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Mr. Clarke: I have no particular desire to avoid the hon. Gentleman's pressing the amendment to a Division but I shall tell him, just for the purposes of clarity, that a paperwork issue can arise only when the individual who has been given a fixed penalty notice decides that they would prefer to take the matter to trial, as they have been informed that they may; in other words, they would be in exactly the position that they are in now, except that a fixed penalty notice would have been written. We expect such cases to be in the overwhelming minority, obviously, because we expect that a fixed penalty notice will be served only in those circumstances where, by agreement, it is taking place along with the other exchanges. That will save all the paperwork that would otherwise have been done. Mr. Heald: My point is that the cases that are the ones that are likely to be tried are of the type in which a person would want to fill in an extra statement. It is difficult to see why, in those circumstances, one would ever go for the fixed penalty notice option, unless the Minister is telling us that his guidance will suggest that one should. If it is a complicated issue, involving issues of identity, and the officer feels that he really needs a full statement, it is likely to be the sort of case that ends up in a trial. Mr. Clarke: As we made clear in the debate yesterday, the guidance will say that in areas where the identity of the individual is uncertain, for example, the guidance will be not to issue the fixed penalty notice but to use the ordinary approach. Mr. Heald: I am still not convinced. It seems to me that the fixed penalty notice should be for the simple cases where a person can write out the notice quickly, with a short statement of what the offence is, and if a person starts saying that it should be some more complicated procedure for a body of cases, that is not right. I shall therefore press amendment No.79 and withdraw the other two amendments. Question put, That the amendment be made:— The Committee divided: Ayes 6, Noes 12.
Division No. 6]
AYES
NOES
Mr. Heald: I beg to move amendment No. 80, in page 3, line 33, leave out subsection (6) and insert—
The amendment is straightforward. It requires the regulations setting the levels of fixed penalties to be debated and dealt with under the affirmative resolution procedure. As we have heard this morning, important issues have arisen about the level of the fixed penalties, the seriousness of the offences, the likely effectiveness of the notices, ability to pay and enforceability. All these issues are involved in the question of at what level the fixed penalty notices should be set, and we think that it would be right for the House to have the opportunity to debate that question, given the sort of debates that we have had today. Mr. Crispin Blunt (Reigate): I shall rise briefly to support my hon. Friend because the Minister was kind enough to make it clear that he had accepted Opposition amendment No. 9, which would subject orders to the affirmative resolution procedure. Mr. Clarke: I did so in a moment of weakness. Mr. Blunt: Let us hope that the Minister will have another moment of weakness. It is important that the principle should carry across that if one is to change not only the nature of the offences but the amount of the fine, the matter should go in a positive rather than a negative form before the House of Commons.
5 pmMr. Simon Hughes (Southwark, North and Bermondsey): I am happy to support the amendment. We regularly debate in Committees whether we should have affirmative or negative resolutions. There are two reasons for having an affirmative resolution. First, we are dealing with an area of justice that cannot be scrutinised by the courts if it never gets further than the first stage. Parliament therefore needs to ensure that it grants permission positively for that to happen, rather than just letting it happen. Secondly, Ministers will rarely return to the House to change the tariff, given the nature of the debate that we have had. We have never before had a proposal for such wide-ranging offences. Even if later there were to be a change from affirmative to negative procedure because it became accepted within a certain category of offences, that is not the case at the moment. It is an innovative proposal and it deserves to be considered by the House. I have a question that may or may not help my argument. Does a change in the fines tariff require an affirmative or a negative resolution? Mr. Hawkins: There seems to be one additional point that strengthens our case here. As has been repeatedly pointed out, we have no guidance at present, despite the fact that at the end of the preceding debate, the Minister told my hon. Friend the Member for North-East Hertfordshire categorically that the guidance will say this and the guidance will say that. If the Minister can be so sure about what the guidance will say, why cannot we have that guidance? If the Government insist on using only negative resolution procedures, which, as the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) pointed out, are the subject of regular debates in Committee, it would be much easier for them to maintain that position if we had already seen the guidance. As we have not seen the guidance it is surely necessary, with a novel procedure, for matters to be subject only to affirmative resolution procedure so that each time the House has a fresh opportunity to consider them. Sir Nicholas Lyell (North-East Bedfordshire): The Secretary of State seeks the power to set particular penalties in an entirely new situation. The House should play a full part in that. The Secretary of State should know that he will have to come to the House to explain the reasons for particular penalties in these important, and to some extent revolutionary, new areas. They are revolutionary because they deal with areas that are generally accepted as criminal, although they will not give rise to criminality if the fines are paid in the same way as many of the standard fixed penalty fines, such as for parking. Although such fines can be antisocial, they are simply regarded as one of the regulatory items of day-to-day life. Therefore the House should maintain a proper control over the level and the Secretary of State should be aware of it. It is not a precedent. It is not a great burden on the Secretary of State to concede this. I hope that the Minister can tell us today that he will think again and come back on Report with the Bill amended in Government form. Mr. Clarke: As the hon. Member for Southwark, North and Bermondsey said, we frequently have this debate. I will attempt to describe it in the language of my youth, when we talked about rentamobs and rentaquotes, and say that we are having a rentanaffirmative resolution debate. In fact we must use judgment. That is the purpose of the debate. There is parliamentary control, whatever the circumstances. It is a question of the nature of the parliamentary control. I would argue that there is a qualitative distinction between an affirmative resolution on whether a particular offence is brought within the remit of the Bill—which is what we agreed on clause 1 when we agreed with the Opposition's amendment—and an affirmative resolution when we are talking about setting the level of penalty and the regulations providing the form of the penalty. They are qualitatively different, and if there is to be any qualitative judgment that does not simply say that every decision must be subject to the affirmative resolution procedure, I cannot think of a better illustration than the qualitative distinction between the question of applying this sanction to a new offence and the question of the level of the penalty and the regulations providing the form of the penalty. My argument is strengthened significantly by observing that the discretion of the Secretary of State in relation to these areas is already highly constrained by the fact that the
I urge the hon. Member for North-East Hertfordshire to withdraw his amendment. Unfortunately, I am not in a position to answer the question asked by the hon. Member for Southwark, North and Bermondsey at this minute, but I will write to him about the question of the negative resolution procedure's applying to fines more generally. Mr. Heald: Given that the Minister would not concede that it should be a quarter of the maximum, and that he will not tell us what level of fines he has in mind, it is not unreasonable for us, as parliamentarians who are supposed to be scrutinising what the hon. Gentleman is up to, to say that we want to be able to debate this when the order comes up because so far he has not told us what he is up to. I do not mean to be disrespectful to the Minister, but he must understand that if he does not provide the Opposition with information, he must expect to have to debate these issues at a later time. Mr. Clarke: Regarding those two specific points, with respect to the hon. Gentleman, I do not think that he can have been listening. On the question of a quarter or a half, I said that I would think about it. I did not simply dismiss the proposal out of hand. I said that I could see a case for it and that I would think about it, and I will. On the question of the average level, I said that the responses to our consultation document from a wide variety of organisations were that the fines should be of the order of £50 to £100, and I said that the Government's thinking was not significantly divergent from that. In particular, I said that the hon. Gentleman's suggestion—which I know that he was probing with, not suggesting—that we might have a fixed penalty fine of £2,500 for a particular offence was completely outside the bounds of any proposition that we might have. I cannot accept the hon. Gentleman's proposition that I have given no guidance either on the question of the half or quarter or on our approach to the overall level of fines. Obviously, he will decide how to press this point, but I urge him to think again, unless he simply wants to develop a reputation that is traditional to Oppositions—it is not particular to Conservatives—of simply saying that there should be an affirmative resolution on everything that comes along. If there is a question of intelligence and judgment to apply to it, I put it to the Committee that there is a difference between the question whether to bring an offence within the remit of the Bill, where the affirmative resolution does have weight, and the questions of the precise penalty and the precise form of the penalty notice, which I would argue are of a subsidiary level of significance.
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