Sir Nicholas Lyell: The Minister has answered my points fairly and clearly and I apologise for intervening to ask him to clarify the position on giving a fixed penalty notice. I understand it to mean that it must, at least, be clearly tendered to the individual; however, it is possible that that individual will not accept it, in which case he should then be arrested, if that is what is wanted. I seek clarification of the term ``giving'', which will have consequences down the line if it is not accepted and understood?
Mr. Clarke: As the right hon. and learned Gentleman knows, we are the giving Government, so I am happy to give him the clarification that he wants. Fundamentally, he is right: the fixed penalty notice must be accepted. It is an agreement by the individual on whom it is served to pay the penalty and thus not to be subject to other legal action. Clauses 3 and 4 set out the meaning of accepting the notice and the nature of the notice, making it clear that the right to go to court remains. He is right in his assumption that if an individual does not accept the notice, the police officer will have to take other action. The point of the fixed penalty notice is that it is an agreement between the giver of the notice and the receiver that payment would be made rather than an alternative legal course being taken.
Sir Nicholas Lyell: I am happy with what the Minister says. It is entirely sensible that if the person does not accept the notice, the police officer must take other action. However, I must declare an interest, and I suspect that others may have similar interests. There is currently a system of parking tickets under which the warden writes them down but never affixes the ticket to the motor car, and the motorist drives off. I question whether that is legal. Does it comply with the parking regulations? Will the Minister make it clear that that practice will not be allowed to enter into this Bill?
Mr. Clarke: I can give that assurance. I cannot speak in relation to the parking legislation that the right hon. and learned Gentleman describes, but he was right in what he said about giving and, by implication, receiving. The fixed penalty notice needs to be received if it is given.
Mr. Hughes: Can we draw from that the logical conclusion that there cannot be any deemed giving of notice? There can be deemed serving of notice in other contexts in the criminal law.
Mr. Clarke: I can give that assurance for exactly the logical reason that was referred to in the exchange between the right hon. and learned Member for North-East Bedfordshire and me. There cannot be a deeming of giving a notice unless it is received.
Mr. Hughes: When one is given the notice, does that constitute being charged with the offence or an action that is equivalent to being charged? I ask that because of the wording in the clause. By paying one discharges liability to be convicted, but there must be something that accuses one of the offence for one to be able to discharge liability and accept that one has committed the offence.
Mr. Clarke: We need to be absolutely clear about this. The individual is not charged simply by being served the notice. He is charged if he does not accept the notice because he says that he is not guilty of the offence. The police officer must then decide whether to arrest or charge him for the offence in the normal way. The payment of the fixed penalty offence is a means of discharging liability. However, serving a fixed penalty notice is not equivalent to charging the person.
I have tried to deal as fully as possible with the points made in this debate. I commend the clause to the Committee.
Mr. Hughes: It was interesting that the Minister said that, although the Government had not intended to pilot formally, they intend to test the scheme in certain parts of the country. That is helpful, and a sensible way of proceeding. I would be grateful to find out later, informally or formally, what plans exist to do that.
The Minister's answers confirm more strongly than ever that the sooner we have the guidance, the better. For example, if the guidance were to make it clear when there should be charging or the serving of fixed penalty notices on the street rather than in the station, that would clarify many matters that are currently the subject of debate.
Mr. Heald: The Minister's answers have been helpful. It would be churlish, having heard them, to press the motion to a Division. The Minister may describe the Government as the giving Government, but we all know what they are givingthe taxpayer's money.
Question put and agreed to.
Clause 2 ordered to stand part of the Bill.
Amount of penalty and form of penalty notice
Mr. Simon Hughes: I beg to move amendment No. 2, in page 3, line 12, leave out from `is' to end of line 13 and insert `£50'.
The Chairman: With this it will be convenient to take the following amendments: No. 23, in page 3, line 15, leave out from `than' to end of line 16 and insert `£100'.
No. 78, in page 3, line 15, leave out `half' and insert `one quarter of'.
Mr. Hughes: We have now reached the debate on the amount of the penalty and the form of the notice. This is a simple probing amendment, suggesting that there should be a fixed maximum. As it stands, the clause allows the Secretary of State to specify the maximum penalty by order. It then qualifies the amount that can be specified by limiting it to a tariff linked to the maximum fine for which someone would be liable if convicted of the offence, and proposes that the fixed penalty notice should be no more than half of what the fine would be. It also goes on to other matters that we can debate later, including the provision that the order would need to be laid before Parliament on a negative resolution procedure, to be prayed against rather than affirmed.
I propose that there should be a maximum £50 fine to test what league we are in. I suspect that this is also why the Conservatives have proposed a maximum of £100. I am concerned about this for the reasons that I gave earlier. The danger of this system is that it seeks to penalise people, or put them in a position where they will be penalised, irrespective of their means. Although £100, £200 or £300 may be nothing to some people, it is a huge amount to others. The possibility of imposing a fine that is beyond the reasonable means of the person given the fixed penalty notice brings the whole system into disrepute.
What happens to someone who has no spare money at all? Let us take the extreme example of an asylum seeker who receives a voucher, has no money or access to money, is not allowed to work and receives no benefits. How does such a person get hold of the £50, £100 or £200? How does someone on the minimum amount of benefit suddenly find that money within the appropriate period, other than by borrowing it or stealing it? Because this system is so geared to the well-off, the person who can simply pay his way out of trouble, and so geared against anyone who cannot do that, we need an extremely low penalty. People who go on offending will get several very low penalties.
I ask Ministers to be absolutely clear about what the maximum is. As I do not have the information readily available, and the Minister has all his civil servants to provide the answers, could he tell us the current maximum fine for all the offences in the list are so that we can know exactly what we are talking about if the Government propose that there should be the ability to pay up to half the fine? If it is more than £100, it is certainly unacceptable. I hope that it is no more than £50.
Mr. Heald: The Conservatives have tabled two of the amendments in this group. Amendment No. 23 would limit the fine to £100 and I shall come to amendment No. 78 in a moment.
We were discussing what happened with the public order offences that were dealt with by fixed penalty notices in New South Wales. One of the conclusions in the reply from the New South Wales ombudsman to the Home Office consultation was that if the fines are too high, they simply are not paid. ACPO has said something similar. If one reads the mass of documents that the Minister has, as I have done, it becomes clear that the general feeling is that the right level to pitch the fine is between £50 and £100. That seems to be the view of ACPO. It is the view of the Inner London Magistrates Courts Service, so I hope that the Minister would agree that we are talking about that bracket. It would have been helpful for us to see in draft form the order that the clause allows the Secretary of State to make, setting out exactly what he has in mind. He may want different levels for particular offences, which would have informed our debate. As the Bill is being rushed through, however, we have not seen such an order.
Does the Minister agree that, if the penalty were pitched too high, collection would be a problem? There is also the worry that offences of seriousness will be dealt with by fixed penalty notice when they should not be, and that that would diminish the punishment effect. However, if penalties are too low, they are inadequate. There is a balance to be struck, and we need to know the Minister's intention. Amendment No. 23 suggests the other end of the bracket from the Liberal Democrat proposal of £50, based on the consultation responses.
Amendment No. 78 takes a different tack and would allow the Secretary of State to set fixed penalty notices at no more than a quarter of the level of the maximum, rather than half. I shall describe the effect of that for offences in clause 1. For example, under section 12 of the Licensing Act 1872, the maximum fine for being drunk in a highway would be £50. It would be £1,250 for throwing a firework in a thoroughfare and £625 for knowingly giving a false alarm to a fire brigade. It would be £250 for the next four offencestrespassing on a railway, throwing stones at trains, buying or attempting to buy alcohol for under-18s and disorderly behaviour while drunk. The fine would be a maximum of £625 for wasting police time. It would be £1,250 for the destruction of, or damage to, property without lawful excuse and for the telecommunications offence. It would be £250 for threatening, abusive or insulting words or behaviour and £125 for consumption of alcohol in a designated place.
If the Minister wants the level to be one half of the maximum, as the legislation provides, he needs to explain whether he is seriously saying that he would contemplate fixed penalties for some of those offences that were twice the figures that I have given. Is he seriously thinking of making it possible for a fixed penalty notice of £2,500 to be issued to someone? It would be wrong in principle to issue such a notice. An offence serious enough to have a £2,500 fine applied to it should not be dealt with by a fixed penalty notice, because we do not want serious matters to be trivialised. I hope that the Minister will reassure us that there is a reason why he needs the power to set fixed penalties, a lesser disposal, at potentially such a high rate. Our amendments would provide the Minister with options: a lower maximum level or less scope for the setting of fixed penalties.
My other question arose from a similar concern to that expressed by the hon. Member for Southwark, North and Bermondsey about the means of the accused person. Previously, the Minister said that, if someone were unable to pay a fine, it would be registered with a magistrates court, which could give time to pay under its enforcement jurisdiction. If an inappropriate notice is given to someone who does not have any means, is it right that the system's effect is for him to be fined one and a half times the amount of the fixed penalty notice? Is that not building on an initial failure? A fixed penalty notice may be imposed on someone without means, who does not pay the fine because he cannot. Is the answer to make the fine one and a half times its original amount and then say to the magistrates, ``Now, get the money out of him''? I have doubts about that.
How are such conundrums to be solved? Liberty is worried that the measure will discriminate against the most vulnerable in society. It says that it is
``likely to cause problems particularly for those with temporary housing or who are homeless.''
It asks whether those who are in debt and unable to pay the fine could end up being imprisoned. Crisis, the national agency for single homeless people, is worried that fixed penalty notices will particularly hit homeless people. On social grounds and on those of effective policing, is not it right to set the fixed penalties at realistic levels and have some means of avoiding unreasonable and unfair treatment of the most vulnerable in society?