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Baroness Hanham: My Lords, before my noble friend sits down, perhaps he will amplify something he said. New Section 14A refers to the court being satisfied,

that a banning order should be made. My noble friend discussed the burden of proof. As a magistrate who may be faced with having to deal with this problem, it is important for me that we clarify at this stage whether a magistrate will decide on the balance of probability that someone will be a troublemaker or on the test of beyond reasonable doubt. Those are two very different tests. They matter when we talk about civil liberties.

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Before he finishes, perhaps my noble friend will explain further. The matter must be clarified in this Chamber.

Lord Alexander of Weedon: My Lords, I do not want in any sense to decline the opportunity to amplify. However, I am puzzled. It seems to me wholly ambiguous whether the words to which my noble friend Lady Hanham referred mean satisfied so that one is sure or satisfied on the balance of probabilities that there are reasonable grounds. I see a potential lacuna. I sympathise with the difficulties which magistrates may have if that point is not clarified in the passage of the legislation; and I suspect that it would need clarification not only by way of ministerial reassurance but also on the face of the legislation.

6.45 p.m.

Lord Mackenzie of Framwellgate: My Lords, perhaps I may say what a pleasure it is to listen to the wise words of people like the noble and learned Lord, Lord Ackner, the noble Lord, Lord Alexander of Weedon, and the noble Earl, Lord Russell. I am sure that the legislation can and will be improved tremendously by such detailed debate. Even though I do not agree with everything that has been said, it is a pleasure to listen to the contributions to the debate.

I start by declaring an interest as a lifelong supporter of Darlington Football Club. It is not renowned for being one of the most successful. I also confess as a police office to having imposed summary justice on football fans. I remember policing a match at Darlington many years ago. I caught a young lad climbing over the fence and I made him go back in and watch the end as a punishment. So summary justice is useful from time to time. We used to have rival matches with the nearby towns of West Hartlepool and Old Hartlepool. They are now called Hartlepool. I confess that I was 15 years old before I realised that it was not called Hartlepool nil.

I refer in particular to the power in the Bill which may concern most noble Lords: the power under Part II. I disagree that the power is similar to the old "sus" law. I think that it is more akin to the power the police have to arrest people for conduct likely to cause a breach of the peace. Indeed, it is an extension of that old common law power. It is also similar in a sense to the anti-social behaviour provisions under the Crime and Disorder Act because that offence initially starts as a civil complaint. It becomes a criminal offence only if that anti-social behaviour order is breached. The police officer needs grounds to suspect that the suspect has been involved in violence and disorder. "Reasonable grounds to suspect" is a test a police officer exercises every minute of every hour of every day of every week. Under statute, most powers of arrest will often require the police officer to have suspicion; it does not require him to have evidence. Many people do not realise that. The police officer does not need evidence; he simply has to have reasonable grounds to suspect. He has to justify that afterwards. In this Bill, he has to justify it before the magistrates' court within 24 hours. That seems to me to be a reasonable price to pay.

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What are we preventing? We are simply preventing someone from going abroad to watch a football match. I think that it is a reasonable and moderate response to the violence we have seen over the past few months and years. There is at present a restriction that a constable can hold the suspect only for four hours, or for six hours with the authority of a police inspector. When one used to arrest people for conduct likely to cause a breach of the peace, one held them probably for the weekend and brought them before the magistrates on the Monday morning. I do not think this provision can be compared even with that situation. It seems to me a perfectly reasonable response given the fact that the violence that has shamed the country has been seen throughout the world. Clearly, we need to take some steps to prevent that.

What are the objections? I have read the comments by the Law Society, which says that it is an erosion of free movement; of course, it is. Any arrest is an erosion of free movement. I have given an example of someone who is likely to commit a breach of the peace being detained for, perhaps, a whole weekend. That is an erosion of someone's free movement. What we are talking about here is probably preventing them from travelling abroad, not necessarily for longer than four hours.

It is also alleged that it can be used arbitrarily and prejudicially. I object to that. That kind of comment by the Law Society is unhelpful because one could apply that to any statute dealing with any power the police are given. Yes, occasionally, we do see powers being abused, quite often because the powers perhaps are misunderstood. Even where that is not the case, I think it is wrong to complain about this particular statute by saying there is a likelihood that it will be arbitrarily and prejudicially used. I think that we would not give the police any powers if we really believed that.

It has not been mentioned yet, but a lot of the complaints made by the police about being unable to deal with this particular problem were due to the fact that they had intelligence. The police obtain intelligence from many sources. I am certainly not going to go through them in detail here. If I can give an example, it may well be information or it may well be because they have someone working undercover in one of these groups that are planning to go abroad and, in various ways and means, to cause mayhem and bring shame and despair on the country. The police have this intelligence but, of course, they do not have the power to do anything about it. They have to stand at the airports and seaports and watch people going abroad.

This power provides a measure of prevention. It is a preventative power. It results in the suspect going before the court. Then the police, quite rightly, have to justify their actions. We have the provision now, as we have heard from the noble Lord, Lord Bassam, for compensation if the police get it wrong. It seems to me a perfectly reasonable response to an extremely difficult problem.

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I have heard it suggested that the police would be concerned that actions could be brought against them for wrongful arrest and so forth. I should say that if we ever reach the stage in this country where the police are deterred from taking action which they believe legitimate simply because of the fear of litigation then we go down a very slippery slope. I have seen cases in America where the police--a small police force, admittedly--have stood and watched a violent rape at knifepoint taking place inside premises without taking any action because they felt that if they went in and acted the damages against them might well be greater if the girl was injured and killed than it would have been because of the rape. I can assure you that is not a consideration that the police in this country would ever take into account, and I hope that always remains so. The threat of litigation should not be a factor at all.

This is a preventative power. One has to have confidence. That is why the suggestion it be a temporary provision and be reviewed is helpful because one has to put trust in the police and see if it works. If it does not, then let us have another look at it and perhaps improve it. But to do nothing is not an option.

To touch on the question of breach of the peace, I wrote a letter to The Times in response to an article by the noble Lord, Lord Rees-Mogg. I said in that letter that I have on many occasions arrested innocent people. What I meant was--and perhaps I should have explained this--innocent of an offence, a criminal offence. Of course, arresting someone for conduct likely to cause a breach of the peace is not a criminal offence. It is a complaint that one can lay before the magistrate. The consequences are that the person concerned is bound over. Nonetheless, one still removes his or her liberty. That power is used throughout the land on a regular basis for the right reasons. That is what I was talking about when I said I arrested innocent persons for an offence.

There is a power, obviously, for breach of the peace. It is useful to look at the areas for which the breach of the peace provision has been used in the past. It has been used for persons inciting a rent strike, believe it or not, eavesdropping, peeping toms--whose conduct is likely, if someone else sees them, to cause a breach of the peace--using abusive words, accosting someone immorally and, the obvious one, issuing and using racial threats. I am sorry to say that we see a lot of racial abuse and threats at football matches. That is something that we should be attempting to eradicate.

It is no good complaining about police inaction. What we should do is to provide the police with some tools to do the job, but properly accountable, and to involve the courts in this provision. I do not think that it is a draconian measure; I think it is reasonable and proportionate. It is a response to ugly, violent and often racist conduct that we need to try and take out of the game of football. It degrades the men concerned--it is usually men--and it also brings shame on the country.

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What we cannot do, and cannot afford to do, is to allow a repeat of the events in Charleroi and Brussels. To be frank, I do not think that restricting people's right to travel to see a football match is the end of civilisation as we know it when they can watch the game on television.

We have checks and balances. I do not think that the police would abuse the power. They have no reason to abuse the power. All they want is a power that can be used when they believe they have good intelligence. If we can take out the ringleaders and the people who are orchestrating this behaviour, then I think we will go a long way towards tackling the problem. One thing is certain, and that is that the problem has to be tackled. I do not think it is any good, as the noble Lord, Lord Tebbit, suggested, simply blaming the foreigners. It is our problem and we have to deal with it. We have to try and prevent these people going abroad.

Certainly, I support the provisions of the Bill, with the sensible comments taken into account. The Home Secretary has gone quite a long way to improve the Bill and I am sure it can be improved by the deliberations of this House in the course of the next week.

6.56 p.m.

Lord Phillips of Sudbury: My Lords, like other speakers, I wish to preface my remarks by complimenting the Home Secretary on his willingness to meet with us a fortnight ago in order to explore concerns. I should also acknowledge readily that the task of any Home Secretary in dealing with this deep-rooted problem is a most intractable and difficult one. Nothing that I have to say in relation to this Bill should cast any aspersions on the Home Secretary and on the way in which he tries, with difficulty, to carry out his obligations, and that applies to the noble Lord, Lord Bassam also.

I should like to take up the main point of the speech of the noble Lord, Lord Mackenzie of Framwellgate, in that it concentrated on the power to arrest for breach of the peace and then for magistrates to bind over the person to keep the peace. With great respect, I think that this is something of a red herring. The only analogy that the Government have relied on in justifying the measures in this Bill is the Crime and Disorder Act which allows for anti-social behaviour orders. The binding over process of justices of the peace, which is ancient in origin although now embraced in the Justices of the Peace Act 1968, does not have any immediate consequence such as a banning order will have in this case. A banning order will deprive someone of the right to attend football matches for between two and 10 years and could involve confiscation of passports, the requirement of reporting at police stations and the addition of other conditions as referred to by an earlier speaker. The binding over process involves nothing beyond the binding over and the agreement of the person to keep the peace. If he fails to do so, consequences follow but

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it is not an analogy. In any event, under the clause a banning order can be made only--and I quote from Stone's Justices' Manual--

    "where there is evidence before the court which indicates a likelihood that the peace will not be kept".

Before going further, perhaps I may put beyond doubt the order of proof which must be established under the Bill in order for a banning order to be made. There is no doubt that it is a civil test. The Government made it clear in the other place and the Home Secretary said so when he met us. Indeed, new Section 14J clearly states that if there is a breach of one of the conditions of the banning order, then an offence is committed and certain consequences ensue.

A conversation I had with a Minister at the Home Office on the Bill team related to the civil standard of proof required in particular by new Section 14B. The answer is that there must be a balance of probabilities and it must not be beyond reasonable doubt. However, the civil test is not a single test; it can vary in intensity. I was assured that in this case the higher rather than the lower end would be required. I do not know whether that is of consolation to the magistrate who spoke earlier, but were I a magistrate having to construe the Bill it would be of no consolation to me.

In my view this is a baker's dozen of objections to the Bill, however well intentioned and necessary its purpose. I believe that the House will want to guard against what is perhaps the grandest illusion of legislators; that is, their assumptions as to the extent to which legislation will achieve its purpose "on the ground". Are they real or unreal?

Perhaps I may remind the House that in recent times we have had the Football Spectators Act 1989; the Football (Offences) Act 1991; the Criminal Justice and Public Order Act 1994; the Police Act 1996; the Crime and Disorder Act 1998; the Football (Offences and Disorder) Act 1999; and now we have this Bill. Anyone in this House who believes that the way to deal with these problems is to pile more draconian laws on top of existing laws is living in Cloud-cuckoo-land.

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