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Identity Cards Bill

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 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.