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Lord Phillips of Sudbury: The Minister may be tempted to say that this wording and these arrangements are in existing legislation. The answer to that is that this is a good opportunity to rectify what is a form of nonsense. My noble friend Lord Goodhart expressed the matter very clearly.

Lord Bassam of Brighton: Amendment No. 21 would remove the power to impose a banning order following an absolute discharge. That is right. As the noble Lord, Lord Phillips, said, this provision is one of those re-enactments from earlier legislation. Indeed, it has been there since 1989 and was taken through by Simon Burns last year when the last piece of legislation was put on the statute book.

However, it must be remembered that an absolute discharge is not an acquittal. It is a disposal following conviction. The reasons for imposing an absolute discharge may be many, but the fact remains that the person concerned will have been convicted of a football related offence. For that reason it is important that we retain the possibility that a banning order may apply.

I do not believe that we can bend to this amendment and I do not believe that it is right to suggest, as the noble Lord appeared to, that an absolute discharge is close to being acquitted. That is not the case.

1.45 a.m.

Earl Russell: Can the Minister explain to the Committee under what circumstances he believes that

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it would be appropriate to give an absolute discharge followed by a banning order? The Minister uses the excuse, "We have done it before". When dealing with badly drafted legislation, I accept that that is a reproach to noble Lords; it is no excuse as regards the Minister.

Lord Lucas: I too want the Minister to consider in what circumstances that is appropriate, given the keenness to retain the word "must". To the noble Lord, Lord Goodhart, I say that if he chooses to press this amendment to a Division, I am sure that I and a large number of my colleagues could be persuaded to abstain.

The Earl of Onslow: When an absolute discharge is given a defendant receives no punishment. Under this Bill one would say, "We will give you an absolute discharge which means no punishment, but we have to give you one anyway". That is not right.

Lord Goodhart: I am sorry that the Minister has not given a positive response to this amendment. I would be tempted to take it further were it not for the fact that I cannot imagine that, in circumstances where the court thought fit to give an absolute discharge, it would also believe that there were reasonable grounds to believe that making a banning order would help to prevent violence in connection with a regulated football match. So in practice, it seems to me inconceivable that anybody who has been given an absolute discharge would have a banning order imposed upon him. Certainly it seems to me to be quite absurd. In what circumstances could one impose a banning order when an absolute discharge has been granted? In those circumstances, it is inconceivable that that would lead to a banning order. Having made the point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Brougham and Vaux): If Amendment No. 22 is agreed to, I cannot call Amendments Nos. 23 to 37.

Earl Russell moved Amendment No. 22:

    Page 5, leave out lines 27 to 44.

The noble Earl said: This is an amendment of some substance. It proposes leaving out Section 14B, the anti-social behaviour section, and what my noble friend Lord Goodhart described as the "civil banning order".

The anti-social behaviour order has never found particular favour on these Benches. I am not sure that it has found that much favour anywhere else. Before we leave this subject, I would be grateful if the Minister could tell me the number of so-called anti-social behaviour orders that have been given since the power was introduced.

Lord Phillips of Sudbury: It is 500.

Earl Russell: My noble friend suggests that 500 is the number. I thank him. It is not a substantial number. I believe doubts about it are shared.

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One of our misgivings about this is the mixing up of criminal and civil procedures. It involves the use of the civil procedure--according to the balance of probabilities--for something that carries penalties that may, more appropriately, be thought of as criminal. That reminds me that someone once said to an Elizabethan archbishop that he was a monster, neither ecclesiastical nor civil. It was a comment on the archbishop's manners as well as on his legality. As a comment on the anti-social behaviour order, it may perhaps be germane.

I listened to the noble and learned Lord, Lord Donaldson of Lymington, say that a substantial body of evidence would be required. I take his point, but it would comfort me more if I heard to what that evidence would relate--that is not as well covered by the drafting of this clause as I would like--and what degree of certainty one could expect from that evidence.

One of the things that strikes me more and more is that it is very hard to be certain exactly what happens in a crowd. The Minister relied heavily on the uncertainty of much that happened at Charleroi. That illustrates my point: how hard it is to be certain what happens in a crowd. So applying a civil standard of proof in a case like that, will make error easier in a place where it is already a great deal too easy.

My noble friend Lord Phillips of Sudbury describes this as the lowest hurdle of proof anybody has been asked to cross. That applies to a lot of the drafting. But I am not clear what is meant by the phrase "contributed to disorder". I believe it was my noble friend Lord Phillips who introduced this point at Second Reading. What precisely is meant by "contributed to disorder"? Does it involve mens rea? Does it involve being present? Or does it involve giving aid and comfort to somebody who then created disorder, unbeknown perhaps to the person who comforted him?

The point was raised in another place by Mr Gummer. Of all the things that Mr Gummer's worst enemies could say about him, that he is liable to create disorder would have been the last. But in col. 115 on 17th July Mr Gummer recalled an occasion in 1961 when he had been on an anti-ugly march, protesting at an appalling building in Cambridge. He said that there was some disorder at the edge of the march and that, as one of the march's leaders, he thought he might be accused of contributing to it. Were Mr Gummer's fears well founded? Since the Home Office has had several days to take that point on board, I hope it will provide us with an answer.

Of course, that is not the only case. The Home Secretary himself, on 9th July, was in a car alleged to have been driven at 103 miles an hour. First, is that a disorder? I should like some precision as to the meaning of disorder. Secondly, if it is disorder, could the man in charge of the car be said to have contributed to it? If so, will the effect of this Bill be to ban the Home Secretary from attending football matches? If so, was

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that his intention? I can imagine circumstances where just possibly it may have been, but they seem just a little ironic.

Then at the end we return to the word, "must". I have said my say about that and will not say it again tonight. But I am free to return to the point tomorrow as I hope the noble Lord, Lord Lucas, will as well. He has not divided the Committee on this one so we can certainly return to it. I beg to move.

The Earl of Onslow: This provision is an appalling abuse of our liberties. Here we have a banning order on somebody going abroad to a football match because people think he might do something. They have no evidence; they just "think" he might. Surely that goes against every single grain of British legal history.

Somebody may have a long record, but is there no room for repentance? If we are asking about a Minister's previous experience, I cannot resist asking the noble Lord whether his squatting experiences in Brighton make him liable to be stopped by PC Plod at the gates of Dover. I am sorry, but I find a certain amount of hilarity in that. The fact that there are certain ironies and amusing jokes to tell in connection with these matters is about the only saving grace of the Bill.

The Minister's previous life is his own and is well past. As I said on Second Reading, he is now a pillar of the establishment; he is a Home Office Minister and as clean as the driven snow. He is an able member of this administration. So why should his previous experience of prancing around the Brighton courts of justice wearing an illuminated red nose stop him going to football matches? That is what the new section says. I concede that I find it hysterical, but it is not good law. If, suddenly, the noble Lord, Lord Bassam, is on the ferry to Brighton, it is deeply unfair that "Plod" could come along and take him off. Indeed, it would be grossly unfair to the noble Lord. I still think that this is the most wretched section in a wretched Bill.

Lord Phillips of Sudbury: My name is attached to this amendment. I do not wish to detain the Committee for very long, except to mention briefly some of the instances in which, as drafted, the new section could give rise to banning orders, or applications for them. That situation worries noble Lords on this side of the Committee and also, I suspect, those on the Minister's side. I have in mind student demonstrations in particular. For example, we had the recent demonstrations on student fees and the demonstrations that took place when the president of China visited this country. On the latter occasion, many students were shunted around various university towns with some vigour by the police. Indeed, some students reacted vigorously to the police attempts--and their success--in preventing them from exercising their normal civil rights of peaceful demonstration.

As drafted, there is no doubt whatever that it would not take a high level of activism on the part of the students involved in those demonstrations for them to fall within the scope of this section and its

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definitions. I am afraid that it returns us once again to new Section 14B(2), where the conditions upon which to base an application for a banning order are so low, so undemanding, as to place it in a unique category of harshness and "illiberty". I just wanted to add those words to the eloquent way in which my noble friend introduced the amendment.

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