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Lord Phillips of Sudbury: Is it not true that in the cases to which the noble Lord refers it was the criminal test of which the police had to convince the magistrates?

Lord Bassam of Brighton: That is, of course, the point. However, I am trying to suggest that, by and large, courts take their responsibilities very seriously, and the question to be asked is whether a person played a clear part in encouraging, initiating, leading and inciting. I believe that the type of descriptions which noble Lords have used that might cover what they view as a low threshold are unrealistic and extremely unlikely. I do not believe that the power will be used in the way that noble Lords have suggested.

As will have been obvious from my contribution to debates in various guises over the past few months, I have a great concern for people's civil liberties. Throughout my life I have played a part in protecting them. I am certainly not willing to be part of a government who undermine those civil liberties.

However, we must consider the question of civil liberties in a broader context. While we protect the civil liberties of people whom we and noble Lords clearly consider to be worth protecting, we must consider that perhaps the way in which they have acted in the past has seriously infringed the civil liberties of people who have been confronted by some of that mindless racism, xenophobia and loutish behaviour. There is a balance to be struck and we believe that in this legislation we have that balance right.

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As I said, I can well understand the concerns that have been expressed, but I cannot accept the argument that has been put forward. I believe that the courts will continue to act quite properly to protect people, as they have done over many years, in cases where a reasonable defence has been offered. I do not believe that courts will be impressed by the low threshold argument. The way in which this measure is set out provides more than adequate protection. The words which the noble Lord, Lord Lucas, seeks to add by way of description will do very little to assist and are entirely unnecessary. That is our argument.

Lord Lucas: I am grateful for that reply, although I do not agree with it. In his reply the noble Lord referred to "seriously disrupting the lives of others" or "playing a leading role in disorder". That is exactly the type of wording that I should like to see in the Bill; that is, some kind of quantification.

There is no doubt that together my amendments represent overkill and to some extent they duplicate each other. However, I hope that, with my noble friends on the Front Bench and the noble Lords on the Benches next to me, on Report I shall be able to put forward a form of strengthening to this part of the Bill so that what appears on the face of the Bill to the ordinary Englishman will be what appears on the face of the Bill to the skilled lawyer, as the noble Lord, Lord Bassam, doubtless is or would be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 28:

    Page 5, line 33, after ("contributed") insert ("with intent").

The noble Lord said: This amendment introduces the notion of intent, which I believe to be important in relation to this matter. If one contributes to violence or disorder, I believe that there should be mens rea, as the lawyers express it, or intent, which I believe is a reasonable English equivalent. We are considering actions whose consequences are very close to crime. Even if we are not considering a criminal level of proof, we ought to consider a criminal level of involvement in the activity. Intent is essential to crime and should be essential to the offence that we are considering. I beg to move.

3 a.m.

Lord Bassam of Brighton: I am tempted by the amendment. It might go a little further than I would like, but I should like to reflect on it. There may be circumstances in which a contribution was made without intent and there may be others in which it was clearly intended. There may be a distinction between the two that is evident in the way in which the evidence is collected.

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I am not sure about the amendment. I want to think further about the issue. I say that without making a firm promise one way or the other. The noble Lord may well have a point.

Lord Lucas: I am delighted to accept the Minister's words on that. I look forward to hearing what he has to say in 12 hours or so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 29 to 31 not moved.]

Lord Lucas moved Amendment No. 32:

    Page 5, line 39, after ("met,") insert--

("( ) the respondent cannot demonstrate that those of his actions that are at issue in respect of subsection (2) above were reasonable in all the circumstances,").

The noble Lord said: I should like to hear the Minister's reaction to the suggestion that there should be a defence of reasonableness against the charges to be brought under new Section 14B(2). There are many occasions on which one might have acted rudely or abusively but with justification, particularly when the altercation was with someone who was behaving threateningly or being even more rude or abusive. That defence is commonly available in such cases and it should be available in the Bill.

Lord Phillips of Sudbury: I spoke to Amendment No. 37 earlier, but the Minister did not cover it when he replied to that group. It contains a similar provision to those in Amendment No. 32, just as it mirrored the provisions on intent in Amendment No. 28. It might be convenient if the Minister replied to both amendments together.

Lord Bassam of Brighton: Amendment No. 32 would allow the respondent to avoid having a banning order made against him under Section 14B if he could demonstrate that those of his actions that were at issue in the case were reasonable in all the circumstances.

I fully appreciate the concerns that lie behind the amendment. Evidence on video that one person had struck another with a stick and had therefore been involved in violence or disorder might well be tempered by the realisation that the act had been carried out in self-defence. However, I am sure that in those circumstances the person concerned would have the opportunity to ensure that the fact that he had acted reasonably was given its proper weight. The court must be satisfied that the imposition of a banning order would help prevent violence or disorder in connection with football matches. If the person has not previously been involved in violence or disorder, except to the extent that his behaviour could be regarded as reasonable, no court would ever make an order.

The noble Lord, Lord Phillips, invites me to respond to Amendment No. 37. It would allow a respondent to avoid a banning order if they could show that they had no reason to believe that any person was likely to be hurt, offended, alarmed or distressed by the violence in

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which they had participated or that their conduct was reasonable. It further provides that an order shall be made against such a person only if they intended their behaviour to cause hurt, offence, alarm or distress or were aware that it could have that effect. Proof of the mental element which this amendment requires is likely to be difficult whether the burden of proof lies on the respondent or the applicant.

The policy behind these measures is to focus on the behaviour itself and not on the reactions to it which other people may have had or, indeed, on the particular state of mind activating the person who is responsible. To accept the amendments would greatly impair the effectiveness of the powers under Section 14B. Therefore, I cannot invite the Committee to accept them.

Lord Lucas: I appreciate what the noble Lord said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

Lord Lucas moved Amendment No. 34:

    Page 5, line 40, leave out ("there are reasonable grounds to believe") and insert ("it is substantially more likely than not").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 35. I shall return to Amendment No. 35 another day or, at least, at another hour.

The Minister addressed Amendment No. 34, although I had not spoken to it. The noble Lord has been pushing the whole subject of new Section 14B down to 14B(4)(a) and my noble friend Lord Cope of Berkeley also focused on new Section 14B(4)(b), which is the crucial test which must be met if someone is to be faced with a banning order.

In part, Amendment No. 34 addresses the old question of, "Let us have the Government say what the standard of proof is on the face of the Bill". Under these circumstances, someone has passed through the very light test, without any great weight to it, in Section 14B(2), and has arrived at this crucial point. He is someone with a small stain in his past and is faced with a two- to five-year banning order. That poses great inconvenience to him, given the number and duration of football matches and there is considerable social stigma. In those circumstances, there should be a rather higher standard of proof than the mere balance of probabilities.

On Second Reading, the Minister said that that would tend towards something which he described as a higher level of civil proof, closer to "beyond reasonable doubt". This is merely an attempt to arrive at that sort of wording. What the Minister said on Second Reading should, in some way, find its way into the Bill. I beg to move.

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