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Lord Carlile of Berriew: My Lords, in supporting my noble friend's amendment, perhaps I may ask the Minister a few questions the answers to which may be helpful. First, have chief constables really recognised that this provision, as drafted, releases a new area of arbitrariness into their hands? Do the Government accept that it is very likely that the provision will be used against those who appear eccentric, those who are slightly drunk and scruffily clad, or those who may have rather extreme forms of supporter kit about their bodies? Indeed, the provision is most unlikely to impact against those who, properly clad and cunning in their careful planning, are out to subvert the enjoyment of the rest of us who like to attend good football matches.

My second question goes to the text of the Bill. My noble friend referred to the provision in Schedule 1 which imports into the legislation the right of a magistrates' court to grant compensation if one of these orders has been obtained wrongfully. The Minister will be aware that there are many actions for false arrest and unlawful imprisonment against the police, which are usually brought in the county court these days. They are tried by juries. Claimants have the opportunity to have their claim judged by their peers. It is possible for them to be awarded damages not only for financial loss but also for injury to their feelings and for the fact that they have lost their liberty for a period of time.

The provision in Schedule 1 which relates to compensation appears to allow compensation to be paid only for actual financial loss suffered. Further, it contains no provision whereby a claimant can ask a jury of his or her peers to decide whether this quite extraordinary new power has been exercised on a proper basis. Will the Minister tell the House whether a

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person is to retain his or her right to bring a civil action before a jury in a county court if one of these orders has been obtained wrongly? If they are not to retain that right, even if they lose in the magistrates' court that would constitute a scandalous change in the law depriving the citizen of a valued and long held right.

My first question concerned what has been asked of chief constables in relation to arbitrariness. My third concerns what has been asked of chief constables in relation to the burden of dealing with this provision, which is likely to be used almost always in extremely controversial circumstances likely to lead to dispute and applications for compensation. Do chief constables really want this? Does the ACPO really feel that it needs this? Does it consider that it adds anything to the effective powers already in existence? One has a suspicion that although there may be laudable aims behind the Bill, this is a piece of unnecessary window dressing. I hope that the Minister can answer those questions, especially the one about compensation claims and civil actions.

Lord Goldsmith: My Lords, before the noble Lord sits down, why does he think that new Section 21D, which entitles the magistrates' court to order compensation if satisfied that the person has suffered loss as a result of the giving of the notice, either limits that to actual financial loss or prevents that person from bringing any other claim to which he might be entitled? I hope that the noble Lord will answer that question before he sits down.

Lord Carlile of Berriew: My Lords, the amendment to the provision appears to provide payment of compensation in respect of a loss. If I am wrong about that, I am happy to be corrected. However, the noble Lord did not appear to correct me; he merely asked why I said what I said. I said what I said because I thought that I had read the provision properly. However, the noble Lord is a distinguished lawyer and I am happy to defer to him if he can establish otherwise. What concerns me--this is most important--is that a citizen who may have been the victim of arbitrary action should have recourse not to a magistrates' court, which lives under one set of judicial pressures, but--like every other aggrieved citizen who complains about false imprisonment--to a civil court where there is often a jury and where compensation is at large and unlimited.

4.45 p.m.

Lord Goldsmith: My Lords, I did not take part in the discussion either at Second Reading or Committee stage and for that I apologise. I asked the question of the noble Lord because I could not immediately see why a reference to suffering loss should prevent the magistrates awarding compensation for any loss they thought had been incurred. It is clear that, as a matter of law, courts award compensation for loss of enjoyment, amenity and benefits, for which money can compensate but which is not simply a case of pounds or pence out of one's pocket. As the noble Lord has

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participated in the Bill to such a large extent, I thought that he might have had some reason for interpreting loss in the rather narrower sense which he put forward.

Further, I assumed--that is why I asked the question--that there must be something in the Bill which takes away rights of citizens to bring claims which otherwise they would have. I hoped that, if there were such a provision, he would have drawn it to your Lordships' attention. For those reasons I inquired about the questions which the noble Lord posed.

Lord Carlile of Berriew: My Lords, I am not sure whether I am now intervening in the noble Lord's speech or whether I am replying to an intervention in mine. However, I crave your Lordships' indulgence. With great respect to the noble Lord, I disagree with him on the interpretation of new Section 21D(1)(b). I suggest to your Lordships that it is likely that on judicial review--if that were the appropriate procedure--or in the administration court, as I believe we have to call it now, loss, as described in the provision, would be limited to financial loss. In any event, the figure for loss is capped at £5,000. However, the figure for loss in a county court is not capped at £5,000. As I understand it, county courts frequently award damages of more than £5,000 in actions for false imprisonment. I am not sure what the hourly or daily rate is now, but £5,000 may well be at the lower end of compensation awards in that context. There is plainly an interesting dispute here which the noble Lord and I could more profitably--in the literal sense--have adjudicated elsewhere, were we on opposite sides. But perhaps the Minister can relieve the public of that expense by answering the questions that have been posed.

Lord Cope of Berkeley: My Lords, I believe that we are all agreed--at least those of us who have discussed the Bill for many hours--that the provision which the amendment seeks to knock out is the most controversial in the Bill. It is also apparently regarded by the Government as the most important power in the Bill and the most potent power to address the mischief of British football hooliganism carried out overseas.

As the noble Lord, Lord Goodhart, said, we have discussed the clause both in principle and in detail for a long period. I do not believe that these provisions will be much used in practice for the practical reasons which have emerged in the debate and which emerged in more detail overnight. These include the existence of the compensation provisions. I shall not enter into the legal discussion which has taken place as no doubt we shall return to that when we reach the compensation provision later in our discussions. That is one practical reason. The other--which has also been mentioned--constitutes the difficulties that the measure will pose for the police. As I say, I believe that because of those practical difficulties, these provisions will not be much used in practice. I also strongly believe that the power should only be temporary to give us the opportunity to judge whether in practice the power is important and works--whether the Government are, in effect, right--and whether it is a balanced power with regard to civil liberties.

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I am not minded to deny the Government this power at this stage. We want the Government to be able to tackle British football hooligans who commit offences overseas. We want to do that in the interests of our country and its reputation but also in the interests of football and of ordinary decent fans who wish to attend matches of the character we have discussed. While I doubt whether the power will be as important or as effective as the Government maintain, if they are allowed to try it out for a temporary period we shall be able to judge the truth of their claim and the practical effects of the proposed power.

Lord Phillips of Sudbury: My Lords, perhaps I may add a practical observation to the legal analysis advanced by my noble friend Lord Goodhart. Before doing so, I shall share with your Lordships a certain realisation based on the recent debate between my noble friend Lord Carlile and the noble Lord, Lord Goldsmith. It is a point which has not been discussed hitherto but which has a great deal of substance. I suspect that there are many more such points in the Bill.

I suspect that some noble Lords will not be content with proposed new Section 21A, whatever pragmatic success it might achieve if enacted. There are such profound civil libertarian objections involved--some of which have been voiced this afternoon and many of which were voiced overnight, perhaps most effectively by the noble and learned Lord, Lord Lloyd of Berwick--that we would not accept it at any price.

I do not know whether the noble Lord, Lord Bassam, would like a suspension of business?


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