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Lord Goodhart: My Lords, on this occasion, as on many other occasions during the passage of the Bill, we owe a considerable debt to the noble Lord, Lord Lucas, for putting his finger on a point of importance. If the banning order is, as the Government continue to firmly insist that it is, a civil order, it is inconceivable that there should be the remotest possibility of ordering a remand in custody pending the determination of whether or not a banning order should be made. It is wholly and completely inconsistent with the idea that this is a civil order. I can see no possible justification for refusing to accept the amendment.

Lord Bach: My Lords, there is an answer to the amendment. I am not sure that the noble Lord, Lord Lucas, has appreciated that what is being given here is a power of remand in custody. It is no more than that; a power of remand in custody. In the vast majority of cases of this kind the magistrates will bail the person who has been detained and asked to appear before the magistrates. All the amendment does is allow for the odd, peculiar situation which--as anyone who has any experience of courts at all knows--arises from time to time.

What happens if Mr A has been detained by the police and brought before the magistrates because at some time in the past he has caused or contributed to violence or disorder? He is brought before the magistrates. They may not be satisfied without more evidence that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder. They may not be satisfied of that on his first appearance. But he says, "Once you let me go, I am going to the match. I have a ticket for that match. I have bought my ticket for that match and I am going". That would not necessarily mean that the magistrates would find that there were reasonable grounds to believe that making a banning order would help to prevent violence or disorder. They might want more evidence. They would then adjourn his hearing so that they could get more evidence. They would not adjourn it for long.

Lord Carlile of Berriew: My Lords, I am grateful to the Minister for giving way. Is he seriously saying to the House that the Labour Government approves a provision whereby, when the police bring a man before a court, if they cannot produce the evidence to justify the order they are seeking, it can ever be right to

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remand him in custody? If that is what the Minister is suggesting, I am astounded to hear it coming from as experienced a lawyer as he and from any Labour Government.

Lord Bach: My Lords, I wish the noble Lord had heard me out. Perhaps if he had he would not have been so astounded. What I am saying in the example I am giving is that Mr A has been brought before the court. He is in a position where the magistrates cannot make up their minds whether the provisions of new Section 14B(4)(b) apply. They give the police another day to get any evidence they can. Meanwhile, the policeman says, "Mr A has told us that if he is let out he will go to Germany straight away and see the match because he does not see any reason why he should not". Is it being said that the courts should not have the power to remand him in custody in those circumstances, with the danger that he would then go abroad and cause trouble? Let me give another example if that one does not satisfy your Lordships completely. I have the feeling that it does not.

Noble Lords: Yes.

Lord Goodhart: My Lords, one of the facts may be that he was required to surrender his passport. Under new Section 21B(6), that passport is returned to him only in accordance with directions given by the court. If the court says, "We are not going to give directions to return your passport", then he cannot go.

Lord Bach: He cannot go? Is the noble Lord saying that it would be impossible to leave the country without a passport?

Lord Goodhart: My Lords, what is the point of ever requiring the surrender of the passport?

Lord Bach: My Lords, the noble Lord was arguing last night, into the small hours, that the fact of a passport meant very little in terms of anyone going abroad these days.

Lord Goodhart: No, my Lords, I did not say that.

Lord Bach: My Lords, I give another example. The police think that the person the magistrates have before them is wanted on warrant but the police do not have the information at that time. Would the magistrates then have to let the man go on bail, or would they be entitled to keep him for a short period of time in order to see whether the warrant arrives?

All kinds of different circumstances and events occur. It is impossible to identify each and every one. All the power does is give the magistrates the ability to hold on to someone--of course it cannot be for a long period of time--for a short period of time until the matter is resolved. It is a power that magistrates have in every other instance. Why should they not have it

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here? Of course the provisions of the Bail Act 1976 would apply. In 99 cases out of 100 such a detainee would be freed.

We had a useful discussion of this issue when a similar amendment was put forward last night. We are not saying that the court must, or will normally, or will often, remand people in custody pending a hearing relating to the issue of a banning order. But we believe that the court must have the power to deal with a case where a person has made it absolutely clear that, if released, he will proceed to attend the football match from which he was originally banned. This power will not be used frequently. But to forbid the magistrates to remand someone in custody in this way would be a completely unnecessary gesture. The magistrates will not misuse the power. But that they should have the right to remand someone in custody for a short period of time has never been doubted in any other context. Magistrates have before them not just people charged with criminal offences; they have people who are brought before them in order to hear other proceedings which are not criminal in nature at all.

The Government are saying that there is a great deal of fuss here about precisely nothing. Noble Lords have worked themselves up into a lather about this issue. It is not a great issue of liberty or civil rights. This is a commonsense way of dealing with this problem. There is nothing unusual about it.

Earl Russell: My Lords, before the Minister sits down, is he aware that his arguments that the power will not be used often and that it will not be abused have been used many hundreds of times before and nine times out of ten they have been wrong?

Lord Bach: My Lords, is that a question?

Earl Russell: Yes.

Lord Bach: My Lords, for centuries magistrates' courts in this country have had the power to remand someone who is before them.

Lord Carlile of Berriew: For offences!

Lord Bach: No, not just for offences. They have the power to remand someone in custody if they choose to do so. If they act illegally or wrongly, that person can claim that it was illegal and wrong and be released. But this is not giving the magistrates any greater power than they would otherwise have in similar circumstances.

Lord Lucas: My Lords, I am a simple soul and no lawyer. My view of the matter is that in 1628 we gained the freedom from arbitrary imprisonment.

Lord Bach: My Lords, 1628?

Lord Lucas: My Lords, the noble Lord will know better than I. My knowledge of dates is not very good, but it was a decent long time ago. But this week it appears that we are about to lose it. The noble Lord is

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saying that I may be brought before Folkestone magistrates for wanting to go to a football match overseas. A policeman says, "We know some murky secret in your past". The police say, "So you did insult the policeman?", and I say "yes". The police say, "We think that you are going to cause mayhem at the football match", and I say "no". They bring me before the magistrates and they produce no evidence that can pass even the gentle test in new Section 14B(4)(b). Surely it is right that the magistrates should let me go. If the police cannot prove their case, if they have no evidence and if they no reason for detaining me because they could not meet the basis for the test in Section 14(4)(b), then I should be let go.

11 p.m.

Lord Bach: My Lords, could the magistrates not adjourn the matter for a short period of time? If the evidence is not available on the spot, the proceedings could be adjourned for a day or so to see whether that evidence could be brought.

Lord Lucas: My Lords, if the evidence was not available, I should not have been stopped. There is no basis for stopping people under Section 21A without having sufficient evidence to take a case to the magistrates' court at the end of the day.

The purpose of Section 21A is to allow the police to collar people at the airport or in the port, trot them off to the magistrates' court and say, "Give this one a banning order". The police should not do that unless they have evidence. They cannot be allowed to say, "We haven't got any evidence against him yet, but give us 24 hours and we'll run around and see if there is anything". If, at the end of 24 hours, the police still have nothing, they will return to the court and say, "We did not manage to get anything. We need another 24 hours". That is ridiculous.

The noble Lord has himself said that there is no question here of the person having committed a criminal act or any question of the person being suspected of being about to commit a criminal act. It is quite inappropriate to imprison someone when no evidence is available to justify that imprisonment or, indeed, there is no suspicion of the person having committed a crime. Basic principles of law and justice must be applied here. It is no good to say that administrative convenience may be called in aid to allow the police to stop people from leaving the country when they have no evidence against them. Furthermore, the police should not be allowed an ever-extendable period of time in which to gather such evidence.

If the police have evidence, then, yes, Sections 21A and 21B will allow them to bring them in front of magistrates to secure a banning order. I may not like it, but that is a simple, straightforward and reasonably justifiable way in which the police can stop criminals from going abroad. However, if someone is collared at the airport and the police do not have the evidence necessary to satisfy Sections 14B(4)(b), why has that person been collared? If the conditions of 14B(2)--someone has a past conviction--are all that are met,

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are the police to be allowed to stop someone on that basis only and then be given time to try to gather evidence to satisfy 14B(4)(b)? That is an entirely wrong way of proceeding. Some justice must be brought into this.

If the police have evidence, that is fine. In front of the court, they may succeed in a conviction or they may not. However, if they do not have any evidence, then the person should go free. That should be the end of it. I wish to test the opinion of the House.

11.2 p.m.

On Question, Whether the said amendment (No. 42) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 84.

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