HL Deb 24 July 2000 vol 616 cc146-272

8.57 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Bassam of Brighton.) On Question, Motion agreed to.

House in Committee accordingly.

[THE DEPUTY CHAIRMAN OF COMMITTEES (Baroness Lockwood) in the Chair.]

Clause 1 [Football matches: prevention of violence or disorder]:

Lord Goodhart moved Amendment No. 1:

Page 1, line 11, leave out ("believes") and insert ("is satisfied").

The noble Lord said: I believe that I should speak rather slowly for a moment or two while Members of the House depart for more attractive occupations than that of listening to the proceedings at Committee stage of the Football (Disorder) Bill.

Amendments Nos. 1 and 33, grouped with it, concern the standard of proof required to obtain a banning order. Two elements comprise this procedure. First, what evidence is required of past behaviour before the banning order can be made? Later amendments in the list will propose that the necessary standard of evidence should be a conviction. The second element in the standard of proof is this. What evidence is required of the probable future behaviour of the person who is to be made subject to the order? Amendments Nos. 1 and 33 deal with that point.

At present, a court must be satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder. Where a banning order is clearly imposed as a punishment—that is the case where it is given as part of the sentence following conviction—I accept that having reasonable grounds for believing that making a banning order would help to prevent violence or disorder is sufficient. After all, the court is allowed to impose punishment and this is a form of punishment.

The situation is quite different where the banning order is made not as part of the sentence but on an application by the police for the making of a banning order based on past behaviour and prospective future behaviour. Clare Montgomery QC and Rhodri Thompson, in a thorough opinion given on the Bill for Justice—I declare that I am vice-chairman of the council of Justice—say that the application for a banning order is in effect criminal proceedings, even if not formally so, and is likely to be regarded as criminal proceedings by the European Court of Human Rights.

They say that the standard of proof for probably future behaviour, falls well short even of a civil standard of proof of the state of affairs justifying the order, namely, that the individual concerned intends to cause trouble at a match. It appears to us that the court should be entitled to make such an order only where it is satisfied that the order would have the desired effect, not where it is satisfied merely that there are reasonable grounds to believe that to be the case". I believe that part of their opinion to be both good law and good sense.

Amendments Nos. 1 and 33 make it clear that in a case where a banning order is sought on an application, that banning order cannot be made unless the court is satisfied that the suspect intends to cause violence or disorder. I beg to move.

9 p.m.

Lord Campbell of Alloway

I support unreservedly the amendment. It is not a question of having consulted with the noble Lord. There has been too little time in which to do that. The noble Lord is correct. According to the authority of Benham, in the view of the Court of Human Rights these proceedings are criminal proceedings. Therefore one is not only concerned with clarifying the burden of proof—my Amendment No. 31 does so—but also the standard of proof. My Amendment No. 31 does not do that; nor does this amendment.

As far as it goes, it is clear that the amendment should be accepted. As it stands, the Bill is totally unacceptable. It should be built on to establish the standard of proof.

According to the noble Lord, Lord Bassam of Brighton, the standard of proof will be the civil standard for certain parts of the Bill—I have here the reference to Hansard but the hour is somewhat late—but the criminal standard of being sure beyond reasonable doubt in other parts of the Bill. The noble Lord, Lord Bassam of Brighton, has never elucidated which parts of the Bill to which diverse standards will apply.

I support the amendment. However, it requires extension and clarification along the lines I have suggested. I understand that the introduction of the reverse burden is not involved. That was considered recently by the Appellate Committee of this House in Kiberlene.

We have a straightforward burden of proof which has to be proved by the applicant. The question is this: to what standard?

Lord Lucas

My Lords, I support the amendments without professing legal knowledge as to whether they are right and achieve the effect they set out to achieve. My Amendments Nos. 18 and 34—for some reason they are grouped elsewhere—address the same question.

It seems unsatisfactory that the matter is left unspecified in the Bill. A crucial aspect of the Bill involved the basis on which magistrates are to come to a decision. We are looking at a penalty which by all standards is a criminal penalty. However it is expressed, it will be as burdensome as a criminal sentence for the person subject to it. He or she will suffer exactly the same stigma, inconveniences and burdens which they could under a criminal penalty. That it should be called civil merely seems to be a form of words to which we should not apply ourselves. We should apply ourselves to the fact.

Given the tendency to assume that we should have a burden of proof which is beyond reasonable doubt, we may wish to step back from that: for the test not to be beyond reasonable doubt but heavier than the 50:50 standard civil regime. If we enter that territory we cannot leave it to fate to spell out. We cannot leave it to the Secretary of State's obiter dictum in some form of secondary legislation. It has to be on the face of the Bill. I do not express any preference for any form of wording. But we have to establish on the face of the legislation what the burden is to be.

Lord Borrie

I am not sure of the logic behind the amendments proposed by the noble Lord, Lord Goodhart, in drawing a distinction between banning orders made on conviction and those resulting from a complaint. The noble Lord and I are satisfied with the proposed Section 14A but he is not satisfied with proposed Section 14B.

If it is desirable to have as a preventive measure banning orders based on the respondent at some time having caused or contributed to violence at a football match or something else, it is logical that if the court is satisfied that there are reasonable grounds, there should be a banning order. I cannot see why the noble Lord draws a distinction. I have more sympathy with the amendments tabled by the noble Lord, Lord Lucas, which are designed to make clearer in the Bill the standard of proof cited in another place as being necessary to satisfy a court that a banning order ought to be made.

Lord Cope of Berkeley

I am not a lawyer but either the proof should be beyond reasonable doubt—the criminal standard—or on the balance of probabilities, which is the civil standard. The Government said on a number of occasions that they intend the lesser, civil standard. I do not find that anywhere in the Bill. Whichever standard is decided should be in the Bill, so there can be no doubt and/or a great legal argument through the courts at some point, in deciding the burden of proof. If the standard is not in the statute or made legally clear in some other way, it is no use the Minister thinking it ought to be one thing or another.

The second strand is whether or not there should be a different test for proposed Section 14B, covering banning orders made on a complaint, as opposed to Section 14A. I understand the argument that where an order is based on a conviction obtained beyond reasonable doubt—the criminal standard—it can be based on one set of words, whereas when the order is to be made on a complaint and the balance of probability in the first place, the wording may need to be different.

There is a clear difference between proposed Section 14B(4)(b), which states that the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder", and the words that would appear if Amendment No. 33 were adopted, which are the court is satisfied that making a banning order would help". That presents a bigger hurdle for the police to clear before a banning order could be put in place. As a lesser standard of proof would be required on the balance of probability, there is something to be said for Amendment No. 1. I await with interest the Minister's response.

Lord Bassam of Brighton

I disagree with the noble Lord, Lord Goodhart, because, on the ground of consistency, the Bill has got it right—as my noble friend Lord Borrie said.

Amendments Nos. 1 and 33 suggest that the test should be that the court is satisfied that a banning order would help prevent violence and disorder at future matches. The words "reasonable grounds to believe" were added by the Football (Offences and Disorder) Act 1999. It seems to me that it remains the right test and is reflected in new Section 14A. We need to have consistency between new Sections 14A and 14B. I do not believe that that part of the test for the court should be different following conviction and an application by complaint. There must and should always be the need for an objective ground for belief and for that reason I urge the Committee to reject the amendment.

9.15 p.m.

Lord Cope of Berkeley

It does not seem to me that there is consistency. The Minister says that there is because the words in new Sections 14A and 14B are the same. If the standard of proof required is different, the effect is different. It is not consistent. Although the standard of proof for new Section 14B is not on the face of the Bill, we are told that it is the balance of probability. To prove something on the balance of probability is one thing, but, where an offence is involved, to prove it beyond reasonable doubt, as the court would require, is not consistent. The words are consistent but the different standard of proof makes it inconsistent.

Lord Borrie

Surely there is a consistency. Whereas the conviction in new Section 14A must satisfy the criminal burden of proof, the requirement in subsection (2) that, the court is satisfied that there are reasonable grounds to believe that making a banning order would help", is the same as in new Section 14B. In other words, the civil burden of proof applies to both.

Lord Campbell of Alloway

May we put on one side, totally forget and ignore what we are told in this Committee the Government intend but is not on the face of the Bill? That is no way in which to approach legislation. We are repeatedly told that the Government intend the civil test. At Second Reading the noble Lord, Lord Bassam, when dealing with this issue, said that there are two tests; the civil test for some matters and the criminal test for others. We have no clarification about either.

The only way in which we can proceed in a meaningful and constructive fashion is to consider the Bill as it stands without what the Government intend.

Lord Mayhew of Twysden

The noble Lord, Lord Bassam, paid us all the compliment of responding in a most assiduous way to at least some of what was said at Second Reading. May I remind him of what was said by my noble friend Lady Hanham? She is a magistrate of considerable experience and she expressed the greatest misgivings about the problem which would face the court unless there was expressed on the face of the Bill the intended standard of proof.

The noble Lord, Lord Bassam, said that in certain circumstances the civil standard of proof will come upwards on the scale to something closely approaching the criminal standard. That is where it applies to matters of exceptional importance. That does not help a lay magistrate and it does not do much to help a magistrates' clerk.

Therefore, I beg the noble Lord to think again and to express on the face of the Bill in plain language what the standard of proof is intended to be in each relevant particular. Otherwise, we shall have what is a difficult and controversial jurisdiction for the police and magistrates to discharge made much more difficult and dangerous.

Lord Bassam of Brighton

Perhaps I may add a further point of explanation. As I explained at Second Reading, proceedings under new Section 14B are civil proceedings; they are proceedings initiated by complaint and not a prosecution for a criminal offence. There is common understanding of that. Therefore, the burden of proof is there for the civil standard. It is not practice to spell out the standard of proof in each statutory provision. For example, proceedings for an anti-social behaviour order follow the same procedure as that proposed in new Section 14B.

I believe that the burden of proof is something of a red herring. Of course a conviction must be proved beyond reasonable doubt but we move on to the test in new Sections 14A(2) and 14B(2). That part of the test is the same in both cases and means exactly what it says. That picks up and amplifies the point made by my noble friend Lord Borrie.

The noble and learned Lord, Lord Mayhew, was right to say that at Second Reading I reminded the House of the level of proof that we were seeking to establish and we stick by that higher burden of civil standard of proof. We believe that that is right and appropriate in the circumstances, and I quoted the noble and learned Lord, Lord Scarman, to that effect.

I am happy to take away the points that have been raised in this discussion and I shall of course do so. However, I believe that we are being consistent and that this follows on from something that is already established.

Lord Campbell of Alloway

In view of the discussion that we have had, I am most grateful to the noble Lord. When he takes away this matter, could he separate in his mind the burden of proof, which remains on the applicant and is not so stated in the Bill, in order to avoid the problem of the reverse burden which had to be considered in the case of Kibelene?

Secondly, having attended to that as a separate matter, will the noble Lord then deal with the standard of proof? The noble Lord refers to it as the "level of proof": it is the same thing. What level of proof is applicable to each relevant article of the Bill? We wish to know that by tomorrow when we must deal with the matter, and it will be crucial to our considerations. I apologise for labouring the point but it may save much time, not only today but tomorrow as well.

Lord Phillips of Sudbury

I hesitate to add to this already long debate on the first amendment. We may be here until a very late hour this morning. However, I believe that there is a misunderstanding in relation to the tests. Of course, the noble Lord, Lord Borrie, is right in saying that under new Section 14A there must be criminal proof beyond reasonable doubt before one reaches the second hurdle of civil proof under which one must be, satisfied that there arc reasonable grounds to believe". However, one must consider both tests together in each section in order to make sense of them. In new Section 14A there is a criminal test followed by a civil test; in new Section 14B there is a civil test followed by a civil test. The trouble with new Section 14B, as was said many times at Second Reading and as will be said many times tonight, is that the double test in new Section 14B—the civil test and the civil test—is simply inadequate to protect the citizen, particularly when in new Section 14B(2), to which the noble Lord, Lord Bassam, referred, that hurdle is pathetically low. It is simply that, the respondent … at any time … contributed to … disorder". Disorder is defined in the feeblest of ways and does not involve anything more than word or gesture. Therefore, I believe that there is a major difference in the tests when the two are considered together.

Lord Bassam of Brighton

I cannot accept that the test of disorder is feeble. I believe that words, gestures and actions provide a clear basis on which to form an opinion of someone's intent. I am surprised that the noble Lord makes the point in the way that he does.

Lord Phillips of Sudbury

First, no intent is provided for, although one of the amendments will provide it and it should be on the face of the Bill. However, "disorder" is defined as any insulting word, behaviour or sign. If the noble Lord, Lord Bassam, pretends that at no point in his early adult career was he guilty of an abusive gesture or insulting word, he is much more puritanical than I take him to be. I can certainly hold my hand up to a thousand insulting and abusive words, gestures, signs or placards, and any student demonstration will provide thousands who fall into that category. He really should not continue to say, and I cannot believe that he considers, that the tests under new Section 14B(2) are anything but derisorily low.

Lord Lyell

Perhaps I may intervene before the Minister attempts to answer what I believe to be a strong case put forward by the noble Lord, Lord Phillips. He is, after all, likely to appear on one side or another in the courts, eloquent as he is. I am pleased to see the noble Lord, Lord Mackenzie of Framwellgate. I believe that the Minister heard me say at an earlier stage that I had done things for which I must hold up my hand. However, at a game, I might make a gesture suggesting that the referee needed new glasses, with no intention of causing any sort of disorder. A word from a steward, or even from a constable, rising up to a police officer of the—if I can call it such—stature of the noble Lord, Lord Mackenzie, would be enough to deal with the situation. We are not talking about a calm evening such as this in your Lordships' House. People at a football game do not behave as one might tonight, let alone as one might at a symphony concert.

I understand what might be in the Minister's mind when he talks about abusive chanting or racial activity. However, if he is concerned about racial comments, he might wait until one of the great Glasgow clubs comes south and hear some of the songs that are sung.

I agree to a great extent with the noble Lord, Lord Phillips. I hope that at some stage—perhaps even at many stages—during the evening we shall hear the marvellous wisdom of the noble Lord, Lord Mackenzie, who must have had to deal with many of the practical issues that we are talking about tonight. No doubt he will be able to give us much practical help. I ask the Minister to bear in mind that people can say and do things at a football game with no intent to cause disorder. One tiny gesture with no intent can easily be dealt with by a steward and, in extremis, by a police officer.

Lord Goodhart

The debate has ranged rather wider than this narrow amendment. The noble Lord, Lord Borrie, asked why there was what he perceived as an inconsistency between our treatment of banning orders made under Section 14A and those made under Section 14B. The noble Lord, Lord Cope, explained why there was a legitimate difference. However, I should like to add a little more.

When someone is convicted of an offence involving football hooliganism, it would be legitimate for the Government to authorise a court to impose a ban on the accused going to a football match for a year or two years, regardless of whether there was any evidence that they were likely to offend again. After all, banning orders can be enforced on people convicted of careless or dangerous driving without any evidence that they are likely to reoffend. The Government have provided for a low standard of proof, but one could say that at least that is better than nothing, which would be legitimate.

The situation under Section 14B is different, because in that case the court is not imposing a further punishment for a previous conviction, let alone imposing a punishment for something that has not led to a conviction in the past. The foresight of what is likely to happen is an essential element in making the order. We propose that the court should be satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence. If there was reckoned to be a one in three chance that an order might help, that might be considered reasonable grounds. However, that would not satisfy the civil standard of proof, which requires that there should be a probability. If there was a two in three chance that making an order would help, that would satisfy the civil standard, but not the criminal standard. So it seems to me that the words "reasonable cause to believe" in Section 14B(3) set too low a standard of evidence required for the making of the order. That is why I moved this particular amendment.

Having heard the arguments—

9.30 p.m.

Lord Lucas

Before the noble Lord withdraws his amendment, if that is what he is about to do, I should like the opportunity to complete my arguments on this matter, having been so stimulated by what he has said.

Indeed, the Government should admit the facts of what is in the Bill. The new Section 14B(4)(b) condition is not subject to the civil standard of proof, as the noble Lord, Lord Goodhart, said. It is very much a sub-civil standard of proof. It exposes someone to what is, to all intents and purposes, a criminal penalty on the basis of an extremely loose definition of disorder, which includes using insulting words. All I need to say is, "Get lost, Lord Bassam", and I cannot go to a football match again.

I do not know whether the noble Lord, Lord Bassam, has ever been involved in an argument with a policeman or a traffic warden. Such an argument can become quite heated and you can find yourself having your words recorded. I am sure that I have been recorded as having insulted a policeman in the heat of the moment. It is a very little thing, arguing about whether you have or have not driven in a way that you should not have driven. It is extremely easy to disagree forcefully with the policeman who has stopped you, even though it may be considered unwise to do so. That will be recorded in the files and for ever afterwards, on the basis of that, under this Bill, anybody who has done that is recorded as having committed a new Section 14B(2) offence.

This measure provides a sub-civil standard of proof in subsection (4)(b) where anything reasonable enables the making of a banning order. That is a very light basis to apply to a matter which is a criminal offence. It may be argued that that is not so in technical terms but that is its practical effect.

The noble Lord has received a copy of the opinion which has been sought by Justice on the European Court of Human Rights aspects of the Bill. It is quite clear from that, in its discussion in paragraph 48, that it regards Article 6 as being quite definite in its application to this Bill in saying that this will be regarded, for European human rights purposes, as being a criminal proceeding. Therefore, for the purposes of the Human Rights Act, as we are about to have it in law, the standard of proof set out in new Section 14B for a person who is not a criminal will be wide of the mark and will not hold up under the Human Rights Act. That opinion must be taken seriously as the facts as presented to us by the Government, as opposed to the words which they stick to in the Bill, support that at every turn.

The Government should realise the bargain which they have struck with this House when it agreed to take this Bill through in the way that has been agreed. As a House, we have agreed that the Government will have their legislation. That must be on the basis of the Government co-operating, understanding and being responsive to the extreme difficulties which we find with some aspects of the Bill.

We must deliver a Bill which is acceptable in a very short time. It will be extremely difficult, indeed very time-consuming, if the Minister just sits there with his sheet of paper saying "Resist" and is not constructive and imaginative in his replies. We have very little time to deal with the Bill. I hope that the noble Lord and his advisers may take the time between now and when we return to this subject on later amendments to consider how they can respond positively to the points which have been made. Otherwise, they will find themselves stuck with wording in the Bill that they do not like as a result of amendments tabled at Report stage. Surely it is better that something is agreed now, that we have a constructive discussion and that the noble Lord realises the reality of the points that are made to him, rather than trying to pretend that they do not exist.

Lord Alexander of Weedon

With apologies for not having heard the beginning of the discussion on this amendment, perhaps I may add a few words. As I understand it, we are dealing with an issue which at its lowest is quasi-criminal. I cannot readily think of any aspect of the criminal law that is dealt with by a court on a foundation other than the foundation of proof. It seems to me that "belief" is not the same as "proof", whether proof to a civil standard or to a criminal standard. It introduces an unhealthy subjective element of opinion—not fact—to the decision-taking process and I suggest to the Minister that that would impair the credibility of the whole process.

Lord Goodhart

The debate has taken a slightly unusual course in having speeches not only after the Minister has spoken, but also after the mover of the amendment has spoken.

Lord Lucas

Perhaps I may point out that this is Committee stage and that everything that has been done is entirely in order.

Lord Goodhart

Even in Committee it is a little unusual to speak after the mover of the amendment. Having said that, it would be churlish of me to object because what the noble Lords, Lord Lucas and Lord Alexander of Weedon, have said on the matter has been put more strongly and more persuasively than I could. Therefore, I have little to add, except in relation to the Minister saying that he will take this matter away for consideration. I hope that he is serious about that because there is a real problem, particularly in relation to Section 14B, with the standard of proof required for the making of a banning order. On this occasion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 2:

Page 1, line 17, leave out paragraph (d).

The noble Lord said: This is the first of a group of amendments intended to delete altogether the summary power to detain suspected hooligans. The other amendments in this group are Amendments Nos. 9, 11 and 56, of which Amendment No. 56 is the main one because it leaves out the whole of the new Sections 21A, 21B and 21C which have been inserted into the Football Spectators Act 1989.

The summary power will enable a constable with no authority from any senior officer to detain any person during a controlled period relating to overseas football matches. The constable can detain if he has reasonable grounds for suspecting that the conditions for a banning order have been met and that a banning order would help to prevent violence at the regulated match. On the previous amendment we heard about the unsatisfactory nature of the words "reasonable cause to believe".

A constable can detain a suspect on his own authority for four hours and that is extendable to six hours with the consent of an inspector. With the consent of an inspector, the constable can order the suspect to appear before magistrates within 24 hours, not to leave England and Wales before then and to surrender his passport. The constable can arrest the suspect if he believes that it is necessary to do so in order to ensure compliance with the order.

These powers are draconian. They apply to British citizens only. Perhaps the Minister will explain why they are so narrowly limited, particularly as they plainly appear to be discriminatory on the grounds of nationality. There is no need to have reasonable grounds to believe that a suspect has committed a crime or intends to do so in the future. The effect of the order will be that the suspect will miss his flight or train. Even if no banning order is made by the magistrates and he can obtain a new ticket, he may not be able to afford one and get to the match in time.

Why and how will the power be exercised? Many speakers at Second Reading made the point, as I did, that we cannot go to Gatwick and identify hooligans simply by their appearance. Serious hooligans will not travel in Cross of St George T-shirts and carry cans of lager in open bags. They will dress tidily. If the police rely merely on appearances they will make a lot of mistakes; lots of embarrassing stories will appear in the newspapers about perfectly innocent travellers being hauled off their planes because they look unshaven, or worse; and a great deal of compensation will have to be paid.

The police are aware of that. Therefore they will rarely stop someone on the basis of their appearance when they turn up at the airport ticket in hand. They will only stop a suspect on the basis of intelligence which they already have in their possession. From the National Criminal Intelligence Service, or somewhere else, they will obtain the names of suspects and be looking out for them at the airport check-ins. If the suspect they pick up is already subject to a banning order, there is no problem. That suspect is committing an offence and could be arrested under existing powers.

But what if the suspect's name has been given to the police and he is not subject to a banning order? The question is, in those circumstances, why not? There are two possible answers. First, the police may not feel they have sufficient evidence to obtain a banning order, in which case they ought not to be stopping that subject at the airport. Secondly, the police may have evidence, but have decided in the past not to seek a banning order unless and until the suspect turns up at an airport with his ticket and passport in his hand. That course of action may save time and money. But it is wholly wrong to wait until the last possible minute to obtain a banning order. It is unfair to the suspect, who may miss a match even if no order has been made and would have spent money on a ticket which he would not have spent if a banning order had been made. It is also unfair to the suspect even if a banning order has been made.

If the summary procedure is based on circumstances which are not known to the police in time to enable them to apply for a banning order, I would have no objection to that limited power. But the position is this. First, the police will not stop suspects on their appearance. If they did so they would infringe many people's perfectly legitimate rights and have to pay a great deal of compensation. Secondly, if people turn up drunk and disorderly at the airport, already having tanked up before getting on the plane, there are perfectly adequate powers already available to deal with them. Thirdly, the police will almost always only stop people on the basis of intelligence. If that intelligence is not good enough to support a banning order, then it should not be used as the basis for stopping a traveller. If it is good enough to support a banning order, then the police should not wait until the last minute before applying for it.

The use of summary powers to avoid the need to obtain a banning order in advance is a clear breach of European Union law as explained in the opinion already referred to by Clare Montgomery and Rhodri Thompson. I believe that, unless the summary powers are limited to the narrow extent that I indicated earlier in my speech, they should have no place in this Bill. I beg to move.

Lord Lloyd of Berwick

I support the noble Lord, Lord Goodhart, in his amendment. I regret that I was unable to be present at the Second Reading debate. But, having read the report in Hansard, I find myself in almost complete agreement with what was said on that occasion by the noble Lord, Lord Phillips of Sudbury, and with a great deal of what was said by the noble Lord, Lord Lucas.

I am not concerned at present with the new Sections 14A and 14B to the 1989 Act, but I am very much concerned with new Section 21A, which, as the noble Lord, Lord Goodhart, explained, entitles a police officer, without warrant, effectively to arrest someone on reasonable suspicion that he has complied with certain conditions. Those conditions are set out in new Section 14B(2). It seems to me that that is introducing something quite novel in England criminal law. New Section 14B(2), which sets out those conditions, does not in any way create an offence. It is a fundamental part of English criminal law that a police officer can arrest without warrant only if he has reasonable grounds to suspect that an offence either has been committed or is about to be committed.

As I said, the conditions set out in new Section 14B(2) do not create an offence. The Minister will be well aware of a similar argument that I advanced in relation to what are now Sections 41 and 42 of the Terrorism Act. I made exactly the same point on that occasion, but I did not persuade the Minister of the effect of what was being done and how far removed it was from ordinary procedures of English criminal law. However, in relation to that Bill, there were at least other good grounds where one might seek to make an exception to the ordinary rule.

In the case of football hooliganism, I cannot see that there is any basis for making an exception to the procedures that were thrashed out when the Police and Criminal Evidence Act 1984 went through both this House and the other place. As far as I know, that legislation has been treated as the model of what is, and what is not, permissible in respect of a police officer's powers of arrest without a warrant. Those powers are jealously guarded by the courts and very jealously scrutinised because they are such an obvious infringement of the liberty of the subject—a point made many times during the Second Reading debate.

I find it very difficult to accept the proposed new Section 21A as it stands, without much greater consideration being given to it than has been possible because of the way in which the Bill has been brought forward at the last moment. As I understand it, if Clause 1(1)(d) is deleted from the Bill, as proposed by the noble Lord, Lord Goodhart, it follows that Section 21A will fall with it. I support the amendment.

9.45 p.m.

Lord Hodgson of Astley Abbotts

I must say that I find myself very much in sympathy with the amendment. It is common ground that we have a very serious problem before us in regard to violence at football matches. We hear from the Government that we must act quickly because of the match due to take place in Paris in early September and the further match in October between England and Germany. Therefore, we must accept that this legislation is to be taken through both this and another place at quite a speed.

Obviously, some noble Lords believe that there is no problem in this process, while others have concerns about it. We must remember that we are aiming to maintain the balance between what we seek to achieve—the maintenance of public order—and some of the other aspects involved, such as a restriction on the rights of the unconvicted, private individual. I can understand why the powers proposed to be taken under paragraphs (a) to (c) of Clause 1(1) as regards convicted individuals have, at least in principle and subject to the detail, both weight and thrust. However, when it comes to Clause 1(1)(d), it seems to me that we may tip that balance quite substantially in a way which was not originally envisaged and which may, in my view, tip the balance too far.

I also strongly support what the noble Lord, Lord Goodhart, said about the way in which the powers are likely to applied. Determined hooligans will certainly seek to evade them. My noble friend Lord Cope of Berkeley spoke about the various loopholes, to which we shall return later. The police will be very concerned about using these powers or they will use them until they make a real "Horlicks" of a particular case and there is extreme adverse publicity. In that case they will seek to use the powers thereafter. We need to go extremely carefully in any case, and certainly in a piece of legislation as rushed as this, concerning any proposal that will give authority an opportunity to act capriciously. Potentially capricious action is at the heart of this clause.

My noble and learned friend Lord Mayhew spoke about this being the ninth piece of legislation concerning football hooliganism. We are giving the authorities three additional sets of powers. I do not believe that we need to rush through the fourth set which is envisaged and which will probably be ineffective and possibly not used. In any case it involves a considerable impact on our civil liberties. I believe it was the noble Lord, Lord Whitty, who talked about this House having a role to provide checks and balances. This is a check and a balance. I support the amendment.

Lord Campbell of Alloway

I had considerable sympathy with this amendment before any noble Lord spoke. Having heard the noble and learned Lord, Lord Lloyd of Berwick, I wholly accept that the sympathy was well placed. I point to just this. The reasonable grounds are no more and no less than intelligence 97 per cent of the time. Accepting that must be subject to the proviso as to the burden of proof and the condition under Section 14B of the Act. We shall return to that again and again.

I am not much good at citing cases, but under the old poll tax case of Benham, it is perfectly plain that these are criminal proceedings. Their substance is criminal. There is arrest, imprisonment and default. There is a substantial invasion of individual rights which could never be imposed by a civil court in any circumstances. These are criminal proceedings.

Unless the Government are prepared to accept the criminal burden of proof, we shall be bedevilled throughout this Bill with that problem and I shall not let go. That is not a threat—I never threaten—but that is what I intend to do. It is manifestly plain that it is a criminal situation with consequences for the subject. It is an assault on individual freedom. I agree that it has to be done, and I support it, but on a criminal burden of proof.

Perhaps the balance has been tipped too far and perhaps it has to be. But if there is a criminal burden of proof I will accept that, but without it I am concerned. I know that the noble Lord, Lord Bassam, has other affairs to attend to, but he may be able to read Hansard tomorrow. Perhaps he could take this matter on board. It is really not lawyers playing tricks. It is a matter of constitutional importance that affects the liberty of the subject.

Lord Faulkner of Worcester

I do not wish to go over the Second Reading ground again other than to make just one simple point. I do that not as a lawyer but as someone who has spent an enormous amount of time watching football matches not just in this country but also with the England team abroad. I have been horrified at the events that have taken place at those matches ever since the early 1970s.

To assume that somehow or other we can remove Part IV and be left with a meaningful piece of legislation is nonsense. I believe that Part IV constitutes the first attempt that we have made in this country to solve the problem of the England supporter travelling abroad. It seeks to place us on the same level as the German authorities established with the legislation that they passed immediately before the Euro 2000 competition. With hindsight, I think that it would have been better if we had passed similar legislation.

The Daily Mail of 1st June stated that, German authorities … last night began confiscating hundreds of passports from known hooligans, including many without convictions for violence … In Germany … politicians last month passed a law that effectively suspends the civil liberties of known soccer thugs. Armed with the new powers, police have begun confiscating their passports, which will be held for the duration of the tournament. German interior minister Otto Schilly said concerns about civil liberties took second place to ensuring that there was little or no chance of a repeat of violent scenes involving German supporters in France for the World Cup two years ago". That report is a little colourful. I have established that the withdrawal of passport sanction exists but is not used for soccer hooligans. However, they have adopted a measure which is similar to measures which are contained in the Bill; namely, they have established a reporting condition which requires people to be put under a regular reporting duty to their local police stations for particular periods of time during which they are unable to leave Germany. A stamp was put in the passports of others who were prohibited from travelling to Belgium and/or the Netherlands for a limited period of time. That restriction is applied on the basis of some kind of police proceedings to do with hooliganism, although no prior conviction is necessary.

The third area was the establishment of two databases and a special list set up for the tournament with details of thousands of people. Those people were not under a formal travel restriction but were subject to informal spot checks by German border authorities when travelling to Euro 2000 matches. People who appeared on either of those databases were then subject to a further check at the border and if there were additional reasons for suspecting they may be dangerous they were prevented from leaving the country. I do not believe that what we propose in the Bill is very different from that. I hope that noble Lords will not persist with amendments to remove Part IV.

Lord Monson

Is it not the case that within the Schengen area—Germany is within that area—you do not necessarily need passports to cross borders; you can travel with an identity card, which I believe were not taken away from the German fans in question? Will the noble Lord clarify that point?

Lord Faulkner of Worcester

My understanding is that those were suspended for the duration of Euro 2000, so that the Germans could tackle the problem in the way that I have described.

Lord Lyell

The noble Lord has waxed eloquent about the article in the Daily Mail. Who passed the legislation he mentioned? Was it federal or state legislation? I am not a lawyer. I am sure that with his background the noble Lord can enlighten me on this point. However, I remember that there was a serious prospect of disorder in a match between Eindhoven of Holland and, I believe, Leverkusen of Germany. The clubs and the relevant state authorities of North Rhine Westphalia took certain action. However, the noble Lord said that the German Parliament did or did not take certain measures. Does he believe that passing a law will mean that just because people say that they are going nowhere near a match they will not cause a disturbance in a city which could be as far away as we are from Reading?

Lord Faulkner of Worcester

I am most grateful for those comments which allow me to correct an impression that I may have given inadvertently. The Daily Mail article of 1st June gave a certain impression of what had taken place in Germany. The Germans did not need to change the law. They introduced a new regulation covering a passport restriction. Those caught breaking the passport restrictions were then held to have committed a criminal rather than an administrative offence. It was very much a tightening up of the regulations that were in place beforehand but which were applied specifically to deal with Euro 2000. That is what I understand my noble friend is attempting to do with future designated matches involving England.

10 p.m.

Lord Phillips of Sudbury

Before the noble Lord sits down, perhaps I may ask him whether he has seen a copy of the Home Office note in relation to the German legal position vis-à-vis these issues. It was issued after assiduous attempts by members of the Home Office team to find out exactly what is the situation in Germany. Has the noble Lord seen that note?

Lord Faulkner of Worcester

I am certain that we share the note the noble Lord is referring to.

Lord Phillips of Sudbury

Perhaps it would help the Committee if I read from it. It is headed "Withdrawal of passport" and it states: The right to withdraw a person's passport exists, but is only used for those who have committed very serious offences, and is not used for those such as football hooligans".

Lord Faulkner of Worcester

That is exactly the extract that I read out at the beginning of my speech. It may be that the noble Lord, Lord Phillips, was not in his place when I said that.

Lord Phillips of Sudbury

I was; but the impression I gained when the noble Lord was quoting from the Daily Mail was that some vast change had overtaken German law and that large numbers of people were affected. Perhaps I may read further in order to help the Committee as to reporting conditions. It states: A small number of people have been put under a regular reporting duty As to restrictions on passports in terms of stamping them, it states: A further small number of people have had a stamp put in their passports". The net result is that, There has been a suggestion that these laws are new. This is not the case".

Lord Faulkner of Worcester

The noble Lord has quoted from the same piece of paper as the one I am quoting from. If he were to go on, it is the section about databases and the stopping at frontiers which is analogous to what is being proposed in Part IV of the Bill. That is why there is a useful comparison to be drawn between the two.

Lord Alexander of Weedon

This has clarified what, for me, is an important issue in the Bill—that is, where the centre of gravity of action has been. In his speech at Second Reading, with which a number of us had great sympathy, the noble Lord, Lord Woolmer of Leeds, differentiated between the measured targeting —I hope that I paraphrase him fairly—of those who, on concrete information, have been properly focused on as potential subjects of a banning order and an indiscriminate attempt at ports to restrain people and to bring them before magistrates. That is a very helpful distinction. Like him at Second Reading, I found the second approach concerning and unattractive.

I have also heard suggestions that the real burden on magistrates will take place at ports. If that is right, it suggests that the centre of gravity of this operation will be substantial arrests at the port rather than earlier applications for banning orders. I understand a provision for an arrest at a port on certain, closely circumscribed conditions, but not a general provision which allows an arrest on the wide grounds stated in the proposed new Section 21A.

As I have referred to the proposed new Sections 2A to 21C, when the Minister comes to deal with the principle of those amendments, will he comment on the very clear and strong opinion raised by Justice that proposed new Sections 21A and 21C would contravene not only the European Convention on Human Rights—soon to be implemented in our own Human Rights Act—but also the provisions of European Union law? In view of the importance of this issue to civil liberties, would he be good enough by that stage of the debate to have available for us the view of the noble and learned Lord the Attorney-General on this issue? I shall be interested to hear what he will say about the validity of the issue of the opinion provided by Justice and on what authority he will say it.

Lord Mayhew of Twysden

I have considerable sympathy for the Minister because, as I said I recognised at Second Reading, there has been a political imperative on the Government to come forward with some kind of legislation proposing a measure which meets the proper balance that has to be applied between liberty and providing for order and which, at the same time, has not yet been tried. If I may, I have a suggestion to which I will come in about one minute.

Perhaps I may first draw the attention of the House to the fact that my noble friend Lord Alexander has just spoken of a widely based right of arrest. I am not in the slightest degree surprised that he used the word arrest, because that is effectively what the Bill gives a police officer. As the noble and learned Lord, Lord Lloyd of Berwick, pointed out, that is actually a criminal measure and it gives a power to arrest. Successive governments have tended to refer to detention because it is less disagreeable than, for instance, internment, which is what it was called in the early stages in Northern Ireland. But the power to detain here is effectively the power to arrest.

I am certain that in ministerial circles there is a feeling of mounting irritation that these points are being taken when there is an urgent issue to be addressed. That is often the case when civil liberties are infringed purportedly in a good cause. Our constitutional history is—I was going to say littered—bejewelled with instances where that temptation has been resisted. I am not madly impressed by what may or may or not have been done at whatever level in Germany, because German people on the whole—if one may generalise—are much more liable to do what they are told than are British people. It may be regrettable that that is the case. We may have had cause to regret that in the past. None the less, I believe it is a truthful observation.

One of the points that has to be recognised is that if people are affronted, and are reasonably affronted by the way in which the law allows them to be treated, their support for the agencies of the law—the police and the magistrates—is liable to be lost. It is crucial not to lose that respect for the law if we are to maintain the rule of law in our country.

The final point I wish to make is that the Minister has a way out here. There is plainly a worrying degree—I leave myself out of this of course—of opposition to the Bill in that regard. Would it not be sensible for the Government to say that they need to pass the Bill in a hurry—that is recognised on all sides—but within the provisions of the Bill at the moment there are the means to return to the Bill and add or subtract from it within one year. That provision will remain in the Bill I do not doubt. Would it not be a way out, and a sensible one, without any loss of face at all, for the Government to accept the amendment that has been moved by the noble Lord, Lord Goodhart. But, without prejudice to their rights, after further experience as well as thought they could return to it in one year's time by asking Parliament to do so by the measures provided?

Lord Phillips of Sudbury

Perhaps I may take the Committee back to the Second Reading debate and what the Home Secretary said in the other place. The NCIS, the body charged with trying to get to grips with the problem of football hooliganism, has roughly 1,000 thugs on its list. Of the 965 people arrested and deported from Holland and Brussels during Euro 2000, only 30 were from that list of roughly 1,000. Of the 965 deportees only four were prosecuted and only two of them for violence. In addition, Jack Straw himself made the point when he kindly came to meet us that the figure for convictions of British adult males aged 30 and under for offences of violence and dishonesty is 30 per cent of the age group.

What mystifies me is just how this new "sus" power could and will be implemented. Will the Government automatically use the new powers of new Section 14B or the new powers of Section 21 to target the 1,000 people on the NCIS list; or will they target the 965 recently deported Britons? No, we know that they will not do that because, as Jack Straw said, that was a totally unreliable trawl and many of the people involved were guiltless of anything. The good Jack Straw said, "We will not even consider those people for banning orders". Will they go further and look at all the people with convictions for violence in the 30 and under age group? If that is the case, we will be dealing with hundreds of thousands of people. How on earth will these preventive powers be used? Do the Government have a plan to round up thousands of people for banning orders before the match occurs; or will all police be relieved of their off-duty hours to enable them to appear at all the ports in the land, with huge lists of people which they have drawn up?

Frankly, we are in danger of having the legal equivalent of "Fantasy Football". The trouble is that the issue is a good deal more serious than that. We are dealing with basic and fundamental civil liberties. As the noble and learned Lord, Lord Lloyd of Berwick, so clinically exposed, what the Government are proposing in new Sections 21A to 21C is a novelty, and a dangerous novelty. While we sympathise, as we have said ad nauseam, with what the Government are doing, we do not understand how the measure will work. If it comes, as it is bound to do, to almost total arbitrariness, the concern is that the arbitrary nature of the decisions taken as to who should be arrested on suspicion will fall disproportionately on that group to whom we in this Chamber constantly have regard and whom we know are already in the most disadvantageous position in our society.

Perhaps I may refer back to our debates on the proposed reduction in the right of jury trial and to the fact that after debate the Government very properly decided to withdraw that part of the Bill which required magistrates to review the issue of right to trial by jury according to the reputation of the person before them. We are reintroducing into this clause that same dangerous and potentially unfair element. It is reputation quite apart from past conduct that will be at the heart of the arbitrary exercise of the impossible task with which the police, let alone the magistrates, will be lumbered by the new sections.

Lord Desai

I did not speak during the Second Reading debate and so I apologise for intervening at the Committee stage. However, I believe that what the noble and learned Lord, Lord Mayhew, said towards the end of his remarks was very appealing and contained a good deal of common sense. It is necessary to do something about football violence before the match in September. Let us take that for granted. It is also a fact that two or three of the four propositions in the Bill command a great deal of support. It is with regard to the fourth one that there are grave objections.

I am persuaded by the remarks of the noble and learned Lord, Lord Lloyd of Berwick, because I recall that when Parliament was recalled after the Omagh bombing—a very tragic incident—we passed a piece of legislation. At that time the noble and learned Lord said clearly and clinically that the legislation would not work. I remember it well. Not a single person has been convicted under that Act. It is a farce. There is a problem with passing legislation in great haste in the belief that it is effective, when technically skilled people tell us beforehand that it will not work.

My appeal is that we should follow the broad outlines of the solution proposed by the noble and learned Lord, Lord Mayhew. We should take the bulk of the Bill through, and remove proposed new Sections 21A to 21C about which we are all unhappy. If in a year's time we find that the legislation has not worked, the Government can return to the House and say, "We told you that it would not work; we needed the proposed new sections". We shall then have plenty of time to think the matter through and add safeguards for civil liberties. Legislation passed in haste does not work; one such example is the Dangerous Dogs Act. The provision is particularly troublesome because of the serious inroads that it makes on civil liberties.

10.15 p.m.

The Earl of Onslow

If there is one thing that worries and puzzles me, it is this: I am afraid to say that I would rather see a lot of yobs in the Champs Elysées misbehaving and drunk and having their heads bashed in by the CRS, and bringing English football into disrepute, than a serious attack on the liberties of the subject. I say that after very considerable thought. Those liberties of the subject—Englishmen's liberties, human rights, call them what you will—are so dear to the core of what all in this House believe. After all, courts abroad are quite capable of sending those responsible for really nasty yob behaviour to Devil's Island or God knows where if they wish to. Under those circumstances it is up to them to produce their own peace; it is not up to us to offend our immensely noble tradition of civil liberties which we invented for the world and for which many Englishmen have died over the past 300 or 400 years. We must be very, very careful. I really do not think it is worth doing just because of the French, the Belgians, the Congolese or the Japanese, or wherever people play football. It seems to me unnecessary that we should abuse our own liberties.

Lord Woolmer of Leeds

At Second Reading, I expressed a great deal of sympathy for much in the Bill but said that I had considerable concerns about this particular area. I should like to examine it in a little more detail.

First, I accept that there can readily be circumstances in which the authorities would need an exceptional provision at the point of exit from the country. If the world were fair, that would be a calm, orderly event known well in advance so that many of the problems that we have in mind could reasonably be tackled. However, I suggest that there are circumstances in which that may not be the case. Perhaps I may expand on the point.

The nub of the matter is the test applied in proposed new Section 14B(4)(b); namely, whether or not it is likely that there will be certain outcomes as a result of a person going abroad. The person may not actually be violent or cause violence, but could merely be associated with violence. So, are we dealing with a small number people? There is a tendency to believe that one is talking of only a small number of people.

I should like to quote a short passage from the August edition of the magazine When Saturday Comes. That publication, which is aimed at football fans, will not be found on the bookshelves or reading lists of many noble Lords, but I commend it to the Committee. The editorial on page 4 makes one or two points that it is worth keeping in mind in addressing the matters before us this evening: For too many of the fans who follow the national team, going abroad is about asserting England's superiority—not necessarily with violence, but with songs and aggressive behaviour that is meant to be (and is) intimidating to the locals … It seems we can't imagine a relationship with the rest of Europe (in football or anything else) that does not involve either conquest or humiliation … But when the actions of a large minority among England's travelling support are so objectionable, innocent supporters will always be tainted by association". The two lessons that I draw from that passage are: first, that the kind of behaviour that would not in certain circumstances be expected to lead to violence may do so, and certainly potentially many thousands of young males, not a few hundred, engage in such activity; secondly, the fans themselves recognise that these people represent a large minority.

I suggest one or two circumstances in which the situation at the ports may be difficult. During Euro 2000 England played one game and no trouble followed it. At a subsequent game there was trouble. A few days later at the time of yet another game there was heightened concern about what to do about the situation. If these powers had been in existence the police at the ports would have been less than human had they not been exceptionally cautious about whom to allow to go abroad. Whom should they stop—people who may sing abusive songs or, regrettably, drop their trousers and expose their buttocks, as some lads do, or burn the flag of another country? Such abhorrent behaviour may be engaged in, not by the 100 or 200 hardcore ringleaders, but a great many young men.

In many European club competitions, in addition to international competitions, typically there are home and away games only two weeks apart. A home game takes place in this country and there is trouble between the rival clubs. Everyone expects trouble a few days later at the return game. No opportunity is provided for the considered, careful process, if possible, that we all support. In other words, the circumstances in which the proposed legislation may be implemented will not be logical, calm and well considered. It will face its great test when the media, including the press, talk about trouble that is to come and the Government of the day are concerned to ensure that it does not happen. It will become known to the police at the ports that they must ensure that they do not let through anyone who may cause trouble. The terms that may be applied are so wide-ranging that it will not be possible to take a careful look at the intelligence to spot the real hard core, because the police at the ports and the Government will look extremely foolish if masses of people go abroad and trouble erupts.

There is great danger that inequities may occur. I have described the circumstances of a European club match where, there having been trouble in this country, the authorities want to ensure that no troublemakers go abroad for the return game. I have described the international tournament at which three or four days earlier there was trouble and the authorities want to ensure that it does not happen again. It is almost beyond the wisdom of man to avoid inequities in those circumstances. However, with regard to a Manchester United game arranged six months in advance, there is a calm, ordered atmosphere in the ports. No trouble is expected and none occurs.

The legislation is drawn up in such a way that the magistrates and the police who decide to take individuals before a court will be influenced by the atmosphere faced. Once one goes from the hard core, easily identifiable, group of people to an amorphous group who may have caused trouble, may have been associated with trouble, or may cause trouble in a few days' time the situation will be very difficult indeed.

I anticipate that many people could be involved. Therefore I shall be grateful if the Minister will address this concern. Under these provisions—they are drawn up generously for authorities which want to stop almost anyone from going abroad—how can we prevent the attitude that "we must make sure that trouble does not happen"? How do we ensure that hundreds, if not thousands of people, will not be stopped with the consequent sense of injustice and inequity? In some circumstances, people will walk through the ports; in other circumstances—it is nothing to do with the people—the rules may be applied differently.

Can the Minister indicate the tone of his response to later amendments relating to the setting out of clear evidence which individuals will have the opportunity to rebut, with proper representation? In the circumstances I have outlined, it is unlikely that those requirements will be met in the tests at present to be applied.

I understand the considerable pressure on the Government to bring forward this legislation. When trouble is expected at ports or airports, there will be great pressure to do something. We would all want something to be done but in an equitable way so that individuals can judge whether or not they may face such a charge. If they are faced with such a charge they should have a reasonable prospect of being able to defend themselves. It would seem almost impossible to defend oneself against such an allegation if one has been involved before in disruptive or violent behaviour.

Lord Lucas

I hope that the Minister will take the opportunity to give a run down on how he envisages new Section 21A being used. At Second Reading, it was described as a power which would not be much used. The noble Lord, Lord Woolmer of Leeds, has raised the possibility of it being used to a large extent. The noble Lord, Faulkner, said that with the German example the equivalent to proposed Section 21A was the major line of defence. We ought to know how the Government view the balance between the Section 14A and 14B procedures and the Section 21A procedures. I hope that the Minister will reiterate what I understood him to say on Second Reading, that proposed Section 21A will be used only occasionally.

The noble Lord, Lord Faulkner, drew comparisons with the German situation, but the fans stopped at the border were on a database and presumably knew. In this country a fan would know that he was likely to be in trouble at the border. Also, the penalty for the Germans fans was that they could not go abroad for five days. Here we are considering the full stretch of proposed Section 14B, which encompasses 30 per cent of the population because they have committed a suitable criminal offence. The minimum sentence they can receive is a two-year banning order, which is entirely out of proportion to the sort of use to which the noble Lord, Lord Woolmer, referred.

If there is to be an effective procedure for stopping people at the ports at the last minute to deal with panic and the feeling that a match is going wrong, the sentence must be a few days' inconvenience—not five years, which is the minimum under the Bill.

10.30 p.m.

Earl Russell

Before the noble Lord sits down, if he were to get an assurance—as I hope he will—that the Minister intends that proposed Section 21A should be used sparingly, is there any way, with respect to the judicial process, that the Minister could make that assurance good?

Lord Cope of Berkeley

Only by giving instructions to the police.

This is far from the first time that Parliament and government have addressed the question of international hooligans. That was the subject of the whole of Part II of the 1989 Bill and the subsequent legislation that built on it. The question underlying the Bill's most difficult provision is whether or not it will work. One test is to give the Government the power temporarily to enact the measure. Following the meeting with the Home Secretary, the sunset clause was introduced by the Government. We still believe it is rather long, but we will return to that aspect.

There is considerable doubt that the provision will work. If it does, it will be seen as a "sus" law. It is specifically stated that there will be detention and restriction if a police officer suspects that certain facts are the case. The key question is the centre of gravity of reaction. What will be the extent of the use of the proposed Section 21A, which applies at airports and seaports—which are the only places that measure is likely to be used? With any banning order that the police seek in advance, presumably they will not need the detention order. They will simply turn up and say to the person, "You must appear at the magistrates' court this afternoon or tomorrow, to answer why a banning order should not be imposed on you".

The only point of the detention is to pick someone out of the queue at the ticket barrier and say, "We need to telephone the NCIS and check our records to make sure that you are the person we think you are and to decide whether we are going to serve a notice on you". If it turns out that he is not the person, he may after six hours have missed his flight. He may be in difficulty about where he is going and have lost his ticket and money in the process. That is the only circumstance in which new Section 21A will be used.

The Minister told us earlier that such action will not be taken mainly at ports and airports; it will be taken before people arrive there. We must wait and see, but wherever it takes place it will be on the basis of intelligence. That will presumably start with the NCIS list of people known to have caused trouble. We have been told that about 1,000 people are on the list but at the end of Second Reading the Minister told us that there will be only hundreds of banning orders, not thousands. I understand the vagueness and that the banning will not go much further than those on the NCIS list, if indeed it covers all of them.

In any case, as we have been reminded, only 30 of the 1,000 people sent home from Belgium, following the trouble which gave rise to the legislation, were on the NCIS list or known to the police. I am sure we all appreciate that during the round-up some people on the list may have been nippy enough to get out of the way of the Belgian police. In some respects there is reason to doubt the efficiency of that round-up. Therefore, no doubt more were in Belgium and may have been involved in the violence.

All that makes one wonder how much the legislation has been thought through and what the effect will be. There is no doubt that if we were to pass the amendments in this group we would knock out not the most controversial but, from the Government's point of view, the most important power in the Bill. The Government have not backed it up with a great deal of argument, but we must decide whether it is right to gram this temporary power.

We must ponder it between now and Report stage tomorrow; we do not have much time but nor does the Home Office. However, this is the most important clause in the Bill as regards its level of controversy and its importance to delivering the aims which we and the Government share.

The Earl of Onslow

I hope that Members of the Committee will forgive me for intervening again but something troubles me. The NCIS list contains, say, 1,000 names. How many of those do the police consider likely to cause trouble and how many have been convicted of a football-related offence or other serious violent offence? That information would be apposite to the value of the list.

Lord Bassam of Brighton

This has been a long debate. When we started proceedings on the Bill today I thought I might get home for some cocoa but I now believe that I might get home for breakfast. This has been a long but important debate. I believe that the noble Lord, Lord Cope, put his finger on it when he said that this was the fourth in our package of measures. We should make plain that if this amendment is carried tonight, or perhaps tomorrow, it would remove that fourth measure. That would be the sum total of its effect and it would—I say this advisedly—be a serious hole in what we believe to be an important package of measures. I believe that they need to be taken and considered together.

I want to run through the various arguments that have been made in the debate and I shall try to answer as many of the questions as I can. I shall certainly try to answer the last point made by the noble Earl, Lord Onslow. The noble Lord, Lord Alexander of Weedon, asked me to set out the Government's view on Justice's opinion and, if the Committee will bear with me, I shall seek to do that.

The opinion obtained by Justice expressed the view that the provisions of the Bill—and, indeed, by implication, the provisions of the Football Spectators Act 1989 because much of the Bill is drawn from that, adds to it and updates it—are contrary to the requirements of European Community law and the European Convention on Human Rights. Several Members of the Committee have expressed concern about the human rights implications. It is true that the Bill raises serious issues of competing rights. However, I can assure the Committee that before introducing the Bill careful consideration was given to the position of Community and ECHR law, including the issues specifically canvassed in the opinion obtained by Justice.

I assure the Committee that the most careful scrutiny has been applied to the issues raised and the Government remain of the view that the Bill's provisions are compatible with all the United Kingdom's international human rights obligations. The rights of free movement under Article 59 of the EC treaty and under Directives 73/148 and 64/221 are not absolutes. The right to travel to receive services may be restricted in the interests of public policy and public security. Those restrictions must be applied on the basis of the personal circumstances of those concerned and on the judgment that those concerned represent a genuine threat to public order.

The scheme of the Football Spectators Act, as amended by this Bill, meets those criteria and represents a balanced and proportionate package of measures. Once made, a banning order does not automatically impose a reporting requirement in relation to each game overseas. That requirement is imposed only after considering each individual's circumstances. The order is targeted at particular individuals and can apply in respect of particular matches for particular periods. There are provisions for exemptions and appeals against the refusal of exemptions.

As I made clear during the Second Reading debate, I accept that serious issues are also raised under the European Convention on Human Rights by the provisions relating to banning orders by complaint and the summary powers contained in new Sections 21A and 21B. However, I remain of the view, as expressed at Second Reading, that those provisions are compatible with Articles 5, 6 and 7 of the convention. As I said at Second Reading, a banning order is not a criminal or a penal act. It is a targeted, preventive measure to help to prevent violence and disorder.

Anyone detained under the power in new Section 21A will either be speedily released or speedily brought before a court.

I believe that it is worth making the point that by comparison with what is alleged to be the case in Germany, our provision is rather superior because it makes plain that jurisdiction will have to apply and that people will have to be brought before a court of law and the application tested. I believe that that is an important distinction between our approach and a measure which seems to me to rely on an administrative procedure.

For the sake of completeness, I should add that I believe the Bill to be compatible with Article 14 of the convention. The powers in Sections 21A and 21B are exercisable only in relation to British citizens. It is well established in Strasbourg jurisprudence that measures may have different effects on different nationalities if, as we believe to be the case here, there is an objective and reasonable justification for the distinction. Although banning orders will be available regardless of nationality, the mischief that we are seeking to address is the havoc wreaked by British citizens. Preventing other nationals travelling, perhaps to their own country, would raise different issues, as would the seizure of passports of foreign nationals. British passports remain the property of the Government.

It would be unrealistic to expect unanimous agreement with the conclusions that the Government have reached on these issues. However, I hope that what I have said may be enough to make it plain that we have carefully examined and thoroughly thought through the human rights issues at stake. We think that we have struck the right balance, but that is a question that your Lordships will need to think on some more.

I shall try to go through the points that have been made during the debate. The noble and learned Lord, Lord Lloyd, made a cogent point that police powers are normally exercised on suspicion of offences. However, as he acknowledged, there are many other powers to detain for other reasons. He mentioned the Terrorism Act provisions. There are parallel powers on immigration detainees, patients, those in need of protection from themselves or those in breach of the peace. This is another exception. We are providing for a short period of detention to enable inquiries to be made on the grounds that it will prevent violence and disorder. That is an important consideration.

Football hooliganism is a unique challenge to us, reflecting our society's need to curb violent behaviour overseas by our citizens. The police will still be acting to prevent violence and disorder when they exercise their Section 21A and 21B powers. We believe that the powers will be firmly acted on in the best traditions of British policing.

The noble Lord, Lord Phillips, again compared the power in the Bill to a "sus" power. I do not believe that it is a "sus" power. "Sus" powers are about criminalising people. We are not seeking to criminalise. The power will not be exercised in the same way and it will be subject to a judicial test. That is an important consideration.

The noble Lord also said that the police were going to be lumbered with the power. The police want it. The National Criminal Intelligence Service made that clear to us before, during and after the recent Euro 2000 experience. The Association of Chief Police Officers has also made plain its belief that the power is in the best interests of the police in trying to tackle the issues that have caused such public alarm and concern.

10.45 p.m.

Lord Phillips of Sudbury

Has not the Police Federation said that it does not want the power? It represents the bobby on the beat who will be on the front line.

Lord Bassam of Brighton

I cannot comment on the internal dynamics of the Police Federation, but in all the contact that I have had in recent weeks and months with ordinary serving police officers, they have made it clear to me that if the power is exercised in the way that we suggest, they will welcome it. It will be an extra string to their bow and an extra power in their armoury. They believe it to be right and proportionate. We heard on Second Reading what the noble Lord, Lord Mackenzie of Framwellgate, thought about the power. He seemed to believe that it would be very welcome.

My noble friend Lord Desai compared the power fleetingly with the Dangerous Dogs Act 1989. I know that that Act is not everybody's favourite, but it has been peculiarly effective. It may not have the best drafting. Indeed, as an official I once complained about its drafting and wondered about its effectiveness. However, I also know from our statistics and experience that it is very effective. So I am not quite sure that it helps to take the cause any further forward by quoting that in aid of the argument.

I want to reflect on the comments made by my noble friend Lord Woolmer. Along with my noble friend Lord Faulkner of Worcester, he made one of the best contributions during the course of the Second Reading debate.

My noble friend Lord Woolmer was making a case for the proportionate use of this piece of legislation. I believe that that is how it will be used. The noble Lord, Lord Phillips, made a similar point, that this power could be used to sweep up hundreds of thousands of people. I made it clear on Second Reading that we did not expect there to be hundreds of thousands of people swept up as a by-product of this part of our package of measures. But, obviously, it is a very useful power which will have a preventive virtue. People will know that if it is considered that they are going abroad simply to carry out acts of violence, acts of disorder, acts of abusiveness, racism and xenophobia, then the police have the power to make a temporary detention which can be tested at some later point in the courts. That has a preventive virtue of its own.

My noble friend Lord Woolmer made the quite proper point that the circumstances surrounding a return fixture may have a bearing on that. On reflection, perhaps those circumstances should have a reflection on the way in which new Section 21A is used.

We should put this into context to try to make it a bit real. Let us suppose that it had been the other way round and there had been a knifing of a Leeds United supporter in Leeds as part of the first leg of that two-legged fixture earlier this year and there was the suggestion that Leeds supporters might want to travel abroad to wreak revenge on Galatasaray supporters. In that case, this power might have had some benefit because those people who felt inclined to go abroad and carry out acts of violence might have been made to think again about it because they would know that the police had a power to use in a targeted and proportionate way to affect the outcome of human behaviour in another country. The measure has a value because of that.

For me, the most absurd and bizarre argument advanced in support of removing this measure from the Bill was that of the noble Earl, Lord Onslow. Essentially he was saying to the Committee that he wanted to protect for ever the freedom of the right of an English citizen to go abroad and fight on the streets of the Champs Elysées. That is what the noble Earl was saying.

The Earl of Onslow

That is absolutely not what I said. I said—and the noble Lord should listen—that it is the duty of the French police, the CRS, to control their own streets. Of course, I have never given any approval, by any hint of an eyebrow or a turn of phrase, of that sort of behaviour. But I say that it is the duty of the British police, the British Government and the British authorities to maintain Her Majesty's peace in this country; and it is the duty of the foreign police to maintain the peace in their country.

If our people go abroad and breach their peace, it is up to them to face the consequences. It is not up to us to remove people's civil liberties. That is the point I make. If the noble Lord cannot understand that, he cannot understand why people are objecting to the fact that they see their civil liberties threatened by the Bill.

Lord Bassam of Brighton

I shall study Hansard very carefully. But I thought I heard the noble Earl make it plain that he felt that somehow the right of people to travel abroad to have a fight on the Champs Elysées was a right which he wanted to protect. As I said, I shall study Hansard very carefully but that seemed to me to be his line of argument and that seems to be where his argument leads to.

I must reject that argument. I believe that we have a duty to work here and with our European colleagues to prevent the sort of disorder which brought great shame upon our nation before, during and after the events which took place at Euro 2000. To fail to do that would beggar belief. Nor do I believe that the British public would understand that.

I turn to the point raised by the noble and learned Lord, Lord Mayhew of Twysden. He said that we should allow experience to direct us so that we can return to the matter in a year's time. Just how much more experience do we need before we take some form of effective action? We have had appalling scenes on the streets of Charleroi and Brussels.

Earl Russell

The Minister uses the word "effective". If he is to satisfy the Committee that the measure is effective he needs to show some reason why we should believe that it will impact on the guilty rather than on the innocent. I have listened to him with great care in order to hear an answer to that question. I have not heard one.

Lord Campbell of Alloway

I make the point in another form. On the issue of effective action, the question is whether it is constitutional within the law and whether it is proportionate, reasonable and acceptable according to our standards. That is the point.

Lord Bassam of Brighton

We need this measure on the statute book in order to see how effective it will be.

The Earl of Onslow

The Minister has just said that we should pass this Bill and see whether it works, and if it works that is all right. That is a very dangerous way of passing legislation.

Lord Bassam of Brighton

I find that argument most strange. Surely, if a piece of legislation works and is effective that proves the point that the legislation has worked and been effective. I do not understand the noble Earl's argument. My argument is that we need the opportunity to test out this legislation. I suggest that Parliament would be wise to pass it so that we can put it through the rigours and tests to which it, quite rightly, should be subjected. I take the point and I follow the argument that it needs to be both targeted and proportionate. I believe that the police consider that it covers both those points. They want to use it in an entirely proportionate way. No doubt they will be careful in the way in which they exercise the powers provided in this piece of legislation.

We have had a long discussion on this matter. I was asked one or two points of fact. The noble Earl, Lord Onslow, asked how many people on the list of 1,000 had previous convictions? I believe the number is in the region of 500. About 100 had international banning orders and about 400 had domestic banning orders, so they had previous convictions.

I suggest to the Committee that to remove the fourth measure from the Bill will undermine the general effectiveness of this new piece of legislation. Acting on the suggestion of the noble Lord, Lord Alexander of Weedon, we have picked up the point that there should be a "sunset" clause. We shall look at the legislation after one year and after a further period of four years so that we can see how effective it has been. I believe that was a helpful and a wise suggestion which will help us, particularly in regard to the fourth power, because we shall have the basis of experience, monitoring and judgment to test how effective it has been.

If we do not take action and if we do not put this piece of legislation on the statute book, I believe that people in the wider world will wonder what we should legislate for. They will consider that we have the wrong priorities. For that reason, I believe that this piece of legislation and the fourth measure deserve to be supported.

Lord Lucas

The Minister is putting forward a rather extraordinary idea of the way in which we should legislate, that we should just accept any Bill if it is time-limited. Perhaps we could try executing engine drivers if they do not run their trains on time. We could try that for a year to see how it works! The Committee must be allowed to perform its function. While taking note of the fact that the legislation is limited, in which case the Committee may let it go further than it would normally, and taking note of the urgent need for it, we must subject it to proper scrutiny. I do not believe that the Minister has made anything like a case for this part of the Bill. He started by saying that this measure would be used only occasionally and then welcomed with open arms the scenario painted by the noble Lord, Lord Woolmer of Leeds, of it being used to stop 20,000 fans travelling to a match in Turkey. We have had no explanation of how that will be achieved.

11 p.m.

Lord Bassam of Brighton

I said that I felt that the police would use this legislation in an entirely targeted and appropriate way. I said that in the circumstances I described it would have been an extremely useful power. In fact, I challenge the noble Lord to say exactly what sort of power the police should have in those circumstances to prevent the sort of disorder which I am sure the noble Lord will accept pours shame on our nation, causes misery and upset abroad, and damages our great national game.

Lord Lucas

That was not the point I was addressing. I was asking the Minister to explain how the legislation would work. Presumably the police are sitting at the airport while the flights to Turkey are taking off. They form a line in front of the check-in desks and ensure that people pass whatever tests they set. They will not be on the database; that is only 1,000 strong. We are looking at people who simply turn up at the airport who the police know nothing about yet about whom they will make decisions. Based on what? How will it work? What practical procedures will the police go through to enable them to use this clause and achieve the results the Minister is positing?

I contend that there are no such tests. The provision cannot be used in this way. There is no practical way in which the police can operate through "sus"—"I do not like the look of you. You are 25 and white so go home". The system cannot and will not work that way. The legislation is totally ineffective from that point of view. If we are going to do that, it must be on the back of what the Germans did; that is, a database of people who are likely to be picked up at the frontier. All this provision will do is to cause immense aggravation to fans who have every right to go to a match. The only way the police will be able to deal with it under the scenario painted by the Minister is by the wholesale moving of people back from abroad. There will be no other basis for doing it.

Lord Campbell of Alloway

To save a little time, perhaps I can ask the Minister respectfully and in the most friendly of fashions, what is the position? All sides of the Committee, even his own Benches, formed the sort of composite opinion which has been expressed. Will the Minister, between now and tomorrow, assimilate this opinion and respond to it? Or will he, according to the way in which I understood his speech, maintain the rectitude of his attitude on his brief? That is what Ministers usually do; but this is not a usual occasion. We must get this Bill through its stages by tomorrow. Is it worth our while to stay here, move amendments and make suggestions? Why not go home, unless there is a faint scintilla of a prospect that the Government will consider some of my noble friends' amendments, even if they do not consider mine?

Lord Goodhart

I am grateful for the support which this amendment received from all sides of the Chamber. I thank particularly the noble and learned Lord, Lord Lloyd of Berwick, for pointing out the wholly exceptional nature of the power being sought. Basically, it gives the power to arrest people not because they are thought to be guilty of an offence, but in order to bring them before a magistrates' court which will impose what may be described as a civil penalty; something in the nature of an injunction. That is wholly unprecedented.

The only speaker from the Back Benches who gave real support to the Government was the noble Lord, Lord Faulkner of Worcester, who relied rather heavily on the German precedent. But, as is made clear by the very document on which he based his speech, the German situation is very different from what the Government now propose. Indeed, the article in the Daily Mail that referred to the Germans seizing people's passports was a complete contradiction of what happened. In fact, no one's passport has been formally withdrawn in Germany.

The Germans do impose reporting conditions, and quite rightly so. That power has been effective under the Football Spectators Act and there is no reason why it should not be equally effective under the extensions to that legislation which it is proposed to make under this Bill. But they will only be made after a banning order has previously been made. The stamp in the passport is an interesting idea but not one to which the Government have given any thought on this occasion.

I slightly regret the fact that the noble Lord, Lord Cope, from the Conservative Front Bench did not give more than very qualified support to this amendment. I disagree with him saying that this is, even in the Government's eyes, the most important part of the Bill. One cannot tell what the Government consider to be a matter of particular importance. From the Government's point of view, it seems to me that the most important element of the Bill is the proposed new Section 14B; that is, what might be called the "civil banning order". That is something on which the Government ought to concentrate.

To a large part—for example, when he was talking about the way in which these orders were properly well targeted—what the Minister said was a defence not of the summary procedure but of the basic banning procedure. I do not agree with him that these orders are targeted at all; but there it is. That is nothing to do with the summary procedure. If the summary procedure is relied upon at all, it seems clear to me that it will lead to a great deal of injustice to many innocent people who will be picked up in error. If the Government were to make proper use of these banning orders and get them in place in time, rather than waiting until the last minute and picking up people when they go to the airport or to the ferry port, that would be quite unnecessary.

Therefore, I am wholly unable to accept—

Lord Bassam of Brighton

Does the noble Lord accept that, as mentioned by my noble friend Lord Woolmer, circumstances change with regard to the nature of upcoming football matches? In those circumstances, surely it would be quite appropriate and not unreasonable to expect to use the powers contained in this measure.

Lord Goodhart

No. Again, the power is a banning order. Where you have a banning order, you may not seek to impose a restriction every time that someone wants to go abroad. Frankly, that is rather unlikely. However, if someone is a Leeds fan, perhaps you would not wish to impose a restriction on him if he is going abroad for a Manchester United game. One needs to get the banning order into position first. Then one decides whether to make use of it to impose a restriction on the occasion of a particular match. I am wholly unpersuaded by what the Minister has said. It is obviously quite impossible to call a Division at 10 past 11 at night.

Noble Lords

Why not?

Lord Goodhart

I should prefer not to do so. I believe that I am much less likely to be successful now. I know that the Government will have maintained their defensive Whipping. I shall beg leave to withdraw the amendment now, but we shall undoubtedly return with it tomorrow. It is very likely that we shall then seek to divide on it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Disclosure of information by NCISI]:

Lord Bach moved Amendment No. 3

Page 2, line 3, at end insert— ("(3B) A statutory instrument containing regulations under subsection (3A) shall be subject to annulment in pursuance of a resolution of either House of Parliament."").

The noble Lord said: This amendment has the effect that regulations prescribing persons to whom the National Criminal Intelligence Service can disclose information for the purposes of the Football Spectators Act will be subject to the negative resolution procedure. The amendment gives effect to the first recommendation of the Delegated. Powers and Deregulation Committee. The Government are very grateful to its members for their very speedy and thorough report on the Bill.

I speak also to Amendment No. 7 in the name of the noble Lord, Lord Cope, and others. It is designed for the same purpose, but I am advised that it is preferable to have the procedure for the regulations set out in the appropriate place in the Police Act 1997 rather than in Clause 3 of the Bill. I beg to move.

Viscount Astor

The Government's amendment is a small piece of good news in this Bill. We accept that it is preferable to our Amendment No. 7. It certainly follows the recommendation of the committee's report. We welcome the amendment.

Lord Goodhart

I, too, am happy to welcome this amendment. It follows the recommendation of the Delegated Powers and Deregulation Committee. As is the usual practice of the Government, they have accepted the recommendation of that committee.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

11.15 p.m.

Lord Phillips of Sudbury moved Amendment No. 4:

After Clause 2, insert the following new clause—

  1. "EXTRA-TERRITORIAL OFFENCES" 29,762 words, 1 division
  2. cc240-66
  3. Application to chief officer of police. 12,849 words
  4. cc266-72
  5. Summary measures: compensation. 2,846 words