My Lords, I beg to move that the House do now again resolve itself into Committee on the Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
I wish to speak to all the amendments standing in my name. Several of the amendments to this Clause suggest being more specific about those whom the Home Secretary must consult about new codes or proposals to amend existing codes. Currently Clause 9 specifies as consultees only persons representing the interests of police authorities and persons representing the interests of chief constables, together with such other persons as the Home Secretary thinks fit. We agree that it is sensible to include the Law Society and the Bar Council and they are covered by government Amendment No. 32 That amendment also includes the Institute of Legal Executives as members of that organisation will frequently be involved in advising detainees at police stations and will therefore have day to day dealings with the codes. That was a point made in Committee in another place and we accept its validity.
We do not agree that magistrates need to be specified as consultees in every case as suggested by Amendment No. 33 They have a direct interest in only certain aspects of the codes and the proposals in Clause 9 allow ample scope for them to be consulted where that is necessary. Amendment No. 34 would expand the reference to the Secretary of State consulting with such other persons as he thinks fit to specify that such persons must have experience in the general field of activity covered by the codes. We do not think that is necessary, as targeted consultation would obviously be directed towards people who are in a position to comment on new codes and proposed changes from an informed position.
Amendment No. 35 would require that the persons to be consulted on new or revised codes at the discretion of the Home Secretary should be specified in a list issued by him and should include organisations involved in consultations on revisions of the codes prior to these latest proposed amendments to PACE. We think that would defeat a key objective of Clause 9, which is to enable consultation in each individual case to be directed towards those organisations and individuals best placed to comment on the particular issues raised, which will vary from item to item. Requiring what would be very broad consultation for even the most minor amendments would tend to reinforce the bureaucratic nature of the whole process rather than to make matters more straightforward in the way we are proposing.
Amendment No. 36 would require that among those whom the Home Secretary thinks fit to consult should be included those representing the interests of the victim, lay and professional witnesses and defendants. Once again, we suggest that that would tend to undermine the intention of allowing for targeted consultation according to the specific subject matter. The requirement to consult the main representative bodies for the legal profession, which we are intending to include, does much to cover the interests of defendants, victims and witnesses. However, there will clearly be many situations where broader consultation will be necessary and the clause allows for that.
We are looking to minimise the bureaucracy surrounding the introduction of any new or revised code and provide a targeted and focused approach to consultation. Amendment No. 37A may provide an element of bureaucracy. It would add an unnecessary feature of laying the list of consultees before Parliament at the same time as a code. We have already indicated in considering Amendments Nos. 34 and 35 that the Secretary of State will consult as considered relevant and necessary. The focus should be on the content and effectiveness of any new or revised code and not on elements of the process of achieving that outcome.
Following on from discussion in another place and taking into account the views of the Home Affairs Select Committee, we have been considering the procedural options for dealing with new and amended codes. We now accept that the affirmative procedure is justified for new codes and significant amendments and that is reflected in government Amendment No. 37, which stands in my name. However, we have been trying to devise a quicker route for handling minor and straightforward changes.
We have looked hard at the scope for involving the Home Affairs Select Committee in advising on whether specific changes warrant detailed parliamentary scrutiny or not. However, there are substantial legal difficulties in the way of specifying a role for the committee in the Bill. In particular, the difficulties arise from the fact that the names and functions of parliamentary committees are subject to change over time. We have seen that happen in the past few years. We might in due course be faced with a need to change primary legislation to remove or modify a statutory requirement for consultation that was not compatible with the way Parliament reorganised its business. I understand that there are also difficult issues linked to the mechanism by which the Secretary of State would consult such a committee in pursuance of a statutory obligation and the remedies available to the committee if he failed to do so.
A more workable alternative is to amend the legislation so that there is effectively a choice between affirmative resolution and simply laying before Parliament for any proposed changes. That is the approach reflected in Amendment No. 37. Further to that, I am prepared to give an undertaking here in Committee that the Home Secretary will seek the Home Affairs Committee's advice on the appropriate procedure for each and every proposed amendment to the codes and also that he will be bound by the committee's advice in every case. That will effectively ensure informed parliamentary oversight of the procedure to be used, but without referring to the committee in the Bill.
In summary, the government amendments which have been proposed go a considerable way towards meeting the concerns that have been raised and ensuring that new and revised codes are subject to adequate processes of consultation and parliamentary consideration. We recognise that the proposed involvement of the Home Affairs Select Committee is an innovative idea, but we hope that it can prove very effective in practice in ensuring sensible levels of parliamentary scrutiny. While we resist the opposition amendments, that is against the background of our own proposed amendments picking up what we regard as the most telling and important points that they raise. We also recognise that the Delegated Powers and Regulatory Reform Committee has not yet had an opportunity to consider our amendments. We shall of course consider its comments very carefully and, if necessary, review the position in the light of its recommendations. With that explanation, I hope that noble Lords will feel able to be content.
As the Minister said, we have tabled some amendments in this group. I listened carefully to what she said in justifying her position and attempting to destroy ours. I hear the words "targeted consultation" and "minimising bureaucracy", which is all good stuff. However, we are not entirely happy, and the amendments require a further airing.
As the Minister said, the amendments revise the codes of practice. We are grateful that the Government have tabled amendments that have gone some way to meeting our concerns. However, the practical operation of the last eight clauses that we have been debating will be governed by the codes. Much of our discussion in the Chamber has been understandably at a strategic—even a bird's eye—level, but the PACE codes of practice are the fundamentals of the system, where it comes most closely into contact with the general public.
Until now there has been a wide consultation process, laid down in Section 67(1) of PACE, which states that:
"When a Secretary of State proposes to issue a code of practice to which this section applies, he shall prepare and publish a draft of that code, shall consider any representations made about the draft and may modify the draft accordingly".
We are concerned that under the umbrella of bureaucracy minimisation and cutting down on and focusing consultation, the Government are proposing to narrow and shorten the consultation process too much. We agree with the Government that maintaining public confidence in the integrity of the system is absolutely critical. Is it wise in such circumstances to reduce the consultative process?
We also have some more specific concerns that our amendments address. Clause 9(4) lists the people who have to be consulted before any revision of a code. We agree with the noble Baroness that, as originally drafted, the consultation process seemed a little one-sided. Subsection (4)(a) refers to the police authorities, subsection (4)(b) to the chief officers of the police and subsection (4)(c) to such other persons as are thought fit. Of course, the police need to be involved, but there are others who need to be involved and to be able to make their views known.
The Law Society has provided us with a very helpful briefing on this point; it observes that the codes affect all aspects of pre-charge investigation, in turn affecting the post charge process, and can often affect the operation of the duty solicitor scheme. Accordingly, where there is to be a change in practice, it is in the interests of effective implementation, as well as in the interests of justice, for there to be obligatory consultation with all relevant parties.
Amendment No. 33 widens consultation to include what one might describe as "the legal professionals", two of which the Minister swept up in her amendment. However, we remain concerned that magistrates are being overlooked. They are very much at the sharp end of the practical implication of the codes. We should also like to see the Central Council of Magistrates' Courts Committees and the Magistrates' Association brought into the consultation process.
Our Amendments Nos. 34 and 36 take the issue wider, including representatives of the general public who become involved with the courts, as well as interest groups that deal with the impact of the judicial system. We have had a most helpful briefing from the Children's Society, which outlined some of the practical difficulties and implications if consultation is to be restricted in future. It says:
"The Children Act 1989 gave a technical legal definition of the term 'in care', meaning a child is subject to some form of care order, introducing the term 'looked after' for children living away from home and 'accommodated' for children for whom the local authority does not have a share in the Parental Responsibility. It is only after many years of representations that the significance of this has been acknowledged in the Codes of Practice. There is now a changed wording over who may act as the appropriate adult for looked after children consistent with the language and concepts of the Children Act 1989. Without the current duty to consult widely the representations necessary to effect this change would not have been considered and this long overdue change not happened".
Finally, the noble Baroness said that Amendment No. 37A was unduly restrictive, but it is an attempt to ensure that consultation on future codes is sufficiently wide by requiring the Secretary of State to disclose who has been consulted. Otherwise, the assurances given by the noble Baroness this afternoon—no doubt in absolutely good faith—will not bear heavily on her successors. The noble Baroness, Lady Walmsley, has taken a similar approach for the Liberal Democrats with Amendment No. 35, to which my noble friend Lady Anelay has added her name. I look forward to her contribution.
Our case for the amendments can be simply put. We are all agreed that maintaining public confidence in the system of justice is critical. Transparency is a vital ingredient in maintaining that confidence. The provisions of the PACE codes will be experienced at first hand by literally thousands of our fellow citizens. For many of them the code will govern their only contact with the judicial system. It is very important that there should be avenues for them to make their views known on the efficacy or otherwise of the codes when revisions are contemplated.
There is another, more pragmatic reason for keeping the consultation process on revision as wide as possible. As Mr Grieve observed in Committee in another place on 7th January at col. 123, where the maximum consultation on revisions to the codes has taken place, their new provisions are more likely to be accepted and it is less likely that their detail will be subject to challenge in court. That underlines the importance of Amendment No. 37A. We are seeking to mirror closely the present consultation process. There do not appear to have been any problems with it. "If it ain't broke, don't try to fix it", seems to be good advice on this occasion.
Amendment No. 35, in my name and that of the noble Baroness, Lady Anelay, would retain the existing provisions for making amendments to the PACE codes of practice, so that any changes to the safeguards for children are subject to wide consultation. The amendment has been suggested by the major children's organisations.
Clause 9 changes the current situation, under which the Home Secretary is obliged to undertake public consultation on any changes. The Bill proposes that he can amend or revise the codes with limited consultation. Government Amendment No. 32 amends that.
This significant change has received cross-party opposition in another place as well as in your Lordships' House. The Home Affairs Select Committee also expressed concern. There is a lot of support for the need to extend the breadth of consultation to, among others, the Home Affairs Select Committee, as well as the Law Society and the others included in government Amendment No. 32. It is also felt that any changes should be agreed through affirmative resolution in both Houses. Although the Government have indicated that the affirmative procedure is in place for new codes and significant amendments, many people are concerned that apparently minor changes can sometimes have major effects, even though they have been subject to limited consultation. The major children's organisations are concerned that the proposed limited consultation on changes is unnecessarily restrictive. They are particularly concerned to ensure that any changes to the safeguards for children are widely consulted on by a specified list of organisations that have made major contributions to consultation in the past.
Consultation can improve the codes and act as a check and balance to ensure that safeguards for children are maintained. The recent review involved 80 organisations and produced very few problems. The interaction between consultation and parliamentary scrutiny is well established and the resulting codes are robust and comprehensive. The noble Lord, Lord Hodgson, has quoted a clear example in which such consultation has resulted in a very beneficial change to the code.
I hear what the Minister has to say about the need to remove bureaucracy when minor changes are envisaged, but I remind her that on an earlier group of amendments her noble friend Lady Kennedy of The Shaws pointed out that a significant organisation was ignored in consultation on another matter in relation to the Bill. I hope that I have made the case for the widest possible consultation.
I endorse the view that the case of children needs the most careful consideration. There is much in what the noble Baroness, Lady Walmsley, has said. However, the need for consultation runs right through the Bill, regardless of who is concerned.
I warmly welcome government Amendment No. 37, which produces a properly parliamentary procedure, but it seems to contain an oddity. As I understand it, subsection (7) of the amendment says that the normal procedure for a code will be to bring an order to Parliament under the affirmative procedure. However, subsection (7A) appears to leave a range of options. It says:
"An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid"— that is, having been laid for an affirmative procedure. That subsection implies that a revision of a code can have the affirmative procedure or it can simply be laid before the House, which involves no procedure, but the intermediate stage—which is usually considered by the Delegated Powers and Regulatory Reform Committee, to which we pay close attention and which is yet to report—is for a negative order.
The difference is important. Affirmative orders have to be brought forward by the Government for debate, but negative orders appear on the Minute as such and offer themselves for selection by other Members of the House. However, I think that those that are simply laid before the House appear in a different part of the Minute that I practically never read, because there are scores, or even hundreds, of them coming through all the time. I do not regard the simple laying of the order as sufficient protection in a matter that, as the noble Baroness, Lady Walmsley, and others have said, can have a close effect particularly on children.
"those representing the interests of the victim, lay and professional witnesses and defendants".
Let us take defendants. There is no public body representative of criminals which would have to be consulted. I wonder whether my noble friend could explain what on earth is intended by including that. Are there bodies representing victims of these sort of crimes? I should be fascinated to know whether there are such bodies because victims can vary enormously right across society. Then we also find that the representatives of lay and professional witnesses have to be consulted. They, too, can vary greatly. If my noble friend could explain the amendment or say that perhaps it should not be moved, I should be grateful.
I agree with the noble Lord, Lord Renton, which I rarely do. He is seized of a very important point. Amendments have to make sense. I do not believe that the proposed measure makes a real contribution to our deliberations. The noble Lord, Lord Renton, made a very important point. I hope that the noble Lord, Lord Hodgson, will readily discard what is tabled in Amendment No. 36.
The Minister's amendment was predicted in the Government's memorandum to the Delegated Powers and Regulatory Reform Committee of which I am a member. The committee states at paragraph 9 of its report that the matter,
"is explained in full in the memorandum where it is stated that amendments are to be tabled about the level of parliamentary scrutiny that will apply".
The committee said that it would consider those amendments when they were available to the House. I think I am right in saying that the committee has not as yet been able to do that because the relevant business was tabled before it met. But the committee further stated:
"Meanwhile, we wish to endorse the principle (proposed in the memorandum) that new codes and significant amendments to existing codes (however that is to be defined) should be subject to affirmative procedure".
I was going to wait until the next group of amendments to comment on that but as I believe the noble Baroness said that the Government were prepared to accept that new codes should be subject to affirmative resolution, she has made an exception to the process of amendments to codes and has offered a rather different way of dealing with them. Of course, I have no idea what the committee would have to say about that because it has not yet considered the matter. But in principle the committee does not agree with that as it considers that such codes matter so much to ordinary people that they should be properly discussed by both Houses of Parliament even when the issue is simply that of amendments to the codes. I expect the noble Baroness realises that the Select Committee may or may not be in agreement on the matter. We are about to discuss that matter but I thought that I had better remind the Committee what the Select Committee said on that point.
It might be helpful if I respond to the two points made about Amendment No. 36. I think it is fair to say that victim support organisations could be consulted. I say to my noble friend Lord Renton and to the noble Lord, Lord Clinton-Davis, that defendants are not necessarily criminals. They may be innocent people who have been through the system and therefore have a view about the operation of the codes. As regards lay and professional witnesses, while I do not for a moment claim that the amendment is perfectly drafted from a parliamentary draftsman's point of view, it is an attempt to ensure that the generality of the public are involved in the matter on the grounds that it is altogether too important to be left to lawyers.
Before my noble friend sits down could he explain who would be the representatives? Which bodies would be the representatives of victims, of lay and professional witnesses and, separately, of defendants?
I do not wish to be so prescriptive as to suggest that the Government should lay out a list in primary legislation. I merely say that categories of bodies exist that represent the interests of victims, witnesses and defendants and who could be consulted.
Clearly a large number of organisations have already been consulted, if you like, in terms of the lobbying that they have put before us, some of which is of exceptional quality in a number of areas relating to this Bill and to several in which we have been involved recently. I have in my time represented organisations that deal with witnesses, victims and perpetrators. Sometimes it is extraordinarily difficult to separate out those groups. I add my voice to the wish that those groups continue to be consulted not in the interests of bureaucracy but because the comments that they make to an open-minded government can add quality to the codes on which the latter are consulting.
The noble Baroness is quite right but surely the phrase,
"such other persons as he thinks fit" catches them all. It is impossible in legislation to mention everyone who ought to be consulted. That catch-all is very valuable.
I endorse what has just been said by my noble friend Lord Clinton-Davis. I say to the noble Baroness, Lady Howarth, that she is absolutely right about the nature of the consultation and the mix that quite often is inherent in the structure of the organisations with whom we consult. I hope that nothing that I have said will be misunderstood as indicating that the Government intend to limit those with whom they consult.
The Committee will know that the codes will be published on the website in draft so in practice anyone and everyone will as now be able to comment and make their position clear. At present there are no statutory consultees, only a general duty to consult which we exercise with great frequency and, I believe, efficacy. What we are talking about is the bureaucracy of having a list of specific organisations which have to be consulted on each occasion about each issue. Such a list may not include those who will need to be consulted. There is also the fear of changing that list but organisations change and metamorphose into different organisations. If you have a static list, does that mean that those on it are the only people who will be consulted? We want to make it clear that the matter is open.
I say to the noble Baroness, Lady Walmsley, that we take very seriously indeed the contribution made by children's charities which have been very vocal and rightly so. They have highlighted some of the nuances, differences and changes which are so important in making sure that children and young people's interests are properly reflected. We obviously wish them to continue to address those issues in the energetic way in which they have. We believe that the proposals will allow them to do so.
The Home Affairs Committee proposal is a novel one. We are suggesting that it should have an input into which procedure should be adopted, whether affirmative or negative. However, its novelty does not detract from its efficacy. We believe that it will bring something to the process. I take up the point made by the noble Lord, Lord Elton, about the affirmative procedure. Subsection (7) relates only to the new clauses—that must be the affirmative procedure. The proposed new subsection (7A) offers a choice for revision: either affirmative procedure or the simple laying of an order. We decided not to go for the negative procedure.
I say to the noble Baroness, Lady Carnegy, that we absolutely understand that the affirmative procedure was the course taken by the Delegated Powers Committee. We understand that the real import of what the committee was saying was that significant alterations were of equal importance to new codes, and for affirmative resolutions as appropriate.
The new process we are suggesting is that it may be necessary, for the convenience of everyone, to make minor changes to the codes which do not merit the full panoply of the affirmative resolution procedure. If the Home Affairs Select Committee were to indicate to my right honourable friend the Home Secretary that the negative resolution procedure would be preferable and appropriate, we would agree to be bound by that. It is on that novel proposal that we obviously want to have the comments of the Delegated Powers Committee and I have indicated that we shall examine the matter when we have that advice.
The Minister did not explain why the Government had decided simply to let papers not subject to parliamentary proceedings lie on the table. I was asking for an explanation as to why the middle alternative was not available to the committee so that both Houses could decide whether they wished to pursue a matter further.
We have made it clear that we agree that in the majority of such cases the affirmative procedure would be the most appropriate. As I have indicated, if the Select Committee came to the view that the negative resolution procedure was appropriate, we would follow that; and indeed the simple laying of an order would be appropriate where issues do not appear to be contentious or in need of that level of scrutiny. It gives us an opportunity to make each procedure fit the purpose in terms of the nature of the changes that we seek to make.
This is a much more flexible tool than we have had before, but we are trying to apply the lightest touch necessary but to allow both Houses a proper opportunity to scrutinise and debate these issues where that seems to be appropriate. We hope that the way in which we have phrased this—subordinating the exercise of the discretion of the Home Secretary to the committee's suggestion—will inspire confidence that we have got the balance right. Were the committee to come to the conclusion that the affirmative resolution should be used in each and every case having considered on the basis of the information before it that that would be appropriate, as I have indicated, my right honourable friend the Home Secretary is content to be so bound.
I wish to be clear about this. I did not realise quite what the noble Baroness was saying. If this amendment is accepted today, the Delegated Powers Committee has nothing to do with it. It is not for the Delegated Powers Committee to decide what Parliament should do; it merely advises this House. Is the noble Baroness putting this amendment to the Committee today, or is she leaving it for further consideration?
I am putting the amendment to the Committee today. I should clarify the point, as I may have innocently confused matters. The choice is between the affirmative procedure and the mere laying of an order, as the noble Lord, Lord Elton, indicated. I hope that I have made that clear.
In introducing the amendment I was attempting to explain that there are real difficulties in putting the proposal that the Home Secretary should be bound by the committee's recommendations on the face of the Bill, because of the possibility of the committee changing and the construct being different. We know that we cannot do that—the draftsmen have told us as much. But what we can do is to make a commitment to this House that these issues will go before the committee; the committee will have an opportunity to examine them; and the Home Secretary has indicated that he will be so bound.
So far as concerns the Delegated Powers Committee, we are asking this Committee to consider the amendment now, but we are doing so on the basis that the Delegated Powers Committee has not had an opportunity to have its say. What I was saying was that, if, contrary to our current expectation, a different view is alighted upon, we will consider that before we return to the matter on Report. So this may not be the end of it if there is a powerful argument that we should properly consider.
If we are to take Amendment No. 37 now, it may be helpful if I raise some of the concerns I have about Amendments Nos. 38 and 39. Otherwise, we shall have a repeat of the same debate on the next grouping. We are concerned about the parliamentary scrutiny aspect. We are grateful to the noble Baroness for her briefing letter. She has summarised it very fairly. She said:
"The basic intention of clause 9 is to speed up and simplify processes in relation to the codes so that it is easier to keep them up to date in the face of an ever-increasing rate of legislative and procedural change. However, concerns have been expressed during debate in the Commons, as well as by the Home Affairs Select Committee . . . that the proposed changes are too far reaching and do not allow for sufficient consultation and parliamentary scrutiny".
So far so good. But the letter went on to say:
"In the light of these objections we are now proposing to amend clause 9 so that any new codes will remain subject to the full affirmative resolution procedure in parliament as at present. In relation to proposed changes to the existing codes, our amendments would effectively allow the Home Secretary discretion to choose either the affirmative resolution procedure on a draft order or straightforward laying of a made order depending on his judgement about the level of scrutiny necessary in each particular case. However, in order to avoid allowing an inappropriate level of discretion to the Home Secretary, we would undertake in parliament during the passage of the Bill that he would agree to consult the HASC in every case and be bound by their views on which procedure to adopt in relation to each proposed change. This approach was trailed in debate at Commons Report stage and did not meet with any opposition".
That raises a number of serious concerns. We have, as yet, no definition for the phrase "new code". The noble Baroness has given us one off the top of her head this afternoon, but, cynically, one could argue that there will never be a new code; there will only be revisions of existing codes. Secondly, is it right that the Home Secretary should decide whether to use the affirmative or negative resolution? Thirdly, while it is true that the Home Affairs Select Committee will have some influence over which procedure is used, is it influence with teeth, given the political make-up of the committee?
Finally, I can see no role for this House in arriving at this decision. One of the primary roles of this House is as a revising Chamber. There is legal, judicial and general expertise in abundance in this House and it should therefore have a role in this procedure.
One final matter that I should like to raise with the Minister is how frequently the Government believe it will be necessary to review the PACE codes in future. It is one thing to consult on changes to the codes and to construct new codes. It is quite another to go through the hard, day-to-day realities of implementing the changes—new forms, new procedures and, above all, new training are highly absorptive of police time. So it would be helpful as we debate this general area if the Government could give some indication of their thinking as to the frequency with which these changes are likely to be made in future. For example, would the Government consider an amendment suggesting that codes could be revised, say, only twice in any 10-year period? There are issues that we have not teased out, and, rather than return to them in relation to Amendments Nos. 38 and 39, I thought it worthwhile to raise those points now.
I thank the noble Lord for that. A "new code" is a code covering entirely new subject matter. For example, there was recently a new code on the video-recording of interviews. One of the difficulties that I have is in giving the noble Lord any indication as to how often these changes will be necessary. Regrettably, none of us has a crystal ball and we often think that there is no need for revision. Then, because of technological and other changes, we find that a new code to meet the new arrangements becomes necessary, as the noble Lord probably knows from practice. So I cannot say how often that will be necessary, but the fact that it will be necessary we can take from the amount of times that we have had to do it so far. I anticipate therefore that it will be a rolling programme, but I cannot give any better indication than that.
Amendment No. 38 would require the retention of the affirmative resolution procedure for new and revised PACE codes. I have already mentioned that we are content to retain the affirmative resolution procedure for new codes. However, we want to keep some flexibility in relation to amendments, and that is why we intend effectively to give the Home Affairs Select Committee discretion over whether specific proposals should be subject to affirmative resolution or to a simple laying requirement.
I hear the comments of the noble Lord about the complexion of the Select Committees. However, that has not to date stopped them holding this Government to account, and every other government who have come within their view. We do not see that the Home Affairs Select Committee will do anything other than behave entirely independently. That is how they have operated in the past and we believe that they will continue to do so.
Amendment No. 39 would require the affirmative resolution procedure for analogous codes covering the work of military police forces. Currently such codes are only subject to negative resolution and, as they tend broadly to follow the main PACE codes, there is a good case for exempting them from any specific parliamentary procedure. Allowing for the government amendments which have already been discussed, we do not support either Amendments Nos. 38 or 39, but they are in the framework of the other proposals we have just outlined. I hear the comments of the noble Lord about scrutiny. That is why I made plain, in answer to the noble Baroness, Lady Carnegy, that we await the Delegated Powers Committee, because we wish to listen to what it might say. That is an innovative way of dealing with the matter.
I know that many noble Lords and others in another place have been concerned about how the Home Secretary will exercise his discretion. This is an appropriate way of giving both Houses the reassurance they seek. If we get an indication that the affirmative resolution procedure is preferred, that is the procedure we shall adopt.
If we are expanding this group to include the next, I apologise for returning to the point that I have just raised. I draw your Lordships' attention to Section 67 of PACE, which has not been amended in this respect so far as I can see. Under that Act, amendments to codes were put through exactly the same parliamentary scrutiny—that is the affirmative procedure—as the original codes. Therefore, the current proposal is a downgrading. It is not a downgrading from the top line to the second line—from affirmative to negative procedure. It is a downgrading from the top line to the bottom line, which means no parliamentary procedure.
All those who have expressed concern about children and the importance that even minor changes might have for them will agree that that should be looked at with great suspicion. We should possibly return to the issue on Report.
We are grateful to the Minister for her further courteous explanation on Amendments Nos. 38 and 39. We are not yet clear where we shall end up with Amendment No. 37, given that we have not yet had the report. So while we understand the Government's position, we shall reserve ours. So long as the Minister understands that we may wish to return to it on Report, we are prepared to let the matter rest for the moment.
I am grateful for that indication. I hope that when we have an opportunity for further reflection, noble Lords will feel more content. I hear the comments of the noble Lord, Lord Elton, about suspicion. If that view is shared by others, then I am sure that they will ask for the affirmative resolution procedure, which is the higher rather than the lowest of the three proposals, and I say, frankly, that if that is the view that is expressed, we would be content.
moved Amendment No. 37:
Page 6, leave out lines 15 and 16 and insert—
"(5) A code, or a revision of a code, does not come into operation until the Secretary of State by order so provides.
(6) The power conferred by subsection (5) is exercisable by statutory instrument.
(7) An order bringing a code into operation may not be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(7A) An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.
(7B) When an order or draft of an order is laid, the code or revision of a code to which it relates must also be laid.
(7C) No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.
(7D) An order bringing a code, or a revision of a code, into operation may include transitional or saving provisions.""
On Question, amendment agreed to.
[Amendments Nos. 37A to 39 not moved.]
Clause 9, as amended, agreed to.
Clause 10 agreed to.
Schedule 1 agreed to.
Clause 11 [Power of arrest for possession of Class C drugs]:
[Amendments Nos. 40 to 42 not moved.]
On Question, Whether Clause 11 shall stand part of the Bill?
We have already had the debate about the powers of arrest for possession of class C drugs. I shall not repeat that debate, although I support the removal of Clause 11. I wish to make three brief points. First, the main reason that these Benches do not support the powers is that we believe they undermine the attempt to develop a credible set of drugs laws focused on reducing harm and concentrating law enforcement on the dealers in hard drugs. We believe that the many benefits of reclassification of cannabis will be undermined and diluted by allowing these police powers to remain in the Bill.
Secondly, in her response to our debate last week on her Amendment No. 6, the Minister commented that I had wrongly stated that the penalties for possession of cannabis would be increased by this Bill. I shall explain how I reached that conclusion. First, those agencies that advised the Government to reclassify cannabis as class C envisaged that a major consequence would be the removal of any custodial penalty for possession. By reclassifying it and then introducing the power of arrest and a two-year penalty the Government are, in effect, increasing the penalty from zero to two years.
In addition Schedule 24 increases the maximum penalty for offences of production, supply and possession with intent to supply a class C drug from five to 14 years. Many of those who wish to use cannabis for medicinal purposes, or even for leisure purposes, would prefer to grow their own than to have to engage with criminal dealers who also supply class A drugs in order to obtain their supplies. In doing so, they may wish to supply other users or sufferers of pain for which cannabis is a relief. That puts them in danger of a 14-year sentence rather than a five-year sentence. That is what I mean by an increase. If the Government would only allow people to grow their own and supply a small group of friends without running the risk of becoming involved with the criminal justice system, just as people, including my own grandfather, used to grow their own tobacco, the problem would be solved without any damage to society. It is a practical and reasonable solution proposed by these Benches and many drug policy experts, but clearly the Government are not inclined to listen.
Finally, on the matter of the Conservative amendment which we debated last week to remove other class C drugs from the power of arrest, we on these Benches have a great deal of sympathy with the idea and I trust that we will return to it at the Report stage.
I have considerable sympathy with what the noble Baroness said. It is not difficult to argue that the position adopted by the Government is fundamentally flawed. As I have argued on many previous occasions, cannabis should not have been reclassified from a class B to a class C drug when hardly a week goes by without new evidence emerging of the harmful effect of the drug and the way in which it can cause mental illness. The cannabis now on the streets is far more potent and potentially dangerous. It is odd and irresponsible for the Government to take a step which is bound to convey to some people the message that the use of cannabis is not a serious matter.
The Government's stance is entirely illogical; downgrading the drug but keeping the power of arrest. I do not believe that we should vote against the clause because it seeks to mitigate the effect of their folly in declassifying. But I am thankful for that small mercy. It does something to correct the mischievous impression they have created—that the drug is harmless—for which we should be thankful.
It would have been far better if they had singled out cannabis among class C drugs whose use would justify arrest. I pointed out previously the absurdity that the possession of, say, anabolic steroids should be arrestable. But there it is; this is making the best of a very bad job. I would therefore not vote against the clause.
I thank the noble Baroness, Lady Walmsley, and the noble Lord, Lord Waddington, for what they have said. If one were to take the middle course, it looks as though the Government have got it about right—no one is happy, but everyone seems to be content.
In moving Amendment No. 43, I shall speak also to Amendment No. 49. I know that Amendment No. 48 will be considered separately, but it may be convenient to raise some of the points now. I realise that some Members of the Committee will want to return to that amendment.
Clause 12 highlights the Government's intention to extend blood testing at the point of arrest and pre-sentencing to 14 to 17 year-olds. They also want to include blood testing and treatment conditions as part of post-custody licence. Before turning to the specifics of the amendment, I want to turn to the principles of extending blood testing to young people.
The overwhelming objective is to ensure that we maintain the right balance between providing appropriate interventions and doing so at an early stage while treating young people and respecting their rights carefully. That also involves considering what we mean by appropriate interventions for young people aged 14 and over, as well as children who are below 14.
The Bill aims to extend testing and subsequent interventions as regards people who are over 14 and under 18 at different stages within the criminal justice system. While I have supported the expansion of options for adult users aged 18 and over in the criminal justice system, the transfer of testing of young adults is not so straightforward. Our imperative is to ensure that testing young people does not become a bolt-on to existing arrangements for the testing and treatment of adults. We must also be satisfied that the provisions in the Bill will not lead to the position in which criminal justice initiatives for young people become a priority over providing treatment to those young people who have not committed a crime and who can be prevented from committing a crime in the future by prompt access to treatment outside the criminal justice system.
In addition, while drug experimentation and occasional use are relatively common among adolescents, national statistics suggest that fewer than 1 per cent of young people aged 16 or under have ever used heroin or cocaine and even fewer are regular users. Testing therefore may be a poor means of identifying problem behaviours. Certainly the price of not getting it right by providing the wrong intervention at the wrong time is high.
I know that Drugscope and the Children's Society have expressed deep reservations about these proposals. These include serious concerns on whether the proposals contravene the UN declaration on the rights of the child and whether the powers to observe urine testing and holding people in police cells while awaiting results may contravene European human rights law. It would be wrong to dismiss these concerns outright. They share many of the concerns to which I shall now turn.
I declare an interest as chief executive of the social care charity, Turning Point. I know from experience that drug taking is a serious problem, especially among under-18s. Ten thousand young people were in contact with Turning Point in 2001–02, although that includes intervention across prevention, education as well as treatment. At a local level, for instance, in Sheffield we supported 4,000 people and approximately 200 people in treatment. Turning Point's view is that early interventions, including criminal justice interventions, are needed to support young people over 14 whose patterns of abuse may be entrenched even at a young age.
Four points on testing need to be addressed before I am satisfied that the Government have struck the right balance between treatment and protecting the rights of the young person first. The Bill's proposal for testing people who are charged will result in them engaging in a treatment process at a police station, which by no stretch of the imagination is a young people friendly environment. I hope we can receive assurance that the welfare of the young person will not be compromised and that the appropriate links with specialist drug agencies will be made at an early stage.
My second concern centres on guidance and safeguards. The aim of testing at charge is surely to identify problematic substance misuse and related crime and to provide suitable care. I would like assurances on how testing by police at the point of charge will help identify and sensitively meet a young person's broad and often complex range of social care needs that may include education or problems within the family home.
My third concern over testing is over the status of the sample and how the information derived from the results of the test is used. We need assurances that information from test results is handled sensitively. These results should be used only to inform a course of treatment rather than influencing criminal proceedings where they have no bearing on the crime and do not relate to problematic behaviours. I hope that the Minister will confirm that the test results will not be used as additional evidence in support of offences that the person has been charged with, or as an aggravating factor when sentencing. As part of this argument, we must recognise that not all class A drugs, such as LSD and ecstasy drugs, are linked to dependence or offending, making testing for them of little use in identifying problematic behaviours.
My fourth point on testing is that we need a greater understanding of ways in which drug testing will work in practice, particularly clarity of issues around consent and the presence of an appropriate adult—a point already raised by Drugscope and the Children's Society.
My specific amendment focuses on the circumstances that give rise to the testing of young people who are under 18. It seeks to restrict drug testing to two situations. First, there must be reasonable grounds for believing that the person is dependent or has a propensity to misuse class A drugs. Secondly, that misuse or dependency caused or led to a criminal offence. It is very much a belt and braces amendment.
I appreciate that it is the Government's intention to incorporate the criteria that govern testing for adults to young people who are under 18. This includes a requirement that an individual must have been charged with an acquisitive offence and that class A drugs have been misused and contributed to that offence. However, given that Clause 12 introduces testing for under-18s for the first time, I believe that the safeguard should also be set out clearly on the face of the Bill.
The amendment also makes clear that the clause is not about random testing of 14 year-olds, which is the extreme way in which it may be painted. It is important that the police are reminded of their obligations before a young person is deprived of his liberty and a sample is taken from him. In any event, given the gravity of the proposals that extend drug testing to young people for the first time, I hope that the Government will use the opportunity to confirm that these safeguards will be put in place.
The aim of Amendment No. 48 is to probe the Minister's intention with regard to testing for children. It removes the right to change by statutory instrument the age for testing. I know that the other place expressed strong reservations about extending drug testing downwards to children aged 13 and under and allowing this change in law to be introduced through a statutory instrument. I need to be convinced that testing for children would maintain the sensitive balance between providing appropriate interventions and respecting the human rights of children.
The Criminal Justice Act 1991 defines a child as a person who is under the age of 14. The most persuasive argument for not testing below the age of 14 is the result of the recent lifestyle survey which indicates that testing for class A drugs for under 14s would not be an efficient use of resources. While it is true that children may develop problems with drug use, there are also important human rights issues in relation to consent and concerns about the legality of testing children between the ages of 10 and 14. I am unsure whether testing children would conform with international and national obligations to treat children in a special and careful way, and to give them certain rights in the criminal justice system. It would be useful if the Minister could confirm the legal consequences of testing for children aged 14 and under. I am certainly aware that a child will need to have parents present if he is to be detained at a police station for testing and that this will have repercussions for the individual and the family concerned. In any event, I would be very interested to learn whether the noble Baroness, Lady Scotland of Asthal, has plans to extend drug testing for children at a later date.
Anticipating the Minister's response, I understand that the Government may want to argue that this power gives them the right to increase the age for testing as well as to lower the age. The way around this would be to make specific provision for increasing the age limit only by explicitly stating that the Secretary of State can by statutory instrument increase, but not lower, the age for testing.
I also wish to speak to Amendment No. 49. There is a current requirement that states that testing cannot be carried out until arrangements for testing have been made for the police area as a whole or for the particular police station. This amendment places an additional requirement that will mean that testing cannot take place until arrangements for treatment have been developed in the police area as whole. Moreover, treatment would need to be appropriate for young people under 18. It would not be sufficient for adult-based service provision only to be available in that area.
I am concerned that the Bill is explicit on the testing requirements but silent on the right to treatment that should follow testing. This concern is shared by Turning Point and DrugScope. If we are prepared to take what many would regard as the drastic step of testing a young person then this House needs to be satisfied that safeguards are in place to ensure that the testing procedure works well and that treatment follows. A failure to deliver treatment would mean invading a person's privacy without delivering any consequential benefit at the other end.
Many noble Lords will be familiar with the Audit Commission's report that demonstrated that provision of treatment is often patchy or inadequate. A failure to provide treatment will severely damage a young person's life and may mean that he will continue his drug use and disengage from services in the future. There is also a risk of relapse if after-care services are not provided. This amendment will ensure that young people have age-specific, tailored services rather than being tested or treated in an adult-based system. I hope that the Minister will give a strong signal that testing for young people will not encourage young people into an adult-based system, which will only serve to exacerbate rather than to deal with their behaviour. My amendment is an important safeguard to prevent that happening.
I also hope that the Government will take the time to research what works and to promote good models for young people's services. The service needs to be specifically designed for young people and not to be a cut-down version of adult services. Young people should be involved in the planning, management and review of services. Services must take account of issues such as accessibility, confidentiality and the need to avoid stigmatisation. An effective assessment process that identifies the needs and aspirations of the young person on an individual basis is also essential. This involves the development of accurate and comprehensive assessment procedures and it must also be appreciated that the process of intervening with vulnerable young people is likely to require the involvement of a wide range of agencies.
Treatment provisions also need to be consistent with other government-led policy which is moving towards young people's needs holistically and from a preventitive health and welfare point of view. Indeed, the Government's own guidelines confirm that children should not be referred to adult services and that under the Children Act 1989 local authorities are responsible for protecting children and young adults and promoting their welfare. This is the most persuasive argument in support of Amendment No. 49. I hope that the Minister will give an assurance that the Government will develop pilots and timescales to improve the evidence base because of the specific needs of young people and my concern over testing. I hope that they will examine thoroughly the best ways to help prevent young people from committing crime and to prevent dependent drug use from happening in the first place.
I would also welcome some clarity on how action plan orders will operate for young people following the Criminal Justice Bill, given that community orders only apply to young offenders aged 16 and over, and an assurance that the role of drug agencies in supporting youth defending teams will be enhanced. Has the Minister estimated the number of young people who will access treatment in the next year? What new resources have been put aside for developing young people-specific services? It would be useful to know how the Government envisage that testing for young people will link in with other initiatives such as the long-awaited Green Paper on children at risk.
Finally, I hope that the Minister will be prepared to give a commitment to report back to Parliament to share lessons learnt from pilots and from young people's interventions before proceeding with tests for under-18s. I beg to move.
We have some amendments in this group and I have listened with care to the noble Lord, Lord Adebowale, who obviously speaks from great experience and knowledge. We share some, but not all, of his concerns. Certainly we share his emphasis on the importance of treatment and prevention. Our Amendments Nos. 44, 47 and 50 all focus upon the age boundaries at which children can be tested for drugs while Amendment Nos. 51 and 52 concern the age boundaries and definition of those adults who can accompany children during testing for drugs. Our view is that, provided testing is well regulated to ensure no adverse impact on the child's welfare, we support this new proposal for testing of under 18 year-olds for drugs. However, certain age brackets and certain definitions within this clause have caused us some concern and we have put down these amendments to enable us to tease out the Government's thinking on these important points.
Amendment No. 44 concerns the minimum age for testing for class A drugs, which our probing amendment proposes to reduce from 14 to 12. It could be argued that if the drug testing process is carefully undertaken without intrusive measures and with an appropriate adult present the new proposal in Clause 12(3) of the Bill is a step in the right direction. If, and I repeat if, the procedure for drug testing is sufficiently regulated to allay concerns among parents and the children's societies as well as the many interest groups in drug treatment we see no reason why, in principle, this testing should not be extended to 12 year-olds. As Mr Grieve pointed out in Committee in the other place:
"There is ample evidence that drug misuse starts before the age of 14 and . . . it is perfectly likely that children of 12 will be brought into police stations".—[Official Report, Commons Standing Committee B, 7/1/03; col. 147.]
It is also perhaps useful to draw to your Lordships' attention Mr David Kidney's explanation in the same Committee meeting as to why testing is appropriate for children, as justified to him by Sergeant Cartlidge of the Staffordshire Police At columns 152 and 153 he said:
"The first is a moral reason: if someone who is young and vulnerable has a dependency that might destroy the rest of their life, we should intervene to try to help them. The second concerns crime prevention: if we know that such drug dependency will drive a young person into increasing acquisitive crime, it would be helpful to intervene to try to wean them off the drugs, so that they are not driven to commit the offences."
So the two main aims must be those of rehabilitation and prevention. Rehabilitation is clearly focused on the child's welfare, and prevention, although in part concerned with maintaining good order in society, has the child's interests at heart in keeping him out of trouble or, at worse, prison.
If the Government believe that class A drug habits in children can be reduced through the drug testing process why is 14 chosen as the minimum age? Could it not be tackled successfully at an earlier age? The Minister's response to that query in the other place was that:
"The school lifestyle surveys of 11 to 15-year-olds carried out by both the Department of Health and the Youth Justice Board found that cannabis was the most widely used drug, and that class A drug use was very rare".
I believe that that point was made by the noble Lord, Lord Adebowale.
"Those results indicate that testing for class A drugs in those under the age of 14 would not be an effective use of resources".—[Official Report, Commons Standing Committee B, 7/1/03; col. 162.]
While that is undoubtedly interesting evidence, those are drug tests on school children who, I stress, were at school. I may be wrong, but I suspect that the majority of young people whom the police suspect to be stealing to fuel a class A drug habit may well not be the type to have a high school attendance record. In other words, the Minister may quite inadvertently have reached an inaccurate conclusion because of the way that the sample was selected.
In support of that view I quote the article in yesterday's Observer by Stephen Khan, which was entitled, admittedly rather luridly,
"New wave of heroin sucks in pre-teens".
Not only does the article detail the increasing supply of heroin, but it also states:
"Academic studies have shown pre-teens are now experimenting with heroin".
In the article Professor Neil McKeganey of the University of Glasgow said:
"We asked drug-using 11 and 12-year-olds in Scotland if they had tried some form of heroin. Between 5 and 6 per cent of them said yes. Five years ago the percentage would have been zero".
Such evidence—I have no way of knowing how accurate it is—paints a very different picture of class A drug use among pre-teens. We accept that this is a very sensitive issue which was discussed at length at Committee stage in the other place, but we wish to probe the Government—particularly considering the arbitrariness of other government age categories—as to why the minimum age of 14 has been chosen, considering the factors that I have just been explaining.
While Amendment No. 44 concerns the minimum age at which a child can be tested for drugs, Amendments Nos. 47 and 50 relate to the maximum age of a child who must be accompanied by an adult when tested for drugs. Clause 12 is entitled,
"Drug testing for under-eighteens", and yet the accompaniment of an appropriate adult during testing seems to be relevant only to a person who has not yet attained the age of 17. That is line 28 on page 7 of the Bill.
In the other place the Minister explained, again at Committee stage on 7th January, that the provisions applicable under,
"the Police and Criminal Evidence Act . . . require that any person who seems to be under the age of 17 be treated as a juvenile".—[Official Report, Commons Standing Committee B, 7/1/03; col. 165.]
That is a curious use of the words "seems to be". A moment earlier the Minister had told the Committee that:
"The Children and Young Persons Act 1933 as amended by schedule 8 to the Criminal Justice Act 1991 defines . . . a young person as a person who has attained the age of 14 and is under the age of 18".—[Official Report, Commons Standing Committee B, 7/1/03; col. 162.]
Not 17. He went on to explain that using the provisions of PACE are easier and more practicable as they do not necessitate the presence of an appropriate adult during the testing process of a 17 year-old.
Both the Children's Society and the United Nations have rather different views on that age cut off. Article 1 of the United Nations Convention on the Rights of the Child states that for the purpose of the present convention a "child" means every human being below the age of 18 years. The Children's Society concurs with that statement and I am sure that many noble Lords will instinctively agree that a 17 year-old should fall within the definition of "child" as regards legal procedure. That means anyone under the age of 18, hence our amendment.
A very helpful briefing from the Children's Society, which I am sure many noble Lords will have received, further highlights that concern. The UN Committee on the Rights of the Child has twice criticised the anomaly of 17 year-olds being regarded as adults during the pre-trial process for the purpose of PACE and remand. This occurred in both 1996 and 2002.
Specifically in its 2002 report it recommended that the United Kingdom should review the status of young people of 17 years of age with a view to giving protection to all children under the age of 18. Clause 12 again raises that anomaly in our law in so far as a 17 year-old will not be safeguarded by the advice or presence of a parent or other appropriate adult in the process of being charged, in deciding to consent to a drug test—the refusal of which is itself a criminal offence—nor finally during the process of carrying out the test by mouth swab. A 17 year-old is in every other aspect a minor in both domestic and international law. We believe that the failure to treat them as such in the process of arrest, charge and pre-trial decision making and to provide the same safeguards as those in place for children of younger ages needs a better justification than the Government have so far given.
I understand that the terms "juvenile", "young person" and "child" can have varying definitions under different Acts, or under different subsections of different Acts. During this debate I seek to focus strictly on a person under the age of 18. That follows the logic of the special provisions that the Government have made for the treatment of under 18s when testing for drugs. The Government apparently share our belief that under 18s should be given special treatment when it comes to the procedure involved in drug testing. It seems therefore highly inconsistent for the Government to exclude those who are 17 from this same special treatment when it comes to the attendance of an appropriate adult. Common sense dictates that 17 year-olds should be afforded the same safeguards as other children. That means that an appropriate adult should be present during testing. Why change and confuse an already established set of definitions and further complicate the already highly sensitive area of drug testing for children? The children's best interests and welfare must surely be our central concern, not the use of the most convenient points of administrative reference.
Finally, I turn to Amendments Nos. 51 and 52. They still concern Clause 12. The previous amendments deal with precise age limits for those to be tested, whereas these deal with the age boundaries and appropriateness of adults who are to be in attendance during the testing of an under-18 year-old for drugs. We feel that defining the appropriate adult requires a careful balance to be struck, one that guarantees that the time that a child spends in custody is the minimum possible, but equally that the accompanying adult has enough authority, maturity and relevant experience to ensure that the child will be treated properly. Clearly it is wrong to restrict unduly the range of appropriate adults, as we would all want the child to be held by the police for as short a time as possible.
Consequently, the inclusion of Amendment No. 51 seeks to broaden the choice available under new subsection (10)(a), while keeping it within the boundary of a family member. The child to be tested therefore has the additional possibility of having a responsible relative in attendance during the process. We feel that such an adult relative should be over the age of 21. We think that setting a minimum age of 21 puts some distance and maturity between the child being tested and the accompanying adult. Without that one could have a situation where the person being tested is on the verge of turning 17 and the accompanying adult only a year older.
While Amendment No. 51 broadens the choice of appropriate adults who can be in attendance during testing, Amendment No. 52 seeks to inquire of the Government just how broad that definition can be. New subsection (10)(a) defines the appropriate adult as a parent, guardian or person representing a local authority or organisation in which the child is in care. New subsection (10)(b) widens the definition of "appropriate adult" to include social workers. We have no objection to these categories which include the most relevant parties; namely, those who have raised the child themselves, those who are taking care of the child at the time and those who have been trained how to look after the best interests of a child.
However, new subsection (10)(c) makes the possibility of the appropriate adult in attendance being "any responsible person". It is hard to see how such a person can be expected to have the knowledge to judge where the child's best interests will be. Hence our amendment, which would remove new subsection (10)(c).
When presented with these thoughts in Committee in another place, the Minister explained on 7th January that PACE has a three-stage test,
"which enables the police to identify an appropriate adult if a parent, guardian or social worker is unavailable".—[Official Report, Commons Standing Committee B, 7/1/03; col. 165.]
The Minister was presumably referring to Section 37(13)(b) of PACE, which describes those responsible for the welfare of the arrested juvenile, other than parent or guardian, as,
"any other person who has for the time being assumed responsibility for his welfare".
Accordingly, this clearly gives the police yardsticks by which to identify the appropriate adult. Yet it seems that no such yardsticks exist in this Bill. Certainly they do not appear in new subsection (10)(c). Furthermore, we are not just dealing with a juvenile's protection when in custody—there is the additional burden of responsibility, given the potentially intrusive nature of the drug-testing procedures.
New methods of testing for drugs are now being tried, and another helpful briefing from the Children's Society explains the position. New forms of testing involve saliva being taken from the mouth and then run through a machine, but this merely gives a positive or a negative result. Two issues are raised here: the first is whether the Government will have one of these expensive testing machines in every police custody station in the country when these laws come into effect and, if not, how intrusive will the alternative testing have to be.
The second issue is a little more complex. These machines gave only a positive or a negative result, and so, presumably, further intrusive tests, such as urine or blood samples, will have to take place to corroborate or confirm the initial result. We understand that if the child disputes the validity of a test the court will only accept the result of urine analysis as a legal standard of validity although we understand that, in practice, technology in this area has advanced at a great pace.
All these facts do not yet appear entirely clear. As I understand it, these machines have not yet developed past piloting stage. One therefore has a concern that the Government are equally unsure about the degree to which such non-intrusive testing schemes will work at a national level. Both potential outcomes are examples of how the possibility remains for intrusive drug testing for under-18s. This adds extra weight to my previous argument in Amendments Nos. 47 and 50 concerning the importance of the attendance of an appropriate adult for 17 year-olds.
Amendments Nos. 51 and 52 further underline the necessity for stricter guidelines to be placed upon the definition of "appropriate adult". This is presumably why the Government have provided a detailed specification of the definition of "appropriate adult" in the Bill rather than simply referring to the PACE guidelines.
We think that the words:
"any responsible person aged 18 or over" leave the field too broad. Amendments Nos. 51 and 52 are therefore probing amendments to ask the Government for an explanation of how that phrase will be interpreted.
I support Amendments Nos. 43 and 49 in the name of the noble Lord, Lord Adebowale, to which I have put my name. I echo his cogent arguments, which I have no intention of repeating. I should also like to speak to Amendments Nos. 45 and 46 in my name and support Amendment No. 50 in the name of the noble Lord, Lord Hodgson of Astley Abbotts.
On Amendment No. 43, I think it is vital that drug testing of young people at the charge stage is done only where there are grounds for believing that the misuse of a class A drug is habitual and has caused or contributed to the offence. We know that only about 3 per cent of young people who ever use drugs have a problem habit. We also know that many young people experiment with drugs. For the majority, this does not go on to become a habit or a problem at all. Similarly, while most young people try a cigarette at some stage, many of them never go on to become smokers, despite the fact that nicotine is a lot more addictive than something like cannabis.
It is vital, therefore, that we are not heavy-handed in the way in which we deal with this sort of experimentation. The introduction by this Bill of compulsory drug testing for children for the very first time raises many serious issues. It should, like all our other legislation, be based on the UN Convention on the Rights of the Child, to which we are signatories. In this connection, I declare my interest as a parliamentary ambassador for the NSPCC, which campaigns for that very thing. That is why I have laid, and support, amendments that treat 17 year-olds the same as 14, 15 and 16 year-olds in respect of these issues—in other words, the same as anybody under 18, as does the convention.
In relation to Amendment No. 49, we are all aware that the provision of treatment services for under 18s is very patchy indeed. When an adult has a drug test which comes up positive, we can be fairly confident that there are some sort of treatment services available for them, although some are better than others. However, the same cannot be said for children. It is therefore quite unjustified to insist that children undergo such tests and consequent invasion of privacy when the services are not there for them. I will return to whether such testing is the best way of addressing the problem in the debate on Clause 12 stand part.
In the meantime, I ask the Minister why the Government seem to be so muddled about the cut-off ages for different purposes for under-18s? Is she convinced that putting them in a situation where to refuse such a test is a criminal offence is really the best way to get compliance from a young person who finds himself in trouble with the law?
Since the noble Lord, Lord Adebowale, mentioned Amendment No. 48, perhaps I may also express my support for that. I would not like the Home Secretary to be able arbitrarily to lower the age limit. I already have considerable reservations about drug testing for 14 to 18 year-olds, so to take it any lower would be a very bad thing.
I should like to speak to Amendment No. 47, which expresses concern about the maximum age at which children can have an appropriate adult with them when they are tested. There is a general feeling that children are becoming adults earlier than in the past, which may be part of the rationale for this amendment. Quite often, sadly, children in care get involved with the criminal justice system. The most recent statistics show that 10 per cent of children in care had a caution per annum and were three times as likely to be cautioned as other children.
The Government recognise that many of the children who will be caught by this provision are vulnerable. In the Children (Leaving Care) Act 2000, the Government recognised that these children have often had very difficult beginnings; their development can often be delayed, which is why that legislation extended the level of care to them until the age of 21. Indeed, the Government extended further provision to children in education after the age of 21 up to the age of 25. So it does not seem to follow reason for this clause to treat children as if they become adults at the age of 17. I suggest that these are quite under-developed young people, not as mature as other children their age. So I do not quite understand the reasoning behind this. I would appreciate some explanation from the Minister.
I thank all those who have contributed to this debate, particularly the noble Lord, Lord Adebowale, who moved the amendment. I recognise the experience and sensitivity which he brings to these issues. I hope, since the noble Lord, Lord Hodgson of Astley Abbots, indicated that some of these are probing amendments, that I shall be able to explain to the Committee how I see some of the issues fitting together.
Before I go into the detail, it is important first to underline what a number of noble Lords have said, particularly the noble Lord, Lord Adebowale, and the noble Baroness, Lady Walmsley; that children have different needs from adults, and they will not generally have developed a substance misuse problem or entrenched patterns of behaviour. We should bear that important point in mind when considering the amendments.
Amendment No. 43 seeks to introduce an additional safeguard to ensure that a custody officer shall not detain someone for the purposes of taking a drugs test unless he has reasonable grounds to believe that the person has a propensity to misuse drugs and that the misuse caused or contributed to an offence. We propose that the amendment be resisted because such a safeguard is already in place under the existing provisions for drug testing at Section 63B of PACE, whereby a sample may be taken only if the offence for which the person is charged is a "trigger offence"—offences where research has shown the clearest link between the offence and drug use—or if a police officer of at least inspector rank has reasonable grounds for suspecting that the misuse by that person of a specified class A drug caused or contributed to the offence for which they have been charged.
Amendment No. 45, in the names of the noble Baroness, Lady Walmsley, and the noble Lord, Lord Dholakia, seeks—as the noble Baroness explained—to raise the minimum age for drug testing under Clause 12 from 14 to 17. As has been touched on, there is strong evidence to suggest an association between the frequent misuse of substances and offending and other anti-social behaviour among young people. It is important to identify drug-misusing offenders at an early stage and to take every opportunity to encourage them to access treatment and/or other programmes of help. If a person under the age of 18 is charged with a trigger offence, it is important to identify where possible whether his or her offending is linked to the use of illegal drugs, particularly the drugs that cause the most harm, such as heroin and crack cocaine. We therefore propose that Amendment No. 45 and consequential Amendment No. 46 are resisted.
By contrast, Amendment No. 44 in the names of the noble Baroness, Lady Anelay of St Johns, and the noble Viscount, Lord Bridgeman, seeks to lower the minimum age for drug testing from 14 to 12, so the two amendments go in opposite directions. As I previously said, research indicates that drug abuse among children in particular often relates to class B drugs. The provisions of the clause provide only for testing for specified class A drugs. That would suggest that testing those aged under 14 for specified class A drugs would not currently be an effective use of resources. As the noble Lord, Lord Hodgson, highlighted, that was the response made in the other place. We therefore propose that Amendment No. 44 be resisted.
Of course I hear what the noble Lord said about the nature of the research, which was directed in part to schoolchildren. But the body of research on which we have relied supports the contention that we have outlined here and is reflected in what was said by the noble Lord, Lord Adebowale, and the noble Baroness, Lady Walmsley. We have to take a medium course in relation to what may prove most effective. We think that this is about right.
I referred to an article in yesterday's Observer. I have no way of knowing the seriousness of the research carried out by the University of Glasgow. Will the Minister undertake that her officials will see whether there is anything in that assertion and in such research? This is an important point where the child's welfare is central. If they are discovering a new trend, it would be helpful if the Home Office could find out why and how and whether the research is well based.
I would certainly be happy to look at that matter. A great deal of research has been undertaken by the Home Office. Home Office research study 192 and research study 261—Substance use by young offenders: the impact of normalisation of drugs use in the early years of the 21st century—work carried out by Richard Hammersley, Louise Marsland and Marie Reid—examined the prevalence of substance use and offending among a sample of 293 young people who were clients of the 11 youth offending teams in England and Wales. I think the noble Lord will accept that if they are already clients, they may be an indicative group on which we could rely.
Key findings from that research were that 40 per cent or more of the cohort felt that there was some relationship between their substance use and their offending; and substance use was very high. Eighty-six per cent had used cannabis; 91 per cent had used alcohol; and 85 per cent tobacco. A quarter had taken both cocaine and LSD. The use of the hardest drugs was lower; 18 per cent had taken crack cocaine and 11 per cent heroin. We have sought to craft the path we are taking on significant research, but I will look at any information about the new research to see whether it is outwith the trends that we have identified.
The clause as drafted provides for the presence, from the point at which an individual is requested to undergo a drug test, and for the test itself, of an appropriate adult for those who have not attained the age of 17. Amendments Nos. 47 and 50 in the names of the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay of St Johns, seek to raise the age at which a person must not be tested for specified class A drugs except in the presence of an appropriate adult from those under the age of 17 to those under the age of 18. However, that would not be consistent with current provisions in code C of PACE: the code of practice for the detention, treatment and questioning of persons by police officers.
The provisions applicable under the PACE Code of Practice C require any person who appears to be under the age of 17 to be treated as a juvenile and consequently provide that an appropriate adult is required to be contacted and asked to attend the police station to see the detained juvenile and that thereafter the appropriate adult's involvement in the process should continue. The attendance of an appropriate adult at police stations should be consistent with that of the current requirements placed on the police. The effect of increasing the age to include those under the age of 18 may lead to confusion. It would also necessitate the presence of an appropriate adult for those aged between 17 and 18 solely for purposes relating to the testing process. That may put undue pressures on family relationships, or have a disproportionate effect on resources. We therefore propose that Amendments Nos. 47 and 50 also be resisted.
Amendments Nos. 51 and 52, which were tabled by the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay of St Johns, would amend the definition of "appropriate adult" as the noble Lord has set out to include any close relation aged 21 or over, and to remove,
"any responsible person aged 18 or over who is not a police officer or a person employed by the police".
The clause as drafted is compatible with Code C of PACE. We see no reason to include that extra category of persons. In practice, in many cases, the police would in any case choose a close adult relation to act as an appropriate adult in the absence of a parent or guardian. However, unfortunately, there can be no guarantee that a close relation, of whatever age, would be suitable to act as an appropriate adult. We therefore propose that the amendments be resisted on that ground.
Amendment No. 49 would ensure that the provisions will not come into force in a given area unless appropriate treatment for young people is available there. The noble Lord, Lord Adebowale, very graphically made that point. I understand that the amendment arises from a concern that young people may be diverted into adult services where specific services for young people are not available.
The intention of the testing and drug rehabilitation requirements in the Criminal Justice Bill is to strengthen and increase the provision available to young offenders. We do not propose to push young people into adult-based services. Much work has already been done to expand the treatment facilities available for young people. All drug action teams (DATs) have completed an assessment of young people's needs in relation to substance misuse service provision. Each DAT provides an annual young people's substance misuse plan, which outlines holistic service provision for young people that is separate from adult services, and treatment services specifically designed to meet the differing needs of young people. The DATs also provide an annual return on progress, so we have a check. The Youth Justice Board is working to expand services further. It is providing funding for all 155 youth offending teams (YOTs) across England and Wales to have access to an allocated named drugs worker.
All DATs working with youth offending teams have undertaken assessments of local need and developed young people's substance misuse plans. The plans outline how services will be expanded so that, by April 2004, all young people who need treatment, including young offenders, will have access to it. We therefore propose that the amendment is not necessary. We resist the amendment but invite Members of the Committee to consider withdrawing it having heard what we have been able to say.
I shall now seek to answer some of the specific questions on matters other than those that I have just outlined, in the hope that we can further reassure Members of the Committee. The noble Lord, Lord Adebowale, asked about the status of the sample and the introduction of proceedings—to some extent, what the test results will be used for. The test results will be used to assist the court in making bail and sentencing decisions and to ensure that appropriate advice and treatment is made available to the detainee.
The whole purpose of drug testing after charge is as a screening tool. It does not of itself tell us about the extent of a person's drug use or linked criminality. Drug testing is used to identify those who misuse specified class A drugs—heroin and crack cocaine—who may need treatment and to encourage them to address their drug misuse and to access appropriate treatment. Test results may not be used as additional evidence in support of any offences of which the detainee has been charged, for other investigative purposes or as an aggravating factor when sentencing. The reason that it is such a powerful tool, as the noble Lord, Lord Adebowale, said, is that we want to deal with the issues holistically. If we are to address offending and to change behaviour, we need to know the nature of the difficulty with which we seek to deal.
The noble Lord, Lord Adebowale, also asked how the provisions would be introduced. They are to be piloted, on a limited basis at first, to enable evaluation of the effectiveness of the provisions to be undertaken and to inform possible further extension of the provisions. My right honourable friend the Secretary of State will have the option of bringing the drug testing provisions of the clause into effect by reference to specific police stations and specific police areas. That will facilitate the piloting of the provisions at a few selected sites alongside the continuing drug testing of those aged 18 and over. It will provide for effective targeting of the provisions with a view to future extension in police areas. It would be appropriate for the provisions to be piloted in areas where the pilot for arrest referral for the under 18s is to take place and where there is an existing adult testing on charge.
The noble Baroness, Lady Walmsley, asked about empirical data and the action plan orders, the estimated number of young people to be involved and the resources put aside. The noble Lord, Lord Adebowale, also raised that issue. I hope that I have been able to reassure him.
Members of the Committee have asked how we engage young people at the point of arrest to address their needs. It is intended that, by around March 2004, there will have been established in the drug testing pilot areas a model of working that assures that appropriate arrest referral services have been designed specifically to address the needs of young people. The model will be supported by local protocols between youth offender teams, the police, local drug action teams and crime reduction partnerships. That will ensure that an appropriate range of services will be available, with minimum delay, to support work undertaken with the young person in custody.
The noble Lord, Lord Hodgson, asked about drug testing for adults and how it is being rolled out across the country. It is proposed that, first, drug testing for adults should be rolled out in the 30 police basic command units with the highest levels of acquisitive crime. Testing for young people will be piloted, but in a limited number of BCUs, and will be fully evaluated. Disputed tests are sent to the Forensic Science Service for validation, which is carried out within 72 hours. The 30 police basic command units are provided with testing machines that use saliva. They shall continue to be used and provided in the roll-out.
I was also asked about the age for appropriate adults. As I think I already said, it is compatible with Code C of PACE as detailed. The noble Lord, Lord Adebowale, asked about the action plans. The action plan order will be dealt with at Clause 264. If Members of the Committee think it convenient, the Green Paper for young people could be discussed at that stage of the Bill.
I hope that I have dealt with each of the main issues raised. If I have neglected to answer specific points, I shall write to Members of the Committee. Having explained how we see the provisions fitting together, and taking into account the disparity of view evidenced in the nature of the amendment, I hope that I have been able to reassure Members of the Committee that the Government take the issues very seriously. We have based the suggestions on the empirical data that we have before us and we will integrate services to try to ensure that we respond appropriately to the needs of young people. We will enhance our opportunities to intervene in a productive and rehabilitative way to reduce the level of recidivism and, one hopes, reduce the distress caused not only to the victims of crimes perpetrated by young people under the influence of drugs but also the suffering of the drug offenders themselves.
Before the Minister sits down and the noble Lord, Lord Adebowale, replies, I had not planned to speak, but having heard about the holistic approach to this problem I find myself in disbelief at part of the response. I say that respectfully, knowing the Minister's concern for young people.
For many years, organisations, especially social services departments, have worked with the families of drug users experiencing considerable difficulties. Such organisations have a great deal of experience, as do Turning Point and the other voluntary organisations, in the field of the complex programmes needed to help these families. We know that problems are not only to do with drug taking. In many families, although not all, drug taking is to do with the problems that the family is experiencing as a whole. The parents' difficulty in dealing with their own children is among those problems.
During the 15 years I was in Childline, I talked to literally hundreds of children who described extraordinarily complex family dynamics that resulted in their taking drugs as a way out. How will social services and the voluntary organisations be supported while we try to develop innovative programmes when we know what will work in many places? We simply do not have enough people, expertise and resources on the ground to put the programmes into place. I apologise for intervening.
I welcome the intervention by the noble Baroness, Lady Howarth of Breckland. We are rightly concentrating on the provisions in this Bill and scrutinising how they will help us to better deliver the change that we seek. However, this must be seen in the context of all the other things we are doing.
We should start by examining the work that the Government have energetically pursued on Sure Start and then look at all the work that we have done together to bring all those who are involved in local delivery into the community legal service partnership, which, as I am sure the noble Baroness knows, brings together local authorities, central government agencies—through the Legal Services Commission— charities, non-governmental organisations and all the advice givers and providers in a locality. They do two things: they make a needs-based assessment of what is necessary for that area and then an audit of the providers tasked with delivering those services. Between the two the organisations have been able to fashion a care plan for the area that directs the needs of advice and service provision. Instead of having a maze of service providers or a desert with no service provision, a joining-up is happening.
Those who have participated in this Bill note the work we did together on the Courts Bill, which is still in another place. It will bring together a unified system, which is the second part of the jigsaw puzzle. We are dealing with the criminal justice part because through this structure we are creating the effective tools that we will need for creative intervention so that we remove the greater majority of people who simply go in and out of the system, serving life imprisonment sometimes, but 30 days or so at a time. If one links that with the work we are doing with young people and we look at the provisions in the Bill relating to street bail, we have a creative response to what the Government seek to do.
This is part of the holistic response. As we go through the Bill, it is important to see how all the parts of the jigsaw fit together. Each little section has its place and if we work energetically and properly the people of this country will have a system of which they can to be proud.
I intervene briefly, although I had not intended to, because I am disquieted by the idea that anyone will do to accompany the child. Of course, a variety of people could conceivably give the necessary support to the child but that idea seems to suggest that the family, or the care institution to which the child belongs, has no special responsibility. The Bill should make it clear that families matter, that the young person's drug behaviour matters, that care in the children's home matters, and that the people who run the children's home have a responsibility. Primarily, they should have to be there.
I hope that nothing that I have said detracts from what the noble Lord, Lord Northbourne, has just said. He is absolutely right. Families have a very powerful part to play. In the majority of cases, the close family member will be the appropriate adult to be called. However, the noble Lord will know from the extensive work that he has done with children's charities on these issues that regrettably, sometimes almost tragically, the family cannot provide an appropriate adult for the child.
Again, we are doing much to address the problem. I do not seek to suggest for a moment that the family will not usually provide the most appropriate adult, but we use the phrase "appropriate adult" so that we can encompass people who may not be part of the child's natural family. They may be the most appropriate adult to attend to give assistance to the child in that particular circumstance. It will enable us to have the right breadth.
Noble Lords will know that we seek to address the re-engagement of families with young people more directly with the work we are doing on parenting orders, both voluntarily and, if necessary, compulsorily, to enable adults to address the child's needs. The child or young person should be at the centre of what we are trying to do.
I thank the Minister for her response to my questions and my speech. I thought her response was very useful and detailed. I shall return to some points. I was very ably helped by the noble Baroness, Lady Howarth, who gave me an opportunity to see how the Bill fits into the wider government perspective.
However, I remain concerned about the resourcing of this part of the Bill, especially the testing orders. Although the Minister referred to the youth offending teams having named individuals for young people, that is not the same as providing treatment. I note the Minister's reference to the provision of plans by the drug action teams with which I have wide experience. That is not the same as the provision of treatment. It is the provision of a plan.
I note that the Advisory Council on the Misuse of Drugs on which I sit has recently produced a report of which I am sure the Minister is aware, which indicates that between 250,000 and 300,000 young people of drug misusing parents are currently without recognised treatment. I do not wish to be mealy-mouthed about or to denigrate the efforts of the Government to provide an appropriate response to treatment and, indeed, to examine a holistic approach to treatment for young people. I fear, though, that on the ground the statements made in the House fail to have the desired effect. At this stage of the debate, we need to understand how precisely the Government will know that the plans have resulted in treatment provision. How will the Government know that young people will not find themselves in a police station being tested in wholly inappropriate circumstances, without the provision of appropriate treatment interventions, regardless of what the treatment test says?
Noble Lords will forgive me if I push the matter, but, although I appreciate the noble Baroness's response and her commitment, I still require further evidence that the jigsaw that was so eloquently described—the plans, the moneys committed by youth offending teams, the connections—is not missing a few pieces. We can all see what that jigsaw describes. From my experience, I can say that the descriptions of such jigsaws are often not recognised by the people whom they are meant to affect. I beg leave to withdraw the amendment.
Amendment No. 48 would delete paragraph (c) of subsection (3). As noble Lords will recall, following the extensive debate we have just had, Clause 12 concerns drug testing for under-18s—or should it be under-17s? Paragraph (c) enables the Secretary of State to substitute the specified ages—14, 17, 18—as he thinks appropriate. It is perhaps a guide to the Government's sensitivity on the issue that they have eschewed the use of the good, clear word "change" in favour of the more mealy-mouthed word "substitute".
The age barriers were discussed in connection with the previous amendment. The inclusion of subsection (3)(c) is indicative of the Government's underlying uncertainty in their decisions regarding ages. We appreciate that some flexibility is defensible. In Committee in the other place, the Minister replied to the point by arguing that, as it was a new proposal, the Government wished to have the power to change specified ages as a failsafe. I always find it inherently unsatisfactory when Ministers argue that powers will never be used but that the Government need them none the less. If the Bill remains unamended, it will allow for the minimum age of testing to be reduced by statutory instrument from 14 to 12, something that the noble Baroness eloquently argued against in connection with the previous set of amendments.
With an earlier group of amendments—Amendments Nos. 37, 38 and 39—we discussed the Government's policies on restricting consultation when revising the PACE codes. Even under the new government proposals for PACE code revision, there was still a procedure for public consultation before change to the codes was implemented. I see no such requirement for consultation here beyond the standard affirmative resolution procedure.
As we pointed out, maintaining public confidence in the criminal justice system must be our central concern. Consistency is an important part of that confidence. If numerous changes are to be made to the ages, the police may become confused, and the public may become distrustful. I hesitate to say it but if the minimum age is to be altered as often as, for example, the Government's policy on cannabis has been, people could be excused for not knowing where they stood with regard to their child's legal status.
As a minimum, there should be a requirement for a public consultation procedure along the lines of that for the PACE codes so that important interest groups can make their views known before any fundamental and far-reaching changes are made. I beg to move.
In view of the fact that, under the Bill, children can be tested at the age of 14 and, under this subsection, at an age lower than 14, can the noble Baroness assure the Committee that the provisions are about testing with a view to treatment and have no implications for the age of criminal responsibility? It is important that we know that.
In moving the amendment, the noble Lord, Lord Hodgson of Astley Abbotts, said that there was an underlying uncertainty in the Government's approach to the issue of age. I hope that, in responding to the previous group of amendments, I demonstrated that there was no uncertainty. We have set the ages at the appropriate mark to respond to the empirical data that we have. I hope that I have been able to explain that fully.
As I said, research indicates that drug abuse among children, in particular, often relates to class B drugs. The provisions in the clause provide for testing only for class A drugs. That suggests that testing those aged under 14 for specified class A drugs would not currently be an effective use of resources. I highlighted that in my response to the earlier amendments. We suggest respectfully that it is important that my right honourable friend the Secretary of State has the ability to amend—up or down—the minimum age of drug testing under the clause. For example, evidence may emerge to suggest that we would be justified in extending such drug testing to include persons under the age of 14. There is no such evidence now but, as the noble Lord indicated, that may change. We would have to consider that. The provision enables us properly to take into account the evaluation findings, once piloted and other research evidence has been received, so that we can make an informed decision.
The Select Committee on Delegated Powers and Regulatory Reform, on which the noble Baroness, Lady Carnegy of Lour, sits, considered the issue and, on 12th June, published a report. The committee found that the delegation and the level of scrutiny proposed under the clause were appropriate. We invite the Committee to be content with the committee's assessment.
I can reassure the noble Baroness, Lady Carnegy of Lour, that there will be no impact on the age of criminal responsibility. She can rest assured about that. I resist the amendment. I hope that, having heard what I have said, the noble Lord will feel more content than he was when he moved it.
I am sorry to disappoint the noble Baroness. I am grateful to my noble friend Lady Carnegy of Lour for her support. My concern was not about the fact that we might have to change the ages. My concern was about the public consultation—or lack of it—that was to go with such a change.
We have heard from all parts of the Committee strong views on the importance of the various ages—14, 17, 18, 21 and so on. People do not necessarily agree—often, as the noble Baroness said, they are at odds—but, clearly, they feel strongly about the matter. It would not be right for the Secretary of State to be able to introduce by statutory instrument a sudden change to an age without having had regard to the views of interest groups and other people who are concerned and have huge knowledge and experience. As I suggested, it should be done along the lines of the PACE codes. That is a good procedure which could be introduced for this particular change. With the greatest respect to the Joint Committee, I do not find the argument that we should leave it to an affirmative resolution statutory instrument satisfactory. In the light of the Minister's response, I propose to test the opinion of the House.
Clause 12 should not stand part of the Bill. It may be useful to outline what the testing provisions will mean in practical terms to a young person. A young person aged 14 or over, charged with house-breaking, for example, which is a trigger offence for testing, is asked to agree to a drug test. Should they refuse to consent, their refusal constitutes a criminal offence punishable by a fine of £2,500 or imprisonment, regardless of whether the burglary charge is subsequently dropped or even that they are acquitted.
Should they consent, the blood test would be taken by a mouth-swab procedure. In the case of 14 to 16 year-olds, this would require the presence of a parent or appropriate adult. But if they are 17 then no such safeguard would be provided. As we said earlier, under the UN Convention on the Rights of the Child, 17 year-olds should be treated the same.
A positive test would be made known to the court hearing the bail application and to the youth offending team charged with ensuring further drug-specific assessment. However, there is no assurance that a comprehensive specialist assessment of drug use would have been completed in time for the first bail hearing. It is unclear, but a matter of some importance, how the information relating to the test result will be recorded, how long it will be kept and how the privacy of the information will be safeguarded, whether in terms of police records or in relation to court disclosures. There remains the question of whether such positive drug test results might be used under the bad character provisions of this Bill, whether in relation to the immediate trial for the charge leading to the test, or even in any subsequent criminal proceedings the individual may face.
The Children's Society believes that introducing a testing regime of this kind is counter-productive to the aim of improving the effectiveness of efforts to help young drug users. They believe that coerced testing to identify drug use at charge introduces a confrontational and heavy-handed approach to a sensitive subject for young people in trouble. Great progress has been made over recent years with more young people's drug services, specialist provisions for youth offending teams and assessment practices that are designed to ensure young people can discuss their drug use honestly with the focus on support. I am worried that testing at charge risks negatively affecting the assessment and trust-building skills that underpin current and developing practice with young people.
Testing cannot distinguish between one-off, experimental and problematic use. It can also not show whether or not or when the person was intoxicated, how much they used or how long ago. It cannot tell us how they took it, whether by injecting, snorting or smoking which would be important in establishing the risks and the seriousness of their problem. Testing for class A drugs will miss situations where a young person has problems with alcohol, solvents or other illegal drugs that may be related to their offending. Equally, it may still miss people who do use class A drugs because drugs such as cocaine are detectable for as little as 12 hours after use. If the aim is really to find out about the extent of involvement with substance misuse, the relationship with alleged offending and need for help and support, then a class A drug test result—positive or negative—tells us very little indeed. A young person may test positive if they have only used the drug once or where drug use played no role in the alleged offence. I am concerned that a positive test result may have a negative and potentially prejudicial influence upon the legal process in which they are involved.
It may continue to be the case that courts remand some under-18s to Holloway Prison, despite its accepted inappropriateness for young people, because it is the view that it is the only place where they will get drug treatment. This shows the knowledge of drug use can and does affect court decision-making about bail and remand. In many cases these are entirely appropriate considerations. However, there is a significant and understandable risk that by disclosing test results to the court before a full assessment has been made, magistrates may react to a positive test for class A drugs. They may see it as an indicator of chaotic or dependent problems when in fact there is no such problem. There is simply no automatic connection between a positive test result at time of charge and the commission of the alleged offence.
Turning to the rights of children, I believe that these provisions engage UN Convention on the Rights of the Child and Human Rights Act principles and rights. Once again the measures highlight the anomaly of our treatment of 17 year-olds as adults for the purpose of PACE by leaving 17 year-olds without the safeguard of being advised and accompanied by a parent or appropriate adult. They apply the existing adult procedures to children when our UNCRC obligations are to separate the system of justice for children and to treat children as children first. The collection of non-intimate samples for drug testing by the police when it is not evidence for the purpose of identifying the young person, nor necessarily in respect of the charge being brought against them, must surely engage the young person's Article 8 right to privacy and personal integrity.
The use of criminal sanctions to coerce consent to such a test is also an interference with the personal integrity of the individual. The Joint Committee on Human Rights has clearly stated in relation to the collection of similar samples under Clause 8 of this Bill that there needs to be a means of ensuring in each individual case that such an infringement is necessary and proportionate. Although the JCHR was not referring to Clause 12 and has not made any published assessment of this clause, I do not believe that the case has been made for these measures, either on the basis of necessity or proportionality.
I am further concerned that the passing on of a test result to the court without consent may also breach article 8. The claimed purposes of both the test itself and the disclosure to the court are solely to ensure that the young person receives an assessment and, where appropriate, treatment. Such substance misuse, assessment and referral should happen as a matter of course under existing procedures. This throws into question the necessity of automatic disclosure to the court. It should remain the case that the youth offending team can inform the court of a young person's drug use once they have assessed it and if they believe it to be important to the consideration of bail and bail support. If the intention of the Government is to provide better means of identifying need at the police station and better connection to necessary treatment, the answer is to build on existing arrest referral schemes, which bring drug specialists into the police station, and to allow the developing good practice, through asset assessment and youth offending team partnerships with drug specialists, who embed in good practice.
The measures in Clause 12 would engage the police in gathering tests that are not evidence in respect of the crime at hand and draw the results, regardless of their possible lack of significance, into the formal pre-trial process. For these reasons, I urge the Government to rethink these measures and consider deleting Clause 12. I beg to move.
Not surprisingly, I would resist such a move. I should say straightaway what I said in answer to the earlier amendments. The test results may not be used in additional evidence in support of any offences of which the detainees have been charged, or for other investigative purposes, or as an aggravating factor when sentencing. The noble Baroness has concerns and fears about those issues. That is why we have made it absolutely clear that the tests cannot be used for that purpose.
I understand the fear expressed by the noble Baroness, who is right to be concerned. I am delighted to have the opportunity to reassure her that that is not the purpose to which the tests can be put. The purpose of drug testing after charge is as a screening tool. It does not in itself tell us anything about the extent of a person's drug use or linked criminality, which is exactly the point the noble Baroness sought to make. I respectfully agree with her.
Clause 12 introduces changes to the drug testing provisions in the Police and Criminal Evidence Act 1984—PACE. Section 38 of the Act relates to the duties of the custody officer after charge, and Section 63B to testing for presence of class A drugs. We have touched upon those issues earlier today. The clause will allow for persons aged under 18, specifically those aged 14 and above, to be tested for specified class A drugs after charge, and for the custody officer to detain the young person concerned to enable a sample to be taken for that purpose. Where the young person has not attained the age of 17, the clause provides for an appropriate adult to be present from the making of a request that the individual undergo a drug test to the taking of the sample. The provisions are intended to be introduced on a pilot basis.
Section 38 of the Police and Criminal Evidence Act 1984 currently allows a custody officer, in the areas where that section has been brought into force, to request a sample to be taken from persons aged 18 and over who have been charged with a "trigger offence". We discussed the definition of trigger offences earlier. They are defined in Schedule 6 to the Criminal Justice and Court Services Act 2000. It allows the custody officer to test for the presence of any specified class A drug, such as heroin and cocaine/crack. A person may be detained for up to six hours after charge for that purpose, and failure to provide a sample without good cause is an offence. Those charged with non-trigger offences may also be tested when a police officer of inspector rank or above authorises the test on the basis of reasonable grounds to suspect that misuse of any specified class A drug caused or contributed to the offence. It is significant that we chose inspector rank at this point; it indicates the weight we believe to be appropriate.
The criminal justice White Paper, Justice for All, confirmed our intention to extend these drug-testing provisions to those aged under 18. We propose to pilot the provisions in respect of young persons aged 14 and above. Should evidence emerge to suggest that we would be justified in extending the measure to include persons under the age of 14, as the noble Lord, Lord Hodgson, would probably like us to do, there is provision to do so. Equally, testing may be restricted to those older than 14 if evidence warrants such a change.
Clause 12 accordingly amends the relevant provisions inserted in PACE—namely, Section 38, relating to the duties of a custody officer after charge, and Section 63B, which sets out the conditions for drug testing—to enable drug testing to apply to those under 18, and specifically to those aged 14 and above. Subsection (2) makes the necessary amendments to Section 38(1) of PACE, which sets out the exceptions under which the custody officer can detain persons after charge, to allow for arrested juveniles, provided they have reached the minimum age of 14, to be detained to enable the taking of a sample under Section 63B of PACE. Subsection (3) amends Section 63B of PACE to provide for the drug testing of those aged 14 and above and to require the presence of an appropriate adult prior to and during the testing procedure in the case of those having attained the age of 14 but not yet having attained the age of 17.
It is important for us to consider the details of the provisions as they all fit together well—contrary to what has been said. One can see a synergy. The subsection inserts Section 63B(10), which defines the persons who may act as an appropriate adult. The definition is compatible with the appropriate adult definition as detailed in the PACE code C, which is the code of practice for the detention, treatment and questioning of persons by police officers. The minimum age for drug testing under the clause is extended from the age of 18 to 14. Subsection (3) inserts Section 63B(9), which will allow for the drug testing of persons aged under 18 to be introduced on a pilot basis.
If one considers how the provisions fit together, the anxiety that the noble Baroness understandably has about them does not appear to be justified. We would suggest that it is a proper and balanced response to a very difficult, complex and sensitive issue. I invite the noble Baroness, on mature reflection and bearing in mind all that we have said in earlier debates, to be content that Clause 12 stand part of the Bill. However, I can anticipate that at some other stage she may wish to come back to the issue, knowing the acuity with which she has addressed the issue.
I wish to ask the Minister a couple of questions. First, the duty of taking a sample is vested in the custody officer. Is the Minister satisfied that a police officer is the one who will carry out the duties, and not someone delegated with such a responsibility? Secondly, will she give an assurance that there are a sufficient number of women police custody officers, particularly in the case of young girls from whom a sample may be required? Thirdly, the Home Secretary is expecting the police officer to make arraignments in his area. Is the Minister satisfied that every police station has such facilities available, or are there likely to be instances when youngsters will be shuffled from one police station to the other to find appropriate facilities?
When the Minister replies, will she deal with several points that were properly and rightly raised by the noble Baroness, Lady Walmsley? For example, what will happen to the information and its recording of the results of the drug tests? Could they be used subsequently to blacken the reputation of the person in question? Might they become a bar to the employment of that person? If that should happen, that is one of the things most likely to set the person into a lifetime of crime. Furthermore, the noble Baroness, Lady Walmsley, observed that magistrates and perhaps others may, as a result of the tests, make wrong assumptions about the person. That is an important point on which we would like to hear more.
I thank the Minister for her reassurance regarding the occasions when the information from the screening would not be used in court. For the sake of clarity, will she say when, if ever, that information would be used in court, and how it would be framed if it were used?
I wish to deal with the issues raised by the noble Earl, Lord Listowel, and the noble Lord, Lord Hylton. The very first thing I did was to answer the question raised by the noble Baroness, Lady Walmsley, when she asked what would happen to information regarding results. I thought that I made the position clear but I repeat that the test results may not be used as additional evidence in support of any offences with which the detainee has been charged, nor for other investigative purposes, nor as an aggravating factor when sentencing. Those tests cannot be used for any of those purposes. The whole point of the drug testing after charge is simply as a screening tool.
I am most grateful but can the noble Baroness say whether the records will be destroyed? Or will they continue to exist in the form of a statistic which does not name the person in question?
I say straight away that I do not know the answer to the question regarding a statistic. However, I can say that the record will not be capable of being used in relation to the offender. It enables us to target the offender's needs in terms of assessment but it will not be used as a tool with which to beat the offender in any adverse way. That is what I was trying to make absolutely clear to the noble Baroness. It is a matter about which the noble Earl, Lord Listowel, will also be concerned as I know of his genuine and long-standing interest in the rights of young people and children. I hope that I have made the position as clear as I know how.
Before the noble Baroness sits down, can she make something clear? She said that the information will not be used in relation to an individual but are we right in supposing that the identity of the individual will be stripped out of the statistic so that it will not be there to be used?
I do not know the answer to that question save to reassure Members of the Committee that the information will be held in accordance with the Data Protection Act 1998 and the Human Rights Act. I have not, if I am absolutely frank, looked at the detail because I was reassured that the policy intent was not to use the information in relation to the way in which the offender would be dealt with.
The noble Baroness will recognise that policy intents change with Ministers and governments and that what actually matters is the availability of the material. Will she write to me and place a copy of the letter in the Library?
I am certainly happy to write. Sometimes things change for the better. However, that is for others to say.
I turn to some of the issues raised by the noble Lord, Lord Dholakia. The noble Lord asked who would take the sample, whether there would be sufficient women police officers, and whether there would be sufficient capacity within a police station. We have decided that it will be right and proper to pilot the matter so that we can get it absolutely right. We shall ensure that all the areas that participate in the pilot have the wherewithal to do so appropriately within the confines of what we propose.
As regards who will supervise the taking of the samples, that will come under the general supervision of the custody officer who has responsibility for the care of persons detained in police custody. The custody officer will decide whether the drug testing procedure should be followed and will ensure that the taking of samples is in line with the PACE codes of practice and guidance. The request for the sample has to be made by a police officer who must first warn the person concerned of the consequences of failure to provide such a sample. I assure the Committee that training is provided for all those expected to administer a test.
In relation to the question about police station facilities, I have already said that the scheme will be piloted and that a custody officer will be involved as regards the details set out in Section 38 of PACE. I absolutely understand the import of what the noble Lord said about having sufficient women police officers available, particularly if the taking of samples is of an intimate nature. All the usual good practice and procedure will be adopted in relation to those matters. I have no difficulty in reassuring the noble Lord about that.
As I indicated in my response to earlier amendments, we consider that if this matter can be advanced constructively through the pilots it will enable us to gather the kind of empirical data that we shall need to ensure that the procedure and practice that we seek to embed are sound, robust and in accordance with the good practice that we would want and that they deliver the kind of results that the Committee clearly would like to see. I hope that with that the noble Baroness will feel at least a little more content.
I am most grateful to the Minister for her response. I am particularly grateful to her for the reassurance that she gave that the test results will not be used as evidence of bad character. We on these Benches do not like those provisions in the Bill anyway but to add drug testing of under-18s to them would be even worse. However, it is clear from the number of amendments that were tabled to Clause 12 that there is considerable disquiet about how it will work. I was a little worried to hear the Minister mention that the Government intended to retain the power of the Home Secretary to reduce the relevant age despite the result of the previous Division. Perhaps that is an indication of what the Minister intends will happen to the Bill when it returns to the other place.
Those of us who are very concerned about the provisions of Clause 12 will watch the pilot schemes with great interest and will undoubtedly come back to the Minister with further questions as that process proceeds further down the track.
I beg to move that the House be now resumed. In moving the Motion, I suggest that the Committee stage begins again not before 8.28 p.m.