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Lord Monson: My Lords, I am sorry to hear what the noble Lord, Lord McNally, has said, because I broadly support Amendment No. 12, as I supported an equivalent amendment that he moved at about 3 o'clock this morning, if my befuddled brain remembers correctly. He says that he is not going to move it, but I understood that it had already been moved. Perhaps I am wrong, but what have we been speaking about for the past few minutes if the amendment has not been moved? If Amendment No. 12 were agreed to today or tomorrow, it would remove many of the objections to Section 14B, although not all of them.
I also accept the less ambitious following amendments, which have been rather curiously grouped with Amendment No. 12. Amendment No. 19, to which the noble Lord, Lord Lucas, has just referred, is slightly preferable to Amendment No. 18, which is the alternative Liberal Democrat amendment. They are both pretty good and it would be better to have one than none at all, but I think that the one tabled by the noble Lord, Lord Lucas, is slightly better. No doubt we shall come to that in due course.
Lord Cope of Berkeley: My Lords, I am marginally less concerned about the detailed wording here as a result of our earlier vote on the sunset provision. My reaction to the amendments will be conditioned to an extent by whether the Government intend to leave Amendment No. 10 in the Bill, or they will seek to reverse it. I would find any indication on that helpful, as might some other noble Lords.
Section 14B has two sets of conditions. The first set, in Subsection (2), refers to the past and the second set, in Subsection (4)(b), refers to the future. In each case, the aim of the amendments is to increase the hurdles by adding words such as "seriously". As we discussed at some length last night, the hurdles are quite low, particularly the first one, relating to past conduct.
It is excellent that such a polite and well behaved House as this should worry about a hurdle that refers to people contributing to insulting behaviour. Because of Standing Order No. 38, we would never do that in this House, although it has emerged in some of our discussions that one or two Members of your Lordships' House seem to have had interesting experiences in their youth that might expose them in that way. The Minister and I had blameless young lives--or at least neither of us has admitted to anything that might cause us to fall at that hurdle.
Lord Lucas: My Lords, I remind my noble friend that there have been some memorable incidents, including one of my noble friends who took a pot shot at a hot air balloon and one of the Minister's noble friends who took a spanner to his wife. These things happen even in this House.
Lord Cope of Berkeley: My Lords, the noble Lords whom I was hinting at were concerned not about their personal cases, but about younger people who might behave in that way. No one assumes that any Member of your Lordships' House will fall foul of any of the provisions. However, that is as may be. We have to address the precise wording.
If one is to pick out one amendment, which is a bit invidious--a little like trying to judge a fancy dress competition, which no elected politician would let himself in for--Amendment No. 14, referring to intent, seems to me to have more significance and more importance.
Primarily I am concerned with the future. It seems to me that the future hurdle is the one that will govern most cases. The court must be satisfied that there are grounds to believe that the banning order will help to prevent violence. The court will have to look at the individual concerned and say, "If we ban him"--or her, but primarily him--"from going to a particular football match there is less likely to be violence at the match". Almost everybody has somewhere in their past, and probably in the past 10 years, fallen foul of the past conditions. Nevertheless, if I have to put my finger on any one amendment, I am more attracted to Amendment No. 14.
Amendment No. 12 would alter fundamentally the condition in Section 14B(2) which must be satisfied before a banning order on complaint may be made against any person. That condition, as the Bill now says, is that the respondent has at any time, whether before or after the commencement of this section, caused or contributed to any violence or disorder in the United Kingdom or elsewhere.
I began to get a little worried when I listened to the noble Lord, Lord Phillips, earlier, as I have a long-spent driving conviction. I was worried that I may fall within the remit of this legislation. However, it was more than 10 years ago and I am probably now a citizen pretty much above suspicion, although not entirely. I was momentarily and fleetingly concerned.
The arguments on both sides have been aired on a number of occasions, and I do not believe that we shall see eye-to-eye on this occasion any more than we have done during previous discussions. None the less, let me briefly restate the Government's case. That is simply that, if we want to solve this problem, it is not enough to restrict the condition, as the noble Lords opposite would, to people who have been convicted of offences involving violence or any other relevant offence. That would potentially leave out larger numbers of people who can be identified from video evidence as having participated in violence or disorder, precisely the group of people whom we would want most to see subjected to banning orders.
On an earlier group of amendments I gave a fairly clear exposition of how the police would seek to use those orders. I believe that the more paranoid ramblings of our deliberations here can be clearly set on one side when one considers the way in which the police seek to exercise their powers.
I do not see that any injustice to those people at all would accrue from their being made subject to banning orders. I believe that the point has been well made. We are talking about football matches; we are not talking about the wholesale restriction of people's freedom to move. I would invite noble Lords to bear in mind that we have accepted that spent convictions will not be taken into account for the purposes of the test in Section 14B(2), nor will behaviour which did not lead to a conviction and which took place more than 10 years previously. Those two concessions were widely welcomed. I believe that, as a result, we have a test which combines fairness with effectiveness, which is what we are trying to achieve. I must, therefore, invite the House not to accept Amendment No. 12.
I turn to Amendments Nos. 13, 14 and 15. These amendments introduce the concepts of "significant" violence, of "intent", and of "serious violence" to the test in Section 14B(2) which underlies the banning order by complaint. We have spent much time discussing the nature of that test, and I have explained
I said that I would look at this matter again and, on doing so, I am not convinced that it would add anything or provide us with a simple and effective procedure. Therefore I cannot invite your Lordships to agree to those amendments.
Amendment No. 18 is not acceptable because it creates a requirement which could only be satisfied if the court had complete foreknowledge. The court cannot know if a banning order will have the desired effect; it can only have "reasonable grounds to believe" that it will. For that reason the amendment does not appear to us to be logical and we cannot advise that it be accepted.
Amendments Nos. 19 and 20 are also interesting in that they try to qualify the power that we are after. Amendment No. 19 would require the courts to have "strong" grounds to believe that a banning order would help to prevent violence and disorder before it made such an order. "Strong" grounds is not a phrase with which I am familiar. As I have said on many occasions, I am not a lawyer, though I live with one. It is not, to my knowledge, a familiar legal concept, at least it is not as familiar as "reasonable".
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for giving way. The fact that a word is not familiar or precedented is not an argument for it not being deployed. On that basis a great deal of this Bill would not have been brought forward.
Lord Bassam of Brighton: We are talking about a term which is common argot within the legal trade. The court would not recognise it as being a familiar tool for judgment, for exercising a discretion or coming to a view. That is the important point. The existing safeguards in the Bill are sufficient to ensure that this additional hurdle is not necessary.
Amendment No. 20 would give the court discretion as to whether or not to impose a banning order, even when there are reasonable grounds to believe that it will help to prevent violence and disorder. It is important that banning orders shall be imposed whenever that condition is met. I cannot see any objection in principle to placing such a requirement on the court. All we are saying is that, if it is right to impose a banning order, then the court shall do so. I cannot suggest that the House accepts that amendment and I therefore invite your Lordships to reject it.
The noble Lord, Lord Lucas, is on familiar territory; this is a familiar theme. He has regaled us with his litany of less-than-serious insults. My concern, as ever, is for the effectiveness of this measure. I have no wish for banning orders to be imposed for trivial behaviour. I have great confidence in the courts. Of course, they have to be satisfied that the banning order will help to prevent violence or disorder in the future. Trivial behaviour will not provide a valid basis for that judgment. I do not believe it should and I do not believe the courts will use it in that way.
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