Clause 1 — Aggravated supply of controlled drug

Orders of the Day — Drugs Bill – in the House of Commons at 6:25 pm on 22nd February 2005.

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Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office) 6:25 pm, 22nd February 2005

I beg to move amendment No. 9, in page 1, line 17, after 'committed', insert 'on or'.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: Government amendment No. 10.

Amendment No. 4, in page 1, line 18, after 'school', insert

'or any other place where children frequently congregate'.

Amendment No. 5, in page 1, line 18, leave out 'at a relevant time'.

Amendment No. 3, in page 2, line 3, at end insert—

'(4A) In subsection (3) "in the vicinity" is—

(a) within one mile of the school; or

(b) within five miles of the school when on a route known to be used by pupils accessing the school; or

(c) on a vehicle used by local education authorities to transport children to school.'.

Amendment No. 6, in page 2, line 4, leave out subsection (5).

Government amendments Nos. 11 to 18.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

Clause 1 stipulates the circumstances that a court must treat as aggravating factors when considering the seriousness of the offence of supply of a controlled drug when the offence is committed by a person aged 18 or over. It will be an aggravating factor where the dealer uses a person under the age of 18 as a courier to deliver a controlled drug, or in a drug-related consideration, or where the offence of supply occurs on or in the vicinity of school premises during the relevant times.

Recognising that schools are often used by young people outside conventional school hours, the clause establishes the relevant time as any time when the school is in use by a young person and one hour before or after that time. Because the clause focuses on protecting children at school, we have not included in its scope the supply of drugs at times when young people under 18 are not present at the school, but the clause would cover activities outside the normal school day and in the school holidays when young people are involved in an activity at the school.

Photo of John Robertson John Robertson Labour, Glasgow Anniesland

I have great sympathy with amendment No. 4 because it is much more protective of the child than the wording of the Bill. Can my hon. Friend allay my fears, so that places such as clubs where young children are brought together are not seen as easy prey for the kind of person we are talking about?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

The clause deals with the vicinity of a school. We are focusing on the school as a place in the community that is a visible and known building where young people assemble to attend school and for other legal purposes. We discussed in Committee—and I shall go into this further—how we might extend the provisions to other places where young people go, such as a cinema or a swimming pool. As I shall explain, part of the problem is how we define that, as it could be anywhere that children go.

Photo of John Robertson John Robertson Labour, Glasgow Anniesland

The places that concern me particularly are sports clubs and sports centres, where there are large numbers of young people in an area that can also be attended by adults, some of whom might not be as nice as those looking after the children.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

We recognise that drug-related activities can, unfortunately, take place at any time and anywhere in our communities. I share my hon. Friend's concern. It is important that the police and others work to make sure that, using local intelligence, they identify where those activities take place. There is already protection for young people, and account must be taken of aggravating factors such as dealing directly to vulnerable people. That includes people under 18. Dealers would be caught by that if they were dealing to young people in areas such as my hon. Friend mentioned.

In the clause we are focusing on the school, which is a premises where children are expected to go by law. It is a visible building in the community which is known to be used by children. We are considering how we might best create a safe zone around it.

Several hon. Members:

rose—

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I wish to deal further with some of the points that have been made, as this matter was dealt with extensively in Committee. I ask hon. Members to please bear with me.

The Bill does not define what constitutes the vicinity of school premises, so it will be for the courts to make a determination on a case-by-case basis. I shall return to that point in relation to amendment No. 3. The clause will catch all school premises, including buildings, main and ancillary, playing fields and dormitory buildings. It will also encompass the use of school premises for community purposes, provided that a young person under 18 is participating in that use.

In Committee, Angela Watkinson gave the example of a community church using school premises and asked whether it would be caught by the provision. Initial advice suggested that the answer was no, but I sought further advice from parliamentary counsel, and they said yes. As far as I am concerned, on the basis of that second opinion, any activities taking place within what are defined as school premises will be caught by the clause as long as they involve under-18s.

The courts may already take into account aggravating factors when considering the seriousness of an offence of supplying a controlled drug. The clause recognises public concern, particularly about aggravating circumstances in which children are exposed to risk, even if they are not directly involved in drug-dealing activities. We hope that the clause will provide a measure of reassurance to parents and a deterrent message to dealers, as well as offering protection to young people.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

May I offer to the Minister the example of the school in my village that my children attend? As well as the school, there are various play facilities that are frequently used by children after hours. Presumably, given the terms of subsection (5)(a), a time when the children are playing there would constitute a time when the school is in use by persons under 18. Is she satisfied that that definition gives sufficient legal certainty, particularly given the fact that the provision extends to an hour before the start of such use? If there is no fixed start time, it will not be possible for a person to regulate their conduct according to the subsection.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I am convinced that the provision would apply to play activities of the sort that the hon. Gentleman mentioned. If hon. Members remember, we discussed in Committee the defence of not knowing that young people were present at any given time, and I accepted an Opposition amendment.

It is necessary to recognise that the provision is about creating safer zones. Our intention is that, as far as is possible and practical—there are issues about how far the areas can be extended, what is practical and how wide the range should be—we should protect young people, particularly when they are attending school but not exclusively, from exposure to drug dealing. It is therefore important that all premises should fall within the scope of that approach. I think that Mrs. Gillan spoke about her own school, Cheltenham Ladies' College—I think that it was in relation to the cash issue—and she pointed out that accommodation in boarding schools may be located on a different site from that of the school and asked whether such buildings would be covered. I sought additional advice as to whether ancillary school buildings such as accommodation provided by boarding schools and remote playing fields—when I was at school in London, we had quite a trek to our playing fields—are caught by the clause. I am assured that they are.

I have considered the point further, and I have taken the view that it is helpful, in order to avoid any doubt, to table an amendment. At the same time, it will also help to resolve any possible doubt about whether the provision catches over-18s who are dealing on such premises. Government amendments Nos. 9 to 11 and 17 mean that an aggravating factor that a court must take into account when deciding a serious drug supply offence will be the fact that the offence was committed on or in a facility, which is covered by Government amendment No. 9, and that it was committed at a relevant time, which is covered by Government amendments Nos. 10 and 11.

It is always worth working through the different scenarios. It is possible that a teacher or caretaker might occupy solely as a dwelling, accommodation owned by the school, which is school premises, but which is not on or in the vicinity of other school premises. In an inner-city area, for example, a school might own accommodation that is not in the vicinity of the school or on the school plot itself. In recognising that such accommodation could be on the far side of town, our aim is to protect and provide a safe zone for children and young people, so that there is no need to catch premises used solely as a dwelling by a caretaker or teacher that are not on or in the vicinity of other school premises, although such a person might be defined as living in school premises. I hope that is clear.

The basic idea is to draw a distinction between catching those people who have accommodation on a site where children actively go to school or engage in activities and a situation in which a caretaker lives 10 or five miles away from his job, but his accommodation is linked to the school.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Will the Minister clarify once and for all whether clause 1 will apply to school premises in Northern Ireland? Clause 24 is ambiguous about whether some or all of the provisions will extend to Northern Ireland. Will she put on the record that every school premises—as she has explained this evening, "school premises" is widely defined—includes school premises in Northern Ireland?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I thank the hon. Lady for giving me an opportunity to set the record straight. I am pleased to say that clause 1 will apply to Northern Ireland, as will clauses 2, 4, 6, 8 and 21. Clauses 4 and 6 mirror clauses 3 and 5, so they have an identity in their own right. I agree that the wording of clause 24 is not as clear as we might all want, but sometimes we are all hostage to the legalistic wording used in such legislation. Many clauses amend existing legislation, and where the scope and range of that legislation applies to Northern Ireland, those changes will apply to Northern Ireland too. I reassure her that the measures in clause 1, which attempt to create safer zones around schools, will apply to Northern Ireland.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Earlier, I referred to a letter that I received from the Northern Ireland Office. I must apologise, because it was actually a written answer from the Minister of State, Northern Ireland Office, who is responsible for this particular subject. On 24 January 2005, he stated:

"I have sought and obtained approval for the extension to Northern Ireland of the following provisions in the Drugs Bill".

He listed several points, including the

"Creation of aggravating circumstances in which a dealer will face an enhanced sentence—such as dealing near a school or using young persons as couriers".—[Hansard, 25 January 2005; Vol. 430, c. 302W.]

Given the clear import of that reply, will the Minister reflect on making it clear in the Bill that the provisions extend to Northern Ireland? The Police Service of Northern Ireland must apply those provisions, which are not clear.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

Clauses 1 and 2 amend the Misuse of Drugs Act 1971 and therefore apply to England, Wales, Scotland and Northern Ireland. It is not necessary to specify Northern Ireland because we are simply amending existing legislation, which already applies to Northern Ireland and Scotland. I hope that that makes it clear that Northern Ireland is not excluded from the provisions that deal with the vicinity of schools and the possible use of children and young people as couriers by drug peddlers and dealers. I hope that that reassures the hon. Lady and conveys a strong message to her local community.

Let me be clear. Premises that are occupied solely by a teacher or a caretaker as a dwelling and are on or in the vicinity of other school premises that children and young people use would be caught by the measure. Government amendment No. 17 therefore defines school premises more closely and exempts from that definition land occupied solely as a dwelling by a person who is employed at the school. It is not unusual for buildings that are used solely as a dwelling by a member of staff to be distinguished in legislation from other school premises.

Amendment No. 3 defines "in the vicinity" as

"(a) within one mile of the school; or . . . (b) within five miles of the school when on a route known to be used by pupils accessing the school; or . . . (c) on a vehicle used by local education authorities to transport children to school."

The question of what constitutes "in the vicinity" was thoroughly aired in Committee and I have, perhaps rather belatedly, written to the hon. Member for Chesham and Amersham about the matter. I am concerned about the definition and I held extensive discussions about whether it was possible to include one in the Bill. After much discussion, I am worried that attempting a definition runs the risk of undermining our purpose. A definition could exclude a set of circumstances that may currently be difficult to foresee or a position that arises from local circumstances, which a court might want to include.

Photo of John Mann John Mann Labour, Bassetlaw

I want to raise a point of clarity that was not made in Committee about definitions of vicinity, especially in view of Government amendment No. 9, in relation to school athletics and sports facilities that are used by adults—through community use—and children, for example on a Saturday morning. Am I right that, if the measure were passed, this country would have the strongest anti-drugs-in-sport legislation anywhere in the western world? Anyone who dealt in performance-enhancing drugs on a sports field owned by a school—that applies to all athletics facilities and most rugby and football fields in my constituency—would be liable for conviction for aggravated supply. Will my hon. Friend the Under-Secretary consider whether such a provision could eventually be extended to cover professional sports, such as those football teams that are playing tonight?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

My hon. Friend is right that the Bill covers sports activities that take place on school premises—playing fields, sports halls or facilities that are open to community use. As long as young people who are under 18 are engaged in those activities, clause 1 will apply. My hon. Friend mentioned performance-enhancing drugs. If they were illegal, the clause would apply in the circumstances that he outlined. I shall draw his final point about other sporting activities to the attention of my hon. Friends in the Department for Culture, Media and Sport.

Photo of John Mann John Mann Labour, Bassetlaw

My hon. Friend will recall that I was somewhat sceptical about the parental fear of drug dealing outside schools and I gave examples from my constituency. I believed that the Government risked falling into the trap of overplaying a fear that was simply that and not a reality. My hon. Friend will be pleased that I am convinced by her arguments about tackling drugs in sport. Will she consider how best to publicise this to the sporting world? The issue did not come up in Committee, but it could represent a significant change in dealing with drugs in sport.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office) 6:45 pm, 22nd February 2005

I will think about the issue that my hon. Friend has raised. It will be important to make the provisions of the Bill well known, should it become law. That is an ongoing challenge for us, with regard not only to the new provisions but to the fact that record amounts of money are now being spent on all aspects of dealing with drugs, including prevention, treatment and building capacity. I know that my hon. Friend has played a huge role in this in his constituency, which I hope has been helped by the Government's determination to bear down locally on what can be achieved if people work together better to identify the problems and use the funds that we are providing to tackle them wisely. I will think about what he has said.

I would also like to point out to my hon. Friend that a conference is being held this week on the positive futures scheme, which we in the Home Office are funding, as well as Sport England and others. The scheme identifies young people who are at risk of drug involvement or who have already become involved with drugs. It is a sports-based scheme, and 50,000 young people have gone through it so far, with tremendous results. An awareness of the dangers of drugs—not only heroin and crack cocaine but performance-enhancing drugs—is an important part of the role of sports coaches, alongside providing brilliant sports coaching.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

The Minister is showing a great deal of concern for children by introducing this legislation, and we are now being led down the sporting route. She has also embarked on looking at "what if" scenarios. Will she clarify what would happen if children from a school were invited to play sport at a private sporting facility, for example, or a well-known football ground? If the children were going there as part of their school activities, would those premises be covered by the Bill? If not, why not? Why will the Minister not consider our amendment to make the clause apply to places where children congregate?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I am going to address that issue in a moment, but the short answer to the hon. Lady's question is that the provision would not apply to such facilities. The Bill covers school premises, and I have already attempted to explain what we understand by that term. The provision would capture the scenario that my hon. Friend John Mann outlined, but it would not apply to that suggested by the hon. Lady. I shall explain later our views on places where young people congregate and on other places that have been mentioned, including community centres. We are trying to focus on what is practical and what we can actually deliver.

What constitutes "in the vicinity" could vary from location to location. For example, a dealing site might be close to a school—and let us not forget that we are talking not only about someone dealing directly to young people, but about the exposure of young people to drug-related activities going on around them. An aggravating factor may already be taken into account by the courts during sentencing in cases involving dealing directly to a vulnerable person, including those under 18. These provisions are an attempt to tackle the problem of young people on school premises having to walk past or be exposed to dealing activities that might not directly involve them. This is about the risk of exposure, and the creation of safer zones around those areas.

Photo of Angela Watkinson Angela Watkinson Shadow Minister (Education)

The clause relates to the supply of a controlled substance by a person who has attained the age of 18. However, it does not cover the supply of such a substance by someone who has not attained that age. We know that when pupils in schools have been tempted into drug use, it is common for them to sell on their surplus to their friends, thereby creating more and more people with a drug habit. Will the Minister tell us how the provision relates to people under the age of 18?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

With the indulgence of the House, I will deal with that point, but I do not want to lose sight of the Opposition amendments. As the hon. Lady is aware, we had a discussion in Committee on that issue. We have to decide whether we accept that the law contains procedures that recognise how we might deal with under-18s in terms of sentencing, and how they are dealt with by different agencies, compared with over-18s.

There are enough examples of how we try to deal with young offenders, but that does not mean that we excuse for one moment the activity of someone under 18 who might be supplying drugs. That will be an offence for which—if they are caught and there is evidence—they can be charged. We had a discussion on this in Committee, and I do not think that applying to someone who is himself identified in law as a vulnerable person the aggravating factor of supplying to a vulnerable person is the right approach to take.

Do not forget that that is an aggravating factor linked to a charge for an offence. In dealing with under-18s, it is important that we charge them for the offence, but we should also consider what their involvement is and how they got involved. We should consider them as we do in other areas of law—in a way that understands that their actions are wrong, but at the same time they are young people, and perhaps even children. We need to deal with that appropriately. We have had that discussion, and although we may disagree, I think this is the right approach. So we are talking here about people over the age of 18 in respect of whom we believe such issues should be taken into account when they are involved in dealing activity.

A dealing site may be close to a school as the crow flies, but might be separated from it by a railway line that is not bridged for some distance from the school, and may therefore, for practical purposes, not be in its vicinity. Conversely, a dealing site may be some distance from the school using conventional footpaths or roads, but be easily accessible by less conventional means. In my constituency, young people going to school do not necessarily follow the paved route. They cut across fields and parks, and that becomes their normal route to school. If someone wanted to be involved in dealing activity, they might choose such an area for that.

Amendment No. 3, in attempting to define "in the vicinity", illustrates the dangers of doing so. As I have said, distance may not always be the only determining factor. If we were to go for a fixed distance, from what point on the school premises would a mile be measured, and who would have the authority to carry out that measurement? How would passengers on a bus know when they were within 5 miles of a school? Furthermore, the amendment would catch only buses provided by an education authority, but not public transport used by pupils on their way to or from school.

In addition, if there were active dealing on a school bus—we might presume that, apart from the driver, most of the people on it were under 18, and it might be the driver who was dealing—that would be caught by the aggravating factor of dealing to vulnerable people, which means those under 18. We also know that young people use other forms of public transport, such as trains or buses, and children could be exposed to dealing activity from which we need to protect them near a local train station, which is the dropping-off point for those making their way to school, or on buses.

We are talking about situations in which the young person is not directly engaged, but is exposed to the risk. We all want to try to deal with those situations, when young people experience those things around them. We need to consider how to ensure that they are seen as not acceptable and not a normal part of everyday life.

Photo of Paul Flynn Paul Flynn Labour, Newport West

I am following my hon. Friend's argument carefully. We would all agree that we do not want our children or grandchildren to be exposed to drug pushing, but as she is referring to the vicinity of schools and colleges, the route to school for all children and the means of transport to school, it seems to me that this measure will cover an enormous area. Has she calculated the percentage of urban areas that the ban will cover? It strikes me that a very small area would be excluded from it.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

Well, some Members might be quite happy about that. The facility will be linked to the issue of risk to young people and children. Rather than having carte blanche, the risk of young people being exposed would have to be set against the activity and where it was located. Because those issues are complex, we feel that that is a matter for the courts to decide. I will refer later to some other pieces of legislation in which "in the vicinity" is also used to provide coverage in a certain area.

The way forward is to allow the courts discretion to decide what constitutes "in the vicinity", not to remove that discretion as the amendment tabled by the hon. Member for Chesham and Amersham suggests. Following the Committee stage, I sought further legal advice on the matter, and I am 100 per cent. certain that it is not sensible to provide further definition of the term in the Bill.

As I said, there is legal precedent for that approach elsewhere. For example, the term is used in section 42 of the Criminal Justice and Police Act 2001, under which a constable may give a direction to a person who is present outside or "in the vicinity" of someone's home if he reasonably believes that the person is there to represent something to the resident or another person or to persuade such a person to do or not to do something. I have experience of that in relation to animal rights extremists setting up a vigil outside someone's home. The police have used that direction widely, even when someone is not in the particular street or outside the person's home but has been there and in that vicinity previously.

The term "in the vicinity" is also used in section 60AA of the Criminal Justice and Public Order Act 1994 as inserted by section 94 of the Anti-terrorism, Crime and Security Act 2001. Section 60AA provides police with the power to require persons to remove disguises in certain places and under certain circumstances. Section 60AA(8) provides that a member of the British Transport police has those same powers in any locality "in or in the vicinity" of any police premises and in police premises themselves. We have done a search of case law to show that the term "in the vicinity" was used.

It is right that we should indicate the intention behind the clause, and the Home Office will draw up, consult on and issue guidance indicating particular concerns in that regard. I would like guidance to indicate that distance from the school is the key but not necessarily the determinative factor, and that the practical accessibility of a location to young people is an important factor. The risk posed by drug dealing to young people when attending schools is a primary concern, premises such as cafés and private dwellings that are in the vicinity of schools could be covered, and other points in the vicinity of a school at which young people gather regularly, such as a bus stop on the way to or from school, are also a concern. As for whether a place is one at which young people gather, we should also consider informal routes that they may take to the school premises, which would include public footpaths and roads and, dare I say it, trespassing across private land. Transport used by schoolchildren should also be caught within the definition when such transport is in the vicinity of a school.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

May I clarify, for my peace of mind, one point that bothers me? We are considering clause 1 on aggravated supply of controlled drugs. Is my interpretation of that clause correct that if a defendant is able to argue successfully that a location is not "in the vicinity" of school premises, that affects sentencing only? In view of the wide interpretation that the Minister has given, and her confirmation that it applies to Northern Ireland, for which I thank her, will she confirm that even if that argument is successful and a court does not hold that such a location is in the vicinity of school premises, it is still an offence for a defendant to supply controlled drugs?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

Certainly it is still an offence for someone to supply controlled drugs. Such a person would be arrested and, I hope, charged with a drug offence, and it would be for the courts to take that into consideration as an aggravating factor, along the same lines as the aggravating factor of using children as couriers. The purpose is to focus the minds of those in our legal system on the importance of these issues, which should be reflected in sentencing. In Committee, Mr. Carmichael raised the issue of transparency, and I have agreed to write to the Sentencing Guidelines Council about how aggravating factors apply to sentencing. I felt that he had made a fair point.

Before issuing guidance my officials have already begun to consult Adfam, Turning Point, DrugScope, the Association of Chief Police Officers and the Youth Justice Board. During initial discussions with a number of those bodies, none of them supported a definition of "vicinity" in the Bill; they felt that that should be covered by the guidance.

As for amendment No. 4, I understand the desire to protect young people from dealers operating in the vicinity of places other than schools, but feel that there are real practical difficulties in establishing what constitutes such a place. What constitutes a congregation of young people—three or 30? Moreover, as I have said, the current sentencing guidelines list, among other aggravating factors, "deliberately targeting vulnerable victims". I believe that that gives courts discretion to deal with young people appropriately.

Unfortunately, as I said earlier, we live in a time when drug dealing can take place in any location where there are young people. The aim is to come up with a focused practical measure that can be enforced in a way that does not dilute what we are trying to do. That is why we have singled out schools for the purposes of this offence.

Amendments Nos. 5 and 6 would require a court to identify an aggravating factor increasing the seriousness of an offence of supplying drugs when a person commits the offence in the vicinity of a school at any time. As we have acknowledged, schools are not the same as they were in our time, when the school day lasted from 9 am until 3.30 or 4 pm. I think we are all pleased that schools are now live buildings that operate outside the normal school day and are open to the wider community, and we have covered that in the Bill.

Again, however, we do not want to dilute the aggravating factor. On occasion a school may be closed, with no one on the premises. To apply the aggravating factor when young people are not exposed would, in my view, undermine the clause. We should not forget that someone dealing in drugs outside a school at any time is liable to arrest and prosecution, but we do not think it appropriate for a court to apply the aggravating factor to those dealing at 2 am, when children are not using the premises. There must be a link with the risk of exposure.

Amendments Nos. 5 and 6 go beyond the intention of the clause. Because the clause catches all who deal in the vicinity of schools, the amendments would establish an aggravating factor when an adult dealer supplied drugs to another adult in the vicinity of a school, even if he did so when the school was shut and no young persons were present and exposed to risk. We must not lose the focus of the clauses.

As for Government amendment No. 12, clause 1 makes it an aggravating factor—which a court must take into account when deciding the seriousness of a drug supply offence—to use a person under 18 as a courier. I know from what people have told me that there is concern about the use of children by adults wishing to avoid prosecution, and I think that that is terrible. We had a productive discussion in Committee, and I agreed with a number of points that were made.

New section 4A(6) of the Misuse of Drugs Act 1971, which clause 1 inserts, provides that a person uses a courier in connection with an offence

"if he requests another person . . . to deliver a controlled drug to a third person" or

"to deliver drug related cash to himself or a third person."

In Committee the hon. Member for Orkney and Shetland tabled an amendment that sought to strengthen the word "requests", to make it clear that all acts of both commission and omission that a dealer might undertake in order for a young person to act as a courier were considered to be an aggravating factor. I acknowledged the merit of what the amendment was intended to achieve, and I hope that our amendment will achieve the same objective. It would replace "requests" with "causes or permits", so that the clause would catch not just any positive act that a dealer might commit to force or persuade a young person to act as a courier, but a dealer who accepted an offer from a young person to act as a courier. In Committee, we discussed circumstances in which young people might wish to ingratiate themselves with, say, someone with a fast car, and might offer to be used in that way. This provision would capture that possibility, and I pay tribute to the hon. Gentleman for raising the matter in Committee.

On Government amendments Nos. 13, 14, 15, 16 and 18, again, the Bill deals with young people under the age of 18 who are used as couriers. New section 4A, which is inserted by clause 1, provides that for this purpose, drug-related cash is cash obtained in connection with the supply of a controlled drug or intended to be used to obtain a controlled drug. New section 4A(8) defines cash as including inter alia notes and coins and any monetary instruments specified by order made by the Secretary of State.

I pay tribute to the hon. Member for Chesham and Amersham, who tabled an amendment designed to have the effect of broadening the definition of cash to ensure that all possible forms of payment or reward for drugs received was caught. She argued that the definition in the Bill may not recognise the reality of the situation, because payments may be made, for example, in the form of consumer goods, CDs or clothes, as well as cash and monetary instruments. I acknowledged her argument and I hope that she will agree that we have come back with a suitable amendment to replace the term "drug related cash" with the term "a drug related consideration". That is further defined by amendment No. 14 as

"a consideration of any description".

We had a discussion about "a consideration" in Committee as well, and I have sought and obtained definitive legal advice. We are clear that it would not be appropriate to define the term "consideration" in the Bill. I understand—as a lawyer, the hon. Member for Orkney and Shetland will probably know better than me—that it is a standard legal term that should properly be interpreted by the courts. It is used without definition in much other legislation, such as the Criminal Law Act 1967, the Customs and Excise Management Act 1979 and the Criminal Attempts Act 1981. To attempt to define "consideration" would call into question some of those other pieces of primary legislation.

Amendment No. 15 widens the definition of "a drug related consideration" to cover that which is intended to be used in connection with obtaining a controlled drug as well as that to be used to obtain a controlled drug. The detailed definition of cash in new section 4A(8) is therefore no longer required, and amendment No. 16 deletes it. The new section contains a power for the Secretary of State to make an order specifying monetary instruments that fall within the definition of cash. That is no longer needed, and amendment No. 18 deletes it.

Amendment No. 13 and consequential amendments Nos. 14 and 15, 16 and 18 taken together have the effect of ensuring that all forms of payment or reward in exchange for drugs are covered by the clause. I commend the Government amendments to the House and I hope that on the basis of my explanation, Opposition Members will not press their amendments.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office) 7:00 pm, 22nd February 2005

It is so good to see that the Minister has done her job properly on the first group of amendments on Report. The fact that, in order to do her job properly, she had to take more than two thirds of the entire time available for that group shows that she has been badly let down by her Whips Office. Again, we have lost valuable time for discussing this Bill. [Interruption.] I see that John Robertson is laughing away. I in no way blame the Minister. She did a proper job on the first group. It is just that the Whips Office should have allowed more time and the Government should not be so keen to cut off debate in the House.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

It is a shame on the hon. Gentleman because I hope to leave at least some time for him to say a few words on the off-chance, but forgive me if I do not manage it.

I welcome the Government amendments. We spent a lot of time on this clause in Committee because the Government made it a flagship clause. The Minister has admitted that there were some problems with its drafting. I find that extraordinary because the provision to make an aggravated offence for dealing around schools has been on the drawing board for some time. To have brought it to the House in such an imperfect form is extraordinary, but I admit that the amendments that she has tabled, which were stimulated by the debate on the Opposition Benches, will improve this part of the Bill no end.

I am particularly pleased that the Minister has caught up with the 21st century and realised that her original drafting, which included the exchange of bankers' drafts and bearer bonds and bearer shares by dealers in and around a school, is not today's reality. Her reality check has brought her to use the words "a drug related consideration". That is an excellent development that recognises that youngsters deal in and exchange many other things, from mobile phones and the new iPods, to cash or anything else that happens to be at hand. I must say that bearer bonds and bankers' drafts are used rarely.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I agree that their use is rare, but I remember that, in Committee, the hon. Lady thought that they were used at Cheltenham Ladies' College.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

The Minister ought to ask her colleague, Fiona Mactaggart, about that. She was in my year at Cheltenham Ladies' College, and Ms Keeble was also at school with me. The Minister has two Cheltenham Ladies' College girls on her side of the House, whereas we have only one who has seen the light. We will exchange no further views on that.

I thank the Minister for her letter of 17 February dealing with some points raised in Committee, which I did not receive until yesterday morning. Despite those comments to me at that late stage and her comments at length just now, the clause is still imperfect and certainly not strong enough. I want to consider the amendments that I tabled, which would widen and strengthen the clause. I hope that I will be able to press the House to a Division when the time comes, particularly on amendment No. 5, if not also amendment No. 6, because nothing that the Minister has so far said has led me to believe that my amendments will do anything other than strengthen this part of the Bill, which is what we have been seeking to do.

Amendment No. 4 would widen the protection afforded to children where they congregate, or receive instruction or training. In her letter of 17 February concerning clause 1, the Minister said:

"I am advised that the clause does not include school premises which are in community use (eg a community church), even when the persons under the age of 18 are using the premises for such community purposes. This is because the term 'use' implies 'use as a school'. Children will be protected by this clause so long as they are using the school for some school-related purpose (eg., night class/drama rehearsal)."

That is not the comfort zone that I was seeking concerning the interpretation of this clause. It is my understanding that the Minister is actually saying that the aggravation factor will not apply if, for example, the children are at a school premises and attending a Sunday school.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I thank the hon. Lady for allowing me to intervene. As I tried to explain earlier, I sought additional parliamentary counsel advice on this issue following that letter. I have subsequently made it clear that the provision would apply to the circumstances described earlier by one of her colleagues, but also to any activity taking place on school premises, whether or not it was organised by the school. Therefore, sports organised by other community-based clubs would be covered, as would a church service that is organised by a church, but which takes place within a school. I hope that that reassures the hon. Lady.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

I am grateful for that reassurance and I was anticipating that the Minister might intervene on me. That goes to show that even the information that the Minister and her office provided to the Opposition so late in the day was inaccurate and no attempt was made to correct it in the ensuing period. Information has been introduced at this late stage and the Opposition were not notified; in fact, the material provided to us was obviously inaccurate. I am pleased that she has explained the situation, which may lead me to withdraw amendment No. 4. Although the amendment is not perfectly drafted, its purpose is to widen the spirit of the clause.

Examples have been one of the Minister's strong points and I would like to discuss another example, which I hope that she will be able to tell me will definitely fall within the ambit of the Bill. For example, I want to be able to protect children when they are in a learning environment that is not necessarily on school premises. The Minister confirmed earlier that, if children from a school were playing sports at a private club, they would not be covered by the Bill. In my constituency, some children are taken out of school and put into a completely separate learning environment from which they can benefit.

I shall provide one example of a project designed to help children who are having a tough time in school and who respond to learning in a different way. I refer particularly to the "Skids" project in Buckinghamshire. It takes place away from school and the kids get to work with cars and bikes. The kids get to do what they want to do and they respond very well. I want some reassurance that, if anyone enters those premises to deal to those children, who may not have responded so well to normal school practices, the Bill will protect them. The Minister is looking puzzled—

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

The Minister could intervene to tell me that such children would be protected while attending such a project.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

As I outlined in my earlier contribution, there are a whole host of places to which young people could be defined as going on a regular basis. We have tried to be practical about the matter and we acknowledge that a school is a known building in the community. In my constituency, projects are going on in all sorts of places and, from the outside, no one would be any the wiser that child-related or young persons' learning activities were taking place. The Bill would not apply in those circumstances, but it would apply to pupil referral units, for example.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

That disappoints me. It may apply to pupil referral units, but when a group of vulnerable youngsters are in another learning environment outside the school—and they have been taken outside of school by the school itself—they will not be covered. Once again, the issues have not been thought through.

I want the Minister to respond, if she has time, to amendments Nos. 5 and 6 because they are designed to strengthen clause 1. She says that she wants to protect children and that clause 1 is all about protecting children, yet she places a whole series of provisos on that protection by using the phrase "at a relevant time" at the end of subsection (3) and by including in subsection (5), the phrases

"any time when a school is in use by persons under the age of 18" and

"one hour before the start and one hour after the end of any such time".

That effectively removes from the Bill's protection the very premises that attract children out of school hours.

Many of our youngsters feel safe and secure in the environments in and around school premises. The Minister must know that, because she must have seen, as I have, children congregating in and around school premises long after the school has closed. That is the very time—late at night—when these children are most vulnerable and when the dealer will have greatest access to them. Dealers well know that children can be found in and around a set of premises with which they are familiar.

Why on earth is the Minister cutting off her nose to spite her face over this matter? It would be simple to remove the term "at a relevant time" and remove subsection (5) so that the provisions would apply in, around or in the vicinity of school premises. I cannot understand why she is resisting and providing the dealers with a loophole. The dealers will find it easy to set up their places around schools at 11 o'clock at night, after they have shut down at 8 pm, yet they will not qualify for additional sentencing on grounds of aggravation under clause 1.

I sincerely ask the Minister to reconsider my amendments Nos. 5 and 6, on which I hope we will be able to vote. The common sense of the amendments has attracted some interest from Labour Members because they realise that they are proposed sincerely to protect children in and around schools. I hope that, if we vote on the amendments, Labour Members will join us in the Lobby.

Amendment No. 3 attempts to define the term "vicinity", and I listened to what the Minister had to say. She quoted a lot from her 17 February letter, but I am no longer sure which parts of that letter are accurate, and about which she has sought further advice from parliamentary counsel. One part of the letter refers specifically to the matter addressed by amendment No. 3. She wrote:

"Where a school has residential accommodation which is not on the site where teaching takes place, then this will also be caught so long as it is not occupied solely as a dwelling by a person employed at the school."

Why is that exemption made? If a school's caretaker were a drug dealer and lived in a nearby dwelling provided by the school, the drug deals are more than likely to happen at that dwelling.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

That would be another consideration for the courts to take into account. A caretaker in the circumstances that the hon. Lady describes—living near the school and known to the students—would be caught by the Bill, even if he dealt only to adults and not to young people. It has been brought to my attention that a caretaker's accommodation is not always near the school at which he works. As a result, the exposure of young people to the dwelling is not always apparent.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

Once again, the Minister is not on the side of child protection but of the drug dealers. She has missed an opportunity with this clause. She has tried to be tough but she has failed. She is not tough geographically, because she has not sought to define what "vicinity" means in the context of a school—

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

No, as I have nearly finished and I want to leave a little time for my hon. Friend from the Liberal Democrats, Mr. Carmichael.

The Minister has not drafted the clause widely as far as time is concerned. It is a half-hearted attempt to pay lip service to protecting children near schools. She has missed a great opportunity. I hope that we can divide on amendment No. 5, if not on amendment No. 6 as well.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

I want to make a few brief remarks in the time that remains. Before that, I want to say that I agree with Mrs. Gillan about the timetabling of this part of our deliberations.

As the Minister fairly said, the bulk of the Government amendments in this group had their genesis in amendments tabled by me or the hon. Member for Chesham and Amersham in Committee. They are to be welcomed, and they greatly improve the Bill.

I have some concerns about Government amendment No. 17. The hon. Member for Chesham and Amersham explored that very briefly earlier, but there are a number of school hostel premises in my constituency that are at some distance from the schools that they serve. However, there is often accommodation—either on the premises, or in the grounds—for a teacher or a janitor, or someone of that sort.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

That would be covered, because the boundary around the accommodation for young people is taken into account and if the accommodation is on that site, the provision would apply.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

I am grateful for that clarification. The matter is not as cut and dried as the Minister is suggesting, but we can deal with that on another occasion.

Amendments Nos. 5 and 6 were tabled by Conservative Members and we anticipate a Division on them. They have some merit because the inclusion of a reference to time in addition to place leaves the provision open-ended and makes it difficult for citizens to regulate their conduct. For reasons other than those for which they were tabled, I would be minded to support the Conservatives if a Division were called.

I accept the Government's reasoning concerning the definition of "vicinity". It is sensible not to include a definition, but I wonder whether the third part of the Conservatives' amendment No. 3 relating to school transport is not consistent with the Government's approach, although not just vehicles, but many other modes of transport—

It being two hours after the commencement of proceedings on the programme motion, Mr. Deputy Speaker, pursuant to Order [this day], put forthwith the Question already proposed from the Chair.

Amendment agreed to.

Amendment made: No. 10, in page 1, line 17, leave out "a school" and insert "school premises".—[Caroline Flint.]

Mr. Deputy Speaker then proceeded to put the Questions necessary for the disposal of the business to be concluded at that hour.

Amendment proposed: No. 5, in page 1, line 18, leave out "at a relevant time".—[Mrs. Gillan.]

Question put, That the amendment be made:—

The House divided: Ayes 147, Noes 273.

Division number 92

See full list of votes (From The Public Whip)

Question accordingly negatived.