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Lord Lucas: I find the concept fairly extraordinary. As envisaged here, the court will not be in a position to issue a banning order. Therefore, the evidence will presumably not be in place to issue such an order but, none the less, the person concerned could be imprisoned. What level of evidence cannot justify a banning order but can justify keeping someone in

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prison? As I said, this is a hard concept to grasp. Bearing in mind the time necessary to accumulate evidence for a court case, such a person could be in prison for a month. He would not be charged with any offence; indeed, there would be no crime with which to charge him.

The fact that the authorities are considering whether someone should be made the subject of a banning order is sufficient to ensure that he is kept in prison. The banning order largely consists of a promise not to leave the country and that could be extracted from him under the bail conditions in subsection (4). I do see how this power to keep someone in prison is gaining the country much. Moreover, it is damaging civil liberties to quite an extraordinary extent.

Lord Bassam of Brighton: I invite the noble Lord to consider the following proposition. If it is the case that someone is being held under these powers and it is plainly known to the police that he has a string of previous convictions, or has been involved in similar instances, and there is no guarantee that he will attend court, as provided for under the notice, it would be right in those circumstances. I am not saying that this will happen in each and every circumstance; indeed, that is far from the case. However, where there is more than adequate reason to believe that the person might not turn up in court in compliance with the notice, I do not believe that it is at all unreasonable for this facility to exist. There will be circumstances in which that will be the case.

Lord Goodhart: I find it absolutely ridiculous that, on the one hand, the Government continue to insist that this is a civil and not a criminal order and yet, on the other hand, are refusing to allow bail. It is simply unbelievable.

Lord Lucas: I entirely share the noble Lord's views. However, I return to the Minister's proposition. The person concerned has been picked up by the police; he spends 36 hours "in jug" and is kept there until the magistrates' court can convene. The Minister is saying that, at that point, the police can produce evidence that the person has been sufficiently involved in football crime to justify keeping him in gaol but there is not sufficient evidence under the extraordinarily weak tests here to make him the subject of a football banning order. It is unbelievable. The way that the Bill is written at present means that there can be evidence that is sufficiently weak so that it cannot justify a football banning order, but yet is sufficiently strong to enable someone to be imprisoned who is not even charged with a criminal offence.

This is a matter that the Government should re-consider. It seems to me to be a most extraordinary idea. Yes, if it is a criminal offence, you should keep someone in prison who might abscond before the matter comes to court. However, if the Government are saying that the court has to be so certain that the person is likely to commit an offence so that he should not be let out, then those concerned must be able to issue a football banning order. The requirements for it

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are only the civil level of proof. Surely there cannot be circumstances where that process cannot be completed at the end of the 24 hours of custody envisaged under new Section 21B. If the evidence is there at the end of that period, the banning order can be issued. But, if the evidence is not there, the person should be offered bail. I cannot see any middle way between the two, especially not if the Government insist on this being a civil procedure.

Lord Bassam of Brighton: Two points were raised towards the end of the debate. The noble Lord, Lord Goodhart, said that we were refusing to allow bail. We are not. We are saying that the court should have the option of either granting bail or remanding in custody. We are not refusing bail. Perhaps because of the lateness or early nature of the hour, whichever way one wants to put it, I did not make that point plain.

In response to the noble Lord, Lord Lucas, it may well be the case that there is very strong evidence that the respondent may want time to prepare his defence, but that does not meet the point that there may be circumstances where it is right that the respondent needs to be held in custody while the court is convened. I believe that it would only be in extremis situations; we do not see it happening on each and every occasion. That is something which will have to be judged. There may be such circumstances.

Lord Lucas: I find the Government's reply extremely unsatisfactory. It comes back to the matter being a criminal offence in everything except what the Government insist the name should be. In every other matter of stigma, treatment and consequences it is a criminal offence, but the Government insist that it should be a civil offence so they can get away with a civil level of proof. That will not wash under the Human Rights Act. This Bill will fall apart on that. The Government ought to take precautions if they wish this legislation to have a chance of success. They should take precautions that there is at least a chance of the Bill surviving examination under the Human Rights Act, which it will surely receive at a pretty early stage if the Government do such things as imprisoning people on the basis of being not yet ready to proceed with a new Section 14B arraignment in front of magistrates.

It would not amuse the Government Chief Whip for me to call a Division at the moment. I am sure that his troops are not available. I am not sure what would be the consequences for this afternoon's business. We are so near the end that perhaps I should allow him to have his way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 73:


    Page 10, line 23, after ("tournament") insert ("which includes such matches").

On Question, amendment agreed to.

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Lord Bach moved Amendment No. 74:


    Page 10, line 24, at end insert--


("Summary measures: compensation.
21D.--(1) Where a person to whom a notice has been given under section 21B above appears before a magistrates' court and the court refuses the application for a banning order in respect of him, it may order compensation to be paid to him out of central funds if it is satisfied--
(a) that the notice should not have been given,
(b) that he has suffered loss as a result of the giving of the notice, and
(c) that, having regard to all the circumstances, it is appropriate to order the payment of compensation in respect of that loss.
(2) An appeal lies to the Crown Court against any refusal by a magistrates' court to order the payment of compensation under subsection (1) above.
(3) The compensation to be paid by order of the magistrates' court under subsection (1) above or by order of the Crown Court on an appeal under subsection (2) above shall not exceed £5,000 (but no appeal may be made under subsection (2) in respect of the amount of compensation awarded).
(4) If it appears to the Secretary of State that there has been a change in the value of money since the coming into force of this section or, as the case may be, the last occasion when the power conferred by this subsection was exercised, he may by order substitute for the amount specified in subsection (3) above such other amount as appears to him to be justified by the change.
(5) In this section, "central funds" has the same meaning as in enactments providing for the payment of costs.").

The noble Lord said: We now come to compensation. I do not want to say much about it at this time of the morning. We believe that the compensation arrangements are an important part of the Bill and represent a safeguard for those detained. Members of the Committee opposite have had an opportunity to see our Amendment No. 74 on compensation. I shall be inviting them to withdraw their Amendment No. 75. I believe that our amendment is to be preferred because, first, it provides for an appeal against decisions on compensation; secondly, it provides that compensation shall be paid out of central funds and, thirdly, it provides an upper limit of £5,000 for compensation payments. I beg to move.

Lord Cope of Berkeley: As the Minister said, Amendment No. 75 in my name goes to the same point. It reproduces an amendment that was pressed in another place by my colleagues there. The Government amendment is quite satisfactory and probably better in its drafting except that I am not sure why there should be a limit of £5,000 for compensation. Generally speaking, that will cover all the likely expenses. I do not believe that many cases will go above it. I do not see why it should be limited in that way. It is for the court to decide. I am not going to press that particular point at this hour of the night or morning.

Lord Lucas: I should be grateful for clarification from the Minister as to what happens when the police do not press charges. I was clear about that under

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Amendment No. 75, but I do not see where that is picked up in the wording of Amendment No. 74. I shall be very grateful to the noble Lord for pointing it out.


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