Application to chief officer of police.

HL Deb 24 July 2000 vol 616 cc240-66

14BA.—(1) Any person may make an application to the chief officer of police for the area in which that person resides for a declaration that there are no grounds in his case for seeking a banning order.

(2) On receipt of such an application a chief officer of police shall, within seven days, either—

1. (a) provide such a declaration in writing; or
2. (b) make an application under section 14B(1).").

The noble Lord said: In moving Amendment No. 38 I shall speak also to Amendment No. 63.

Again, I am not particularly attached to the wording of this amendment. It addresses the problem of how, if one is a person who may be liable to be picked up at the ports under Clause 21 of the new arrangement, one deals with that situation. Do we just buy our ticket at great expense, go along to the port and see whether or not we are nabbed? Or can we in some way obtain guidance as to whether or not we are likely to be stopped at the border?

It seems to be proper and right that people should be able to obtain guidance from their local chief of police—after all, he is the person who will throw them into Section 14B—as to whether or not they are likely to be stopped under Section 21. If the chief of police says that they are likely to be held up, then they will not go to the expense of buying a ticket or, if they do, it is their lookout. If the chief of police says that they are in the clear, then they should have a pass to wave at anybody who tries to stop them at the port.

Perhaps this is not exactly the right way to do things. But, one way or another, some procedure must exist so that those who find themselves on the margins know which way to jump. I beg to move.

Lord Cope of Berkeley

Like my noble friend I am not wedded to the specific wording of Amendment No. 38. But it carries an important point; that is, that one should be able to obtain clearance in advance, which could be of great practical value.

Lord Bassam of Brighton

I understand the motive and good intentions behind Amendment No. 38. It would entitle any individual to seek from the police advance warning of whether or not there are grounds for seeking a banning order.

The intention behind the amendment is to prevent an individual's journey to an overseas match or tournament being disrupted or curtailed by a police decision to detain them en route to make inquiries. I am sure that, whatever the fate of this amendment, people will ask the police in advance for such reassurance. We will undoubtedly need to discuss with the police what the appropriate response should be.

The noble Lord accepts that the amendment is not well phrased. We cannot possibly accept it because it would probably cripple the police resources and certainly add to the burden of bureaucracy. Also, it would not add much to the prevention of hooliganism if the police had to give such a formal response. However, I understand the motivation behind the amendment. We cannot help on the face of the Bill; but we shall clearly have to discuss guidance with the police because they will have to advise officers who receive requests from ordinary members of the public who feel that they may have been a citizen of suspicion.

Therefore, I ask the noble Lord to withdraw the amendment. We cannot offer anything in the legislation. Clearly it is an issue we will need to discuss with the police and no doubt they will want guidance issued as to how they should respond to requests for information of the kind that the noble Lord is seeking to provide.

The Earl of Onslow

Can the Minister say why it would be more bureaucratic to have this provision in the Bill than giving the police guidance regarding answering such questions? I should have thought that exactly the same number of people will ring up with this request, whether or not it is in the Bill. What is the extra bureaucratic aspect that would arise from putting this provision on the face of the legislation, as opposed to it just being there by way of guidance?

Earl Russell

The Minister said that this provision would not contribute to the prevention of hooliganism. But, with respect, that can never be the sole motive for legislation, although it is a good and necessary motive. The Minister may be forgiven for thinking that the Second Reading debate took place rather a long time ago. However, he may remember that I said that one of the things that seems to me to produce the very worst legislation is a Bill that has but one purpose. We must legislate for the prevention of hooliganism but also for the doing of justice. If we remember both those objectives, we might get it right. But if we do not, we certainly will not get it right.

Lord Woolmer of Leeds

There is one interesting possibility here, although I can immediately see the dangers. Most of the large clubs have away-supporters' clubs. Of course, the England team has an English supporters' club. If it were possible for the police, so to speak, to give a clean bill of health to fans as a condition of being a member of such a club and qualifying for the purchase of tickets, that would certainly be a way in which legitimate fans could get that kind of clearance.

However, there is a problem; namely, that people might reasonably say that, in order to become a member of a club, you could open yourself up to being investigated by the police. Nevertheless, it suggests a potential avenue by which people who are legitimate football supporters could seek to gain clearance by associating themselves with the mechanism that links in with the acquisition of tickets. Therefore, in a sense, you could at a stroke have a legitimate ticket holder and a member of a club with such clearance. It would be an incentive for such fans to join a club of that nature.

Lord Goodhart

Although I am inclined to agree with what the Minister said about the possible administrative problems that might be caused by these amendments, the arguments for something of this nature are powerful. They are not only powerful; they are also very strong arguments against having the summary procedure under new Section 21A.

Lord Lucas

I find myself agreeing with what both previous speakers said. However, under the current timetable of the Bill, I understand that nothing can be done to put this provision on the face of the Bill. Indeed, it would take too much discussion. I shall be happy to rely upon what the Minister said. It is essential that the police should have some way to deal with such questions. That will play an important part in ensuring that the Bill does not upset relationships between the police and those whom they are policing.

Lord McNally

Before the Minister responds, perhaps I may ask him to think most carefully about the suggestion made by the noble Lord, Lord Woolmer. This could perhaps be a possible subject for the attention of the study group that is working parallel to the Bill.

Lord Bassam of Brighton

The noble Lord has anticipated 50 per cent of what I intended to say. In response to the amendment of the noble Lord, Lord Lucas, I put forward the argument that this is something that could properly be dealt with by way of guidance. That applies similarly to the point made by my noble friend Lord Woolmer. We are discussing one of those issues upon which the working group could spend some time. We shall certainly have to address the issue of membership clubs and the qualifications that people may have to pass in order to become members of them. There is also the relationship between that situation and criminal records and information that the police may hold. As I am sure the Committee will recognise, one of our proposals in the legislation deals in part with that issue.

Lord Lucas

In the context of the present position of this Bill, I am very content with the Minister's explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 39 and 40 not moved.]

Lord Lucas moved Amendment No. 41:

Page 6, line 6, at end insert— ("() In this Part "causing or significantly contributing with intent to any serious violence or disorder" includes conduct likely to encourage others to cause or significantly contribute with intent to any serious violence or disorder.").

The noble Lord said: The best reply that I could possibly receive on this amendment is that it is not necessary. It is drawn with the single purpose of making sure that, if not Mr Murdoch, then at least the editor of the Sun is caught by this Bill. I beg to move.

Lord Bassam of Brighton

The noble Lord is right in saying that the amendment is unnecessary. I do not believe that it adds anything in particular to the legislation. We have had the arguments as regards Amendments Nos. 39 and 40. I invite the noble Lord to withdraw his amendment.

Lord Lucas

I look forward very much to the time when Mr Murdoch is served with a banning order and told that he cannot go to football matches in Europe because of what the Sun has been doing to our fans. It is not an insignificant contribution to the way in which people behave at football matches and the way in which they think of our opposing teams, particularly in Europe. I very much hope that the passing of this Bill will mark the passing of a particular type of headline and attitude in our tabloid newspapers. I suspect that I may be told to dream on. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 42:

Page 6, line 11, after ("tribunal") insert ("inside or").

The noble Lord said: This amendment attempts to ensure that the magistrates' court, in deciding these matters, may take into account the decisions of courts in and outside the United Kingdom. I realise that magistrates' court, may take into account the following matters (among others)". But if the legislation specifically states, court or tribunal outside the United Kingdom", it might be held that a court inside the United Kingdom was deliberately not spelt out here and is not included when it should be. I make it clear that the decision which the magistrates' court might wish to consider would not only be a conviction. If that were the case, the application would be under the new Section 14A rather than under new Section 14B. It would also include someone who has not been convicted of a violent offence at some time in the past. That is also relevant within the magistrates' court. It can be a decision either way. Not only should foreign courts be taken into account, but also our own courts or our tribunals. I beg to move.

Lord Goodhart

One of the amendments in this group is our Amendment No. 44, which deals with new Section 14C(4) set out on page 6 of the Bill. That section contains a non-exhaustive list of matters which magistrates' courts may take into account as far as they consider it appropriate to do so. It is not at all clear what is the purpose of the list since it is clearly not exhaustive, but the implication must be that the courts must pay special attention to matters under headings (a) to (e).

I would have no objection to the courts paying special attention to any decision of a court or tribunal inside or outside the United Kingdom. The Minister is moving an amendment to remove heading (b). We want to see the removal of headings (c) and (d) as well. We believe that deportation from a country outside the United Kingdom, or removal from premises there or elsewhere, may well be relevant factors. However, we see no reason why they should be given any special significance; they are simply ordinary facts which, along with other facts, need to be taken into account.

In the case of deportation and exclusion, we know all too well that in many cases perfectly innocent people are deported because they have been swept up by a police street cleaning operation whereby they grab everyone they can lay hands on and chuck them out of the country. There have been stories of wholly innocent Americans, who have no interest in football whatever, being caught in an operation of that kind and suddenly finding themselves in London. Therefore it would be quite inappropriate for any special attention to be paid to paragraph (c). Broadly speaking, we believe that the same applies to paragraph (d).

3.30 a.m.

Lord Bassam of Brighton

I shall deal with Amendments Nos. 42, 43, 44 and 45 in turn. The intention of Amendment No. 42 is clear enough, but I am advised that there is no question but that one court may have regard to the decision of another—this does not require to be stated explicitly. New Section 14C is simply a list of additional matters a court may—if it thinks it appropriate or relevant—take into account. I invite noble Lords to withdraw the amendment.

Government Amendment No. 43 removes paragraph (b) from new Section 14C, and responds to earlier criticisms of the Bill. Amendment No. 44 would delete references to deportation and removal from football grounds from the factors a court could take into account. We do not believe that that is wise in the circumstances.

Amendment No. 45 would have the effect (after the government amendment) that deportation on its own could not justify the making of a banning order. Of course, I accept that none of the factors in new Section 14C is sufficient on its own to justify the making of a banning order. Conduct recorded on video, for example, not mentioned in these amendments, might be entirely innocent holiday footage. But all the factors mentioned in new Section 14C may be relevant and may help to establish the necessary conditions in new Section 14B—that is, involvement in violence or disorder and grounds to believe that an order would help to prevent future violence and disorder at football matches. We should bear in mind not just one element here but the sum of several parts. I believe that we have helped by removing the power, as it was earlier described. Amendment No. 43 achieves that. I invite noble Lords to withdraw their amendments in this group.

Lord Lucas

I understand what the noble Lord says. However, I still feel uncomfortable about the inclusion of deportation, particularly as it invites people to look at the people who are deported from Belgium as if they are prima facie guilty of something. Deportation without any court or tribunal decision behind it is an administrative exercise and has been used recently—as the noble Lord said—as a street cleaning exercise. It seems to me that it is undesirable that that should be taken into account. I rather go along with the amendment of the noble Lord, Lord Goodhart, on that point.

Perhaps the noble Lord can satisfy my curiosity on subsection (4)(e). Does that wording override the wording of what used to be Clauses 16 and 17 of the Regulation of Investigatory Powers Bill? I am sorry to return to such a recent, beloved memory. Does the term "by any other means" mean that we are looking at a situation where interception evidence could be brought into court, or does the Regulation of Investigatory Powers Bill take precedence?

Lord Bassam of Brighton

On the first point, I understand the nervousness that people feel about deportation, particularly in the light of events that occurred in Belgium. However, there have also been occasions—I think that the noble Lord would concede that point—where other jurisdictions have simply deported people because they consider it to be the quickest way of dealing with disorder, and with those who have been involved in disorder. In those circumstances, deportation has perhaps been seen by that jurisdiction as a punishment. It is something that would need to be considered by a court, but not considered on its own. I hope that I made that plain in my earlier comments. If not, that is exactly what I was trying to make clear.

As to the noble Lord's second point about proposed new Section 14C(4)(e), it would be unwise to speculate about the application of the RIP Bill in this respect. The noble Lord was being a little mischievous in trying to put me up to it. The quality of the material gathered under the RIP Bill is not what we are seeking here; we are seeking to establish a reasonable means of securing evidence in the ordinary way. It is as simple as that.

Lord Cope of Berkeley

I am not quite sure whether "mischievous" counts as an insulting word for the purposes of the previous clause. I shall let that pass. In the light of the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 43:

Page 6, leave out lines 13 and 14.

On Question, amendment agreed to.

[Amendments Nos. 44 and 45 not moved.]

Lord Bassam of Brighton moved Amendment No. 46:

Page 6, line 21, leave out ("But") and insert— ("In determining whether to make such an order—

1. (a) the magistrates' court may not take into account anything done by the respondent before the beginning of the period of ten years ending with the application under section 14B(1) above, except circumstances ancillary to a conviction,
2. (b)")

On Question, amendment agreed to.

[Amendment No. 47 not moved.]

Lord Bassam of Brighton moved Amendment No. 48:

Page 6, line 25, at end insert— ("and in this subsection "circumstances ancillary to a conviction" has the same meaning as it has for the purposes of section 4 of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation). (6) Subsection (5) does not prejudice anything in the Rehabilitation of Offenders Act 1974.").

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 49:

Page 6, leave out lines 45 to 51.

The noble Lord said: It is very unfortunate that at 3.35 a.m. we come to one of the most important groups of amendments. Amendments Nos. 49 and 53A seek to leave out of the Bill the requirement to surrender a passport. I am afraid that, in our hurry, we failed to propose leaving out paragraph (c) of Clause 1(1), which is a necessary paving amendment. Amendment No. 50 was left in by mistake; it formed part of an earlier draft but was cancelled before we tabled our amendments and should not have been left in.

There are two problems with a requirement to surrender. First, it may have inappropriate consequences; it is a serious interference with freedom to travel. Assuming that it is legitimate—as I believe it is—to prevent hooligans travelling with intent to cause trouble at football matches, it still cannot be legitimate to prevent travel for unrelated purposes for people who live abroad; or who need to go abroad because of their jobs; or who need to go abroad for family reasons, such as a wedding, a funeral or a family illness; or even for people who have booked a holiday in Florida, far from the nearest regulated match. There would be entirely random bans on their travel. As soon as the control period begins they will have to hand their passports in, and they will not get them back until the control period ends.

They can of course apply for an exemption under Section 20 of the 1989 Act, but, as it stands, it is much too broad. It is not enough to say that they can get an exemption; we need a much more targeted way of hitting the people whose only purpose in travelling abroad is to go to a regulated football match or to take part in potentially violent activities around it.

There is a second problem with the requirement which is perhaps more fundamental—that is, why do passports need to be surrendered at all? After all, the primary power is to order the subject to report to a police station at specified times; those times, of course, are naturally the times of matches. If the subject of the order does not turn up at the police station, that is just as much an offence as not surrendering his passport. Subjects of banning orders are unlikely to go abroad if they know that they will go to gaol when they get back.

We have now been told that the German rules do not require passport surrender except in the most serious crimes. They rely mainly, as I think that we should, on the reporting obligation. They rely also on a stamp in a passport; that is a passport stamp which restricts travel to countries where matches are about to be played. Plainly, that is less restrictive than a requirement to surrender a passport. But the Government have not considered the possibility of a stamp which would, of course, operate as an obvious warning to immigration authorities at the other end not to allow people with a stamped passport to enter.

The requirement to surrender a passport is a serious restriction on freedom of movement which is protected under EU law. The passport surrender requirement goes far beyond legitimate control of potential football hooligans. It is disproportionate to the problem. A power to order attendance at match times is perfectly adequate. It would save a great deal of trouble if we were to rely on that alone. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

I have to inform the Committee that if Amendment No. 44 is agreed to, I cannot call Amendment No. 50.

Lord Lucas

I should like to support at least the spirit in which these amendments have been moved. My concern is not so much that it might not be right under particular circumstances for a person's passport to be taken away, but that there must be an ability to make exceptions. These banning orders are long term. They are not just for the immediate future. Let us suppose that some six months after having imposed on him a five-year banning order someone obtains employment in Germany. Under new Section 14E(2) he will have to pop back to England every time there is a football match. There is no discretion on the court to do anything about that. Presumably he will also have to surrender his passport because that will be in the banning order imposed before he took up his employment in Germany. Therefore, he will have to surrender his passport, come back to England and sit around not earning any wages. He may lose his job if he has to go through these hoops.

For someone who has taken employment elsewhere in the Community, there must be flexibility under the terms of the banning order. The court may say, "No, we do not believe that you have real employment out there. We shall not let you off the banning order". But the court must have discretion to let someone off the banning order if he is employed elsewhere in the EU. The Bill will run into considerable trouble under EU law if it does not.

I have not spotted the word "must" in new Section 14E(2). That need is the irrevocable requirement which will cause considerable problems. An exception is probably needed in the same way as there is provision in new Section 14E(3) to give the court some flexibility to make an order which can deal with overseas employment. Indeed, there must be flexibility for someone subject to a banning order who has to be hauled back from the middle of a holiday in South America because of some unexpected football match.

The matter must be able to be dealt with rationally by a court. I do not feel that this absolutism is the right way to go about the matter.

Earl Russell

I shall not press further at this moment our obligations under the Treaty of Rome. Before we come back to this tomorrow, can the Minister undertake to obtain legal advice on whether there is a need for exemptions to ensure our compliance with the Treaty of Rome?

Viscount Astor

New Section 14E raises a general point on the period which banning orders last. My noble friend Lord Lucas said that these can last a considerable time. I do not see why they can be quite as long as he suggested, but he may be right. Therefore, I should be interested in the Government's response. Can a banning order last for five years? How long will it last? There is also the severe requirement in new Section 14E(2). It states: A banning order must require the person … to report initially at a police station".

The Earl of Onslow

I thank my noble friend for giving way. Under new Section 14E(3) the maximum is 10 years and the minimum is six years.

Viscount Astor

I should like to hear from the Government how they think the provision will be used.

New Section 14E(2) provides that someone must report initially. In new Section 14E(3), the word "must" is used again with regard to the passport. But some people have more than one passport. I have two British passports. In order to be correct, should not the provision state "passport or passports"; otherwise someone could hand over one and go off on the other? I do not suppose that one could do so, because one would be subject to both the provisions. However, the Government must clarify the position.

Perhaps I may return to the general point of the noble Lord, Lord Goodhart. If the banning orders are to be as long as has been suggested by both my noble friends, those who wish to go about their lawful business, which may mean going abroad on business or on holiday, will have to come back. That will be an imposition on them and, indeed, an imposition on the court. We are not trying to stop people travelling abroad. The purpose of the Bill is to stop prospective hooligans or people who are thought to be hooligans travelling abroad to go to football matches. That is the important point. Therefore, it is not a general power to prevent people travelling. The Government should look carefully at new Section 14E and come up with a justification for why these powers are needed.

3.45 a.m.

Lord Bach

I thought that the Conservative Opposition supported us on the taking away of passports, but obviously I was wrong about that.

Viscount Astor

I find it extraordinary that the noble Lord does not seem to listen to the arguments put forward from this side of the Committee. All we are asking the Government to do is to justify the powers sought in the Bill. We have said that we support the principles of the Bill. But we are now talking about the length of time of banning orders. The noble Lord really must listen with greater care and respond to the arguments being put forward. We want to know how these powers will work and why they are necessary. We do not necessarily support taking passports away from people for ever. We want the point to be made clear. We want the passports taken away if they relate to football matches.

Lord Bach

All I was asking is whether the noble Viscount and his party support the principle of taking away passports in order to stop people going to football matches. Perhaps he will come back at a later stage and answer that point.

Viscount Astor

Perhaps I may—

Lord Bach

Not now.

Viscount Astor

The noble Lord asked me a question. I should like to answer it.

Lord Bach

I am not giving way.

Noble Lords

Order!

Viscount Astor

The noble Lord asked me a question. I shall answer it. The answer is "Yes". The noble Lord is behaving in a most extraordinary fashion.

Lord Bach

The answer is "Yes". They do support us. One could be forgiven for being wrong about that.

The Earl of Onslow

I do not!

Lord Bach

I know that the noble Earl does not support us. We know where he stands on this issue.

Amendment No. 49, on which Amendment No. 53A is consequential, moved by the noble Lord, Lord Goodhart, would remove the passport surrender condition from all banning orders. That condition is a key element of such banning orders and is one that has been widely welcomed. New Section 14E(3) makes provision for the court to exempt an individual from this condition in exceptional circumstances, as the European Convention on Human Rights in our view requires. Moreover, a person can appeal against such a condition and the enforcing authority can waive compliance with the condition in certain circumstances.

Section 19(2A) makes it clear that the enforcing authority under the Act, namely the football banning orders authority, can impose conditions only in relation to a particular person and a particular match if they are satisfied that it will reduce the likelihood of violence or disorder at that match.

Section 20 of the Football Spectators Act, which is unamended by this Bill, already provides for the individual to apply for exemptions from any requirement and for a right of appeal to the magistrates' court against a refusal. We believe the condition to be proportionate and its impact limited to relevant control periods. Without such conditions it would be much easier for people with banning orders to evade the controls that we are establishing.

The noble Lord, Lord Goodhart, asked why it was necessary to seize a passport. One of the answers to that is that it will make it far more difficult for those who are minded to go abroad and cause trouble at football matches to do so. If their passport is taken from them, along with the other remedies such as the need to report, we believe that it will be less likely rather than more likely that such people will venture abroad.

For that reason, we believe that Amendment No. 49 moves right to the heart of what we are trying to establish. We know that the Conservative Opposition support us as far as this is concerned. I had that confirmation from the noble Viscount opposite just now. I hope that the noble Lord, Lord Goodhart, will also find that he is able to support us on this.

Viscount Astor

Before the noble Lord, Lord Goodhart, replies, I should point out that the noble Lord opposite is always swift to put views into my mouth without listening carefully to the views that have been put forward in this debate. As a result, he has not answered those points. I wonder if the noble Lord is not trying to encourage these Benches to call a Division at this time of night. This kind of behaviour is extraordinary.

I asked a simple question: what will happen if someone holds more than one passport? However, I also asked a more important question of principle. We believe that people's passports should be taken away from them in order to prevent them attending a football match. However, the question that the noble Lord has not yet answered is: if someone's passport is taken away for a long period of time, what are they to do if other, perfectly reasonable and law-abiding reasons related to work and so forth mean that they need to use their passports? How will that work? How will people retrieve their passports? The noble Lord has not answered any of those questions.

Lord Bach

They may either argue that they have an exceptional case or they may appeal against the decision. I thought that I had already made those points clear.

Viscount Astor

The ban may last for a considerable period of time.

Earl Russell

Before we leave the matter, the Minister should bear in mind that almost all of us remaining in the Chamber feel a good deal less sympathetic to the Bill than we felt seven hours ago. After all, there is no point in holding a Committee stage if one does not probe the provisions of the Bill. Every now and then, one may change one's mind.

Before the Minister accuses me, too, of inconsistency, he may recall that I said on Second Reading that I was, with some reluctance, prepared to accept the provision on passports. Since then I have had the privilege of listening to my noble friend Lord Goodhart, whose case I have found to be entirely and totally persuasive. The Government's refusal to engage with the argument for exceptions, which is, I think, unanswerable, has served only to make the arguments of my noble friend even more persuasive than they were before. I now recant what I said on Second Reading.

Lord Goodhart

I am grateful for the support that has been demonstrated for the amendment. I am afraid that I do not regard the response we have received from the Minister as being satisfactory.

If we were satisfied that the rules to prevent problems arising from the surrender of passports were properly effective, then we might take a different view on the issue itself. However, in our view, those rules are plainly inadequate.

Under proposed new Section 14E, the court may refrain from making an order for passport surrender as part of a banning order in "exceptional circumstances". The provision is inadequate for two reasons. First, it applies only to the circumstances as they are at the date when the order is made; secondly, it requires the circumstances to be exceptional. It must be said that, in the present day, the fact that someone is living and working abroad is by no means exceptional. Equally, an appeal can only be an appeal from the original order, and that again depends on the circumstances as at the date of the making of the order.

The real problem arises if someone, for example, gets a job offer to work abroad. The banning order will have a serious effect. The person can apply for an exemption under Section 20 of the Act, which the Minister said was unamended—it is amended, although in drafting terms rather than in substantive terms. But as I understand it, an exemption under Section 20 is an exemption from a particular notice and does not amount to either a permanent or temporary discharge of the banning order, or at any rate the requirement in the banning order for the surrender of the passport which would plainly be necessary where the circumstances had changed to that extent.

It seems to me that there is a problem that the Government have not dealt with. Before they could get our consent to surrender of the passport—which is not in any way a vital matter; it is almost entirely symbolic—the Government would have to put in position rights to apply for the discharge or modification of an order which had general application, and not merely something that was to be renewed whenever a notice was given.

Although I shall ask the leave of the House to withdraw the amendment now, it is a matter to which we shall almost certainly want to return on Report later today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Lord Goodhart moved Amendment No. 51:

Page 7, leave out lines 29 to 42.

The noble Lord said: This is another important amendment. The same point is raised in parts of Amendment No. 53A, which covers a multitude of subjects and needs to be broken down into several amendments.

The amendment arises out of proposed Section 14G, which allows a court making a banning order to impose "additional requirements". Similarly, there is to be a power under proposed new subsection (2B) to Section 19 for an enforcing authority in a notice to require the subject of the order, to comply with any additional requirements of the order in the manner specified in the notice.

The effect of these additional requirements is that if the subject of the order commits a breach he will be guilty of a criminal offence, but there is no indication whatever on the face of the Bill what those requirements may be. We believe that it is wholly inappropriate to give either the courts or the enforcing authority power to impose requirements which have such an effect. This matter should be subject to parliamentary control, preferably by being put on the face of the Bill. If not, at least it requires a statutory instrument that is subject to the affirmative procedure.

It is right that the Delegated Powers and Deregulation Committee did not put any such recommendation in its report. While it is not appropriate to disclose what took place in that committee, I have less hesitation in disclosing what discussions did not take place. The Delegated Powers and Deregulation Committee, like this Committee, had an extremely short time in which to consider the issues raised by the Bill. This matter simply did not come to its attention. I cannot say what decision that committee might have reached had it considered the point. Speaking for myself and not the Delegated Powers and Deregulation Committee, we should insist that these additional requirements are subject to parliamentary control. It is wholly wrong that they should be absolutely at large and in the discretion of the court, and perhaps even the discretion of the enforcing authority. I beg to move.

4 a.m.

Lord Lucas

I rise to speak to Amendment No. 52 and to address the other amendments in the group. I should like to return to a subject which we raised in the previous group to which we received no answer. How does somebody who finds himself, quite reasonably, subject to a banning order, which under new Section 14E(3) requires that his passport be surrendered every time one of the relevant matches takes place, deal with the situation where in the middle of the ban he must go abroad to work? At the moment there is no provision to rescind or vary an order under that section and the purpose of Amendment No. 52 is to give the court power to do so.

Remember that this provision does not relate only to British nationals. A German national may be subject to a banning order. If after one year of a 10-year ban he returns to Germany and is still theoretically subject to the order, a criminal penalty can be imposed if he does not surrender his passport every time there is a match abroad involving England. There must be some mechanism whereby the person who is subject to the banning order can agree with the enforcing authority how the requirements are to be varied.

Without at present knowing my way round the Bill, how does the enforcing authority know what is reasonable in relation to any particular individual who has taken employment abroad? How does a person who regularly needs to travel abroad negotiate with the enforcing authority to ensure that the requirements imposed on him are reasonable and fit in with his work or his decision to live abroad? There is no clear explanation on the face of the Bill. It would be extremely helpful if we were told that.

Lord Phillips of Sudbury

My noble friend Lord Goodhart said that he could speak only to the fact that the Delegated Powers and Deregulation Committee overlooked this power. But it is on public record that at Second Reading the noble Lord, Lord Alexander of Weedon, drew particular attention to this extraordinarily unconstrained ability on the part of a court to impose any additional requirement it thinks fit. The anti-social behaviour orders under the Crime and Disorder Act where magistrates' courts have a wide discretion about what to impose by way of such an order are not a good analogy. Those orders come within a much tighter framework: they are preceded by immediate past evidence of anti-social behaviour. The procedure is more rigorous and more down to earth. I share the considerable anxieties on this unconstrained power on the part of the magistrates' courts.

Earl Russell

We owe thanks to the Delegated Powers and Deregulation Committee that we have a report on the Bill. Like the pianist, it has done its best.

While I listened to my noble friend I considered again the wording of new Section 14G(1). As drafted at present, the provision is impossibly open-ended. It is a generally well understood principle of English law that no one should be punished at will; they should be punished according to rules laid down in advance by Parliament. But here, so far as I can see, Parliament has not laid down any rule whatsoever. Any type of additional requirement could be put in place. A requirement to go for a 21-mile run every day could be put in place. From time to time requirements will be put in place with which people are physically incapable of complying. That leaves them in serious jeopardy. We cannot allow any measure like this to proceed out of a British Parliament. It is quite impossible.

When I listened to the noble Lord, Lord Lucas, I was suddenly reminded of the noble and learned Lord, Lord Bingham of Cornhill, speaking on the Crime (Sentences) Bill in the last Parliament. He said that if you try to abolish discretion in one place the only result is that it breaks out in another. If these orders remain in place, the interesting question is this: where will the discretion break out? I suspect that it will be in the turning of a blind eye by the police. That may mean that the legislation may break down at yet another point.

The more we consider the Bill, the worse it becomes. Even if it emerges from this House, I do not think that it can survive in the world outside.

The Earl of Onslow

I plead guilty to not doing anything about this aspect. I had failed to realise that not only is there a maximum period—if one has to have punishments maximum periods are essential—there is also a minimum period. In other words, under new Section 14F the maximum period is three years and the minimum two years. It is another lack of discretion to add to that pointed out by the noble Earl, Lord Russell. One adds to that the provision that a banning order may, if the court making the order thinks fit, impose additional requirements". These are horrible provisions. We have to continue saying that they are horrible. They will not work. They will break down. It will not be fun saying, "I told you so". But I promise the Committee that that is exactly what will happen in six months' time.

Viscount Astor

The noble Earl, Lord Russell, said that an additional requirement might be going for a 21-mile run. I can think of much worse tasks. It might mean attending your Lordships' House for an all-night sitting—a severe punishment.

New Section 14E(2) and (3) requires someone to report initially to a police station in England or Wales and to surrender their passport, then new Section 14(G) refers to "additional requirements". The only logical and sensible additional requirement is for the person to reattend at the police station. Presumably the Government cannot think of anything else. They want the banned person at a police station to prevent them attending a football match.

If the Government require someone to attend again at a police station prior to or during a match, they should say so. They should use the words, impose the additional requirement of reporting at a police station". That would be a safeguard for the Government and Parliament because magistrates would have a clear steer on what they were required to do.

Lord Bassam of Brighton

It is getting late and no doubt that is why we are getting confused and at times tetchy.

The noble Lord, Lord Goodhart, seeks in Amendment No. 51 to preclude a court from imposing additional conditions and adding to or waiving conditions already attached to a banning order. The existing measure provides the court with useful flexibility. It would enable the police, for example, to seek a specific condition in respect of a particular person's activities. It is aimed primarily at the domestic component of a banning order. It would permit the police to seek to exclude the subject from a town centre or the vicinity of a railway station where groups of fans might regularly meet to fight with visiting supporters. Believe me, that does happen. The annual bust-up between Cardiff and Millwall is an ample expression of such circumstances.

A person currently subject to a domestic ban is prevented from entering a ground but not from travelling to away games or joining up with accomplices to indulge in hooligan behaviour. The police see the facility to add specific conditions as potentially useful in their battle to combat hooliganism. The provision to review the conditions provides a means for either party to seek changes. That additional flexibility is important. It helps both sides of the argument.

The Earl of Onslow

Could a ban be increased under that provision?

Lord Bassam of Brighton

It could be. Equally, it could be reduced.

Amendment No. 53 would allow the courts to relax requirements. That is not necessary because the facility already exists for someone subject to an order to make an application to have it varied outside the additional requirements order.

I can understand the case for the argument that has been made but we do not believe that it is necessary because the facility exists to make an application.

Lord Lucas

It would be helpful if the Minister could point to that in the Bill.

Lord Bassam of Brighton

As I explained earlier, Section 20 provides for exemptions. A person affected can apply to the football banning authority, NCIS, and at short notice he can apply to the police for exemption. If the exemption is refused, there is a right of appeal to the court. Therefore, that facility exists.

I take the point made by the noble Lord, Lord Lucas. I, too, have searched through my mind and read various parts of the schedule. Perhaps it is not immediately plain to all concerned and the ability to apply for that variation is not as clearly spelt out as it could be. Therefore, before the Report stage tomorrow I undertake further to investigate the point so that I can make it plain to the noble Lord that the facility exists. On that basis, I invite the Committee to reject the amendment.

Lord Phillips of Sudbury

Perhaps I may help the Minister. Is not the power to vary contained in new Section 14G(2)?

Lord Bassam of Brighton

I thought so on my reading of it, but that provision relates to the additional requirements of orders. The point raised by the noble Lord, Lord Lucas, is more general; it is to seek to vary the order at large outside the additional requirements of orders. That is a point that I properly need to make clear to the Committee and I shall undertake to try to do so tomorrow.

Lord Phillips of Sudbury

Before the Minister sits down and before my noble friend Lord Goodhart replies, perhaps I may ask the Minister a question. He makes the case, and with some persuasiveness, that there may be a need to impose additional requirements. However, would it not be minimally fair that before imposing additional requirements the magistrates gave the respondent the opportunity to make such observations on the proposals as he or she thought fit before they reached a conclusion? That would lend some protection against magistrates going outside the conventional brief and doing something which inadvertently was of significant disadvantage or unfair to the respondent.

Lord Bassam of Brighton

The noble Lord is suggesting that a facility be made available so that the respondent has the opportunity to make representations. I take that point and undertake to ensure that the opportunity will be made available. It is an important principle.

Earl Russell

I do not think the Minister helped himself with that reply. He invoked useful flexibility. Does he understand that that is precisely what worries us most about the proposal in the Bill? The point about having a fixed upper limit on punishment is that it is the citizen's only protection against punishment based on spite. When we become exhausted, and I am sure that the Minister sympathises, spite is something of which we are all regrettably capable. The need to place a maximum limit on punishment is the only thing that persuades us that we are punished according to fixed and known rules. I am surprised that the point has not been thought of. It is an example of the obsessive single purpose legislation. As I listen to the debate I conclude that this Bill makes the Child Support Act 1991 look well drafted.

Lord Goodhart

I am afraid that once again the Minister's reply is deeply unsatisfactory. We are not saying that there should never be any additional requirements. The Minister's example of banning someone who is the subject of an order from going to or near a railway station which is being used by fans of the visiting club is sensible.

However, we say that the parameters of the additional requirement should be either on the face of the Bill or, at the very least, set out in a statutory instrument. Without that, there is a real possibility that requirements could be made which are not acceptable. Let us say, for example, that the court stated that the subject of the order was to be confined to his house for the whole of the day of the match except for going to and from the police station for the purpose of reporting. I do not believe that we would regard that as being an acceptable additional requirement. We consider that the possibility of making orders of that kind needs to be curbed by requiring some degree of parliamentary control over the additional requirements that can be imposed.

Once again, I intend to ask the leave of the Committee to withdraw the amendment, but this, too, is a matter which we shall bring back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 52 to 53A not moved.]

Lord Bach moved Amendment No. 54:

Page 8, line 50, leave out from ("section") to end of line 2 on page 9 and insert— ("(a) may not require the person subject to the order to report except in the control period in relation to a regulated football match outside England and Wales or an external tournament, (b) may not require him to surrender his passport except in the control period in relation to a regulated football match outside the United Kingdom or an external tournament which includes such matches.").

The noble Lord said: In moving government Amendment No. 54, I wish to speak also to Amendments Nos. 68 and 73. They are major drafting amendments. Their purpose is to make it clear that, while the requirement to report to a police station may be applied in relation to matches outside England and Wales, the requirement to surrender a passport can be imposed only in relation to matches outside the United Kingdom. There will be no need to surrender passports in relation to a match which takes place in Scotland or Northern Ireland. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 55 and 56 not moved.]

Viscount Astor moved Amendment No. 57:

Page 9, line 11, leave out ("for suspecting") and insert ("to believe").

The noble Viscount said: In moving Amendment No. 57, I wish to speak also to Amendments Nos. 58 to 60. I do not want to go back over territory which the Committee has already debated. However, through an amendment moved earlier this evening the whole of new Section 21A would, in effect, have been removed. Therefore, these amendments look at the matter in another way and, I hope, improve or make clearer the grounds for the burden of proof.

They are fairly simple amendments. Amendment No. 57 inserts "to believe" instead of "for suspecting". Amendment No. 58 requires that an officer of at least the rank of inspector should be involved. Amendment No. 59 adds a time constraint. They attempt to toughen up the measure.

The noble and learned Lord, Lord Ackner, was unable to stay until such a late hour but he asked me to mention his amendment. I should be entirely happy if the Government were to go back over the Second Reading speech of the noble and learned Lord in which his thinking on the matter is set out. I could try to paraphrase the speech but I suspect that, if I did so, it would be even longer than the original. Therefore, I hope that the Minister can take as said the points made by the noble and learned Lord so that we do not have to repeat the process, because I am sure that he realises that the points will come up in this debate. If the Minister could reply to those points, it would help enormously with the next stage of the Bill, which I am sure he would like us to get through in the quickest and most orderly fashion possible. I beg to move.

Lord Phillips of Sudbury

I suggest that Amendment No. 69, which is also in the name of the noble and learned Lord, Lord Ackner, and is in the same terms as Amendment No. 60, should be considered with this grouping. I support the amendments.

Viscount Astor

And Amendment No. 67.

Lord Phillips of Sudbury

Indeed, and Amendment No. 67.

Lord Lucas

I have a couple of amendments in this group. Amendment No. 64 has been dealt with by the effect of the amendment proposed by my noble friend Lord Cope of Berkeley. Amendment No. 65 is on a different subject. It comes back to a point that I raised earlier about the effect of the two sections on the Scots. At the moment, any Brit can be hauled up and stuck in chokey for six hours under Section 21A, but Section 21B does not allow a Scotsman or someone from Northern Ireland to be further processed under that section. Section 21B(4) requires the complaint to be made as if it is by the appropriate chief officer of police to the court in question. For a Scotsman or someone in Northern Ireland, there is no such person.

Section 14B is drafted entirely with the English and the Welsh in mind. It has no application in Scotland or Northern Ireland. The process of arraigning in front of a magistrates' court has no status for someone who lives outside England or Wales. Section 21A gives the right to detain the Scots and the Northern Irish to no purpose. Many of us might enjoy doing that on an off day to lighten the weary hours, but it should not be in the Bill.

4.30 a.m.

Lord Bassam of Brighton

I shall try to respond to all the amendments. We are not convinced of their necessity. Amendment No. 57 would require a police officer to believe rather than to suspect that a person had been involved in violence or disorder before exercising the power to detain. I suspect that the practical difference is not great, but I submit that suspicion is probably the right test. The officer must have reasonable grounds for his suspicion. Government amendments in another place have ensured that, and it is not necessary or in the interests of the effectiveness of the Bill that the officer should have formed a firm belief on the matter before any inquiries are made.

Amendment No. 58 is unrealistic. It would require an inspector to authorise every case of detention for further inquiries. The inspector will need to be engaged if an extension of detention from four hours to six seems justified, but a constable is capable of making and justifying the initial decision.

Amendment No. 59 would limit the detention period to the time reasonably necessary to reach a decision. That would not make much difference in practice. The officer may detain until he has made a decision and in no case can that be for above six hours. How would it be established in practice that an officer had taken longer than was reasonably necessary to make a decision? On what basis could that conclusion be reached?

I believe that the absolute limitation on detention time which we have now introduced will, in practice, be a much better safeguard. I am tempted to pray in aid of my argument the earlier words of the noble Earl, Lord Russell; but perhaps not.

The noble Viscount, Lord Astor, has done us a service in speaking to Amendment No. 60. The noble and learned Lord, Lord Ackner, has tabled some interesting amendments. However, I fear that Amendment No. 60 would create real difficulties for the police in attempting to implement new Section 21A. The reality is that a person detained will be held for only a relatively short while and then will either be issued with a notice or released to continue his journey.

Of course, the police will not indiscriminately pick out people to check on them. It is right that they should do so only when there are reasonable grounds, as the Bill currently provides.

But the amendment goes beyond the kind of requirement which we see in analogous provisions of PACE and the requirements of the common law. "Full particulars" suggests to us a rather substantial document which may add to the bureaucracy with which the police must comply without being of much value to the person detained. By the same token, I recognise that, as we were warned at Second Reading, there may be a temptation to issue a notice to the individual explaining that the detention was in order to make further inquiries. I suggest that that matter can be best dealt with in guidance to the police. I am sure that the noble and learned Lord will be interested in the explanation which I have given.

In moving Amendment No. 65, the noble Lord, Lord Lucas, raised an interesting issue. We may wish to look again at that to see whether we can help in terms of covering the point which the amendment raises. I say that without commitment, but I am happy to go away and look again at that amendment.

The noble and learned Lord, Lord Ackner, has also tabled Amendment No. 69. That makes the same point in relation to the issue of a notice as was made in relation to the power to detain under new Section 21A. The amendment is based on the premise, which we accept, that people issued with notices commencing a banning order by the complaint process need to know the case against them so that they can prepare for their hearing.

In those circumstances, simply reciting the wording of the criteria in new Section 21A would not be appropriate. We are not clear that the full particulars formulation is the right one either. If the requirement is too onerous, that may lead to an extension of the detention period while a substantial notice is prepared, thus adding to the bureaucracy of it all.

We should not want to forestall evidence which came to light subsequent to the issue of the notice from being presented in court. If the police are unable to make their case at the first hearing, the person concerned should be free to travel immediately. Where there are substantial issues of fact between the parties, we imagine that the court would adjourn the hearing to a later date. I assure the Committee that there is no intention that the police should regard it as sufficient merely to cite the criteria in new Section 21A and that guidance on that point will be provided by the police. We recognise and acknowledge that it is an issue, but we believe that it should not be on the face of the Bill and that it is best dealt with in guidance.

The Earl of Onslow

I am rather depressed by the fact that the Minister cannot tell the difference between the meaning of the words "suspect" and "believe". The dictionary would make it quite clear. The following subsection refers to "reasonable grounds to believe". Why cannot we have those words here as opposed to "suspecting"? That would be a minor improvement on something which is pretty awful, but at least it would be a minor improvement.

Viscount Astor

I believed that my noble friend Lord Lucas, who is not now behind me, was going to thank the Minister for his contribution to the amendment, so I shall do so on his behalf. I am sure that the noble and learned Lord will study carefully what the Minister said on his Amendments Nos. 60 and 67.

The Earl of Onslow

How will the noble and learned Lord, Lord Ackner, be able to study what the Minister has said before Report stage?

Viscount Astor

I do not know whether Hansard will have been produced, but I presume that there will be some record at Report stage. I understand that the Government Chief Whip cannot tell us. If the noble and learned Lord, Lord Ackner, will not be able to read Hansard, no doubt my noble friend will tell him in the morning and take him carefully through the arguments on which he has been concentrating.

The Earl of Onslow

I cannot remember what anybody has said!

Lord Bassam of Brighton

We shall be able to provide the noble and learned Lord with a copy of the speaking note.

Viscount Astor

The noble and learned Lord will have help from all sides of the Committee.

In relation to Amendments No. 57, 58 and 59, I accept what the Minister has said. Our positions are not all that different. I am happy to beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 to 60 not moved.]

Lord Bach moved Amendment No. 61:

Page 9, line 26, at end insert— ("(4) A person who has been detained under subsection (2) above may only be further detained under that subsection in the same control period in reliance on information which was not available to the constable who previously detained him; and a person on whom a notice has been served under section 21B(2) below may not be detained under subsection (2) above in the same control period.").

The noble Lord said: In moving Amendment No. 61, I shall also speak to Amendment No. 62. The power in new Section 21A is designed to be a short-term power to hold someone while inquiries are made. We do not believe that it will be abused by police officers. Nevertheless, we are mindful of the suggestions that have been made here and in another place that it may theoretically be possible for the same person to be detained repeatedly under that power. Therefore, we have brought forward government Amendment No. 61 which makes it clear that a person who has been detained and released without issue of a notice under new Section 21B can be redetained under this power in the same control period only on new information, the key words being "on new information". Similarly, someone who has been issued with a notice and appeared in court cannot be redetained under new Section 21A in the same control period.

I hope that this amendment will allay any anxieties on this score and I commend it to the Committee. The opposition Amendment No. 62, standing in the name of the noble Lord, Lord Cope of Berkeley, clearly has the same object in mind. I hope that the noble Lord will accept that it is preferable to tie in the prohibition on redetention to the whole of the control period rather than to a 24-hour period and, therefore, that he will, in due course, not move Amendment No. 62.

Lord Cope of Berkeley

The Lord in Waiting correctly says that my amendment is also aimed at what at one stage in history was called "cat and mouse" detention. His amendment achieves the effect in a more satisfactory way. I am happy to go along with it.

It may interest noble Lords to know that while I was out of the Chamber my attention was drawn to the Evening Standard and particularly to the horoscope of the noble Lord, the Captain of the Gentlemen-at-Arms. It says: A recent bout of over-tiredness is making you less perceptive than usual. It's not that you're unwilling to put in your share of the workload, but you are struggling to make your usual impact". On Question, amendment agreed to.

[Amendments Nos. 62 to 65 not moved.]

Lord Cope of Berkeley had given notice of his intention to move Amendment No. 66:

Page 9, line 30, after ("may") insert ("if the conditions in section 21A(1)(a) and (b) are met").

The noble Lord said: This is a version of Amendment No. 67, which we have already discussed.

[Amendment No. 66 not moved.]

[Amendment No. 67 not moved.]

Lord Bach moved Amendment No. 68:

Page 9, line 38, after ("tournament") insert ("which includes such matches").

On Question, amendment agreed to.

[Amendments Nos. 69 and 70 not moved.]

Lord Cope of Berkeley moved Amendment No. 71:

Page 10, line 3, at end insert— ("() The Lord Chancellor shall ensure that during any control period a magistrates' court is convened for the purpose of hearings under this section at such ports and airports as he considers appropriate.").

The noble Lord said: Amendment No. 71 originally appeared in one of the earlier groups. It provides that magistrates should be convened at the ports and airports at appropriate times. The obvious purpose is to try to ensure that the court part of the procedure follows as quickly after the police part of the procedure as possible—if I can summarise it in that way now that we are all familiar with the Bill—by having stipendiary magistrates standing by at what are expected to be busy times. It could be helpful if the sort of scenario envisaged earlier by the noble Lord, Lord Woolmer, were to come about. I beg to move.

Lord Bassam of Brighton

We have agreed that magistrates' hearings will be convened, at weekends where necessary, to ensure that individuals issued with a notice preventing them leaving England and Wales will have the opportunity of a hearing as soon as possible, and certainly before the 24-hour limit expires.

I appreciate the intention behind the amendment. In fact, the noble Lord discussed the effect of it briefly with me and I took that as a positive contribution. We do not believe that it will be necessary, though we accept that it is vital that the hearings are held a s close as possible to the port or airport concerned, if indeed the notice was issued at a port or airport; some may have been issued at the respondent's home before he set off. It will not usually be necessary to set up courts in the port buildings themselves. However, I am willing to look at the matter again when the measures are reviewed in 12 months' time. That timeframe will enable us to take a further rain-check on this.

We have been in contact with the Lord Chancellor's Department on this matter. It shares our view that we can put in place adequate arrangements to cover the noble Lord's point. However, we will keep it under review and, when the first review period is complete, we shall need to comment to continue to satisfy Members of your Lordships' House and elsewhere that these measures are effective and that people have reasonable access to justice not far from the point of their original detention.

Lord Cope of Berkeley

I take it from the Minister's response that it is not necessary to have this provision in the Bill to achieve the effect required, should it be thought necessary. In the light of that, and in the light of the Minister's undertaking to keep the matter under review during the initial period, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 72:

Page 10, line 15, at end insert— ("() The court must offer bail to any person remanded by virtue of subsection (3).").

The noble Lord said: I look forward to the Minister's reply on this amendment. I beg to move.

Lord Bassam of Brighton

The Government are not able to accept this amendment, which seeks to ensure that anyone remanded under new Section 21C(3) will be offered bail. We believe that the court must have the power to remand either in custody or on bail as it sees fit. So we should not act to fetter its discretion. To deprive it of the power to remand in custody even where there were strong reasons to believe that the respondent would, if released, leave the country and cause disorder at regulated football matches would be a significant weakening of the structure of controls in the Bill.

I suggest to the noble Lord, Lord Lucas, therefore, that, if he believes that this should be an effective measure—and I believe he does—he should withdraw this amendment.

Lord Lucas

The Government are saying that someone charged merely with a civil offence can none the less be imprisoned for it until the police are ready with a case that the person is supposed to answer. That really is stretching the definition of "civil" case a long way.

4.45 a.m.

Lord Bassam of Brighton

Yes, in some circumstances where we thought there was good cause to hold that belief, we believe that that would be right. Of course that would have to be based on good and sound evidence. No doubt the officers involved would be very careful in the exercise of that power. But, as I said, we believe that that would be right in some situations.

Lord Lucas

I find the concept fairly extraordinary. As envisaged here, the court will not be in a position to issue a banning order. Therefore, the evidence will presumably not be in place to issue such an order but, none the less, the person concerned could be imprisoned. What level of evidence cannot justify a banning order but can justify keeping someone in prison? As I said, this is a hard concept to grasp. Bearing in mind the time necessary to accumulate evidence for a court case, such a person could be in prison for a month. He would not be charged with any offence; indeed, there would be no crime with which to charge him.

The fact that the authorities are considering whether someone should be made the subject of a banning order is sufficient to ensure that he is kept in prison. The banning order largely consists of a promise not to leave the country and that could be extracted from him under the bail conditions in subsection (4). I do see how this power to keep someone in prison is gaining the country much. Moreover, it is damaging civil liberties to quite an extraordinary extent.

Lord Bassam of Brighton

I invite the noble Lord to consider the following proposition. If it is the case that someone is being held under these powers and it is plainly known to the police that he has a string of previous convictions, or has been involved in similar instances, and there is no guarantee that he will attend court, as provided for under the notice, it would be right in those circumstances. I am not saying that this will happen in each and every circumstance; indeed, that is far from the case. However, where there is more than adequate reason to believe that the person might not turn up in court in compliance with the notice, I do not believe that it is at all unreasonable for this facility to exist. There will be circumstances in which that will be the case.

Lord Goodhart

I find it absolutely ridiculous that, on the one hand, the Government continue to insist that this is a civil and not a criminal order and yet, on the other hand, are refusing to allow bail. It is simply unbelievable.

Lord Lucas

I entirely share the noble Lord's views. However, I return to the Minister's proposition. The person concerned has been picked up by the police; he spends 36 hours "in jug" and is kept there until the magistrates' court can convene. The Minister is saying that, at that point, the police can produce evidence that the person has been sufficiently involved in football crime to justify keeping him in gaol but there is not sufficient evidence under the extraordinarily weak tests here to make him the subject of a football banning order. It is unbelievable. The way that the Bill is written at present means that there can be evidence that is sufficiently weak so that it cannot justify a football banning order, but yet is sufficiently strong to enable someone to be imprisoned who is not even charged with a criminal offence.

This is a matter that the Government should re-consider. It seems to me to be a most extraordinary idea. Yes, if it is a criminal offence, you should keep someone in prison who might abscond before the matter comes to court. However, if the Government are saying that the court has to be so certain that the person is likely to commit an offence so that he should not be let out, then those concerned must be able to issue a football banning order. The requirements for it are only the civil level of proof. Surely there cannot be circumstances where that process cannot be completed at the end of the 24 hours of custody envisaged under new Section 21B. If the evidence is there at the end of that period, the banning order can be issued. But, if the evidence is not there, the person should be offered bail. I cannot see any middle way between the two, especially not if the Government insist on this being a civil procedure.

Lord Bassam of Brighton

Two points were raised towards the end of the debate. The noble Lord, Lord Goodhart, said that we were refusing to allow bail. We are not. We are saying that the court should have the option of either granting bail or remanding in custody. We are not refusing bail. Perhaps because of the lateness or early nature of the hour, whichever way one wants to put it, I did not make that point plain.

In response to the noble Lord, Lord Lucas, it may well be the case that there is very strong evidence that the respondent may want time to prepare his defence, but that does not meet the point that there may be circumstances where it is right that the respondent needs to be held in custody while the court is convened. I believe that it would only be in extremis situations; we do not see it happening on each and every occasion. That is something which will have to be judged. There may be such circumstances.

Lord Lucas

I find the Government's reply extremely unsatisfactory. It comes back to the matter being a criminal offence in everything except what the Government insist the name should be. In every other matter of stigma, treatment and consequences it is a criminal offence, but the Government insist that it should be a civil offence so they can get away with a civil level of proof. That will not wash under the Human Rights Act. This Bill will fall apart on that. The Government ought to take precautions if they wish this legislation to have a chance of success. They should take precautions that there is at least a chance of the Bill surviving examination under the Human Rights Act, which it will surely receive at a pretty early stage if the Government do such things as imprisoning people on the basis of being not yet ready to proceed with a new Section 14B arraignment in front of magistrates.

It would not amuse the Government Chief Whip for me to call a Division at the moment. I am sure that his troops are not available. I am not sure what would be the consequences for this afternoon's business. We are so near the end that perhaps I should allow him to have his way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 73:

Page 10, line 23, after ("tournament") insert ("which includes such matches").

On Question, amendment agreed to.

Lord Bach moved Amendment No. 74:

Page 10, line 24, at end insert—