Identity Cards Bill

My noble friend talks of the importance of hearsay evidence. But here we have another example of that tendency. It is incumbent on us to look extremely carefully and cautiously when we see such a tendency exemplified in a Bill. I think—I shall be interested to hear what other Members of the Committee think—that this is classically a case where we should err on the side of the greater protection of the citizen; that is, to make these offences criminal in order that they attract the greater protections which that brings. It is interesting that under the European Convention on Human Rights, when applying Article 6, the courts will look at the substance of the offences in the legislation and not be dazzled by the form, let alone the nomenclature. They will look at whether the obligation attracting penalties is general rather than a particular or a group obligation—in this case, the answer to that is manifestly yes. The noble Baroness has been very frank to say that this will be a universal scheme affecting the whole population, which would speak in favour of arrangements being criminal rather than civil. The courts will look at the nature of the offence, which is not as clear. But I still maintain that on balance these offences look to me, and will certainly feel to those affected by them, to be more criminal than civil. They will look at the severity of the penalties attaching to the breaches of the law—penalties of £1,000 to £2,500 per offence. There is no gradation, which would give a lower potential for a first offence. The penalties imposed by some of the lowlier road traffic offences, which are certainly criminal offences, look a great deal more draconian. The European Court will also look at whether the penalty or fine is intended to have a deterrent effect. Patently, that is the case, which is one of the arguments advanced by the Government for bringing the provisions forward. It strikes me that on an Article 6 test, the offences here and the penalties attaching to them bear more the characteristics of criminal than civil offences. In its most recent report, the Joint Committee on Human Rights said that Article 6 compliance can best be assured if,"““the procedures for imposition of penalties under the Bill aim to comply with Article 6 criminal due process guarantees””." That is the brief exposition on why this group of amendments introduces mens rea or intent into the offences concerned. I invite Members of the Committee to look at a couple of cases that one might have to deal with. Let us take a failure under Clause 5(5)(a) to attend an interview. As I said earlier today, under the Bill an automatic penalty is imposed by the Secretary of State. There is no requirement to ask the defaulter—as he or she is referred to—whether they were the person concerned and whether they had a reason for failing to attend the interview. That may be what is intended extra-legally, so to speak, in terms of the code, but nothing in the Bill entitles the person against whom the penalty is imposed to have their say before its imposition. That seems a quite grotesque state of affairs. If our car breaks down, we suddenly become ill or for any of a considerable number of reasons we fail to attend one of these interviews, we will be the subject of an automatic penalty decided by the Secretary of State without reference to us. We then have a right of appeal to the county court. Indeed, to be fair, the Bill states that at that point we can write to the Secretary of State with reasons—““I had a heart attack”” or ““My car blew up””. The Secretary of State may then reconsider. He can wipe out the penalty, reduce it or leave it as it is. That leaves the defaulter with the option to appeal to the county court. All that strikes me as profoundly unsatisfactory. I venture to suggest that if the Government get this measure through in what I would call ““compulsory form””, it will serve no purpose and do no good for the way the scheme is perceived by the public at large. It denies what I would call normal due process for the penalties imposed under the Bill. The first and most essential element in that is that there should be a degree of intent. If someone fails to attend an interview, they should not have an excuse which makes it clear that it was not a wilful failure on their part. The absence of intent should deprive the Secretary of State of the right to impose a penalty. Finally, I turn to another aspect of the compulsory requirements under Clause 5: to allow oneself to be photographed. There are people—not many of them—who have a phobia about being photographed. I am not going to be soft-soaped or impressed by stuff about what may happen behind these provisions out of the goodness of the heart of the Government, or the noble Baroness saying that nothing would be further from her thoughts than to be nasty to someone with a phobia. I am not remotely concerned with that. Under the Bill, where the penalties of this nature are being imposed, there should be normal, conventional and proper protections for the citizenry of this country. That means a degree of intent, and that is why this group of amendments has been tabled. I beg to move.