HC Deb 11 June 1999 vol 332 cc910-29
Mr. Forth

I beg to move amendment No. 10, in page 1, line 17, leave out 'the duty of' and insert 'available to'.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 11, in page 1, line 23, leave out 'shall' and insert 'may'.

No. 1, in page 1, line 26, at end insert— '(2B) Where a court makes an international football banning order, it shall state in open court that it is satisfied that there are such reasonable grounds as are mentioned in subsection (2) above and give reasons why it is so satisfied.'. No. 22, in clause 5, page 6, line 31, leave out

shall be under a duty to'

and insert 'may'.

No. 6, in page 6, line 40, at end insert— `(5B) Where a court makes an international football banning order, it shall state in open court that it is satisfied that there are such reasonable grounds as are mentioned in subsection (5) above and give reasons why it is so satisfied.'. No. 23, in clause 6, page 7, line 32, leave out 'the duty of and insert 'available to'.

No. 7, in page 7, line 42, at end insert— '(3A) Where a court makes a domestic football banning order, it shall state in open court that it is satisfied that there are such reasonable grounds as are mentioned in subsection (2) and give reasons why it is so satisfied.'.

Mr. Forth

The amendments take us into new but not entirely unrelated territory because the wording that I seek to amend is another attempt to curtail the traditional freedoms of the courts and the judicial process. The Bill says: Subject to subsection (3) below, it shall be the duty of the court to make an international football banning order in relation to the accused if it is satisfied that there are reasonable grounds to believe that making the order would help to prevent violence or disorder at or in connection with designated football matches. In other words, the Bill gives a statutory instruction to a court to do something. That strikes me as a step too far.

I have always understood that traditionally, in this country, we prefer the court to be given the maximum discretion to make its judgment in the light of the full circumstances known to it at the time. It is not even for this House to seek to pre-empt what might happen in a court. The whole point of our judicial process and court proceedings is that the court will listen carefully to the arguments of both sides. It must then make several decisions, the first of which is whether the defendant is guilty or innocent. The next is concerned with sentencing. In doing that, the court will have to take into account all the circumstances made known in the proceedings and, most obviously, decide whether there are any mitigating circumstances.

The provision in the Bill therefore strikes me as peculiar, to say the least. I have always been uneasy about the Bill, but this sort of provision has made me even more uneasy. I cannot understand why my hon. Friend the Member for West Chelmsford (Mr. Burns) cannot be content with normal judicial proceedings. Instead, most uncharacteristically, he resorts to wording such as that in clause 1 and seeks to use his Bill as a vehicle to prescribe to the court what it will do. My hon. Friend cannot know what will happen in court.

Mr. Tony Clarke

I do not want to destroy the right hon. Gentleman's argument so early in the debate, but does not he accept that all we are suggesting is that the court should have a duty—rather than a discretion, as at present—to consider imposing an international banning order? One of the problems in the game today is that many of our hooligans turn up at international fixtures abroad, irrespective of the fact that they have committed an offence and been charged and sentenced, but an international banning order was not imposed on them because the court failed to consider the possibility. All we are doing is requiring the court to consider those orders, rather than leaving that to its discretion.

Mr. Forth

I can see the sense in what the hon. Gentleman is saying and I am interested in his argument. It might be worth reviewing the entire statute book to find out whether we can insert into every statute an obligation that the court should consider this, that or the other as an appropriate penalty. I am tempted by that prospect, although it is not a process that we would usually undertake.

I hope that my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) catches your eye in this debate, Mr. Deputy Speaker, because his experience is most apposite. He might be able to set this debate in the context of the efforts that I seem to recall the previous Government made to bring in minimum sentencing provisions. At that time, as a fellow member of the Government, I thought that the process was very dubious. Although I think that in many cases the actions of the courts are pretty weedy and wishy-washy, and I should be very tempted to bring back mandatory capital punishment for almost anything, I was constrained by another view, which prevailed on that occasion. I believe that, whether I like it or not, I have to respect the ability of the courts to use their proper discretion and judgment in the full knowledge of the circumstances at the time.

Like me, Mr. Deputy Speaker, you must often meet constituents who have read a story in a newspaper and ask, "Why on earth did the court let the defendant off with such a ridiculously light sentence?" You may well reply, as I do, "I do not know because I was not in the court at the time. I did not sit through the proceedings. I did not hear the evidence and I was unable to look at the accused and assess his or her demeanour. I was unable to take account of the full range of circumstances and regrettably, therefore, I cannot come to a judgment." I am always tempted to err on the side of harsh penalties, but I always resist that temptation. Clause 1 and amendment No. 10 take us into the same territory. We have to respect the court's judgment, given the knowledge that it has at the time.

My next part of the argument is similar, and relates to our old friends "may" and "shall". Clause 1(2A) says: Where the court has power to make an international football banning order in relation to the accused but does not do so, it shall state in open court that it is not satisfied that there are such reasonable grounds as are mentioned in subsection (2) above and give reasons why it is not satisfied. Again, a requirement in the Bill seeks to encroach on the discretion of the court. Surely such decisions must be left to the court's discretion, even if it is stated in open court that it is not satisfied. I can imagine circumstances in which the court might judge that it is not entirely appropriate, proper, fair or reasonable to state openly why it has reached one judgment or another.

I should have thought that we should generally err on the side of openness. My hon. Friend the Member for West Chelmsford—typically, because he is an open sort of guy—has sought to include that openness in his Bill. All I am suggesting, however, is that my hon. Friend, in all his reasonableness, might accept that every now and then there might be circumstances in which such openness might not be appropriate. However, the Bill would not allow the courts to have that degree of discretion. That is why I am arguing that "shall" should be "may". I hope that my hon. Friend the Member for West Chelmsford will see the sense in that, will return to his normal, reasonable demeanour in these matters and will allow the courts to have a degree of discretion.

11.30 am

The argument behind amendment No. 1 appears to go in the opposite direction. Interestingly, I might be about to argue against myself. The amendment reads:

Where a court makes an international football banning order, it shall state in open court that it is satisfied that there are reasonable grounds as are mentioned in subsection (2) above and give reasons why it is so satisfied. I am beginning to have second thoughts. I am wondering whether I am breaching the principle that I have outlined. I do not want to spend excessive time on this matter, notwithstanding its importance, because there are many other important matters that we want to discuss. However, should we be introducing distinctions and saying that it would be justified to allow the courts discretion in one case but not in another? Against that background, I am inclined not to press amendment No. 1.

Mr. Maclean

My right hon. Friend will recall that when we were drafting amendment No. 1 we took the view that we should copy the order set out in clause 1(2A). The clause contains "shall" and we used "shall" in the amendment. If my hon. Friend the Member for West Chelmsford (Mr. Burns) were willing to accept an amendment to clause 1(2A), to insert "may" in place of "shall", it would be appropriate to have "may" in amendment No. 1. We were merely copying what was already in the Bill.

Mr. Forth

I am grateful to my right hon. Friend for reminding me of why I did what I did. I am merely saying that we should be careful in this instance to ensure that we are as consistent as we can be. I am arguing, I hope consistently, that we should wherever possible give the courts—the judicial process—as much discretion and flexibility as possible. After all, the courts are fully aware of the circumstances at the time. The argument will have been advanced in the courts one way or the other.

As I have said, we may not always agree with the courts, but we respect their judgment. I accept that, perhaps with some reluctance. However, I think that we should always respect the discretion of the courts and allow them to do what they think is appropriate. That is why I am puzzled—I hope that my hon. Friend the Member for West Chelmsford will be able to help us and so set my mind at rest—that the wording of the Bill is extremely prescriptive.

I am anticipating what my hon. Friend might say, but we return to an earlier argument. It seems that the argument runs that we are dealing with such outrageous and heinous crimes and activities that we must take every possible action and make available every power to the courts, the authorities, chief officers of police and all those who are involved in the process, to reassure society that these matters will be dealt with properly. I understand that motivation.

Anyone outside this place and any of our colleagues who are sadly not in their places today will read the title of the Bill, the Football (Offences and Disorder) Bill, and think, "That is probably all right. It seems that it is a fairly minor measure." However, we have discovered that it is not a minor measure. In my hon. Friend's enthusiasm to deal with these matters in his apparently innocent and relatively restricted Bill, he has allowed to creep into it the sort of measures to which I have referred.

I wonder whether my hon. Friend has consulted the representatives of the magistrates and those of the judiciary. Perhaps the Minister has taken the trouble to ask those to whom we give the responsibility to exercise their discretion in the judicial process whether they would welcome constraints being placed upon them, either now or in future.

The hon. Member for Northampton, South (Mr. Clarke) made an interesting point to which we might return in future. He made the intriguing suggestion that perhaps whenever in future we are legislating in this way, we should outline in Bills the thoughts that we have collectively in this place on the sort of penalties that might be properly considered by the courts, or even provide them with a menu from which they could make selections. That would be breaking new ground but it might go part way to answering the problem to which I referred when constituents come to us to ask, "Why did not the courts do this, that or whatever?" We would be giving the courts a range of options. However, we are not in that business.

I hope that I shall be given some explanations and reassurances, and some background that explains why my hon. Friend the Member for West Chelmsford came up with the form of words that appears in the Bill, what he thought he would achieve, and whether he shares my worry that we are doing something that we might live to regret, setting a precedent of which my right hon. Friend the Member for Penrith and The Border seems suddenly to be so fond. I hope that we shall not hear, "We have done it before so it is all right." I would rather hear it said, if I may draft a speech for my right hon. Friend, that if we believe that the things done in the past were not correct or have had an adverse effect, we should have the openmindedness and flexibility to say, "That was not the proper way to do it. We have the balance wrong. We are encroaching too much on individual liberties and court discretion"—and on all the other areas of our tradition that I thought were sacrosanct and hallowed. It appears that they are no longer considered in that way.

Some extremely important principles arise from this modest Bill, which contains some quite serious threats to the great traditions of our polity, our judicial process, our history and things in which we have taken such pride. I hope that I am not overstating the position, but I think that the amendment will give an opportunity to my hon. Friend the Member for West Chelmsford, and perhaps the Minister, to tease out some of the arguments and to reassure me. I hope that I shall be reassured, and that is one of the objects of the amendment. If I am not, we may have to take a very serious look at these matters.

Mr. Burns

As my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) said in ably speaking to this group of amendments, they fall broadly into two groups. If the House will allow me, I shall keep to those two groups. I shall deal first with amendments Nos. 10, 11 and 23 and then deal with the points that arise from amendments Nos. 1, 6 and 7.

In many ways, I am saddened to have to tell my right hon. Friend the Member for Bromley and Chislehurst that I am not attracted to the amendments. They go to the heart of the Bill and if they were to be accepted they would, to my mind, seriously undermine and undo what I consider is the good work of legislation in giving the authorities—the police and the courts—greater and enhanced powers to deal with those whom I have described before as a small, mindless group of moronic hooligans who cause such a problem.

The effect of my right hon. Friend's first group of amendments within the group as a whole would be, as he rightly said, to remove the duty on courts to make an international and domestic banning order where a football-related offence has been committed, and the court is satisfied that there are reasonable grounds to believe that the order would help to prevent violence and disorder at or in connection with future football matches.

In effect, the amendments would give the courts a discretionary power to make such orders if the relevant conditions were fulfilled. I fear from the evidence that is available so far that the courts have been using their discretion in a wide way, in effect to dilute the laws that are currently in place, because of a reluctance to use a power that will have dramatic effects in preventing hooligans from attending matches and causing the problems from which this country and others have suffered far too much.

For the benefit of my right hon. Friend the Member for Bromley and Chislehurst, the latest figures that I have—I assume that they are still more or less correct because they go to 16 April—show that on 16 April, there were 113 international banning orders and about 400 domestic banning orders. If the amendments are used to reintroduce the discretionary power, that will seriously undermine the Bill's aim—which is to deal with the problem more effectively.

Mr. Maclean

In my experience, if one tries to tie a court's hands in one area it will free them up in another. Even though clause 1(2) says that it shall be the duty of the court to make an international football banning order", if the court does not like being tied to that, is there not a danger that it will conclude, "We were not satisfied that there were reasonable grounds"—thus giving itself an out in that sense?

Mr. Burns

My right hon. Friend raises a valid point. It is difficult to give him a completely accurate and straightforward answer, because the matter is subjective. He may be correct in some circumstances, but I am not convinced that the courts would behave in that way.

My right hon. Friend the Member for Bromley and Chislehurst should not forget that although the courts have the freedom not to impose a banning order, if they do not use that power, they must give reasons why they have not done so. I believe that it is perfectly reasonable for a court to explain why it has decided not to exercise a power that it has under the law to impose a banning order.

On amendments Nos. 1, 6 and 7, my right hon. Friend the Member for Bromley and Chislehurst said that he might be arguing against himself. He was being slightly harsh on himself in that respect. However, it does seem contradictory—and unnecessary, over-regulatory and a burden on the courts—to impose on courts an obligation to state in open court why they are imposing a banning order. More often than not, when a person is sentenced, having been convicted of an offence, the judge or magistrate is more than ready to explain why they are imposing the sentence and why they consider it justified.

My right hon. Friend hinted that he might not press these amendments, which suggests that I may be pushing at an open door. I believe that, on reflection, he of all people, given his excellent record of seeking to break down the over-burdensome regulation within the state, would feel that it would be unnecessary and unfair to burden courts, judges and magistrates with such an obligation.

Mr. Maclean

My hon. Friend is stretching it a bit too far. His Bill says that the court shall state in open court why it is not imposing an order. He then suggests that it is an over-burdensome new regulatory power to insert a similar power saying that the court shall state in open court why it is imposing an order. I do not think that that is as heavy a regulatory burden as he suggests. Judges are capable of giving their reasons very simply.

Mr. Burns

In a way, my right hon. Friend is making my point, because I mentioned earlier that judges and magistrates, when imposing a punishment or sentencing someone who has been convicted, state their reasons for doing so. I consider that it would be burdensome and nanny-statish to regularise into law something that is already common practice on, to all intents and purposes, a voluntary basis.

I was seeking to explain to my right hon. Friend the Member for Bromley and Chislehurst that, given his reputation and his crusade to prevent individuals from being overburdened at the hands of the state, he may decide to follow his gut instinct not to press that set of amendments. I hope that, when he has had an opportunity to listen to the full debate, he will feel that, whereas it has been extremely useful and important to discuss the issue, it might be sensible not to press the amendments. I leave it in the capable hands of my right hon. Friend to take that decision at the appropriate time.

11.45 am
Mr. Maclean

My right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) may have been persuaded by the eloquence of my hon. Friend the Member for West Chelmsford (Mr. Burns), but I have not been yet. This is a small but important group of amendments. As my right hon. Friend said, we are trying to restore the traditional discretion of the courts.

I have a few years' experience of producing legislation in the Home Office, and any legislation that appeared to limit the discretion of the judiciary was always fought hard by it. I suspect that, unless we are willing to contemplate the amendments, when the Bill goes to another place later this afternoon, it may not be so satisfied with legislation that imposes a duty on a court to do something, and uses words such as it shall state in open court when it prefers discretion. I have not had a chance to consult the Magistrates Association yet, but usually, as a principle, it likes to ensure that any legislation imposing obligations on the court does not tie its hands, but gives it flexibility to impose whatever penalty it wishes beneath a maximum level. Usually, the association does not like minimum penalties. Magistrates like to have that freedom. It is a traditional freedom, and we have got into trouble when trying to limit that discretion.

Clause 1(2) says: Subject to subsection (3) below, it shall be the duty of the court to make an international football banning order in relation to the accused if the court

is satisfied that there are reasonable grounds to believe that making the order would help to prevent violence and so on. The danger is that when my hon. Friend the Member for West Chelmsford has tied the court's hands in the first line, it shall be the duty of the court to make a banning order, in borderline cases where judges would have liked to have a discretion they will say, "We do not really want to make the order". Instead, they will rule that the evidence was not good enough and that they were not satisfied that there were reasonable grounds for making an order. That is not a corruption of justice; it is an inevitable part of our human nature.

Mr. Burns

May I put another scenario to my right hon. Friend? The courts may decide that the offence that the individual has committed is not serious enough to warrant a banning order, so, using their discretion, they do not impose one. They then give their reasons and make the precise point that they do not consider that the offence was serious enough to warrant the issue of a banning order. Is not that the way around the problem that is exercising my right hon. Friend so much?

Mr. Maclean

I do not think that it is. I take the subsection as it is presented in the Bill, and as my hon. Friend has proposed it. He needs to come up with a different form of words to ensure that, in all cases where the evidence is clear cut and any person in their right mind would impose a banning order, the courts would do so. He is trying to tie the courts' hands in a way that they will try to escape; they will use the second part of the clause to get out of imposing a banning order in those borderline cases. They will merely state that they were not satisfied that there were reasonable grounds for imposing one.

Mr. Burns

The proposal is that it should be the duty of the court to make an order if it is satisfied that there are reasonable grounds to believe that making the order would help to prevent violence or disorder at designated football matches. If the court regards the offence of which the person has been convicted as relatively minor within that ambit, it may feel that the individual will not cause violence or disorder at a future match, and will not issue the order. The court will then give the reasons. That is perfectly reasonable.

Mr. Maclean

It may be pedantic but my concern is that, by using the words "shall be the duty", my hon. Friend will increase the likelihood that the courts will use the excuse that the potential is negligible or that there are not reasonable grounds. Courts and magistrates do not like being tied strictly to an obligation to impose a particular sentence, because there will be borderline cases where they think that the sentence is not appropriate. The clause allows the court to deal with borderline cases, which cannot use a discretionary power, only by exaggerating the last part of the clause—by saying that it does not believe that the order will help to prevent violence or disorder, or that the grounds are not substantial.

Mr. Tony Clarke

Does the right hon. Gentleman accept that we are simply trying to bring clarity to the decision-making process of the court? Does he further accept that the judiciary sometimes gets it wrong? Until December 1998, only three international banning orders had been made. That was in a year when we witnessed terrible scenes of trouble in France during the world cup, perpetrated by so-called England fans. Does not that prove that, so far, the judicial process has failed? The hon. Member for West Chelmsford (Mr. Burns) is seeking to bring clarity by determining which offences would and would not warrant an international banning order.

Mr. Maclean

I am always keen to have clarity in the law, and this House has, over the years, tried to bring clarity to the law. However, the proposal will not necessarily cause an increase in international banning orders, as the hon. Gentleman suggests. If one wants to get a lot of people banned, there is no point in giving the court the power to be satisfied that there are reasonable grounds that making the order will prevent violence or disorder.

If a court decides that it is not entirely satisfied, it can say that although the individual concerned may have convictions for affray, hooliganism or violence, on this occasion it does not think that an order will help to prevent violence abroad. The court will not make the order because the person has not satisfied the reasonable grounds provision. Not all courts will behave like that in all circumstances, and the tightening of the law will mean that we can expect more banning orders.

I am merely suggesting to my hon. Friend the Member for West Chelmsford that if one attempts to tie the hands of judges by putting in the words "shall be the duty", the judges—in an attempt to get the liberty not to impose orders—will extend the last half of the proposal and conclude that there are no reasonable grounds.

Time and time again, I have heard the argument that if a sentence appears too severe, the court will not convict. We have heard the argument that if capital punishment were brought back, juries would not convict an obviously guilty person because they did not like the consequences. That applies to a whole range of sentences. If courts, juries and judges do not like the inevitable consequences of a guilty verdict because they do not like the compulsory sentence that they must impose, in borderline cases they will conclude that the person is not guilty after all.

Also, we should not make it compulsory that reasons "shall be" given in open court. I would prefer to use the word "may", which would give the courts the traditional discretion for which they have fought for years—and for which they used to fight me when I, as a Minister, tried to take it away. In another place, more attention will be paid to that.

My right hon. Friend the Member for Bromley and Chislehurst made most of the arguments for the amendments powerfully, and I need not bore the House by repeating them. My hon. Friend the Member for West Chelmsford was in danger of misleading himself when he said that he did not like amendment No. 1 because it says that where a court makes an international football banning order, it "shall state" the reasons for that decision in open court. The amendment was drafted in that way because we wanted it to be consistent with the preceding subsection as we were working on the assumption that my hon. Friend or the Government might not accept our amendment to change "shall" to "may".

Amendment No. 1 would be a sensible addition to the Bill. I profoundly disagree with my hon. Friend the Member for West Chelmsford, who suggested that it might be an awful burden to impose on the judiciary or the magistrates. In the past, we were dealing with three cases, and now we may be dealing with, at most, 100 cases per annum coming before the 30,000 or so magistrates in this country.

There is already an obligation in the Bill that the court "shall state" in open court where it is not satisfied. I hardly think that it is a great burden if the court has to make a simple statement when it has imposed an international banning order. Courts must do that in a range of cases, particularly in terms of all offences concerning children and young people, in which they must state their reasons in much greater detail.

I strongly urge amendment No. 1 on the House, but if my hon. Friend the Member for West Chelmsford and the Minister continue to resist it, I would not wish to waste the time of the House by dividing on it. However, I hope that it will be considered seriously in another place.

Mrs. Laing

It is comforting that the House is now back to normal and my right hon. Friends the Members for Penrith and The Border (Mr. Maclean) and for Bromley and Chislehurst (Mr. Forth) are in harmonious agreement. I am not, however, in agreement with them. The Opposition support the arguments of my hon. Friend the Member for West Chelmsford (Mr. Burns).

We have before us a very important point of principle on the criminal law. It is important to give sufficient discretion to the courts and to the judiciary. There must be some discretion in the way in which judges or magistrates deal with the law in making a judgment after considering the particular circumstances of a case, but it is up to the House to make the laws for them to interpret. That important distinction is often overlooked when we are considering the extent to which the courts should be bound by the letter of the law.

It is important to get the balance of discretion right in any Act of Parliament, and I feel strongly that the Bill as it stands allows sufficient discretion. The Opposition do not support the amendment.

12 noon

Kate Hoey

The Government feel that the amendment would weaken the Bill. It would be wrong to remove the duty placed on courts to make banning orders when a football-related offence has been committed and they are satisfied that there are reasonable grounds to believe that an order would help to prevent violence. It is very important to remember what happened when the courts had discretion: in December 1997, there were only nine restriction orders in force and it was clear that the courts were not using the discretion available to them. They did not even seem to realise that they could impose the orders.

The Home Secretary had to write to the Magistrates Association and point out that such orders were available, and by the end of June 1998 the number in force went up to about 60; it is now about 150. Those may still be relatively low numbers, but it is important that we say that, when the evidence is there and the courts are satisfied that the person has been convicted of a football-related offence, an order should be imposed.

The courts will still have discretion and I do not think that they will be so terrified of issuing banning orders that they will refuse to convict, as the right hon. Member for Penrith and The Border (Mr. Maclean) seems to imply. Our magistrates are not like that and we would not expect them to act in that way.

I hope that the right hon. Member for Bromley and Chislehurst (Mr. Forth) will withdraw the amendment. If there is such strong feeling in the other place, presumably the matter will be discussed there, but I do not think that the amendment is necessary. It would water down the Bill, and the hon. Member for West Chelmsford (Mr. Burns) has clearly put the case why the provision should remain as it stands.

Mr. Forth

The argument is about how far we in the legislature are prepared to trust the judiciary. The Minister has made it clear that she believes that the judiciary can often fail properly to interpret Parliament's views. Interestingly, she said that, if given a bit of a nudge by the Home Secretary of the day, the courts may buck up their ideas and start to realise that penalties are available of which they were previously unaware. That provides a counter-argument, as it suggests that the wording in the Bill may not be necessary.

For the sake of making progress—but reluctantly, I must admit—I will not press the amendment to a vote, but I want to put down a marker and say that we should all think about this matter very seriously.

Mrs. Laing

Does my right hon. Friend agree, as a point of principle, that it is up to Parliament to make laws and that if too much discretion is given to the courts we will end up with judges making laws, which must be wrong?

Mr. Forth

I am not sure about that. I understand exactly the point that my hon. Friend is making, but the principle may lead in directions which, to some people, seem very threatening. Some people may, for example, want to bring back mandatory hanging for sheep stealing—perhaps that is a good example of the point that she was making—although I suspect that, currently, the majority view is that that would be unwise, and that it is always better to leave the discretion at the point at which the knowledge exists: the court, which has had its proceedings and taken full account of the circumstances, mitigating or otherwise. I therefore remain to be convinced that it is proper for this place, and Parliament generally, to constrain the courts by stating in too much detail what they will or will not do. Hon. Members do not sit in the courts, on the jury or on the magistrates' bench. Now that I think of it, some of my hon. and learned Friends are on the bench, but most of us are not.

I do not wish to delay the House, and I am sure that we shall return to the argument on another occasion. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Forth

I beg to move amendment No. 12, in page 2, line 4, leave out 'absolutely or'.

Mr. Deputy Speaker

With this, it will be convenient to discuss amendment No. 24, in clause 6, page 8, line 1, leave out 'absolutely or'.

Mr. Forth

The House will be relieved to know that amendment No. 12 deals with only a narrow—but important—point and need not detain us for too long. I really am quite worried about the wording in this part of clause 1(3). My amendment is therefore a probing one, so that I may clarify and ensure that I—and, therefore, the House—fully understand what my hon. Friend the Member for West Chelmsford (Mr. Burns) and the Government understand to be thrust of the provision.

Clause 1(3) states: An international football banning order may only be made— (a) in addition to a sentence imposed in respect of the offence of which the accused is (or was) convicted".

In other words, a banning order may be in addition to a conviction. The clause goes on, however, to provide that an order may be made (b) in addition to an order discharging him absolutely or conditionally. That is what worries me.

I can certainly appreciate the point of imposing a banning order subsequent to a conviction. I can also fully appreciate—although I am less happy about it—imposing a banning order in addition to an order conditionally discharging someone. Although I am no legal expert, I assume that a conditional discharge entails an element of guilt, and that a banning order would therefore be related to an act containing at least an element of guilt.

I part company with the Bill—this is the point of amendment No. 12—where it provides that a banning order may be made when someone has been discharged absolutely, as I really wonder whether that is the proper way to proceed. It seems to me—as a non-legal expert—that, if someone has been absolutely discharged, they have not been convicted and are not guilty of the offence.

In those circumstances, I cannot for the life of me see how one can justify imposing an international banning order—unless we are back to where we started in the debate and are saying, "We haven't been able to convict you in this case, or even to impose a conditional discharge—we are discharging you absolutely. But we don't much like the look of you, or your friends. These NCIS people are telling us that there's something pretty flaky about you, and that your behaviour is peculiar. We therefore have some reason to restrict your freedom. So, under the powers given to us by the Bill, we shall impose an international banning order, although you have been absolutely discharged." That really would be too much.

The provision would—as we have found time and again in the Bill, in provisions curtailing the court's discretion or dealing with people with or without convictions—tilt the balance too much. One of the traditions of our law is the presumption of innocence until proven otherwise, but here we have a provision that would mean that even if a person had been absolutely discharged, the courts would still have the power to restrict his freedom. I hope that I have misunderstood the position, because I find it unacceptable.

Mr. Maclean

I confess to the House that although I support my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) on a range of his amendments, my name should not appear in the list of supporters of this amendment. I did not study this amendment carefully when my right hon. Friend showed it to me and I told the Clerks in the Table Office that I would happily sign all his amendments. I must part company from my right hon. Friend on this amendment.

An absolute discharge is still a conviction. I have never considered absolute discharges a sensible sentence in English law. If someone is convicted, they should face some penalty, however slight. Nevertheless, while the concept of an absolute discharge remains, it is still a conviction. It is not a finding of not guilty or of innocence: it is a finding of guilt where the court, in its infinite stupidity, declines to impose a sentence. The only penalty is that the person still has the stigma of having been convicted by the court. The hope is that someone who has been absolutely discharged will not repeat the offence because he will know that he will face a much heavier sentence next time.

An absolute discharge is a conviction without a sentence, so it would be inconsistent to remove it from the Bill. If we were to do so, people who were convicted and given a £10 fine or a few hours' community service would be caught by the legislation, but someone given an absolute discharge for the same offence would not be caught. At the lower end, some of the penalties for the football-related offences are very slight. A few hours' community service or a £10 fine do not rank much higher than an absolute discharge.

Mr. Forth

I am following my right hon. Friend's argument closely, as ever. Is he saying that if someone has been found technically guilty, but the court recognises that the offence is so minor that it does not require any penalties, such a severe restriction of freedom as an international banning order is still justified?

Mr. Maclean

If there is a fault in the system, it is the existence of the absolute discharge. If my right hon. Friend is successful in the private Members' ballot next year and introduces a measure to abolish the absolute discharge, I shall be happy to support it. However, the absolute discharge currently exists and courts can and will impose it.

By the way, this is not a matter of technical guilt: one is either innocent or guilty. Someone may be blatantly guilty but, for some good reason—personal circumstances or the feeling of the court that the person is highly unlikely to offend again, which is often the case when absolute discharges apply—the court may decide not to impose a financial or any other penalty. If the court wants the conviction to stand, it imposes an absolute discharge.

12.15 pm
Mr. Forth

If the court has been persuaded that an individual is highly unlikely to repeat an offence, how on earth can one justify an international banning order? The point of such an order is to ban someone who is likely to do something unpleasant, but my right hon. Friend has just said that absolute discharges are given to people who the court reckon will not do something unpleasant. We cannot have it both ways.

Mr. Maclean

Different courts and time scales are involved. When a court gives a person an absolute discharge, it does so for one of many reasons. A court examines an offence, convicts the person who it is convinced committed it, and then disposes of that person in one of many ways—by means of a term of imprisonment, a fine, community sentence or custody. Alternatively, it may grant an absolute discharge. One of the dozens of possible reasons for that decision may be that, in the opinion of the court, that person is unlikely to commit another offence.

Weeks, months or years later, that person may come before a different court because there is a possibility that he will be involved in football violence. That new court will have to consider whether the terms of clauses 1 or 6 are satisfied, and whether an international or domestic banning order is appropriate. In such circumstances, the new court may conclude that, as the earlier absolute discharge is still a conviction, a banning order may be appropriate because the person has not behaved himself in the interim.

I am conscious of the point that my right hon. Friend makes, which is that an absolute discharge feels like no penalty at all. The only penalty faced by a person given an absolute discharge is the fact that the discharge is still a conviction: that person has been convicted of an offence for which a financial penalty or a period in custody has not been imposed. Nevertheless, an absolute discharge remains a conviction and so has to be included if this part of the Bill is to be logical and consistent.

My right hon. Friend may say that absolute discharges are a load of nonsense and should be reformed. I agree, but we cannot do that in this Bill. While the absolute discharge remains available to courts as a sentence and a penalty, we must include it in this Bill. I sincerely apologise to my right hon. Friend that I did not study the amendment carefully enough when I signed up to it. I studied it in more detail overnight, and I have to oppose it.

Mr. Burns

I do not want to disappoint my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), but I share the views of my right hon. Friend the Member for Penrith and The Border (Mr. Maclean).

This is a narrow point, but my right hon. Friend the Member for Bromley and Chislehurst rightly said, when moving the amendment, that this part of the Bill applies to international and domestic banning orders with regard to people who have been given absolute discharges. However, my right hon. Friend supported the Public Order Act 1986, which provided that exclusion orders—the old domestic banning orders—covered people who had received absolute discharges. This part of the Bill merely provides that people on whom international banning orders are imposed will be treated in the same way that the 1986 Act treats people in relation to domestic banning orders.

I hope that that goes some way towards reassuring my right hon. Friend the Member for Bromley and Chislehurst about the consistency of the proposal.

Mr. Forth

I am grateful for that, but I am a bit worried about the approach adopted by my hon. Friend and by my right hon. Friend the Member for Penrith and The Border (Mr. Maclean). The implication is that I must always and absolutely support measures that I have previously supported in the brief time since I entered the House in 1983. Nothing could be further from the truth. My hon. Friend has been in the House for a considerable period, and he will know that we can all look back and regret what we have done. All of us change our hearts or minds sometimes. Even as eminent a person as the Prime Minister has been known to change his mind on the odd occasion. If we look back at what the right hon. Gentleman thought in, for example, 1983, we can detect a few differences because he has since taken a more mature judgment. My hon. Friend may know that I thought something was a good idea in my impetuous youth, but now that I am a statesman, I may not necessarily agree with it any more.

Mr. Burns

I fully accept that point. Let me try to reassure my right hon. Friend. My right hon. Friend the Member for Penrith and The Border made a cogent case, but I shall try to clarify matters further. If a court considers an absolute discharge to be the appropriate disposal, it may be satisfied that the person involved is unlikely to be involved in future disorder. The court would not necessarily issue a banning order in such a case, although, as a result of the amendments that we discussed earlier, the court would have to give a reason for not issuing an order.

For that reason, the amendment moved by my right hon. Friend the Member for Bromley and Chislehurst is not necessary, and it would not enhance the Bill. I urge him to withdraw it in the light of what my right hon. Friend the Member for Penrith and The Border has said.

Mrs. Laing

Once again, we are in the uncomfortable position of hearing my right hon. Friends the Members for Penrith and The Border (Mr. Maclean) and for Bromley and Chislehurst (Mr. Forth) disagree. Once again, we must consider how the amendment would work. It may be appropriate that no penalty should be imposed in some cases, even where a person is found guilty. However, the purpose of a banning order is to prevent future offences. It may therefore be appropriate, if an unconditional discharge is imposed, for the court to have the power to impose a banning order to prevent future offences. I agree, therefore, with my hon. Friend the Member for Chelmsford, West (Mr. Burns), and I hope that my right hon. Friend the Member for Bromley and Chislehurst will withdraw his amendment.

Mr. Forth

The amendment offers a clear example of why a non-lawyer intervenes in these matters at his peril. I confess that I am not a lawyer and that I have no legal training or experience—in the lack of which I am in distinguished company. My right hon. Friend the Member for Penrith and The Border is virtually a lawyer by dint of his long and distinguished service at the Home Office, and he knows much more about these matters than I can ever hope to. I wholeheartedly accept what he has said. He placed his trust in my wording of this modest amendment, but I had betrayed his trust because my assumptions were mistaken. I am grateful to my hon. Friend the Member for West Chelmsford for correcting me so courteously, and even more grateful to the Minister for not rubbing salt into the wound. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Maclean

I beg to move amendment No. 2, in page 2, line 13, at end insert— '(6) Any person placed under a duty to report to a police station as specified in an order under subsection (5) above shall have the right of appeal to the court within fourteen days of the imposition of the order.'. I have pleasure in moving the amendment, which stands in the name of my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and myself. On this occasion, I can perhaps make amends for not managing to talk to my right hon. Friend properly in the past few days to advise him on the latent faults in the previous amendment. I have great pleasure in supporting him on this occasion because this amendment is on exactly the right track. It is consistent with the spirit of civil liberties that he has espoused this morning and, at last, it deals with a right of appeal, about which he is very keen.

The amendment would provide for a right of appeal within 14 days against the imposition of a requirement to report to a police station under a banning order. The House will be aware that the Bill as drafted places a duty on a person who is subject to a reporting requirement under such an order to report to a specified police station in England or Wales. At present, the person concerned can report to any police station without prior agreement or notice, which does not hinder travel.

This little amendment is important. Its aim is to ensure that, should a police station be specified to which it is in practice unreasonable or difficult for the person to report, an appeal would be possible. In the vast generality of cases, there should be no problem. It is highly likely that the police station specified will be near the individual's home or work, or in many cases both as those will not be too far apart.

One of the worrying aspects of football hooliganism is that some of the people convicted have, unfortunately, hailed from Carlisle. They were involved in some ghastly football violence. I said "unfortunately" because Carlisle is next door to my constituency and one likes to think that we do not do that sort of thing up there. However, there was a nasty pocket of football hooligans in Carlisle.

One such hooligan, who was targeted at Euro 96 or the world cup, had a business. In fact, a few of the hooligans were business men. They travelled and had company cars. I cannot remember what business they were in, so I will not say whether it was insurance, banking or whatever, but it was a highly respectable business and they were apparently highly respectable and successful business men, which just goes to show that hooligans are not all the mindless morons about whom my hon. Friend the Member for West Chelmsford (Mr. Burns) talks. They are mindless morons when they get involved in violence, but some of them are not merely lager-swilling louts who sit in a pub all day doing nothing; they are successful business men and hooliganism is a dark and sinister side to their characters.

I have no truck with such people. If they commit an offence, I am happy for them to be locked up for as long as the court thinks appropriate. However, if a reporting restriction is to be imposed, the last thing that I want is for those people to lose their jobs or find it impossible to continue in their work and to become a new burden on the state. If they are travellers or computer salesmen, or if their job is to travel throughout the country, I want to ensure that they can appeal to change the police station to which they report or to bring some flexibility into the system.

Mr. Mark Oaten (Winchester)

Might not the fear of losing one's job act as an extra deterrent? In a sense, the amendment would make it easier for such people to offend without fear of losing their jobs.

Mr. Maclean

I entirely disagree. That concept is not built into the amendment. Losing one's job is not a penalty in the Bill. If we want to build that into the legislation we should do so, but we should not make loss of employment an accidental facet of a requirement to report to a police station. That requirement is in the Bill so that the police can keep tabs on hooligans. The police know that they are reporting to the station and not going overseas or somewhere else to commit violence. That measure is not built into the Bill as a threat to their employment, which is a different concept. If fear of losing one's job is to be the deterrent, I am happy with that. If we are going to make it part of the sanction that hooligans face a danger of losing their jobs, we should have the guts to build it into the legislation. If they go to prison or custody, they may lose them anyway. Depending on their business, people may be dismissed for certain offences. Companies will not want to employ people with convictions for violence.

12.30 pm

The provision is a simple, sensible, reporting requirement, and I am merely saying that while that is all right for most working people, many are now taken away by their work, such as salesmen or contract workers. It is not only building site workers but computer contract workers and electrical engineers. If their job means that they can be suddenly taken away, they should be able to get the police station to which they have to report changed to make it more convenient and avoid putting their employment at risk.

I hope that my hon. Friend the Member for West Chelmsford will not say that my amendment will weaken the Bill, because it will not dilute it. It is not a wrecking amendment. If he rejects it, I will not press it to a vote and risk damaging the Bill, but it is sensible to give people whose work means that the police station may have to be changed a right of appeal. If he has a better way to build in such flexibility, I would be happy to accept it.

Mr. Burns

I reassure my right hon. Friend that I am not going to say that his amendment seriously weakens the Bill. I hesitate to say this, because as Ministers we all too often said it; and now in opposition, I find that Ministers say it to me so often that it drives me to drink but, sadly, the amendment is defective. There is a right of appeal in respect of the issue of an order. I appreciate that that was not his point but I hope that he is reassured on that.

On my right hon. Friend's narrow point about a right of appeal in respect of the police stations to which people are designated to report, unfortunately his amendment is defective, because the duty to report is within five days of making the order where as his amendment refers to 14 days. That is no big deal, because if we accepted the principle and its urgency we could adjust it.

I wish to reassure my right hon. Friend about the nub of his argument. When an order is being imposed and the arrangements are being made about the police station to which a person has to report, there is an opportunity for that person to discuss them with the courts and the police to ensure that they are convenient and do not impose undue hardship. In making orders, the courts will not be giving additional punishment by imposing the most complicated arrangements to cause problems for people but ensuring that they turn up at the right time and place to surrender their passports so that the law is implemented and effective.

Mr. Maclean

Does my hon. Friend accept that the police and the person involved can discuss it until they are blue in the face and pick the best police station, but that that will not help if he is sent by his work to the north of Scotland for two weeks or told that his job will take him around the country? The work force are more mobile than ever before. How does the Bill tackle that?

Mr. Burns

I appreciate that. The individual can ask for further consideration to be given to genuinely changing circumstances. However, my right hon. Friend will also have come across individuals who seek to avoid their responsibilities. The Child Support Agency is an example of some people having become highly skilled at abusing the law and the requirements imposed on them to the nth degree. If one is not careful, under this measure, individuals would abuse that position and would try to bring the law into disrepute and make it less effective than Parliament wants it to be. On those grounds, I ask my right hon. Friend to reconsider the matter and to withdraw the amendment.

Mr. Forth

I am now rather confused. Normally, our little debates help to clarify matters—as did the previous debate—but I am somewhat confused by the remarks of my hon. Friend the Member for West Chelmsford (Mr. Burns). To say—as has been said—that we should not worry too much about the measure, as it is not intended to be penal, and that we do not intend to make it difficult or inconvenient for the individual, but rather to make it as easy as possible, strikes me as slightly bizarre in the context of our debate.

All morning, we have been told about individuals who have committed the most ghastly and heinous acts and are a threat to society. Now, we are told that we are trying to find the most convenient outcome for such people. That strikes me as somewhat odd. Perhaps it is typical of the court leniency that has been mentioned during the debate. However, that matter is for another day. The more I consider it, the more I am tempted by the suggestion of my right hon. Friend the Member for Penrith and The Border (Mr. Maclean): that were I—God forbid—ever to come high enough in the ballot for private Members' Bills, that subject might merit my attention.

Be that as it may, I am not clear about the object of the exercise. I guess that it is to prevent certain persons from going to football grounds—that is the most obvious' object—but I am distressed to hear that there is no intention to subject them to any penal element. I am even more confused by my hon. Friend the Member for West Chelmsford saying, in effect, "Don't worry, because the individual will be able to discuss the matter and make representations about it during the court proceedings". Of course, he will—or, at least, I hope so—because that is what judicial proceedings are all about. If the matter were so simple, we should never need the right of appeal in any case.

According to what my hon. Friend said, we need only tell the accused individual that, during the court proceedings, he and his legal representative would be able to make all the points they wanted; they could ask the court to take this or that into consideration and should trust the court because it would all turn out all right.

Mr. Burns

I obviously made my point inadequately and it caused confusion. What is important is that a police station is designated to which an individual has to report. That individual will be able to ask the court to take certain factors into consideration in determining a police station at which attendance would not cause an undue penalty. On the other side of the coin, if a court convicts and sentences someone to a prison sentence, I am sure that my right hon. Friend would not expect the court to start discussing with the prisoner at which prison it would be convenient for him to serve his sentence.

Mr. Forth

I thought that was not part of the penalty. We cannot have it both ways. If it is to be part of the penalty, I should build a large police station in Stornoway and insist that everyone reported there. That would have the required effect. However, that, apparently, is not what we are saying. We are saying, "Don't worry. You will be asked to report to a police station, but it will be very convenient and probably warm; you might even get a cup of tea when you go there." The way things are going, I should not even be surprised by that. It must be one thing or the other—either it is part of the penalty or it is not. If it is not part of the penalty, that is a different matter.

If the idea is simply to make sure that individuals are where we want them to be at a particular time, to prevent them from going anywhere near a football match—although why anyone would want to go near a football match is quite beyond my comprehension, but apparently there are those who do—we are in different territory altogether.

Mr. Burns

I hesitate to intervene as I do not want to delay the debate and talk out my Bill. However, I hope that my right hon. Friend realises that the measure refers to international football banning orders. If a court imposed such an order, an individual would have to turn up at a police station not less than five days before a match to hand in his passport, to prevent him from travelling overseas where he could cause problems at the football match or in the surrounding area. The provision merely states that the courts have to sort out a police station for the person to go to at a certain time. Of course the courts will try to find a police station that is convenient to the individual, so that it gives no further encouragement to the individual not to comply with the banning order.

Mr. Forth

It is getting worse and worse—we have not got to the cup of tea yet, but I sense that it is imminent.

However, we need not fall out over this matter. I was persuaded by the arguments of my right hon. Friend the Member for Penrith and The Border, whose knowledge of police stations is far greater than mine as a result of his having been in far more of them than I have, and I defer to him in this case. The more I hear from my hon. Friend the Member for West Chelmsford the more worried I become, however, because it all seems very soft and easy going; but I shall not prolong my comments on amendment No. 2 because I am anxious to reach the amendment dealing with the surrender of passports, which will be another debate altogether. I shall be guided on this occasion, as on so many others, by my right hon. Friend the Member for Penrith and The Border, but I am not entirely convinced.

Mr. Maclean

I, too, am not convinced by the arguments of my hon. Friend the Member for West Chelmsford (Mr. Burns). I am not convinced, although I am willing to be corrected by the Minister or anyone else, that handing in the passport is the sole purpose of specifying a police station. The court can impose any conditions it thinks fit, and I was under the impression that specifying the police station to which the person must report might involve more than a single visit to hand in a passport: for example, there could be a requirement that the person should report there regularly.

However, I see from head movements in the Chamber that I am wrong and my hon. Friend is right, but even if he is right and the purpose of specifying the police station is solely to do with the handing in of the passport, it makes sense to introduce a degree of flexibility to deal with a small number of cases. For example, say it is decided for a person who lives and works in Penrith that Penrith will be the reporting station where he must hand in his passport five days before a football match. Say that person then discovers that he is being sent to work on a contract in the Devon and Cornwall police area. Surely it should be fairly simple to specify a police station in Devon or Cornwall.

Such cases may constitute only a tiny minority, but I am not entirely convinced that there are powerful arguments against their being provided for. I am not in the business of diluting the Bill or making life inconvenient for the police; nor am I in the business of allowing people a right of appeal to change the police station where they must hand in their passport every other day and around every single police station in the country. I accept that there would be clever fly-boys who would try to make a mockery of the law by taking advantage of such flexibility.

However, as I said, we would be dealing with only a small number of people, all of whom would be on the NCIS computer and that of their local police force. With the police national network up and running and all the digital communications that were installed under the previous Government, on which the current Government are no doubt building, it should be quite possible for the police services of the UK, which are all now in touch with each other, simply to effect a change—for example, that the reporting station for an individual has been moved from Penrith to Penzance.

Nevertheless, today is not the day when I shall try to persuade my hon. Friend the Member for West Chelmsford to deal with that point. I suspect that, when the Bill goes to the other place, their lordships in their infinite wisdom will conclude that the matter deserves their attention. At that time, my hon. Friend may have to table an amendment—one that is more correctly drafted than my own—to deal with this small but important point. It is the small but important improvements that give us the best criminal justice legislation in the world, which is why we should never be afraid to deal with the small issues as well as the mega-issues. However, since I do not intend to pursue the matter today, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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