Clause 6 - Secretary of state's guidance

Criminal Justice and Police Bill – in a Public Bill Committee at 9:30 pm on 13th February 2001.

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Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 9:30 pm, 13th February 2001

I beg to move amendment No. 97, in page 4, line 15, leave out `issue guidance' and insert—

`by order issue a Code of Practice'.

Photo of Jimmy Hood Jimmy Hood Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

With this it will be convenient to take the following amendments: No. 14, in page 4, line 20, at end insert—

`( ) about the account to be taken by constables of the means of a person to be served with a penalty notice to pay the penalty specified in the notice.'.

No. 112, in clause 6, page 4, line 20, at end add —

`(d) in issuing guidance hereunder the Secretary of State shall now regard to the need

(i) not to issue a penalty notice in circumstances where to do so involved a significant risk of exacerbating the potential for disorder

(ii) to encourage and not to diminish the opportunity for reparations and restorative justice.'.

No. 98, in page 4, line 20, at end add—

`( ) No order shall be made under this section unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

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

The amendment would require that the guidance under clause 6 should be in the form of a statutory code of practice and would place the Secretary of State under a duty to issue such guidance.

Amendment No. 14 would require the guidance to explain the account that constables should take of the means of the person who is given a fixed penalty notice. Amendment No. 112 would require the Secretary of State to have regard to the need not to issue a fixed penalty notice, when to do so would involve a significant risk of exacerbating the potential for disorder. It would also encourage, and not diminish, the opportunities for reparations for restorative justice. Amendment No. 98 would require the affirmative resolution procedure to be employed in respect of the order approving the code of practice.

The guidance is important. We have heard a great deal about it, although we have not seen a draft. I know that the Minister will find that a repetitive strain.

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

Indeed.

The guidance deals with the exercise of the constable's discretion in issuing of the fixed penalty notice, and it is designed to encourage good practice. Had we seen the draft guidance, I should have been far less keen for it to be in the form of a code of practice and should have preferred to have debated it here. The Committee should have an opportunity to debate something as important as the guidance, on which the Minister has relied on numerous occasions in explaining the Bill's provisions. I should have been happy to debate it in Committee, but as the Bill was put together at short notice, the guidance is obviously not ready.

The Police Federation has concerns about the difficulty that a police officer might face when trying to decide how severe an offence is and whether it merits a fixed penalty notice. The Minister made that point in our first sitting. On the vexed issue of compensation for criminal damage, he promised that no case in which a person can be identified as the victim would result in a fixed penalty notice, so those people would not be deprived of compensation. He has told us that he will issue guidance to make clear the type of offence with which the scheme is designed to deal. That shows that he clearly recognises the importance of the guidance.

Various points have been made about the issuing of notices, which is another aspect of the guidance. We believe that matters of such importance should be dealt with in a code of practice that has been debated by Parliament. One can understand what the Bill means in practice only if one has seen the guidance, so it should be debated.

With regard to the means of the accused person, to which amendment No. 14 refers, we need to see the guidance because of the breadth of the discretion involved. In our first sitting, the Minister said:

``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.—[Official Report, Standing Committee F, 6 February 2001; c. 28.]

The Police Federation and members of the Committee want to know how he expects that discretion to be used. If we are not be told in Committee, the House should have an opportunity to find out at a later date.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Conservative, North East Bedfordshire

The Committee will be struck by the common sense encapsulated in amendment No. 112—although I should point out that the printed version should have read ``have regard'' rather than ``now regard''.

Bedfordshire police drew the first point in the amendment to the attention of the Home Office in its response to the consultation. It concerns situations in which it would clearly be inflammatory to issue a penalty notice on the spot, rather than to arrest the alleged offender and take him or her back to a police station. The Secretary of State should consider including such wise advice in his guidance to the police. It would encourage them to exercise restraint on occasions when otherwise they might not do so.

In the political world, Governments of both complexions have for many years encouraged a sense of toughness on law and order. Indeed, I am in favour of firmness, so long as it is coupled with fairness. Policing should be proportionate, and amendment No. 112 recommends that in proposed paragraph (d)(i).

The second point is designed to encourage and not diminish the opportunity for reparations and restorative justice. Whether or not the Minister likes my phraseology, I think that I am pushing at an open door here, so I hope to receive a positive response to that suggestion. The Government have rightly picked up the concept of restorative justice and run with it. I have no quarrel with them over that; my only quarrel is that sometimes they claim to have invented it—but I remind myself that imitation is the sincerest form of flattery. I remember seeing an excellent example of restorative justice in Aylesbury under the aegis of the chief constable of Thames Valley police. To their credit, the Government have wisely continued that policy, which, along with the general products of the Narey report, started under the previous Government, of which I was a member. The amendment points up two features along those lines, so I hope for a satisfactory response.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton

I support the amendments, but I shall speak only briefly because I was unable to attend the Committee's earlier sitting and have not had the benefit of either hearing the bulk of the debate or reading the Hansard report. The Committee will be aware of the views of my hon. Friend the Member for Southwark, North and Bermondsey on fixed penalty notices in general, which I share. It is a pity that the Minister has not been able to bring the guidance notes to the Committee for us to examine. Fixed penalty notices are controversial and shift the burden of proof, and it would have been useful if the Committee could have seen the guidance. Amendment No. 112 might not then have been necessary.

The provision gives the police wide discretion, so it is important that they are aware of Parliament's concerns and the matters that should be taken into account before deciding whether to issue fixed penalty notices. Amendment No. 14 refers to

``the means of a person'' but that may not be obvious, and perhaps the words ``as far as is feasible'' should be added. Even the richest people, when they are drunk and disorderly, can look dishevelled and poor.

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

To what extent does the hon. Lady suggest that it is appropriate for police officers to make detailed inquiries into people's means before issuing fixed penalty notices? Is she suggesting that they undertake a full inquiry into someone's income, outgoings, capital position, mortgage rate and so on before issuing a fixed penalty notice in the street? What precisely is she proposing?

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton

I am not proposing; I am supporting. I am certainly not suggesting that police constables carry around 40-page income support application forms and insist that people in the street fill them in. However, someone who is obviously homeless is unlikely to have great means—although when I was a psychiatric social worker, I had one client who was apparently homeless and carried her belongings around in carrier bags but owned nine houses in the east end of London. It is often possible for police constables to have some idea of people's means, although the clues are not always easy. It is not an exact science and I am certainly not suggesting that application forms such as those for means-tested benefits should be handed out.

Amendment No. 112 would be particularly useful. As we discussed at an earlier sitting, issuing a fixed penalty notice might exacerbate a situation and cause more disorder than it solves. It is important that police officers should have to take account of the chance of reparation to victims, which might be lost if fixed penalty notices were issued and the penalties paid immediately so that nothing further happened.

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

I hope that, on consideration, the hon. Member for North-East Hertfordshire will withdraw the amendment, for reasons that I shall give.

The amendments fall into two categories. The first includes those that would constrain points of direction to the guidance that the Secretary of State will publish, for a variety of reasons. We are entirely satisfied that subsection (a), which enables the Secretary of State to issue guidance on the exercise of discretion, already allows for the advice detailed in the amendments to be issued to the police.

Amendment No. 112 refers to restorative justice. The right hon. and learned Member for North-East Bedfordshire is right in saying that the work being done by the Thames Valley police authority under the leadership of the chief constable, Sir Charles Pollard, has been extremely constructive. It will be proper in areas where there are successful adult restorative justice schemes for those to be taken into account when deciding how best to deal with disorderly offenders.

Most programmes of restorative justice that are currently in operation, particularly in the Thames Valley police authority area, are directed principally at juveniles, so would not be relevant to the fixed penalty notice system, which is aimed at 18-year-olds and above, rather than 16 and 17-year-olds, but that does not detract from the force of the right hon. and learned Gentleman's argument that restorative justice is important and should be taken into account. I believe that the formulation in subsection (c) is right. It states that guidance should be issued

``with a view to encouraging good practice in connection with the operation of the provisions of this Chapter'' and allows developments in restorative justice and elsewhere to proceed appropriately.

While I commend the issues identified by Opposition Members for inclusion in the guidance, they are but a few of the many that the Secretary of State will need to bear in mind when issuing guidance. There is always the danger that, by naming those that are in the amendments, the comparative importance of others will be perceived as being diminished.

I also believe that my hon. Friend the Parliamentary Secretary made a substantial point on the assessment of means. During our proceedings, the hon. Member for Southwark, North and Bermondsey has advised every person approached by a police officer on these matters to take to their heels and flee. I am not sure how the backside of a fleeing miscreant can give the information on means that the amendment would require.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton 9:45 pm, 13th February 2001

I must speak for my hon. Friend, who cannot speak for himself. As I understand it, he was not advising every young miscreant to flee. He was saying that, if he was in that position, he would flee.

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

I am glad that that has been clarified. I do not want to misrepresent the hon. Gentleman, especially in his absence, but it was certainly my impression that he felt that fleeing was an appropriate course of action for anybody caught in such circumstances.

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

Sadly, the hon. Member for Southwark, North and Bermondsey is not with us at this late stage but, as the Minister will recall, he not talked about the example that he would set, but was extending the terminology regarded as acceptable in parliamentary terms in relation to the state that he thought he might have been in when he was about to flee.

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

I thought that the phrase ``by the seat of his pants'' seemed peculiarly appropriate. Although the seat of one's pants, as my hon. Friends sitting behind me can tell me now, can often be a guide to a person's affluence, that is not always the case.

Some of the issues that have been identified, particularly in relation to restorative justice, are serious and appropriate. We certainly want to develop good practice in that area.

Amendment No. 97 would replace the guidance with codes of practice, subject to affirmative resolution. I do not want to rehearse the debate about affirmative resolution, but the Government believe that codes of practice are used specifically to safeguard the rights of the individual. Examples can be found in the Police and Criminal Evidence Act 1984, under which a statutory code is necessary to set out the rights of persons in police detention or those stopped in the street and searched. Indeed, recently the House debated in Committee the codes of practice under the Terrorism Act 2000, where the same issues are involved.

The new penalty notice scheme is entirely different. It contains no coercive powers. I emphasise again that the individual's right to request trial is not jeopardised by the process. The scheme merely offers an offender a way of discharging liability to conviction by paying a penalty. The offender's rights are completely preserved: he is as free to have his case heard by a court as he would have been had the scheme not existed, so a code of practice of the type proposed in amendment No. 97 is unnecessary. Guidance issued by the Secretary of State is the time-honoured and appropriate way for Governments of all parties to deal with such matters when new arrangements are introduced. That is why we want to introduce the new fixed penalty scheme.

I can give the Committee, and particularly the right hon. and learned Member for North-East Bedfordshire, the assurance that issues around restorative justice could and should be taken into account in developing best practice in these areas. I also reaffirm the assurances that I gave earlier about the issues that the guidance will address. I believe that those assurances address most of the concerns expressed by Committee members.

I am slightly more dubious about the phrase

``the account to be taken by constables of the means of a person to be served with a penalty notice'', because it is difficult to understand how a police officer might interpret that role. I can tell the hon. Member for North-East Hertfordshire that I am prepared to talk to the Association of Chief Police Officers to see whether there is a way of dealing with that, but I cannot immediately see how it can be done.

I hope that, on consideration, the hon. Gentleman will be prepared to withdraw the amendment.

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

As we shall be able to return to the subject on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.