Rt Hon Lord Lilley

    Mr. Peter Lilley (Hitchin and Harpenden): Thank you, Mr. Deputy Speaker, for giving me the chance to contribute to the debate.

    These debates are normally dominated by lawyers and football fans. Indeed, the hon. Member for Watford (Ms Ward) pleaded guilty to both offences. I, however, speak simply as a humble parliamentarian and libertarian who believes that it is our duty to oppose bad law and to defend our liberties.

    I have noticed over the years that when five factors combine, the invariable result is bad law. The first factor is a demand that something must be done, usually by those who have no specific idea in mind of what can be done to solve the problem. The second is undue, and usually unnecessary, haste about the legislation. The third is Front-Bench collusion, particularly if it is designed to suppress activity on the Back Benches. The fourth is an orgy of sanctimonious vilification of an unpopular minority group, and the fifth is a Government with no firm commitment to the principles that have upheld our liberties in the past. All those factors apply to the Bill; they account for its being so bad.

    First, there was the demand that something be done. In the past, that demand tended to be limited to matters that fell under the jurisdiction of the Government who were being urged to deal with them. With the advent of television, however, Governments are required to do something about events that people observe on their screens–even though they occur abroad. Recently, we fought a war largely because the Government were urged to do something about matters in Kosovo that people saw on television.

    The Home Secretary proposes that, to prevent unruly behaviour abroad, we should introduce measures that are more severe than those deemed necessary to constrain similar behaviour in our own country. The maintenance of law and order in Belgium, France or Germany is primarily a matter for the Belgian, French or German Governments. They should arrest, charge and–through their courts–convict anybody who breaches their laws and disrupts the peace of their country. If need be, they should take preventive action to avoid the offences occurring in the first place. If it is in their legal tradition, they should exclude from their country people whom they fear may disrupt the peace.

    The British Government should co-operate with foreign Governments–in so far as that is compatible with the liberties of our citizens–to enable those Governments to uphold their laws. If we have evidence, such as television footage, that the law has been broken in Belgium and if the Belgian authorities do not have that particular film, we should make it available to them so that they can take due action against the lawbreakers. If it is proper and in accord with the liberties of our subjects, we should inform the Belgian or other Governments about the previous convictions of those who might want to enter their countries, so that those Governments can prevent the entry of those people if they want to do so.

    The second factor that contributes to bad law is unnecessary haste–usually through the imposition of an artificial deadline. In this case, we have been told that there is to be a friendly match against France in the autumn before which it is essential that the legislation be passed into statute. However, during the past football season, there were matches abroad every few months–as there will be in the next.

    We all know that the real reason for the Bill has nothing to do with that match in the autumn. It is because the Home Secretary had to introduce a measure–he had to appear to be doing something–before a decision was taken on the location of the 2006 world cup. He did not want to be blamed for inaction.

    Mr. Russell Brown: I believe that my right hon. Friend the Home Secretary introduced the measure because of the forthcoming international. Does the right hon. Member for Hitchin and Harpenden (Mr. Lilley) think that we should have asked the Football Association to postpone or abandon the match in order to give the House more time to debate the issue?

    Mr. Lilley: That would certainly have been a better option than bringing in a bad Bill that undermines the liberties of the British subject. Better that one match be temporarily postponed than that our liberties be permanently undermined. I give way to the Minister who wants to bring that about.

    The Minister of State, Home Office (Mr. Charles Clarke): The right hon. Gentleman has made his points clearly. Is he saying that there should be no legislation on this matter because he believes that it is for the French, German or Belgian authorities to deal with it? Is that his view?

    Mr. Lilley: I am perfectly happy to accept the first two measures on the amalgamation of international and domestic banning orders if the House wants that and if their acceptance is reconcilable with our beliefs in the principles that I shall shortly describe. Unlike many hon. Members, however, I do not recognise the compelling need for the measures. If hon. Members see such a compelling need for them, they should first make sure that the Bill has proper and due consideration.

    If the artificial time constraint of a friendly match against France in September is so important that we have to remove the liberty of British citizens to travel abroad, we should perhaps delay our own freedom to go abroad in August and instead devote sufficient time in the early weeks of the month to consider the Bill. However, Labour Members seem so anxious to go abroad that they are prepared to sign away in about a day and half the liberty of football fans to do so. That is a recipe for bad law.

    The third factor, which, from time to time in the past, has given rise to bad law, is collusion between those on both Front Benches. I am glad to see that that collusion is beginning to loosen a bit and that my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) is wisely considering the Bill and saying that it must be a good Bill if it is to receive our support. That requires significant changes to the measure that has been presented to us today.

    I speak from experience. I had to introduce emergency legislation with the co-operation of the then Opposition. That was after Saddam Hussein had invaded Kuwait and it was necessary to amend the legislation on the control of imports and exports, because we were taking sanctions against Iraq and treating the crisis as a wartime situation.

    We sought the collusion of those on the then Opposition Front Bench and they said that it would be much simpler to reduce our relatively simple two-clause Bill to one clause so that the rebels on their Back Benches would have even less chance of creating an embarrassing scene by appearing to support Saddam Hussein. We removed one minor clause that said that, in future, orders would receive proper consideration by the House and I was subsequently criticised by the Scott report for so doing. The report was probably right. I should have not given in to those on the Opposition Front Bench to reduce the Bill and to limit debate so that we could get the Bill through quickly and without embarrassment. I warn those on both Front Benches that collusion can lead to bad legislation.

    The fourth factor that gives rise to bad law is Governments who lack any firm principles or any commitment to firm principles. I am afraid that this Government have made it a principle not to have any principles and that approach has infected their legislation.

    However, there are certain clear principles to which we should adhere. The first principle is that the restrictions on the freedoms of the subject are a severe punishment, and the restriction on freedom to travel is a particularly onerous punishment.

    The second principle is that there should be no punishment unless a crime has been committed. This Bill specifically states that the offence of disorder need not constitute a crime not only in this country, but in any other country in the world. Yet people will, de facto, be punished for doing something that is not a crime.

    The third principle is that conviction for criminal offences should be based on criminal and not on civil standards of proof. People should not be detained and arrested because, as it says in the Bill, it appears to an officer that certain conditions have been met. There should be a substantial criminal standard of proof that should not be waived as it has been in the Bill.

    Finally, and above all, a person should be considered innocent unless and until he is proven guilty. However, this Bill is so framed that someone can be detained–the detention effectively constitutes punishment–and a banning order introduced because of a decision by public authorities in another country or because he has been removed from a foreign country. The Home Secretary said that the courts would never act simply on the basis that a chap was a hooligan because he had been arrested or expelled by a foreign Government. Yet it was the Home Secretary himself who justified the introduction of the Bill solely on the grounds that 900 people had been arrested by the Belgian Government. The Home Secretary used an analysis of those 900 people to tell us the sort of person who, on a normal probability, could be assumed to be a football hooligan. He then said that the courts should not, on a normal standard of probability, use that sort of evidence to impose a banning order on someone.

    If the Home Secretary can justify his own Bill with that sort of evidence, we can be sure that, once the courts are given this power and duty to impose banning orders on someone who, on the balance of probability, will cause trouble abroad–taking into account the fact that the person has been arrested or expelled, if not charged or convicted–the courts will feel obliged to do just that.

    These features of the Bill are wrong and damaging in themselves, but, worst of all, they constitute a dangerous precedent to enshrine in our law. We are told not to worry; it is just a narrow group of people being affected. We are told that it is foolish to talk about the measure being extended as a precedent elsewhere. We are told that it is we logically minded people who always worry about such things. Yet the very people who say that justify the Bill in terms of often rather tenuous precedents that they are drawing with other legislation.

    The best and most substantive precedent drawn on is the anti-social behaviour orders. That made me realise how worrying a feature of our law they are, because they are now being used to justify similar legislation to extend the arbitrary power of the forces of law and order. Those concerned use more spurious examples, but they use precedent to justify this Bill and they will use this Bill as a precedent to justify other law.

    These proposals could be used as a precedent to justify restriction on travelling abroad to potentially rowdy demonstrations. We could be pressured by a foreign Government who do not like Greenpeace activists. The French Government are rather proud of blowing up Greenpeace activists, and they may not like them coming from this country to France to pursue their environmental objectives. We might be urged to take measures against them. The precedent will be there on the statue book, and it will be hard to deny in that case.

    The underlying feature of the Bill is that it takes away people‘s British passports. We used to have decent passports. I have here the rather mangy burgundy- coloured variety that we now have, which at least still has in its front pages the words Her Britannic Majesty‘s Secretary of State Requests and requires in the Name of Her Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as maybe necessary.

    It is a bit rich for us to ask foreign Governments to treat all our citizens, without exception, on that basis when we are to deprive them of their passports when they have not been convicted of offences. How can we expect our passport to be respected abroad when we treat it with so little respect when people get to the ports?

    Mr. Browne: The right hon. Gentleman must recognise that there is a problem with people who manifestly behave in a manner that would be a criminal offence in this country, but whom other countries export back here without prosecuting them. Is the right hon. Gentleman saying that we should do as the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) seemed to be suggesting and extend this country‘s criminal jurisdiction to other countries so that we can prosecute those people according to the standard of proof that the right hon. Gentleman wants and secure criminal convictions?

    Mr. Lilley: The Bill suggests that if people are expelled from a foreign country, which does not see fit to charge or convict them, they are none the less to be treated by our courts as if they had committed an offence. I say to the hon. Gentleman that I do not think that that is right, and I do not want it enshrined in law. If foreign countries do not see fit to charge and convict people, we do not need to do that job for them. Hon. Members say that there is a problem of thuggish behaviour; they are right, but that does not justify thuggish law.