Identity Cards Bill

I know that the noble Lord, Lord Thomas of Gresford, has not had an opportunity to look at the draft code, but that is why we have made it available—so that Members of the Committee will understand how we intend to deal with that matter. I assure noble Lords that every effort will be made to ensure that those affected by the requirement know exactly what is expected of them and to warn them that failure to comply may be penalised. The order made under Clause 6 will be very widely publicised. The process under Clause 7 is likely itself to give rise to extensive public discussion. Every effort will be made to contact those affected by an order to inform them of their requirement to register and there will be a clearly publicised timetable before any requirement to register comes into force. So a failure to comply will not necessarily lead to a penalty notice, as I said. However, the civil penalty regime is a different form. We have set out the draft so that noble Lords could have a better idea of how it will work and be able to comment on that. At the stage at which a civil penalty notice is issued, the Secretary of State will not normally know what the state of mind of the person concerned is, only that he or she has not complied after efforts have been made to notify them and after there has not been a response. At that stage, fairness to the individual who did not in fact know of the requirement; or did know and intended to comply but did not do so for some good reason, is built into the statutory scheme at the objection and appeal stage. Clauses 34 and 35 provide that one of the grounds of objection and appeal is that imposition of a penalty is unreasonable in all the circumstances. As the noble Baroness, Lady Seccombe, made clear, she wants to ensure that people who are not deliberately trying to be difficult—they are not members of the awkward squad or trying to cause difficulties; they just have not known about it and it has not come to their attention—are not caught. I agree with her. Our purpose in setting up the scheme is to try to ensure that those people are not disadvantaged. The fact that someone was unaware of a requirement will make it unreasonable that any penalty should be imposed. Clause 36 provides for a code of practice setting out the matters that the Secretary of State and the courts will take into account when considering civil penalties. The code of practice will be laid before Parliament before the first identity cards are issued at the end of 2008. So we have lots of time to look at the code. I just thought it was important that we had a draft so that Members of the Committee could have a look at it and consider whether it is the sort of thing that would make them feel easier. I make it clear that that was the basis on which we have done it. We have said in the code:"““If there is genuine doubt as to whether the person concerned was aware of the requirement, any penalty imposed should normally be cancelled. This may be because they had no notice of the requirement or because they were not able to understand it due to language difficulties, illiteracy or lack of intellectual capacity””." So we have put those issues in the code for the very sensible reasons that the noble Baroness, Lady Seccombe, highlighted: because we do not want that to be an undue burden. I can therefore assure noble Lords that where non-compliance appears to be unintentional or an individual has subsequently complied with the requirement, any penalty should normally be waived. That is what we want to happen. The draft code of practice goes on to say at paragraph 6.9:"““As the purpose of the penalty scheme is to encourage compliance rather than to punish, it will usually be appropriate to cancel the penalty if the individual has complied with the relevant requirement by the time the objection or appeal is considered. Mere lateness should not generally lead to a penalty unless it is both deliberate and prolonged or repeated””." I know that that is what the Committee is worried and concerned about, and the amendments are a good prompt for me to clarify why certain aspects of the scheme are being backed up by civil, not criminal penalties. The primary reason is that we do not consider that failure to register or failure to comply with related requirements should attract the full opprobrium of criminal law. We are not seeking to make criminals out of people who are not compliant; rather we are seeking to coax them into complying. The first stage of challenge to a civil penalty would be an objection to the Secretary of State. At that stage the courts would not be involved at all. There will also be a right to appeal to the county court or sheriff. The matter will at all times be kept out of the criminal courts and will not give rise to a criminal record. Should a person refuse to pay, the subsequent debt recovery proceedings would also be a matter for the civil courts. The methods by which a civil debt may be enforced do not include imprisonment. I believe that we have achieved the right balance in the Bill for the civil penalties. I promised to deal with the point made by the noble and learned Lord, Lord Lyell. He made reference to the carriers situation. That is a clear example of where we have used a similar procedure before. Similar penalties were imposed in relation to a carriers’liabilities scheme in the Immigration and Asylum Act 1999. It is normal with civil penalties for the objection and appeal stage to come after the imposition. It is true that the courts in the Roth case were critical of one aspect of the carriers’ liability scheme—the fact that there was no discretion for the Secretary of State as to the amount of the penalty, but the courts confirmed that a civil penalty scheme is lawful and is compliant with Article 6. The scheme in this Bill is based on the scheme as amended in the light of the Roth judgment. The current carriers’ liability scheme has been ruled compliant by the courts with ECHR rights. I have made it clear that we will comply, even on a civil scheme, with Article 6. To finish with—