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

I beg to move amendment No. 115, in clause 35, page 30, line 23, leave out “or”.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment No. 116, in clause 35, page 30, line 24, at end insert

‘or

(d)increase the penalty.’.

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

The amendment is a very simple one, which would merely delete the word “or”. Amendment No. 116 would add a new paragraph (d). We are probing the Government on this matter because, in relation to the question of appeal, the court can cancel or reduce the penalty, or dismiss the appeal. We propose that the court should be allowed to increase the penalty. A disincentive to appeal would be created that the court might find useful.

Any number of appeals could go on in relation to several elements of this Bill, and others. If we give the court the ability to increase the penalty, there might be less incentive to appeal. I believe that would be useful, so I would like to know why the Government have not included such a provision. I look forward to hearing the Minister’s explanation.

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

I shall be brief. Perhaps the Minister will respond to this point. It does not strictly relate to the amendment, but it would assist me if he clarified the Government’s thinking on the procedure to be followed in bringing such matters before a court in Scotland. There is a procedure known as summary application, for which legal representation is not normally required, and it seems to me eminently sensible that the Government should use that much under-used procedure. I hope the Minister will confirm that that is their intention.

Roger Gale (North Thanet, Conservative)

As the hon. Gentleman knows, I am perfectly happy to allow stand part debate at the beginning of our consideration of a clause, rather than at the end, and I am sure that that will accommodate the Minister’s response.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

Thank you, Mr. Gale.

As the hon. Member for Newark suggests, this clause is about whether to

“(a) allow the appeal and cancel the penalty;

(b) allow the appeal and reduce the penalty; or

(c) dismiss the appeal.”

He seeks to add a further power to increase the penalty. On balance, we do not think that the amendment is desirable. It certainly would not follow the pattern of similar civil penalty schemes, such as the carriers’ liability scheme in the Immigration and Asylum Act 1999, under which the court is not empowered to increase penalties.

The opportunity to appeal to the court is provided as a means of ensuring that, even though civil penalties are unilaterally imposed by the Secretary of State, the article 6 right—that is, the right to a fair trial for those on whom penalties are imposed—is respected. The purpose of the appeal is not for the court to mete out further punishment to the appellant, but to ensure that those rights under article 6 are respected. The Secretary of State decides what the appropriate penalty is and, at the objection stage, whether to increase it.

On balance, there is no reason for the courts to have the power to raise the penalty—as I say, in other civil penalty schemes there is certainly no such power—but I take the point about trying to achieve a balance between allowing the right to appeal, thus satisfying the requirements of article 6, and trying to build in a deterrence factor so that people do not appeal capriciously.

To answer the hon. Member for Orkney and Shetland (Mr. Carmichael), subsection (7) says that in Scotland the matter is down to the sheriff. I have no idea whether that answers his question, but that is my answer, as I do not know where responsibility for summary applications lies in the Scottish legal system.

Given what I said on the lead amendment, I ask the hon. Member for Newark to withdraw his amendment, but I am happy to give way to the hon. Member for Orkney and Shetland first.

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

Summary application is, in the normal course of things, made to the sheriff, but there are any number of functions that could be used and ways that such matters could be brought before him. However, I suggest to the Minister and his advisers that summary application is the most appropriate.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

Given that I have already exhausted my extensive knowledge of the Scottish legal system, I cannot refuse the hon. Gentleman’s blandishments. I will take that issue back with me and look into what would be the most appropriate form for appeals to be dealt with by the sheriff in the Scottish legal system. I ask the hon. Member for Newark to withdraw his amendment.

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

I am grateful to the Liberal Democrats for increasing my small store of knowledge—

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

The Liberal Democrat.

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

Indeed; the Minister is quite right. I am grateful to the Liberal Democrat for increasing my small store of knowledge of Scottish law.

I would not wish this amendment to put the Bill out of step with the carriers’ liability scheme, or indeed any other part of civil law, so I beg to ask leave to withdraw the amendment.