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Lord Alexander of Weedon: With apologies for not having heard the beginning of the discussion on this amendment, perhaps I may add a few words. As I understand it, we are dealing with an issue which at its lowest is quasi-criminal. I cannot readily think of any aspect of the criminal law that is dealt with by a court on a foundation other than the foundation of proof. It seems to me that "belief" is not the same as "proof", whether proof to a civil standard or to a criminal standard. It introduces an unhealthy subjective element of opinion--not fact--to the decision-taking process and I suggest to the Minister that that would impair the credibility of the whole process.
Lord Goodhart: Even in Committee it is a little unusual to speak after the mover of the amendment. Having said that, it would be churlish of me to object because what the noble Lords, Lord Lucas and Lord Alexander of Weedon, have said on the matter has been put more strongly and more persuasively than I could. Therefore, I have little to add, except in relation to the Minister saying that he will take this matter away for consideration. I hope that he is serious about that because there is a real problem, particularly in relation to Section 14B, with the standard of proof required for the making of a banning order. On this occasion, I beg leave to withdraw the amendment.
The noble Lord said: This is the first of a group of amendments intended to delete altogether the summary power to detain suspected hooligans. The other amendments in this group are Amendments Nos. 9, 11 and 56, of which Amendment No. 56 is the main one because it leaves out the whole of the new Sections 21A, 21B and 21C which have been inserted into the Football Spectators Act 1989.
The summary power will enable a constable with no authority from any senior officer to detain any person during a controlled period relating to overseas football matches. The constable can detain if he has reasonable grounds for suspecting that the conditions for a banning order have been met and that a banning order would help to prevent violence at the regulated match. On the previous amendment we heard about the unsatisfactory nature of the words "reasonable cause to believe".
A constable can detain a suspect on his own authority for four hours and that is extendable to six hours with the consent of an inspector. With the consent of an inspector, the constable can order the suspect to appear before magistrates within 24 hours, not to leave England and Wales before then and to surrender his passport. The constable can arrest the suspect if he believes that it is necessary to do so in order to ensure compliance with the order.
These powers are draconian. They apply to British citizens only. Perhaps the Minister will explain why they are so narrowly limited, particularly as they plainly appear to be discriminatory on the grounds of nationality. There is no need to have reasonable grounds to believe that a suspect has committed a crime or intends to do so in the future. The effect of the order will be that the suspect will miss his flight or
Why and how will the power be exercised? Many speakers at Second Reading made the point, as I did, that we cannot go to Gatwick and identify hooligans simply by their appearance. Serious hooligans will not travel in Cross of St George T-shirts and carry cans of lager in open bags. They will dress tidily. If the police rely merely on appearances they will make a lot of mistakes; lots of embarrassing stories will appear in the newspapers about perfectly innocent travellers being hauled off their planes because they look unshaven, or worse; and a great deal of compensation will have to be paid.
The police are aware of that. Therefore they will rarely stop someone on the basis of their appearance when they turn up at the airport ticket in hand. They will only stop a suspect on the basis of intelligence which they already have in their possession. From the National Criminal Intelligence Service, or somewhere else, they will obtain the names of suspects and be looking out for them at the airport check-ins. If the suspect they pick up is already subject to a banning order, there is no problem. That suspect is committing an offence and could be arrested under existing powers.
But what if the suspect's name has been given to the police and he is not subject to a banning order? The question is, in those circumstances, why not? There are two possible answers. First, the police may not feel they have sufficient evidence to obtain a banning order, in which case they ought not to be stopping that subject at the airport. Secondly, the police may have evidence, but have decided in the past not to seek a banning order unless and until the suspect turns up at an airport with his ticket and passport in his hand. That course of action may save time and money. But it is wholly wrong to wait until the last possible minute to obtain a banning order. It is unfair to the suspect, who may miss a match even if no order has been made and would have spent money on a ticket which he would not have spent if a banning order had been made. It is also unfair to the suspect even if a banning order has been made.
If the summary procedure is based on circumstances which are not known to the police in time to enable them to apply for a banning order, I would have no objection to that limited power. But the position is this. First, the police will not stop suspects on their appearance. If they did so they would infringe many people's perfectly legitimate rights and have to pay a great deal of compensation. Secondly, if people turn up drunk and disorderly at the airport, already having tanked up before getting on the plane, there are perfectly adequate powers already available to deal with them. Thirdly, the police will almost always only stop people on the basis of intelligence. If that intelligence is not good enough to support a banning order, then it should not be used as the basis for stopping a traveller. If it is good enough to support a banning order, then the police should not wait until the last minute before applying for it.
The use of summary powers to avoid the need to obtain a banning order in advance is a clear breach of European Union law as explained in the opinion already referred to by Clare Montgomery and Rhodri Thompson. I believe that, unless the summary powers are limited to the narrow extent that I indicated earlier in my speech, they should have no place in this Bill. I beg to move.
Lord Lloyd of Berwick: I support the noble Lord, Lord Goodhart, in his amendment. I regret that I was unable to be present at the Second Reading debate. But, having read the report in Hansard, I find myself in almost complete agreement with what was said on that occasion by the noble Lord, Lord Phillips of Sudbury, and with a great deal of what was said by the noble Lord, Lord Lucas.
I am not concerned at present with the new Sections 14A and 14B to the 1989 Act, but I am very much concerned with new Section 21A, which, as the noble Lord, Lord Goodhart, explained, entitles a police officer, without warrant, effectively to arrest someone on reasonable suspicion that he has complied with certain conditions. Those conditions are set out in new Section 14B(2). It seems to me that that is introducing something quite novel in England criminal law. New Section 14B(2), which sets out those conditions, does not in any way create an offence. It is a fundamental part of English criminal law that a police officer can arrest without warrant only if he has reasonable grounds to suspect that an offence either has been committed or is about to be committed.
As I said, the conditions set out in new Section 14B(2) do not create an offence. The Minister will be well aware of a similar argument that I advanced in relation to what are now Sections 41 and 42 of the Terrorism Act. I made exactly the same point on that occasion, but I did not persuade the Minister of the effect of what was being done and how far removed it was from ordinary procedures of English criminal law. However, in relation to that Bill, there were at least other good grounds where one might seek to make an exception to the ordinary rule.
In the case of football hooliganism, I cannot see that there is any basis for making an exception to the procedures that were thrashed out when the Police and Criminal Evidence Act 1984 went through both this House and the other place. As far as I know, that legislation has been treated as the model of what is, and what is not, permissible in respect of a police officer's powers of arrest without a warrant. Those powers are jealously guarded by the courts and very jealously scrutinised because they are such an obvious infringement of the liberty of the subject--a point made many times during the Second Reading debate.
I find it very difficult to accept the proposed new Section 21A as it stands, without much greater consideration being given to it than has been possible because of the way in which the Bill has been brought forward at the last moment. As I understand it, if Clause 1(1)(d) is deleted from the Bill, as proposed by the noble Lord, Lord Goodhart, it follows that Section 21A will fall with it. I support the amendment.
Lord Hodgson of Astley Abbotts: I must say that I find myself very much in sympathy with the amendment. It is common ground that we have a very serious problem before us in regard to violence at football matches. We hear from the Government that we must act quickly because of the match due to take place in Paris in early September and the further match in October between England and Germany. Therefore, we must accept that this legislation is to be taken through both this and another place at quite a speed.
Obviously, some noble Lords believe that there is no problem in this process, while others have concerns about it. We must remember that we are aiming to maintain the balance between what we seek to achieve--the maintenance of public order--and some of the other aspects involved, such as a restriction on the rights of the unconvicted, private individual. I can understand why the powers proposed to be taken under paragraphs (a) to (c) of Clause 1(1) as regards convicted individuals have, at least in principle and subject to the detail, both weight and thrust. However, when it comes to Clause 1(1)(d), it seems to me that we may tip that balance quite substantially in a way which was not originally envisaged and which may, in my view, tip the balance too far.
I also strongly support what the noble Lord, Lord Goodhart, said about the way in which the powers are likely to applied. Determined hooligans will certainly seek to evade them. My noble friend Lord Cope of Berkeley spoke about the various loopholes, to which we shall return later. The police will be very concerned about using these powers or they will use them until they make a real "Horlicks" of a particular case and there is extreme adverse publicity. In that case they will seek to use the powers thereafter. We need to go extremely carefully in any case, and certainly in a piece of legislation as rushed as this, concerning any proposal that will give authority an opportunity to act capriciously. Potentially capricious action is at the heart of this clause.
My noble and learned friend Lord Mayhew spoke about this being the ninth piece of legislation concerning football hooliganism. We are giving the authorities three additional sets of powers. I do not believe that we need to rush through the fourth set which is envisaged and which will probably be ineffective and possibly not used. In any case it involves a considerable impact on our civil liberties. I believe it was the noble Lord, Lord Whitty, who talked about this House having a role to provide checks and balances. This is a check and a balance. I support the amendment.
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