AS AN AMENDMENT TO COMMONS AMENDMENT No. 29 (Hansard, 2 November 1989)

§ Lord Harris of Greenwich
My Lords, I beg to move Amendment No. 29A. This is one of the more extraordinary elements of this extraordinary Bill. What are we discussing? We are discussing a situation in which a man or woman is charged with a criminal offence and is convicted in the magistrates' court. The FMA is informed and he or she is banned from membership of the scheme. That is clear, and in the context of the Bill cannot be challenged. We then move on to the situation where the person appeals. In an appeal from a magistrates' court decision there is a full re-hearing of the case. Then the appeal is allowed. At that stage the court 404 has to inform the authority that it should re-admit him to membership of the scheme, on the grounds that the earlier decision by the magistrates has been overturned.
What we now have is one of the clearest cases of double jeopardy that I have ever heard, because what then happens, according to the amendment, is that notwithstanding the fact that the case has been tried on two separate occasions —first in the magistrates' court and then in the Crown Court —there is then a risk that the person acquitted can be required to appear before some committee of the FMA and for a third time defend his reputation. Why? What conceivable grounds are used to justify this?
The noble Lord, Lord Hesketh, as though he is conferring some immense advantage on this citizen, says "He will have the right to challenge the ban." What does that amount to? We know what it amounts to because we discussed this matter earlier. There is a high degree of likelihood that he will never be able to confront his accusers in an oral hearing. Therefore, quite possibly, we will have a situation where this person, who has by this time gone through two criminal courts and eventually won, will not on the third occasion have the opportunity to challenge his accusers who, by definition, have failed to persuade a criminal court that the person concerned has committed an offence which would lead to him being banned under the scheme.
I have rarely heard a more preposterous suggestion from any government. It is a flagrant denial of the civil rights of an individual, and I am deeply shocked that the Government are prepared to stand up and attempt to justify a provision of this sort. It is a case, I suspect —if the Government get their way, as I have not the slightest doubt they will —which will eventually go to the European Court of Human Rights and I have little doubt what the result there will be. I beg to move Amendment No. 29A.

§ Lord Graham of Edmonton
My Lords, in pleading for the words which we seek to strike out, the Minister said that it could be that the case was quashed on a technicality. The Minister may very well believe, as many people do, that, when someone is proved innocent after he has been found guilty, he is still a villain and has a record and it is the kind of thing which he would do.
The Government are putting on the face of the Bill words which in effect say that, even if a man has fought his way through the courts three times and on the third occasion comes out with his character unbesmirched, there can still be reasons for this punishment to be inflicted upon him which, to a real football fan, would be a very grave punishment.
I wonder why the Government are so vindictive and so punitive in wanting to inject into the Bill a power which, if it were exercised, would bring not only the FMA but the Government into disrepute. Or are the Government really saying that if there is disrepute it is nothing to do with them —it is something to do with the FMA? Personalities, 405 settling scores, getting one's own back and teaching lessons are the kind of phrases which come to my mind. It is not a way in which any government ought to seek to legislate.

§ Lord Hesketh
My Lords, I am in one way extremely grateful to the noble Lord, Lord Harris of Greenwich, because I was aware that the noble Lord might seek to return to the subject of the procedures to be followed by someone who wishes to challenge a discretionary ban imposed by the FMA under the Bill. The reason for this is that I was lucky enough to read with interest his article in the Guardian newspaper last Friday.
I would make only one small factual point which was not mentioned in the article, which is that this subject was put before your Lordships' House at Third Reading on 16th June when an amendment was moved and that amendment was also defeated. It can be fairly said that your Lordships have given the arguments a fair hearing already, but I think I should rehearse the main points of my argument again.
The government amendment at Third Reading, which has upset the noble Lord, Lord Harris, was one of a package concerned with the FMA's power to ban people at their discretion. The effect of this group of amendments was very clearly to strengthen the rights of those affected. They put a maximum of two years on the length of any discretionary ban. They added a requirement that the FMA should notify the person concerned in writing of the reasons for his disqualification. I do not accept the substitution of the independent review procedure for which the Bill now provides in place of the appeals tribunal which was originally envisaged.
I have to say that we believe that it is very much in the interest of those concerned to have their cases heard quickly, especially if the length of their ban is relatively short —say, three or six months. A full-blown tribunal would take far longer to arrange than the period of the ban and we have not excluded the possibility of an oral hearing. It will be for the independent review panel, which is to be established by the FMA, to decide whether an oral hearing is necessary.
But I should remind your Lordships' House that we consulted the Council on Tribunals on this issue, as the noble Lord proposed that we should, and its advice was that the independent review procedure for which the Bill now provides was a more appropriate means of resolving disputes about FMA decisons than a full-blown tribunal.
Finally, I know that the noble Lord, Lord Harris, very elegantly entwined the two legal procedures that he mentioned at the start of his argument, and then stitched them into the lace of the complete argument on the FMA discretionary ban. We should always 406 keep it in mind that there is a very great difference between the first two parts of the supposition and the third.

§ Lord Harris of Greenwich
My Lords, that was not a desperately persuasive reply. First, the noble Lord, Lord Hesketh, was kind enough to refer to the article that I wrote for the Guardian last Friday —

§ Lord Graham of Edmonton
A very good one.

§ Lord Harris of Greenwich
My Lords, I am always glad to accept tributes of that kind from the noble Lord, Lord Graham, or anybody else, The Minister appears to object to the fact that I did not say that we were defeated in the House on this issue. Does he not realise that if we had succeeded on that occasion I would not have written an article for the Guardian in the first place? It was entirely because the Government used the Library vote in the way they normally do on this Bill, and secured the majority which they did —because they have a majority in this House —that one had to raise the issue in the first instance.
I should like to make two points, the first of which is about a technicality. The noble Lord implied how appalling it would be if a man acquitted on a technicality did not lose his membership of the scheme as a result. Does not the noble Lord appreciate that if a person wins his appeal he is an innocent man? If the prosecution have mishandled a case, that is a matter for them. The fact is that he is innocent. Does not the noble Lord realise that, as I have pointed out, there will be three separate procedures, two in criminal courts and the third before the independent review panel? The noble Lord, Lord Hesketh, said that there is no particular problem here because the review panel may well decide to have an oral hearing. There is no certainty at all of that. When we tried to insist that all hearings should be oral, the noble Lord resisted it as he is doing this evening. I repeat that this is a flagrant attack on the civil liberties of individuals who have been acquitted in the criminal courts.
I hope that, when the noble Lord, Lord Hesketh, studies once again that article in the Guardian, as I am sure he will, he will take the opportunity also to read an article in The Economist which came out last week. The article is particularly appropriate in terms of the argument which the Government have used to justify this amendment. It states: The British have been brought up to believe that their liberties are protected by a sovereign Parliament. In the days when parliamentarians were not wedded to the prospect of office, nor in the grip of their party whips, that may have been so. It is not so now. If a government does not want to admit that it has mistakenly trampled on civil liberties, Parliament will not force it to … The Labour government of the 1970s was weak on civil liberties. But the record of Margaret Thatcher's governments is the worst in modern times". I should add that I was a Member of the Labour government of the 1970s. Everything we have heard tonight justifies the view expressed in the article. We shall vote on the amendment.

DIVISION NO. 3
CONTENTS
Addington, L. [Teller.]	Molloy, L.
Airedale, L.	Northfield, L.
Bonham-Carter, L.	Ogmore, L.
Carter, L. [Teller.]	Pitt of Hampstead, L.
Craigavon, V.	Rea, L.
Dormand of Easington, L.	Seear, B.
Falkland, V.	Stoddart of Swindon, L.
Graham of Edmonton, L.	Underhill, L.
Harris of Greenwich, L.	Williams of Elvel, L.
Mayhew, L.

NOT-CONTENTS
Arran, E.	Home of the Hirsel, L.
Belstead, L.	Hooper, B.
Bessborough, E.	Jenkin of Roding, L.
Blatch, B.	Kimball, L.
Brougham and Vaux, L.	Kinnoull, E.
Butterworth, L.	Lindsey and Abingdon, E.
Caithness, E.	Long, V.
Carnegy of Lour, B.	Mackay of Clashfern, L.
Carnock, L.	Macleod of Borve, B.
Colnbrook, L.	Maude of Stratford-upon-Avon, L.
Cork and Orrery, E.
Craigmyle, L.	Merrivale, L.
Cranbrook, E.	Morris, L.
Davidson, V. [Teller.]	Mountevans, L.
Denham, L. [Teller.]	Norfolk, D.
Dormer, L.	Nugent of Guildford, L.
Elliott of Morpeth, L.	Oppenheim-Barnes, B.
Elton, L.	Orkney, E.
Faithfull, B.	Reay, L.
Ferrers, E.	Rippon of Hexham, L.
Fraser of Carmyllie, L.	Rodney, L.
Gardner of Parkes, B.	Strathclyde, L.
Glenarthur, L.	Strathmore and Kinghorne, E.
Hardinge of Penshurst, L.
Harvington, L.	Thomas of Gwydir, L.
Hayter, L.	Trefgarne, L.
Henley, L.	Trumpington, B.
Hesketh, L.	Ullswater, V.
Hives, L.	Walpole, L.