Clause 1 - Offences leading to penalities on the spot.

Criminal Justice and Police Bill – in a Public Bill Committee at 12:00 pm on 6th February 2001.

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Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 12:00 pm, 6th February 2001

I beg to move amendment No. 21, in page 2, leave out lines 15 and 16.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to take the following amendments: No. 22, in page 2, leave out lines 21 to 25.

No. 24, in page 2, line 27, at end insert—

`paragraph 10(1) Schedule 4 Local Unlawful street trading'. Government (Miscellaneous

Provision) Act 1982

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Thank you for indicating that you want a flexible approach involving the usual channels to operate in the Committee, Mr. Gale.

Photo of James Gray James Gray Conservative, North Wiltshire

My hon. Friend raises an important point. The programming resolution is curious because it does not lay down times for concluding consideration of particular clauses. In other words, it invites the usual channels to arrange the business as best they can. That was precisely how Committees used to be organised and it is why we so dislike the present system.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I agree with my hon. Friend. We had no problems under the previous system. It is a pity that we must have a firm end date.

The amendment would remove criminal damage from the list of offences for which a fixed penalty notice can be given. Clause 1(1) lists the offences for which such notices may be applied.

Amendment No. 22 would remove the offence of using

``Threatening, abusive or insulting words or disorderly behaviour''.

Amendment No. 24 would add offences concerning unlawful street trading.

On Second Reading, my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) made it clear that, although we are not opposed in principle to the issuing of fixed penalty notices, we want to examine the details of the proposals.

The two offences that would be deleted from the list are potentially serious in terms of their effects both on victims and on the wider community's general sense of public order and safety. Should those who are accused of such serious offences be dealt with without arrest and charge and, potentially, conviction and sentence? Would attempts to deal with such offences on the street be likely to aggravate situations?

Criminal damage, in particular, is an offence that affects its victims. It can be a harassment offence—an act of criminal damage or vandalism that continues a campaign of harassment. It can be an offence in which the monetary value is small but the effect on the individual is substantial.

The same is true of

``Threatening, abusive or insulting words or disorderly behaviour''.

Such offences can arise in the context of a neighbour from hell, or can be committed as part of a series of public order problems on our high streets at the weekend. There are a range of circumstances in which the two offences can occur, but they are often serious offences, with serious consequences. We accept that there is to be an element of discretion here, but question whether such offences should be fixed penalty notice offences.

In response to the Government's consultation on fixed penalty notices, Bedfordshire police said:

``The type of offence to be included in this scheme should not be one where the circumstances are likely to increase existing confrontation'' and specifically mentioned ``abusive or insulting behaviour''.

The Association of Chief Officers of Probation has remarked:

``As threatening abusive or insulting words or behaviour may include some serious incidents and often have a direct victim, we would have doubts about their inclusion.''

Two serious bodies have therefore expressed doubts about whether such offences might be too serious to be included in a list of fixed penalty notice offences and dealt with in that way, and whether that is practical.

The Association of Chief Officers of Probation commented that it believes that the same applies to cases of criminal damage, which can be

``part of an incident that is serious and has a direct victim.''

It also says that, in such cases,

``reconciling the desirability of compensation for the damage with the simplicity of a fixed penalty might be difficult.''

We agree that criminal damage can cause great distress, even where there is little monetary value involved. The chief constable of the West Midlands police, Edward Crew, said that the Association of Chief Police Officers was broadly happy with the proposed list of fixed penalty offences except for criminal damage. He said:

``As you know, this offence is an `arrestable offence', is triable `either way', and can have an enormous impact on victims' lives even in the most minor instances. There was therefore considerable concern about whether it would be appropriate to deal with such offences by way of FPN.''

He added that there was a consensus that criminal damage should always result in the arrest of the alleged offender, and also pointed out:

``Criminal Damage is also notifiable for fingerprinting and DNA purposes and there is some fear that should such offences attract the issue of FPNs on the street, the vital opportunity to obtain fingerprints and DNA samples will be lost.''

Does the Minister agree that some offences are too serious to be dealt with by fixed penalty notice? There are certainly offences that could occur on the street that are not included in the list, and I suspect that that is because he would not want to diminish their seriousness. However, are the two offences under discussion not also too serious to be dealt with by fixed penalty notice?

Why has the Minister not followed the views of such important bodies as the Association of Chief Police Officers, the Association of Chief Officers of Probation and Bedfordshire police?

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

My hon. Friend and other hon. Members will recall the ridicule that the Prime Minister faced when he announced a half-baked scheme for people to be dragged to cashpoints to pay fines on the street. The Government dropped that stupid proposal quickly. Does my hon. Friend agree that the major problem with the Government's revised proposal, among the other problems that he highlights, is summed up in one sentence from the Criminal Bar Association, which says:

``Disorderly drunks are by definition not in a fit state to be served with a legal document with penal consequences''?

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

My hon. Friend is right to air that issue. I hope that, in the clause stand part debate, we shall examine the 12 or more issues raised by the Criminal Bar Association, which deal with how orders might operate for the offences listed in clause 1(1). I am concentrating on criminal damage and threatening behaviour, but many people have asked whether fixed penalty notices should by used for these types of offences or whether they would be better used for others. I should like to discuss with the Minister and the Committee where I think that fixed penalty notices might be useful. Subject to your ruling, Mr. Gale, that would probably be better considered in the clause stand part debate, rather than in debate on these narrow amendments that deal with criminal damage, threatening behaviour and street traders.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Those who have previously served under my chairmanship know that I take a relaxed view of stand part debates. My view has always been that a Committee can have a stand part debate either along with the first group of amendments or at the end, but cannot have both. If the hon. Gentleman is saying that he wants a stand part debate, that is fine by me. However, because this is a narrow group of amendments, debate should be confined to them.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

But the amendments raise important issues. If the Association of Chief Police Officers says that criminal damage is not suited to the procedures, the Association of Chief Officers of Probation says that threatening behaviour is not suited to them and Bedfordshire police also has reservations, we should concentrate on their concerns.

Does the Minister think that the penalties will work for those two offences? He will be aware that the New South Wales ombudsman, Brendan Delahunty, responded to the Government consultation. He sent the Minister a paper called ``Policing Public Safety''. In chapter 12, pages 308 to 310, that paper described the experience of issuing fixed penalty notices for public order offences under the Australian Police and Public Safety Act. Offences mentioned are public order offences such as carrying a knife and refusing to do what a police officer says when direction is appropriate. The paper showed that although fixed penalty notices generally achieve a good level of payment, it drops dramatically where public order offences are concerned. In New South Wales, 95 per cent. of penalties were not paid for the offence of custody of a knife and 92 per cent. were not paid for refusing police direction. Payment was therefore received from between only 5 and 8 per cent. of those served with fixed penalty notices. The paper concluded that the bulk of offenders served with fixed penalty notices were young—under 24—that the fines were far too high, and that offenders had limited capacity to pay and did not understand the legal consequences of non-payment.

The Association of Chief Officers of Probation took up that point and said:

``A judgement needs to be made about whether the current compliance rate of 77 per cent. for fixed penalties is satisfactory or whether it is too low. Extending fixed penalties to non-motorists, especially those with alcohol problems, probably means fixed penalty compliance will dip sharply. From probation experience we know that successful compliance and enforcement is critical to public confidence.''

Why does the Minister think that it would be different for penalising threatening behaviour or criminal damage in this country? Would we not end up with a lack of respect for the law if those comparatively serious matters were treated in such a manner? Threatening behaviour is an offence often committed by young men on a Saturday night, at a football match or in the heated environment of a dispute with a neighbour. It might be serious or not so serious. It is the type of offence that fits into the category identified in New South Wales of offences committed by young people who do not understand the legal consequences of not paying and who are unlikely to pay.

Will penalties become a farce because of high levels of non-payment? I may deal with the cost of that when we come to clause stand part. Are not penalties on the spot particularly unsuitable for those two offences?

I want to ask the Minister about criminal damage. The victims of criminal damage have lost money. They may have had a fence kicked in or a tyre punctured or some other act of vandalism committed against them. If the amount involved is small, say a couple of hundred pounds, they might not try to recover it in a civil court. Currently, a victim is entitled to make a compensation claim if the criminal is charged, and a compensation order can be made on conviction. Will victims be deprived of the opportunity to receive compensation by the use of fixed penalty notices? If so, is that not monstrous?

The questions regarding criminal damage are whether the offence is too serious and whether it is right to deny compensation to a victim who has suffered a no doubt worrying incident and the loss of a small amount of money. Many victims might agree with ACPO, which has said that the offence should not be included.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department 11:15 am, 6th February 2001

I have been following the hon. Gentleman's argument with great interest, but I cannot understand part of it. On the one hand, he said that there is no point in issuing fixed penalty notices for public order offences, because the people to whom they would be issued are unlikely to be able to pay, and on the other, he suggested that fixed penalty notices issued for criminal damage are unfair because those same people who are unable to pay will not attract a compensation order. Is that right? How does he reconcile those two positions?

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I did not think that there was a problem. I imagine that the Parliamentary Secretary has been to court in his professional days—perhaps not, I do not know, but in any case, he will know that a compensation claim can be made when someone is prosecuted for criminal damage. It is true that the court will consider the individual's means in deciding how much should be paid and at what rate. For victims, compensation is a good thing, although they often complain about the rate of payment ordered by the court. He will know that the victim receives compensation before the fine is paid. In any event, he will at least agree that £50 or £100 paid at £5 a week is better than nothing. Compensation is eventually paid if court process is involved. What will happen with fixed penalty notices if enforcement is not adequate?

The law will be brought into disrepute if such serious offences are dealt with by fixed penalty notices and only 6 per cent. of offenders pay. I look forward to an explanation of how payment will be enforced. I invite the Parliamentary Secretary to intervene if he feels that I have not satisfied him on that point.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

The hon. Gentleman has missed the point. His analysis is that that group of people would not pay fixed penalty notices. Why, then, does he think that they would pay compensation?

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

If such people do not, they will end up in court and be pursued by magistrates. As the Parliamentary Secretary knows, magistrates go after people time after time until, eventually, the money is paid. It is often paid at a low rate, but it is paid. His records will show that, although I guess that he would like a higher payment rate.

It is wrong to deprive victims of criminal damage of compensation, and the offence is too serious to be dealt with in such a manner.

On unlawful street trading, the Association of Chief Police Officers commented in the consultation:

``There is much support for extending the fixed penalty notice system to include other non notifiable offences, for example unlawful street trading, which can attract large audiences in busy market areas, providing an ideal environment for pickpocketing and street robberies.''

It also says that the use of fixed penalty notices for such behaviour is common in Amsterdam and focuses on such antisocial behaviour.

There has been a colossal 21 per cent. rise in robberies. Unlawful street trading allows street robbery to occur under the cover of a crowd. Why have Ministers ignored ACPO's advice and not included unlawful street trading—as set out in amendment No. 24—in the list of offences leading to fixed penalty notices?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I will limit my remarks to the amendments, but the Committee knows that we are sceptical of fixed penalty notices being used, other than for offences that leave a physical legacy for all to see. Most of the offences in clause 1 do not fall into that category.

Traditionally, the fixed penalty system applies to offences committed by car drivers. That is reasonable, as one does not have to drive a car—one gets a licence to drive. If such a licence is applied for and used, its conditions are known. That applies to any other motor vehicle, such as scooters and tractors. It is easy to deal with motoring offences in that way, because the vehicle is visible and identifiable by a unique characteristic—the number plate—in a way that individuals are not.

It has been argued that fixed penalty notices should apply to cycling offences, such as cycling on pavements. That is sensible, because physical evidence exists, although it is more difficult to establish firm facts, as bicycles do not have numbers and licence plates.

On Second Reading, we identified two other offences that leave a clear legacy and visible sign of offence: littering and dog fouling. They are more difficult to prove, as one has to be careful to link the dog or litter to the right person, but evidence exists. Some types of criminal damage come into that category, and some do not. If someone throws a brick through a window and there is only one person around, it is relatively easy to identify who has done it. However, in the case of criminal damage such as graffiti spray-painted on to a wall or a name scratched on a bus shelter—helpful if it is an individual's name, but not if it is just a tag from which the person cannot be identified—and a gang of youths aged 18 or over is hanging around, it may not be nearly so obvious. One could reasonably argue for keeping such damage on the list.

The hon. Member for North-East Hertfordshire is trying to apply a principle to the system and is more sympathetic to it than I am. I am surprised that he wants to remove this offence while leaving in the others, which are far less capable of being linked to a specific perpetrator and a physical act.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

The hon. Gentleman is right. In proposing the two deletions, I have looked at submissions from ACPO, the Association of Chief Officers of Probation, Bedfordshire police and others. I was persuaded by their arguments in respect of those particular offences. However, I am not trying to establish a principle that evidence needs to be left, or anything like that. I am saying that the representations were made by people who understand the issue, and I have been guided by them.

Will the hon. Gentleman comment on a thought that his observations have prompted, namely that some offences require a mental element? Criminal damage is one. I think that it would be true of threatening, abusive and insulting words or disorderly behaviour. Misusing the public telecommunications system and wasting police time would probably come into the same category. They are all offences with a mental aspect. For example, there has to be an element of intent or recklessness to commit criminal damage. An offender could say that the offence was an accident. How would that be handled under the fixed penalty notice regime?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I understand why the hon. Gentleman is arguing for and against certain omissions and deletions. It is the result of a speedy consultation process. At least there was one, and there were submissions in response to it. He also raised intent, which I was about to illustrate. When I was practising at the Bar, I was involved in the case of a man called Gary Docherty, whom I came to know fairly well. I think that he was aged 18 at the time. He was pushed off the balcony of a block of Lambeth-owned council flats in Kennington and landed on the roof of a car below. It was clearly criminal damage. The car was severely dented. He was pretty well dented too, but that was a separate matter about which no allegation was made. In that case, the whole argument was about whether the damage was intentional. Was Mr. Docherty reckless in damaging the car? In the end, he got off, thanks to my good offices, and lived to fight another day.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

This is almost a point of order, Mr. Gale. Is it appropriate to advertise one's services, either as a barrister or as a Member of Parliament?

Photo of Roger Gale Roger Gale Conservative, North Thanet

Happily, that is not a point of order for the Chair. As the hon. Gentleman knows, hon. Members are responsible for their own words and actions.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

If the Minister thinks that I am canvassing for even more casework, I am certainly not. I have enough to keep any Member of Parliament busy for more than a normal life span.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

How can the hon. Gentleman be so certain that it was thanks to him that the defendant got off? It could have been a bizarre jury or bench of magistrates.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

At least in those days the defendant had the consolation of being able to choose trial by jury, which, if the Government have their way, he will not be able to do in future. That is another of the Government's wicked and malicious plans that will probably not reach the statute book before the general election and therefore, I hope, will never reach it.

The offence that amendment No. 22 would delete is hugely subjective and easily misused by the charging officer, and it would not necessarily evidence the intention that the hon. Member for North-East Hertfordshire asked about. I support the proposal to remove the offence altogether. We know from experience that it is exactly the sort of thing for which police officers nick people regularly, to show that they are doing their job. They often have no idea whether the person in question committed the offence; they just go into a group of people and nick one of them.

The reality is that officers often do not know which one of a gang used certain words, what is disorderly or what is abusive. What might be abusive to someone who has lived in refined circumstances might not be abusive to people like me who have lived on the Old Kent road for half their life. What is disorderly among a group of six pensioners aged 70 might not be disorderly among a group of 19-year-olds. It is entirely subjective. In a different way, what causes harassment, alarm or distress is also subjective and, for those reasons, this approach is wrong. The police should not have the power; it will give them all the cards and will give none to the citizen, and is a sign of an imbalance that could lead to more severe problems.

As I said on Second Reading, these offences are mischievous and inappropriate because it is fine for well-heeled, intelligent individuals to get fixed penalty notices if they happen to be messing around on the streets one evening, having been to a posh dining club. It is no trouble for them because they would just write out a cheque the next day. It would make no difference to their bank accounts and would be just one of those things. Many people regularly take parking fines as par for the course. On the other side are people like a lad from my constituency, who I recently tried to help. He was a 19-year-old, sleeping rough in a car and not of high intelligence, who was trying to cope with life and hold down a part-time job. Such people are much less likely to manage if they have to deal with a fixed penalty notice. They would have trouble organising themselves, ensuring that they had the money to pay on time and understanding what to do if they wanted to challenge the notice.

The system would break up England and Wales even more into two societies: the well-heeled and intelligent and the less competent and well-off. If people do not have the money and cannot pay within the time limit, the only way out is to challenge the case, which poorer people are less likely to do.

Photo of Ms Helen Clark Ms Helen Clark Labour, Peterborough 11:30 am, 6th February 2001

I see the hon. Gentleman's point about how those who have, can, and those who have not, cannot. However, whatever walk of life people are in—even professional people—those who continually receive a series of fixed penalty notices will be affected. Surely there will be a record of the fines, which might get into the newspapers, and that would be embarrassing and affect their professional status at work. Therefore, is it not better to have the fixed penalty notices?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I understand the hon. Lady's question. An extraordinary number of people incur fixed penalty notices regularly. They can be seen in London, parking big cars on the pavement day after day. They have one, two, three tickets, their cars are towed away and they collect them. It does not matter to them; they can afford it. To them, it is part of the disbursements of life.

As the hon. Lady well knows and as the hon. Member for North-East Hertfordshire mentioned, there are huge numbers of unpaid fines. These are not my figures; they are set out in the Library briefing on the Bill, which cites a Home Office report that states that 60,000 fines totalling £4 million were written off in 1986. By 1994-95, the figure had risen to nearly 500,000 fines totalling £33.4 million.

Last July's article in the Sunday Telegraph reported that the police and courts had been unable to collect nearly £72 million of fines and costs from convicted criminals and defaulters over the previous year. According to a Police Review article, in the financial year 1998-99, £220 million was received in paid fines but write-offs due to non-payment amounted to £43.6 million. We must think carefully about a fining system that is so flawed and ineffective for so many people—some 20 per cent. of those concerned.

Photo of Geraldine Smith Geraldine Smith Labour, Morecambe and Lunesdale

Does the hon. Gentleman suggest that we should abolish all fines because some people do not pay them?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

No, I do not suggest that all fines should be abolished. There are many people in prison who should have been dealt with through financial penalties and many who are in prison because they have not paid fines. That is nonsense because it is an inappropriate remedy. We must ensure that fining is appropriate when the court assesses what is likely to be effective. The system assumes that fining will be effective and leaves it open to the defendant to get out of it. Effectiveness is not a question for the court. Such decisions should be taken after proper assessment of whether, and how soon, a person is likely to pay. When someone has been socked on the street at 1 am, there is no way of knowing the financial circumstances of the offender and whether there is any chance of a fine being paid.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

In answer to the hon. Member for Morecambe and Lunesdale (Miss Smith), the hon. Gentleman said that many people in custody should be dealt with by financial penalty. That may be Liberal Democrat policy, but I hope that he does not suggest that he, as a parliamentarian or a member of the Bar, should substitute his decision about what is right for defendants for those of the courts. That would be arrogant and undermine his own argument.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I do not want to be drawn into other arguments. Such decisions are, of course, for the courts, within the range of penalties provided by the law. We can debate penalties and sentencing. We shall submit further suggestions to the Government's review of sentencing. We are sure that there must be greater flexibility in the supervision orders that go with small sentences of imprisonment. Prison governors and the probation service regularly tell me that.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I want to take the hon. Gentleman back to the discretion of police officers. With offences such as threatening behaviour or criminal damage, an officer might decide to issue a fixed penalty notice rather than a caution or making a charge. If different disposals were made in the cases of two defendants in the same situation or two similar cases arose within a short period, allegations of discrimination could be made. It could be alleged that a decision was taken for racist reasons or for a host of other religious or other reasons. Unless the officer can show that his decision was taken for a good reason, it could be justiciable under human rights legislation. Is the hon. Gentleman worried that such a decision could be subject to judicial review?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The hon. Gentleman is right to look at the matter in that context. I have a practical example. Someone who protested last year against the visit of the President of China because of China's actions in Tibet might have been guilty of

``insulting words...within hearing or sight of persons likely to be caused harassment, alarm or distress''.

The President of China might, in my view justifiably, have been alarmed, distressed or perturbed by the demonstration—I hope that he saw as many demonstrators as possible. In such a case, it would be possible for a police officer to say, ``You're nicked.'' Is that appropriate? Is that the sort of behaviour for which someone should receive a fixed penalty notice? Is it right that those people from my constituency who protested during the Chinese President's visit should be subject to on-the-spot justice by a police officer, especially as we now know that the police acted inappropriately? Everyone has accepted that the police went over the top in that situation and behaved in a way that was overly restrictive of liberty for reasons that were explored last year. That is a good example of how difficult it is to know what is distressing to whom in any particular circumstances.

The hon. Gentleman raised another issue. Of a group of seven people, who are, perhaps, waving at two police officers coming down the street, which will the police officer choose? Should it be the one who is most likely to run away quickly or the one whom the police officer is most likely to be able to get hold of? If I was a police officer, I think that I would choose the one who was least likely to give me grief, least likely to bop me over the head and least likely to be able to run away quickly. Therefore, there is an element of subjectivity, which means that the police officer might choose the person who is most vulnerable or least able to run. Depending on the circumstances, the police officer will make a judgment at the time, and if he has no reinforcements, he is hardly likely to go for the biggest, strongest, fittest individual, who is most likely to give him trouble. That person will then escape the fixed penalty notice and all sorts of justice, while someone else who is a less effective combatant will not.

Furthermore, a fixed penalty notice might be served on someone who does not actually receive it, or there might be some argument about whether the notice was received or whether the person dropped it on the pavement—we will come to other examples of how barmy the whole process is. Then the process must be followed up in the event of a challenge being made later.

Yesterday, I was told about a poll carried out by BBC Online with ICM, for which 1,000 people in England, Scotland and Wales were interviewed in the past few days. It is interesting that, by a narrow margin, a majority—or a large minority: 49 per cent. to 47 per cent.—of people do not think that fixed penalty notices are an appropriate punishment. Most people think that fixed penalty notices are an inappropriate way of dealing with any offences, not just the ones listed in the Bill. As I argued on Second Reading, if we want to take this approach, we should pilot the scheme in certain areas and make a judgment on the basis of the experience of the magistrates, police, probation service, youth service and local authority.

Amendment No. 24 would include street trading. I am sympathetic to that because there are more open and visible signs of street trading. London is an obvious example, but there are also other places where fly-by-night—although they are usually fly-by-day—people illegally pitch their burger stalls or flag stalls. It seems that that would be easier to deal with because it is more difficult for traders to scoot away with their barrows on two wheels or their kebab stalls. Admittedly, some traders in shopping centres can just close their suitcases or briefcases and run away, but I agree with the hon. Member for North-East Hertfordshire that that is the sort of offence that should logically be included in the list.

Therefore, I am sympathetic to deleting the two offences that the hon. Gentleman suggests should be deleted, and will vote accordingly if he presses his amendment to a vote. However, contrary to my general view that fixed penalty notices are an inappropriate way of dealing with most offences, I am sympathetic to including unlawful trading and would support that amendment. I am still not persuaded that a long list of offences should be included before we have tested the basic idea. We should do that in a localised way to see whether it has any validity and whether any of the fines, if properly issued, would be collected in significant numbers and thus bring the criminal justice system into greater repute.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

On a point of order, Mr. Gale. I have tabled three amendments, and it was my intention to press amendment No. 21 to a vote. However, in the light of the comments of the hon. Member for Southwark, North and Bermondsey, is it possible to have a separate Division on amendment No. 24?

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I support the amendments. They distinguish between offences in respect of their nature and of the sorts of people who are likely to commit them.

My hon. Friend the Member for Surrey Heath (Mr. Hawkins) mentioned our concerns about some of the other fixed penalty notices. Alcohol Concern and the Criminal Bar Association are worried about the capacity of drunks to receive fixed penalty notices. Such concerns will be discussed in the clause stand part debate.

Amendments Nos. 21 and 22 are distinctive because they remove from the Bill offences that are likely to be committed by people who have a low regard for the criminal justice system.

My hon. Friend the Member for North-East Hertfordshire drew attention to the astonishingly low compliance with fixed penalty notices in New South Wales. Those notices were issued for carrying weapons, and the rate of non-payment was in the region of 92 to 95 per cent.

Fines are likely to be paid if the system of penalties works and is respected, as it does in relation to cars. As the hon. Member for Southwark, North and Bermondsey said, if a car owner is fined because he does not have a licence, he is likely to pay because there is some leverage over the car owner.

The offences of

``Destruction of, or damage to, property without lawful excuse'',

``Threatening, abusive or insulting words''— a distinction should be drawn in the case of lawful demonstrations—are different from the other offences. They are likely to involve acts of violence and to be committed by people who ignore fixed penalty notices, even if they can be served when the offence takes place.

Although offences such as

``Throwing stones etc at trains or other things on railways''

``Throwing fireworks in a thoroughfare'' involve a degree of violence, they are minor misdemeanours that are likely to be committed by children. It would be appropriate to punish those crimes with a fixed penalty notice, although the Bill does not apply to people aged under 18. That is a pity, as I do not imagine that many adults commit such offences.

Adults who engage in the destruction of property or in threatening, abusive or insulting behaviour are likely to belong to a class of offender that does not respect fixed penalty notices, in which case they will have to be taken to court.

My hon. Friend the Member for North-East Hertfordshire made it clear that those are serious offences, and that is another reason why it is not suitable to deal with them by means of the fixed penalty notice. That is not a serious enough punishment for people who have destroyed property or engaged in insulting behaviour that is likely to cause ``harassment, alarm or distress'' in the proper sense of those words. Such people should be charged and taken to court if the police find it necessary to intervene to the extent of issuing a notice.

I want to reinforce the point that was made by the hon. Member for Southwark, North and Bermondsey on the judgment that would have to be made about what constitutes

``Threatening, abusive or insulting behaviour''.

As he said, there was great concern about the policing of the visit of the President of China. Many people, including me, judged that the police overreacted to protect the President's sensibilities.

Photo of Roger Gale Roger Gale Conservative, North Thanet 11:45 am, 6th February 2001

Order. I have to say to the hon. Member for Southwark, North and Bermondsey that, although I have tried to be lenient, I cannot allow conferences to take place in the Gallery. If he wants to consult political advisers, he must do so outside.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I support the points that the hon. Member for Southwark, North and Bermondsey has made.

Amendment No. 24 seeks to include unlawful street trading, which lends itself to a fixed penalty notice. The offence is easily identifiable, and if the police are dealing with someone who is trading on the street, they can physically take hold of the person. The issuing of a fixed penalty notice will make it clear to such people that their activities cannot continue. There have been difficulties in moving street traders on in the royal parks, and regulations had to be introduced to deal with that. The provision would help the police and authorities to ensure that unwelcome, unlicensed, unlawful street trading is ended outside the royal parks.

For those reasons, I support the amendments. I would like to discuss further the difficulties of fixed penalty notices for the other offences in the clause stand part debate.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I join other hon. Members in welcoming you and Mr. Hood to the Chair, Mr. Gale.

I support the amendment that my hon. Friend the Member for North-East Hertfordshire moved, and want to talk about the problems that might arise were the Government's plans to go through unamended. I also want to highlight further what my hon. Friends have said about criminal damage. When I began my career at the Bar in the late 1970s, I spent much time dealing with criminal damage cases—like most young barristers, including my hon. Friend, who was on the same circuit as me, and, perhaps, the hon. Member for Southwark, North and Bermondsey and the Parliamentary Secretary, the hon. Member for Wyre Forest (Mr. Lock). When one is starting at the Bar, one has much work on circuit in magistrates courts, although there are fewer and fewer magistrates courts because of the Government's ridiculous policy of closure. However, you would not allow me to stray down that road, Mr. Gale.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Much of my work in rural magistrates courts, especially with juveniles, involved prosecuting and defending in cases of criminal damage. I must compare and contrast those cases, and especially the way in which police officers reacted then, with the position of police officers, especially those in cities, if the Government's proposals went through unamended.

We must examine the position of police officers on the street under the Labour Government. I received the latest edition of the magazine Police in my parliamentary post this morning. It includes an article by Martin Smith that I think is appropriate. It talks about the reality of policing under the Labour Government, especially in inner-city London, and has relevance to the Government's proposals on criminal damage. I can give an overview of the situation by quoting the heading: ``Too few police officers, broken down vehicles, defective equipment ... in down-town South America? An outpost of a Banana Republic that has spent its meagre budget too soon? Not a bit of it. This is how policing is in an Inner London police station in the year 2001. Martin Smith reports from the Front''.

Mr. Smith talks about ordinary individuals who might want to report an offence such as criminal damage—or anything else—to the police, as law-abiding citizens are encouraged to do. To analyse the Government's proposals, we must ask whether their fixed penalty scheme would be workable. We doubt that it would be, because of comments by serving police officers in such articles.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I will in a moment, but I think that before he responds, the Minister should hear about the situation that four years of Labour Government have caused. The article, by a serving police officer, says:

``It's a shambles. What kind of an image does it portray to the public when they run to a police station to report...to find it shut and are told to telephone the crime in? Police stations used to be seen as safe havens. More often than not now it is a derelict building with a `closed' sign on the front door and police officers are phantom figures tucked away in some Super Nick that the public have never heard of and will probably go nowhere near...It's the same with the control room. When we had our own control room on the ground, I would be in and out half a dozen times during the course of a night. I would talk to the CAD staff and from them I would know exactly what was happening anywhere on the ground and where each officer was. I can't do that any more. I don't know what's happening on my own ground and I am the supervisor of nothing and nobody.''

That is the reality of policing under a Labour Government in our capital city in 2001. I invite the Minister to apologise for the appalling situation that his Government have brought about.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Is my hon. Friend aware that, although the Minister has told us that, in London, 31 police stations have reduced their hours since the Government came to power, the Government do not know how many have closed? They have no idea about the rest of the country, either.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

My hon. Friend is absolutely right. The problem is that we are talking about having to make do and mend and patch up the criminal law. How can the Minister say that police on the front line will be able to operate the new fixed penalty system, when they have been reduced to struggling as described in this month's Police magazine?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I had not intended to comment on police stations, as it is not entirely within the matter under discussion. Let me inform the hon. Member for North-East Hertfordshire—the data are published in parliamentary answers—that more police stations closed, and at a faster rate, under the Conservative Government than under this Government. Opposition Members have spoken with hostility about fixed penalty notices. Do they think that they should apply only to the offences in the amendments, or that there should be no fixed penalty notices at all?

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I am talking about the amendments. We are trying to improve an inadequate Bill and inadequate law and order position. It is the Opposition's responsibility to say that the Bill is not particularly wonderful, but that our amendments would improve it. The Minister was completely unable to answer the question put by my hon. Friend the Member for North-East Hertfordshire. The Government do not know the answer or have any up-to-date figures. It is a disgrace.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. I am trying to allow a flexible debate, but we are moving wide of the amendments. I told the hon. Member for Surrey Heath that we can have one stand part debate. It can be now or later, but not both.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I will take your guidance, Mr. Gale. We would prefer to have the stand part debate later.

It is not only the Conservatives who have reservations: the hon. Member for Southwark, North and Bermondsey has reservations about how this part of the Bill will work in practice. Inevitably, it is part and parcel of analysing the Government's proposals to ask whether the people who will implement the new system will be able to make it work. Articles such as the one that I quoted suggest that it will not work.

We think that the Bill can be improved. I support amendment No. 24, on unlawful street trading, although I do not want to elaborate on that, because my hon. Friend the Member for North-East Hertfordshire dealt with it fully. There are serious weaknesses in the Bill that our amendments would improve. I am concerned that the Government have not realised the seriousness of the problems that they have created in policing, particularly in our cities and towns.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

Many valid issues have been raised, but in my response I do not intend to deal with the level of policing, beyond mentioning that crime is falling and police numbers are rising, which is good.

The amendments concern the list of penalty offences in subsection (1), and in particular the offences of criminal damage and offences under section 5 of the Public Order Act 1986, which include illegal street trading. The Government intend to support amendment No. 9, to obtain an affirmative resolution debate on extension of the list.

The amendment would remove the offences of criminal damage and public order from the list so that no penalty notice could be issued for them. Unlawful street trading would also become a penalty offence.

In respect of criminal damage, the offence included in subsection (1) is that under section 1(1) of the Criminal Damage Act 1971 and concerns the destruction of, or damage to, property without lawful excuse. The hon. Member for North-East Hertfordshire will appreciate that we have deliberately not included the more serious offence under section 1(2), where life is endangered either intentionally or recklessly, because that is unsuited to the penalty notice scheme. We intend the Bill to catch behaviour at the less serious end of the spectrum where the damage caused is the result of disorderly or antisocial behaviour. We do not intend it to apply where the serious criminal sets out deliberately to destroy or severely damage the property of another person.

I appreciate that the offences listed in subsection (1) encompass a range of behaviour. For that reason, we shall issue advice on the operation of the Bill to the police to make clear the type of offence that the scheme is designed to deal with. In particular, we shall draw attention to the need to consider carefully, before issuing a notice, whether, if the case went to court, a compensation order might be made in favour of the owner of the damaged property. In such a situation, it might be preferable for the case be dealt with by other means.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 12:00 pm, 6th February 2001

The offence under section 1(2) of the 1971 Act is very serious. It is an indictable offence that often involves arson and the like. The Parliamentary Secretary suggested that it was wrong to protect victims through compensation—which is the main aim of the amendment—because they do not pay up. Do the Government seriously think that we should not try to protect victims because defendants will not pay?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I am sure that that was not my hon. Friend's intention, and I do not think that the hon. Gentleman accurately represented his view.

The scale of the situation is suggested by the fact that compensation orders were made in 51 per cent. of criminal damage cases where a conviction was recorded. Some 28,000 offenders were cautioned for criminal damage in 1999, and no compensation was possible in those cases. That is a substantial number and requires careful examination.

The hon. Gentleman also suggested that there are differences in how the fixed penalty notice revenue might be achieved. A fine can be registered against an individual of one and a half times the penalty, if no trial is requested. The fine is enforced by the magistrates court, like any other fine or compensation order.

The hon. Gentleman also mentioned New South Wales. Although I read the document carefully when it arrived, it was not at the forefront of my mind until he referred to it. I am advised that the experience in New South Wales is not transferable. There, the penalties were equal to the maximum that a court could impose, which, of course, would not encourage payment. We will have different levels of payment for the reasons set out in the Bill.

We acknowledge that there is an issue about compensation, but we believe that guidance to the police can effectively cover the point that has been made. We should not restrict the remit of the Bill in the way that has been suggested.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Does the Minister agree that a police officer on the pavement should not have to consider compensation when dealing with particular circumstances? He might have to make a subjective judgment. For example, a council will have a system for cleaning up spray-paint damage to a council building, so the police officer can proceed with fixed penalty measures, but compensation is appropriate if the damage is to the window of a privately owned car. Is that not exactly the sort of issue that a court should decide, and a good reason for having a court-based rather than a street-based justice system?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I know that the hon. Gentleman likes soundbites, but it is important to emphasise that individuals who are charged can choose whether they wish to go to trial. We will come to that when we discuss later clauses. There is absolutely no qualification: if people prefer not to be dealt with under the fixed penalty notice procedure, then they do not need to be. That is one of the fundamental reasons why it is not true, as he suggested, that the process gives all the cards to the police and none to the citizen. As we set out in clause 3(3)(g), the notice must make it clear that the suspect has the right to trial and thus all the rights that he has now.

Regarding the inability of the poor to pay on time, we believe that there is flexibility in the situation. The hon. Gentleman discussed potential police victimisation. Police officers already have discretion in how they deal with offenders. They can charge, caution or move on someone whom they find committing an offence. Fixed penalties are simply an additional power in the repertoire that is already used professionally by the police. We do not accept the charge that this is a charter for incompetent police, which is what has been suggested.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Will the Minister point to a provision that gives flexibility regarding the means of a defendant and the time allowed to pay?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

When a fine has been registered, the enforcement court has discretion to allow payment in instalments or to set aside the fine in the interests of justice. We will debate those provisions at greater length when we come to the relevant clauses, but I believe that there is flexibility.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

On the compensation point, the Minister must accept that if someone decides to pay a fixed penalty notice within the given time, there is no criminal conviction, and that is the end of the matter. The recipient of the fixed penalty notice makes a decision that precludes the compensation option, and the range of penalties from which a court would be able to choose in other circumstances is inhibited.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

In a narrow sense, the hon. Gentleman is correct, but the true situation is that in an average year there are 28,000 cases where there is no compensation of any kind. I am sure that he can point to many areas in his constituency where there has been damage to street furniture, for example, where no compensation has been paid for a variety of reasons. We are clear that where such activity takes place, there should be a penalty. That is why we included the provisions in the Bill.

The offending behaviour covered by section 5 of the Public Order Act 1986 includes

Threatening, abusive or insulting words or disorderly behaviour within hearing or sight of person likely to be caused harassment, alarm or distress.

I emphasise the words ``harassment, alarm or distress''. Again, that seems to typify the behaviour to which we would like the new scheme to apply. The description of the offence even includes the words ``disorderly behaviour''. It does not seem logical deliberately to omit it from the list before there has been a chance to see how it works in practice. I assure the hon. Gentleman that we intend to issue guidance to the police on this issue, as on the others set out here. We consider that the offence is important enough to be a penalty offence.

Amendment No. 24 concerns unlawful street trading. The hon. Gentleman was right to cite the letter from the Association of Chief Police Officers. In response to our consultation document, Sir Edward Crew, on behalf of the association, said:

``There is much support for extending the fixed penalty notice system to include other non notifiable offences, for example unlawful street trading, which can attract large audiences in busy market areas, providing an ideal environment for pickpocketing and street robberies.''

The response goes on to talk about the practice in Amsterdam, as part of the Streetwise initiative, which focuses on such matters. I see the merit in his argument. I am an aficionado of ``The Bill'', as many people with young children are likely to be, and I know that you, Mr. Gale, are a keen advocate of watching the media on such matters. You might have seen the battle of the hot dog stalls that featured in that programme last week. It was a particularly appropriate illustration of this point.

We considered the views of a wide range of organisations—perfectly legitimately put—about what should be in and out of the list, and concluded that we should not include offences with a financial motive in the scope of the penalty notice system, which should focus specifically on disorder. That is why the list of offences that we have established is as it is, and why—although it is perfectly reasonable—we disagree with amendment No. 24. We felt that penalty notices for such offences, which principally involve financial recoupment, might result in the perpetrator seeking to recoup the cost of the penalty through increased activity elsewhere. We did not consider that the point put by ACPO and Sir Edward Crew was not legitimate, but we felt that we should concentrate on disorder offences.

Photo of James Gray James Gray Conservative, North Wiltshire

I am unclear about what the Minister means. We have a case in Chippenham where the hot dog stall will not move. If the police were to serve a fixed penalty notice on that stall day after day, it would not matter if it recouped the cost from elsewhere. Why is it such a bad thing? What is important is the public disorder offence. The smell in Chippenham high street is unspeakable.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I am sure that the hon. Gentleman will aggressively address the smell in Chippenham high street. Hot dog traders are principally in business to make money; it is not principally a matter of disorder. Disorder may be a side effect of their money-making activity, and he gave a reasonable example. We are not profoundly opposed to the inclusion of that offence. Sir Edward Crew gave good reasons why it should be considered, with examples from elsewhere, but we decided that, in light of the public controversy in the area, we should focus on disorder.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Given what the Minister said about his disorder-centred approach, can he explain how the ``threatening, abusive or insulting words or disorderly behaviour'' offence would bite in many of the circumstances that are pictured as those where the penalty is most needed. Anyone passing a pub in the Old Kent road at 2 am on a Saturday or Sunday knows the score: life is not peaceful, gentle and trouble-free. Nobody is likely to be ``caused harassment, alarm or distress'' because they would not be there if they expected a quiet journey home. It is unlikely to be a provable offence in the circumstances that are most often presented as those in which the Government would like to use the fixed penalty notice.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

There is a variety of different circumstances in which the penalty could be used. The hon. Gentleman is right to focus on

``behaviour within hearing or sight of a person likely to be caused harassment, alarm or distress''.

That may or may not be Friday and Saturday nights in inner-city centres where there has been a lot of drinking. He may be right that, in those circumstances, the police would judge that the people there are unlikely to be caused distress, but there are other imaginable and real examples, perhaps from his own constituency, where people on estates are exceptionally offensive and cause serious distress and harassment to people living their lives peacefully, and not necessarily at 2 o'clock in the morning.

Photo of Geraldine Smith Geraldine Smith Labour, Morecambe and Lunesdale

Would one such example perhaps be that, in Morecambe, young thugs often sit outside drinking cans of lager and shouting abuse at tourists in nearby guest houses? They cause a lot of harassment to those holidaymakers and affect business in the tourism industry.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office 12:15 pm, 6th February 2001

My hon. Friend gave a better example than I did. It is an excellent example of precisely the kind of case involving alcohol that the hon. Member for Southwark, North and Bermondsey described, but in which people are caused distress through no fault of their own.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

It occurred to me during the intervention by the hon. Member for Morecambe and Lunesdale that one of the reasons why such incidents still happen is the failure of the Government's antisocial behaviour orders. In my constituency, even where there is a willingness to start thinking about an ASBO, as they have been called, the bureaucracy is so enormous that everyone is put off. That is why there have been so few ASBOs. The hon. Member for Gedling (Mr. Coaker), who is sadly not on the Committee, has repeatedly attacked his own Government for making ASBOs far too complicated.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

The hon. Gentleman's comments are absurd. I will not give them the dignity of a response, because there is no logical connection between one's view of the success or failure of particular previous measures and a view on the likely success of the proposed measures. We have had this debate on many occasions, and I do not intend to repeat the arguments now.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I understand the Minister's point about unlawful street trading being a different kind of offence, but does he agree that, if someone as important and knowledgeable as the chief constable of West Midlands police, speaking on behalf of ACPO, says that unlawful trading areas are sites for street robberies and that fixed penalty notices could affect that, we should tackle the problem? That is particularly important because street crime is soaring. It is not good enough for to say that that is a different category. Will he address that more fully? Why does it matter that there is a commercial aspect to it, if we could tackle that sort of offence with fixed penalty notices?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I am prepared to reflect on the point further, as I said earlier. I was seeking to explain the rationale behind the list that we established, because we have received a wide range of suggestions from different organisations about offences that could be included. I am ready to think again about the hon. Gentleman's point and see whether we might consider widening the scope in the way that he suggested. The Bill has focused on disorder rather than on other aspects, and that is why the offence is so defined. I urge the Committee to reject the amendments if they are pressed to a Division.

I apologise to you, Mr. Gale, and to Committee members because, as the Opposition know, I have to leave at 12.25 pm to respond for the Government in an Adjournment debate in Westminster Hall. My hon. Friend the Parliamentary Secretary will deal with any points that arise on the amendment if we do not conclude by that time.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

The Minister did not really respond to my point that criminal damage is a serious offence. There is a serious offence under subsection (2), but the offence under subsection (1) is also serious. The groups that I mentioned earlier, such as the Association of Chief Officers of Probation, are not known as hawkish bodies, but they made it clear that they believed that criminal damage is often part of a serious offence that has a direct victim. We must not think that a fixed penalty notice is a tough disposal. For several reasons, it is softer than being sentenced in court by a magistrate. It does not lead to a criminal record; it is convenient to the offender; and it does not involve public knowledge of the offence. We should not think, ``Gosh, we have these tough new fixed penalty notices.'' They are useful for marking offences, but they are not suitable for dealing with serious offences. Criminal damage is too serious to be dealt with in that way.

On compensation to victims, the Minister's information reinforces the point that I and my hon. Friend the Member for Surrey Heath made. If 51 per cent.—more than half—of cases in magistrates courts involve compensation, it is wrong to give a police officer the discretion to take compensation away from the victim. The Minister knows that I have the highest respect for police officers, but I become suspicious when we are told that a matter will be dealt with through guidance. That is to concede that the law that is being made is not adequate on its own and needs to be supplemented to achieve its purpose. I thought that he was unconvincing about that.

The Minister mentioned the proportion of cases in which cautions are issued compared with the proportion that go to court, but did not seem to say that the fixed penalty notice cases would be additional. I thought that the Government wished to introduce fixed penalty notices for the class of case that is not currently dealt with or even marked. The Bill would then add something new. However, he did not suggest that that would be the case for criminal damage. The serious offence of criminal damage will be downgraded if it is treated as the Bill proposes. [Interruption.]

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. I have already said that I do not expect communication between the Floor and the Gallery. I do not want to have to say so again.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Thank you, Mr. Gale.

Criminal damage is downgraded if it is treated in the same way as a parking offence. The proposals would deprive victims of compensation without good reason, and the Minister has not suggested any additionality in terms of law and order. Unless he renounces his opposition to the amendment, we will press it to a Division.

The Minister went some way towards reassuring me about threatening behaviour, although I was not entirely convinced. We do not intend to press amendment No. 22 to a vote. We want to divide on amendment No. 24. If ACPO, through Sir Edward Crew, says that adding such offences to the list would be a useful way of tackling pickpocketing and street robbery, I argue that we ought to do so. I do not think that my argument has been seriously challenged—the Minister clearly needs more time to think about it. We want to vote on amendments Nos. 21 and 24.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Division number 2 Adults Abused in Childhood — Clause 1 - Offences leading to penalities on the spot.

Aye: 5 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed, No. 24, in page 2, line 27, at end insert—

`paragraph 10(1) Schedule 4 Local Unlawful street trading'.— Government (Miscellaneous [Mr. Heald.] Provision) Act 1982

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Division number 3 Adults Abused in Childhood — Clause 1 - Offences leading to penalities on the spot.

Aye: 5 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

On a point of order, Mr. Gale. The Minister said that guidance will be issued in respect of clause 6. Clause 3 says that the Secretary of State may specify by order the amount of the penalties and the form of the penalty notice. Has the Minister offered to tell the Committee, before we reach those clauses, what penalties are envisaged under the order-making power in clause 3 and what draft guidance he has in mind under clause 6? Is there any assurance that the Committee will be able to debate those matters with full knowledge of what is being proposed?

Photo of Roger Gale Roger Gale Conservative, North Thanet

As the hon. Gentleman well knows, information provided by the Government is a matter for them, not for the Chair. I always take the view that the more information can be provided to both sides, the better. I am sure that the Government heard what he had to say.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 9, in page 2, line 36, leave out subsection (5) and insert—

`(5) No order shall be made under subsection (2) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.'.

The amendment would provide for the entries in subsection (1) to be amended only by using the affirmative resolution procedure. The Minister kindly said before he left for his engagement that he was prepared to accept it. I welcome that important concession, but I have a couple of points for the Parliamentary Secretary.

The offences for which fixed penalty notices are suitable are at the bottom end of the scale and are not serious. We do not want administrative disposal of more serious cases, especially those involving crimes such as assault or the more serious public order offences, because of the effect on respect for the criminal justice system when slight measures are taken after serious offences. There could be a temptation to clear up offences by serving fixed penalty notices that do not involve large sums rather than making the defendant go to court. That would keep the prisons clearer. There would be advantages in some ways, but disadvantages in others. It is important to take a firm stance on law and order. The Government have not achieved that with measures such as their early release scheme for prisoners.

The use of devices to reduce the prison population or short-circuit the courts poses problems, not least because it would embolden the criminal and fail adequately to support the victim.

Previous Bills containing order-making powers have included such lists. I was involved in discussions on such a Bill last year, and I recall that, even as we were debating the offences to be included in the list, the Home Office had contacted other Departments to find out whether they wanted particular offences to be included under the order-making power at a later date. Has such an exercise occurred in respect of the sort of offences that are dealt with under subsection (1)? Has the Home Office contacted other Departments to find out whether they would like fixed penalty notices to apply to any offences?

The Association of Chief Officers of Probation said that it had doubts about including threatening behaviour and criminal damage. It also said that certain other offences, such as urinating in public and failure to have a television licence, should be included in the list because they are not particularly serious matters and they clog up the courts, so a simple disposal might suit them.

Has the Minister taken any steps to discover whether other Departments might want any other offences to be added to the list? Has he received representations from bodies other than ACOP suggesting offences that might be included? If so, what are the proposed offences, and why have they not been included?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs) 12:30 pm, 6th February 2001

I support the amendment and I am glad that, as the Minister said earlier, the Government are minded to accept it.

It is important in a controversial area such as this that, if a new offence is to be added to the list, it should be accompanied by a guarantee that it will first be debated and approved by both Houses. That is the purpose of the amendment, and it is sensible.

I tabled an amendment that was not selected: I am not criticising that decision because I understand that it would have come close to opposing the purpose of the clause, but it would have been better to have started with the principle and to have debated whether to extend the range of notices, and for the Government to have made specific proposals only after debate in both Chambers and in Committee.

There is a danger in this way of addressing the matter. The Government put a list on the table, albeit after some consultation, but it is a hit and miss list. It has been based on the principle of disorder, and therefore precludes, for example, the unlicensed activities that were discussed in the previous debate, the inclusion of which was supported by the hon. Members for North-East Hertfordshire and for North Wiltshire (Mr. Gray). I supported it, too.

It would have been better to have had a general debate about the principle and the criteria for the inclusion of offences. If hon. Members believed that the right process had been found, those criteria could have been applied. Then it would have been open to Ministers to make changes by way of secondary legislation that could have included one, five or 10 offences, which might have had more widespread parliamentary support.

I agree with the proposal of the hon. Member for North-East Hertfordshire on television licences. In a crucial respect, it is different from urinating in public. Not everyone owns and uses a television. It is like driving: most people do it but it is not compulsory. If one decides to have a television, one opts into a system. That would be a better subject for fixed penalty notices. My colleagues and I believe that failing to buy a television licence should not be a criminal offence, because non-payment cases clog up the courts and the offence could be dealt with by civil penalties in the normal way. A halfway house would be a fixed penalty notice, which would be easier to operate and could involve cumulative fines and other penalties for non-compliance.

I support the general principle of the amendment and I am glad that the Government have said that they are likely to accept it. I hope that the Minister will be positive when he examines the proposals, specifically in relation to television licences. I realise that this is a cross-departmental issue but it would be helpful if that could be examined. Proposals to change the way in which we deal with such matters would be welcomed by the police, by the courts and by the public at large.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Does the hon. Gentleman agree that fixed penalty notices also have the benefit that, as with motoring offences, there can be no real dispute about the identity of the person concerned? Inevitably, one must know who the householder is to find out that he or she has not got a television licence: the person's home clearly provides the identity. The other aspect is that such people—a more general cross-section of society—are more likely to pay. Therefore, the administrative costs of the fixed penalty notices are likely to be lower, as well as saving the courts a good deal of repetitive, time-consuming work. Does he agree about those three advantages?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I agree absolutely. Television licence payment defaulters might also be, for example, council tax or rent defaulters. There is an obvious list of the various things that go with home ownership and occupation of property and it would be sensible to deal with them in the same way and place. They are normally dealt with in local county courts, but sometimes a special petty sessional divisional court will deal with a summons for non-payment of council tax.

The hon. Gentleman's proposals should be widened to examine the matters that could be dealt with together in a way that would make fine collection easier, the courts' burden lighter and the process by which we ensure that people pay their dues to society—both local authorities and the BBC are public institutions—more streamlined. If there were time for that to come out of the Bill, it would be of benefit.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Like my hon. Friend the Member for North-East Hertfordshire and the hon. Member for Southwark, North and Bermondsey, I welcome the fact that the Minister has responded helpfully. However, it is appropriate to mention that it is rather odd for one Minister to outline the position and leave another to respond to the debate. It is important to put it on record that, if the Government were to get rid of the wholly unnecessary Westminster Hall innovation, we would not have Ministers rushing away from a Committee on important legislation. They would be here to carry through their undertakings.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

I will not answer that last point because it is plainly not a matter for the Committee. I will deal with the points that were in order.

The hon. Member for North-East Hertfordshire asked whether a trawl was carried out in the Departments to find out whether they have any offences in their back pockets that they would like to include in the fixed penalty scheme. The answer to that is no, but we are open to suggestions, both from Departments and from outside, on what to include in the scheme of further offences that contribute to public disorder, since that is the main focus of the scheme. The Government do not have a monopoly of wisdom on the matter, and suggestions from interest groups or hon. Members will be carefully considered.

The hon. Gentleman asked what representations were made, and why certain offences were included or not included. My hon. Friend the Minister explained that the focus of the fixed penalty notice is disorder, and that is the rationale for the inclusion of offences.

The hon. Gentleman raised the issue of urinating in the street. That is clearly unpleasant behaviour, but it is not currently an offence under any law that applies throughout England and Wales, although it is an offence under certain local authority byelaws. It would be administratively complex to devise a national fixed penalty notice scheme that would apply to a local authority byelaw that applies in some parts of the country but not in others.

Without being too presumptuous, one may ask why individuals urinate in the street. They may be committing an offence under section 91 of the Criminal Justice Act 1967:

``Disorderly behaviour while drunk in a public place''.

A matter that cannot be included in a local scheme may be introduced in a national scheme.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

The Parliamentary Secretary says that disorderly behaviour is being targeted, but given the wide ambit of the Bill, there is no reason why other offences could not be included. An offence may be found for which it would be convenient to have a fixed penalty notice scheme, perhaps to save court time. Is there a reason, other than the personal preference of Ministers and the Home Secretary's general theme of yob culture, why useful work cannot be done in the Bill?

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

One of the results of close co-operation between Departments is that I am in the Committee representing the Lord Chancellor's Department, with responsibility for running the courts. Naturally, I have an interest in ensuring that magistrates court or Crown court time is effectively used for issues that are of sufficient gravity to justify it.

It is right that the penalties are being considered in the context of disorderly conduct. As the hon. Gentleman noted, it is also right that the ambit of the Bill could be wider and should not be limited by that policy. Any extension to the ambit must be considered case by case. I do not rule out any extension that is appropriate to a particular case.

I have heard the points that have been made about television licences, and understand that in some cases a fixed penalty notice may be appropriate. That will be discussed with the Department for Culture, Media and Sport, which has primary responsibility for TV licences. In due course, if appropriate, the order-making power may be used to carry the matter through, in appropriate circumstances within the TV licence regime. It may not be right for all TV licence evasions, but it may be right for some.

Photo of James Gray James Gray Conservative, North Wiltshire

I am sorry to bring the Parliamentary Secretary back to the less savoury subject of urinating in the street. He said that it would be difficult to apply fixed penalties to that offence as it is regulated by local byelaws. However, surely that is exactly what happens with fixed penalty notices for parking. They vary between local authorities, and the fixed penalty notice system works perfectly well.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department 12:45 pm, 6th February 2001

It works well as part of the system of local byelaws. The problem is not that the offence is an offence under local byelaws; the problem is attempting to superimpose a national system of fixed penalties on to a series of discrete local offences that would be worded and fixed differently. For example, under clause 3, the amount payable in respect of a penalty is fixed by the Secretary of State by order. Clearly, fixing an amount that was different in Surrey from what it was in Hertfordshire would be extremely complex. That is the problem.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Is it really so difficult? Looking at clause 3, one can simply make the penalty a proportion of the maximum penalty in place in each byelaw. The words ``byelaws dealing with'' could be added under clause 1. I do not see why it is so difficult. Why does the Minister not simply make a new offence of urinating in public and then put an entry in clause 1(1) stating that that offence will be dealt with by fixed penalty notice? We can change the law, so let us do it if we need to.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

I am always cautious when someone rises and says, ``The simple answer is to change the law. If we introduce this offence, we will solve all the problems raised by this particular concern.''

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Hall Green

I urge my hon. Friend to exercise a degree of caution. I confess that my four-year-old son occasionally finds himself caught short in public. I would hate to have a fixed penalty fine applied to him in those rather desperate circumstances.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

I am grateful to my hon. Friend for that example. Before we introduce a new blanket criminal offence, we would have to give the matter much more thought than is possible in a Committee such as this. I am sure that hon. Members expect the Government to make proposals that have been properly formulated with proper consultation.

Photo of Ms Helen Clark Ms Helen Clark Labour, Peterborough

Following on from the comments of my hon. Friend the Member for Birmingham, Hall Green (Mr. McCabe), would it not be possible to insert an age limit elsewhere in the Bill?

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

That is a possibility, and I will ensure that my hon. Friend the Minister of State is made aware of the exchange.

The amendment deals with whether subsection (5) should be changed so that positive resolution procedure was required. I am happy to say that the Government will consent to that amendment.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I am very pleased with that concession, but I would like to tempt the Minister a little more on the two issues raised by the Association of Chief Officers of Probation. We have had some amusement about urinating in public places. However, given the diseases that can be transmitted in that way, it is important that we should not have urine all over our streets. I am not saying that we do, but anyone who wants to urinate in the street should be dealt with by the procedures. I do not see a problem with having a fixed penalty notice for such an offence.

I agree with the hon. Member for Hall Green that we do not want penalties for children who are caught short. I do not want to discuss my children's activities, but I take his point.

I agree with the suggestion of the hon. Member for Peterborough. It cannot be beyond the wit of an important Department such as the Lord Chancellor's Department to create an offence of urinating in public with an age consideration. It seems to me that if ACOP asks us to do something that is not absolutely daft, which this does not seem to be, we should respect its experience and knowledge and at least make an attempt at it.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The matter was an agenda item at a recent residents association meeting at Elephant and Castle. Every male aged over 18, including me, admitted to having done it when caught short. I am sure that that is true of every male in this Room. Women do not have the same problem because they have much better control. We must be cautious about making it a criminal offence because anyone could be caught. The answer is more accessible public toilets, not more offences.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. I do not want to stifle debate, but the amendment is general and our debate is becoming specific. Hon. Members have said that they want a clause stand part debate. If we could dispense with the amendment, we could deal with other matters arising from the clause in such a debate.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

As ever, I am happy to accept your guidance, Mr. Gale.

The hon. Member for Southwark, North and Bermondsey made a point and the Minister agreed to consider it. The amendment requires no further debate.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

There are some points that were not covered in our consideration of the amendments. First, there are the cost implications. Paragraph 352 of the explanatory notes states:

``Additional public expenditure is unlikely for the on the spot fines proposals. There will be costs in managing and enforcing on the spot fines but these should be offset by fines revenue and savings of police time. The overall savings/costs incurred will also depend on whether the scheme is used chiefly to divert cases from court or to deal with offending that is currently the subject of a caution or an informal warning. It is not certain whether the saving in police time will feed through to a reduction in public service manpower (police) or whether fixed penalty notices might need more staff.''

It is important to know what the Government's strategy for fixed penalty notices will be. We have heard little about it. I suspect that the proposal is half-baked. It would be useful to know whether the Government want to give people fixed penalty notices instead of cautioning them or to save court time by diverting cases that would otherwise have gone to court. It would also be useful to know why they believe that police time will be saved. None of those matters has been made clear. I want the Minister to give detailed answers about the strategy.

The inner London magistrates court service made several points in its response to the consultation. It noted:

``Fixed penalty notices are'' normally

``handled by IT systems linking the Police who issue them and Fixed Penalty Clerks who collect payment...it may be necessary to enhance or redesign these systems if new forms of Fixed Penalty are introduced.''

It thought that there might be benefits, and that

``a substantial volume of notices/payments can be handled at comparatively little additional cost'' but was worried about the number of defaulters and how that problem would be tackled. It felt that the Government's estimate that 40 per cent. of fixed penalty notices would be paid was ``very optimistic'', given the likely perpetrators of the loutish behaviour that the scheme appears to be aimed at. Overall, it was

``not convinced that the proposals have been sufficiently thought through,'' or that the consultation period was long enough to allow mature reflection on a major initiative. It urged caution and wanted to know whether there had been joined-up thinking.

The Criminal Bar Association raised several issues. Its response to the consultation stated:

``There must be significant resource implications arising out of the need for a system to deal with non-compliance.''

It highlighted non-payment after the issue of a notice, the giving of false details and the non-provision of details.

The first raft of issues concerns whether the operational infrastructure for dealing with fixed penalty notices is in place and whether the cost of IT changes has been thought through.

The Police Superintendents Association is worried about police time. It says that if officers had to make a full witness statement in each case, officer time would not be saved and officers would not return to the streets any quicker than they do now. It adds that if all that was required was a simple comment such as

``found in the street drunk and incapable'', it would save considerable time. However, the association did not think that that was what the Bill proposed. It was not sure whether full statements from constables would be required.

That point was also made to me by Fred Broughton, the chairman of the Police Federation. He is worried about whether the procedures involved will save police time or whether things will be much as they are now. I want the Minister to say whether police time will be saved, and to comment on administration costs.

A further 10 issues were raised by the Criminal Bar Association. The first point was mentioned by my hon. Friend the Member for North Wiltshire, but you, Mr. Gale, ruled that he should not pursue it further before clause stand part.

The association states:

``Disorderly drunks are by definition not in a fit state to be served with a legal document with penal consequences.''

That comment is based on its legal appreciation of the situation. It says that it would be wrong in law to do it. It would not be a sensible or fair opportunity to issue a penal notice. What does the Minister say to that?

Secondly, the CBA asks:

``Is it possible for service of a fixed penalty notice to help put a stop to anti-social behaviour? Or will it simply aggravate a situation requiring `fast action'?''

With its experience of numerous court cases, it fears that the service of such a notice on the street could lead to worse, rather than better, behaviour.

Thirdly, the CBA asks:

``What will the effect on the criminal justice system be if notices are ignored?'' and says that they should not be considered as being similar to parking tickets.

What is the Minister's answer to that?

Fourthly, the CBA asks how it is envisaged that a person's details—name, address, date of birth and so on—will be verified on the street.

Fifthly, the CBA says that a person would have to be warned of the consequences of non-provision of details under the Human Rights Act 1998. There would be human rights implications if people were not given a warning. What steps are being taken to ensure that such warnings will be given if necessary?

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.