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The noble Lord said: This is another important amendment. The same point is raised in parts of Amendment No. 53A, which covers a multitude of subjects and needs to be broken down into several amendments.
The amendment arises out of proposed Section 14G, which allows a court making a banning order to impose "additional requirements". Similarly, there is to be a power under proposed new subsection (2B) to Section 19 for an enforcing authority in a notice to require the subject of the order,
The effect of these additional requirements is that if the subject of the order commits a breach he will be guilty of a criminal offence, but there is no indication whatever on the face of the Bill what those requirements may be. We believe that it is wholly inappropriate to give either the courts or the enforcing authority power to impose requirements which have such an effect. This matter should be subject to parliamentary control, preferably by being put on the face of the Bill. If not, at least it requires a statutory instrument that is subject to the affirmative procedure.
It is right that the Delegated Powers and Deregulation Committee did not put any such recommendation in its report. While it is not appropriate to disclose what took place in that committee, I have less hesitation in disclosing what discussions did not take place. The Delegated Powers and Deregulation Committee, like this Committee, had an extremely short time in which to consider the issues raised by the Bill. This matter simply did not come to its attention. I cannot say what decision that committee might have reached had it considered the point. Speaking for myself and not the Delegated Powers and Deregulation Committee, we should insist that these additional requirements are subject to parliamentary control. It is wholly wrong that they should be absolutely at large and in the discretion of the court, and perhaps even the discretion of the enforcing authority. I beg to move.
Lord Lucas: I rise to speak to Amendment No. 52 and to address the other amendments in the group. I should like to return to a subject which we raised in the previous group to which we received no answer. How does somebody who finds himself, quite reasonably, subject to a banning order, which under new Section 14E(3) requires that his passport be surrendered every time one of the relevant matches takes place, deal with the situation where in the middle of the ban he must go abroad to work? At the moment there is no provision to rescind or vary an order under that section and the purpose of Amendment No. 52 is to give the court power to do so.
Remember that this provision does not relate only to British nationals. A German national may be subject to a banning order. If after one year of a 10-year ban he returns to Germany and is still theoretically subject to the order, a criminal penalty can be imposed if he does not surrender his passport every time there is a match abroad involving England. There must be some mechanism whereby the person who is subject to the banning order can agree with the enforcing authority how the requirements are to be varied.
Without at present knowing my way round the Bill, how does the enforcing authority know what is reasonable in relation to any particular individual who has taken employment abroad? How does a person who regularly needs to travel abroad negotiate with the enforcing authority to ensure that the requirements imposed on him are reasonable and fit in with his work or his decision to live abroad? There is no clear explanation on the face of the Bill. It would be extremely helpful if we were told that.
Lord Phillips of Sudbury: My noble friend Lord Goodhart said that he could speak only to the fact that the Delegated Powers and Deregulation Committee overlooked this power. But it is on public record that at Second Reading the noble Lord, Lord Alexander of Weedon, drew particular attention to this extraordinarily unconstrained ability on the part of a court to impose any additional requirement it thinks fit. The anti-social behaviour orders under the Crime and Disorder Act where magistrates' courts have a wide discretion about what to impose by way of such an order are not a good analogy. Those orders come within a much tighter framework: they are preceded by immediate past evidence of anti-social behaviour. The procedure is more rigorous and more down to earth. I share the considerable anxieties on this unconstrained power on the part of the magistrates' courts.
While I listened to my noble friend I considered again the wording of new Section 14G(1). As drafted at present, the provision is impossibly open-ended. It is a generally well understood principle of English law that no one should be punished at will; they should be punished according to rules laid down in advance by Parliament. But here, so far as I can see, Parliament has not laid down any rule whatsoever. Any type of additional requirement could be put in place. A requirement to go for a 21-mile run every day could be put in place. From time to time requirements will be put in place with which people are physically incapable of complying. That leaves them in serious jeopardy. We cannot allow any measure like this to proceed out of a British Parliament. It is quite impossible.
When I listened to the noble Lord, Lord Lucas, I was suddenly reminded of the noble and learned Lord, Lord Bingham of Cornhill, speaking on the Crime (Sentences) Bill in the last Parliament. He said that if you try to abolish discretion in one place the only
The Earl of Onslow: I plead guilty to not doing anything about this aspect. I had failed to realise that not only is there a maximum period--if one has to have punishments maximum periods are essential--there is also a minimum period. In other words, under new Section 14F the maximum period is three years and the minimum two years. It is another lack of discretion to add to that pointed out by the noble Earl, Lord Russell. One adds to that the provision that a banning order may,
Viscount Astor: The noble Earl, Lord Russell, said that an additional requirement might be going for a 21-mile run. I can think of much worse tasks. It might mean attending your Lordships' House for an all-night sitting--a severe punishment.
New Section 14E(2) and (3) requires someone to report initially to a police station in England or Wales and to surrender their passport, then new Section 14(G) refers to "additional requirements". The only logical and sensible additional requirement is for the person to reattend at the police station. Presumably the Government cannot think of anything else. They want the banned person at a police station to prevent them attending a football match.
The noble Lord, Lord Goodhart, seeks in Amendment No. 51 to preclude a court from imposing additional conditions and adding to or waiving conditions already attached to a banning order. The existing measure provides the court with useful flexibility. It would enable the police, for example, to seek a specific condition in respect of a particular person's activities. It is aimed primarily at the domestic
A person currently subject to a domestic ban is prevented from entering a ground but not from travelling to away games or joining up with accomplices to indulge in hooligan behaviour. The police see the facility to add specific conditions as potentially useful in their battle to combat hooliganism. The provision to review the conditions provides a means for either party to seek changes. That additional flexibility is important. It helps both sides of the argument.
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