Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

I beg to move amendment No. 36, in clause 6, page 5, line 34, at end insert ''without reasonable excuse''.

I hope that the purpose of the amendment is self-evident. Subsection (4) states:

''An individual who—

(a) contravenes an obligation imposed on him by provision made under subsections (2) and (3), or

(b) contravenes a requirement imposed on him under section 5(4) in connection with an application made in pursuance of such an obligation''.

The amendment simply proposes that after the reference to the ''individual who'' we insert the phrase ''without reasonable excuse''.

There will be people who contravene such obligations and requirements imposed on them, but who have a reasonable excuse for doing so. For instance, how does someone who is terminally ill register? Will they be available? Do they have a reasonable excuse to contravene a requirement or obligation? Yes, I suspect that they do. What about people who are abroad at the time—perhaps not on holiday, but working abroad for long periods, or working offshore? I am also thinking of soldiers, sailors and aircraftmen on operational tours of duty, particularly Territorials who are often called up at short notice and, as we have seen over the past two or three years, who often have very little time in which to put their personal matters in order before being required to join the colours? There will be situations in which they clearly contravene an obligation or a requirement, but I suggest that they might have a reasonable excuse.

What about those who are not of sound mind? What about those who are being looked after by others because they cannot look after themselves? What about those who need to have everything done for them? When the notice of contravention of the obligation or requirement arrives for such people, will they know what to do? How will that be served upon them? Do such people not have reasonable excuse? If they do not, we should take note of the bottom of subsection (4), which states that they

''shall be liable to a civil penalty not exceeding £2,500.''

I am sure that a Territorial called up to serve in Iraq would be delighted to pay £2,500 for not having a reasonable excuse for being absent—and someone who is not in full possession of their faculties might be equally delighted. What about those who cannot pay? I wonder how many of the people who commit these crimes will be in a position to pay this sum.

Similarly, perhaps the Minister will give some thought to approaching the problem from the other   end of the spectrum. I mentioned refuseniks earlier, but what about the fabulously rich refusenik—the drug dealer who deals in, and lives on, ready money? He or she has no desire to become involved in providing information to the national register or, heaven forfend, to carry an identity card.

If one can regularly afford £2,500, how often will one be fined that sum? How many times can someone be done for this particular offence? I appreciate that that is approaching the problem from a slightly different angle, but I am interested to hear how the Minister intends to deal with those who seem to have an excuse and those who want to make an excuse.

Surely a test of reasonableness should be imposed to ensure that we have a list, or something else against which one can test the legislation, that determines whether an excuse is reasonable and that might give someone extra time to pay this sum, or that determines that someone will not be fined in certain circumstances. I appreciate that such a list may not be exhaustive—it would be an incredibly clever and lucky person who could come up with such a list—but that simple amendment would help to make things clearer and, by definition, make the measure much more reasonable.

Roger Gale (North Thanet, Conservative)

Order. A few moments ago, I spoke gibberish when I told the Committee what we were going to do. That proves that one is unlikely to be challenged if one says something assertively enough.

There will be a Division at 7 pm, so the Committee will sit at 8.15 pm. If there are two Divisions at 7 pm, the Committee will sit at 8.30 pm. I hope that that is clear.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney & Shetland, Liberal Democrat)

I shall take your advice, Mr. Gale, about saying things with sufficient certainty that they will not be challenged.

Roger Gale (North Thanet, Conservative)

The hon. Gentleman would find it easier to be that certain if he happened to be sitting in this Chair.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney & Shetland, Liberal Democrat)

There was bound to be a catch.

There is a great deal to be said for the amendments tabled by the hon. Member for Newark. I say that because, read as a whole, subsection (4) does not allow the authorities any discretion in the imposition of these civil penalties. The expression is ''An individual who'' meets the conditions in paragraph (a) or (b), and

''shall be liable to a civil penalty''.

If the power was permissive and allowed a civil penalty to be imposed, the question of a reasonable excuse would not be quite so pressing, but the Bill does not give that discretion. From a procedural point of view, the question whether the excuse was reasonable would still be thrown back on the person seeking to rely on it, so there would be no particular prejudice in that regard so far as the administrative authorities were concerned.

The obligation seems to be particularly strict. In this morning's sitting, an example was given of some of the problems that can affect my constituency. Travel within my constituency, as well as to and from it, can be problematic. I am frequently booked to fly to   one of the outer isles in Orkney or Shetland, only to find that there are no flights that day because of fog, a storm, or whatever the particular season happens to produce. If one turns that on its head, the residents of Fair Isle have no scope if they are told that they must report to the van that happens to be visiting Lerwick on a particular day in order to provide their biometric details. Presumably the fact that Fair Isle is fog-bound, as it frequently is, would be a reasonable excuse, but there is no provision in the Bill, how will they be able to rely on it? What discretion is there?

This is a fairly sensible and minor amendment that could in no way be regarded as wrecking. I hope that the Minister will give it a fair wind.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I shall follow on briefly from what my hon. Friend the Member for Newark said. We have opened up the interesting question of discretion. Of course, the Government have wrapped this up as a civil penalty. Therefore, it cannot possibly be a criminal penalty, and we do not need to worry about the points that the hon. Member for Orkney and Shetland made about discretion. No doubt a civilised arrangement will be arrived at, whereby if one has made a mistake or it is not one's fault, a civil servant who has responsibility for the conduct of this bit of Government policy will, if feeling benign, let one off. We cannot make legislation on the basis that we hope that people will behave in particular ways at particular times. As the hon. Member for Orkney and Shetland made clear, subsection (4) refers to

''An individual who . . . contravenes an obligation imposed on him by provision made under subsections (2) and (3), or contravenes a requirement imposed on him''.

It is clear where the burden of performance is; it is with the citizen. I hope that the Minister can disabuse me of the impression that the burden of proving innocence is upon the individual and the burden of demonstrating that he should not pay the penalty is upon the individual, and that it is merely for the Government to assert. That is not a proper way to go about such things.

The other matter is of less importance, but worth flagging up, is the standard of proof that will be required, either by the citizen to discharge the onus put on him or on the Government, or by whoever is seeking to impose the penalty, to prove the case that he wishes to prove. Few cases are decided upon on the burden of proof. However, it is important that we should be clear before the Bill becomes an Act what the Government intend. I assume, since this measure deals with civil penalties, that the standard of proof is the civil standard, namely the balance of probability. The Government are setting themselves a lower standard of proof than might be required if they were trying to extract the fine via the summary procedure in the magistrates court.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Clause 6(4) provides that a person who contravenes a requirement relating to registration shall be liable to a civil penalty not exceeding £2,500.   Amendment No. 36 limits the circumstances in which liability would arise to those in which the individual concerned does not have a reasonable excuse. If I heard correctly during the debate on the programme motion this morning, I sensed a feeling of defeatism among Opposition Members who thought that the Government were not listening to them. To show what a caring, sharing, listening Government we are, I am going to prove that we do listen. When the Bill was debated earlier this year, the hon. Member for Newark asked the then Minister, my right hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne), to reconsider this point, and he gave a commitment to do so. I refer the Committee to clauses 33, 34, 35 and 36 and, particularly in respect of the amendment, to clause 34(1)(b), which says:

''A person to whom a notice under section 33 has been given may give notice to the Secretary of State that he objects to the penalty on one or more of the following grounds—. . . that the circumstances of the contravention in respect of which he is liable make the imposition of a penalty unreasonable.''

That is one of the changes that has been made to the Bill. It is conceived in that way rather than in the way that the hon. Member for Newark suggests because it is important to understand the nature of the civil penalty regime laid out in the Bill. Liability arises as a consequence of the individual not taking an action. If the test were at the beginning and the Secretary of State had to consider at that point whether the requirement was contravened without reasonable excuse, the process would be different and the Secretary of State would be required to undertake an investigation and carry out a trial-like process. That would be at odds with the principle of a civil penalty. I should add that the aim of the penalty regime is not to raise revenue but to encourage enrolment in the scheme; that is all that we want to secure.

The civil penalty regime is fair and reasonable because the opportunity to raise reasonable excuses by way of objection to the Secretary of State is straightforward and cheap for the individual, who does not have to take the matter to a court, although the process is backed up by a right of appeal to a court. The levy of the penalty must be considered in light of the Secretary of State's duty to act reasonably: his general obligation to discharge his duties in a reasonable way. If the Secretary of State were aware prior to the imposition of a penalty that the individual concerned had a reasonable excuse, it would be reasonable not to impose the penalty in the first place.

As we shall see later when we consider it in detail, clause 36 sets out a code of practice for the operation of the civil penalty scheme that underpins the Bill. It sets out how the Secretary of State should consider a notice of objection under clause 34, which has been strengthened in light of the representations of the hon. Member for Newark during the last Committee and should take account of his concerns although it achieves them by a slightly different method. I take the hon. Gentleman's point that some people will be terminally ill or away with the armed forces. Those would, of course, be extremely reasonable grounds for not complying with an order to register; the Secretary of State, being a reasonable man, would take that into account under clause 34(1)(b).  

I move on to the point made by the hon. Member for Orkney and Shetland who questioned the use of the word ''shall'' and asked whether the system should be discretionary. Under the regime laid out in clauses 34 to 36, which we shall look at in more detail in due course, the Secretary of State has discretion about the size of any such penalty and about whether, on objection or complaint, a person should be liable to that penalty. The Secretary of State may impose a penalty but does not have to, having regard to reasonableness and all the circumstances. The penalty is not fixed but at the discretion of the Secretary of State.

With those reassurances, I hope that Opposition Members will concede that we have acted reasonably and that the Bill has been strengthened as a result of the assurance given to the hon. Member for Newark.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

The Minister may have missed my slight contribution to the debate. Will he deal with the points that I raised?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I believe that I have been dealing with the points raised by the hon. and learned Gentleman; I understood that he was reinforcing the points raised by the hon. Member for Newark. I was outlining how the regime will pick up the points about which the hon. and learned Gentleman and the hon. Gentleman were concerned: a test of reasonableness can be applied when somebody has an objection to being asked to register on the scheme. That is explicitly captured in clause 34(1)(b). I do not know whether that covers the hon. and learned Gentleman's point; I think that it does.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I am not sure that the Minister has quite gathered my points. I shall make them again in relation to the next set of amendments. Perhaps he can have another go then.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I do not want to labour the point, but the hon. and learned Gentleman was talking about burden of proof, and the scheme that we have outlined is a civil scheme, so the burden of proof is civil. It is not intended to be a criminal penalty or to work in that way. The court procedure—the procedure by which someone would object to the levying of a penalty against them—is set out in clause 35. If the matter could not be resolved at the earliest stage, that recourse is open, but we make it quite explicit that we believe that the civil scheme is the right mechanism to underpin this part of the Bill. We do not believe that people should have a criminal record for failing to comply with it.

We believe that the mechanism should be cheap, effective and simple all round, and if people have reasonable grounds for not complying with the request to enrol—a request that I would argue is reasonable, given that they will have had plenty of opportunity to hear about the date and that they will have been notified—the Secretary of State can take on board their reasonable excuse. Ultimately, the matter could still go to court.

The hon. and learned Gentleman is right that the burden of proof is the balance of probabilities, and we believe that that is as it should be. It would not be right to clog up the criminal courts with such cases.   The measure is required simply to encourage people to enrol, rather than to penalise them or to raise revenue.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney & Shetland, Liberal Democrat)

The Minister says that the Government do not want to clog up the criminal courts. Is that an indication that he anticipates that there will be a large number of such cases?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Not necessarily; perhaps the hon. Gentleman is reading more into my words than I intended. The point is that I do not believe that such cases would be an appropriate use of court time. The matter would be more properly dealt with by a civil route, through the process that begins with the notice to register. A simple breach of that notice will trigger a penalty under the Bill. At that point, it would be for the individual to write to the Secretary of State laying out reasonable grounds for having failed to register. Of course, the person could pay the penalty and accept that he or she should have registered, but he or she could lay out the reasons why he or she did not do so. If the intention was to register straight away, and if the person did have reasonable grounds, one hopes that that would be the end of the matter, but ultimately a person could take the case to a civil court who did not believe that the Secretary of State had recognised that their excuse was reasonable. That could be tested in a court.

That is the proper process to use, although it is backed up by what, at the end of the day, could be quite a serious fine. So, there is an incentive to register. We are about to get on to that in more detail. We think that we have the right system to underpin the Bill, and that is something that the hon. Member for Newark asked for in the previous sitting.

Tobias Ellwood (Bournemouth East, Conservative)

I have two questions. First, £2,500—the maximum amount—is a lot of money. Does the Minister have any idea what a standard fine would be for, say, someone who deliberately does not want to be on the register and is willing to test the system? Secondly, if someone decides that he or she wishes to pay the fine, would those details go on the system? If someone pays a fine, can that person avoid registering, or will the person eventually be dragged to the register location to have details taken?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

The hon. Gentleman asked about a standard fine, but that is not the kind of system that is conceived. We are talking about up to a maximum of £2,500. I hope that he will accept that the purpose of the amount, which is not insignificant, is that we want to give people a clear incentive to register with the scheme. If and when it is the law of the land to join the scheme, people should abide by that law. Of course, the Bill has to go through this place first, but if it does, people will be required to register, and failure to do so could incur a significant penalty.

There is discretion to ensure that the fines are used proportionately. I do not believe that it would be the intention to use the maximum fine all the time. The fine would be proportionate to the refusal to register.

Tobias Ellwood (Bournemouth East, Conservative)

A significant number of people, mostly homeless, have already come out clearly saying that they do not want to participate in, or have anything to do with, identity cards. That is why I   was enquiring how much the fine would be. Imposing a fine of £2,500 would affect their way of life considerably, because it is unlikely that they would have that amount of money.

Roger Gale (North Thanet, Conservative)

Order. I allowed the first question and answer because I thought that we might dispose of the matter fairly quickly, but we are actually now moving into the next group of amendments. It might be a good idea to return and deal with the current group, and we shall discuss those issues, if they still exist, in a few moments.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Thank you, Mr. Gale. We shall come on to the point that the hon. Gentleman raised. I assure him that nobody is going to be dragged—he used that phrase—to have biometrics taken. That is not the basis on which the scheme is envisaged. There will be no dragging of anybody anywhere to take anything. It is a scheme that will work by gradual encouragement. The hon. Gentleman mentioned vulnerable groups, but we have the potential within the Bill to make special provision for people in vulnerable groups, such as the elderly or the homeless. That discretion is in the system. The package of measures is reasonable, and on that basis, I urge the hon. Member for Newark to withdraw the amendment.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

I thank the Minister for his eminently reasonable approach and explanation. We shall attempt to be reasonable as well. The last sitting of the Bill, which many of us in this Room will remember, was marked by ill-humour, unpleasantness and extreme tedium, and I am so pleased that the Minister has been able to point out that, however small our achievements were with the last Bill, this is an achievement. It is not a party political achievement, but one that, if the Bill makes it into an Act, will make it a better Act. To that end, I am satisfied with the fact that we have the code of practice on penalties in clause 36. I was going to challenge the Minister on why we could not have the same amendment introduced here to clause 6, with the wording ''without reasonable excuse''. His explanation is extremely lucid. I hardly dare say the words, Mr. Gale, but I am now completely satisfied with what the Minister said. I am extremely grateful to him, and to his and the other Minister's predecessor, who listened to our points during the last debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I beg to move amendment No. 37, in page 5, line 40, leave out 'civil'.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following amendments: No. 38, in page 5, line 40, leave out '£2,500' and insert '£1,000'.

No. 136, in page 5, line 40, leave out '£2500' and insert '£50'.

No. 146, in page 5, line 43, leave out 'civil'.

No. 137, in page 5, line 44, leave out '£1000' and insert '£50'.  

No. 39, in page 5, line 45, leave out '£1,000' and insert '£500'.

No. 40, in page 6, line 1, leave out subsection (6).

No. 41, in page 6, line 4, leave out '£2,500' and insert '£1,000'.

No. 138, in page 6, line 4, leave out '£2,500' and insert '£50'.

No. 147, in page 6, line 8, at end insert—

'(7) Unreasonable failure to comply with a request of the Secretary of State under this section shall be a summary offence to be heard before the magistrates court with an appeal against a finding of guilt to the Crown Court.'.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I want to make it clear that the satisfaction of my hon. Friend the Member for Newark is limited to the answer that he received to the amendment to which he was speaking. For my part, since the Minister has taken us on to clauses 33, 34, 35, and 36, which I was going to come on to in relation to this group of amendments, many questions remain to be answered. I am with my hon. Friend in so far as the Minister provided some sort of explanation to the amendment tabled by my hon. Friend.

We are now discussing the appropriateness of the civil penalty regime and the size of the penalties that that regime will impose. The Liberal Democrats and the Conservatives have tabled different amendments, but in essence, they deal with the same issue: what is the appropriate size of the penalty? The Government, in their Bill, say that £2,500 is appropriate, and between us, the two Opposition parties have put down other figures.

I do not lightly dismiss the administrative advantage of having a civil penalty system. It saves the Government a lot of money and saves the criminal courts system the burden of having to deal with what one might describe as a ticketing process. I assume that the Government are trying to set up the equivalent of a parking ticket system for failures under this area of the Bill.

If there is any greater area of dissatisfaction among the driving public apart from speed cameras, where there is no discretion, it is the administration of the parking system, particularly in London. I know that the Minister of State, who represents a London constituency, and the Government Whip will be only too aware of the huge amount of dissatisfaction that has emerged over the past few years as the parking ticket system in this country has been farmed out to private agencies. The driver who believes he is innocent of every offence has to go through every conceivable hurdle in order to establish his innocence under the parking ticket system. We are building for ourselves another, but more expensive, sort of car parking ticket system.

The Minister, whether wittingly or unwittingly, slipped into the case that I am about to make, but as far as the citizen or the European convention on human rights is concerned there is no difference between a civil penalty and a criminal penalty; both are penalties and impose disobliging obligations on the respondent to the notice. I imagine that the first person to be caught under clause 6 for failing to obey an   obligation placed on him by the Secretary of State under one of these, as yet unseen, orders, will write out a cheque for £2,500 or some division thereof. Frankly, he will not care whether he has been fined by a magistrates court or a Crown court or whether the money has been extracted from him under some form of civil process. He will be concerned with the £2,500 sum.

We are fooling ourselves if we think that we are setting up a nice friendly system. We are talking about coercion driven by money and the extraction of money from the individual in which the individual has to establish, albeit on the civil standard, that he is free of the obligation imposed on him by the Secretary of State. The situation gets worse, because the Secretary of State decides what the obligation is, whether the individual has passed or failed the test and whether he is satisfied by the individual's explanation. Then, of course, the Secretary of State decides at what level the civil penalty should be imposed.

I am not sure that that is a fair system, even though the Minister said, with disarming candour, ''We think that this a fair system.'' He may think lots of things, but that does not necessarily prove the underlying assertion in his statement. I think it is an unfair system. Does that make it any different? We will learn from experience that the public will be increasingly dissatisfied for a number of reasons. First, because they are required compulsorily to register. Secondly, because they are increasingly required as a matter of routine—I accept, that that is not as a matter of legal obligation—to carry identity cards to explain themselves. I am talking about what will happen in practice and not about what the Bill says.

The Minister may not accept my inference from all that is in the Bill and all that has been said by the Government during our deliberations here and on the Floor of the House, but I assure him that as a matter of practice people will increasingly carry the identity card because it will save trouble: it will save them having to go through various hoops, explaining themselves and so on. Of course, the Government will then get trapped into the flash-and-go false security of allowing the identity card to be the one and only document that proves bona fides and identity. I am afraid that we will reap that whirlwind in due course.

One cannot look at the amendments without doing as the Minister invited us to do and considering the provisions that set out the regime in clause 33 and those following it. If one considers those provisions, the position gets worse. Throughout the process, the Secretary of State will make the decisions. He will be the prosecutor, the judge and the jury. It is to his benefit—I use the term impersonally—that the system is being established.

When we object to having been penalised under that ersatz system, what are we to do? We are to go to the county court. I do not know when the Minister last went to a county court, but they are not always easy places to get to following the closure of a huge number in England and Wales. In earlier debates the hon. Member for Orkney and Shetland and my hon. Friend the Member for Newark exposed the difficulties that   would be felt not only by disabled people and others with impairments, but those in far-flung communities—in rural seats or in island seats such as the hon. Gentleman's. They will not find it easy to make their objection heard if they have to go to the county court or, I presume, to the sheriff's court in Scotland. It is a practical difficulty that I do not think the Government have got their head round, if listening to the Minister a moment ago is any indication of how far their thinking has gone.

We are also concerned not only about physical access, but about the ability to appear at the county court. It was always said, I think by Lord Birkenhead, Lord Chancellor in the 1920s, that the courts of England are open to all, like the doors of the Ritz. [Interruption.]

Roger Gale (North Thanet, Conservative)

Order.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I was trying to listen to what the hon. and learned Member for Redcar (Vera Baird) was saying. I wanted her to correct me if I had got the wrong lord.

Vera Baird (Redcar, Labour)

It was Lord Devlin who said that the law, like the Ritz hotel, is open to rich and poor alike.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I thank the hon. and learned Lady. Whether he was the originator of that comment—

Vera Baird (Redcar, Labour)

That is probably the only contribution that I will make to this Committee.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

The mere presence of the hon. and learned Lady is an adornment and her silence speaks volumes about the value of the Bill. However, I am grateful to her for correcting me.

The short point is that following the huge curtailment of legal aid in both civil and family matters, and particularly in civil matters, it is now virtually impossible to get civil legal aid. I suspect that it would be pretty well impossible to get civil legal aid to go to the county court, or the sheriff's court in Scotland, to pursue such an objection. Yet again, there is inequality and no balance of arms.

The Secretary of State has all the cards, makes all the decisions and may or may not at his own discretion let someone off or reduce the penalty. However, if that person objects, takes their objection into the formal court system and cannot afford representation, they will have to do it themselves. Otherwise, they will not be able to seek representation unless they can afford it. I am not convinced that the Government have thought that through sufficiently clearly.

I am also concerned, since the Minister drew our attention to the regime under which civil penalties will be imposed, that yet again we have not seen a vital document: the code of practice. The Minister can stand up perfectly honestly, without attempt to deceive, and say, ''Do not worry, there will be a code of practice.'' Perhaps there will be, but would it not have been better if had we seen not only the 60 powers that the Secretary of State wants for himself but the code of practice. What else is hiding in the Secretary of State's cupboard that we need to see in order to get a proper view of the Bill? What else do the Minister or the Secretary of State wish to bring   forward that they have not thought of during the past three years or when the previous Bill was going through the deliberative process in this House?

I register a general dissatisfaction with the way in which the Bill has been produced. I register a particular dissatisfaction with the way in which the Government have thought about clause 6, because it will lead to unfairness and unpopularity. As my right hon. Friend the shadow Secretary of State said on Second Reading, the Bill will be a plastic poll tax. Clause 6 gives us a good reason for saying that that assertion was true. It will lead to the failure of popular acceptance of the legislation.

By our presence here as Members of Parliament, we all accept that the Government have a majority and therefore an implied right to get its business through the House. However, there is no point in the Government exercising that right unless, to balance it, they have popular consent. I do not mean popular approval of what legislation implies or carries with it, but a general consent that the process is right and that what the Government are doing is broadly right. The Conservative Government fell foul of that in the 1980s by producing a Bill that passed Parliament—we had a majority—but that did not have popular consent. I speak of the poll tax. The present Government are doing precisely the same with the Bill.

Nick Palmer (Broxtowe, Labour)

This morning's survey says that 65 per cent. of the population would give precisely the kind of general consent to which the hon. Gentleman refers. Does he anticipate that the Labour party will get 65 per cent. at the next election? I would welcome that.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I often find the hon. Gentleman's interventions a little difficult to follow, fascinating though they doubtless are. I have absolutely no idea what percentage of the vote the Labour party will gain in the next election in 2009 or 2010. However, I assure the hon. Gentleman that dissatisfaction with the identity card system gets greater as the practical consequences emerge.

When the ID card system started, there was about 80 per cent. approval for this sort of arrangement. About a fortnight before the Bill came to Committee, an ICM poll found only 55 per cent. approval. A couple of days before Second Reading, a Populus poll found only 45 per cent. approval. I accept that most of that was based on the cost to individuals; but the cheque that one has to write to get a compulsory entitlement card is not the only cost. There are hidden costs—social, political and others. The hon. Gentleman's intervention reveals a hideous naivety, which the Government may come to regret.

Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)

On my hon. and learned Friend's last comments, I wonder whether the hon. Member for Broxtowe (Dr. Palmer) would find a study of the Australian experience of identity cards instructive. In theory it was hugely popular, but after explanation it became deeply unpopular.  

Roger Gale (North Thanet, Conservative)

Order. I shall not tempt the hon. and learned Member to go down that road. He was perfectly in order in replying to an intervention, and if hon. Members do intervene they must expect a reply; but that was a response too far.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

None the less, Mr. Gale, my hon. Friend's intervention is on the record. Were I not taking part in this debate, and I were to read the Hansard report of it, I would say, ''There is a wise remark.''

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney & Shetland, Liberal Democrat)

In view of your last comments, Mr. Gale, I have decided not to intervene.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

Were I to read that intervention in my leisure hours, I would say, ''There, too, is a wise remark.''

I hope that I have outlined sufficiently my concerns about that aspect of the Bill in dealing with my amendments and those of the hon. Member for Orkney and Shetland in relation to ''civil'' and about penalties. I hope that I shall not lose my political alliance with the hon. Gentleman when I deal briefly with amendment No. 147, which would insert a new subsection into the clause, making unreasonable failure to comply with a request by the Secretary of State under the clause

''a summary offence to be heard before the magistrates court with an appeal against a finding of guilt to the Crown Court.''

I was previously admonished by the hon. Gentleman for my ignorance of the Scottish legal system, and I had to go down on my knees and plead guilty to that. I suspect that he would find that his amendment would do just as well if it stopped after the words ''summary offence'', because all that follows is surely implied. A summary offence will necessarily be tried by magistrates, and there is a right of appeal to the Crown court. However, it is just as well for those who are neither English nor Scottish lawyers, nor defendants, that the details are pointed out in the amendment.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney & Shetland, Liberal Democrat)

I take the advice of the hon. and learned Gentleman about my amendment No. 147. I understood him to be saying that it is not necessarily wrong, but that the latter part is at least redundant. I resort, as often happens in Committee on such occasions, to saying that it is offered as a probing amendment and that, therefore, just about anything is permissible.

The amendments in the group that I have tabled are several in number—Nos. 136, 146, 137, 138 and 147—and they need to be considered as a whole. Jointly, they would remove the question of civil penalties, so that the penalty would become criminal rather than civil under amendment No. 147, the penalty for which we want to reduce to £50 instead of £2,500. They are probing amendments and I do not anticipate pressing any of them to a vote.

The issues that I want to tease out are, first, why the Government have chosen to proceed under a civil penalty regime, rather than under criminal sanctions. I do not expect too lengthy an answer from the Minister about that, because, given how the groupings have worked out, the question has already been explored in   some detail. The principal advantage of pursuing a criminal rather than a civil route is, as we see it, the higher standard of proof—proof beyond reasonable doubt, rather than on the balance of probabilities—and I suggest that that would be an important safeguard for someone who could be subjected to such a penalty.

I have proposed £50 as the penalty, but it could just as easily have been £5 or £500. My intention is to establish why the Government have settled on the figure of £2,500. Does the Minister anticipate that the code of practice will establish various spines for fine levels, or will the matter be at the unfettered discretion of the Secretary of State? I echo the words of the hon. and learned Member for Harborough about the desirability of an early opportunity to see a draft of that code of practice.

Others have mentioned the question of drawing parallels with the poll tax, which is interesting. I would like some slight clarification. Does the Minister envisage the penalty for non-payment being recovered by civil diligence, which in Scotland still means the process of poinding and warrant sales? He may be aware—as is, I suspect, the hon. Member for Glasgow, North-West—that the last time a Government introduced a poll tax, plastic or otherwise, the process of poinding and warrant sales caused considerable political excitement north of the border. I will be interested in how the politics of this proposal play out if the Government intend to proceed in the same manner.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Amendments Nos. 38, 39 and 41 would reduce the maximum civil penalty that may be imposed under the Bill. There would be a reduction from £2,500 to £1,000 for a contravention of one of the requirements in subsections (2) or (3) in respect of registration, a reduction from £1,000 to £500 for a contravention of a requirement set out in subsection (6) and a reduction from £2,500 to £1,000 for each contravention of a notice requiring the person to register subsequent to a contravention by him of an initial requirement to register. I shall deal with those amendments before turning to those tabled by the hon. Member for Orkney and Shetland.

The hon. and learned Member for Harborough raised concerns about the location of courts and people not wishing to pay such hefty fines. The easiest way for people to deal with such concerns is to register within the time set down by Parliament. He may not like that, but if the law of the land requires people to register on the scheme, the easiest way for them to avoid all the horrendous circumstances that he laid out is simply to register and enrol themselves on the scheme. If that is too difficult and they fail to do so, and they do not have a reasonable excuse, the next easiest thing is to pay the penalty they will incur. As we have already discussed, the Secretary of State will listen to and take account of a reasonable excuse.

In introducing the amendments, the hon. and learned Gentleman barely touched on why the Opposition want to reduce the figures from £2,500 to £1,000. He expounded an extreme libertarian position and invoked speed camera martyrs and people concerned about the activities of private parking   wardens to make his case, which, basically, is that there should be no such scheme or ability to enforce one. That may be his position, but it does not help us to understand the amendments.

The Government have gone for a penalty of £2,500, which will be a maximum. It will be for the Secretary of State to take into account a variety of factors in deciding on an appropriate fee to levy. Of course, such factors might include an individual's financial circumstances.

John Robertson (Glasgow North West, Labour)

Perhaps my hon. Friend can clarify something and thereby help the hon. Member for Orkney and Shetland. Could the fine possibly be £50?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

That is extremely helpful, because it could. The Secretary of State has that discretion. We entirely understand the concerns that the penalties might impact disproportionately on those least able to pay, but the point is that the penalties are maximums, not fixed penalties. I am grateful to my hon. Friend for pointing that out. Lesser amounts can be paid, depending on all the circumstances, and they will be determined case by case.

The hon. and learned Member for Harborough complains about the lack of a code of practice, but clause 36, which we will consider in detail later, provides in a clear way the terms of the code and how it will operate. The fact that there is a code of practice will reassure people that they will receive a fair hearing should they be in that position. We have already added the test of reasonableness, which the Secretary of State will be required to consider. That is backed up by the code of practice.

The concerns that have been raised will not arise, and the locations of courts and the geographical spread are not relevant. The courts are a last resort. People will be given every opportunity to register under the scheme, and the intention is to encourage them to do so. It is not a means of penalising them or raising revenue. Popular consent was referred to, but, as my hon. Friend the Member for Broxtowe said, the scheme has strong popular consent and I believe that some of the scare stories that have been put about have undermined the figures.

The hon. Member for Orkney and Shetland asked, ''Why a civil scheme?'' We touched on that when we discussed the last group of amendments. We think that that is the right way to underpin the scheme. We do not want these matters to have to be dealt with by the criminal courts—there is no need for Crown Prosecution Service or police involvement—and it would not be right to give people criminal records if they failed to comply with requests to register. We do not want to weald the threat of imprisonment for failure to pay, but we do want a scheme that is simple and easy to administer and that enables people to be registered. We do not want people to breach the law of the land; we want them to register when that becomes compulsory.

It has been said that there is a higher standard of proof in the criminal court. That is correct. The hon.   Member for Orkney and Shetland is a lawyer, and perhaps that provides him with more comfort. However, we have already placed in the Bill a code of practice and a test of reasonableness. I hope he accepts that those will enable people to put their cases properly and to be heard fairly under the system.

The maximum penalties must be high enough to act as a deterrent, so that people do not choose not to register. The amendments that would reduce the maximum penalty to £50 would render the scheme vulnerable; it would not be a serious incentive to people to comply with the law and to register.

Amendment No. 41 relates to penalties for subsequent failures to register, and amendment No. 40 would remove clause 6(6) completely. The effect would be that the Secretary of State could not impose further fines for continued failure to register. That would not be in the spirit of the scheme; it would undermine the premise of the measure, which is to give a series of positive incentives to register.

It is proper for the Secretary of State to determine what a proper fee should be, and it should be able to be repeated if people persistently fail to register. As I have said before in response to the hon. and learned Member for Harborough, the easiest way to avoid all that is to obey the law of the land. That will be a matter for the Government of the day, when they consider whether to make the scheme compulsory. If the power is invoked and used, it will be fair for everybody to be required to register. It will be the will of the House that people should do so, and unless they have reasonable reasons, they will be expected to do so. I think I have touched on most points that hon. Members raised.

Amendment No. 139 would remove clause 6 from the Bill altogether, which would in effect take away the compulsion to register. As the hon. Member for Orkney and Shetland knows, the Government's intention is that the scheme will be fully compulsory. [Interruption.] Excuse me, Mr. Gale. I would like to withdraw the comment about the amendment. I thought the hon. Gentleman had tabled an amendment to remove the clause altogether.

Amendment No. 147 would create a criminal offence—the summary offence of failing to comply with any requirement of clause 6. No penalty is mentioned, but even if it were a moderate one, a person who failed to comply on more than one occasion would end up with a criminal record. As I have tried to explain, it is not our intention to penalise in that way people who persistently fail to register. The aim of the regime is to encourage people to see that it is in their financial interests and in their own best interests to comply and to register with the scheme. We do not think it appropriate or sensible to give people a criminal record.

I hope that, with those remarks, I have answered some concerns set out by Opposition Members. It is not our intention to penalise or clobber people with unreasonable fines. Our intention is purely for people to be registered with the scheme as soon as is   practically possible once the House has passed a compulsory scheme. In that spirit, I hope Opposition Members will not press their amendments.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

Perhaps not for the first time, I shall disappoint the Minister, because I am not at all convinced by anything he has told us today. He says that it is not his intention to clobber people or give them criminal records. Well, it may not be, but that will be the effect of what he does. I can see that there is a distinction between a civil penalty and a criminal fine, although from time to time even the Minister slipped into the confusion of describing the penalties as fines. I know that he did not mean to, but that is how the penalty will be seen.

If the Minister—having studied the Bill, considered the matter quite carefully and read the notes with which he has been provided to answer these points—still calls it a fine by mistake, surely our constituents will be confused and will see the penalty of £2,500 or any subdivision of it as a fine. It is a penalty and, as I said earlier, the European convention does not draw a distinction between a criminal and a civil penalty.

I want to know, although the Minister was not able to tell me, whether the civil penalties will be registered as county court judgments if they are not paid and whether bailiffs will turn up at people's doors. I think that the hon. Member for Orkney and Shetland mentioned a Scottish process. Civil penalties, if they are not paid and are the subject of county court proceedings, will presumably become the subject of bailiff proceedings and yet again we will have the rather unattractive sight of bailiffs turning up at people's houses to take away their furniture or other belongings to demonstrate the Government's desire that people should be coerced into doing what they say. But that does not matter, of course, because the Government have ''strong popular consent'' for the measure.

I hope that that little phrase will be hung around the Minister's neck between now and the next election, because I can assure him that the measure has no strong popular consent. In so far as it ever did, it is decreasing by the day, and clauses such as this will lead to the consent disappearing to nothing.

Ben Wallace (Lancaster & Wyre, Conservative)

Does my hon. and learned Friend fear that, given that the Scottish Parliament and the Welsh Assembly say that they will not support ID cards—even my local Labour-led council, which covers Lancaster and Morecambe, has come out against them—we may get into a situation similar to the one with the poll tax, or community charge, when there was mass refusal to take part in the system, which inevitably damaged the credibility of the whole scheme?

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

The Minister accused me of being an extreme libertarian. I have been accused of many things in my time, but being extreme is not one of them. I certainly am not about to encourage members of Lancaster city council to do as the Clay Cross martyrs did, or other members of the Government in Scotland did, but that is an inevitable and foreseeable consequence. It may be unintended, but it will happen. Nothing the Minister has said has altered my view that   the clause is the worse for being unamended. On this side of the Committee at least, we stand for the rights of the citizen and for freedom under the law. I hope that the Committee's opinion, in so far as it has been expressed, will be tested by a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.