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Mr. Burns: As my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) said in ably speaking to this group of amendments, they fall broadly into two groups. If the House will allow me, I shall keep to those two groups. I shall deal first with amendments Nos. 10, 11 and 23 and then deal with the points that arise from amendments Nos. 1, 6 and 7.

In many ways, I am saddened to have to tell my right hon. Friend the Member for Bromley and Chislehurst that I am not attracted to the amendments. They go to the heart of the Bill and if they were to be accepted they would, to my mind, seriously undermine and undo what I consider is the good work of legislation in giving the authorities--the police and the courts--greater and enhanced powers to deal with those whom I have described before as a small, mindless group of moronic hooligans who cause such a problem.

The effect of my right hon. Friend's first group of amendments within the group as a whole would be, as he rightly said, to remove the duty on courts to make an international and domestic banning order where a football-related offence has been committed, and the court is satisfied that there are reasonable grounds to believe that the order would help to prevent violence and disorder at or in connection with future football matches.

In effect, the amendments would give the courts a discretionary power to make such orders if the relevant conditions were fulfilled. I fear from the evidence that is available so far that the courts have been using their discretion in a wide way, in effect to dilute the laws that are currently in place, because of a reluctance to use a power that will have dramatic effects in preventing hooligans from attending matches and causing the problems from which this country and others have suffered far too much.

For the benefit of my right hon. Friend the Member for Bromley and Chislehurst, the latest figures that I have--I assume that they are still more or less correct because they go to 16 April--show that on 16 April, there were

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113 international banning orders and about 400 domestic banning orders. If the amendments are used to reintroduce the discretionary power, that will seriously undermine the Bill's aim--which is to deal with the problem more effectively.

Mr. Maclean: In my experience, if one tries to tie a court's hands in one area it will free them up in another. Even though clause 1(2) says that

"it shall be the duty of the court to make an international football banning order",

if the court does not like being tied to that, is there not a danger that it will conclude, "We were not satisfied that there were reasonable grounds"--thus giving itself an out in that sense?

Mr. Burns: My right hon. Friend raises a valid point. It is difficult to give him a completely accurate and straightforward answer, because the matter is subjective. He may be correct in some circumstances, but I am not convinced that the courts would behave in that way.

My right hon. Friend the Member for Bromley and Chislehurst should not forget that although the courts have the freedom not to impose a banning order, if they do not use that power, they must give reasons why they have not done so. I believe that it is perfectly reasonable for a court to explain why it has decided not to exercise a power that it has under the law to impose a banning order.

On amendments Nos. 1, 6 and 7, my right hon. Friend the Member for Bromley and Chislehurst said that he might be arguing against himself. He was being slightly harsh on himself in that respect. However, it does seem contradictory--and unnecessary, over-regulatory and a burden on the courts--to impose on courts an obligation to state in open court why they are imposing a banning order. More often than not, when a person is sentenced, having been convicted of an offence, the judge or magistrate is more than ready to explain why they are imposing the sentence and why they consider it justified.

My right hon. Friend hinted that he might not press these amendments, which suggests that I may be pushing at an open door. I believe that, on reflection, he of all people, given his excellent record of seeking to break down the over-burdensome regulation within the state, would feel that it would be unnecessary and unfair to burden courts, judges and magistrates with such an obligation.

Mr. Maclean: My hon. Friend is stretching it a bit too far. His Bill says that the court shall state in open court why it is not imposing an order. He then suggests that it is an over-burdensome new regulatory power to insert a similar power saying that the court shall state in open court why it is imposing an order. I do not think that that is as heavy a regulatory burden as he suggests. Judges are capable of giving their reasons very simply.

Mr. Burns: In a way, my right hon. Friend is making my point, because I mentioned earlier that judges and magistrates, when imposing a punishment or sentencing someone who has been convicted, state their reasons for doing so. I consider that it would be burdensome and

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nanny-statish to regularise into law something that is already common practice on, to all intents and purposes, a voluntary basis.

I was seeking to explain to my right hon. Friend the Member for Bromley and Chislehurst that, given his reputation and his crusade to prevent individuals from being overburdened at the hands of the state, he may decide to follow his gut instinct not to press that set of amendments. I hope that, when he has had an opportunity to listen to the full debate, he will feel that, whereas it has been extremely useful and important to discuss the issue, it might be sensible not to press the amendments. I leave it in the capable hands of my right hon. Friend to take that decision at the appropriate time.

11.45 am

Mr. Maclean: My right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) may have been persuaded by the eloquence of my hon. Friend the Member for West Chelmsford (Mr. Burns), but I have not been yet. This is a small but important group of amendments. As my right hon. Friend said, we are trying to restore the traditional discretion of the courts.

I have a few years' experience of producing legislation in the Home Office, and any legislation that appeared to limit the discretion of the judiciary was always fought hard by it. I suspect that, unless we are willing to contemplate the amendments, when the Bill goes to another place later this afternoon, it may not be so satisfied with legislation that imposes a duty on a court to do something, and uses words such as

"it shall state in open court"

when it prefers discretion. I have not had a chance to consult the Magistrates Association yet, but usually, as a principle, it likes to ensure that any legislation imposing obligations on the court does not tie its hands, but gives it flexibility to impose whatever penalty it wishes beneath a maximum level. Usually, the association does not like minimum penalties. Magistrates like to have that freedom. It is a traditional freedom, and we have got into trouble when trying to limit that discretion.

Clause 1(2) says:

"Subject to subsection (3) below, it shall be the duty of the court to make an international football banning order in relation to the accused if"

the court

"is satisfied that there are reasonable grounds to believe that making the order would help to prevent violence"

and so on. The danger is that when my hon. Friend the Member for West Chelmsford has tied the court's hands in the first line,

"it shall be the duty of the court"

to make a banning order, in borderline cases where judges would have liked to have a discretion they will say, "We do not really want to make the order". Instead, they will rule that the evidence was not good enough and that they were not satisfied that there were reasonable grounds for making an order. That is not a corruption of justice; it is an inevitable part of our human nature.

Mr. Burns: May I put another scenario to my right hon. Friend? The courts may decide that the offence that the individual has committed is not serious enough to warrant a banning order, so, using their discretion,

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they do not impose one. They then give their reasons and make the precise point that they do not consider that the offence was serious enough to warrant the issue of a banning order. Is not that the way around the problem that is exercising my right hon. Friend so much?

Mr. Maclean: I do not think that it is. I take the subsection as it is presented in the Bill, and as my hon. Friend has proposed it. He needs to come up with a different form of words to ensure that, in all cases where the evidence is clear cut and any person in their right mind would impose a banning order, the courts would do so. He is trying to tie the courts' hands in a way that they will try to escape; they will use the second part of the clause to get out of imposing a banning order in those borderline cases. They will merely state that they were not satisfied that there were reasonable grounds for imposing one.

Mr. Burns: The proposal is that it should be the duty of the court to make an order if it is satisfied that there are reasonable grounds to believe that making the order would help to prevent violence or disorder at designated football matches. If the court regards the offence of which the person has been convicted as relatively minor within that ambit, it may feel that the individual will not cause violence or disorder at a future match, and will not issue the order. The court will then give the reasons. That is perfectly reasonable.

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