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Lord Bassam of Brighton: As the noble Lord has acknowledged, I have already spoken to Amendment No. 34.

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Amendment No. 35 would also seriously weaken the new powers by jettisoning the principle established in last year's legislation--which, I remind the Committee, this House supported--that, where a court believes that there are good reasons to impose a banning order, it must do so. It seems to the Government that, if we want these new powers to be effective, and I am sure we all do, it would be a mistake to countenance a situation in which the respondent's previous involvement in violence or disorder has been demonstrated and the court is satisfied that a banning order is likely to prevent violence and disorder and yet a banning order might not be imposed.

Therefore, I invite the Committee to reject the amendments because they fundamentally undermine what we are trying to achieve in this part of the Bill.

The Earl of Onslow: I think I am right in saying that the chap does not have to be proved to have been involved in violence, only suspected of that. I still find it quite impossible to understand how you can say with any fairness--and I think this is what the Bill says; I am sure the Minister will correct me if I am wrong--"We think that you are a hooligan who was involved in Utrecht. We cannot prove it but we have sufficiently strong grounds to think that you were and, therefore, we think that you will do that again in the future". I find that an incredibly low standard of proof. If the Bill says that, as I am certain that it does, I still have enormous difficulty. Anything that we can add to the Bill to raise that standard of proof, the better. It is impossible to prove what somebody will do. We must raise the hurdle over which they must go. I hope that my noble friend pursues this, if not now, certainly later.

Lord Phillips of Sudbury: I believe that the Minister has drawn a false analogy with the existing law. The same provision was in Amendment No. 19, but that related to new Section 14A, which applies only where there has been a conviction for a relevant offence. Here we are dealing with a situation where there is no conviction and no relevant offence. Therefore, there is all the difference in the world between the old legislation--which not unreasonably says that where there has been a relevant offence and a conviction, one must apply a banning order other than in exceptional circumstances--and the situation here where we are dealing with what everyone is calling the lowest hurdle: no conviction and, in many cases, no illegality. In those circumstances, we on these Benches feel strongly that the court must have that discretion. I remind your Lordships that in the comparable provisions under the anti-social behaviour order legislation the court has that discretion.

Lord Bassam of Brighton: I need to ram home this point. For a banning order to be made, new Section 14B(4)(a) requires it to be proved that,

    "the condition in subsection (2) ... is met".

Although noble Lords do not accept that that is a particularly high burden of proof, that section states,

    "caused or contributed to any violence or disorder".

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There has to be proof that that is the case. That condition must be satisfied for subsection (4)(b) to work. Noble Lords should consider the two in relation to each other.

The Earl of Onslow: The Minister is saying that the matter has to be proved. I thought that in English law one was innocent until proved guilty. Is the Minister shaking his head and saying that that is not the case? That was my impression. Surely, we are saying that if we suspect someone of having done something, but cannot prove it, we shall impose a punishment on him just in case he does something in the future. That encapsulates this section, and the noble Lord cannot understand those on this side of the Committee objecting to that. We should do anything that we can to make that suspicion-cum-extra-suspicion harder to achieve.

Earl Russell : If the noble Earl will forgive me, I shall offer a word of clarification. Hypothetically, it is possible that what is in new Section 14B(2) may be proved, subject to reservations about the words "contributed to" which I shall not explore again. It seems to me that new Section 14B(1) cannot possibly be proved because it is contrary to the nature of the case that any proof should exist relating to a person likely to contribute to disorder. That calls for a prophesy. A prophesy cannot be proved until after the event.

Lord Lucas: I am grateful to the Minister for his explanation. I still have considerable reservations in relation to the standard of proof for new Section 14B(4)(b). I believe that the Minister has expressed himself in words that I would be happy to support were they in the Bill. I hope that we shall manage to find a formula to put them into the Bill. I hope that the Minister will consider a way of achieving that too because there is no certainty that the court will decide that that is the standard of proof that is required by the Bill. On this matter we are subject to such conflicting whims. It appears to be a civil offence, so there should be civil proof--the balance of probability and 50:50--and not the strong civil proof as the Minister says. At the other end, it is clear that under Article 6 of the European Convention on Human Rights, it is a criminal offence and, therefore, the criminal test should apply.

It is very uncertain where an individual court will find itself between those two poles of ideas. It would be extremely helpful if the Bill contained some sort of waymark as to what the level of proof is supposed to be. New Section 14B(4)(b) is where that level should appear. I look forward to returning to this on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 to 37 not moved.]

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3.15 a.m.

Lord Lucas moved Amendment No. 38:

    Page 5, line 44, at end insert--

("Application to chief officer of police.
14BA.--(1) Any person may make an application to the chief officer of police for the area in which that person resides for a declaration that there are no grounds in his case for seeking a banning order.
(2) On receipt of such an application a chief officer of police shall, within seven days, either--
(a) provide such a declaration in writing; or
(b) make an application under section 14B(1).").

The noble Lord said: In moving Amendment No. 38 I shall speak also to Amendment No. 63.

Again, I am not particularly attached to the wording of this amendment. It addresses the problem of how, if one is a person who may be liable to be picked up at the ports under Clause 21 of the new arrangement, one deals with that situation. Do we just buy our ticket at great expense, go along to the port and see whether or not we are nabbed? Or can we in some way obtain guidance as to whether or not we are likely to be stopped at the border?

It seems to be proper and right that people should be able to obtain guidance from their local chief of police--after all, he is the person who will throw them into Section 14B--as to whether or not they are likely to be stopped under Section 21. If the chief of police says that they are likely to be held up, then they will not go to the expense of buying a ticket or, if they do, it is their lookout. If the chief of police says that they are in the clear, then they should have a pass to wave at anybody who tries to stop them at the port.

Perhaps this is not exactly the right way to do things. But, one way or another, some procedure must exist so that those who find themselves on the margins know which way to jump. I beg to move.

Lord Cope of Berkeley: Like my noble friend I am not wedded to the specific wording of Amendment No. 38. But it carries an important point; that is, that one should be able to obtain clearance in advance, which could be of great practical value.

Lord Bassam of Brighton: I understand the motive and good intentions behind Amendment No. 38. It would entitle any individual to seek from the police advance warning of whether or not there are grounds for seeking a banning order.

The intention behind the amendment is to prevent an individual's journey to an overseas match or tournament being disrupted or curtailed by a police decision to detain them en route to make inquiries. I am sure that, whatever the fate of this amendment, people will ask the police in advance for such reassurance. We will undoubtedly need to discuss with the police what the appropriate response should be.

The noble Lord accepts that the amendment is not well phrased. We cannot possibly accept it because it would probably cripple the police resources and certainly add to the burden of bureaucracy. Also, it would not add much to the prevention of hooliganism

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if the police had to give such a formal response. However, I understand the motivation behind the amendment. We cannot help on the face of the Bill; but we shall clearly have to discuss guidance with the police because they will have to advise officers who receive requests from ordinary members of the public who feel that they may have been a citizen of suspicion.

Therefore, I ask the noble Lord to withdraw the amendment. We cannot offer anything in the legislation. Clearly it is an issue we will need to discuss with the police and no doubt they will want guidance issued as to how they should respond to requests for information of the kind that the noble Lord is seeking to provide.

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