the differences between various schemes and the issues of employer holidays. There are also much more detailed differences in the roles that trustees are required to play in individual schemes.

There is not a one-size-fits-all solution. The amendment would require only that trustees were trained in the role and responsibilities of trustees. Oddly, that might not go far enough, resulting in a levelling down of standards.

There is also the question of policing and enforcing any new requirements. We would have to create obligations on the trustees to provide the prescribed training and on the individual trustee to attend. OPRA has already said that investigating complaints and enforcing such a provision would be difficult.

Another strong argument is that we would have to think about issues such as whether trustees should be required to show that they had reached a certain level of knowledge or competency at the end of the training, how such knowledge could be kept up to date and how one would offset the training and experience that individual trustees could bring to the job. Then, of course, there is the issue of who would pay for the cost of the training and of setting up an approval system.

I could go on. The concept of compulsory trustee training sounds simple, but its execution is anything but. We agree with the majority view of the pensions industry that it would be premature to take such a major step. The joint working group has said:

"We do not believe compulsion in this area is workable, nor do we believe that it is needed given the generally high standards of scheme governance reported by JWG bodies."

However, that does not mean we should do nothing. The joint working group has suggested that trustees should be required to disclose information about trustee training in their scheme's annual report. That might involve a statement of the trustees' policy on training or details of any training that had taken place in the period covered by the report. That idea has great merit, because it would ensure trustee boards addressed the matter of training by putting the spotlight on it in their annual report. We can do that in regulations. The idea has the support of the industry and offers the most practical way forward. We therefore propose to pursue that suggestion.

My noble friend has secured a scheme that, although admittedly voluntary, will go a long way towards securing her objective of ensuring that all concerned--employers and newly nominated trustees--recognise the need for training and that a section of the annual report should address issues such as the extent to which trustees have been trained and the need for such training. It will also allow the Government, OPRA and the National Association of Pension Funds to highlight best practice and use it to encourage other schemes.

I congratulate my noble friend on causing the House to put pressure on the Government to conduct further consultation and to show that we have listened and moved. We have come forward with a useful and positive suggestion that will highlight the importance of training and encourage those who have not already addressed the matter to do so. The proposals have wide support in the House and outside. My noble friend has done jolly well and I hope that she will feel able to withdraw the amendment.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 5:00 pm, 27th June 2000

I thank my noble friend for that comprehensive response. I am glad that there was such a broad consultation process. I take it that the Government favour the joint working group's recommendation. Of course the group is in favour of training as well, but its suggestion is that the annual report should say which trustees have had training and specify how much training has been done. That is a good idea and moves strongly in the direction that I have argued for.

The CBI suggested that training should be available to trustees at employers' expense. That could be looked at for the future, but in the meantime I thank the Minister for her response. This has been a satisfactory exercise, even though it has not achieved exactly what some of us wanted. The TUC still stands for compulsory training and I think that my union does, too. Nevertheless, this is a sizeable step in the right direction, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 84 not moved.]

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

moved Amendment No. 85:

After Clause 46, insert the following new clause--


(".--(1) The Secretary of State shall make regulations providing for the trustees or managers of an occupational pension scheme to provide a written statement about the governance of the scheme.

(2) The statement must cover, among other things--

(a) the trustees' or managers' confirmation that they have undertaken a review of the governance arrangements and procedures of the scheme, and

(b) their policy about keeping such arrangements and procedures under regular review.

(3) The regulations shall also prescribe the circumstances when the Occupational Pensions Regulatory Authority ("the Authority") may require such a statement, the time period for providing the statement and the sanctions if a statement is not provided to the Authority within the time limits prescribed.").

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

This is another amendment about trustees and scheme governance. Well structured best practice guidelines can be helpful to all pension schemes, but in practice it is usually only in a smaller number of cases where the standards are already being met. The history of pensions shows that without at least the possibility of sanctions, standards may not improve as we all want.

Ultimately, the running of a pension scheme is the responsibility of the trustees, even if someone else carries out the task for them. After all, it is they, rather than the advisers, who would face penalties from OPRA.

In the case of corporate governance, there is a requirement for listed companies to keep under review the effectiveness of all internal controls. In 1999, these requirements were supplemented by the Turnbull report, which requires companies to identify the effectiveness of the related internal controls.

The amendment is relevant, because pension scheme trustees also have an important stewardship role. Irrespective of the type of scheme, it is essential that a comprehensive and workable scheme governance policy is in existence and working. Trustees must be directly involved in setting the objectives, which must also be fully supported by the sponsoring employer.

Modern pensions governance embraces policy, people and practice. It should ensure that the scheme has a written policy on procedures or guidelines so that trustees operate within the regulatory framework and the requirements of the trust deed and rules, and that the procedures or guidelines are understood by the trustees and have been incorporated into identifiable working practices.

A governance review, as proposed in the amendment, could be a useful reminder of the issues in which compliance must be satisfied, as well as illustrating the range of issues that are the features of good pension governance. Something of the sort is necessary to ensure that employees have confidence in their schemes. Unfortunately, the lack of confidence arising from the Maxwell affair was partly responsible for the pensions mis-selling under the previous government, when employees opted out of good occupational schemes into personal pensions much to their disadvantage.

Confidence in the good governance of schemes will ensure the maintenance and development of occupational schemes. I still believe that a good occupational scheme is the best way for employees to provide for their retirement. I hope that the Government accept that that is the aim of the amendment and will be prepared to support it. I beg to move.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, Amendment No. 85 would require the trustees and managers of occupational pension schemes to produce a statement at prescribed intervals saying that they had undertaken a review of the governance arrangements of the scheme and setting out their policy for keeping those arrangements under review. It would also provide for the statement to be sent to OPRA in prescribed circumstances and for OPRA to be able to impose a sanction if it was not provided.

In the context of occupational pension schemes, "governance" refers to the internal controls and procedures put in place by the trustees or managers to ensure that the scheme is run in the most cost-effective and efficient way possible, ensuring the security of the scheme assets.

Trustees are required to step back and look at how the scheme is being run. That includes ensuring that everyone involved in the administration of the scheme has clear lines of reporting and accountability and is sufficiently knowledgeable about what they are doing. It also includes checks to combat internal fraud, controls to ensure direct and prompt receipt of contributions from employers, scrutiny of claims made on the scheme to determine bona fides and effective monitoring of activities relating to the investment of the scheme's assets. In effect, it involves looking at every area of activity within the pension scheme administration and making sure that adequate controls are in place for each one.

I recognise that requiring trustees to produce a statement about governance arrangements in their schemes is a good way of focusing their attention on their roles and responsibilities in relation to the running of the scheme. I also agree that the principles of good governance are an essential ingredient for the proper running of any business or organisation, including pension schemes. However, whether we should actually make this a regulatory requirement is another matter. The Pensions Act 1995 already makes it quite clear that the trustees are responsible for the proper running of their scheme. The Act provides a wide regulatory framework to support that message. If trustees do not comply, the scheme auditor and the scheme actuary are under a duty to report any irregularities to OPRA.

It would be difficult, if not impossible, for trustees to fulfil their role under the pensions Act and trust law without some form of internal arrangements for ensuring the proper management of the scheme. As noble Lords are aware, there is a wide variation of type and size of pension scheme. Any system of internal controls must take account of the characteristics of individual schemes and allow for those differences.

Any legislative requirement in this area would need, for the sake of clarity and consistency, to spell out exactly what is meant by governance and how it would apply to particular schemes. That would give rise to further lengthy and complicated sets of regulations containing an exhaustive list of controls that trustees and managers would be required to put in place, the circumstances where they must do so and the circumstances in which statements would have to be sent to OPRA. It would impose a heavy burden on the scheme and an even heavier burden on OPRA. Any statement produced under these arrangements would also require verification by, for example, an auditor, if the requirement was to be effective.

At present, trustees are required to obtain an auditor's opinion on the financial transactions of the scheme and, if he or she detects a flaw in the scheme's control system, this would be brought to the trustees' attention. However, auditors do not, as a matter of course, carry out a detailed check of a scheme's systems of internal controls. To require such a check would involve schemes in extra costs and we have to consider whether that can be justified. We do not believe that it can. The department is currently working with the industry in a joint working group to consider ways in which we can offer practical help to schemes in areas where we are keen to provide a clear lead and guidance but where it is not appropriate to regulate. Good governance is one such area.

I recognise the intentions behind this amendment; indeed, I support them. However, I hope that what I have said about the complexity and costs associated with such a requirement has convinced my noble friend that it would be inappropriate to legislate and that, therefore, such matters are better left to guidance. In that way, trustees can determine appropriate controls according to the circumstances of their schemes. In the light of my remarks, I hope that my noble friend will feel able to withdraw her amendment.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, again, I thank my noble friend the Minister for her explanation of the Government's policy in relation to the amendment. I am also very glad that she at least supports the principles behind the amendment, as well as the principles of good governance. The gist of my noble friend's remarks is that my amendment would, as I understand it, impose too heavy a burden upon trustees and, indeed, upon OPRA. I shall have to consider most carefully what my noble friend said. I am pleased that we have note of her reactions to the amendment because good governance of schemes is of paramount importance as far as concerns confidence in scheme provision. Having gained those commitments from the Government to the whole idea of good governance, it is good to have them on the record. I am grateful to my noble friend for her comments. I accept what she said about the burdens that the actual wording of my amendment could impose on those concerned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 [Information to be given to the Authority]:

Photo of Lord Astor of Hever Lord Astor of Hever Conservative 5:15 pm, 27th June 2000

moved Amendment No. 86:

Page 45, leave out line 19 and insert--

("(e) a provider of insurance or investment services to the scheme;").

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, in moving this amendment I shall speak also to Amendment No. 94. These amendments would extend the list of persons exempted from the definition of those involved in the administration of a scheme to include providers of insurance or investment services to the scheme. As presently drafted, the exemption is confined to fund managers. In our view, it is inconsistent to exempt fund managers and not to exempt insurance companies, which provide death-in-service benefits. The amendments would, therefore, broaden the exempt categories. I beg to move.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, Amendment No. 86 would do two things. First, it would remove fund managers from those excluded from the requirement in Clause 47 to notify OPRA on the insolvency of the sponsoring employer where the scheme has no independent trustee (in cases where it is meant to have one), and where there is no other trustee. It would also remove fund managers from those excluded from the requirement to tell OPRA where there is no requirement for an independent trustee, the insolvent employer is the sole trustee and he has not confirmed to the authority that he is still able to act as trustee. Secondly, it would exclude those providing insurance or investment services from the same requirements. While at first glance it might appear that there is very little difference between the two, in reality the difference is significant.

Clause 47 is part of a package of measures aimed at speeding up the time taken for schemes to wind up. That time can vary enormously from a relatively short period of time to 20 years in an extreme case. Scheme rules will generally set out the circumstances that trigger the winding up of an occupational pension scheme. Under some scheme rules, the insolvency of the sponsoring employer will trigger the winding up of the pension scheme, in others it will trigger the closure of the scheme and leave the trustees to decide whether the scheme should be wound up. It is important that there is a trustee in place following the employer's insolvency so that decisions can be made about the future of the pension scheme, including whether it should be wound up and whether to make decisions, for example, about investment strategy.

Difficulties may also arise in money purchase schemes, which do not need an independent trustee, where an insolvent employer is the sole trustee. In those cases, the employer may no longer be able to act as a trustee. It is important that OPRA is notified about these cases quickly so that it can use its existing powers to appoint a trustee if necessary.

Clause 47 applies where the sponsoring employer of an occupational pension scheme becomes insolvent and will require trustees, or if there is no trustee, a person involved in the administration of the scheme, to notify OPRA that the scheme has no independent trustee, or no trustees at all (in cases where it is meant to have an independent trustee), or that the insolvent employer was the sole trustee and is no longer able to act as trustee.

There is currently no requirement for OPRA to be notified where an employer is insolvent and there is no trustee. Schemes can be left in limbo until either the insolvency practitioner or OPRA becomes aware of the situation and takes action. Therefore, this clause aims to ensure that schemes do have a trustee in place following the insolvency of the employer, so as to make sure that members' interests are protected and that prompt decisions can be made about the future of the scheme. OPRA will be able to make enquiries about the position and, if appropriate, arrange for a trustee to be put in place. Because it is important that OPRA is told quickly, we want the obligation to fall on those who are likely to become aware of the insolvency of the employer fairly soon after that event happens.

Where there is a trustee, the obligation to notify OPRA that the scheme has no independent trustee will fall on that person. But where there is no trustee, those persons involved in the administration of the scheme will have to tell OPRA. We realise that not everyone involved in the administration of the scheme will be aware of what has happened to the employer in sufficient time to allow OPRA to take prompt action. That is why it is right to limit the requirement to those persons involved in the day-to-day administration of the scheme who are best placed to notify OPRA promptly.

A number of people can be involved in what could broadly be considered as administrative functions in relation to a scheme, but on whom it may not be appropriate to impose the requirements introduced by this clause. Fund managers are just one example of those who clearly should be excluded--they are unlikely to be aware of what has happened to the employer, and that there is no trustee, in sufficient time to allow OPRA to take prompt action.

Amendment No. 94 seeks to add persons providing insurance or investment services to the list of persons not included in the definition of persons involved in the administration of the scheme. That would exclude them from OPRA's powers in Clause 50 to issue directions, not only for them to take action and provide information but also for them to be provided with information, which should not be overlooked.

Sometimes the winding-up process can stagnate. It may be because those winding up the scheme are having difficulty in obtaining information or are waiting for action to be taken before they can continue. It may also be that those carrying out the winding-up process are not taking action as quickly as they could. Clause 50 gives OPRA power to direct action during the winding up of the scheme where it feels that the process is unduly protracted. It will introduce accountability into the winding-up process and provide members with reassurance that the scheme is being properly wound up.

It is important that those winding up the scheme should get support when they are experiencing difficulties during the process. OPRA will be able to direct that action is taken or that information should be provided. That includes the provision of information by and the provision of information to the trustees or managers and those involved in the administration of the scheme.

A number of people can be involved in what could broadly be considered as administrative functions in relation to a scheme but on whom it may not be appropriate to impose the requirements introduced by these provisions. I understand the reasons for the noble Lord's amendments. However, some insurance companies can and do provide day-to-day administrative services to schemes, as well as insurance services. We need to be careful that any exemptions do not go wider than we intend.

Those which provide administrative services for the trustees of the scheme are arguably in the best position to provide OPRA with information following the employer's insolvency. Furthermore, where they are carrying out some of the work needed to wind up the scheme they may need OPRA's help in getting that work done.

These new requirements and regulations will allow us to add to those persons who should not be treated as involved in the administration of the scheme. We shall, of course, take into account any representations we receive and, if appropriate, use the regulation making powers to add further to the list of persons already set out. In that light, I hope that the noble Lord will withdraw the amendment.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, I am grateful to the Minister for that full reply which we shall need to read carefully in Hansard. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 [Modification of scheme to secure winding-up]:

[Amendment No. 87 not moved.]

Clause 49 [Reports about winding-up]:

[Amendments Nos. 88 to 92 not moved.]

Clause 50 [Directions for facilitating winding-up]:

[Amendments Nos. 93 to 96 not moved.]

Photo of Lord Higgins Lord Higgins Conservative

moved Amendment No. 97:

After Clause 51, insert the following new clause--


(" . There shall be no requirement for a holder of a stakeholder, personal, occupational or other defined contributory pension to take the pension in the form of an annuity by a specified age.").

Photo of Lord Higgins Lord Higgins Conservative

My Lords, this amendment concerns the age restriction on taking a pension annuity. This matter will be familiar to your Lordships. Only last year on the welfare legislation a similar amendment, but one that was restricted to stakeholder pensions, was accepted by your Lordships' House although it was subsequently rejected in another place.

The House will know, therefore, that there is considerable concern about the imposition of the 75 years of age rule. There are several reasons for this. First, on average, people are living much longer. As I think has already been said on a previous occasion, at the time of the Beveridge report the average life expectancy beyond retirement age was about two years, whereas now it is much longer. Therefore, the age limit of 75 is extremely restrictive.

Secondly, previously annuity rates seemed to be relatively stable but now they fluctuate considerably. Over the past 10 years they have plummeted from a level of some 16 per cent to about 8 per cent. In other words, the pension which is drawn at any given moment is about half previous levels. Therefore, there is a considerable argument for greater flexibility in this matter. In the light of President Clinton's announcement yesterday about the human genome project we may look forward to even more dramatic changes in the future. The situation is changing dramatically and therefore we believe that an adjustment is necessary.

Successive governments have relaxed the rules to some extent; for example, in regard to income drawdown schemes. However, those can be risky unless people have considerable back-up in the form of higher income. For people on lower incomes the income drawdown scheme can be risky. There have also been changes to the rules on additional voluntary contributions. The limit was recently raised to the age of 75 with regard to defined contribution pension schemes. Overall, there are strong arguments in favour of the Government reconsidering the matter.

A press report produced in April stated that the Government proposed to raise the age limit to 80. Mr David Davis said that he thought that raising the limit was a good idea but that the Government would wait until half the relevant people had died before they did anything! I believe that there is some truth in that. We have understood for a considerable period that the Government intended to do something in this regard, but nothing happens. It would be helpful to be given an indication of the Government's thinking on the matter. At all events, it is important that the matter should be considered by noble Lords and that some change should be made. I beg to move.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, when this matter was raised in Committee I said that I could not support the amendment moved by the noble Lord, Lord Higgins. The situation has not changed since then. We feel that the tax relief that is given on contributions to pension funds is given for a specific purpose; namely, to provide for pensions income at retirement age when people give up their business or profession. We do not feel that this is an appropriate vehicle to use simply to build up a fund which can then be passed down in a tax efficient way to future generations. There are other tax favourable methods of saving such as ISAs. We think, therefore, that to allow pension funds to be held free from any obligation at any point in time to buy an annuity is inappropriate and defeats the purpose for which the relief is granted.

We recognise the desirability of drawdown schemes in deferring the date at which an annuity is drawn. I should confess that I have a drawdown arrangement myself. However, that is an entirely different matter. We are unable to support the amendment.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, as we have heard, this amendment seeks to remove the current requirement for tax-approved defined contribution pension funds to be used to purchase an annuity by the time the member reaches the age of 75. We debated this issue in Committee.

As I tried to suggest, pension annuities are the only product available that converts a capital sum in a pension fund into a guaranteed income for the remainder of the annuitant's life. That guarantee is paramount to the financial security of pensioners.

There is already some flexibility to defer annuity purchase by using the income drawdown facility, as the noble Lord, Lord Goodhart, said. However, it carries the risk of high administrative charges and a reduced capital fund if investments do not perform well. All the advice from the industry is that it should be taken up only by people with substantial funds; for example, a fund of at least £200,000. In practice, the majority of people are best advised to convert their pension fund to an annuity as soon as they retire because their funds are of more modest size.

We believe that requiring that an annuity be purchased by age 75 strikes a fair balance between flexibility over the timing of buying an annuity, while guarding against the risk that the fund becomes seriously depleted when someone may need to return to income related benefits.

Noble Lords will appreciate that tax-approved pension funds attract generous tax relief as an encouragement for people to save for their retirement. It is right that such pension savings should be used to provide a regular income throughout retirement. As the noble Lord, Lord Goodhart, has rightly said, other vehicles such as ISAs, which attract tax relief, are available to those wishing to save for other purposes, such as to provide an inheritance for their children.

I know that there has been sustained criticism that annuities do not provide value for money because the rates today do not compare favourably with the rates which were offered a decade ago. I believe that the noble Lord, Lord Higgins, made that point tonight.

However, as I have said before, I do not think that a simple comparison of annuity rates tells the whole story. Many people have benefited from substantial investment growth since annuity rates peaked and are now retiring onto considerably higher pensions in real terms than their predecessors who retired in the 1980s. For example, in 1990 someone on average earnings--and, given certain assumptions, producing a pension pot of £31,000--would have an income of £92 a week, or £119 in today's prices. In 1998, although annuity rates had fallen from 15 per cent to 9 per cent, that fund would not have been £31,000 but £97,000. The income would have been £175 a week, with inflation of only two per cent, compared with the £119 a week of the person retiring in 1990.

Annuity rates have fallen by a third or a half, according to the timescale one follows. As I say, annuity rates have fallen from 15 per cent in 1990 to 9 per cent in 1998 on a pot that has trebled in value to face inflation that is a sixth of what it was. That therefore generates a 50 per cent increase in income in real terms compared with what someone would have got in 1990 with those same three variables in play. Too often people want high annuity rates, high capital growth and low inflation all at the same time. That, of course, is not reasonable.

There is already flexibility and a reasonable degree of choice for those with pension savings. There are a number of annuity products on offer which cater for different needs. Because the pension annuity business is an expanding market, new products are being launched to offer even greater choice to purchasers. In recent weeks, two new investment-linked products have been launched. I believe that something like 10 companies now provide investment-linked annuity products which obviously track, follow or are related to growth in the markets.

It is clear from recent developments that the pension industry can and does innovate to provide greater flexibility for annuitants. There has been a noticeable increase in the number of companies offering investment-linked annuity products, giving greater choice for people to shop around for competitive annuity rates and the products that meet their needs.

It is worth reminding noble Lords that the Government keep the current arrangements under review, but we need to be absolutely sure that if a change were to be made it would represent a definite improvement over the present position.

I should also re-emphasise that the annuity purchase rules are laid down in the Income and Corporation Taxes Act 1988. Amendments to that legislation do not come within the scope of the Bill, so the proposed new clause would not have the intended effect. I hope that in the light of what I have said and what the noble Lord, Lord Goodhart, said, the noble Lord will feel able to withdraw his amendment.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, I thank the Minister for that thoughtful reply. The problem is the inflexibility of the arrangement as far as individuals are concerned. It may well be that they feel able to defer drawing their pension; that they prefer to see it accumulate in the way described by the noble Baroness and to draw a larger pension at a later date. It is true, of course, as the noble Baroness said, that the insurance industry, to some extent, has begun very recently--perhaps belatedly--to produce products related to the stock market rather than to the gilt market. None the less, this is a comparatively late development.

As we have seen in the past, some of the problems arise from disappointed expectations. It is perhaps true that, given the general history of these matters, people expected to see their funds grow at a reasonable rate and faster than inflation, but none the less based their expectations on the annuity rates which had prevailed for a considerable time. One can recall a period not so long ago--perhaps two-and-a-half to three years ago--where the lack of flexibility forced people who had reached 75 but who had not previously drawn their pension to do so at a moment when the stock market was in a very bad way.

This proves something which I still find surprising--namely, that the Government intend in their general pensions policy to forecast what pension people are likely to receive. The reality is that there are very wide fluctuations in the markets. A degree of flexibility is something from which people would benefit, rather than being forced at a specific date--provided they have not taken a pension previously--to invest in an annuity.

The Minister has made a number of interesting points. I do not find them wholly convincing and I shall seek the opinion of the House.

On Question, Whether the said amendment (No. 97) shall be agreed to?

Their Lordships divided: Contents, 129; Not-Contents, 186.

Division number 2

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Clause 53 [Jurisdiction of the Pensions Ombudsman]:

[Amendment No. 98 not moved.]

Clause 54 [Investigations by the Pensions Ombudsman]:

[Amendment Nos. 99 and 100 not moved.]

Schedule 5 [Pensions: miscellaneous amendments and alternative to anti-franking rules]:

[Amendment Nos. 101 to 104 not moved.]

Clause 57 [Rights of appeal]:

[Amendment No. 105 not moved.]

Clause 58 [Time limit for appeals]:

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, this amendment seeks to delete Clause 58 from the Bill. On these Benches we seek to ensure that the present time limit in relation to an appeal will remain at 12 months. In Committee the Minister accepted that there had been some concern that six months did not provide vulnerable, and perhaps grieving people, with sufficient time in which to bring an appeal. The Minister also said that advice the Government had received from some ex-servicemen's organisations indicated that they were comfortable with the proposals.

I am not sure which organisations the Minister's department contacted to enable that statement to be made because those organisations that deal directly with war pensions and the agency itself and have most knowledge of representation at tribunals are decidedly uncomfortable with the proposals. Indeed, they are most concerned. Among those which have contacted me are SSAFA, the RAF Association, the RAF Widows Association, the War Widows Association, St Dunstan's (For Service War Blinded), BLESMA, Combat Stress (Ex-Services Mental welfare Society) and the RBL. I declare an interest as president of the Earl Haig branch of the Royal British Legion. They are all united in their advice that anything that shortens the length of time that people have in which to lodge an appeal is quite wrong. Their advice is not to be disregarded lightly.

The Government are giving the impression that they are out to limit claims and deny servicemen and women their rightful financial support by shortening the appeal period. Why should our forces be limited to six months when the Americans, our close partners in many war zones, get 12 months? Are our troops any different? Are their illnesses different? Surely not. All possible help must be given to those who are wounded or killed for us. Accordingly, the 12-month period should remain. I hope that the Minister will think again. I beg to move.

Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour

My Lords, perhaps I may rise on a point of information. War pensioners are injured in public service. The same point applies to vaccine-damaged children. I was informed that there was to be a very important Statement in the House of Commons this afternoon regarding vaccine-damaged children and the payment scheme for them. I should be very surprised indeed if the Government did not see fit to allow Members of this House to question and interrogate Ministers and scrutinise that Statement in the same way as in the House of Commons.

Can my noble friend enlighten us? I believe that Members of this House are entitled, first, to put questions to the Minister and, secondly, to be given some information as regards the Statement.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, before the noble Baroness replies, I should like to support my noble friend. The list of organisations he mentioned when speaking to his amendment are concerned about the time limit not because they are groups seeking to make a political point; they comprise pragmatic people who think that it will be difficult for pensioners to appeal in such a short time. I hope that the Minister will listen carefully to the arguments in favour of the amendment. It is not a political point, but one driven by matters of practicality. A little sympathy would be most desirable here.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, the noble Lord, Lord Astor, raised a point about the time limit on appeals for war pensions. My noble friend Lord Ashley drew the analogy that someone who is a war pensioner incurred their injuries essentially in the course of public service; namely, that those injuries were received while fighting for their country. He went on to ask, when considering vaccine-damaged children who received vaccinations for the sake of public health and the safety of other children, why the Statement was not repeated in this House. Both groups have suffered in the name of the public good.

Today the Government made an extremely important announcement which will affect the lives of many of the most vulnerable and disabled children in our society. My noble friend has asked why the Government did not see fit to come to your Lordships' House, as though only Members of the House of Commons would be interested in developments as regards vaccine-damaged children. Could it be that noble Lords decided that more important matters needed to be discussed, such as annuity rates at the age of 75? Should such matters take precedence over the interests and well-being of vaccine-damaged children?

I take the reproof. The Government offered the Statement to this House. Because for some time I personally have been involved with organisations representing vaccine-damaged children, I wanted to be able to tell noble Lords what the Government are doing in this area. I would have positively welcomed the opportunity to repeat the Statement to the House. My noble friend would have been able to interrogate me on the details and noble Lords would have been informed on a matter that is a major social security issue and which could quite easily have been debated as an amendment to the Bill before us had it not been agreed by mutual consent that the Government's own review should first come to its conclusion.

Although I offered to repeat the Statement, I understand--I hope that I am not putting words into anyone's mouth at this point--that Members of the Official Opposition rejected the Statement and did not want it to be repeated in the House this afternoon, even though this matter affects the well-being of some of our most vulnerable children. However, when it suits the Official Opposition, it will pursue questions on these matters with the Government.

Given that, I am happy to tell my noble friend that, at present, the parents of a vaccine-damaged child are eligible for an allowance in the form of a capital sum which is intended to offset part of the additional costs of bringing up that child. The maximum award is £40,000. In the late 1970s the figure was set at £10,000. It was raised to £30,000 until a few months ago when the Government raised the figure to £40,000. At the time my noble friend pointed out forcefully that that sum was insufficient and that from his point of view it was an unacceptable award. I believe that it was for that reason that my noble friend tabled an Unstarred Question for tomorrow evening.

I am happy to be able to report that in the Statement made in another place today, the Government announced that they are not raising the award of £40,000 for vaccine-damaged children to £50,000 or even £60,000, but to £100,000. That means that those who have already received moneys will have their allowances upgraded to a real-terms equivalent of £100,000. The upgrading will be speedily enforced in regulations.

Furthermore, we shall widen the scope of the scheme so that it will offer generous compensation to those not presently included in the scheme. At present the scheme operates only for those children with 80 per cent disability. From now on all children with greater than 60 per cent disability will be included. The present rules require a claim to be made within six years of the vaccination. That period is to be increased to 21 years, so that some young people whose symptoms manifest themselves only during adolescence and at puberty will now be brought within the scope of the scheme.

I am pleased that I have been able to give the House details of the scheme. This is a social security matter and one of important public interest. For families bringing up vaccine-damaged children, this measure will bring about a major improvement in their lot. Although I do not wish to suggest that because the Statement contained good news it was not taken up by the Official Opposition, I hope that my noble friend and others will agree that the Government have taken a decent, generous and compassionate step as regards vaccine-damaged children. I am delighted to have been given the opportunity to share this information with the House. I thank my noble friend.

Perhaps I may now turn to war pension appeals. In Committee I went to some length to explain our reasons for bringing forward this measure. I shall not burden the House by repeating those points. I had hoped that, in the light of those explanations, noble Lords would have accepted that this provision is reasonable and necessary for the smooth, efficient and speedy delivery of just and fair decisions.

The current arrangements mean that some appeals are not subject to any time limit but, where one exists, it is often extended indefinitely by tribunals. That can work against the interests of appellants, against the effective administration of appeals and against a fair and just outcome. That is not a recipe for success.

To ask tribunal members to consider decisions made decades ago is to place them in an invidious, time-consuming and frustrating position, one where they are expected to reach decisions based on the appellant's circumstances, the medical understanding and the law as it stood at the time. That is an unsatisfactory arrangement and falls short of the wider expectations of a modern-day appeals system.

New time limits will ensure that appeals are heard nearer to when decisions are made; that is, the time limit applies not to the original claim, but on hearing appeals against the decision. Thus an appeal cannot be lodged 20 years after a decision, because most of the evidence will have been lost in the system. Facts are clearer when appeals are lodged close to the time that the decision is made and their relevance is more readily apparent. The time limits will largely negate the need to rely on assumptions about conditions that existed in the distant past. How can a satisfactory appeal be held on a decision that may have been reached 20 years previously when the medical and other knowledge on which that decision was based may have changed quite dramatically?

We propose that interim assessment decisions should retain their current three-month appeal time limit, but that in all other instances appeals should be submitted within a longer six-month time limit, starting from the date that the decision is notified. Elsewhere, most other appeal time limits do not exceed three months. We feel, therefore, that six months is relatively generous. In proposing this longer time-scale, we are paying due recognition to the unique status of war pensioners, the complexity of the war pensions scheme and the fact that these decisions have not previously been time limited.

We are also making provision for late appeals to be admitted within the 12 months following the end of the six-month appeal time limit. Affirmative regulations will be brought forward prescribing the circumstances in which late appeals will be accepted. We intend that such circumstances will be broadly similar to those contained within present social security provisions.

I think that it would also be pertinent to reiterate a point I made in Committee that noble Lords may have overlooked. Furthermore, it should go some way towards alleviating certain concerns that may possibly be based on a degree of misunderstanding in this area.

These provisions have no knock-on effect on claims for war pensions. War disablement pensioners and war widows may continue to make claims at any time--10, 15 or even 25 years after the incident or accident occurred. If a claimant incurred an injury at the age of 23, he may still bring in a claim at the age of 60. All we are saying is that the appeal against the ultimate decision should be made within a six-month time frame so that the appeal relates directly to the circumstances under which the decision was made--not 10 or 20 years further down the line. Efforts to be just and fair under those circumstances cannot be effective. The six-month appeal time limit will not start until after a claim for a war pension has been made, the necessary information provided and a decision notified.

The appeal clock will start to tick only from the date that a decision is finally notified by the War Pensions Agency. Even then, a dissatisfied claimant need only lodge an appeal within the six-month time limit. The fact that a claimant may not be able to obtain all the evidence before the expiry of the time limit is no bar to the lodging of an appeal. He or she need only inform the War Pensions Agency that further information will follow. If the claimant needs assistance, the agency will make every effort to help, for example, through the War Pensioners' Welfare Service.

Once the appeal has been lodged, the agency will begin its preparation of the papers for an appeal hearing. When that is done, it will send the appellant full details of the case. At this stage, the claimant will be given a further 28 days in which to write in again with further information. Even that is not the end of the line. When the hearing date arrives, the claimant or his or her representative still has an opportunity to produce any additional evidence that is relevant to the outcome and that may previously have been overlooked. Therefore, there are several stages beyond the initial lodging of an appeal at which a claimant may provide any additional evidence. I do not believe that the six-month time limit is unreasonable.

I have also explained previously that decisions made before the new time limit is commenced will have transitional protection. Those affected by this provision, but who receive a decision before its commencement, will have at least a year from the notification of the decision in which to bring an appeal. The new appeal time limit will apply only to those for whom decisions are made on or after the commencement date.

Finally, as I explained in Committee, if at any future date we need to vary the time limit in the light of the workings of the proposal, I shall be happy to come back with affirmative regulations which will be subject to the agreement of both Houses. Given the fact that the original request for the war pension can be brought at any time is unaffected, what we are seeking to do, which is entirely reasonable, is to say that the appeal against that should be made within a decent period after the original decision being taken--in this case six months--together with transitional protection. That six-month period can be extended if additional information comes through and the war pensioner needs further time to collect that information. To have the current system in which one can have a decision taken 20 years after the injury and an appeal a further 20 years after the decision cannot be sensible or fair to people in similar circumstances and cannot produce a right and proper decision. Therefore, in the light of what I have said I hope that the noble Lord, Lord Astor, will agree that the clause in the Bill is acceptable to the House.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative 6:00 pm, 27th June 2000

My Lords, I thank the noble Baroness for that reply which ranged wider than the amendment we were considering. As regards the question raised by the noble Lord, Lord Ashley, I understand that there is a Unstarred Question for the dinner break tomorrow on the vaccine damage payment scheme. Therefore, this House, unlike the other place, will have the opportunity to consider the matter.

I turn to the amendment. I thank my noble friend Lady Carnegy for her support. I agree with her that it is not a political point but a practical one. I accept that the Minister considered the amendment in great detail in Committee, but, despite what the Minister has said, a great many of the service charities are very unhappy. I shall consider Hansard in great detail and discuss the matter with those charities. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Constitution and procedure of Pensions Appeal Tribunals]:

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

moved Amendment No. 107:

Page 62, line 14, after ("qualified") insert (", persons with knowledge or experience of service in Her Majesty's naval, military or air forces").

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, in Committee your Lordships expressed concern that Clause 60 could have the effect of denying those with knowledge or experience of service life the opportunity to serve on pensions appeal tribunals. Noble Lords felt that this could be detrimental to tribunal hearings. I explained that my noble and learned friend the Lord Chancellor has always intended to continue to appoint people with knowledge or experience of service life to the pool of tribunal members.

However, the Government are alert to concerns raised in this House and I agreed to bring forward a government amendment to place a duty on the Lord Chancellor to appoint service people to a pool of tribunal members. I also undertook to write to the three presidents of the pensions appeal tribunals.

Government Amendments Nos. 107, 109 and 111 place a duty on the Lord Chancellor to appoint,

"persons with knowledge or experience of service in Her Majesty's naval, military or air forces", to the pool of tribunal members. It will also provide for people with "other" experience to be appointed. That will ensure that the presidents of the pension appeal tribunals at all times are able to select members of individual appeal tribunals from a pool that must include persons with legal qualifications, those with medical qualifications and persons with knowledge or experience in Her Majesty's Armed Forces.

I have also written to the presidents of the pensions appeal tribunals explaining the Government's purpose in bringing these changes and drawing to their attention the points raised by your Lordships during the debate.

The Government recognise the expertise that service people can bring to a tribunal in a similar way that legal and medical expertise is helpful. The Government have noted the concerns of this House and have laid amendments that will ensure that there are people with knowledge and experience of many of the services appointed to the pool of tribunal members and available to hear appeals. I hope that your Lordships will accept these amendments. I beg to move.

On Question, amendment agreed to.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, I thank the noble Baroness for moving these amendments. As regards Amendment No. 107, she promised at Committee stage that she would come back at Report with this amendment: it is a real break through. On behalf of the service charities and the veterans' groups, I thank the noble Baroness for her help in this matter.

On Question, amendment agreed to.

[Amendment No. 108 not moved.]

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

moved Amendment No. 109:

Page 62, line 27, leave out from ("2") to ("it") in line 28.

On Question, amendment agreed to.

[Amendment No. 110 not moved.]

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

moved Amendment No. 111:

Page 62, leave out lines 31 and 32.

On Question, amendment agreed to.

[Amendment No. 112 not moved.]

Clause 61 [Composition of central advisory committee]:

[Amendments Nos. 113 and 114 not moved.]

Clause 63 [Loss of benefit for breach of community order]:

Photo of Lord Windlesham Lord Windlesham Conservative

moved Amendment No. 114A:

Page 65, line 11, leave out from beginning to ("that") and insert ("a court makes a determination").

Photo of Lord Windlesham Lord Windlesham Conservative

My Lords, in moving this amendment I wish to speak also to Amendments Nos. 114B to 114H, Amendments Nos. 115A to 115D and Amendments Nos. 116A to 116G. By the time we have finished this debate we should have made substantial progress through the long list of amendments on the Marshalled List.

Photo of Lord Windlesham Lord Windlesham Conservative

It is a moment of amity which will shortly be shattered by what I have to say to the Government Front Bench.

This is the third time that arguments have been rehearsed against the inclusion in a social security measure of a pecuniary sanction when an offender who is subject to a community order is alleged to have failed to comply with the conditions of that order. Amendments Nos. 115 to 117, 119 and 120 would leave out the relevant clauses completely, whereas the remaining amendments concentrate on a single procedural change. It is on those that I shall concentrate in my remarks in opening this debate.

There is no need to repeat the full catalogue of objections which have been raised by practitioners outside Parliament as well as inside this House to the wholly misguided idea of withdrawing or reducing social security benefits from offenders for up to 26 weeks in the period between a reported breach--I put emphasis on the word "reported"--by the probation officer and a court hearing.

In some cases the breach will be contested when it reaches court. It may not be proved. In others, the court may decide to continue a probation or community service order, either with no penalty or with a fine, or to substitute some other form of punishment. Often the order is revoked and the offender is sentenced to custody or to other penalties. The number of unexecuted arrest warrants is also an uncomfortable reminder of just how many offenders are no longer in touch.

All these outcomes result from court hearings. They are decided according to the circumstances of each individual case. But no such variety of disposal is allowed for by this Bill in the automatic sanction to be imposed by the benefits office once a breach has been reported by a probation officer.

Those of your Lordships who have not followed this issue closely will be surprised to hear that an alleged breach is enough to be treated as evidence that a condition of benefit has been abused, and the withdrawal of that benefit should therefore follow as a sanction. All that Ministers can offer by way of justification is that typically a person who abuses a community penalty is a chronic menace to a local community, terrorising or vandalising housing estates, and generally making the lives of the residents a misery. Anyone who read Hugo Young's polemic in last week's Guardian would have seen that reasoning brilliantly demolished. If indeed this is the rationale for the legislative response, it is not only rooted in deep ignorance--I use the word deliberately--of deviant behaviour and the most effective ways of countering it, but is a complete caricature of a contractual relationship.

Since there seems to be some misconception, let me spell it out. A contract must be between parties who know that they are entering into a relationship with one another. It is a species of agreement whereby an obligation is created by the parties to it, and not by the declaration of one party in the ignorance of the other. The adoption of what may seem to some members of the Government or their advisers as little more than a convenient rhetorical device, is in fact a debasement of language, as well as undermining the habits of legality. It is for those reasons that Amendment No. 114A, which is the key amendment, and the long list of amendments grouped with it, concentrates on what is in many ways the most important of several flaws in this part of the Bill.

If there is to be an administrative sanction attached, not to a condition of eligibility according to need but to the breach of a legal obligation in the shape of a community order, then it must be for the court, not for a government official, however conscientious, however fair-minded, to decide on whether or not an additional penalty is deserved, alongside those which are already at its disposal. This, and the consequential amendments, delay the implementation of the loss of benefit sanction until after the court has made a determination that an offender has failed to comply with the requirements of the appropriate order. I beg to move.

Photo of Earl Russell Earl Russell Liberal Democrat 6:15 pm, 27th June 2000

My Lords, when one goes into Committee to debate a matter with all guns blazing, very occasionally one comes out wondering whether the case was as strong as one thought. Sometimes, one comes out thinking that it was as strong as one thought but one can understand why people thought otherwise. Usually, one comes out thinking very much what one did when one went in. What is really unusual is to go into a debate in Committee with all guns blazing and come out thinking that the business that one is debating is very much worse than one originally believed.

A number of Cross-Benchers asked me what was our case on this issue. I told them: "Read the Minister's speech. You will find what concerns us much more clearly set out than we could do it ourselves". What we found was not merely an unjust procedure, not merely an unjustifiable measure, but a major realignment of the terms on which benefits are to be received, and what I fear may be a major agenda for the Government's second term if they should be fortunate enough to get one. That is quite a collection of mischiefs.

Perhaps I may deal first with the point about the procedure, which is the subject of the amendments. The amendments put forward in effect a single proposal and they are necessarily contingent on each other. The procedure is that if a person misses two probation appointments, he or she must be reported. It is the court's job, not that of probation officers, to decide whether the absence was justified. A person is deemed to have missed an appointment if he or she is 20 minutes late. I wonder how many of your Lordships have never been 20 minutes late for an appointment through no fault of your own. I suggest that it is only those who could justifiably support the proposition that the Government are putting forward.

As recently as this morning, as I was coming to the House, I might very easily have been 20 minutes late, because the favourite gremlins of the noble Lord, Lord Peyton of Yeovil, had taken up residence digging holes in a place in the road where no holes had been yesterday. A great many of us have been 20 minutes late because of signal failure on the London Underground. If we are to miss all visible legal means of support for a period which is an average of 41 days, and may on occasion be as long as 314 days, because of one signal failure on the London Underground, that will lead to a degree of animus against London Underground which may lead to vandalism and a great deal of delay to other people. That could be unfortunate.

I said in Committee that I had never known the case put as well as in the Minister's speeches against precisely this principle of loss of benefit before appeal in the Jobseekers Act 1995. I said that they were some of the most brilliant speeches that I had ever heard in this Chamber. I took the opportunity this morning to read some of them. The Minister said then that there was,

"merely a doubt ... and one does not know whether an offence has or has not been committed ... the individual is being fined in advance of that doubt being established as valid. We still believe that that is monstrously perverse".--[Official Report, 27/4/95; col. 1107.]

She was concerned about the consequences. She said:

"the vulnerable will continue on hardship and ... young, single people, childless couples and those perhaps with less easily diagnosed mental health problems will have no income at all ... As the noble Baroness, Lady Williams of Crosby, said the other night, they will not starve peaceably--at least I hope that they will not. They will beg, steal, become prostitutes and sell drugs. In the process they will become entirely unemployable ever again".--[Official Report, 25/4/95; col. 870.]

The message is clear. This is a thoroughly unfortunate series of procedures. We shall support the amendments.

Equally, we on these Benches are deeply concerned about the principle of the clause itself. The Minister is, of course, right in saying that it is not new to set conditions for benefits. But this represents, by her own confession in Committee, an entirely new type of condition. There have always been conditions for means-tested benefits related to sufficiency of means. There is no argument about that. Increasingly, since 1986, there has been a pile of conditions for means-tested benefits related to the claimant's attempts to avoid being in need. One might parallel them to intentional homelessness. These are the availability conditions and all that go with them. Those conditions are relevant in principle to the purpose of benefit. Our position on these Benches is that we believe that, before deciding whether such withdrawals of benefit are justified, we need to know what the effect will be--and we do not.

I have said enough on this point. It is not what we are dealing with; we are dealing now with an entirely different matter. The Minister's words in Committee were:

"They are conditions associated with good citizenship, not simply with needs and entitlements".--[Official Report, 22/5/00; col. 542.]

That is an entirely new principle. What is more, it is one that the Government intend to apply again. The Minister said:

"I would not on principle rule out further extensions, but it would be for Parliament to debate whether particular behaviour is sufficiently undesirable and to be so strongly discouraged that it merits the withdrawal of state support via the benefit system".--[Col. 543.]

Constitutionally, it is a perfectly correct answer: the vires are limited. But the principle that is stated is not limited. I take that to be the Minister's announcement that she is setting herself up as the Young Lady of Spain--she intends to do it again, and again, and again.

I really must press the Minister. What are the limits of this theoretical principle that she now claims? It will undoubtedly be an issue at the next general election. If the Minister cannot spell out any limits, she cannot blame me for saying that something might fall within them. If the noble Baroness states any limit, I will observe it.

The noble Baroness, Lady Massey stated:

"Surely, it is fair that benefit systems should be seen to be applied to those who merit them".--[Official Report, 22/5/2000; col. 525.]

I ask her to consider what that principle might mean in the hands of the noble Baroness, Lady Young. Equally, as I am not making a party point but drawing attention to the fact that we disagree about "deserving", I ask the noble Baroness, Lady Young, to consider what it might mean in the hands of the noble Baroness, Lady Massey. We do not always agree on what is deserving. The threat to withdraw benefits from those who are not deserving could produce many unexpected consequences--most of them serious.

The noble Lord, Lord Windlesham, said that one cannot have a contract made by one party. I do not know when I consented to the alleged contract. The Government are correct when they say that there is a relationship between rights and responsibilities but it is not one that they have properly understood. There are rights and responsibilities on both sides. When there is disagreement over whether a citizen has defaulted, the courts, not the Executive, are the proper judge. Magna Carta is often wrongly invoked but that is its central principle and one in which I believe.

The chief responsibility of the state is to protect its subjects. Since the Poor Law and before, it has been recognised that that responsibility includes protecting people against starvation. If people are put outside that protection, one turns them into outlaws.

I have just one more quotation from the noble Baroness, in 1995:

"If we outlaw from benefit some of our fellow citizens, assuredly we outlaw them from the law itself. Even the Victorians in their most penal and policing authoritarian mode--the classical economists--never did that. They always had available either outdoor or indoor relief. Why did the most severe and judgmental of Victorian moralists continue poor relief on the rates? They recognised that if they refused money for bread, those people would break the bakers' windows".--[Official Report, 25/4/1995; col. 870.]

The Government are offering a proposal to increase crime. I do not want that.

Photo of The Bishop of Lincoln The Bishop of Lincoln Bishop

My Lords, I speak as the bishop to prisons. Although this is not particularly a prisons matter, since my appointment some years ago I have taken a keen interest in a wide range of penal affairs.

I have continuously and consistently supported the noble Lord, Lord Windlesham, in his amendment and do so today because the Bill allows the diktat of the Department of Social Security to replace the court after a probation officer has reported an alleged breach. That cannot be right for the reasons that the noble Earl, Lord Russell, stated.

The principle of punishment before conviction is being too easily and smoothly promoted. I ask your Lordships to support the amendments, to restore the proper authority of the court, rather than allow administrative decision to override the proper judicial process.

Photo of Lord Carlisle of Bucklow Lord Carlisle of Bucklow Conservative

My Lords, in Committee I expressed my total opposition to the clause and do not renege from that. Its effect is to impose the removal of benefit on an allegation of breach, rather than on the finding of the court--which principle is novel and unacceptable.

I read with great care the Minister's reply in Committee but remain unconvinced by her arguments. She said that the Government are merely adding another condition to a benefit, rather than imposing a penalty. I suggest that people on probation in Manchester and Liverpool who find their benefits withdrawn on an allegation of breach of probation will certainly believe that is a penalty.

The noble Baroness said that the measure would only be imposed in pilot areas for four weeks. Recent information from the Association of Chief Officers of Probation suggests that the normal period between an allegation of breach and a court hearing is longer than four weeks. The individual will have his benefit removed during that time, even if he is later found not in breach--which would be totally and completely wrong. There is no answer to the argument that introducing the removal of benefit that way will be a temptation and pressure for those given community service to get involved again in crime, which they otherwise might not do.

Photo of Lord Sheppard of Liverpool Lord Sheppard of Liverpool Labour

My Lords, I listened carefully to the debate in Committee and to the noble Lord, Lord Windlesham, and others today. Several noble Lords whom I admire greatly support the amendment and I have thought long and hard before deciding to disagree and support the Government's proposal.

My noble friend the Minister was correct to place the debate in the context of reform of the system, which is a wide and major issue that we should not consider in isolation from the far-reaching debate on benefits. My noble friend said that the measure was about rights and responsibilities in relation to benefits, so it is properly a DSS matter. I agree.

Many who support the amendment are rightly concerned for people struggling with poverty. The noble Baroness, Lady Stern--with her unrivalled experience--gave an example of a young offender failing to report for community service because of pressures at home over which he or she has little or no control. The probation officer would report such extreme circumstances to the decision maker, who would surely take them into account.

The Commission on Social Justice, chaired with distinction by my noble friend Lord Borrie, said that the best way out of poverty is to obtain a job. The Government have adopted that as a central plank in their strategy to get rid of poverty. I am aware of many outer estates and inner city areas where there has been a no-work culture for three generations. For example, three years ago in the borough of Knowsley some 45 per cent of children were growing up in homes where no one was in work--not very different from the situation in the whole of Liverpool. In areas like that, benefits have been taken for granted as rights.

During the inquiry that I chaired on behalf of all the Churches into unemployment and the future of work, I was persuaded that full employment was possible. I had not believed it before. It is not quite as simple as saying that there are 1 million people and 1 million jobs to which they can go. But I was heartened to receive a ministerial reply at Question Time last month that in the 15 new employment zones established in April the Government would support the introduction of intermediate labour markets aimed specifically at those furthest from employment. Intermediate labour markets are a serious step in job creation and offer 12 months' work with the rate of pay for the job.

Freeing people from the no-work culture is a major task. The Government are right to believe that there must be a stick as well as a carrot. I have not lightly come to that view. The prize of getting people into real work is a major one for every individual concerned and for the community as a whole. I dare to say that some of my allies and best friends who are involved with those on benefits have themselves become locked into the no-work culture, by which I mean that they hardly believe that for those whom they serve anything other than reliance on benefits is possible.

If we believe that finding a proper job is the best way out of poverty, the nation has an obligation, as its part of the contract, to ensure that real jobs are available. For that reason, I mention the importance of intermediate labour markets. That is taking people seriously as having gifts that are needed and valued. Shifting the philosophy of benefit in that way means acknowledging that each citizen has a contract with the state. It also means that one treats people as responsible adults.

Photo of Earl Russell Earl Russell Liberal Democrat 6:30 pm, 27th June 2000

My Lords, can the noble Lord rebut the proposition that the withdrawal of benefits risks making people unemployable thereafter?

Photo of Lord Sheppard of Liverpool Lord Sheppard of Liverpool Labour

My Lords, it is impossible to rebut that proposition because one is trying to guess the future. In turn, I ask the noble Earl whether he can rebut the suggestion that a little pressure will help to play a part in moving people--for whom I pray every Monday of my life--out of the no-work culture and into jobs.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, I am grateful to the noble Lord for giving way. Neither of us can do this until there is serious research about the effects of disentitlement to benefit. We on these Benches have been asking for that for a great many years. We do not have it.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, the noble Earl and other noble Lords may be assisted in this debate if I make the following points. First, research into what happens after disentitlement to JSA was published in 1998. Secondly, the noble Earl will be aware that what we propose today are pilots. Those pilots will be evaluated to see whether a four-week loss of benefit as a sanction for failing to observe a community sentence has the effect that the noble Earl fears. That is the whole point of the pilots.

Photo of Lord Sheppard of Liverpool Lord Sheppard of Liverpool Labour

My Lords, I am not sure all noble Lords are aware that we are talking about the introduction of pilot schemes which seek to discover just that. I always expect to learn something valuable when the noble Earl speaks; indeed, I usually discover a little piece of history of which I was hitherto unaware. I was surprised, however, when the noble Earl said in Committee that the removal of benefit as provided for under the Bill was,

"based simply on the fact that the Secretary of State happens to disapprove of the activity in question".--[Official Report, 22/5/00; col. 517.]

That does not seem to me to be the case. A community service order is made by the court and the court expects that order to be completed.

I recently discussed all this with a very experienced probation officer, who took the view that community service orders needed to be given firm support. He feared that if their authority was diminished we would be hearing more about the necessity of sending a greater number of offenders to prison. I do not want to see that. I believe that community service orders can be more effective than prison in persuading people to change their ways. They deal with offenders while they are still living in the context in which they must work out the rest of their lives. If someone is sent to prison, his or her benefit is of course removed. To break an order of the court is to break the contract between the offender and his or her nation. I believe that to withdraw some benefit is a proper step. Just as moving into a job is the best way out of poverty, so the completion of a community service order is the best way out of a life of crime.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I believe that the noble Lord spoke to Amendment No. 115, which proposes that that Clause 63 be deleted. The noble Lord has every right to do so. However, I believe that the previous debate dealt with a point which the noble Lord did not pursue; namely, the injustice of the removal of part of a person's benefit before the court has decided that he or she has breached the order.

In the context of Amendment No. 115, I should like to speak also about the general proposition underlying the clause. During debate in Committee as to whether the clause should stand part of the Bill I asked several questions about how the withdrawal of benefit would operate in Scotland. The Minister very kindly said that she would write to me, and she did. I received an extremely full and helpful letter. She and her advisers had taken a good deal of trouble over it, for which I am most grateful. The noble Baroness clarified most of the issues about which I had inquired. However, one matter was not satisfactory.

The noble Baroness has just told the House that the whole issue will be decided by the pilots. The noble Baroness confirmed in her letter that no pilot would be run in Scotland, the reason being that the Government wished to avoid any confusion because of the different systems and that it would be,

"easier to identify behavioural effects, and best practice, if the pilots are conducted within a single criminal justice system".

The noble Baroness went on to say:

"In the light of the outcomes of the pilots, we will decide on the extension of the measure nationally, or on further pilots, as appropriate. The general lessons to be learnt from the pilots--both behavioural and operational--will be applied in Scotland"; that is, pilots in England will be used as evidence as to how the system works in Scotland.

The noble Baroness knows well that the system in Scotland is completely different. The courts operate in a different way. There are no probation officers; the social work departments do their job. I suspect that the problem is one of devolution awkwardness, but it can be overcome. It would be impossible for the Government to mount pilots in Scotland because the criminal justice system is devolved. At least one of the sanctions that can be applied--the grounds on which benefit may be refused--is devolved in Scotland. But, surely, the Scottish Executive can be asked by the Government to run a pilot in Scotland to discover whether the system works. The behaviour of people whose benefit may be withdrawn if they breach an order may be more or less the same north and south of the Border, but the system is different.

The Government must face up to these devolution difficulties. I can see no reason why the Scottish Parliament should not be asked to run a pilot scheme in Scotland. I hope that the Minister will listen. It will not be good news when it comes out in the Scottish Parliament; and it will do so.

Photo of Lord Dholakia Lord Dholakia Liberal Democrat

My Lords, I support the amendment of the noble Lord, Lord Windlesham. It is difficult to see what could have possessed a Government so strongly committed to crime reduction to introduce a measure which will inevitably increase crime. It is equally difficult to understand what could have made a Government so committed to tackling social exclusion bring forward a measure which will further worsen the exclusion from society of many vulnerable people. But it is nothing short of astonishing that a Government so committed to promoting racial equality should introduce a measure which will so disproportionately disadvantage black offenders, further alienating them from law abiding citizenship.

Let us take three examples of what the changes proposed by Government will mean in practice. First, let us consider a jobseekers' allowance recipient aged 25 with no dependant or housing costs who would normally be entitled to £51.40 a week. If he or she were referred to court for breaching a community sentence the full amount of £51.40 would be withdrawn for four weeks. Depending on the individual circumstances, after two weeks the individual might be able to gain hardship payment of £30.85 a week, or £41.15 a week if someone in his or her family were seriously ill or pregnant. Those with responsibility for a child could apply for a hardship payment from the beginning of the period, but even here the payment would be less than the claimant's normal entitlement.

A second example is a lone parent on income support with one child under 11 who would have his or her benefit entitlement reduced by 40 per cent of the single adult rate, a reduction of £22.55 at current rates. This would mean that weekly benefit of £71.50 would be payable instead of the full rate of £92.05.

A third example is of a young single person participating in the voluntary sector option of the New Deal who currently receives an allowance consisting of a basic element of £40.70 plus top-up of £15.38. In that case the £40.70 would not be paid for four weeks, although the £15.38 would continue to be paid if the young person continued to participate in the New Deal.

During the pilots those sharp reductions in income for people who are already in real poverty will last for four weeks; and when the measure goes nation-wide, the Bill allows the Secretary of State to authorise these reductions for anything up to six months. Anyone who has worked with offenders can see that pushing poor people into greater poverty in this way must increase their temptation to steal, shoplift, burgle, solicit for prostitution or sell drugs.

The Probation Service national standards now require that an offender must be returned to court for breach of an order on a second failure to comply, and this could mean being 20 minutes to half an hour late for a probation or community service appointment on two occasions. The degree of hardship involved in the removal or reduction of benefit will often be wholly disproportionate to the seriousness of the offence, especially as it will be in addition to whatever punishment the court decides is appropriate for the breach.

There is no doubt that this measure will have a particularly adverse effect on offenders from minority ethnic groups for the simple reason that black males have a higher rate of unemployment than white males. They will therefore be over-represented in the group of offenders who will have its benefits withdrawn. How is this indirect discrimination supposed to increase respect for the law among young black men or minority ethnic communities generally? It can only undermine the strenuous efforts of all of us who are working to increase the respect for the law and to combat racism and discrimination in the legal process.

I have no doubt that this misguided measure will deter some probation officers from taking people back to court. I believe strongly that probation officers should be rigorous in returning people to court for persistence as regards probation and community service orders. But if probation officers know that there will be unjust and draconian results, there must be a temptation for them not to record failures to comply in order to avoid these consequences. This measure will tend to undermine the admirable and increasingly successful work which the Association of Chief Officers of Probation has spearheaded to improve the enforcement of community sentences.

The change is taking place at a time when in another piece of legislation, the Criminal Justice and Court Services Bill, the Government are centralising the Probation Service into a new national probation service. If the Government persist with the misguided measure before us today, it will sound a warning note about their plans to increase central control of Probation Service policy. Many of us would be far more resistant to moving in such a direction if we thought that it was likely to be dominated by approaches like this one which sound tough but in reality can only damage the fight against crime.

About 58,000 community service orders are made in a given year. Everyone is a potential victim if such a policy is pursued. In sentencing options a community service order is often an alternative to a custodial sentence. The Government's proposed action abolishes that distinction: it leads those without receipt of funds to commit further crimes. My noble friend Lord Russell points out that a number of arguments have been advanced about the pilot schemes. For those noble Lords who wish to refer to his views, they are well reported in Hansard.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 6:45 pm, 27th June 2000

My Lords, I have spoken previously on withdrawing benefits from those in breach of probation and community service orders. On reading those debates in Hansard I noted a number of failures of understanding about what we are dealing with by some noble Lords. There were repeated references to persistent long-term "refusers"--people not turning up time and again. We are here talking about individuals who do not attend on two occasions. They miss two appointments. Another misconception was that the provision was a remedy for dealing with all those young offenders on estates. But we are not talking only about young offenders on estates but many other kinds of offenders too. The broad brush of trying to tackle particular kinds of offending in this way will not be successful.

Like my noble friend Lord Sheppard I, too, believe strongly in the need for reform of welfare. I also believe that the best way out of poverty is through work. Like the noble Lord, I chaired an inquiry on expanding opportunities in education and widening participation. How does one draw the socially excluded--those who missed out the first time round--into education? One of our proposals was that learning became a central plank in any welfare reform: that one of the best ways back into work was via learning and training.

However, for many on community service orders the chaos of their lives, the multiple social problems they face, mean that there is a step to be taken even before that. It is about restoring some degree of order with the help of the professionals within the Probation Service. That takes time and hard work. People are willing. It is often not wilfulness which results in their not turning up; it is sometimes for other reasons.

Like other noble Lords, I believe that it is right that the courts should be strict about those who cock a snook at the system, and do not turn up for appointments. Community service orders must be strengthened, but this measure is not the way to do it. First, it is an attack on the poor because it is the creation of a discriminatory punishment which does not apply to other offenders but only to the under-privileged. Secondly, it is an extraordinary departure constitutionally because it gives to the department of state dealing with social security a punishment to dole out in addition to that doled out by the courts. Thirdly, these proposals are an affront to the new and wonderful philosophy of human rights which has been introduced by this Government because it is contrary to natural justice to produce punishment in advance of conviction. What we will have is precisely that because if one does not have a hearing in front of people in a proper way--an adjudication as to whether there has been a breach--then surely we are not dealing properly with the question of breached.

As others have said, it is a sure fire way of returning people into the arms of crime. I have spent a large part of my life representing women, and for whom I have argued that there should be properly designed community service orders that could work for them, particularly if they had children, because so often community service orders did not particularly suit women who had children.

What we know now is that for those women--if they are in breach because of the chaos that their lives are often in at the beginning--to be driven back into the arms of crime would really impact not just on them but on their children.

We have just seen a very shaming international report that shows that child poverty is still a serious problem here in Britain, even greater than in other European countries. Reducing the benefits of a parent will undoubtedly impact on children who are not offenders or people cocking a snook at the criminal justice system.

I wrote to the Ministers involved, suggesting that these provisions might not apply to the primary carers of children; men and women who might be caring for children. I am disappointed that that exemption has not been considered.

The reason why this amendment has been proposed by the noble Lord, Lord Windlesham, the noble Earl, Lord Russell, the right reverend Prelate the Bishop of Lincoln and myself is that although we all have principled objections to this whole proposal, we are seeking a compromise. That is why we have placed this amendment before the House. If benefits are going to be removed there should be at least a proper court decision that a breach has, indeed, taken place. It is not a lot to ask.

There is always an assumption that the public want to be excessively punitive. From what organisations such as Payback, an organisation working on community crimes and community punishment, tells us this is not reflected in the research. Legislation like this is not what the public want because the public understand that it does not actually lead to a reduction in crime. The public have a more sophisticated grasp of the complexities of crime than that for which they are generally given credit. They recognise that family influences are more important than sentencing practice and they want real solutions.

The Government created a social exclusion unit because of concern about the marginalising of the poor. If anything is likely to harden disaffection and exclusion, it is this proposal. For that reason we have sought that at least this amendment be passed because it means that the matter will go back before the court and a proper process will take place in deciding whether a breach had taken place at all.

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, I rise also to support the amendments proposed by the noble Lord, Lord Windlesham. It was suggested in Committee that those who opposed this clause were unaware of the crime situation on some disadvantaged housing estates and insensitive to the plight of the victims of crime. I think many of us who did oppose it felt that this was a very unfair way of looking at our opposition.

Unless new information has become available since the Minister spoke on 22nd May, we have to assume that it is still not known whether these measures will reduce crime and give added protection to victims. Certainly, all the evidence on crime reduction gives no grounds for the Minister's optimism. To my knowledge there are no research results showing that making people poorer reduces their propensity to commit crime.

I, too, studied the Minister's speech very carefully. It was certainly worth studying. The idea of benefits being conditional on individual's recognising their obligations to society is, of course, right. But it is very selective. We all have many benefits from society. As the noble Lord, Lord Higgins, said in Committee, we seem to have got into the philosophical mode of saying that there is a contract between the community and the state but that it applies only to people who are on benefit. So the only people whose benefits from society will be threatened are those who need them most; that is, the poor. It is not proposed that employed or non-benefit drawing defaulters will have an administrative punishment as well as a criminal one. The only people to receive two punishments will be the poor.

There was some discussion in Committee as to whether this was a punishment or an administrative measure. That is an academic question. To lose £205.60 a month if you are a male offender on job seeker's allowance, or to lose £82.20 if you are a lone parent with one child is a punishment if you are very poor. It is a fine that misses out the process of going to court. Of course, fines are used less and less by the courts. The percentage of offenders who are fined has fallen from 54 per cent in 1978 to 32 per cent in 1998. That is because more people were too poor to pay. The courts always argued that they could not fine offenders on benefit because to take even £5 a week from the small sums people were receiving would put them into unacceptable poverty. Here we are proposing to take even more, and without due process. I support the amendments.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, this morning I missed my dentist appointment through a combination of incompetence, misreading my diary and somebody putting it in the wrong place--or cowardice, as somebody said. I was also late for something last week. To fine the poor 100 per cent of their income because of that sort of level of incompetence is really vicious behaviour.

There are two questions that the Minister has never answered. First, why should the poor be fined 100 per cent of their income without judicial process? Secondly, can the Minister explain to the House on what they are going to live? I suggest that their only answer is flogging their bodies, flogging cocaine or crack, or doing something equally nasty from which we want to wean them. We do not want them to do that. We want to try to reform them. If one pushes them back into that way, of course it is going to become worse.

I was reminded at luncheon today of this piece of literature:

"'Then the words don't fit you,' said the King looking round the court with a smile. There was a dead silence.

'It's a pun!' the King added in an angry tone, and everyone laughed. 'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first--verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice. Nobody moved'".

I am afraid that the Red Queen seems to be occupying the Government Front Bench with that attitude of mind.

Photo of Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate Labour 7:00 pm, 27th June 2000

My Lords, not for the first time do I find myself speaking in this Chamber in what I sense to be a minority. However, I disagree with the noble Baroness, Lady Kennedy, that my comments do not represent the majority. I believe that they represent the majority outside this House, but no doubt we shall see. In any civilised society, or indeed in a family, if people are prepared to live in harmony, they have rights. But accompanying those rights are commensurate responsibilities. I believe that that is what the debate is all about.

I often hear noble Lords legitimately argue that prison simply makes criminals worse and that more use should be made of community service orders. However, if a straw poll of public opinion were taken, prison would probably come first again. It would come well ahead of community service.

I believe that community service has a right and proper place in the armoury of the courts, but only if it is enforceable. We see too many examples of people demanding rights in society but not accepting the obligations. It is a two-way street. Surely, the purpose of the taxation system is to ensure that those in society who are unable, without fault on their part, to work, or who fall ill, are supported by the many. People are quite happy--perhaps "happy" is the wrong word--to contribute towards those who fall through the net.

Those who commit crime and are sent to prison forfeit the right to receive benefit, although their families will be catered for. It must be wrong, therefore, if those who are given a community service order which they will then wilfully ignore can lie in bed and still expect other hardworking members of the community to featherbed them. The noble Lord, Lord Sheppard, was right in saying that in some areas there is a no-work culture. But there is also a criminal culture which needs to be tackled.

Perhaps I take the old-fashioned view that the work ethic is worth encouraging. We have lost some of the discipline in society. The pillars of authority are no longer respected: the vicar, the doctor or the policeman. Some might believe that that is proper, but as a policeman for more than 30 years I can say that once a wrongdoer knew that you were bluffing and that there was no effective sanction, he would--and it was usually "he"--exploit it to the full. That would often be true of juvenile offenders, who knew the age of criminal responsibility and would often taunt police officers with that fact. I mention that as an example.

It was true of a professional burglar who knew that you had nothing on him. During the interrogation, he would watch carefully for any hint that you did not really know whether it was him. And, rightly, he would exploit that! One would expect nothing else.

Therefore, it seems to me that if an offender is given a community sentence and knows that he can wilfully ignore it with impunity and still pick up his benefits, we are playing right into his hands--

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative

My Lords, I am grateful to the noble Lord for giving way. He has twice suggested that the offender wilfully ignores the community service order. Who is to be the judge of whether he wilfully ignores it? Is it not to be the court, and should we not respect the court in that way?

Photo of Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate Labour

My Lords, I take the noble Lord's point, but I certainly do not agree with it. I hear what the noble Lord says, but I believe that it can be an administrative decision and that it is a real sanction against those who wilfully ignore the community service order imposed by the court.

We are trying to achieve the opposite. We are trying to persuade the offender that this is not a something-for-nothing society. Surely, we are trying to create good citizens. This Government support the police and do not just talk about doing so.

Photo of Earl Russell Earl Russell Liberal Democrat

My Lords, does the noble Lord believe that a parent who misses a community service appointment because she is taking a sick child to casualty is behaving irresponsibly?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, a recent circular from the Home Office, 24/00, makes it clear that probation officers are to take into account exactly such circumstances and not regard them as a basis for a referral to court. Therefore, the noble Earl should withdraw that suggestion.

Photo of Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate Labour

My Lords, that is right. The problem is that we are assuming that people have no discretion in this matter. Clearly, people do have a discretion when enforcing the measure and I believe that it would be enforced against those people who are abusing the system. That is the way in which sensible people operate and your Lordships are being a little extreme to suggest otherwise.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I am sorry to interrupt the noble Lord, but I want to point out that there is little discretion. The Minister is right in saying that the Home Office circular, sent out in April, made it clear that:

"All absences should be regarded as unacceptable unless proved otherwise. Acceptable absences would include medical appointments notified in advance with appointment cards shown for verification".

It is clear that there are limited circumstances in which an excuse can be acceptable.

It is right that carers' responsibilities can be taken into account; that possible appointments should be made with their obligations in mind; and that an emergency relating to a child will be taken into account. But little discretion is left.

Photo of Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate Labour

My Lords, I still believe that we can rely on the good common sense of probation officers. I know that police officers welcome the provisions. Only this afternoon I talked to the Association of Chief Police Officers, which certainly supports the provision. Its officers are close to the problem of dealing with people who abuse community service orders.

People are simply being asked to do that which the court has ordered. Any sanction which gives them any kind of grief for failing in that regard will be seen as eminently sensible by the vast majority of people outside the Chamber.

I recently saw a letter from a chief inspector in charge of operations in Staffordshire. It was dated 7th June, which is about three weeks ago. It was a plea for further legal help to deal with those few people in communities who acted in an anti-social manner. The anti-social behaviour order was brought in for that very purpose. Those who did not accept the social norms in communities could be dealt with by new powers ordering them to comply. Yet that could happen if they were sentenced to a community service order.

We are talking about offenders making reparation to society for their breach of contract--it is a contract--in committing crime. In court, the offender agrees to accept the community service order. If he adds insult to injury by wilfully continuing to break his community service contract--and I am sure that the Probation Service will carefully examine the circumstances--it is right and sensible for society to review the contract and, if necessary, review his benefit. He will understand that and in my view it will be more likely to make him compliant.

Photo of Viscount Tenby Viscount Tenby Crossbench

My Lords, in contrast, I rise to support Amendment No. 114A and I want to approach the matter from the point of view of the magistracy. I have been in touch with the Magistrates' Association and as recently as this morning I discussed the matter with the current and former chairmen of my bench. I am sure that they are alongside me in what I have to say.

As a magistrate of many years, I yield to no one--absolutely no one--in my desire to see rigorous enforcement of community orders. After all, for those of us who believe that they present a much more attractive prospect than wholesale imprisonment, it is essential that the criminal fraternity is made to take them seriously. The system absolutely depends on that.

However, it is one thing to take that view and quite another to seek to prejudge the decision of a legally appointed court as to whether an infringement has taken place by imposing, as we have been told, what amounts to a double punishment beforehand. Furthermore, inevitably it will be unfair in that, as we have also heard, one class--the unemployed--will suffer what is in effect a double punishment for the same offence. That simply is not right, whichever way one looks at it and however emotive the arguments. I understand fully and sympathise with what has been said about so-called sink estates and threats to local communities by the likes of such offenders.

In addition, in Committee many speakers referred to the dubious logic of removing the little financial support available from, say, a man and his family as a means of concentrating that person's mind on the importance of complying with a court order. Anyone who has ever had anything to do with courts, however fleetingly, will confirm that the often inadequate and nearly always disorganised offenders about whom we are talking this evening simply do not respond to that kind of threat. Indeed, in many cases I fear that it will lead only to a resumption of criminal activity in order to meet family needs.

Supporters of the Government's position--and, as we have heard, there are some on the Benches behind the Ministers--are entitled to ask opponents of the measure what they would do. Fair enough. In many interesting and thoughtful contributions from all sides of the House in Committee, I believe that the key point was made by the noble Lord, Lord Christopher. I hope that I am not embarrassing him by referring to him by name. He described the delay between the reporting of the breach of an order and the subsequent court appearance--often six weeks and sometimes even more--as "utterly ridiculous". I believe that that was the very phrase that he used. I agree wholeheartedly. Unless the matter is dealt with promptly, both the order and the sanction are diminished in the eyes of offenders. Accordingly, it is to the legal system that we should look to sort out the matter.

In the meantime, we must not mix the executive and the law. To begin to do so now is to start on the slippery slope with potentially dangerous and unpredictable consequences. Accordingly, I urge noble Lords to support the amendment.

Photo of Lord Bach Lord Bach Government Whip

My Lords, this is an important debate and I hope that there will be plenty of time for both my noble friends to speak. I wonder whether one would speak now and the other a little later.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour

My Lords, I thank the noble Earl, Lord Russell, for his customary courtesy in informing me beforehand that he would bring up the issue of merit, which I raised in Committee, and its connotations. Perhaps I may say that I checked what I said in Committee and I agree with myself! I do not wish to indulge in a battle of semantics with the noble Earl or with the noble Baroness, Lady Young, who was mentioned earlier. The noble Earl will recall that Thomas Carlyle queried: what is merit? He answered that it was the opinion that one man entertains of another. To me, merit is about being entitled to or deserving something. I stick by that definition in relation to this Bill.

At the root of benefit systems is the need to comply with rules which are set down and explained in advance. I agree that people should know their rights. They should also appreciate that responsibilities go alongside rights. Earlier, we heard reference to "fairness" and "choice" and about informing people of their rights in order to respect them. I agree with that. Approximately 130,000 community sentences are given out each year in England and Wales. In some 30,000 of those cases offenders are referred back to court because of lack of compliance. Thirty thousand people choose--I emphasise that word--community sentences and then betray trust. I do not believe in and would not want a society which is based on punishment and lack of sympathy. As a former teacher and a current parent, I believe in being positive, in respecting dignity and in protecting the vulnerable.

Community sentences can be positive. They can encourage people--often young people--to learn self-discipline, how to be responsible towards others and how to keep a commitment. Young people need frameworks, boundaries and examples. If they agree to a community sentence and break the commitment, surely some sanction must be applied. How many of us have not, as parents, applied sanctions in order to encourage children or young people to adapt their behaviour? Parents should be encouraged to be committed to their children and be seen to be committed. That is one way to tackle child poverty.

The Bill contains a commitment to evaluate the system of community sentences before ruling it out. The pilot scheme will allow for hardship payments, even if the jobseeker's allowance and training allowance are withdrawn. As the Minister and other noble Lords have said, evaluation of the system will give us valuable insights.

I believe that people can be competent in running their lives without becoming criminals if we explain systems and the consequences of contravening systems and if we introduce deterrents as well as support. I cannot see that anything will be learned by not having sanctions for the breaking of laws. I am aware, as has been said, that some people in our society have many problems. I am aware that some people are brought up in chaotic circumstances. I have taught in deprived areas of London. I agree that some people in society need support. However, I feel that providing support without a belief that people can appreciate the notion of civil rights together with civil responsibilities is almost an insult to the deprived. I believe that if we treat people as helpless, they will learn helplessness.

Photo of Lord Elton Lord Elton Conservative 7:15 pm, 27th June 2000

My Lords, perhaps the noble Baroness would allow me to ask a question. Surely the debate has been focused by my noble friend not on the removal of Clauses 63 to 67 but on their amendment. Therefore, the question is not whether there should be sanctions but by whom they should be administered. Should it be by the court or by the state?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, there has been no indication tonight that the other amendments will not be moved. Unless there is such an indication, my understanding--as is perhaps that of my noble friend--is that we were discussing the full range of amendments that are grouped. No effort has been made to ungroup them and no effort has been made to say that they will not be moved. Therefore, my noble friend is entirely right to speak to the broad issue.

Photo of Lord Windlesham Lord Windlesham Conservative

My Lords, perhaps I may interject and say to the noble Baroness, who, I trust, will shortly wind up the debate, that the further amendments will not be moved. Amendment No. 114A, the compromise amendment, is the only one on which we shall ask for the opinion of the House.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour

My Lords, perhaps I may continue. I am not a lawyer. I read the amendments as a complete group and I address those amendments.

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.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, in Committee there was a disagreement between the noble Lord, Lord Goldsmith, and myself as to whether Clause 63, as it is now, offends against the Human Rights Act. I shall confine myself to that issue, not because I disagree with what has been said on the wider issue but because it has been put extremely powerfully by each of the four Members of your Lordships' House who put their names to this amendment and by others as well.

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.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

My Lords, I rise in support of the Government's measures on this issue, and in doing so I immediately acknowledge the sincerity with which all noble Lords have advanced their arguments, whatever the arguments have been. However, I believe that there has been a measure of exaggeration in some of the statements that have been made attacking the Government's measures. We have heard about the question of contract. I believe that has been put at a level far in excess of its significance. We have heard reference to the starving and the poor. I understand that it is often wise to exaggerate a point in order to drive it home, but it seems to me that we should really understand the circumstances.

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.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

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?

Photo of Lord Goldsmith Lord Goldsmith Labour

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--

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, is the noble Lord suggesting that 400 cases of injustice would be all right?

Photo of Lord Goldsmith Lord Goldsmith Labour

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.

With great respect to the noble Lord, Lord Goodhart, I have not changed my opinion. Like him, I have nothing further to say about the other issues. I wanted to deal with that point.

Photo of Lord Higgins Lord Higgins Conservative 7:30 pm, 27th June 2000

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.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, this has been an interesting and, if I may say so, good debate. Although I know that your Lordships opposite wish us to confine our remarks to the particular amendments--although not everybody has--they are grouped and it is right on an issue of such importance and significance that I should remind your Lordships of the reasons for the Government's policy.

We believe that it is wrong for the state to support those who do not honour their obligations to society. We want their rights to be matched by responsibilities. It is unreasonable to expect you, me and, above all, the many people whose lives are made a misery by repeated crime in the neighbourhood to support financially those who continue to disregard society's legitimate expectations. Many people would find it extraordinary that we continue to finance people through the benefit system while they continue to disregard the law.

We believe that benefit sanctions will encourage people to comply with their sentences rather than being tempted into reoffending that could have been avoided. When someone takes on a community sentence as an alternative to a fine or imprisonment, he or she accepts the obligations that go with that. That means observing the sentence. If they fail to honour that contract, benefit sanctions will come into play. We will not suddenly leave people without money. They will know about it in advance. They will have been warned by the court and by the probation officer and it will be on their benefit form. There will be ample opportunity to comply, but, if they then choose to break the conditions of their community sentence, society's obligation to provide them with their benefit has in turn been broken.

My noble friend Lady Kennedy and many others have said that such people's lives are so chaotic that the sanction will not work. I do not accept that. If they had not filled in forms, signed on, attended interviews, looked for work, been available for work and energetically sought it, they would not have had benefit in the first place. We have heard a lot about fecklessness tonight. It is a curious form of fecklessness that someone can meet the benefit conditions by signing on in person but cannot be expected to meet the community service conditions by attending interviews in person. If such a young offender manages to attend benefit interviews because he values the benefit and takes the signing on seriously, there is all the more reason to link his benefit to his observance of the community sentence so as to get him to take that seriously, too. As my noble friend Lord Sheppard said, getting someone to take his community sentence seriously, and ultimately getting him into work, has to be in his best interests.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, what is he going to live on if he has no money?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, does the noble Earl know for how long this benefit sanction applies compared with the sanctions on all other infringements of benefits? I wonder why he did not raise that question when the previous administration introduced benefit sanctions on the jobseeker's allowance, Child Support Agency, income support and disability benefits. He was silent on that issue until tonight.

Why are we doing it this way? We are not proposing a criminal punishment but a benefit sanction, exactly as we do across the whole social security system. My noble friend Lord Goldsmith was right. I suspect that many of your Lordships who have spoken tonight do not know how the social security system and its benefits and sanctions work. Obviously, many of those who have been involved in previous debates on the subject do, but, listening to your Lordships, it has sounded as though there are no other benefits to which a sanction is attached that operates in this way. A benefit sanction is not a matter for the courts. The court hearing provides an opportunity for a review of the facts, but the initial decision is based on behaviour that is sufficiently serious to merit referral back to court.

These measures are designed as a benefit sanction. All benefits have conditions attached to them. If those conditions are breached, then part or all of the benefit is withdrawn. However, there is a hardship arrangement available for those with dependants, or those who are vulnerable; for example, through reasons of health.

Some noble Lords talked about an "alleged breach". All infractions of benefit conditions are alleged but the benefit sanction still applies, whether such cases are reported by an employer to the agency--alleged--by a doctor to the agency--alleged--by another Benefits Agency official--alleged--or by a probation officer. All such infractions are alleged. That is entirely consistent with how the whole of the social security structure operates.

Perhaps I may give the House some examples. Let us take a potentially "good news" case--that is, someone on DLA who has a periodic review. The doctor says that that person is now much better. He reports that to the decision-making officials who withdraw the benefit. That person may take the matter to appeal or to a tribunal to argue that he is not as well as that, but it is never suggested that the withdrawal of the benefit should await the outcome of the tribunal, which is the equivalent of the court. It is an administrative decision; it is a condition of the benefit and is attached to it. It will be reinstated if the tribunal finds otherwise, as often happens in many cases.

Another example would be the lone parent, the widow or the disabled person who fails to attend a "ONE" interview without good reason. That person would be sanctioned on his or her benefit. The latter would only be reinstated if the matter goes to appeal and the case is won. We could also take the example of someone leaving work "voluntarily", according to the employer. The employee says that it was constructive dismissal, which is highly contestable. However, no benefit will be awarded to him unless the tribunal finds in his favour. An even more difficult case would be where she, the lone parent, is refusing to co- operate with the CSA and name the father of the child. Her benefit may be sanctioned, not for four weeks as is suggested here but indefinitely while she fails to comply.

So the whole of the social security system is underpinned by conditionality. Decisions as to whether the conditions of benefit have been breached are made, in all cases, as an administrative decision by quite junior officials in the DSS and usually in far more complicated situations with far less reliable professional evidence and with far more severe penalties attached to them than is the case here. By the criteria used by noble Lords this evening, this is infinitely more robust than almost any other benefit sanctions that the DSS imposes. We impose this straightaway and, if someone wishes to take the matter to appeal, he can do so.

People may say that we are trespassing across boundaries. That is already the case with the Sure Start maternity grant and your Lordships agreed on Thursday night that it should apply to driving licences and CSA rates. What matters is what brings the young offender to respect his community service.

Some noble Lords have implied that the Probation Service staff are hard-line and have no discretion as regards referring cases to court. In fact, the opposite has been the case; indeed, that is one of the reasons why the Home Office is having to tighten up the system. However, as my noble friend Lord Mackenzie said, these changes in procedure do not remove discretion, which still remains a part of deciding what constitutes an unacceptable absence.

My noble friend Lady Kennedy quoted from the Home Office circular 24/00, but she failed to quote paragraph 12 of the document which quite clearly says that, as of March:

"There may be exceptional circumstances where it is acceptable for an appointment to be rearranged after it has been due to take place and where advanced notification of inability to keep an appointment was not given. It is expected that such instances will be rare and are most likely to occur in cases, such as medical, childcare or other emergencies".

What the changes mean is that once an absence has been regarded as unacceptable, the probation officer will act and act consistently on that decision. But the probation officer has clear discretion to decide after the event, so to speak, that that was an acceptable good cause for missing the appointment or interview.

Much of tonight's discussion has focused on Amendment No. 114A; namely, that no such sanction should be applied by the benefits officer until the courts have heard the case. That is entirely at odds with the rest of the social security system where the decision to suspend benefit, or to reduce it, and bring that person on to a hardship scheme is determined by the DSS. Here, uniquely, the matter must first go before the courts.

If we were to follow the amendment of the noble Lord, Lord Windlesham, it would indeed represent double punishment. The offender would see this as a direct consequence of the court judgment when in fact it is a benefit decision. He will see it as double punishment par excellence and the effectiveness of the sanction, both in emphasising the responsibilities that go with benefit receipt and encouraging compliance, will be undermined--particularly when one considers the delays that may occur between the original unacceptable absence and the eventual court hearing. That applies especially where the offender goes missing and fails to turn up in court.

If the benefit sanction is to be effective, it must be implemented quickly and with certainty, as happens across the rest of the social security system, so that people clearly understand that their rights to benefit are conditional. If they are on JSA, they must understand that they have to be available for and actively seeking work; if they are lone parents, they must understand that if they wish to receive benefit they must name the father of the child so that he makes a proper contribution to the child's upbringing; and, if they are in receipt of a community sentence, they must understand that they have to observe that sentence. It is a condition that society wants people to meet if they are to receive society's financial support.

I shall deal with just a few of the points raised by your Lordships, because there are too many of them for me to answer this evening. The noble Viscount, Lord Tenby, and other speakers said that this provision was discriminatory against those who might be in work; in other words, someone in work would get away with it and would not have his benefit sanctioned because he would not be receiving it, and only the poor would be damaged. It is quite simple. If an individual is in work, he is not seeking society's financial support, he is earning his passage: if someone is receiving benefit, he is not. He is receiving a benefit from society and, in return, society has a right to attach conditions to it. It is no more discriminatory against the poor than saying that the state will not pay benefit to people who are already high earners. It is neither more nor less discriminatory than that.

Equally, we were told tonight that this provision is discriminatory against black people--a point made by the noble Lord, Lord Dholakia. I do not believe that to be true. It is true that more black people are serving community sentences as a percentage of their population than is the case with other communities--something like 5 per cent of those between the ages of 16 and 44 are serving probation sentences, although they represent just 2 per cent of the country's population. But, in a way, that is because they are not going to prison. Moreover, although that is true for black offenders, the reverse is true for other ethnic minority communities; for example, only 2 per cent of the Indian, Pakistani and Bangladeshi communities, which represent 3.2 per cent of the country's population, are serving community sentences. If I may be so impertinent as to say it, I do not think that we do the ethnic minorities any kindness in assuming that they need special treatment when it comes to the law and expecting them to observe community punishments.

Similarly, I do not believe that that also applies to women. Again, I am trying to emphasis that there is discretion where unforeseen emergencies arise; for example, in the case of carers. On average, fewer women receive community sentences and, indeed, fewer women break them. I have no reason to think that this provision will be discriminatory in their regard.

The noble Baroness, Lady Stern, and others, challenged my noble friend Lord Sheppard. They said that this is a new direction for benefit policy and that we are uncertain about its overall effects. Judging by today's debate, one would have thought that this provision was going to be imposed tomorrow across the whole of the country--with a question-mark over Scotland, courtesy of the noble Baroness, Lady Carnegy. That is not true. We propose to pilot this measure and assess it to see whether your Lordships' fears that it will increase crime, or our belief that it will bring greater respect for the observation of community sentences, is correct. Indeed, after listening to tonight's debate, I am not sure whether noble Lords would be more upset if the pilots show that the scheme is working than if they do not.

However, we shall be evaluating these pilot schemes before taking the decision to roll out the programme nationally. Independent researchers will be looking at the evidence. The final report will be published, with a copy being placed in the Libraries of both Houses. The Government will not extend their policy nation-wide until that evaluation has been assessed. We shall be considering breach rates, crimes committed, financial effects on offenders, hardship payments as well as seeking offenders' views.

I wish to conclude. We believe that--

Noble Lords:


Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, it has been a long debate. Noble Lords are the first to complain that their question has not been answered while they hope to heaven that I shall not answer everyone else's questions.

We believe that members of society as taxpayers and as victims of crime have a legitimate interest in how and whether the state should support those people who flout their responsibilities to society by failing to meet the requirements of their community sentence.

We have heard four voices, mostly from the Benches opposite, arraigned against the Government. The first--which I believe was best expressed by the noble Lord, Lord Goodhart--was that of the human rights lawyers who argue that this measure contravenes the ECHR and therefore will not stick. My noble friend Lord Goldsmith dealt with that matter brilliantly in Committee and again tonight. It is an argument that I think the Opposition Benches cannot sustain.

The second voice we have heard tonight against the Government's measure is that of the "domestic" lawyers--if I may so call them--who say that it is a double punishment. It is not a double punishment; it is a condition of benefit. If one leaves work voluntarily but fails to obtain benefit, one could argue that that is a double punishment in that one has lost one's job and one's benefit. However, if one had kept the job there would not be a problem. It is a matter of choice. The same applies to community offenders. If they observe the sentence there is no problem. It is their choice.

The third voice arraigned against the Government tonight is that of those who state--this was spoken to powerfully by the right reverend Prelate the Bishop of Lincoln--that to take away benefit means that those on community sentences who are affected become poorer and commit more rather than less crime. Someone on a community sentence has already broken the law. In that sense he or she has already committed a crime by failing to observe the community sentence. That is a matter of choice. There is an alternative. First, they can observe the community sentence or, secondly, they can take a job and earn their income rather than thieve it. I refer to the notion that we should not make a sanction bite on people who have broken the law and persist in breaking the law as they may become poorer as a result. We should not respond to that situation by not imposing the sanction but rather we should ensure that they obey the law.

The Opposition Front Bench in another place, led by the Conservative Member, Mr Pickles, urged the Government to punish offenders if the pilot reveals that the sanction did not bite severely enough. The Conservative Benches in the other place have a decent respect for being tough on criminality. That is a voice that we have not heard tonight. Mr Pickles asked whether the Government could assure him that if the pilots produced evidence that those who breach orders and lose benefit are tempted into further crime the Government would not abandon the powers but would seek to ensure that such people were vigorously punished. That is a voice that we have not heard tonight.

The fourth, and final, voice arraigned against the Government is that of those--I associate it with the Liberal Democrat Bench--who believe that benefit is in some sense inalienable to which sanctions should not be attached. However, I believe that benefit constitutes a contract. I do not believe that someone has the moral right deliberately to be a freeloader and to rely on the conscience and cash of others to protect him from the consequences of his failure to act without conscience and with impunity.

Against those four voices--strong, powerful, eloquent voices which have been expressed tonight by bishops, barristers, lawyers and Liberal Democrats--

Noble Lords:


Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department of Social Security

My Lords, at that point my alliteration ran out! Against those four voices there is a voice that has not been heard; it is the voice of terrified neighbours. I represented a poor council estate for 25 years. After the lack of repairs, which my electors were impatient about, and the lack of transfers to other housing, which they bore with resignation, their main concern was with anti-social behaviour which frightened them. I remember trying to persuade terrified pensioners to give evidence in court against thugs when they knew that if they did so members of the thugs' extended family would probably either beat them up or take the glass out of their windows the following day.

The voice that has not been heard tonight is that of the man whose car has been vandalised and cannot get to work. It is the voice of the small Asian shopkeeper whose shop has been done over yet again. It is the voice of the pensioner whose windows have been broken and that of the parents who are worried that their 12 year-old is being tempted into drugs by the drug pushers who operate on the council estates. It is the voice of young women who have been assaulted by men who think that it is all right to knock them around after a few drinks. It is the voice of people whose everyday life is a misery due to the anti-social behaviour of a minority. However, unlike most of us, they do not have the money to buy peace, privacy and seclusion from that anti-social behaviour. Who is speaking for them tonight because I have not heard that voice?

I hope that I have responded to noble Lords' concerns. The question that noble Lords have to address is whether they can justify removing the measures from the Bill, or, alternatively, supporting the amendment of the noble Lord, Lord Windlesham, rather than listening to the voice of those who have to tolerate anti-social behaviour day in and day out because one of the few sanctions that might bite--the removal of benefit--has been denied the Government by this House. Your Lordships' House has a reputation for listening not just to the voices of lawyers, bishops and others, but also to those outside who have not been heard; those who suffer anti-social behaviour day in and day out. Those are the people the Government seek to protect tonight. I hope that on that basis noble Lords will think at least twice, if not four times, in favour of not supporting the amendment tonight and will instead support the Government.

Photo of Lord Windlesham Lord Windlesham Conservative

My Lords, this has been a fine debate on an issue that has attracted relatively little public attention. It is exactly the type of questionable government proposal which should be subjected to expert scrutiny. I believe we can all agree that this is a prime function of your Lordships' semi-reformed House.

I express my thanks not only to those who have taken part in the debate, but also to the large numbers who have listened patiently throughout the lengthy debate, not least my distinguished neighbour on this Bench. Most noble Lords who spoke in the debate contributed on the basis of their own expertise, and some brought eloquence to the debate, too. That is the true spirit of Parliament. I say no more now on the merits which have been so exhaustively discussed. I ask noble Lords to decide the matter and wish to test the opinion of the House on Amendment No. 114A.

On Question, Whether the said amendment (No. 114A) shall be agreed to?

Their Lordships divided: Contents, 170; Not-Contents, 116.

Division number 3

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Lord Windlesham Lord Windlesham Conservative 8:07 pm, 27th June 2000

moved Amendments Nos. 114B to 114H:

Page 65, line 15, leave out ("that the information has been laid") and insert ("of the determination").

Page 65, line 43, leave out subsection (6).

Page 66, line 13, leave out ("laying of the information") and insert ("determination of the court").

Page 67, line 3, leave out sub-paragraph (i).

Page 67, line 8, leave out ("that the proceedings have been commenced") and insert ("of the determination").

Page 67, line 10, leave out paragraphs (b) and (c).

Page 67, leave out lines 38 to 42.

Photo of Lord Windlesham Lord Windlesham Conservative

My Lords, these amendments are consequential to Amendment No. 114A. I beg to move.

On Question, amendments agreed to.

[Amendment No. 115 not moved.]

Clause 64 [Loss of joint-claim jobseeker's allowance]:

Photo of Lord Windlesham Lord Windlesham Conservative

moved Amendments Nos. 115A to 115D:

Page 68, line 19, leave out ("information in question has been laid") and insert ("court has made a determination").

Page 68, line 36, leave out subsection (6).

Page 68, line 45, leave out ("laying of the information") and insert ("determination of the court").

Page 68, line 47, leave out subsection (9).

Photo of Lord Windlesham Lord Windlesham Conservative

My Lords, these amendments were spoken to with Amendment No. 114A. I beg to move.

On Question, amendments agreed to.

[Amendment No. 116 not moved.]

Clause 65 [Information provision]:

Photo of Lord Windlesham Lord Windlesham Conservative

moved Amendments Nos. 116A to 116G:

Page 69, line 20, leave out from ("of") to ("as") in line 21 and insert ("any such determination").

Page 69, line 25, leave out paragraph (c).

Page 69, line 28, leave out from ("any") to second ("to") in line 29 and insert ("determination of a failure to comply with a relevant community order has been made").

Page 69, line 32, leave out ("commencement of the proceedings") and insert ("determination").

Page 69, line 34, leave out paragraph (c).

Page 69, line 38, leave out ("laying of an information") and insert ("determination").

Page 69, line 44, leave out ("laying of an information") and insert ("determination").

Photo of Lord Windlesham Lord Windlesham Conservative

My Lords, these amendments were spoken to with Amendment No. 114A. I beg to move.

On Question, amendments agreed to.

[Amendment No. 117 not moved.]

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Government Whip

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion may I suggest that the Report stage begin again not before 9.10 p.m.

Moved accordingly, and, on Question, Motion agreed to.