| Previous Section | Index | Home Page |
Mr. Maclean: It may be pedantic but my concern is that, by using the words "shall be the duty", my hon. Friend will increase the likelihood that the courts will use the excuse that the potential is negligible or that there are not reasonable grounds. Courts and magistrates do not like being tied strictly to an obligation to impose a particular sentence, because there will be borderline cases where they think that the sentence is not appropriate. The clause allows the court to deal with borderline cases, which cannot use a discretionary power, only by exaggerating the last part of the clause--by saying that it does not believe that the order will help to prevent violence or disorder, or that the grounds are not substantial.
Mr. Tony Clarke: Does the right hon. Gentleman accept that we are simply trying to bring clarity to the decision-making process of the court? Does he further accept that the judiciary sometimes gets it wrong? Until December 1998, only three international banning orders had been made. That was in a year when we witnessed terrible scenes of trouble in France during the world cup, perpetrated by so-called England fans. Does not that prove that, so far, the judicial process has failed? The hon. Member for West Chelmsford (Mr. Burns) is seeking to bring clarity by determining which offences would and would not warrant an international banning order.
Mr. Maclean: I am always keen to have clarity in the law, and this House has, over the years, tried to bring clarity to the law. However, the proposal will not necessarily cause an increase in international banning orders, as the hon. Gentleman suggests. If one wants to get a lot of people banned, there is no point in giving the court the power to be satisfied that there are reasonable grounds that making the order will prevent violence or disorder.
If a court decides that it is not entirely satisfied, it can say that although the individual concerned may have convictions for affray, hooliganism or violence, on this occasion it does not think that an order will help to prevent violence abroad. The court will not make the order because the person has not satisfied the reasonable grounds provision. Not all courts will behave like that in all circumstances, and the tightening of the law will mean that we can expect more banning orders.
I am merely suggesting to my hon. Friend the Member for West Chelmsford that if one attempts to tie the hands of judges by putting in the words "shall be the duty", the judges--in an attempt to get the liberty not to impose orders--will extend the last half of the proposal and conclude that there are no reasonable grounds.
Time and time again, I have heard the argument that if a sentence appears too severe, the court will not convict. We have heard the argument that if capital punishment were brought back, juries would not convict an obviously guilty person because they did not like the consequences. That applies to a whole range of sentences. If courts, juries and judges do not like the inevitable consequences of a guilty verdict because they do not like the compulsory sentence that they must impose, in borderline cases they will conclude that the person is not guilty after all.
Also, we should not make it compulsory that reasons "shall be" given in open court. I would prefer to use the word "may", which would give the courts the traditional discretion for which they have fought for years--and for which they used to fight me when I, as a Minister, tried to take it away. In another place, more attention will be paid to that.
My right hon. Friend the Member for Bromley and Chislehurst made most of the arguments for the amendments powerfully, and I need not bore the House by repeating them. My hon. Friend the Member for West Chelmsford was in danger of misleading himself when he said that he did not like amendment No. 1 because it says that where a court makes an international football banning order, it "shall state" the reasons for that decision in open court. The amendment was drafted in that way because we wanted it to be consistent with the preceding subsection as we were working on the assumption that my hon. Friend or the Government might not accept our amendment to change "shall" to "may".
Amendment No. 1 would be a sensible addition to the Bill. I profoundly disagree with my hon. Friend the Member for West Chelmsford, who suggested that it might be an awful burden to impose on the judiciary or the magistrates. In the past, we were dealing with three cases, and now we may be dealing with, at most, 100 cases per annum coming before the 30,000 or so magistrates in this country.
There is already an obligation in the Bill that the court "shall state" in open court where it is not satisfied. I hardly think that it is a great burden if the court has to make a simple statement when it has imposed an international banning order. Courts must do that in a range of cases, particularly in terms of all offences concerning children and young people, in which they must state their reasons in much greater detail.
I strongly urge amendment No. 1 on the House, but if my hon. Friend the Member for West Chelmsford and the Minister continue to resist it, I would not wish to waste the time of the House by dividing on it. However, I hope that it will be considered seriously in another place.
Mrs. Laing:
It is comforting that the House is now back to normal and my right hon. Friends the Members for Penrith and The Border (Mr. Maclean) and for Bromley and Chislehurst (Mr. Forth) are in harmonious agreement. I am not, however, in agreement with them. The Opposition support the arguments of my hon. Friend the Member for West Chelmsford (Mr. Burns).
We have before us a very important point of principle on the criminal law. It is important to give sufficient discretion to the courts and to the judiciary. There must be some discretion in the way in which judges or magistrates deal with the law in making a judgment after considering the particular circumstances of a case, but it is up to the House to make the laws for them to interpret. That important distinction is often overlooked when we are considering the extent to which the courts should be bound by the letter of the law.
Kate Hoey:
The Government feel that the amendment would weaken the Bill. It would be wrong to remove the duty placed on courts to make banning orders when a football-related offence has been committed and they are satisfied that there are reasonable grounds to believe that an order would help to prevent violence. It is very important to remember what happened when the courts had discretion: in December 1997, there were only nine restriction orders in force and it was clear that the courts were not using the discretion available to them. They did not even seem to realise that they could impose the orders.
The Home Secretary had to write to the Magistrates Association and point out that such orders were available, and by the end of June 1998 the number in force went up to about 60; it is now about 150. Those may still be relatively low numbers, but it is important that we say that, when the evidence is there and the courts are satisfied that the person has been convicted of a football-related offence, an order should be imposed.
The courts will still have discretion and I do not think that they will be so terrified of issuing banning orders that they will refuse to convict, as the right hon. Member for Penrith and The Border (Mr. Maclean) seems to imply. Our magistrates are not like that and we would not expect them to act in that way.
I hope that the right hon. Member for Bromley and Chislehurst (Mr. Forth) will withdraw the amendment. If there is such strong feeling in the other place, presumably the matter will be discussed there, but I do not think that the amendment is necessary. It would water down the Bill, and the hon. Member for West Chelmsford (Mr. Burns) has clearly put the case why the provision should remain as it stands.
Mr. Forth:
The argument is about how far we in the legislature are prepared to trust the judiciary. The Minister
For the sake of making progress--but reluctantly, I must admit--I will not press the amendment to a vote, but I want to put down a marker and say that we should all think about this matter very seriously.
Mrs. Laing:
Does my right hon. Friend agree, as a point of principle, that it is up to Parliament to make laws and that if too much discretion is given to the courts we will end up with judges making laws, which must be wrong?
Mr. Forth:
I am not sure about that. I understand exactly the point that my hon. Friend is making, but the principle may lead in directions which, to some people, seem very threatening. Some people may, for example, want to bring back mandatory hanging for sheep stealing--perhaps that is a good example of the point that she was making--although I suspect that, currently, the majority view is that that would be unwise, and that it is always better to leave the discretion at the point at which the knowledge exists: the court, which has had its proceedings and taken full account of the circumstances, mitigating or otherwise.
I therefore remain to be convinced that it is proper for this place, and Parliament generally, to constrain the courts by stating in too much detail what they will or will not do. Hon. Members do not sit in the courts, on the jury or on the magistrates' bench. Now that I think of it, some of my hon. and learned Friends are on the bench, but most of us are not.
| Next Section
| Index | Home Page |