With this it will be convenient to take the following amendments: No. 23, in page 3, line 15, leave out from `than' to end of line 16 and insert `£100'.
No. 78, in page 3, line 15, leave out `half' and insert `one quarter of'.
We have now reached the debate on the amount of the penalty and the form of the notice. This is a simple probing amendment, suggesting that there should be a fixed maximum. As it stands, the clause allows the Secretary of State to specify the maximum penalty by order. It then qualifies the amount that can be specified by limiting it to a tariff linked to the maximum fine for which someone would be liable if convicted of the offence, and proposes that the fixed penalty notice should be no more than half of what the fine would be. It also goes on to other matters that we can debate later, including the provision that the order would need to be laid before Parliament on a negative resolution procedure, to be prayed against rather than affirmed.
I propose that there should be a maximum £50 fine to test what league we are in. I suspect that this is also why the Conservatives have proposed a maximum of £100. I am concerned about this for the reasons that I gave earlier. The danger of this system is that it seeks to penalise people, or put them in a position where they will be penalised, irrespective of their means. Although £100, £200 or £300 may be nothing to some people, it is a huge amount to others. The possibility of imposing a fine that is beyond the reasonable means of the person given the fixed penalty notice brings the whole system into disrepute.
What happens to someone who has no spare money at all? Let us take the extreme example of an asylum seeker who receives a voucher, has no money or access to money, is not allowed to work and receives no benefits. How does such a person get hold of the £50, £100 or £200? How does someone on the minimum amount of benefit suddenly find that money within the appropriate period, other than by borrowing it or stealing it? Because this system is so geared to the well-off, the person who can simply pay his way out of trouble, and so geared against anyone who cannot do that, we need an extremely low penalty. People who go on offending will get several very low penalties.
I ask Ministers to be absolutely clear about what the maximum is. As I do not have the information readily available, and the Minister has all his civil servants to provide the answers, could he tell us the current maximum fine for all the offences in the list are so that we can know exactly what we are talking about if the Government propose that there should be the ability to pay up to half the fine? If it is more than £100, it is certainly unacceptable. I hope that it is no more than £50.
We were discussing what happened with the public order offences that were dealt with by fixed penalty notices in New South Wales. One of the conclusions in the reply from the New South Wales ombudsman to the Home Office consultation was that if the fines are too high, they simply are not paid. ACPO has said something similar. If one reads the mass of documents that the Minister has, as I have done, it becomes clear that the general feeling is that the right level to pitch the fine is between £50 and £100. That seems to be the view of ACPO. It is the view of the Inner London Magistrates Courts Service, so I hope that the Minister would agree that we are talking about that bracket. It would have been helpful for us to see in draft form the order that the clause allows the Secretary of State to make, setting out exactly what he has in mind. He may want different levels for particular offences, which would have informed our debate. As the Bill is being rushed through, however, we have not seen such an order.
Does the Minister agree that, if the penalty were pitched too high, collection would be a problem? There is also the worry that offences of seriousness will be dealt with by fixed penalty notice when they should not be, and that that would diminish the punishment effect. However, if penalties are too low, they are inadequate. There is a balance to be struck, and we need to know the Minister's intention. Amendment No. 23 suggests the other end of the bracket from the Liberal Democrat proposal of £50, based on the consultation responses.
Amendment No. 78 takes a different tack and would allow the Secretary of State to set fixed penalty notices at no more than a quarter of the level of the maximum, rather than half. I shall describe the effect of that for offences in clause 1. For example, under section 12 of the Licensing Act 1872, the maximum fine for being drunk in a highway would be £50. It would be £1,250 for throwing a firework in a thoroughfare and £625 for knowingly giving a false alarm to a fire brigade. It would be £250 for the next four offences—trespassing on a railway, throwing stones at trains, buying or attempting to buy alcohol for under-18s and disorderly behaviour while drunk. The fine would be a maximum of £625 for wasting police time. It would be £1,250 for the destruction of, or damage to, property without lawful excuse and for the telecommunications offence. It would be £250 for threatening, abusive or insulting words or behaviour and £125 for consumption of alcohol in a designated place.
If the Minister wants the level to be one half of the maximum, as the legislation provides, he needs to explain whether he is seriously saying that he would contemplate fixed penalties for some of those offences that were twice the figures that I have given. Is he seriously thinking of making it possible for a fixed penalty notice of £2,500 to be issued to someone? It would be wrong in principle to issue such a notice. An offence serious enough to have a £2,500 fine applied to it should not be dealt with by a fixed penalty notice, because we do not want serious matters to be trivialised. I hope that the Minister will reassure us that there is a reason why he needs the power to set fixed penalties, a lesser disposal, at potentially such a high rate. Our amendments would provide the Minister with options: a lower maximum level or less scope for the setting of fixed penalties.
My other question arose from a similar concern to that expressed by the hon. Member for Southwark, North and Bermondsey about the means of the accused person. Previously, the Minister said that, if someone were unable to pay a fine, it would be registered with a magistrates court, which could give time to pay under its enforcement jurisdiction. If an inappropriate notice is given to someone who does not have any means, is it right that the system's effect is for him to be fined one and a half times the amount of the fixed penalty notice? Is that not building on an initial failure? A fixed penalty notice may be imposed on someone without means, who does not pay the fine because he cannot. Is the answer to make the fine one and a half times its original amount and then say to the magistrates, ``Now, get the money out of him''? I have doubts about that.
How are such conundrums to be solved? Liberty is worried that the measure will discriminate against the most vulnerable in society. It says that it is
``likely to cause problems particularly for those with temporary housing or who are homeless.''
It asks whether those who are in debt and unable to pay the fine could end up being imprisoned. Crisis, the national agency for single homeless people, is worried that fixed penalty notices will particularly hit homeless people. On social grounds and on those of effective policing, is not it right to set the fixed penalties at realistic levels and have some means of avoiding unreasonable and unfair treatment of the most vulnerable in society?
When I first read the provisions that deal with the fines payable under the fixed penalty notices, I assumed that there would be a standard tariff. That would be the effect of the amendments tabled by the Liberal Democrats and my hon. Friend the Member for North-East Hertfordshire. I look forward to hearing the Government's thinking on such matters because the explanatory notes to the Bill state:
``Subsections (1) and (2) allow the Secretary of State to specify the level of the penalty for each offence up to a maximum of 50 per cent. of the maximum fine for the offence.''
If we are to have a system of cheap and cheerful justice without an admission of guilt, it would be better to have a standard tariff, which is why I am attracted to the amendment tabled by my hon. Friend. The first offence listed under clause 1 of
``Being drunk in a highway, other public place or licensed premises'' attracts a level 1 fine. My hon. Friend's two amendments are inconsistent, one saying that there would be a fine of £100 and the other wanting a fine of £50, so there would be a slight problem if the Government accepted them. However, given the Government's track record so far in listening to our side of the Committee, I doubt whether that will happen.
The Minister makes a good point. My approach is slightly affected by what happened in the Committee of the Bill that became the Armed Forces Discipline Act 2000. You will recall, Mr. Hood, having taken evidence on such matters when we served together on the Select Committee on Defence, that the Government refused to listen to anyone's advice during the entire proceedings. They went through the whole Bill rigorously without amending it. I remember the Home Secretary standing in the House saying that he knew of not one Bill that could go through parliamentary procedures and not be improved in some way. Well, I have been a member of a Committee when nothing in the Bill under discussion was amended.
I sincerely hope, Mr. Hood, that the Minister is not referring to me or implying that your chairmanship or that of Mr. Gale has been lacking.
A serious issue is involved. The offence of
``Being drunk in a highway, other public place or licensed premises'' rightly attracts a level 1 fine, whereas the offences of
``Using public telecommunications system for sending message known to be false in order to cause annoyance''
``Destruction of, or damage to, property without lawful excuse'' attracts a level 5 fine.
I want to pick up on the points made by the hon. Member for Southwark, North and Bermondsey. I disagree that the effect of the penalties will be exclusively at the cost of people who will have difficulty in affording them. The police will be able to make such judgments on the ground when deciding whether to levy a fixed penalty notice, accept a caution or take the person to trial. In principle, one of the advantages of fixed penalty notices is that they give local police who understand their area greater discretion in deciding the appropriate way to deal with people with whom they are involved. They will obviously consider the effect of a £100 standard fine, if that is ultimately specified in the Bill, a £50 fine or a tariff to be levelled by the Government by order, to ascertain what that effect will be.
For the system to work and be widely understood, it is important to set a standard tariff of £100 so that the police know what they are dealing with in respect of all the offences. If the offences are serious and attract penalties of up to level 5 in the scale, they are clearly not suitable to be dealt with under the fixed penalty notice scheme. They should go to trial, and people should receive a conviction if the offences are so serious that they would merit serious penalty.
I support the amendment tabled by my hon. Friend the Member for North-East Hertfordshire, which suggests £100. I hope that he will not press his other amendment—which would become nugatory if the penalty were specified in the Bill—unless the Government decline to accept the amendment suggesting £100, in which case I hope that they would accept my hon. Friend's amendment to change the amount specified from one half to one quarter of the tariff if different tariffs will apply for different offences.
I obviously exempt the hon. Gentleman from my general strictures. Throughout the Committee, he has tried to keep to the point of the amendments under discussion, and I appreciate that.
The hon. Member for Southwark, North and Bermondsey referred to discrimination against the most vulnerable in society. We must be clear that if the recipient of the penalty notice fails to respond to the penalty notice, a fine may be registered against him. If the fine is not paid, the court before which the individual then appears as a fine defaulter would be able to order payment of the final instalment if he cannot afford to pay it all at once. That will ensure that no one goes to prison because he cannot afford to pay the fine arising out of an unpaid fixed penalty. The Bill also gives the court the power to set aside the fine in the interests of justice. I do not accept the hon. Gentleman's general argument.
But how does the Minister explain punishing the person who has no means by making the registered fine one and a half times the original fixed penalty notice? We need to provide a mechanism that avoids people without means being placed in that position.
People can avoid being placed in that position by not accepting the fixed penalty notice and going to court directly. That is a matter for them, and nothing in the Bill removes that power.
The hon. Member for Southwark, North and Bermondsey suggested that the Bill is for the well heeled. It is not. It is perfectly flexible.
As the hon. Gentleman helpfully suggested, I shall place formally on the record punishments and average fines. For offences under section 12 of the Licensing Act 1872, the average fine is £37 and the maximum punishment is level 1; under section 80 of the Explosives Act 1875, £274 and level 5; under section 31 of the Fire Services Act 1947, £96 and level 3.
Under section 55 of the British Transport Commission Act 1949, for the offence of trespassing on a railway, the average fine is £53 and the maximum punishment is level 3, and under section 56 of that Act, for throwing stones on a railway, the average fine is £53 and the maximum punishment is level 3. Under section 169 of the Licensing Act 1964, which relates to buying or attempting to buy alcohol for consumption in a bar in licensed premises by a person under 18, the average fine is £20 and the maximum is level 3. Under section 91 of the Criminal Justice Act 1967, for disorderly behaviour while drunk in a public place, the average fine is £58 and the maximum punishment is level 3. Under section 5(2) of the Criminal Law Act 1967, which covers wasting police time, the average fine is £240 and the maximum punishment level 4. Under section 1(1) of the Criminal Damage Act 1971, the average fine is £97, the maximum punishment level 5. Under section 43(1)(b) of the Telecommunications Act 1984, the average fine is £135, the maximum punishment level 5. Under section 5 of the Public Order Act 1986, the average fine is £88, the maximum punishment level 3. Under clause 14 of the Bill, which relates to consumption of alcohol in a designated public place, there is as yet no average as we have no data, but the maximum is level 2. That sets the record straight as to what we are discussing.
I will. The current maximum for level 1 is £200, for level 3 it is £1,000, for level 4 it is £2,500 and for level 5 it is £5,000. The maximum for level 2 is £500.
I turn to the substance. First, we do not accept the argument—although I can see its attraction—that we should necessarily have the same fine for all those offences. They are different and there is no logic for them all to have one fine figure. That said, I accept the force of the argument made by the hon. Member for Reigate that the system needs to be clear and simple so that people know where they stand, so we are not talking about wide disparity. Secondly, we do not believe that financial amounts should be stated in the Bill, in order to retain flexibility in respect of inflation and other such considerations. Also, circumstances change and the Government of the day may want to address the matter in a different way.
Thirdly, the overwhelming bulk of responses that we received suggested fines in the order of £50 to £100, and I want to confirm and place on the record that that is the order of fine that we are considering in this regard. The hon. Member for North-East Hertfordshire asked whether we would consider a fine of £2,500 for throwing a firework. The answer is no; that would be completely outside what we are discussing. However, I am not in favour of the amendments setting fines of £50 or £100 for all offences, because I do not think that we should do the same for all and I believe that we should retain flexibility.
I confess that I am more attracted by the amendment setting a maximum of a quarter rather than a half. When one looks at the figures, there is something to be said for that, and I am prepared to consider that as we progress. I am certainly prepared to say that before the Secretary of State lays an order we are happy to discuss it widely. We have already received many views in response to the consultation, and we certainly would not want to legislate for anything significantly outside the range suggested in those responses.
I am trying to be helpful in my response to the amendments. If the hon. Member for North-East Hertfordshire presses them to a Division, I ask Government Committee members not to vote for them, but I hope, especially in the light of what I said about the merits of his proposition on the maximum of a quarter rather than a half, which I shall carefully consider, that he will be prepared not to press the amendments.
As always, the hon. Gentleman is very tempting. I have never been seduced by him and hope never to be so, but I can see the attractions in the way he talks. The fact is that, under the offence in section 12 of the Licensing Act 1872, the average fine is now £37, and a quarter of the level 1 fine would be £50, which is relatively close. Obviously, in relation to fines of level 2 and above, there is less of a dislocation, but I want to consider the matter further before coming to a view, which is why I would ask him not to press the amendment at this stage.
The Minister gave a helpful reply, for which we are grateful, and apparently intends to proceed in a constructive way, taking on board the arguments that have been put to him. The amendment was simply intended to open up the debate.
There remains a strong argument in favour of the views expressed by myself and the hon. Member for Reigate that there should be a fixed amount for street-based fixed penalty notices. I ask the Minister not to reject that. There is also a strong argument for ensuring that the mechanisms for considering fine levels and for considering fixed penalty levels are always taken together. Fixed penalty notices should be considered whenever a change is made in the maximum fines as the result of a sentencing review. Those things go together, so it would be illogical to raise a fine level in any of the five categories without linking in the fixed penalty notice.
There is scope for sensible debate. Perhaps the amendment should not be made, because we must try to avoid legislation wherever possible, and the provisions will have to be reviewed regularly through secondary legislation. I ask the Minister to act on the averages that he gave us, however, none of which were more than £300, and most of which were as low as a two-figure sum. Will he also keep in mind the point made by the hon. Member for North-East Hertfordshire? There might be a fixed amount for the first period of the life of the legislation, after which we could return to the matter.
The Minister has been constructive, although I was disappointed that he would not accept amendment No. 78 outright. However, I recognise that he wants to consider the question further, so I will not press the amendments to a Division. If he fails to offer a satisfactory solution to the issues that we have raised, we intend to return to the matter on Report.
With this it will be convenient to take the following amendments: No. 17, in clause 6, page 4, line 18, at end insert—
`and the constables' witness statement to be served therewith, including the form and length of such a statement.'.
No. 16, in clause 8, page 5, line 20, at end insert—
`( ) The statement is to be treated as admissible as evidence to the like effect as oral evidence to the like effect by that person for the purposes of section 9 of the Criminal Justice Act 1967 even though the conditions mentioned therein are not satisfied provided that such conditions as may by order be prescribed by the Secretary of State are satisfied.
( ) The power to make an order under subsection ( ) shall be exercisable by statutory instrument and no such order shall be made unless a draft of it has been laid before Parliament and approved by resolution of each House.'.
The amendment would require that the fixed penalty notice should include not simply particulars of the alleged circumstances of the offence but a statement from a constable giving those details. The trio of amendments is designed to help the police and avoid unnecessary paperwork for them.
Amendments Nos. 17 and 16 would enable guidance to be given on the form and length of a constable's witness statement, to be served with the fixed penalty notice, and to allow the provisions of the Criminal Justice Act 1967 to be varied by order so that shorter witness statements may be part of the fixed penalty notice itself.
Police organisations are worried that no police time will be saved by the procedure if officers have to do the paperwork for a contested case—prepare full witness statements and so on—in order to serve a fixed penalty notice. The Police Federation has said:
``Fixed penalties initially appear a good idea if policing is speeded up. If we arrest somebody for disorderly conduct when they are drunk or under the influence of drugs and take them to a police station, where they are issued with a fixed penalty ticket, they might admit their behaviour immediately. This, possibly, is a fast track system of getting people through the criminal justice system. But, the following day, they may dispute their behaviour and allege the police acted wrongly. They may try and plead not guilty or propose to plead not guilty, leaving the officer involved reliant on notes and statements from witnesses. So the fixed penalty ticket may be an addition to the set of papers that have already been issued. That is the issue for us. It will be a good system if it reduces bureaucracy, but we need to test the practicalities of what has been suggested to ensure it lessens rather than increases the burden.''
My hon. Friend the Member for Surrey Heath foreshadowed the debate when he raised the matter earlier.
``Prior to the Bill our members expressed some concerns as to how practical these measures would be. It would appear that the likely outcome of the system is that offenders will be arrested and the FP ticket will be issued later at the police station. As such this will save court time and make justice swifter if the fine is paid. If it is not then it is likely that staff will be involved in collecting fines and attending court anyway.
Section 8 is, I confess, confusing to me in that officers would appear to have to make a statement to serve on the offender at the time. If this relates to a full witness statement this will not save officer time or return them to the streets quicker than is the case now. If this section requires a simple comment such as `found in the street, drunk and incapable' then it would be simpler for our officers and save considerable time. Some of the other offences that do not have a power of arrest of their own may not, because of section 8, be practical for FP notices.''
Is it possible to issue a fixed penalty notice without doing all the other work that would normally be done if someone were charged with an offence? It is difficult to understand how a police constable can avoid making a statement that has enough detail in it to prove the offence. If he does not make such a statement or have a record that was made at the time, and the accused decides to bite and to contest the matter, the evidence will not be available. If he had prepared it 21 days later, which is after the period for giving notice for trial, the defence solicitor or barrister could say in court, ``This is stale. It wasn't prepared contemporaneously.''
Is it possible to have a halfway house to deal with the problem, which involves less paperwork for officers and saves police time? Does the Minister imagine that the fixed penalty notices will be dealt with without the constable preparing a statement? If so, why are the provisions under clause 8 in the Bill? If not, does he have in mind a shorter statement that would fit in with what the police organisations want? Clearly, there is difficulty in preparing a short statement when there is a question about the intention of the accused or when it must be shown that there was no cause for the action of the accused.
Some offences, especially that of threatening behaviour and criminal damage, involve evidence of identity. It must be proved who committed the offence. Usually, that would involve certain evidence being contained in the statement to identify the accused. Will the Minister explain the procedure for the police officer? Will there be extra paperwork and bureaucracy, as Fred Broughton suggested? In other words, will the police constable have not only to prepare the statement for trial but to write out a fixed penalty notice in each case—or will there be some easy way round that?
Does the Minister envisage that the constable's statement will be part of the fixed penalty notice? The amendment would make that the case. Can the statement be as short as the Police Superintendents Association's suggestion of
``found drunk and incapable in the street''?
We would welcome the Minister's assurances and a detailed explanation on those points. One of the points that is often made to me when I visit the police is that once a person is arrested, the shift is used up. They have to spend the rest of the shift—often as much as seven hours—doing the paperwork. Will that still happen with fixed penalty notices? Surely one of the purposes of fixed penalty notices is to have a more streamlined system.
How can a fixed penalty notice be issued without a constable's statement for court being prepared? If it has to be so, can it be as short as possible and included as part of the notice? We want to know what extent of formality is required. When the Prime Minister outlined his original idea of on-the-spot fines, which the Minister later described as a metaphor, he was talking about avoiding lengthy procedures at the police station. Unless the Minister has a helpful comment to make about the constable's witness statement, however, that will be exactly the result and the fixed penalty notice will be yet another burden on our already overstretched police.
The amendment is constructive and would streamline the paperwork rather than increase it. Under subsection (3)(c), the obligation is already to give. It says that the constable shall
``give such particulars of the circumstances alleged to constitute the offence as are necessary to provide reasonable information about it''.
That is the same as saying that there must be sufficient information to prove it. Some of the 12 offences under clause 1 for which it was suggested that fixed penalty notices would be useful are
``Being drunk in a highway . . . Throwing fireworks in a thoroughfare . . . Trespassing on a railway . . . Throwing stones etc at trains...Disorderly behaviour while drunk in a public place . . . Threatening, abusive or insulting words or disorderly behaviour etc within hearing or sight of person likely to be caused harassment, alarm or distress''
``Consumption of alcohol in designated public place''.
All of those are likely to be capable of being the subject of a short witness statement, which would be attached to the penalty notice. That would take no longer than giving the reasonable information required under the current legislation. The other offences,
``Knowingly giving a false alarm to a fire brigade . . . Buying or attempting to buy alcohol for consumption in a bar in licensed premises by a person under 18 . . . Wasting police time or giving false report . . . Destruction of , or damage to, property'' and—this is especially odd—
``Using public telecommunications system for sending message known to be false'', are rather complex. I question how much they will be used. The purpose of the amendment is to streamline the procedure. It is a constructive suggestion, and I look forward to hearing the Minister's response.
I understand the reasoning behind the amendment, but fixed penalty notices on the street rather than in the police station are unlikely to make the process easier. Have the Government considered a much simpler system that effectively requires individuals to go to a police station, within a certain amount of time, where they will have the opportunity to pay the penalty if they agree with the information given? The whole process of deciding whether to pay and accept the notice would take place in the police station. That seems a much more protected system, and one worth considering.
It seemed to me that one of the problems arising from the proposals—and perhaps the Government's dilemma—is set out by the contrasting approaches of my hon. Friend the Member for North-East Hertfordshire and the hon. Member for Southwark, North and Bermondsey. The Government want to produce a quick and easy solution but they have had to draw back suddenly from the Prime Minister's original back-of-an-envelope idea. They realise that there are legal consequences, which is why we have ended up with detailed proposals and debates. The Government cannot have it both ways. That is why the Prime Minister's original speech, which referred to fixed penalty fines and dragging drunks to cashpoints, was pie in the sky—
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.