Clause 6 - Power of Secretary of State to require registration

Identity Cards Bill – in a Public Bill Committee at 3:45 pm on 20 January 2005.

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Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs 3:45, 20 January 2005

I beg to move amendment No. 33, in clause 6, page 5, line 30, at end insert ''without reasonable excuse''.

This clause deals with the power of the Secretary of State to require registration. The amendment relates to subsection (4), which currently states:

''An individual who—

(a) contravenes an obligation imposed on him by provision made under subsections (2) and (3), or

(b) contravenes a requirement imposed on him under section 5(4) in connection with an application made in pursuance of such an obligation, shall be liable to a civil penalty not exceeding £2,500.''

The amendment is a simple one. We believe that, after the phrase ''an individual who'', the words ''without reasonable excuse'' should be inserted. Why we wish to do so is fairly simple. Currently, the clause means that when someone fails to answer the compulsion to register, they will pick up a penalty of £2,500. Surely there must be reasonable excuses why people might not be in a position to register? For instance, if someone were on their death bed, would that be a reasonable excuse for not going along with this part of clause 6?

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

It feels like it.

What about those who are working offshore? What about those who are working abroad? What about those who are in the middle of military service abroad? I could go on, and no doubt I will.

An individual should be able to offer a reasonable excuse as to why they are unable to comply with this part of clause 6, and therefore not pick up the civil penalty of £2,500. That is a simple inclusion. It makes a huge amount of sense, and I have no doubt that the Minister will agree with my reasoning.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

There come moments during the passage of any Committee when the Opposition feel a surge of optimism. That moment has arrived. I have a feeling that the Government will rather like this amendment, which has been so well proposed by my hon. Friend.

We know—and my hon. Friend said—that the clause provides a power to require an individual to apply to register. The registration could be compulsory whether or not a person applies for a designated document. Under the clause, as he said, if a person contravenes, they will be subject to a penalty.

As the Minister knows, in the criminal law in this country, some offences involve what is called ''strict liability''. Such examples include crossing a red traffic light, and speeding; one has either done or not done such a thing. There are many offences for which there is some form of defence. The clause does not currently lay down any form of defence.

I will pose one or two queries that I have about certain little details of the clause. Clause 6(1) states: 

''The Secretary of State may by order impose an obligation on individuals''.

It would be helpful to hear from the Minister how the individuals will receive notification of an obligation that has just been imposed upon them. That is closely linked to whether or not a reasonable excuse is involved.

I imagine the Minister will make an announcement in Parliament in relation to a group of individuals imposing some form of obligation requiring registration under the clause. That would possibly be reported in the press, but there are those who neither take newspapers nor listen to the media. Therefore, the question of how he is able to notify a series of individuals of a particular group about the obligation that has been imposed upon them is an important one.

This is a narrow point but, at some stage, the Minister might impose an obligation on individuals of a description that might cover those aged 16 and 17. It would be helpful to know how he will communicate with such persons. Will he communicate to the individual concerned—the person aged 16 or 17—or to the parent or guardian of that person? Where will the penalties bite in relation to 16-year-olds if there is a failure?

My hon. Friend the Member for Newark made the realistic observation that someone who is terminally ill might, indeed, have a reasonable excuse not to fulfil the order that has been imposed on them. There are classes of people who may well have a reasonable excuse. I remind the Committee that the obligation is to make an application and the applicant is told of the time when the requirement arises and the period after that time when the application must be made. In his response, can the Minister help us on the nature of timings?

For example, I assume that when an announcement is made, it will be that as from a certain date some time ahead—one assumes that it is going to be months rather than days or weeks—there will be an obligation on a class of people. Can the Minister help us on timings, and also on the second question arising from that, which is how long after the requirement comes into effect is it likely that the person will have to comply with the obligation imposed on him or her? Apart from the categories mentioned by my hon. Friend, there are others who may not, through no real fault of their own, comply with the obligation imposed on them. I have mentioned 16-year-olds and the ill, but there are others who can neither read nor write and those who are aged and confused.

The Minister and his Department will clearly take a proper and sympathetic attitude towards such people. It is impossible to consider that he would start to fine a series of people who were, for example, too confused to register, as they have to do. I cannot consider that he would enforce a penalty for a failure to register against somebody who was abroad for a period. We do not have to go through today all the classes of people who might have, in our language, a reasonable excuse for not complying with the obligation—there are other amendments concerning the levels of moneys payable—but the Minister would be wise to accept our amendment. It would make it clear that the clause   refers to contravening the obligation without reasonable excuse rather than simply contravening it. That would give the Minister and others some form of discretion and does not make it a strict liability offence. Many would be unfairly punished if it were such an offence.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

The reassurances that the hon. Member for Woking requires of me are grossly premature in respect of the process. The clause comes into effect in terms of compulsion only if there has been a super-affirmative process, including the debating of the Government report by Parliament, and a super-affirmative order. In that context, there will be plenty of opportunity for the Government to explain to Parliament exactly how they are going to move from the non-compulsory stage to the compulsory stage. The groups affected and the timetable will have to be specified in the order, which will be fully debated before Parliament.

The super-affirmative process in clause 7 will ensure that a report is published and debated and made before the order itself. Depending on who is affected by the order, the Government will be required to take all reasonable steps to ensure that they are aware of the obligation. I am not therefore in a position now to answer the hon. Gentleman's question about days and time, but I am sure that he understands why. All of this will have to be dealt with in significant detail before Parliament agrees to move to compulsion. I have more sympathy with the other point that he made.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

It is disappointing to be told that discussing problem issues in the Bill is premature. If the Minister accepts that there are problem issues, they should be attended to now. I do not see how a debate by Parliament in due course can or will cover the issues that I have raised—namely, the issue of without reasonable excuse, which should be in the Bill, but also that of those classes of people who, given the Bill as it stands, would offend when, in truth, no reasonable person would think that they had.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality) 4:00, 20 January 2005

I apologise to the hon. Gentleman if I have inadvertently misled him. I was responding to his request for details of the time scale. I am sure that he is reassured that that was premature and will have to be debated in some detail before a step can be made towards compulsion.

The hon. Gentleman rightly identifies that I have some sympathy with the other point he made. I appreciate that Members seek to raise concerns by way of amendment and of expansion on that. First, however, it would not be feasible to require the Secretary of State, before imposing a penalty, to satisfy himself that someone who had breached a requirement did so intentionally or without reasonable excuse. In practice, these penalties will be imposed in a unilateral exercise of discretion, not subsequent to some kind of hearing.

Secondly, the objection stage would be open to a person to raise reasonable excuses. The Secretary of State would take such excuses into account and has the power to cancel or reduce penalties. The hon. Members tabling this amendment—which would introduce the qualification of ''without reasonable excuse''—seek something similar in amendment No. 117, which adds the fault element of ''intentionally'' to the civil penalties in clause 12.

I recognise that the answer thus far may not completely reassure those hon. Members, but I am aware of their optimism. I undertake to consider whether there are ways in which it can be made clear in the Bill that the Secretary of State must take into account—I quote—''reasonable excuses'' at the objection and appeal stage. I should stress, however, that such an amendment would relate to grounds of objection and of appeal. As I explained, such a requirement would not be practical at the stage at which the civil penalties are imposed. I hope that that reassures the hon. Gentlemen and allows them not to press the amendment.

Photo of Patrick Mercer Patrick Mercer Shadow Minister (Homeland Security), Home Affairs

I am grateful to the Minister for his explanation. I think that my hon. Friends and I are more reassured by what he said. We will be interested to hear what comes up in clause 12 under amendment No. 117. In the light of that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

May I say that, for the convenience of the Committee, I intend to suspend the Committee for a comfort break of 20 minutes at about 5 pm?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I beg to move amendment No. 130, in clause 6, page 5, line 36, leave out 'civil'.

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

With this it will be convenient to discuss the following amendments: No. 34, in clause 6, page 5, line 36, leave out '£2,500' and insert '£1,000'.

No. 82, in clause 6, page 5, line 36, leave out '£2500' and insert '£50'.

No. 35, in clause 6, page 5, line 40, leave out '£1,000' and insert '£500'.

No. 83, in clause 6, page 5, line 40, leave out '£1000' and insert '£50'.

No. 37, in clause 6, page 5, line 41, leave out subsection (6).

No. 131, in clause 6, page 5, line 44, leave out 'civil'.

No. 36, in clause 6, page 5, line 44, leave out '£2,500' and insert '£1,000'.

No. 84, in clause 6, page 5, line 44, leave out '£2,500' and insert '£50'.

No. 165, in clause 6, page 6, line 3, at end add— 

'(7) Unreasonable failure to comply with a request of the Secretary of State under this section shall be a summary offence to be heard before a magistrates' court with an appeal against a finding of guilt to the Crown Court.'.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Clause 6 is important in the Bill, because, apart from setting out obligations on individuals, it provides for individuals to be subject to a civil penalty for failure to comply.

The lead amendment is No. 130. It concerns ''civil penalty'' and would omit the word ''civil''. I am sure that the Minister will have been briefed fully that there is a particular reason why I want to omit the word ''civil''. I hope that I would have thought of it anyway, but the matter was drawn to my attention by one of those who briefed me on the Bill a little while ago. The Bill refers to a civil, not criminal, penalty. Frankly, a person in receipt of such a penalty will probably regard it very much as criminal, not civil. To most normal people, ''civil'' means something like a county court judgment for a debt, but when the state—usually through the Crown—imposes a financial penalty by way of a fine, we are much more inclined to think that it is a criminal penalty. Indeed, in most people's minds, civil penalties are akin to a fine.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

The hon. Gentleman believes that a civil penalty is one that is written in moderate and polite tones, rather like the manner in which he speaks.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

It is terribly kind of the hon. Gentleman to say that.

We are guided towards the Human Rights Act 1998. The Minister will know what point I am about to make. For the purposes of article 6 of the European convention on human rights—the right to a fair trial—the penalty might be considered criminal rather than civil, regardless of the label attached by the Government. European Court of Human Rights jurisprudence has established that

''for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as 'criminal' from the point of view of the Convention, or that the offence made the person liable to a sanction, which, by its nature and degree of severity, belongs in general to the 'criminal' sphere''.

The sanction, by its nature and severity, would be regarded by most right-thinking people as belonging very much in the criminal sphere rather than the civil sphere. Clause 6 will apply not only to the person who absolutely refuses to have an identity card, but to anyone who does not take the chance to apply when the voluntary window of opportunity is open to them. It might also apply to individuals who have already volunteered, but fall into a designated class, based on age or status. It is well argued that the Government should reconsider the introduction of such a harsh and arbitrary penalty system and call it at the same time a civil penalty.

There are parallels in relation to civil penalties that I should be grateful for the Minister to deal with when he responds to what I hope will be a full debate. For example, I think that the Immigration (Carriers' Liability) Act 1987 has a parallel so-called civil penalty. I am now coming on to penalties and the volume of the penalties and, if the Minister could be given guidance—if not today, but during the next few   days—I should be interested to know what total sums have been imposed by way of penalties under that Act? What total sums have been received under that Act? What sums have so far been written off?

I wish to suggest to the Minister another aspect of the use of the word ''civil''. As was pointed out to me by the group Justice, it might be sensible to remove the notion of civil penalty for non-compliance and replace it with an offence of non-compliance, with a Secretary of State's order, punishable, say, by a fine enforceable by means other than imprisonment, but levied only after a hearing before a magistrate and subject to an appeal to the Crown court. I do not support that proposition, but I put it to the Minister in the spirit of our debate on penalties.

Having dealt with why I seek to remove the word ''civil''—principally because of the Human Rights Act—I move on to deal with amendment No. 34 and subsequent amendments in this group. Without going through the amendments in detail, I am seeking, by way of probing amendments, to have the £2,500 penalty, which to most of us would be a fine, reduced to a maximum of £1,000. I am also seeking to have the £1,000 penalty on someone who makes an application and is required to attend and give biometrics but does not do so reduced to £500. In short, I am seeking a dramatic reduction in the penalties to be imposed. Amendment No. 37 makes the same point with regard to repeat penalties, which can be imposed by the Secretary of State under this clause.

We need to be realistic and consider the level of the penalties—£2,500 for the more serious, and £1,000 for the less serious. Realism involves examining the group of people in society who are most likely to fail through one reason or another and be subject to the penalties. Who will it be that day after day will walk into the magistrates and stipendiary courts in London to answer a summons or charge? A combination of the poor, the vulnerable and the dispossessed—those who lack some basic abilities in life that would otherwise enable them to get a paid job and live a life of comfort—will most likely be subject to the kind of failures that will bring them to court. They will fall victim to this penalty.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

I apologise to my hon. Friend for walking in in the middle of his speech—he may have already covered the point that I am about to make. He has huge experience of imposing a level of fines for a whole range of offences. Would he not take into account that some relatively serious offences carry a fine of only a few hundred pounds? One has to justify the level of seriousness of the offence against other possible offences for which a fine is levied. On that scale, these figures are unduly harsh.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

My hon. Friend makes a good point, and I will draw one or two of his sentiments into some of my remarks.

The top level fine is £2,500. The problem is the same when one sits in the magistrates court—95 per cent. of people appearing have not got a bean. I tease the Government, but it is all very well their saying last   week that they will introduce a wonderful new fining system in the magistrates courts and treble fines from £5,000 to £15,000. Big deal. I do not think that a fine of £5,000 has been imposed in a magistrates court for the past 20 years, so what is the point of raising it to £15,000?

Can the Minister tell me today how many fines in the past five years have been imposed up to the maximum in a magistrates court? I bet him something that he would like to receive as a wager that there have been fewer than, to use his words, the number of fingers on his hand. In fairness, he said that in relation to Government amendments, and we know that two are coming forward at the moment with three to come. However, he has got my point.

A fine of £5,000 has never been imposed; it is as simple as that. I make the point again that even if it had been imposed, 95 per cent. of people in magistrates courts have not got a bean. I would guess that the average fine in a magistrates court is £50, £60 or £70. The average person in a magistrates court is vulnerable, dispossessed and inadequate. We cannot fine those people £5,000, let alone £15,000. That relates distinctly to my next point. Who are the people who will get this wrong—I was about to say ''commit a crime''? The answer is the inadequate.

I venture to suggest that when the Minister and I find out that we are required to do something under the clause, we will probably do it. We might read about it in a good newspaper; we might listen to the radio and take on board what is said; we might get a letter, and read and understand it; and we would know how to fill out the forms. So which people will find themselves the victims under the clause?

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry) 4:15, 20 January 2005

The hon. Gentleman and the Minister will never be subject to the clause, because they will have applied for a passport. The sanction for them will be not obtaining it, so they will go and get it. The hon. Gentleman makes a powerful case: this clause will apply to the 20 per cent. of people who do not hold passports. The strength of his argument is that those subject to the clause are likely to be the vulnerable, the dispossessed and, in particular, the elderly.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

The hon. Gentleman is precisely right. On the subject of passports, I am terrified about the Bill becoming law, because my wife has lost the entire family's passports on three separate foreign holidays in the past 10 years.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

That is three lots of identity cards.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I know; that would be £7,500. But the Minister understands that I am making a serious point.

Of course, there is another side of the issue that is very important. If the maximum fine is £2,500, and Bill Gates or some billionaire—or even, say, a rich drugs baron—does not co-operate in any respect with the   provisions, they will not find the odd £2,500 any trouble at all. It would be absolute pocket money, unless they are fined on a repeat basis. The Minister could tell us about that. What would it be: once a month, or once a fortnight?

Some planning laws—I am not very good at planning—impose a daily penalty. My hon. Friend the Member for Cotswold (Mr. Clifton-Brown) will correct me if I am wrong. I am not even sure that £2,500 a day would be a penalty to some of the richest in the world. I venture to suggest that, for a rich drug dealer or someone with a lot of backing who has evil intent, even 10 times £2,500 a year is neither here nor there. The Minister may say that that is an argument to say that the maximum penalty should be greater. We come to an issue that is very important, and that I think we will discuss later: there is no provision at all—[Interruption.] I have lost the attention of the Committee, with the exception of my hon. Friends.

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

Order. I know that we have been sitting for nearly two hours now, but it is only about 40 minutes until our comfort break, so I beg the indulgence of Committee Members. If they must have sedentary conversations, could they keep their voices down, please?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

What I say is particularly true given that there is no provision that I can see, in this clause or later, for the Secretary of State to take into account the means of the person who pays the penalty.

I understand that the person who imposes the penalty will have to be a junior official at the Home Office. Goodness knows what criteria they will use to impose the penalty. The whole of the Government's current thinking on fines appears to be that they are to be paid according to the means of the person concerned, and that is a throwback, as far as I can see, to the old unit fine days of 1992 and 1993. Such fines were introduced, I think, by my own party, and were an absolute disaster. I have never known such a hopeless policy. Well, that is the end of my career.

Photo of John Robertson John Robertson Labour, Glasgow Anniesland

That sums up the hon. Gentleman's party.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I am far too kind to respond to that; I take such comments on the chin. However, the Minister knows that I approach these matters honestly, and the truth is that it was not a good policy and it was eventually dropped, as it should have been.

The Minister also knows that the current position in our courts is that those who impose fines take into account people's means. There are problems with blanket fines because many people do not even turn up to court to say what their means are.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Of course I will; I was drawing to a conclusion anyway.  

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

In that case, I am sorry that I have given the hon. Gentleman the oxygen of an intervention. However, he might like to look at clause 36, as it deals with all the issues that he is concerned about.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Clause 35 deals with appeals against penalties.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

That is about codes of practice on penalties. I have not seen a code of practice yet; I am dealing with clause 6. We can discuss codes of practice in due course.

The Minister draws my attention to clause 36, and perhaps he is not wrong to do so. However, there is a very good argument for challenging the size of the penalties in clause 6. The Joint Council for the Welfare of Immigrants expressed strong views about the clause and the penalties on behalf of the people for whom it cares. It states:

''The bill appears to presume that the imposition of penalties on foreign nationals who fail to obtain the correct documentation is justified because such behaviour would arise solely because of a desire on the part of the foreign national to evade immigration controls.

However, there is now evidence that the difficulties in obtaining proper documentation arise because of the actions of unscrupulous employers, gang masters, and others seeking to exploit vulnerable groups of workers.''

It also states:

''The threat of punitive action by the immigration authorities against some groups of migrants for their failure or inability to obtain the correct documentation is used as an instrument to strengthen the grip of the most exploitative employers over the workers concerned, and therefore runs counter to the government's intention of combating the exploitation of the immigrant labour force.''

When the JCWI recommends a review of the level of the penalties for non-compliance, it makes points that have not so far been raised in our debate. Although the penalties are not mandatory, it thinks that if they were imposed—by magistrates, for example—at a significant proportion of the maximum level, they would be disproportionate in respect of the earnings of many migrant workers, particularly those arriving under the sector-based scheme. They may fail to comply with registration requirements purely through oversight. [Interruption.] Does the hon. Member for Birmingham, Hall Green (Mr. McCabe) wish to intervene? No, he chooses only to make comments from a sedentary position. As the days and hours pass by, we will look forward to hearing lengthy contributions from the hon. Gentleman. He has not yet been able to contribute at any great length.

Photo of Steve McCabe Steve McCabe PPS (Rt Hon Charles Clarke, Secretary of State), Home Office

On a point of order, Ms Anderson. For clarity, I should state that there is a parliamentary convention that normally prohibits Parliamentary Private Secretaries from contributing in proceedings such as these. Obviously, I would not want to breach that, but if the hon. Gentleman is inviting me to disregard it, I would seek your guidance.  

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

That is not a matter for the Chair, but Mr. Malins may wish to respond.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Yes, I do. I held that position many years ago, and I have a funny feeling that the hon. Gentleman may be right, and if he is right I offer him my unreserved apologies. However, there was also a convention in those days that Parliamentary Private Secretaries did not make sedentary interventions, although it may well be the case that that convention has lapsed.

I know that the Minister will take on board the spirit with which I made my remarks, and I will now conclude.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

I have added my name and those of my hon. Friends to amendments Nos. 130 and 131 that were inspired by the organisation Liberty, which raised the issue of the meaning of the word ''civil''. We have engaged in what is technically known as a reverse Dutch auction when we bid down the Conservatives on the level of fee. We bid below them on amendments Nos. 82, 83 and 84 to draw attention to the level of fines and the way in which they will be set.

The organisation Justice assisted us with amendment No. 165, which we tabled to receive clarity about the process. As I have listened to the debate, I have become more worried, not less worried, about how fines under the clause will be imposed. We are talking about people who do not have a passport. It is important to remember that to most people, certainly in the Room, and throughout the country, the provision will not be relevant because they would have provided all the information to receive a passport. The sanction would have been no passport and they will have provided the information to avoid that sanction.

The clause will be invoked at a point at which the Government deem the process to have gone as far as they wish it to go. Indeed, we must bear in mind that the clause could be invoked much sooner. It could be invoked at any time. The Government said that they will wait for the passport process to occur but, if they bring it forward under the super-affirmative procedure in clause 7, they can invoke the powers much earlier. For example, they could change their mind next year. We could have a different Government with a different policy, but under the Bill, they could say that they want to require everyone to register compulsorily.

In normal circumstances, however, we shall be dealing with the rump of people who have not applied for passports. It is important to understand what will happen if those people fail to come forward, the precise nature of the process that will take place and the sort of fines that may be imposed. The clause seems to have been drafted to avoid ID card martyrs. Lessons have been learnt from the poll tax, when people refused to pay it. They went through the court process and used it as a platform to challenge politically what the Government had done. As I read the clause, I suspect that the Government are, in a defensive way, seeking to avoid such a position, and thus have come up with a scheme that is confused.

What sort of record will be kept of someone who offends under the clause is important, as is the relationship between that and the usual proceedings in respect of a criminal record for other offences that a person might commit. Will the Minister clarify that? He said that the level of fine and the way in which it will be imposed will be at the discretion of the Secretary of State. That rings very big alarm bells. The whole thrust of human rights law is about taking matters out of the discretionary powers of the Secretary of State and putting them into the courts. That is relevant to amendment No. 165, because we are trying to establish the role of the courts in such a process. Will there be appeal procedures? Will those procedures go before the courts in the usual way? We have had a long-running debate about life sentences, in which it was made clear that, under the European convention on human rights, the Secretary of State's interference in the setting of tariffs was not appropriate.

As I say, the thrust of the law is that politicians should be as far outside of the judicial process as possible, and I entirely agree with that. I understand from the Minister's comments that the process would mean that the Secretary of State, or his officers, would effectively be able to decide on the level of fine, manage the process and, presumably, deal with any appeals against it or objections to it. That would be very troubling indeed. I hope that the Minister will be able to clarify that issue.

If we are to move down the route of compulsory identity cards—the Liberal Democrat position on that is absolutely clear—the citizens of this country have the right to understand at this stage its full implications. I suspect that the clause will lead to a not-trivial number of cases in the future. A significant number of citizens will be affected, either because they choose not to have an ID card and are explicitly becoming ID card martyrs, or because they fail to get one for another, less direct or explicit, reason. It seems that we are to take such citizens through a process in which the Secretary of State can issue them with a penalty notice. As the hon. Member for Woking   pointed out, people may fail to respond properly to such a notice because they do not have the means and cannot afford to pay. They may not be doing that deliberately or maliciously.

We need a much clearer understanding of the full process and I feel very uncomfortable about leaving the clause, which would give that huge range of discretion, as it is worded. I make no personal swipe against any particular Secretary of State, but the general thrust of human rights legislation is that penalties imposed on citizens must have a sound basis in law. To satisfy our article 6 requirements, such matters should be in the hands of the courts, rather than political officials of the state. The clause seems entirely contrary to that spirit.

I hope that the Minister can give more detail on the way in which the system will work. However, I suspect that this will be another occasion on which he will not be able to satisfy us about the rightness of the solution that he sets out.

Photo of David Curry David Curry Conservative, Skipton and Ripon 4:30, 20 January 2005

I want to reinforce what my hon. Friend the Member for Woking said. I am grateful to the Minister for referring us to the later clause, because how that works will be crucial.

I am co-chairman of the all-party group on homelessness and housing need. When we were in government, I managed the rough sleepers initiative for four years as Minister with responsibility for housing. It was very successful, supported by all parties and never the subject of political contention. However, what strikes me is that there is a significant group of people in society—I hesitate to use the word ''underclass''—who are simply not competent, and the major task is to teach them some sort of competence.

I remember vividly that John Bird, who runs The Big Issue, said that a home is the last thing that such people need because so many things have got to come before they have the competence to live in their own home. I also remember a 16 or 17-year-old going into a Salvation Army hostel in the east of London saying to me, ''The most frightening thing that ever happened to me was being given the keys to my own little maisonette, because I was in charge and had to take responsibility.''

Many people who sleep rough—many of whom have bounced down from the armed forces, funnily enough—suffer from drugs, drink, mental illness and combinations of all three. If they are to be able to conform with the law, there will, with the best will in the world, have to be a mentoring system through which people can act on their behalf. They are unlikely ever to want a passport, as the hon. Member for Sheffield, Hallam said. Nothing could be more absurd than repeated appearances in court by people utterly incapable of meeting the fines levied on them and probably incapable of fulfilling the law without somebody mentoring them closely.

I represent a northern English constituency on the edges of Bradford and Leeds. Many women among many ethnic minority populations are often not expected to take any role outside the home, and in many cases they have very limited competence in   English. We must make sure that they do not inadvertently find themselves to be unintended victims of the legislation because of cultural difficulties.

I should be grateful if the Minister would bear the points I have made in mind when he thinks of how the measures will operate in practice. I hope he will give reassurances that he will do so. He keeps repeating that this is the only primary legislation, which gives us the opportunity to debate the subject.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

In terms of penalties it is appropriate to look also at clauses 33 to 37 to see the provisions that relate to civil penalties that are in the Bill. With respect to the hon. Member for Sheffield, Hallam—and I do have respect for him—it is not fair to say that there is nothing in the Bill about that when those clauses exist. I will, appropriately, not be drawn into debating them prematurely. We will come to them in due course and there will be an opportunity to discuss them in some detail. It would be inappropriate for me to do that now, despite the fact that if I were to respond to all the questions that have been asked of me, that is what I would do.

It is appropriate to set out the context to the clause, because we are getting as near to a clause stand part debate as we can in terms of these amendments. The Government's proposals, which command significant and consistent public support, are for a national ID card scheme. In time it will become compulsory, in the sense that every British citizen resident in the UK and all foreign nationals resident for more than 3 months will be required to register, if they have not already done so.

That will not happen—and the provisions that are considering today will not become relevant—until the time is right; it will not happen until Parliament has the opportunity to debate it. That debate cannot begin until the Government are satisfied that the roll-out has already delivered significant coverage of the population, that there is clear public acceptance of the card, that no vulnerable groups would be disadvantaged, that the scheme has made a contribution to meeting its aims, and that the technology is working and trusted.

All of the conditions that precede being able to move forward will allow Parliament, in considering the report and any order that might come from it—even if the conclusion of the report were amended—to examine all of those issues and the implications. I would not expect Parliament to make its decision unless it was satisfied in respect of all the things to which I referred.

It is right and appropriate that the Government should set out a scheme that proceeds in that way, so that just the sorts of concerns, which are proper ones, that hon. Members bring to this debate are considered. We are talking about a vehicle and a mechanism for considering them in some detail at the appropriate time.

Amendment Nos. 34, 35 and 36 would reduce the maximum amount of the penalties that may be imposed. There would be a reduction from £2,500 to £1,000 for a contravention of one of the requirements set out in clause 6(2) or 6(3) relating to registration.   There would be a reduction from £1,000 to £500 for a contravention of a requirement set out in clause 5(5) relating to supplying further information. There would also be a reduction from £2,500 to £1,000 for each contravention of a notice requiring a person to register, subsequent to a contravention by them of an initial requirement to register. Amendments Nos. 82, 83 and 84 would reduce all those penalties to £50. I fear that that is not an amount that would deter many people from doing anything or from not doing anything.

I appreciate that there may be concerns that the penalties would impact disproportionately on those least able to pay, and they probably would if they were imposed at their maximum levels. However, the sums I was referring to are the maximum penalties.

The hon. Member for Woking points out that in magistrates courts when magistrates consider the individual circumstances of offenders it is highly unlikely that they will impose the maximum penalty. I have no idea what the answer to his question is, but I know from my experience in the equivalent courts in Scotland that it is highly unlikely that magistrates there would impose the maximum level of penalties—or indeed, that sheriffs, who have a greater jurisdiction, would.

Mr. Malins rose—

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

Let me finish the point and I will then take the intervention.

We are talking about maximum penalties and the provisions allow for lesser amounts to be imposed. How would those lesser amounts be calculated? We have to look to clause 36, which requires the Secretary of State to publish a code of practice setting out the sorts of things that have concerned Members and the matters that the Secretary of State will consider when determining the amount to be paid. That code of practice will, in turn, be laid before Parliament.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

We look forward to the code of practice. Whatever the code says, however, am I not right that when the Secretary of State imposes the penalty he will not have before him any details whatever to assist him about the—for want of a better word—defendants' means, abilities or lack of them?

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

Because the code of practice will set out the markers that the Secretary of State has to take into account. It is unlikely in the extreme that any Secretary of State will set out markers that do not include just that information, particularly against the background where almost all penalties imposed in the courts have to be imposed, by law, with an understanding of a person's ability to pay. The ability to pay the penalty will have to be one of the factors that the Secretary of State takes into account. Inquiry will have to be made of a person's circumstances before the penalty is set.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

Can the Minister inform the Committee whether there is any likelihood of us catching sight of some draft codes of practice, either before we reach the relevant clauses or before the Bill becomes law? This is not technology dependent and, presumably, there are other models on which the codes are going to be based.

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality)

I will answer that question once I am in a position to do so. I will bear that in mind.

Amendment No. 36, which relates to subsequent failures to register, would fall if amendment No. 37 was accepted. Amendment No. 37 would remove clause 6(6) altogether. The effect would be that the Secretary of State would not be able to impose further fines for continued failure to register. I oppose that amendment because it sends entirely the wrong message, saying, in effect, that failure to register is not a serious matter. When the scheme eventually does become compulsory, its efficacy would be seriously undermined if people could, in effect, avoid registration by paying a one-off fine. If Members object that this provision is draconian, I would remind them that the remedy is entirely within the hands of the individual to comply with the original requirement.

Amendments Nos. 130 and 131 would remove the word ''civil'' in two places in clause 6, in subsections (4) and (6). This is an attempt to make the offences criminal. It is a different motivation from that of the hon. Member for Sheffield, Hallam, who tries to do exactly the same thing in amendment No. 165, informed, in my view, by a partial explanation of article 6 of the European convention on human rights. That imposes a requirement for fair trial.

Those requirements are fully satisfied whether or not the penalty in the scheme is regarded as civil or penal in convention terms. The individual concerned is able to object to the penalty under clause 34, and to challenge the penalty in court under clause 35 and have a full hearing. Eventually, the courts will be in a position to decide on these penalties. That makes the provisions in the Bill fully compliant with article 6.

Several penalties, as the hon. Member for Woking knows, are a well established feature of the carriers liability scheme. They have been tested in the courts against this very argument.

He asked me for specific information on the amounts imposed under the Immigration and Asylum Act 1999 through civil penalties. I am not able to give him that information. I could give the Committee the maximum penalties, but that would not assist in any way. I am not able to give them at the moment, but, should they become available, I will make sure he gets them. 

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

The Minister mentioned the ability of the aggrieved eventually to find him or herself in court. What is probably a matter related to the debate is whether the Minister can give any assurance that, depending on the means of the individual and the nature of the excuse, he or she might have access to legal aid?

Photo of Des Browne Des Browne Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Nationality) 4:45, 20 January 2005

I am not in a position to go into that matter in any detail. However, I shall return to it and perhaps we can consider it in the context of clause 34 and other clauses.

The Government do not intend to criminalise people's behaviour under the Bill. We are introducing a system of civil penalties, so that people do not have a criminal record. Most procedures will be settled between the individuals and the Secretary of State and, when courts are involved, they will be civil, not criminal, in cases when appeals are brought.

Amendment No. 165 would create a criminal offence—a summary offence—of failing to comply with the requirements of clause 6. No penalty is mentioned, but even if a moderate one were imposed, if the amendment were accepted a person who refused to register would have a criminal record. That is not what the Government wish and, for that reason, I shall also resist that amendment.

Indeed, I must resist all the amendments and I invite members of the Committee to consider whether they wish to press them to a Division.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

The Minister has done his best to respond to the arguments that have been advanced, for which I thank him. Clearly, he is unable to go very far because certain matters such as the codes of practice are further down the line and we do not know some practicalities that it would be necessary for us to debate. During the short debate on penalties we have discussed the vulnerable, although he is not yet able to return to us with more detail.

I am particularly pleased by the intervention of the hon. Member for Sheffield, Hallam, who asked a moment ago whether we might have an opportunity before the end of our discussions in Committee to see a draft code of practice, or guidance, as it might inform our debates. We shall keep a careful eye on penalties and possibly come back to such matters on Report.

I thank the Minister for his reply. It has not satisfied us completely, although he would not expect that to be the case. However, for the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.