Lord Lyell of Markyate: I am most grateful to the noble Baroness for giving way. She makes a good point about a civil penalty as opposed to a criminal penalty. It is really a question of the procedural safeguards when you get to court. The burden of proof should be on the Crown or the equivalent—the Home Office—rather than on the citizen. The other rules that normally apply in the criminal court should apply. After all, that is the way that the European Court of Human Rights approaches Article 6 in this respect. It is not that it minds so much exactly what things are called; it is concerned with the substance of the protections. The amendments that are before us now focus on the substance of the protections and I hope that the noble Baroness will be sympathetic to that. They would do the Home Secretary no harm and they would seriously relieve citizens of potential injustice.

Baroness Scotland of Asthal: The noble and learned Lord knows that Article 6 does not require a particular standard of proof. As a matter of domestic law, the normal standard of proof in civil proceedings will be on the balance of probabilities. The noble and learned Lord also knows that, dependent on the nature of the assertion one has to prove, that burden becomes weightier. If the issue that one has to prove is small and light, the burden on the balance of probabilities is commensurate with that. If the issue at large is heavier and goes nearer to the criminal standard, or the importance of it, the difference between the balance of probabilities and the burden of proof can sometimes be very much the same. I know that the noble and learned Lord is only too familiar with that.

Where a penal sanction is involved, the courts may take the view—as in relation to anti-social behaviour orders—that although the proceedings are civil, an equivalent to the criminal standard is appropriate. In civil penalties for failure to register, the distinction is likely to be academic. That will be generally apparent. I am grateful to the noble and learned Lord for agreeing with me that the civil and not the criminal penalty is the better one to address the nature of this issue. I assure the Committee that penalties will not be issued by a machine. I say to the noble Lord, Lord Thomas of Gresford, that the Secretary of State has discretion as to whether to impose a penalty. He must first be satisfied as to liability. That requires a human mind. I commend Clauses 33 and 36 and the
 
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draft code of practice in that regard. I really do think that a civil penalty is far better. I confess that I am rather alarmed by the suggestion that we should set about criminalising people in relation to this; very alarmed indeed.

10.45 pm

Lord Phillips of Sudbury: I—

Lord Lucas: I am perturbed by this Government's proposal that we should adopt a "Shoot first and ask questions afterwards" approach to penalties. It is not civilised, and it will not be a comfortable kind of country in which to live if that becomes the general practice. It has always been the practice in this country to have penalties that start low and escalate, even in cases such as non-payment of taxes where the citizen is not suffering any inconvenience by non-compliance. You are faced with a £100 fine for being late, and it gets more serious if you continue in default. That seems to be the ordinary and civilised way of doing things. Having read the code of practice that has so generously been provided, it is clear that the intention is to impose the maximum fine—I have read it and if that was not the intention it should not have been written in that way—and on later application possibly to allow mitigation. That is putting the frighteners on. It is a seriously unpleasant way to proceed, and it is destructive of civil society.

I also do not really understand the noble Baroness's objection to criminalising things like this. I suspect that most of us in this House are criminals because we have had road traffic contraventions at some time in our lives. One disregards those as nothing in particular; you pay the fine, you go on your way and you accept the penalties. I have not noticed that it has ever been any serious disadvantage to my life that I have one of those to my discredit. I do not think that a penalty under this Act would be regarded any more seriously than that.

Lord Lyell of Markyate: I—

Baroness Scotland of Asthal: Since I hope it is on the same point, I shall just answer the noble Lord, Lord Lucas. I read it out, but I do not know whether I read clearly enough. Paragraph 6.15 makes it absolutely clear that the intention is not to impose the maximum fine.

Lord Lyell of Markyate: I am most grateful to the noble Baroness for what she has said, but we are still in unfinished business here. She rightly discoursed on the closeness that can sometimes apply in civil cases where an application of a quasi-criminal burden of proof is sensibly applied. I still think, as she has persuaded me this far, that there is a good deal to be said for having a civil penalty, but we really have to look closely at the procedures. I will try to focus on this before we get to Report stage, and I hope that she might have time to do the same.

We are in a very complex area here, and there is always a danger of slipping back into Second Reading speeches. When one looks at Clause 37 under "Fees
 
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and Charges", one is reminded of the song in "Les Misérables" called "Master of the House", where one is charging for everything that happens in the hotel; tuppence for the mouse and so on. It is going to get very expensive, people are going to make a very great many mistakes, and they are going to find themselves issued with penalties. It really is important that we try to devise a system that is sensible for the Home Office to use and not oppressive to the citizen. I hope that we may revert to it.

Lord Phillips of Sudbury: I am immensely grateful for the many helpful contributions to this part of the evening's entertainment. I am grateful to the noble Baroness for her response. Her assumption that I was rushing towards criminal convictions is wholly misconceived. The noble and learned Lord, Lord Lyell, made the point that you can have a burden of proof in civil proceedings that more nearly equates to that applicable in criminal proceedings, and that is precisely what I am looking for. I am not looking to criminalise or anything of that kind, and I take the Government's point in that regard. We can all think about this matter before Report, but at the moment there is some distance between the Government and those who have spoken in favour of this group of amendments.

This is somewhat reminiscent of our earlier discussion about whether the requirement of the Secretary of State to attend an interview should be subject to a reasonableness test. It is rather on those lines, and I feel that it is not good enough to leave the matter as it is. It is all very well to say that the code of practice gives the Secretary of State discretion to do this or that and to consider this or that but, at root, there needs to be something in the Bill that makes it clear that intent is relevant to culpability. Indeed, in the noble Baroness's own justification for the Government's position she used the word "intentional" a number of times. That is natural because without intentionality there is no intention—to use the word again—to impose penalties. So why not put it in the Bill? I shall go on no further at ten to eleven but will join the noble and learned Lord, Lord Lyell, and others—and, I hope, the Government—in reviewing this matter because I do not think that it is satisfactory as left. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 122 not moved.]

[Amendment No. 123 had been withdrawn from the Marshalled List.]

Lord Phillips of Sudbury moved Amendment No. 124:

Page 5, line 44, leave out "£2,500" and insert "£100"

The noble Lord said: This group of amendments—

Lord Bassam of Brighton: I invite the noble Lord to consider withdrawing this amendment as there is a
 
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great danger that we will go over much the same ground. I do not know whether the noble Lord has thought about it in those terms.

Lord Phillips of Sudbury: I was proposing to move this amendment in about 60 seconds because the issue is simple. We think that these penalties are substantially too great. We have proposed rather silly counters and this is not a bargaining game, although it may look like it. I do not stand by any of the replacement figures—changing £1,000 to £50 and so on. I am simply trying to bring into play the thought that the penalties here are too high across the board and to encourage the Government to think in terms of first offence and second offence penalties. I think we all accept that when someone is incorrigible and simply refuses to do what is reasonable in terms of attending an interview or whatever, he or she should cop it the second time round, but not the first time round. I leave it at that. I beg to move.