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Mr. Hughes: If I may say so, the hon. Gentleman makes the point better than I. Of course there is a power of detention in Scottish law, as there is in English law, but people are detained on the basis of a reasonable suspicion or a belief that an offence has been or will be committed. There is always a link between the detention and the offence. Under the Bill, a person could be detained without having committed an offence or without ever having been likely to commit an offence, because the threshold does not have an offence on the radar screen. Not only that, the Bill would not require it to be proved beyond reasonable doubt that an offence had been committed. That represents a significant difference.

I say to the hon. Gentleman that were we going through normal procedures and were the Committee meeting upstairs today and again in two days, I would be able not only to take advice, talk to my colleagues and his in the Scottish Executive and check the Scottish legislation, as would all other hon. Members, but to confirm all that with authority outside the House. That is why these are important matters. I would not want him to mislead the Committee by saying that there is a precedent for this proposal, because I do not think that there is, although there is a precedent for detention.

That leads me to the important point that my hon. Friends and I have never said that there should not be a power of detention in English law. That is not our argument. Our argument is that powers to detain have to be carefully given, clearly circumscribed by judicial authority and tightly defined so that there can be no uncertainty. On all those tests, the Bill fails.

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Let me deal with the remaining points quickly as I am hugely conscious of the deadline that the Government have imposed on us, in spite of my colleagues and me resisting it as much as we could. Government amendment No. 42, to which the hon. and learned Member for Medway referred, is an improvement because it would introduce new tests. However, it also gives rise to the set of questions with which we dealt a few minutes ago. Government amendment No. 43 is an improvement, but that makes me wonder about the original drafting. Since last week, the Government have changed their view: a person could have been detained for 24 hours, but could now be detained for only four, which could be extended to six with authority. That is a significant improvement

Mr. Leigh: We are going that way.

Mr. Hughes: We are going in the right direction, but if the Government now believe that four hours is the right proposal, how could they believe last week that 24 hours--six times as long--was right? I would find that change difficult to justify and it is another example of dangerously bad legislation. To be fair to the Government, a six-hour detention would need the authority of an inspector.

Mr. Leigh: Legislation on the hoof.

Mr. Hughes: Not only did I write that phrase down when thinking about today's debate, but it keeps coming back into my mind and has done so ever since we first saw the Bill on Thursday. [Interruption.] The Secretary of State is being unreasonable.

The Government have tabled amendments to proposed new section 21B, which make the case for getting rid of it and proposed new section 21A and rolling them together to achieve a clear provision that includes all the different parts of the offence. I have made the point that the removal of that extraordinary arrest provision and the phrase "constable's reasons for thinking" represents a welcome improvement.

The Conservatives' amendment No. 7 represents an improvement, but it would retain the behaviour test. Amendment No. 6 would keep the behaviour test, but it also refers to an offence. I am not clear as to what offences the Conservative amendments would deal with. Would they cover football violence offences that do not merit an arrest under present law? Perhaps the right hon. Member for Maidstone and The Weald will explain. We are not discussing people who will be nicked for dropping litter, although that is an offence, because clearly such an offence is not covered by the Bill.

Amendment No. 33 would produce a nonsense provision. There would be two tests of the words "reasonably necessary". It would have to be "reasonably necessary" for the police officer to discover whether it was "reasonably necessary" to detain a person. That would not make good law.

7.30 pm

The right hon. Member for Maidstone and The Weald has proposed that the officer who has to give authority should be of a higher status, which would be an improvement. Her amendment to place on the person an earlier requirement to give reasons in writing deals with

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the point that my hon. Friend the Member for Portsmouth, South (Mr. Hancock) raised. If there is to be an earlier stage, that is certainly something we should provide.

The Tories have proposed a 12-hour detention period. The Home Secretary has gone further than that and has dealt with the criticisms that my hon. Friends and I made by making it three hours. The Tories suggested a three-hourly review. They would probably accept that that may not be necessary if there is a four-hour maximum period. The Tories have made a good point in their amendment No. 35, which is that no person should be detained seriatim. We must prevent vexatious detention. If a police officer realises that he has made a mistake, he cannot continue to detain that person. We need to put that in the Bill somehow.

The "reasonable grounds to believe" provision in amendment No. 11 is better and more consistent, but still does not wrap everything up coherently, and is open to the criticism that the hon. and learned Member for Medway made. We may need to consider the requirement for a warrant, but there is no consensus on that yet. We welcome the sensible compensation provision.

We welcome the proposed changes to the Bill. We welcome the fact that the Government propose to reduce detention from 24 hours to four or six hours. We welcome the fact that the Government propose that detention should be with the authority of an officer of a higher rank, and that detention will be on the basis not of someone's behaviour, but of reasonable grounds to believe or reasonable grounds to suspect.

The Home Secretary knows that we have at all times been willing to try to get the Bill right, whether we liked it or not. The Bill as amended still contains a lot of nonsense and inconsistency, and it raises but never adequately answers the question why we need the power to detain. If someone is going to commit or has committed an offence, he should be nicked. Arrestable offences already exist. If the Government want a banning order, let us have one. The burden of proof is on the Home Secretary to make the case, and he must satisfy the House that this power is needed. He must explain whether anyone would be caught by it without a breach of their civil liberties who would not have been caught by the other three provisions. We think that we need to remove this provision and start again, and we believe that the other place will support us.

The Secretary of State for the Home Department (Mr. Jack Straw): It may be of assistance to the Committee if I explain the approach that the Government intend to take to the amendments. I should first like to deal with the gravamen of the hon. Gentleman's remarks, which is whether it is appropriate and proportionate to have the powers of summary process in what is described as the fourth part of the Bill.

My understanding, not least from the relative silence of the Liberal Democrats, is that they support in principle the idea of a football banning order available through civil process, in slower time.

Mr. Hughes indicated assent.

Mr. Straw: I am glad to have that agreement. In that case, the hon. Gentleman's argument that one should never have a power of arrest unless it leads to a criminal

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conviction falls away. The football banning order is a civil process, and is similar to that of an anti-social behaviour order--that was accepted by the right hon. Member for Sutton Coldfield (Sir N. Fowler) when it was originally proposed two years ago, and by the hon. Member for West Chelmsford (Mr. Burns) in discussions last year on the Football (Offences and Disorder) Act 1999.

If there is a process by which an order can be made by the court under a civil jurisdiction, there has to be a process to get those people into court. In extremis, the only way of getting people into court is by a coercive power, which amounts to the issue of a warrant by a court or other more summary process. When a football banning order is being dealt with in slower time, if a respondent fails to respond to the complaint, the court can issue a warrant for his arrest and it is for the police to execute it. I accept that there is a difference between the bench issuing a warrant and its being executed by the police and an individual police officer, off his own bat, deciding to make an arrest, but there is no difference in principle in those circumstances. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) suggested that a power of arrest should never apply when only the civil process is involved, and the process does not lead to the prospect of a criminal offence. That is simply not the case.

Sir Nicholas Lyell: I am having enormous difficulty understanding how a process can be described as a civil process if it allows someone to be arrested and detained--in other words, locked up--even for a comparatively short period as the Home Secretary now proposes, and makes him subject to an order of the court that restricts his liberty to travel, which is contrary to European law, or at least requires strong reasons under European law. The Home Secretary is well aware that the European convention considers the substance, not the language, of the process. Could the Home Secretary explain how he maintains the notion that it is a civil rather than a criminal process?


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