Criminal Law

Theft from Shops (Use of Penalty Notices for Disorder) – in the House of Commons at 4:39 pm on 11th March 2009.

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Photo of David Burrowes David Burrowes Shadow Minister (Justice) 4:39 pm, 11th March 2009

I beg to move,

That an humble Address be presented to Her Majesty, praying that the Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (S.I., 2009, No. 83), dated 22 January 2009, a copy of which was laid before this House on 23 January, be annulled.

The motion brings to light, and to the House's attention, the penalties for disorderly behaviour. Without it, the Government would have got away with simply rushing a statutory instrument out a few days before their policy U-turn on the reclassification of cannabis, which went live on 26 January.

The order that we are considering fixes the amount of penalty for possession of cannabis and restates the existing penalties for other offences such as theft, shoplifting and criminal damage. To determine how we come to be debating it today, we need to head back to the heady days of new Labour in 2000, when on-the-spot fines for minor acts of disorder were the previous Prime Minister's big idea. He told the Global Ethics Foundation in Germany that thugs would be marched by police to cash points. Well, we all recall the response to that suggestion, which was soon revised.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

Before the hon. Gentleman goes back to those heady days for the history of this matter, will he confirm that the Conservative party supports the reclassification of cannabis from a class C to a class B drug?

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Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I am grateful for that intervention, as it allows me to make it clear from the outset that we wholeheartedly support the reclassification of cannabis. Indeed, we have always regarded possession of the drug as a class B offence, and we welcome the Government's U-turn in belatedly recognising the harm that it can inflict and its proper status as a class B drug.

The question at the heart of the motion is not reclassification, but how the class B offence should be enforced. Later, I shall say why the order that we are challenging will lead to a downgrading of enforcement, and explain why it will not ensure that we are tough on cannabis possession.

I do not propose to go too far into a history lesson, since we still have a globe-trotting Prime Minister, but I point out that penalty notices for disorder have changed. The notion of marching thugs to cash points was revised after only a few days to a recognition that the proper response had to be based on a fixed-penalty notice regime. Now, however, penalty notices do not apply simply to disorder. One would think that there was a clue in the title—after all, they are penalty notices for disorder—but the notices have been expanded to cover offences that go beyond what we would traditionally call disorder. They now apply to theft and other offences, including the possession of cannabis. It is the latter offence that is the main focus of this debate.

The list of offences covered by notices could well have been longer than the one in part 1 of the schedule to the order. The Government originally intended to add 21 further offences, including making off without payment and taxi touting. Was it that the Government changed the list only after careful consideration, to leave us eventually with the revised order now before us? No, it was not: the list was revised only after an uproar from representative associations that had not been consulted properly. I understand that there was also a conversation between the Justice Secretary and the Mayor of London the weekend before the order was due to be considered in Committee. It was those steps that led the Government to think again.

A hastily redrafted statutory instrument that covered cannabis only was laid before Parliament. The statutory instrument relating to the motion before the House today was revoked and revised, and the 21-day period required for proper scrutiny was abridged. I draw the circumvention of normal process to the attention of the House to highlight the Government's ham-fisted approach to that aspect of delegated legislation, and to expose the dangers of increasing out-of-court disposals.

The use of out-of-court penalties has grown out of all proportion, compared with the number of people coming before our courts. Across England and Wales, in the 12 months to last March, only 724,179 of the 1.4 million offenders "brought to justice", as Government-speak would have it, actually came before the courts. This has been described in various forums as "justice in secret", and as "duff justice" in a leader in The Times not so long ago. I would describe the practice as leading to soft justice. The House does not need to take my word for that, however. John Thornhill, chairman of the Magistrates Association, has said:

"It is crucial for the public to have an open and transparent justice system where victims and witnesses will have confidence that offenders are being dealt with appropriately".

To illustrate properly what is happening in our courts, and what would happen as a result of the statutory instrument that we have prayed against, I shall give the House an example of what has happened in Staffordshire. The situation came to light last August, when a letter was sent to all the magistrates in the county by the justices' clerk. It highlights the consequences of the increasing use of on-the-spot fines. It says:

"As a result of a reducing workload directly attributable to increased use of fixed penalties and cautions by the police and Crown Prosecution Service, a number of courts have had to be cancelled each week at each of our court houses...I am deeply concerned about the increased use by the prosecuting agencies of judicial powers but it seems that those powers are likely to be used increasingly given that they are a cheaper means of sentencing than by going through a judicial process."

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

Is the hon. Gentleman saying that the Conservative party is against fixed penalty notices? They can be useful in certain cases, and I am sure he would accept that the courts are pretty overburdened at the moment. Surely there are circumstances in which these notices have proved to be extremely useful.

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Photo of David Burrowes David Burrowes Shadow Minister (Justice)

The right hon. Gentleman will have to be patient if he wants to hear our position on fixed penalty notices. They certainly have a place. If penalty notices for disorderly behaviour did exactly what it says on the tin, and were issued only for minor acts of antisocial behaviour, as originally intended, we could see a rationale for them. However, we must challenge the Government over the way in which that rationale has been extended to cover additional offences, including the possession of cannabis.

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Photo of Humfrey Malins Humfrey Malins Conservative, Woking

May I say from a personal point of view that I do not think that many of us have an objection to penalty notices for fairly minor matters, such as being drunk on a highway or depositing litter. I hope that Keith Vaz will take that point on board. However, I strongly differentiate those minor matters from offences such as possession of cannabis or theft, which are potentially very serious.

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Photo of David Burrowes David Burrowes Shadow Minister (Justice)

We can certainly draw that distinction. A case that recently came into the public eye was that of Ashley Cole, who was arrested for being drunk and disorderly and was fined £80. No doubt he was more affected by the £160,000 fine imposed by his club, but that area of offending illustrates the suitability of penalty notices, as their use no doubt relieves the burden on police time and helps all concerned.

A wholly different situation pertains in regard to other offences, however. Magistrates have contacted me, and the Magistrates Association has stated forcefully that there is ever-increasing scope for the notices to be used beyond their original remits. There is certainly a worry that they are being used more for administrative convenience than for the purpose of ensuring that justice is done and seen to be done. We know that it can be done properly in the magistrates courts, where summary justice should take place.

The burden on courts has been mentioned, but we should not assume that the expansion of the use of penalty notices will lead to a reduction of the burden on magistrates. The administrative burden is still there. Approximately half of all penalty notices for disorder are unpaid, and it is the magistrates who have to follow those cases through to try to enforce the payment of those unpaid fines. That is particularly relevant to this statutory instrument, and to the related instrument that the Delegated Legislation Committee considered in January. The explanatory memorandum to that statutory instrument stated that the costs of enforcement may be in the order of £1.5 million by year 3. On 22 January I asked the Minister for an assurance that the overstretched court budgets would be able properly to enforce the expansion of the penalty notice for disorder regime to cannabis. I repeat that question today and hope that there will be an answer.

The Government say that penalty notices for disorder are an appropriate penalty for possession of cannabis. They say, as the Minister did on 22 January, that they are an extra weapon in the police's armoury. They talk belatedly about being tough on cannabis, now recognising, as Conservative Members have all along, that cannabis is a harmful drug, and increasingly so given the high potency of the skunk varieties that are on our streets. They talk about wanting such possession to be robustly enforced. However, what is the reality behind this talk? Let us be clear that the use of fixed penalty notices for cannabis possession and the attraction, under the order, of a penalty of £80, is not a tough sanction. It leads to no criminal liability, and there is no admission of guilt and no criminal record.

The Government want to use penalty notices for several activities, including dog fouling and illegal cycling. How, in that context, can we consider them to be properly used for possession of cannabis?

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

It is surely more serious to use such a notice for theft or for giving a false report to the police, which in certain circumstances can amount to perverting the course of justice.

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Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I am grateful to my right hon. and learned Friend. Indeed, such cases can also involve other offences or attract other criminal liabilities. That is why these offences are most properly dealt with in the magistrates court. Earlier today, my hon. Friend Miss McIntosh introduced a ten-minute Bill that outlined the prevalence of shoplifting and the importance of its being dealt with other than as at present, whereby shoplifters, on repeat offending, are given penalty notices, which does not satisfy the victim and certainly does not satisfy justice.

Year by year, the Government have often treated criminal justice legislation as a messaging service when they want to sound tough, and it is no different in relation to cannabis. However, let us look at what enforcement really means. Often, the fixed penalty notice and £80 penalty is imposed not on an offender coming to the attention of the police for the first time but on a repeat offender. The Government have introduced what could be termed a "three strikes" policy for cannabis possession: strike 1 is the warning, strike 2 is the fixed penalty notice, and strike 3 is the arrest. However, the police will often struggle even to get beyond strike 1 because warnings are not being recorded. In previous discussions, the Minister herself has accepted that the position in many areas is hit and miss. With that first strike, we are in the realms of hit and miss. It does not give much confidence that the possession of cannabis will be dealt with robustly.

The computer system—PentiP—is not in place to be able to deal with the regime that the statutory instrument would have us enforce. It was due to be introduced in September 2009, at a cost of £9.3 million—an amount that has increased, as ever with such systems, to £19.3 million. We now have an indication that implementation will not take place until May 2012, yet in the recent debate the Minister said that the implementation date would be 2010. I ask the Minister once again to provide some reassurance on the implementation date of the computer system, because it is crucial that the warning be recorded if there is to be effective enforcement of the three-strike policy; otherwise, people can run up multiple warnings before a fixed penalty notice is deemed appropriate. Even if a person gets past the first and second strikes, let us not forget what we are left with at the third strike. It would effectively be a third offence, and would lead to arrest. That could involve prosecution, and the case could eventually go to the magistrates court, but it could simply mean a caution, or indeed no further action.

I do not wish to dwell today on the reclassification of cannabis; we have been consistent on that subject. The question for debate today is why, for possession of cannabis, enforcement should take the form of an £80 fixed penalty notice. Is that decision based on the prevalence of the drug? Is that why cannabis is to attract a fixed penalty notice? If that is the case, why does the policy not extend to ketamine, a class C drug that is increasingly becoming the drug of choice for young people? Is there a risk that the penalty notice for disorder regime will be extended to other drugs? Can the Minister provide a specific assurance that there will not be such an extension to other drugs, whether they be class B or class C? Would issues of prevalence, or any evidence that disorder was affected by the possession of drugs, lead to fixed penalty notice enforcement?

The problem with the statutory instrument is that there is a lack of evidence on the effect of the penalty notice for disorder. No doubt it assists the Government with their targets on bringing offenders to justice. No doubt it relieves the police of some paperwork and saves some time. However, what is the evidence that it deters offenders and ensures that justice is done? The Magistrates Association has called on the Government to gather and publish evidence, and I invite the Minister to take up that call and to say where the evidence is to justify the expansion in penalty notices for disorder. Have the Government considered the efficacy of the enforcement regime for possession of cannabis in Scotland and Northern Ireland? They have ruled out cannabis warnings, and there is a presumption of prosecution.

The order before us is not just about cannabis. As hon. Friends have pointed out, it deals with other serious offences, including theft and criminal damage. As we heard earlier today, this year there have been some 295,000 shoplifting offences; that is 6,000 a week. The largest increase in the number of penalty notices for disorder issued has been for shoplifting. The number rose from 38,000 in 2006 to 45,000 in 2007. Will the Minister provide reassurance that the use of fixed penalty notices for theft will be limited to first-time offenders, as my hon. Friend the Member for Vale of York has suggested? When, as is often the case, there are underlying causes of theft, such as the need to feed an addiction to drugs or alcohol, will that lead to intervention by the court? The court is best placed to deal with an order for treatment to deal with those underlying causes. That opportunity would be completely lost if a fixed penalty notice were simply issued.

I now come to the issue of criminal damage. Did the Minister assess the impact of reinstating the penalty for criminal damage before hastily putting the order together? Has she assessed the impact on the victim? When a fixed penalty notice is issued, the victim does not benefit from the opportunity to receive a compensation order for up to £500 through a magistrates court. Does the Minister have any details of whether such victims have taken up the only opportunity left to them, which is to pursue a civil claim? Has there been any consideration of those victims, who say that they have lost the opportunity to get true justice through the courts?

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

May I ask my hon. Friend to emphasise, too, the undesirability of using fixed penalties in respect of sale of alcohol to persons under 18? After all, it is an important part of the Government's strategy to abate alcohol misuse, which lies at the root of much other crime, especially violence. That being so, surely fixed penalties for the sale of alcohol to persons under 18 are disproportionate and unwise.

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Fixed penalties £80 are certainly disproportionate especially when Trading Standards use "agent provocateurs" to test a shop that has no "alleged" history of sale of alcohol to minors.Surely words of advice seem more appropriate than an excuse to raise...

Submitted by alan Parker Continue reading

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I am grateful to my right hon. and learned Friend. The Magistrates Association made a similar point about that offence, which is associated more often than not with violence, not being downgraded to a fixed penalty notice. It is important that we look at the rationale for each extension and whether there should be an extension. The concern that many share and which the Government have not answered is that the extension is designed to relieve administrative burdens, rather than to seek true justice in each individual case.

The order has been put together in haste. It is intended to meet the Government's policy U-turn on cannabis and to ensure that they have an enforcement regime in place, but it is an order that cannot be supported. That is the reason for the motion to annul the order. We cannot support what is, in effect, a downgrading of enforcement on cannabis. We cannot support an order that goes soft on proper enforcement or which further undermines summary justice and justice that should be administered primarily by a magistrates court, which is the public forum that is there for all to see, so that victims can receive justice and there is transparency. For those reasons, I urge the House to support the motion to annul the order.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice 5:01 pm, 11th March 2009

I begin by trying to deal with some of the points made by Mr. Burrowes. We can agree across the House that cannabis use is harmful. Cannabis is an illegal drug and should not be taken. It needs to be tackled through a comprehensive package of measures as part of a drug strategy that includes prevention, education, early intervention, enforcement—which is what we are dealing with—and treatment when that is necessary.

We believe that cannabis can pose a real threat to health. It can produce both immediate and longer-term harm to physical and mental health. For that reason, enforcement of the fact that it is illegal is an important part of deterring its use and trying to ensure that we minimise the harm caused to and by those who use it.

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Photo of Humfrey Malins Humfrey Malins Conservative, Woking

If the Minister's argument is right, why permit possession of cannabis to be treated by a penalty notice, which does not involve a criminal record and never comes to the notice of the court or anybody else? It is as though the offender has not done anything, if they pay the money. Why do that if it is important, as the hon. Lady says, to bring offenders into court for treatment?

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

I shall deal with that point. At present, the 2004 Association of Chief Police Officers' administrative arrangements on cannabis warnings for possession are in use. Any police officer catching somebody in possession has the immediate capacity and jurisdiction to arrest if the circumstances warrant it, but if it is simple possession with no aggravating features, he or she may take the view that some sort of warning is appropriate if it is a first offence. At present there is an administrative warning in England—a cannabis warning—which, anecdotally, has been used on more than one occasion.

The arrangements that we are putting in place through the order, part of which introduces a penalty notice for disorder for a second offence, create an escalation such that an individual who is caught in possession, in circumstances that the officer concerned considers appropriate, can receive a cannabis warning—an administrative warning—for a first offence, a PND for a second offence, and can be arrested for a third offence. This is a regime of escalation. I accept the importance of sending signals, as the hon. Member for Enfield, Southgate said. He called the measure a three-strike policy, but it is an attempt to escalate the consequences of being caught more than once.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

What would the Minister say to the point made by Mr. Burrowes? He said that the first stage in the three-stage process—I think it a good process—is not recorded and therefore cannot be monitored.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

That is a good point, as I have accepted in previous discussions. There are local arrangements within particular forces for making notes of such things. PNDs are now available, and can be issued for offences; that has been possible since 26 January, as the hon. Member for Enfield, Southgate said.

Possession of cannabis is a recordable offence and should therefore be put on the police national computer within 24 hours; that is the arrangement. That, of course, works only if a cannabis warning has already been given as part of the escalation. PentiP, the computer system that will record cannabis warnings and PNDs across England, will be in operation by 2010. Until then, we will rely on local forces' own, more informal recording of cannabis warnings. The PND would, of course, be recorded on the police national computer and there would be an arrest for a further offence of possession.

I remind the House, however, that every investigating officer uses his or her judgment at the time and in the circumstances. They certainly have the power to arrest for a first offence if there is an aggravating feature—if there appears to be an attempt to supply or if the individual is hanging around outside a school gate, for example. We want the individual police officer to exercise their professional judgment, and it is possible for them to arrest for a first offence.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I thank the Minister for the spirit in which she has addressed the point made by the hon. Member for Enfield, Southgate. Bearing in mind that she has accepted that it is important that we record the first stage, could she not speak to the Home Secretary about the matter? The Home Secretary could write to the chief constables of the 43 authorities and tell them that, in her view, it would be a good idea if they started to make sure that these matters were recorded in local notes. After all, we accept the sensible points made by the hon. Gentleman.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

I am happy to talk to the Home Secretary, but I do not accept that these matters are not recorded locally, although I accept that there might be disparities in how well they are recorded and that they might not all be recorded as one would hope. By 2010, when PentiP comes in, we should have a more reliable, England-wide recording system.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Minister fairly said that the police have discretion to arrest and charge. However, does she agree that the fixed penalty is an easier option for the officer, who does not have to go through the arresting and recording process and subsequently, if necessary, go to court? There is therefore a real risk that the fixed penalties will be used by officers as an easy option and that appropriate prosecution will not follow.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

We have to trust the professional judgment of the officers out on the beat. I would not expect them to issue a PND when there were aggravating features and the person should have been arrested.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

I will, but I will answer one point before taking another.

It is important that we trust the professionalism of the officer on the beat, who knows what they see in front of them. There is always a balance to be struck. Hon. Members often complain about the bureaucracy surrounding the police and the paperwork that they have to fill in. We have to be careful not to prescribe precisely what should happen in every circumstance. We have to trust the professional judgment of the officers concerned, and I am content to do that.

We are seeking an arrangement that will enable that officer to use their professional judgment, while enabling us as a society to show the escalating effect of repeated offences, which we have not had until now. That will allow us to make clear to those who continue to wander about in possession of this drug that that is not acceptable. After a certain period of time, certain leeway and certain warnings, they will be taken before the court and dealt with appropriately.

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Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The Under-Secretary is being generous in giving way, and she is taking the argument seriously, which we all appreciate. However, given that a penalty notice apparently does not require an admission of guilt and does not result in any record of a criminal conviction, what will the position be in court when the magistrate or the district judge asks for a list of matters known against the defendant, which are vital in sentencing? Will there be absolutely nothing, or something?

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

As I said, the PND for a recordable offence is put on to the police national computer, and it will be known to that degree. Magistrates will be aware of the usual escalation and will be aware that there have been previous offences.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

As I say, because it is a recordable offence, the PND is on the police national computer. If these matters get to court, magistrates will deal with them in the usual way. [ Interruption. ] Mr. Malins is harassing me from a sedentary position, but those of us who have experience of the courts can say that magistrates are perfectly capable of dealing with matters that come before them, and of doing so in an efficient and sensible way.

There has been some concern about the level of the fine. The hon. Member for Enfield, Southgate said that £80, which is the level at which the financial penalty will be fixed under this order, was too little. I do not know whether this assists the House, but the average fine for cannabis possession in 2006 was just under £80, and just over £81 in 2007. The level of financial penalty will be about the same as the average fine when a case is taken to court, according to the latest statistics. I hope that that allays any concerns about whether the penalty is sufficient.

The hon. Member for Enfield, Southgate referred to enforcement, and the hon. Member for Woking knows that it is right that only about half of PNDs are paid, because he was nodding when his hon. Friend made his remarks. If they are not paid, they are increased by 50 per cent. and enforced as fines. I can tell the House that 85 per cent. of fines are collected, but I cannot disaggregate the percentage that started out as PNDs. There is a high chance that enforcement will follow, and one wishes that individuals who are subject to a financial penalty would pay it, and that the matter would be enforced if they did not. Certainly, 85 per cent. is not a bad place to start, but we are always focusing on fine enforcement to increase that level.

We believe that PNDs offer a proportionate second step in the escalation process. Cannabis is the most widely used drug, and the PND offers a method of disposal that provides a greater penalty than simply an administrative warning—the cannabis warning that the Association of Chief Police Officers uses in England at present. It offers a disincentive to the individual concerned of a financial penalty to make them think about their behaviour, which a cannabis warning does not. If a person chooses not to pay the penalty notice, they remain liable to be convicted, and will be chased under the enforcement arrangements for the penalty that they have not paid. We therefore believe that penalty notices represent an escalation from the cannabis warning and a salutary and important suggestion to people that if they overstep the mark again, they will be going to court.

The hon. Member for Enfield, Southgate and Mr. Hogg made points about the use of PNDs changing in respect of some offences. I accept that there has been a move away from using them simply for disorder, which is where their name came from. They now cover a variety of minor antisocial offences. The right hon. and learned Gentleman made the point that PNDs are used for some offences that sound too serious to be dealt with in that way. However, they are designed to be used only at the very lowest end of the scale of those offences. For example, in the case of false reporting to police, they are for abuse of 999 calls. One would not expect them to be used for such offences at a higher level. They provide an extra option at the lowest end for the police when they are trying to make use of the limited resources that are always available. There is never enough money for them to do everything that one would wish them to do.

The hon. Member for Enfield, Southgate asked how issuing fixed penalty notices can be seen as being tougher. The answer is simply that we are moving to an escalating arrangement whereby it will be made obvious to the person committing an offence that things will get worse if they continue to behave in the same manner. We trust in the professionalism and good sense of our police officers out on the beat to make the appropriate choice, in the circumstances that they find in front of them, about whether a penalty notice is the right way forward for a particular offender. Of course, they always retain the capacity to arrest if they believe it appropriate.

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Photo of David Burrowes David Burrowes Shadow Minister (Justice)

I hear the Minister's point about the important principle of trusting our police to make decisions, but have the Government made any analysis of whether the Scottish and Northern Irish devolved Administrations trust their police more? They allow them the discretion to refer people for prosecution rather than use cannabis warnings or the escalation arrangement that the Government want to introduce. Surely the position there is eminently preferable, as there is discretion to prosecute.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

The point is that in Northern Ireland and Scotland, the administrative arrangements for cannabis warnings set out by the Association of Chief Police Officers have not been in place. If someone is caught in possession, they are therefore considered for prosecution. As all the lawyers in the House will know, being considered for prosecution does not necessarily mean that one ends up being prosecuted. Charges might not be brought, or there might be other reasons why a case does not end up before the courts.

On the financial penalty itself, as I have said, the average fine for simple possession offences in 2006 and 2007 was about the £80 mark that we have set for PNDs in the order. I cannot say that I have research to hand on whether public officials trust their courts and police more in Northern Ireland and Scotland. I will have to ask back at the Department a little later whether there is any such research, and if there is, I shall certainly point it out to the hon. Gentleman.

I hope that I have managed to deal with some of the points that have been made about the order, which the Opposition seek to annul. I hope that the House does not annul it, as along with the reclassification upwards, it forms an important part of the new arrangements for dealing properly and efficiently, but sensibly, with possession offences. Bearing in mind the fact that police retain the discretion to arrest for a first offence if they feel it appropriate, I hope that the House will agree that we should go ahead and ensure that the order is in force.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield 5:19 pm, 11th March 2009

As we have heard, the reason for our being here this afternoon is a long story. The original statutory instrument, which was laid before the House in December, had to be withdrawn at short notice because the Government had not consulted about many of its provisions—for example, the one on taxi touts. Taxi touting was one of the 21 new offences that were included in that statutory instrument. As a result of having to withdraw it hastily, the Government introduced the order that we are considering, which relates specifically to cannabis as the only new offence of the original 21.

Penalty notices for disorder are, in principle, good policy instruments for several reasons. First, they save police time. The Under-Secretary made one of the standard arguments, which we hear all the time, about the amount of paperwork and bureaucracy that keeps police from carrying out their front-line duties and ties them up in the station. Using penalty notices for disorder in the appropriate circumstances is a great time-saver. I believe that it takes half an hour to issue a penalty notice for disorder, compared with a minimum of two and a half hours for a more detailed case if the police have to go down another route. That is a great advantage.

Secondly, PNDs help to avoid criminalisation. Again, that is welcome in the correct circumstances. I tabled an amendment to the Policing and Crime Bill, which has recently completed its Committee stage, that would have a similar effect. I proposed that local authorities could take similar measures against graffiti and fly-posting and use restorative justice, thus allowing the offenders to repair the damage that they had done and avoid getting a criminal record. Hopefully, that early shock would prevent people from going on to greater criminal activity. We support the principles of restorative justice and trying to avoid criminalisation at the first stage of offending.

However, PNDs are supposed to be used for only minor public order offences and minor antisocial behaviour offences, not serious offences. A concern about the original statutory instrument was that several of the offences were more serious than the minor offences for which the Criminal Justice and Police Act 2001 provided.

In principle, we support penalty notices for disorder, but we have doubts about how they work in general, and specifically about their use for cannabis offences. Where is the evidence base for the policy? Eight years have passed since the 2001 Act, which was extended in 2004 to bring children over 10 within its scope. Incidentally, I understand that, in the previous statutory instrument debate, the Under-Secretary said that PNDs would not be used for people under 18 who used drugs and that other Acts would apply in that case.

Some 400,000 PNDs have been issued in the eight years since they were introduced. After eight years, what do we know about their effectiveness? The Magistrates Association is sceptical about how far an £80 fine would go in deterring someone who was found selling alcohol to minors, presumably from an off-licence. How do PNDs tie up with other Government police policy, such as the Policing and Crime Bill's dropping the "three strikes and you're out" to two for licensees? If there are to be only two steps, where does the £80 PND fit in that sequence?

It appears that only 50 per cent. of the people issued with the notices pay. Where is the research into what happens next? What happens to the 50 per cent. who do not pay? How effectively are they pursued? Where is the research base to show whether PNDs work? As a first step, do they help to prevent people from being criminalised and reoffending? What are the reoffending rates? It appears—remarkably—that, eight years after PNDs were introduced, no research has been conducted to ascertain whether they are effective as well as widely used. In answer to a parliamentary question, the Minister for Security, Counter-Terrorism, Crime and Policing said:

"We have...no overall assessment."—[ Hansard, 5 March 2009; Vol. 488, c. 1772W.]

For a Government who long ago proclaimed that they believed in evidence-based policy making, it seems strange that they should have neither the evidence nor the research to follow the policy through.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

Some recent research has suggested that issuing fixed penalty notices has a positive effect, but the evidence would not be described as conclusive. More work needs to done to shore up the evidence base, but some research has indicated a positive impact.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I thank the Minister for that answer, which relates to one of my final points. I hope that the Government will commit to carrying out more research on the measure, which, in principle, is a sensible move when used in the right low-level circumstances. However, although we might believe that something is effective, it seems pointless to use it for eight years, 10 years or longer without checking whether it delivers the desired results.

The Magistrates Association, which has been referred to a few times, has quite a few concerns about the use of PNDs and about the order before us, although I do not quite agree with one of them. The association is concerned that magistrates can be sidelined where PNDs are used. As I have already said, that is in part one of the benefits of PNDs for low-level disorder. The hope is that PNDs will catch minor offenders—presumably first-time offenders—and thereby prevent them from being taken to court, being criminalised and getting a record. Sidelining the magistrates courts and keeping such people out of the criminal justice system at that point would be a good thing, if PNDs are used in the correct circumstances.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

What the hon. Gentleman is saying is in part correct, but there is a disadvantage in respect of first-time offenders, which was outlined by my hon. Friend Mr. Malins. If someone has a drug problem that underlies the commission of that first offence, they do not have the opportunity to have it dealt with by a criminal court, which can make the proper provision.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

The right hon. and learned Gentleman is quite right; indeed, that is one of the points that I was coming to and it is also one that the Magistrates Association has made. I disagree with the Magistrates Association on the general principle of magistrates being sidelined by PNDs, because the whole point is to try to avoid criminalisation at the first, low-level stage. However, there are a number of cases where PNDs are used—there would have been a lot more had the statutory instrument been introduced in December—where that might be appropriate.

The example that the right hon. and learned Gentleman gave is exactly one of those cases. Does the use of PNDs for more serious offenders tackle the root cause? If a shoplifter is given a PND the first time they are caught and if the reason they are shoplifting is that they are addicted to alcohol or drugs and trying to feed their habit, giving them a PND, which they are probably not going to pay anyway because of their disorderly lifestyle, will not lead them to the kind of treatment that might result from a court order higher up. As I keep saying, PNDs have to be used in the appropriate circumstances for quite low-level offences, which was the original intention in 2001.

The Magistrates Association has expressed other concerns. One is that magistrates courts have a much better success rate in collecting fines than the 50 per cent. for PNDs. The association has also pointed out that magistrates courts are not funded by the Government for all the extra work created as result of having to deal with the fall-out from whatever proportion of the 50 per cent. who do not pay their PNDs are sent to magistrates courts.

Magistrates are worried that the Government intend at a later stage—although obviously not with the order before us today—to reintroduce some, most or all of the 20 or so more serious offences that were intended in December, which magistrates do not think are appropriate for PNDs. Those offences include throwing stones at trains. I could see that a PND might apply if someone is throwing a very small stone. However, if someone is throwing things of any size at trains, it does not take much of a leap of the imagination to see them throwing a brick through a window and killing a driver, which has happened at least once. That is not a minor offence. There is therefore concern about what might be included at a future date if we move from minor offences to more serious ones.

There is some concern about inflexibility and the fact that the figure is £50 or £80, whereas magistrates can use a lot more discretion and judgment. However, that inflexibility is probably inevitable if we are looking for a quick and simple measure that police officers can use to avoid spending half their shift in the station filling out paperwork, rather than being out on the beat.

There are a number of concerns, then, about the way PNDs are working out in practice—or might be if they are extended in the way originally proposed—but the principle remains good.

Specifically on cannabis, there seem to be huge inconsistencies in Government thinking about the drug. Recently, and against all the scientific evidence presented to them—a point to which I shall return—the Government upgraded cannabis to a class B drug. Here, however, in this instrument, they are treating cannabis as a more minor offence that is suitable for a PND in the first instance. That is a complete contradiction: either cannabis is a serious class B drug or it is not, and no other class B drug is included. Ketamine, amphetamines and Ritalin are sometimes mentioned as drugs that can be misused, so why are they not on the list if the Government really believe that all class B drugs—now including cannabis—should be treated in a certain way related to how dangerous they are?

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I am sure the right hon. Gentleman knows—but I am glad to put it on the record again—that we did not because there is absolutely no evidence to justify it, as I shall explain more fully shortly.

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Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

Let me clarify why cannabis does not equate to other class B drugs in this regard. It is because although cannabis is relatively simple to identify, some of the other drugs that the hon. Gentleman identified have to be carted off and analysed forensically, so they are not suitable for a PND.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I am grateful for that, but some confusion remains. If we go back to the original debate on the statutory instrument in January, we find some discussion of different types of cannabis took place—there is cannabis, but there is also skunk, for example, and they are of very different strengths. After the seizure of cannabis on the street on a dark night, how can a police officer identify it at first glance and say whether it is skunk or a less strong and thus less dangerous form of cannabis? As I have said, considerable confusion is evident: is cannabis a class B drug or not, and is it to be treated as a low-level offence or not? The whole issue seems to be riddled with inconsistencies.

None of that is surprising, given the Government's approach to cannabis and their policy on upgrading it to a class B drug. The Advisory Council on the Misuse of Drugs, which comprises 31 scientific experts, including pharmacologists, psychologists and the whole range, is in a position to provide the Government specifically with expert and impartial scientific advice. It said overwhelmingly that there was no case for upgrading cannabis to a class B drug, but the Government went ahead anyway, just as they went ahead in the opposite direction by not downgrading ecstasy from a class A to a class B drug, which the same advisory council had said should be done.

This is not the way to make criminal policy or drug policy, as it is simply using legislation as a press release or as a means of getting tabloid headlines, which are a short hit with the voting public, but have no effect whatever on what happens in real life. We see a parallel example in the Policing and Crime Bill, which increases the fine for possessing alcohol in a prohibited public place. It is currently £500 and it is to be increased to £2,500, but nobody has ever been fined more than £250 and most people do not pay it anyway. It is pure grandstanding and pure headline making rather than serious criminal legislation or serious drug policy.

Many people were disappointed by the Government's decision totally to ignore the overwhelming scientific advice on cannabis. When the Phillips report on the BSE disaster was produced, there seemed to be a general acceptance among politicians and the Government that, in future, public policy should be based on proper scientific research and evidence rather than a political knee-jerk reaction and whim.

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Photo of David Davies David Davies Conservative, Monmouth

I am grateful to the hon. Gentleman for giving way, but I think that we have sat here listening to this "cannabis isn't dangerous" argument long enough. If he feels that way, does he agree that it is disgraceful that barristers in courts of law often use their clients' dependence on cannabis as some sort of excuse for serious offences? If he thinks that cannabis is not harmful, does he agree that that should never again be accepted in a court of law as an excuse for breaking the law?

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I am puzzled by that intervention. First, I have never said and never would say that cannabis is not harmful—in fact, I am going on to say just the opposite—and nobody has said that during the course of this debate. I do not know where the hon. Gentleman pulled that one from—certainly not from anything I have said. Secondly, dependence on cannabis should never be used as an excuse for wrongdoing in a court of law. I agree that barristers sometimes behave in a disgraceful way when arguing their case, but then I have never been a barrister, and have never had any desire to be one.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

No, not if the hon. Gentleman's intervention would be of the same standard as the previous one.

There is much to be said about the part played by facts and scientific evidence in the making of policy on matters as serious as drugs and criminal activity posing danger to individuals. Between 1998 and 2005, notwithstanding all the folk moral panics that the Daily Mail and others keep spreading, the number of instances of people being registered with doctors, psychiatrists and psychologists owing to problems such as schizophrenia were falling. We were told, however, that the number of cases of schizophrenic disorder were increasing because of the increase in skunk usage. The evidence suggested the exact opposite, but, as we have seen on a number of occasions, it was a case of "Don't let the facts get in the way of a good bit of knee-jerk posturing".

Following the decriminalisation of cannabis by the present Government in 2004, cannabis use decreased. According to all the knee-jerk posturing it had increased, but, again, all the evidence suggested the exact opposite—and again it was a case of "Don't let the facts get in the way of preventing sensible policy-making".

As for whether cannabis is dangerous, of course it is dangerous. Lots of drugs are dangerous. Aspirin is dangerous. Alcohol is dangerous. According to one member of the Advisory Council on the Misuse of Drugs, Professor David Nutt,

"Alcohol is more harmful"— more harmful than cannabis, that is—

"to the population, certainly, and to the individual, possibly."

Alcohol is a legal drug, but, according to all the scientific evidence, it is more harmful than cannabis. People say that cannabis leads to harder drugs. It is 100 per cent. guaranteed that anyone who has ever taken a harder drug, although they may or may not have started with cannabis, drank alcohol before proceeding to harder drugs. People keep repeating a nonsensical theory of cause and effect. Of course cannabis is dangerous. Of course smoking cigarettes is dangerous, although at least it does not cause violent or antisocial behaviour. Of course alcohol is dangerous.

I have often been out on patrol with the police. If one asks what causes them the most problems during a typical working week out on the streets, they will say that, above all else, it is alcohol. Recently, when we were taking evidence during the Committee stage of the Policing and Crime Bill, I asked what substance needed most to be controlled. The answer was alcohol. Of course cannabis is dangerous—all drugs are—but we have a legal drug that is far more dangerous, and we treat it much more leniently than cannabis. Cannabis is less dangerous, but we treat it much more harshly.

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Photo of Bob Spink Bob Spink Independent, Castle Point

I understand where the hon. Gentleman is coming from, but will he give an honest answer to this question? I do not know whether he has children, but would he allow his children to drink alcohol, and would he recommend the use of cannabis to them?

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

As one who has always found the drinking of alcohol more than enough of an issue—although at least alcohol tells people when they have had too much, because they start to slur, fall over and get headaches—I would not suggest that anyone should take drugs, illegal or otherwise. However, I do not think that that is the point. What we are discussing is the reality of the world in which we live. How can we deal sensibly with the misuse of drugs, whether or not they are illegal drugs such as amphetamines, ketamine, cannabis, heroin, crack cocaine, ecstasy and LSD? To me it seems self-evident that the sensible way to deal with such drug issues is to examine the scientific evidence and make rational policy based on it.

Why should we treat a drug such as cannabis, which the experts say is less harmful than alcohol, more severely than alcohol? That is illogical. I know that part of the reason is historical—alcohol has been around in western society for much longer than cannabis, and we are where we are—but that is no excuse for a Government of either party to keep digging themselves in deeper by ignoring all the scientific evidence on which they themselves have called, and then to say, "We'll ignore all that, because we must get a tabloid headline."

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Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman is making plain to the House his belief that alcohol is more harmful than cannabis. Very well. He was asked a question earlier; let me now ask him to answer it in a straightforward way. If he had a daughter who said to him on a Friday night, "I propose, Daddy, to take three spliffs of skunk or three glasses of wine", which would he prefer her to take? Let us have a straight answer in the context of a family situation.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I would prefer the wine. I could sit around the table and drink a glass of wine with that person—I do with my children, two of whom are now adults. However, I do not think that that is particularly relevant to what we are saying.

I wish to quote one or two more people who know what they are talking about on these issues. Professor David Nutt of the Advisory Council on the Misuse of Drugs said:

"Some individuals do get unpleasant mental reactions" from cannabis use

"but they are relatively small in number."

We can also say that quite a large number of individuals get an unpleasant mental reaction from the misuse of alcohol. He continued:

"We are not convinced that moving it to Class B with the possibility of five years' imprisonment for possession will have any beneficial effects", but the Government went ahead anyway.

There has been a reaction from various bodies that work to help drug addicts and people with these huge social, personal problems. Transform, the drugs policy think tank that was quoted earlier, said:

"It's a decision that has been taken for political reasons, to trump the Tories' law and order agenda, rather than for any scientific reason.

Nobody is going to be put off smoking cannabis by the decision to reclassify it...cannabis can be dangerous to a few"—

I have accepted that it can be—

"yet two million people regularly smoke it—we should have a regulated and supervised market for it, rather than putting its distribution in the hands of criminals."

That is one end of the spectrum.

The independent drugs charity DrugScope said:

"We remain concerned that the government rejected independent expert advice...a worrying precedent has been set.

There is no evidence that moving the drug to Class B will of itself reduce levels of use, harm or availability nor is there evidence that the public wants to see tougher penalties for cannabis possession, particularly for young people.

Cannabis is a harmful drug", as I have said,

"and we do need to be vigilant. Using the classification system to 'send out a message'" rather than looking at the real effect based on the science,

"is a blunt and questionable approach, particularly if it risks undermining...credibility."

To return to a previous example, I remember when I was a teacher, about 15 years ago. It was exam season and the 16-year-olds were off on exam leave for their GCSEs. One lunchtime a group of them were in a classroom. They had not been at school for a week or two, and I went in to have a chat with them. They were arguing. Three or four of the girls were berating one of their friends because that night after the exam she was going to smoke some cannabis with her friends. She was arguing, saying, "Tonight, you'll be out drinking lager in the town centre with all your friends falling over, vomiting and getting violent and shouting. I'll be sat having a chilled, happy chat with my friends at home not doing that. Which is better?" That was that 16-year-old's opinion some 15 years ago. As a teacher with 22 years' experience, I can say that 16, 17 and 18-year-olds are smart, intelligent and savvy. If someone tells them lies about the impact of a particular drug, they are not going to believe them. We must base policy making on sensible, rational approaches, and making cannabis a class B drug is not such an approach, as every bit of scientific evidence shows and as every group of experts who work in the field have said repeatedly.

There are a number of questions, all of which I have touched on. Will the missing 20 offences be introduced after December and added to the PNDs, in which case there will be some concern that PNDs, which are good in principle, are moving away from minor, low-level offences into more serious offences? Which is inappropriate? Will some violent offences be included? They were going to be among the original 21. Apparently, the magistrates feel from lobbying the Government that they have won that one and those offences will not be included.

Will research on the effectiveness of PNDs be undertaken? As I say it is eight years since the experiment began. It was a very good one and probably should be working. However, we should know whether it is or not, and not just assume it. That was the point I made about drugs policy: let us base it on evidence and reality, not on what we think. Will other class B drugs be included at a later stage and treated in this way? Apparently, from what the Minister said earlier, they will not be, but it seems illogical. If cannabis is a class B drug, why treat it in such a low-level way with a PND and why not treat other class B drugs in that way?

There is no consistency in what the Government are doing. The order is poorly researched. It is illogical and inconsistent in singling out one class B drug. We believe, for reasons other than those advanced by the Tories, that the House should reject the order and that the Government should go away and think again.

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I now have to announce the results of Divisions deferred from a previous day. On the question relating to the second strategic energy review and European energy networks, the Ayes were 269 and the Noes were 65, so the Ayes have it.

On the question relating to representation of the people, the Ayes were 402 and the Noes were 58, so the Ayes have it.

On the question relating to the Adjournment (Easter), the Ayes were 273 and the Noes were 195, so the Ayes have it.

[The Division lists are published at the end of today's debates.]

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee 5:45 pm, 11th March 2009

It is always a pleasure to follow Paul Holmes, but I would not want the public watching from the Gallery or on the Parliament Channel to think that the only choice that Members of Parliament give to their children is, "Would you like some red wine or some cannabis?" The hon. Gentleman very honestly answered the question from Mr. Malins, but there are other social activities available to the children of Members of Parliament.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

Simply for clarification of the record, and before my words are twisted, I was responding to a hypothetical question from a Tory Member. It was not something that I suggested.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

Absolutely, and the hon. Gentleman was not given a multiple choice beyond wine or cannabis. I am sure that in Chesterfield there are lots of other choices available to the children of Members of Parliament.

This is a very serious debate and although the hon. Member for Chesterfield pointed to what he regarded as an inconsistency on the part of the Government in hyping the importance of a debate on drugs yet ensuring that the penalty was not as serious as it should be by using this method of enforcement, I think that there is agreement on all sides of the House about the harmful effects of cannabis and the serious nature of drug taking.

At the moment, the country is gripped by the story of Julie Myerson and her young son in the book "The Lost Child". I have not read the book but there has been much press comment about it and about how a parent can become so frustrated with the drug taking of his or her child that they lock them out and exclude them from their homes. That is not the only example; there are many other case histories that we have read about.

The Government are right to begin any consideration of the policy of enforcement with a clear and unequivocal statement about drug taking and drug use. The Minister was right to point out the harmful effects of taking cannabis. There is research and medical evidence to support what she said and although this debate is not specifically about cannabis—in the sense of whether our penalties are severe or not—and is on a limited motion that deals with enforcement, it is important that the House looks at the issue.

I am pleased to see in his place David T.C. Davies, who is a member of the Select Committee that I chair. The Committee has decided to undertake a major inquiry into drugs that will begin at the beginning of April. We will look not just at what the Government have done in this case and at classification, but at the way in which drugs enter this country and at whether the penalties are sufficient to deal with what has been an increase in the availability of cannabis and other drugs. It will be a long inquiry and will be concluded at the end of the year, and we are willing and eager to have evidence and views from all political parties.

Mr. Burrowes made what I regarded as a thoughtful speech in which he accepted the Government's position on cannabis but was worried about the process. He is perfectly entitled to be concerned about these matters, but I ask him not to let the process get in the way of a decision that has to be made by the House today. I hope that the Conservative party will not vote to have the order annulled because it is important that we have the necessary penalties in place to deal with the situation. I know that he feels that the penalties are not sufficient. I gather from his speech that he would like the £80 fine that is to be imposed to be even higher, but I think that the three-stage process set out by the Government is a method that works and that we can support.

I hope that the Minister will, as a result of the debate and the other deliberations she has had upstairs, now ensure that sufficient research is done in support of the Government's view that those penalties work. I know that some research has been commissioned in the past, and I do not think the issuing of 400,000 fixed penalty notices since 2004, implemented across all 43 police forces, would have resulted in nobody being discomfited, so such steps clearly work, but there is a need for further research of the sort that the hon. Member for Enfield, Southgate spoke about.

The hon. Gentleman was also right when he said that this three-stage process must be properly monitored, and I was grateful that the Minister responded positively to that suggestion. The worry is that the warning that should currently be given is not in the local notes of police officers. That is why I have put to the Minister—and I put it to her again now—that if there is concern that there is not proper monitoring, the proper course of action is for the Home Secretary to write to the chief constables in the 43 areas or to communicate with ACPO. There are many methods by which the Home Secretary can get across to chief constables the importance and necessity of recording such information—and I notice that the Minister for Security, Counter-Terrorism, Crime and Policing has just entered the Chamber to listen to the debate. I think that that deals with the Opposition's point. I therefore hope that the Under-Secretary of State for Justice, my hon. Friend Maria Eagle, will go away and, not have an informal chat with the Home Secretary, but actually make sure something is done to support this, so that there can be more robustness to the three-stage process that she spoke about.

On the level of penalty, I have no problems with the fine that has been mentioned or with the effectiveness of the PNDs. I think they have been effective. We know that skunk now accounts for between 70 and 80 per cent. of the cannabis seized on the streets, whereas six years ago it only accounted for 15 per cent., and, as we also know, skunk is a much stronger version of the drug.

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Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

As Chair of the Select Committee on Home Affairs, does the right hon. Gentleman have more evidence for what he has just said about knowing that PNDs are effective? The Government do not have any evidence on whether they are effective or not—there is no research base—so has the Select Committee taken any evidence on this? The Chair of the Select Committee said he knew they had been effective—how?

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

From the information that has come to me. No, we have not taken evidence on this, which is why it is important that we look at this issue in the inquiry we are about to start, and I promise the hon. Gentleman that we will. Obviously, the Government take slightly longer than a Select Committee to commission reports and then review them and conclude, but we will look into the issue, and it is to be hoped that we will have the evidence he seeks. If PNDs are not effective, he can be clear that, with Members such as the hon. Member for Monmouth sitting on the Committee, the report will not be agreed by the Committee. We will certainly look at penalties.

I also want to discuss the effectiveness not of Government policy, but of the Advisory Council on the Misuse of Drugs. The hon. Member for Chesterfield referred to Professor Nutt. It was Professor Nutt who said recently that there was not much difference between horse-riding and ecstasy, and it was Professor Nutt and his council who said that cannabis should be downgraded from class B to class C. The body is called the Advisory Council on the Misuse of Drugs and it only advises the Home Secretary, and it is right that, in the end, the Home Secretary and politicians, who are accountable to this House, should make the final decision. The Home Secretary needs to have a few words with the chairman of the advisory council. First, she needs to put him right on his statement, although I think that he has made some subsequent comments about it. At the end of the day, it must be for the Home Secretary to decide on these matters and for the Government to send out an appropriate message.

If the Opposition vote to annul this order, they will be sending out the wrong message to the public—that this House does not treat the issue seriously enough. In accepting penalty notices for disorder and talking about the need for more research, and with the increase in the amount of skunk available on the streets of our capital city and other cities, the Government need to send out the message that it is vital that we continue with the Home Secretary's tough line on drugs. We must continue to ensure, even if the advice is against us, that if the Home Secretary and the Government feel that it is important to reclassify this drug, that is what we should do. It is what we have done and we should ensure that we monitor the process so that those who mistakenly believe that in some way taking drugs is acceptable social practice—whether they are celebrities or whoever else—understand that this House will be very serious about the way in which it deals with this real and difficult problem.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 5:56 pm, 11th March 2009

Because of the lateness of the hour, I shall be brief. I am not opposed to the principle of fixed penalty notices. They have a role to play, but they should be confined to relatively minor transgressions. Indeed, I would qualify that by saying that they should be confined to very minor transgressions.

My anxiety, looking at the schedule, is that the fixed penalty notices are capable of being applied in more serious cases. For example, in the example I gave to the Minister, giving a false report to the police can amount to conspiracy to pervert the course of justice. We can all recognise that theft is a very serious offence, and criminal damage ditto. The point about the sale of alcohol to persons under 18 has been ventilated frequently in this House. Incidentally, the last offence under part 1—knowingly giving a false alarm to one of the emergency services—can be a very serious offence.

The Minister made a perfectly fair point in that she said, rightly, that the police have discretion and that a constable on the beat, identifying an offence of this character, can choose to arrest and to go through the prosecution process. However, that places a considerable burden on the police because they have to go through the arrest process and they might have to turn up in court. There is a temptation to an officer on the beat. Incidentally, many years ago I was a special constable, so I have some experience. There is a real temptation to take the easy option. Although I am not saying for a moment that all officers will do that, some certainly will. The truth is, as I have often said in this House, that if one gives powers to officials one can be sure that those powers will be abused at one stage or another.

The problem, it seems to me, is that when we extend the capacity to apply fixed penalties to offences that are not minor, we can be quite sure that on occasion they will be applied in cases that should go to the courts. Hon. Members have cited various good reasons why such cases should go to the courts, especially when an addiction of one kind or another is an underlying cause. In any event, I think that theft, for example, is an offence that should generally go to the courts. I am unhappy therefore with the concept of the various offences that I have mentioned, which are capable of being serious, being included in the schedule.

I want to be brief, as I know that three other hon. Members want to speak. I shall vote with my hon. Friend Mr. Burrowes against the order, because it includes offences that should not be contained in the schedule.

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Photo of Humfrey Malins Humfrey Malins Conservative, Woking 5:59 pm, 11th March 2009

I, too, shall be brief in view of the shortness of the time. As always, I declare an interest as a lawyer, Crown court recorder and part-time district judge. What troubles me about the principle of fixed penalty notices is that the motive behind them seems to be to make life easier and simpler for the police, with less form-filling and less hassle than going the whole way to court. If that is part of the motivation, I think that it is wrong. I entirely agree with my right hon. and learned Friend Mr. Hogg that, if the matter concerned is of the very lowest seriousness—such as dropping litter, and so on—there is a case for the use of a fixed penalty notice. However, that is not appropriate for the more serious offences.

I am troubled about judicial discretion being exercised largely by officers on the beat, and I fear that some very serious matters will simply not see the light of day if penalty notices are being issued. The notes accompanying the order state:

"Penalty notice disposal provides the recipient with the benefit of an administrative disposal which does not require attendance at court nor an admission of guilt and does not result in a record of criminal conviction."

That would be fine for dropping litter and similar matters, but what about the other offences? As my right hon. and learned Friend the Member for Sleaford and North Hykeham said, the schedule contains some serious offences. Theft carries a prison sentence, but the list includes wasting police time, criminal damage and selling alcohol to under-18s. It cannot be right that, for all those offences, something happens that does not result in any record whatsoever. Moreover, many of the offences also have victims, but they appear to have no say in what will happen.

I am troubled by those two points. In the remaining minutes at my disposal, I want to make it clear that I am also troubled that cannabis possession is to be included in the list of offences for which a penalty notice is handed out. Goodness knows what the courts will think when they discover that neither magistrates, judges nor anyone else will be able to know that a penalty notice—for theft, say—has been handed out to the people come before them. The law will not allow that knowledge to be made available, as it does not amount to an admission of guilt. It is therefore not relevant and cannot be taken into account.

Opinions vary about the sentences that should be handed out for cannabis possession, but I believe it to be a gateway drug to more serious crime. When a person is up for possession of cannabis, I would prefer it if the courts did not say, "Stand up! Here's a £50 fine, next case, please!" I want the courts to take that offence more seriously, as I believe that, in the long term, cannabis can be very damaging drug indeed.

I am unhappy at any suggestion that the possession of cannabis—and skunk, of course, is so strong—or other potentially serious offences can be dealt with, not by a judicial authority but by something happening in the street, no record of which is kept at all.

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Photo of David Davies David Davies Conservative, Monmouth 6:02 pm, 11th March 2009

Like another hon. Member who spoke earlier, I want to declare an interest in that I am a serving special constable. I am also a member of the Home Affairs Committee.

In an ideal world, there would be no such things as penalty notices for disorder. Unfortunately, the world that we live in is not ideal. The reality is that two police officers halfway through a shift who are faced with a person who has committed a minor offence will have to make a choice: they can turn a blind eye—one would hope that that would never happen—issue a penalty notice for disorder, in some instances, or make an arrest.

Let me make clear what making an arrest would entail for the two officers. Because of the rules about how custody suites must come up to various standards these days, they are few and far between, so the officers would have to wait for transport to take them to a police station far away. They would then have to wait to book their prisoner in, and wait again while the prisoner was assessed medically and while a solicitor and perhaps an interpreter were found. The officers would have to write up their notes, and then go back to interview the prisoner. The long and short of it all is that the officers will have written off practically their whole shift. A lot of time will also be used up by the custody sergeant and the other people involved in the process.

If, at the end of all of that, a meaningful sanction is applied to the prisoner, the process will have been worth while. However, if the person who has committed a minor offence is back out on the streets a few hours later and faces only a small fine some way down the line, one has to ask what any of it has achieved.

I am not against PNDs; in fact, I have come around to them, in principle, as a way to make the best of a bad job. The question that concerns me has to do with the crimes for which they are used. For the same reasons that other hon. Members have already outlined, I have a problem with PNDs being used for any form of theft, such as shoplifting, or of drug abuse. I do not accept the comments made earlier by an hon. Member who seemed to liken cannabis to alcohol. Cannabis is a very dangerous drug that leads on to other drugs. It is often used as a defence for heinous crimes, which suggests to me that the courts and the authorities need to bear down as strongly as possible on this drug. With all due respect to the Minister, I fail to understand why PNDs are being issued for the possession of cannabis.

I can think of two other offences that cry out for PNDs, and it might interest the Minister to know that I have tabled an amendment to the Policing and Crime Bill, proposing that we implement PNDs for people who have committed minor ticket offences on the railways. I know from my own experience that the British transport police spend a great deal of time trying to sort out people who have committed such offences, and it would be absolutely great if they could give out a PND and impose an instant fine on people who admitted the offence. That would save a vast amount of time.

Another offence that is worth looking into in this regard relates to what I call professional beggars, although I would not want to table an amendment on the matter without doing further research. The people in question are often removed from railway stations and other places with very large amounts of money on them. They are often not arrested for any offence, but if they could be given an immediate PND, some of that money could be taken away from them. So there is a place for penalty notices for disorder.

If the Minister is trying to free up police time, I offer her those two suggestions in all helpfulness. I urge her please to look at the amendment that I have tabled, to see whether the Government can find a way of supporting it. It would have widespread support among the police, and I cannot see how it would go against anything that her Government stand for politically.

In an ideal world, offenders committing any sort of an offence would simply be marched into a court. There would be no long process; they would appear before a magistrate straight away and they would receive summary justice. We do not live in an ideal world, however. I hope that things improve, but until they do, there is a place for PNDs. Let them be used effectively, however, and let them be used for appropriate offences. Theft and drug possession are not appropriate offences for PNDs, and I will therefore oppose the motion.

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C

I think you will find Mr Davis that Alcohol and Tobacco are far more dangerous than Cannabis, and indeed, many other drugs under the current classification system. You will also notice that they are 2 of the most highly addictive drugs with a definate causal link to cancer of the internal organs, devistating mental health impacts not to mention family and social dissorder problems. If you want to spot your gateway drugs then you can look no further than Cigarettes and Alcohol. The majority of people who smoke cannabis have previously been smoking cigarettes. There are very few who go straight on to smoking cannabis as cigarettes are much easier to get hold of. Then you have Alcohol, which we are told is good for you in very small amounts, then suddenly told the opposite. The government are happy to extend opening hours and put more strain on the police force and the dangerous graveyard shifts that the nurses have to work in A&E fixing up drunkards and thier victims. Children gain access to alchol with great ease, is it any surprise that children want it? They see it on the shelves in the supermarkets, General Stores and Garages (so much for "Dont drink and Drive"!) This is how I would propose the government take control. Firstly, Alcohol & Tobacco should only be sold in offlicenses and Pubs/Restaurants and so on. They should NOT be on the shelves in supermarkets, General stores and Garages. Cannabis should be legalised for personal use, cultivation for personal use should also be legal with a limit on the amount of plants grown as well as the need to aquire a license to grow. Cannabis cafe's should be allowed to open to help give people the right information on how to smoke cannabis safely, or even other methods of injestion. These establishments should not be allowed to sell cannabis to anyone under 18, It is time to give people information and the freedom to enjoy thier lives without fear of being made a criminal for deciding to have a smoke at home or with friends, instead of filling up the A&E and prisons with thousands of drunks every weekend. This government is falling way behind the times and in doing so is lookin more and more like a sinking ship. The only true way to solve this sort of problem is to remove the money out of the hands of the criminals, Tax the legal sales of cannabis and put it into youth centers, rehab centers, community projects. Cannabis, has been given a very very bad name by yellow journalism and this labour government. The vast majority of police officers, AM's, MP's, even psychiatrists and doctors say that it should be regulated. Cannabis is NOT addictive, Cannabis Psychosis is not actually the onset of schizophrenia caused by cannabis use. Schizophrenia is not caused by cannabis, it is a hidden...

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Photo of David Burrowes David Burrowes Shadow Minister (Justice) 6:06 pm, 11th March 2009

We have had an interesting and important debate, and it was a debate that the Government did not wish us to have. Their view was that the order should have been dealt with under the negative resolution procedure. If that had happened, this informed debate in the House would not have seen the light of day.

Keith Vaz urged the Opposition not to let process get in the way. This debate has highlighted the lack of process, the abridged time in which the hastily drafted order was put before the House, and the fact that 21 offences were taken off the order and that the order was revoked and then revised in its present form. We have been able to highlight those points today.

The debate about the process goes further, however. The process that the Government want to implement is an escalator, comprising the three-strikes warning, the fixed penalty notice and finally the possibility of arrest and prosecution. The reality that has been exposed today is that that escalator is not functioning, and it is unlikely to do so in many parts of the country, given the lack of a computer system and a means of recording the offences involved.

Opposition Members have also highlighted the number of serious offences in the order, and on the schedule, that will now be dealt with using a fixed penalty notice, rather than properly seeing the light of day in the courts. Summary justice has traditionally been done, and seen to be done, in magistrates courts. As we have already seen, the risk is that the expansion of the use of PNDs, which have their place in limited circumstances, will lead to their falling into disrepute. It could also have that effect on summary justice. The order that the Government sought to push through under cover has come to light, and we now need to annul it. I urge hon. Members to do that today.

Question put.

The House proceeded to a Division.

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker 6:09 pm, 11th March 2009

I ask the Serjeant at Arms to investigate the delay in the Aye lobby.

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The House having divided: Ayes 197, Noes 272.

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Question accordingly negatived.

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