"EXTRA-TERRITORIAL OFFENCES"

HL Deb 24 July 2000 vol 616 cc178-240

(" .—(1) Any act or omission which—

1. (a) takes place outside England and Wales, and
2. (b) would if taking place in England or Wales constitute a relevant offence within the meaning of the Football Spectators Act 1989,

shall, for the purposes of the law of England and Wales, constitute that offence (an "extra-territorial offence").

(2) Proceedings for an extra-territorial offence may be taken, and the offence may for the purposes of those proceedings be treated as having been committed, in England or Wales.").

The noble Lord said: At Second Reading I ventured to suggest that one way in which the difficulties faced by the Government might be addressed would be to insert into the Bill an extra-territorial power enabling football-related offences committed abroad to be prosecuted here. This amendment is devised to that end. For those who are interested, it is based on the extra-territorial wording of the legislation dealing with extra-territoriality between Northern Ireland and Ireland.

It is extremely fortunate for your Lordships' House that we have had such a long and clear debate on the second group of amendments in which the striking out of new Sections 21A to 21C of the Football Spectators Act has been thoroughly considered. I say that it is fortunate, because that dealt with a great deal of the background to this proposed amendment. The feeling on these Benches was made very clear during the course of the debate; namely, that we dislike that provision intensely. It would seem that those on the Conservative and Cross-Benches and several Members of the Committee on the Labour Benches are of comparable mind.

We recognise the difficulties that the Government face, but we believe that the worst of all worlds here would be to legislate in a way which was both dangerous in terms of precedent and civil liberty and ineffectual to boot.

I have to be frank and say that the more we consider this Bill, and in particular new Sections 14B and 21, and the more one hears contributions from all sides of the Chamber, I say with no attempt to score points that I believe that the Government's hopes are likely to be severely confounded. I remind the Minister that we have not yet had an answer to the points which I, the noble Lord, Lord Lucas, and others made as to exactly how it is proposed that the powers will work in practice. The Minister has talked about targeting—he used the expression several times—but has given no indication whatever as to how that targeting would be achieved or on what basis.

Therefore the amendment might, and I hope, will be—I recollect that the noble Lord, Lord Bassam of Brighton, gave a qualified welcome to this proposal at Second Reading—an effective way of introducing something that works without falling prey to some of the more hopeless aspirations which we believe attach to new Sections 21 and 14B. It would do so in a way that is both safe in terms of our traditional methods and in not attempting to recategorise a criminal offence as a civil one in order to lower the test that must be met in order to obtain convictions. It would be practical—I shall come back to that in a moment—and would not add to the panoply of powers that we already have to deal with football offences and disorder offences generally.

The main objection voiced by the noble Lord, Lord Bassam, when he summed up the Second Reading debate was that it would not achieve the preventive purpose that new Section 21 in particular is designed to achieve. He also said: It would be preferable if those British citizens who commit offences abroad were prosecuted rather than deported. As I said earlier, that is a point we shall continue to press and upon which we need to work very closely, and in co-operation, with our European partners".—[Official Report, 20/7/00; col. 1261.] That point was made by the Home Secretary in the House of Commons. While it would have been preferable if the Belgians, for example, had taken a much more forceful line on the less serious offences of disorder of which there were plenty, the fact is that they did not. I suspect that the general attitude of foreign police forces to posses of disorderly British football fans is to say, "Let's get them the Hell out of here as soon as we can and let the Brits deal with them". I suspect that they confine themselves only to prosecuting for serious cases of assault. That is why I believe that our proposal would be much more effective than anything that the Government propose in new Sections 21 or 14B as it would enable us to get a grip on these people and to ensure that when they come back to this country exemplary prosecutions take place, and plenty of them. I believe that in terms of preventive action that would be infinitely more effective than any tinkering around with this new and dangerous category of powers that the Government seek to take in parts of the Bill.

People may ask about arrests and evidence. We already expend a huge amount of time, money and manpower in seeking to control football violence. We already send large numbers of British police to co-ordinate with their foreign colleagues. They go over before a match, during and after it. I see no problem in extending that co-operation to local police to use their arrest powers to deport people back to the UK. The British police with whom they are co-operating would make jolly sure that those people are arrested the moment they hit British soil and are then dealt with under the vast array of powers which we already have. If any noble Lords doubt that, they should look at Schedule 1 to the Bill which sets out a list of about 25 existing pieces of legislation which are considered to be football related. I believe that this is one of those rare cases where the notion of extra-territoriality would work quite simply.

As to foreign police forces being willing to co-operate, they would be immensely keen to co-operate with a system that relieves them of the obligation of prosecuting anything but the most serious offences, leaving it to us to do our own dirty work. I have no doubt whatever that they would be hugely co-operative. I have no doubt that if it was necessary for police officers to come and give evidence, they would readily do so. It would be a great deal cheaper for them—as well as for us—to give their full assistance to our own efforts to prosecute vigorously and in an exemplary fashion.

For all those reasons I seriously hope that the Government—even though we are galloping the Bill through the House—will consider whether or not this would be a central, effective plank of the measures they are now seeking to bring in; at the same time, although it is not a component of this amendment, allowing the release of proposed new Section 21 in particular, and the amendment of proposed new Section 14B to proceed, to ensure that the Bill passes through the House. I beg to move.

Lord Lloyd of Berwick

I would have a great deal of sympathy with the amendment if it provided an alternative to the fast track method proposed by the Government. However, I have a serious problem with it. It seems to me that it would catch foreign football hooligans as well as English and Welsh football hooligans. A Belgian hooligan arriving in this country for a holiday or whatever, could find himself arrested when he next came here and made subject to an English banning order.

The principle which underlies all criminal law is that it is territorial in scope—a point very well put, if I may say so, by the noble Earl, Lord Onslow, in the course of the debate on the previous amendment. There are very few exceptions to that principle. The best known exception is a case of murder; an Englishman who commits a murder abroad can be tried in England for that murder. Apart from that, there are almost no other exceptions that I know of. Clearly football hooliganism—however unattractive—does not fall in the category of murder. The extra territoriality, although ingenious, makes it difficult to see how this can become law.

Lord Phillips of Sudbury

Before the noble and learned Lord sits down, am I not right in saying that the Bill is confined in its scope to British subjects?

Lord Lloyd of Berwick

I thought the whole object of this amendment—certainly as drafted—is that it catches acts committed by anyone abroad as if committed in this country. If I am wrong about that, then I am wrong about it. Perhaps the noble Lord can point out where it is confined to British subjects.

Lord Phillips of Sudbury

I cannot put my hand on it immediately, but I think in the Bill there is a provision that it applies only to British citizens. It is certainly my intention that that would be the case. I hope that the point made by the noble and learned Lord is thereby dealt with.

Lord Monson

Although I strongly support nearly all the Liberal Democrat amendments to this Bill, I am afraid that I cannot support this one. Unlike my noble and learned friend, I am not a lawyer, but I have always felt uneasy about the concept of extraterritorial offences. Yes, I suppose there is a case where murder is concerned; there is probably a case where serious sexual offences against children are concerned—I believe my noble friend Lord Hylton had something to do with that—but no one surely can possibly contend that, tiresome though it undoubtedly is, football hooliganism is remotely in the same category as those two extremely grave and heinous offences. I contend that this amendment is an example of overkill.

The Earl of Onslow

I am stunningly flattered by what the noble and learned Lord, Lord Lloyd, said.

Lord Lucas

And so you should be.

The Earl of Onslow

And so I should be, as my noble friend Lord Lucas said. I am very attracted to the amendment because I, too, do not like those disgusting people whose human rights I am attempting to defend. I do not like the way that they behave, but I dislike more the way the Government are attempting to treat them through administrative detention. "We think you might do something naughty. We have no proof. We are going to stop you getting on the aeroplane. You have missed your flight? Bad luck. We are going to lock you up for six days". There is something unpleasant about that. The idea of the noble Lord, Lord Phillips, is a good one. I suspect that one could be charged for piracy extra-territorially, because by its nature piracy must be extra-territorial. I suspect that there are more offences than just murder. I agree also that these are very serious offences.

The concept of extra-territorial legislation, provided it is done within the scope of English laws and English liberties, is extendable. If someone hurls a brick through Fouquets in the Champs-Elysées and is pursued by a very cross gendarme and is seen on television, it is perfectly reasonable that he could be arrested, charged and sentenced here. He has committed a crime. The crime is there. I am not suggesting that the crime should not be punished. I do not like the idea of, "You might do something, so we will stop you". No one is objecting to crime being punished. If it is a problem, and it is obviously perceived to be a problem, the view I take is that it is up to the foreigners to deal with our people if they get stroppy. It is the same if Turks from Galatasaray came over here and behaved badly; we would not say to the Turkish Government that they should keep them away, we would say, "Either you do not come in, or, if you do, we are going to bang you up after due process of trial". It is our problem. If we are worried about the issue, the concept of extra-territorial legislation is an extremely good way out.

Lord Monson

Before the noble Earl sits down, does he agree that if television picked up a picture of an Englishman who had nothing to do with football, hurling a brick against the window of a jeweller's shop in the Champs-Elysées in order to steal the jewellery therein, he should also be tried possibly in this country? Surely there is not much difference between the offences in terms of gravity.

The Earl of Onslow

I would rather that happened than what the Government are doing with their abuse of human rights now.

Lord Donaldson of Lymington

That surely is the point. Are we really going to legislate extra-territorially for football offences and not for exactly similar offences which are not connected with football? We had that problem with the War Crimes Bill. It was very odd in my view, and in the view of some who opposed it, that British subjects who committed war crimes abroad should be subject to being pursued, whereas those who were of another nationality—typically, Russian—were not. It did not really make sense.

Perhaps I may apologise to the Committee for not having attended the opening debates on Amendments Nos. 1 and 2. Frankly, it never occurred to me that those matters would be debated under that head because there are so many amendments proposed by the Government, notably the compensation amendments, which appear to me to have a major bearing on whether or not the Bill is acceptable.

In relation to new Section 21A I would just say—I accept that I have not heard the arguments and have apologised for that—that I cannot envisage a police officer standing at an airport check-in point being able, even if he wanted to, arbitrarily to pick people out of the queue and say, "I want to investigate you". Under the terms of the Bill, he has at that moment to have reasonable grounds for suspecting that a condition in new Section 14B(2) has been met. New Section 14B(2) requires that the respondent—I do not think he is a respondent; that is a fudge— has at any time (whether before or after the commencement of this section) caused or contributed to any violence or disorder in the United Kingdom or elsewhere". One could not just pick people out of a queue on that basis. Substantial evidence would have to be available to the police officer. So I do not think that there is any risk of random picking of people. If there were, the chief constable would find himself with a very heavy bill for compensation, and quite rightly so. I rose primarily to say that I am against extra-territoriality in this field.

11.30 p.m.

Lord Phillips of Sudbury

I hope that the Committee will not mind if I respond to the noble and learned Lord, Lord Donaldson, on extra-territoriality. He made the point that the provision is targeted at football hooligans and asked why it is not targeted at people who throw bricks through a jeweller's window. The whole of the Bill is targeted at football hooligans. Many of us do not like the fact that we have here a Bill targeted at a single group; but that is how it is. My feeling is that the extension of extra-territoriality to just this group of offences, which is clearly defined, as compared with the disadvantages and, some would say, evil of other aspects of the legislation, is much the lesser of evils.

Lord Lucas

Perhaps I may invite another parallel. Am I not right in thinking that we have legislation against paedophiles travelling to the Far East for holidays with young children? Is it not extraordinary that we do not have anything parallel to this Bill for paedophiles? We cannot stop them at airports. We cannot issue them with banning orders when they have not been convicted of anything. Is that not a much more substantial and horrific offence than anything we are considering under this Bill? If the Bill is right for football hooligans, is it not right for paedophiles?

Viscount Astor

We have sympathy for the amendment of the noble Lord, Lord Phillips. The Minister in another place, Mr Clarke, said that the Bill concerned only citizens of this country and not citizens of any European Union or other country. In the short time available to me, I have not quite discovered where in the Bill that provision may be found. My noble friend can no doubt tell me.

Lord Lucas

New Sections 14A and 14B have no restrictions as to the nationality of anyone; only restrictions as to residence. The restrictions as to nationality occur only in respect of Section 21. Under new Sections 14A and 14B one could bang up a Chinaman if he happened to be living in Leeds.

Viscount Astor

That is interesting. I shall have to look at the reference again. When the Bill was debated in another place it was said that 2.5 million foreigners live in this country. The complaint was made that they would not be covered by the Bill. My noble friend is saying that they are covered in a certain way. Perhaps the Government will respond on that point and tell us whether European Union citizens or citizens of other countries come under the Bill if they are resident in this country. I understood not, but I should be grateful for clarification.

The Earl of Onslow

I thank my noble friend for giving way. New Section 14B(1) states that a, person may be made by the chief officer of police for the area in which the person resides or appears to reside, if it appears to the officer", and so on. Therefore, I would assume that it is a residency and not a nationality test.

Viscount Astor

I am grateful to my noble friend. My noble friends seem to have studied the Bill with great care. I hope that the Government have studied the Bill with equal care and will be able to confirm what my noble friends have said.

The noble Lord, Lord Phillips, said that we want people prosecuted, not deported, when they commit offences in Europe. Sadly, there is no evidence that that has happened in the past. We have seen vast numbers of people—900—being arrested. We then saw three people in court and the one case of conviction was a failure. It reminds me of the problem we had over asylum seekers with regard to previous Bills that we have discussed. Sometimes the authorities in Europe turn a blind eye to asylum seekers because they know that they are on their way to this country. They let them go through even though they are caught in a safe country in Europe. An attitude has prevailed along the lines of, "Let's get rid of them and hope that they do not come back again". That is disappointing because they ought to be prosecuted in the country in which they committed the offence. I believe that the Minister would agree with that.

If there is a certain reluctance to prosecute, what can be done to help local police services? If it was possible for criminals to be charged and for their cases to be heard here, they might be charged more frequently. British police officers attend major European football matches. A huge number of video cameras, CCTV and news reportage cover such events. Indeed, we have seen horrendous film of known, recognised, named thugs—if I may so call them—blatantly committing acts of violence in front of the television cameras. Those people were not charged in Belgium, nor were ways sought to extradite them.

The noble and learned Lord, Lord Lloyd, said that the amendment as it stands could catch foreign hooligans when next they came over here. I presume that the noble Lord, Lord Phillips of Sudbury, could redraft his amendment to sort out that point. In any case, it would depend on the prosecuting authorities and whether they wished to pursue such an action. I doubt that they would.

The amendment has revealed a new aspect of the Bill. It is one in which noble Lords should take an interest. It seeks to have cases heard where the offences are committed. Failing that, it would enable them to be heard in this country. That would be a great deal better if hooligans who go abroad and behave badly were convicted on that rather than go through this unknown, tortuous, untried process—we can see already that this will be fraught with difficulties—of being banned from a match.

This kind of process has been used in the past, although I accept that it has been used in relation to terrorism. It has worked well between this country and Ireland. The legislation has been useful and has thrown up few problems. Noble Lords should consider whether such a provision should be added to the Bill.

Lord McNally

I recall an American saying that when you are up to your neck in alligators, it is sometimes difficult to remember that the original idea was to drain the swamp. Listening to our debates this evening, I think that the Minister is up to his neck in legal alligators. Indeed, that is one of my major concerns as regards the Bill.

On Second Reading the Minister and I shared the objective of wishing to find a way of cutting away from football the yob culture that has attached itself to the game. As I listen to the debate, and in particular to the interventions of our legal colleagues, I am filled more and more with foreboding that the Government are trying to take action in this manner and with such haste. That feeling has become stronger since listening to the intervention of the noble Lord, Lord Woolmer, speaking from his experience.

When my noble friend Lord Phillips put forward the notion of extra-territoriality in the debate on Second Reading, I tended to side with the Minister, who was of the view that that would be shutting the stable door too late and that the Government's proposals would be pre-empted; the action proposed by my noble friend would be only reactive. But the more I have heard about the experience of the noble Lord, Lord Woolmer, and from my own experience, the more I have realised that there is very little trouble at the airports and docks. It is not while these characters are travelling that the trouble occurs. If the police start trying to extract individuals—particularly those protesting their innocence—at airports and docks, that could well be a recipe for disturbance rather than a cure for it. So perhaps the Minister's solutions are not so pre-emptive as they seemed at first blush.

As to the solution proposed by my noble friend Lord Phillips, it has annoyed me as a football fan, in relation to both domestic and international games, that one reads of extensive disturbances but then the number of arrests or prosecutions is minute. The big danger is that it removes any sanction or fear from such characters. The idea they receive is: the odds are stacked in your favour; you can go abroad and misbehave and you will come back home again with no sanction at all.

We should at least explore this option. Remembering about draining the swamp, one of the things that would begin peeling off the yobs from soccer is if they were hit, and hit hard, by prosecutions. I agree that we should encourage and attempt to obtain the co-operation of host nations to use their laws and their police powers to prosecute in their countries. But we should also look at this option and make people pay for their disturbances. That is way that we can peel them off.

I say to the noble Lord, Lord Monson, that I would much prefer us to go down the road of going after real hooligans who have committed real crimes than the Government's alternative of an entirely speculative "sus" power which they believe will act as a deterrent.

Turning to the objection raised by the noble and learned Lord, Lord Donaldson, it is odd that, given the whole range of reasons why people can go abroad to cause disturbances, we should focus on football. But that is what we have decided to do. Therefore, this does not disbar the suggestion by my noble friend Lord Phillips.

At Second Reading, the Minister showed a degree of sympathy for this proposal. We are trying to get to the root of the matter; we are trying to peel the yobs away from soccer. This seems to be one method of making them pay, in a way that they are not presently experiencing. It could be the most effective way of draining the swamp.

Lord Bassam of Brighton

The debate has been interesting; I do not say that merely for the sake of it. It is the case that at Second Reading I expressed some interest in the argument advanced by the noble Lord, Lord Phillips. I recognise that it has merit. However, the debate needs to be set in a broader context. I suspect that it takes us to the heart of the some of the discussions and debates that have begun to develop around the notion of corpus juris, in which the Liberal Democrat Benches have expressed great interest. The noble Lord, Lord Lucas, voiced the idea: why should it apply only to football; why should it not apply in other areas? That argument comes into play in the whole debate about corpus juris.

I also have misgivings to which the noble and learned Lords, Lord Donaldson of Lymington and Lord Lloyd of Berwick, have given good expression. Extra-territorial jurisdiction is not a regime with which our courts are at all familiar. It exists for murder, some terrorist offences and serious sexual offences, as well as for a few offences established under international conventions, but not very many. It remains rare for offences committed overseas to be tried in British courts. Before we create a whole new raft of circumstances to which extra-territorial jurisdiction might apply, considerable discussion and preparatory work will need to be undertaken with our international colleagues in the judicial field to make it effective.

11.45 p.m.

The Earl of Onslow

If someone is seen throwing a brick through a window in the Champs-Elysées by an English policeman who happens to be on the scene and it is on television so the evidence is cut and dried, I do not see why we cannot prosecute him almost without reference to the French authorities. Where do they come into it?

Lord Bassam of Brighton

I believe that the French authorities would have a great deal to say about it. Perhaps the noble Earl will permit me to develop the argument. The noble Earl needs to think hard about the views of the French authorities. I am sure that they would want to protect the right to prosecute in their own jurisdiction.

To go further, one of the reasons jurisdiction has not been extended is the profound problem of securing evidence. The noble Earl makes a case based on an event that is witnessed by a British police officer and may be recorded on a CCTV system. First, that system would not be ours and it would be one to which we would need to gain access. Secondly, the noble Lord, Lord Phillips, paints a picture in which there are many, if not hundreds, of police officers abroad during an exercise in which they monitor people who are, or may be, football hooligans. I do not believe that the British police are in a position to allow hundreds of officers to travel abroad to monitor events in those circumstances. Certainly, that has not been the case in the major exercises that we have conducted in the past few months. We provide adequate support in a targeted and proportionate way.

Lord Thomas of Gresford

Does the Minister agree it would be very odd if a person committed a criminal offence triable in this country because it was witnessed by an English policeman but not if it was witnessed only by a French policeman?

Lord Bassam of Brighton

It comes down to gathering evidence to a British evidential standard, securing proper identification, and ensuring that witnesses are transported here from an overseas jurisdiction and fully understand how our jurisdiction works. All of those matters must apply for extraterritorial jurisdiction to work effectively. At the time of Euro 2000 we believed it most important to secure the co-operation of our colleagues in Belgium and Holland to act and to prosecute where people committed offences in their jurisdiction. That was the basis on which we signed the various protocols, and we believe that that is the preferable course.

I agree with the noble Lord, Lord McNally; it is important that people are prosecuted and are subject to the full force of the law. However, that does not deal with one of the important arguments that we have advanced for this legislation and its principal purposes; namely, to prevent unruly, unpleasant scenes like those on the streets of Charleroi, Brussels, Copenhagen and earlier in Istanbul. We want a strategy which in part rests on prevention rather than cure. That is where the extra-territorial jurisdiction line of argument leads us.

I have a great deal of respect for the noble Lord, Lord Phillips, but his proposal is not a strategy. It is not even a part of a strategy. It may be of some use in the future if we can put all those factors in place so that they can work effectively—equal evidential standards; the ready identification of suspects; the easy transportation of witnesses; and witnesses able to operate within a British court so that they can explain what they saw where offences were comparable. Those difficulties present us with considerable hurdles to overcome in adopting readily the amendment although as I said at the outset, and at Second Reading, I have some sympathy with the point that the noble Lord seeks to make.

Relying on extra-territorial jurisdiction would not prevent people from leaving this country who were intent on hooliganism, violence and acts of racism and xenophobia abroad. The amendment would not have that virtue. For all those reasons we do not think that we can rely on extra-territorial jurisdiction for football hooliganism offences. Nor do we think that it offers a viable alternative strategy for beating the overseas football hooligan problem that we have experienced.

For that reason, sympathetic as I am to the noble Lord's position, we cannot accept Amendment No. 4.

Viscount Astor

Before the Minister sits down, perhaps he will kindly answer my question about who is covered by the provisions. Am I right to believe that the Bill covers only a British citizen, resident or nonresident, in this country? Does it cover a European citizen resident in this country?

Lord Bassam of Brighton

My understanding is the same as that of the noble Lord, Lord Lucas. Only Section 21 applies to a British citizen. All the other parts of the legislation apply to someone who resides in this country.

Earl Russell

As we are in Committee, I am entitled to ask the Minister to think a little further about the objective of prevention. He has no difficulty in convincing any of us that that objective is desirable. However, he has to convince us of two things: first, that the objective is possible; and, secondly, that it can be achieved without bringing in a large trawl at the end of it.

I know that in politics the unexpected always happens. However, if the Home Secretary were to describe Mr Roger Gale as a woolly Hampstead liberal, that would be beyond the realms of the unexpected; it would be near the miraculous. However, I have been looking at Mr Gale's speech in another place. I paraphrase as the rules of order demand. He said that many of his constituents going about their lawful business, going across the Channel to buy their booze, were as likely to be picked up under the provisions of the Bill as any football hooligan. He said that the Bill was inviting the Kent police to use a crystal ball. The Minister has shown no inclination to respond to that charge. We badly need to hear a response. Before he again invites the argument of prevention, can the Minister try to address that point because it is vital?

Lord Lucas

Presumably Mr Gale's constituents would not have tickets for the match and, therefore, prima facie would not be likely to be hooligans out to cause nothing but trouble.

Lord Bassam of Brighton

One of the factors the noble Earl forgets is that this piece of regulation will operate only during a controlled and, therefore, limited period of time. That is an important consideration. We are being proportionate in the way we propose this piece of legislation.

I listened carefully to the noble and learned Lord, Lord Donaldson. He made it clear that the exercise of the power could not be conducted in the very arbitrary way in which several Members of the Committee have suggested. The police could not act in that arbitrary way. As the noble and learned Lord said, the police would run the powerful risk of running up big bills in terms of compensation and the exercising of their powers unlawfully. That is not what the police want.

They want to be able to use these powers where they will be effective. I think that they will be effective in the way the police seek to exercise these powers.

Lord Lucas

The Minister said that the control periods would be relatively short. If one adds up all the potential measures and considers how they are distributed in time, do they not cover half the year?

Lord Bassam of Brighton

There are probably some 20 football matches a year where they might be of benefit. If the control period is five days, that makes 50 days throughout the year.

The Earl of Onslow

Twenty times 50 is a bit more than that.

Lord Bassam of Brighton

One is talking about 100 days at most. Given the way in which the power will work, the constraints on the police and terms of compensation, the police will be extremely careful about the way they exercise the power. Leading police officers have said that they want to exercise the powers in the Bill in a targeted and entirely proportionate way.

The Earl of Onslow

The Minister says that the power will be used with great restraint. Where do we get back to—

Lord Bassam of Brighton

If the noble Earl had listened carefully to the noble and learned Lord, Lord Donaldson, he would have heard that the way the legislation is phrased, the police will have to operate lawfully and in an entirely proportionate and appropriate way.

The Earl of Onslow

I listened with care to what was said about preventive arrests that could have taken place in the case of Leeds supporters, had the Galatasaray game been the other way around. How many Leeds supporters need to be stopped with care? The Minister implied an awful lot. Could he elaborate?

Lord Bassam of Brighton

I said in the other debate that in those circumstances, the police would have found the power of use and value. No doubt they would have been careful about the circumstances in which they exercised the power.

Lord Phillips of Sudbury

I am grateful for the Minister's response to this mini debate and for other contributions. As to the comments of the noble and learned Lord, Lord Lloyd, I thought that the Bill confined itself to British citizens throughout but in fact that is only true of Clause 21—which could be remedied by redrafting my amendment.

The Minister did not envisage that the police would want to send enough officers across the Channel for the game in France on 2nd September but implementing proposed Section 21 would involve a massive deployment of police resources if it is to have any effect. I urge the Minister to look the practical consequences of Section 21 fully in the eye. It will not achieve its purpose anymore than the NCIS list of 1,000 key hooligans—which was not remotely effective despite all the efforts to stop hooliganism in Charleroi.

Lord Bassam of Brighton

The NCIS exercise was extremely effective. Only a small number of persons identified as potential troublemakers bothered to travel abroad. They were put off. That was the beauty of it. The problem was that hundreds of other English supporters abroad were intent on causing trouble in any event.

Midnight

Lord Phillips of Sudbury

I am grateful to the Minister because he made my point precisely. Despite all that, the outcome was that 965 British fans were arrested and deported. Of that number, only 30 were on the NCIS list. That is another way of saying that it is impossible to tell who will cause an outbreak of violence. It will be no more possible in future and therefore no more possible to identify at any port who is likely to be the cause of the violence in order to utilise the powers under new Section 21. That is the practical point.

Lord Woolmer of Leeds

We are beginning to slip into treating all 900-odd as guilty. I urge the Committee to remember that a large number were herded together and deported with no evidence whatever that they were causing trouble. I want to make that point in case the noble Lord's analysis begins to blur it. Many citizens feel extremely aggrieved about what happened to them.

Lord Phillips of Sudbury

I am grateful to the noble Lord for reminding me of a point I made at Second Reading. We are entering deep and unnecessary water, but one of the reasons for that remark was that the need for the legislation is less than it might be.

The truth of the matter is that the practicalities of controlling British football hooligans are beyond prediction and the targeting constantly referred to by the Minister. They are untargetable, which is why the Government did not do so at Charleroi. They have too much drink and away they go chucking plastic chairs about.

That is why I want the Minister to reconsider our proposal overnight. The one sure way of discouraging hooliganism is to punish those guilty of it. Under present arrangements that is not happening. They returned in their hundreds and only two are being prosecuted. If of the 965 arrested and deported there were 100 prosecutions with exemplary sentences that would do something to discourage the others, that would be a real deterrent and that would be preventive. That is why I hope the Minister will reconsider the proposal.

The standard of proof is not a difficulty. Indeed, it is a bit rich the Minister worrying about standards of proof when Section 14B(2) is in his Bill. That provides the lowest hurdle that man ever had to jump in order to get someone into a criminal position.

Finally, the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Monson, said that it is worrying to extend extra-territoriality beyond the limited range of murder, piracy, treason and paedophilia. I accept that it is a large extension of extraterritoriality. However, I put it to the Committee that it is justified here for the same reason as it is justified in the cases in which we have it; namely, that as regards those offences there is a strong national interest in being able to prosecute here. Normally, in respect of a theft or an assault there is no British national interest in prosecuting for an offence committed in Greece or Holland. However, the purpose of the Bill, as the Minister has repeatedly said, is that national pride, identity, status and world renown are affected by these offences. That is why I believe that there is a real case for extraterritoriality.

Lord Monson

There is a slight dent in the noble Lord's argument. The Americans believe that an American national interest is involved in making it a criminal offence for their citizens to set foot on Cuban soil. The noble Lord and his colleagues may disagree, but that is the case. It is true that the law is not enforced with great rigour, but it remains on the statute book. If one speaks of national interest as superseding all other considerations, is not that the kind of danger into which one might run?

Lord Phillips of Sudbury

I must respond quickly and sit down. It is of course dangerous, but the point about the Bill is that it is basically about protecting the British status and national interest as regards people who defame our name. That is why I believe that there is a national interest warranting an extension of extraterritoriality. On that note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Supplementary]:

Lord Lucas moved Amendment No. 5:

Page 2, line 6, leave out ("transitory").

The noble Lord said: I should like to know what effect this amendment would have. I beg to move.

Viscount Astor

Perhaps I may speak to Amendment No. 6 in my name. It is grouped with Amendment No. 8 in the name of my noble friend Lord Campbell of Alloway. Amendment No. 6 takes account of the report of the Delegated Powers and Deregulation Committee which—

Lord Bach

If the noble Viscount is short in moving his amendment, which I shall be asking him to withdraw, he may be pleasantly surprised by what I have to say.

Viscount Astor

I am delighted by that intervention from the noble Lord because I was merely speaking to my amendment. The previous amendment was being moved. I shall let my noble friend Lord Campbell of Alloway speak to his amendment.

Lord Campbell of Alloway

In the circumstances and at this hour, I shall not move my amendment.

Lord Bach

I am grateful to the noble Lord, Lord Campbell of Alloway. Perhaps I may deal, first, with Amendment No. 5 and—

Earl Russell

I had hoped to speak to Amendment No. 5. I shall simply say in passing that the noble Viscount, Lord Astor, would have been pleased by what I would have said on his amendment had I spoken.

With regard to Amendment No. 5, I have taken the advice of the noble and learned Lord, Lord Simon of Glaisdale, on this clause. He tells me that off the top of his head he cannot think of any other case where he has seen the word "transitory" appear in legislation. Clearly in some way it is opposed to the word "transitional". I do not understand the difference. Therefore, I should like to know with as much precision as the Minister can manage in what way the force of the Bill would be changed if the word "transitory" were left out. As Pickwick would have had it: gentlemen, what does this mean?

Lord Bach

With regard to Amendment No. 5, the noble Lord raises an interesting semantic point, not for the first time. I am advised that there is a difference between "transitory" and "transitional" and that it is common practice to refer to both. In short, "transitory" means temporary whereas "transitional" means moving from one state of affairs to another. I hope that that explanation will satisfy the noble Lord. If it does not, that is the best that I can do.

I move, perhaps more importantly, to Amendment No. 6 in the name of the noble Lord, Lord Cope, which has been spoken to by the noble Viscount, Lord Astor. This amendment seeks to give effect to the Select Committee's second recommendation that any amendments to an affirmative instrument made under Clause 3 should be by affirmative instrument.

I should emphasise that the power to make amendments under Clause 3(1) is limited. It does not give Ministers carte blanche to rewrite the statute book. It is limited to supplementary, incidental, consequential or transitional provisions in consequence of or to give full effect to the Bill. I accept of course that amendments to primary legislation should be subject to affirmative resolution procedure, and that is already provided for in Clause 3(4).

As we made clear at Second Reading, the Government's reluctance to accept the Select Committee's recommendation on this point was due largely to our desire to ensure that there is no obstacle to the availability of legal advice and assistance to those who may need it from commencement. I am happy to tell the Committee that we shall bring forward amendments on Report to overcome that difficulty. As a result, we now accept in principle the amendment in the name of the noble Lord, Lord Cope. We are advised that the drafting should be slightly different and amendments will be brought forward on Report to give effect to the Select Committee's recommendation.

Lord Goodhart

Before the noble Viscount, Lord Astor, speaks, I should like to say that we are very happy with this amendment. It is a problem that the Delegated Powers and Deregulation Committee pointed out and I am glad that it has been accepted that affirmative resolution should be required, not only for primary legislation but for secondary legislation which itself was dealt with by the affirmative procedure.

Lord Campbell of Alloway

I thank the Minister for having accepted the substance of the amendments.

Viscount Astor

I am grateful to the Minister. I shall not move Amendment No. 6. I leave it to my noble friend Lord Lucas to see whether he understands the difference between temporary and moving from one to another.

Lord Lucas

Of course I understood the grammar entirely. I credit the noble Earl, Lord Russell, with having spotted the issue on Second Reading. I tabled the amendment because I was awake later than he was, I suppose.

I have not seen the word used in any other legislation. I want to know the effect of taking it out. What provision that the Government intend to bring forward would they not be able to bring forward if the word was not there? The word implies that something will be done under the Bill that has not been clone under any other Bill that I have ever paid attention to. I want to know what the word will permit the Government to do that they would not be permitted to do if it was not there.

I suggest that the Minister should inquire of his officials whether there is any precedent for the word and why it should be in the Bill. I should like a demonstration of what the Government intend to do with it. If not, perhaps we might have an amendment on Report to take it out. Would the Minister be happy either to provide me with reasons why it is in the Bill before Report or to take it out?

Earl Russell

I, too, would like to know whether we need to return to the issue tomorrow. I should be extremely grateful for any information that could ensure that we did not need to. If that information could be forthcoming, I should be very interested in it.

Lord Donaldson of Lymington

I always hesitate to disagree in any way with the noble Earl, Lord Russell, but he would need to return to the issue today, not tomorrow, I think.

More seriously, if the Secretary of State decided that a particular match required particular alteration—

Lord Carter

I think that today does not end until we reach the end of the Committee stage.

The Earl of Onslow

Does that mean that today is transitory?

Lord Donaldson of Lymington

I am much obliged. I tried.

More seriously, I suppose that the Secretary of State might want to introduce some amendment or alteration relating to a particular match or period and the Bill would enable him to do that. I do not want to encourage that, but I do not believe that the power does us any harm. If he had good cause to do that, it would be a pity if he did not have the power.

Lord Lucas

If the Minister will agree to provide me with the official government explanation before I lose any chance to table an amendment on Report, I should be most grateful. Will he agree to do that?

Lord Bach

The noble Lord heard what the noble and learned Lord, Lord Donaldson, said. That was a very good way of putting the point. I ask the noble Lord to withdraw his amendment now so that we can get on and discuss some real issues.

Lord Lucas

It is an interesting extension of the principle in Pepper v. Hart that the noble and learned Lord, Lord Donaldson, can make policy for the Government. I require an official statement of government policy. I know that it is not forthcoming from the noble Lord, Lord Bach, or he would have given it to me much earlier. May I please have it in writing before Report stage? I do not think that that is an unreasonable request. Some explanation should be given of a word that is in the Bill and the use that the Government intend to make of it.

Lord Bach

I shall make sure that the noble Lord is written to as soon as possible.

Earl Russell

I wonder if I might have a copy.

Lord Bach

Not just the noble Earl, Lord Russell, but the Library will have a copy, too.

Lord Lucas

In view of that generosity, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12 15 a.m.

[Amendments Nos. 6 to 8 not moved.]

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Commencement and duration]:

[Amendment No. 9 not moved.]

Lord Cope of Berkeley moved Amendment No. 10:

Page 2, line 34, leave out ("one year") and insert ("six months").

The noble Lord said: This amendment seeks to leave out "one year" and to insert "six months" in the provision setting out the initial period. With it is grouped Amendment No. 12 which reduces the subsequent period of the length of this legislation to one further year.

There has been ample demonstration already this evening, in the past few hours, of the problems of this legislation. They flow in part from the very great speed at which the legislation has been put together; at a time of great strain for the Home Office because it has a vast amount of legislation; at a time when our Summer Recess is approaching; and when there are some football matches to which the Government want this legislation to apply. The first match which has been mentioned is the match in Munich on 4th August. That was referred to by the Home Secretary as a match with regard to which it would be valuable to have these provisions in place. The next is in early September, in France. In those circumstances, the legislation has had to be extremely rushed. I doubt whether it will be possible to implement it fully by 4th August, even if everything happens as the Government hope in Parliament. However, that seems to be the aim.

The fact that this legislation has been extremely rushed has been amply demonstrated in the past few hours and will continue to be demonstrated as we go on to discuss some of the later amendments.

The case is very simple. In these circumstances of haste and pressure on the Home Office, the Bill should not last long before coming back for reconsideration. It should be tried out in practice. Many practical questions have already been exposed and no doubt more will emerge in the course of the evening. But in these circumstances, let us see the Bill tried out for a short while; then, when we see how it works in practice, we can come back to the underlying points of principle, as well as points of detail.

There are a number of matches over the course of the next six and 18 months. So the Bill will have been thoroughly exposed to the practicalities of the matter during that period. At the same time, that also gives enough time for the Government and the rest of us to think further about this so as to try to achieve the aim that we all want—of making a real impact on this serious problem. I beg to move.

The Earl of Onslow

I support this amendment. I rather wish that the period suggested was three months because the more I have listened this evening, the more this Bill appears to me to be very unpleasant from the point of view that the civil liberties arguments have not been addressed. The impracticalities and the fact that nothing will work have been highlighted even by those Members of the Committee who were vaguely in sympathy with the Bill. For example, the opposition of the noble Lord, Lord Woolmer, is far more valid than mine because I do not believe in the Bill in principle. But coming from where the noble Lord does, his opposition is extremely powerful. We have had no real answer from the Minister as to the who, how, when or where of this Bill or how many people will be stopped from travelling or put into preventive detention. It is an extremely unpleasant and unworkable Bill.

If the Bill has to become law, surely we could try it out between now and State Opening, by which time we may have an answer. There is a match in Munich, the anniversary of the outbreak of the 1914 war, the anniversary of the collapse at Sedan of the Second Empire in September and the fall of the Third Empire in Paris, so there are lots of historical analogies which the beautifully educated football hooligan can apply. The noble Lord, Lord Carter, points, with elegance, to myself. There are plenty of occasions when this Bill can be put to trial. Those noble Lords who really do not like it may be slightly tempted to go away and hide in their tents if the Minister cuts the time allowed to the barest minimum.

Lord Woolmer of Leeds

I rise to oppose this proposition for two or three reasons. I am unhappy about the haste with which this legislation has emerged. Once it has passed through the Committee stage, it would be extremely unfortunate if we were equally hasty in forming a view about how it was working. It seems to me to be impractical to expect to be able to judge whether it is working within a six-month period. Every few months, we could be invited to change our minds and to play around with the legislation. I hope that it is given a fair wind for 12 months.

At Second Reading I said that I believed that noble Lords should tell the public that there is no quick fix and that this is a matter of concentrating on the application of this legislation year after year. I should prefer to take the slow route which means looking at it year after year. Nothing dramatic will happen after a few months. If over the next 12 months the Bill results in an improved situation and many of my concerns about it do not arise, I shall not be surprised, but pleasantly pleased. I hope that in its second year there will be improvements, and in the third year also.

For us to tell the public that we will judge it after six months and that there will have to be primary legislation after 12 months, will give entirely the wrong impression. I hope on this occasion that the Minister will not feel able to be as generous as he was a short while ago.

Lord Lucas

The scenario painted by the noble Lord, Lord Woolmer of Leeds, that the less successful this Bill is, the longer it should carry on, is truly horrific. We are looking at granting the Government powers over our civil liberties that we should hardly contemplate; and the more we go into the Bill, the more horrific it becomes. To revise this Bill properly we must look at shortening the time-scale, although six months may be rather a short period. I am not enamoured with Amendment No. 10, but I believe that Amendment No. 12 is essential. I hope that that will find favour on the Government Benches. It would certainly cut short a lot of later discussion and I hope would please the Chief Whip among others.

Lord Campbell of Alloway

I support the amendment. I shall give my reasons tomorrow as it is far too late now. This Bill is approaching emergency legislation; it is the nearest thing to emergency legislation that I have seen since the war. This emergency could well be over in six months' time.

Lord Lyell

Can the Minister or the noble Lord, Lord Bach, advise me at which fans new Sections 14 and 21 are aimed? We are looking at the football calendar. Most of the speeches from the Government Front Bench, and indeed comments that have been made since Euro 2000, have been directed at fans attending matches where England is playing.

I believe I am right in saying—no doubt the noble Lord, Lord Woolmer, will be able to confirm this—that there is a plethora of club matches taking place in Europe and the final of the European championship will be the last Wednesday in the coming May. Should an English club work its way to the final it will have some impact on what we are discussing tonight. But, as I understand it, there is a great cry for 2nd September 2000 when England play Paris in France in a friendly game. I am sure the noble Lord, Lord Faulkner of Worcester, will be able to advise the Minister on that. Perhaps therefore the period of 12 months may be too long. But a period of six months may be too short.

Lord Faulkner of Worcester

My understanding—I confess I have not checked this—is that only two games will be caught by a six-month period. One is the match against France and the other is a World Cup qualifying game some time in the autumn against Finland in Helsinki. Nothing else would come within the six-month period.

Lord Lyell

On the other hand, England will be playing away in World Cup qualifying competition and those games will be caught by a 12-month or 10-month period. I believe those games are normally played during the season or just spilling over. Players have to go on holiday because their knees and their bodies crack up at some time in June. We are therefore looking at a first experimental period between now and June. But that is if this measure applies only to England fans going abroad.

The Earl of Onslow

Am I not right in thinking that the Bill applies to any football fan going abroad? For instance, if Manchester United or Leeds plays abroad, the provisions apply. Presumably, therefore, there are many more of those matches which will take place within the 10 months or six months.

Lord Bassam of Brighton

It will apply to European club competitions, the UEFA Competition and the European Champions League.

Lord McNally

My name is associated with Amendment No. 12, which is grouped with Amendment No. 10. The noble Lord, Lord Cope of Berkeley, introduced those two amendments. I hope that between now and Report we can reach agreement on an effective trial period for this legislation if it is to go through.

The noble Lord, Lord Campbell of Alloway, made the point that the Bill has taken on the appearance of emergency legislation. Well, I am a great fan of "Frazier", the American television programme. On Sunday nights old editions are shown on cable television. Last night there was an exchange between Daphne, the English girl in the series, and Frazier. Daphne said rather defiantly, "England has given many good things to the world", and Frazier sneered back, "Yes, like football hooligans".

So the football hooligan problem has been around a long time and the worry that we are slamming this legislation through in the last few hours of this parliamentary Session demands that the Government understand that the life term of this legislation must be extremely short. Yet against that we have to balance the valid point of the noble Lord, Lord Woolmer, that we must give it time to test. But I submit that that could, with goodwill, be resolved by the usual channels between now and the Report stage, as long as the Government are not excessive in their demands for the duration.

I hope that the Government will meet that point constructively and that they will not make it necessary for those of us on this side to impose a solution upon them. We do not want to do that. We would prefer the Government to be genuinely realistic about the fact that they are putting through this legislation in this way, while meeting the legitimate point made by the noble Lord, Lord Woolmer.

12.30 a.m.

Lord Bassam of Brighton

I listened to this debate with considerable care; indeed, I always listen to what the noble Lord, Lord McNally, says on these matters. Both he and I share very similar views about football, the events that surround it and the need for a change in the atmosphere of such matches to be reflected not only in legislation but also in other action. For example, ticketing arrangements have been mentioned, as well as the responsibility of the clubs and of the FA, and so on, for changing the current atmosphere surrounding the England team when it travels abroad. I believe that we broadly agree on such issues.

The whole notion of a sunset period was usefully introduced into the debates on this legislation by the noble Lord, Lord Alexander of Weedon, at what I considered to be an important moment. The response of the Home Secretary was characteristic: he said that he would take the matter away and think about it. Indeed, that is what he did, after having agreed that it was a good idea. The notion that we need to have a sunset period is very fixed in our minds. It is just a matter of sorting out between us what is an appropriate period.

I should like to go through the arguments carefully to try to persuade the Committee of what might be an appropriate way of considering this proposal. Effectively, there are two sunset periods. We need to look at the relationship between the two. Amendment No. 10 would reduce the first of those periods from one year to six months. As I understand it, during that six-month period the following England fixtures will take place. On 2nd September there is a match between France and England in Paris. On 11th October, a World Cup qualifier is to be played in Finland. I very much doubt whether many England supporters will travel to Finland, although a number of them will do so. Indeed, the England team is always well supported abroad. In November there is a proposed friendly match to be played in Italy, and Albania will entertain England on 28th March next. Again, I question whether the "hooligan hoards", as it were, will be making their way in vast numbers to Albania. Nevertheless, that is a fixture that would be caught by the six-month proposal.

I venture to suggest that those four fixtures would barely be an adequate test of the effectiveness, or otherwise, of this legislation were it to be amended in the way suggested. The noble Lord, Lord Lucas, recognised the reality of the situation. In all probability, we shall need to have a 12-month period to test the effectiveness and the voracity of the legislation so that a reasonable degree of analysis can come into play.

The noble Lord, Lord Lyell, knows well enough that there is a complex fixture list of European club matches that would be caught in that test period. As he said, the finals are usually played in May. Therefore, the first 12-month period is most important. It would enable us to consider whether the legislation should be renewed by the affirmative resolution procedure.

When we go beyond that period then the second sunset clause comes into play. In the current situation, there would be a further four years. During that period England participate within the World Cup to be held in Japan in 2002, if they qualify. England would seek to qualify for the next European championship which takes place in Portugal in 2004. Both of those competitions should have a bearing on how we view the effectiveness or otherwise of this legislation. My argument would be that we need to take a longer view. I believe that the noble Lord, Lord Woolmer, is right in that regard. We need to see how the legislation will work in those circumstances, how effective it is in terms of prevention, and with other measures outside the scope of legislation, in changing the attitude of England and English club supporters when they travel abroad.

My inclination would be to continue to consider the length of the second sunset period. I accept that there is some scope for movement on our part in that regard. I am not closing the door on it. I am open to sensible propositions. But we need properly to consider how the legislation will work to cover us through the qualification period for the next World Cup leading up to 2002 and also playing in the European championship again in 2004.

The sunset proposal is a very good one. It will focus minds and enable our police service and NCIS to very carefully work out what a thorough and good assessment will be. In terms of assessment, we are obviously very open to ideas. There is flexibility. I invite the Members of the Committee who have put these proposals together tonight to consider just how long a time will be needed to measure effectiveness here. That is important.

I take the point about legislation that has been put together fairly rapidly, but with a degree of consideration. Some of the proposals have been in existence and debated not just in the past few weeks and months, but over the past few years. We need to reflect on how the legislation works. That is very important. I am very grateful to those noble Lords who made the practical suggestion in the first place and who are obviously thinking very carefully about how we shall measure the effectiveness of the legislation as it now stands.

The Earl of Onslow

Can the noble Lord help me a little? For the sake of argument let us assume that this legislation is enacted. Let us assume that some dozen, two dozen or even 100 people are stopped before each of the matches. Let us then assume for the sake of argument that those who were arrested were about to do absolutely nothing and that those who were about to riot had caused mayhem in Paris, Munich or Helsinki. Do the Government then say, "Whoops, we have made a booboo" or do they say, "This is such a good piece of legislation we must extend it for another year"

Lord Bassam of Brighton

There has been an accretion of legislation to try to tackle the violent disorder associated with football over the past 15 years. I believe that that is commonly accepted across the political divides in your Lordships' House. We shall need to reflect on whether or not these measures, coupled with the other things that we need to do for the game, with the FA and the clubs, are effective. If we see a reduction in the disorder, violence, xenophobia and racism when England and English clubs travel abroad, then I believe that we can fairly say that the legislation has had a salutary effect. We shall then need to consider what the implications might then be of saying that the legislation has worked and we no longer have a need to retain it on the statute book. We shall have to have another debate at that stage. But let us try to get to the happy point where we can at least have that debate and reflect on whether or not the measures have been effective.

The Earl of Onslow

That is exactly the question I did not ask. I asked what happens if exactly the opposite happens. I did not ask what happens if suddenly the whole world is full of smiling people and everyone walks gently down the Champs-Elysées with a malacca cane and a top hat as opposed to being daubed in war paint with a lager can in their left ear. I asked what happens if it does not work. Do the Government say that it does not work but we must still have it, or do they say, "Oops, we have made a booboo"? That is the simple question that I asked.

Lord Bassam of Brighton

If the legislation is not as successful as we would wish, we shall have to consider other measures. No doubt the noble Earl would make some excellent proposals.

Lord Cope of Berkeley

To summarise this short debate I should say that Amendment No. 10 has had a mixed reception. My noble friend Lord Onslow wanted to reduce the period to three months; some thought that six months was about right, but some thought that it was too short. We have learnt much about future national features to be held in the six-month period and about an unknown number of club fixtures to be held during that period. Nevertheless, I shall not pursue the six-month proposal further because of the way in which it has been received.

I shall not pursue the one-year proposal this evening. The noble Lord, Lord McNally, made the useful suggestion that we should think further about Amendment No. 12. The Minister said that there had been discussion over some years leading up to the measure. I accept that there has been a certain amount of discussion of the first three proposals in the Bill. However, the sunset clause applies only to new Sections 14B, 21A and 21B, which I believe is how it should apply.

We are all trying to balance the restriction on civil liberties in the Bill with the necessity to deal with the problem as best we can. We need to reflect on the matter a little more. However, in the meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 and 12 not moved.]

Lord Cope of Berkeley moved Amendment No. 13:

Page 2, line 42, after ("Act") insert (", and (b) the arrangements in force in Scotland and Northern Ireland for ensuring the proper working of the provisions of this Act,").

The noble Lord said: The Bill provides that before an order is laid to extend the powers in the Bill beyond the initial period—whatever that turns out to be—the Secretary of State shall report on the working of the Act before each House of Parliament. That is a helpful measure. The amendment seeks to ensure that the report also covers the arrangements in force in Scotland and Northern Ireland.

As we discussed at Second Reading—I said a great deal then which I shall not repeat now—there is a large loophole in the Bill with regard to the position in Scotland and Northern Ireland. At the moment there appears to be no intention for any action to be taken by the Scottish Executive and the Scottish Parliament to close the loophole from that end. There is not a great deal that can be done at this end to close that loophole. Nevertheless I believe that more consideration will need to be given as to the extent that the loophole may be used by fans to avoid the legislation and as to whether something more effective can be done if greater thought is given to it.

I understand that the report will be compiled by an independent person—we presume that that will be a senior lawyer. We want the report to cover not only how the arrangements will work in England and Wales but also in Scotland and Northern Ireland.

Amendment No. 14 goes to an entirely different point. I shall leave the noble Earl to speak to that, at least at this stage. I beg to move.

12.45 a.m.

Earl Russell

My Lords, we on these Benches can offer one cheer to Amendment No. 13; it is a sensible idea. I do not think that it fully addresses the depth of the problem of the relationship between this Bill and the devolved jurisdictions. I am not sure that my amendment addresses the whole of it either; we may need to go further.

My amendment seeks to delete subsection (2) of Clause 6, which states: But the amendment or repeal by this Act of an enactment extending to Scotland or Northern Ireland also extends to Scotland or, as the case may be, Northern Ireland". It may be an exaggeration to say that that drives a coach and horses through the principle of devolution, but it does at least make a significant dent in it.

I should like to know, first, what consultation has taken place about this; whether there has been any with the Northern Ireland Executive, with the Northern Ireland Assembly or with the Scottish Executive; and whether I am right in believing that it was not possible to consult the Scottish Parliament because it is not at present in session.

It seems a rather unfortunate moment to invoke the reserved power in the Scotland Act. I admit that the reserved power allows Westminster to legislate for Scotland, even in a devolved matter. It was one which always caused a certain misgiving north of the Border. It was thought that one could say about that what they used to say about the Royal Prerogative: that it was to be used as God does his omnipotence, upon extraordinary occasion. I am not quite sure that this will appear to be a sufficiently extraordinary occasion north of the Border.

It also does not seem to me to be particularly wise to inject this into the period of the Scottish National Party leadership election. It is a period when the Scottish Nationalists will be arguing among themselves how far they are prepared to live with devolution.

There also seem to be some quite unexpected consequences of applying this legislation in a devolved context. I cannot quote specifically from speeches in another place. I shall therefore direct the Minister to the reference from which I intend to draw material. In another place on 17th July (Commons Hansard, col. 127) my honourable friend Sir Robert Smith asked the Home Secretary whether under the powers in the Bill it was possible to prevent a Scot in England returning to his home in Scotland. The Home Secretary answered "Yes".

Before the Minister signed the certificate of ECHR compatibility with the Bill, did he take advice on the question of how far it was compatible with Article 8 of the European convention (respect for privacy and family life)? I cannot think of precedents anywhere in recent times of people being restrained from returning to their own homes within the British Isles when no serious charge is being brought against them and in circumstances where one wonders whether there may be anything against them at all.

I do not see how the Bill will be made to work with the devolved jurisdictions, especially when one takes account of the porousness of the modern Irish Border. Once people have got there, they can get out of British jurisdiction without causing any further trouble at all.

There is a great deal that has not been thought through. If the Minister can convince me that I am mistaken in that belief, I shall be extremely relieved.

Lord Lucas

There is another delightful aspect to the question raised by the noble Earl, Lord Russell: under proposed new Section 14B, you can be got only if you are a resident of England or Wales. Under proposed new Sections 21A and 21B, you can be picked up if you are a Brit. So a constable can come along to a Scotsman and chuck him in the brig for four or six hours; but he cannot then do anything with him because the power in new Section 21B(4) refers to, the appropriate chief officer of police to the court in question". For a Scot there is no such person. He cannot then actually charge him with anything. What the Bill gives at the moment is a power to pick up Scots and put them in chokey with no prospect of a prosecution for anything at all. That does not seem to be a way to spread happiness between ourselves and our colleagues north of the Border. I hope that that and the other points the noble Earl has raised will be taken seriously into consideration.

Lord Bach

Amendment No. 13 seeks to give the Bill an extent which it cannot have. The Football Spectators Act, which the Bill amends, extends only to England and Wales. It is not clear what arrangements the proposers of the amendment have in mind. Formal arrangements to prevent departures from Scotland and Northern Ireland cannot be forced on the Scottish Executive, which has devolved responsibility for the matter. Indeed, the Scottish Executive, which has been consulted, has made it clear that in the near future, at least, no such formal arrangements will be put in place beyond police co-operation. There is no evidence to suggest that the measures need cover departure from Northern Ireland. The Executive has not been consulted. I am conscious that no parallel arrangements could be put in place in respect of the Republic of Ireland, which provides better routes to many places in Europe.

Clearly, the report to be submitted to Parliament on the workings of the Bill will need to assess the impact of the current arrangements and whether or not there is evidence to suggest that suspects are evading our controls via that route. On the basis of that assurance I hope the noble Lord, Lord Cope of Berkeley, will agree to withdraw his amendment.

Lord Goodhart

Before the noble Lord sits down, is it not a fact that the question of whether it is possible to evade the requirements of passport surrender is almost entirely irrelevant because the effective power is the power to order someone to turn up at a police station at a specified time? That will prevent him from going abroad because, if he does not comply with that, he will go to prison. So the business of evading orders about surrendered passports is irrelevant.

Lord Bach

Turning to Amendment No. 14, standing in the name of the noble Earl, Lord Russell, the amendment, if passed, would mean that measures which are repealed or amended for England and Wales by the Bill will not be similarly amended for Scotland. The only UK-wide enactment which is affected is the Police Act 1997 provision which prevents NCIS from sharing information with non-law enforcement bodies. That provision is amended by Clause 2 of the Bill. It makes no sense, since NCIS is a national body, to create a different set of legal obligations north and south of the Border. The suggestion made in the amendment is one which the Government do not consider to be practical.

The noble Earl asked whether consultation had taken place. He knows that consultation has now taken place with the Scottish Executive. He knows that it has not taken place with the Northern Ireland Executive.

So far as concerns Article 8, I cannot answer the noble Earl's question specifically. But he will of course know that both in another place and in this House the respective Ministers have signed the necessary form to suggest that in their opinions the Bill before the Committee is one which satisfies the Human Rights Act.

Restrictions on movements between England, Wales and Scotland, are precedented in other circumstances. For example, bail conditions for a criminal offence or injunctions in matrimonial or other civil matters can be so set out that movements between the two countries involved—between all the countries—are affected. It has not been suggested that that is against the Human Rights Act.

Earl Russell

I thank the Minister for that careful and considered reply. His point about NCIS sharing information is a serious, practical one. It is not the kind of point on which anyone needs to go to the wall. However, on the more general question, he said that we have not put forward a scheme for how the Bill should cope with the problem of devolved powers. I must plead guilty to that charge; first, because I did not lay the Bill before Parliament; and, secondly, because I do not, purely individually, have the expertise on devolved powers that is needed. It would need a consultation with quite a number of people to get that right. At present I am not convinced that there is any right answer to this problem.

I hear what the Minister says about past restriction on movement between England and Scotland. I did not hear him quote any case of a person being restrained from returning to what remains his domicile. In domestic violence cases, I can understand that there may be a restriction on returning to what was one's former domicile. But being restrained from returning to one's present domicile is a more serious matter. It would take quite an effort to convince me that that was a serious practical proposal. If the Government can think any further about finding a solution to how the Bill will mesh in with the devolved powers, it will make their task easier. But I admit that they cannot find something that is not there.

Lord Cope of Berkeley

The noble Earl, Lord Russell, said that my amendment does not solve the whole problem. I did not say that it solved the whole problem. I just hoped that it made a contribution to solving the problem.

In a newspaper report the other day, the Prime Minister's official spokesman was quoted as saying that Tony Blair was determined to plug any loophole in the proposals with regard to Scotland. The report stated: Ministers at Westminster hope that closer co-operation between police forces north and south of the Border could … prevent English thugs from circumventing the proposed travel restrictions". The Minister was kind enough to confirm that Ministers think that police co-operation is the way forward. However, the newspaper went on to say that senior Scottish police officers had admitted that they would be powerless in the matter. That is the truth of the matter.

The Scottish loophole does exist and will go on existing. It is clear, as the Minister said, that the Scottish Executive and Parliament do not propose to do anything about it. It would be a good thing for whoever makes the report on the legislation to cover the loophole. The Minister seemed to confirm that that was likely to happen if it proved to be a serious loophole. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Extent]:

[Amendment No. 14 not moved.]

Clause 6 agreed to.

Clause 7 agreed to.

Schedule 1 [Amendments of the Football Spectators Act 1989]:

Lord Goodhart moved Amendment No. 15:

Page 4, line 15, at end insert ("and is a prescribed tournament").

The noble Lord said: Amendments Nos. 15 to 17 are motivated solely by my usual desire to be helpful to the Government. I strongly believe that something has gone seriously wrong with the drafting of the Bill and that that will produce unintended consequences. That is best explained by means of an example. It is helpful to look at new Section 14 of the 1989 Act on page 4 of the Bill. Let us assume that Manchester United, who will be playing in the European Champions Cup, has an away match at the beginning of the group stage which the Secretary of State decides should become a prescribed match. That Manchester United match will therefore become a regulated match and, as a consequence under the provisions in new Section 14(3), the European Champions Cup will become an external tournament.

If one turns to see what would be the control period, it is clear that it will begin five days before the prescribed, regulated Manchester United away match, but will not end until after the final of the European Champions Cup. I understand that the group stages begin relatively early, possibly at the end of October. Thus the control period will last continuously for a period of six months.

If one turns to new Section 19, it is clear that that will mean that someone who has been required to surrender his passport at the beginning of the control period would not be able to get it back until the end of the six-month period as laid down in new Section 19(6), whether or not Manchester United remains in the competition. Frankly, that would be intolerable. Furthermore, I cannot believe that it is something which the Government intended to achieve.

For that reason, I have proposed Amendment No. 15, which would mean that an external tournament would not arise automatically because it included a regulated football match outside England and Wales; it would also have to be a prescribed tournament.

I can see that what the draftsman may have had in mind was a tournament like Euro 2000, which was played continuously over a period of three weeks. In that case it is perfectly understandable that the Secretary of State might decide to prescribe the whole tournament.

1 a.m.

Lord Bach

I hope that the noble Lord will forgive me. He has spoken so eloquently about this matter that we are more than half persuaded that a valid point has been made. Perhaps I may suggest that he withdraws his amendment tonight. We shall return on Report tomorrow with something which, it is hoped, will meet his needs. We shall be able to discuss the matter when that amendment is put before the House.

I do not wish to cut off the noble Lord in full flow, but he has to an extent convinced us that a point needs to be answered here.

Lord Goodhart

I am most grateful to the Minister. I shall not develop my argument on Amendment No. 15 any further. However, perhaps I may touch briefly on Amendments Nos. 16 and 17.

Amendment No. 16 arises simply because I found it difficult to understand what was meant by the words in line 30 on page 4, any period described in an order made by the Secretary of State". At first I wondered whether the word "described" could be a misprint of the word "prescribed", but I am by no means certain that that is the case. Subparagraphs (6)(a) and (b) lay down mandatory starting and finishing days for the control period. I cannot see, therefore, what function is intended by these words. Amendment No. 16 is in effect a probing amendment to find out exactly what these words mean.

Amendment No. 17 is intended to shorten possible control periods where an England team or club is knocked out at some time before the final stage of the tournament. It proposes that the control period should end when the last "regulated" football match outside England and Wales which is included in the tournament has finished or is cancelled. That would mean that if under paragraph 14(2), for example, the Secretary of State had decided in relation to Euro 2000 that a prescribed match was any match in which the England team was involved, the control period would come to an end when England was knocked out of the competition; therefore, so far as concerns England, the tournament would have finished. I should have thought that there was no reason why, once England was out of a tournament, a control period should continue up until the final.

Lord Lyell

The noble Lord, Lord Bach, may be able to advise me on one point. He gave encouraging news which cleared my mind, but what is the present arrangement for "prescribed" matches? I understood, probably wrongly, that matches were "prescribed" at every round in club tournaments. The noble Lord, Lord Goodhart, said that matches start in October. So far as I can remember, they are starting fairly soon—certainly so far as concerns Scottish clubs, which have not had great success in recent years. I believe that Manchester United will be playing in the European championship fairly soon.

My thinking was that the prescribed period would be five days for each match where the Secretary of State believed that there was a problem. I did not think that he classified the games as "regulated" or "prescribed" under the 1989 Act, as the noble Lord, Lord Goodhart, explained—in other words, right through until the end of May. I thought that where there was a likelihood of problems occurring, the Minister could designate a match and say that it would be regulated or prescribed. Presumably that would cover matches involving English clubs. There is just a chance that it might cover other matches where English clubs were not involved.

The noble Lord, Lord Goodhart, was right about Euro 2000, and about the World Cup to be played in 2006, which may last three weeks or a month. But am I right in thinking that a "prescribed" match in European football would mean a control period starting five days before the match, and that the period would stop when the match was over, at midnight or early next morning? Someone who had a problem over his passport could go in the intervening time.

Viscount Astor

Following the Minister's intervention, I do not feel the need to speak to Amendment No. 15. However, I find somewhat bizarre the wording in subsection (6) of Amendment No. 16 and I look forward to the Minister's explanation.

Lord Bach

I should like to take away Amendments Nos. 15 and 16. I do not want to take away Amendment No. 17; we do not believe that the points made by the noble Lord, Lord Goodhart, as regards that amendment, are as good as those he made on the other two. His Amendment No. 17 would make the endpoint of a controlled period in relation to an external tournament the last "regulated" match rather than the end of the tournament.

We do not believe that the control period should effectively end when the last English team is knocked out of an international tournament. We do not think that any of us would want to see hooligans subject to banning orders free to travel back to a tournament and settle old scores as soon as England or an English club had been safely eliminated. We believe that the law will have greater certainty and clarity if it covers the entire tournament. I hope that the noble Lord will consider withdrawing Amendment No. 17.

The noble Lord, Lord Lyell, asked some questions about prescribed matches. I am not in a position to answer him adequately at present. Perhaps I may look carefully in Hansard later today and come back to him.

Viscount Astor

Time is a problem here. The Minister said that he would take back Amendment No. 16. That is helpful. To aid the Committee so that it will have some understanding of the position when the Minister tables a new amendment—perhaps Members of the Committee will want to consider whether they, too, want to table an amendment—can the noble Lord explain what is meant in subsection (6) by the words, any period described in an order made by the Secretary of State"? The Committee will find it helpful to understand the purpose of that provision.

Lord Bach

I do not want to waste the time of the Committee. I am looking forward to Report stage tomorrow when we deal with this matter in one way or another. To do anything else would be to waste our time tonight.

Viscount Astor

I find the Minister's response most extraordinary. We are trying to help the Government. This Bill is to be dealt with in two days. In order to have any understanding of the Government's position, we and the Liberal Democrat Benches need to be able to consider whether it is necessary to table amendments to government amendments. This is not our Bill but the Government's and the Minister must answer the question. To hear these excuses is quite intolerable. We are trying to be as helpful as possible in dealing with this Bill, but we need to know what the Government mean. The response is not good enough; we want an answer from the Minister.

Lord Bach

What I have tried to say on two occasions already—this is the third—is that the noble Lord may have a point in seeking by Amendment No. 16 to leave out those words on the basis that they are otiose. We want to look at it. If those words are otiose we shall remove them; if not, they shall remain. I believe that their meaning speaks for itself.

Lord Goodhart

I am most grateful to the Minister for agreeing to take away Amendments Nos. 15 and 16 and for acknowledging that they give rise to a serious point. I believe that the Minister's concern about Amendment No. 17 is rather far-fetched. It is very unlikely that hordes of hooligans who have not previously been allowed to visit a tournament will dash over to it once the England team has been knocked out and have anything of interest to concern them. Frankly, it is not by any means the most important amendment on the Marshalled List. Obviously, I shall not press the amendment this evening, and it is unlikely that it will be brought back again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

The Chairman of Committees

I must point out to the Committee that there is a mistake in Amendment No. 18 as printed. The reference to "page 5, line 3" should be to "page 5, line 4".

Lord Lucas moved Amendment No. 18:

Page 5, line 4, after ("satisfied") insert ("on the balance of probabilities").

The noble Lord said: In moving Amendment No. 18, I should like to speak also to Amendment No. 19. Following the tradition of this evening, these amendments deal with two completely separate subjects, but at least we have already covered the subject of Amendment No. 18. I should be satisfied to hear from the Minister merely a statement that that is the test to be applied to this particular clause of the Bill and that the Government intend that it should be subject to the balance of probabilities. I should also be delighted to hear that the Government agree to insert these words, or something to their effect, in this part of the Bill so that everybody knows that that is the case.

Amendment No. 19, which we have not covered before, is concerned with the level of discretion to be allowed a magistrates' court. At the moment, if a person is convicted of a relevant offence and the court is satisfied that there are reasonable grounds to believe that the making of a banning order will help, and so on, it must make such an order. Given that under subsection (4)(b) conviction includes an absolute discharge, it seems extraordinary that, if that is the order, the court is none the less compelled to impose a banning order. That does not treat the courts as they should be treated. The courts should be given the discretion to apply the banning order as they think proper in all the circumstances. We should trust them to do that. We should, therefore, substitute "may" for "must". I beg to move.

1.15 a.m.

Lord Phillips of Sudbury

I support Amendment No. 18, and in particular Amendment No. 19 where the discretion which the amendment would allow the magistrate is important and necessary. I remind the Committee that at Second Reading I drew attention to the fact that on the Crime and Disorder Act the Government made a virtue of the fact that the courts were left with a discretion as to whether or not they were going to impose such an order. The same discretion should be available here.

Earl Russell

I, too, support the amendments. We must clear up the burden of proof. I am only interested that the noble Lord, Lord Lucas, is so merciful to the Government that he stops at the civil standard of proof. I wonder whether he was tempted to go a little further.

The vital point relates to "must" or "may". When the Home Secretary spoke to us in Committee Room 5, he admitted that it is a mandatory sentence. If a mandatory sentence happens to be just in the case in which it is imposed, that can only be so by coincidence. There are a good many circumstances in which it would be inexpedient and unjust to make this sentence mandatory.

Let us take, for example, the case of someone permanently employed in a European Union country who is exercising his freedom of movement under the Treaty of Rome. I do not see how one could restrain him without infringing European law. Let us suppose, for example, that the order were applied to someone who is an employee of the European Court of Justice. I think that we might hear of that rather quickly. Alternatively, let us suppose that as well as attending the football match, the person also hopes to visit a dying parent somewhere on the Continent. It could well be argued that it could be unjust to restrain him from doing that.

I do not see how one can pass any just sentence until one is empowered to consider all the circumstances of the case. The whole point of the mandatory sentence is that it directs the court's attention to one single circumstance of the case—the type of crime committed—and restrains the court from looking at any other circumstance. That is a restriction of the powers of the court to look at relevant evidence. I think that it is a bad mistake.

Lord Monson

I, too, support both amendments. In their different ways, each would make the Bill slightly more acceptable.

Lord Bassam of Brighton

In Amendment No. 18 the noble Lord seeks to make clearer provision as regards the burden of proof and so on. The test for the court in making an order under new Section 14A which covers orders following conviction for a relevant offence is as set out in the current provisions on football banning orders in the Public Order Act and the Football Spectators Act. We have not invented the power anew. It is brought in. The test is also the same as that proposed in banning orders made on a complaint under new Section 14B. The test is self-explanatory and I am not sure that it would be helpful to add to it. The court must be satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder in connection with regulated football matches. So the test there is of reasonable grounds. That is the test on which we should rely.

Amendment No. 19 would have the strange effect of reversing one of the changes introduced last year by the Football (Offences and Disorder) Act which was to require the courts to make a banning order if they were satisfied that the test in new Section 14A(2) was met. Of course, if the courts are not satisfied that making an order would help to prevent violence or disorder in connection with matches, they need not make the order. Courts have been reluctant to make orders. We want them to make defendants face up to the full implications of their actions. If the court is satisfied, a banning order should be made. We believe that such orders have a salutary effect beyond the individual case. If we want a tough measure, we must insist that this provision remains. I urge the Committee to reject the amendment.

Earl Russell

If we do not succeed in getting right freedom of movement under the Treaty of Rome, we shall certainly hear of it and the Bill will probably turn out to have no effect. The Minister was warned on Second Reading that that point was going to be raised. If he cannot produce a satisfactory answer, he might as well withdraw the Bill now.

Lord Bassam of Brighton

I addressed that issue in one of our early debates. The argument is about being proportionate in the circumstances. It rests on the greater good and whether public order is to be protected and safeguarded. In terms of human rights and freedom of movement, it is correct to include this measure in the Bill and it does not infringe the European Court of Human Rights or human rights legislation. Clearly we disagree but we have examined ECHR considerations and believe that we are right to insist on our approach in the circumstances.

Earl Russell

I was not asking about the ECHR on this occasion but about the European Court of Justice—the Treaty of Rome, which is a very different issue. Has the Minister consulted other European Governments? If not, why not?

Lord Bassam of Brighton

I cannot say that we have consulted precisely on this measure in the terms that the noble Earl has raised the point. I recognise that there is a valid issue at the core of what he is suggesting but we think the measure is right. We were well advised on that point when drafting the Bill, but time will tell.

Lord Lucas

I am grateful to the Minister for his replies. I am satisfied with his comments on Amendment No. 18. As he said, the phrase is from an existing Bill. We will see what is meant by it. In any event, it concerns conditions that apply where the individual has been convicted of another, related offence. It is probably reasonable in the circumstances. I am not so satisfied with the noble Lord's response to Amendment No. 19 and will consider my position when we reach that amendment. I beg leave to withdraw Amendment No. 18.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 19:

Page 5, line 7, leave out ("must") and insert ("may").

The noble Lord said: I beg to move.

1.24 a.m.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 17; Not-Contents, 22.

Division No. 3
CONTENTS
Addington, L.	Desai, L.
Astor, V.	Goodhart, L.
Attlee, E.	Henley, L. [Teller]
Brougham and Vaux, L.	Lucas, L. [Teller]
Campbell of Alloway, L.	McNally, L.
Cope of Berkeley, L.

Monson, L.	Phillips of Sudbury, L.
Onslow, E.	Russell, E.
Parkinson, L.	Tebbit, L.
NOT-CONTENTS
Amos, B.	Faulkner of Worcester, L.
Bach, L.	Gavron, L.
Bassam of Brighton, L.	Gordon of Strathblane, L.
Brett, L.	Goudie, B.
Burlison, L.	Hunt of Chesterton, L.
Carter, L. [Teller]	Hunt of Kings Heath, L.
Chandos, V.	McIntosh of Haringey, L. [Teller]
Davies of Coity, L.	Mackenzie of Framwellgate, L.
Davies of Oldham, L.	Ramsay of Cartvale, B.
Elder, L.	Woolmer of Leeds, L.
Farrington of Ribbleton, B.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

1.33 a.m.

Lord Goodhart moved Amendment No. 20:

Page 5, line 9, leave out ("not").

The noble Lord said: Amendment No. 20 is a relatively minor amendment but, I believe, perhaps more important than it appears. It removes the word "not" from new Section 14A(3), which states that if a court is not satisfied that there are reasonable grounds to believe that making a banning order will help to prevent violence, it must in open court state that fact and give its reasons. There is no particular reason why a court should, if it is not satisfied, explain that. There is no reason why it should not but it does not seem to matter very much one way or the other.

The really important point is that if the court is satisfied that a banning order should be made, it should give its reasons in open court. A defendant in criminal proceedings who has just been convicted of a relevant offence may wish to appeal against the sentence. If he wishes to appeal against the imposition of a banning order, he obviously needs to know the court's reasons.

If the court refuses to make an order, it does not matter whether it gives reasons in open court, but if it makes an order, justice requires that it should state its reasons in open court so that the defendant can find out the grounds on which he can appeal. I do not particularly object to new Section 14A(3) as it stands. The important point is that if the court is satisfied, it must give its reasons. I beg to move.

Viscount Astor

When I first looked at the amendment, I failed totally to understand what the noble Lord, Lord Goodhart, was on about. However, after his eloquent explanation, I now understand. If one accepts the Government's argument that the court should give reasons if it is not satisfied, a more suitable amendment might be to say that it should give reasons whether or not it is satisfied. That would be clearer and more open and would ensure that the court had to give reasons whatever the outcome. That might be a more sensible solution. I should be interested to hear the Government's view.

Earl Russell

This point came up a number of times when we were considering child support appeal tribunals in the first year of this Parliament. So far, the Government have always conceded it. If the Minister wishes to look at a fuller exposition of the reasoning, he might look at the judgment of the noble and learned Lord, Lord Woolf, in the case of Fayed v. Home Secretary in November 1996. That is a truly memorable judgment that every Minster should have on their desk, particularly every Home Office Minister.

Lord Bassam of Brighton

Amendment No. 20 would amend Section 14A, which simply re-enacts the existing law on banning orders made on conviction for an offence. It would require the court to state openly its reasons for imposing a banning order following conviction for a football-related offence.

At present, Section 14, as amended by the Football (Offences and Disorder) Act 1999, requires a court to state the reasons why it has not made an order. That is consistent with the expectation that a banning order must follow upon conviction for a football-related offence.

The ground for a banning order under Section 14A is conviction for a relevant offence. On such a conviction, no explanation is necessary or, in our opinion, appropriate. The amendment would change a provision that seems to work perfectly well in existing law that we want to carry over into the new legislation.

The Earl of Onslow

What harm would it possibly do to accept the amendment? It would clarify matters and it would be fairer. I do not totally blame the noble Lord because I have heard Ministers from this side, when we were in government, reading from those bog-entrenched, civil servant issued briefs. There is no intention to listen to what anybody else says. All those noble, gallant and intelligent human beings on our Front Bench did exactly the same. And I see the noble Lord, Lord Bassam, falling into that. Surely he is a bigger man and he can listen to something which is as intelligently and reasonably put forward as this has been and not come out with that sort of trench warfare ministerial guff which I have heard for 30 years in this Chamber.

Earl Russell

Before we leave this matter, will the Minister explain to the Committee how it is possible to lodge an appeal if no reasons are given against which you can appeal?

Lord Bassam of Brighton

Surely, as in any other situation, you appeal against the decision, stating reasons for the appeal. That much is clear.

The noble Earl, Lord Onslow, made a debating point. He asks what harm it will do to accept the amendment. I will think about the point of harm.

Lord Goodhart

I am sorry that the Minister has not been more receptive to this amendment. While he is correct to say that, in the normal course of appeal against a criminal sentence, the reasons why the judge has chosen one sentence rather than another are not necessarily given, the situation here is that, if the court does not make a banning order, it must state its reasons. Therefore, it seems appropriate that if it makes the order it should also give its reasons. I should be happy to accept the version proposed by the noble Viscount, Lord Astor, which would make it clear that the court must state its reasons either way.

However, clearly, this is not a matter to take any further this morning. We shall consider whether to bring it back this afternoon. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 21:

Page 5, line 14, leave out ("absolutely or").

The noble Lord said: Again, this is a short point. A banning order can be made only in addition to a sentence or in addition to an order of absolute or conditional discharge. An absolute discharge is given only in circumstances where the defendant is technically guilty of the offence but is wholly without blame and no kind of sentence whatever is justified in the circumstances.

Therefore, it seems wholly inconsistent to impose a banning order, which is clearly a form of punishment, at the same time as giving an absolute discharge. I see no problem as regards a conditional discharge but an absolute discharge seems to me to be wholly inconsistent with the idea of making a banning order. The point needs no further exposition and, therefore, I beg to move.

Lord Phillips of Sudbury

The Minister may be tempted to say that this wording and these arrangements are in existing legislation. The answer to that is that this is a good opportunity to rectify what is a form of nonsense. My noble friend Lord Goodhart expressed the matter very clearly.

Lord Bassam of Brighton

Amendment No. 21 would remove the power to impose a banning order following an absolute discharge. That is right. As the noble Lord, Lord Phillips, said, this provision is one of those re-enactments from earlier legislation. Indeed, it has been there since 1989 and was taken through by Simon Burns last year when the last piece of legislation was put on the statute book.

However, it must be remembered that an absolute discharge is not an acquittal. It is a disposal following conviction. The reasons for imposing an absolute discharge may be many, but the fact remains that the person concerned will have been convicted of a football related offence. For that reason it is important that we retain the possibility that a banning order may apply.

I do not believe that we can bend to this amendment and I do not believe that it is right to suggest, as the noble Lord appeared to, that an absolute discharge is close to being acquitted. That is not the case.

1.45 a.m.

Earl Russell

Can the Minister explain to the Committee under what circumstances he believes that it would be appropriate to give an absolute discharge followed by a banning order? The Minister uses the excuse, "We have done it before". When dealing with badly drafted legislation, I accept that that is a reproach to noble Lords; it is no excuse as regards the Minister.

Lord Lucas

I too want the Minister to consider in what circumstances that is appropriate, given the keenness to retain the word "must". To the noble Lord, Lord Goodhart, I say that if he chooses to press this amendment to a Division, I am sure that I and a large number of my colleagues could be persuaded to abstain.

The Earl of Onslow

When an absolute discharge is given a defendant receives no punishment. Under this Bill one would say, "We will give you an absolute discharge which means no punishment, but we have to give you one anyway". That is not right.

Lord Goodhart

I am sorry that the Minister has not given a positive response to this amendment. I would be tempted to take it further were it not for the fact that I cannot imagine that, in circumstances where the court thought fit to give an absolute discharge, it would also believe that there were reasonable grounds to believe that making a banning order would help to prevent violence in connection with a regulated football match. So in practice, it seems to me inconceivable that anybody who has been given an absolute discharge would have a banning order imposed upon him. Certainly it seems to me to be quite absurd. In what circumstances could one impose a banning order when an absolute discharge has been granted? In those circumstances, it is inconceivable that that would lead to a banning order. Having made the point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

If Amendment No. 22 is agreed to, I cannot call Amendments Nos. 23 to 37.

Earl Russell moved Amendment No. 22:

Page 5, leave out lines 27 to 44.

The noble Earl said: This is an amendment of some substance. It proposes leaving out Section 14B, the anti-social behaviour section, and what my noble friend Lord Goodhart described as the "civil banning order".

The anti-social behaviour order has never found particular favour on these Benches. I am not sure that it has found that much favour anywhere else. Before we leave this subject, I would be grateful if the Minister could tell me the number of so-called anti-social behaviour orders that have been given since the power was introduced.

Lord Phillips of Sudbury

It is 500.

Earl Russell

My noble friend suggests that 500 is the number. I thank him. It is not a substantial number. I believe doubts about it are shared.

One of our misgivings about this is the mixing up of criminal and civil procedures. It involves the use of the civil procedure—according to the balance of probabilities—for something that carries penalties that may, more appropriately, be thought of as criminal. That reminds me that someone once said to an Elizabethan archbishop that he was a monster, neither ecclesiastical nor civil. It was a comment on the archbishop's manners as well as on his legality. As a comment on the anti-social behaviour order, it may perhaps be germane.

I listened to the noble and learned Lord, Lord Donaldson of Lymington, say that a substantial body of evidence would be required. I take his point, but it would comfort me more if I heard to what that evidence would relate—that is not as well covered by the drafting of this clause as I would like—and what degree of certainty one could expect from that evidence.

One of the things that strikes me more and more is that it is very hard to be certain exactly what happens in a crowd. The Minister relied heavily on the uncertainty of much that happened at Charleroi. That illustrates my point: how hard it is to be certain what happens in a crowd. So applying a civil standard of proof in a case like that, will make error easier in a place where it is already a great deal too easy.

My noble friend Lord Phillips of Sudbury describes this as the lowest hurdle of proof anybody has been asked to cross. That applies to a lot of the drafting. But I am not clear what is meant by the phrase "contributed to disorder". I believe it was my noble friend Lord Phillips who introduced this point at Second Reading. What precisely is meant by "contributed to disorder"? Does it involve mews rea? Does it involve being present? Or does it involve giving aid and comfort to somebody who then created disorder, unbeknown perhaps to the person who comforted him?

The point was raised in another place by Mr Gummer. Of all the things that Mr Gummer's worst enemies could say about him, that he is liable to create disorder would have been the last. But in col. 115 on 17th July Mr Gummer recalled an occasion in 1961 when he had been on an anti-ugly march, protesting at an appalling building in Cambridge. He said that there was some disorder at the edge of the march and that, as one of the march's leaders, he thought he might be accused of contributing to it. Were Mr Gummer's fears well founded? Since the Home Office has had several days to take that point on board, I hope it will provide us with an answer.

Of course, that is not the only case. The Home Secretary himself, on 9th July, was in a car alleged to have been driven at 103 miles an hour. First, is that a disorder? I should like some precision as to the meaning of disorder. Secondly, if it is disorder, could the man in charge of the car be said to have contributed to it? If so, will the effect of this Bill be to ban the Home Secretary from attending football matches? If so, was that his intention? I can imagine circumstances where just possibly it may have been, but they seem just a little ironic.

Then at the end we return to the word, "must". I have said my say about that and will not say it again tonight. But I am free to return to the point tomorrow as I hope the noble Lord, Lord Lucas, will as well. He has not divided the Committee on this one so we can certainly return to it. I beg to move.

The Earl of Onslow

This provision is an appalling abuse of our liberties. Here we have a banning order on somebody going abroad to a football match because people think he might do something. They have no evidence; they just "think" he might. Surely that goes against every single grain of British legal history.

Somebody may have a long record, but is there no room for repentance? If we are asking about a Minister's previous experience, I cannot resist asking the noble Lord whether his squatting experiences in Brighton make him liable to be stopped by PC Plod at the gates of Dover. I am sorry, but I find a certain amount of hilarity in that. The fact that there are certain ironies and amusing jokes to tell in connection with these matters is about the only saving grace of the Bill.

The Minister's previous life is his own and is well past. As I said on Second Reading, he is now a pillar of the establishment; he is a Home Office Minister and as clean as the driven snow. He is an able member of this administration. So why should his previous experience of prancing around the Brighton courts of justice wearing an illuminated red nose stop him going to football matches? That is what the new section says. I concede that I find it hysterical, but it is not good law. If, suddenly, the noble Lord, Lord Bassam, is on the ferry to Brighton, it is deeply unfair that "Plod" could come along and take him off. Indeed, it would be grossly unfair to the noble Lord. I still think that this is the most wretched section in a wretched Bill.

Lord Phillips of Sudbury

My name is attached to this amendment. I do not wish to detain the Committee for very long, except to mention briefly some of the instances in which, as drafted, the new section could give rise to banning orders, or applications for them. That situation worries noble Lords on this side of the Committee and also, I suspect, those on the Minister's side. I have in mind student demonstrations in particular. For example, we had the recent demonstrations on student fees and the demonstrations that took place when the president of China visited this country. On the latter occasion, many students were shunted around various university towns with some vigour by the police. Indeed, some students reacted vigorously to the police attempts—and their success—in preventing them from exercising their normal civil rights of peaceful demonstration.

As drafted, there is no doubt whatever that it would not take a high level of activism on the part of the students involved in those demonstrations for them to fall within the scope of this section and its definitions. I am afraid that it returns us once again to new Section 14B(2), where the conditions upon which to base an application for a banning order are so low, so undemanding, as to place it in a unique category of harshness and "illiberty". I just wanted to add those words to the eloquent way in which my noble friend introduced the amendment.

Lord Cope of Berkeley

This amendment would knock out the whole of new Section 14B. There is a following series of amendments that we shall discuss shortly that deals with the individual words and phrases involved, so I shall not go into that detail at present. However, the question remains as to whether or not banning orders should be made. After all, we are talking about the magistrates' court making such orders on an application made by the relevant chief officer of police.

Although the hurdle in new Section 14B(2)—namely, whether the person concerned has, caused or contributed to any violence or disorder"— as defined by new Section 14C, is extremely low, the hurdle that will really matter is that contained in new Section 14B(4)(b), which says that such an application can be made to a magistrates' court if, the court is satisfied that there are reasonable grounds to believe, that the person will contribute to such violence. That condition will be quite difficult to satisfy; indeed, the chief constable may have difficulty in explaining why he thinks that someone will be responsible for violence or will get involved in violence in some way in connection with a football match. That is much the higher hurdle, although it is not all that high.

I believe that this particular banning order provision is less offensive than some of the provisions in the new Section 21A of a constable detaining a person. As regards new Section 21B, that allows a constable to prevent someone going to Scotland or further afield until magistrates have had the chance to consider it. If new Section 14B is left in, then something like new Section 21B must also remain in the Bill. It at least has the merit of the magistrates deciding the matter on the basis of admittedly not very high hurdles.

2 a.m.

Lord Woolmer of Leeds

May I take the opportunity given by this amendment to ask the Minister to deal with one or two matters of the process under the slow route. This amendment relates to the complaints system. Initially it concerns the slow route but later we come to the fast route. Can my noble friend explain a little of the process that he envisages operating under the slow route?

If someone has been found guilty of violence or is likely to cause it, and that is connected with football, I can well understand that that person may be identified and a case brought against them in a magistrates' court. But a person may not have been convicted of violence in connection with football, as we heard during the Second Reading debate and today, and a very high percentage of the population fall into that category.

I am still a little puzzled as to how people who are not connected with football violence are identified. In the arguments put forward for this legislation, it was observed that people involved in the European championship violence had not been suspected of violence in connection with football. In other words, the conundrum that the Government are seeking to grapple with in this legislation is dealing with the people who have no obvious and immediate link with football violence abroad. I am trying to understand in my own mind what advice the Minister is receiving from the police or other authorities about identifying people who, on face of it, have nothing to do with such violence. I would not know where to start.

International football is rather different from club football. From my experience, as regards international football a large group of people follow England abroad. Everyone has voiced concern about the England supporters' club. Many others follow, but it is thought that often they do not follow club teams, but the national team. I can well imagine that they could be identified.

As regards club football, very often it is not known until two or three weeks beforehand that a club is playing abroad. Bradford City has just won through the interminable Inter-Toto competition to qualify for the UEFA cup. That club won a game this week and I believe that it plays another next week. If it had lost, the question of further banning orders would not have arisen, but, if it goes through, presumably people will consider whether there might be others going to the games who should be considered for banning.

As I explained some time ago, I understand the general thrust of, and need for, the legislation. However, I am genuinely concerned as to how the measure will apply. How is it envisaged that these people will be identified when many of them have not been convicted of football violence, and when, as regards club football, decisions have to be taken in a fairly short time frame and not at leisure over several months? How is a calm and measured inquiry to take place within that short time frame?

Lord Phillips of Sudbury

I hope that the Committee will forgive my speaking again. However, as the noble Lord, Lord Woolmer, spoke, it occurred to me that a Member of this House and a Minister in the other place would, in their time, have been caught slap bang by the legislation. I think of David Steel and Peter Hain, both of whom were engaged in anti-apartheid demonstrations, particularly in relation to rugby. Am I not right in thinking that both of them would have been caught slap bang by the provisions of new Section 14B and by the second test mentioned by the noble Lord, Lord Cope; namely, that a court would indeed be satisfied that there were reasonable grounds to believe that making a banning order would help to prevent … disorder … in connection with any … football matches"? Is that not a worrying example of the way in which this legislation could—I suspect that, if the legislation had been in force at the time, it would have been used in this way—have been used to close down the civil demonstrations that I mentioned?

Lord Bassam of Brighton

This amendment would have a fairly devastating effect if passed. It would remove a significant chunk of the legislation. I accept entirely the sincerity with which the amendment has been moved. That sincerity overshadows the wider debate. I obviously cannot accept the amendment. The present law has clearly not proven adequate to deal with the problem. Sometimes when I hear noble Lords speak from the Opposition Benches, be they Conservative or Liberal Democrat, I almost think that they imagine that there is no problem to deal with. I am rather surprised at that. I believe that a noble Lord said that there was uncertainty about what happened at Charleroi. I do not think—

Earl Russell

I am grateful to the Minister for giving way. I have already this evening, and at Second Reading, specifically disowned the interpretation that I do not think that there is a problem. My question is: does the Minister have a solution? That is a legitimate question.

Lord Bassam of Brighton

It is indeed a legitimate question. However, I do not think that there is any uncertainty about what happened at Charleroi. There is a problem which has been identified. We believe that this legislation, and other steps and measures that we might want to take in the future, will be part of that solution, just as each piece of anti-hooligan legislation that has been added to the statute book over the past 15 years is an attempt to find that solution. I do not pretend that that is easy and I do not pretend that there are easy answers to the questions that have been raised. New Section 14B is a carefully structured, measured and balanced attempt to prevent those who engage in hooliganism from continuing to do so.

The noble Earl, Lord Russell, asked about the term "contributed to". In the context of this legislation, the term "contributed to" means, "took part in the disorder but did not necessarily initiate or lead it". So someone would be involved in the action, as it were, without necessarily being the leader of it or initiating it; nevertheless he would have made a contribution to it. I think of the scenes I witnessed in Charleroi, where people who were not necessarily inciting or leading acts of violence or public disorder were certainly involved and without doubt contributing to that disorder. So the term does play an important part in this legislation.

The noble Lord, Lord Woolmer, referred to violence in other circumstances. Yes, of course, it is part of our argument that if someone has acted in a violent or disorderly way in other situations, that may well be a consideration that would lead to them being affected by a banning order made on complaint. That is indeed part of our argument—I do not deny that at all. If they have been involved in public disorder of a violent nature in other circumstances, and they have a violent nature and disposition, it is likely that they will repeat that kind of behaviour—perhaps fuelled by alcohol—in the circumstances surrounding a football match, particularly an international football match, which is where the major part of the problem now rests. That is another reason why this proposed new section is of importance.

I shall not rise to the provocation that the noble Earl, Lord Onslow, is poking in my direction about being an ex-squatter. He clearly does not understand much about my past or about the political activity in which I have been involved for the past 20 or 30 years. It is one of those things; he does not know me terribly well.

The noble Earl made a suggestion about this particular proposed new section: that allowing the police to take action to prevent the possibility of violence or disorder would be contrary to our constitutional traditions. That point was fully answered at Second Reading by my noble friend Lord Mackenzie, who pointed out that the police have had common law powers since time immemorial to prevent crime or breaches of the peace. As I have said, this power is entirely within the traditions of British policing. It is workable for that reason.

The Earl of Onslow

I shall not make further jokes about squatting at this stage. I think that joke has nearly run its course. I may be tempted later, but on this occasion I shall not be tempted further.

What the noble Lord, Lord Mackenzie of Framwellgate, said about the common law powers of arrest was comprehensively demolished by one of my noble and learned friends, who pointed out that that involved an arrest, followed by a charge, followed by conviction or acquittal. This is not the same. That is why the argument produced by the noble Lord, Lord Mackenzie of Framwellgate, at Second Reading was faulty.

Lord Bassam of Brighton

The noble Earl is entitled to his opinion. I believe that the noble Lord, Lord Mackenzie, made an important point.

This proposed new section is important and valuable. I cannot support the notion that it is a low test. The noble Lord, Lord Cope, made quite a good case for this proposed new section; he seemed to think that the test in proposed new Section 14B(2) was a higher test. I agree with him; my reading of it is much the same as his.

Noble Lords are quite entitled to push this point. However, I believe it would considerably undermine the effects of the legislation and that the noble Lords who have moved the amendment understand that. If they are serious about making a contribution to tackle the problem, they will reflect on this matter, withdraw the amendment and not pursue it any further.

Earl Russell

I thank the Minister for that reply. I thank him for trying to be as helpful as he could be about the phrase "contributed to". He has narrowed the area of my uncertainty; he has not removed it. Before replying to the amendment, I wonder whether I could ask him to narrow it a little more. I respect his desire not to make any reply about his own case. That is perfectly proper.

Perhaps I could ask him to reply further on the case of Mr Gummer. Mr Gummer happened to be in the wrong place at the wrong time. When he talks about being involved, is he talking about criminal activity; is he talking about being an accessory before or after the fact to criminal activity; or can one be ruled to have contributed to disorder simply by being in the wrong place at the wrong time? That is a question of which the Minister must have had notice. Mr Gummer's speech was, after all, made about a week ago. It is material to what I do tomorrow to know what the answer to that question is. Therefore, if the Minister is able to enlighten me further I should be grateful.

2.15 a.m.

Lord Bassam of Brighton

Famously, I am not a lawyer. I should think that the actions of someone involved in a demonstration would be extremely important; whether they were acting in a disorderly way; whether they were being provocative; whether they were inciting others; whether they were encouraging others to acts of violence; or whether they were intimidating in some way. Those circumstances could be described as contributing to violence or disorder. Mr Gummer was probably the right person in the right place at the right time if he was protesting in the way in which I suspect he was. No doubt he had a good cause as well. I am not entirely convinced with the example the noble Lord, Lord Phillips, raised about Peter Hain. I think that Peter Hain's leadership of the anti-apartheid movement was something of which he was probably rightly proud, and many others were too. It was certainly a noble cause and one which I am sure Members of the Committee will have supported. I do not think that one would necessarily transpose Mr Hain's activities into contributing or making it plain that he would have been a contributor to violence in and around surrounding football matches, certainly in the circumstances in which we envisage this law to operate.

Lord Phillips of Sudbury

I was not seeking to disparage Mr Hain, rather the opposite. I was a strong supporter of his courage then and would be now. This is not unimportant because the Minister constantly refers to violence. This new section deals with disorder and violence. Disorder is defined, I repeat, in a most modest way, as, using threatening, abusive or insulting words or behaviour or disorderly behaviour". Those demonstrations in the days when Peter Hain was on the barricades were certainly disorderly behaviour within that definition. There are no two ways about it. Therefore, it demonstrates the kind of conduct which is perfectly lawful and yet falls within the new section. That is why the noble Earl, Lord Russell, and myself are moving the amendment. As he has already said, we must withdraw it. But I did want to try and put that part of the debate on a proper level.

Lord Woolmer of Leeds

The noble Lord quoted the Hain case. Even if that behaviour was thought to have a degree of disorder about it, that is not itself an action that would actually result in a banning order. It could only result in banning if, the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence and disorder at or in connection with any regulated football matches". Frankly, the case being made simply does not bear examination. There is no connection between the two. I honestly think that that is a red herring. I am more concerned with people who genuinely have some violence in their background. The authorities will have to be able to choose out of the tens of thousands of people who have a violent background but do not have convictions the few that they will ban. However, I believe that the Hain case is a red herring.

The Earl of Onslow

New Section 14C(3) states: In this Part, 'violence' and 'disorder' are not limited to violence or disorder in connection with football".

Earl Russell

I thank the Minister for doing the best he could about the words "contributed to". He has reduced my anxiety. If he were able to come here tomorrow with explicit legal advice on that point, I would find it even more helpful.

I thank the noble Lord, Lord Woolmer of Leeds, for an extremely helpful and thoughtful contribution. If there is a solution to the points we are debating, it is along the lines that he is thinking that we would be most likely to find it. On the other hand, I am not so sure that the case of Mr Hain is a red herring, though it seems to me that in the event he will personally be protected by the Government's amendment, which I welcome in advance, to introduce the principle of spent convictions. But were someone to have done something like that rather less than 10 years ago, the same principle could still apply. Even granted that Mr Hain is now an extremely respectable citizen, I could imagine certain former Springbok forwards who might regard his presence as being of itself provocative. There is that aspect of the matter to be considered as well.

The biggest problem is not just the question of the standard of proof but that we are being asked for proof of something for which proof cannot possibly be found. In subsection (1) we are asked for proof that something is likely to happen in the future. That is called "bookie's odds". What really worries me is that a court is being asked not to make a finding of fact but to make a bet. We all know that there are a good many rich bookies and there are very few rich punters. As everyone who has tried to make a living out of the study of the form book knows perfectly well, even the best evidence you can collect does not necessarily make a bet justifiable. When you are asking for evidence to prove the validity of a bet, you are asking for something that is by its very nature uncertain. That is at the heart of our misgivings about this provision and the Minister's remarks have not altogether removed them. We shall need to return to this matter tomorrow. But what happens when we do will depend a good deal further on what advice the Minister has received. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 23:

Page 5, leave out line 32.

The noble Lord said: In moving this amendment I should like to speak also to Amendments Nos. 46 and 48. These amendments are brought forward in response to an amendment put down at Report stage in another place by the right honourable Sir Nicholas Lyell. Concerns were raised in another place about the prospect of the court taking account of spent convictions or of conduct which was many years in the past. Convictions which are spent under the Rehabilitation of Offenders Act 1974 will not be admissible in proceedings by complaint because they are civil proceedings. That is the effect of Section 4(1) of the Act. The Government accept that it would not be right to take into account conduct which took place more than 10 years before the application unless that conduct led to a conviction which is not spent. That is the combined effect of the amendments. I commend them to the Committee. I say in passing that the two examples—perhaps even the three examples—that were given in the preceding interesting but long debate were quite irrelevant. I beg to move.

Lord Cope of Berkeley

I think of this grouping as the "Gummer protection amendments", although perhaps they could equally be described as the "Hain protection amendments". They should appeal to all parties. They certainly appeal to me.

Lord Lucas

Had the noble Lord, Lord Bassam, proposed the amendments, I should not have risen to ask my question. That is because the noble Lord resembles at all times a gentle and bucolic farmer, full of reasonableness and sunny weather. On the other hand, the noble Lord, Lord Bach, resembles nothing so much as his noble friend's half-demented sheepdog, ever ready to go for one's ankles. I ask the noble Lord, therefore, whether he has anything to declare as regards these amendments. Will the amendments spare him from attention under this part of the Bill?

Lord Bach

I do not know where to begin. At this hour of the night I have no intention of biting the noble Lord's ankles—or those of anyone else, for that matter. I have nothing to declare here. What was it that Oscar Wilde said? "I have nothing to declare" at all.

On Question, amendment agreed to.

The Chairman of Committees

Before I call Amendment No. 24, I should point out to the Committee that if this amendment is agreed to, I shall not be able to call Amendments Nos. 25 to 29 inclusive.

Lord McNally moved Amendment No. 24:

Page 5, line 33, leave out ("caused or contributed to any violence or disorder") and insert ("been convicted of an offence involving violence or any other relevant offence").

The noble Lord said: We have had a thorough debate on new Section 14B. This amendment makes clear its intention; that is, it seeks to replace in new Section 14B(2) the words, caused or contributed to any violence or disorder", with the words, been convicted of an offence involving violence or any other relevant offence". The reason was covered in our earlier debate. The term, caused or contributed to any violence or disorder", begs the question: if an act warranted a prosecution, why did not that take place at the time? If the act did not warrant a prosecution, why should it be resurrected subsequently to justify a banning order?

My colleagues in another place argued strongly that they would be much more satisfied if this provision was based on an offence. I must tell the Minister that we feel the same. I beg to move.

Lord Lucas

Amendment No. 25, tabled in my name on the same subject, is not nearly so well drafted as Amendment No. 24. Perhaps I may say only that I entirely support what has been said by the noble Lord, Lord McNally. His amendment receives my backing.

As regards my other amendments in the grouping, the noble Lord, Lord Bassam, knows that I shall speak to them individually, although it may be that one or two have already been covered and so I shall not need to move them. They embrace too many different subjects for my brain to encompass at this time of night. I promise to be as quick as possible when we reach them.

Lord Goodhart

I rise briefly to speak to Amendment No. 47 which has been included in this grouping. It has been included purely for drafting purposes.

On page 6 at line 23, the Bill states "or Section 15(2A) below". The problem is that there is no "Section 15(2A)below". Paragraph 2 of Schedule 1 states: For section 14 … and sections 15 to 17 there is substituted". Then follows new Section 14, followed by new Section 14A and on up to new Section 14J, but there are no new Sections 15, 16 or 17 in the Football Spectators Act as amended. For that reason, there can be no "Section 15(2A) below".

Lord Monson

Except for the "super alert", it is difficult to get one's priorities right at this time of night—or rather, this time of morning. However, it seems to me that Amendment No. 24 and alternative Amendment No. 25 are exceptionally important. I hope that the movers of those two amendments will not be satisfied with being fobbed off tonight and will return to them and press them hard tomorrow.

Lord Phillips of Sudbury

The noble Lord, Lord Campbell of Alloway, has had to leave and he asked if I would speak to Amendments Nos. 30 and 31 on his behalf. I am happy to do so. The wording of the amendments is admirably clear. I do not propose to enlarge on either of the subsections that he suggests should be added to the Bill. The second of his amendments is largely technical.

I have added my name to Amendment No. 37 standing in the name of my noble friend Lord McNally. The amendment is unhappily grouped with Amendment No. 24, which requires a conviction in order that a complaint can be laid under proposed new Section 14B as opposed to the present provision which we have debated ad nauseam.

If Amendment No. 24 is accepted, it will remedy the principal and major defect of proposed new Section 14B. As that stands at the heart of the Bill, there is no more important amendment than Amendment No. 24. If, however, the Government are not minded to accepted Amendment No. 24, and if when it comes to the showdown tomorrow—or rather, today—the vote on Amendment No. 24 is lost, my amendment, which is of lesser consequence to proposed Section 14B, comes into relevance.

I have drawn the points in Amendment No. 37 from the Public Order Act 1986, which gives the respondent who is in effect charged with disorderly or violent conduct in circumstances where there has been no conviction a defence or defences as set out on the grounds that: he had no reason to believe that there was anyone who was likely to be caused offence, alarm or hurt; that his conduct was reasonable; and similarly, that there was intent. As proposed new Section 14B stands, there is no requirement for intent any more than there is a requirement for proof of conduct beyond reasonable doubt. I am sorry to have to complicate my explanation of Amendment No. 34, but it is inevitable in the light of its being grouped with Amendment No. 24.

Lord Woolmer of Leeds

Before my noble friend the Minister responds to Amendment No. 24, will he confirm that I am right in thinking that this would mean that some of the hooligans we saw heaving tables and chairs during the European championships in Brussels and Charleroi who would not suffer a conviction could not, therefore, have evidence brought to hear on whether they were regarded as able to have a complaint brought against them? That would seem to be a staggering consequence of that amendment. I cannot possibly believe that it would be the intention. That is probably the most blatant thing that the public would expect us to grapple with.

Lord Lucas

If we are to go down the road proposed by the noble Lord, Lord Woolmer, why have new Section 14B(4)(a) at all? Why do we require that such people should be in the 50 per cent or so of the population who have a conviction or have otherwise indulged in bad behaviour? Why not just say that so long as we have evidence that people should not be at a football match, they can be served with a banning order?

Lord Woolmer of Leeds

Perhaps I may respond to the query raised by the noble Lord. New Section 14B(2) specifies a condition subject to which a complaint can be lodged. Under subsection (4)(b), once a complaint has been lodged, a judgment must be made by the court as to whether a banning order should be made. Those are two quite different matters. New Section 14B(2), which would be amended by Amendment No. 24, would be changed in such a way that if somebody was seen on television to be throwing tables, chairs and stones, a complaint could not be lodged so that at least a court could decide whether such a person would cause disorder. That seems to me to be an extraordinary result.

Lord Cope of Berkeley

I do not believe that the court would have all that much to consider in such a case. If there was clear evidence that an individual had been throwing chairs or stones, he would certainly fall within the first of the conditions, essentially new Section 14B(2). It would have to be proved that he was the person in question. Provided that the court was so satisfied, he would easily fall foul—I was going to say "clear the hurdle"—of subsection (2). The other condition in subsection (4)(b) would also have to be satisfied. That seems to me to be the more difficult condition in this Bill. This whole series of amendments seeks to tighten the wording in one or other of the provisions of new Section 14B, although one or two refer to subsequent matters. For the most part, these amendments tighten the wording of one or other test in new Section 14B.

The Committee must decide whether it believes that the conditions are too weak. The first is extremely weak, and the second will be difficult to satisfy. That is the one to which we should give closest attention. Anyone who has been proved to be throwing chairs about should be considered in this respect, and to that extent I agree with the noble Lord, Lord Woolmer.

Lord Monson

Before the noble Lord, Lord Cope, sits down, does he agree that in some cases the video evidence of what happened at Charleroi may be wholly reliable so that identification is unambiguous but that in other cases it may not be? In the absence of any other confirming evidence, it may well be that two people of similar appearance are confused and, therefore, that the wrong person is banned.

Lord Cope of Berkeley

The noble Lord is quite right. It is for the court to decide whether it believes, on the balance of probabilities, that the respondent was the individual in question. That is something which courts must decide all day and every day, as it were.

Lord Bassam of Brighton

So far in this debate the Committee has considered Amendments Nos. 24, 25, 30, 31, 34 and 37. I shall address those amendments and wait for the others to be moved or spoken to in due course. Amendments Nos. 24 and 25 limit the scope of new Section 14B to the imposition of a civil order on the basis of conviction. The hooligans who fought pitched battles in Copenhagen and acted so offensively in Belgium were not convicted of their deeds despite substantial evidence against them. As the law stands, however, the police and courts are powerless to act. I agree with the interpretation of my noble friend Lord Woolmer. If Amendment No. 24 were passed, that would continue to be the case. Therefore, Amendments Nos. 24 and 25 should be resisted.

The noble Lord, Lord Phillips, kindly spoke to the amendments in the name of the noble Lord, Lord Campbell of Alloway. We take the view that those amendments are unnecessary. It is obviously necessary that the respondent shall have a clear idea of the matters to be alleged against him where an application for a football banning order is heard. We intend to prepare a standard form for the application and in due course to incorporate it into the magistrates' courts rules. That seems the most sensible way. However, I fear that we cannot promise that a copy of the application shall be served on the respondent at least 14 days before the hearing of the application, as would be required by Amendment No. 31. If a local police force became aware just a few days before a football tournament that a local troublemaker with no previous record of football disorder was proposing to attend, the powers in new Sections 21A and 21B could be relevant. In those circumstances, a 14-day rule would become impractical.

When a standard form for the application is prepared, the question of time limits will need to be carefully explored. In the meantime, I invite the noble Lord to withdraw that amendment on behalf of the noble Lord, Lord Campbell of Alloway.

Amendment No. 34 would create uncertainty where currently there is none. The courts are well used to applying the civil standard of proof. To invent a new test just for this purpose seems to be unnecessary. It will prevent the imposition of banning orders in at least some cases where the civil standard of proof would be satisfied. That is in our view entirely undesirable. Therefore, we cannot support that amendment. We do not think that it would be conducive to securing the objectives of the legislation.

The noble Lord, Lord Goodhart, spoke to Amendment No. 47. He raised what seemed a sensible point. However, there is an explanation and I shall endeavour to give it. The noble Lord asked why there was a reference to Section 15(2A) of the 1989 Act in new Section 14C(5). Subsection (5) is there apparently to ensure that where a court on conviction has had power to make a banning order but does not do so, a subsequent court on an application by complaint must take account of the grounds on which the earlier court made that decision. That would have been by virtue of Section 15(2A). This is a safeguard apparently for the individual. The section refers to a statement under new Section 14A(3) which will replace Section 15. But in order to cover convictions under the present law it also refers to the sections of the Football Spectators Act and the Public Order Act which apply at present. I think that that clears up the mystery. When I read the note after the noble Lord's explanation, and when we checked, I believed that it covered the point. It covers the time when that section was in existence.

Lord Goodhart

I am grateful to the Minister for giving way. I still think that there is a drafting problem. If one considers the legislation as it will be after the amendments have been incorporated, there will be no "Section 15(2A) below". The Bill needs to be redrafted to make some reference to Section 15(2A) in the Act as it existed before it was amended.

Lord Bassam of Brighton

I shall check that we have got it right and give an assurance later today.

Lord McNally

I make two brief points on Amendment No. 34. The noble Lord, Lord Woolmer, urged us earlier against putting too much emphasis on the numbers deported from Charleroi implying that a number were innocents caught up in a general hoovering up by the Belgian police. Yet he now seems to imply that at Charleroi there is evidence which could be used in the banning order. That dilemma concerns us, which is why we want provision made for a criminal conviction. The Bill is very subjective as it stands.

It is increasingly clear that we would not have this legislation—certainly not in this helter-skelter, end-of-Session way—but for Charleroi, yet that was not the only game in Euro 2000 in which England was involved. One wonders whether poor policing and different access to alcohol were factors.

We must not think of the Bill as elephant powder. Your Lordships may recall the story of the man found by his friend to be throwing powder over the ground. Asked why, the man replied, "It keeps the elephants away". His friend said, "There isn't an elephant within 500 miles". The man replied, "I know. Isn't it marvellous stuff?" There seems to be a feeling among Ministers that if they sprinkle the elephant powder that is the Bill, disorder will disappear.

The Minister and I are in agreement that the Bill may work—but only as part of a package that covers better policing, access to alcohol and a range of related matters such as the media and the behaviour of the police and footballers. The noble Lord, Lord Monson, has urged us to return to the issue tomorrow. We certainly will. My noble friend Lord Phillips has passed me a message saying, "Extra-territoriality will deal with the Woolmer point". He will return to that tomorrow as well. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 25 and 26 not moved.]

2.45 a.m.

Lord Lucas moved Amendment No. 27:

Page 5, line 33, after first ("or-) insert ("significantly").

The noble Lord said: Amendments Nos. 27 and 29 have the intention of raising the hurdle that has to be cleared under new Section 14B(2). Banning somebody who just contributes to violence or disorder is to set the hurdle very low. One can get caught up in a demonstration in which others are throwing stones and the police decide to react—as was shown by the poll tax or miners' strike demonstrations. One thinks also of the involvement of the noble Baroness, Lady Dean, in various activities against Murdoch at Wapping. Using "contributed" without a qualifying adverb puts the test far too low.

To leave the words "any violence or disorder" unqualified invites a low test in regard to someone who may have done little. He or she might have made a rude or abusive comment to a policeman who was causing inconvenience in their drunken progress down a street—the person, not the policeman. One can be tripped up by a little thing. It seems to me that we are talking about people who have done something serious.

I have no particular attachment to these words, nor do I have an attachment to a clause which gathers in such a wide variety of ordinary misdemeanours and discretions that should not qualify a person for attention under it. I beg to move.

Lord Cope of Berkeley

It is not a novel point, but we are faced with an extremely low hurdle. Under the definition of "disorder", the provision will affect not only the person who suggests that the referee needs a new pair of glasses but also somebody who laughs at that person. In laughing, that person will encourage the first person to make another similar remark. That is contributing to someone making an insulting remark. No series of actions is involved, making the hurdle extremely low.

Lord Monson

I support the noble Lords, Lord Cope and Lord Lucas. Often one hears of cases, perhaps second hand, of generally peaceful demonstrators who have never used violence but who on seeing a women pushed by a policeman instinctively rush to help her and push the policeman away. That is totally out of character with no violent intent; it is just gallant behaviour instinctively coming to the fore. They would he caught by the wording as it stands. I believe that the amendment is valuable.

Lord Phillips of Sudbury

I, too, associate myself with the amendments. They appear modest but are important in the context of the definitions concerned.

The Earl of Onslow

According to the Bill, such disorders can take place anywhere in the world. Page 6 states: any decision or tribunal outside the United Kingdom … any decision of a public authority, whether in the United Kingdom or elsewhere … deportation or exclusion from a country outside the United Kingdom … removal or exclusion from premises used for playing football matches, whether in the United Kingdom or elsewhere … conduct recorded on video or by any other means". The hurdle is a nano-hurdle, no higher than that! I cannot see how any government with any sense of liberality cannot raise it to at least an inch.

Lord Lucas

It occurs to me that Amendments Nos. 39 and 40 also cover the ground. If the noble Lord wants to cover them in his reply, that would be fine.

Lord Bassam of Brighton

At this early hour of the morning, I am grateful to the noble Lord for speeding things up a little. I am casting my mind back to when I worked in a law centre in the early 1980s. We occasionally provided legal aid, support and advice to people involved in demonstrations against the National Front. From time to time we had to help to perfect a defence and there were occasions on which I thought the police had been a fraction over zealous in affecting an arrest. I cannot remember our success rate, but it was not poor. In those days, the courts were probably more reluctant than they are now to come to the aid of a defendant.

On reflection, I thought that in most circumstances the cases were resolved satisfactorily. We were able to put our arguments effectively and where there was a good case, we were able to secure an acquittal. I am struck by the fact that the court must now satisfy itself, as it had to then, that, on the evidence of an officer, the defendant played a leading role in provoking, inciting or encouraging violence of the kind that led the officer originally to make the arrest.

Lord Phillips of Sudbury

Is it not true that in the cases to which the noble Lord refers it was the criminal test of which the police had to convince the magistrates?

Lord Bassam of Brighton

That is, of course, the point. However, I am trying to suggest that, by and large, courts take their responsibilities very seriously, and the question to be asked is whether a person played a clear part in encouraging, initiating, leading and inciting. I believe that the type of descriptions which noble Lords have used that might cover what they view as a low threshold are unrealistic and extremely unlikely. I do not believe that the power will be used in the way that noble Lords have suggested.

As will have been obvious from my contribution to debates in various guises over the past few months, I have a great concern for people's civil liberties. Throughout my life I have played a part in protecting them. I am certainly not willing to be part of a government who undermine those civil liberties.

However, we must consider the question of civil liberties in a broader context. While we protect the civil liberties of people whom we and noble Lords clearly consider to be worth protecting, we must consider that perhaps the way in which they have acted in the past has seriously infringed the civil liberties of people who have been confronted by some of that mindless racism, xenophobia and loutish behaviour. There is a balance to be struck and we believe that in this legislation we have that balance right.

As I said, I can well understand the concerns that have been expressed, but I cannot accept the argument that has been put forward. I believe that the courts will continue to act quite properly to protect people, as they have done over many years, in cases where a reasonable defence has been offered. I do not believe that courts will be impressed by the low threshold argument. The way in which this measure is set out provides more than adequate protection. The words which the noble Lord, Lord Lucas, seeks to add by way of description will do very little to assist and are entirely unnecessary. That is our argument.

Lord Lucas

I am grateful for that reply, although I do not agree with it. In his reply the noble Lord referred to "seriously disrupting the lives of others" or "playing a leading role in disorder". That is exactly the type of wording that I should like to see in the Bill; that is, some kind of quantification.

There is no doubt that together my amendments represent overkill and to some extent they duplicate each other. However, I hope that, with my noble friends on the Front Bench and the noble Lords on the Benches next to me, on Report I shall be able to put forward a form of strengthening to this part of the Bill so that what appears on the face of the Bill to the ordinary Englishman will be what appears on the face of the Bill to the skilled lawyer, as the noble Lord, Lord Bassam, doubtless is or would be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 28:

Page 5, line 33, after ("contributed") insert ("with intent").

The noble Lord said: This amendment introduces the notion of intent, which I believe to be important in relation to this matter. If one contributes to violence or disorder, I believe that there should be mens rea, as the lawyers express it, or intent, which I believe is a reasonable English equivalent. We are considering actions whose consequences are very close to crime. Even if we are not considering a criminal level of proof, we ought to consider a criminal level of involvement in the activity. Intent is essential to crime and should be essential to the offence that we are considering. I beg to move.

3 a.m.

Lord Bassam of Brighton

I am tempted by the amendment. It might go a little further than I would like, but I should like to reflect on it. There may be circumstances in which a contribution was made without intent and there may be others in which it was clearly intended. There may be a distinction between the two that is evident in the way in which the evidence is collected.

I am not sure about the amendment. I want to think further about the issue. I say that without making a firm promise one way or the other. The noble Lord may well have a point.

Lord Lucas

I am delighted to accept the Minister's words on that. I look forward to hearing what he has to say in 12 hours or so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 29 to 31 not moved.]

Lord Lucas moved Amendment No. 32:

Page 5, line 39, after ("met,") insert— ("() the respondent cannot demonstrate that those of his actions that are at issue in respect of subsection (2) above were reasonable in all the circumstances,").

The noble Lord said: I should like to hear the Minister's reaction to the suggestion that there should be a defence of reasonableness against the charges to be brought under new Section 14B(2). There are many occasions on which one might have acted rudely or abusively but with justification, particularly when the altercation was with someone who was behaving threateningly or being even more rude or abusive. That defence is commonly available in such cases and it should be available in the Bill.

Lord Phillips of Sudbury

I spoke to Amendment No. 37 earlier, but the Minister did not cover it when he replied to that group. It contains a similar provision to those in Amendment No. 32, just as it mirrored the provisions on intent in Amendment No. 28. It might be convenient if the Minister replied to both amendments together.

Lord Bassam of Brighton

Amendment No. 32 would allow the respondent to avoid having a banning order made against him under Section 14B if he could demonstrate that those of his actions that were at issue in the case were reasonable in all the circumstances.

I fully appreciate the concerns that lie behind the amendment. Evidence on video that one person had struck another with a stick and had therefore been involved in violence or disorder might well be tempered by the realisation that the act had been carried out in self-defence. However, I am sure that in those circumstances the person concerned would have the opportunity to ensure that the fact that he had acted reasonably was given its proper weight. The court must be satisfied that the imposition of a banning order would help prevent violence or disorder in connection with football matches. If the person has not previously been involved in violence or disorder, except to the extent that his behaviour could be regarded as reasonable, no court would ever make an order.

The noble Lord, Lord Phillips, invites me to respond to Amendment No. 37. It would allow a respondent to avoid a banning order if they could show that they had no reason to believe that any person was likely to be hurt, offended, alarmed or distressed by the violence in which they had participated or that their conduct was reasonable. It further provides that an order shall be ma de against such a person only if they intended their behaviour to cause hurt, offence, alarm or distress or were aware that it could have that effect. Proof of the mental element which this amendment requires is likely to be difficult whether the burden of proof lies on the respondent or the applicant.

The policy behind these measures is to focus on the behaviour itself and not on the reactions to it which other people may have had or, indeed, on the particular state of mind activating the person who is responsible. To accept the amendments would greatly impair the effectiveness of the powers under Section 14B. Therefore, I cannot invite the Committee to accept them.

Lord Lucas

I appreciate what the noble Lord said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

Lord Lucas moved Amendment No. 34:

Page 5, line 40, leave out ("there are reasonable grounds to believe") and insert ("it is substantially more likely than not").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 35. I shall return to Amendment No. 35 another day or, at least, at another hour.

The Minister addressed Amendment No. 34, although I had not spoken to it. The noble Lord has been pushing the whole subject of new Section 14B down to 14B(4)(a) and my noble friend Lord Cope of Berkeley also focused on new Section 14B(4)(b), which is the crucial test which must be met if someone is to be faced with a banning order.

In part, Amendment No. 34 addresses the old question of, "Let us have the Government say what the standard of proof is on the face of the Bill". Under these circumstances, someone has passed through the very light test, without any great weight to it, in Section 14B(2), and has arrived at this crucial point. He is someone with a small stain in his past and is faced with a two- to five-year banning order. That poses great inconvenience to him, given the number and duration of football matches and there is considerable social stigma. In those circumstances, there should be a rather higher standard of proof than the mere balance of probabilities.

On Second Reading, the Minister said that that would tend towards something which he described as a higher level of civil proof, closer to "beyond reasonable doubt". This is merely an attempt to arrive at that sort of wording. What the Minister said on Second Reading should, in some way, find its way into the Bill. I beg to move.

Lord Bassam of Brighton

As the noble Lord has acknowledged, I have already spoken to Amendment No. 34.

Amendment No. 35 would also seriously weaken the new powers by jettisoning the principle established in last year's legislation—which, I remind the Committee, this House supported—that, where a court believes that there are good reasons to impose a banning order, it must do so. It seems to the Government that, if we want these new powers to be effective, and I am sure we all do, it would be a mistake to countenance a situation in which the respondent's previous involvement in violence or disorder has been demonstrated and the court is satisfied that a banning order is likely to prevent violence and disorder and yet a banning order might not be imposed.

Therefore, I invite the Committee to reject the amendments because they fundamentally undermine what we are trying to achieve in this part of the Bill.

The Earl of Onslow

I think I am right in saying that the chap does not have to be proved to have been involved in violence, only suspected of that. I still find it quite impossible to understand how you can say with any fairness—and I think this is what the Bill says; I am sure the Minister will correct me if I am wrong—"We think that you are a hooligan who was involved in Utrecht. We cannot prove it but we have sufficiently strong grounds to think that you were and, therefore, we think that you will do that again in the future". I find that an incredibly low standard of proof. If the Bill says that, as I am certain that it does, I still have enormous difficulty. Anything that we can add to the Bill to raise that standard of proof, the better. It is impossible to prove what somebody will do. We must raise the hurdle over which they must go. I hope that my noble friend pursues this, if not now, certainly later.

Lord Phillips of Sudbury

I believe that the Minister has drawn a false analogy with the existing law. The same provision was in Amendment No. 19, but that related to new Section 14A, which applies only where there has been a conviction for a relevant offence. Here we are dealing with a situation where there is no conviction and no relevant offence. Therefore, there is all the difference in the world between the old legislation—which not unreasonably says that where there has been a relevant offence and a conviction, one must apply a banning order other than in exceptional circumstances—and the situation here where we are dealing with what everyone is calling the lowest hurdle: no conviction and, in many cases, no illegality. In those circumstances, we on these Benches feel strongly that the court must have that discretion. I remind your Lordships that in the comparable provisions under the anti-social behaviour order legislation the court has that discretion.

Lord Bassam of Brighton

I need to ram home this point. For a banning order to be made, new Section 14B(4)(a) requires it to be proved that, the condition in subsection (2) … is met". Although noble Lords do not accept that that is a particularly high burden of proof, that section states, caused or contributed to any violence or disorder". There has to be proof that that is the case. That condition must be satisfied for subsection (4)(b) to work. Noble Lords should consider the two in relation to each other.

The Earl of Onslow

The Minister is saying that the matter has to be proved. I thought that in English law one was innocent until proved guilty. Is the Minister shaking his head and saying that that is not the case? That was my impression. Surely, we are saying that if we suspect someone of having done something, but cannot prove it, we shall impose a punishment on him just in case he does something in the future. That encapsulates this section, and the noble Lord cannot understand those on this side of the Committee objecting to that. We should do anything that we can to make that suspicion-cum-extra-suspicion harder to achieve.

Earl Russell

If the noble Earl will forgive me, I shall offer a word of clarification. Hypothetically, it is possible that what is in new Section 14B(2) may be proved, subject to reservations about the words "contributed to" which I shall not explore again. It seems to me that new Section 14B(1) cannot possibly be proved because it is contrary to the nature of the case that any proof should exist relating to a person likely to contribute to disorder. That calls for a prophesy. A prophesy cannot be proved until after the event.

Lord Lucas

I am grateful to the Minister for his explanation. I still have considerable reservations in relation to the standard of proof for new Section 14B(4)(b). I believe that the Minister has expressed himself in words that I would be happy to support were they in the Bill. I hope that we shall manage to find a formula to put them into the Bill. I hope that the Minister will consider a way of achieving that too because there is no certainty that the court will decide that that is the standard of proof that is required by the Bill. On this matter we are subject to such conflicting whims. It appears to be a civil offence, so there should be civil proof—the balance of probability and 50:50—and not the strong civil proof as the Minister says. At the other end, it is clear that under Article 6 of the European Convention on Human Rights, it is a criminal offence and, therefore, the criminal test should apply.

It is very uncertain where an individual court will find itself between those two poles of ideas. It would be extremely helpful if the Bill contained some sort of waymark as to what the level of proof is supposed to be. New Section 14B(4)(b) is where that level should appear. I look forward to returning to this on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 to 37 not moved.]

3.15 a.m.

Lord Lucas moved Amendment No. 38:

Page 5, line 44, at end insert—