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Lord Mackenzie of Framwellgate: My Lords, I thank the noble Lord for giving way. Having listened to him, I ask, "How would you deal with the problem?".

Lord Phillips of Sudbury: My Lords, if the good Lord is patient, I shall come to that. The haste with which the Government are seeking to bring the Bill into force is not only unseemly but likely to prove counterproductive, particularly on the back of all that legislation. We know full well that the social virus with which we are dealing is resistant to most of the legal antibiotics thrown against it thus far.

It is one thing to rush through the Terrorism Bill in the wake of the appalling IRA carnage a few years ago. However--and without in any way belittling the offensiveness of the thrown plastic chairs and punches--of the 965 arrests in Holland and Belgium there were only four prosecutions. They occurred in Holland for ticket touting offences and in Belgium for assaulting a policeman.

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Those statistics were given by Jack Straw and they are a measure of the degree of disorder and violence the recent Euro 2000 events involved. I believe that had they involved serious violence rather than the more dramatic sights replayed on our television screens ad nauseam there would have been more prosecutions than two. As others have said, this could be another piece of mad dogs legislation and we must avoid that.

I turn to the issue of principle touched upon by the noble Lord, Lord Alexander of Weedon, and others. I refer to the old, tried, bedrock standard of proof required for a criminal offence; that is, beyond reasonable doubt. The nature of the offence and the penalties attaching to a banning order are of a criminal kind. It will be of no solace to someone wrongly the subject of a banning order to be told, "Don't worry, old chap, it's a civil offence after all". It is fundamental that the Government, in seeking to find easier ways of dealing with a real social menace, are not encouraged to recategorise what is a criminal matter by calling it "civil". That would be profoundly dangerous.

The Government lull us with the assurance that there is nothing new here and they say that the Crime and Disorder Act 1998 was a good precedent. That Bill was fiercely opposed in this House by Members on these and other Benches and by Liberty, the Howard League for Penal Reform and other organisations. But apart from that, the analogy is false. Perhaps I may read what the then Solicitor-General, the noble and learned Lord, Lord Falconer of Thoroton, said in a debate in this House on 17th March 1998 in response to the very concerns that have been expressed today. He said:


    "The application for an [anti-social behaviour] order can be made only after consultation between the local authority and the police authority".

Under this Bill there is no consultation because local authorities have no role to play. The police act on their own volition.

The Solicitor-General went on to say that once the local authority and police have consulted and decided to make an anti-social behaviour order application,

"there is a discretion on the part of the magistrates' court as to whether or not it makes an order". In this Bill there is no such discretion. Under new Section 14B(4), the court must make a binding order if the other factors are established.

Finally, the noble and learned Lord, Lord Falconer, gave a third assurance on fundamentals by saying that there is a specific provision in the Bill which requires the magistrates, upon application for an order being made, to disregard any act of the defendant,


    "which they regard as being reasonable in the circumstances".--[Official Report, 17/3/98; col.583.]

No such defence is available in the Bill.

There is a fourth fundamental difference between the anti-social behaviour orders under the 1998 Act and this Bill; namely, under the 1998 Act the application for such an order must be in respect of recent specific, relevant anti-social conduct. The magistrates in those cases can make their judgments only on the basis of recent relevant, specific evidence.

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However, under this Bill not merely can the application for a banning order be based upon any conduct, related or not, which is claimed caused or contributed to any violence or disorder in the United Kingdom or elsewhere, but it can be in respect of events which took place long before the commencement of this new Bill. That is expressly prohibited under the 1998 Act.

My next objection is also one of principle. It is that the new law would involve a form of double jeopardy or, worse still, punishment inflicted in respect of past lawful conduct. As regards the double jeopardy point, under the existing Football (Offences and Disorder) Act, a banning order can be made only on the back of a football-related conviction and at the time the person concerned is convicted. The person concerned will be dealt with by the magistrates "at one go", so to speak. The magistrate will decide upon fine or imprisonment, taking into account the additional punishment to be suffered by the person as a result of the banning order.

Under this Bill that will not occur. The offence, if there be an offence, on the basis of which the police apply for an order, will be long ago resolved. This will be a new, completely separate punishment in circumstances in which there may have been absolutely no activity by way of unlawfulness, violence or disorder on the part of the person concerned. Nothing at all may have happened between the occasion on which the application is built and the time of the application itself.

I believe that the injustice speaks for itself in the second--and, I believe, the worst--case, where someone is given a banning order under new Section 14B for conduct in respect of which he or she has never been charged and which might not even have been unlawful. At least the Public Order Act 1986--the key piece of legislation in this country which governs offences of this kind, covering riot, affray, violent disorder, harassment, alarm and so on--offers two protections against injustice which this Bill does not.

The first protection is that if someone is charged under the Public Order Act, where, of course, there will be a criminal standard of proof, he or she can produce a defence of "reasonable conduct", which may be self-defence or a case of provocation. However, under this Bill the court must be satisfied only,


    "that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder".

Of course, it must be remembered that violence can be against property and disorder can be of the most banal kind--a gesture, sign or word. As I have already said, in addition to that, the standard of proof under this Bill is civil rather than criminal. What is more, the accused--euphemistically, I note, in this Bill called "the respondent"--does not need to have any mens rea or intent. Again, that is an essential element of a conviction under the Public Order Act.

Other noble Lords have spoken of the particular offensiveness of new Section 21. I do not propose to enlarge upon that except to say that I agree entirely with that view. I note that, when in opposition, Labour

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launched a sustained and vehement assault on the old stop-and-search laws which were repealed, as the noble Lord, Lord Alexander, mentioned.

There might be a pragmatic justification if one felt that all this flimsy scaffolding of illibertarianism were likely to prove effective. But how can one seriously believe that? As the Home Secretary himself pointed out, huge resources were deployed before Euro 2000, particularly in the form of the National Criminal Intelligence Service. Yet, of the 965 arrests, only 30 were among the 1,000 or so football hooligans previously identified by FCIS. I repeat: only 30; and only four prosecutions. That should tell us everything.

I believe that one way in which to deal with this dilemma would be to legislate for extraterritoriality of the existing laws under the Public Order Act. That would allow offences committed at football matches or in relation to football matches abroad to be tried in this country under our own laws, under our traditional protections and under our traditional requirements as to standards of proof. I believe that that would be an infinitely better, easier, cheaper and more successful way in which to contend with these awful problems.

I believe that obtaining the necessary evidence would not be as difficult as it sounds. We are already sending hundreds, if not thousands, of police to the Continent on these great occasions to try to help, in the case of Euro 2000, Belgian or Dutch police to do their work. One could produce video evidence or, if necessary, ask for the co-operation of Belgian and Dutch police in coming across to give evidence in our courts. I believe that that would be vastly better in all respects.

For those reasons, regretfully I believe that the Bill is a danger to the standards upon which the whole of our law--not only our criminal law--is built. I do not believe that the circumstances with which we are contending give any hope that what the Government assume will follow as a result of this complicated law will work. I think of the police and of the magistrates who will have to implement the new law; I think of the reservations of the Police Federation, whatever the chiefs of police may say; and I believe that, above all, and perhaps beneath all, the danger of false convictions arising from this Bill would be a greater destroyer of public confidence in the law and, ultimately therefore, of public order than anything else. For those reasons--there are others which time prevents me from enlarging upon--I am afraid that I would throw this measure to the wolves.

7.15 p.m.

Lord Monson: My Lords, I have no present interest to declare, although for a few years in the 1960s I had the honour to be president of Lincoln City Football Club. Unfortunately, during my short period of office the club was relegated from the Second to the Third Division and then from the Third to the Fourth Division. That had nothing to do with me directly as I had no executive or even advisory powers. However, clearly I must have brought bad luck upon the club.

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It may interest your Lordships to learn that one of the chief complaints of directors at home fixtures, as we knocked back our double whiskys at half time, accompanied of course by plenty of unfiltered high-tar cigarettes, was the iniquity of having to pay the players fully £20 per week which in those days was considered an obscenely excessive sum for a football player.

I turn to more serious matters. Like many other noble Lords, although not of course the noble Lord, Lord Mackenzie, I agree wholeheartedly with the Law Society in deploring the rushing through of,


    "a measure which rides roughshod over the rights of unconvicted people".

I shall gladly join other noble Lords at later stages of the Bill in attempting to restore the rights of unconvicted people.

I have reservations about some other aspects of the Bill. Incidentally, it is somewhat ironical that, had we subscribed to the Schengen agreement, as many Europhiles urged the Government to do, Clause 1(1)(c) which may require,


    "persons subject to banning orders to surrender their passports",

would have been totally ineffectual since hooligans and potential hooligans could have travelled abroad using other identity documents which realistically could not be removed from them.

It is true that Germany, although within the Schengen area, recently stopped suspected troublemakers from crossing their borders at manned border crossings, but of course not all border crossings are manned. Apparently, Germany indignantly has demanded to know why the United Kingdom has not behaved likewise. Much as I genuinely admire a great many things about modern Germany, I do not believe that we need take lessons from the Germans in matters of law or individual freedom.

We should remind ourselves of two things. The first is that good news is no news. Most English fans are perfectly well behaved, even if sometimes they are unjustly lumped in with the aggressive minority. However, that good behaviour goes unreported. Moreover, the media--both domestic and foreign--often stir up trouble, not out of malice but because of desperation for a good story.

Secondly, football violence is by no means an exclusively English problem. Whether or not inspired by the English example, other countries are catching up fast, notably, but not exclusively, Germany, the Netherlands and, of course, Turkey. The growing reality of redundant but vigorous young males--redundant in many senses of the word; not only in terms of jobs--soon will be a Europe-wide problem. Crises that stem largely from long-term social trends cannot be cured by a quick fix, least of all one that tramples on British traditions of justice and fair play.

Although the legislation of the previous administration rarely extended as far as what is now proposed, the noble Lord, Lord Cope, more or less acknowledged that they did not set the best example with their many instances of tabloid-driven panic

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legislation. I do not mean only the Dangerous Dogs Act, which has perhaps been excessively pilloried, given the many other examples.

As the noble Lord, Lord Mackenzie, said, it is incumbent on those who criticise the Government to say what they would do to solve the problem. I doubt that it can ever be solved, but I hope that it can be ameliorated. I have two modest suggestions. First, some municipalities in the Low Countries experimented earlier this year with banning the sale of strong alcohol before and during matches. As the noble Lord, Lord McNally, said, only beer or lager containing under 4 per cent alcohol by volume was allowed. That seems to have been remarkably successful in curbing violence. Could not the United Kingdom Government, ideally in conjunction with other European governments, publicly and lavishly praise the cities in question, thereby encouraging the remainder to follow suit?

Secondly, one can well understand the reluctance of continental taxpayers to shell out for the board and lodging of convicted British hooligans. That explains the general reluctance of continental prosecuting authorities to prosecute. They would prefer to ship them home unconvicted after a night in the cells. The Minister and the noble Lord, Lord Tebbit, both made that point. However, I believe that international agreements are already in place to permit prisoners to serve their sentences in their own country. Could not Her Majesty's Government publicly announce that they would automatically pay for the repatriation within one week of those fairly convicted of football-related offences on the continent? That should lead to more prosecutions and would be an enhanced deterrent, since those convicted would serve out their time in spartan English prisons rather than the comfortable ones to be found in Holland and elsewhere.

Even at this late hour, cannot the Government consider abandoning the more illiberal elements of the Bill in favour of less drastic alternatives?

7.22 p.m.

Lord Mayhew of Twysden: My Lords, the noble Lord, Lord Tebbit, said that he had experienced football hooliganism as long ago as 1953, when he had gone to a match between Hibs and Hearts. I congratulated myself privately that I knew which teams he was referring to. The research department of the Library in another place has established that legislative attempts to deal with the problem of football hooliganism go back at least to the time of Edward II. More recently, since 1985, Parliament has passed eight Acts on the subject.

The cumulative effect of all that legislative endeavour has not been sufficient. I am sure that we all hope that the Bill will prove more successful, but it is not necessarily unconstructive to express some doubts. The origins of what we have called football hooliganism are far more diverse and complex than a mere mischievous desire to exploit loopholes in the law that prohibit violence. They certainly extend to the cult

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in the entertainment media of exulting in and exalting physical violence and crudeness in any and every form of human behaviour. That is served up non-stop, night after night in entertainment programmes. I believe that that trend has played a large part in the creation of the cult of violence and crudity that affects and afflicts a significant proportion of young and not so young people in our country--though not all of them. If any right reverend prelate had been present to add to that analysis by referring to the doctrine of original sin, I would not have quarrelled. Unfortunately, notwithstanding their efforts the other day, there are no right reverend prelates assisting us in our deliberations this afternoon.

I am sufficiently tainted by the experience--perhaps even the scars--of office to believe that it was a practical political imperative for the Government to make some legislative response in the light of the hideous events in Charleroi and Brussels that many of us observed on our screens earlier this year. The problem for the Government is to find an idea that has not been tried already that is not so harsh in its application as to be counterproductive by catching too many people who are innocent in record and intent. If the Government go too far and legislate excessively harshly, they will build up resentment against the agencies of the law--the magistracy and the police--and even against the law itself, when maintaining confidence in those institutions is essential if we are to sustain the rule of law in this country. If significant numbers of innocent people are caught in the unduly fine mesh of the legislation, there will be resentment against the police, who will face obloquy and litigation. That is an unfair burden to put on them. Even more importantly, it is damaging.

I always listen with the greatest attention and respect to the contributions of the noble Lord, Lord Mackenzie of Framwellgate, given his long experience in the police service, which culminated in senior office. I also read the letter that he wrote to The Times the other day. However, his comparison between the proposals in the Bill and the ancient jurisdiction to bind over on suspicion of a breach of the peace was devastatingly demolished by the noble Lord, Lord Phillips of Sudbury.

If anything extra needs to be said, it is enough to point out that if a court is satisfied that the tests set out in new Sections 14A and 14B are fulfilled, it will be mandatory to make a banning order, which will last for a minimum of three years and may last for five years. What is more, under the detention measures in new Sections 21A and 21B, if a police officer who has decided to serve a notice of complaint asking for a banning order thinks that the respondent--that is a polite term for the person whom one might call the victim, or the citizen, to use a neutral label--may not comply with the terms of the order, he is entitled to arrest him. So I think that we have here a very significant infringement of personal liberties indeed.

It may be that the problem is so great that this infringement is justified. I think that it really is incumbent upon Ministers to know what standard of

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proof is going to be imposed upon magistrates, who have a most important contribution to make. Indeed, we have had just such a contribution from my noble friend, who has sat for long as a magistrate. It is important to know, if this is to be put upon the statute book, what standard of proof is required. I trust that we are going to find in the government amendments that have been promised some specific legislation making that clear. With great respect, I very much agree with my noble friend Lord Alexander, who said that this jurisdiction is at least quasi-criminal in its character. I would go further and say that it is criminal in character because you have only to look at the sanctions and their punitive nature to see evidence of this. That calls for a very high standard of proof: I would say that it calls for a beyond reasonable doubt standard of proof.

So much has been said today with which I agree that, mercifully, it curtails any excuse that I may have for making a longer speech. I would just end by saying this. Funnily enough, it reflects on one of the concluding remarks of my noble friend Lord Tebbit. We have to recognise that we are fighting a war against the scourge of football hooliganism. I think it might be said that we are fighting a war, without indulging in hyperbole. But let us not forget a famous case in the last world war. It was a case in which one of the Law Lords said in his judgment that amid the clash of arms the laws are not silent. It is true that the majority of his colleagues were against him. It was a case under Regulation 18(B) of the Defence Regulations 1939, but the only speech that is recalled with admiration and cited with the greatest of respect today of the speeches that were made in that case is the speech of the learned Lord who said those words. We ought to bear that case and that principle very well in mind.

I also believe that in the context of what we are discussing today we can transpose for the laws the principles of liberty. Notwithstanding the difficulties that we face and notwithstanding that there is a "sunset" clause now to be inserted into the Bill, I believe that the preservation of the principles of liberty is just as important in this "war" as it was held to be by Lord Atkin in the famous case to which I have referred in 1943. Whether it be under Regulation 18(B) or the new Section 14B, those principles need to be applied just as scrupulously and resolutely. That is the standpoint from which I hope this House will view the remaining stages of this Bill, and look at it in great detail.


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