Clause
46
Restrictions
on proceedings for offences under section
45
Mr.
Gibb:
I beg to move amendment No. 38, in
clause 46, page 25, line 13, after
‘45’, insert ‘or an advocate of that
person’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 83, in
clause 46, page 25, line 13, at
end insert—
‘(6A) In making
representations to the attendance panel the person alleged to have
committed the offence shall be entitled to
advocacy.’.
No.
87, in
clause 46, page 25, line 17, at
end add—
‘(9) The Secretary
of State must by regulations make provision setting out the rules of
the proceedings of the attendance panel in relation to its functions in
subsection
(6).’.
Mr.
Gibb:
Before proceedings can be instituted against a young
person for failing to comply with an attendance notice, the local
authority must consult an attendance panel. The panel has to recommend
to the local authority that proceedings be instituted. However, as we
have discussed, subsection (6) requires the attendance panel first to
invite the young person to make representations to it. The process
contains a significant number of safeguards before criminal proceedings
are started, but for some young people, even those safeguards might not
be enough to avoid an
injustice.
We have
already debated the evidence of Barnardo’s about further
safeguards such as that advocacy should be available where it is needed
to enable a young person’s voice to be heard at the attendance
panel at every stage of the process, especially for those with learning
or communication difficulties. I will not repeat those arguments,
except to say that even young people without special needs are
inexperienced in putting their own case and may be intimidated by
proceedings, regardless of how informally they are
conducted.
Amendment
No. 38 would put into subsection (6) a requirement that the attendance
panel invite the young person or an advocate to make representations to
it. That is all that I will say about that amendment. Amendment No. 83,
tabled by the hon. Member for Yeovil, makes a similar
point.
Amendment No. 87
would require that the Secretary of State set out the rules of the
proceedings of the attendance panel in regulations. In particular, it
refers to the hearing of representations from the young person against
whom it is considering instituting criminal proceedings. As the panel
will have a quasi-judicial, or even judicial, function along the lines
of a grand jury in the United States, it is important that the
proceedings follow the rules that apply to tribunals and courts. It
should not necessarily follow the rules of formality, but it should
certainly follow the rules of evidence. It should be made clear, for
instance, whether the young person will be able to question the panel
or the local authority that is instituting the proceedings.
Clarification from the Minister on how the panels will operate would be
very
helpful.
Mr.
Laws:
I shall say no more other than that amendment No. 83
was tabled by the Liberal Democrats and that we want the Government to
put a commitment in the Bill that gives the person an entitlement to
advocacy for the reasons that we discussed earlier. It will be
interesting to hear the Minister’s response to that proposal.
Given that he considered for a while the possibility of granting
advocacy for a particularly vulnerable group of young people, we are
interested to hear his views about the wider
cohort.
Jim
Knight:
When the attendance panel is considering whether a
local authority should be able to begin proceedings against a young
person, it is required to invite the young person to make
representations to the panel. Under amendment No. 38, when considering
that, the attendance panel would have to invite either the young person
or an advocate for the young person to make representations to it.
Amendment No. 83 would entitle the young person to advocacy in making
those
representations.
We
are placing the duty to participate on the young people, so it is right
that they should always be invited to make representations. I do not
believe that, in reality, anyone would disagree with that. I very much
agree that the young person should be able to bring someone with them
to the panel if they want to, and we shall allow for that in
regulations. The panel will also invite other people who understand the
young person’s circumstances to make representations. Both those
and the young person’s own explanation will be important in
helping the panel to understand the individual circumstances of the
case and the steps that have been taken to help, support and re-engage
the young person, and so decide whether everything possible has been
done.
How the panel
invites representations to be made to it will be set out in
regulations, as amendment No. 87 proposes. Clause 43(3) makes provision
for that. It is appropriate to put the detail of the operation of the
panel in regulations and to take time to consult on that. With those
assurances, I hope that the hon. Member for Bognor Regis and
Littlehampton will withdraw the
amendment.
Mr.
Gibb:
I take the Minister’s point about the wording
of amendment No. 38 and the use of “or”, so I shall not
press that amendment to a Division. I am also reassured by the hon.
Gentleman’s firm statement that he will include in the
regulations a requirement that advocates will be permitted to accompany
a young person appearing before an attendance panel. On that basis, I
beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Laws:
I beg to move amendment No. 183, in
clause 46, page 25, line 17, at
end add—
‘(9) The
proceedings may not be instituted unless the local education authority
is of the opinion on reasonable grounds that they have exhausted all
other options for encouraging the young person to comply with their
attendance notice.
(10) The
Secretary of State shall make regulations providing a definition of
“all other options” under subsection (9), setting out the
circumstances at which this stage may reasonably be considered to have
been reached.
(11) In
determining whether all other options have been exhausted with an
individual young person the local education authority must have regard
to the statutory definition provided by the Secretary of State under
subsection
(10).’.
It
is clear what the amendment would achieve. Proposed new subsection (9)
is clearly an attempt to ensure that, given the seriousness of the
measures that we are considering, every possible attempt has been made
to engage with the young person and to allow them to comply. Proposed
new subsection (10) would require the Secretary of State to make
regulations that provide a definition of “all other
options” to ensure that it is clear to local authorities what
obligations they must pursue before deciding that a person is not
compliant. I should be grateful for the Minister’s view on the
amendment.
Jim
Knight:
I put it to the Committee that the amendment is
unnecessary because the attendance panel is the safeguard that ensures
that the local authority has exhausted all other options for
encouraging the young people to comply with their attendance notice. It
does that by intervening at two critical stages in the process. It has
the power to dismiss or confirm the attendance notice on appeal, and it
must consider the young person’s case again if a local authority
wishes to begin proceedings in the youth court. In both instances, the
panel is the mechanism that would ensure that the young person’s
case does not progress to the next stage of the enforcement process,
unless it considers that all other options for encouraging the young
person to comply with the requirement to participate have been
exhausted. On that basis, I hope that the hon. Gentleman does not press
the amendment to a
Division.
Mr.
Laws:
Given that the Minister has said that he is more or
less happy with everything in the amendment, we would have preferred
that he had accepted it. However, given his assurances, I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
46 ordered to stand part of the
Bill.
Clause
47
Failure
to comply with attendance notice: penalty
notice
4
pm
Mr.
Gibb:
I beg to move amendment No. 40, in
clause 47, page 25, line 38, at
end insert
‘provided
that such penalty does not exceed
£200,’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 175, in clause 47, page 26, line 20, at end
add—
‘(6) Penalties issued
in accordance with the provisions of this section shall not exceed
£50.’.
Mr.
Gibb:
The interaction between clauses 45, 46 and 47 seems
to be rather complicated. I may well not have understood it properly,
in which case I hope that the Committee will forgive me. My
understanding is that clause 45 states that a person who fails to
comply with an attendance notice is guilty of an offence and is liable
to a fine not exceeding level 1 on the standard scale, which is
£200. Clause 46 prevents a local authority from taking action
under clause 45 until a penalty notice under clause 47 has been issued
and not paid. It states that the amount that can be imposed by a
penalty notice is to be determined by regulation. Clause 47(4)(b)
states that regulations may make
“provision as to the amount of any
penalty and the time by which it is to be
paid”.
Therefore, the
restriction of the fine to £200—level 1 on the standard
scale—that applies to clause 45 appears not to apply to clause
47. It would therefore be helpful if the Minister could set out his
intentions for the amount and the time allowed to make the payment that
will be put in the regulations made under clause 47(4)(b).
Barnardo’s has raised its
concern about the amount of any penalty under clause 47 and wants there
to be safeguards. In its briefing to the Committee, it stated that it
wanted safeguards that
the
“level of the penalty
notice...is set at an amount that reflects the level of financial
support available to the poorest young people...and that the fine
will not increase if not paid within the specified time
limit.”
Barnardo’s
said that it
“is concerned
that escalations in fines for non-payment are most likely to be
incurred by those least able to pay.”
Assurances from the Minster on both
points—the level of the fine and an assurance that fines will
not escalate for non-payment—would be helpful.
Amendment No. 40 would set the
level of the fine at £200 as a probing amendment to extract the
Minister’s intentions. The Children’s Rights Alliance
said that fines can be counter-productive and might lead many young
people “into debt and crime.” It also stated that this
will be
“yet another trap
door through which the most alienated children may be brought into
contact with the criminal justice system and spiral into
debt.”
Finally,
the Local Government Association has expressed its concern about clause
47,
saying:
“From a
practical enforcement perspective, this provision assumes ability
and/or willingness to pay, apart from other matters, notably costs to
local authorities pursuing the payment of
penalties.”
It would be
helpful to the Committee if the Minister answered those concerns in his
response.
Mr.
Laws:
Amendments Nos. 40 and 175 deal with similar issues
and are living proof that life would be cheaper and people would be
better off under the Liberal Democrats. Although the hon. Member for
South Holland and The Deepings talked about social justice earlier,
here we have proof that, were the Liberal Democrats to get their way,
instead of setting the maximum level of the fine at an extortionate
£200, we would set it at the more modest level of
£50.
That is a
way not only of trumping the Conservative party on the amendment paper,
but of drawing attention to the fact that the income of young people is
often very slight indeed. The level of benefit paid to young people has
been gradually eroded in relation to average earnings over many years.
There are often differentials between the levels of benefits paid to
young people compared with those paid to adults. Although £200
might not sound like much to many of us in this place, it is a lot for
many of the young people who will be affected by the provision. That is
why I would suggest to the Minister that the Government should be
contemplating a much lower maximum penalty. I would like to hear the
Government’s thinking on the
matter.
I would also
like to support the comments made and the questions raised by the hon.
Member for Bognor Regis and Littlehampton. He was good enough to
indicate that he was expressing some of the concerns raised by
Barnardo’s about the fact that the fines and the way they will
operate will be left to regulation. Therefore, we do not know what the
absolute level will be or how those fines will be recovered from
people. The hon. Gentleman raised most of the issues covered
in the Barnardo’s memorandum and he specifically asked for the
Minister’s confirmation of what he has in mind for the maximum
amount for the fine. I second his request for clarification on that
matter. He also asked the Minister to indicate whether the fines will
escalate over time if they are not paid; that was the second question
asked by
Barnardo’s. The
hon. Gentleman referred to two other points, but he did not ask the
Minister specifically to clarify them. I would be grateful if the
Minister responded. One of those points was whether there would be a
sliding scale of penalty notices based on a young person’s
income. I do not know whether the Government have ruled that out, or
are considering that it would be useful not merely to leave that to
guidance. The final point on which I request a response from the
Minister is whether young people would be able to make the payments in
instalments, and whether they would be financially penalised for doing
so.
It is evident from
the representations made by the local authorities on the clause that
they are worried about taking large amounts of money from this group of
young people, how the fines will operate, how collection will operate,
and what the cost of collection will be. They are acutely aware of the
low incomes of the young people we are talking about. Although the
Minister will be tempted to say that that it is all up to guidance and
is a minor administrative matter, it is not. It will be fundamental to
how the Bill operates, how just or unjust it is, and whether young
people will be able to pay the penalty notices or will be dragged
further in to the criminal justice
system.
Jim
Knight:
I will try to set out as quickly as I can but in
sufficient detail how some of the process will work, as legitimate
questions have been
asked.
The clause
provides the power for the Secretary of State to make regulations about
penalty notices to be issued in the event of failure to comply with an
attendance order. The regulations relate to the form and content of the
penalty notices, their amount and the procedures for them to be issued
and paid. The scope of the regulations is limited to the operation and
administrative details of issuing a penalty notice, and will therefore
be consulted upon.
We
will consider having a sliding scale, but based on subsequent penalties
rather than income. It is worth saying that it would be dependent on a
young person being in employment and so able to afford to pay the
penalty notices continuously—going through the process and
paying them off one after another. The penalty could potentially be
raised with each subsequent occasion that they have gone through the
process and paid the penalties off. However, we have no plans for the
amount to increase with non-payment, as the case would simply proceed
to the next step, for obvious
reasons.
Mr.
Heald:
Will the Minister tell us roughly what the rate of
payment is for penalty notices generally? Is it correct that about 60
per cent. of them are paid?
Jim
Knight:
The hon. Gentleman may be correct. In the back of
my mind is a figure of around two thirds, but I will correct that if I
need to.
The regulatory
power will be subject to the negative procedure. The regulations may
also make provision for penalties of different amounts to be payable in
different cases or circumstances, as I have just set out. The amount of
the penalty must be prescribed in regulations to provide the
flexibility to increase the amount to respond to changing costs, rather
than put in primary
legislation.
Mr.
Gibb:
Could that not be covered by inserting “level
1” or “level 2” on the standard scale, as is done
in clause
45?
Jim
Knight:
I am not aware of whether there are standard
levels for fixed penalty notices. If wisdom comes me on that point, I
will pass it on. The levels set are in respect of the youth court,
which is a criminal court, as we have discussed. There are therefore
levels that apply to
it.
It appears that 37
per cent. of 16 and 17-year-olds issued with fixed penalty notices do
not pay them, according to the Ministry of Justice. I hope that that
helps the hon. Member for North-East
Hertfordshire.
Mr.
Heald:
It looks as though both the Minister and I were
about right. According to those figures, how many young people will not
pay these penalty notices and what will happen to those who do
not?
Jim
Knight:
We have made some assumptions on that matter. We
have assumed that half of that figure—18.5 per cent.—will
not pay their fixed penalty notices; they will subsequently go to a
youth court and receive a fine. A lower rate of non-payment is assumed
for the reasons that I outlined in relation to fixed penalty notices
and attendance notices; those reasons relate to the nature of the
offences and the way in which the discussions about support will
work.
As I have said,
the amount of the penalty must be prescribed in regulations to provide
the flexibility to increase the amount to respond to changing costs.
The provisions relate to the operational arrangements and so are not
specified in the Bill. A similar model is in operation in the case of
penalty notices issued to parents of pupils of compulsory school age
under section 444 of the Education Act 1996 and section 105 of the
Education and Inspections Act
2006.
The figure of
£50, which has been used and commented on, was used by the last
Secretary of State for Education and Skills when the Green Paper was
launched. It has no more status than that. As we consult on the
regulations, we will consult on the figure and bear people’s
views in mind when the regulations are drafted. It may be a little
while before that
happens.
Mr.
Laws:
The Minister mentioned the figure of £50, but
I do not understand the point that he is making. Is he indicating that
the level of the penalty notice is more likely to be at or around
£50 than
£200?
Jim
Knight:
The figure of £50 has been suggested for
the fixed penalty notice. The maximum penalty of £200 applies in
the youth court. That is currently the
maximum penalty on conviction of an offence attracting a level 1 fine.
If there is confusion in people’s minds, £200 applies to
the youth court and £50 was the figure used by the previous
Secretary of State when the Green Paper was launched. Others have
suggested, for example, that it could be set at the same level as the
weekly educational maintenance allowance. There are some interesting
ideas and we will consider them. I hope that that information is useful
for the hon. Member for Bognor Regis and Littlehampton and that he will
withdraw the
amendment.
Mr.
Laws:
I apologise for detaining the Committee at this late
stage, but unless I have missed them, in which case I apologise, I am
not sure that we have had the answers to all of the questions that were
put to the Minister. We asked whether there will be a sliding scale of
penalty notices based on a young person’s ability to pay. I
think he said that there will not, but that if people do not pay them,
they will rise for those who can afford to pay because they are in
employment and will not rise if people are not paying for reasons that
are acceptable due to their
income.
4.15
pm
Jim
Knight:
I said that the penalty could increase, not if a
person did not pay the fixed penalty notice, but if they paid it and
subsequently came back before the attendance panel because they
continued not to fulfil their duty under clause 2. In that case, they
would potentially face a higher fixed penalty notice. Otherwise, they
could keep paying off the penalties because they were in employment and
could afford to pay off the fines.
Mr.
Laws:
I am grateful. So, when there are repeat fines to
pay, there would be differential treatment of people in employment
versus those not in
employment?
Jim
Knight:
I am not saying that there would be differential
treatment for people in employment. I used that as example of someone
who, because they are employed, could afford to keep paying off the
fines. That scenario centres on people who persistently come before the
attendance panel for fixed penalty notices but who simply keep paying
them off.
Mr.
Laws:
So for repeat offenders there will, as I understand
it, be an ability to pay-related element in the level of the
fine?
Jim
Knight:
It is not an ability to pay-related measure; it is
a different rate. We are talking about fixed penalty notices, not
sliding penalty notices. It would be a fixed penalty notice, and if the
person came back, it would be fixed at a higher
level.
Mr.
Laws:
I am grateful to the Minister for his patience. So
his answer is that there would be no separate treatment of any type in
the Bill in relation to fines based on ability to pay. I thank the
Minister for clarifying that.
I may have missed this as
well—perhaps I am not attentive enough at this stage of the
day—but did the Minister make any reference to the question of
paying
in instalments? Whether young people will be able to pay in instalments
was one of the concerns raised by Barnardo’s. Also, will the
amount payable escalate if the penalty notice is not paid within a
certain period of time? That was another general issue on which we
wanted clarification; we did not simply want it to turn up in the
guidance note without having had any indication at all. On the first point about the
level of the penalty fine, I was a little reassured when the Minister
spoke about a lower figure or the amount of the EMA. That indicates
that the Government may have a more realistic amount in mind for the
penalty than the figure of £200, which is in one of the
amendments that we are considering. On that basis, I shall not press my
amendment to a Division, but I would be grateful if the Minister was
able to clarify the two other points that were
raised.
Jim
Knight:
Perhaps the hon. Gentleman could look at clause
47(4)(c). Regulations may make
“provision as to the methods by
which penalties may be
paid”.
We can certainly
look at whether there are good grounds to allow people to pay by
instalments—for example if the attendance panel confirmed the
fixed penalty notice and thought that that was
appropriate.
Mr.
Laws:
The Minister is saying that he will consider it, but
that the Government have no position on it at the present time. He has
not mentioned escalation of the penalty notice over time and about what
happens if that is not paid, but I will not press the amendment to a
Division.
Mr.
Gibb:
That was an interesting response from the Minister.
As I mentioned at the outset, this was a probing amendment to ascertain
the likely parameters of the fixed penalty notice. The Minister
indicated that the sort of figure being looked at is around
£50—perhaps slightly more because of the time that has
elapsed since the publication of the Green Paper, but certainly not in
the realms of the figures that Barnardo’s was concerned about.
That is very welcome.
I
was slightly taken aback by the Minister’s assumption that only
18.5 per cent. of people would not pay the fixed penalty notice. In his
interventions, my hon. Friend the Member for North-East Hertfordshire
made the point, using information obtained from the National Audit
Office report, that about 37 per cent. of people do not pay, as the
Minister confirmed. That assumption is rather an odd one, but as Alison
Wolf has pointed out, there are a number of odd assumptions about cost
in the regulatory impact assessment on the measures in the Bill. Given
the Minister’s assurances, I shall not press the amendment to a
Division. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Gibb:
I beg to move amendment No. 39, in
clause 47, page 26, line 16, at
end insert—
‘(4A) Any
provision made under subsection (4)(g) may not include appearance
before any court of law other than the Youth
Court.’.
The
purpose of this amendment is to put into the Bill an explicit
prohibition on taking legal action against a young person who does not
pay the penalty
notice in any court other than the youth court. As the Minister has
said, that is the court where the matter will be dealt with. The
Government’s document, “Raising Expectations”
states in paragraph
4.34: “If the
FPN”—
financial
penalty notice—
“is
unpaid the local authority could bring the case before the Youth Court,
where the penalty on conviction would be a fine... If a fine is
unpaid, the Youth Court cannot use custody as a means of enforcing it,
although it has a number of other options, including taking the money
from wages or imposing an unpaid work requirement.”
It would be helpful if the Minister
explained why there is no explicit reference to the youth court in the
clause and why he cannot accept the
amendment.
Jim
Knight:
Hopefully, the hon. Member for Bognor Regis and
Littlehampton and I can reach an understanding on this. I agree with
the intention behind the amendment. I think it right that the most
appropriate forum where such enforcement action is required, except in
one or two rare cases that I shall specify, is almost always the youth
court. Under the current youth justice system, a person below the age
of 18 would not appear before an adult criminal court solely because
they had failed to pay a fine. The amendment is therefore unnecessary.
Enforcement action other than that in the youth court would be taken
only where a young person was being prosecuted for other offences
alongside the offence of failing to pay a fine.
Magistrates courts may deal with
cases that involve people under 18 but only if they are tried with an
adult. Young people may appear in the Crown court if they are jointly
tried with an adult whose case needs to be heard in that court or where
the charge is very serious and the sentencing powers of the youth court
are felt to be inadequate. Homicide and rape cases, for example, are
always be heard in the Crown court. Because it is right that there
should be flexibility in our court system to deal with the most serious
offences, or those involving young people together with adults, in
courts other than the youth court, I cannot accept an amendment and I
hope that the hon. Gentleman will withdraw
it.
Mr.
Gibb:
I am sure that that exception could have been
incorporated into an amendment to the Bill. However, we have aired the
issue, so I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
47 ordered to stand part of the
Bill.
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