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Mr. Edward Leigh (Gainsborough): Does the hon. Gentleman agree that, for precisely the reasons that he has outlined, the police should be required to take the person to an immediate magistrates court hearing? They would then know that their tackle was in order and that there were substantial reasons for preventing the person from leaving the country.
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Mr. Hughes: I agree with that. [Interruption.] It is worth repeating the sedentary comment that whether their tackle is in order is not the first question that the police should ask themselves. If it has been a long night and a hard day, that might be a relevant question. We could speculate on that; it might enliven an otherwise tedious and difficult shift.
Let me paraphrase the suggestion of the hon. Member for Gainsborough (Mr. Leigh). The right hon. Member for Maidstone and The Weald (Miss Widdecombe) has tabled an amendment which proposes that there should be a magistrates court or sitting wherever a person can be detained. Although that is a good idea in theory, my hon. Friends and I believe that it is not a good idea in practice, given that the Government are closing magistrates courts throughout the country. We would end up with no magistrates courts apart from those at every airport and seaport, and any other point of departure abroad for a football hooligan. That is probably not a good idea.
Our view, which I hope that the hon. Member for Gainsborough--who is so competent in such matters--shares, is that the person should be taken to a court as soon as possible. Courts, magistrates and judges can sit during the evening or the night, especially if they are alerted. To be fair to Conservative Members, they have tabled another amendment which would provide for a warrant to be issued to begin the process. Like Conservative Members, we believe that if we are going to start taking liberties away from people, it should be done on good, independent authority. If the police wanted to raid the house of the hon. Member for Gainsborough or that of the Home Secretary, we would expect them to go a magistrate to get a warrant to do that. I accept that judicial, not administrative, authority should be required for the process that we are discussing.
The whole procedure breaks down into two stages. The first can be described as, "I'll think about it, with nothing to go on other than behaviour." How are police officers meant to judge behaviour? We debated that at length on Thursday. What constitutes behaviour? Does wearing a shirt with colourful language printed on it constitute bad behaviour? Does being rowdy, or with others who are rowdy, or saying nothing when asked a question, constitute bad behaviour? The Bill does not answer those questions. It is merciful that the Government have had second thoughts about some proposals.
Mr. Mike Hancock (Portsmouth, South): If a person who was stopped by the police said, "I've decided not to
go abroad; I want to go home", would the person's desire to leave constitute a breach, which would be an arrestable offence because the man was resisting the policeman's attempt to detain him against his wishes?
Mr. Hughes: Yes. I am not being arrogant, but I have been here for a ridiculous number of years--more than 17--and I honestly do not believe that we have considered more nonsensical drafting than that for this Bill. If people detained under the power that we are considering resisted detention, they would be committing an offence for which they could be arrested and then charged, even though the police officer was not satisfied that they had behaved violently, or reached a conclusion about whether they might behave violently. Prospective criminality can thus be created because someone says, "Excuse me, I've given up. I was going shopping abroad by taking a coach with mates who were going to the match, but I'm actually going to go home because I don't want the hassle." That is nonsense.
As well as nonsense, there is huge uncertainty in the Bill. With every day that passes, people realise what nonsense the original Bill was. More and more drafting and other changes have improved it. That suggests that there is something wrong--or that it is business as usual--in the Home Office. Producing a Bill that contains so many flaws is hardly acceptable. However, the next unanswered question is where the detention can happen. It is not obvious to me that it must happen at a port or any embarkation point. It could happen at the gates of Fratton park, Old Trafford, Roker park, St. James' park, Anfield or any football club in the country.
Mr. Bob Russell (Colchester): Roker park no longer exists; it is now the stadium of light.
Mr. Hughes: My hon. Friend is much more knowledgeable than me. I was about to end with the great denouement that one could be detained outside the New Den, off the Old Kent road. It may be sufficient to stop people outside those football grounds. There is a question about where the power can apply.
Ms Claire Ward (Watford): Does the hon. Gentleman accept that the Bill has to be drafted sufficiently widely to stop an individual on his way to ports as well as at ports? The relevant person could be on the Heathrow express; police officers at Victoria station therefore need powers to detain.
Mr. Hughes: I believe that the Bill allows anyone to be stopped anywhere. If the hon. Lady came out of her house behaving madly, badly or oddly--
Mr. Hughes: I have never seen such behaviour from her, so I am not in a position to comment. She could leave her house early in the morning or late at night and risk being nicked. She supported the Bill on Thursday; I hope that mature reflection over the weekend means that she is a little less able to support it without significant amendment.
A person could be stopped anywhere--on the Heathrow express, at a railway station, on the road to the railway station or in the coach park on the way. We did not originally believe that we were legislating for that.
As the right hon. Member for Hitchin and Harpenden (Mr. Lilley) said very effectively on Thursday, the proposal affects a series of important constitutional points. Detention on the say-so of a police officer, without any previous charge or conviction, could lead to a further loss of liberty, to being taken to court and receiving a banning order--not on the ground of beyond reasonable doubt, but on the balance of probabilities. That could remove further liberties for up to 10 years, the breach of which could make a person liable for imprisonment for several years. That could happen to someone who has no previous conviction at home or abroad, for something that was not proved beyond reasonable doubt. The House must consider carefully whether it wants to go down that road. The whole process could be triggered by a police officer's view of someone's behaviour or words.
It is absolutely certain that we need to amend the Bill. Steps have already been taken to allow us to move in the right direction. The hon. and learned Member for Medway (Mr. Marshall-Andrews) is present. My hon. Friends have tried to emphasise that we are considering a point about liberty that is as important as several other points that have taken up much of the House's time when we understood the significance of our actions.
The Terrorism Bill and the Regulation of Investigatory Powers Bill included proposals that shifted the burden of proof. They have taken much time in both Houses because both have said no to that proposal, and the Government have altered the definition to make it clear. There has been opposition in both Houses to the proposal that the right to jury trial can be taken away. The other House threw out that proposal and this House will give it a hard ride when the measure returns from the other place. Those constitutional proposals about the criminal justice system are no more or less important than determining when and on what basis people can be detained, arrested and charged. The hon. Member for Woking (Mr. Malins) has made a point about the basis on which an unconvicted free citizen can be given a criminal record.
I ask the Committee to throw out clause 1(1)(d) and paragraph 4 of schedule 1 for the reasons alluded to earlier. We work on the assumption that, constitutionally, people are allowed freedom of movement in the country. Freedom of movement between the countries of the European Union is part of the treaty of Rome. People are entitled to move by virtue of their passports, unless good reason is shown to stop them doing so because there is a challenge to the state as well as to the citizen. We should ensure that no legislation reduces any of those rights without its being clear and precise. On the point made by the hon. Member for Gainsborough, any such legislation must include provisions for judicial review at the earliest possible opportunity.
The Committee should consider amendments Nos. 20 and 21 and decide that the best way to proceed is not to tinker with the summary detention power as drafted, but to remove it and start again. I shall give two reasons why those provisions are so ridiculous, and I choose that word advisedly. Proposed new section 21B, which will be inserted into the Football Spectators Act 1989, includes several different tests that must be passed before police officers can act. The constable involved will be asked to
judge whether it appears to him that someone's behaviour should trigger certain action. He will be asked to consider whether it appears that the person has met the condition that he has a pedigree of trouble in the past. However, unusually in legislation, proposed new section 21B(2) states:
- The constable may give the person a notice in writing requiring him . . . to appear before a magistrates' court . . . and giving the constable's reasons for thinking that the condition is met.
- "giving the constable's reasons for thinking"
The Government and the draftspeople have mercifully realised that another odd proposal must go. Suddenly, as if from the heavens, proposed new section 21B(6) states:
- A person may not be arrested under subsection (5) . . . after he has appeared before the magistrates' court.
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