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Lord Bach: My Lords, I do not think it is necessary. It is quite clear from what I have said and from the whole sense of the Bill--unsatisfactory as it is to some noble Lords--that it will not be for the respondent to prove; it will be for the applicant to prove in this case. The words are not necessary.
Resolved in the negative, and amendment disagreed to accordingly.
For a banning order to be made by the court, the court has to go through a ratiocinatory process. It has to be satisfied that there are reasonable grounds. That means that the court has to know what the reasons are, develop them and decide what they are. It means, presumably, that the court is capable of stating what the reasons are. It has to be satisfied that those reasonable grounds are such as to make it believe that a banning order would help to prevent football violence. That means that the court has gone through the thinking process of not only deciding that it would help to prevent football violence, but also why.
As many noble Lords have said, the Bill represents a significant invasion not only of civil liberties in general but also of well understood tenets of criminal law. Indeed, the rejection of the previous amendment, on which we have just voted, contains a decision that the normal criminal standard of proof should not be used in relation to a provision which may have a significant effect on the liberty of the subject. It is the generally accepted wisdom in relation to the Human Rights Act that all courts will have to give reasons--albeit sometimes very brief reasons--for all decisions. The House will be aware that a considerable amount of training is being carried out in the magistrates' courts up and down the country to explain to justices, who no doubt will do it very well, how they should formulate their reasons and how they should be set out. It is to be presumed that magistrates' chief executives, as they are now called, will devise pro formas similar to those used currently in relation to the Bail Act, which will enable magistrates very simply to set out their reasons.
It is thought by many engaged in human rights law that a court's failure to give reasons to a citizen whose ordinary rights are invaded--for example, his right to hold a passport--will be a breach of the European Convention on Human Rights. There is obviously scope for a challenge to the Act on the grounds of incompatibility with the convention. It would seem
The Earl of Onslow: My Lords, throughout our long debates on the Bill--although it has been only 48 hours, it now feels like an eternity--it appears that the Government that introduced into English law the concept of the European Court of Human Rights will look quite extraordinarily silly if, through this Bill and especially as regards this provision, they are found to be in breach of the European Convention on Human Rights.
As I said on Second Reading, I do not much like the European Convention on Human Rights. I wish that Parliament itself would protect the liberties of Englishmen so that we would have no need of the convention. However, what the noble Lord has pointed out, rather like Pershing arriving on the Somme in 1917--we may all be tired and shell-shocked but he is still fresh; I apologise, not the Somme, Le Chemin des Dames--is new and devastating evidence that this will breach the European Convention on Human Rights.
All I can say to the Government is that Members of this House will have failed in their duty if they do not persuade the Government of this danger. However, the Government are being so obstinate on this point that when--it is not a question of "if" but "when"--they are found to be in default, I believe that it will follow that ministerial resignations must arise out of it. They have been warned time and time again about the dangers of breaching the ECHR with the Bill. They have resisted all advice. Later, someone will have to say, "Oops, I made a mistake and therefore I must go".
At the very least, if the Government accepted the amendment tabled in the name of the noble Lord, Lord Campbell of Alloway, and very ably moved by, I shall call him my noble and learned friend, Lord Pershing, at least that will provide one excuse not to resign.
Earl Russell: My Lords, back in the 1960s, in the University of London, a certain professor became known as the "Ancien Regime". He was once engaged in a tremendous battle with the board of studies about a proposed change in the syllabus. The argument was in danger of getting out of hand. The chairman proposed to postpone the discussion until the following week and asked both sides to submit their reasons in writing. The professor replied, "Reasons? I cannot see that we need to submit reasons. We are defending established practice". That was not a judicial approach to the discovery of the truth.
There are two vital reasons why a court must submit reasons. The first is that that is what separates a judgment based on known and understood rules from a judgment based on prejudice or the mood of the moment. The second is that, unless reasons are produced with which one can join issue, there is no ground on which to base an appeal.
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