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Lord Phillips of Sudbury: I hesitate to add to this already long debate on the first amendment. We may be here until a very late hour this morning. However, I believe that there is a misunderstanding in relation to the tests. Of course, the noble Lord, Lord Borrie, is right in saying that under new Section 14A there must be criminal proof beyond reasonable doubt before one reaches the second hurdle of civil proof under which one must be,


However, one must consider both tests together in each section in order to make sense of them. In new Section 14A there is a criminal test followed by a civil test; in new Section 14B there is a civil test followed by a civil test. The trouble with new Section 14B, as was said many times at Second Reading and as will be said many times tonight, is that the double test in new Section 14B--the civil test and the civil test--is simply inadequate to protect the citizen, particularly when in new Section 14B(2), to which the noble Lord, Lord Bassam, referred, that hurdle is pathetically low. It is simply that,


    "the respondent ... at any time ... contributed to ... disorder".

Disorder is defined in the feeblest of ways and does not involve anything more than word or gesture. Therefore, I believe that there is a major difference in the tests when the two are considered together.

Lord Bassam of Brighton: I cannot accept that the test of disorder is feeble. I believe that words, gestures and actions provide a clear basis on which to form an opinion of someone's intent. I am surprised that the noble Lord makes the point in the way that he does.

Lord Phillips of Sudbury: First, no intent is provided for, although one of the amendments will provide it and it should be on the face of the Bill. However, "disorder" is defined as any insulting word, behaviour

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or sign. If the noble Lord, Lord Bassam, pretends that at no point in his early adult career was he guilty of an abusive gesture or insulting word, he is much more puritanical than I take him to be. I can certainly hold my hand up to a thousand insulting and abusive words, gestures, signs or placards, and any student demonstration will provide thousands who fall into that category. He really should not continue to say, and I cannot believe that he considers, that the tests under new Section 14B(2) are anything but derisorily low.

Lord Lyell: Perhaps I may intervene before the Minister attempts to answer what I believe to be a strong case put forward by the noble Lord, Lord Phillips. He is, after all, likely to appear on one side or another in the courts, eloquent as he is. I am pleased to see the noble Lord, Lord Mackenzie of Framwellgate. I believe that the Minister heard me say at an earlier stage that I had done things for which I must hold up my hand. However, at a game, I might make a gesture suggesting that the referee needed new glasses, with no intention of causing any sort of disorder. A word from a steward, or even from a constable, rising up to a police officer of the--if I can call it such--stature of the noble Lord, Lord Mackenzie, would be enough to deal with the situation. We are not talking about a calm evening such as this in your Lordships' House. People at a football game do not behave as one might tonight, let alone as one might at a symphony concert.

I understand what might be in the Minister's mind when he talks about abusive chanting or racial activity. However, if he is concerned about racial comments, he might wait until one of the great Glasgow clubs comes south and hear some of the songs that are sung.

I agree to a great extent with the noble Lord, Lord Phillips. I hope that at some stage--perhaps even at many stages--during the evening we shall hear the marvellous wisdom of the noble Lord, Lord Mackenzie, who must have had to deal with many of the practical issues that we are talking about tonight. No doubt he will be able to give us much practical help. I ask the Minister to bear in mind that people can say and do things at a football game with no intent to cause disorder. One tiny gesture with no intent can easily be dealt with by a steward and, in extremis, by a police officer.

Lord Goodhart: The debate has ranged rather wider than this narrow amendment. The noble Lord, Lord Borrie, asked why there was what he perceived as an inconsistency between our treatment of banning orders made under Section 14A and those made under Section 14B. The noble Lord, Lord Cope, explained why there was a legitimate difference. However, I should like to add a little more.

When someone is convicted of an offence involving football hooliganism, it would be legitimate for the Government to authorise a court to impose a ban on the accused going to a football match for a year or two years, regardless of whether there was any evidence that they were likely to offend again. After all, banning

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orders can be enforced on people convicted of careless or dangerous driving without any evidence that they are likely to reoffend. The Government have provided for a low standard of proof, but one could say that at least that is better than nothing, which would be legitimate.

The situation under Section 14B is different, because in that case the court is not imposing a further punishment for a previous conviction, let alone imposing a punishment for something that has not led to a conviction in the past. The foresight of what is likely to happen is an essential element in making the order. We propose that the court should be satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence. If there was reckoned to be a one in three chance that an order might help, that might be considered reasonable grounds. However, that would not satisfy the civil standard of proof, which requires that there should be a probability. If there was a two in three chance that making an order would help, that would satisfy the civil standard, but not the criminal standard. So it seems to me that the words "reasonable cause to believe" in Section 14B(3) set too low a standard of evidence required for the making of the order. That is why I moved this particular amendment.

Having heard the arguments--

9.30 p.m.

Lord Lucas: Before the noble Lord withdraws his amendment, if that is what he is about to do, I should like the opportunity to complete my arguments on this matter, having been so stimulated by what he has said.

Indeed, the Government should admit the facts of what is in the Bill. The new Section 14B(4)(b) condition is not subject to the civil standard of proof, as the noble Lord, Lord Goodhart, said. It is very much a sub-civil standard of proof. It exposes someone to what is, to all intents and purposes, a criminal penalty on the basis of an extremely loose definition of disorder, which includes using insulting words. All I need to say is, "Get lost, Lord Bassam", and I cannot go to a football match again.

I do not know whether the noble Lord, Lord Bassam, has ever been involved in an argument with a policeman or a traffic warden. Such an argument can become quite heated and you can find yourself having your words recorded. I am sure that I have been recorded as having insulted a policeman in the heat of the moment. It is a very little thing, arguing about whether you have or have not driven in a way that you should not have driven. It is extremely easy to disagree forcefully with the policeman who has stopped you, even though it may be considered unwise to do so. That will be recorded in the files and for ever afterwards, on the basis of that, under this Bill, anybody who has done that is recorded as having committed a new Section 14B(2) offence.

This measure provides a sub-civil standard of proof in subsection (4)(b) where anything reasonable enables the making of a banning order. That is a very light

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basis to apply to a matter which is a criminal offence. It may be argued that that is not so in technical terms but that is its practical effect.

The noble Lord has received a copy of the opinion which has been sought by Justice on the European Court of Human Rights aspects of the Bill. It is quite clear from that, in its discussion in paragraph 48, that it regards Article 6 as being quite definite in its application to this Bill in saying that this will be regarded, for European human rights purposes, as being a criminal proceeding. Therefore, for the purposes of the Human Rights Act, as we are about to have it in law, the standard of proof set out in new Section 14B for a person who is not a criminal will be wide of the mark and will not hold up under the Human Rights Act. That opinion must be taken seriously as the facts as presented to us by the Government, as opposed to the words which they stick to in the Bill, support that at every turn.

The Government should realise the bargain which they have struck with this House when it agreed to take this Bill through in the way that has been agreed. As a House, we have agreed that the Government will have their legislation. That must be on the basis of the Government co-operating, understanding and being responsive to the extreme difficulties which we find with some aspects of the Bill.

We must deliver a Bill which is acceptable in a very short time. It will be extremely difficult, indeed very time-consuming, if the Minister just sits there with his sheet of paper saying "Resist" and is not constructive and imaginative in his replies. We have very little time to deal with the Bill. I hope that the noble Lord and his advisers may take the time between now and when we return to this subject on later amendments to consider how they can respond positively to the points which have been made. Otherwise, they will find themselves stuck with wording in the Bill that they do not like as a result of amendments tabled at Report stage. Surely it is better that something is agreed now, that we have a constructive discussion and that the noble Lord realises the reality of the points that are made to him, rather than trying to pretend that they do not exist.


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