Clause 35 - Appeals against penalties
Identity Cards Bill
9:30 am
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.