Mr Eric Illsley (Barnsley Central, Labour)

I remind the Committee that with this we are discussing the following:

No. 26, in clause 1, page 2, line 1, leave out subsection (5).

Question again proposed, That the amendment be made.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Welcome to our proceedings, Mr. Illsley. I hope that we will continue to make good progress this afternoon.

We were discussing whether or not the aggravating factor that increases the seriousness of the offence of supplying drugs in the vicinity of a school should be applied at any time. That is the substance of the amendment of the hon. Member for Chesham and Amersham's (Mrs. Gillan). We are trying to create a safer zone around schools to protect young people under 18, who have a statutory duty to attend during the school term, while their families similarly have a duty to ensure that they do so. As children are required to attend school, it is essential that they are not exposed to the unnecessary risk of drugs. There are after-school activities and, as in my constituency, many schools provide play schemes and other activities on the school premises. That is why it is important that we do not lose the focus of the aggravating factor.

We cannot accept the amendments, as they go beyond the intention of the clause. They would apply the aggravating factor to any time, even when it would be difficult for a prosecution to claim that children were unduly at risk. Furthermore, because the clause covers all dealing in the vicinity of schools, including dealing between adults, the amendments would mean that an aggravated factor would be established when an adult dealer supplies drugs to another adult, even when children and young people could not be seen to be exposed or at risk. Unfortunately, therefore, the amendments weaken the focus on the threat posed to young people while attending school.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

I apologise to the Minister if she dealt with this during my absence towards the end of the morning sitting, but it would be helpful if she placed on the   record exactly what she means by ''in use'' by people under 18. I have in mind a common situation, where children return to the playground after school hours and use the area for their own purposes. At that stage, the premises are not really in use as a school, and it is difficult to know how anyone in those circumstances would know whether it was ''in use'' or not.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

The hon. Gentleman makes a good point, and, as I said earlier, our consideration when considering the issue was recognising that many schools are no longer just buildings used to support young people in their activities during the school day, or the school term, but are more and more engaged in their out-of-school activities as well, which is why the clause is phrased in such a way to capture those times when schools are being used by young people under 18. People might say in their defence that they did not know, but they will have to justify that.

I tried to give some examples this morning of an issue that is pertinent to the amendment, and to all amendments regarding this issue—that what would fall within ''the vicinity of the school'' may differ from area to area. Part of the guidance will focus on the risk for young people and children of exposure or contact within the vicinity of a school. That will vary from one community to another. A distance in itself may be applicable, but other factors may need to be taken into account. Our main focus when developing the guidelines will be to determine whether a place falls within the vicinity of a school and will pose a risk to the children when they attend that school.

I listened to what hon. Members said this morning and I will consider whether it might be possible to arrive at a definition. However, because the risks may vary from one place to another, it may be difficult to insert a prescriptive definition in the Bill. I will consider the general issue of defining what we mean by vicinity and the issues that will inform the more detailed guidance.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I hope that the Minister will continue to be generous in giving way so that we can have a real debate on this Issue. Unfortunately, she is not setting my mind at rest. She is leading me further and further down a muddled path. She said that she wanted to set up a safety zone around a school, but she then says that she wants to close down the time frame so that we prevent adults dealing drugs to adults in the vicinity of the school falling under the aggravated offence.

Even if it is an adult dealing to adults in the vicinity of the school, that building per se may attract children out of hours when it is being used as a school. Children return to buildings that they find familiar when they are at a loose end and want to play or simply congregate. In all our communities we see children hanging around school premises when schools are not being used, even in the holidays. I cannot understand how the Minister is achieving her stated aim. How is   she protecting children by creating this safety zone as it seems to depend on what time of the day or night it is but does not have children at its centre?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Let me be clear. We have already discussed this morning how there are aggravated factors if dealers are targeting vulnerable people, which include all those under 18. The clause focuses specifically on how a school is used by young people. That is the added plus to which we are trying to attend. While defining how the aggravating factor is to be used, it is appropriate to have a sense of the risks that are posed to young people and children. That could vary from one area to another. I tried to explain that in more detail a little earlier.

If someone is supplying drugs to another adult and is doing so in an area around a school where young people are on their way to school or are dropping into the cafe on the way to school, that may become known through surveillance and other means. The police often carry out operations to target dealers and to obtain evidence to convict them. They may witness this, and we think that the aggravating factor should apply here. There might be other aggravating factors, too.

If, however, someone is involved in dealing at a time when it is felt that the risk to young people was not a factor, it would probably be wrong for the aggravating factor to apply. That does not mean that the person will not be dealt with because the offence is dealing, for which they will be arrested. I hope that there would be evidence to support that in court. The judges have the discretion to consider a number of different circumstances in relation to the offence when they decide on the sentencing, as they do in other matters. This is one matter on which we think that where appropriate it should not be left to discretion but should be something that they should consider as a matter of procedure.

Mrs Angela Watkinson (Shadow Minister, Education; Upminster, Conservative)

The Minister said that she would give further thought to the matter. Will she take into consideration the circumstances that I mentioned earlier? A school in my constituency has a community church on a Sunday; it is very popular and the congregation is mostly very young people because it is an evangelical-style church. A dealer could reasonably say that he did not know that, because most schools do not have churches on a Sunday. Thus there are exceptional situations that could be used as mitigating circumstances in that a person could not be expected to know that the school was in use at the time, when it was actually full of young people.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Yes, I will examine the situation that the hon. Lady mentions and see whether there is anything further that we need to take into account in relation to the amendment. If people are dealing in a community, it is reasonable to expect that someone will be arrested and charged with an offence for which   evidence can be pulled together to convict that person. It is well known how schools are used in a community by the very nature of the number of young people and children going about their business, in and out of the school. However, I will look into the matter to see whether there is anything that we need to address.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I welcome you to our Committee, Mr. Illsley. I am delighted that you and Mr. Gale are looking after us.

I am disappointed with the Minister's reply. I welcome the fact that she will go away and think about defining the ''vicinity'' of a school, because everyone is perplexed about what it might mean. The Minister has muddied the waters even further by saying that the vicinity of a school may vary from area to area. That does not take us down the path to clarity; it makes the position even more uncertain. I will give way to the hon. Lady if that is not what she said, but I think that it is.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

First, does the hon. Lady accept that in respect of the guidance we need to consult on the risks, and how to assess them in terms of young people in a given area? Does she accept also that there are issues that might vary, but that is how the guidance should help in order for the prosecution to make its case in relation to the offence of supplying drugs, for which a person would have been charged? It would therefore be the role of the Crown Prosecution Service to ask for the aggravating factor to be taken into account, and it will have to make the case based on the guidance. It does that in many other ways in relation to other aggravating factors.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I appreciate that the Minister is relying on a future publication on guidance, guidelines and consultation. That is why it would have been better if the draft guidelines had been available to the Committee and the consultation had been carried out prior to the Bill being laid before the House of Commons to be considered in Committee. There are matters that worry me deeply: the burden of proof seems to be slipping away because the defence will have many avenues to fall back on to remove their client from the ambit of the clause. That defeats the Government's purpose and the purpose of virtually all the Committee, notwithstanding the insistence of the hon. Member for Bassetlaw (John Mann) that dealing does not happen around schools. It is an extremely worrying aspect of the Bill.

I am also worried about the Minister's insistence that the safety zone around a school does not have to operate when there has been nobody under the age of 18 inside the school for an hour, and that adults outside the school, on the school premises or in the vicinity of the school, which we have not yet defined, could deal drugs but would be outside the ambit of the provision. The Minister is familiar, as am I, with the Domestic Violence, Crime and Victims Act 2004, the   Committee stage of which we both served on. In that context, there was a problem with children seeing and becoming inured to acts of domestic violence, and domestic violence repeating itself. There is no difference between that and children seeing and becoming inured to acts of drug taking and drug dealing and starting to believe that it is the norm.

By including these restrictions in this well-meaning clause, the Minister is cutting off her nose to spite her face and not achieving what she intended. I think that the risks are great whether or not the school has been occupied in the last hour by under-18-year-olds. If we are going to have a measure about being in the vicinity of schools, why not make it apply 24 hours a day, instead of leaving this loophole?

I am deeply unsatisfied with what the Minister has said. I appreciate that she will carefully consider how to define ''vicinity'' in the guidelines, but those guidelines are not available to the Committee at the moment so we are unable to see them. She is asking me to place faith in her, which I am unwilling to do. With a heavy heart, I shall press amendment No. 25 to the vote, and I ask colleagues to join me in voting for it.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 7.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I beg to move amendment No. 2, in clause 1, page 2, line 5, leave out subsection (6).

In rising to speak to amendment No. 2, I will be in danger of sounding like an old cracked record, because I have been around this circuit several times. However, I am determined not to give up, and I want to give the Minister yet another chance to respond.

I am pleased to say that the amendment is supported by both Opposition parties. The subsection offers another entirely unnecessary loophole for the defence, and the Minister could do a lot worse than to leave it out. It adds nothing more than a get-out clause. We either want to make dealing in and around schools an aggravated offence or we do not. However, it is hardly being tough on dealers to leave this particular get-out clause in the Bill.

As I read the Bill, a dealer could be selling drugs on a playing field or in a sports pavilion—not far from a   school, but we do not know whether that would be deemed to be in the vicinity of a school—but if he says that he did not know that there was a school there and could not reasonably have been expected to know, he would escape the provision. I would like the Minister to confirm that that is the case, perhaps by nodding. If the pavilion is round the back of a school, perhaps behind a fence, and the dealer is new to the area, he could say that he did not know that the school was there, even though it might be a matter of yards away, and escape the aggravated offence.

Sports facilities and pavilions count, but many specialist schools have shared provisions that are open to the community. Since specialists schools were introduced and the use school facilities has increased, it is often difficult to tell the difference, because the facilities are open to the general public and do not have ''school'' plastered on the wall. Sometimes such facilities have ''leisure centre'' on the wall, for instance. However, such facilities are part of the school's premises, because they have been thoughtfully erected using private funding, as well as public sector funding, to expand the specialist school programme, of which I was so proud when I was a Minister. It is not easy to spot that such facilities are part of a school.

I shall give the Minister another example. I went to a boarding school in Cheltenham and the house in which I lived, St. Austin's, was some way from the school. I used to walk from the school to a house where I lived with 50 other girls. That house was part of the school, but there was no way that anyone could ever have told that, unless they happened to know that it was boarding house for girls. It looked like it could even have been one of those posh little boutique hotels that are so popular now.

Mr Henry Bellingham (Shadow Minister, Economic Affairs; North West Norfolk, Conservative)

It was a very posh school.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

That is for others to say. My school was a hard school; it had bars on the window.

Mr Henry Bellingham (Shadow Minister, Economic Affairs; North West Norfolk, Conservative)

To keep the boys out.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

No, to keep the girls in.

A dealer could argue that he did not know that that boarding house was part of the school and would get away with the aggravated offence, unless the Minister were willing to state, for when the legislation is interpreted in future, that she would include boarding schools.

There is another issue that I should like to ask about, although I did not know where in the Bill to raise it and have chosen this clause, because it deals with identifying premises. What happens, for example, when someone is dealing outside a local authority care home? In some cases care homes are educational establishments. The children resident there receive education on the premises. If the state is in loco   parentis, an extra burden of care should be placed, with a commensurately high penalty for a dealer who offends anywhere in the vicinity of that home. Has the Minister considered extending the provision in proposed subsection 4A(6) of the Misuse of Drugs Act 1971, which I suggest should be deleted, to include care homes, as there would be a concentration of youngsters, which would appeal to any dealer?

That aside, I return to my original argument. If the offender or the offender's barristers reads the wonderful words in those provisions,

''did not know and could not reasonably have been expected to know'',

they could put up a pretty good argument that they did not know they were near a school in use by persons under the age of 18. If a night class was taking place, the dealer could say, ''But I thought it was an adult night class.'' There could be children learning in a late night session and the dealer would still get away with it.

Mr John Mann (Bassetlaw, Labour)

Is not the hon. Lady in essence arguing against the entire clause, which she was earlier saying she supported? Let us consider the Johanna primary school, which I live next door to and which is at the back of Waterloo station. People who might well be of no fixed abode reside in that area. There might be an occasion when one such person sells a joint of cannabis to another. Is she suggesting that that should be an aggravated offence because it would be directly outside a school and, potentially, during the relevant hours?

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I think that it is for the Minister to define the premises and what is going on. I have a dilemma because I support the clause but I do not think it is strong enough. It has too many loopholes, has been hastily put together and is not well drafted. That is probably as damning as I can get.

I am sad that I am in position where I appear to be arguing against the clause. If we were to include the clause and flex our muscles to show that we are against dealers being around children and school environments, why should we make it easier for a successful defence to be mounted to remove the application of the clause? It is as simple as that.

The hon. Member for Bassetlaw asked me to answer the questions, and I would love to do so from the Government Benches as a Minister in charge of this Bill. It is for the Minister to convince us that her proposed legislation will work well. While this measure is left in the Bill, I do not think it will work in the way that she intends.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

I, too, welcome you to the Chair, Mr. Illsley. I always find that the wonderful thing about Standing Committees is that at the start one can never anticipate the direction in which they will go. As I prepared for today, I had at no stage anticipated that we would end up discussing provisions to protect the moral welfare of the young ladies at Cheltenham ladies college. That demonstrates the way in which matters can proceed.

Will the Minister explain about this particular defence, if I can put it that way? I am unsure whether someone can have a defence of an aggravating factor. If a matter is to be contested, how will this aggravating factor apply.? How will it be proved? Will it be done by way of proof and mitigation? If that is the case, what will be the standard of proof that is required to establish that an aggravation of the offence is involved? Is that something that the prosecution will have to prove beyond reasonable doubt, or will it be sufficient for it to prove it on the balance of probabilities?

When it comes to having that defence, the onus presumably moves to the defence to establish that the defendant

''did not know and could not reasonably have been expected to know''.

Again, will that be required to be established beyond reasonable doubt or on the balance of probabilities? Will it be sufficient for the defence to produce evidence that would produce any sort of reasonable doubt?

There is nothing in the Bill that deals with those matters. It would be of enormous assistance to prosecutors, defence lawyers and the courts if things were to be made available. Their absence rather confirms in my mind the suspicion that has been voiced by the hon. Member for Chesham and Amersham that this is not particularly well drafted legislation and that it has been produced in haste.

Mr Henry Bellingham (Shadow Minister, Economic Affairs; North West Norfolk, Conservative)

The burden of proof would almost certainly be beyond reasonable doubt. However, there is a loophole: my hon. Friend the Member for Chesham and Amersham, the shadow Minister, was right to flag up the point that some schools have extended campuses. In my constituency, there is an FE college with several outlying playing fields and buildings. One such building is in a particularly remote spot and is used fairly regularly. Some days it is used, and some days it is not; it varies according to which teacher or lecturer is taking which class at which time. Schools in some parts of the country are far from being compact on one site.

My hon. Friend is right to ask why this measure is in the Bill if we are trying to clamp down on the distribution of drugs and illegal substances outside schools. That is what the Minister is trying to do. On Second Reading, the Secretary of State spoke about that in strong language. It is obvious that any defence counsel worth their weight would take advantage of any doubt as to what the defendant knew. To have this   exemption in the Bill is not very clever, and the Government are likely to regret leaving it in if prosecutions fail because of it.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Having considered the amendment, and having listened to the contribution of the hon. Member for Chesham and Amersham, I am going to accept the amendment. Therefore, the courts will be required to treat the offence of supply as being aggravated where persons deal within the vicinity of a school when, or within an hour of when, the school is in use by young people, even if those persons did not know and could not reasonably be expected to know that the school was in such use.

We share a desire to protect young people from dealers, and I have said that I will consider other areas of the clause. On reflection, I agree that even if a dealer claims that he did not intend to expose young people to the risk of dealing, it is reasonable that he be caught by the clause if he is dealing in the vicinity of a school in use.

Hon. Members also talked about school buildings. Schools have changed a great deal since I was a pupil, when a school was for school from 9 am to 3.30 pm in term-time only, and that was it, except perhaps for opening on Saturday mornings for sport. I have visited a number of schools, and see that things have changed a lot. For example, one school that I visited in the midlands has a housing office on its premises; a leisure centre has also been mentioned. We have tended to base the definitions on existing statutory definitions of schools. I will check on those provisions to ensure that some of the areas of concern are covered.

I will reflect on the point that the hon. Member for Chesham and Amersham made about care homes in relation to the clause. Although some residential care facilities may have an educational aspect, others may not, and may be more like a residence for young people, albeit with a rather larger number of vulnerable young people in those premises.

The original framing of the clause would have put an onus on the prosecution to prove beyond reasonable doubt that the defendant could not have benefited from the defence of not knowing, but that will no longer be the case now that we are accepting the amendment.

Mr John Mann (Bassetlaw, Labour)

Will the Minister answer my question to the hon. Member for Chesham and Amersham about the Johanna primary school, which is at the back of Waterloo station, and what would happen if a homeless person were to supply a joint of cannabis to another homeless person there? Would that be deemed to be an aggravated offence? If so, does the Minister think that that is the intention behind the clause?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

My first reaction to that question is to say that a high number of homeless people, who may be involved in begging, have substance misuse problems. That is one reason why we made begging a trigger offence for testing: ultimately, we want to address the underlying addiction problems for the individual involved. I listened to my hon. Friend's   example, and this may sound hard, but if people outside a primary school were exchanging or supplying drugs, that would have to be attended to, whether or not they were homeless. My hon. Friend said earlier that people do not do drugs outside the gates of a school, but he has just given an example of where that does happen. They may not be selling to the children, but they are supplying drugs, and I think that that would fall within the vicinity of our intention to protect young people. That is not to say that there are not issues about our provision for people who are homeless. That is obviously important, but I do not think that we would tolerate drug activities outside a school, whether or not those involved were homeless.

Mr John Mann (Bassetlaw, Labour)

I would not deem that as being in the vicinity of the school, but that is not my definition; it is the definition that will be in law. Is the Minister really saying that such an offence should be classified as an aggravated offence, but that the wilful supply of heroin in a block of flats on an ongoing basis would, in law, be a lesser offence? That is absurd.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

My hon. Friend is losing sight of the fact that we are talking about an aggravated factor for an offence of supplying drugs. Every day, people are charged with offences in respect of which the court has the discretion to take into account aggravating factors and mitigating circumstances. We are saying that if there is dealing in the vicinity of a school—we have had a big discussion about what ''vicinity'' means—that should be an aggravated factor in the offence with which the person is charged. That is right. If a homeless person was dealing drugs outside a primary school, they would be caught by this offence. They may be caught by other offences. For example, if they are begging outside the school, they will probably be taken and tested for drugs. Every situation will have its own narrative, circumstances and background, but I hope that I have been clear about what I understand in relation to the scenario that my hon. Friend has put before me, and about how I see the aggravated factor applying to someone who has been charged with the offence of supplying drugs.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I thank the Minister very much on behalf of all Conservative Members and, I think, our Liberal Democrat colleagues for accepting the amendment. We are very pleased that she has listened and decided to delete the provision from the Bill. I think that that will make a difference. I am particularly interested in the points on which she will come back to us, which relate to boarding school houses and care homes. She has also said that she will try to give us further and better particulars on the vicinity of premises. Will she be able to do that by letter while we are still in Committee, or would she prefer to leave those matters for now and discuss them again on Report and Third Reading?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

It is rather difficult for me to say that I shall reply while we are in Committee, because it depends on where we get to next Tuesday. I do not want to make a commitment in case something amazing happens and we finish on Tuesday, and I   cannot keep to it, but I will make it a priority for us to look into the matters raised and to get back to hon. Members as soon as possible.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I do not think that there is any danger of us finishing on Tuesday, but we will try our best. I do not think that I have anything further to say. In fact, I am not quite sure what to say, because I have never had an amendment accepted by the Government before. Thank you.

Amendment agreed to.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

I beg to move amendment No. 11, in clause 1, page 2, line 9, leave out 'requests' and insert 'requires or causes'.

Mr Eric Illsley (Barnsley Central, Labour)

With this it will be convenient to discuss amendment No. 29, in clause 1, page 2, line 9, leave out 'requests' and insert

'intends to use or uses'.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

Subsection (7) states:

''For the purposes of subsection (4), a person uses a courier in connection with an offence under section 4(3) of this Act if he request another person (the courier) . . . to deliver a controlled drug''.

Obviously, I was not alone in finding the use of the term ''request'' somewhat curious. I have known many drug dealers—I hasten to add that that was always as a result of a professional, not a commercial relationship—and a common theme among them was that they were not very good at their ''pleases'' and ''thank yous'', as we say in the Carmichael household at teatime. It therefore seems rather curious to limit the wording to ''requests''.

I suggest taking out ''requests'' and inserting ''requires or causes''. That would allow those further up the chain to be caught by the provision if they can be identified. If I was at the top of a drugs supply chain and I told someone below me to request or, indeed, require somebody else to act as a courier, I would be guilty of causing that person to act in that way. As it is, the clause will catch only the person who instructs the courier in the first place. As we know, supply chains are sometimes fairly lengthy, and we should be trying to get those who are much further up the line. The word ''requests'' is far too weak and narrow, and I suggest that ''requires or causes'' could cover the matter much more adequately.

The hon. Member for Chesham and Amersham has tabled a similar amendment, which would insert the words

''intends to use or uses''.

It raises the same issue, but I am not quite so sure whether it would extend the reach of this provision, so I shall leave the hon. Lady to speak for herself.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

In many ways, the hon. Member for Orkney and Shetland anticipated what I was going to say. If I may say so, the word ''requests'' smacks of the highlands and of a very genteel way of life that involves giving one's children their tea and saying please and thank you. The real world of drug dealing is far more brutal, however, hence my stab at redrafting the Bill. The words  

''intends to use or uses''

are an attempt at a catch-all, because ''requests'' is too polite. In reality, the relationship will be between the dealer and a courier whom he will ask, blackmail, order or threaten.

I want to make sure that some other instances will be caught even if we do not change the language of subsection (7). If a courier volunteered to carry the drugs, would that be deemed equivalent to the dealer requesting the courier to do his bidding? If someone is trying to curry favour with a dealer, he may indeed tender his services. I want to ensure that the relationship between the dealer and the courier is not diluted by there being a volunteering element, and by the word ''requests'' not applying.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

The hon. Lady is right to raise the point about the courier supposedly volunteering. One can easily imagine circumstances in which the courier as, so to speak, a witness might be persuaded by those around him that it would be in his own best interests, and the interests of his kneecaps, to suggest to the court that he had volunteered and that no request had been made. The hon. Lady's amendment would meet that objection, as would mine, because the mere act of giving the drug in question to the courier for onward transmission would be caught by the word ''causing''.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

The hon. Gentleman and I are of one mind. Frankly, I do not care whether the Minister accepts his amendment or mine. She has got into the habit now.

Mr Crispin Blunt (Assistant Chief Whip, Whips; Reigate, Conservative)

It is not a habit yet.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

Two could make it almost a habit.

There is another situation to be addressed, because we are talking about the real world of street dealing. If someone other than the dealer has asked the courier to collect the drugs or drug-related cash, would that also suffice? The defence might try to establish that no element of request occurred because another third party had told the courier to go and work for the dealer. I want to make sure that all those elements are caught by the clause and its language.

However, I still find the language of legislation even less transparent now than it was in the 1990s, 1980s and 1970s. We could have had ''asks'' instead of ''requests''. The simpler the language, the better, in my view. I am on a bit of a mission to simplify and demystify legislation, and to put it into everyday language. At the very least, if the Minister will not accept either of our amendments, perhaps she will consider bringing the Bill back with the word ''asks'', which is simple and straightforward, and slightly less pompous and genteel than ''requests''.

Mr Eric Illsley (Barnsley Central, Labour)

Before I call the Minister to respond, can I remind the Committee of Mr. Speaker's ruling in respect of audible radio pagers and telephones; that applies to Standing Committees.  

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I actually have a huge amount of sympathy with the reasons behind both the amendments we are addressing. I do not think that the wording of the Bill is quite right, because it does not capture situations involving intimidation—or other situations, such as grooming, for example. What we know about vulnerable young people is that quite often someone might appear as their big buddy in a community, and there is a sinister way in which they can be cultivated; the hon. Member for Chesham and Amersham described the way in which someone volunteers and becomes involved in such a relationship. We need to reflect on what has been said.

I accept amendment No. 11 in principle, but I would have to seek legal advice on the wording before I could agree to it. With regard to amendment No. 29, I understand the reasoning behind the comments of the hon. Member for Chesham and Amersham, but a reference to intention to use might create difficulties in proving someone's intent to use a young person. That is why I am more favourable to the amendment of the hon. Member for Orkney and Shetland than to the hon Lady's.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I agree with the Minister. The intention to use increases the burden in the other direction, which would not be sensible. Just the term ''uses'' might suffice both as simple English and in fulfilling all our criteria. If the Minister is starting to make a habit of accepting our amendments—which I would be delighted about—I offer my congratulations to the hon. Member for Orkney and Shetland, as he will have caught up with me now. If we could just insert the word ''uses'', I would be perfectly happy.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Obviously, I am going to seek advice on more appropriate wording to cover the reasons behind the changes that, as we are all agreed, need to be made to this clause. It was said on Second Reading that we were looking to find some consensus on different issues, and this is one of them. If the hon. Members would agree to withdraw their amendments, I will come back with, I hope, suitable plain English phrasing which will meet all our concerns.

Mrs Angela Watkinson (Shadow Minister, Education; Upminster, Conservative)

When she is considering the wording, can the Minister ensure that it captures forms of coercion like, for example, a school pupil who has given into temptation once and is then pressured into continuing under threat of exposure? If their school has a zero-tolerance policy, it would result in their being excluded. So they are pressured into continuing after having tried it once, whereas they would really wish to withdraw.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I shall try and see if we can come up with something that covers all the concerns that people have raised, so that whether it is a direct engagement, or something more indirect, that will be taken into account in the drafting.  

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

The Minister says that she will accept my amendment in principle. This is exactly the sort of principle that we ought to be encouraging within the Home Office. If it encourages them, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I beg to move amendment No. 3, in clause 1, page 2, line 12, after 'cash', insert

', or items intended to be exchanged for their monetary value,'.

Mr Eric Illsley (Barnsley Central, Labour)

With this it will be convenient to discuss the following amendments:

No. 14, in clause 1, page 2, line 12, after 'cash', insert 'or other consideration'.

No. 15, in clause 1, page 2, line 13, after first 'cash', insert 'or other consideration'.

No. 4, in clause 1, page 2, line 13, after first 'cash', insert

', or items intended to be exchanged for their monetary value,'.

No. 16, in clause 1, page 2, line 13, after second 'cash', insert 'or other consideration'.

No. 5, in clause 1, page 2, line 13, after second 'cash', insert

', or items intended to be exchanged for their monetary value,'.

No. 6, in clause 1, page 2, line 18, after 'cash', insert

', or items intended to be exchanged for their monetary value,'.

No. 7, in clause 1, page 2, line 25, at end insert—

'(g) any goods which are intended to be exchanged in the place of cash.'.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I hope the Minister has now got sufficiently into the groove on this that she is going to accept the principle of this next group of amendments, if not the exact wording. I confess that I am not entirely happy with the wording I have come up with. I prefer that of the hon. Member for Orkney and Shetland, even though to say so will probably get me shot at dawn. Frankly, it is the principle behind this that reflects the actuality of what happens on the street. That is what we are talking about today.

We have got to wake up and recognise that cash is not the only currency of the drug dealer. It was certainly alluded to on Second Reading by my right hon. Friend the Member for Haltemprice and Howden (David Davis), and we need to examine carefully where we are going with this clause.

The Minister has gone to great lengths to identify a whole series of items to be included within the meaning of ''cash'':

''notes and coins in any currency''—

—yes, I can get there—''postal orders''—yes, I can envisage the odd occasion of a postal order being used by a drug dealer, but not too often—and

''cheques of any kind, including travellers cheques''.

We are starting to go into the realms of fantasy. I have not seen many travellers cheques being used by drug dealers on the streets. Then we seem to take off into never-never land. I really would like to know if the Minister knows of any bankers' drafts having been used in cases of dealing. After all, we are talking about   dealing in the vicinity of a school. We are not talking about drugs barons. So when I move from ''bankers' drafts'' to

''bearer bonds and bearer shares''

then I start to get really worried, and think that they are dealing outside the gates of Cheltenham ladies' college.Then we have the catch-all provision at sub-paragraph (f):

''any other monetary instrument specified by order made by the Secretary of State''.

Let us face it: out there on the street kids are nicking mobile phones. Indeed, my own godchild has been mugged no fewer than five times and had his mobile phone pinched. They are nicking iPods, DVDs, trainers, clothes and various other things. I am afraid that theft has moved on to a more sophisticated form. The days of stealing the old car radio seem to be over. No one is interested in a car radio; people have far more exciting things to pinch and exchange for drugs. The Minister seems to be a little out of touch.

I hope that the Minister will look at the clause and put in the Bill a provision that can cover all eventualities. I will not die in the ditch about the wording of my amendments. They are a vehicle to enable the issue to be discussed and give her an opportunity to accept the principle With so much drug-related crime going on, it is very short-sighted not to recognise that stolen goods are often the consideration for the contract. I hope that the Minister will see the logic of the amendment and amend the provision. I do not need to say any more until I have heard what she has to say.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

It is clear that my mind was moving in the same direction as that of the hon. Member for Chesham and Amersham when we came to this part of the clause. It is necessary to have a wide definition of cash, but I have never come across any of the more archaic instruments that are included in the definition. As the hon. Lady said, it is much more common for drugs to be exchanged for goods, and that would not be covered by the definition in the Bill. There is a gap and it needs to be filled.The words ''or other consideration'' would fill that gap. If the Minister is advised otherwise, I should be interested to know, but it needs to be done. To insert the words ''or other consideration'' would be a fairly simple, straightforward and—dare I say it?—elegant way of doing it.

Mr Henry Bellingham (Shadow Minister, Economic Affairs; North West Norfolk, Conservative)

I rise to support my hon. Friend the Member for Chesham and Amersham and the hon. Member for Orkney and Shetland, because cash is by no means the only currency used in drug transactions. Sub-paragraph (9) was clearly drafted by a very bright lawyer, but one who probably has no idea about the drug dealing that goes on in the real world on the street and the sort of barter exchanges that take place. As my hon. Friend said, many different items can be exchanged. That is why flexibility should be built into the clause.  

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Hon. Members will be pleased to know that I accept the principle behind the amendments. However, I want to clarify one matter, because I do not want there to be any confusion.

Using a young person as a courier does not have to be done in the vicinity of a school. Therefore, we are talking about a situation where somebody is supplying drugs, wherever it may be, and using children as couriers. The hon. Lady's point about bankers' drafts outside schools may not apply, but it could apply in other areas. As we know from issues relating to money laundering and so on, in certain circumstances bankers' drafts are used, as well as other forms of payment and cash. However, I accept what has been said this afternoon about the amendments.

The first set of amendments catches items that can be exchanged for their monetary value; the second set is broader and catches anything that can be said to constitute a consideration in respect of illegal drug activity. Therefore, I ask the hon. Lady to seek to withdraw the amendment on the basis that I shall table one with suitable drafting that takes into account the points that have been made.

Committee suspended for a Division in the House.

On resuming—

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I am delighted that once again the Minister has decided to listen to what Opposition Members are saying. It is obvious that cash is part of the story but her acknowledgement that it is not the whole story was my intention when I tabled the amendments. I hope that when she takes away the provision and brings it back with suitable amendments we will all be able to agree on it. I am glad that she has had the wisdom to accept our arguments. It bodes well for the rest of the Bill because we are improving the proposed legislation together as we go along. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I beg to move amendment

No. 27, in clause 1, page 2, line 37, leave out from 'above)' to end of subsection and insert

'will apply upon Royal Assent'.

This is a simple probing amendment to give the Minister an opportunity to clarify the provision's start date, particularly as when we read the detail in the regulatory impact assessment, parts of the Bill are not effective until April 2006 and possibly beyond. I am hoping, with the amendment, that the Minister can reassure me that the clause will come into effect on Royal Assent and that the additional clause is merely there to rule out the legislation being retrospective. Perhaps the hon. Lady could explain why she thinks that it is necessary at all, because in reading the provisions it would appear that it would apply only to a limited number of offences that were in train at the time the Act came into force. Perhaps I will be able to speak again after the Minister has explained the meaning of the clause. 

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

I shall not detain the Committee. I am with the Government on this occasion; the Bill's wording is preferable. As I read clause 24, the Bill will require commencement orders to be made. In those circumstances it is appropriate that a subsection such as clause 1(2) should make it clear that it does not apply to offences committed before the clause comes into force.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

As the hon. Gentleman just mentioned, the requirement in clause 1 applies only in respect of offences committed after the clause comes into force. While all Members of the Committee are keen to tackle people involved in drug dealing, there are some issues that bear on what is right and appropriate in terms of bringing new factors into the criminal justice system. One of those is to ensure that persons are aware of the applicable penalty to their offence when they commit it and that they are not subject to a harsher sentence when they are tried.

There is an issue if the law is applied retrospectively. I am advised that applying a heavier penalty to an offence than the one pertaining when the offence was committed is contrary to article 7 of the European convention on human rights; therefore I cannot support the amendment. The hon. Member for Chesham and Amersham was concerned about timing. I will check outside the Committee that what I am saying is right—the antisocial behaviour order provision is likely to come into force in 2006, but parts 1 and 2 could be brought into force quite quickly. Another issue is when Royal Assent might come. It might be sooner rather than later—who knows.

We have some time in which to plan. Many reasons, not least human rights, are appropriate to how the clause is framed, and I hope that the hon. Lady will withdraw her amendment.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I am happy with that response. We are all conscious that the timing of the Bill is trickier than in the normal course of events. I understand what the Minister has said. No doubt, in time, the Bill will hit the statute books and come into operation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.

Question agreed to.

Clause 1, as amended, ordered to stand part of the Bill.