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Baroness Ludford: My Lords, I was not saying that it was not important that Turkey was a NATO ally. I was saying that it was a mistake to see Turkey purely through the prism of membership of NATO. We need to see that country primarily as a political partner in Europe. I was not diminishing the NATO aspect at all.
Baroness Scotland of Asthal: My Lords, I am very glad for that clarification. I endorse what the noble Baroness said. It is extremely important that Turkey should be a full and proper EU partner. That is why it is of fundamental importance that she meets the criteria that every EU partner must meet in order to join the EU family. We expect the prospect of EU
The noble Lord said: My Lords, this is a large group of amendments and perhaps at this time of night on the second day of Joycean continuous experience it is a mercy. However it is difficult to unravel this set of amendments with clarity and brevity, both of which are deeply desired at this time of night, but I shall do my best. Before the break, the Minister referred to the solace that we should take from the sunset clause and I understand what he means. However, a sunset clause in a bad Bill is still bad news and enough has been said for the purpose of the amendments to be well understood.
There are new and potentially dangerous powers in the banning order structure under the Bill. New Sections 14B and 21A are totally interlinked. After all, new Section 21A, relating to a "sus" offence, harks back to the conditions of new Section 14B(2) and we heard the noble and learned Lord, Lord Lloyd, say last night that suspicion is not on grounds of actual or imminent breach of the peace or suspected illegality but in respect of future conduct. What is more, and worse, it is based on long past conduct; up to 10 years. That is in dramatic contrast with the Crime and Disorder Bill and the anti-social behaviour orders on which the Minister has relied throughout.
Furthermore, a banning order under new Section 14B need not necessarily be related to football, unlike the provisions of new Section 14A and the existing legislation. Nor need it be in relation to a conviction, a point emphasised from many quarters. According to what tests are the Government or the police able to apply for a banning order? Is it a criminal test? No, we know that it is a civil test although it has criminal penalties and it is certainly in a criminal context. Does it involve mens rea or intent? No, it does not. Will there be any defence of self defence, provocation or other reasonable conduct, as is present in the Public Order Act? No, there will not.
The Government tell us not to worry too much because new Section 14B(4)(b) saves the day. Under that provision the justice of the peace must believe that there are "reasonable grounds" before a banning order is made. We are not happy with that.
What about the conditions for the banning order? Must there be violence? Yes, but of a very particular and limited kind. It can even be violence against property. It could be graffiti or smashing a couple of glasses in a pub intentionally when drunk.
What about disorder? It is a pity that the noble Lord, Lord Richard, is not here because his somewhat cavalier approach to all this would have been a good deal less so had he pondered on the definitions of "violence" and "disorder". Let us not forget that "disorder" is stirring up hatred against a group of persons. We have no problem with that but the use of abusive or insulting words or behaviour, or disorderly behaviour, embraces a multitude of sins and minor sins. Thinking back to my student days I remember that the boat club of Trinity Hall was perpetually abusive and insulting during its more elaborate celebrations, as were sporting organisations of all kinds.
Although the Minister has consistently said that that is not the kind of behaviour on which people will base applications for banning orders, I beg to differ. There is not much difference between the high spirits of a sporting institution of a university and the high spirits of students when demonstrating whether at a university or outside or whether in respect of genetic engineering problems, animal problems or visits of undesirable potentates as with the President of China. Such matters give rise to occasions when precisely abusive and insulting behaviour is a concern. We do not like a Bill which ultimately relies for its scope and implementation on the perpetual good sense of police and magistrates. That is not good legislation.
What about the violence? Must it be direct, actual or serious? No, it must be merely enough to contribute to "it" or to disorder. What is meant by "contribution to"? The Minister gave--if I may say without being offensive--a banal explanation to my noble friend Lord Russell. It will of course include cheering on when someone is, for example, destroying crops in a field. If you are standing on the side lines cheering on, that will be a contribution to disorder and to violence in property terms.
It need not be violence or disorder such that banning will prevent its repetition. It has not yet been pointed out that the magistrates need be satisfied only that the banning order will "help" prevent violence or disorder. "Help" is a little word and it can mean a little or a lot. It does not say "help significantly", it merely says "help". That is the weakest link in a very weak chain of protection for those against whom banning orders are sought. I regret not having woken up to the importance of that small word hitherto because no one has tabled a related amendment.
The other approach would be to work with a scalpel, so to speak, on the provisions of the Bill and seek to tighten up the requirements. That is where Amendments Nos. 13, 14 and 15 in the names of the noble Lord, Lord Lucas, and myself, where Amendments Nos. 19 and 20 in the names of my noble friend Lord McNally and myself, and where Amendments Nos. 22 and 23 in the name of the noble Lord, Lord Lucas, all come in.
I shall sit down in a moment but I believe that it would help the House if I were to read out what is perhaps the key section in the Bill--new Section 14B(2)--with the amendments included in this group written into it. It would then read as follows:
I believe that the amendments--one a deletion and three single word insertions--do not disable the Bill at all. Rather, we would say that they give the Bill a force, a balance and--to use the Minister's favourite word--a proportionality that help the credibility and justice of the measure. When we become excited about the minutiae of the wording, it is often forgotten that, without a just Bill, one has a bad Bill. That may not become apparent very quickly, but in our history there are too many examples of Bills which are full of good intentions but ultimately are bad and counter-productive. Like the Minister, we want a Bill that will work.
Lord Lucas: My Lords, perhaps I may speak to my amendments in this group. This is a part of the Bill which, on the face of it, is quite reasonable. It states that where someone has a known predisposition to violence or disorderly conduct and is going to a football match or in some other way seems likely to be associated with a football match that we are concerned to protect, a banning order can be issued. I do not believe that I have a problem with that as a basic
The difficulties that we encounter here is that the details of the approach taken are quite disproportionate either to the likely consequences of allowing someone to go abroad or to the nature of what they must have done in order to qualify for a banning order. As the provision stands at present, you can be subject to a banning order if you have ever been convicted of careless driving, because you might have been said to have endangered life; if you have ever insulted a policeman or a traffic warden; or, if you have ever been involved in a demonstration which has turned violent at the fringes. All types of ordinary actions which do not indicate a predisposition towards causing violence at football matches are allowed as criteria under new Section 14B(2).
The filtering takes place in new Section 14B(4), where the magistrates must decide whether a person, who, it has been "proved", has a violent disposition because he once told a traffic warden to get lost, constitutes a danger to a football match because he has a ticket to it. The magistrates must decide whether, because we are worried about violence, they must therefore prevent that particular person from attending. The proof appears to be that they must be satisfied on reasonable grounds.
It is a difficult and unusual formulation of wording. I know that it has been used in the Football (Offences and Disorder) Act, but it is not standard. If it means "the balance of probabilities", perhaps that should be said. However, the Government have said that it means something stronger than that. I should certainly be happy if it meant something stronger and we could tighten the definition. Then the court would decide not only whether there was a possibility that the fellow might do something nasty when he arrived in France but would say, "No, we are pretty sure that if we let him go to France there will be a real danger that he will do something undesirable".
Those points form the substance of the intention of my amendments. They look at different aspects of the problem. I am not suggesting that the Government need take them all on board, but I believe that if they
In this section as it stands, we are imposing what amounts to a criminal penalty. It provides for a two to three-year banning order, imposing severe restrictions on a person's movement and ability to move around the Community, and imposing a stigma on people equivalent to a criminal conviction. In addition, we are imposing it on a civil standard of proof. I believe that clearly that will be attacked under the human rights legislation.
I believe that if the Government were to give way to some of those suggestions and allow the wording in this section to be tightened a little, they would not allow anyone significant through the net. A person whom they are worried about will have carried out a significant act of violence or disorder. It will be fairly obvious to a magistrate that such a person is likely to do something undesirable abroad and it will not be a so-so decision. Therefore, I believe that if the Government would allow the wording of this provision to be tightened, they would make it more effective and harder to attack under the Human Rights Act. At the same time, they would make it a more just provision so far as concerns the majority of our citizens.
So far as concerns the individual amendments, Amendments Nos. 13 and 15 are addressed at new Section 14B(2). Given that that does not contain the important test, I am not too concerned about how we tighten up that wording. I believe it is desirable that we make it clear that we are not looking to pick up anyone who has ever been involved in an act of a relatively minor nature. I believe that we could do that equally in Amendments Nos. 22 and 23, which tighten up the definition of disorder. That, again, would help to make it clear that we are talking about a person who has an established history of serious violence or disorder.
Through Amendment No. 14 we could add the concept of intent. I believe that it is important that someone should have intended to contribute to violence or disorder rather than having been simply caught up in it. That is a point which the noble Lord said last night that he would consider. I have not yet found anything in my in-tray and I do not know the results of the noble Lord's considerations. However, I believe that at the top of my personal list is Amendment No. 19, which replaces the word "reasonable" in new Section 14B(4) with the word "strong".
Section 14B(4) is the crucial provision, because it contains the real test that magistrates will apply. The amendment would make that subsection closer to what the Government say that they want. The current wording seems to imply only a civil balance of proof requirement--or even something less. The amendment would strengthen that, although it would not go as far as requiring proof beyond reasonable doubt.
This group was introduced by the Liberal Democrats, so it will be concluded by the Liberal Democrats. I shall pay close attention to what they say, as well as to what my noble friend Lord Cope of Berkeley on the Front Bench says about the relative desirability of the amendments.
Lord McNally: My Lords, Amendment No. 12 sets out the basic position of my party: we would prefer action on the basis of a conviction. However, as we have been told that, if it is agreed, subsequent amendments will fall, it may help the structure of the debate, to which the noble Lords, Lord Phillips and Lord Lucas, have contributed constructively, if I say that we shall not move Amendment No. 12. I hope that that will allow Ministers to ponder the wisdom of the speeches of the noble Lords, Lord Phillips and Lord Lucas. Whereas Amendment No. 12 would fundamentally change the Bill, their amendments would fundamentally improve it.
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