§ 4.9 p.m.
§ Report received.
§ Clause 1 [Football matches: prevention of violence or disorder]:
§ [Amendment No. 1 not moved.]
§ Lord Richard
My Lords, are we now proceeding with Report stage on this Bill or is Report stage to be taken tomorrow? It would be useful to have some guidance.
§ Lord Carter
My Lords, we are now taking Report stage. I apologise, but there will now be a discussion through the usual channels to agree how we deal with Third Reading and so forth.
Last Wednesday an agreement was reached, which was circulated to all the party meetings, as my noble friend said last Thursday, and everyone knew that Report and Third Reading were to be taken today. In order to allow for a gap between Report and Third Reading, a suspension of the Standing Order would need to have been tabled yesterday. To do that I would have needed to know that the Committee stage would last until five o'clock this morning. The Opposition Chief Whip will agree with me that yesterday we believed that all yesterday's business would finish by 300 midnight. We revised that estimate at ten o'clock last night to two o'clock. We got it wrong because, quite fairly, it took a lot of time. That is why we are in this position. That agreement, which was clearly reached and understood through the usual channels, was not supported when it came to the vote.
§ Viscount Waverley
My Lords, was the Convenor of the Cross Benches involved in that process and will he be part of the decision-making process that follows?
§ Lord Carter
My Lords, the noble Viscount knows that the Convenor of the Cross Benches is not a member of the "usual channels". It is clearly understood that he can speak only for himself and not for his group.
§ Earl Ferrers
My Lords, while we are dealing with niceties, I ask the noble and learned Lord the Attorney-General, where is the Leader of the House? It was her Motion and one would have expected her to have been present to reply to it and to help the Government out of this mess.
§ Lord Williams of Mostyn
My Lords, my noble and learned friend is attending an important Cabinet committee. The amendment of the noble Lord, Lord Marlesford, was tabled quite late. It was not possible for her to rearrange her commitment. Accordingly, she asked me to do the best I could, to be as persuasive as possible to ensure that we had an overwhelming defeat.
§ Earl Ferrers
My Lords, the Leader of the House would have done better, and more charmingly, than the noble and learned Lord. However, he referred to his noble friend as "learned". I did not know that she was "learned". I congratulate her.
§ 4.15 p.m.
§ Lord Goodhart moved Amendment No. 2: Page 1, line 14, leave out paragraph (c)
The noble Lord said: My Lords, in speaking to Amendment No. 2, I shall speak also to Amendments Nos. 25, 31, 33 and 34. The aim of the first of this group of amendments is to remove paragraph (c) of Clause 1 which states:
(c) for enforcing authorities to require persons subject to banning orders to surrender their passports in connection with certain association football matches played outside the United Kingdom".
§ This amendment was debated at a fairly late hour this morning and, therefore, does not appear in Hansard. As a result I am tempted to redeliver, word for word, the extremely eloquent and persuasive speech that I made on that occasion! However, that may be inappropriate.
The provisions requiring surrender of passports are wholly and entirely unnecessary. In Schedule 1, paragraph 3, new Section 19(2A) states that, at the beginning of a control period in relation to a match or a tournament, if the enforcing authority, as it is called,
is of the opinion that requiring any person subject to a banning order to report is necessary or expedient in order to reduce the likelihood of violence or disorder at or in connection with the match, the authority must give"—
the subject of the banning order—
a notice in writing".
New subsection (2B) states:
The notice must require that person—
- (a) to report to a police station specified in the notice at the time, or between the times, specified in the notice,
- (b) if the match is outside the United Kingdom and the order imposes a requirement as to the surrender by him of his passport, to surrender his passport at a police station specified in the notice at the time, or between the times, specified in the notice".
§ So there are two elements both of which are compulsory: one is attending a police station and the other is surrendering the passport. The obvious course of action is to require the subject of the order to attend the police station at the time when a match is taking place. That already happens in domestic banning orders. Effectively, in the case of a match outside the United Kingdom, that prevents the subject of the banning order travelling to watch the match.
§ Therefore, what on earth does an order to surrender a passport accomplish that cannot be accomplished by a banning order? Effectively, the answer is nothing. A subject of a banning order is not likely to be persuaded to hand in his passport if he is not willing to comply with such an order anyway. In either case, if he does not comply he will go to gaol. The only possible value of a surrender of a passport is a symbolic one.
§ It has been said in the press that the Germans prevented hooligans from travelling to Euro 2000 in the Netherlands and Belgium by removing passports from known hooligans. In fact, as became apparent last night, that is wholly untrue. The Germans imposed reporting orders on most of their hooligans. Under German law a passport can be required to be surrendered only for very serious crimes and there is no question of a football hooligan being required to surrender a passport. Sometimes the authorities stamp a passport in such a way as to make it ineligible for admission to the country where a match is to take place. That is something that the Government, in this case, have decided not to do.
§ The requirement to surrender a passport is wholly unnecessary. It is not only unnecessary but for many people it is also a highly intrusive order. It will have all sorts of effects which may happen at unpredictable times and which may persist for long periods such as a month or more continuously. The requirement to surrender a passport may prevent someone from going abroad for family reasons, for work or even for a pre-booked holiday to Florida, which is thousands of miles from the nearest serious football match.
§ Admittedly, under Section 20 of the Football Spectators Act 1989 there is a power to apply for exemption from the requirement. That has to be applied for separately each time an exemption is sought and, worse, there is no provision that enables the subject of a banning order who wants to go abroad on a permanent basis—perhaps for a job or 302 to live—to apply for a discharge of the order on the grounds that, in the new circumstances, it is no longer appropriate.
§ The surrender of a passport is a serious infringement of the right of movement and is almost certainly contrary to European Union law unless it is proportionate to the evil which it is sought to prevent. It may be that if the surrender of a passport was the only possible way in which a hooligan could be prevented from going abroad, that condition might be satisfied. But what is plain here is that, given that a reporting order will do the job just as well, requiring the surrender of a passport in addition is wholly disproportionate, serves no useful purpose, is certainly contrary to European Union law and possibly also to the Human Rights Act.
§ In those circumstances it is impossible to see why this provision has been included. It should be removed from the Bill as soon as possible. I beg to move.
§ Lord Cope of Berkeley
My Lords, I agree with the noble Lord, Lord Goodhart, that this provision for the surrender of passports on top of the provision for reporting to the police station could be regarded as belt and braces; as two ways to achieve the same thing. But sometimes it is correct to use belt and braces to ensure that the desirable aim—the prevention of the individual concerned from travelling to a football match—is achieved. Therefore I cannot support Amendment No. 3.
§ Baroness Ludford
My Lords, will the Minister share with us the legal advice he received in relation to the points made by my noble friend Lord Goodhart on the potential clash of the free movement provisions of the European Union treaties? My noble friend makes a serious point. At a time when efforts are being made to put more flesh on the bones of the free movement provisions, certainly in communications of which I am aware in the European Commission and currently going through the European Parliament and the Council of Ministers, this provision appears to be going in the wrong direction. Can the Minister tell us precisely how he responds to this question of a clash between the provisions of the Bill and the rights under the European treaties?
§ The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)
My Lords, this amendment was discussed yesterday. Its impact is important. It would remove the provision that banning orders must, save in exceptional circumstances, impose a requirement on recipients to surrender their passports when required to do so by the enforcement authority during control periods.
I am particularly surprised that the noble Lord should choose to return to this amendment. Mandatory surrender of passports is one of two measures in the Bill which had been accepted by all sides, including the Liberal Democrats in another place. The imposition of such a requirement will be a key element in the new structure of controls which this 303 Bill will set up in order to ensure that the requirements of banning orders are complied with, at least so far as they relate to overseas matches.
I made it clear that there is provision for a person to appeal against a requirement to surrender his passport and that the enforcing authority can waive compliance with the condition in certain circumstances—perhaps in some of the circumstances to which the noble Lord, Lord Goodhart, alluded. Section 19(2A) makes clear that the enforcing authority under the Bill—the football banning orders authority—may only impose passport surrender conditions in relation to specific matches if satisfied that such conditions will reduce the likelihood of violence or disorder at that match.
I should also like to repeat that Section 20 of the Football Spectators Act, which does not appear in this Bill because it is not amended in any way by this Bill, already provides for the recipients of banning orders to apply for exemptions from any requirement, and for them to be able to appeal to a magistrates' court if the football banning orders authority refuses the application. That seems to me to be good due process.
The regime we propose to put in place for the surrender of passports, which is closely based on the existing system which was set up for international football banning orders, will be no more stringent than is required to meet the purpose for which it was instituted. As I made clear earlier, this proposal was widely supported.
The noble Baroness, Lady Ludford, asked me to reveal our legal opinion. But it is not customary to do that. However, I addressed this issue in the debates yesterday and made the point—fairly, I believe—that rights of movement in Article 509 of the EC treaty and set out in Directives 73/148 and 64/221, are not absolute rights of free movement. The right to travel to receive services may be restricted in the interests of public policy and public security. Those restrictions must of course 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, in our view meets those criteria and represents a balanced and proportionate package of measures. Ultimately, it is our opinion that it is right. We believe that this measure is proportionate; that it will make a contribution to securing the security and public safety that we have debated. And this is a measure which attracted widespread support beyond this House. In those circumstances, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Goodhart
My Lords, I am unhappy with the Minister's response. I am of course aware of Section 20; indeed, I referred to it in moving the amendment. Section 20 is amended by this Bill in paragraph 14 of Schedule 2, though those amendments are purely consequential.
The problem here is that there is a serious gap. That is one of the reasons we are particularly concerned. The gap arises because, although of course if there are 304 exceptional circumstances the court is not bound initially to make the banning order and there is a right of appeal against the order, the exceptional circumstances must exist at the date of the banning order or when the appeal is heard. Thereafter there is a considerable gap in time when the banning order continues. Section 20 allows an exemption only on a case-by-case basis; it has to be reapplied for each time.
Given that under new Section 14B(2) of the 1989 Act, a banning order can be made in the absence of a criminal conviction and the Government continue to insist that they are making a civil law order, there plainly ought to be a power to go back to the court to ask for the discharge of the order if it is clear that the subject of the banning order is no longer likely to indulge in violence or disorder. It is because of that gap that we are particularly concerned.
Having said that, I realise that we have to recognise what our priorities are in this Bill. Although it is an important amendment, in our view it is not the most important of those we tabled. Therefore I do not intend to press it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Goodhart moved Amendment No. 3:
Page 1, line 17, leave out paragraph (d)
§ The noble Lord said: My Lords, the purpose of Amendment No. 3 is to remove the power to make a summary order which will prevent somebody who is thought to be a hooligan or potential hooligan from travelling abroad, even at a time when there is no subsisting banning order against him.
§ We are dealing here with the last of the Government's four main proposals under the Bill, and the one that has attracted the most widespread opposition among all sections who are concerned about this legislation. Indeed, when this matter was debated last night—I do mean last night, not this morning—it gained widespread support from all sides of the Chamber. There is a serious problem here. One has to consider what this proposal is intended to achieve. It will no doubt be used to stop at some point people who are on their way to an overseas match before they leave the United Kingdom or, indeed, England and Wales.
§ On Second Reading many speakers, including myself, pointed out that the real hooligans do not turn up in their Union Jack or St George's Cross T-shirts, with their beer bellies hanging out and swilling cans of lager. Indeed, if this legislation is enacted, the serious hooligans will dress tidily and discreetly—although perhaps not quite like your Lordships—and will escape notice. If the police start arresting people on mere suspicion based on their appearance, they will soon find that they have saddled themselves with a lot of very unhappy and innocent people who have been prevented from attending the match that they wanted to see. This will cause a great stink via newspaper reports. Moreover, under the new provision for 305 compensation that I was very glad to see incorporated into the Bill in Committee, the police will have to pay out large sums of money.
§ Obviously, the police understand all that as well as anyone else. Therefore, they are not likely to spend their time at airports looking for the most likely potential hooligans and arresting people simply because they have a tattoo or a beer belly. Plainly the police will act on the basis of intelligence. They will be told the names of the people with records for whom to watch and, having identified them, they will stop them and inform them that they can go no further.
§ Therefore, in those circumstances, the question will arise as to why the police did not seek to obtain a banning order earlier, rather than wait until these people arrive at an airport. There are two possible answers. First, they may not have quite enough evidence to justify obtaining a banning order or they may not be satisfied that they have it—in which case they should not have stopped the person, save in very rare circumstances where last-minute information has come to their notice. The second possibility is, frankly, the more likely one Even though the police may have information that could lead to the issuing of a banning order, the police may decide for reasons of cost and time not to seek such an order against a potential hooligan until he has actually set off to attend a match. That seems to me to be a wholly improper use of the power and one that should not be permitted.
§ If the police are going to apply for banning orders, they should do so in good time so that such an order can be made and the requisite notice served on the person concerned before he leaves home to make his way to a match. However, there is more to it than that. As the noble and learned Lord, Lord Lloyd of Berwick, said last night, this is an unprecedented power. It is not just inappropriate; it is an infringement of the rights that have been recognised in this country for a very long time. New Sections 21A, 21B and 21C give the police power to stop and detain someone; to order that person to appear at the magistrates' court within the following 24 hours; and to arrest that person and keep him under arrest if the police officer believes that the suspect is likely to fail to appear in court.
§ As I said, the Government persistently—and, I believe, contrary to all recognised standards—regard a banning order as a civil rather than a criminal order. Therefore, one has to ask: how on earth is it possible to justify giving powers of detention and arrest, even for 24 hours, as regards someone who has not had a criminal conviction for violence in the past and against whom there is nothing more than a suspicion, a belief, that he may take part in violence if he is allowed to proceed to the football match? Moreover, the police can not only detain someone for 24 hours: the magistrates can also remand him and remand him in custody, which is an extraordinary position for what is allegedly the prelude to the making of a civil order.
§ It seems to us that this is a wholly improper use of the power that should not be exercisable. The power given to the police to arrest and detain people merely 306 on the basis of suspicion is wholly inappropriate and should be removed firmly and completely from the Bill. I beg to move.
§ 4.30 p.m.
§ Lord Lucas
My Lords, this set of amendments attracts me a great deal. However, we now have the opportunity to deal with the final solution on Third Reading. It seems to me that that may be the more appropriate way to deal with this group of amendments. My judgment on these matters will very much depend on what the Minister says. If he can indicate that, as far as concerns Amendment No. 36 and those following it, he has taken note of the points made and admits that there are changes to be made to the Bill—if not now, perhaps at Third Reading—we should surely allow consideration of this part of the legislation to proceed until we reach those amendments.
However, if, as I fear, the Minister has come to the House today with the word "resist" written all over his brief and has no intention of making any accommodation as regards the points that we have all been making on this extremely unsatisfactory part of the Bill, I shall have a great deal of sympathy with the pursuit of these amendments at this stage.
Lord Carlile of Berriew
My Lords, in supporting my noble friend's amendment, perhaps I may ask the Minister a few questions the answers to which may be helpful. First, have chief constables really recognised that this provision, as drafted, releases a new area of arbitrariness into their hands? Do the Government accept that it is very likely that the provision will be used against those who appear eccentric, those who are slightly drunk and scruffily clad, or those who may have rather extreme forms of supporter kit about their bodies? Indeed, the provision is most unlikely to impact against those who, properly clad and cunning in their careful planning, are out to subvert the enjoyment of the rest of us who like to attend good football matches.
My second question goes to the text of the Bill. My noble friend referred to the provision in Schedule 1 which imports into the legislation the right of a magistrates' court to grant compensation if one of these orders has been obtained wrongfully. The Minister will be aware that there are many actions for false arrest and unlawful imprisonment against the police, which are usually brought in the county court these days. They are tried by juries. Claimants have the opportunity to have their claim judged by their peers. It is possible for them to be awarded damages not only for financial loss but also for injury to their feelings and for the fact that they have lost their liberty for a period of time.
The provision in Schedule 1 which relates to compensation appears to allow compensation to be paid only for actual financial loss suffered. Further, it contains no provision whereby a claimant can ask a jury of his or her peers to decide whether this quite extraordinary new power has been exercised on a proper basis. Will the Minister tell the House whether a 307 person is to retain his or her right to bring a civil action before a jury in a county court if one of these orders has been obtained wrongly? If they are not to retain that right, even if they lose in the magistrates' court that would constitute a scandalous change in the law depriving the citizen of a valued and long held right.
My first question concerned what has been asked of chief constables in relation to arbitrariness. My third concerns what has been asked of chief constables in relation to the burden of dealing with this provision, which is likely to be used almost always in extremely controversial circumstances likely to lead to dispute and applications for compensation. Do chief constables really want this? Does the ACPO really feel that it needs this? Does it consider that it adds anything to the effective powers already in existence? One has a suspicion that although there may be laudable aims behind the Bill, this is a piece of unnecessary window dressing. I hope that the Minister can answer those questions, especially the one about compensation claims and civil actions.
§ Lord Goldsmith
My Lords, before the noble Lord sits down, why does he think that new Section 21D, which entitles the magistrates' court to order compensation if satisfied that the person has suffered loss as a result of the giving of the notice, either limits that to actual financial loss or prevents that person from bringing any other claim to which he might be entitled? I hope that the noble Lord will answer that question before he sits down.
Lord Carlile of Berriew
My Lords, the amendment to the provision appears to provide payment of compensation in respect of a loss. If I am wrong about that, I am happy to be corrected. However, the noble Lord did not appear to correct me; he merely asked why I said what I said. I said what I said because I thought that I had read the provision properly. However, the noble Lord is a distinguished lawyer and I am happy to defer to him if he can establish otherwise. What concerns me—this is most important—is that a citizen who may have been the victim of arbitrary action should have recourse not to a magistrates' court, which lives under one set of judicial pressures, but—like every other aggrieved citizen who complains about false imprisonment—to a civil court where there is often a jury and where compensation is at large and unlimited.
§ 4.45 p.m.
§ Lord Goldsmith
My Lords, I did not take part in the discussion either at Second Reading or Committee stage and for that I apologise. I asked the question of the noble Lord because I could not immediately see why a reference to suffering loss should prevent the magistrates awarding compensation for any loss they thought had been incurred. It is clear that, as a matter of law, courts award compensation for loss of enjoyment, amenity and benefits, for which money can compensate but which is not simply a case of pounds or pence out of one's pocket. As the noble Lord has 308 participated in the Bill to such a large extent, I thought that he might have had some reason for interpreting loss in the rather narrower sense which he put forward.
Further, I assumed—that is why I asked the question—that there must be something in the Bill which takes away rights of citizens to bring claims which otherwise they would have. I hoped that, if there were such a provision, he would have drawn it to your Lordships' attention. For those reasons I inquired about the questions which the noble Lord posed.
Lord Carlile of Berriew
My Lords, I am not sure whether I am now intervening in the noble Lord's speech or whether I am replying to an intervention in mine. However, I crave your Lordships' indulgence. With great respect to the noble Lord, I disagree with him on the interpretation of new Section 21D(1)(b). I suggest to your Lordships that it is likely that on judicial review—if that were the appropriate procedure—or in the administration court, as I believe we have to call it now, loss, as described in the provision, would be limited to financial loss. In any event, the figure for loss is capped at £5,000. However, the figure for loss in a county court is not capped at £5,000. As I understand it, county courts frequently award damages of more than £5,000 in actions for false imprisonment. I am not sure what the hourly or daily rate is now, but £5,000 may well be at the lower end of compensation awards in that context. There is plainly an interesting dispute here which the noble Lord and I could more profitably—in the literal sense—have adjudicated elsewhere, were we on opposite sides. But perhaps the Minister can relieve the public of that expense by answering the questions that have been posed.
§ Lord Cope of Berkeley
My Lords, I believe that we are all agreed—at least those of us who have discussed the Bill for many hours—that the provision which the amendment seeks to knock out is the most controversial in the Bill. It is also apparently regarded by the Government as the most important power in the Bill and the most potent power to address the mischief of British football hooliganism carried out overseas.
As the noble Lord, Lord Goodhart, said, we have discussed the clause both in principle and in detail for a long period. I do not believe that these provisions will be much used in practice for the practical reasons which have emerged in the debate and which emerged in more detail overnight. These include the existence of the compensation provisions. I shall not enter into the legal discussion which has taken place as no doubt we shall return to that when we reach the compensation provision later in our discussions. That is one practical reason. The other—which has also been mentioned—constitutes the difficulties that the measure will pose for the police. As I say, I believe that because of those practical difficulties, these provisions will not be much used in practice. I also strongly believe that the power should only be temporary to give us the opportunity to judge whether in practice the power is important and works—whether the Government are, in effect, right—and whether it is a balanced power with regard to civil liberties.
309 I am not minded to deny the Government this power at this stage. We want the Government to be able to tackle British football hooligans who commit offences overseas. We want to do that in the interests of our country and its reputation but also in the interests of football and of ordinary decent fans who wish to attend matches of the character we have discussed. While I doubt whether the power will be as important or as effective as the Government maintain, if they are allowed to try it out for a temporary period we shall be able to judge the truth of their claim and the practical effects of the proposed power.
§ Lord Phillips of Sudbury
My Lords, perhaps I may add a practical observation to the legal analysis advanced by my noble friend Lord Goodhart. Before doing so, I shall share with your Lordships a certain realisation based on the recent debate between my noble friend Lord Carlile and the noble Lord, Lord Goldsmith. It is a point which has not been discussed hitherto but which has a great deal of substance. I suspect that there are many more such points in the Bill.
I suspect that some noble Lords will not be content with proposed new Section 21A, whatever pragmatic success it might achieve if enacted. There are such profound civil libertarian objections involved—some of which have been voiced this afternoon and many of which were voiced overnight, perhaps most effectively by the noble and learned Lord, Lord Lloyd of Berwick—that we would not accept it at any price.
I do not know whether the noble Lord, Lord Bassam, would like a suspension of business?
§ Lord Phillips of Sudbury
My Lords, I should hate to miss the noble Lord's attention because much hangs on this amendment. Effectively we are talking about the severe, pragmatic, likely consequences of proposed new Section 21A. It is common ground that the Government made strenuous efforts to prevent trouble at Euro 2000; it is common ground that NCIS spent an immense amount of time and effort trying to draw up a list of those who would cause trouble in a competition such as Euro 2000. The Home Secretary has let us know that of the 965 people arrested and deported from Brussels and Holland, only 30 were on that list of 1,000 most-wanted hooligans, if I can call them that. We also know that there were only four prosecutions of the 965, and only two of those for violence, of which one is currently being appealed.
Many noble Lords were not here at whatever hour we debated the matter this morning or last night, so I have to repeat my question to the Government—I have not yet had a reply—on the issue of how the people in the sights of the law enforcement agencies will be targeted? If they are the 1,000 most-wanted hooligans on the NCIS list, we know from the recent evidence in Belgium that they either escape the net somehow, or do not go there, or whatever else. Could it therefore be that the next most likely group to be targeted under the provisions of proposed new Section 310 21A are the 30 per cent of adult males under the age of 30 who have convictions? That group was much referred to by the Home Secretary in another place and when we met him a fortnight ago.
How on earth can one target a group that is hundreds of thousands strong? That is what it boils down to. If 30 per cent of the population of that age group have convictions of this kind, it represents hundreds of thousands of people. How will the law enforcement authorities target them? We debated this sharp, practical point enough last night to leave many of us believing that the poor police will have a simply impossible task in seeking to utilise proposed new Section 21A. If it proves an impossible task and, as my noble friend Lord Goodhart said, if the exercising of it is likely to be so arbitrary against a particular group that it causes more trouble than it solves, then, besides being obnoxious in legal and civil libertarian terms, proposed new Section 21A is likely to prove ineffective in fact. On that basis—quite apart from the broader legal basis—the House would be well advised to remove this whole provision from the Bill.
§ Earl Russell
My Lords, we spent a lot of time last night trying to get an answer to the question asked by my noble friend Lord Phillips. It is a vital question in relation to any decision on the state of the Bill as a whole. Clearly, if prevention is to be attempted—which the Minister recommended at great length and with some virtue last night—one must be able to identify the group which is to be prevented. On the one hand, we are shown an NCIS list which is too narrow; on the other hand, a range of people with previous convictions which is too wide. Clearly neither of those will actually be used. Unless we can show some criterion for identifying these people which has some genuine correlation with their propensity to commit disorder, we shall have no way of telling whether the Bill is more likely to impact on the guilty or on the innocent. Unless the Minister can answer that question, the Bill as a whole should fall.
§ Lord Bassam of Brighton
My Lords, it may be useful if I clear up one of the questions asked by the noble Lord, Lord Carlile, in his interesting exchange earlier. I know that the noble Lord is concerned about civil actions; he has a long history of asking Written Questions on the subject in another place. I had some involvement in the subject earlier in my career when I was doing research as a law centre worker; I understand fully his point about the importance of a citizen being able to undertake and conduct a civil case in circumstances where they feel they have been wronged.
However, the noble Lord should understand that the provision in the Bill at proposed new Section 21D is designed to give immediate compensation without the need to make a separate application to the county court. Setting that provision into the legislation does nothing to compromise the individual citizen's absolute right—
Lord Carlile of Berriew
My Lords, I am sorry, I d id not mean to interrupt the noble Lord in mid-sentence.
311 However, I think I have anticipated the rest of the sentence. Can the Minister confirm that if a citizen is able to bring a civil action later, then an adverse finding of fact in a summary hearing in front of the magistrates' court will not be capable of being used by the police to put forward, for example, pleas of res judicata in the civil action which later ensues?
I see the noble Lord, Lord Goldsmith, shaking his head in apparent disbelief. Having been in a rougher end of the trade than he for 30 odd years, I can tell him that these are the kind of issues that arise day by day in county courts up and down the country. Perhaps the Minister will address the question and give the House an answer in addition to the very helpful answer he has given already.
§ Lord Bassam of Brighton
My Lords, I always feel modest in the face of such legal knowledge and expertise. I cannot provide the noble Lord with an off-the-cuff response; I think he appreciates that. The point I am trying to make is that there is nothing in the legislation which compromises the individual citizen's right or ability to undertake a civil action where they feel they have been wronged.
Lord Carlile of Berriew
My Lords, I understand the Minister raising his eyes to the heavens; I promise not to interrupt again on this matter. But does not this illustrate the danger of bringing forth legislation in haste without considering what are not abstruse questions at all? I said to the Minister—and I mean it—that this is the kind of question that arises every day of the week in county courts up and down the land. Should not the Government bring forward legislation in which, at least in a Pepper v. Hart sense, they can resolve ambiguities which will come before the court—or should they not think about this provision again?
§ 5 p.m.
§ Lord Bassam of Brighton
My Lords, the compensation element within the legislation was brought forward in an effort to be helpful and also to indicate that we fully appreciated the seriousness, and measured the seriousness, which the proposals in the legislation might have for an individual citizen. They were, if you like, a balancing part of the package of provisions. I find it rather strange now that the noble Lord is almost advancing an argument which says, "Well, because you put this compensation clause in, it somehow compromises the individual citizen's right to take civil action in the county court". That is not our intention. Nor is it the intention of the legislation. No doubt people will continue, as they have done for many decades, to pursue civil action where they feel they have been wronged by a public authority—in this instance by the police service.
I turn now to the other issues which are very much at the heart of the debate. While I shall do that at length, I think that what I say will cover most of the issues raised during the debate. It has been a very useful debate. Most noble Lords' concerns in the debate this afternoon and earlier in the day have been 312 focused on the civil liberties end of the business; concerns about those detained or issued with a notice commencing a banning order by consent procedure. Some noble Lords have focused on the pivotal question of implementation. I shall come to how the measure will actually work. Some noble Lords have expressed concerns about thousands of detentions— the noble Lord, Lord Phillips, used that term—and banning orders that might arise from new Sections 21A and 21B. The noble and learned Lord, Lord Donaldson, I thought helpfully, placed those fears into context with his dismissal of the notion of a police officer picking individuals arbitrarily out of a queue and saying, "I want to investigate you". As the noble and learned Lord made clear, the police officer has at that moment to have reasonable grounds for suspecting that a condition in new Section 14B(2) has been met. Of course, he is quite correct.
§ Earl Russell
My Lords, I hope the Minister can assist me. I heard the remarks of the noble and learned Lord, Lord Donaldson. The question that we should like to have answered is what sort of grounds might it be thought reasonable to proceed upon? What type of evidence in a policeman's possession would warrant taking proceedings under the new section?
§ Lord Bassam of Brighton
My Lords, I said I would try to answer the questions. That is one of the issues to which I shall return. But, with respect, having listened to what the noble and learned Lord, Lord Donaldson, said, I think that he clearly understands the importance of the civil liberties issues. He has addressed also the implementation matters. It is right to concentrate first on what the debate in Committee only touched upon, perhaps almost in passing. That is the experience that has convinced the Government and the police that the measures proposed in Section 21 are a vital component of the Bill. Indeed, I argue that they are crucial if we are to seriously tackle the kind of mindless 'yobbery' and nonsense witnessed in Charleroi, Brussels, Copenhagen and elsewhere during the course of the last football season.
Some noble Lords—I hope many noble Lords—may have seen over the weekend a timely television documentary on football in the 1970s. It was a real trip down memory lane. It featured footage of the then Home Secretary, police and football authorities in a high profile meeting convened to discuss the scourge of football hooliganism. It was a timely reminder of the longevity of the phenomenon and the need for radical measures. These measures, like the extensive use of CCTV, were radical for the day. They attracted opposition and concern. But the nettle was grasped. It can be fairly argued that the domestic manifestation of football disorder was confronted head on and has been dealt with in good measure. Today, we can rightly be proud—as I have said in the past—of our domestic stadia. They are among the safest and most secure in the world. There were no easy solutions then; there are no easy solutions today.
Those of us with a passion for football, and who take pride in our national image, have no choice but to focus on the involvement of English louts in football 313 disorder overseas. Riots in Italy, Marseilles and Copenhagen came and went and we sought succour in pointing the finger at a small minority of dedicated troublemakers staining our national reputation and national game. That view mistakenly persists.
§ Lord Bach
I am sorry. I hope the noble Lord will sit down for a moment before he asks his question. I should remind the House, not because the noble Lord has just got to his feet but because there have been a series of questions to the Minister while he has been giving his reply, that we are on Report now, not in Committee. If I may read briefly from the Companion so that all noble Lords are equally aware of the position:On Report no Lord may speak more than once to an amendment, except the mover of the amendment in reply or a Lord who has obtained leave of the House, which may only be granted to a Lord to explain himself in some material point of his speech, no new matter being introduced, or to a Minister of the Crown. Only the mover of an amendment speaks after the Minister on Report save for short questions for elucidation to the Minister before he sits down".Having reminded noble Lords of our conventions and rules, I invite the noble Lord to ask his question. I hope that noble Lords will allow the Minister to finish what he has to say. Then, if there are matters for elucidation, they will be asked. Then the mover of the amendment no doubt will speak to the amendment again.
§ Lord Forsyth of Drumlean
My Lords, the last time I sought to ask a question on Report the noble Lord made the same point. I may be a slow learner, but I receive the message. Perhaps I may ask the Minister a question. Given that the problems with Scottish fans misbehaving over the period he was referring to overseas were solved without legislation, why is it necessary to have legislation in order to deal with the problems afflicting English fans? Does he not think that the remedy might not lie elsewhere, as proved to be the case in Scotland?
§ Lord Bassam of Brighton
My Lords, the noble Lord has raised a very good point. I do not dispute it. It is for that reason that we are setting up a football working group to look at the other range of issues that surround the issue. The noble Lord is a football supporter. The government of which he was a Minister introduced six measures to attempt, through legislation, to curb and deal with football hooliganism. Clearly, in the past he has supported legislation designed to tackle some of the problems we have identified which we are bringing forward to your Lordships' House today.
There is a myth that has survived that it is a problem with just a small minority. I do not believe that that is the case. The truth is that the Football Spectators Act 1989, the Football (Offences and Disorder) Act 1999 and other widely accepted measures in the Bill will provide the legislative framework necessary to tackle the known football thugs. The noble Lord, Lord Phillips, and others referred yesterday to the hooligans 314 known to NCIS. He has made reference again to that fact. He is right to do so. These people are known to the police; they know how their operate and, as Euro 2000 confirmed, they know how to minimise the impact of their thuggery. We can all take pride in the fact that our police have a world-wide reputation for combating the activities of the known football hooligan. The police use of intelligence and targeted operations are praised throughout Europe. Indeed, they were praised during Euro 2000.
The noble Lord, Lord Phillips, was one of a number of noble Lords who also drew attention to the absence—he did so this afternoon—of known football hooligans among the many hundreds arrested, detained and deported. He was right to draw attention to that point. The dedicated hooligan was effectively removed from the scene during Euro 2000. But, and it is at the heart of the debate, English football disorder was present with a vengeance. The evidence before us is stark. Removing or banning known football troublemakers will not tackle the problem unless—the noble Lord's point—supplemented by other measures.
The Government could not ignore the Euro 2000 experience. We had an obligation to analyse the data before us and determine the best means upon which to act. Noble Lords face a similar test today. The measures contained in new Sections 14B, 21 A and 21 B are the Government's response. They are not knee-jerk; they are calculated; they are measured; and they are a response to the problem of English football disorder based on the evidence. They are radical but necessary.
The information gleaned by the police from the Dutch and Belgian authorities confirms that a significant number of those arrested in Belgium and the Netherlands were known to the police, though not necessarily in a football context.
Many have criminal convictions in their own localities for violence and disorder. They come from that pool of disaffected white males who have increasingly opted to act in an anti-social and violent way in town centres. Many appear to have racist views and a distorted view of patriotism and Englishness. In their case, rioting in Charleroi and Brussels is a football manifestation of a wider social malaise. Alcohol can and does play a crucial part.
Of course, and as we have accepted, legislation alone cannot deal with the problem, but it has a key role to play. New Section 14B will enable the police to seek a banning order by complaint on those who have previously caused or contributed to violence and disorder as soon as evidence linking the individual with football becomes available. However, the reality is that the police will not always be able to make such a link in sufficient time to pursue new Section 14B proceedings before a match or tournament commences. England followers are notorious for making last minute decisions about travelling to watch the England team. Louts are no different. In many cases, local police will have no knowledge that a known hooligan with a propensity for violence, racism 315 or disorder intends to travel until a few days before the match. That would provide insufficient time to pursue a new Section 14B banning order.
We have to build in a long-stop measure designed to meet those circumstances. And that in essence is what new Sections 21A and 21B attempt to do—successfully in my view and in the view of the police. It is a vital component of the Bill. There are no other apparent means for empowering police to protect our national interest in this field and to ensure that innocent citizens abroad are not subject to abuse and violence.
The Government also recognise the need to put in place safeguards. We have already demonstrated our willingness to do so. We have listened and responded to the concerns aired in this House and in the other place. The safeguards may hamper police operations but they recognise, and we know, that the measures we propose must enshrine in law an appropriate balance between individual civil liberties and our national and international interests and responsibilities.
A number of noble Lords queried how new Sections 21A and 21B would operate. Of course, once enacted, it would largely be an operational policing matter. But I recognise that effective scrutiny of the Bill demands some understanding of how the measure would be pursued. I, and others, have already made clear that the National Criminal Intelligence Service, the Association of Chief Police Officers and the Superintendents Association, all strongly support the inclusion of new Sections 21A and 21B, a point raised by the noble Lord, Lord Carlile. They would not, and have not, provided that endorsement without carefully thinking through how the measure would work and what it would deliver.
Your Lordships may wish to know that in anticipation of new Sections 14B and 21, the police are already examining what mechanisms they will need to put in place to ensure that new Section 21, in particular, will be effective. The focus will not be on targeting known football hooligans but on developing systems which gather information on individuals against whom there are unspent convictions for, or other substantive evidence of, violence or disorder once a link with football has been established. It will not feature football fans against whom there is no such evidence nor violent or disorderly persons with no connection with football. Local police forces will play a key role, particularly in the build-up to a big match or tournament overseas. They will need to gather information on local thugs and racists once it becomes known that these characters intend travelling overseas to a match. And, I repeat, that could be a matter of hours before the individuals arrive at their point of destination. That is why new Section 21 is so important.
Of course, the information gathered and used for new Section 21 purposes will still have to undergo a thorough examination in the courts. I should stress again that new Sections 14B and 21 provide the police and the courts with an effective means for preventing individuals who are known to be violent and disorderly, but who do not usually demonstrate their 316 tendencies at a football match, from travelling to matches overseas and possibly using violence and causing mayhem. The new Section 14B option is the preferred option—that needs to be understood—but, for the reasons that I have explained, the removal of new Section 21 would significantly reduce the capacity of the police to deal effectively with this menace.
Innocent people have nothing to fear; neither do the overwhelming majority of law-abiding football fans. As the noble and learned Lord, Lord Donaldson, said in Committee,I do not think that there is any risk of random picking of people [by the police]".—[Official Report, 24/7/00; col. 183.]The powers in new Section 21A and 21B will be used in the same targeted fashion which characterises football-related UK policing operations.
I appreciate that this has been a long contribution on my part. I am sure that every one of your Lordships wishes that restricting the scope of the Bill in the way proposed would still leave us with a Bill that would empower the police and the courts to prevent a reoccurrence of the appalling scenes witnessed in Brussels, Charleroi, Copenhagen and many more places over the past few years. Alas, I do not believe that to be the case. The measures contained in new Section 21 are necessary because the alternative would be to ignore the Euro 2000 experience and the express wish of the police to have the means at their disposal to minimise the risk of those thugs being able to bring further shame on our nation and national game. I urge the House to oppose Amendments Nos. 3, 8, 9 and 35.
§ 5.15 p.m.
§ Lord Goodhart
My Lords, I am grateful to noble Lords who have spoken in support of the amendment. I am sorry that the noble Lord, Lord Cope, was not able to be more supportive. He took the view that new Sections 21A and 21B were unlikely to be used to any significant extent. I am unable to agree with him. The Minister has made it fairly clear that the Government intend that the power should be used quite extensively. It is likely that for a period of at least several months there will be many arrests and detentions under new Sections 21A and 21B and that that will continue until it becomes apparent, as I suspect it will become apparent, that far too high a proportion of those who are arrested have the applications for banning orders against them thrown out by the magistrates' court.
The Minister's speech confirmed very much what I suspected the aims of the police would be and why the Government want to have new Sections 21A and 21B in their armoury. It is clearly intended that those who are suspected of having hooligan tendencies—there may be a great deal of evidence to show that they are hooligans—will not be made the subject of immediate banning orders under new Section 14B but will be kept under watch and proceeded against under new Sections 21A and 21B only at the point at which they show that they have decided and have taken steps to go to a match. All the troubles will result from that.
317 The provision—it is said to be a civil remedy but is plainly in reality a criminal remedy—will not satisfy the tests of human rights. The opinion by Clare Montgomery and Rhodri Thompson, which was referred to extensively in the Committee stage, stated:The power conferred on the police to detain persons for the purposes of ascertaining whether section 14B(2) applies to the individual in question does not apparently fall within the scope of any of the exceptions provided for in Article 5(1)(a) to (c) of the ECHR to the general right of liberty and security of person".In referring to hooliganism in the 1970s, the Minister said that there were no easy solutions then and that there are no easy solutions today. My problem is that I believe that the Government look on the Bill, and in particular the provisions in new Sections 21A and 21B, as being an easy solution. However, I believe that if they attempt to enforce those sections, they will find that this is far from being an easy solution.
The Minister has not moved in any way to satisfy the concerns expressed by myself and my noble friends and, indeed, others who hold similar views on these provisions. I therefore seek leave to test the opinion of the House.
§ 5.20 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 82; Not-Contents, 142.319
|Division No. 2|
|Addington, L.||Lucas, L.|
|Ampthill, L.||Ludford, B.|
|Attlee, E.||Mackie of Benshie, L.|
|Baker of Dorking, L.||McNally, L.|
|Barker, B.||Maddock, B.|
|Beaumont of Whitley, L.||Mar and Kellie, E.|
|Biffen, L.||Methuen, L.|
|Bowness, L.||Miller of Chilthorne Domer, B|
|Bradshaw, L.||Monson, L.|
|Brightman, L.||Naseby, L.|
|Carlile of Berriew, L.||Newby, L.|
|Clement-Jones, L.||Nicholson of Winterbourne, B.|
|Dacre of Glanton, L.||Oakeshott of Seagrove Bay, L.|
|Desai, L.||Onslow, E.|
|Dholakia, L.||Onslow of Woking, L.|
|Ezra, L.||Pearson of Rannoch, L.|
|Falkland, V.||Perry of Southwark, B.|
|Forsyth of Drumlean, L.||Phillips of Sudbury, L. [Teller]|
|Goodhart, L.[Teller]||Plummer of St. Marylebone, L.|
|Greaves, L.||Razzall, L.|
|Hamwee, B.||Redesdale, L.|
|Harris of Greenwich, L.||Rees-Mogg, L.|
|Harris of Richmond, B.||Rennard, L.|
|Haslam, L.||Renton, L.|
|Hodgson of Astley Abbotts, L.||Rodgers of Quarry Bank, L.|
|Holderness, L.||Roper, L.|
|Hunt of Wirral, L.||Russell, E.|
|Hutchinson of Lullington, L.||St John of Fawsley, L.|
|Jacobs, L.||Saltoun of Abernethy, Ly.|
|Jenkins of Hillhead, L.||Sandberg, L.|
|Knight of Collingtree, B.||Scott of Needham Market, B.|
|Lamont of Lerwick, L.||Sharman, L.|
|Lester of Herne Hill, L.||Sharp of Guildford, B.|
|Linklater of Butterstone, B.||Shutt of Greetland, L.|
|Smith of Clifton, L.||Tordoff, L.|
|Soulsby of Swaffham Prior, L.||Vivian, L.|
|Thomas of Gresford, L.||Wallace of Saltaire, L.|
|Thomas of Swynnerton, L.||Walmsley, B.|
|Thomas of Walliswood, B.||Warnock, B.|
|Thomson of Monifieth, L.||Watson of Richmond, L|
|Tope, L.||Williams of Crosby, B|
|Acton, L.||Hoyle, L.|
|Ahmed, L.||Hughes of Woodside, L.|
|Alli, L.||Hunt of Chesterton, L.|
|Amos, B.||Hunt of Kings Heath, L.|
|Andrews, B.||Irvine of Lairg, L. (Lord Chancellor)|
|Archer of Sandwell, L.|
|Ashley of Stoke, L.||Islwyn, L.|
|Ashton of Upholland, B.||Janner of Braunstone, L.|
|Bach, L.||Jay of Paddington, B. (Lord Privy Seat)|
|Bassam of Brighton, L.||Jeger, B.|
|Berkeley, L.||Jenkins of Putney, L.|
|Bernstein of Craigweil, L.||Judd, L.|
|Blackstone, B.||Kirkhill, L.|
|Blease, L.||Layard, L.|
|Bledisloe, V.||Lea of Crondall, L.|
|Borrie, L.||Lipsey, L.|
|Bragg, L.||Lockwood, B.|
|Brett, L.||Lofthouse of Pontefract, L.|
|Brooke of Alverthorpe, L.||Longford, E.|
|Brooks of Tremorfa, L.||Macdonald of Tradeston, L.|
|Bruce of Donington, L.||McIntosh of Haringey, L. [Teller]|
|Carter, L.[Teller]||McIntosh of Hudnall, B.|
|Castle of Blackburn, B.||Mackenzie of Framwellgate, L|
|Chandos, V.||Mason of Barnsley, L.|
|Christopher, L.||Massey of Darwen, B.|
|Clinton-Davis, L.||Merlyn-Rees, L.|
|Cocks of Hartcliffe, L.||Mishcon, L.|
|Cohen of Pimlico, B.||Mitchell, L.|
|Crawley, B.||Molloy, L.|
|Currie of Marylebone, L.||Molyneaux of Killead, L.|
|David, B.||Morgan, L.|
|Davies of Coity, L.||Morris of Castle Morris, L.|
|Davies of Oldham, L.||Morris of Manchester, L.|
|Dixon, L.||Murray of Epping Forest, L.|
|Donoughue, L.||Nicol, B.|
|Dormand of Easington, L.||Orme, L.|
|Dubs, L.||Palmer, L.|
|Elder, L.||Patel of Blackburn, L.|
|Evans of Parkside, L.||Peston, L.|
|Evans of Temple Guiting, L.||Pitkeathley, B.|
|Evans of Watford, L.||Plant of Highfield, L.|
|Falconer of Thoroton, L.||Ramsay of Cartvale, B.|
|Farrington of Ribbleton, B.||Rea, L.|
|Faulkner of Worcester, L.||Rendell of Babergh, B.|
|Filkin, L.||Richard, L.|
|Fyfe of Fairfield, L.||Rogers of Riverside, L.|
|Gale, B.||Sainsbury of Turville, L.|
|Gavron, L.||Scotland of Asthal, B.|
|Gilbert, L.||Sewel, L.|
|Gladwin of Clee, L.||Shepherd, L.|
|Goldsmith, L.||Shore of Stepney, L.|
|Gordon of Strathblane, L.||Simon, V.|
|Goudie, B.||Slim, V.|
|Gould of Potternewton, B.||Smith of Gilmorehill, B.|
|Grenfell, L.||Smith of Leigh, L.|
|Hardy of Wath, L.||Stone of Blackheath, L.|
|Harris of Haringey, L.||Strabolgi, L.|
|Harrison, L.||Symons of Vernham Dean, B.|
|Hayman, B.||Taylor of Blackburn, L.|
|Hilton of Eggardon, B.||Tenby, V.|
|Hogg of Cumbernauld, L.||Thornton, B.|
|Hollis of Heigham, B.||Tomlinson, L.|
|Howells of St. Davids, B.||Turnberg, L.|
|Howie of Troon, L.||Turner of Camden, B.|
|Uddin, B.||Wilkins, B.|
|Walker of Doncaster, L.||Williams of Elvel, L.|
|Williams of Mostyn, L.|
|Warwick of Undercliffe, B.||Williamson of Horton, L.|
|Watson of Invergowrie, L.||Winston, L.|
|Whitaker, B.||Woolmer of Leeds, L.|
|Whitty, L.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.29 p.m.
§ Lord Phillips of Sudbury moved Amendment No. 4:
Insert the following new Clause-