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Standing Committee B
Thursday 27 February 2003
(Morning)
[Mr.Eric Illsley in the Chair]
Clause 265
Orders and rules
9.10 am
Mr. Graham Allen (Nottingham, North): I beg to move amendment No. 111, in
The amendment is self-explanatory.
The Parliamentary Under-Secretary of State for the Home Department (Hilary Benn): We have discussed fine enforcement several times in Committee. As my hon. Friend will have gathered, the Government are interested in the issue and take it seriously. That is the reason for the provisions that we are including in the Courts Bill. I shall remind my hon. Friend of those and ask him to withdraw his amendment on the basis that it concerns something that we are already doing.
The Lord Chancellor's Department has the lead responsibility for fine enforcement. Provisions for improving the collection of fines are already being dealt with in clauses 31, 89 and 90 and in schedule 2 of the Courts Bill. Those measures will establish a new framework for fine enforcement, including ways to obtain prompt payment, more severe sanctions for those who try to play the system, and a dedicated fines officer managing the collection of fines. The system will provide for discounts for prompt payers and increases for those who delay payment. I hope that the fact that the Government already have this matter in hand by virtue of the Courts Bill will encourage my hon. Friend to withdraw his amendment.
Mr. Dominic Grieve (Beaconsfield): At the risk of prolonging proceedings, I want to mention that I was interested in the amendment moved by the hon. Member for Nottingham, North (Mr. Allen), which seems very pertinent. A problem is that although we have touched, peripherally, on the issue of fines, we have not succeeded in holding a discrete debate, although it may be possible to do that on new clause 8. The amendment, which is designed to facilitate fine collection, raises the question of sanctions. It is interesting that we are moving towards a much more liberal regime of sanctions which will arguably make fine enforcement less easy. Equally, there are arguments for alternatives to the ultimate sanction of locking people up, and those should be tried as much as possible.
I hope that the Government have this interesting and important issue in mind. I hope also that we shall consider it in more detail when we consider new clause 8. We want fines to work and we want the Home
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Secretary to be able to make enforcement work. However, I fear that the issue has not been fully addressed yet.
Mr. Allen: My apologies, Mr. Illsley, for not paying you the normal courtesy of welcoming you to the Chair.
The Minister will be aware of the National Audit Office's reports on the poor level of fine collection in magistrates courts and I know that he takes it extremely seriously, as does Parliament. I have written to him about the possibility of incentivising courts to pick up additional fines. If they can do better than they do now, a percentage of the revenue should be kept within the purview of that court for use for local matters, many of which we have discussed, such as publicising its activities and making itself more user-friendly. I hope that the Minister will consider that.
Finally, as both Conservative and Labour Governments have looked at the impact of general management on education and on the health service, does the Minister feel that it is now time to have general managers for courts? They would not have a direct interest in the process of the courts, or the cases before them, but would be accountable either to the Minister or to the Lord Chancellor's Department. I do not expect a reply to that now, but I hope that the Minister will take it on board when he considers the pathetic number of fines that are paid appropriately to courts. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Simon Hughes (Southwark, North and Bermondsey): I beg to move amendment No. 937, in
clause 265, page 147, line 32, leave out subsection (4).
The Chairman: With this it will be convenient to discuss amendment No. 938, in
clause 265, page 148, line 4, leave out ', or' and insert ', Section 268(1), or'.
Simon Hughes: These amendments revisit familiar territory, so I shall not detain the Committee for long. They make a point and enable us to ask a couple of questions about the Government's intentions.
Clause 265 is a general clause that gives Ministers the power to make rules by statutory instrument. That is normal and understandable. We are all used to it, and we have just debated an amendment that would have added a further opportunity to the two set out in clause 265(3). The first allows variations; it says that the power
''may be exercised so as to make different provision for different purposes or different areas'',
and the second, slightly delphically—perhaps it is a drafting convention—says that it
''may be exercised either for all the purposes to which the power extends or for those purposes subject to specified exceptions, or only for specified purposes'',
which covers all bases. Basically, it says that there is a wide-ranging set of alternatives available to Ministers, and there is nothing new about that. The question is how widespread or limited and tied to the Bill they should be. There is always a danger of clauses starting off too widely drawn. Happily, in the case of Home Office Bills in which I have been involved on behalf of
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my party, we have managed, if not in this House then in the other place, to restrict such provisions. The object of amendment No. 937 is to probe whether the scope of subsection (4) can be reduced. At the moment it includes power to make
''(a) any supplementary, incidental or consequential provision''—
any. Supplementary provisions are, by definition, further down a waterfall than the main proposal and ''incidental'' allows one to get a bit further away, but ''consequential'' could be widely interpreted.
Those are not the worst aspects of the subsection, although they come within the famous Henry VIII definition. I have never checked those powers. It is one of those terms of art that have been used for a long time. It is entirely likely that Henry VIII did have such powers. He used extreme powers in his public and private life at every opportunity. A monarch who was willing to behead his wives and break with the Pope strikes me as being likely to push the powers to the limit. [Interruption.] I will be good, and not repeat the exchange that has just taken place.
Subsection (4)(b) is understandable as it refers to ''transitory, transitional or saving'' provisions. However, we then get the wide sweep provision, which is that the Minister making the order must consider it ''necessary or expedient''. Ministers sometimes consider things necessary or expedient in a way that may not command the unanimous support of the House, let alone of their party.
We had an important debate yesterday about certain Government policies that Ministers considered to be necessary and expedient, but the Government did not carry a substantial number of their own party with them, and they certainly did not have the support of the Liberal Democrats. I raise the matter because it strikes me that the provision gives Ministers too much power. I shall give an example.
If the Home Secretary of the day thought that a judge's interpretation of a provision in what will become the Criminal Justice Act 2003 was something that he did not wish for, he could, if he thought it necessary or expedient, bring forward an order to clarify the legislation. He could argue that it would be exercised in a way that was ''supplementary, incidental or consequential'' upon the Act, but that could go a long way.
I heard of an exchange in the House of Lords yesterday that included criticism of the Home Secretary's remarks on a High Court judgment in a case brought under the Nationality, Immigration and Asylum Act 2002 about changes to the benefits law. The Home Secretary had suggested that the judge should not have behaved as he did; yet I have read the whole of the judgment given by Lord Justice Collins, and he was absolutely clear that his judgment was based on the law as he understood it and on what he thought Parliament meant by it, taking into account the other obligations imposed on him by other legislation, including the Human Rights Act 1998.
The danger is that the provision in subsection (4)(b) may be far too wide. The words ''or expedient'' are by
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definition subjective, not objective; they are too wide and potentially dangerous. We should avoid such provisions unless they are tidying-up operations, or make a de minimis change—the sort of thing that comes to light when Ministers realise that an inconsistency in the drafting had not been spotted in Committee, an incompatibility between clauses or a repeal that had not been spotted. Such things are fine—a proper procedure is needed, but it should not detain Parliament—but there should not be such a wide sweep.
That is the reason for amendment No. 937. My instinct is to seek to divide the Committee, unless the Minister can reassure me, because we would resist such a wide definition.
Amendment No. 938 would simply add the provision that a statutory instrument made under the clause should go through only if it is approved by both Houses under the affirmative resolution procedure. That would give us the best control. That would add clause 268(1), the general sweep-up provisions, to the list in subsection (6) that should be dealt with under the affirmative resolution procedure. For those who are not Members or close followers of procedure, I should explain the importance of that. If the Government want to bring in something important, and if the Bill allows for secondary legislation, our view is that Parliament should none the less automatically have the chance to consider it. However, that does not mean that we detain Parliament unnecessarily. The reality is that if subsequent provisions are uncontroversial, they go through on the nod—they are on the Order Paper and no one objects to them. Ministers know well that a Committee can consider several uncontroversial statutory instruments together. We do not have an over-laborious, over-complicated and time-consuming system, so there is not a danger to parliamentary business management or other things.
We usually consider such important matters and the proper role of Parliament at the end of a Committee. However, I should be grateful to hear the Minister's general response and what things he envisages would be governed by the provisions both in the clause, in particular in subsection (4), and in clause 268(1).
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