Baroness Seccombe: These amendments raise the issue of the level of fault necessary to fall foul of the civil penalty regime. By ensuring that individuals will be liable only to a civil penalty if they intentionally contravene an order to register themselves, the amendments will protect those who, through ignorance, inability or pure mistake, do not meet the deadlines or details of the order. The order may not have been served at the correct address or the individual may never receive the order due to illness, change of address or for any number of reasons. To impose a form of strict liability on the individual for breaches of such an order, no matter how blameless the failure to comply, is neither fair nor reasonable. It does not allow for the circumstances of the individual to be taken into account.

No doubt the Minister will seek to allay the concerns raised here by saying that by virtue of Clause 35 there is a right of appeal to the county court. However, although an important safeguard, that should not allow Clause 6 to pass unnoticed. As it stands it is draconian in the extreme. It implements a system of arbitrary fines and penalties, the impact of which
 
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would invariably fall most heavily on the section of the population that is most likely not to be able to meet the requirements of an order and who could least afford to pay—the elderly and students being the most obvious examples.

The appeals process proposed in Clause 35 is not exactly comfort to the pensioner who has to battle against the Home Secretary's decision in the county court. A county court summons could be a very frightening experience for some people and employing lawyers to represent one in the county court is an expensive option and way beyond the means of some people, particularly the elderly and the most vulnerable. The court system is already overburdened and all the scheme will achieve is to overburden it more. The parking fine system and the speed camera system were referred to in another place as deeply unpopular schemes. If this scheme is allowed to go ahead it will likewise cause widespread resentment and unnecessary and costly hearings in county courts across the country.

The size of the potential fine, or whatever one calls it—£2,500—is tantamount to a criminal penalty in practice if not in theory. That is all the more reason to introduce a fault requirement if a penalty is to be imposed. Setting that threshold at the level of intention is reasonable and proportionate: it will prevent the deliberate disregarding of any order and therefore is all that is necessary to meet the aims of Clause 6 and the civil penalty regime. Any more than that and the Bill risks introducing a scheme that will be extremely unfair.

As my honourable friend Mr Mercer said in Committee in another place:

"We are fooling ourselves if we think that we are setting up a nice friendly system. We are talking about coercion driven by money and the extraction of money from the individual in which the individual has to establish, albeit on the civil standard, that he is free of the obligation imposed on him by the Secretary of State".—[Official Report, Commons Standing Committee D, 12/7/05; col. 203.]

By inserting the requirement that an order must have been contravened intentionally, the amendment would shift the burden to the Secretary of State to prove that this was the case, albeit on the civil standard of proof.

Lord Mayhew of Twysden: This is a fairly simple point. The penalty is imposed by the Crown. I regard it—and it is generally regarded—as a fundamental principle that a penalty imposed by the Crown should not be incurred unless it is incurred intentionally. Of course there are rare examples of strict liability but the context of this legislation does not conceivably warrant that.

I think I know—at least in part—what the noble Baroness will say by way of reply. She will refer us to "Objection to penalty" in Clause 34, which states:

"A person to whom a notice under section 33 has been given may give notice to the Secretary of State that he objects to the penalty on one or more of the following grounds".

The second ground is:

"that the circumstances of the contravention in respect of which he is liable make the imposition of a penalty unreasonable".

 
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It would be unreasonable if he did not intend to meet the conditions upon which this legislation imposes the liability. If the Government are prepared to accept that, why on earth are they not prepared to accept these amendments which require intention to be proved before liability for what is a criminal offence is incurred? It is really an open and shut case. I very much hope that the Minister, with her customary fairness, will see this. I do not expect a concession tonight but I very much hope that she will take it away and come back with something next time.

Lord Lyell of Markyate: I support the arguments put forward by my noble friend Lady Seccombe, my noble and learned friend Lord Mayhew and the noble Lord, Lord Phillips of Sudbury. It is pretty clear that a fine of £2,500 would be held to be a criminal penalty, or the equivalent of a criminal penalty, under Article 6. I invite the Minister to look at International Roth GmbH et al v Home Office. Lorry drivers could automatically be fined £2,000 or multiples of £2,000 by the Customs and Excise if there were illegal immigrants in their lorries. That case, as the noble Baroness will remember, was struck down by the courts under Article 6, among other things, a result that was upheld by the Court of Appeal. It was pretty similar—the fine was £2,000 and there could be 10 or 15 illegal immigrants in a lorry, a fact that was often not known to the driver. It was a heavy penalty. The sum of £2,500 could be a very heavy penalty to an individual.

I support the introduction of the word "intentional" and invite the Minister, when she has time, to redraw the provisions so that they fulfil the criminal standard and put the burden of proof on to the prosecution.

Lord Thomas of Gresford: I entirely support everything that has been said, and I will not repeat it. One has to think of the circumstances in which this civil penalty will arise. Clause 37 deals with fees. The Secretary of State will impose fees,

"of such amounts as he thinks fit"

for not just an entry upon the register but a modification of an entry, for the issue of ID cards, for applications for the provision of information contained in entries in the register, and so on. How does he calculate the level of the fees? By having regard to the expenses that will have been incurred in respect of that application,

"expenses that will be or have been incurred by him in respect of such other things mentioned in the subsection as he thinks fit"

and,

"other expenses that will be or have been incurred by him in connection with any provision made by or under this Act".

In other words, the fees will be related to the cost of the whole scheme. That the Government have estimated only £30 for making an application to go on the register indicates that very little thought has so far been given to the implications of Clause 37. We have seen other estimates, varying from £90 to the hundreds, as the likely fees.
 
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Not everybody can pay those fees. Large numbers of people who will be caught by these provisions, particularly when they become compulsory, will be students, elderly people or retired people, for whom fees of that nature will be excessive. Yet if they fail to register because they do not have the money or because they do not, for one reason or another, realise that they have to register, then, under these provisions, they become liable to what is effectively a criminal offence. You can imagine the effect upon elderly people who have led blameless lives who suddenly discover that for something they know little about or which they cannot afford they are effectively criminalised.

Intention is an essential ingredient of any offence that will be brought under this legislation. I think that the reason the word "intention" is not already contained in the provisions is that these penalties are produced not by a human being but by a machine. That is the problem. It is the same with parking regulations and the congestion charge. No human mind is ever put to the circumstances in which there is a failure to comply with statutory provisions. Seeing that there will be 60 million people to be registered, it will be done by machine. Then it is left to the individual to make such representations as he can to the county court at a later stage.

I respectfully suggest that that is entirely the wrong way round. Where there is a criminal offence, strict liability ought not to be imposed and "intentionally" as suggested by the amendments is essential.