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Lord Bach: My Lords, I have suffered a little trepidation about replying to this debate. I sighed with some relief when I heard that the eminent QC, the noble Lord, Lord Campbell of Alloway, would not move the amendment, only to find that it would be the equally eminent noble Lord, Lord Carlile, who would move it. Now, I am even more frightened, because the noble Earl, Lord Onslow, started talking about ministerial resignations! This looked on the face of it not to be the most major of the amendments in the Bill, but we shall have to see how we go.
The amendment is one on which we had a valuable discussion only some 24 hours ago. Its effect would be to impose an explicit requirement on the court to deliver a reasoned judgment in open court whenever it grants or refuses an application for a banning order under the new civil complaints procedure.
The Government would not dream of opposing this amendment if we had any doubt whatever that the effects sought would be achieved anyway. The common law has evolved, as the noble Lord knows much better than I, in such a way that it is now accepted as good practice that courts should indeed deliver such reasoned judgments without any explicit obligation to do so being imposed upon them. That expectation can only be strengthened, as the noble Lord said in moving the amendment, by the implementation of the Human Rights Act, with which the noble Earl seems to have such a love-hate relationship. Implementation of the Act is now just a few weeks away. Indeed, we shall be back here before it is implemented, but only because the House is returning before the end of September.
There is argument that says that there would perhaps be some mischief in creating a statutory requirement here to give a reasoned judgment which applied only to this one procedure. It could have the effect of weakening by implication the need to produce reasoned judgments in other types of case where no such explicit requirement exists in legislation. It is on that basis, with considerable sympathy for the idea behind the amendment, that I ask the noble Lord not to press it.
Lord Carlile of Berriew: My Lords, one is bound to reflect that this Government and indeed their predecessor have been far from reluctant to impose explicit requirements on the courts when the courts neither want nor need them. I refer, for example, to the imposition of minimum sentences some of which have led to manifest injustices.
As to the noble Lord's point on the danger of including an explicit requirement in the Bill, I simply do not agree with him. There is a clear requirement that courts will give reasons in future. There is no
However, the words spoken by the noble Lord, Lord Bach, will be carefully noted, copied, transmitted, circulated and disseminated around the land. The principle, the doctrine of Pepper v Hart, will be invoked wherever there is thought to be any ambiguity and courts around England and Wales will know, for his Lordship has said so, that they must give reasons when they make banning orders under this legislation. Reassured by that--I am reassured by it, and I mean that--I beg leave to withdraw the amendment.
I apologise to the noble Lord for not attempting to deal with this matter earlier, but we have taken this Bill, not at a hand gallop but at a rushed gallop. It struck me only in the early hours of this morning that it seemed unnecessary to have minimum sentences--they are sentences, and there is no other word for it.
Noble Lords opposite have argued consistently that the courts should have discretion on the basis that they can be trusted. I suggest that the courts should have the discretion set out in my amendments, because there are bound to be cases in which it is manifestly unfair to make the minimum banning order when a shorter one will do. I believe that this is a perfectly reasonable amendment. Every amendment that I have regarded as reasonable others have considered to be unreasonable. I beg to move.
Earl Russell: My Lords, the noble Earl is aware that I support these amendments. He will forgive me if I do not repeat the reasons. I should like to pick up the reference to the European Convention on Human Rights. The mere fact that the noble Earl needs to table these amendments shows why that convention is necessary. It would be much nicer if Parliament protected our liberties. Surely, the noble Earl agrees that if this Bill reaches the statute book Parliament has failed.
Lord Bach: My Lords, the noble Earl has no reason to apologise for tabling the amendments this evening. He raised the issue when it struck him yesterday and, quite properly, tabled these amendments for debate this evening. However, I cannot accept them, and I shall try to explain why. The amendments remove the minimum periods for which football banning orders may be imposed. The concept of minimum sentences is not in any way unknown to English law. I refer noble
While it is perhaps often a good thing--the word written here is "efficacious"--to impose a short prison sentence of a month or less, frankly, to prevent somebody from attending football matches for such a short period would not make a great deal of difference. We believe that the provisions as they stand send the right message to the courts and, through them, to football hooligans. If a banning order is made in their case they will not be able to go to football matches for some time. We are reluctant to invite noble Lords to change these times. There is nothing in the provision of minimum sentences or measures that is in any way against the English common law or the protection of the individual. I am aware that in this Bill the noble Earl believes that there are matters which offend his sense of liberty, but this is not one of them.
The Earl of Onslow: My Lords, I thank the noble Lord for taking considerable trouble, at fairly short notice, to deal with this matter. Having listened to the noble Lord, I suppose that I must accept his reasons. At one stage the minimum sentence for murder was death. One of my forbears forgot to hand in a reprieve to Oxford gaol and the individual was hanged by mistake. I suppose that that is not a very good precedent for cherishing English liberties as much as I do. I thank the noble Lord for the care that he took in his response, although I regret it. I also thank my noble kinsman, or former co-pupil, Lord Russell, for saying exactly what I feel about ECHR. Unfortunately, that convention has become necessary because Parliament has failed to do its job. With that low whinge, I beg leave to withdraw the amendment.
The noble Lord said: My Lords, in moving the amendment--it is merely a paving amendment--I speak also to Amendment No. 32, the substantive amendment. Amendment No. 32 proposes to leave out new subsections (2C) and (2D) of Section 19. For completeness, the amendment should also leave out the last two lines of new subsection (2B) and the whole of new Section 14G. As has happened all too often owing to the extreme speed with which amendments had to be put down and then put down again, those parts were omitted.
The problem is this. These are powers of the court on the one hand or of the enforcing authority on the other to impose additional requirements; and breach of those requirements will be a criminal offence which can attract a criminal penalty. But there are no guidelines as to what those additional requirements may be: there is no limit to them; and there is no parliamentary procedure.
In Committee the Minister suggested that, for instance, in the case of a home match there might be an additional requirement on the subject of the banning order to stay away not only from the football ground but also from a station which was used by visiting fans. I understand the justification for that and I should be entirely happy for that kind of additional requirement to be imposed. However, there are no criteria in the statute, no limits and no parliamentary procedures. It would be perfectly possible to impose the kind of additional requirements that one might find a great deal less attractive. For instance, the additional requirement could in effect impose house arrest by requiring the subject of the order to stay at home throughout the 24 hours of the day of the match except for reporting to the police station and going straight home again.
It is conceivable that there could be a requirement to wear an electronic tag. It seems to me that these matters go far beyond the sort of thing that ought to be done without the authority of Parliament. Not only does the Act lay down no criteria itself, it does not even provide for these matters to be dealt with by regulation. As I made clear yesterday, these matters were not dealt with by the Delegated Powers and Deregulation Committee. Because of the very great speed in which we acted, we did not realise that these powers were tucked away in the schedule. Speaking for myself and, I believe, for the noble Lord, Lord Alexander of Weedon, because he said the same a few days ago, the Committee might well have decided that these were matters which needed at the very least additional requirements to be authorised by secondary legislation and probably by an affirmative order.
In effect, these provisions are the power to create new criminal legislation. Traditionally, that is something that cannot be done except by Parliament and parliamentary procedure. I believe that these provisions are seriously wrong and defective. They do not provide for any kind of parliamentary procedure. I beg to move.
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