Criminal Justice and Police Bill

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The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): I am concerned that the hon. Gentleman is dancing a series of angels on the head of a pin. He is right to refer to the rules. Is it not right that these matters are always sorted out in secondary legislation and in rules? He is asking my hon. Friend, the Minister of State, Home Office for details of precisely how the system will be structured. Does the hon. Gentleman not agree that this is not the place for precise details? For the reasons that he has set out, the matter should be sorted out in rules. We should move on and consider only matters that it is proper to consider.

Mr. Heald: I am grateful to the Parliamentary Secretary for making that point because I cannot find any provision in that part of the Bill that would allow for such rules to be made. Is the Minister able to identify where those rules are to be grounded?

Mr. Clarke: Clause 3(5).

Mr. Heald: That makes my point. That contains the power to make regulations about the prescription of the penalty notice. We are not talking about that now. We are talking about the way in which the notice in clause 3 is to be served. That is not listed as one of the provisions to be prescribed under clause 3(3), 3(5) or 3(6), unless the Minister is telling me I am wrong.

Mr. Clarke: At the risk of being repetitive—I have said this so many times— clause 3(3)(g) states that one of the things on the penalty notice is to:

    ``inform the person to whom it is given of his right to ask to be tried for the alleged offence and explain how that right may be exercised.''

Clause 3(5) states that that will be done by order, in the way that the Parliamentary Secretary has indicated.

Mr. Heald: Yes, but the prescription is for the form of the penalty notice: I refer to clause 3(3)(a). The clause states what is to be within the notice, but the point that the Minister was making, as I understood it, was that there was an order-making power to deal with the issue of how to give the request. I do not see that, unless the Parliamentary Secretary would like to intervene again.

Mr. Lock: This is the last time that I will rise. Clause 4(3) states:

    ``Such a request must be made by a notice given by A—

    (a) in the manner specified in the penalty notice''.

How that is to be ascribed in the notice will be set out in regulations to be made under clause (3)(3)(g). Accordingly, if the hon. Gentleman links the two provisions, he will see beyond a shadow of doubt—it should be clear even to him—that the terms of the penalty notice specified in regulations will include the manner in which the request for a trial is to be exercised in accordance with clause 4(3).

Mr. Heald: The Parliamentary Secretary should not shake his head; this is an important point.

Sir Nicholas Lyell: With the help of the Parliamentary Secretary and the Minister, we are focusing on the point, which is that the Secretary of State must in his regulations explain how the rights may be exercised. We have been asking the Minister to tell us, but so far, apart from telling us that the Secretary of State must do so, he has gone no further. That is my worry; does my hon. Friend share it?

Mr. Heald: Yes. The provision says that the form will be prescribed; fine. Clause 3(3)(g) says that the notice must inform the person of the way in which his right may be exercised. Clause 4(3) says that the request must be made

    ``in the manner specified in the penalty notice''.

I fully understand all that, but is the Parliamentary Secretary saying that that will include a provision on what amounts to effective service of the request for trial? If so, will he give us detail about what he has in mind?

Mr. Hughes: May I break the habit of a lifetime and say that on this issue I think that Ministers are right, although we have not had the answer to the question? It is clear to me that there is a power under secondary legislation to table regulations that deal with the procedure, and in the procedure the process will be explained. I think that is what Ministers are saying, and I share that interpretation. I hope that they will register that they owe me one later, because this is a rare occurrence.

However, there is a substantive issue, because we have not seen the guidance, so it would be helpful, earlier rather than later, to have the regulations, or at least the draft of them—it would be helpful if Ministers would tell us whether they have, somewhere on their desks, in their brief or with their officials, all the bits and pieces: the annexes to the Bill; secondary legislation; guidance; and the rest. I think that that would deal with a lot of the obfuscation.

Sir Nicholas Lyell: I am grateful to the hon. Gentleman; he is my Member of Parliament in London and he was my late mother-in-law's Member of Parliament in London. I hope that he will agree that, in the context of parking, if we do not get things right to the letter, we are into a nightmare of correspondence. That is my experience when dealing with people who had friends and relations who were well capable of helping them, however frustrated they were. People being served with fixed penalty notices are often likely not to be terribly well educated, and if it is not clear—

The Chairman: Order. I asked members of the Committee to make interventions brief and to the point, and not turn them into speeches. If they want to make contributions to the debate, they can do so.

Mr. Hughes: I accept the proposition of the right hon. and learned Gentleman. I represent many hon. Members when they are in London, and many have come to me in the past year to ask for my help in taking up an issue that they have been unable to resolve. If people in this league are not able to sort out problems of administration with local or central Government, and have to come to their Member of Parliament, it does not hold out much hope for rest of the citizenry of the country who are in difficulty.

There are numerous Appeal Court decisions on the process surrounding the forms used for fixed penalties for parking and motoring offences. Hundreds of cases have ended up there, because people have argued about the breathalyser process or the parking ticket process.

I think that the Ministers are correct in their interpretation of clauses 3 and 4, but I would like them to tell us when we are to have sight of the process regulations and all the other things that are referred to as coming later in the Bill? We can barely contain our excitement.

Sir Nicholas Lyell: I shall be very brief, Mr. Hood—your reproof was quite rightly made. The Minister has answered me as far as he can, in that he has pointed out that the Secretary of State will be under a statutory duty to make it crystal clear, pursuant to clause 3(3)(g), how the right to opt for trial may be exercised.

The Minister has suggested by waving some document from the Metropolitan police that there may be some precedent for the provisions. It would be very helpful if, perhaps at our next meeting on Thursday, he could come up with precedent to meet the case. I seek not to prolong our proceedings but to attain clarity in what I believe to be a matter of great importance.

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

The Committee divided: Ayes 11, Noes 1.

Division No. 9]

Bailey, Mr. Adrian
Brinton, Mrs. Helen
Clark, Mr. Paul
Clarke, Mr. Charles
Grogan, Mr. John
Hamilton, Mr. Fabian
Humble, Mrs. Joan
Lock, Mr. David
Smith, Miss Geraldine
Sutcliffe, Mr. Gerry
Thomas, Mr. Gareth R.

Hughes, Mr. Simon

Question accordingly agreed to.

Clause 5 ordered to stand part of the Bill.

6.58 pm

Sitting suspended.

9.30 pm

On resuming—

Clause 6

Secretary of state's guidance

Mr. Heald: I beg to move amendment No. 97, in page 4, line 15, leave out `issue guidance' and insert—

    `by order issue a Code of Practice'.

The Chairman: With this it will be convenient to take the following amendments: No. 14, in page 4, line 20, at end insert—

    `( ) about the account to be taken by constables of the means of a person to be served with a penalty notice to pay the penalty specified in the notice.'.

No. 112, in clause 6, page 4, line 20, at end add —

    `(d) in issuing guidance hereunder the Secretary of State shall now regard to the need

    (i) not to issue a penalty notice in circumstances where to do so involved a significant risk of exacerbating the potential for disorder

    (ii) to encourage and not to diminish the opportunity for reparations and restorative justice.'.

No. 98, in page 4, line 20, at end add—

    `( ) No order shall be made under this section unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

Mr. Heald: The amendment would require that the guidance under clause 6 should be in the form of a statutory code of practice and would place the Secretary of State under a duty to issue such guidance.

Amendment No. 14 would require the guidance to explain the account that constables should take of the means of the person who is given a fixed penalty notice. Amendment No. 112 would require the Secretary of State to have regard to the need not to issue a fixed penalty notice, when to do so would involve a significant risk of exacerbating the potential for disorder. It would also encourage, and not diminish, the opportunities for reparations for restorative justice. Amendment No. 98 would require the affirmative resolution procedure to be employed in respect of the order approving the code of practice.

The guidance is important. We have heard a great deal about it, although we have not seen a draft. I know that the Minister will find that a repetitive strain.

Mr. Charles Clarke: But powerful none the less.

Mr. Heald: Indeed.

The guidance deals with the exercise of the constable's discretion in issuing of the fixed penalty notice, and it is designed to encourage good practice. Had we seen the draft guidance, I should have been far less keen for it to be in the form of a code of practice and should have preferred to have debated it here. The Committee should have an opportunity to debate something as important as the guidance, on which the Minister has relied on numerous occasions in explaining the Bill's provisions. I should have been happy to debate it in Committee, but as the Bill was put together at short notice, the guidance is obviously not ready.

The Police Federation has concerns about the difficulty that a police officer might face when trying to decide how severe an offence is and whether it merits a fixed penalty notice. The Minister made that point in our first sitting. On the vexed issue of compensation for criminal damage, he promised that no case in which a person can be identified as the victim would result in a fixed penalty notice, so those people would not be deprived of compensation. He has told us that he will issue guidance to make clear the type of offence with which the scheme is designed to deal. That shows that he clearly recognises the importance of the guidance.

Various points have been made about the issuing of notices, which is another aspect of the guidance. We believe that matters of such importance should be dealt with in a code of practice that has been debated by Parliament. One can understand what the Bill means in practice only if one has seen the guidance, so it should be debated.

With regard to the means of the accused person, to which amendment No. 14 refers, we need to see the guidance because of the breadth of the discretion involved. In our first sitting, the Minister said:

    ``Regarding the inability of the poor to pay on time, we believe that there is flexibility in the situation. The hon. Gentleman discussed potential police victimisation. Police officers already have discretion in how they deal with offenders. They can charge, caution or move on someone whom they find committing an offence. Fixed penalties are simply an additional power in the repertoire that is already used professionally by the police. We do not accept the charge that this is a charter for incompetent police, which is what has been suggested.—[Official Report, Standing Committee F, 6 February 2001; c. 28.]

The Police Federation and members of the Committee want to know how he expects that discretion to be used. If we are not be told in Committee, the House should have an opportunity to find out at a later date.

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Prepared 13 February 2001