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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: My Lords, before the Minister sits down, perhaps I may comment on something said in relation to Amendment No. 23.

Lord Bach: My Lords, I am sorry to interrupt, but it would be preferable for the noble Lord to ask a question of my noble friend the Minister at this stage, rather than make comments.

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 Bassam of Brighton: My Lords, we shall drift into making bad law if we start quoting obscure but, nevertheless, noteworthy instances and examples as a

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way to try to prove a point. Clearly it will depend on the behaviour of the person, his background, his general demeanour, and so on. Whether or not someone has a Union flag emblazoned across his shoulder or torso, or wherever, is not really a material consideration as far as concerns these amendments.

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.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 to 15 not moved.]

Lord Phillips of Sudbury moved Amendment No. 16:

Page 5, line 35, at end insert-

("() The application shall state the date, place and substance of any conviction or order to be relied upon in support of the application.

() A copy of the application shall be served on the respondent at least 14 days before the hearing of the application, subject to an order for substitute service.")

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The noble Lord said: My Lords, the noble Lord, Lord Campbell, has, unfortunately, had to go home because of the indisposition of one of his relatives. He has asked me to move these amendments on his behalf. I turn, first, to Amendment No. 16. When comparable amendments were moved last night, I explained to the noble Lord that the Minister gave the assurance that the details of the date, place and substance of any conviction or order would be part of the standard form that the Government are seeking to devise and make mandatory. On that basis, the noble Lord, Lord Campbell, was very happy for Amendment No. 16 to be withdrawn.

As regards Amendment No. 17A--

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.

Lord Phillips of Sudbury: My Lords, the last thing in the world that I want to do is to get anyone in a muddle. That just shows that I am in a muddle, but these are not my amendments.

Amendment No. 17A seeks to amend new Section 14B(4)(a)--which concerns banning orders made on a complaint--to read,

"If it is proved on the application by the applicant beyond all reasonable doubt".

The noble Lord, Lord Campbell of Alloway, wants to be quite sure that the burden of proof is on the applicant and not on the respondent. I cannot imagine that that is a contentious issue. I am confident that the Government intend that the proof required is proof on the part of the applicant. The amendment contains the words, "beyond all reasonable doubt". On the basis of what has been said recently, I anticipate that the requirement for the application to be proved beyond all reasonable doubt will not be accepted by the Government, but none the less I move the amendment as I was asked to do. I beg to move.

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.

The noble Lord is right to say that the Government are not prepared to accept Amendment No. 17A. However, the burden of proof will clearly be on the

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applicant. I think that is written in. I hope that gives some comfort to the noble Lord. The amendment would provide for the criminal standard of proof--I am not saying anything that has not been said from this Dispatch Box in the course of the past 24 hours--and is not appropriate for what we argue is a civil order.

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:

"The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake".--[Official Report, 20/7/00; col. 1260.]

We have every confidence--we believe that the noble Lord should have every confidence--in the courts' ability to judge these matters fairly. They will not make banning orders unless they are satisfied that the two conditions set out in new Section 14B are met; namely, that it is proved that the person before them has caused or contributed to violence and disorder, and--not or--that there are reasonable grounds to believe that an order would help prevent violence or disorder in connection with football matches. The breach of an order will be a criminal offence. In a trial of that offence, the criminal standard of proof would, of course, apply.

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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