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The Earl of Onslow: I shall not make further jokes about squatting at this stage. I think that joke has nearly run its course. I may be tempted later, but on this occasion I shall not be tempted further.

What the noble Lord, Lord Mackenzie of Framwellgate, said about the common law powers of arrest was comprehensively demolished by one of my noble and learned friends, who pointed out that that involved an arrest, followed by a charge, followed by conviction or acquittal. This is not the same. That is why the argument produced by the noble Lord, Lord Mackenzie of Framwellgate, at Second Reading was faulty.

Lord Bassam of Brighton: The noble Earl is entitled to his opinion. I believe that the noble Lord, Lord Mackenzie, made an important point.

This proposed new section is important and valuable. I cannot support the notion that it is a low test. The noble Lord, Lord Cope, made quite a good case for this proposed new section; he seemed to think that the test in proposed new Section 14B(2) was a higher test. I agree with him; my reading of it is much the same as his.

Noble Lords are quite entitled to push this point. However, I believe it would considerably undermine the effects of the legislation and that the noble Lords who have moved the amendment understand that. If they are serious about making a contribution to tackle the problem, they will reflect on this matter, withdraw the amendment and not pursue it any further.

Earl Russell: I thank the Minister for that reply. I thank him for trying to be as helpful as he could be

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about the phrase "contributed to". He has narrowed the area of my uncertainty; he has not removed it. Before replying to the amendment, I wonder whether I could ask him to narrow it a little more. I respect his desire not to make any reply about his own case. That is perfectly proper.

Perhaps I could ask him to reply further on the case of Mr Gummer. Mr Gummer happened to be in the wrong place at the wrong time. When he talks about being involved, is he talking about criminal activity; is he talking about being an accessory before or after the fact to criminal activity; or can one be ruled to have contributed to disorder simply by being in the wrong place at the wrong time? That is a question of which the Minister must have had notice. Mr Gummer's speech was, after all, made about a week ago. It is material to what I do tomorrow to know what the answer to that question is. Therefore, if the Minister is able to enlighten me further I should be grateful.

2.15 a.m.

Lord Bassam of Brighton: Famously, I am not a lawyer. I should think that the actions of someone involved in a demonstration would be extremely important; whether they were acting in a disorderly way; whether they were being provocative; whether they were inciting others; whether they were encouraging others to acts of violence; or whether they were intimidating in some way. Those circumstances could be described as contributing to violence or disorder. Mr Gummer was probably the right person in the right place at the right time if he was protesting in the way in which I suspect he was. No doubt he had a good cause as well. I am not entirely convinced with the example the noble Lord, Lord Phillips, raised about Peter Hain. I think that Peter Hain's leadership of the anti-apartheid movement was something of which he was probably rightly proud, and many others were too. It was certainly a noble cause and one which I am sure Members of the Committee will have supported. I do not think that one would necessarily transpose Mr Hain's activities into contributing or making it plain that he would have been a contributor to violence in and around surrounding football matches, certainly in the circumstances in which we envisage this law to operate.

Lord Phillips of Sudbury: I was not seeking to disparage Mr Hain, rather the opposite. I was a strong supporter of his courage then and would be now. This is not unimportant because the Minister constantly refers to violence. This new section deals with disorder and violence. Disorder is defined, I repeat, in a most modest way, as,

    "using threatening, abusive or insulting words or behaviour or disorderly behaviour".

Those demonstrations in the days when Peter Hain was on the barricades were certainly disorderly behaviour within that definition. There are no two ways about it. Therefore, it demonstrates the kind of conduct which is perfectly lawful and yet falls within the new section. That is why the noble Earl, Lord

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Russell, and myself are moving the amendment. As he has already said, we must withdraw it. But I did want to try and put that part of the debate on a proper level.

Lord Woolmer of Leeds: The noble Lord quoted the Hain case. Even if that behaviour was thought to have a degree of disorder about it, that is not itself an action that would actually result in a banning order. It could only result in banning if,

    "the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence and disorder at or in connection with any regulated football matches".

Frankly, the case being made simply does not bear examination. There is no connection between the two. I honestly think that that is a red herring. I am more concerned with people who genuinely have some violence in their background. The authorities will have to be able to choose out of the tens of thousands of people who have a violent background but do not have convictions the few that they will ban. However, I believe that the Hain case is a red herring.

The Earl of Onslow: New Section 14C(3) states:

    "In this Part, 'violence' and 'disorder' are not limited to violence or disorder in connection with football".

Earl Russell: I thank the Minister for doing the best he could about the words "contributed to". He has reduced my anxiety. If he were able to come here tomorrow with explicit legal advice on that point, I would find it even more helpful.

I thank the noble Lord, Lord Woolmer of Leeds, for an extremely helpful and thoughtful contribution. If there is a solution to the points we are debating, it is along the lines that he is thinking that we would be most likely to find it. On the other hand, I am not so sure that the case of Mr Hain is a red herring, though it seems to me that in the event he will personally be protected by the Government's amendment, which I welcome in advance, to introduce the principle of spent convictions. But were someone to have done something like that rather less than 10 years ago, the same principle could still apply. Even granted that Mr Hain is now an extremely respectable citizen, I could imagine certain former Springbok forwards who might regard his presence as being of itself provocative. There is that aspect of the matter to be considered as well.

The biggest problem is not just the question of the standard of proof but that we are being asked for proof of something for which proof cannot possibly be found. In subsection (1) we are asked for proof that something is likely to happen in the future. That is called "bookie's odds". What really worries me is that a court is being asked not to make a finding of fact but to make a bet. We all know that there are a good many rich bookies and there are very few rich punters. As everyone who has tried to make a living out of the study of the form book knows perfectly well, even the best evidence you can collect does not necessarily make a bet justifiable. When you are asking for evidence to prove the validity of a bet, you are asking for something that is by its very nature uncertain. That

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is at the heart of our misgivings about this provision and the Minister's remarks have not altogether removed them. We shall need to return to this matter tomorrow. But what happens when we do will depend a good deal further on what advice the Minister has received. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 23:

    Page 5, leave out line 32.

The noble Lord said: In moving this amendment I should like to speak also to Amendments Nos. 46 and 48. These amendments are brought forward in response to an amendment put down at Report stage in another place by the right honourable Sir Nicholas Lyell. Concerns were raised in another place about the prospect of the court taking account of spent convictions or of conduct which was many years in the past. Convictions which are spent under the Rehabilitation of Offenders Act 1974 will not be admissible in proceedings by complaint because they are civil proceedings. That is the effect of Section 4(1) of the Act. The Government accept that it would not be right to take into account conduct which took place more than 10 years before the application unless that conduct led to a conviction which is not spent. That is the combined effect of the amendments. I commend them to the Committee. I say in passing that the two examples--perhaps even the three examples--that were given in the preceding interesting but long debate were quite irrelevant. I beg to move.

Lord Cope of Berkeley: I think of this grouping as the "Gummer protection amendments", although perhaps they could equally be described as the "Hain protection amendments". They should appeal to all parties. They certainly appeal to me.

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