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Lord Bassam of Brighton: I accept the point that this is the stage at which we should be as constructive as we possibly can be about elements of the Bill. I make this observation. We have issued some draft guidance on the way in which the fixed penalty notice scheme will work. If Members of the Committee are concerned about the operation of the detail--a good deal of the discussion has been about the detail--we want to hear more precisely about those concerns. We need to put the legislation in place so that the scheme can work. We intend to pilot the scheme with the close co-operation of the police. There is always an opportunity to see how the scheme works on the ground. That is our intention. We want to make these measures as practicably based as possible. I hope that those are taken as constructive observations.

Having listened to what the noble Baroness, Lady Buscombe, said, I appreciate that there are problems with urination, defecation and so on in urban areas. I do not dismiss those concerns at all. I look forward to receiving correspondence from Westminster

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Council on the size of the problem and the shortcomings that it might feel exist in the current legislation. I very carefully drew attention to legislation on the statute book that might be of help.

Members of the Committee have made constructive comments. Those comments were designed for the purpose of taking forward the debate. I do not dismiss those concerns at all.

Lord Phillips of Sudbury: I am grateful for the Minister's assurance. However, it does not satisfy us as we are of the view that if the Government were sensible they would limit the type and number of offences for which on-the-spot fines can be levied. I shall not go over our arguments for believing that beyond saying that many speakers in this mini-debate have referred to the difficulties in establishing the necessary evidence and the necessary mental element in this truncated procedure. I think of what the noble Lord, Lord Windlesham, said. I think also of what the noble Lord, Lord Cope, said in response to the Minister's point about compensation orders, which cannot be imposed under the system of on-the-spot fines. That point was laboured effectively by my noble friend Lord Thomas of Gresford.

For all those reasons, we are not content with leaving matters as they are. What the Minister said about guidance--the noble Lord, Lord Brennan, made the point--was not satisfactory. Guidance is guidance. The police have the job of working the scheme. It is their discretion and their authority that will be at stake. Indeed, it would be dangerous if the Home Secretary's non-statutory guidance could tie the hands of police forces. We think that the discretions are too wide and that the experiment is too wide. If the Government were to accept the proposed de-limitations, it would be helpful all round. I am inclined to test the opinion of the Committee.

6.34 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 107.

Division No. 2

CONTENTS

Addington, L.
Beaumont of Whitley, L.
Bradshaw, L.
Clement-Jones, L.
Falkland, V.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Lester of Herne Hill, L.
Ludford, B.
Mackie of Benshie, L.
McNally, L.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Park of Monmouth, B.
Phillips of Sudbury, L. [Teller]
Razzall, L.
Redesdale, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roper, L.
Scott of Needham Market, B.
Shutt of Greetland, L.
Thomas of Gresford, L. [Teller]
Thomas of Walliswood, B.
Tope, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wigoder, L.
Williams of Crosby, B.
Windlesham, L.

NOT-CONTENTS

Acton, L.
Ahmed, L.
Amos, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Blease, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L. [Teller]
Chandos, V.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Healey, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollick, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B. (Lord Privy Seal)
Jenkins of Putney, L.
Judd, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Longford, E.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mitchell, L.
Molloy, L.
Morris of Manchester, L.
Nicol, B.
Patel of Blackburn, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rogers of Riverside, L.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Serota, B.
Shore of Stepney, L.
Simon, V.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

30 Apr 2001 : Column 493

6.43 p.m.

[Amendments Nos. 2 to 6 not moved.]

Clause 1 agreed to.

Clause 2 [Penalty notices]:

Baroness Buscombe moved Amendment No. 7:


    Page 3, line 3, leave out "has reason to believe" and insert "believes beyond reasonable doubt"

The noble Baroness said: The subject addressed in Amendment No 7 has already been aired to some extent this evening. Clearly, it is important in relation

30 Apr 2001 : Column 494

to the overall Bill. We on these Benches have real reservations with regard to the burden of proof required for this hybrid offence, which has been likened to a caution.

If the offence is treated like a caution then, as would be the case with a parking offence, that offence is civil as no conviction would result, and payment of a fine serves as proof of admission of the offence. However, can the Minister explain what will happen when a penalty notice is issued? When the notice is given, surely the police officer will be acting as judge and jury, deciding for him or herself whether the alleged offence took place and whether it was of a minor nature, to the extent that an instant fine is the course of action under the circumstances, as opposed to arresting the person. In that case, on arrest the burden of proof will shift to "beyond reasonable doubt".

A police officer faced with a situation where, for example, a fierce brawl has broken out between warring neighbours, will have to make subjective decisions as regards, first, who has been wronged and, secondly, whether that wrong is of such a degree that it should be an arrestable offence rather than suited either to a caution or to an on-the-spot penalty fine. As the Bill stands, the police officer only has to have "reason to believe" that a particular party is in the wrong in order to present them with a fixed penalty notice there and then. If, however, the police officer decides that the harm caused is of such severity that the person whom they believe to be the party in the wrong should be arrested and tried under Section 5 of the Public Order Act 1986, the police officer knows that he or she will have to take time to complete the paperwork and persuade a court that they believed beyond reasonable doubt--in my book that means that they must be almost absolutely sure as opposed to only "thinks probably"--that the person arrested was in fact the wrongdoer in that brawl.

Given the lack of police resources, along with the call of bureaucratic demands on police officers' time, I have a hunch that this will mean that, even in the most severe circumstances and in particular where there is doubt about who of the two warring factions was in the wrong, nine times out of 10 the police officer will be inclined to issue an on-the-spot fine. Can this be right? Where is the deterrent here? Surely this means that the Government should change their mantra from "tough on crime" to "quick fix on crime".

Alternatively, there is the possibility--one that was referred to by the noble Lord, Lord Phillips of Sudbury, when speaking to Amendment No. 1--that perhaps we shall see a popular move on the part of offenders to reject the opportunity to pay a fine on the spot, because they will know that their case has far more chance of being thrown out in a court of law as the burden of proof shifts to "beyond reasonable doubt".

Where do the Government stand in relation to repeat offenders? Let us take the example of hoax callers. We have been told that no national register is to be kept of such offences, in which case a hoax caller

30 Apr 2001 : Column 495

will be able to move with ease and continue his or her despicable behaviour, at the mere risk of picking up a fine.

I repeat that we are in favour of introducing on-the-spot penalties for disorderly behaviour. However, we are seriously concerned to ensure that our criminal justice system is not diminished. It is our duty as legislators to uphold and enhance our system of justice, not to compromise our criminal procedures in order to try to apply a quick fix to the system. We should not skirt round the issue of lack of resources. The system must be adequately resourced and thereby improved.

We would do well to recall the words of the Prime Minister when he said: "I want to be associated with eye-catching initiatives, especially on law and order". Eye-catching initiatives should not lead to knee-jerk legislation. In the words of my noble friend Lord Windlesham, when he referred to this on Second Reading, this will lead to,


    "thin ice in terms of criminal procedure".--[Official Report, 2/4/01; col. 677.]

Those who are unable to pay will be sent to prison. If these fines are supposed to be, in the words of the Secretary of State, equivalent to a caution, is prison the sensible route for a person who fails to pay for that caution? What if they cannot pay? I beg to move.


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