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Earl Russell: If we do not succeed in getting right freedom of movement under the Treaty of Rome, we

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shall certainly hear of it and the Bill will probably turn out to have no effect. The Minister was warned on Second Reading that that point was going to be raised. If he cannot produce a satisfactory answer, he might as well withdraw the Bill now.

Lord Bassam of Brighton: I addressed that issue in one of our early debates. The argument is about being proportionate in the circumstances. It rests on the greater good and whether public order is to be protected and safeguarded. In terms of human rights and freedom of movement, it is correct to include this measure in the Bill and it does not infringe the European Court of Human Rights or human rights legislation. Clearly we disagree but we have examined ECHR considerations and believe that we are right to insist on our approach in the circumstances.

Earl Russell: I was not asking about the ECHR on this occasion but about the European Court of Justice--the Treaty of Rome, which is a very different issue. Has the Minister consulted other European Governments? If not, why not?

Lord Bassam of Brighton: I cannot say that we have consulted precisely on this measure in the terms that the noble Earl has raised the point. I recognise that there is a valid issue at the core of what he is suggesting but we think the measure is right. We were well advised on that point when drafting the Bill, but time will tell.

Lord Lucas: I am grateful to the Minister for his replies. I am satisfied with his comments on Amendment No. 18. As he said, the phrase is from an existing Bill. We will see what is meant by it. In any event, it concerns conditions that apply where the individual has been convicted of another, related offence. It is probably reasonable in the circumstances. I am not so satisfied with the noble Lord's response to Amendment No. 19 and will consider my position when we reach that amendment. I beg leave to withdraw Amendment No. 18.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 19:

    Page 5, line 7, leave out ("must") and insert ("may").

The noble Lord said: I beg to move.

1.24 a.m.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 17; Not-Contents, 22.

Division No. 3


Addington, L.
Astor, V.
Attlee, E.
Brougham and Vaux, L.
Campbell of Alloway, L.
Cope of Berkeley, L.
Desai, L.
Goodhart, L.
Henley, L. [Teller]
Lucas, L. [Teller]
McNally, L.
Monson, L.
Onslow, E.
Parkinson, L.
Phillips of Sudbury, L.
Russell, E.
Tebbit, L.


Amos, B.
Bach, L.
Bassam of Brighton, L.
Brett, L.
Burlison, L.
Carter, L. [Teller]
Chandos, V.
Davies of Coity, L.
Davies of Oldham, L.
Elder, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gavron, L.
Gordon of Strathblane, L.
Goudie, B.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
McIntosh of Haringey, L. [Teller]
Mackenzie of Framwellgate, L.
Ramsay of Cartvale, B.
Woolmer of Leeds, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

24 Jul 2000 : Column 215

1.33 a.m.

Lord Goodhart moved Amendment No. 20:

    Page 5, line 9, leave out ("not").

The noble Lord said: Amendment No. 20 is a relatively minor amendment but, I believe, perhaps more important than it appears. It removes the word "not" from new Section 14A(3), which states that if a court is not satisfied that there are reasonable grounds to believe that making a banning order will help to prevent violence, it must in open court state that fact and give its reasons. There is no particular reason why a court should, if it is not satisfied, explain that. There is no reason why it should not but it does not seem to matter very much one way or the other.

The really important point is that if the court is satisfied that a banning order should be made, it should give its reasons in open court. A defendant in criminal proceedings who has just been convicted of a relevant offence may wish to appeal against the sentence. If he wishes to appeal against the imposition of a banning order, he obviously needs to know the court's reasons.

If the court refuses to make an order, it does not matter whether it gives reasons in open court, but if it makes an order, justice requires that it should state its reasons in open court so that the defendant can find out the grounds on which he can appeal. I do not particularly object to new Section 14A(3) as it stands. The important point is that if the court is satisfied, it must give its reasons. I beg to move.

Viscount Astor: When I first looked at the amendment, I failed totally to understand what the noble Lord, Lord Goodhart, was on about. However, after his eloquent explanation, I now understand. If one accepts the Government's argument that the court should give reasons if it is not satisfied, a more suitable amendment might be to say that it should give reasons whether or not it is satisfied. That would be clearer and more open and would ensure that the court had to give reasons whatever the outcome. That might be a more sensible solution. I should be interested to hear the Government's view.

Earl Russell: This point came up a number of times when we were considering child support appeal

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tribunals in the first year of this Parliament. So far, the Government have always conceded it. If the Minister wishes to look at a fuller exposition of the reasoning, he might look at the judgment of the noble and learned Lord, Lord Woolf, in the case of Fayed v. Home Secretary in November 1996. That is a truly memorable judgment that every Minster should have on their desk, particularly every Home Office Minister.

Lord Bassam of Brighton: Amendment No. 20 would amend Section 14A, which simply re-enacts the existing law on banning orders made on conviction for an offence. It would require the court to state openly its reasons for imposing a banning order following conviction for a football-related offence.

At present, Section 14, as amended by the Football (Offences and Disorder) Act 1999, requires a court to state the reasons why it has not made an order. That is consistent with the expectation that a banning order must follow upon conviction for a football-related offence.

The ground for a banning order under Section 14A is conviction for a relevant offence. On such a conviction, no explanation is necessary or, in our opinion, appropriate. The amendment would change a provision that seems to work perfectly well in existing law that we want to carry over into the new legislation.

The Earl of Onslow: What harm would it possibly do to accept the amendment? It would clarify matters and it would be fairer. I do not totally blame the noble Lord because I have heard Ministers from this side, when we were in government, reading from those bog-entrenched, civil servant issued briefs. There is no intention to listen to what anybody else says. All those noble, gallant and intelligent human beings on our Front Bench did exactly the same. And I see the noble Lord, Lord Bassam, falling into that. Surely he is a bigger man and he can listen to something which is as intelligently and reasonably put forward as this has been and not come out with that sort of trench warfare ministerial guff which I have heard for 30 years in this Chamber.

Earl Russell: Before we leave this matter, will the Minister explain to the Committee how it is possible to lodge an appeal if no reasons are given against which you can appeal?

Lord Bassam of Brighton: Surely, as in any other situation, you appeal against the decision, stating reasons for the appeal. That much is clear.

The noble Earl, Lord Onslow, made a debating point. He asks what harm it will do to accept the amendment. I will think about the point of harm.

Lord Goodhart: I am sorry that the Minister has not been more receptive to this amendment. While he is correct to say that, in the normal course of appeal against a criminal sentence, the reasons why the judge has chosen one sentence rather than another are not necessarily given, the situation here is that, if the court

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does not make a banning order, it must state its reasons. Therefore, it seems appropriate that if it makes the order it should also give its reasons. I should be happy to accept the version proposed by the noble Viscount, Lord Astor, which would make it clear that the court must state its reasons either way.

However, clearly, this is not a matter to take any further this morning. We shall consider whether to bring it back this afternoon. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 21:

    Page 5, line 14, leave out ("absolutely or").

The noble Lord said: Again, this is a short point. A banning order can be made only in addition to a sentence or in addition to an order of absolute or conditional discharge. An absolute discharge is given only in circumstances where the defendant is technically guilty of the offence but is wholly without blame and no kind of sentence whatever is justified in the circumstances.

Therefore, it seems wholly inconsistent to impose a banning order, which is clearly a form of punishment, at the same time as giving an absolute discharge. I see no problem as regards a conditional discharge but an absolute discharge seems to me to be wholly inconsistent with the idea of making a banning order. The point needs no further exposition and, therefore, I beg to move.

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