Criminal Justice Bill

Public Bill Committee, 7 January 2003.

Standing Committee B

Clause 7 - Codes of practice

Graham Allen (Labour, Nottingham North)

I beg to move amendment No.64, in

clause 7, page 5, line 14, after 'must', insert

'publish it online one calendar month before he intends to lay it before Parliament and'.

Eric Illsley (Labour, Barnsley Central)

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

No. 20, in

clause 7, page 5, line 21, at end insert—

'(6) No code or revised code issued under this section shall have effect until approved by a resolution of each House of Parliament.'.

No. 65, in

clause 7, page 5, line 21, at end insert—

'(6) Where a Code is being established for the first time or where revisions are of substantial importance, Parliamentary approval by affirmative resolution is required.'.

No. 215, in

clause 7, page 5, line 36, at end insert—

'(7A) No code or revised code issued under this section shall have effect until approved by a resolution of each House of Parliament.'.

Graham Allen (Labour, Nottingham North)

The amendments relate to parliamentary scrutiny of the codes of practice. Perhaps the Minister can reassure us about the possibility of effective parliamentary scrutiny. No doubt he has proposals on how to bring that about, and perhaps even some ideas on how parliamentary Committees could be involved. The amendments would provide that all changes to the codes of practice under the Police and Criminal Evidence Act 1984, whether subject to an affirmative resolution of Parliament or not, would be published online a month before being laid before Parliament.

The intention would be to obtain the views of practitioners—people at the coal face such as police officers—who would have access to the draft and would be able to make sensible comments on it. Those could be taken into account in the normal process of consultation that happens when such provisions are drafted. It is important to allow people access to the process, so that we can learn from their expertise and so that we do not have to keep on amending the PACE codes of practice. Having the documents online would be of great assistance.

Amendment No. 20 is based on the proposals of the Home Affairs Committee and the intention is that major revisions or additions would be subject to parliamentary approval. Knowing my hon. Friend the Minister's deep commitment to parliamentary accountability and scrutiny, I am sure that he will be able to advise us on the best way to proceed.

Dominic Grieve (Conservative, Beaconsfield)

I wish you and the Committee a happy new year, Mr. Illsley, and I hope that the Committee will make progress in the next few weeks in an atmosphere of pleasant co-operation.

The hon. Member for Nottingham, North (Mr. Allen) has put his finger on the drastic nature of the changes proposed in the Bill to the way in which PACE operates and is reviewed. When the Bill was first discussed it never crossed my mind that there would be so fundamental an alteration of the way in which the PACE codes were put together.

I do not want to speak in too general a way about an amendment that is very specific, but it is right to mention that PACE has always struck me as having stood the test of time rather well. When I was called to the Bar, PACE did not exist and endless hours of court time were taken up in disputes about whether the police had followed proper procedure in investigating an offence, in dealing with an offender, and in other matters. Once PACE came into force, it quickly commanded widespread acceptance, and my experience was that such disputes began to fade into the background. There was confidence that the police would implement the system properly, in a way that the public would consider reasonable.

I accept that the Police and Criminal Evidence Act 1984 is not written in tablets of stone, but nevertheless, it was envisaged that changes to the rules would be made through processes of widespread consultation, including a substantial parliamentary dimension. When one looks at the powers that the clause gives the Secretary of State in respect of the codes of practice, it seems to me that there is at least the potential—although I am sure that this was not necessarily intended by the Home Secretary—for changes to be made without any form of prior consultation. One of the questions that the Minister will have to answer in the stand part debate is what is the Government's reasoning for introducing such a drastic change to the way in which the PACE codes of practice are amended.

If there is to be a change, at least the amendment is a small step in the right direction, which is why I support it. The proposal struck me as sensible, if we are moving down that road. I see no reason why changes should not be published online, although I am afraid that my experience in the House suggests that, despite ministerial promises that there will always be prior publication, all too frequently we see something the day before it is put into operation. I hope that the Minister will feel able to give the amendment a favourable nod. In doing that, however, I hope that we can initiate a debate about why the Government believe that they must change the old system, because I am not persuaded that it is necessary. If we are to change it, safeguards are certainly necessary, and the proposal of the hon. Member for Nottingham, North seems to me to be an eminently good starting point.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

A happy new year to you, Mr. Illsley, and to other colleagues.

The amendments are important, as is the issue. It is interesting that in a great big criminal justice Bill like this, where press and public attention has concentrated on three or four issues, other issues that would normally arouse considerable interest have been relegated to the first or second division. This is one such issue, because the powers of the police, as part of the criminal justice process, relate to people's liberties. We are talking about the way in which the police use their powers. A concept that the hon. Member for Beaconsfield (Mr. Grieve) remembers was controversial when the legislation was passed in the 1980s is no longer controversial, because people, the police and legal practitioners—as well as those who regularly appear as what we might call recipients of the service—understand the rules. That is a good thing.

I will not anticipate the breadth of the stand part debate, but there seem to be five main areas. We are talking about stop and search powers, which are highly controversial; search and seizure; detention, treatment and questioning; identification; and tape recording of interviews. I want to deal quickly with the last one. Some of us were party to the debates on the recent Northern Ireland legislation. It is becoming accepted as normal that all interviews will be tape recorded, which is a far better way of proceeding. Indeed, it is my understanding that we are moving towards the televising interviews, as soon as the technology, money and resources permit, not only in Northern Ireland, but in Scotland, England and Wales, so the matter is uncontroversial. If people are satisfied that technology cannot be tampered with, and that its use is the norm, it will be much less controversial.

The other proposals are more controversial. They are administrative matters, but when we are dealing with depriving individuals of freedom and their treatment in custody, I share the view of many people outside the House, as well as of the hon. Members for Nottingham, North and for Beaconsfield, that we need to introduce changes carefully, building in all the proper safeguards to that process.

I have no problem with the amendments or with publishing information online. I have no problem with the work of the hon. Member for Nottingham, North on this issue. I do not disagree with him on some of the substance of what he wants by way of police files. I agree with his procedural view that we are more likely to get things right if we provide people with information early in draft form so that they can make an intelligent contribution. To give a more topical example, if we had done that when deciding on the sentences for gun crime there would not have been two different Home Office positions in two days. This has left the Home Office looking thoroughly embarrassed on an issue on which the parties could have agreed and on which there has been much discussion to reach agreement.

On amendment No. 20, my hon. Friend the Member for Somerton and Frome (Mr. Heath)—who apologises that he is on duty further down the

Corridor on one of the numerous Home Office Bills rumbling through Committee stage; there are three, and he is looking after one of them—and I take the view that we should not have a code or a revised code unless Parliament agrees. We are fully signed up to that. If the amendment is lost, the Minister will have to work very hard to persuade me that the clause should remain in the Bill.

I know that the police have argued that as matters have settled down this can be done through a much less formal and more flexible process. Parliament must sign up to these proposals. Only when such matters are being voted on do we focus our attention on the implications; otherwise they lie in a pile of papers on our desks, and no one notices the difficulties.

The hon. Member for Nottingham, North makes a similar point about amendment No. 65 and seeks to persuade the Committee that we should have an affirmative resolution, and my hon. Friend the Member for Somerton and Frome and I subscribe to that. I hope therefore that the Minister will tell us that although there is a case for flexibility in minor drafting matters that do not affect liberty, important matters will come before Parliament. The difficulty is in distinguishing between a change in the code to accommodate new technology or a generally agreed change to identification evidence or identification parades and proposals that will change the regime for custody cells and custody suites. That is the difficulty. We must ensure that we do not delay entirely reasonable proposals that would have been agreed to after consultation.

There was a review, predating the Bill, of the Police and Criminal Evidence Act, and that is perfectly proper. There was pressure from the police for greater flexibility. Effectively, the Government are saying that it will be sufficient for them to talk to police organisations and authorities and to those responsible for implementing the legislation. That is the wrong view. Although they are independent, they are technocrats, the servants of the state. The citizenry, who are the majority of the population, do not have the same representation; there is no Association of Chief Citizenry, no Superintendents Citizenry Association and no Citizens Federation. There must be ways of consulting the citizens on these matters, and as usual the minority will spot the difficulties in defence of the liberties of the majority. We must find ways of ensuring such consultation, and I hope that the Minister will persuade us to accept that small changes can be made without a big bureaucratic procedure while protecting everybody by ensuring that big or significant changes have proper scrutiny and parliamentary approval.

We must also ensure that the citizenry at large can have their say. Someone who is nicked on the Old Kent road on a Friday night or a Saturday morning may never have thought about these things before, but the powers, duties, rights and responsibilities given under the PACE will suddenly become quite important. They will be as important to Members of Parliament who get nicked, as recent evidence has shown, as to those who have never been anywhere near Parliament.

We should not delude ourselves that this is insubstantial business: it is very important, and I hope that the Minister is sympathetic to the amendments. Indeed, I hope that he starts the new year as he nearly ended last year by generously agreeing that there is a jolly good idea on the amendment paper—and that he will put us all in a good mood by accepting it.

Hilary Benn (Labour, Leeds Central)

I join others, Mr. Illsley, in wishing you and all hon. Members a happy new year.

Who could resist the blandishments just offered by the hon. Member for Southwark, North and Bermondsey (Simon Hughes)? We may well cover a lot of the ground in this debate that would normally constitute a clause stand part debate. It seems to me that the contributions made by my hon. Friend the Member for Nottingham, North and by the hon. Members for Beaconsfield and for Southwark, North and Bermondsey have gone to the heart of the issues raised by clause 7.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has put his finger on it. The response that we get to the individual amendments will determine whether we believe that clause 7 should stand part.

Hilary Benn (Labour, Leeds Central)

I accept that point entirely.

My hon. Friend the Member for Nottingham, North asked about online publication. I believe that it is not necessary or appropriate to write his suggestion into the Bill. However, I recollect that under current arrangements, consultation for draft PACE codes usually lasts for about three months, and I can see no reason why, when they are published for consultation, they should not also be posted on the Home Office website. That would meet the gist of the amendment. Indeed, I am happy to give the assurance that we will make that part of our normal practice, because it is a way of making matters on which the Home Office is consulting available to a wider audience.

In essence, the hon. Member for Southwark, North and Bermondsey put his finger on the issue that we are trying to address in the clause. I accept entirely what the hon. Member for Beaconsfield said about the merits of PACE as a mechanism. I have no doubt that it allowed us to take an enormous step forward, and we have learned from the experience. It has been of great benefit to everyone by making clear their rights and responsibilities in the circumstances covered by the codes. However, the fundamental problem—I shall come to it straight away—is how to maintain appropriate parliamentary scrutiny of substantial revisions and of new codes yet not maintain the current arrangements for every single change, which, given the nature of those changes, can be a cumbersome procedure.

That is not the fault of a particular Administration. I believe that the first PACE codes came into being in 1986, and we are now in the process of dealing with the third revision. However, the practical consequence of

the procedure used by previous and present Governments is that police officers and the ordinary citizen—the person arrested in the Old Kent road about whom we heard a moment ago—are having to work from out-of-date codes. They do not reflect current practice or changes in legislation because the process of amending them is so cumbersome, so the people whose job it is to use the codes are working from something that is out of date. From the practitioner's point of view—for the police officer and the arrested person and for the general public—that is not sensible. That is a practical problem, and we are trying to address it while ensuring an appropriate level of parliamentary scrutiny. The Home Affairs Committee raised that issue in its report on the Bill, and I undertook on Second Reading that we would consider it.

On reflection, I can see that there is an arguable case for maintaining the existing procedures for detailed scrutiny when a new code is being established. In drafting the Bill, we considered how ''substantial revision'' might be defined. We were advised that it was difficult to devise a form of words to enable a distinction to be made between a substantial revision and a less substantial one, of the type that has been referred to by the hon. Members for Southwark, North and Bermondsey and for Beaconsfield. There is still a broad set of potential changes that does not warrant the degree of scrutiny required by the PACE provisions.

How can we find a way forward? My suggestion is that we should return to the matter later, perhaps on Report, and my plea is that Committee members apply their minds to ways in which we might deal with it. For example, we could think of mechanisms such as consulting the Home Affairs Committee about what constitutes a substantial revision and what does not. Ultimately, somebody will have to make a decision about the dividing line between substantial and less substantial, but I invite the Committee to reflect on the fact that we are prepared to return to the matter. The current arrangements must be changed because they do not help practitioners. At the same time, I accept that we must have a mechanism for effective parliamentary scrutiny of major changes, particularly when new codes are being put in place.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister has hinted at an idea for dealing with secondary legislation, codes and other matters that progress through both Houses for approval that has been around but has never crystallised. That is that, rather than going through the whole process, such matters be considered by a Select Committee of both Houses and, for example, the Human Rights Committee. In that way there would be parliamentary scrutiny but it would need approval. I am willing to be reasonable about the matter. If we could use that model to create a process by which other legislation could progress through Parliament without everybody having to turn up, pitch in and vote, there would be safeguards and people would be secure. We would have to debate the parameters, but I ask him to consider that as a response to his suggestion.

Hilary Benn (Labour, Leeds Central)

It is a very helpful point. The test will be whether the procedure is quicker and more effective in dealing with the fundamental problem. The matter has arisen because of the PACE review, which we have referred to in debates on previous clauses. The review made the point that it is not helpful for police officers to have to work with codes that are out of date and do not reflect legislation. That is clearly barmy. We need to find a mechanism that enables us to provide practitioners with codes that are up to date. In that spirit I am happy to undertake to reflect on the matter and to return to it at a later stage.

Dominic Grieve (Conservative, Beaconsfield)

Picking up what was said by the hon. Member for Southwark, North and Bermondsey about an affirmative resolution of both Houses, affirmative resolutions are not very onerous on the House. The matter goes to Committee, and if it is non-contentious it is all over in three and a half minutes. If it is contentious, it is debated and might take up the allotted time. At some point during deferred Divisions it is voted on by the House. Nobody can say that that is very time-consuming. Would it not be a good safeguard to have affirmative resolutions even for routine matters? I do not see how that would handicap the Government in progressing business or in altering codes when necessary.

Hilary Benn (Labour, Leeds Central)

I hear what the hon. Gentleman says. However, that is, in essence, the procedure that has applied until now; it was used for the first and second set of revisions and the current ones. During all that time, the problem has been the total time that has had to be allowed for the consultation arrangements, the timetable, the laying of the new code, the period before it can be debated in the House, the affirmative resolution procedure and the vote. The net result has been that police officers are working with out-of-date documents. That cannot be sensible. At the risk of repeating myself, the challenge is to find a means of ensuring that we have both proper parliamentary scrutiny for significant changes and a more effective system in order to get those codes approved.

Graham Allen (Labour, Nottingham North)

My hon. Friend has been incredibly generous: he has made an offer to Committee members to write to him, after which he will come up with something on Report that will enhance the parliamentary process. That is a creative and innovative way to handle the problem. I wish to see the Home Affairs Committee involved, because it has the expertise in the area. It would be able to operate quickly.

I remind my hon. Friend of one point made about amendment No. 64 that concerned placing that information on the Home Office website. Would that occur during the consultation period? If, for example, serving police officers wanted to access any proposed change, could they e-mail their views on what that change should entail? That would allow Ministers to benefit from serving officers' expertise and to amend the draft before it was laid before the House. If the consultation takes place before the draft is presented, we will be able to include people in the debate.

Hilary Benn (Labour, Leeds Central)

I hope that I made it clear in my opening remarks that, when the draft report is published for consultation with those with whom the

Home Secretary seeks to consult under the clause, it should be put on the Home Office website at that point. The management of the consultation process is an issue. One must be realistic: not everyone can receive a response to a submission. However, to put the draft report on the website would allow a wider audience to see what is going on and express their views and for discussion to take place. In that spirit, I hope that the amendment will be withdrawn.

Graham Allen (Labour, Nottingham North)

In view of what the Minister has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 19, in

clause 7, page 5, line 18, after 'police', insert—

'(ba) the Law Society of England and Wales,

(bb) the General Council of the Bar,'.

John Mann (Labour, Bassetlaw)

On a point of order, Mr. Illsley. The Registrar of Members' Interests has previously advised me that any issue that I wish to raise in my capacity as an MP that directly relates to my own trade union requires me to declare that interest in advance. I seek your advice on membership of the Law Society and the General Council of the Bar, which I would describe as trade unions.

Eric Illsley (Labour, Barnsley Central)

It is up to hon. Members what declarations they make before they speak in Committee. The Committee has heard what the hon. Gentleman has said about whether the Law Society and the Bar Council are trade unions. That is a question for the certification officer.

Dominic Grieve (Conservative, Beaconsfield)

If the hon. Member for Bassetlaw (John Mann) has not cottoned on by now to my interest in the matter as a member of the Bar, there can be no help for him, as far as I can see. However, I declared an interest on Second Reading. I rather took it to be a blanket declaration that might stand the test of time in Committee. I do not wish to labour the point with the Minister, but the Bar Council and the Law Society are rightly concerned that they should be part of the consultation process.

The Law Society has to help in the administration of PACE and the Bar Council must pick up the pieces when the case goes to court.

If the Minister introduces the new system, it will be in his interest, and that of the Government and the good working of the justice system, to ensure also that the groups in question are in the list of people to be consulted. That is irrespective of whether there will be affirmative resolutions, and all the other matters that we have discussed. I hope that he will feel able to make a positive response. If such groups are included in the list, it will provide an assurance that the consultation will go a little bit wider than merely the police. Just as the Bar Council and the Law Society represent interest groups, so ultimately do the police. We hope that they also represent the wider community in exactly the same way as the other bodies do.

There is something slightly one-sided about the wording of the revised section 67(4) of the 1984 Act. I note that the Secretary of State may consult with

''such other persons as he thinks fit.''

However, I am bound to say that a Home Secretary who introduced a change—even a minor one—without consulting the Law Society and the General Council of the Bar would be extremely stupid. Might it not then be advantageous to include those bodies in the Bill? The point is simple, and the Minister could respond to it generously, in a way that would send out a good signal of the Government's intentions. I cannot think of a circumstance in which those two groups would not have to be included in the consultation. If I were to push as far as I could, I would say that solicitors would have to be, because they are present at police stations when the codes are implemented. The Minister could leave out the Bar if he wanted to, but he might regret it.

Vera Baird (Labour, Redcar)

As to leaving out the Bar, I declare an interest in its not being too comprehensively left out.

I want briefly to add to what the hon. Member for Beaconsfield said. The codes are about police procedures. However, it should be recognised from the requirement on the Home Secretary to consult other persons as he thinks fit—he will consult such bodies as, for instance, the mental health pressure groups and the children's charities, because the codes are in part designed to help vulnerable people in custody—that the codes are not merely police procedure. The aspect that is currently being left out is that the Police and Criminal Evidence Act 1984 gives the codes legal force. Consequently, they go beyond the function of regulating relations between the police and people in custody: they are used in court proceedings as evidence. It would consequently be a great mistake to leave out not only solicitors, who look after relations in the police station between defendants and the police, but barristers, who are the masters of the rules of evidence, and are far more exposed to those daily in the higher courts than any police officer could be. I suggest that mistakes will be made unless those obvious sources have to be consulted. It would consequently be better to include that in the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I, too, am troubled by the one-sided approach. We are considering proposed new section 67(4) of the 1984 Act , which says:

''Before issuing a code, or any revision of a code, the Secretary of State must consult—

(a) persons whom he considers to represent the interests of police authorities,

(b) persons whom he considers to represent the interests of chief officers of police''—

both of whom have an association—

''and

(c) such other persons as he thinks fit.''

By definition, two groups are in the Bill and nobody else. As the hon. and learned Member for Redcar (Vera Baird) and the hon. Member for Beaconsfield said, those groups are not the only ones involved in the process.

I am a member of the Bar, though I have not practised for 15 years—I am a member of chambers. It strikes me that those who are doing the legal work have an obvious consultative role, but there are other obvious groups, too. As I have argued in many

Committees, one need not necessarily include in primary legislation a full list of people to be consulted, but in that case no one should be named in the Bill: the Association of Chief Police Officers and the Association of Police Authorities should not be mentioned and the list of people to be consulted should be included in secondary legislation. Obvious groups would include the National Association of Citizens Advice Bureaux, local authorities and magistrates associations, and there are many other perfectly proper groups. The hon. and learned Lady mentioned those who look after the interests of mental health service users, and there are other people in the health service, especially those who look after the vulnerable—whether as a result of mental illness or of physical disability—and bodies such as the Commission for Racial Equality and the Equal Opportunities Commission, who might be included. I support the amendment—it probes why we should include certain groups and not others—and hope that the Minister will consider it.

Of course, the police have an interest, but they are a minority. The general public are the majority, but they are not mentioned at all as a group who are entitled to be consulted. If they are not included, no one should be. I hope that the Minister will accept the philosophy of that argument and agree to table a similar amendment on Report. I am sure that both main Opposition parties, and the hon. Member for North Down (Lady Hermon), are willing to try to reach an agreement, before Report, on a wording that will command general respect.

Hilary Benn (Labour, Leeds Central)

The clause makes specific provision for consultation, which, I remind hon. Members, is not a requirement under the current PACE provisions. The current provisions say, in essence, that the Secretary of State must publish a draft and consider representations. That is a rather passive process. We now propose that the Secretary of State should specifically be required to consult. That is a step forward.

Like those who have already spoken, I find it almost inconceivable that there would be circumstances in which the Bar Council and Law Society would not be consulted about changes to the PACE codes or the introduction of new codes. As the hon. Member for Southwark, North and Bermondsey said, it is generally not a good idea to include in primary legislation names of particular organisations, because those organisations sometimes cease to exist—not that I am suggesting for a moment that either of those august bodies may cease to exist. It also creates inflexibility and other organisations ask why their names have not been included in the list.

I would argue that ACPO and police authorities have a particular position, and they are referred to in paragraphs (4)(a) and (b), but I accept the spirit of the point and assure the Committee that where the Law Society and Bar Council have an interest, they will certainly be consulted in almost every circumstance. In fact, I find it difficult to imagine circumstances in which they would not be consulted. I hope that the hon. Gentleman will withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his remarks. I am not completely happy because, picking up the point made by the hon. Member for Southwark, North and Bermondsey, which I also tried to make, the impression is given that PACE exists for the convenience of the police. My recollection is that when PACE was originally introduced by a Conservative Government, the police were, in many respects, none too happy. They considered that it would be onerous and formalise matters in relation to which they preferred the old system of verballing people; there were a host of things that were probably more convenient for them before. I cannot ignore the fact that one of the driving forces behind the desire for change on PACE has been that the police have, properly, pointed out areas in which they want rapid change or would prefer things to be done differently. It is necessary to have a balance.

Because the Bar and solicitors are intimately involved in the way in which PACE operates, there are justifiable grounds for including them in the legislation in the same way as the police have been. I have hinted before that if the Bar has approved a change, it is less likely that its detail will be subject to endless challenges in court. Finding a co-operative way forward has been an extraordinarily successful means of setting ground rules that everybody has been able to observe, thus cutting the time taken by court cases. I hope that the Minister will think further about the matter. In view of his willingness to consider the entirety of the wording of the clause to find out whether it can be rejigged in a way that meets his concerns and the anxieties of other Committee members before Report, I will be happy to withdraw the amendment. However, unless we can improve on what clause 7 offers, particularly in respect of consultation, the matter will undoubtedly return on Report, and again in another place, if we do not sort it out. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is a very important clause. I would normally vote against it, because it does not contain the safeguards that we have touched on. It does not resolve the issue of who should be consulted about changes and does not address the matter of parliamentary scrutiny of fundamental changes in the arrangements governing procedure between the citizen and the police. I appreciate that the explanatory notes are for guidance and do not have any statutory force, but the description of clause 7 says:

''This clause makes fundamental changes to the process for establishing and amending codes of practice under PACE.''

They are indeed fundamental, and we must not delude ourselves.

The next issue that I want to raise has not been touched on before. I understand that under the proposed procedure there will not have to be drafts. It will be possible for a new change or changes to be laid and to come into operation. It strikes me that, not only for the reason given by the hon. Member for Nottingham, North, there has to be a process by which

the Government can show what they are thinking of doing. There might be a big issue that will exercise a lot of people. The Government do not always recognise the importance of an issue—the small print often reveals matters that were not initially considered significant but are important for a particular group or person. Holding on to the view that we ought to have proper parliamentary scrutiny, but accepting that we shall come back to whether we can achieve consensus about how to do it effectively, I consider the existing affirmative procedure to be the best option, unless we can find an equally good one.

I take the point made by the hon. Member for Beaconsfield: a Committee comprises people with an interest who meet for a few hours at most. We make recommendations to the House and decide what is controversial. It is voted on later. If there is a very big issue, we spot it and it is debated in the House. We judge the importance of things and matters can be processed in 10 minutes—five at each end of the building—if there is no controversy.

There is also a question of management. A discipline is placed on the Government, the police and everyone else: they cannot keep knocking on the door saying that they want to make yet more changes. They know that if they have a slot only once a year, or every two, three or five years, they will have to marshal their thoughts. Unless something hugely important comes up, or unless a great lacuna in the system is suddenly revealed by a court ruling, experience should tell them that in five years' time they will need to do something.

I accept that things sometimes need to be brought up to date. However, if we do not force a Division it will not be because we are happy with the clause—we are not—but because of the good will and the spirit of the Minister's response to the previous two points. Might the Government table an amendment, or will they consider a proposal for considering draft codes, as stage one of a process, before changes are made—whether big or small?

Dominic Grieve (Conservative, Beaconsfield)

I, too, hope that I have not been excessively sweet-talked by the Minister into not opposing the clause. My reservations have been well identified. I fully accept that there may be a problem distinguishing between important and minor changes, but the House has a role to play in that.

I return to the matter of affirmative resolution, because it is important. It is useful, because it allows Members of Parliament and others to ask the wonderful question, why. We have already heard of an example: the Minister will remember that, before Christmas, an amendment was made to legislation that had not yet been brought into force, but no explanation was given at the outset of exactly why that had happened. It simply emerged. I fear that the moment that it becomes easy to amend existing legislation, amendments will start to cascade every time a police officer come across a minor hiccup that he does not like. After all, the police are the ones with the easiest access to the Home Office: they can put pen to paper to say that they would like a change, rapid

consultation is available and they are automatically within the loop provided under clause 7; and if a Government wish to, they can present a fait accompli to the public with absolutely no discussion—although I fully accept that that is not the Minister's intention.

The problem with scrutinising the Government's actions is that a Minister's intention expressed in Committee and what happens when bureaucrats, who are feeling a bit harassed on a Friday afternoon, see the opportunity to have the whole thing done and dusted by the following Tuesday morning are two entirely different things—I have been a Member of the House long enough to realise that, without ministerial intention, it happens quite frequently. Placing orders before Ministers to be signed without scrutiny is one of the easiest things to do. I sat on the Statutory Instruments Committee in the last Parliament, and every week I saw poorly drafted legislation—much of it unintelligible gobbledegook—but the Committee could not question its background.

The PACE code is important; it has worked and it must continue to work. I am mindful of what the Minister is trying to achieve, but the Bill as it stands does not reassure me that that will continue. Can he please come up with something better on Report?

Vera Baird (Labour, Redcar)

I have some concerns. I echo what has been said about codes of practice being critical as a protection for many of those who become involved with the police—those in police custody or being investigated by the police. I am grateful for the Minister's saying that he will try to think of a formula. I invite him to take into account—I think that we should all do the same—what primarily worried me about the clause: the notion of taking the power, fairly easily, to change the codes of practice when we are in the middle of a major review of those PACE codes. I think that the review was reported to the House in November. Many of the recommendations were not put in the Bill or in the Police Reform Bill. Some of them will inevitably be in a future code of practice. I understand that the intention behind the review is for those changes to be implemented by 2004. I imagine that the changes will cover, among other things, the way in which appropriate adults are appointed and deployed, and the question of intimate searches. The review raised such issues, on which change is needed, but for which a slot in legislation has not yet been found. They are very important issues.

I invite the Minister to ensure that any formula takes into account those major revisions of PACE. I appreciate that as legislation goes through a quick procedure is necessary, so that there is a catch-up of the codes of practice. However, it is slightly presumptuous to take a power that is designed for dealing with that when we are in the middle of a major review of the PACE codes. I hope that any formula agreed can allow for the current review to be completed before any of the changes are implemented. I ask him to link that to the formula that he is searching for, and to try to match those two up.

Hilary Benn (Labour, Leeds Central)

There is a lot of common ground among us on the problem that we are trying to

address. My hon. and learned Friend was right to draw attention to one of the causes of the pressure, which is the legislation passed in the House. That is why the discipline of being allowed to revise the codes only once every two years would not work. The practitioners on the streets want guidance that reflects the legislation that we pass. It would not be sensible then to impose a rule that says, ''I'm sorry, but you're going to have to wait another two years before we can update the code you have to work with''. There has been criticism of the rate at which the Home Office legislates, but that is how things go.

The hon. Member for Beaconsfield raised a point about a draft. He is correct in that the current wording mentions the publication of a draft. However, on the basis of subsection (4), that would be a bit hard if one were to issue a code. Under the clause, there is for the first time a requirement for the Secretary of State to consult. I find it hard to conceive that a Secretary of State would write a letter saying, ''Dear So-and-so, I am thinking of publishing a new code. What do you think? Let me have your views. Yours sincerely.'' I think that common sense dictates that one would invite people to comment and be consulted on a draft.

Although I take the hon. Gentleman's point about the wording, I think that the spirit of subsection (4) is clear. After all, what is the point of consultation if there is nothing specific to consult on? It would not make sense to write a letter such as the one that I caricatured a moment ago. It would make a lot of sense to consult people on such proposals, for precisely the reasons that my hon. and learned Friend outlined. Such detailed provisions as those under discussion are in some cases sensitive and important. If the consultation is to be meaningful, people must have a chance to look at a draft and to comment on it. I hope that that is helpful, and that the Committee will accept the clause.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8 ordered to stand part of the Bill.

Schedule 1 - Amendments related to Part 1

Dominic Grieve (Conservative, Beaconsfield)

Perhaps we could hear exactly how the schedule will operate in practice, and what its purpose is. I think that it is slightly more complicated than clause 8.

Hilary Benn (Labour, Leeds Central)

Clause 8 introduces schedule 1, which makes amendments that are related to part 1. Paragraphs 1 to 10 are necessary to make various amendments that are consequential on the specific modifications and extensions to powers set out in part 1. Paragraphs 11 to 13 are needed to allow certain persons accompanying constables in executing warrants under section 2 of the Criminal Justice Act 1987—which deals with cases of serious fraud—to exercise relevant powers of a constable. That effectively allows the same flexibility for warrants

relating to the work of the Serious Fraud Office as clause 2 allows for search warrants in general.

Paragraph 15 is necessary to provide military police with the same stop and search powers relating to articles made, adapted or intended for use in causing criminal damage as clause 1 provides more generally. Paragraphs 16 to 19 amend schedule 4 to the Police Reform Act 2002, which allows certain police powers to be exercised by designated civilian members of staff. The amendments are necessary to ensure that the provisions are consistent with the amendments to PACE powers set out in the Bill. I hope that the Committee will agree to the schedule.

Question put and agreed to.

Schedule 1 agreed to.

Clause 9 - Power of arrest for possession of Class C drugs

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is an extremely important clause. It is the clause whereby the Government propose that, as a result of the intended reclassification of cannabis from class B to class C, the law on what is an arrestable offence should be changed so that the offences in relation to possession of controlled and class C drugs become arrestable offences. When Lord Justice Auld reviewed the criminal justice system and made his extensive report, he did not address the issue. When Mr. Halliday undertook the sentencing review, he did not address the issue. It was not a core part of Government policy.

This proposal from the Home Office is part of what I—and many people outside Parliament, not only from my party—feel strongly is an extremely muddled response from Government. I shall take time to explain so that colleagues, whatever their views about the use and possession of cannabis, understand that it is nonsense to propose that we make possession of class C drugs—not just cannabis—arrestable offences. It is extra nonsensical to do it, as appears to be the case, because the Government want a power of arrest to be available in what they call aggravated circumstances; powers to arrest already exist in a lot, if not all, of such circumstances.

Even if we accept the premise that there are circumstances in which possessors of cannabis and other class C drugs ought to be able to be not only apprehended and charged but arrested and detained—treated as though they had committed more serious offences—the proposal is unnecessary because of the existing law. Possession of cannabis is an arrestable offence by virtue of the fact that it carries a sentence of up to five years' imprisonment. That is the result of its being a class B drug. After reclassification, anything that—as is proposed for cannabis—changes to class C will carry a maximum penalty of two years' imprisonment and therefore will no longer be an arrestable offence, unless we change the law, as proposed here, to make it so. In order to retain the

power to arrest after one has changed the category, one has to change the law, which is what is proposed. The arrestable offences are in a schedule to PACE.

There are other drugs, as colleagues are aware, that are less readily recognised as class C drugs, such as anabolic steroids and benzodiazepines, but cannabis is the best known. In fact, there are few offences of that type—perhaps when the Minister presents his case for change, he will say how many such offences are committed—so we are discussing a de minimis area of law.

For 30 years since the Misuse of Drugs Act was passed in 1971, the unlawful possession of class C drugs was not an arrestable offence. As colleagues on the Committee and many people outside the House know, decisions about the classification of drugs are made as a result of advice given to Government by various bodies and on the basis of harm: it is a harm-related test. The advice that was commissioned by the Home Secretary after the last election, to his credit, is that cannabis should be downgraded on medical grounds—not because it is not harmful, as I believe that it is to an extent, but because it falls into the lowest of the three bands. There is no dispute in Parliament and outside that it is less harmful than an excess of alcohol and much less harmful than tobacco, neither of which are class C drugs.

I think that when I last checked the figures, there were no deaths from cannabis in this country, according to a ministerial answer—there might have been a handful, but the last figures that I saw suggested that there were none—whereas there are 120,000 deaths a year from tobacco-related cancer. The two are in entirely different leagues. The number of deaths directly related to alcoholism and alcohol poisoning is somewhere in between. I think that the figure is 40,000 a year.

As far as I am aware—I am open to the Minister telling me otherwise—there were no complaints in the 1970s, 1980s or 1990s about law enforcement as a result of the fact that possession of class C drugs was not an arrestable offence. I am not aware that the police ever complained that it was a problem. The list of class C drugs grew during that time, but there was never any suggestion that possession should be an arrestable offence. Possession of class A and B drugs is an arrestable offence, and there is no proposal for that to change. The Liberal Democrats have debated the issue for two years, going around the country and taking evidence, setting up a policy review and discussing the issue at conference, and we do not believe that it should be possible to be imprisoned for any possession-only offence. Whether possession of a class A or B drug should be an arrestable offence is a slightly more difficult question, but because it might result in imprisonment, we argue that the power to arrest and imprison should not apply to possession-only offences. I would be happy if the law were to change so that arrest would be possible but the penalty of imprisonment would not apply.

Other bits of the law provide for powers of arrest. My understanding is that the police have a general

power of arrest under section 25 of the Police and Criminal Evidence Act 1984 in cases in which an officer has reasonable grounds to suspect that an offence, which is otherwise not an arrestable offence, has been committed, and where specific other circumstances exist. Aggravated circumstances, therefore, can take the offence from the non-arrestable to the arrestable category—for example, if the identity of a suspect is in doubt and the police need to arrest someone to identify them, or if the officer needs to intervene to prevent physical injury or damage. It is not as if an officer cannot arrest someone whom he or she believes is in possession of cannabis and about whom the officer has other concerns. The powers already exist. I believe that that is entirely sufficient as a way of dealing with any offences relating to cannabis use that do not qualify as offences under others parts of the law.

I understand the political difficulty that any Government have in not wishing to be seen as soft on drugs. Some of my colleagues, including my hon. Friend the Member for Richmond Park (Dr. Tonge), argue that all drugs should be legalised. I do not go that far; under international law we cannot go so far. She is a doctor who believes that we should. Other colleagues may not agree with her, but they believe that drug possession should not mean a prison sentence. I subscribe to that view.

Despite the difficult political position that the Government perceive themselves to be in, by now the public and the media overwhelmingly believe that possession of drugs should not mean a prison sentence. I do not think that the Government or the police believe that it should either. The Lambeth experiment, which was not a complete failure, was endorsed by the last borough commander, Commander Paddick, and the present borough commander, Commander Moore, regarded it as a significant success.

In order to avoid the impression that the Metropolitan Police are ''going soft on drugs'', a power of arrest is being proposed that will be exercised at the discretion of an officer only if there are aggravating circumstances. These include blowing smoke in a police officer's face or disorder involving someone in possession of cannabis or possession of cannabis by a person aged 17 or under. I do not know why we need one law giving an officer the power to arrest someone aged 17 or under and another for arresting someone who is 18 or 19. That strikes me as an odd and anomalous suggestion; it is, however, being proposed. Will a person under 17 be treated more severely than a person over 18? It seems odd to arrest them. I imagine that that will raise issues concerning care.

Why can the public order powers not be used to deal with someone who blows smoke at an officer? The only argument offered by the police and by Ministers is that we will need this law not for run-of-the-mill possession but for possession with aggravating factors. I understand that the Government do not wish to look soft, but they are trying to have it both ways: they are trying to make the statute book look tougher, yet in practice be softer. That sends out a completely confusing message: ''From now on you will be able

to go out to smoke cannabis only if you know that there is a risk that you may be arrested and given a long prison sentence, depending entirely on the discretion of the police in your area and the police officer on the night in question.''

That absolutely confuses the message that class C drugs are least serious; class B drugs are more serious but not the most serious; and class A crack cocaine and heroin are deadly serious. If we are trying to get intelligent, and less intelligent, young people to understand this message we must surely use the same argument that we have always used when giving the proof on the outside of a bottle or the information on the label on a box of tablets that tells you whether the product is harmful.

I hope that the Committee and the House will act intelligently in anticipating the debates in another place, as this proposition will not stand up to proper scrutiny. It will not get through Parliament as it is; it will be thrown out on its ear in the other place, and it would be ridiculed even if it did get through Parliament.

There have been two significant inquiries into the working of the Misuse of Drugs Act 1971. There was the Justice report in 1991 and Dame Ruth Runciman's well-respected Police Foundation report in 2000. Neither inquiry reported any problems caused by the fact that possession of class C drugs was not an arrestable offence. As far as I know, neither report said that the law must be changed.

If one looks back 10 years at the Justice report, which says that the power of arrest for possession of cannabis should be retained, one could argue that the experience of the following 10 years went in the opposite direction. The Runciman report considered that experience and specifically addressed the question of arrest for possession of cannabis. It did not make that same recommendation: indeed, it recommended that cannabis should be declassified and that there should not be a power of arrest. That was based on the experience of the police at that time, as well as of others who gave evidence.

There was concern in 1991 that an officer finding the drug would be disadvantaged without a power of arrest. That was the last argument that I heard made for the power of arrest for possession of cannabis. The substance would have to be sent to a lab for analysis, which could allow for allegations of misconduct and tampering. Moreover, the officer would lose the power to search premises after an arrest under the Police and Criminal Evidence Act.

However, my understanding is that everybody accepted when they gave evidence to Dame Ruth Runciman and her colleagues that better procedures, analysis and techniques make allegations much less frequent. Allegations used to be preventable and the systems worked much better before because the power under section 18 of PACE is limited to searching for evidence in respect of the offence for which the suspect was arrested. A section 18 search was not often justified for possession of cannabis unless the individual was a supplier who was about to go and do lots of deals.

The police could use many other powers in circumstances in which the Government and the police appear to think that the power of arrest may be necessary. The Public Order Act 1986, which we all know and which is widely used by the police, gives summary power of arrest for all offences that are contrary to that Act. Therefore, threatening, insulting and abusive behaviour all carry the power of arrest. Someone who might be in possession of cannabis and who on seeing the police coming is rude and vulgar can be arresting for that offence. The police do not require the extra power under the Bill.

The paradox is that, having realised that all those other powers exist, one sees that this is a bold proposal that does not have any limitations on when the power of arrest might be used. We could legislate to give a power of arrest in certain limited circumstances and include those provisions in the Bill. One could argue that there should be a power of arrest for cannabis possession according to guidelines agreed and approved by both Houses as secondary legislation. However, none of those points is argued. It is a bold, straightforward proposition to change cannabis from B to C, yet still make its possession an arrestable offence—the same as for other class C drugs.

I would not support a qualified change to the guidelines. However, if there was at least a serious proposition, there should be some way that people would see that the legislation would be applied consistently. It is no good to say that we shall leave it to the different police forces' discretion. If people who live in Camberwell, in the Solicitor-General's constituency, walk towards Brixton—where Southwark becomes Lambeth—they are still in SE5. People may cross that boundary on their way from one bar or one home to another. The policy in Southwark may be not to arrest people for cannabis possession, but the Lambeth borough commander of the day might say that his officers will arrest people.

Someone from Uxbridge may cross into Buckinghamshire because that is where his mates go, and the policy of the Buckinghamshire police—part of the Thames Valley force—might differ from that in Uxbridge. It is complete nonsense that the law should be different in different parts of the country. It either should be an offence to possess a drug or it should not. That has nothing to do with the debate on whether it is an offence to supply cannabis and to be a dealer. I am absolutely into clobbering people whose offence is being a dealer, and I would have an aggravated offence for those dealing outside school playgrounds, youth clubs and other places where vulnerable youngsters might be found.

It is bizarre that the proposed increase in the penalty for trafficking in cannabis will, under this package of changes, increase from five years to 14 years. It is bizarre, when the advisory council said that it was less serious and should be downgraded, that it is suddenly proposed to double, and nearly as much again, the maximum term of imprisonment—talk about people not having confidence in judges, the legal system and sentencing.

Hilary Benn (Labour, Leeds Central)

It might be helpful if I point out that the maximum penalty will remain the same as it is now.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Yes, but the product will be different. The Minister is quite right that there is no proposed change in the penalty; unfortunately, it means that something that is now a class B drug that will become a class C drug, because everyone agrees that it is less harmful and should be treated as such, is none the less given the maximum penalty—the old penalty—that went with its being classified as a more serious drug.

The Police Foundation inquiry recommended that the penalty should go up from five to seven years for trafficking, but no one recommended that it should be increased to 14 years for trafficking in cannabis. The reality is that if people are dealing in cannabis they should be clobbered, but surely not to the same extent as those dealing in crack cocaine, heroin and ecstasy, which are included in the gradated tariff down to class C. The whole thing will undermine the idea of the three-category system—very serious, not so serious and least serious. My understanding, therefore—the Minister appears to agree—is that from now on, as part of this package of changes, the penalties for trafficking in classes B or C, rather than, as in the past, only class B, will be 14 years.

One other linked issue has been extremely controversial. Hon. Members will remember the Cambridge Two case, in which the people who ran a hostel were charged with offences for permitting the use of drugs there. The maximum sentence imposed on occupiers or managers permitting certain activities to take place on premises contrary to section 8 of the Misuse of Drugs Act 1971 is 14 years for class A and B drugs, and five years for class C drugs. If cannabis becomes a class C drug, the manager of premises where cannabis is used would be liable to up to 14 years' imprisonment. That, too, is illogical if we are trying to keep the same differentiation and gradation.

In one respect, this is all cloud cuckoo land. We should consider the sentences passed by the stipendiaries, district judges, lay magistrates and Crown court judges for possession offences. Although the maximum penalty for possession of a class C drug will continue to be two years' imprisonment, and five years for a class B drug, in the real world people are not sent to prison for possession of a class C drug and almost never for possession of a class B drug. We are giving a hugely increased tariff, but there has been not only no demand for but no experience of people being sentenced at the top of the tariff. That must bring the law into disrepute. I ask hon. Members to think seriously before signing up to the change.

Some may think that cannabis possession should remain illegal. I accept that in international law—we are signatories to the Geneva narcotics conventions—we cannot unilaterally decriminalise possession of cannabis. I understand what the Dutch are trying to do, but the theory that says, ''Go through the front door of a cannabis café in Amsterdam, share cannabis

with mates, and it is not an offence, but bring it from a lorry through the back door and it is an offence, but it will be ignored,'' is a fudge. The Dutch and Portuguese have considered making it subject to administrative penalty, like some parking offences, but that introduces unnecessary complications.

The way to handle the issue is to say that, although possession of cannabis must remain on the statute book as an offence, it should be a public policy decision not to prosecute, as is done in the case of the blasphemy law. The Crown Prosecution Service has always used two criteria in deciding whether to prosecute: whether it is in the public interest and whether it is 50 per cent. or more likely that a conviction will be achieved. If the Director of Public Prosecutions, the Attorney-General or the Solicitor-General were to decide that there would not be prosecutions for possession of cannabis, there would be no prosecutions. It could be left technically on the statute book but everyone would know, whether they were in Essex or South Wales, the Police Service for Northern Ireland or in West Mercia, that possession alone would not be prosecuted. My view is that it should not be.

When the police are desperately trying to get on top of problems such as the gun crime of which we hear every day, it is so low a priority for them to go after people for possession of cannabis that it should not be a police activity. It is a complete waste of time, space and effort and should disappear. I do not ask colleagues to share my conclusion. However, even if it is the Committee's view that there should be prosecution for possession of cannabis, it is absolutely illogical to downgrade cannabis to the least harmful category and then make it an arrestable offence, carrying a significant prison sentence, and to make trafficking of cannabis as serious an offence, in terms of punishment, as dealing in heroin and crack cocaine. I hope that the Committee will throw out the clause. It is a nonsense and a fudge and, whatever views we may have about drugs use, it is a ridiculous proposition. I hope that it receives very short shrift and is out of the Bill before it leaves Parliament.

Dominic Grieve (Conservative, Beaconsfield)

The issue in the clause has been approached, perfectly correctly, by the hon. Gentleman on the basis of its relevance to the status of cannabis. As he knows, while there are mixed opinions in all parties about cannabis, it has been my experience from working in south London, in areas close to his, that cannabis is a very nefarious drug. Therefore, if it were the Government's intention to reduce its status from class B to class C while preserving the ability to arrest for possession, that would not cause me particular concern. I can see that there are compelling reasons why there should still be a power of arrest for cannabis, even if there is a change in the sentence that can be passed for it. I do not want to dwell on that issue at much greater length at this stage, because that is not my principal concern about the wording of the clause.

I find the Government's behaviour amazing. Having got themselves tangled in an extraordinarily complex set of knots, they have sent out mixed messages about whether they approve of cannabis.

Having on the one hand announced that they would downgrade it and that the police should not target it, they suddenly veered back under public pressure to say that it must remain arrestable. When the fallout has finally landed we discover that there is not a clause that concerns cannabis, but one that, on my calculation, concerns 117 other substances, possession of any of which will become, for the first time, an immediately arrestable offence. As I am sure the Minister will be only too happy to confirm in a moment, those substances are described by their generic terminology. A medical practitioner can lawfully prescribed a large number of them to a patient.

Hilary Benn indicated assent.

Dominic Grieve (Conservative, Beaconsfield)

I see the Minister nodding. A person walking down Brixton high road could be the subject of a search because the police think that he perhaps has unlawful substances on his person, and they might discover in his pocket two tablets of diazepam. On the face of it, that would be a sufficient ground for arrest. It is unlikely that that person would be carrying the prescription by which he had lawfully obtained that substance.

Aside from unlawful suppliers, there is also the old problem, in this age of self-medication, that many such drugs are the sort of thing that one's Auntie Vera might give to one, saying, ''Why don't you have one of these if you're feeling a bit stressed?''

Vera Baird (Labour, Redcar)

I like it.

Dominic Grieve (Conservative, Beaconsfield)

I do apologise to the hon. and learned Lady. I was not thinking of her subconsciously. I had an aunt called Vera who had an interesting and rather vagabond lifestyle. I shall not go into the details, but perhaps that was what impinged on my consciousness.

The list of drugs is enormous, and many can be possessed perfectly lawfully. I have not heard about anxieties over the level of misuse of those substances, though I await the Minister's comments on that. I accept that they are all misused. Some are taken with hard drugs to prolong the effect. I do not have the slightest clue what some of them are; nor, I suspect, does he. However, whether we are talking about anabolic steroids or tranquillisers, I invite him to write to the Committee to say exactly what they all are, whether they are lawfully available on prescription, and what their harmful side effects are considered to be. When we know that, we can judge whether it is appropriate for possession to become an arrestable offence.

The issue is serious, and involves a massive extension of the state's power to take somebody off the street, take them into a police station and detain them while inquiries take place, for possession of a range of substances, a large number of which they might have a lawful reason to possess. That is entirely different to the situation with respect to class A and B drugs, and cannabis.

David Cameron (Conservative, Witney)

I do not have the list that my hon. Friend has, although I know that diazepam is frequently prescribed for epileptics. There are hundreds of thousands of epileptics in this

country who frequently have to carry large stashes of the stuff. That adds to his point. Not everyone will carry their prescription with them, and if they are searched by the police, they could easily suffer the effects of which he talked.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to my hon. Friend. I picked on diazepam because it is one of the few drugs on the list that I immediately recognised. From my involvement in one or two prosecutions under the Medicines Act 1968, which is rather esoteric but concerns some of those substances, I suspect that many of them are not usually regarded as being especially harmful, even if they may be abused. The real abuse will be of the perfectly innocent people who are dragged off to police stations to satisfy police officers about the origin of prescription drugs because they cannot produce a prescription to justify their possession. That would be a disastrous state of affairs.

It beggars belief that in order to make the possession of cannabis an arrestable offence—this is the only possible reason for the proposal—the Government have decided to make the possession of all class C drugs, generically, an arrestable offence. I hope that the Minister will think again. If he wanted to draft an amendment to the law that satisfied the Government's desire to keep possession of cannabis as an arrestable offence while putting it into class C, I would understand the logic behind the clause. If he wanted to amend the law to identify those class C drugs possession of which would be unlawful in any circumstances, I would understand the logic and be prepared to see the distinction. However, to come up with a system for keeping possession of cannabis arrestable that potentially criminalises hundreds of thousands of people who have prescription drugs in their pockets and are going about their lawful business, or at least makes them liable to arrest and serious inconvenience is an appalling attack on civil liberties that lacks the smallest shred of justification—and it could not possibly be said that, if they had a prescription, the constable would not have reasonable grounds for suspecting that an offence had been committed until the matter had been investigated at the police station.

Bearing in mind the desire of many Committee members to follow the Government's tortuous line on cannabis, I hope that they will have the courage to say that the proposal is simply nonsense. I cannot think of any justification for making possession of all class C drugs an arrestable offence. We have managed without such a provision for a very long time and no one was calling for it until we got into this cannabis conundrum. I ask the Minister to think again.

Paul Stinchcombe (Labour, Wellingborough)

I have no hesitation in saying that the clause is simply nonsense, and I say that as a thoughtful, constructive supporter of the Government and the Bill, not as a usual suspect. In all honesty, I do not believe that the clause makes sense or should be included in the Bill. I say that as someone who stands behind the Government, not to slap them on the back—or stab them in the back—but

sometimes to push them forward to take better and braver positions.

I am not a lobbyist for cannabis. I do not buy it and I have never smoked it. The hardest drugs with which I have experimented are strong lager and Marlboro Lights, and I gave up smoking some years ago. Both those drugs are considerably more harmful than cannabis. As the hon. Member for Southwark, North and Bermondsey said, the statistics show that there are 120,000 smoking-related deaths and up to 40,000 alcohol-related deaths in England and Wales every year, yet it is entirely lawful to buy and use both cigarettes and alcohol, subject to constraints on age and excess. In 2000, cannabis was mentioned in just 11 death certificates in the United Kingdom. The various classes of drugs are dictated by harm, but they should be dictated by medical evidence. If we have evidence of that nature, we should follow it, as I thought that we had started to do when the Government recently announced that cannabis would be downgraded to class C. That was a step in the right direction. It was giving out a message that people understood—one that must be understood by people who are tempted to use cannabis and other drugs. If we say that those drugs are not harmful but then say that possession is arrestable, it sends out a confused and mixed message.

I believe that the message should not confuse the police or potential users. The police could be given the message that it is not so serious an offence and that they should not waste their time chasing possessors of a relatively harmless substance when they could spend their time chasing the dealers of extremely dangerous substances. I thought that that was our message, but we are now suddenly saying something rather different. I thought that we were saying to the users of this relatively harmless substance that it was not so serious, but we will now be giving out a different message at the same time.

John Mann (Labour, Bassetlaw)

I wonder what my hon. Friend would say to the 149 of the 150 of my young constituents to whom I have spoken during the past year, who are all heroin addicts? Each one of them bar one has told me that they directly compared the experience of taking cannabis with that of taking heroin. Cannabis was not taken as a gateway, but they thought that after experiencing the hit of taking cannabis and knowing that they could control their cannabis use meant that they could control their use of heroin—which they could until 149 of them became addicted. What would he say to them?

Paul Stinchcombe (Labour, Wellingborough)

I would say many things to them, as I have said many things to the heroin addicts and cannabis users that I have consulted and talked to. First, if it is used as a gateway drug it will be a far more dangerous gateway if it is illegal, as it will have to be purchased from a dealer rather than being bought with a pack of Marlboro Lights or a pint of milk from the Co-op. My hon. Friend spoke with great feeling about those 149 youths, but the message would be far more credible if they were to be told that there are genuine distinctions between drugs—that heroin is desperately dangerous, which is why it is a class A drug, and that cannabis is relatively less dangerous, which is why it is a class C drug.

More important, I would give those youths the same message that I would give my three children. The one thing that I want them to avoid beyond all else is getting into hard drugs. If they can avoid that, other things will be possible according to their talents, their efforts and their endeavour. However, if they are going to experiment, I would want them to experiment on a sensible factual basis and from a sensible legal position. It is not sensible to downgrade cannabis and then suddenly to make its possession an arrestable offence—and not only that but make possession of a number of other drugs, some of which can be quite lawfully possessed, an arrestable offence, because one is afraid to take a consistent and brave position, apparently on the basis that cannabis can be possessed in aggravated circumstances.

If that is the true basis of the legislation, we should say so, and define those aggravated circumstances in legislation. Why should possession be an offence in some places but not in others? People should be able genuinely and honestly to understand exactly what the law is and why. It should be applied consistently and universally in every constituency, so that all our young constituents know the position and they can be fairly and equally treated.

Hilary Benn (Labour, Leeds Central)

We have had an interesting debate. I shall deal first with one specific question asked by the hon. Member for Southwark, North and Bermondsey about class C possession offences. He was right to say that the number was very small: in 2000, the total was 433. I must confess that I was genuinely puzzled by the argument that he advanced, although I acknowledge where he is coming from. He seemed to be saying that there were circumstances in which a power of arrest would be appropriate. In support of that, and notwithstanding the reclassification of cannabis from B to C, he argued that existing powers could be used to arrest in such circumstances. That is just what the clause says. The clause appears in the form that it does because our view, and the advice that we have received, is that the existing arrest powers to which he referred—and which he seemed happy to see used in certain circumstances, which is why I am confused by his argument—are not sufficient. For example, the advice is that the public order offences that he mentioned would not cover an individual blowing smoke into an officer's face. I genuinely do not understand his position, because I think that there is a general, if not total, consensus in support of the reclassification, which the Home Secretary proposed and on which he has received advice, and which we intend to proceed with.

We should not forget where the process comes from. It is driven in part, because it impacts on policing, by police forces. One has only to look at the figures going back 20 years for the number of occasions on which people found in possession of cannabis have been issued with cautions—they have risen substantially. That reflects policing practice. The police have come to realise that it makes sense to focus their effort as much as possible on dealing with the drugs that cause the greatest harm: specifically, class A drugs. They have initiated the process that we are considering. We propose to reclassify from B to C. In a

small number of circumstances in which people behave in an aggravating way, with the risk of causing difficulty, the police should have the power of arrest in relation to the possession of cannabis. I do not see an enormous contradiction between making a sensible change from B to C while retaining a power of arrest. The hon. Gentleman accepted, in advancing his argument, that that might be necessary in certain circumstances.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

To go back to the point about the other powers that exist, I was not putting my case but observing that it is my understanding that there exist in statute a range of other powers that can be used. The Minister has not yet addressed, and I hope that he will, the question posed both by me and by the hon. Member for Wellingborough (Mr. Stinchcombe). If the Government believe that there are specific circumstances not covered by the current powers, why does the proposal not propose the power of arrest in those circumstances? It might at least deal in part with the point made by the hon. Member for Beaconsfield—unless there were an aggravating circumstance for carrying all the other drugs around, one would not be able to be arrested for the long list that he mentioned either.

Hilary Benn (Labour, Leeds Central)

I think that the answer is that it is better to leave it to the police to determine where it would be appropriate to use the new power, bearing in mind what I said a moment ago about the process having been started by the police. When we talk to police officers in our constituencies, they make the case for giving themselves time and space to concentrate on dealing with the most harmful drugs and the most serious crimes. I detect that there is not a lot of argument in the Committee about the sensible nature of the change. I simply do not agree with the argument that there is a glaring inconsistency in saying that, notwithstanding the change, we should not retain a power of arrest—

Paul Stinchcombe (Labour, Wellingborough)

I am listening with great interest to my hon. Friend's argument. It is persuasive. However, would this not be a golden opportunity to be completely consistent and to consider creating offences of either substantive possession or aggravated possession, thus making it clear to people exactly what the law is and what the purpose of and rationale for the law is?

Hilary Benn (Labour, Leeds Central)

I hear my hon. Friend's argument, but I hold to what I said a moment ago. In such circumstances, it is best to leave it to the police and to sensible policing practice. In most cases, first offences will result in a police warning given on the street, together with confiscation of the drug. Time will be saved by not arresting people and taking them to the police station. The police time thus freed up can be used to deal with more dangerous and damaging drugs. My hon. Friend the Member for Bassetlaw and others spoke about the danger of class A drugs. We all would agree that this is the real evil and the really pernicious danger to our society.

The second argument, which was advanced by the hon. Member for Beaconsfield, related to the long list

of the other class C drugs, which I will not even attempt to pronounce. He was absolutely right that if prescription drugs are in someone's possession because they have been obtained on a doctor's prescription, that is not contrary to the Misuse of Drugs Act 1971. The police would not be able to arrest for possession unless they had a reasonable suspicion that they had not been prescribed. These drugs are therefore put in a separate category from cannabis in what will now be the class C category of drugs. The hon. Member for Southwark, North and Bermondsey argued with some passion that police up and down the country would now be nicking people for having some of these drugs in their possession, taking them to police stations and so on. I say to him frankly and honestly that I simply do not believe that that will happen.

Dominic Grieve (Conservative, Beaconsfield)

I hope that the Minister will accept that I am a firm supporter of the police. I believe that they do a splendid job and they are an absolute necessity and the principal barrier between our society and serious crime. I also have to say that I take the view that there are instances when the police can misuse their power. If ever there was the potential for misuse, it is this.

Hilary Benn (Labour, Leeds Central)

I hear the hon. Gentleman's argument, but I would simply repeat what I said a moment ago. The police will not be able to exercise the power of arrest, which I freely acknowledge will now exist because of the change that we propose in order to deal with those very small number of offences relating to cannabis, unless they have a reasonable suspicion that the drugs have not been prescribed. I have heard the arguments. A lot of passion has been exercised. In the end this is a sensible balance. I think that the Committee accepts the reasons for the reclassification from B to C. At the same time a clear power of arrest remains. I do not believe that the existing powers to which the hon. Member for Southwark, North and Bermondsey drew attention would be sufficient for dealing with the problems that will arise. It is a balance, but I do not think that it sends out a mixed message.

Mark Francois (Conservative, Rayleigh)

Does the Minister not accept that he is making a rather weak argument? In essence, he is saying that Parliament is going to give the police an expanded power over this list of 100 drugs, but that we should not worry because in reality they will probably never use it. If that is the case, why give it to them?

Hilary Benn (Labour, Leeds Central)

I accept the hon. Gentleman's argument, but there might be circumstances when the power could be used. We have to acknowledge that these drugs are class C for a reason. There will be circumstances where a doctor has not prescribed them properly. If there were not a problem in relation to these drugs they would not be on the list. In those circumstances, it would be a matter for police discretion. I do not accept that there will be an enormous problem. One needs to make a distinction between circumstances in which people have the drugs because they have been prescribed—the police cannot arrest unless they have a reasonable suspicion that

they have not been prescribed—and the other circumstances that give rise to this large number of drugs, the names of which I cannot pronounce, being placed on the class C list.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am grateful for the up-to-date figure on the number of offences; it would be helpful if at some stage the Minister could tell me the maximum punishment that has been imposed for possession in the past year or two, although I appreciate that he may not have the evidence to hand. An easy ban is at times possible. Can he tell me how the 433 offences were punished? That would be interesting and useful information.

The Minister is right that there is support in the Committee for reclassification of cannabis as a class C drug. I did not hear the hon. Member for Beaconsfield argue that there was an immediate need for moving other drugs in or out of class C. I assume therefore that there is also general agreement that class C is the right home for those other drugs at present. In answer to the Minister's question, or statement of confusion, about whether I think that additional powers of arrest are important, we do not need more powers of arrest because the ''aggravated'' circumstances described by the Government and the police are already covered in law. There is no need for this change; breaches of public order can be dealt with under existing law.

The Minister failed to deal with discretion, which was raised by all parties in the Committee. Drugs possession and stop and search for drugs are so easily abused and lead to bad experiences between the police and young people in particular. Drugs can be easily hidden; they can be easily planted. The police do not have a clean track record when it comes to planting drugs; in many cases on record, they decided that they wanted to catch someone and so planted drugs on them.

Representing an inner-city, mixed-race constituency as I do, I find that one of the things that most turns young people against the police—and there are many of them—is their belief that the police will pick on them unjustifiably and go on picking on them. That is often what the police do: they go for the usual suspects. That can lead to those kids becoming real troublemakers.

James Clappison (Conservative, Hertsmere)

I am listening carefully to the hon. Gentleman and have no doubt that he knows his constituency. May I tell him in contradistinction to his point of the experience of my constituency? Young people and old people alike tell me that they fully support the police, but they wish that the police were more active in attacking drug dealers and in raiding their premises, as drug dealers are making other people's lives a misery.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I share that view. I, like him, receive complaints that the police do not act on reports of drug dealers' criminal behaviour. The police should be going after the dealers, not after those who may occasionally have a little bit of puff in their pocket. That is not central to an intelligent strategy.

John Mann (Labour, Bassetlaw)

The evidence that I have from young people in my constituency is that they are all—all—involved in dealing at some level. All of them. They

deal at different levels of course. What are the criteria for classifying a dealer? Is a dealer someone who has hundreds of thousands of pounds worth of drugs on them or is it someone who has perhaps a bag of heroin worth £55 that he splits 11 ways, taking one for himself and selling the other 10 like every young heroin addict in my constituency? How would the hon. Gentleman distinguish between a user and a dealer in such cases?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a perfectly good question and one that I was going to ask the Minister. My view and that of the Runciman report is that social supply is not dealing and ought not to be treated as an arrestable offence. When my constituents or those of the hon. Gentleman give their mate—

John Mann (Labour, Bassetlaw)

They are selling, not giving.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Will the hon. Gentleman just bear with me? I know that he has a strong view about this issue and has done work on it in his constituency, but I hope that he will listen to the alternative arguments of people who have done as much constituency work as him, if not more, who know their constituency as well as he does his and who talk to as many people about this issue as he does. I hope that the hon. Gentleman understands that not everyone is driven to the same conclusion as him.

John Mann rose—

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

No, wait. Social supply is not for sale or profit, but about giving stuff to a mate—going out for the evening and passing stuff round. In my view, it is nonsensical to make that subject to prosecution. Just to complete the picture, I also believe that growing your own should not be subject to prosecution. In that way, the immediate supply that is not commercial would not be in the criminal system.

The people who should be prosecuted are those who supply for money—for profit. That is a different ball game and leads to another question, which has also been asked by the hon. Member for Wellingborough, by the right hon. Member for Maidstone and The Weald (Miss Widdecombe) on the Floor of the House and by others. The matter could be dealt with by making it an offence to have significant or substantial amounts, rather than by using another definition. If someone had a significant or substantial amount of cannabis, it would be reasonable to deduce that it was not for their own use.

That is how one distinguishes the person who is part of a small network that passes drugs round, as many people do in society, including kids in the hon. Gentleman's constituency and mine, and as people in the fashionable world of the west end do with cocaine and other things. I am talking about a social activity that is not for profit. It is simply about people sharing stuff when they are out on the street, in the bus shelter, round the back of the empty flats or wherever. I hope that the hon. Gentleman understands that that is different from selling, or will at least do me the courtesy of understanding that there is a difference.

Yes, there are people who realise that there is quite a good market there, but why, and from where do they get their large amounts to supply? They get them from

the people who deal in more addictive, serious drugs. If we do not separate the drugs that are very unaddictive—the least serious—from the others, of course people will be put into the hands of the suppliers and profiteers.

John Mann (Labour, Bassetlaw)

The hon. Gentleman again regales me with his vast knowledge of this subject, but let me ask him about the addicts. Young people in my constituency are addicted to drugs. They do not sell drugs for ''profit''; they sell drugs of whatever kind and whatever else they can get their hands on, such as cannabis, heroin and stolen goods, for money to buy more drugs. That is the nature of addiction. How can the hon. Gentleman distinguish between the levels of supply in respect of people who are addicted to drugs? How does that fit into his notion of not dealing with the problem of those who sell for profit? Who are these young people in his constituency? What is the evidence base for the assertions that he is making?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I could call before any Committee that the hon. Gentleman attended 20 or 30 such people. I shall name one: Russell is now an adult, but some years ago, when he was a teenager in south London, he used to cross the border between my constituency and that of the Solicitor-General. Russell started not by major selling or dealing, but by getting involved in a social activity.

I do not understand why the hon. Gentleman cannot see that that activity is like what other kids do when they buy cans of lager or cigarettes. Cannabis is about a social activity that people do when they are hanging around in the evening. I do not know about the east midlands, but in south London it is a social activity. The evidence is that cannabis is not addictive in the same way, or at all. Of course, if we are to have a stupid system that means that we do not separate one category of drugs from another, so that the people who are pumping out heroin, crack cocaine and ecstasy tablets—not that they normally sell that range—start by flogging people cannabis, and then get them on to other stuff, we will drive the Russells of this world and others into the hands of the dealers and profiteers. I have agreed with the hon. Member for Hertsmere (Mr. Clappison) that we should be going after the people who are supplying cannabis for profit, but many people do not do it for profit. The majority do it for social recreation.

Of course, we know what happens once someone is addicted; they have to pay for the product, which they buy from the dealers. That requires them to have money that they are probably not earning, so they do the nicking. They break into cars, nick radios and flog them on the black market, and break into houses, and so it escalates. We know the figures on drug-related property crime. However, many people do not start that way. We are talking about a social activity, like drinking cans of lager and hanging round bus shelters. Hundreds of thousands of people do it and it does not lead them all to lives of drug addiction and to heroin. That is what we have to prevent happening, but we do not stop that by lumping people together.

John Mann (Labour, Bassetlaw)

This is a very interesting dialogue. The word that I suggest the hon. Gentleman is missing out is ''can''. Yes, cannabis can be taken socially, as can cocaine, alcohol, cigarettes and, indeed heroin. Heroin smoking is initially done socially; in the vast majority of cases, it is smoked recreationally at weekends when people first start experimenting. What does the hon. Gentleman have to say about those who are not taking any of those drugs, including cannabis, socially and recreationally, but recurrently or constantly? There are young people in my constituency who have moved on to smoking cannabis without or instead of tobacco not only daily but constantly, 20 or 30 times a day—

Eric Illsley (Labour, Barnsley Central)

Briefly.

John Mann (Labour, Bassetlaw)

They then go on to look for a different kind of hit from drugs, and, in my area, particularly from heroin.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I do not just go on my experience from talking to people, having been a youth leader, and having lived in the same place for some 20 years. I have talked to DrugScope and lots of other charities, as has the hon. Gentleman. The reality is that of course some people move on and become addicted, but the medical evidence—I am not a doctor—is that the harmful effects of cannabis and its addictive qualities are not in the same league as drugs at the top of the danger league. That is the medical evidence, which is agreed. The Advisory Council on the Misuse of Drugs said so to the Government. The drugs are not in the same category.

I am not encouraging anyone to get involved in smoking cannabis, but the reason why it is so wrong to make it public policy that possession of cannabis should be an arrestable offence—

Ian Lucas (Labour, Wrexham)

Cannabis possession is already an arrestable offence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

No, I mean to downgrade it, having accepted medical evidence that it is less serious. By accepting the evidence that it should be downgraded and keeping its possession as an arrestable offence, one is making tens of hundreds and thousands of young people suddenly into criminals for possessing it. Young people, depending on the discretion of the police in any one place, and not knowing from one day to the next whether the police will intervene, and not knowing whether there are subjective views on whether there are aggravating circumstances, will be liable to come into opposition with the police. That will not improve community relations, and will not be over a matter of significant importance. This should be dealt with as a health issue, not a policing issue. We should not criminalise local young people.

Paul Stinchcombe (Labour, Wellingborough)

I just wondered whether I could test the dangers inherent in the proposals that the hon. Gentleman is putting forward. If I am right in understanding his proposals, possession of class C drugs would remain a criminal offence. Cannabis would remain a class C drug as the Government propose. There would be no change to the offences in respect of class A or class B drugs, but all he suggests is to make the substantial possession or aggravated

possession of cannabis a more serious offence. Is that his proposal?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I argued that no one should be arrested or prosecuted for possession alone of any drug.

Mark Francois (Conservative, Rayleigh)

Just for clarification, because I listened carefully to the hon. Gentleman's remarks in introducing the amendment, is he saying that possession should not be an arrestable offence at all, or that it should not be imprisonable at all, and does that apply to all drugs including crack cocaine?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The answer is that in relation to cannabis and class C drugs it should not be arrestable and in relation to the higher class drugs it should not be imprisonable.

Mark Francois (Conservative, Rayleigh)

So, to be absolutely clear, the hon. Gentleman does not think that possession of crack cocaine should be an imprisonable offence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Not simple possession. But I do not expect the hon. Gentleman to come with me on that point.

Mark Francois (Conservative, Rayleigh)

You would be right.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The linked question put to the Minister—which would, if answered adequately, give a way forward—would be to explore carefully either the aggravated offence concept, if Government were willing to consider it, or the substantial possession concept. That would at least gradate those people who have lots of cannabis or other class C drugs on them—more than one could ever reasonably use, which would place them above the threshold for personal use—or other activities could be defined that would make possession an aggravated offence.

Mark Francois (Conservative, Rayleigh)

I thank the hon. Gentleman for his generosity in giving way. He has been attempting to make several distinctions. He argued that people should not be imprisoned for possession of any drug. He also argued that those who supply it socially to their friends, as he put it, should not suffer the full weight of the law. But bearing in mind that it is often difficult to get convictions in terms of drug dealing, does he realise that any dealer who is caught will argue that the drugs were in his possession for personal use, and if that argument fails, he will then argue that he was only supplying it socially to my mates? He will say that he was not really dealing and therefore he cannot be prosecuted. Surely the hon. Gentleman's proposal would make the drug dealer's job easier?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

No, because the hon. Gentleman either has misunderstood or misrepresents me on one point. I only argued the case for social supply and producing your own in relation to cannabis, not in relation to the more serious, addictive and harmful class A and B drugs. There is a strong case in public policy for defining what can be acceptable as a social activity by quantity, so that you cannot say, ''I've got loads of mates, I'm going to meet them and this is for them''.

The reality is that the kids who get picked up on the street know, and the police know, the difference between the amount you could use yourself, or that three or five of you could use, and an amount that clearly is not going to be used by you and a couple of

mates for one or two evenings. They live in the real world, and people know how much cannabis you get through in a certain amount of time.

The answer is that cannabis possession for social supply and growing your own in my view should not be subject to any prosecution. For more serious class A and B drugs there should be no imprisonment for possession alone, but in order to distinguish between the possession and dealing categories so that we get the dealers, you could have a much clearer definition of quantity in terms of where the line is to be crossed into dealing. The hon. Member for Rayleigh is right; the defence that is often used when people are nicked with a load of drugs is, ''It's my own supply for my own personal use''. You have to make sure that you do not allow that to be used where the quantity is clearly unreasonable.

Mark Francois (Conservative, Rayleigh)

On precisely this point there are two comebacks. The hon. Gentleman argues that the police know how much cannabis might reasonably be passed around friends and how much would mean that a person was dealing. But the simplest argument is that a dealer would say, ''Well, I have quite a lot of friends, which is why I have quite a lot of the stuff. I don't have just two mates. I'm a popular guy with 20 mates and I wanted to give them all a little. That's why I have rather a large amount.'' The hon. Gentleman's argument is both weak and dangerous.

Secondly, the hon. Gentleman wants to distinguish between class A, B and C drugs, but once he concedes the principle that for class C drugs, the concept of social supply should not be punishable by law, people will undoubtedly cite the precedent in court and extend the principle from certain types of drugs to others. Once the principle is conceded that social supply, as the hon. Gentleman euphemistically puts it, is not dangerous for some drugs, it opens the door for the same defence to be used for more serious drugs. It is an extremely dangerous argument.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall deal quickly with those two points.

Eric Illsley (Labour, Barnsley Central)

Very quickly.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On the second point, we have three classes of drugs because they are believed to have three different levels of harm. That has been the case in the past and will be in the future. It is perfectly reasonable to allow the defence that I have mentioned for the lower category C drugs, without extending it to other categories. It would not and could not be used; it would not get through the courts. My argument applies only to cannabis and other category C drugs.

The hon. Member for Rayleigh also asked how we should define what is substantial. It could be done with reference either to weight or quantity. Otherwise, the hon. Gentleman is right that a dealer could argue that he met 35 friends every Friday night. That deals with his point.

May I move on to the Minister's argument about the need to deal with a small number of circumstances in which it would be necessary to have a power to arrest for unusually aggravated behaviour that cannot be dealt with under present law? It is a huge

sledgehammer to crack a small nut. It makes dealing in certain drugs an arrestable offence for the first time; it confers a 14-year prison sentence for the first time on certain activities; and it makes people who smoke cannabis uncertain about the consequences because it will be impossible to establish in advance when the aggravating circumstances apply. That is a recipe for uncertainty of law and for worsening the relationship between young people and the police. Surely we want a clear message, stating that cannabis is least harmful, that class B drugs are intermediately harmful and that class A drugs are very harmful. The provision muddles that message. I ask Ministers to think again.

Graham Allen (Labour, Nottingham North)

Can I be absolutely clear about what the hon. Gentleman is saying? Does he feel that possession of crack cocaine and heroin should be an offence?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am saying that, in respect of all drugs, possession on its own—not for dealing, not for supply—should not result in a prison sentence and that cannabis possession should not result in arrest or charge. Possession of heroin and crack cocaine will remain an offence under international law and should result in various punishments, but not imprisonment because prison does not help someone who is addicted to hard drugs. In that respect, possession is a medical and health issue, not a law and order issue. Only dealing makes it a law and order issue.

Graham Allen (Labour, Nottingham North)

So what would happen to someone found in possession of crack cocaine? They would be found guilty of an offence, but medical treatment is not dependent on that. What would be the consequences?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Every other option in the book except imprisonment—including drug treatment, testing orders, probation and community service—would be open to the courts, but locking people up does not help with their drug problems, however serious.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 6.

Clause 10 - Drug testing for under-eighteens

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 21, in

clause 10, page 6, line 29, leave out '14' and insert '12'.

Eric Illsley (Labour, Barnsley Central)

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

No. 66, in

clause 10, page 6, line 29, leave out '14' and insert '10'.

No. 94, in

clause 10, page 6, line 29, leave out '14' and insert '17'.

No. 95, in

clause 10, page 6, line 30, leave out paragraph (b).

No. 22, in

clause 10, page 6, line 31, leave out '17' and insert '18'.

No. 96, in

clause 10, page 6, line 38, leave out paragraph (c).

No. 97, in

clause 10, page 7, leave out lines 14 to 29.

No. 23, in

clause 10, page 7, line 16, leave out '17' and insert '18'.

No. 24, in

clause 10, page 7, line 17, after second 'or', insert 'if not available any close adult relation of his, or'.

No. 59, in

clause 10, page 7, line 24, leave out from 'available' to end of line 26 and insert 'a doctor or solicitor'.

Dominic Grieve (Conservative, Beaconsfield)

We come now to an important clause, which deals with drug testing for under-18s. For reasons that are clear from the debate just past, I fully accept that drug taking is a serious problem, especially among under-18s, and the amendments in this group are designed to probe the reasoning behind the Government's approach. We have certain concerns about the way in which drug testing for under-18s will work in practice.

Amendment No. 21 would change the lower age for testing from 14 to 12. I have no fixed view on the issue, but the purpose behind the clause seems to be to ensure that, on arrest, an opportunity exists to test juveniles for drugs. There is ample evidence that drug misuse starts before the age of 14 and, in my experience, it is perfectly likely that children of 12 will be brought into police stations. Considering those circumstances, will the Minister explain why the age 14 has been chosen as the cut-off point rather than some other age? Equally, other amendments would provide for a higher cut-off age, and the Committee should consider those possibilities. It is important that the Committee should have an opportunity to discuss that.

The other issue that arises in clause 10 and this large group of amendments relates to amendment No. 96, which concerns appropriate adults and their presence. The presence of appropriate adults at police stations when young people are being dealt with is an important safeguard. Therefore, I am slightly puzzled as to why the age of 17 has been chosen as the cut-off point, rather than the age of 18 being applied in this particular circumstance.

There are wider concerns. As was made clear to me at a briefing that I received from the Children's Society and from the National Association for the Care and Resettlement of Offenders, there is anxiety about the,

frankly, invasive nature of the procedures that are involved. To put it bluntly, if a person is asked to provide a urine sample, someone will be standing around waiting for it to be provided. That is what goes on in police stations. To apply that procedure to juveniles requires certain safeguards to be put in place.

Hilary Benn (Labour, Leeds Central)

It might reassure the hon. Gentleman were I to say that there will be no question of providing a urine sample. The technology has moved on and, as I saw during a visit to Bridewell in Leeds, one of the pilot areas for drug testing for over-18s, a swab is placed under the tongue in the same way that a person's temperature would be taken.

Dominic Grieve (Conservative, Beaconsfield)

That offers a measure of reassurance, although I think that I am right in saying that, at present, several other options remain available. Until those other options are closed, the possibilities presumably still exist that the old procedures will be applied. The Minister, however, may be able to reassure me that the pilot scheme marks the rapid and immediate disappearance of the old procedures.

A wider policy issue that the Children's Society and the National Association for the Care and Resettlement of Offenders rightly raised concerned where drug testing will lead. It is all very well to say that people will be tested for drugs, but for there to be any point in doing so—particularly if one is to consider the consequences of testing children and young people—a rapid, concrete result that will help them is necessary. Otherwise, to test them is just a pointless and further bureaucratic activity that is taking place at police stations. At present, I am not entirely persuaded that the Government have the resources—this has been discussed in statements in the House—to provide assistance to those young people who are found to be drug-positive, as well as constructive help to get them off their addictions.

I do not wish, Mr. Illsley, to widen the scope of the discussion so far that you will call me to order; I accept that I have moved into other areas. However, before we blithely decide that clause 10 is the solution to many of the nation's ills, it is worth considering the fact that the provision to help those of any age who show signs of addiction—this applies as much to juveniles as it does to adults—is woefully inadequate.

The Minister will be aware that my party's proposals envisaged the massive increase in the number of drug treatment places and the offer of alternatives for juveniles to prosecution and entering rehabilitation. That is extremely important, and something that I wish to see developed. However, I see no sign in the Bill that we shall achieve that.

John Mann (Labour, Bassetlaw)

How large was the massive increase in the number of places that the hon. Gentleman's party proposed?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman will recollect that the Parliamentary Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East (Mr. Ainsworth) said that 118,000 places were available, and that he wished to double that figure. We found that figure incredible. When we explored it more closely, it emerged that he meant 118,000 people in contact with drug treatment, which

is not the same. My party's estimate is that we would have to increase both the number of residential and non-residential placements eightfold to raise the level of drug-treatment places to such levels as those in Sweden, where the issue is taken extremely seriously.

I had the pleasure of going to Boston in the United States in late September and early October, where I spent four days visiting a drug rehabilitation project. In the US the problem is treated as a public health issue; it is taken extremely seriously, and a large number of excellent programmes are available. One has only to see the long-term nature and the cost of those programmes, as well as the necessary resources, to see how woefully inadequate provision is in this country. As the hon. Member for Bassetlaw will recollect, my hon. Friend the Member for Woodspring (Dr. Fox)—the shadow health spokesman—and my right hon. Friend the Member for West Dorset (Mr. Letwin) said that the necessary allocation of resources would be a priority for the Conservative party. We accepted that that provision would be in the region of half a billion pounds. We think that that would be money well spent.

John Mann (Labour, Bassetlaw)

I have read the Conservative party's document on the matter and am aware of the proposed eightfold increase. Is not that increase in the number of juvenile places only, which is an increase of fewer than 8,000 treatment places for the estimated 300,000 addicts in this country? We should clarify the context in which we are taking the—as he rightly said—important decision.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a reasonable point. However, I repeat what I think is the flaw in the Government's proposals. In typical, new Labour, gimmickry style, they said that they would double the number of available drug treatment places, which has no relation whatever with reality. However, if all the Government are doing is doubling 118,000 people in contact with drug treatment, I tell the hon. Gentleman that it will not work. We prefer an approach that targets juvenile crime, for which there is an obvious limit on resources and which should be considered as an absolute priority. We came up with what we thought were a number of sensible, affordable schemes.

One of those is to ensure that every juvenile brought in with a drug problem can be provided with a proper treatment place, and not contact with a drug treatment centre, which is a completely different thing. We offered that as an alternative to prosecution for the offence for which the police have brought in that juvenile. I do not say that that will solve all the world's problems. It is a policy option that I recommend the Government look at further. I would be only too happy for the Minister to run with that option, implement it in this Parliament and take credit for it. The proposal is much better than that which the Government made on the subject.

Returning to the subject under discussion, I tell the hon. Member for Bassetlaw that the drug testing orders for under-18s are an intrusion, though I am not too troubled by that. However, the justification for the intrusion is that there is a satisfactory consequence. I am not now persuaded that the resources or will is

there to achieve that. That is a legitimate subject to discuss when considering the clause, because there is no point in implementing it unless a benefit flows from it, other than that a policeman may discover from the litmus test paper that the young person in front of him has a drug problem, which many young people will be found so to have.

I return to amendment No. 96. We are concerned about the power of the Secretary of State to vary the terms of the clause, as in the Police and Criminal Evidence Act 1984. I am not sure why, if he will be able to vary PACE in that way, the power of varying by order appears here. I should be grateful to hear the Minister's reasons. In amendment No. 23, we again seek to substitute the age of 18 for 17, the age up to which an appropriate adult is needed.

I look forward to hearing the Minister's comments and hope that we can have a sensible discussion about how the clause might be improved.

Sitting suspended.

On resuming—

David Kidney (Labour, Stafford)

May I say how pleased I am to serve under your watchful eye, Mr. Illsley?

We have some tricky decisions to take about whether to allow drug testing of people under the age of 18 and, if so, what should be the minimum age at which they will be subjected to such testing, albeit with their consent. However, a criminal offence will have been committed if they do not give their consent. We are discussing important stuff.

Stafford is one of the sites where there is a pilot for the drug testing of adults—the other pilots are in Hackney and Nottingham—and I may therefore be able to help the Committee by explaining what is going on. There is a combined site at two stations in Staffordshire, Stafford and Cannock. Adults may be tested if they have been charged with a trigger—an acquisitive—offence; they must give their consent but it is an offence if they do not do so. The test is a mouth swab, which can detect cocaine and opiates such as heroin. On one of my visits to see how the pilot was progressing I underwent that test; was not that courageous of me? I am pleased to say that my test for both of those substances was negative. Phew!

Until October last year, there were just over 1,000 tests in the Stafford and Cannock pilot and 45 per cent. proved positive. I do not know whether that confirms people's views of the proportion of those whose drug dependency drives them to commit crime, but it is an impressive figure, which should be taken into account. Home Office finding 176, from the pilots in all three areas up to February 2002, shows that the positive test figure for Hackney was 63 per cent., for Nottingham 58 per cent. and for Stafford and Cannock 47 per cent.

I have been back to the police station in Stafford two or three times to find out how the tests are progressing. The biggest problem is one to which the

hon. Member for Beaconsfield alluded earlier: the difficulty when people test positive. They are referred to an arrest referral worker and asked whether they want help to beat their drug dependency. They almost always say yes. The response from the referral worker is to give the person an appointment to see someone in three months' time who might be able to help them. That loses the urgency of the addict's plea for help. I saw that for myself when I told the Home Office officials running the pilot that this was a huge problem and that help was needed on the health side to ensure that treatment was available. I am afraid that those officials said that it was the Department of Health's problem, not theirs, which was unhelpful.

I then joined the board of my local integrated drugs and alcohol service to try to make my own contribution to reducing the waiting time, which has now halved to about six weeks. That is still far too long. As the hon. Member for Beaconsfield said, it is even more important in the case of juveniles to be able to respond much sooner.

On the issue of extending testing to under-18-year-olds, just before Christmas I gave the Minister a copy of the briefing from the Children's Society and DrugScope about their objections to the provision. I am not entirely convinced of the validity of some of their arguments. In the previous exchange, we debated the argument about the invasiveness of the tests, which we have shown is not necessarily the case. The test that I took was a swab under the tongue, which lasted for about a minute. The test by machine took a couple of minutes more. The whole exercise was over in three minutes flat, so the argument about invasiveness is not very strong.

The paper also argues that few juveniles have a dependency on class A drugs that drives them to commit crime. It asks why we risk the problems of human rights challenges on the grounds of consent, which I will return to in a moment. It also asks why we must interfere in people's lives in order to contact a small number of people. That point is factually wrong. The Home Office youth lifestyles survey on the association of drugs misuse and offending showed that serious or persistent offenders were much more likely to report using cannabis or heroin within the previous 12 months. The figures were 56 per cent. for cannabis and 13 per cent. for heroin. The all-party group for children—an excellent group of which I am a member—brought that report to my attention. A footnote tells us that the survey was conducted in 1998–99, but published by the Home Office in 2001 as Home Office research finding 152.

The situation is more serious than the Children's Society and DrugScope believe. Staffordshire police provided me with some statistical information about the attendance of juveniles at Stafford and Cannock police stations during the period of the drug testing of adults, when just over 1,000 were tested for drug dependency and slightly more than 2,000 juveniles passed through police stations. Some 850 were there for offences that would be regarded as trigger offences, which shows the scale of the numbers of juveniles

under discussion. Of the offences committed by juveniles that were drug related, 114 related to the possession of cannabis, and the youngest offender was 12.

There were six offences related to supplying or offering cannabis, and the youngest offender was 14. The youngest offender charged with the possession of amphetamines was 15. The youngest offender charged with the possession of heroin was 16. That is good, solid, local evidence to add to the national survey. Youngsters have a problem with drugs that is bringing them into contact with the criminal justice agencies. I hope that that demolishes the objections voiced by the Children's Society and DrugScope.

Nevertheless, the paper states a second objection about consent that has more validity. I have said already that people are required to give their consent to the test, and that if they do not give it they have committed a criminal offence. We are therefore, in effect, forcing people to give that consent. With people under the age of 18, the question arises to what extent they, rather than their parents who have legal responsibility for them, should give their consent. That issue has arisen in the civil courts, with regard to consent to treatment when doctors prescribe contraceptive pills, for example. The Gillick case raised the issue of whether youngsters should be able to consent to such medical treatment without their parents' knowledge, let alone consent.

Guidelines from the Department of Health—the Fraser guidelines—state that youngsters under the age of 16 should not be given assistance and treatment for their drug dependency without the knowledge and involvement, and if possible consent, of their parents. I anticipate problems if police officers can accept the consent of a youngster without that youngster's parents being present, bearing in mind that the ''appropriate adult'' could be a social worker or any other reliable adult that the police could get hold of at the time. There could be subsequent challenges about whether that consent was properly given, and such challenges are more likely because the result of not giving consent is to commit a criminal offence.

My next point concerns the Children's Society briefing, and the point made by the hon. Member for Beaconsfield when discussing amendment No. 23. There is no need for an appropriate adult to be present in the case of 17-year-olds, because in our curious criminal justice system 17-year-olds are treated as adults. The briefing from the all-party group for children states that 17-year-olds should be treated in the same way as 16-year-olds, 15-year-olds or 14-year-olds.

In the pilot area in Stafford, even adults experience problems in getting treatment. It is vital that young people should get treatment quickly if they test positive for drug dependency drugs. Sergeant Russ Cartlidge from Stafford police station said to me yesterday that there were two good reasons for testing young people. 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. If those two arguments are compelling, it makes no sense, on either ground, to wait until young people are 18 before they can be tested at a police station and intervention can be made to help them.

As a result of my visit yesterday, I found out that the technology is moving on still further. Sergeant Cartlidge was able to show me the latest kit—costing £40,000—which can test for drug dependency from a swab of the hand, and so is even less invasive. He let me bring away one of the swabs to show the Committee. The hand is wiped with the swab, which is then put into a slot, and seconds later the machine comes up with the result. This test can be used not only for cocaine and opiates but for a wide range of other drugs. The technology is developing all the time, which makes the question of invasiveness even less worrying.

I believe, on balance, that it is a good idea to extend testing to juveniles. However, there is the problem of consent, especially for those younger than 16, and serious attention must be paid to that.

If the Minister would like to test out the new proposals under field conditions, Stafford police would be willing to extend their present pilot to include testing of juveniles, subject to extra funding to pay for the work and to sorting out the question of consent. Most importantly, such an extension should mean that any youngster who tests positive, and whom an arrest referral worker finds to be willing to undergo treatment, must be able to get such treatment immediately from the health service.

I hope that those comments are helpful to the whole of the Committee, but particularly to the Minister.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I welcome back my hon. Friend the Member for Somerton and Frome from the European Parliament (Representation) Bill Committee, which is clearly not as hardworking as we are. It probably will not last as long either. The amendments in this group that we have tabled are Nos. 94 to 97. They are all probing amendments. We do not intend to press them. They are really part of the exercise that was led by the hon. Member for Beaconsfield and to which the hon. Member for Stafford (Mr. Kidney) contributed. It concerns the balance between wanting to intervene early and treating children carefully and the important issues about where age limits should differentiate treatments in the criminal justice system and where consent is sought from parents or guardians as opposed to the child or young person.

Like other hon. Members, I have received briefings from organisations, and especially those with children's interests at heart. I start from the position that if the behaviour of people under the age of majority is being affected by drugs so that they come into contact with the law because of criminal activity, it is better that they know that, their parents or guardians know that, and there is the opportunity to treat the problem earlier rather than later. To that extent, I share the general view of the Conservative

party, although not some of its policy outcomes, when it sought to look at how one can intervene early enough to stop the slippage into serious drug use by so many people at such an early age. Interestingly, as the hon. Member for Stafford said, the figures do not show a huge incidence of serious drug use in that age range. Of those tested, 86 per cent. were not showing any sign of serious drug use.

Could the Minister answer the question that has been posed by all the children's organisations as to what we say about the United Nations convention on the rights of the child, which states that one should treat under-18s separately and regard them as children? We are all aware that the Government have not fully signed up to that convention, which is itself the subject of regular criticism.

In addition, there is the confusion that we have got into over gradated age changes in the criminal justice and other systems. School is compulsory up to 16 or the first opportunity after a person's 16th birthday. In general terms, people become responsible at 16 for work, taxes and the ability to join the services—although not necessarily to go off to fight for another year—but we delay other things, such as driving, until 17. That is different in Northern Ireland, I believe. The age of majority for voting purposes is 18. The criminal justice system has had 17 as the cut-off age and 14 as the lower age. The Home Office may say that it has really thought this through again, but it would be helpful to know whether the Government have thought coherently about those age divides. If not, we are at risk of choosing ages that to all intents and purposes are arbitrary.

Amendment No. 95 probes whether drug testing should be carried out only on those who are over 17, who are recognised as adults under the criminal justice system, or whether it could be brought down further, and if so whether it ought to be brought down only to 16. My first two questions are therefore what do we say about the international human rights obligations on us or on society in general about treating under-18s differently, and why do we not have consistent age ranges? Thirdly, what do we say about the consent of the adult? Whose consent should it be, and how should we be satisfied that it is appropriate?

My fourth point was made most clearly in a summary in the submissions that were put to us. If testing people for drug addiction is appropriate for adults, it is appropriate only if treatment follows. The presumption should be that there could be appropriate treatment. The Minister will know that the Audit Commission produced a report showing that the provision of treatment is still horribly patchy, not guaranteed, and inadequate. The great weakness of the system is that, although we can pass the orders and are likely to be able to do the testing quickly, easily and probably pretty accurately with the technology described by the hon. Member for Stafford, treatment to follow that up may not be available. If that is the case, we will be invading people's privacy and doing additional things that we have never done in the past, without a consequential benefit at the other end. Ministers must say how the system is likely to be supported by the services available.

What jumped out at me in the joint briefing that I imagine we all received from the Children's Society and DrugScope was that they urged the Government to reconsider the proposals on the basis that they were

''unnecessary, potentially counter-productive and not rooted in evidence.''

The Minister needs to say something about the evidence base that justifies the proposals and whether, even if only very small numbers will be involved, there is sufficient justification. Is that the Government's argument?

If we go down the road of drug testing, what guarantees are there to ensure that we use it only where appropriate, that it generally carries the consent and compliance of the young person as well as the adult, and that it enhances the sense of the criminal justice system existing to be helpful and not invasive, aggressive or imposing? Teenagers are, by their very nature, not particularly co-operative with their parents, guardians, the law or society. They are often likely to be resistant. It often takes them quite a long time to come to terms with the fact that they may need assistance, and they are less likely to be sympathetic to that idea if it comes from the police rather than the health service. We must think carefully about the best way to maximise the benefit where there is acceptance and about intervening at the right age.

Those are big questions and have been put in a fairly specific and clinical way. I hope that the Minister will elaborate on the Government's justification for the proposals and provide reassurances. In particular, I hope that he will deal with the international and national obligations to treat children in a special and careful way and to give them certain rights in the criminal justice system.

Graham Allen (Labour, Nottingham North)

In amendment No. 66, I would support the Government's move to lower the age from 18 to 14, but go further and lower it from 18 to 10. That is appropriate for reasons that relate to early intervention, on which a couple of hon. Members have touched. If we are serious about tackling many of the problems in society, we must get involved earlier. At the moment, we are picking up the pieces, rather than getting involved at the first opportunity to prevent problems from developing.

I do not propose random testing. I am talking about individuals who have been arrested and charged with an acquisitive offence, such as mugging, theft, car crime or burglary—individuals who are already with the police. The amendment is not about the random testing of any 10-year-old, which is the extreme way in which it might be painted.

A key reason to consider that age group is to help those individuals and to ensure that, if a young person between the ages of 10 and 13 has started on the road of heavy drug use, we can get to them at that age, rather than leaving it until they are 14 to 18 or after 18. We may be talking about only a small number of individuals, but part of the reason for tabling the amendment is to discover how many that is. Before the pilots that my hon. Friend the Member for Stafford

mentioned, we did not have a good idea about the percentage of offenders in the over-18 age group who are on drugs. Only now can we cite statistics for Nottinghamshire, as my hon. Friend did so expertly in relation to Stafford. We now know that about 60 per cent. of acquisitive crime in the over-18 age group is perpetrated by people on hard drugs; we need to know about the 14 to 18 age group and, I believe, the 10 to 14 age group, too.

There are only vague statistical bases at the moment. Our local paper in Nottingham, in discussions with the youth offending team, undertook a survey of 16 to 18-year-olds and found that 18 per cent. had substance misuse problems, although they were not hard drugs problems. A study in 1996 of 80 young male offenders revealed that 20 per cent. had had heroin or crack cocaine intake. In the county of Nottinghamshire as a whole, for the first six months of last year, 26 young people between the ages of 11 and 15 have accessed drug treatment services. Again, those are relatively small numbers, but those are the people who are coming forward for drug treatment. There were also 128 youngsters in the 16 to 17 age group. Home Office figures have pointed to a downward shift in the age of drug users, which every parent must view with great trepidation.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Gentleman is making important and interesting comments. Do the figures for youngsters in Nottinghamshire who have accessed drug treatment include only those who have been charged with offences or those who go to drug agencies for treatment voluntarily through school, education, welfare or social services routes as well?

Graham Allen (Labour, Nottingham North)

I suspect that it is the latter, but the honest answer is that I do not know, although I will make a point of finding out.

I draw strength from our successful drug abuse resistance education programme in Nottinghamshire—DARE—which had its antecedents in California where Mrs. Reagan started it many years ago. The programme seeks to get young people to say no to drugs, drink and cigarettes, and builds them up in terms of their attitudes towards their peer group. It is not a panacea, but it has the effect of inoculating the young people who can be persuaded that drugs are not a good idea. It is a programme for which I have great respect, and I take seriously the fact that the DARE organisation supports reducing the age cut-off point.

I want to make it clear that I take the work of the Children's Society extremely seriously too. I think that it is mistaken in some of its views on the issue, but its work in my constituency with the Stars project, which helps the children of drug addicts get a decent start in life, is exemplary. I hope that one day a Home Office or Department of Health Minister will come up to see it. However, although the Children's Society says that it thinks that only 1 per cent. of youngsters in the younger age group are using crack cocaine, 1 per cent. is a high figure in real numbers and not to be underestimated. It is those youngsters whom we need to address through amendment No. 98. There is a lack of information, which itself is a good reason to test for drugs.

I want to back up the comments of my hon. Friend the Member for Stafford about the nature of the test. I had not realised until he showed us how easy it was to carry out by taking a swab from the hand. The normal method in Nottinghamshire, one of the pilot areas, is to take a swab from the mouth. It is not invasive and does not require urine or other specimens to be taken.

Hon. Members on both sides of the Committee made an extremely important point about resources, and it is imperative that we take that matter seriously. It is a classic case of investing early saving a lot of money; investing relatively few pounds to get to young people, especially those in the 10 to 14 age group, will save immense sums and the time of police, courts and magistrates, enabling young people to fulfil their potential rather than spending their lives as drug addicts stealing money.

Nottinghamshire constabulary told me that, in the over-18 age group, there are about 960 cocaine addicts who require £20,000 annually to feed their habit. To do so, each one needs to commit £86,000-worth of acquisitive crime. In a county the size of Nottinghamshire, it is a multi-million-pound problem even when a relatively small group is involved. Joined-up thinking is very important; it is vital that Health Ministers talk to Home Office Ministers and to social services departments in local authorities. Joined-up resources are important, too, so that each department helps the others.

The three pilots, of which Nottinghamshire is one, have been referred to in the debate. I hope that my hon. Friend will consider including the 10 to 14 age group in one of the pilots. I can tell the hon. Member for Beaconsfield that the Secretary of State has a power to vary the order, which could be used to include that age group in one pilot scheme in order to get a sense of the significance of the problem. That power is important, and should remain in the Bill.

I hope that my hon. Friend considers the existing pilots with an open mind, that he will reduce the age to 14 at least and that he will take the earliest opportunity to introduce a pilot scheme for the 10 to 14 age group. It is not just a matter of crime prevention, but of getting to those very young people early enough for them to break the habit and become productive citizens.

James Clappison (Conservative, Hertsmere)

It is a pleasure to follow hon. Members' constructive contributions to the debate. I repeat the request of my hon. Friend the Member for Beaconsfield for more details of the rationale behind the clause.

I support the comments made by the hon. Members for Nottingham, North and for Stafford. The hon. Member for Nottingham, North was right, especially when he said that those who would be subject to the regime are in serious trouble by the time they are likely to be susceptible to the proposal. They will have been charged with an offence and, being the age they are, it is likely that before the circumstances that led to that charge, they will have been given warnings. They are therefore in a serious position.

The hon. Member for Stafford was right to draw the Committee's attention to the need for treatment to follow promptly after a positive test result. At this stage, we can only guess how many youngsters will test positive, but it is important that every one who does so should receive treatment as soon as possible. That point was an important part of the submission to the Committee by the Children's Society, to which I hope that the Minister will be able to respond. I hope that he will respond, too, to hon. Members' points about the availability of treatment for those who test positive, and that he will give us an assurance that they will receive prompt treatment that is also appropriate for children and their special needs.

I hope that the Minister will respond as constructively as he did to the earlier points made by the Children's Society about the nature of the testing. I look forward to the Minister's response. It is an important issue and the Children's Society is right to highlight it.

John Mann (Labour, Bassetlaw)

I strongly support the clause. There is an important point about resources; there is no point in having powers that nothing can be done with. The problem is not the availability of resources but how they are used. It is crucial that people are treated immediately. A major debate is taking place—not particularly openly—about what constitutes treatment for drug abuse and what constitutes success. I have been asking for people's evidence base of what they mean by treatment and what they mean by success. I enjoyed and appreciated the useful and informative contribution of my hon. Friend the Member for Stafford.

However, on one point I disagreed with his information; the question of whether it is a problem for the health service to provide the treatment. The role of the criminal justice system and probation officers is critical. I hope that the Minister will take time to consider the amendments tabled by me and by others who have looked at the probation sector definition of treatment versus the health sector definition. That is fundamental because the treatment service for drugs in this country is probation-led and not health-led.

The easiest way to illustrate that point is through the lack of reference to GPs in later clauses. The hon. Member for North Southwark and Bermondsey raised an interesting point—although I disagree with it—about whether young people would rather be put into ''treatment'' by the health service or by the police. I claim no evidence base other than that from the questions I have asked and the people I have talked to in my area, but I do not think it differs in this context from any other area. My evidence is that the young people about whom we are talking do not have a relationship with the health service. They may be registered with a GP, but one of the reasons why the probation sector has been so dominant in running the treatment services is that the young person comes in via the criminal justice system and treatment is so vaguely defined that it becomes a probation sector responsibility to find an answer.

Dominic Grieve (Conservative, Beaconsfield)

What the hon. Gentleman says rings bells for me from my visit to the United States. The

point made to me there is that the fact that they do not have a primary health care service—and, therefore, no GPs on whom to rely—has shifted the onus on drug addiction to public health issues. In this country, our GPs are everything and nothing. We rely on them to provide the service but they are not in a position to provide it, either from their resources or from their expertise. That is one of the major problems in this country. It is a public health issue that needs to be addressed.

John Mann (Labour, Bassetlaw)

I accept the hon. Gentleman's evidence, but not his conclusion. We need a much greater role for GPs, away from the more vague drugs treatment, whatever that may be. One of the big successes of the past few months in my area is the regular meeting of GPs to discuss the problem. They are adopting a direct role and taking up their training opportunities, which is one of the most positive developments in the NHS with respect to drugs. The fundamental problem remains. It may be a generalisation, but a reasonable and accurate one, to speak of a probation-led mentality towards drugs treatment.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The issues are different in urban areas from rural areas. In my experience, the sort of place where youngsters go most willingly because they trust those who work there is the Brook advisory centre in my borough; a health centre specifically aimed at young people, who are often nervous about attending institutional surgeries, clinics or hospitals. It makes a difference if an institution is centred on young people. I realise that the same range of choice is not available in rural villages as in urban centres but, wherever possible, such a centre offers the best of all options.

John Mann (Labour, Bassetlaw)

A while ago I spent four years as a counsellor in Railton road on the Brixton front line, so my knowledge is not based solely on my experience in coalfield communities. My experience with young people in my constituency suggests that they are not accessing any of the available health services other than the occasional accident and emergency unit; perhaps having been dragged in by a friend because of the fear of overdose.

Mark Francois (Conservative, Rayleigh)

I follow the hon. Gentleman's argument, but he may be overlooking practical constraints. First, the shortage of GPs across the country is getting worse and, secondly, the average time spent with patients is about eight minutes per consultation. With all the pressures on GPs in the UK these days, are they in a position to undertake to deal with cases of such complexity in so short a period? I appreciate the hon. Gentleman's sincerity, but is his idea practicable?

John Mann (Labour, Bassetlaw)

Well, my local GPs do. It is not for me to decide, but we do not really have enough time to engage in that debate now. I will not do so and the hon. Gentleman will agree. However, the issue should be debated at some time, as it does impact on some of the provisions.

David Kidney (Labour, Stafford)

For the sake of completeness, we are debating juveniles and the agencies that provide help, so would my hon. Friend acknowledge the role of youth offending teams? I mention them because in Stafford they engage a counsellor to help deal with the problem.

John Mann (Labour, Bassetlaw)

I know my own youth offending team very well and I am aware that 95 per cent. of its clients are addicted to heroin. That shows the scale of the heroin problem at the extreme end in areas such as the former coalfield communities. The drug has really taken hold there. The problem is not unique, but different from Nottingham, for example—only 30 miles away—because there is little crack cocaine in my area. The youth offending team plays an excellent role, but it poses the fundamental question; what is treatment? Considerable resources are sloshing around, but throwing more money at the problem will not necessarily improve it. Effective use of available resources is the key, which means immediacy of treatment. That is critical, as several hon. Members have argued in Committee and in the House.

Another issue relates directly to the clause. It may be the by-product and not the direct intention, but it is the most positive issue. The drug treatment and testing orders and the interventions made through the criminal justice system are being aimed at the more experienced, rather than older, offender because of the restrictions in placing a drug treatment and testing order on someone. By definition, they are not for the new, young offender, but for the old hand who has offended repeatedly for some time.

I contend that treatment is most effective at the earliest point, so we must give less consideration to the repeat offenders than to the others, reverse the whole mentality and intervene at the earliest possible stage. Drugs courts would give people the straightforward choice of treatment or prison, but I will return to that subject later as there is not enough time to discuss it now.

Early intervention is critical for 14 to 18-year-olds, but is not being carried out. Over the past five years, the average entry point into heroin use in my constituency has gone down from 20 to 22 years of age to under 16 to 18. I do not know why that has happened, and no one can tell me. There is no substantive explanation, but the average age has gone down by four years. That means that identifying a drug problem at an early stage—an early stage of what will almost certainly be a criminal career—means that the treatment will be far more effective. Early identification is essential in dealing with the problem, and I urge hon. Members to support the amendment fully.

Vera Baird (Labour, Redcar)

I have little to add, but it is clear from the quality of the contributions since the sitting resumed that hon. Members share profound concern about the issue and about the obvious virtues of early intervention. If that is the purpose of the measure, the earlier the intervention is made, the better. I ask the Minister a different, slightly academic question. What is the status of the sample taken from the young

person? Will it be used as evidence, if necessary, in a criminal case? One can envisage an obvious scenario where an individual denies a charge of possessing or dealing in heroin but his sample shows that he has heroin in his system at the time. In that case, the sample might be directly probative.

Someone may have gone shoplifting and say that it was an accident. Could a sample taken from that person showing that they had heroin in their system have evidential significance? Would we try to use the sample to say that although the person may have no previous convictions and has said that it was an accident, the fact that he has drugs on him suggests that he may have a motive for committing the offence? If the sample has evidential significance, the point made by my hon. Friend the Member for Stafford about consent becomes very important in the case of a young person, whose consent is inadequate. They would be consenting under pain of a criminal offence if they refused, which in itself would be self-incriminating evidence.

I raise those issues out of curiosity and the anxiety that if the measure is to be passed in order to introduce the early intervention that we all want, it should be absolutely fireproof and not susceptible to any challenge on the grounds of human rights. All the loopholes should be blocked.

Dominic Grieve (Conservative, Beaconsfield)

As the Minister is aware, one of my amendments discussed before the break sought to widen the scope of appropriate adults who could be present during the procedures. That may be dealt with in new subsection 10(c), but it raised questions, because these procedures will clearly have to be carried out quickly. It is desirable for the reasons we have already discussed. If it is a family member, the procedures clearly will have to be carried out quickly, which would be helpful from the young person's point of view. I am grateful for the opportunity to mention that point before the Minister responds and before I respond to his remarks.

Hilary Benn (Labour, Leeds Central)

I concur with my hon. and learned Friend the Member for Redcar about the quality of the debate we have just listened to. In essence it has made the argument for the clause. I will do my best to respond to all the points raised. The hon. Member for Beaconsfield wondered out loud whether the provision was the solution to the nation's ills. I think we all recognise that that is not what it is intended to do, but it is intended to be a sensible step to address this fundamental problem that affects hon. Members in their constituencies and their constituents in different ways, including the most extreme examples given by my hon. Friend the Member for Bassetlaw. I found the statistics that he gave shocking, but they show the extent of the problem, which the clause is intended to assist us in addressing.

I welcome the support for the proposals from my hon. Friend the Member for Stafford and his overt bid for his constituency to be a pilot area. Both he and the hon. Member for Southwark, North and Bermondsey raised the issue of consent. Under existing legislation it is an offence not to give a sample if requested. In the case of a young person, the role of the appropriate adult would be to assist and advice the young person

being detained. In the event that the appropriate adult were to advise the detainee not to consent to provide a sample, the young person clearly would still be the person committing the offence of failing to provide. There are consequences under the clause for not providing a sample. If the young person were deemed not competent—mentally, for example—parental consent would be sought. If parental consent could not be obtained, no test could be carried out.

The hon. Member for Southwark, North and Bermondsey asked about the convention and about age. Extending drug treatment to persons aged 14 and over is consistent with existing legislation and we think that the framework is right. The Children and Young Persons Act 1933 as amended by schedule 8 to the Criminal Justice Act 1991 defines a child as a person under the age of 14 and a young person as a person who has attained the age of 14 and is under the age of 18. Those cut-off points provided by the existing system are consistent with the proposed ages for testing provided by this clause.

There is not a great deal about the extent of the problem that can be added to the experience pooled in our debate. But information from youth offending teams suggests that an increasing percentage of the young people they deal with are assessed as having a substance misuse problem. There are no plans to test young people under the age of 18 for substance misuse unless it is part of a drug treatment and testing order. We all recognise—this point was made by my hon. Friend the Member for Stafford—that it is important to be able to identify drug misuse offenders at an early stage in life. We signalled our intention to do this in publishing the White Paper in the summer.

We all need to recognise that young people have different needs, in some cases, from those of adults. That is why we recently published the updated drugs strategy to ensure that universal programmes in education information are made available to give young people and their families the information skills they need to protect themselves. I accept the points that have been made about the need for a follow-up to the information that would be derived from a positive test.

We intend to pilot the provisions of the clause on a limited basis initially, in order to be able to answer some of the questions that have been raised in the debate about whether the provisions will work, what results they will generate and how we can ensure that effective treatment is available.

The most telling argument for not testing below the age of 14 is the result of the lifestyle survey, referred to earlier. 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. Those results indicate that testing for class A drugs in those under the age of 14 would not be an effective use of resources. That is the argument for the age cut-off proposed in the clause.

However, the probing amendments that we considered suggested that the age limit should be both reduced—in the amendment proposed by my

hon. Friend the Member for Nottingham, North—and increased. The clause gives the Secretary of State the ability—by order, through a statutory instrument, using the affirmative resolution procedure—to amend the age limit. That is sensible, because in the light of the experience that we hope to obtain during the operation of the clause and the piloting of its provisions, we will be able to take into account the results of the pilot evaluations and other evidence and then to respond to the conflicting arguments that have been made by members of the Committee.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Is the Minister implying that the Government have an entirely open mind as to whether they might revise the age limit upwards or downwards? Will he clarify whether they will have that flexibility based on the evidence and the pilots?

Hilary Benn (Labour, Leeds Central)

We think that testing 14-year-olds and above is a sensible place to start. However, in evaluating the findings of the pilots we will need to consider the evidence produced and return to the debate later. We want to undertake testing that is sensible, in order to address the problem that hon. Members have identified.

Graham Allen (Labour, Nottingham North)

Some important points have been raised, not least by the hon. Member for Southwark, North and Bermondsey, about the legality of testing children from the ages of 10 to 14, as referred to in my amendment. Will the Minister write to me to clarify whether those legal problems would prove insurmountable if the Secretary of State chose to run a pilot involving the 10 to 14 years age group?

Hilary Benn (Labour, Leeds Central)

I am happy to reflect on the point that my hon. Friend has raised, and I shall respond to him in writing.

Paul Stinchcombe (Labour, Wellingborough)

The Minister may have seen the same evidence from specialists in drug rehabilitation that I have seen; it demonstrates that the greatest statistical indicator as to whether a 25-year-old will be addicted to heroin in later life is whether they smoke cigarettes and are truant from school when they are 15. Has he given any thought to expanding the sorts of drugs for which testing might be available?

Hilary Benn (Labour, Leeds Central)

No; that is the honest answer to my hon. Friend's question. The correlation to which he drew attention between cigarette smoking and the use of harder drugs at a later age is an interesting one. I should be interested to see the research to which he referred.

Responding further to the point made by my hon. Friend the Member for Nottingham, North, those aged between 10 and 13 who commit one of the range of trigger offences will be referred to a youth offending team, either through the final warning scheme or on a charge. At that point they will be screened by the youth offending team for substance misuse and referred for appropriate intervention. That is the current position. I do not want hon. Members to think that because we propose to set the age limit at 14, the younger age group will not be covered.

I agree with the point made by the hon. Member for Beaconsfield, who asked where this was leading. It will be sensible to run pilot schemes only in places where appropriate intervention support and treatment is available. We intend to provide that, in the form of advice, information and counselling, and clinical interventions including prescribing and detoxification. That, in part, is what the additional resources that we announced recently under the updated drugs strategy are intended to achieve.

I remind members of the Committee that the total resources available for expenditure on the drugs strategy will rise from just over £1 billion—£1,026,000,000—in the current financial year to £1.5 billion in the year beginning April 2005. We recognise that we need to invest more; an increase of 44 per cent. means that we are moving in the right direction.

John Mann (Labour, Bassetlaw)

The Minister said that pilots will be introduced where it can be shown that the treatment services are in place. Who will decide whether they are in place in a particular locality? How will that be determined and defined? One problem is the wide geographical scale of drugs action teams. The evidence base that they are working in a particular area is somewhat shaky. It is easy to skew statistics to produce the desired result. In the past, that has led to treatment services and pilots tending to be in cities because there appears to be more immediacy in respect of access to support services. Who will make the necessary judgment?

Hilary Benn (Labour, Leeds Central)

My hon. Friend makes an important point. In the end, the Home Office would decide with advice from the National Treatment Agency, working with the drugs action teams. It is in all our interests that the pilot schemes test the efficacy of doing the testing and determine how many positive results there are. Something positive must flow from the pilots because it would not make sense to start the testing process if we could not follow it through.

John Mann (Labour, Bassetlaw)

One problem is that the treatment provided by GPs in my constituency is not regarded as effective by the drugs treatment service, which has a different philosophy. There is a growing demand for treatment by GPs who have been trained to provide what some would say is effective drugs treatment. However, the drugs treatment service, which is answerable via the drugs action team to the National Treatment Agency, does not regard what the doctors are doing as treatment. The service has a different, holistic view of treatment—it is the distinction between a probation-based and a health-based view. That may be biased, but who makes the determination is fundamental to the matter. If the Minister relies purely on the determination by drugs action teams and the National Treatment Agency we will be back to where we are now, when people like me ask what is the treatment and what is the evidence base for deciding what works. I ask him to reflect seriously on that point because it is one of the flaws in the policy of successive Governments on this matter.

Hilary Benn (Labour, Leeds Central)

My hon. Friend anticipates my next point. In an earlier intervention, he mentioned the importance of ensuring that the different parts of organisations that have a responsibility and an interest in doing something about the problem work together in an effective way. I confess that I did not follow his argument about a probation model and I would be happy to continue the conservation with him on that issue later. He is undoubtedly right that we must ensure that all the organisations that have an interest in doing something about the problem work together effectively, and having identified someone as having a drug problem, provide support and treatment that maximises that person's chances. If a person wants to change how they live their life they must have the opportunity to do so and the necessary support. That, in essence, is what the clause is all about.

The clause as drafted provides for the presence at a drug test of an appropriate adult for those who have not reached the age of 17. That is consistent with other legislation under the Police and Criminal Evidence Act because the provisions applicable under that Act require that any person who seems to be under the age of 17 be treated as a juvenile. The provisions of this clause are consistent with the PACE definitions.

As a consequence, the PACE code of practice C for the detention, treatment and questioning of persons by police officers provides that an appropriate adult be contacted and asked to be present at the police station to see the detained juvenile; thereafter the appropriate adult should continue to be involved in the process. The attendance of an appropriate adult at police stations should be consistent with the requirement that has been placed on the police. That is why raising the age to include 17-year-olds could lead to confusion, because it would be asking the appropriate adult to act for a different age group just for this requirement, and that would be inconsistent with the rest of PACE. It would necessitate the presence of an appropriate adult for those aged between 17 and 18 solely to witness the testing process.

That is not the only thing that will happen to the young person. It is more sensible to have an age cut-off that is consistent with the PACE provisions and to provide for an appropriate adult who will work through all the issues that will affect the young person, including testing. This will avoid confusing the issue. The clause as drafted is consistent with the PACE provisions in defining an appropriate adult.

Finally, I turn to the issue of close family relatives, which was raised by the hon. Member for Beaconsfield. There is a three-stage test under PACE to provide the young person with appropriate protection, but which enables the police to identify an appropriate adult if a parent, guardian or social worker is not available.

A guardian may include a close family relative if the guardian has in effect care and responsibility for the child. A close family relative, however, may not always be the appropriate adult to be called on, depending on how well or otherwise family members get on together. It is my understanding that if the young person says that there is someone whom they wish to call in, the police will accede to their wishes. However, it would

not be sensible to define it in precisely that way; the definition of ''guardian'' could be sensibly interpreted to meet the hon. Gentleman's objective. We see no case for restricting the alternative appropriate adult to a doctor or solicitor.

Vera Baird (Labour, Redcar)

The Minister has not, with all respect, dealt with the points that I raised about the status of the sample. Can he give me any further information?

Hilary Benn (Labour, Leeds Central)

It is not intended that the test results will be used as additional evidence in support of offences with which the detainee has been charged or for the purposes of other investigations or as an aggravating factor when sentencing. The testing is a screening tool; it is intended to identify those who have misused specified class A drugs and who may need treatment and to encourage them to get treatment for their drug misuse. It might be helpful if I remind the Committee that the legislation sets out the purpose for which the information obtained through drug testing after charge may be disclosed. It provides for appropriate disclosure under the criminal justice system in order to inform decisions on bail and sentencing, and decisions on the supervision of the person concerned throughout the criminal justice process, and to ensure that appropriate advice and treatment are made available to the person concerned.

The legislation also ensures that the sensitive nature of the information is respected and that the individual's rights are preserved. Those are the provisions that apply to the testing of adults in the pilot areas; they would be replicated when operating the clause.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his full response to a very interesting debate. I count myself privileged to have triggered it by some probing amendments, as I have found it very useful. He will not be surprised that I will not be pressing any of the amendments to a Division. It was never my intention to do so. I wanted to provide an opportunity for these issues to be discussed.

Some interesting points are raised here, to which the Minister is very much alive. We are seeking to use the criminal justice system for what might in the past have been regarded as almost welfare purposes. We need to be careful about that as we work our way forward. It produces a number of tensions. Previously, the court and criminal justice systems were there to punish offenders, admittedly to rehabilitate them after punishment. We seem to be moving gently towards something much more flexible and hybrid, which may be to the advantage of the person concerned, but we must also be careful about not infringing their liberties. That said, the Minister's proposals do not move so far in a direction that makes me feel uncomfortable and unwilling to accept them.

The only point to which I would return is whether these proposals could lead to something productive and useful for the young person concerned. Two interesting points emerged from the debate. The first concerned the age of testing. We are talking here about class A drugs. Interestingly, we have shied away from a reference to cannabis during the debate and yet there is a lot of evidence, rather more than anecdotal as the

Minister rather confirmed, that there is an increasing use of cannabis by young people and children over the age of 10.

If children and young people are using cannabis when they are also attending school, their chances of emerging from the schooling process with the skills that they will need in life are extremely limited. The point about the number of young children attending has been made to me on several visits to projects in inner cities. Kids' Company in Camberwell, for example, works with regular cannabis users aged 10, 11 and 12. One area that the Minister may wish to consider in due course is whether we should extend this to class B drugs and lower the age.

Picking up on the interesting point made by the hon. Member for Bassetlaw, I would be only too happy if I thought that the GP system could deliver the form of help to drug users that he envisages. GPs may be able to play a better part than they do at present. One thing that I learned from my trip to the United States was that getting oneself out of an addiction is a serious and difficult business. We sometimes underestimate it. We come up with all sorts of offers of attendance at courses to those who are addicted, whereas it is only by sustained and often difficult intervention that a successful cure is achieved. I sometimes worry that we underestimate the challenge. Residential courses in the US last a long time. They get results proportionate to the amount of effort that they are prepared to put into it as part of their public health policy.

With those thoughts to the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Graham Allen (Labour, Nottingham North)

I beg to move amendment No. 98, in

clause 10, page 7, line 4, at end add—

'(ca) in subsection (7) at the end there is inserted—

''(e) such information could be disclosed within a police force for policing purposes in support of the prevention and detection of crime.''.'.

The amendment would mean that the police could use the fact of the positive test for heroin or cocaine in both prevention and detection initiatives, focusing on prolific offenders who are shown as a result of the test to be current drug users. The rationale for that clarification is that surveys show that crack cocaine and heroin users sustain their habits with significant amounts of criminality. The law currently is unclear on this question and there are different practices. I understand that the Department is in contact with the Nottinghamshire police on this matter. Rather than detaining the Committee, if the Minister can reassure me that that correspondence is continuing, I would be pleased to withdraw the amendment.

Eric Illsley (Labour, Barnsley Central)

Is the hon. Gentleman moving the amendment, or withdrawing it?

Graham Allen (Labour, Nottingham North)

Currently moving it, then withdrawing it.

Hilary Benn (Labour, Leeds Central)

In anticipation of the amendment's imminent withdrawal, may I assure my hon. Friend that the general framework is as I set out to my hon. and learned Friend the Member for Redcar a moment ago? I can indeed confirm that my officials are in touch with the Nottinghamshire police about the matter, and I will gladly write to my hon. Friend about the outcome.

Graham Allen (Labour, Nottingham North)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 49, in

clause 10, page 7, line 11, after 'area', insert 'as a whole, or for the particular police station,'.

Eric Illsley (Labour, Barnsley Central)

With this we may take Government amendments Nos. 50 and 51.

Hilary Benn (Labour, Leeds Central)

As I have already explained, we intend to pilot the provisions on a limited basis in the first instance. We therefore propose to allow the Secretary of State to have the option of bringing the drug testing provisions into effect by reference to specific police stations as well as specific police areas. That will facilitate the piloting in a few selected sites, alongside the continuing drug testing of those aged 18 and over, and will provide for effective targeting with a view to future extension in other police areas. To achieve that end, we need to stipulate that notification that appropriate arrangements are in place with reference to specific police stations should be done by the chief officer of police in the requisite police area.

Amendment agreed to.

Amendments made: No. 50, in

clause 10, page 7, line 27, after 'means', insert '(a)'.

No. 51, in

clause 10, page 7, line 29, at end insert 'or

(b) in relation to a police station, the chief officer of police of the police force for the police area in which the police station is situated.'.—[Hilary Benn.]

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

Question agreed to.

Clause 10, as amended, ordered to stand part of the Bill.

Clause 11 - Grant and conditions of bail

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 138, in

clause 11, page 7, line 38, leave out subsection (c).

Eric Illsley (Labour, Barnsley Central)

With this we may take the following amendments: No. 217, in

clause 11, page 7, line 40, leave out 'for his own welfare or'.

No. 218, in

clause 11, page 7, line 40, leave out 'or in his own interests'.

No. 219, in

clause 11, page 8, line 5, leave out 'for his own welfare or'.

No. 220, in

clause 11, page 8, line 5, leave out 'or in his own interests'.

David Heath (Liberal Democrat, Somerton and Frome)

It is a delight to be here in Committee again. Fresh from my debates with the hon. Member for Stone (Mr. Cash) on the niceties of the treaty of Nice, I was pleased to find that this Committee was still sitting and that I had the opportunity to contribute.

The amendment would remove subsection (c), which provides new grounds for the imposition of bail conditions—namely,

''for his own protection or, if he is a child or young person, for his own welfare or in his own interests''.

The amendment is designed to help us understand why the Minister supports that proposal: it is not intended to wipe it out, but to elicit a fuller explanation. Until now, bail conditions have been based on straightforward grounds relating to the alleged offence or an assessment of the likelihood of reoffending. The clause extends that to conditions that are comparable to the grounds on which an alleged offender could be remanded in custody, and we are concerned principally with the position of the children.

It is difficult to find circumstances in which a custody sergeant, who presumably would be the one who makes such a decision, would have the opportunity to make a full assessment of the welfare needs of the child to such an extent that proper conditions could be applied. As we know, under article 3 of the United Nations convention on the rights of the child, we have the commitment that all actions concerning children will be based on the best interests of the child. That will be the paramount consideration. There will be circumstances in which the best interests of the child will be for a conditional bail, for example to deliver that child into the hands of the responsible welfare authorities such as social services. I understand that, but feel that there are better ways of ensuring that in existing child welfare legislation. We could build on the experience of inter-agency working on children, which has grown considerably in past years, rather than the inevitably superficial examination that is the maximum that could be expected from a police officer in the circumstances.

I have some questions for the Minister. Under what circumstances does he expect the new provision to be used? How does he expect it to be used, and what conditions does he expect to be imposed on bail? Given that we all hope that the Bill's provisions will be in accordance with our obligations under the convention on the rights of the child, in what way does he feel that the proposals fully comply with the possible consequences of an arbitrary use of conditions of bail when that was previously unavailable?

Dominic Grieve (Conservative, Beaconsfield)

As the Minister will see, the Conservative amendments, although different in wording from the Liberal ones, have the same purpose of eliciting from the Government the

background to the measure. I would go slightly further than the hon. Gentleman in voicing an anxiety—I put it no more strongly than that; it is not something that would yet make me vote against the clause—about the introduction of the welfare considerations into the granting of bail. As I said in my closing comments on clause 10, we appear to be slipping gently into a hybrid world in which children's welfare issues will no longer be the responsibility of the civil courts. Instead, we are being moved increasingly into intervention, not only when a child has been convicted of an offence but when a child is awaiting trial for an alleged offence and in circumstances in which full representation, which is appointed to ensure that the child's interests are properly addressed, is not available.

I fully appreciate that at first sight there appear to be compelling reasons for adopting that course of action. If a child appears to have welfare requirements when he first comes into contact with the criminal justice system, it may be argued that to delay intervention will not be in his interests. Therefore, to impose bail conditions that have reference to his welfare may appear to be in his interest. However, we must face the fact that, in so doing, we are short-cutting the normal procedure, and as the hon. Member for Somerton and Frome said, it is at least questionable whether we are observing our international obligations.

I suppose that that will in part depend on what the welfare considerations and the measures imposed on a child in those circumstances are in practice. I assumed, although I may be wrong, that with the welfare considerations that had been introduced, we might envisage a variety of measures, particularly relating to the question of the risk in terms of drug addiction. That is just one example.

I may be wrong, but we must be careful, or we could be in danger of introducing a parallel child care system that is imposed without the child's rights being adequately protected. Where, in such a case, is the child's representative? Where is the representative of the possible competing interests between parent and child, or between local authority and child? There is none of these. What there is, apparently, is a move to a short-cut procedure to address the child's best interests, but which will, I believe, largely be dictated by the police and no one else.

I hope that this is an opportunity to explore that issue. I am not unsympathetic to the Minister's aim, but I am slightly troubled and I know that some outside organisations, including the Children's Society, were extremely troubled by the provision. It may be worth pointing out that I tabled the amendments before they contacted me. I suspect that the hon. Member for Somerton and Frome did the same. We were probably working along the same lines as we read the clause, and raising the same questions.

Hilary Benn (Labour, Leeds Central)

The provision was included in the Bill following a recommendation by the Law Commission, specifically to ensure that our bail legislation complied with the European convention on human rights.

It may be helpful if I point out that, although the Bail Act 1976 allows a defendant to be remanded in custody for their own protection, or welfare in the case of a juvenile, there is no provision to enable bail conditions to be imposed in the same circumstances. The Law Commission pointed out that that might lead to a defendant being remanded in custody where release on conditional bail would have sufficed had the power to impose a condition—for example, residence at a hostel—been available. Clause 11(1) amends section 3(6) of the 1976 Act to permit that. The commission recommended that wholly positive step to deal with the gap in current provision that might result in someone being remanded in custody when they could be released on bail if appropriate conditions could be imposed. As I said, the provision is also intended to ensure compatibility with the European convention.

Our other objective is to ensure that there is a power to impose conditions on bail in the case of under-18s in circumstances in which they could be detained in their own interests under PACE or remanded in custody under the 1976 Act. That is the reason for the dual formula of

''for his own welfare or in his own interests''.

A point was made about examples of where the provisions might be used in respect of young people. There could be a requirement to reside at a particular address or not to have contact with an older alleged offender. I hope that my answers have reassured hon. Members that this is a positive change. As I said, it is a direct response to a Law Commission recommendation.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for his reply, which moves us forward. However, it is not entirely satisfactory to remedy a potential breach of the convention on human rights if that introduces a breach of the convention on the rights of the child. There is still a degree of creative tension. My remarks and those of the hon. Member for Beaconsfield were about the provisions that deal with children rather than adults, for whom the issues are more clear cut. However, I think that the Minister's reply was helpful in indicating the circumstances in which he expects the conditions to apply.

Dominic Grieve (Conservative, Beaconsfield)

I do not know whether the hon. Gentleman would agree that the question is whether the purpose is to maintain welfare, pending the determination of the trial, or something wider. The Minister made a point about welfare in terms of locking somebody up. The purpose in those circumstances is to prevent that person from being lynched by a mob outside, committing suicide prior to trial, or another reason that requires their protection pending the trial, rather than to provide a device aimed at administrative convenience in the long term.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman has made an important and interesting point, and I agree with him.

A lot of the potential difficulties could be avoided if there were sufficient clarity in the guidelines produced

by either the Home Office or the Association of Chief Police Officers on how to interpret the provision and how officers will use it. I still have reservations about whether a custody sergeant—the person responsible—will have sufficient information to make a proper assessment of the welfare needs of a child who is brought in suspected of a crime, though not at that stage convicted, without the assistance of the relevant welfare authorities. In almost every circumstance that I can imagine, if there are serious concerns about the child's welfare, it would be far better for those authorities to be involved at that stage than for arbitrary conditions on bail to be imposed.

However, I am partially reassured by what the Minister said. He may like to reflect further on the guidance that can be issued on the circumstances in which it would be appropriate to use the provision. Those outside bodies that have concerns on the issue and understand the situation may also wish to reflect on his words. We may return to the matter later.

Hilary Benn (Labour, Leeds Central)

I would be very happy to reflect on the points that the hon. Gentleman has made in response to what I said, and to write to him if that would be helpful.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Graham Allen (Labour, Nottingham North)

I beg to move amendment No. 249, in

clause 11, page 8, line 6, at end insert

', or

(e) for the purpose of contributing to a national DNA profile providing evidence of identity and kinship of each resident of England and Wales.'.

Before the Minister says it, I appreciate that the amendment is drafted extremely clumsily. Its purpose is to enable the police to obtain DNA samples from all suspects held in custody, and it is intended to be the first step towards the establishment of an independent, national DNA database, on which the DNA fingerprints of all individuals in the UK could eventually be stored. As well as crime suspects, other members of the public could be invited to contribute their details voluntarily, and the end result would be a national resource, the uses of which would extend beyond the obvious example of assisting criminal detection. For example, accident victims could be more easily identified and with far less trauma to relatives. DNA fingerprinting can also be used to clear those wrongly accused of crimes.

The process might take many years to complete, but a start must be made. People are already talking about the subject in scientific and academic circles. In my view, it is a process of some inevitability. The technology now exists—there is no question about that—and I hope that this will be the beginning of a serious and sensible debate that could be viewed in an ethical framework, rather than one that makes commercial profit its main concern. I am sure that the Minister will help to initiate that debate. Once the Minister has given a response, I shall be happy to withdraw the amendment if necessary, and will perhaps table a new clause later on.

Hilary Benn (Labour, Leeds Central)

As I think my hon. Friend acknowledged in his opening words—I am trying to phrase this with appropriate delicacy—the amendment is not, perhaps, in the most appropriate place, although I understand entirely its central point. He has touched on a very important issue. As he rightly says, technology is making possible what was not possible. In the interests of time and of making progress, I shall say that I will be happy to write to him on those points. As he says, we may return to the issue later in the Bill.

Graham Allen (Labour, Nottingham North)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Offences committed on bail

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 37, in

clause 12, page 8, line 39, leave out from 'offence' to end of line 44.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to take the following: Government amendment No. 38.

Amendment No. 139, in

clause 12, page 9, line 3, after 'bail', insert

'when considering the imposition of conditions on bail or remand in custody'.

Hilary Benn (Labour, Leeds Central)

Government amendments Nos. 37 and 38 correct an error in new paragraph 9AA. That paragraph provides that if a defendant is on bail in criminal proceedings on the date an offence was committed, the court is to give particular weight to that fact in deciding whether he or she would be likely to reoffend if released on bail.

As drafted, the paragraph requires that either the instant offence or that for which the defendant is already on bail should be imprisonable. However, as the schedule applies only to imprisonable offences, it is clear that the paragraph can apply only if the instant offence is imprisonable, so paragraph 9AA(1)(b) is redundant. The amendment simplifies and clarifies the new paragraph.

Amendment No. 139 was tabled by the hon. Member for Southwark, North and Bermondsey. I confess that I am not entirely clear as to its purpose, although we will no doubt hear about that in a moment. However, if the intention is to remind people of the context in which the decision is being taken, I understand the helpful intent. I hope that, from the framework within which those decisions have been taken, it will be clear that regard has been paid to whether to take a decision about remanding in custody or granting bail with conditions. Our view is that it is not necessary to add the amendment for those reasons. I hope that that is helpful.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for his pre-emptive strike at amendment No. 139. I speak on this issue with some difficulty, because I was one of those who campaigned quite vociferously a few years ago for adequate measures to deal with the so-called bail bandits. That was in a different life, when I was very conscious of the difficulties that they imposed on the

police force for which I had some responsibility in Avon and Somerset. I understand the arguments for provisions of that kind, and recognise that what is proposed is an attempt to ensure that there is no question about the present terms complying with the convention on human rights. That was drawn to our attention by the Law Commission.

Nevertheless, I fear that there is a danger of the balance going askew as a result of the wording of the provision—albeit improved by the Government amendments—in that, although there is not quite a reversal of the presumption of bail, it comes close to steering in that direction. It is questionable whether that would form the basis of a justiciable complaint under the Human Rights Act 1998. We are at pains to avoid that happening.

By expressly setting into the terms of the clause the option of conditions of bail, which the Minister has astutely identified as being the purpose of the amendment, we would make clear the context in which the decision is taken. There is no presumption of a refusal of bail. That was our sole intent, and I believe that it strengthens the provision. However, I understand his reluctance to accept added words that he feels are unnecessary. I do not agree, as there is still an element of doubt and it would be unfortunate if what was meant to be an improving amendment were interpreted as being a presumption against bail, rather than being a presumption of bail, which is the current situation. Unless he indicates that he would like to speak again, I am prepared to take what he said earlier as his response to amendment No. 139. Under those circumstances, I would be equally happy not to press the amendment to a vote, in the belief that we shall have the opportunity to discuss the matter at a later date.

Amendment agreed to.

Amendment made: No. 38, in

clause 12, page 8, line 39, leave out from 'defendant' to end of line 3 and insert

'was on bail in criminal proceedings on the date of the offence.' ''.—[Hilary Benn.]

Clause 12, as amended, ordered to stand part of the Bill

Clause 13 - Appeal to Crown Court

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 39, in

clause 13, page 9, line 11, at end insert—

'(ca) section 24C of that Act (intention as to plea by child or young person: adjournment),'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to take Government amendments Nos. 45 and 46.

Hilary Benn (Labour, Leeds Central)

These are technical amendments to tidy up the clause. Subsection (1) defines the circumstances under which an appeal will lie to the Crown court against a condition of bail imposed by a magistrates court. It does so by reference to bail granted on the adjournment of a case and lists the provisions under which a case may be so adjourned. Amendment No. 39 adds to that list a reference to an adjournment under a new provision, section 24C,

which appears in schedule 3, which we shall debate later. The amendment is a tidying up amendment in that it makes the clause consistent with what is already in schedule 3. Amendments Nos. 45 and 46 do the same in respect of the Supreme Court Act 1981.

Amendment agreed to.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 25, in

clause 13, page 9, line 25, at end insert—

''(e) that the person concerned does not enter a specified postal area.

(f) that the person concerned does not come within a specified distance of a property.

(g) that the person concerned resides at a particular address.

(h) that the person concerned makes no contact with another person or persons.''

The amendment was the inspiration of my hon. Friend the Member for Woking (Mr. Malins), who from his experience as a deputy district judge questions the state of the appeal to the Crown court under clause 13. It may also shorten matters on clause 14 that the principle that the old appeal procedures of the High Court should be removed and substituted with an appeal to the Crown court. That strikes us as sensible, although it may be slightly inconvenient for members of my profession who will no longer be able to pop over to the Bear Garden at the Royal Courts of Justice and will have to go out to Crown courts in distant towns.

The question arises whether the conditions or circumstances in which one can appeal against conditions of bail as set out in subsection (3) are too narrowly drafted. The conditions are:

''(a) that the person concerned resides away from a particular place or area and at a place other than a bail hostel,

(b) for the provision of a surety or sureties or the giving of a security,

(c) that the person concerned remains indoors between certain hours, or

(d) imposed under section 3(6ZAA) of the 1976 Act (requirements with respect to electronic monitoring).''

We seek to add four matters that, in my experience and that of my hon. Friend the Member for Woking, are frequently imposed conditions.

Reading the explanatory notes, I was conscious that the old High Court procedure may have been limited in the way proposed in the clause. However, that came as a surprise to me, because the appeals that I recollect against or for bail in the High Court covered a wide range of issues and could often lead to substantial variations in bail. That may have arisen simply because one was normally appealing against the refusal of a grant of bail rather than the conditions. It is a while since I last made such an application and my memory may be rusty on that point.

However, even if that were the case, seeing as we are setting up a new regime it seems there is no reason why the Committee should not try to improve on the old system unless it will place too onerous a burden on the Crown court. The four areas that we have proposed as being within the Crown court's jurisdiction to grant a

variation strike as us sensible. If they will not cause the Crown court serious inconvenience in dealing with such applications, considering the other conditions that can be varied, could they be included?

The justifying criterion for the amendment is that if conditions have been wrongly imposed along the lines set out here they can cause a defendant substantial inconvenience. That in itself would merit and justify the Crown court being able to consider the conditions that we propose. I would be grateful for the Minister's views.

David Heath (Liberal Democrat, Somerton and Frome)

My hon. Friend the Member for Southwark, North and Bermondsey and I have subscribed to the amendment, which is entirely sensible. It is not only a matter of inconvenience to the defendant; material loss may be engendered by conditions that will be subject to appeal if the amendment is accepted. A loss of trade or the loss of the ability to carry on a trade may result from those specific requirements. If the Crown court can consider the other spectrum of conditions there is no obvious reason why they should not be extended.

The professional concerns of the hon. Member for Beaconsfield about travelling to Crown courts may be rectified by the attitude of the Lord Chancellor's Department in closing Crown courts and centralising their provisions. In future, there may be far fewer venues requiring the hon. Gentleman's attendance.

Hilary Benn (Labour, Leeds Central)

I shall set out briefly the background to the provisions. I accept that there is consensus in the Committee that we should do away with the right of appeal to the High Court.

The proposal arises from Lord Justice Auld's consideration of the issue. He said that it would be

''sensible, in general, to restrict a defendant's right of appeal against conditional grant of bail. Otherwise the appellate process could be corrupted by endless wrangling over conditions that in most cases should be manageable for the defendant.''

Auld continued:

''There are two possible exceptions in the case of conditional bail granted in the magistrates' courts. The first is where he cannot comply with the condition of residence away from the area of the alleged offence or the home of a victim or witness and there is no suitable bail hostel placement. The second is a requirement to provide sureties or to give a security.''

The Bar Council agreed with Auld's proposal for a restricted right of appeal. However, it considered that the appealable conditions should be extended to include curfew, which it described as

''a condition which represents a clear restriction of liberty'',

and electronic tagging, for the same reason. That argument was accepted, and is included in the clause. The Bar Council also suggested that a condition not to enter a certain area should be subject to appeal, but the Government do not accept that argument.

I listened with interest to the points made in the debate. I am not persuaded that the requirement to avoid a particular geographical area, which is a commonly imposed condition, is so great a restriction on a defendant's liberty as to require a right of appeal. However, members of the Committee should bear it in mind that defendants may already apply to the magistrates who set the conditions

originally to vary them. That is the first route of appeal. In respect of all bail conditions, there is a right of appeal to the magistrates, advancing the argument that the condition imposes an unreasonable burden. The clause makes it clear that in respect of the provisions for which we propose to provide a right of appeal, no appeal to the Crown court would lie unless such an application had been made and decided by the magistrates court.

The residence condition in paragraph (g) of the amendment could be accommodated by adjusting paragraph (a) in the clause as drafted. It could be argued that paragraph (a) could be interpreted as including a residence provision, but I would like to look at the proposal and to consider further the point made by the hon. Gentleman in respect of paragraph

(h) about not contacting particular persons. In view of my comments, I hope that he will feel able to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

In the light of the Minister's remarks, I hope that he will give the matter further thought, but I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at six minutes to Ten o'clock till Thursday 9 January at ten minutes past Nine o'clock.