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Mr. Straw: The right hon. and learned Gentleman knows that there is a difference between the civil and the criminal process. He also knows that the House, with agreement from both sides, including his own party, has accepted the principle of the anti-social behaviour order, which is that there should be civil process.
Mr. Humfrey Malins (Woking): I have not.
Mr. Straw: I realise that there were deep divisions in the Conservative party on this issue, but I remind the hon. Gentleman that during the debates that took place almost exactly two years ago on the Crime and Disorder Act 1998, the principle of the anti-social behaviour order was supported from the Opposition Front Bench by the then shadow Home Secretary, the right hon. Member for Sutton Coldfield. The House accepted that civil jurisdiction of the magistrates was an appropriate vehicle to constrain the anti-social behaviour that is described in the 1998 Act. That is a civil process. It leads to the courts making a coercive order, which amounts to a restraining injunction.
Mr. Straw: I shall not give way to the right hon. and learned Gentleman again, because I must make progress.
The House has accepted the coercive orders issued by magistrates courts exercising a civil jurisdiction with regard to anti-social behaviour orders, yet they are just as oppressive as, if not more oppressive than, the restraint that is exercisable by a football banning order.
As the right hon. and learned Gentleman very well knows, the civil courts have long had powers of injunction against individuals to restrain a commission of nuisance and many other public and private acts. They are coercive, but there is not the least suggestion that they are outwith articles 5 or 6.
Sir Nicholas Lyell: I am most grateful to the Home Secretary for his courtesy in giving way. With all respect, I believe that he is confused on this matter. The comparison with anti-social behaviour orders is a fair one, but there is a fundamental distinction between an injunction, which orders someone not to do something illegal but does not restrict his liberties--it is not a restriction of liberty to have to obey the law--and the Bill, which enables someone to be arrested and detained on suspicion or on reasonable grounds that they have committed a criminal offence. The Home Secretary has rightly indicated that he will accept that aspect. There is a fundamental distinction there, and the Home Secretary should take advice--even if he does not want to answer that point now--on how he calls the two things the same.
Mr. Straw: With great respect, I do not accept that there is a fundamental distinction. Many injunctions issued by the courts--regarding nuisance, for example--prevent somebody from doing what they want to do or from going about what they think is their lawful business. We see this order and the anti-social behaviour order as similar to injunctions; they are preventive and not penal in nature. When a court has decided that there is a risk of a person contributing to violence and disorder at a football match, I do not happen to believe that preventing him from going to that match is a penal sanction. It is a minor and modest restriction of something that he wanted to do, but it is pretty minor and modest, given that he can watch the match on television.
In terms of proportionality, the courts are well versed in balancing rights under the convention, because the public have rights under the convention, as well as individuals. We are balancing the rights of an individual to go abroad and commit violence and disorder at or around a football match against the right of the rest of the country, for example, not to have the reputation of the country so vilely abused as it was at Charleroi and Brussels.
Mr. Browne: Under the Scottish equivalent of an injunction, it would be possible to restrict someone's movement with an interdict. Would it be possible for Chelsea, for example, to seek an injunction against named supporters to prevent them from attending football matches?
Mr. Straw: Since Chelsea is a private company, it could, if it wished, go to court and seek injunctions against any of its supporters who sought to gain entry to its ground without permission.
The right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) may not accept the principle of the football banning order as a civil process, but the
Liberal Democrats do. If he believes that there are no circumstances in which civil process should ever be used to deal with this kind of problem, he must accept that we have to wash our hands of taking effective action against what we saw in Charleroi and Brussels. Obviously, the view of the right hon. and learned Gentleman is shared by a number of Conservative Members. However, there is no point in the Conservatives' complaining the next time trouble occurs, because they will have decided that no other process is available to restrain such behaviour.The Liberal Democrats take the view that the civil route to a football banning order ought to be available. The hon. Member for Southwark, North and Bermondsey has accepted that there has to be a process for getting respondents into court if they do not wish to go there. In slow time, the process is a summons or complaint served against the person. If he refuses to comply with the summons, a warrant is issued for his arrest. The fourth part of the Bill deals with circumstances where someone is in the process of leaving the country--although not necessarily at the port--and when there are reasonable grounds for believing that he will get involved in violence or disorder at or around a football match.
If we want to deal with that, we must have a process for getting those individuals into court as quickly as possible--if that is what the Committee wants. We have thought about this matter and we have shown that we are open to suggestion on amendments. However, I cannot conceive of any other means by which we can get individuals into court for consideration of whether or not a football banning order ought to be issued except by giving the police powers, however constrained, that are ultimately coercive to require that person to go to court.
Moreover, because the alternative is to do nothing and let the person go abroad and commit mayhem, there has to be a court process and a means of getting people to court before there has been a court process. That is why we have suggested that the police should have a power to stop someone, question them--to form a proper judgment about whether they ought to be subject to a court process--and get them to court. If there are reasonable grounds for believing that a person will not comply with the notice given, we should arrest him and deliver him to the court, as the bench does in other circumstances. The structure of this part of the Bill is, I suggest, perfectly coherent. Some may disagree, but we have thought the process through.
7.45 pm
Mr. Simon Hughes: That is a perfectly proper point, and I have not argued that there could not be detention. If the precondition were a previous conviction, for example, and if detention immediately followed--based on action that was authorised by judicial process and on reasonable grounds--we could have one process, rather than two. If the Home Secretary is willing to look at that, he will be moving in the right direction.
Mr. Straw: We have one order. At the time of Charleroi, many suggestions were made that we should take powers similar to those used in Germany, where it appears that the police had a power simply to stop people and turn them back, partly on the basis of lists that they had maintained.
We know from experience in Belgium that, in certain circumstances, the police there have an administrative power of arrest under which they need no grounds
whatever to pick someone up and detain them for 12 hours. I never thought that such a process was appropriate; it is quite inconsistent with the rule of law and traditions of this country to give the police a power to pick people up without that ending in court action. There are limited circumstances--I am not suggesting that they are parallel--where the police have the powers to detain and that does not end in court process, as under the Prevention of Terrorism Acts and immigration legislation. Those are different circumstances.Given the desire to deal with the mischief of people not previously known as football hooligans going abroad and causing the kind of mayhem that we saw in Charleroi, there is a process by which the police could intercept those people--but that has to be linked to a court process. We have proposed to deal with that by the football banning order: one order with two routes--one slower and one more urgent--to achieve that end.
The hon. Member for Southwark, North and Bermondsey cannot have it both ways. I have tried to be as open as possible and I put a draft before the House as early as possible to be the subject of discussion. Legislation is an iterative process, and so it should be. I have sought to respond whenever right hon. and hon. Members have made suggestions.
As this is a faster process than usual, we have had to act quickly. I listened to the debate on Thursday, discussed the matter with the Minister of State and came to the view that we had not got the Bill right and that we should therefore table amendments. Since we had formed that view, we decided to respond straight away, rather than dragging things out until today.
Government amendment No. 42 changes new section 21A(2) in a way that I hope will command widespread agreement. It makes it clear that a constable must have reasonable grounds for suspecting that the person before him has
- at any time . . . caused or contributed to any violence or disorder in the United Kingdom or elsewhere
- making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches.
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