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Mr. Malins rose—
Mr. Browne: Let me finish the point and I will then take the intervention.
We are talking about maximum penalties and the provisions allow for lesser amounts to be imposed. How would those lesser amounts be calculated? We have to look to clause 36, which requires the Secretary of State to publish a code of practice setting out the sorts of things that have concerned Members and the matters that the Secretary of State will consider when determining the amount to be paid. That code of practice will, in turn, be laid before Parliament.
Mr. Malins: We look forward to the code of practice. Whatever the code says, however, am I not right that when the Secretary of State imposes the penalty he will not have before him any details whatever to assist him about the—for want of a better word—defendants' means, abilities or lack of them?
Mr. Browne: That does not necessarily follow. In fact, that is highly improbable. That will not be the case, I suspect.
Mr. Malins: Why?
Mr. Browne: Because the code of practice will set out the markers that the Secretary of State has to take into account. It is unlikely in the extreme that any Secretary of State will set out markers that do not include just that information, particularly against the background where almost all penalties imposed in the courts have to be imposed, by law, with an understanding of a person's ability to pay. The ability to pay the penalty will have to be one of the factors that the Secretary of State takes into account. Inquiry will have to be made of a person's circumstances before the penalty is set.
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I would prefer that civil penalties were not used, but acted as a deterrent, which is the purpose of them. Our aim is that people register and, after all, that is in their interest. However, the maximum amounts must be high enough both to deter people and to send a clear message that failure to register is a serious affair. We believe that the maximum amounts do just that, but they are a maximum.
Mr. Allan: Can the Minister inform the Committee whether there is any likelihood of us catching sight of some draft codes of practice, either before we reach the relevant clauses or before the Bill becomes law? This is not technology dependent and, presumably, there are other models on which the codes are going to be based.
Mr. Browne: I will answer that question once I am in a position to do so. I will bear that in mind.
Amendment No. 36, which relates to subsequent failures to register, would fall if amendment No. 37 was accepted. Amendment No. 37 would remove clause 6(6) altogether. The effect would be that the Secretary of State would not be able to impose further fines for continued failure to register. I oppose that amendment because it sends entirely the wrong message, saying, in effect, that failure to register is not a serious matter. When the scheme eventually does become compulsory, its efficacy would be seriously undermined if people could, in effect, avoid registration by paying a one-off fine. If Members object that this provision is draconian, I would remind them that the remedy is entirely within the hands of the individual to comply with the original requirement.
Amendments Nos. 130 and 131 would remove the word ''civil'' in two places in clause 6, in subsections (4) and (6). This is an attempt to make the offences criminal. It is a different motivation from that of the hon. Member for Sheffield, Hallam, who tries to do exactly the same thing in amendment No. 165, informed, in my view, by a partial explanation of article 6 of the European convention on human rights. That imposes a requirement for fair trial.
Those requirements are fully satisfied whether or not the penalty in the scheme is regarded as civil or penal in convention terms. The individual concerned is able to object to the penalty under clause 34, and to challenge the penalty in court under clause 35 and have a full hearing. Eventually, the courts will be in a position to decide on these penalties. That makes the provisions in the Bill fully compliant with article 6.
Several penalties, as the hon. Member for Woking knows, are a well established feature of the carriers liability scheme. They have been tested in the courts against this very argument.
He asked me for specific information on the amounts imposed under the Immigration and Asylum Act 1999 through civil penalties. I am not able to give him that information. I could give the Committee the maximum penalties, but that would not assist in any way. I am not able to give them at the moment, but, should they become available, I will make sure he gets them.
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Mr. Malins: The Minister mentioned the ability of the aggrieved eventually to find him or herself in court. What is probably a matter related to the debate is whether the Minister can give any assurance that, depending on the means of the individual and the nature of the excuse, he or she might have access to legal aid?
4.45 pm
Mr. Browne: I am not in a position to go into that matter in any detail. However, I shall return to it and perhaps we can consider it in the context of clause 34 and other clauses.
The Government do not intend to criminalise people's behaviour under the Bill. We are introducing a system of civil penalties, so that people do not have a criminal record. Most procedures will be settled between the individuals and the Secretary of State and, when courts are involved, they will be civil, not criminal, in cases when appeals are brought.
Amendment No. 165 would create a criminal offence—a summary offence—of failing to comply with the requirements of clause 6. No penalty is mentioned, but even if a moderate one were imposed, if the amendment were accepted a person who refused to register would have a criminal record. That is not what the Government wish and, for that reason, I shall also resist that amendment.
Indeed, I must resist all the amendments and I invite members of the Committee to consider whether they wish to press them to a Division.
Mr. Malins: The Minister has done his best to respond to the arguments that have been advanced, for which I thank him. Clearly, he is unable to go very far because certain matters such as the codes of practice are further down the line and we do not know some practicalities that it would be necessary for us to debate. During the short debate on penalties we have discussed the vulnerable, although he is not yet able to return to us with more detail.
I am particularly pleased by the intervention of the hon. Member for Sheffield, Hallam, who asked a moment ago whether we might have an opportunity before the end of our discussions in Committee to see a draft code of practice, or guidance, as it might inform our debates. We shall keep a careful eye on penalties and possibly come back to such matters on Report.
I thank the Minister for his reply. It has not satisfied us completely, although he would not expect that to be the case. However, for the moment, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.
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Clause 7
Procedure for orders under s. 6
Mr. Allan: I beg to move amendment No. 86, in clause 7, page 6, line 45, at end add—
'(7) Orders made under section 6 shall be considered to be primary legislation for the purposes of the Human Rights Act 1998.'.
In moving the amendment, I am relying on the fact that there is not too much joined-up government at present. That echoes a debate that took place in the context of the Civil Contingencies Bill, which was handled by the Cabinet Office. The Government sought to bring in some sweeping powers as secondary legislation and to treat them as primary legislation for the purpose of the Human Rights Act 1998. We spent a lot of time arguing fiercely against that, so, in tabling the amendment, I am not necessarily expecting the Minister to respond to it affirmatively or even in a super-affirmative fashion. I want only to tease out from him how the Human Rights Act and the provisions of the European convention on human rights will interact with any regulations made under clause 6.
It is important to test matters a little. We seem to have an innovation under clause 7 and I would be interested to hear from the Minister other examples of when a similar procedure has been used. The Government are saying that they do not wish to come back with primary legislation when they want to make matters compulsory. The playing field has moved. When we started discussing ID cards, it was suggested that we would have two pieces of primary legislation. One would bring in a voluntary scheme and we would have the assurance that, if the Government wished to return with a compulsory scheme, it would have to be introduced with the explicit consent of Parliament at a later date.
As I say, my initial assumption was that we would have two pieces of primary legislation, but things have moved on. The Government have come up with firm plans, which are that there should only be one piece of primary legislation, and, to satisfy those with concerns about the compulsory scheme, we have been given the clause 7 super-affirmative procedure.
There are important distinctions to be made between primary and secondary legislation in the context of the Human Rights Act. Primary legislation requires certification; this legislation has to say that it is compliant with the convention rights. Primary legislation cannot be struck down. As the courts have recently found out with the Anti-terrorism, Crime and Security Act 2001, they can say that they do not think legislation is compliant, but they have no ability to strike it down. We had a long debate about the sovereignty of Parliament and I remember that there were different models for human rights conventions and for incorporating human rights into law, including Canadian and Australian models, but we ended up with one that made a distinction between primary and secondary legislation.
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As I understand it, the courts can say that primary legislation is non-compliant, despite it having been certificated as compliant. The courts have the power to strike secondary legislation down. There are advantages to both ways of doing things. If the legislation is left as it stands and if there is a challenge to it, as there may be if a decision to mount a challenge to the law is made by Mr. C. Kennedy of Inverness—
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