Mr John Bercow (Buckingham, Conservative)

I beg to move amendment No. 73, in page 5, line 12, at end insert—

`(2A) The Secretary of State may extend the period specified in subsection (2) where he receives representations in writing after the 21 day period showing good cause why an appeal could not be brought within the given period.'.

We come to the issue of appeals. In inverse order of appearance in the clause, clause 6 deals with the cancellation of a person's registration in the register for his or her area, a refusal to re-register a person, and a refusal to register an operator in the first instance. Under subsection (2), the Government provide for appeals to be made

within the period of 21 days beginning with the day on which the person concerned is served with a notice under section 5(7).

The reference to the 21-day appeal period appears in lines 10 to 12.

The amendment that my hon. Friends and I propose would, if incorporated, become paragraph (a). Our anxiety, as I am sure that the Minister will accept even if he disagrees with the amendment, is to ensure that, as far as possible—mistakes will always be made, but we should try to minimise the scope for them—the Secretary of State does not remove legitimate businesses from the register without good cause or reason.

We are slightly uneasy about the restrictive 21-day period, which is why we suggest that, if people can show good reason why they were unable to make representations within the 21-day period, representations received after it should be duly considered. I have a hunch—I put it no more strongly than that—that the Minister might feel inclined to resist my amendment. The Minister is now helpfully nodding in a sedentary position while sucking his spectacles, making it clear that he intends to resist.

Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

I am trying to avoid being bitten.

Mr John Bercow (Buckingham, Conservative)

The Minister says that he is sucking his spectacles because he is taking precautions to avoid being bitten. I am sympathetic to that, and I believe that he will have struck a chord—or a raw nerve—with my hon. Friend the Member for Lichfield.

I am sorry that the Minister intends to resist. I do not want to make the point too strongly, but it is worth saying that there seems to be an element of inconsistency in the Minister's thinking about time periods for making representations, or, in the case of de-registration, the period over which cessation of trade has taken place. I mention that because, a few moments ago, almost in parentheses while developing his own argument, the Minister said that he thought that it was not sensible for the Opposition to propose different time periods. For example, although the Minister disagrees, we think that there are good reasons for suggesting that the 28-day cessation of trade resulting in de-registration should be extended to up to 60 days. On the other hand, I have argued in relation to registration of plate suppliers and to motor salvage operator that, where particulars that should be recorded in the register change over a period, it is reasonable to expect that an individual trader will notify the central authority of those changes, not, as the Government apparently expect, within 28 days, but within 14 days. There are arguments for those different time periods. The consistent theme permeating everything that we say is the need to ensure that the purpose of the Bill is made good. We want it to be effective, robust and consistent.

Nevertheless, the Minister was critical. What he is proposing is what we consider a relatively short, almost truncated, time scale, within which representations about refusal of registration, re-registration or a decision to cancel can be made. The period Ministers are commending to the Committee is a week shorter than that over which a cessation of trade would result in deregistration. The Minister might advance reasons for the differential time scales that he thinks are justified, by contrast with ours, in different contexts that apparently are not justified. I await the dexterous manoeuvring of the hon. Gentleman with eager anticipation. Our concern is to ensure that legitimate businesses can continue and that they are not summarily de-registered through a hasty and inadequate procedure that the availability of greater time would have enabled the central authority and the afflicted businesses to avoid.

I argued on Second Reading—and the point has been made on a number of occasions during the course of the Committee—that proprietors may be unable to conduct their business due to illness or because they are away from the country. The same could, of course, apply to the making of appeals. For that reason, we propose to allow the Secretary of State to extend the appeal period to avoid those legitimate businesses being removed from the register. As I have said on previous occasions, I would be interested in the views of other hon. Members on this point and in the response of the Minister.

Once again continuing, and now perhaps even reinforcing, my growing reputation for succinctness in these matters, I rest my case.

Mr Michael Fabricant (Lichfield, Conservative)

I rise to support the amendment.

We have already established in Committee today that the sort of company that would be registered could be a small one. It might well be a sole trader; the Minister has already confirmed that fact. I think that he has assured the Committee—he has certainly managed to assure me—that if a business were not trading simply because someone was abroad, either on business or on holiday, it would not be struck off. Nevertheless, a business might be struck off for reasonable causes and not because of any miscreance or breach of the criminal law by the company or partnership.

I can envisage a business in crisis as a result of the issue of an announcement that it might be struck off the register. I can imagine a sole trader, perhaps working with his wife and struggling with cash-flow difficulties or creditors, receiving a great deal of mail, all of which might not receive his immediate attention.

Mr John Bercow (Buckingham, Conservative)

That is a worrying scenario. Does my hon. Friend agree that it is regrettable that the hon. Member for Colchester is not present to hear its depiction?

Mr Michael Fabricant (Lichfield, Conservative)

Indeed. The hon. Member for Colchester says that he is the voice of small business. Yet, when small business cries out, where is he? He has left the Room. That is unfortunate, given that on a number of occasions we have supported his amendments, adding our names to his contributions.

Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

In light of those remarks, I hesitate to rush to the friendship of the hon. Member for Colchester, who is a fellow East Anglian. However, it is therefore incumbent on the hon. Member for Lichfield to set out in detail where he was last week, where he was bitten and the circumstances that prevented him from being here. If he is going to make comments about others, perhaps he should clarify his position.

Mr Bill O'Brien (Normanton, Labour)

Order. Will the hon. Member for Lichfield return to the point?

Mr Michael Fabricant (Lichfield, Conservative)

All I will do is reiterate the point made by the hon. Member for Colchester. Where was I bitten? I was bitten down under. Outside the Rook, I might show the Minister precisely where, but it would not be in order to show the marks at this point.

Mr John Bercow (Buckingham, Conservative)

My hon. Friend is right. If he were to do so, your legendary reputation for tolerance would be sorely tested, Mr. O'Brien. To revert to the point with which we preoccupied ourselves in our first sitting last week, if my hon. Friend showed the Minister the details, it would be unfortunate if anyone had a camera. However, it would be less unfortunate for my hon. Friend than for the Labour party—

Mr Bill O'Brien (Normanton, Labour)

Order. We have heard so much about the spider that it is time to put it to rest—I assume that it is at rest.

Mr Michael Fabricant (Lichfield, Conservative)

It is at rest because someone who saw it bite me stamped on it. From the Committee's point of view, that is how it should stay; we should return to the amendment.

It is interesting that my hon. Friend the Member for Buckingham argued that 21 days seems an odd period. We discussed 28 days and 14 days, and so on, but chose not to table an amendment altering that period—[Interruption.]

Mr Bill O'Brien (Normanton, Labour)

Order.

Mr Michael Fabricant (Lichfield, Conservative)

With typical reasonableness, my hon. Friend the Member for Buckingham has accepted implicitly a 21-day period and tabled an additional subsection, covering extraordinary circumstances when the 21-day period is inadequate and allowing for an appeal to the Secretary of State. We are not asking for a change from 21 days. I would be tempted to ask for 28 days or even 60 days for the reasons that I discussed earlier. However, it seems reasonable that in unusual circumstances an appeal may be made to the Secretary of State. The Secretary of State will be under no obligation to grant an extended period, but I am curious to hear why he would not even entertain someone's application.

Mr David Kidney (Stafford, Labour)

Does not the hon. Gentleman's slip of the tongue about where the appeal goes demonstrate why the amendment is fatally flawed? The appeal is to the magistrates court, not to the Secretary of State. What on earth does the Secretary of State have to do with interfering with time limits in courts?

Mr Michael Fabricant (Lichfield, Conservative)

Unusually, because I have great respect for the hon. Gentleman, I think that he has missed the point. The appeal will go to the magistrates court, but the court will be bound by the Bill, if it becomes an Act. The question is not why the appeal is made, but why it has not been made within the 21-day time limit. Under other Acts, it is normal for statutory time limits to be altered on appeal to the Secretary of State—

Mr. Kidney indicated dissent.

Mr Michael Fabricant (Lichfield, Conservative)

The hon. Gentleman disagrees; perhaps he will intervene on me again. The time limit in other Acts can be altered by Secretaries of State from time to time, regardless of whether it relates to an appeal to a magistrates court or a Crown court.

Mr David Kidney (Stafford, Labour)

I am sure that the hon. Gentleman yields to no one in his admiration of our independent court system and is pleased that they are robustly independent of interference from Ministers of the Crown. We are talking about an appeal to a magistrates court. A statute sets the time limit and it is for the magistrates to implement it—or, if they have the power, to allow the time to be extended. Surely the hon. Gentleman can see that the Secretary of State cannot, under the amendment, interfere with an individual decision by the magistrates.

Mr Michael Fabricant (Lichfield, Conservative)

I continue to disagree. This is most unusual because, certainly with regard to magistrates, the hon. Gentleman and I have often had common cause, particularly concerning the plight of magistrates courts in Staffordshire. None the less, I do not follow the logic of his argument, because I do not believe that it has logic.

The Secretary of State would not be interfering with the magistrates' decision. The amendment would simply enable the Secretary of State to say that the matter could go to the magistrates court for independent consideration. The two issues are separate. The first is whether a magistrate decides on appeal to allow re-registration. The amendment would extend the time limit by which an application can be granted so that a magistrate can hear the appeal.

Given that the period of 21 days in subsection (2) would not be altered, it would be inflexible, if not arrogant, of the Government to decide not to accept the amendment. As I have said, there is no obligation on the Secretary of State to extend the period. If he felt that the appeal for additional time was nonsensical or spurious, he could refuse it. To say that it must be 21 days and no longer under any circumstances seems unreasonable, particularly for small businesses or sole traders.

Mr Stephen McCabe (Birmingham, Hall Green, Labour)

Which does the hon. Gentleman think is more unreasonable for the individual—not to extend beyond 21 days the period in which an appeal can be brought or to impose a level 3 fine on someone who does not amend the register or give notice to amend it within 14 rather than 28 days, as proposed in Opposition amendment No. 74 to clause 10?

Mr Michael Fabricant (Lichfield, Conservative)

The hon. Gentleman, who is a good friend of mine, may have put his foot in it. He was not present this morning, for I am sure perfectly legitimate reasons. If he had been, he would know that the Minister said that the Government believe that there should be a fine on those who do not give the correct information on application.

Mr Stephen McCabe (Birmingham, Hall Green, Labour)

I was simply making the point that in this case the hon. Gentleman seeks to extend the period of time, but in the other he seeks to shorten it. Shortening the time would allow people less opportunity to avoid a fine, even though they may have legitimate reasons for doing so. The hon. Gentleman seeks under this amendment to extend the scope for appeal. I am trying to understand the logic.

Mr Michael Fabricant (Lichfield, Conservative)

I understand what the hon. Gentleman is saying. The reason for the discrepancy, as he sees it, emerged a little in the debate this morning. In this instance, there may be reasons why someone might not be present to make an appeal. We have been reassured about this to a large degree by the Minister. The example that we gave was that if a person were struck off inadvertently for not trading because he was away for 28 days, he would not be able to make contact with the local licensing authority. In the instance that the hon. Gentleman gives of 16 days, the person would be present and able to say what changes had taken place because, for changes to take place, the business must be trading. That is why there is the discrepancy.

I do not want to labour the point, as we are going over slightly old ground, but it is clear. We have not asked for the 21-day period to be changed; we are simply saying that it is conceivable that extraordinary circumstances may prevent somebody from making the appeal within that 21-day period. If they are extraordinary circumstances, we should give the Secretary of State additional powers. It is rare for me to propose that we offer extra powers to a Labour Secretary of State, but that is what we are doing in this instance. I hope—and confidently expect—that, after the next election, it will be a Conservative Secretary of State. It certainly will not be a Liberal Democrat Secretary of State. We are simply offering the Secretary of State extra powers to enable him to decide whether the 21-day period is unreasonable in special circumstances for a business that might be a sole trader or a small limited company.

On those grounds, it would be churlish, unreasonable, cruel and unthinking— and would, at the very least, demonstrate a lack of understanding of small businesses—if the amendment were not accepted.

Mrs Anne McIntosh (Vale of York, Conservative)

The Secretary of State—I am sorry, the Minister; I do not wish to promote him too quickly—would have a reason to refuse to accept the amendment if he were to say that there would be good cause to receive representations in writing after the 21-day period, if that were already allowed under common law. If he were saying that today, we would probably not insist on the amendment. Could he comment on that?

Secondly, the explanatory notes put quite a high cost on introducing the Bill to industry and the public sector, through the cost to the chief police officers and the Lord Chancellor's Department and the annual cost to the Crown Prosecution Service. However, the Bill and the explanatory notes are silent on the costs of an appeal to a magistrates court. Clearly there will be the cost in loss of business to the appellant, who would have to exercise his right under the Bill if it were passed in its current form, but there will also be an annual cost to the magistrates court for administering the appeals. What would the cost be?

Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

It would be widely recognised as being in everybody's interests to resolve disputes of this kind as rapidly as possible. It is certainly in their interests to fight the criminal fraternity. It is also in the interests of the companies concerned to have the matter resolved as quickly as possible, a view that I believe is shared across the Committee.

It is worth going through the time that we are talking about. We are talking, first, about 28 days, or four weeks, in terms of trading, 14 days of representation to the local authority and then 21 days of the appeal process, as set out here. That is a total of 63 days or nine weeks, which is a fairly lengthy process from beginning to end.

We chose 21 days because I gather that there is a precedent in the Care Standards Act 2000, which has a comparable local authority scheme for registering homes. However, in fairness to the hon. Member for Buckingham and other Opposition Members who have spoken, they have not sought to change the 21 days as such, although arguments can be made for 25 days, 28 days or whatever it might be. They seek to establish a different framework. Although, as the hon. Member for Lichfield said, there is no obligation on the Secretary of State to grant the appeal, there would an obligation on him to consider it, and to do so reasonably, on the basis of established guidelines, procedures and information that would have to be given to the Secretary of State in making his or her judgment; a whole set of practices would be established. I can see no case for that. I am not lawyer, as I constantly say.

Ms Helen Jones (Warrington North, Labour)

Sadly.

Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

I assure my hon. Friend that there is no sadness on my part, except on the grounds that I am not sharing time with my hon. Friend in court. However, my hon. Friend the Member for Stafford (Mr. Kidney), who is a distinguished lawyer, made the point well. We have a well-established legal structure of appeal to magistrates. We have that because the European Convention on Human Rights and the Human Rights Act 1998 in our law ensure that there cannot be arbitrary justice. In this case, there is, rightly, appeal to the judiciary. The Secretary of State cannot be an alternative to the judiciary, but only a process on the way to it. To establish a complex administrative machine to advise the Secretary of State on the way in which he deals with these questions and moves the process forward is not a desirable way to proceed. I do not seek to demean the motive, but the proposal would over-complicate the situation. The hon. Gentleman's motive would be better achieved by seeking to extend the 21 days than by setting in motion a time-consuming process that would not benefit anybody.

Mr John Bercow (Buckingham, Conservative)

The Minister has provoked a thought in my mind that is not covered by our amendment but is none the less relevant. Given that the Government are anxious in this context to specify a period of 21 days within which someone should make an appeal, will he say something about the time scale within which magistrates courts would determine appeals? My hon. Friend the Member for Lichfield rightly referred to the financial implications for businesses, and clearly the efficiency, effectiveness and speed with which these appeals are determined is a matter of the highest importance.

Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

Before I answer that, Mr. O'Brien, I shall take an intervention from the hon. Member for Lichfield, and I shall try to deal with both of them at the same time.

Mr Michael Fabricant (Lichfield, Conservative)

I am grateful to the Minister. He rightly said that we have not chosen to extend the 21 days, and I concur with some of his arguments for not including our proposed paragraph. If he recognises that the 21-day period is to some degree arbitrary and that, in a crisis, 21 days may be difficult for a small business, will he consider tabling an amendment on Report to extend the 21-day period?

Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

I cited the period involved in the process, which adds up to nine weeks—the 28 days, 14 days and 21 days. At none of those junctures have I included the time taken by the local authority to consider whether it will suspend the registration; the time that it takes to reconsider the representations that are made; and the time taken by the magistrates court to consider the appeal—the point to which the hon. Member for Buckingham referred. I do not want to comment on the specific time taken by the magistrates court, as that is a matter for the judicial process in the regular way. Nine weeks, however, is the minimum period, given that the whole process would be significantly longer.

It is not a matter of simply accepting the argument of the hon. Member for Lichfield that the 21-day period is arbitrary. I agree that an element of balance and arbitrary judgment is involved, but we chose the 21 days because local authorities use a similar system when registering homes in such circumstances and we believe that a similarity between different schemes was the way forward.

As with the previous debate, I would need to hear a positive argument to move to a system that was not already well established. I do not wish to establish a process that involves the Secretary of State contesting the local authority's judgment. In my short experience as a member of the Government, I know that there are a massive number of processes when the Government are brought in to adjudicate on specific issues. That can be time-consuming for all concerned, requiring a series of processes, which is not efficient.

As for the two points made by the hon. Member for Vale of York, the costs to the magistrates courts are covered in paragraph 65 of the explanatory notes, which state that the annual

cost of additional prosecutions to the Lord Chancellor's Department...would be £16,612.

Assuming that there might be 150 appeals per annum, the cost would be £61,612. The annual cost to the Crown Prosecution Service is also referred to in the explanatory notes. Such sums are a small price to pay for driving criminals out of the motor salvage industry. As for her point about common law, I am not a lawyer—let alone a Scottish lawyer—so I cannot comment in detail now. However, I shall write to her in due course. Given the points that I have outlined, I hope that the hon. Member for Buckingham will withdraw the amendment.

Mr John Bercow (Buckingham, Conservative)

I have listened carefully to the Minister's reasoning, for which there is some justification. Being keen to be a stickler for procedural propriety, the hon. Gentleman gave the impression of being fairly insouciant about the length of time that the determination of appeals might take, but that is not something about which I feel comparable insouciance.

Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

If the hon. Gentleman had seen me in my private moments, he would know that I am not insouciant about the matter. The time taken to resolve matters by the Crown court and the magistrates court is one of the most serious problems in our criminal justice system, which is why I welcome the fact that my right hon. Friend the Prime Minister has asked Lord Justice Auld to conduct a full-scale review of such matters to achieve much faster justice. That will be better for all concerned. I should not like it to be put on the record that I am in any sense relaxed about such matters.

Mr John Bercow (Buckingham, Conservative)

I am very much reassured by the Minister's argument. It was almost as though someone invisible and unbeknown to me had crept into the Room and delivered a sharp kick to his posterior. He had given the impression of being relaxed and indifferent about the matter, but I am happy to take it from him that he is far from that. It may be that he wanted to make other points, but I am glad that he is concerned about such matters.

The Minister will recognise that there is an element of quid pro quo and simple fair play involved. What do I mean by that? If we judge it right to impose obligations upon businesses—it being right and proper that we should do so from time to time; particularly about the time within which things are to be done—it is not unreasonable that we should apply similar principles to our own behaviour or to that of institutions that, through legislation, are involved in the process. I recognise that magistrates courts are properly independent of the House; nevertheless, their involvement in the process is the result of, and attendant upon, the passage of legislation.

The Minister could send a clear signal today, and subsequently on Report, that he expects proper progress to be made. I do not understand why it should take all that long to determine an appeal as, in most cases, the particulars should be straightforward. These will not be the sorts of complex fraud cases tried in the criminal courts; in most instances, they will be straightforward matters. Therefore, although appeals should not take a long time, it is important to establish as a principle that they should not, and that a quick decision must be made on whether businesses should be allowed to continue.

Mr Michael Fabricant (Lichfield, Conservative)

My hon. Friend makes a powerful point regarding the need for such matters to be dealt with quickly, if only to stimulate the business to carry on trading. Does he agree that we should, therefore, maintain the lay magistracy?

Mr Bill O'Brien (Normanton, Labour)

Order. That is totally out of order.

Mr John Bercow (Buckingham, Conservative)

My hon. Friend was tempting me to indulge in improper behaviour; as you know, Mr. O'Brien, I am loath ever to indulge in such behaviour, being a great respecter of the traditions of the House.

Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

Once bitten, twice shy.

Mr John Bercow (Buckingham, Conservative)

The Minister, who is in a spectacularly good, but spectacularly corny, mood observes from a sedentary position, ``Once bitten, twice shy.'' We have done the point to death—almost as clinically as my hon. Friend the Member for Lichfield did the aforementioned spider to death, for which I do not blame him. Notwithstanding the principle of kindness to animals, my hon. Friend could hardly be expected not to respond with alacrity to the injury inflicted upon him.

The Minister has made some useful points this afternoon. He and his hon. Friends will note that I am, if not non-committal on the subject, reluctant to endorse everything he said. There is merit in reading the record and spending a period of time reflecting on the arguments; why should one not do so, given that Report follows this Committee? There will be an opportunity to return to these matters—or not, depending on the merits of the case. I am not minded to pursue the issue now; I am grateful to the Minister for his remarks. I beg to ask leave to withdraw the amendment.

Amendment, by leave,withdrawn.

Clause 6 ordered to stand part of the Bill.