Lord Pannick (CB)

My Lords, I am in football paradise, but not for the reason the noble Lord, Lord Moynihan, mentioned. It is because my team, Arsenal—I declare my interest—are top of the Premier League and top of the Champions League group, as all noble Lords will know. I also declare my interest as counsel to Manchester City Football Club in long ongoing disciplinary proceedings brought by the Premier League. I will make three points on the Motion tabled by the noble Lord, Lord Moynihan. First, the Football Governance Act imposes a duty on the Secretary of State to prepare and publish guidance on the meaning of the phrase “significant influence or control”. That is in Schedule 1(15)(1), read with paragraph 2.1. The Secretary of State has no choice; she has to produce guidance. The second point is that this is, in football terms, a hospital pass. Significant influence or control is one of many legal concepts which are amorphous; they depend, essentially, on the facts and circumstances of the individual case. I can give many examples, such as reasonable care, driving without due care and attention, indecency or obscenity. None of these concepts can be defined with the precision the noble Lord, Lord Moynihan, seeks. There was a famous obscenity case in the US Supreme Court in the 1960s, during which Mr Justice Potter Stewart said that he could not define obscenity, but he certainly knew it when he saw it. Parliament uses a phrase such as “significant influence or control” and fails to define it here and in other contexts where it is used, such as the Companies Act, precisely because Parliament wants to ensure sufficient flexibility to cover such cases and circumstances as may arise from time to time that fall within the general mischief at which the Act is aimed. That is the whole point of having a phrase such as this, and Parliament—us—not defining it in the legislation. I very much hope that, when the Minister responds to the noble Lord, Lord Moynihan, she will not rise to the challenge of attempting to pronounce on the Floor of the House how “significant influence or control” applies to the people the noble Lord, Lord Moynihan, mentioned. If I may respectfully say so, it would not be appropriate for a Minister to attempt to prejudge how this concept applies to particular persons.