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Mr. Steve McCabe (Birmingham, Hall Green): Which does the hon. Gentleman think is more unreasonable for the individual—not to extend beyond 21 days the period in which an appeal can be brought or to impose a level 3 fine on someone who does not amend the register or give notice to amend it within 14 rather than 28 days, as proposed in Opposition amendment No. 74 to clause 10? Mr. Fabricant: The hon. Gentleman, who is a good friend of mine, may have put his foot in it. He was not present this morning, for I am sure perfectly legitimate reasons. If he had been, he would know that the Minister said that the Government believe that there should be a fine on those who do not give the correct information on application. Mr. McCabe: I was simply making the point that in this case the hon. Gentleman seeks to extend the period of time, but in the other he seeks to shorten it. Shortening the time would allow people less opportunity to avoid a fine, even though they may have legitimate reasons for doing so. The hon. Gentleman seeks under this amendment to extend the scope for appeal. I am trying to understand the logic.
5.30 pmMr. Fabricant: I understand what the hon. Gentleman is saying. The reason for the discrepancy, as he sees it, emerged a little in the debate this morning. In this instance, there may be reasons why someone might not be present to make an appeal. We have been reassured about this to a large degree by the Minister. The example that we gave was that if a person were struck off inadvertently for not trading because he was away for 28 days, he would not be able to make contact with the local licensing authority. In the instance that the hon. Gentleman gives of 16 days, the person would be present and able to say what changes had taken place because, for changes to take place, the business must be trading. That is why there is the discrepancy. I do not want to labour the point, as we are going over slightly old ground, but it is clear. We have not asked for the 21-day period to be changed; we are simply saying that it is conceivable that extraordinary circumstances may prevent somebody from making the appeal within that 21-day period. If they are extraordinary circumstances, we should give the Secretary of State additional powers. It is rare for me to propose that we offer extra powers to a Labour Secretary of State, but that is what we are doing in this instance. I hope—and confidently expect—that, after the next election, it will be a Conservative Secretary of State. It certainly will not be a Liberal Democrat Secretary of State. We are simply offering the Secretary of State extra powers to enable him to decide whether the 21-day period is unreasonable in special circumstances for a business that might be a sole trader or a small limited company. On those grounds, it would be churlish, unreasonable, cruel and unthinking— and would, at the very least, demonstrate a lack of understanding of small businesses—if the amendment were not accepted. Miss McIntosh: The Secretary of State—I am sorry, the Minister; I do not wish to promote him too quickly—would have a reason to refuse to accept the amendment if he were to say that there would be good cause to receive representations in writing after the 21-day period, if that were already allowed under common law. If he were saying that today, we would probably not insist on the amendment. Could he comment on that? Secondly, the explanatory notes put quite a high cost on introducing the Bill to industry and the public sector, through the cost to the chief police officers and the Lord Chancellor's Department and the annual cost to the Crown Prosecution Service. However, the Bill and the explanatory notes are silent on the costs of an appeal to a magistrates court. Clearly there will be the cost in loss of business to the appellant, who would have to exercise his right under the Bill if it were passed in its current form, but there will also be an annual cost to the magistrates court for administering the appeals. What would the cost be? Mr. Clarke: It would be widely recognised as being in everybody's interests to resolve disputes of this kind as rapidly as possible. It is certainly in their interests to fight the criminal fraternity. It is also in the interests of the companies concerned to have the matter resolved as quickly as possible, a view that I believe is shared across the Committee. It is worth going through the time that we are talking about. We are talking, first, about 28 days, or four weeks, in terms of trading, 14 days of representation to the local authority and then 21 days of the appeal process, as set out here. That is a total of 63 days or nine weeks, which is a fairly lengthy process from beginning to end. We chose 21 days because I gather that there is a precedent in the Care Standards Act 2000, which has a comparable local authority scheme for registering homes. However, in fairness to the hon. Member for Buckingham and other Opposition Members who have spoken, they have not sought to change the 21 days as such, although arguments can be made for 25 days, 28 days or whatever it might be. They seek to establish a different framework. Although, as the hon. Member for Lichfield said, there is no obligation on the Secretary of State to grant the appeal, there would an obligation on him to consider it, and to do so reasonably, on the basis of established guidelines, procedures and information that would have to be given to the Secretary of State in making his or her judgment; a whole set of practices would be established. I can see no case for that. I am not lawyer, as I constantly say. Helen Jones (Warrington, North): Sadly. Mr. Clarke: I assure my hon. Friend that there is no sadness on my part, except on the grounds that I am not sharing time with my hon. Friend in court. However, my hon. Friend the Member for Stafford (Mr. Kidney), who is a distinguished lawyer, made the point well. We have a well-established legal structure of appeal to magistrates. We have that because the European Convention on Human Rights and the Human Rights Act 1998 in our law ensure that there cannot be arbitrary justice. In this case, there is, rightly, appeal to the judiciary. The Secretary of State cannot be an alternative to the judiciary, but only a process on the way to it. To establish a complex administrative machine to advise the Secretary of State on the way in which he deals with these questions and moves the process forward is not a desirable way to proceed. I do not seek to demean the motive, but the proposal would over-complicate the situation. The hon. Gentleman's motive would be better achieved by seeking to extend the 21 days than by setting in motion a time-consuming process that would not benefit anybody. Mr. Bercow: The Minister has provoked a thought in my mind that is not covered by our amendment but is none the less relevant. Given that the Government are anxious in this context to specify a period of 21 days within which someone should make an appeal, will he say something about the time scale within which magistrates courts would determine appeals? My hon. Friend the Member for Lichfield rightly referred to the financial implications for businesses, and clearly the efficiency, effectiveness and speed with which these appeals are determined is a matter of the highest importance. Mr. Clarke: Before I answer that, Mr. O'Brien, I shall take an intervention from the hon. Member for Lichfield, and I shall try to deal with both of them at the same time. Mr. Fabricant: I am grateful to the Minister. He rightly said that we have not chosen to extend the 21 days, and I concur with some of his arguments for not including our proposed paragraph. If he recognises that the 21-day period is to some degree arbitrary and that, in a crisis, 21 days may be difficult for a small business, will he consider tabling an amendment on Report to extend the 21-day period? Mr. Clarke: I cited the period involved in the process, which adds up to nine weeks—the 28 days, 14 days and 21 days. At none of those junctures have I included the time taken by the local authority to consider whether it will suspend the registration; the time that it takes to reconsider the representations that are made; and the time taken by the magistrates court to consider the appeal—the point to which the hon. Member for Buckingham referred. I do not want to comment on the specific time taken by the magistrates court, as that is a matter for the judicial process in the regular way. Nine weeks, however, is the minimum period, given that the whole process would be significantly longer. It is not a matter of simply accepting the argument of the hon. Member for Lichfield that the 21-day period is arbitrary. I agree that an element of balance and arbitrary judgment is involved, but we chose the 21 days because local authorities use a similar system when registering homes in such circumstances and we believe that a similarity between different schemes was the way forward. As with the previous debate, I would need to hear a positive argument to move to a system that was not already well established. I do not wish to establish a process that involves the Secretary of State contesting the local authority's judgment. In my short experience as a member of the Government, I know that there are a massive number of processes when the Government are brought in to adjudicate on specific issues. That can be time-consuming for all concerned, requiring a series of processes, which is not efficient. As for the two points made by the hon. Member for Vale of York, the costs to the magistrates courts are covered in paragraph 65 of the explanatory notes, which state that the annual
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| ©Parliamentary copyright 2001 | Prepared 16 January 2001 |
