Penalty: objection

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

The Minister commented that there appears to have been an outbreak of consensus. I am happy to report that it is now at an end. We have serious objections to clause 10, which provides for the Secretary of State to consider appeals against penalties for failing to comply with the regulations that relate to biometric immigration documents. We do not believe that it should stand part of the Bill because we do not think that it is a sensible place in which to give the Secretary of State such quasi-judicial powers.

I assume that in a peculiar way, which the Minister did not get round to explaining, the penalties are decided on a civil rather than a criminal scale. However, even after his explanation, I am still confused as to why the creation of what, by any standards, is a criminal offence should be regarded in any way as a civil matter. I can only assume that the provision in the clause to allow someone to object to a penalty measure is in some way based on the view that it is a civil matter between the Home Secretary and the citizen. That does not seem to reflect the reality of the situation. The person involved will assume that the authority of the state is bearing down on him and that if he has committed an offence that constitutes a crime by any normal standards, it is right and proper that his appeal against the penalty for having committed that crime should be considered by the courts. We can argue about the level of the fine, but the matter will clearly be serious enough for people to expect some kind of independent hearing in the courts, or a quasi-judicial procedure, and not simply to be referred back to the Executive, which would then be acting as judge and jury.

As was the case for one of the previous groups of amendments, about which the Minister spoke relatively kindly, we think that it would help if the Government were to take the clause away and rethink it. One of the things that we have discussed in the debates on this Bill has been the level of public confidence. I am sure that public confidence would be improved if there were provisions for proper judicial hearing and redress, rather than decisions made by a single Government Department not only on the introduction and workings  of the Bill but on offences committed, penalties imposed and appeals against such penalties.

The clause oversteps the mark—it creates the wrong balance between the Executive and citizen. The Minister would do well not just to think about it again and to promise to come back later, but to withdraw the clause because it imposes unnecessary penalties on citizens and an unfair system of redress in relation to them.

The Committee has just agreed that clause 9 should stand part of the Bill. The effect of that decision is that if the Bill completes its journey into statute, the Secretary of State will have the power to issue civil penalty notices to individuals who do not comply with it. As I said, the reason for proposing a civil penalty regime rather than a criminal offence is to ensure a degree of consistency between the Bill and the system of sanctions established in the Identity Cards Act 2006 and approved by Parliament. We would run into serious difficulties once the ID cards of foreign nationals had been designated as ID cards if we had a civil regime for ID cards and a criminal regime for biometric immigration documents. Given that clause 9 will now stand part of the Bill and that the Committee is suggesting that the Secretary of State should be equipped with the power to issue civil penalty notices, it would be problematic if the Committee did not provide for individuals to be able to object to the Secretary of State’s handing out civil penalty notices.

Clause 10’s provisions are quite straightforward. They will ensure that once the civil penalty regime is up and running, it runs fairly. We want to ensure that disputes between foreign nationals and the Secretary of State can be resolved at minimal cost. The clause will not eliminate any right of appeal. It is designed to act in accordance with existing schemes provided for under the Identity Cards Act. The point that I want to underline is that the offence of non-compliance with the provisions in the Bill will not be a criminal offence but a civil offence.

We are suggesting a civil penalty regime because that is how we think compliance can best be secured. A system of criminal offences would be slower—justice would be less swift—and less effective. Having provided for a civil penalty regime, it would be a bit strange for the Committee, and indeed for the House, to remove protections that have long been available in this country and abroad to citizens who disagree with the penalties handed out by the Secretary of State. It is absolutely essential that individuals should be able to object to decisions made by the Secretary of State, backed by the right of appeal if they choose to take the matter to that territory. I commend the clause to the Committee, as it is an essential protection and a consequence of clause 9.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 5.

Question accordingly agreed to.

Clause 10 ordered to stand part of the Bill.

Clauses 11 and 12 ordered to stand part of the Bill.