HL Deb 25 July 2000 vol 616 cc368-410

Consideration of amendments on Report resumed on Schedule 1.

Lord Phillips of Sudbury moved Amendment No. 12:

Page 5, line 31, leave out ("caused or contributed to any violence or disorder") and insert ("been convicted of an offence involving violence or any other relevant offence").

The noble Lord said: My Lords, this is a large group of amendments and perhaps at this time of night on the second day of Joycean continuous experience it is a mercy. However it is difficult to unravel this set of amendments with clarity and brevity, both of which are deeply desired at this time of night, but I shall do my best. Before the break, the Minister referred to the solace that we should take from the sunset clause and I understand what he means. However, a sunset clause in a bad Bill is still bad news and enough has been said for the purpose of the amendments to be well understood.

There are new and potentially dangerous powers in the banning order structure under the Bill. New Sections 14B and 21A are totally interlinked. After all, new Section 21A, relating to a "sus" offence, harks back to the conditions of new Section 14B(2) and we heard the noble and learned Lord, Lord Lloyd, say last night that suspicion is not on grounds of actual or imminent breach of the peace or suspected illegality but in respect of future conduct. What is more, and worse, it is based on long past conduct; up to 10 years. That is in dramatic contrast with the Crime and Disorder Bill and the anti-social behaviour orders on which the Minister has relied throughout.

Furthermore, a banning order under new Section 14B need not necessarily be related to football, unlike the provisions of new Section 14A and the existing legislation. Nor need it be in relation to a conviction, a point emphasised from many quarters. According to what tests are the Government or the police able to apply for a banning order? Is it a criminal test? No, we know that it is a civil test although it has criminal penalties and it is certainly in a criminal context. Does it involve mens rea or intent? No, it does not. Will there be any defence of self defence, provocation or other reasonable conduct, as is present in the Public Order Act? No, there will not.

The Government tell us not to worry too much because new Section 14B(4)(b) saves the day. Under that provision the justice of the peace must believe that there are "reasonable grounds" before a banning order is made. We are not happy with that.

What about the conditions for the banning order? Must there be violence? Yes, but of a very particular and limited kind. It can even be violence against property. It could be graffiti or smashing a couple of glasses in a pub intentionally when drunk.

What about disorder? It is a pity that the noble Lord, Lord Richard, is not here because his somewhat cavalier approach to all this would have been a good deal less so had he pondered on the definitions of "violence" and "disorder". Let us not forget that "disorder" is stirring up hatred against a group of persons. We have no problem with that but the use of abusive or insulting words or behaviour, or disorderly behaviour, embraces a multitude of sins and minor sins. Thinking back to my student days I remember that the boat club of Trinity Hall was perpetually abusive and insulting during its more elaborate celebrations, as were sporting organisations of all kinds.

Although the Minister has consistently said that that is not the kind of behaviour on which people will base applications for banning orders, I beg to differ. There is not much difference between the high spirits of a sporting institution of a university and the high spirits of students when demonstrating whether at a university or outside or whether in respect of genetic engineering problems, animal problems or visits of undesirable potentates as with the President of China. Such matters give rise to occasions when precisely abusive and insulting behaviour is a concern. We do not like a Bill which ultimately relies for its scope and implementation on the perpetual good sense of police and magistrates. That is not good legislation.

What about the violence? Must it be direct, actual or serious? No, it must be merely enough to contribute to "it" or to disorder. What is meant by "contribution to"? The Minister gave—if I may say without being offensive—a banal explanation to my noble friend Lord Russell. It will of course include cheering on when someone is, for example, destroying crops in a field. If you are standing on the side lines cheering on, that will be a contribution to disorder and to violence in property terms.

It need not be violence or disorder such that banning will prevent its repetition. It has not yet been pointed out that the magistrates need be satisfied only that the banning order will "help" prevent violence or disorder. "Help" is a little word and it can mean a little or a lot. It does not say "help significantly", it merely says "help". That is the weakest link in a very weak chain of protection for those against whom banning orders are sought. I regret not having woken up to the importance of that small word hitherto because no one has tabled a related amendment.

This group of amendments provides two broad approaches. We like both and believe that both would improve the Bill but we must have one or the other.

The first provides that a banning order cannot be based on conduct which is not the subject of a criminal conviction. Although the Minister may say that that shoots a torpedo under the waterline of the Bill we would not agree. New Section 14A allows for a banning order on the back of a criminal conviction which is football related. We believe that it is perfectly satisfactory for new Section 14B to allow a banning order based on a conviction which is not for football; it provides the kind of safeguards for which everyone has been asking.

The other approach would be to work with a scalpel, so to speak, on the provisions of the Bill and seek to tighten up the requirements. That is where Amendments Nos. 13, 14 and 15 in the names of the noble Lord, Lord Lucas, and myself, where Amendments Nos. 19 and 20 in the names of my noble friend Lord McNally and myself, and where Amendments Nos. 22 and 23 in the name of the noble Lord, Lord Lucas, all come in.

I shall sit down in a moment but I believe that it would help the House if I were to read out what is perhaps the key section in the Bill—new Section 14B(2)—with the amendments included in this group written into it. It would then read as follows: That condition"— that is, the condition on the basis of which a banning application can be granted— is that the respondent has at any time caused or significantly contributed with intent to any serious violence or disorder in the United Kingdom or elsewhere".

I believe that the amendments—one a deletion and three single word insertions—do not disable the Bill at all. Rather, we would say that they give the Bill a force, a balance and—to use the Minister's favourite word—a proportionality that help the credibility and justice of the measure. When we become excited about the minutiae of the wording, it is often forgotten that, without a just Bill, one has a bad Bill. That may not become apparent very quickly, but in our history there are too many examples of Bills which are full of good intentions but ultimately are bad and counterproductive. Like the Minister, we want a Bill that will work.

I hope that my remarks have not been either too diffuse or too long. I shall now sit down and leave others to add to the group. I beg to move.

The Deputy Speaker (The Countess of Mar)

My Lords, I should tell your Lordships that if this amendment is agreed to, I cannot call Amendments Nos. 13 to 15 because of pre-emption.

Lord Lucas

My Lords, perhaps I may speak to my amendments in this group. This is a part of the Bill which, on the face of it, is quite reasonable. It states that where someone has a known predisposition to violence or disorderly conduct and is going to a football match or in some other way seems likely to be associated with a football match that we are concerned to protect, a banning order can be issued. I do riot believe that I have a problem with that as a basic proposition from which to work. Last night the noble Lord, Lord Faulkner, said eloquently how that had been applied successfully by the Germans in keeping their troublemakers out of France.

The difficulties that we encounter here is that the details of the approach taken are quite disproportionate either to the likely consequences of allowing someone to go abroad or to the nature of what they must have done in order to qualify for a banning order. As the provision stands at present, you can be subject to a banning order if you have ever been convicted of careless driving, because you might have been said to have endangered life; if you have ever insulted a policeman or a traffic warden; or, if you have ever been involved in a demonstration which has turned violent at the fringes. All types of ordinary actions which do not indicate a predisposition towards causing violence at football matches are allowed as criteria under new Section 14B(2).

I turn to new Section 14C and the definition of disorder: using threatening, abusive or insulting words". There is no qualification in that. Anything considered to be insulting will qualify a person under that definition. Given those loose words and the fact that 30 per cent of the population have convictions and clearly fall within such a rubric, we must look at a filter in new Section 14B(2) which will encompass most of the population. I imagine that 60 or 70 per cent of the population would fall within new Section 14B(2) if the police were to look hard enough for the evidence that they required to prove it. Therefore, very little filtering occurs in new Section 14B(2).

The filtering takes place in new Section 14B(4), where the magistrates must decide whether a person, who, it has been "proved", has a violent disposition because he once told a traffic warden to get lost, constitutes a danger to a football match because he has a ticket to it. The magistrates must decide whether, because we are worried about violence, they must therefore prevent that particular person from attending. The proof appears to be that they must be satisfied on reasonable grounds.

It is a difficult and unusual formulation of wording. I know that it has been used in the Football (Offences and Disorder) Act, but it is not standard. If it means "the balance of probabilities", perhaps that should be said. However, the Government have said that it means something stronger than that. I should certainly be happy if it meant something stronger and we could tighten the definition. Then the court would decide not only whether there was a possibility that the fellow might do something nasty when he arrived in France but would say, "No, we are pretty sure that if we let him go to France there will be a real danger that he will do something undesirable".

Those points form the substance of the intention of my amendments. They look at different aspects of the problem. I am not suggesting that the Government need take them all on board, but I believe that if they take none of them on board they will leave this section of the Bill as an open goal for anyone who cares to kick the Human Rights Act football at it.

In this section as it stands, we are imposing what amounts to a criminal penalty. It provides for a two to three-year banning order, imposing severe restrictions on a person's movement and ability to move around the Community, and imposing a stigma on people equivalent to a criminal conviction. In addition, we are imposing it on a civil standard of proof. I believe that clearly that will be attacked under the human rights legislation.

I believe that if the Government were to give way to some of those suggestions and allow the wording in this section to be tightened a little, they would not allow anyone significant through the net. A person whom they are worried about will have carried out a significant act of violence or disorder. It will be fairly obvious to a magistrate that such a person is likely to do something undesirable abroad and it will not be a so-so decision. Therefore, I believe that if the Government would allow the wording of this provision to be tightened, they would make it more effective and harder to attack under the Human Rights Act. At the same time, they would make it a more just provision so far as concerns the majority of our citizens.

So far as concerns the individual amendments, Amendments Nos. 13 and 15 are addressed at new Section 14B(2). Given that that does not contain the important test, I am not too concerned about how we tighten up that wording. I believe it is desirable that we make it clear that we are not looking to pick up anyone who has ever been involved in an act of a relatively minor nature. I believe that we could do that equally in Amendments Nos. 22 and 23, which tighten up the definition of disorder. That, again, would help to make it clear that we are talking about a person who has an established history of serious violence or disorder.

Through Amendment No. 14 we could add the concept of intent. I believe that it is important that someone should have intended to contribute to violence or disorder rather than having been simply caught up in it. That is a point which the noble Lord said last night that he would consider. I have not yet found anything in my in-tray and I do not know the results of the noble Lord's considerations. However, I believe that at the top of my personal list is Amendment No. 19, which replaces the word "reasonable" in new Section 14B(4) with the word "strong".

Section 14B(4) is the crucial provision, because it contains the real test that magistrates will apply. The amendment would make that subsection closer to what the Government say that they want. The current wording seems to imply only a civil balance of proof requirement—or even something less. The amendment would strengthen that, although it would not go as far as requiring proof beyond reasonable doubt.

Given that the amendment would make what the Government say that they want clear to the average magistrate, I very much hope that they will accept it. I shall happily table it again at Third Reading if the Government feel that they need a little longer to consider it.

This group was introduced by the Liberal Democrats, so it will be concluded by the Liberal Democrats. I shall pay close attention to what they say, as well as to what my noble friend Lord Cope of Berkeley on the Front Bench says about the relative desirability of the amendments.

If the Government resist the amendments, it may be right to take one or two of them to the vote now rather than waste time at Third Reading. I shall listen very carefully to the rest of the debate.

9 p.m.

Lord McNally

My Lords, Amendment No. 12 sets out the basic position of my party: we would prefer action on the basis of a conviction. However, as we have been told that, if it is agreed, subsequent amendments will fall, it may help the structure of the debate, to which the noble Lords, Lord Phillips and Lord Lucas, have contributed constructively, if I say that we shall not move Amendment No. 12. I hope that that will allow Ministers to ponder the wisdom of the speeches of the noble Lords, Lord Phillips and Lord Lucas. Whereas Amendment No. 12 would fundamentally change the Bill, their amendments would fundamentally improve it.

Lord Monson

My Lords, I am sorry to hear what the noble Lord, Lord McNally, has said, because I broadly support Amendment No. 12, as I supported an equivalent amendment that he moved at about 3 o'clock this morning, if my befuddled brain remembers correctly. He says that he is not going to move it, but I understood that it had already been moved. Perhaps I am wrong, but what have we been speaking about for the past few minutes if the amendment has not been moved? If Amendment No. 12 were agreed to today or tomorrow, it would remove many of the objections to Section 14B, although not all of them.

I also accept the less ambitious following amendments, which have been rather curiously grouped with Amendment No. 12. Amendment No. 19, to which the noble Lord, Lord Lucas, has just referred, is slightly preferable to Amendment No. 18, which is the alternative Liberal Democrat amendment. They are both pretty good and it would be better to have one than none at all, but I think that the one tabled by the noble Lord, Lord Lucas, is slightly better. No doubt we shall come to that in due course.

Lord Cope of Berkeley

My Lords, I am marginally less concerned about the detailed wording here as a result of our earlier vote on the sunset provision. My reaction to the amendments will be conditioned to an extent by whether the Government intend to leave Amendment No. 10 in the Bill, or they will seek to reverse it. I would find any indication on that helpful, as might some other noble Lords.

Section 14B has two sets of conditions. The first set, in Subsection (2), refers to the past and the second set, in Subsection (4)(b), refers to the future. In each case, the aim of the amendments is to increase the hurdles by adding words such as "seriously". As we discussed at some length last night, the hurdles are quite low, particularly the first one, relating to past conduct.

It is excellent that such a polite and well behaved House as this should worry about a hurdle that refers to people contributing to insulting behaviour. Because of Standing Order No. 38, we would never do that in this House, although it has emerged in some of our discussions that one or two Members of your Lordships' House seem to have had interesting experiences in their youth that might expose them in that way. The Minister and I had blameless young lives—or at least neither of us has admitted to anything that might cause us to fall at that hurdle.

Lord Bach

My Lords, I do not think that the actions of many noble Lords in their youth would fall within the 10 years specified.

Lord Lucas

My Lords, I remind my noble friend that there have been some memorable incidents, including one of my noble friends who took a spot shot at a hot air balloon and one of the Minister's noble friends who took a spanner to his wife. These things happen even in this House.

Lord Cope of Berkeley

My Lords, the noble Lords whom I was hinting at were concerned not about their personal cases, but about younger people who might behave in that way. No one assumes that any Member of your Lordships' House will fall foul of any of the provisions. However, that is as may be. We have to address the precise wording.

If one is to pick out one amendment, which is a hit invidious—a little like trying to judge a fancy dress competition, which no elected politician would let himself in for—Amendment No. 14, referring to intent, seems to me to have more significance and more importance.

Primarily I am concerned with the future. It seems to me that the future hurdle is the one that will govern most cases. The court must be satisfied that there are grounds to believe that the banning order will help to prevent violence. The court will have to look at the individual concerned and say, "If we ban him"—or her, but primarily him—"from going to a particular football match there is less likely to be violence at the match". Almost everybody has somewhere in their past, and probably in the past 10 years, fallen foul of the past conditions. Nevertheless, if I have to put my finger on any one amendment, I am more attracted to Amendment No. 14.

I believe that the second hurdle is vital, so, if the Government are considering accepting any of these amendments, perhaps we should look more carefully at the amendments relating to that point.

Lord Bassam of Brighton

My Lords, tempted as I am by the noble Lord, Lord Cope, to make a pronouncement about the amendment that we lost earlier, perhaps I had better address the issues in front of us. I shall address all of them, although Amendment No. 12 has been moved. I shall do so as carefully as I can.

Amendment No. 12 would alter fundamentally the condition in Section 14B(2) which must be satisfied before a banning order on complaint may be made against any person. That condition, as the Bill now says, is that the respondent has at any time, whether before or after the commencement of this section, caused or contributed to any violence or disorder in the United Kingdom or elsewhere.

I began to get a little worried when I listened to the noble Lord, Lord Phillips, earlier, as I have a long-spent driving conviction. I was worried that I may fall within the remit of this legislation. However, it was more than 10 years ago and I am probably now a citizen pretty much above suspicion, although not entirely. I was momentarily and fleetingly concerned.

The arguments on both sides have been aired on a number of occasions, and I do not believe that we shall see eye-to-eye on this occasion any more than we have done during previous discussions. None the less, let me briefly restate the Government's case. That is simply that, if we want to solve this problem, it is not enough to restrict the condition, as the noble Lords opposite would, to people who have been convicted of offences involving violence or any other relevant offence. That would potentially leave out larger numbers of people who can be identified from video evidence as having participated in violence or disorder, precisely the group of people whom we would want most to see subjected to banning orders.

On an earlier group of amendments I gave a fairly clear exposition of how the police would seek to use those orders. I believe that the more paranoid ramblings of our deliberations here can be clearly set on one side when one considers the way in which the police seek to exercise their powers.

I do not see that any injustice to those people at all would accrue from their being made subject to banning orders. I believe that the point has been well made. We are talking about football matches; we are not talking about the wholesale restriction of people's freedom to move. I would invite noble Lords to bear in mind that we have accepted that spent convictions will not be taken into account for the purposes of the test in Section 14B(2), nor will behaviour which did not lead to a conviction and which took place more than 10 years previously. Those two concessions were widely welcomed. I believe that, as a result, we have a test which combines fairness with effectiveness, which is what we are trying to achieve. I must, therefore, invite the House not to accept Amendment No. 12.

I turn to Amendments Nos. 13, 14 and 15. These amendments introduce the concepts of "significant" violence, of "intent", and of "serious violence" to the test in Section 14B(2) which underlies the banning order by complaint. We have spent much time discussing the nature of that test, and I have explained the Government's view that in order for the new powers to be fully effective, we cannot introduce new requirements. It is not that we are anxious to include, for instance, violence which is not serious, but we are anxious to avoid introducing new uncertainties into the law. Similarly, the element of intent introduces serious difficulties into the procedure envisaged in Section 14B(2).

I said that I would look at this matter again and, on doing so, I am not convinced that it would add anything or provide us with a simple and effective procedure. Therefore I cannot invite your Lordships to agree to those amendments.

Amendment No. 18 is not acceptable because it creates a requirement which could only be satisfied if the court had complete foreknowledge. The court cannot know if a banning order will have the desired effect; it can only have "reasonable grounds to believe" that it will. For that reason the amendment does not appear to us to be logical and we cannot advise that it be accepted.

Amendments Nos. 19 and 20 are also interesting in that they try to qualify the power that we are after. Amendment No. 19 would require the courts to have "strong" grounds to believe that a banning order would help to prevent violence and disorder before it made such an order. "Strong" grounds is not a phrase with which I am familiar. As I have said on many occasions, I am not a lawyer, though I live with one. It is not, to my knowledge, a familiar legal concept, at least it is not as familiar as "reasonable".

9.15 p.m.

Lord Phillips of Sudbury

My Lords, I am grateful to the noble Lord for giving way. The fact that a word is not familiar or precedented is not an argument for it not being deployed. On that basis a great deal of this Bill would not have been brought forward.

Lord Bassam of Brighton

We are talking about a term which is common argot within the legal trade. The court would not recognise it as being a familiar tool for judgment, for exercising a discretion or coming to a view. That is the important point. The existing safeguards in the Bill are sufficient to ensure that this additional hurdle is not necessary.

Amendment No. 20 would give the court discretion as to whether or not to impose a banning order, even when there are reasonable grounds to believe that it will help to prevent violence and disorder. It is important that banning orders shall be imposed whenever that condition is met. I cannot see any objection in principle to placing such a requirement on the court. All we are saying is that, if it is right to impose a banning order, then the court shall do so. I cannot suggest that the House accepts that amendment and I therefore invite your Lordships to reject it.

Amendments Nos. 22 and 23 would insert important qualifications into the test of causing or contributing to violence in Section 14B(2). Amendment No. 22 requires that the words used shall be "seriously" abusive or insulting, or the behaviour "seriously" disorderly and threatening, while Amendment No. 23 requires that any writing displayed shall be "seriously" threatening, abusive or insulting.

The noble Lord, Lord Lucas, is on familiar territory; this is a familiar theme. He has regaled us with his litany of less-than-serious insults. My concern, as ever, is for the effectiveness of this measure. I have no wish for banning orders to be imposed for trivial behaviour. I have great confidence in the courts. Of course, they have to be satisfied that the banning order will help to prevent violence or disorder in the future. Trivial behaviour will not provide a valid basis for that judgment. I do not believe it should and I do not believe the courts will use it in that way.

The Earl of Onslow

My Lords, I am grateful to the Minister for giving way. He says he thinks there should not be trivial grounds and that the court would not use trivial grounds. My worry is that the court may use trivial grounds, and therefore trivial grounds should be kept out. If there is a chance of things going wrong, as night follows day they will.

Lord Bassam of Brighton

My Lords, the threshold to which the noble Earl seeks to raise the judgment here is one which will fundamentally undermine the value of what we are seeking to achieve. By and large in my experience, and no doubt the noble Earl will have similar experience on which to form a judgment, the courts are not prepared to accept trivial behaviour to form the basis of a conviction in criminal cases. In the context of a banning order, the courts would take a serious view of matters in front of them and form a balanced judgment as to the likelihood of someone's behaviour on the evidence they receive. We must place our trust in the law. For those reasons, I cannot accept the amendments.

Lord Monson

My Lords, before the Minister sits down, perhaps I may comment on something said in relation to Amendment No. 23.

Lord Bach

My Lords, I am sorry to interrupt, but it would be preferable for the noble Lord to ask a question of my noble friend the Minister at this stage, rather than make comments.

Lord Monson

Of course, my Lords. I wonder whether the Minister read a recent press report, or heard from other sources, about a man who applied to join the Metropolitan Police. Although he was otherwise well qualified, he was rejected because he had a Union flag tattooed on his forearm. Presumably that was considered to be, if not abusive, possibly threatening or insulting. Are we to take it that someone might be caught by this provision if he had such a flag tattooed somewhere on his body?

Lord Bassam of Brighton

My Lords, we shall drift into making bad law if we start quoting obscure but, nevertheless, noteworthy instances and examples as a way to try to prove a point. Clearly it will depend on the behaviour of the person, his background, his general demeanour, and so on. Whether or not someone has a Union flag emblazoned across his shoulder or torso, or wherever, is not really a material consideration as far as concerns these amendments.

Lord Phillips of Sudbury

My Lords, I hear rumblings from behind me indicating that that was as disappointing a response as the Minister has given during the whole of this debate. It meets none of the anxieties felt on this side of the House and, in particular, leaves the provisions of new Section 14B wholly unamended. The Minister places much reliance on the status quo; for example, he said that the police can be relied upon and that he bases his trust in the law. That is all very well. The police can usually be relied upon, as can the law. However, the point of these amendments is to make the law such that less than competent police officers—and worse than that—will be inhibited from potentially using this law in an improper way. The discretion that is given to both the police and the courts here can only be described as "arbitrary".

I should remind the Minister and the House that the powers given under this Bill are unprecedented in our entire legal history. That is not an exaggeration; indeed, it is not, as I believe the Minister said, "paranoid rambling". It is the truth. That point was succinctly made by the noble and learned Lord, Lord Lloyd of Berwick, on new Section 21A. The fact is that new Section 14B allows the police, as the Minister explicitly said, to bring a banning order application against someone who has committed no criminal offence in respect of long-past conduct, which will have future effects.

I shall not rehearse the arguments. I am just profoundly disappointed. The Minister is relying upon the fact that, at this time of night and after such a day, there is no Division that we can call with any hope of winning, given the Government's whipped ranks. Before I sit down I shall just say that I believe that the Minister is making a mistake by offering no concessions on this issue. I do not think that it will help the Bill or, indeed, its implementation. I believe that he will rue the day that he has used the power that he knows he has. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 to 15 not moved.]

Lord Phillips of Sudbury moved Amendment No. 16:

Page 5, line 35, at end insert-

("(^) The application shall state the date, place and substance of any conviction or order to be relied upon in support of the application.

(^) A copy of the application shall be served on the respondent at least 14 days before the hearing of the application, subject to an order for substitute service.")

The noble Lord said: My Lords, the noble Lord, Lord Campbell, has, unfortunately, had to go home because of the indisposition of one of his relatives. He has asked me to move these amendments on his behalf. I turn, first, to Amendment No. 16. When comparable amendments were moved last night, I explained to the noble Lord that the Minister gave the assurance that the details of the date, place and substance of any conviction or order would be part of the standard form that the Government are seeking to devise and make mandatory. On that basis, the noble Lord, Lord Campbell, was very happy for Amendment No. 16 to be withdrawn.

As regards Amendment No. 17A—

Lord Cope of Berkeley

My Lords, I hesitate to interrupt the noble Lord but he is, presumably, speaking to Amendment No. 16 and the amendments grouped with it. Therefore he should not say that he will withdraw Amendment No. 16; otherwise, he will get us in a muddle.

Lord Phillips of Sudbury

My Lords, the last thing in the world that I want to do is to get anyone in a muddle. That just shows that I am in a muddle, but these are not my amendments.

Amendment No. 17A seeks to amend new Section 14B(4)(a)—which concerns banning orders made on a complaint—to read, If it is proved on the application by the applicant beyond all reasonable doubt". The noble Lord, Lord Campbell of Alloway, wants to be quite sure that the burden of proof is on the applicant and not on the respondent. I cannot imagine that that is a contentious issue. I am confident that the Government intend that the proof required is proof on the part of the applicant. The amendment contains the words, "beyond all reasonable doubt". On the basis of what has been said recently, I anticipate that the requirement for the application to be proved beyond all reasonable doubt will not be accepted by the Government, but none the less I move the amendment as I was asked to do. I beg to move.

Earl Russell

My Lords, I am attracted by Amendment No. 17A. We have here both the low standard of proof and the low standard of certainty as to what it is that has to be proved. We have met firm resistance to raising the definition of what has to be proved to greater clarity. If we cannot do that, we should raise the standard of certainty to which the proof has to be offered. As I said, this amendment attracts me.

Lord Bach

My Lords, I shall not speak to Amendment No. 16, which the noble Lord has said he will withdraw in due course, nor to Amendment No. 17, because I believe that Amendment No. 17A takes its place.

The noble Lord is right to say that the Government are not prepared to accept Amendment No. 17A. However, the burden of proof will clearly be on the applicant. I think that is written in. I hope that gives some comfort to the noble Lord. The amendment would provide for the criminal standard of proof—I am not saying anything that has not been said from this Dispatch Box in the course of the past 24 hours—and is not appropriate for what we argue is a civil order.

It is well established in case law that the standard of proof in civil proceedings is a flexible one. I quote again a judgment of the noble and learned Lord, Lord Scarman, in the case that was mentioned yesterday, and last Thursday at Second Reading, which states: The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake" .—[Official Report, 20/7/00; col. 1260.] We have every confidence—we believe that the noble Lord should have every confidence—in the courts' ability to judge these matters fairly. They will not make banning orders unless they are satisfied that the two conditions set out in new Section 14B are met; namely, that it is proved that the person before them has caused or contributed to violence and disorder, and—not or—that there are reasonable grounds to believe that an order would help prevent violence or disorder in connection with football matches. The breach of an order will be a criminal offence. In a trial of that offence, the criminal standard of proof would, of course, apply.

Lord Phillips of Sudbury

My Lords, I am obliged for that response. Might it therefore be appropriate to accept Amendment No. 17, as that confines itself to the insertion of the words, "application by the applicant"? As that is what the Minister said is intended, would it not make sense for that to be proposed and accepted?

Lord Bach

My Lords, I do not think it is necessary. It is quite clear from what I have said and from the whole sense of the Bill—unsatisfactory as it is to some noble Lords—that it will not be for the respondent to prove; it will be for the applicant to prove in this case. The words are not necessary.

Lord Phillips of Sudbury

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 17, 17A and 18 not moved.]

Lord Lucas moved Amendment No. 19:

Page 5, line 39, leave out ("reasonable") and insert ("strong")

9.30 p.m.

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

Their Lordships divided: Contents, 30; Not-Contents, 107.

Division No. 4
Addington, L. Mar and Kellie, E.
Alderdice, L. Miller of Chilthorne Domer, B
Barker, B. Monson, L.
Carlile of Berriew, L. Montrose, D.
Carlisle of Bucklow, L. Norton of Louth, L.
Ezra, L. Onslow, E.
Goodhart, L. Park of Monmouth, B.
Greaves, L. Phillips of Sudbury, L. [Teller]
Harris of Richmond, B. Roper, L.
Lamont of Lerwick, L. Russell, E.
Linklater of Butterstone, B. Soulsby of Swaffham Prior, L.
Lucas, L. [Teller] Stodart of Leaston, L.
Ludford, B. Thomas of Gresford, L.
McNally, L. Waddington, L.
Maddock, B. Williams of Crosby, B.
Acton, L. Hilton of Eggardon, B.
Ahmed, L. Hollis of Heigham, B.
Alli, L. Howells of St. Davids, B.
Amos, B. Howie of Troon, L.
Andrews, B. Hoyle, L.
Archer of Sandwell, L. Hughes of Woodside, L.
Ashton of Upholland, B. Hunt of Kings Heath, L.
Bach, L. [Teller] Irvine of Lairg, L. (Lord chancellor)
Barnett, L.
Bassam of Brighton, L. Islwyn, L.
Bernstein of Craigweil, L. Janner of Braunstone, L.
Blackstone, B. Jay of Paddington, B. (Lord Privy Seal)
Borrie, L.
Bragg, L. Judd, L.
Brett, L. Layard, L.
Brooke of Alverthorpe, L. Lea of Crondall, L.
Brookman, L. Lipsey, L.
Brooks of Tremorfa, L. Lockwood, B.
Burlison, L. Macdonald of Tradeston, L.
Carter, L. McIntosh of Haringey, L.
Chandos, V. [Teller]
Christopher, L. McIntosh of Hudnall, B.
Clarke of Hampstead, L. MacKenzie of Culkein, L.
Cohen of Pimlico, B. Mackenzie of Framwellgate, L.
Crawley, B. Masham of Ilton, B.
Davies of Coity, L. Massey of Darwen, B.
Davies of Oldham, L. Mitchell, L.
Desai, L. Morris of Castle Morris, L.
Dixon, L. Nicol, B.
Donoughue, L. Orme, L.
Dormand of Easington, L. Patel of Blackburn, L.
Dubs, L. Pitkeathley, B.
Elder, L. Prys-Davies, L.
Evans of Temple Guiting, L. Puttnam, L.
Evans of Watford, L. Ramsay of Cartvale, B.
Farrington of Ribbleton, B. Rendell of Babergh, B.
Faulkner of Worcester, L. Richard, L.
Filkin, L. Sainsbury of Turville, L.
Fitt, L. Scotland of Asthal, B.
Gale, B. Sewel, L.
Gilbert, L. Shepherd, L.
Goldsmith, L. Simon, V.
Gould of Potternewton, B. Smith of Leigh, L.
Graham of Edmonton, L. Stone of Blackheath, L.
Grenfell, L. Strabolgi, L.
Hardy of Wath, L. Symons of Vernham Dean, B.
Harris of Haringey, L. Taylor of Blackburn, L.
Harrison, L. Thornton, B.
Haskel, L. Tomlinson, L.
Hayman, B. Turnberg, L.
Uddin, B. Wilkins, B.
Warwick of Undercliffe, B. Williams of Mostyn, 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.

9.40 p.m.

[Amendment No. 20 not moved.]

Lord Carlile of Berriew moved Amendment No. 21:

Page 5, line 43, at end insert-

("(^) When granting or refusing the application the court shall deliver a reasoned judgment in open court.")

The noble Lord said: My Lords, I move this amendment on behalf of the noble Lord, Lord Campbell of Alloway, who, as we have already heard, is indisposed. I shall do so briefly.

For a banning order to be made by the court, the court has to go through a ratiocinatory process. It has to be satisfied that there are reasonable grounds. That means that the court has to know what the reasons are, develop them and decide what they are. It means, presumably, that the court is capable of stating what the reasons are. It has to be satisfied that those reasonable grounds are such as to make it believe that a banning order would help to prevent football violence. That means that the court has gone through the thinking process of not only deciding that it would help to prevent football violence, but also why.

As many noble Lords have said, the Bill represents a significant invasion not only of civil liberties in general but also of well understood tenets of criminal law. Indeed, the rejection of the previous amendment, on which we have just voted, contains a decision that the normal criminal standard of proof should not be used in relation to a provision which may have a significant effect on the liberty of the subject. It is the generally accepted wisdom in relation to the Human Rights Act that all courts will have to give reasons—albeit sometimes very brief reasons—for all decisions. The House will be aware that a considerable amount of training is being carried out in the magistrates' courts up and down the country to explain to justices, who no doubt will do it very well, how they should formulate their reasons and how they should be set out. It is to be presumed that magistrates' chief executives, as they are now called, will devise pro formas similar to those used currently in relation to the Bail Act, which will enable magistrates very simply to set out their reasons.

It is thought by many engaged in human rights law that a court's failure to give reasons to a citizen whose ordinary rights are invaded—for example, his right to hold a passport—will be a breach of the European Convention on Human Rights. There is obviously scope for a challenge to the Act on the grounds of incompatibility with the convention. It would seem reasonable to require as part of the legislative provision that the court must—the amendment of the noble Lord, Lord Campbell, says "shall"—deliver a reasoned judgment in open court. I would expect the Government, in the spirit of the approach taken by the noble Lord, Lord Bassam, this afternoon and this evening, to be open to that suggestion. I hope that he will be prepared to see it included in the Bill. I beg to move.

9.45 p.m.

The Earl of Onslow

My Lords, throughout our long debates on the Bill—although it has been only 48 hours, it now feels like an eternity—it appears that the Government that introduced into English law the concept of the European Court of Human Rights will look quite extraordinarily silly if, through this Bill and especially as regards this provision, they are found to be in breach of the European Convention on Human Rights.

As I said on Second Reading, I do not much like the European Convention on Human Rights. I wish that Parliament itself would protect the liberties of Englishmen so that we would have no need of the convention. However, what the noble Lord has pointed out, rather like Pershing arriving on the Somme in 1917—we may all be tired and shell-shocked but he is still fresh; I apologise, not the Somme, Le Chemin des Dames—is new and devastating evidence that this will breach the European Convention on Human Rights.

All I can say to the Government is that Members of this House will have failed in their duty if they do not persuade the Government of this danger. However, the Government are being so obstinate on this point that when—it is not a question of "if" but "when"—they are found to be in default, I believe that it will follow that ministerial resignations must arise out of it. They have been warned time and time again about the dangers of breaching the ECHR with the Bill. They have resisted all advice. Later, someone will have to say, "Oops, I made a mistake and therefore I must go".

At the very least, if the Government accepted the amendment tabled in the name of the noble Lord, Lord Campbell of Alloway, and very ably moved by, I shall call him my noble and learned friend, Lord Pershing, at least that will provide one excuse not to resign.

Earl Russell

My Lords, back in the 1960s, in the University of London, a certain professor became known as the "Ancien Régime". He was once engaged in a tremendous battle with the board of studies about a proposed change in the syllabus. The argument was in danger of getting out of hand. The chairman proposed to postpone the discussion until the following week and asked both sides to submit their reasons in writing. The professor replied, "Reasons? I cannot see that we need to submit reasons. We are defending established practice". That was not a judicial approach to the discovery of the truth.

There are two vital reasons why a court must submit reasons. The first is that that is what separates a judgment based on known and understood rules from a judgment based on prejudice or the mood of the moment. The second is that, unless reasons are produced with which one can join issue, there is no ground on which to base an appeal.

Lord Bach

My Lords, I have suffered a little trepidation about replying to this debate. I sighed with some relief when I heard that the eminent QC, the noble Lord, Lord Campbell of Alloway, would not move the amendment, only to find that it would be the equally eminent noble Lord, Lord Carlile, who would move it. Now, I am even more frightened, because the noble Earl, Lord Onslow, started talking about ministerial resignations! This looked on the face of it not to be the most major of the amendments in the Bill, but we shall have to see how we go.

The amendment is one on which we had a valuable discussion only some 24 hours ago. Its effect would be to impose an explicit requirement on the court to deliver a reasoned judgment in open court whenever it grants or refuses an application for a banning order under the new civil complaints procedure.

The Government would not dream of opposing this amendment if we had any doubt whatever that the effects sought would be achieved anyway. The common law has evolved, as the noble Lord knows much better than I, in such a way that it is now accepted as good practice that courts should indeed deliver such reasoned judgments without any explicit obligation to do so being imposed upon them. That expectation can only be strengthened, as the noble Lord said in moving the amendment, by the implementation of the Human Rights Act, with which the noble Earl seems to have such a love-hate relationship. Implementation of the Act is now just a few weeks away. Indeed, we shall be back here before it is implemented, but only because the House is returning before the end of September.

There is argument that says that there would perhaps be some mischief in creating a statutory requirement here to give a reasoned judgment which applied only to this one procedure. It could have the effect of weakening by implication the need to produce reasoned judgments in other types of case where no such explicit requirement exists in legislation. It is on that basis, with considerable sympathy for the idea behind the amendment, that I ask the noble Lord not to press it.

Lord Carlile of Berriew

My Lords, one is bound to reflect that this Government and indeed their predecessor have been far from reluctant to impose explicit requirements on the courts when the courts neither want nor need them. I refer, for example, to the imposition of minimum sentences some of which have led to manifest injustices.

As to the noble Lord's point on the danger of including an explicit requirement in the Bill, I simply do not agree with him. There is a clear requirement that courts will give reasons in future. There is no harm, and there can be no mischief, in the inclusion of a specific requirement for a new procedure. Indeed, it might be a good precedent that ought to be followed in the spirit of the European convention in future legislation.

However, the words spoken by the noble Lord, Lord Bach, will he carefully noted, copied, transmitted, circulated and disseminated around the land. The principle, the doctrine of Pepper v Hart, will be invoked wherever there is thought to be any ambiguity and courts around England and Wales will know, for his Lordship has said so, that they must give reasons when they make banning orders under this legislation. Reassured by that—I am reassured by it, and I mean that—I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 to 25 not moved.]

The Earl of Onslow moved Amendment No. 26:

Page 7, line 25, leave out ("or shorter than the minimum")

The noble Earl said: My Lords, the noble Lord, Lord Carlile, said of the introduction of minimum sentences that they have produced manifest injustices on a few occasions.

I apologise to the noble Lord for not attempting to deal with this matter earlier, but we have taken this Bill, not at a hand gallop but at a rushed gallop. It struck me only in the early hours of this morning that it seemed unnecessary to have minimum sentences—they are sentences, and there is no other word for it.

Noble Lords opposite have argued consistently that the courts should have discretion on the basis that they can be trusted. I suggest that the courts should have the discretion set out in my amendments, because there are bound to be cases in which it is manifestly unfair to make the minimum banning order when a shorter one will do. I believe that this is a perfectly reasonable amendment. Every amendment that I have regarded as reasonable others have considered to be unreasonable. I beg to move.

Earl Russell

My Lords, the noble Earl is aware that I support these amendments. He will forgive me if I do not repeat the reasons. I should like to pick up the reference to the European Convention on Human Rights. The mere fact that the noble Earl needs to table these amendments shows why that convention is necessary. It would be much nicer if Parliament protected our liberties. Surely, the noble Earl agrees that if this Bill reaches the statute book Parliament has failed.

Lord Bach

My Lords, the noble Earl has no reason to apologise for tabling the amendments this evening. He raised the issue when it struck him yesterday and, quite properly, tabled these amendments for debate this evening. However, I cannot accept them, and I shall try to explain why. The amendments remove the minimum periods for which football banning orders may be imposed. The concept of minimum sentences is not in any way unknown to English law. I refer noble Lords to minimum disqualification for drink driving or totting-up offences. We believe that the concept of minimum periods, which follow precedents set in previous legislation on banning orders—they go back some 11 years—is entirely right and proper. Banning orders are serious measures and should be imposed for periods which are sufficiently substantial to have a deterrent effect.

While it is perhaps often a good thing—the word written here is "efficacious"—to impose a short prison sentence of a month or less, frankly, to prevent somebody from attending football matches for such a short period would not make a great deal of difference. We believe that the provisions as they stand send the right message to the courts and, through them, to football hooligans. If a banning order is made in their case they will not be able to go to football matches for some time. We are reluctant to invite noble Lords to change these times. There is nothing in the provision of minimum sentences or measures that is in any way against the English common law or the protection of the individual. I am aware that in this Bill the noble Earl believes that there are matters which offend his sense of liberty, but this is not one of them.

The Earl of Onslow

My Lords, I thank the noble Lord for taking considerable trouble, at fairly short notice, to deal with this matter. Having listened to the noble Lord, I suppose that I must accept his reasons. At one stage the minimum sentence for murder was death. One of my forbears forgot to hand in a reprieve to Oxford gaol and the individual was hanged by mistake. I suppose that that is not a very good precedent for cherishing English liberties as much as I do. I thank the noble Lord for the care that he took in his response, although I regret it. I also thank my noble kinsman, or former co-pupil, Lord Russell, for saying exactly what I feel about ECHR. Unfortunately, that convention has become necessary because Parliament has failed to do its job. With that low whinge, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

[Amendments Nos. 27 to 29 not moved.]

Lord Goodhart moved Amendment No. 30:

Page 8, line 21, leave out ("or (2C)")

The noble Lord said: My Lords, in moving the amendment—it is merely a paving amendment—I speak also to Amendment No. 32, the substantive amendment. Amendment No. 32 proposes to leave out new subsections (2C) and (2D) of Section 19. For completeness, the amendment should also leave out the last two lines of new subsection (2B) and the whole of new Section 14G. As has happened all too often owing to the extreme speed with which amendments had to be put down and then put down again, those parts were omitted.

These are amendments of considerable importance. Perhaps I may be allowed to make the virtual speech in favour of my virtual amendment as well as the actual speech in favour of the actual amendment. New Section 14G authorises a court when making a banning order to impose additional requirements on the subject of the order. The end of new subsection (2B) and new subsections (2C) and (2D) authorise the enforcing authority to make additional requirements when serving a notice to comply with the banning order.

The problem is this. These are powers of the court on the one hand or of the enforcing authority on the other to impose additional requirements; and breach of those requirements will be a criminal offence which can attract a criminal penalty. But there are no guidelines as to what those additional requirements may be: there is no limit to them; and there is no parliamentary procedure.

In Committee the Minister suggested that, for instance, in the case of a home match there might be an additional requirement on the subject of the banning order to stay away not only from the football ground but also from a station which was used by visiting fans. I understand the justification for that and I should be entirely happy for that kind of additional requirement to be imposed. However, there are no criteria in the statute, no limits and no parliamentary procedures. It would be perfectly possible to impose the kind of additional requirements that one might find a great deal less attractive. For instance, the additional requirement could in effect impose house arrest by requiring the subject of the order to stay at home throughout the 24 hours of the day of the match except for reporting to the police station and going straight home again.

It is conceivable that there could be a requirement to wear an electronic tag. It seems to me that these matters go far beyond the sort of thing that ought to be done without the authority of Parliament. Not only does the Act lay down no criteria itself, it does not even provide for these matters to be dealt with by regulation. As I made clear yesterday, these matters were not dealt with by the Delegated Powers and Deregulation Committee. Because of the very great speed in which we acted, we did not realise that these powers were tucked away in the schedule. Speaking for myself and, I believe, for the noble Lord, Lord Alexander of Weedon, because he said the same a few days ago, the Committee might well have decided that these were matters which needed at the very least additional requirements to be authorised by secondary legislation and probably by an affirmative order.

In effect, these provisions are the power to create new criminal legislation. Traditionally, that is something that cannot be done except by Parliament and parliamentary procedure. I believe that these provisions are seriously wrong and defective. They do not provide for any kind of parliamentary procedure. I beg to move.

Earl Russell

My Lords, if the Minister wished to satisfy us on this amendment, he could do so perfectly easily either by specifying the additional requirements which might be required, or by taking a power to make regulation to set out in future any additional requirements that the Government might think of in future. It would not cost the Minister very much to do one or other of those things. In terms of legal certainty the value of doing so would be considerable. Why should he not, and will he?

Lord Bassam of Brighton

My Lords, Amendment No. 30 would have the effect of ensuring that if a person subject to a banning order failed to comply under Section 19(2C), which provides for additional requirements to the banning order, nevertheless, he would not be guilty of an offence. If there is to be a power to impose additional requirements in a banning order, it follows that there must be some sanction against anyone who chooses to breach it. I am sure that I need not detain your Lordships long on this amendment because I do not believe that anyone would dispute that particular proposition. I believe that the power—

Lord Goodhart

My Lords, I am puzzled by this reaction. I made it clear that Amendment No. 30, which leaves out the words, ("or(2C)"), was purely a paving amendment and was consequential on Amendment No. 32, which removes (2C) itself so that there is no (2C) to which the new Section 40J refers.

Lord Bassam of Brighton

My Lords, I am grateful to the noble Lord. I recognise that it is a paving amendment and I shall address most of my comments to Amendment No. 32. I had almost finished with Amendment No. 30. Amendment No. 32 would deprive the enforcing authority of the power to require people subject to banning orders to comply with any additional requirements and to establish associated criteria.

I am not clear why objection is being taken to the concept of additional requirements. They can only be ancillary to the main purpose of the banning order. If they were oppressive or capricious, they could be immediately annulled by a court. I do not have a long list of examples of such additional conditions. They are likely to cover only minor administrative matters as well as restrictions on behaviour ancillary to a banning order. For instance, there may be a requirement not to frequent the immediate area of the stadium or, as I said yesterday, a bus or train station where football fans might gather and from which the person concerned is banned on match days.

I see nothing sinister about the powers and they seem to be entirely necessary to make the banning orders effective. I cannot recommend that these amendments, actual or paving, should be accepted.

Lord Goodhart

My Lords, I hear what the Minister says. I find his answer unsatisfactory but at this stage of the proceedings I do not intend to divide the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 to 35 not moved.]

Lord Ackner moved Amendment No. 36:

Page 9, line 28, leave out ("his reasons for detaining him in writing") and insert ("full particulars of the facts and matters relied upon in support of his suspicion and of his belief").

The noble and learned Lord said: My Lords, I attended the meeting called by the Home Secretary in order to launch the Bill. I read through the clauses which seemed to me the most likely to be contentious. I made the somewhat diffident suggestion that the allegations made in what has become new Section 21A—that the officer had reasonable grounds for suspicion that the respondent had at any time caused or contributed to any violence or disorder and, had reasonable grounds to believe that making a banning order in his case would help to prevent violence or disorder at or in connection with any regulated football matches"— told the respondent nothing about the case which he had to meet. He would therefore appear before a court 24 hours later still unaware of exactly what were the alleged grounds for suspecting and what were the reasonable grounds for belief; suspicion and belief contrasted. I made the mild suggestion that since these were looked upon as civil proceedings one should follow the generally accepted situation in such proceedings; that if you make an unparticularised allegation you will be met with a request for further and better particulars of that allegation. That is stock and simple and straightforward.

I was gratified to hear it announced that the Minister had thought that was right and would make provision. According, at the Second Reading debate the noble Lord the Minister paid me a nice compliment at the outset. When I had made my criticism, to which I shall refer in a moment, he, at the end of the debate, was kind enough to say: The noble and learned Lord, Lord Ackner, made a number of helpful detailed points about drafting, particularly on new Sections 21A and 21B. We are of course going to pay very close attention to his advice, and I should like to place on record our thanks to him for the advice and encouragement that he gave us during the open session with my right honourable friend Jack Straw" .—[Official Report, 20/7/00; col. 1258.]

Therefore I put down in some detail the amendments which I thought were appropriate. They do no more than exactly what one would have done in a simple civil case. Perhaps I may give your Lordships an example. If the particulars of a claim in a county court allege that the defendant had, by reason of his negligent driving, caused damage to the plaintiff's car, unparticularised, immediately there would follow a request for further and better particulars of the negligence alleged, identifying the facts and matters relied upon in support of that allegation. That is simple and straightforward and is exactly what I put in my amendment.

The Minister said, under new Section 21 A as drafted in the Bill, which deals with detention, that the officer, shall give the person his reasons for detaining him in writing". But, quite simply, his reasons are: "I believe or suspect that at some time you have caused or contributed to violence or disorder, and I have a belief on reasonable grounds that it would help to prevent violence or disorder at or in connection with any regulated football matches that you are detained for me to make further inquiries". We gain nothing from that at all.

Basically, the Minister has done the same under new Section 21B, which deals with the notice which causes the person to appear before a magistrates' court within 24 hours. According to new Section 21B(2), the grounds must be stated. Why in one case it is "reasons" and in another "grounds" has never been explained.

What saddens me is that the Minister has provided absolutely no justification for the attitude which he adopted in the early hours of this morning when the noble Lord, Lord Cope, was kind enough to move on my behalf the amendments which I have just indicated. The Minister said—this comes within the missing part of Hansard, to which I drew attention earlier today—that, the amendment goes beyond the kind of requirement which we see in analogous provisions of PACE"— I do not know what he is referring to— and the requirements of the common law". What does he mean by, the requirements of the common law"? The common law requires that in civil proceedings one must particularise one's allegations. If this were a criminal case, one would be even more obliged to specify the nature of the crime which it is alleged has been committed. That was his answer with regard to my first amendment.

With regard to my second amendment, he said: Lord Ackner … makes the same point in relation to the issue of a notice as was made in relation to the power to detain under [new] Section 21A". Of course I make the same point because the wording is the same. I read on: The amendment is based on the premise, which we accept, that people issued with notices commencing a banning order by the complaint [process] need to know the case against them so that they can prepare for their hearing". That is conceding the very basis of my amendment. In those circumstances, simply reciting the wording of the criteria in new Section 21A would not be appropriate. The Minister also said: We are not clear that the full particulars formulation is the right one either. If the requirement is too onerous, that may lead to an extension of the detention period while a substantial notice is prepared, thus adding to the bureaucracy of it all".

Those are not answers. That is a species of forensic waffle that does not meet my point. How is the respondent to know the full nature of the case against him—of the foundation of his detention or of the notice—unless it is properly particularised?

I do not wish to be over-critical, because those comments were made in the early hours of the morning. I do not suppose that the Minister has yet got his beauty sleep back, but I hope that he has had a little time to reflect on his answers so that he can tell us clearly why the ordinary particularity that any court would order in a civil case should not apply here to what he has emphasised over and over are civil proceedings.

Amendment No. 39 would fill a lacuna in Section 21B. Section 21A says that there are two hurdles, but that is missing from Section 21B. A specific reference back to Section 21 A is needed, because it provides the foundation for Section 21B. I beg to move.

Lord Goodhart

My Lords, I have listened with great attention and respect to the noble and learned Lord, Lord Ackner, who has a great deal of experience of the legal system. He has made some important points.

Rather than following his comments, I shall take a slightly different line. If detailed particulars are not served on the prospective subject of a banning order, he does not know the case that he has to face and will be unable to defend himself properly before the magistrates or to call the necessary evidence.

On the other hand, I have a feeling that it is a little unrealistic to expect the constable who detains the suspect to provide him with a lengthy written statement of particulars unless he already has it in his pocket at the moment of detention.

That is yet another illustration of the fact that Sections 21A, B and C cannot work or do justice to the parties involved, particularly the suspect. I very much welcome the amendments.

Lord Carlile of Berriew

My Lords, I, too, support what the noble and learned Lord, Lord Ackner, has said. If the Government cannot accept the amendments, will they make it clear that constables who deal with such matters will prepare statements at the first reasonable opportunity after their return to the police station and that pre-hearing disclosure will be given to the person against whom the order is sought, so that he and his lawyers may know what case he has to meet before they step into the courtroom? It is the sort of procedure that is followed fairly commonly in the magistrates' court in relation to summary offences and it would go some of the way to meet the real and understandable objections put forward by the noble and learned Lord.

Lord Cope of Berkeley

My Lords, I intervene to support these amendments, having supported them rather feebly in the small hours of this morning. It seems to me that Amendment No. 41, requiring proper particulars to be given to someone who defends himself in the magistrates' court is of the first importance. I do not wish to downgrade Amendment No. 36, but it seems to me that these provisions are required particularly in the court.

Earl Russell

My Lords, if the Minister cannot accept this amendment, he will strengthen my rapidly growing suspicion that he simply does not know what may be reasonable grounds for believing that a banning order will help to prevent violence or disorder and therefore has no idea what type of information any further particulars would contain.

Lord Bassam of Brighton

My Lords, I shall try to deal with the amendments briefly but nevertheless accord them the seriousness they rightly deserve. The noble and learned Lord, Lord Ackner, has, as ever, tried to be helpful. I shall look at Amendment No. 36 first. We believe that it would create real difficulties for the police in attempting to implement Section 21A. I believe that the noble Lord, Lord Goodhart, put his finger on the point. This is a matter of practicalities in sometimes difficult situations.

The reality is that a person detained will be held for only a relatively short time and then either will be issued with a notice or released to continue his journey. Of course, the police will not pick on people to check out indiscriminately. It is right that they do so only when there are reasonable grounds, as the Bill now provides.

The amendment proposed by the noble and learned Lord goes beyond the kind of requirements which we believe are—I use the term again—analogous to provisions of PACE and the requirements of the common law. I have said that again for the record as he was puzzled. We believe that "full particulars" suggests a rather more substantial document, adding to the bureaucracy with which the police would probably have to comply without the document being of much value to the person detained.

However, by the same token, I recognise that as the noble and learned Lord warned us at Second Reading, there may be a temptation simply to issue a note to the individual explaining that the detention is in order to make further inquiries. I believe that the content of the notice and the detail that ought to be placed there is something that can best be dealt with in guidance to the police. That is our intended course of action here. Much as we are grateful to the noble and learned Lord, Lord Ackner, for his suggestion, we believe that the matter can best be dealt with by offering guidance to the police so that the notice contains fuller information.

Amendment No. 39 applies to Section 21A(1)(b). Here the constable is already required to state his reasons in writing for detaining the person. So that requirement is already in place. As we have argued previously, for a variety of reasons we do not consider it advisable to give full particulars in support of a decision to refer a person to the magistrates' court.

The effect of the amendment would simply be to require the constable to repeat to the person the general reason for detaining him without providing further details. That seems to us a rather unnecessary administrative step which may lead to some delays and possibly to a degree of puzzlement on the detainee's part.

In Amendment No. 41 the noble and learned Lord makes the same point in relation to the issue of a notice that he made in relation to the issue of the power to detain under Section 21A. The amendment is based on the premise, which we accept, that people issued with notices commencing a banning order by complaint process need to know the case against them so that they can prepare for their hearing. In those circumstances, simply reciting the wording of the criteria in Section 21A would not be appropriate. But we are not clear that the full particulars formulation is the right one either.

If the requirement is too onerous, that could lead to an extension of the detention period while a substantial notice is prepared. We would not want to forestall evidence which came to light subsequent to the issue of the notice and it being presented in court. If the police are unable to make their case at the first hearing, the person concerned should, in our view, be free to travel immediately. Where there are substantial issues of fact between the parties, we imagine that the court would probably adjourn the hearing to a later date.

In the light of my assurances that there is no intention that the police should regard it as sufficient merely to state the criteria in Section 21A, and that guidance on this point will be provided to the police, the noble and learned Lord may feel able to withdraw his amendment.

10.30 p.m.

Lord Ackner

My Lords, before the Minister sits down, perhaps he would be kind enough to tell me what he envisages will be put under the "reasons" referred to in Section 21A(2). Also, what does he envisage will feature in the "grounds" referred to in Section 21B(2)(c)? What goes in there? Something must go in there. What does the Minister have in mind?

Lord Bassam of Brighton

My Lords, the noble and learned Lord may want to return to this point. I am not in a position to answer his question this evening. If he wants to raise the point again tomorrow, I shall endeavour at Third Reading to give him a more full explanation.

Lord Ackner

My Lords, will the noble Lord also indicate tomorrow the substance of the guidance he is going to give to the police officers?

Lord Bassam of Brighton

My Lords, I am more reluctant to follow that second course of action. I am not fully aware of the stage our consultations have reached on formulating guidance. However, if I can give an assurance, clearly I shall. I shall give the noble and learned Lord some idea of what may be contained within the guidance. It may be that the guidance reflects other forms of guidance given in similar situations. We will endeavour to keep the noble and learned Lord advised as to how the guidance is progressing.

Lord Ackner

My Lords, will the Minister also indicate what his objection is to Amendment No. 39, which fills in the lacuna which I suggest exists in relation to Section 21B? I suggest that in Section 21 B(2), after the words, "The constable may", there should he inserted, on grounds set out in section 21A". Without those words we do not have the essential foundation for the exercise of the powers that we purport to give.

Lord Bassam of Brighton

My Lords, we are not sure that we accept the noble and learned Lord's reasoning. However, I undertake to look further at the point. Again, if the noble and learned Lord tables these amendments tomorrow, we will endeavour to respond to this point.

Lord Ackner

My Lords, on the understanding that I can bring forward these matters without objection on Third Reading tomorrow, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 37:

Page 9, line 43, leave out from ("so") to end of line 44 and insert— ("(a) where the notice is to be served at a port or airport, by an officer of at least the rank of inspector; or (b) where the notice is to be served other than at a port or airport, by a magistrate's warrant.")

The noble Lord said: My Lords, Amendment No. 38 has been grouped with this amendment. It is a somewhat cruder version of this amendment and I do not, therefore, intend to press it. Amendment No. 37 is a suggestion for the Government. If someone is stopped at an airport, we appreciate that it may often be necessary for the police to act by themselves in view of the nature of the situation, the speed involved, the location, and so on. Therefore, the provision that a police inspector should approve the constable's action seems adequate.

However, the Government have told us that, in most cases, the notices will be served on the individuals concerned before they leave home and set out on their journey to the football match where it is likely that they will cause violence. In such circumstances, it seemed to us that a magistrate's warrant could readily be obtained and served on the person at home. This would mean that the necessity for it to be done urgently by a policeman on the say so of his inspector would not exist. That is why we have put forward these two alternative procedures, as set out in Amendment No. 37. I beg to move.

Lord Bassam of Brighton

My Lords, these amendments would make modifications to the procedure for authorising the issue of a notice by a constable under new Section 21B of the 1989 Act. As the Bill stands, the issue of such a notice must be authorised by an inspector. As the noble Lord said, Amendment No. 37 is a rather more sophisticated version of Amendment No. 38, which requires that all such notices be authorised by a magistrate's warrant.

Amendment No. 37 would require the latter to happen only where the notice is not served at a port or airport. I am not convinced that the suggested distinction is necessarily a helpful one. In the Government's view, the decision to issue such a notice is an appropriate one for the police to take. The effect of the notice is to require a speedy appearance before a magistrate. I am afraid that I do not see that it would add greatly to the integrity of the process to require a magistrate's warrant to authorise an appearance before the magistrate within 24 hours.

I have dealt with these amendments very simply. I cannot recommend either of them—that is, neither the sophisticated nor the less sophisticated version—to your Lordships' House. I trust, therefore, that the noble Lord will feel able to withdraw his amendment.

Lord Cope of Berkeley

My Lords, disappointed as I am at not having convinced the Minister of the validity of our suggestion, I do not propose at this hour, and after the history of our consideration of all these matters, to press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

Lord Cope of Berkeley moved Amendment No. 40:

Page 9, line 48, at end insert ("and if the notice is served at a port or airport the notice shall specify a magistrates' court sitting at that port or airport").

The noble Lord said: My Lords, as will be obvious, this amendment provides that when a notice is served at a port or airport it, shall specify a magistrates' court sitting at that port or airport". The intention is to speed up the process when it takes place at a port or airport. We have discussed on numerous occasions the problems of delaying a passenger who is on his way to a match—or, for that matter, not to a match—because it may seem that he might cause trouble at that match. That applies particularly these days when the cheaper air fares do not allow someone to transfer to another flight. If the process delays one even by half an hour or an hour, even if the police do not pursue the matter, one is likely to have missed one's flight and lost one's money.

In those circumstances it seems to us that if a magistrate can be persuaded to sit at a port or airport during busy times—we have in mind stipendiary magistrates—that would speed up the process. Towards the end of our deliberations last night the Minister made some slightly sympathetic remarks on the idea that a magistrates' court might, at least at busy times, sit at ports. My noble friend Lord Astor borrowed a copy of that part of Hansard which was not printed last night from the Library for me to verify precisely what the Minister had said. Unfortunately, it turned out to be the only copy and he had to return it rather smartly. Therefore, I have been unable to verify the precise terms used. However, the Minister appeared to be slightly sympathetic to the idea of magistrates sitting at ports and airports. Therefore, I hope that the Minister will be sympathetic to the amendment. I beg to move.

Lord Bach

My Lords, we are sympathetic but we cannot accept the amendment. Amendment No. 40 would require that the hearing which follows within 24 hours of the issue of a new Section 21 B notice shall take place at the port or airport where the notice was issued, if it was issued at a port or airport. We are not clear that this is either necessary or even particularly helpful.

We have taken steps to ensure that court hearings will be facilitated within the demanding time-scale set by the Bill. But to require on the face of the statute that they be held at an airport seems a recipe for administrative difficulty, if not chaos. There are perfectly good magistrates' court premises within easy striking distance of most major ports or airports. It would be no significant added burden on the person who has received the notice to ask him to attend there. He will not in most cases choose to spend the period of up to 24 hours between being stopped and the hearing within the confines of the airport or seaport.

Rejecting the amendment would certainly not preclude the possibility of holding hearings at seaports or airports if that seemed appropriate. Surely it is the test of appropriateness that matters here. However, we do not think that it would be wise or particularly helpful for us to provide that this should happen on every occasion. With that explanation I hope that the noble Lord will withdraw the amendment.

Lord Cope of Berkeley

My Lords, I hope that when people are stopped at an airport it will, generally speaking, be much less than 24 hours before they appear before a magistrate. Twenty-four hours is not the desirable length of time, it is the maximum. The whole point of having a stipendiary magistrate at an airport is to allow the process to take place within a few minutes, or certainly half an hour or an hour. Far from causing an added burden, that would relieve the burden on the individual concerned, particularly if the magistrate decided against making a banning order and the person was able to continue his journey having been subjected to a delay of only an hour or two. However, I appreciate that the amendment seeks an automatic provision which may be overdoing things a little. In view of the slightly sympathetic way in which the Minister referred to the possibility of magistrates sitting at ports and airports on some occasions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 41 and 41A not moved.]

10.45 p.m.

Lord Lucas moved Amendment No. 42:

Page 10, line 29, at end insert— ("(ô) The court must offer bail to any person remanded by virtue of subsection (3)

The noble Lord said: My Lords, we encountered this particular amendment in the late hours of this morning, when I was kind enough not to divide the House in spite of a gathering outrage at the attitude of the Government towards the problem that underlies the amendment—my love for the Government Chief Whip is boundless and without reason on occasions—but we have now returned to the matter.

Here we have a procedure which is said by the Government to be civil. They have said over and over again that this is not a criminal matter, although it can impose a severe penalty on someone. They intend taking powers under proposed new Sections 21A and 21 B to stop someone at a port or airport and to confine that person, if necessary, for up to 24 hours before bringing him before a magistrates' court. The magistrates' court will then have the power to remand that person in custody, presumably, until sufficient evidence has been gathered to allow the magistrates' court to proceed on the basis of proposed new Section 14B. There can be no other basis on which they can be kept in custody; either there can be proceedings under proposed new Section 14B or, if there is not sufficient evidence, then the person can be remanded in custody. There is no time limit to the remand in custody. One imagines that a matter of several weeks is in contemplation. If a person is to be remanded in custody at all, it is likely to be for a period of a week or two.

What concerns me is that we are here taking away someone's liberty—someone who is not only not accused of anything but is never going to be accused of anything. The Government know that this is an innocent person; they know that this is someone who has not committed a crime; there is nothing to charge him with. They have a suspicion that he may be going to do something abroad—which is not a crime in the United Kingdom—and in order to prevent the possibility that the person may do something undesirable abroad they are going to deprive of him of his liberty on no evidence whatever.

If there was evidence, a banning order could be made under proposed new Section 14B. It is only when there is no evidence that the person has committed a crime that they can be held in prison pending further trial. This is not the right way to construe the basic principles of English justice. This person has been detained on the basis that the police have some kind of evidence and he has to meet some very gentle tests in order to come before the magistrates; there merely has to be proof under proposed new Section 14B(2) that he has in some way been involved in violence or disorder. If the police do not have that proof, they have no business detaining him under proposed new Section 21 anyway, and presumably that is that.

There has to be sufficient evidence to show that the magistrates have reasonable grounds for belief that it may be helpful to the maintenance of order at this foreign football match that the person is not permitted to go there—but not much evidence is required to do that. Either the police have that evidence, in which event the case should proceed and the banning order should be made, or they do not have that evidence and the person should be allowed to go free. There is no excuse whatever for the concept of allowing a person to be held in custody because the police have not got sufficient evidence.

It may be all right in the case of a crime, but here, as the Government have said, there is absolutely no crime. We should not treat any citizen in that way. Whatever suspicions the Government may have about a person, unless they can produce the modicum of evidence required under proposed new Section 14B(4), they should not retain the person in custody. I beg to move.

Lord Goodhart

My Lords, on this occasion, as on many other occasions during the passage of the Bill, we owe a considerable debt to the noble Lord, Lord Lucas, for putting his finger on a point of importance. If the banning order is, as the Government continue to firmly insist that it is, a civil order, it is inconceivable that there should be the remotest possibility of ordering a remand in custody pending the determination of whether or not a banning order should be made. It is wholly and completely inconsistent with the idea that this is a civil order. I can see no possible justification for refusing to accept the amendment.

Lord Bach

My Lords, there is an answer to the amendment. I am not sure that the noble Lord, Lord Lucas, has appreciated that what is being given here is a power of remand in custody. It is no more than that; a power of remand in custody. In the vast majority of cases of this kind the magistrates will bail the person who has been detained and asked to appear before the magistrates. All the amendment does is allow for the odd, peculiar situation which—as anyone who has any experience of courts at all knows—arises from time to time.

What happens if Mr A has been detained by the police and brought before the magistrates because at some time in the past he has caused or contributed to violence or disorder? He is brought before the magistrates. They may not be satisfied without more evidence that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder. They may not be satisfied of that on his first appearance. But he says, "Once you let me go, I am going to the match. I have a ticket for that match. I have bought my ticket for that match and I am going". That would not necessarily mean that the magistrates would find that there were reasonable grounds to believe that making a banning order would help to prevent violence or disorder. They might want more evidence. They would then adjourn his hearing so that they could get more evidence. They would not adjourn it for long.

Lord Carlile of Berriew

My Lords, I am grateful to the Minister for giving way. Is he seriously saying to the House that the Labour Government approves a provision whereby, when the police bring a man before a court, if they cannot produce the evidence to justify the order they are seeking, it can ever he right to remand him in custody? If that is what the Minister is suggesting, I am astounded to hear it coming from as experienced a lawyer as he and from any Labour Government.

Lord Bach

My Lords, I wish the noble Lord had heard me out. Perhaps if he had he would not have been so astounded. What I am saying in the example I am giving is that Mr A has been brought before the court. He is in a position where the magistrates cannot make up their minds whether the provisions of new Section 14B(4)(b) apply. They give the police another day to get any evidence they can. Meanwhile, the policeman says, "Mr A has told us that if he is let out he will go to Germany straight away and see the match because he does not see any reason why he should not". Is it being said that the courts should not have the power to remand him in custody in those circumstances, with the danger that he would then go abroad and cause trouble? Let me give another example if that one does not satisfy your Lordships completely. I have the feeling that it does not.

Noble Lords


Lord Goodhart

My Lords, one of the facts may be that he was required to surrender his passport. Under new Section 21B(6), that passport is returned to him only in accordance with directions given by the court. If the court says, "We are not going to give directions to return your passport", then he cannot go.

Lord Bach

He cannot go? Is the noble Lord saying that it would be impossible to leave the country without a passport?

Lord Goodhart

My Lords, what is the point of ever requiring the surrender of the passport?

Lord Bach

My Lords, the noble Lord was arguing last night, into the small hours, that the fact of a passport meant very little in terms of anyone going abroad these days.

Lord Goodhart

No, my Lords, I did not say that.

Lord Bach

My Lords, I give another example. The police think that the person the magistrates have before them is wanted on warrant but the police do not have the information at that time. Would the magistrates then have to let the man go on bail, or would they be entitled to keep him for a short period of time in order to see whether the warrant arrives?

All kinds of different circumstances and events occur. It is impossible to identify each and every one. All the power does is give the magistrates the ability to hold on to someone—of course it cannot be for a long period of time—for a short period of time until the matter is resolved. It is a power that magistrates have in every other instance. Why should they not have it here? Of course the provisions of the Bail Act 1976 would apply. In 99 cases out of 100 such a detainee would be freed.

We had a useful discussion of this issue when a similar amendment was put forward last night. We are not saying that the court must, or will normally, or will often, remand people in custody pending a hearing relating to the issue of a banning order. But we believe that the court must have the power to deal with a case where a person has made it absolutely clear that, if released, he will proceed to attend the football match from which he was originally banned. This power will not be used frequently. But to forbid the magistrates to remand someone in custody in this way would be a completely unnecessary gesture. The magistrates will not misuse the power. But that they should have the right to remand someone in custody for a short period of time has never been doubted in any other context. Magistrates have before them not just people charged with criminal offences; they have people who are brought before them in order to hear other proceedings which are not criminal in nature at all.

The Government are saying that there is a great deal of fuss here about precisely nothing. Noble Lords have worked themselves up into a lather about this issue. It is not a great issue of liberty or civil rights. This is a commonsense way of dealing with this problem. There is nothing unusual about it.

Earl Russell

My Lords, before the Minister sits down, is he aware that his arguments that the power will not be used often and that it will not be abused have been used many hundreds of times before and nine times out of ten they have been wrong?

Lord Bach

My Lords, is that a question?

Earl Russell


Lord Bach

My Lords, for centuries magistrates' courts in this country have had the power to remand someone who is before them.

Lord Carlile of Berriew

For offences!

Lord Bach

No, not just for offences. They have the power to remand someone in custody if they choose to do so. If they act illegally or wrongly, that person can claim that it was illegal and wrong and be released. But this is not giving the magistrates any greater power than they would otherwise have in similar circumstances.

Lord Lucas

My Lords, I am a simple soul and no lawyer. My view of the matter is that in 1628 we gained the freedom from arbitrary imprisonment.

Lord Bach

My Lords, 1628?

Lord Lucas

My Lords, the noble Lord will know better than I. My knowledge of dates is not very good, but it was a decent long time ago. But this week it appears that we are about to lose it. The noble Lord is saying that I may be brought before Folkestone magistrates for wanting to go to a football match overseas. A policeman says, "We know some murky secret in your past". The police say, "So you did insult the policeman?", and I say "yes". The police say, "We think that you are going to cause mayhem at the football match", and I say "no". They bring me before the magistrates and they produce no evidence that can pass even the gentle test in new Section 14B(4)(b). Surely it is right that the magistrates should let me go. If the police cannot prove their case, if they have no evidence and if they no reason for detaining me because they could not meet the basis for the test in Section 14(4)(b), then I should be let go.

11 p.m.

Lord Bach

My Lords, could the magistrates not adjourn the matter for a short period of time? If the evidence is not available on the spot, the proceedings could be adjourned for a day or so to see whether that evidence could be brought.

Lord Lucas

My Lords, if the evidence was not available, I should not have been stopped. There is no basis for stopping people under Section 21A without having sufficient evidence to take a case to the magistrates' court at the end of the day.

The purpose of Section 21A is to allow the police to collar people at the airport or in the port, trot them off to the magistrates' court and say, "Give this one a banning order". The police should not do that unless they have evidence. They cannot be allowed to say, "We haven't got any evidence against him yet, but give us 24 hours and we'll run around and see if there is anything". If, at the end of 24 hours, the police still have nothing, they will return to the court and say, "We did not manage to get anything. We need another 24 hours". That is ridiculous.

The noble Lord has himself said that there is no question here of the person having committed a criminal act or any question of the person being suspected of being about to commit a criminal act. It is quite inappropriate to imprison someone when no evidence is available to justify that imprisonment or, indeed, there is no suspicion of the person having committed a crime. Basic principles of law and justice must be applied here. It is no good to say that administrative convenience may be called in aid to allow the police to stop people from leaving the country when they have no evidence against them. Furthermore, the police should not be allowed an ever-extendable period of time in which to gather such evidence.

If the police have evidence, then, yes, Sections 21A and 21B will allow them to bring them in front of magistrates to secure a banning order. I may not like it, but that is a simple, straightforward and reasonably justifiable way in which the police can stop criminals from going abroad. However, if someone is collared at the airport and the police do not have the evidence necessary to satisfy Sections 14B(4)(b), why has that person been collared? If the conditions of 14B(2)— someone has a past conviction—are all that are met, are the police to be allowed to stop someone on that basis only and then be given time to try to gather evidence to satisfy 14B(4)(b)? That is an entirely wrong way of proceeding. Some justice must be brought into this.

If the police have evidence, that is fine. In front of the court, they may succeed in a conviction or they may not. However, if they do not have any evidence, then the person should go free. That should be the end of it. I wish to test the opinion of the House.

11.2 p.m.

On Question, Whether the said amendment (No. 42) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 84.

Division No. 5
Blatch, B. Maddock, B.
Carlile of Berriew, L. Mancroft, L.
Cox, B. Monson, L.
Dean of Harptree, L. Montrose, D.
Forsyth of Drumlean, L. Norton of Louth, L.
Glentoran, L. Park of Monmouth, B.
Goodhart, L. Razzall, L.
Lamont of Lerwick, L. Rodgers of Quarry Bank, L
Linklater of Butterstone, B. Russell, E. [Teller]
Lucas, L. [Teller] Thomas of Gresford, L.
Mackay of Ardbrecknish, L. Wilcox, B.
Acton, L. Harrison, L.
Alli, L. Haskel, L.
Amos, B. Hayman, B.
Andrews, B. Hilton of Eggardon, B.
Archer of Sandwell, L. Hollis of Heigham, B.
Ash ton of Upholland, B. Howells of St. Davids, B.
Bach, L. Hoyle, L.
Bassam of Brighton, L. Hunt of Kings Heath, L.
Bernstein of Craigweil, L. Irvine of Lairg, L. (Lord Chancellor)
Blackstone, B.
Bragg, L. Jay of Paddington, B. (Lord Privy Seat)
Brooke of Alverthorpe, L.
Burlison, L. Judd, L.
Carter, L.[Teller] Lea of Crondall, L.
Chandos, V. Lipsey, L.
Clarke of Hampstead, L. Macdonald of Tradeston, L
Cohen of Pimlico, B. McIntosh of Haringey, L. [Teller]
Crawley, B.
Davies of Coity, L. McIntosh of Hudnall, B.
Davies of Oldham, L. MacKenzie of Culkein, L.
Donoughue, L. Mar, C.
Dormand of Easington, L. Massey of Darwen, B.
Dubs, L. Mitchell, L.
Elder, L. Morris of Castle Morris, L.
Evans of Parkside, L. Nicol, B.
Farrington of Ribbleton, B. Pitkeathley, B.
Faulkner of Worcester, L. Prys-Davies, L.
Filkin, L. Puttnam, L.
Gale, B. Ramsay of Cartvale, B.
Gilbert, L. Rea, L.
Goldsmith, L. Rendell of Babergh, B.
Gordon of Strathblane, L. Richard, L.
Graham of Edmonton, L. Sainsbury of Turville, L.
Grenfell, L. Scotland of Asthal, B.
Hardy of Wath, L. Sewel, L.
Harris of Haringey, L. Simon, V.
Smith of Leigh, L. Watson of Invergowrie, L
Stone of Blackheath, L. Whitaker, B.
Symons of Vernham Dean, B. Whitty, L.
Thornton R Wilkins, B.
Williams of Mostyn, L.
Tomlinson, L. Winston, L.
Turnberg, L. Woolmer of Leeds, L.
Warwick of Undercliffe, B. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

11.12 p.m.

Lord Lucas moved Amendment No. 43:

Page 10, line 43, after ("him,") insert ("or where such a person has not been required to appear before the court to respond to such an application,")

The noble Lord said: My Lords, in moving Amendment No. 43 I should like to speak also to Amendments Nos. 44 to 46. All of these amendments address themselves to the last major government amendment tabled this morning which sets out to allow a magistrates' court to grant compensation to someone who is not made subject to a banning order but none the less has incurred costs.

There are four amendments in the group, the first of which addresses the question of what happens when the police produce no evidence in the magistrates' court. In that event the person has been prevented from travelling and so has lost his ticket and the right to attend the match. At the moment, if the police fail to produce evidence they are not liable to pay compensation. If, however, they produce inadequate evidence and the case is lost they may be required to pay compensation. I believe that that is inequitable. Amendment No. 44 provides that compensation should be paid out of the funds of the appropriate chief officer of police who, after all, is the person in charge of bringing the prosecution. If the chief officer is conscious of the fact that his budget will be hit if he brings lots of inappropriate prosecutions he will be less inclined to do so. It is right that responsibility should rest with the person who takes the decisions.

The first of the two subsequent amendments removes the subsection which places a limit on the amount of compensation. Amendment No. 44 is merely consequential. I beg to move.

Lord Bassam of Brighton

My Lords, these four amendments which would modify the clause dealing with compensation were tabled early this morning.

Amendment No. 43 would extend the compensation provisions to cases where a person has been detained by a police officer under new Section 21A but not had a notice issued against him under new Section 21 B. We had not included such a provision because the maximum period for which a person may be detained by a police officer is now six hours. It is in any case quite usual for people to be detained for such a period without there being any specific provisions for compensation. We think that this is a reasonable analysis and we are not, therefore, persuaded or convinced that any additional provision is required to cover a period of detention of that length.

Amendment No. 44 would provide that compensation, as the noble Lord, Lord Lucas, explained, be paid out of police funds rather than central funds. Again, we are not persuaded that this is the right route. We think that it would be better for it to be a call on central funds, otherwise it might begin to interfere with the judgment perhaps of the police in seeking to detain someone.

Amendment No. 45 would abolish the £5,000 ceiling on compensation which subsection (3) currently provides for. The sum of £5,000 seems to me to be an entirely appropriate figure. It is the same figure which magistrates' courts are able to award currently as compensation for crime. I cannot think of many circumstances where someone who has been held, ultimately wrongly, and prevented from enjoying the benefit of watching England play another disastrous game away somewhere in middle Europe, would run up a bill which might come to more than £5,000. It might be argued in view of some recent performances by England that the compensation could be larger, I suppose—I am not so sure about that! Amendment No. 46 is consequential upon Amendment No. 44. We believe that the amendment we have brought forward on compensation is generous and appropriate, going well beyond the common law position. Therefore we cannot recommend that Amendments Nos. 43 to 46 be accepted.

Lord Lucas

My Lords, if I understand the Minister aright, he says that once the notice has been issued under new Section 21B the right to compensation exists whatever the police do about it. They cannot in some way avoid the right to compensation by failing to appear or failing to press a charge at the magistrates' court. The trigger has been pulled by the issuing of the new Section 21 B notice. That will necessarily trigger an appearance before and a decision by the magistrates. If I have misunderstood, I hope that the Minister will tell me. Otherwise, there is a loophole.

I agree that on the Minister's interpretation, which I accept, there is not the problem I sought to resolve. There is only a holding for six hours rather than the possibility of someone being detained for 24 hours and at the end of the day not appearing before a magistrate in a way which would trigger the compensation provision.

Lord Bassam of Brighton

My Lords, I think that the noble Lord's understanding is right. It that is not so, I shall endeavour to advise the noble Lord further.

Lord Lucas

My Lords, under those circumstances, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 44 to 46 not moved.]

Schedule 2 [Minor and consequential amendments]:

Lord Bach moved Amendment No. 47:

Page 14, line 18, at end insert—

  1. Legal Aid Act 1988 (c. 34.) 2,761 words