Clause 6 - Power of Secretary of State to require registration
Identity Cards Bill
4:15 pm
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.