Football (Disorder) Bill

– in the House of Lords at 8:57 pm on 24 July 2000.

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Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 8:57, 24 July 2000

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

Moved, That the House do now resolve itself into Committee.--(Lord Bassam of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.

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

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

moved Amendment No. 1:

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

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

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

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

They say that the standard of proof for probably future behaviour,

"falls well short even of a civil standard of proof of the state of affairs justifying the order, namely, that the individual concerned intends to cause trouble at a match. It appears to us that the court should be entitled to make such an order only where it is satisfied that the order would have the desired effect, not where it is satisfied merely that there are reasonable grounds to believe that to be the case".

I believe that part of their opinion to be both good law and good sense.

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

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 9:00, 24 July 2000

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

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

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

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

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

Photo of Lord Lucas Lord Lucas Conservative

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

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

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

Photo of Lord Borrie Lord Borrie Labour

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

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

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

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

There is a clear difference between proposed Section 14B(4)(b), which states that

"the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder", and the words that would appear if Amendment No. 33 were adopted, which are

"the court is satisfied that making a banning order would help".

That presents a bigger hurdle for the police to clear before a banning order could be put in place. As a lesser standard of proof would be required on the balance of probability, there is something to be said for Amendment No. 1. I await with interest the Minister's response.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 9:15, 24 July 2000

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

Photo of Lord Borrie Lord Borrie Labour

Surely there is a consistency. Whereas the conviction in new Section 14A must satisfy the criminal burden of proof, the requirement in subsection (2) that,

"the court is satisfied that there are reasonable grounds to believe that making a banning order would help", is the same as in new Section 14B. In other words, the civil burden of proof applies to both.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

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

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

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

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

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

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

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

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

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

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

I hesitate to add to this already long debate on the first amendment. We may be here until a very late hour this morning. However, I believe that there is a misunderstanding in relation to the tests. Of course, the noble Lord, Lord Borrie, is right in saying that under new Section 14A there must be criminal proof beyond reasonable doubt before one reaches the second hurdle of civil proof under which one must be,

"satisfied that there are reasonable grounds to believe".

However, one must consider both tests together in each section in order to make sense of them. In new Section 14A there is a criminal test followed by a civil test; in new Section 14B there is a civil test followed by a civil test. The trouble with new Section 14B, as was said many times at Second Reading and as will be said many times tonight, is that the double test in new Section 14B--the civil test and the civil test--is simply inadequate to protect the citizen, particularly when in new Section 14B(2), to which the noble Lord, Lord Bassam, referred, that hurdle is pathetically low. It is simply that,

"the respondent ... at any time ... contributed to ... disorder".

Disorder is defined in the feeblest of ways and does not involve anything more than word or gesture. Therefore, I believe that there is a major difference in the tests when the two are considered together.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

Photo of Lord Lyell Lord Lyell Conservative

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

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

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

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

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

Having heard the arguments--

Photo of Lord Lucas Lord Lucas Conservative 9:30, 24 July 2000

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

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

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

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

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

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

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

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Amendment, by leave, withdrawn.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

moved Amendment No. 2:

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

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

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

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

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

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

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

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

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

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Crossbench

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

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

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

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

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

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative 9:45, 24 July 2000

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

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

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

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

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

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

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

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

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

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

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

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

The Daily Mail of 1st June stated that,

"German authorities ... last night began confiscating hundreds of passports from known hooligans, including many without convictions for violence ... In Germany ... politicians last month passed a law that effectively suspends the civil liberties of known soccer thugs. Armed with the new powers, police have begun confiscating their passports, which will be held for the duration of the tournament. German interior minister Otto Schilly said concerns about civil liberties took second place to ensuring that there was little or no chance of a repeat of violent scenes involving German supporters in France for the World Cup two years ago".

That report is a little colourful. I have established that the withdrawal of passport sanction exists but is not used for soccer hooligans. However, they have adopted a measure which is similar to measures which are contained in the Bill; namely, they have established a reporting condition which requires people to be put under a regular reporting duty to their local police stations for particular periods of time during which they are unable to leave Germany. A stamp was put in the passports of others who were prohibited from travelling to Belgium and/or the Netherlands for a limited period of time. That restriction is applied on the basis of some kind of police proceedings to do with hooliganism, although no prior conviction is necessary.

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

Photo of Lord Monson Lord Monson Crossbench

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

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

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

Photo of Lord Lyell Lord Lyell Conservative

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

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 10:00, 24 July 2000

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

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

Perhaps it would help the Committee if I read from it. It is headed "Withdrawal of passport" and it states:

"The right to withdraw a person's passport exists, but is only used for those who have committed very serious offences, and is not used for those such as football hooligans".

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

I was; but the impression I gained when the noble Lord was quoting from the Daily Mail was that some vast change had overtaken German law and that large numbers of people were affected. Perhaps I may read further in order to help the Committee as to reporting conditions. It states:

"A small number of people have been put under a regular reporting duty".

As to restrictions on passports in terms of stamping them, it states:

"A further small number of people have had a stamp put in their passports".

The net result is that,

"There has been a suggestion that these laws are new. This is not the case".

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

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

Photo of Lord Alexander of Weedon Lord Alexander of Weedon Conservative

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

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

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

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

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

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

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

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

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

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

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

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

Photo of Lord Desai Lord Desai Labour

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

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative 10:15, 24 July 2000

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

Photo of Lord Woolmer of Leeds Lord Woolmer of Leeds Labour

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

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

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

I should like to quote a short passage from the August edition of the magazine When Saturday Comes. That publication, which is aimed at football fans, will not be found on the bookshelves or reading lists of many noble Lords, but I commend it to the Committee. The editorial on page 4 makes one or two points that it is worth keeping in mind in addressing the matters before us this evening:

"For too many of the fans who follow the national team, going abroad is about asserting England's superiority--not necessarily with violence, but with songs and aggressive behaviour that is meant to be (and is) intimidating to the locals ... It seems we can't imagine a relationship with the rest of Europe (in football or anything else) that does not involve either conquest or humiliation ... But when the actions of a large minority among England's travelling support are so objectionable, innocent supporters will always be tainted by association".

The two lessons that I draw from that passage are: first, that the kind of behaviour that would not in certain circumstances be expected to lead to violence may do so, and certainly potentially many thousands of young males, not a few hundred, engage in such activity; secondly, the fans themselves recognise that these people represent a large minority.

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

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

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

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

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

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

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

Photo of Lord Lucas Lord Lucas Conservative

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

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

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

Photo of Earl Russell Earl Russell Liberal Democrat 10:30, 24 July 2000

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

Only by giving instructions to the police.

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

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

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

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

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

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 10:45, 24 July 2000

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

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

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

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

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

Photo of Lord Lucas Lord Lucas Conservative

The Minister is putting forward a rather extraordinary idea of the way in which we should legislate, that we should just accept any Bill if it is time-limited. Perhaps we could try executing engine drivers if they do not run their trains on time. We could try that for a year to see how it works!

The Committee must be allowed to perform its function. While taking note of the fact that the legislation is limited, in which case the Committee may let it go further than it would normally, and taking note of the urgent need for it, we must subject it to proper scrutiny. I do not believe that the Minister has made anything like a case for this part of the Bill. He started by saying that this measure would be used only occasionally and then welcomed with open arms the scenario painted by the noble Lord, Lord Woolmer of Leeds, of it being used to stop 20,000 fans travelling to a match in Turkey. We have had no explanation of how that will be achieved.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 11:00, 24 July 2000

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

Photo of Lord Lucas Lord Lucas Conservative

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

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

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

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

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

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

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

Therefore, I am wholly unable to accept--

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Noble Lords:

Why not?

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Disclosure of information by NCIS]:

Photo of Lord Bach Lord Bach Government Whip

moved Amendment No. 3

Page 2, line 3, at end insert--

("(3B) A statutory instrument containing regulations under subsection (3A) shall be subject to annulment in pursuance of a resolution of either House of Parliament."").

Photo of Lord Bach Lord Bach Government Whip

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

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 11:15, 24 July 2000

moved Amendment No. 4:

After Clause 2, insert the following new clause--

:TITLE3:"EXTRA-TERRITORIAL OFFENCES"

(" .--(1) Any act or omission which--

(a) takes place outside England and Wales, and

(b) would if taking place in England or Wales constitute a relevant offence within the meaning of the Football Spectators Act 1989, shall, for the purposes of the law of England and Wales, constitute that offence (an "extra-territorial offence").

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

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

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

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

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

The main objection voiced by the noble Lord, Lord Bassam, when he summed up the Second Reading debate was that it would not achieve the preventive purpose that new Section 21 in particular is designed to achieve. He also said:

"It would be preferable if those British citizens who commit offences abroad were prosecuted rather than deported. As I said earlier, that is a point we shall continue to press and upon which we need to work very closely, and in co-operation, with our European partners".--[Official Report, 20/7/00; col. 1261.]

That point was made by the Home Secretary in the House of Commons. While it would have been preferable if the Belgians, for example, had taken a much more forceful line on the less serious offences of disorder of which there were plenty, the fact is that they did not. I suspect that the general attitude of foreign police forces to posses of disorderly British football fans is to say, "Let's get them the Hell out of here as soon as we can and let the Brits deal with them". I suspect that they confine themselves only to prosecuting for serious cases of assault. That is why I believe that our proposal would be much more effective than anything that the Government propose in new Sections 21 or 14B as it would enable us to get a grip on these people and to ensure that when they come back to this country exemplary prosecutions take place, and plenty of them. I believe that in terms of preventive action that would be infinitely more effective than any tinkering around with this new and dangerous category of powers that the Government seek to take in parts of the Bill.

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

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

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

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Crossbench

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

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Crossbench

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

Photo of Lord Monson Lord Monson Crossbench

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Lucas Lord Lucas Conservative

And so you should be.

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

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

Photo of Lord Monson Lord Monson Crossbench

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench

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

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

In relation to new Section 21A I would just say--I accept that I have not heard the arguments and have apologised for that--that I cannot envisage a police officer standing at an airport check-in point being able, even if he wanted to, arbitrarily to pick people out of the queue and say, "I want to investigate you". Under the terms of the Bill, he has at that moment to have reasonable grounds for suspecting that a condition in new Section 14B(2) has been met. New Section 14B(2) requires that the respondent--I do not think he is a respondent; that is a fudge--

"has at any time (whether before or after the commencement of this section) caused or contributed to any violence or disorder in the United Kingdom or elsewhere".

One could not just pick people out of a queue on that basis. Substantial evidence would have to be available to the police officer. So I do not think that there is any risk of random picking of people. If there were, the chief constable would find himself with a very heavy bill for compensation, and quite rightly so. I rose primarily to say that I am against extra-territoriality in this field.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 11:30, 24 July 2000

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

I thank my noble friend for giving way. New Section 14B(1) states that a,

"person may be made by the chief officer of police for the area in which the person resides or appears to reside, if it appears to the officer", and so on. Therefore, I would assume that it is a residency and not a nationality test.

Photo of Viscount Astor Viscount Astor Conservative

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

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

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

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

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

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

Photo of Lord McNally Lord McNally Liberal Democrat

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

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

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

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

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

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

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

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative 11:45, 24 July 2000

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

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

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

Twenty times 50 is a bit more than that.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 12:00, 24 July 2000

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

Photo of Lord Woolmer of Leeds Lord Woolmer of Leeds Labour

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

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

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

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

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

Photo of Lord Monson Lord Monson Crossbench

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

Amendment, by leave, withdrawn.

Clause 3 [Supplementary]:

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 5:

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

Photo of Lord Lucas Lord Lucas Conservative

I should like to know what effect this amendment would have. I beg to move.

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Lord Bach Lord Bach Government Whip

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

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

Photo of Lord Bach Lord Bach Government Whip

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

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

Photo of Lord Bach Lord Bach Government Whip

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

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

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

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Lord Lucas Lord Lucas Conservative

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

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

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench

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

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

Photo of Lord Carter Lord Carter Chief Whip (House of Lords), HM Household, Lords Chief Whip (HM Household)

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

Does that mean that today is transitory?

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench

I am much obliged. I tried.

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Lord Bach Lord Bach Government Whip

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Lord Bach Lord Bach Government Whip

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

Photo of Earl Russell Earl Russell Liberal Democrat

I wonder if I might have a copy.

Photo of Lord Bach Lord Bach Government Whip

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

Photo of Lord Lucas Lord Lucas Conservative

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

Amendment, by leave, withdrawn.

[Amendments Nos. 6 to 8 not moved.]

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Commencement and duration]:

[Amendment No. 9 not moved.]

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative 12:15, 24 July 2000

moved Amendment No. 10:

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

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

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

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

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

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

Photo of Lord Woolmer of Leeds Lord Woolmer of Leeds Labour

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

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

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

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

Photo of Lord Lyell Lord Lyell Conservative

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

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

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

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

Photo of Lord Lyell Lord Lyell Conservative

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Lord McNally Lord McNally Liberal Democrat

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

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

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

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 12:30, 24 July 2000

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

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

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

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

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

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

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

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

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

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

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

Amendment, by leave, withdrawn.

[Amendments Nos. 11 and 12 not moved.]

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

moved Amendment No. 13:

Page 2, line 42, after ("Act") insert (", and

(b) the arrangements in force in Scotland and Northern Ireland for ensuring the proper working of the provisions of this Act,").

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

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

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

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

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

Photo of Earl Russell Earl Russell Liberal Democrat 12:45, 24 July 2000

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

My amendment seeks to delete subsection (2) of Clause 6, which states:

"But the amendment or repeal by this Act of an enactment extending to Scotland or Northern Ireland also extends to Scotland or, as the case may be, Northern Ireland".

It may be an exaggeration to say that that drives a coach and horses through the principle of devolution, but it does at least make a significant dent in it.

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

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

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

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

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

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

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

Photo of Lord Lucas Lord Lucas Conservative

There is another delightful aspect to the question raised by the noble Earl, Lord Russell: under proposed new Section 14B, you can be got only if you are a resident of England or Wales. Under proposed new Sections 21A and 21B, you can be picked up if you are a Brit. So a constable can come along to a Scotsman and chuck him in the brig for four or six hours; but he cannot then do anything with him because the power in new Section 21B(4) refers to,

"the appropriate chief officer of police to the court in question".

For a Scot there is no such person. He cannot then actually charge him with anything. What the Bill gives at the moment is a power to pick up Scots and put them in chokey with no prospect of a prosecution for anything at all. That does not seem to be a way to spread happiness between ourselves and our colleagues north of the Border. I hope that that and the other points the noble Earl has raised will be taken seriously into consideration.

Photo of Lord Bach Lord Bach Government Whip

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

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Photo of Lord Bach Lord Bach Government Whip

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

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

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

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

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

In a newspaper report the other day, the Prime Minister's official spokesman was quoted as saying that Tony Blair was determined to plug any loophole in the proposals with regard to Scotland. The report stated:

"Ministers at Westminster hope that closer co-operation between police forces north and south of the Border could ... prevent English thugs from circumventing the proposed travel restrictions".

The Minister was kind enough to confirm that Ministers think that police co-operation is the way forward. However, the newspaper went on to say that senior Scottish police officers had admitted that they would be powerless in the matter. That is the truth of the matter.

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

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Extent]:

[Amendment No. 14 not moved.]

Clause 6 agreed to.

Clause 7 agreed to.

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

moved Amendment No. 15:

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

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

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

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

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

Photo of Lord Bach Lord Bach Government Whip 1:00, 24 July 2000

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

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Amendment No. 16 arises simply because I found it difficult to understand what was meant by the words in line 30 on page 4,

"any period described in an order made by the Secretary of State".

At first I wondered whether the word "described" could be a misprint of the word "prescribed", but I am by no means certain that that is the case. Sub-paragraphs (6)(a) and (b) lay down mandatory starting and finishing days for the control period. I cannot see, therefore, what function is intended by these words. Amendment No. 16 is in effect a probing amendment to find out exactly what these words mean.

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

Photo of Lord Lyell Lord Lyell Conservative

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

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

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Lord Bach Lord Bach Government Whip

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

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

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

Photo of Viscount Astor Viscount Astor Conservative

Time is a problem here. The Minister said that he would take back Amendment No. 16. That is helpful. To aid the Committee so that it will have some understanding of the position when the Minister tables a new amendment--perhaps Members of the Committee will want to consider whether they, too, want to table an amendment--can the noble Lord explain what is meant in subsection (6) by the words,

"any period described in an order made by the Secretary of State"?

The Committee will find it helpful to understand the purpose of that provision.

Photo of Lord Bach Lord Bach Government Whip

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Lord Bach Lord Bach Government Whip

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

Photo of Lord Boston of Faversham Lord Boston of Faversham Crossbench

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

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 18:

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

Photo of Lord Lucas Lord Lucas Conservative

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

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 1:15, 24 July 2000

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

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

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

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

Photo of Lord Monson Lord Monson Crossbench

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Lord Lucas Lord Lucas Conservative

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

Amendment, by leave, withdrawn.

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 19:

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

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

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

Division number 3

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

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

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

Photo of Viscount Astor Viscount Astor Conservative

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

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

Amendment, by leave, withdrawn.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

moved Amendment No. 21:

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

Photo of Earl Russell Earl Russell Liberal Democrat 1:45, 24 July 2000

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

Amendment, by leave, withdrawn.

Photo of Lord Brougham and Vaux Lord Brougham and Vaux Deputy Chairman of Committees, Deputy Speaker (Lords)

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

Photo of Earl Russell Earl Russell Liberal Democrat

moved Amendment No. 22:

Page 5, leave out lines 27 to 44.

Photo of Earl Russell Earl Russell Liberal Democrat

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

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

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

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

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

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

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

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

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

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

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

Although the hurdle in new Section 14B(2)--namely, whether the person concerned has,

"caused or contributed to any violence or disorder"-- as defined by new Section 14C, is extremely low, the hurdle that will really matter is that contained in new Section 14B(4)(b), which says that such an application can be made to a magistrates' court if,

"the court is satisfied that there are reasonable grounds to believe, that the person will contribute to such violence. That condition will be quite difficult to satisfy; indeed, the chief constable may have difficulty in explaining why he thinks that someone will be responsible for violence or will get involved in violence in some way in connection with a football match. That is much the higher hurdle, although it is not all that high.

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

Photo of Lord Woolmer of Leeds Lord Woolmer of Leeds Labour 2:00, 24 July 2000

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

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

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

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

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

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

I hope that the Committee will forgive my speaking again. However, as the noble Lord, Lord Woolmer, spoke, it occurred to me that a Member of this House and a Minister in the other place would, in their time, have been caught slap bang by the legislation. I think of David Steel and Peter Hain, both of whom were engaged in anti-apartheid demonstrations, particularly in relation to rugby. Am I not right in thinking that both of them would have been caught slap bang by the provisions of new Section 14B and by the second test mentioned by the noble Lord, Lord Cope; namely, that a court would indeed be satisfied that there were

"reasonable grounds to believe that making a banning order would help to prevent ... disorder ... in connection with any ... football matches"?

Is that not a worrying example of the way in which this legislation could--I suspect that, if the legislation had been in force at the time, it would have been used in this way--have been used to close down the civil demonstrations that I mentioned?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

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

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

Photo of The Earl of Onslow The Earl of Onslow Conservative

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

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

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

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

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

Photo of Earl Russell Earl Russell Liberal Democrat

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

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

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 2:15, 24 July 2000

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

I was not seeking to disparage Mr Hain, rather the opposite. I was a strong supporter of his courage then and would be now. This is not unimportant because the Minister constantly refers to violence. This new section deals with disorder and violence. Disorder is defined, I repeat, in a most modest way, as,

"using threatening, abusive or insulting words or behaviour or disorderly behaviour".

Those demonstrations in the days when Peter Hain was on the barricades were certainly disorderly behaviour within that definition. There are no two ways about it. Therefore, it demonstrates the kind of conduct which is perfectly lawful and yet falls within the new section. That is why the noble Earl, Lord Russell, and myself are moving the amendment. As he has already said, we must withdraw it. But I did want to try and put that part of the debate on a proper level.

Photo of Lord Woolmer of Leeds Lord Woolmer of Leeds Labour

The noble Lord quoted the Hain case. Even if that behaviour was thought to have a degree of disorder about it, that is not itself an action that would actually result in a banning order. It could only result in banning if,

"the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence and disorder at or in connection with any regulated football matches".

Frankly, the case being made simply does not bear examination. There is no connection between the two. I honestly think that that is a red herring. I am more concerned with people who genuinely have some violence in their background. The authorities will have to be able to choose out of the tens of thousands of people who have a violent background but do not have convictions the few that they will ban. However, I believe that the Hain case is a red herring.

Photo of The Earl of Onslow The Earl of Onslow Conservative

New Section 14C(3) states:

"In this Part, 'violence' and 'disorder' are not limited to violence or disorder in connection with football".

Photo of Earl Russell Earl Russell Liberal Democrat

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

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

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

Amendment, by leave, withdrawn.

Photo of Lord Bach Lord Bach Government Whip

moved Amendment No. 23:

Page 5, leave out line 32.

Photo of Lord Bach Lord Bach Government Whip

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Lord Bach Lord Bach Government Whip

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

On Question, amendment agreed to.

Photo of Lord Boston of Faversham Lord Boston of Faversham Crossbench

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

Photo of Lord McNally Lord McNally Liberal Democrat

moved Amendment No. 24:

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

Photo of Lord McNally Lord McNally Liberal Democrat

We have had a thorough debate on new Section 14B. This amendment makes clear its intention; that is, it seeks to replace in new Section 14B(2) the words,

"caused or contributed to any violence or disorder", with the words,

"been convicted of an offence involving violence or any other relevant offence".

The reason was covered in our earlier debate. The term,

"caused or contributed to any violence or disorder", begs the question: if an act warranted a prosecution, why did not that take place at the time? If the act did not warrant a prosecution, why should it be resurrected subsequently to justify a banning order?

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

Photo of Lord Lucas Lord Lucas Conservative

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

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

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

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

On page 6 at line 23, the Bill states "or Section 15(2A) below". The problem is that there is no "Section 15(2A)below". Paragraph 2 of Schedule 1 states:

"For section 14 ... and sections 15 to 17 there is substituted".

Then follows new Section 14, followed by new Section 14A and on up to new Section 14J, but there are no new Sections 15, 16 or 17 in the Football Spectators Act as amended. For that reason, there can be no "Section 15(2A) below".

Photo of Lord Monson Lord Monson Crossbench

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

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

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

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

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

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

Photo of Lord Woolmer of Leeds Lord Woolmer of Leeds Labour

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

Photo of Lord Lucas Lord Lucas Conservative

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

Photo of Lord Woolmer of Leeds Lord Woolmer of Leeds Labour

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

Photo of Lord Cope of Berkeley Lord Cope of Berkeley Conservative

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

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

Photo of Lord Monson Lord Monson Crossbench

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