Clause 35 - Appeals against penalties

Identity Cards Bill – in a Public Bill Committee at 4:45 pm on 27 January 2005.

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Amendments made: No. 192, in clause 35, page 30, line 6, leave out 'both' and insert 'more'.

No. 193, in clause 35, page 30, line 7, leave out 'or' and insert—

'( ) that the circumstances of the contravention in respect of which he is liable make the imposition of a penalty unreasonable;'.—[Mr. Browne.]

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I beg to move amendment No. 40, in clause 35, page 30, line 14, leave out 'or'.

Photo of Derek Conway Derek Conway Conservative, Old Bexley and Sidcup

With this it will be convenient to discuss amendment No. 41, in clause 35, page 30, line 15, at end insert

'or

(d) increase the penalty.'.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

Amendment No. 41 is the one to which I am keen to get a response. It relates to what the court can do when people appeal to it. It can allow the appeal and cancel or reduce the penalty, or dismiss the appeal. We propose that it should be able to increase the penalty. The discretion of the court to increase a penalty is sometimes useful, because it can act as a disincentive. I have regularly known prosecutors appeal against a sentence to a higher court and get it increased. When one dismisses an appeal, can one increase the penalty or not? One probably ought to be able to, but the purpose of the amendment is to probe.

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 hon. Gentleman will be aware that at the objections stage the Secretary of State has the power to increase the penalty. That is relevant.  

Sitting suspended for Divisions in the House.

On resuming—

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) 5:30, 27 January 2005

I was responding on amendments Nos. 40 and 41, which we are considering together. We heard that their effect would be to give a court considering an appeal against a penalty the power to increase that penalty, in addition to the options of reducing or cancelling the penalty or dismissing the appeal.

This is not necessary. As I said before we adjourned for the Divisions, the Secretary of State has the power to increase a penalty as a result of an objection made under clause 34(3). At that stage, the Secretary of State will have an opportunity to ascertain the full circumstances of any breach that justifies a penalty and of the individual concerned. That stage is appropriate for the penalty to be fixed, once and for all.

The purpose of clause 35 is to give individuals access to the court for a re-hearing of the Secretary of State's decision to impose a penalty. The significant disincentive of the possibility of an increased penalty would act against the interests of the appellant when the Secretary of State had imposed a penalty and against there being an opportunity to ascertain all the relevant facts.

In those circumstances, I am confident that the provisions are fair and equitable; I see no compelling need to change them. However, I also remind the Committee that this is not a revenue-raising power. It is designed to encourage people to conform to the scheme and not commit any of the offences that are relevant to these penalties. I hope that I have reassured the hon. Member for Woking that we have a coherent and fair regime of civil penalties and I ask that the amendment be withdrawn.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

I am grateful to the Minister and on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

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)

Just to flesh out what this means from a citizen's point of view—what would happen with the expenses of an appeal under this clause?

If an individual has been served with an order, gone through an objection on paper to the Secretary of State and now wishes to appeal the decision, am I right in assuming that anyone has the right of appeal, whatever the outcome of the objection? If they then choose to exercise that right, are there any costs associated, whether or not the appeal is successful? What is the Government's intention? The procedure will clearly cost somebody money if a county court has to take time to sit and hear an appeal.

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)

My understanding—which will be subject to further qualification if not correct—is that the Secretary of State would not apply for a cost order with any appeal that had to go before the court.   However, it would be inappropriate for the Secretary of State to bar an individual from the opportunity of applying for a cost order were they to be successful in an appeal and had incurred expenses. I would be content to leave that matter to the discretion of the court.

I can give an undertaking to the Committee that the Secretary of State is not presently minded to consider applying for a cost order in the event of an unsuccessful appeal by an individual.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, Home Affairs

That the matter of costs should lie within the discretion of the courts on most occasions is absolutely right. I am grateful for the Minister's answer.

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 implied that the matter would lie within the discretion of the court, but that neither the Secretary of State nor I would not seek cost orders in the context of such appeals. However, that would not be a rule to be applied to the individual, who may want to take their case to appeal and may be successful. They would have to make their arguments on the basis of the normal arguments.

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)

That is helpful. Perhaps the Minister will clarify the other point, which was that 100 per cent. of people who have been through the objection process can ask for an appeal if they choose to do so. Is there a narrowing of eligibility, because under clause 35 it seems as though there is not? Is everybody who is issued with the original notice a potential appellant, with no weeding out along the way?

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 see no way in which they can be weeded out, as the hon. Gentleman suggests—although that seems an inappropriate phrase. People have to be mindful of the danger of the process being abused, but that would be a matter for the courts. If appeals without merit were taken in large numbers, the Secretary of State may have to revise his view on costs.

Question put and agreed to.

Clause 35, as amended, ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.