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The Earl of Onslow: My Lords, I am grateful to the Minister for giving way. He says he thinks there should not be trivial grounds and that the court would not use trivial grounds. My worry is that the court may use trivial grounds, and therefore trivial grounds should be kept out. If there is a chance of things going wrong, as night follows day they will.
Lord Bassam of Brighton: My Lords, the threshold to which the noble Earl seeks to raise the judgment here is one which will fundamentally undermine the value of what we are seeking to achieve. By and large in my experience, and no doubt the noble Earl will have similar experience on which to form a judgment, the courts are not prepared to accept trivial behaviour to form the basis of a conviction in criminal cases. In the context of a banning order, the courts would take a serious view of matters in front of them and form a balanced judgment as to the likelihood of someone's behaviour on the evidence they receive. We must place our trust in the law. For those reasons, I cannot accept the amendments.
Lord Monson: Of course, my Lords. I wonder whether the Minister read a recent press report, or heard from other sources, about a man who applied to join the Metropolitan Police. Although he was otherwise well qualified, he was rejected because he had a Union flag tattooed on his forearm. Presumably that was considered to be, if not abusive, possibly threatening or insulting. Are we to take it that someone might be caught by this provision if he had such a flag tattooed somewhere on his body?
Lord Phillips of Sudbury: My Lords, I hear rumblings from behind me indicating that that was as disappointing a response as the Minister has given during the whole of this debate. It meets none of the anxieties felt on this side of the House and, in particular, leaves the provisions of new Section 14B wholly unamended. The Minister places much reliance on the status quo; for example, he said that the police can be relied upon and that he bases his trust in the law. That is all very well. The police can usually be relied upon, as can the law. However, the point of these amendments is to make the law such that less than competent police officers--and worse than that--will be inhibited from potentially using this law in an improper way. The discretion that is given to both the police and the courts here can only be described as "arbitrary".
I should remind the Minister and the House that the powers given under this Bill are unprecedented in our entire legal history. That is not an exaggeration; indeed, it is not, as I believe the Minister said, "paranoid rambling". It is the truth. That point was succinctly made by the noble and learned Lord, Lord Lloyd of Berwick, on new Section 21A. The fact is that new Section 14B allows the police, as the Minister explicitly said, to bring a banning order application against someone who has committed no criminal offence in respect of long-past conduct, which will have future effects.
I shall not rehearse the arguments. I am just profoundly disappointed. The Minister is relying upon the fact that, at this time of night and after such a day, there is no Division that we can call with any hope of winning, given the Government's whipped ranks. Before I sit down I shall just say that I believe that the Minister is making a mistake by offering no concessions on this issue. I do not think that it will help the Bill or, indeed, its implementation. I believe that he will rue the day that he has used the power that he knows he has. I beg leave to withdraw my amendment.
Lord Cope of Berkeley: My Lords, I hesitate to interrupt the noble Lord but he is, presumably, speaking to Amendment No. 16 and the amendments grouped with it. Therefore he should not say that he will withdraw Amendment No. 16; otherwise, he will get us in a muddle.
Earl Russell: My Lords, I am attracted by Amendment No. 17A. We have here both the low standard of proof and the low standard of certainty as to what it is that has to be proved. We have met firm resistance to raising the definition of what has to be proved to greater clarity. If we cannot do that, we should raise the standard of certainty to which the proof has to be offered. As I said, this amendment attracts me.
Lord Bach: My Lords, I shall not speak to Amendment No. 16, which the noble Lord has said he will withdraw in due course, nor to Amendment No. 17, because I believe that Amendment No. 17A takes its place.
It is well established in case law that the standard of proof in civil proceedings is a flexible one. I quote again a judgment of the noble and learned Lord, Lord Scarman, in the case that was mentioned yesterday, and last Thursday at Second Reading, which states:
Lord Phillips of Sudbury: My Lords, I am obliged for that response. Might it therefore be appropriate to accept Amendment No. 17, as that confines itself to the insertion of the words, "application by the applicant"? As that is what the Minister said is intended, would it not make sense for that to be proposed and accepted?
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