Drugs Bill

Public Bill Committee, 27 January 2005.

Standing Committee F

Drugs Bill

Roger Gale (Conservative, North Thanet)

Good morning. The relevant documentation is in the Room and the usual restrictions apply to starred amendments.

Caroline Flint (Labour, Don Valley)

I beg to move,

That—

(1) during proceedings on the Drugs Bill the Standing Committee shall (in addition to its first meeting at 9.10 a.m. on Thursday 27th January) meet—

at 2.30 p.m. on Thursday 27th January;

at 9.10 a.m. and 2.30 p.m. on Tuesday 1st February and Thursday 3rd February;

(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.55 p.m. on Thursday 3rd February.

I welcome you to the Chair, Mr. Gale. I hope that we can make good progress in our consideration of the Bill in Committee.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I join the Minister in welcoming you to the Chair, Mr. Gale. I, too, hope that we can made good progress. The Bill is comparatively small; there are only 24 clauses.

Roger Gale (Conservative, North Thanet)

Before we proceed, jackets may be removed. My co-Chairman will speak for himself.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I also welcome you to the Chair, Mr. Gale. Like the Minister and the hon. Member for Chesham and Amersham (Mrs. Gillan), I hope that we can make good progress.

Question put and agreed to.

Roger Gale (Conservative, North Thanet)

I remind the Committee that there is a money resolution and a ways and means resolution and a ways and means resolution in connection with the Bill. Copies of the resolutions are available in the Room. I remind members that adequate notice should be given of any amendments. As a general rule, my co-Chairman and I do not intend to call starred amendments, including any starred amendments that may be reached during an afternoon sitting of the Committee.

Clause 1 - Aggravated supply of controlled drug

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 9, in clause 1, page 1, line 11, leave out '18' and insert '16'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 28, in clause 1, page 1, line 11, leave out '18' and insert 'criminal responsibility'.

No. 30, in clause 1, page 1, line 11, at end insert—

'(c) the offender intended to supply controlled drugs to a person under the age of 16.'.

No. 17, in clause 1, page 1, line 18, after 'time', insert

'or involved the supply of controlled drugs to a person under the age of 16.'.

No. 10, in clause 1, page 1, line 21, leave out '18' and insert '16'.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Amendment No. 9 stands in my name and that of my hon. Friend the Member for Winchester (Mr. Oaten). With it have been grouped amendments Nos. 17 and 10, and Conservative amendments Nos. 28 and 30, which largely deal with the same matters. I will leave others to speak to them, although in the interests of expeditiousness, I may make brief reference to them.

I shall speak to amendments Nos. 9 and 10 together, because, although they are different, essentially they strike at the same point. They are intended as probing amendments but, as always, I reserve the right to change my view on whether they are probing amendments depending on the attitude that the Minister exhibits.

As I may have said on Second Reading, I was struck by the fact that the Government have chosen to make the aggravation apply to offenders of 18 years or over. Exactly what was the reason for that? It leaves open an age gap of those aged 16 to 18, who may be the likeliest to be guilty of acting in this aggravated manner. A 16-year-old might be more likely to be a dealer because they would have left school more recently. They would have contacts in the school and would know who to go to, who would pass on the drugs, who would be the couriers and where they would be least likely to come to the attention of the school authorities. However, it seems to me that they will not be covered by the Bill, although I am always willing to be put right.

The second age-related amendment is amendment No. 10. It seeks to change the limit set for the age of the courier, which is presently under 18. On mature reflection, I suspect that it would not be wise to change that, because there is an argument for saying that keeping the limit at 18 would cover all those in the school under the scope of the Bill. That said, I am interested to know what the Government's thinking was when they set the age at 18. It is slightly unhelpful to set such age barriers, because age may not necessarily be the best way to define those who will be covered by the Bill.

Amendment No. 28 would change the age of those covered by the Bill to the age of ''criminal responsibility'', which would have the same effect as removing any question of age at all. It would mean that the Bill would apply to any transaction involving people of the age of criminal responsibility, which would be just about anyone. That would substantially extend the scope of the provisions. I would be cautious about proceeding in that way. The approach taken by the Government to ensure that there will not be an element of compulsion on the basis of the age of those involved in these dealing relationships has something to recommend it. However, at the same time, there are these arbitrary cut-off points, at 16 or 18 or whatever it will be that is necessarily desirable.

Amendment No. 17 extends the terms of subsection (3), so that it would read

''the first condition is that the offence was committed in the vicinity of a school at the relevant time'',

and would then go on to read

''or involved the supply of controlled drugs to a person under the age of 16.''

The purpose in bringing the amendment before the Committee is again to probe the Minister and to clarify the aggravation. I fully accept that it would extend the scope of the aggravation fairly significantly, but I suggest it is also significant, in that it is in tune with the themes that the Government are using in introducing the clause. Surely, the reason for having an aggravation provision is to protect young people. They are in as much need of protection while at a youth club, or outside a burger bar, or in any place where they might happen to be at any given time, as they are when in school. For that reason, it seemed to me that simply to narrow the scope of applying the aggravation provision is not particularly useful. We miss an opportunity if we proceed in that manner.

A possible difficulty arises if aggravation applies merely to being in the vicinity of a school. There is always the possibility that transactions not related in any way to that school—they might take place half a mile or so away from it—would be caught by the provision as it stands. There is at the moment a quite broad definition of what the vicinity of a school is. However, the thrust behind this amendment is to ask why it should be that the protection offered by the clause, if it is necessary, is to be offered only in relation to schools.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Member for Orkney and Shetland (Mr. Carmichael) moved his amendment extremely well, and I have few quibbles with what he has said to date. It cannot have escaped the Committee's notice that many amendments have been tabled to the clause. However, they are mostly probing amendments to try to get at the Government's intentions and, as I said, to try and strengthen the Bill.

The Government, in subsection (1), are seeking to amend section 4 of the Misuse of Drugs Act 1971 and apply these new provisions if an adult is committing the offence in the vicinity of a school. Amendment No. 28, which stands in the names of my hon. Friend the Member for Reigate (Mr. Blunt) and myself, replaces the age of 18 with the age of criminal responsibility, in a similar fashion to amendment No. 9. Amendment No. 30 seeks to add another subsection to catch anyone hoping to supply drugs to children. I appreciate the imperfection of the drafting at this stage; it is only intended to point us in the right direction and to give the Minister the opportunity to make any alterations that she sees fit.

The way in which drugs are permeating through our society is alarming. It seems that children are taking drugs at younger and younger ages and being exposed to the drug culture. Few of us who saw a recent television report on drug-taking in London would have been anything other than horrified to see that concealed cameras had captured a child of about three, who was sitting in the passenger seat of a car, with the CCTV camera seeing in through the windscreen. She was seated next to an adult, alleged to be the child's mother, in the driver's seat, while the mother was taking crack cocaine. The child was helping her by using the lighter, and at one stage tried further to help but was pushed to one side. For prime-time television, I thought that that was an alarming but salutary lesson to us all of the younger and younger age groups that are being exposed to regular drug taking.

According to statistics from Home Office research on drugs, all sources confirm that the use of drugs is widespread among young people and that the average age of first drug use is falling, quite dramatically. One in 12 of all 12-year-olds has tried drugs at least once, as have one in three 14-year-olds and two in five 16-year-olds.

Even the age of the couriers has reached a point that is almost unbelievable. When I was reading some of the background information on dealing in the United Kingdom, I came across an horrendous story of an event in Gloucestershire that the police witnessed. The police found that children as young as four were being used to deliver packets of heroin. They watched a suspect's four-year-old daughter walk out of the family home clutching a bag and leave it on the ground for an addict. Subsequently, the user came to pick up the bag and the dealer met the user some time later to pick up his cash.

The tough stance of the police on street dealing in the area in question had made it increasingly difficult for drug pushers to operate in public, so the pushers immediately became much more devious in transacting their illegal business. Police in Gloucestershire say that such practices are now quite a habit and that youngsters of about 12 or 13 are frequently used to carry drugs, often by their parents. The police have also found increasing instances of children as young as four or five being used in that fashion, although they admit that that is rare.

I suppose that using children in that way is common sense, because if the police are more successful in an area, it is one way for the dealer to keep the drugs close to him and know that they are safe. At the same time, however, he can deny that they came from him, and if the drugs are found on a child, one defence, for example, would be to say that the child had just picked them up on the street.

With younger and younger children being used as couriers and exposed to drugs, it follows that younger and younger children will potentially be dealing in drugs as well. In order to send out the message that anyone, of any age, dealing drugs in the vicinity of a school will not be tolerated, I would like the Minister to say why she did not make the provisions in the Bill apply to any dealer who had, for example, attained the age of criminal responsibility.

I asked the Minister about some statistics, which, like the Bill, use the cut-off of 18 years. I asked how many people under 18 had been arrested for possessing or selling class A drugs in each of the past seven years. Sadly, she could not tell me, because that is not the basis for the Home Office statistics. I have only the figures from its drugs seizure and offenders' table for 2001 and 2002, and it would be helpful if she could make available the statistics for 2003 and, if possible, 2004. That aside, the table, which uses 17 as the cut-off, shows that the number of under-17s found guilty, cautioned or given a fiscal fine for unlawful possession rose from 7,870 in 2001 to a massive 9,300 in 2002. The number who were in possession of drugs with intent to supply unlawfully rose from 240 in 2001 to 250 in 2002. Likewise, the number dealt with for unlawful supply rose from 230 to 260 between those two years.

I appreciate that the increases in the last two categories are not remarkable, but they are increases and it would be interesting to see whether the trend is followed through in 2003 and 2004. The dramatic increase, however, has been in the number of under-17s found to be in unlawful possession of drugs. Given that the Minister is using 17 as the cut-off age in the statistics, will she explain either why has she chosen 18 in the Bill or why the Home Office does not collect statistics based on the 18 cut-off?

I agree with the hon. Member for Orkney and Shetland that it would not be sensible to change the age for the courier, but the amendments were devices to initiate debate, and it is quite understandable to raise the issue. I hope, however, that the Minister will highlight her reasons for choosing 18 and for not amending the Bill to reduce the age, if that is what she chooses to do.

Roger Gale (Conservative, North Thanet)

Before we proceed, it may help the Committee if I say that I have always taken the view that it is possible to have a stand part debate at the beginning of proceedings on a clause or at the end, but not both. It often helps hon. Members to have a fairly wide-ranging debate at the start of proceedings on a clause, and having seen the breadth of the amendments tabled to the clause, I think that it is already becoming apparent that a stand part debate is unlikely to be necessary. I say that now, because hon. Members may want to make a contribution at this stage, rather than later.

John Mann (Labour, Bassetlaw)

I would like to make a few points about the clause, starting with the issue of changing the age from 18 to 16. I think that other Labour Members would raise the same issue. I suggest to the Minister that the issue of defining youth and adulthood goes much wider than the clause and that it will need much wider, cross-departmental attention in the next Parliament if we are to define more precisely the law as it applies to young people—to define their rights, responsibilities and obligations. Such a debate impinges in many ways on much of the legislation that we enact, and it would be helpful to define adulthood more clearly.

There is a consensus in the Committee, and probably in the House of Commons, that aggravated drug supply is a bad thing and should be punished more significantly. However, is there a notion that somehow there is a relationship with schools? In my view, that is a myth. If it were not, I would be the first to demand such action in the strongest possible terms. The questions that I have tabled and received written answers to demonstrate that, if anything, the trend in serious drug problems inside schools is downward.

Some of the anomalies in the clause highlight the problems. For example, if someone were to be convicted of aggravated drug supply for supplying drugs outside school, but not convicted of aggravated drug supply for supplying in the same place in the middle of the night, with certain drugs we could see the problem of syringe disposal in school playing fields. If a primary school were involved, such behaviour would seem to be the height of aggravated drug supply. That is the sort of problem that occasionally occurs in children's playgrounds in particular, which tend to be for young children, because that is precisely where older children and young adults tend to congregate.

If we were to look at where there is aggravated, extremely dangerous discarding of needles—although any discarding of needles is obviously dangerous—it would be in areas where young children might be. Of course, that could happen in a general playing field as well as a specific designated children's playing field. It seems to me that there is a potential inconsistency.

Another point is whether drug dealers wait outside the school gate. When I came into Parliament, I thought that that was the case. Two years ago, I thought that it was a major problem. More than 200 of my constituents wrote to me to tell me that it was a major problem. When I investigated, I found that it was a myth. Plenty of drugs were supplied, but the idea that the drug dealer would wait outside the school gate to pounce on the children coming out of the school was a myth, although it was one that was widely—

Caroline Flint (Labour, Don Valley)

The clause does not talk about outside the school gates. It talks about in the vicinity of a school. I hope to explain the reasoning behind that. I do not think that the jolly local drug dealer necessarily comes along and stands straight outside the school gate. We are not implying that, although it may happen on occasion and those people will be caught by this offence. We are talking about the vicinity of a school, and we will provide guidelines on what exactly we mean by that.

John Mann (Labour, Bassetlaw)

I thank my hon. Friend for that clarification. However, my term ''outside the school gates'' was a euphemism in the case of secondary schools in particular, where entrances, exits and routes through schools are widespread, particularly in dinner time periods. When I examined the more than 200 specific allegations, I found that recorded offences were not there at all.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

When we reach amendment No. 1, I hope to go into this issue further, but I agree with the example of the playing field outlined by the hon. Gentleman. A playing field could obviously be within the vicinity of the school, and needles could be present. However, would he agree that even though the drugs may not change hands outside the school gates, that is often where contact is made with children with the intention of supplying drugs at a future time and date at an arranged place? The contact is made in and around the school by the dealer.

John Mann (Labour, Bassetlaw)

Again, that was my assumption when I first became a Member and before I first investigated the issue. When I did, I talked to the drug dealers, who, in this context, are not big dealers, but suppliers and, in particular, pushers aiming to get into a new market. Of course, they are not always the most honest people, but if one considers their answers and correlates what they said about where they were arrested, where they bought drugs and where they first bought them when they came into the drug-taking arena, one sees a consistent pattern.

That pattern was confirmed when I spoke to pupils in all the secondary schools in my area. I spoke to them over a prolonged period and in some detail, and I asked them, with no other adults present and without any names being exchanged, what access they had to drugs and what drugs they had. What they said was very interesting. In essence, they were saying, ''Why would we not know where to buy drugs? They're widespread in society. Why would we buy drugs inside or outside school? That is the most stupid place to buy them. If we want drugs, we know where to go.'' I asked them where they bought drugs, and they said that they bought them in the evening and at the weekend from people they knew, and particularly in social settings. I am talking about what are now known as class C drugs being bought at what one could call parties—social settings where young people, but not older people, are present.

Therefore, young people not only do not buy or sell drugs in and around schools—they would not even consider doing so. They think that anyone who does is particularly to be avoided, even if they themselves want to purchase drugs. As a result, while the spirit of the clause is very welcome, the provisions will have a negligible effect. In discussing aggravation, we need to look at the sorts of drug use that exist. Neither the amendment nor the clause focus on the potential public health risks from discarded needles, and that risk sometimes correlates directly to the basis of the sale.

I will stop there, however, because I want to save the Committee time. I could go into greater detail, but I hope that hon. Members will take it on trust that I have other examples from my constituency. They relate not to defined spaces allocated to young people, but to spaces that young people use all the time in their everyday lives. There is a significant risk in that respect, not only to those who use drugs, but to those walking in the streets or, more likely, the fields in that area.

Angela Watkinson (Conservative, Upminster)

Everybody in the Room has good intentions as regards doing whatever we can to protect young children from being exposed to drugs and tempted to try them, and all the proposals in the Bill have that aim in mind.

I am sure that all hon. Members have, like me, received lobby material from all sorts of interested groups. I was disappointed, however, by the briefing that I received from the Transform drug policy foundation, which claims that it would like the Bill to be scrapped and not to get on to the statute book. It claims:

''There has been an unacceptable lack of consultation with key stakeholders in the drugs field''.

I would submit that the key stakeholders are those children who have thus far managed to avoid being tempted into taking drugs. It is our duty to protect them from adding themselves to the ever-growing list of young people who are in need of treatment and who are heading towards a lifelong habit that will endanger their health, education and employment prospects.

Amendment No. 28 proposes that we leave out '18' and insert '16' and insert ''criminal responsibility''. The age of criminal responsibility is 10. This is where we need to focus our efforts on protecting the youngest children. Drug dealers are turning their attention to primary schools and ever-younger children, looking for new customers to fuel their never-ending income from those who need a constant supply of drugs, and making the drugs cheaper, at pocket-money prices. Therefore, 10 is a more appropriate age of responsibility. We will afford more protection to more children if the age limit is as low as possible.

The Minister said that she would go into greater detail about the words

''in the vicinity of a school''.

The hon. Member for Bassetlaw (John Mann) said that he believes that dealing outside school gates is not prevalent. I confess that I have not hung around school gates to find out. Dealing may indeed not be very prevalent in those areas, but any dealing in the vicinity of schools must be taken extremely seriously, because it deliberately tries to entrap children into taking drugs, experimenting with them, acquiring the habit and becoming regular customers. It is our duty, however infrequently it might happen, to treat such dealing as an aggravated offence.

I want to see a distinction made between primary and secondary schools, because it is far more serious to deal drugs to very young children for the reasons that I have given. Serious as it is to offer drugs to secondary-age children, it is even more serious to offer them to primary-age children, who are more naive, have no experience in resisting pressure and are even more vulnerable.

One of the secondary schools in my constituency, of which I am a governor, is a community school whose buildings are in almost constant use. There are breakfast clubs, so the pupils arrive very early in the morning. At the end of the school day there are homework facilities and all sorts of extra-curricular activities. Then there are adult education classes in the evening and sports events going on inside and outside the buildings. Therefore, young people are on the premises for many hours in the day. In addition, the community church uses the school hall on Sunday mornings. The length of time that the school building is in use far outweighs the time when it is not. There is justification for deleting at the end of subsection (3) the words ''a relevant time''. The relevant time is so wide that the words become almost irrelevant; we could say ''At any time.''

Subsection (7) contains the word ''requests''. The Minister is looking puzzled.

Caroline Flint rose—

Roger Gale (Conservative, North Thanet)

Order. Before the Minister seeks to intervene I should say that, in a sense, I have brought this on my own head by inviting a wide-ranging debate, but the hon. Member for Upminster (Angela Wilkinson) will find that a later amendment deals with this point. While I am perfectly happy to have a wide-ranging debate about the principle behind the clause, it would be helpful if the Committee concentrated on the amendments under discussion so far as possible. I notice that we began a discussion about vicinity, and the appropriate place for that debate is probably on amendment No. 1.

Angela Watkinson (Conservative, Upminster)

I apologise for getting carried away with a subject that is of abiding interest to us all, Mr. Gale. I will link tenuously to the clause.

Drugs education in schools heightens children's awareness of drugs, which makes them more vulnerable because it increases their interest. They have more information on the subject at their fingerprints than they would ever have acquired by accident. I know that the hon. Member for Bassetlaw will challenge me on that.

John Mann (Labour, Bassetlaw)

Is the hon. Lady suggesting that the DARE programme encourages drug-taking?

Angela Watkinson (Conservative, Upminster)

DARE is one of the better drugs education programmes on offer. I have said many times that the focus should be on drug prevention rather than harm reduction, which starts with the assumption that most children will take drugs anyway, so we should reduce the harm and make it as safe as possible. I contend that the majority of young people do not take drugs. The downgrading of cannabis has given many young people the impression that it is legal now, and not particularly harmful. The police do not enforce against possession if it is deemed to be for personal use, and that has had a detrimental effect on the general attitude to drugs among schoolchildren, as well as increasing their vulnerability to dealers who not only offer cannabis but also a wide range of other wares that they can be tempted to try. I support the words ''age of criminal responsibility'' being added to the clause, so that its scope is widened and it will provide the greatest possible protection to the youngest children.

Brian Iddon (Labour, Bolton South East)

I have three points to make in response to your invitation on the stand part section of this debate, Mr. Gale, but my remarks refer to all the amendments, so perhaps it is right to make them now.

First, I echo the point made by the hon. Member for Upminster on consultation. Will the Minister tell us exactly which organisations or individuals have been consulted about the aggravation clause?

Secondly, the regulatory impact assessment on the Bill states:

''Courts currently have discretion to take into account any aggravating factors present when the offence is committed''.

I raised the need for a clause on aggravated offences on Second Reading. I have had an answer from the Minister informally, but perhaps, in view of that comment in the RIA, she will put on the record why she feels that clause 1 is necessary.

Thirdly, the Home Office's own calculations, on page 19 of the RIA, suggest that the net effect of the change will be to add an average of one month to an estimated 63 convictions each year for aggravated supply. I wonder whether the Minister will convince us of the need for the clause.

Caroline Flint (Labour, Don Valley)

Before I respond to the group of amendments before us, I ask for the support of the Committee in order to aid discussion. I am happy to try to deal with all the points that have been raised, but it will help me if we can respond under clause 1 to each group of amendments, and if there are any outstanding issues at the end I will try to answer individual concerns, although I may not always succeed. That might help me by allowing me to collect my thoughts.

Roger Gale (Conservative, North Thanet)

I hope that I have made the position plain, but let me place it firmly on the record. There is a broad principle behind the clause. That can be debated at the start of the clause or the end of the clause, in a clause stand part debate. I am happy for that broad principle to be discussed, and indeed it has been. There are also amendments. Amendment No. 1, which we will reach in due course, deals with vicinity, and amendment No. 25 deals with the issue of time, which was also raised. The appropriate place to deal with those matters is when the amendments are moved.

Caroline Flint (Labour, Don Valley)

Thank you for your guidance, Mr. Gale. I will attend to the group of amendments that are before us, which in different ways challenge the cut-off point of 18 in the clause. As has already been outlined by the hon. Member for Orkney and Shetland—although he said that his amendments were probing amendments—amendment No. 9 would lower the age at which a dealer would fall under the clause. It would catch 16 and 17-year-olds who were dealing. Their offence would be subject to the aggravating factor. Likewise, amendment No. 28, tabled by the hon. Member for Chesham and Amersham, and supported by the hon. Member for Upminster, would lower the age at which a dealer would fall under the clause yet further to the age of 10. Effectively, the amendment would mean that offences committed by those between the ages of 10 and 17 who were dealing would be subject to the aggravating factor.

I have listened carefully to what hon. Members have said about this issue, and I would not dispute that there are young people under the age of 18—and probably considerably under the age of 16—who are involved in dealing drugs. We need to ask some questions about who the adults are behind the supply of those drugs to those young people. We must carefully consider the way in which we determine how vulnerable different groups of people in society are to those influences.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I entirely agree with the Minister. At the moment, the way in which the clause is worded means that a 17-and-a-half-year-old is protected from receiving an aggravated sentence. In the case of that group of youngsters—even the 16 to 18-year-olds—there might need to be greater intervention to allow the sentence to have greater effect. I suppose that I am arguing against a short, sharp shock and for a slightly longer sentence so that we have a better chance of educating youngsters and preventing them from reoffending.

Caroline Flint (Labour, Don Valley)

I will explore that point as I develop my comments. My personal feelings about treating young people aged 10 to 17 in the same way as those over 18 for the purposes of the clause are supported by a number of organisations which work with young people who misuse drugs or who are involved in the supply side. Existing sentencing guidelines enable the courts to treat the targeting of vulnerable victims as an aggravating factor. In the context of sentencing 10 to 17-year-olds, that is best left to the discretion of the courts. I say that on the basis that some of the ways in which we have tried to challenge offending behaviour and to prevent young people from committing crimes again, through considering the different issues surrounding that behaviour, have brought us on in leaps and bounds.

That is not to say that young people do not sometimes commit crimes again. They do. However, when a young person is involved in the supply of drugs, we must carefully consider the circumstances in which that has come about and try to address them. I am not negating the fact that the young person must take responsibility for committing the offence, but we must look more closely at their vulnerability, as well as their offending behaviour.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Minister said that existing sentencing guidelines allow for the protection of vulnerable people. Therefore, why is the clause necessary at all?

Caroline Flint (Labour, Don Valley)

Although there are aggravating factors in relation to supplying drugs to a vulnerable person—the secretariat to the Sentencing Guidelines Council has confirmed for me, because I wanted to check it following Second Reading, that the term ''vulnerable victims'' covers young persons under 18—they would apply when a dealer supplied drugs to a person under 18. However, this clause applies to someone seen dealing drugs, perhaps to an adult, in the vicinity of a school—we will talk a bit more about that under amendment No. 1. They do not necessarily have to be caught dealing to someone under 18. For the aggravated factor to apply, someone does not have to be found dealing to a young person if they are dealing in the vicinity of a school. It is a legal requirement for all young people to go to school, so we are trying to protect them from such influences and the environment in which drug dealing takes place. That is why the clause goes further than covering those who deal directly to a young person.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Minister expects the clause to do more than it does. She is suggesting that if she and I, for example, involved ourselves in a drugs transaction in the vicinity of a school, that would be treated as an aggravation under this Bill, but that is not the case. Given subsection (4), aggravation applies only if one is caught using a courier under the age of 18.

Caroline Flint (Labour, Don Valley)

We are requiring the courts to treat drug dealing in the vicinity of a school as aggravated, which is different from the aggravated factor that currently exists of dealing to a vulnerable person. If a person is arrested for dealing drugs in the vicinity of a school, that should be put forward by the prosecution as an aggravated factor. When we talk about schools, the vulnerable people who we are trying to protect are those under 18. However, in order for the aggravating factor to apply, it is the vicinity that is important, and the provision therefore expands beyond the aggravated factor depending on the vulnerable person.

Mrs. Gillan rose—

Caroline Flint (Labour, Don Valley)

Could I finish talking about the age of a dealer caught under this offence, because I would like to expand on that point? Although we take seriously any person, no matter how old, supplying drugs to another person, particularly a young person, it is important to consider the vulnerability of the offender. That is one reason why the cut-off point is 18. In many respects, that fits in with other measures for prevention and working with young people involved with drugs.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I want to take the Minister back to the discussion before the interventions from the hon. Member for Orkney and Shetland and give her a break while she catches up with her notes. The logic for not reducing the age to 16 and leaving it at 18 is still difficult to follow. Where convictions occur, the highest rates of reoffending and reconviction are between the ages of 14 and 17—that age group has the heaviest reconviction rates within two years of coming out of prison. Therefore, to reduce the age, and make younger dealers—who, if they are over 16, are really adults in our world—subject to the aggravated offence, would be just common sense in the light of the evidence base derived from the statistics.

Caroline Flint (Labour, Don Valley)

As I said, we have to bear in mind whether we consider those under 18 to be vulnerable as well as judging their actions, which I do not accept. Responsibility has to be taken for their actions. When we are dealing with young people and children, our approach should recognise that those children have often been subject to influences from other adults. That is one of the reasons why the issue of treating children as couriers is important. Examples were given by hon. Members, and I saw the report in my newspaper about the three-year-old who was asked by her mother to deposit drugs.

In some cases, children may be aware of what they are doing, but in some cases they probably are not. We are talking about three and four-year-olds who would see such activity as normal and a part of their life. They will not necessarily know what they are doing. We have to be careful about how we deal with people in this young age group, whether they are 10, 11, 12, 13, 14, 15, 16 or 17. In other areas of public policy we recognise that we might need to take a different approach to young people involved in offending or risk-taking behaviour. There is no reason why we should not apply that approach in this regard.

In the case of any young person under 18 who is involved with drugs, we would hope to get to the bottom of what is going on. That is not just a question of a longer sentence. The involvement of a three or four-year-old who has grown up and is now 14, 15 or 16, may be a product of their parents' use of drugs. Many issues need to be considered, and the framework within which we deal with those young people is somewhat different from the one that we might expect for adults.

I take the point that my hon. Friend the Member for Bassetlaw made. The debate about age, and when one becomes an adult or a young person—taking into account factors such as getting the vote at 16, or the age of consent—is not always straightforward. People have very different views on the point at which a person becomes totally responsible. The age ranges set out in the clause are appropriate to our activities in this area, particularly the work that we are doing in terms of prevention and treatment for young people.

Amendment No. 17 would have the effect of making the supply of controlled drugs by a person aged 18 or over to a person under the age of 16, wherever it takes place, an aggravating factor that a court must take into account when considering the seriousness of the offence. The intention of the clause is to protect young people from dealers at or near their place of education, and from being used as drug couriers.

The clause responds to parental concern; I accept that my hon. Friend the Member for Bassetlaw did not find evidence of drug dealing in the survey he undertook in his constituency—certainly not outside school gates. We are talking about dealing in the vicinity of such places. We shall talk about the issue later, but I shall just touch on it. Dealing might take place on the route to school. We have to explore that matter, and work out the points at which young people are vulnerable.

The clause responds to parental concern. I had a meeting with Turning Point, Drugscope, Addaction and Adfam, where we went through all the clauses. From that meeting I did not get an impression that it was thought that the clause was unhelpful in the general scheme of trying to protect young people. I understand that the clause was also discussed at the Association of Chief Police Officers drugs committee.

Furthermore, the amendment is unnecessary because current sentencing guidelines list, among other aggravating factors to which courts can have regard when deciding the seriousness of the offence, the deliberate targeting of vulnerable victims. This allows the courts to use their discretion to deal appropriately with the supply of controlled drugs to young people in situations other than in the vicinity of school.

I have already explained that I am opposed to reducing the age at which the person being dealt the drugs is an aggravating factor below the age of 18. I hope that is understood by the Committee. Sometimes the Home Office is criticised for having too much of a stick with young people. I am not saying that those under 18 should not accept responsibility if they are involved in drug dealing, but in this area we must be mindful of their own vulnerabilities as well.

In terms of dealing to under-16s in the vicinity of a school, amendment No. 30 would mean that the clause would apply only where an adult was intending to supply controlled drugs to a person under the age of 16. The courts would therefore be required to take into account these aggravating factors only if the offender intended to supply a controlled drug to a person under the age of 16. The effect would be to reduce the protection given by the clause to school pupils aged 16 and 17 because dealing to these people within the vicinity of a school would not fall within the scope of this provision. This amendment would also substantially reduce the protection given by the clause to all young people, including those under the age of 16.

By preventing this clause from applying to those adults who deal to other adults and persons aged 16 and 17 within the vicinity of the school, I think this amendment weakens that protection—for reasons which I hope I have adequately explained to the Committee.

Children are required by law to attend school. We consider it to be essential that children and young people should be able to do so without being exposed to the risk of drug dealing when they are there. For those who do commit that offence, that should be taken into account.

This amendment would mean that the use of a courier under the age of 18—where the supplier was not intending to supply drugs to a person under the age of 16—would fall outside the scope of this clause. The use of a person under the age of 18 to deliver drugs or drug-related cash should be an aggravated factor regardless of the age of the person to whom they are delivering those drugs or that drug-related cash. This goes back to the point about how we are looking at vulnerable persons in this respect, and that 16 and 17-year-olds should be protected too. On that basis I ask the hon. Member for Orkney and Shetland not to press his amendments, and I conclude there.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Minister concludes by saying ''on that basis''. I am not clear exactly what basis that is supposed to be. On the particular points that have been raised on these amendments there has been little satisfactory explanation given.

I shall follow the lead taken by others and say a few general remarks on the overall thrust of these amendments and put them in the context of the clause. Perhaps I can take a prompt from the hon. Member for Bassetlaw and say that I do not think that the clause serves any useful purpose. It is an attempt to address a mischief that is less real than apparent. It comes under the heading of pre-election window-dressing.

I want to consider the question of dealing outside a school.

John Mann (Labour, Bassetlaw)

I should not want the hon. Gentleman to give the impression that I think proposed new section 4A(4) on couriers inappropriate. It is a very important provision. I was questioning the effectiveness of new subsection (3), but new subsection (4) is important. We should not rubbish the entire clause on the issue of whether new subsection (3) is workable.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I take the hon. Gentleman's point, but even proposed new subsection (4) deals with the sort of information that, on a charge under section 4(3)(b) of the Misuse of Drugs Act 1971, which covers being concerned in supply, would properly be put before the court already. It would already be treated as an aggravating factor by any sheriff or judge hearing the case and lead them to increase the sentence. Nothing in the Bill changes that.

Caroline Flint (Labour, Don Valley)

One of the issues that led to our feeling that we had to act—and I do not necessarily dispute the hon. Gentleman's point that a court hearing the whole case would be minded to take into account the fact that a drug dealer had used children—was that there is evidence of greater and greater involvement of children in such offences. We felt that it should be seen as a separate factor, with a view to tackling the adults who clearly think that using children and young people will help them in their illegal activity.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

If the Minister could tell me that more and more people are using children in drug supply and that the courts do not deal with it, I might be sympathetic to the clause. However, she does not say that. All that she says is that more and more children are used in the course of drug supply. I have no reason to doubt her. That is probably a trend that has been continuing for several years now. However, information of that kind would be put before the court under existing law and would be reflected in the sentence. I shall deal with sentencing on a later amendment.

I am just waiting for the day when the Government present to the House a Bill to make murder illegal. We seem to spend so much time criminalising conduct that is already illegal. If there is a problem, it could probably have been dealt with by sentencing guidelines. I do not accept that there is a particular problem in sentencing. The Minister has not said that there is a sentencing problem. I do not see that the clause is necessary.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

If the hon. Gentleman indicated that he wanted to press amendment No. 9 to the vote at any stage, he would have support from my Benches. Does he agree that there is about the Bill a definite pre-election feeling of having been drafted to show that the Government are being tough on crime and tough on the causes of crime? In fact it is perhaps a little otiose, and if more time had been taken over it, it might have been found to be unnecessary.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

''Otiose'' is a wonderful word. I have not used it since I stopped appearing in court, but it was always a favourite. It fits the bill—in every sense—perfectly.

I am also concerned that having once started down the road of dealing with the matter as the clause does, one has to come up with ever more inventive aggravations.

The hon. Member for Upminster said that she wanted to see a distinction between primary and secondary schools. That is something else that the courts should be made aware of when the sentence is imposed. The hon. Lady is quite right: the logical conclusion of the route that the Government seek to follow is that we then have an aggravated aggravation of dealing in the vicinity not just of a school, but of a primary school.

The hon. Member for Bassetlaw seeks to draw attention to discarded needles. It is just about possible to think how one can bring that into clauses that deal with supply. It is a quite separate issue, but yes, it would be an aggravation and it is a mischief that we should seek to remove. The hon. Member for Upminster also said that she was disappointed by the Transform briefing. I am not quite clear whether it was the content or the lack of consultation that disappointed her. The lack of consultation rather adds to my impression that the Bill is not particularly well thought out. She spoke about our duty to protect children. As a parent I take that duty very seriously. That is why I think that children deserve something rather better than this, which seeks to address a mischief that the law already deals with.

The hon. Member for Bolton, South-East (Dr. Iddon) made some telling points about the regulatory impact assessment, which the Minister did not deal with. When challenged on the question of vicinity she said that they would think about that later. It will not be thought about later. It will be dealt with by the courts later. She said that vicinity might include routes to school. I thought that a quite remarkable suggestion. My route to school was 14 miles long—

Roger Gale (Conservative, North Thanet)

Order. I am listening carefully to the hon. Gentleman. He heard me tell the Minister that this would be dealt with under amendment No. 1. It is not entirely reasonable for the Minister to be criticised for adhering to my admonition.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Fair enough, we will return to that on amendment No. 1.

Unfortunately the Minister has not really addressed the point that we have sought to raise. I do not particularly like the clause. However, if we are to have it we should have a sensible and workable clause that will work for the police, the prosecutors and the lawyers and judges in the courts who will be charged with implementing it. At present there are an awful lot of inconsistencies, which my amendments seek to highlight. The most obvious is the reduction from 18 to 16 which I propose in amendment No. 9. The Minister has not given us any reason why that should not happen.

Caroline Flint (Labour, Don Valley)

Will the hon. Gentleman enlighten us as to the reason why he thinks that 16 and 17-year-olds, who in other aspects of the law are defined as vulnerable people, should not be so in this context? He has not explained why he thinks we should not apply to them the same measures as we apply to young people and children. He argues that 16 and 17-year-olds should be treated as adults, thereby removing their vulnerability as young people, which applies in other aspects of the law.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

First, the Minister will have heard what the hon. Member for Chesham and Amersham said about the number of offences involving 14 to 17-year-olds. I will not rehearse those remarks. Secondly, I do not know whether she is saying that all 16 to 18-year-olds are vulnerable people. That is a rather sweeping statement. When I first spoke to the amendment I explained to her, and she nodded in agreement, that 16 and 17-year-olds would be best placed to commit these offences.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Does the hon. Gentleman agree that this debate shows how the ages at which we acquire responsibility in this country are in a complete mess? Ten is the age of criminal responsibility and one can get married at 16. We have more teenage mothers than any other country in Europe. At 18 one can die for one's country, but one cannot be a Member of Parliament until the age of 21. This whole area needs clearing up. There is no doubt that 16 to 18-year-olds know what they are doing if they are selling drugs to other children in the vicinity of a school. We want that to be recognised as an aggravated offence.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

That is a fair point. The extent to which a young person between 16 and 18 might be vulnerable while still being caught by this provision would be determined by the court. However, if we follow the Minister's logic, it should be open to the court to make that determination. As the clause stands, it is not. That is the point that the Minister has not addressed.

Caroline Flint (Labour, Don Valley)

We feel that it should not be simply left to the courts but that these should be made aggravated factors because the courts are then required to take these issues into account. That sends a stronger message than something in the sentencing guidelines which is left to the court's discretion. People have disagreements about the ages here, but in principle it sends a stronger message than leaving it to the court's discretion.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Minister's note answers the point that I made before my present point which involves 16 to 18-year-olds. She has not explained why the courts should not have the option of dealing with 16 to 18-year-olds as having acted in an aggravated way. Accordingly, I press my amendment to a vote.

Question proposed, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 12, in clause 1, page 1, line 16, after 'aggravated', insert

'and must state the portion of a sentence being imposed that relates to this aggravation'.

As I have already indicated, my approach to the clause is essentially practical. If we are to have it, it might as well make sense to those who will have to deal with it, particularly those who will have to deal with it in court. Accordingly, the amendment would place a requirement on the court to state what portion of the sentence relates to the aggravation. If a sentence of 12 months' imprisonment were to be imposed, the judge would be required to state that two months were being imposed because it was an aggravated offence. That is perfectly straightforward. I have to say that it is not an original idea on my part; this approach to sentencing is taken in respect of a number of offences, particularly aggravations of offences, certainly in Scotland, which was committed while the offender was on bail. In those circumstances, the sentencing judge is required to say, for example, that the sentence is three months, of which one month is imposed because the person offended while on bail.

If the amendment is not accepted, there will be a provision on aggravation that does not really achieve anything, and it will be difficult to see that any purpose has been served. The amendment is as straightforward as that, and I am interested to know the Government's thinking on it.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Member for Orkney and Shetland has tabled a small but eminently sensible amendment. If the clause is intended to drive drug dealers away from vulnerable people and schools, a clear signal needs to be sent to them that they can expect to receive heavier sentences if they are caught in such areas, and they need to be able to see what the additional penalty will be. In that sense, adding the amendment to the clause would strengthen the deterrent factor for dealers in and around schools, because it would soon get round that if they were caught in the vicinity of a school or using children as couriers, they could expect to receive another six months or a year in prison.

The amendment also gives the Minister an opportunity to let us know at this stage what size the aggravated proportion of the sentence will be. What does she envisage? Has she had discussions on what length of time might be superimposed on the sentence when the provisions of this clause on aggravation are met? Without making a fuss about it, I support the amendment, because it would provide clarity and would hand a powerful tool of reinforcement to the courts and the police to deter people from dealing drugs in and around school premises.

Caroline Flint (Labour, Don Valley)

To the extent that the point made by the hon. Member for Orkney and Shetland relates to transparency about where aggravated factors fit when sentences are agreed in court, I have some sympathy with it and with what the hon. Member for Chesham and Amersham said about being able to see clearly the impact of aggravation for the victim and the defendant. As hon. Members will be aware, several statutory aggravating factors already exist—for example, those set out in the Criminal Justice Act 2003, which provides for an increase in sentence based on aggravation related to sexual orientation, disability, race or religion. That Act provides, much as the Bill does, that the court must treat the fact that the offence was so aggravated as increasing the seriousness of the offence, and that it must be stated in open court that the offence was so aggravated.

The question is whether there should be a requirement in statute to explain what portion of the sentence is for the aggravation. It might be more appropriate to take some issues up in the context of the Sentencing Guidelines Council. I hope that it will help hon. Members if I say that that council has the role of setting guidelines and that I understand that it plans to look in detail at aggravating and mitigating factors generally, and will consider, where appropriate, what weight such factors should carry. To pre-empt that exercise at this stage would cut across some of the council's work. It will consider all these issues in a wider context and with full consultation, and will then carry the outcome through into individual offence guidelines. Should the Bill be passed, those aggravating factors would also come into the context of that area. I shall certainly discuss with officials and with the council how that will be taken forward. It is important that tackling the issue should not be viewed in isolation from other aggravating factors related to sentencing for other offences. I hope that what I have said is helpful to the hon. Gentleman.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

It is not really. I am not going to make a fuss about the matter, but I do not see how such a requirement would cut across the work of the Sentencing Guidelines Council. It would have the benefit of concentrating the mind of the sentencing judge on the extent to which the offence has been aggravated. The work of the Sentencing Guidelines Council would be to give better guidance and perhaps to achieve better uniformity in what was applied. However, if we had that degree of transparency, it would show whether the work of the Sentencing Guidelines Council was unnecessary or very necessary.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Is it not disappointing that we have no indication as to the strength of addition to the sentence that would come from the aggravated offence, so it will not act as the deterrent that we hoped that it would? I think that the hon. Gentleman and I both support the original clause, and are looking for a deterrent effect on dealers.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

That is true. If a court is required to say that an offence is aggravated in this manner, and that must be done in open court, my amendment is simply the next logical step.

Caroline Flint (Labour, Don Valley)

It is difficult, at this stage, to predict the length of the additional part of the sentence. Under current guidelines, the court has to take into account a number of factors such as the nature of the offence and the impact on the victims. That is why what I said earlier about the consultation that the Sentencing Guidelines Council intends to have on issues related to aggravating factors is important to the debate and to other areas in which aggravating factors apply. No doubt part of that consultation will be about weighting in relation to the totality of the final sentence.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I do not think that we will resolve this matter. If the Government say that offences are aggravated in the sense that that makes an offence more serious, and that that affects sentencing, the public are entitled to expect that more serious offences receive more serious sentences, and to know the extent to which a sentence has been lengthened. I am disappointed that the Minister does not see the logic in that, and that she seems to be distracted by other considerations that are not particularly relevant. However, this is not the most important of the amendments and, in order to speed proceedings up, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 1, in clause 1, page 1, line 18, after 'school', insert

'youth club, skate park, arcade or bowling alley'.

I am going to make a generous offer to the Minister. This is her big opportunity to try to give the clause a few teeth, because so far she has resisted the valiant attempts of Opposition Members to strengthen the clause.

We now come on to a debate in which I expect that there will be several participants—I see that the hon. Member for Bassetlaw is lighting up already for his contribution. We seek, through the amendment, to add the words

''youth club, skate park, arcade or bowling alley''

to the clause. That is not an extensive list of places, but more indicative of the direction that we are taking. I took the wording directly from the debate on Second Reading, when my right hon. Friend the Member for Haltemprice and Howden (David Davis) indicated that although we agreed with the basic principle of applying an aggravated factor to dealing in and around schools, we wanted to press the Minister on dealing to children in general and challenge her decision to stop at schools.

The school is a good place to start, but even on Second Reading the evidence base on which the Minister was presumed to be relying was challenged from her own Benches by the hon. Member for Bassetlaw. He has done a tremendous amount of research in his constituency, and I would be one of the first people to praise the depth in which he has examined the problem. I understand that he found a diminishing amount of evidence through his inquiries of physical dealing right outside the front door of schools. I hope that he will enlighten us further on his research during this debate. However, I agree with the Minister that dealing around schools is a problem. This is an interesting dilemma: I agree with a Labour Minister, whose own Back Bencher says that this is not based on reliable evidence.

I was approached last year by a teacher who told me that the dealers were literally at the front gate of his school. Word had got around that, at certain times, the dealer would be in and around the school. I got the distinct impression, from what I freely admit was anecdotal information, that dealers made contact with children in and around the school and set up meetings in other locations. That is often the first point of call outside the school to get in with the crowd, get known as a nice chap or girl, perhaps even hand out free sample drugs, sell them or just move dealing to another location. I want to know whether that scenario is covered by the clause. As I read it, it would not cover a dealer on a pre-sales trawl around a school because it is too narrowly drawn and too easily circumvented.

The wording of our amendment may not be sophisticated, but I would be willing to support a correctly drafted Government amendment either widening the scope of the area in which dealing takes place, or targeting any dealing of drugs to children anywhere at any time. I am asking the Minister to take the clause away and come up with a solution. She has at her behest parliamentary draftsmen and a whole raft of officials in the Home Office who have nothing better to do than examine the clause and ensure that it has teeth and bite in our society.

The truth is that deals are concluded all over the place: in car parks, on playing fields, in the staircases of blocks of flats or out on the streets where youngsters congregate, particularly after dark. An ideal example of this comes from Camden. A report in Camden New Journal illustrates the problem precisely. It is a fairly horrendous article and I shall quote selectively from it, but the headline is ''Welcome to the House of Horror.'' The article begins:

''Drug dealers are luring children to the top floor of a Camden tower block to sell them rocks of crack while neighbours live under a self-imposed curfew of fear. Residents say drug deals take place just 200 yards from a police station which is closed at night. Vandalism and violence has led to the . . . block . . . becoming known as the 'House of Horrors'.''

One resident, who has lived on the estate since the '60s is quoted as saying:

''We're so frightened. The dealers are the kind of people who, if they get a grudge against you, will burn you out''.

The article continues:

''Around five or six dealers, all about 30, use the stairwell that leads to the roof on the 18th floor to sell drugs to as many as 20 children at a time. Some of the children come from . . . nearly a mile away. Residents regularly find burnt tin foil and yellowed smoking pipes made from soft drink bottles—the detritus from smoking crack cocaine. Children as young as 13 have been seen with the older dealers. They come to the block because it has no security and has a 'great view'.''

It is not outwith the realms of possibility that contact with those children in Camden was made in and around the streets surrounding their school premises. But the clause will not catch the dealers because even if they make contact there, the dealing will be done away from the school.

What about playing fields, especially those that are far away from the school? There are schools in Chesham and Amersham that are in a cul de sac at the end of a long road. In such cases does ''in the vicinity of a school'' mean on the main road, or in the road leading to the cul de sac where the school is situated? Those are geographical matters that need to be made more transparent.

It is interesting to note that the briefings I have received on the subject do not all agree. For example, DrugScope pointed out one drawback in narrowing the provision. That organisation, like all of us, is becoming increasingly concerned about young people's use of drugs and therefore it does not oppose making it an aggravated offence to be found dealing near a school or using young people to run drugs. However, Drugscope thought the provision was symbolic, because some senior police officers have questioned whether there is a problem with dealers targeting schools, which is the argument of the hon. Member for Bassetlaw. They believe that only very small-time dealers operate around schools, and young people come into contact with the dealers through older siblings and friends.That is another challenge to the Minister's logic which, although I do not agree with it, I would like her to answer.

Transform Drug Policy Foundation believes the benefits of the clause to be entirely political,

''pandering to popular fears, stoked by tabloid media coverage''.

It stated:

''The regulatory impact assessment notes the 'concern expressed' about this problem''—

the language that the Minister used—

''and the 'anecdotal evidence' to support it.''

Transform believes that the provision springs

''entirely from newspapers, notably . . . the News of the World (to whom Tony Blair gave an exclusive interview announcing random drug testing in schools (22.02.04))''.

It backs up its views with quotations from the 1998 report of the Advisory Council on the Misuse of Drugs.

I disagree with the views expressed by Transform, but it is important that the Minister responds to them. She must set out her case for limiting the provision to schools and consider either widening it to include any building that may be accessed by young people, or to include the provision of dealing drugs to children.

I offer the Minister a golden opportunity to strengthen the clause and to deal with some of the issues raised by the hon. Member for Bassetlaw by not restricting it to schools. I shall listen to the Minister with an open heart and with optimism in the hope that she may provide a solution for all of us.

John Mann (Labour, Bassetlaw)

I shall make a couple of quick points on the amendment. First, I ask the hon. Lady and the Minister if they will give a definition of ''vicinity''. I smiled at the term ''arcade'' in the amendment, although I appreciate that it has nothing to do with forthcoming events in May. In the north of England, an arcade is a shopping precinct. According to any reasonable definition, references to being in the vicinity of an arcade would include most of the centre of Leeds and many other big cities in the north.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am not a stranger to the north. Shopping arcades are places where children hang around in large numbers.

John Mann (Labour, Bassetlaw)

The bowling alley in Bassetlaw is a carpet bowling alley. I have done some research and no children are known to have used it. I would not wish to give an average age, but it would certainly be a pensionable age. That would be an interesting aggravated supply. Perhaps it would involve amphetamines.

My basic point is aimed at the hon. Lady and the Minister. There is no particular reason for anyone to vote against the provision, but it does very little. The Government are underplaying their own success. There has been success in relation to drugs in and around schools and the use of drugs by school-age children. There is not a growing problem with children and drugs. Nobody can provide the evidence. My own research, which is only constituency based, demonstrates that over the past two years the use of cannabis among schoolchildren has declined. I cannot give a reason for that. I would love to say that it is due to changes in Government policy, but I think that there are probably other reasons—although it probably helps the Government's case because it suggests that the situation has not worsened following the change in policy. The decline is difficult to explain, but it has happened. I could give an amateur analysis of the reasons for that, but you will be pleased to hear that I will not do that now, Mr. Gale. In my area, judging by any quantifiable data, there is less use of drugs by school-age children.

I have asked to see the national statistics. The responses that I received show that no one can provide the evidence. I asked the Department for Education and Skills, through a written question, for notification of illegal drug possession by school pupils on school premises, but that information is not acquired and kept nationally. I asked about school exclusions for taking drugs. Those seemed to be the kind of add-ons that there would be if there was a growing problem. I wanted to see what the trend was. Again, those figures are not available. I asked the Home Office how many drug dealers were convicted of dealing outside schools in each of the past 10 years, but the information is not available because it is not collected centrally. I checked with the police in my constituency. We struggled to find any examples and yet there are a phenomenal number of drug dealing and supplying offences in Bassetlaw.

The hon. Member for Chesham and Amersham said more than half of what I wanted to say. Her illustration is something that I can relate to. The evidence shows that drug dealing is taking place in stairwells and flats that people are lured to. However, it is not taking place in the vicinity of schools, arcades or bowling alleys. There is the idea that drug dealers hang around schools and whisper, ''Here's a flat where you can come and get some drugs,'' but it does not work like that. It works by word of mouth, through the community. If I wanted to find out today where to get illegal cigarettes and illegal alcohol in my constituency, I am fairly sure that if I made sufficient phone calls, there would be a good chance that I could find somewhere selling them. I am also fairly sure that a few hours before—or after—the police would have been there to shut the place down.

I can also identify where heroin is being supplied. Every single premises or individual that I have identified from information given to me by my constituents has resulted in a conviction and a suitably long prison sentence for those involved. There have been a lot of those in the last year.

The drugs are in people's houses and flats. That is where people go to buy drugs. They ring up from phone boxes—I could say which ones—and the school pupils know which numbers to ring and where to go. We do not have the sort of prostitution problems that London has, but we have an equivalent situation with cards in phone boxes. If people go to a certain phone box at a certain time—the phone boxes are switched because of police monitoring—they will find out where to go. A firework is let off in my area to signify that new drugs have arrived. If a firework goes off at strange times of the year, people know that drugs are available, and they know which flats to go to.

Certain flats have changed from single occupancy flats to family flats because of the problem of people constantly knocking on doors demanding drugs. The throughput of single people leaving prison over a period of years meant that the flats were known as places liable to be selling drugs, which often created hassle for people who were neither selling drugs, nor drug users. That is how drug supply works.

It is a myth that people go in and around schools to build up their network of potential customers. It is a dangerous myth because many parents, including those in my area, believe it is true. They believe that there is a problem in schools, when the problem in schools is small. I shall cite another statistic; the statistics are available from the Chancellor of the Exchequer. The number of drug misuse deaths reached its height in 1995. It has gone down since then, and the Government should take some credit for that. It is a problem, but it is a small part of the drugs problem and it is not increasing.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Both the hon. Members for Bassetlaw and for Chesham and Amersham have provided ample support for my earlier contention about the effectiveness of the clause. I would say to the hon. Member for Chesham and Amersham that the behaviour of which she speaks would still be caught under section 4(3)(b) of the Misuse of Drugs Act 1971, as they are concerned with supply, which is a much wider application than most of the supply charges.

I am glad that the hon. Lady is not going to die in a ditch over the extent of the places that are listed in the amendment; there are substantial parts of my constituency where young people would love to have the opportunity to avail themselves of skate parks, arcades and bowling alleys, but we shall not dwell on that.

The hon. Lady does the Committee a service by drawing our attention to the narrow compass of the Bill, as it only applies to schools. She also does us a further service in highlighting the fact that there is no definition given of the term ''vicinity''. The question of what is in the vicinity of the school would lead to a fairly substantial body of case law. It would have been helpful, and I hope that she will consider this before Report, to insert into the clause a subsection to define exactly what the Government have in mind by the use of the term:

''in the vicinity of a school''.

Caroline Flint (Labour, Don Valley)

As I said in an earlier debate, the aggravating factor of selling drugs to vulnerable persons already exists, which includes those under 18. Therefore, in some of the circumstances that Members have given as examples, I would suggest that factor is already covered. For example, if someone was dealing on a school bus they would be dealing directly to young people and therefore the aggravated factor would be covered by that area. Similarly in other examples where there is direct dealing to young people they would be covered by that aggravated factor.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Would they be covered if it was a regular public service bus and not specifically a school bus?

Caroline Flint (Labour, Don Valley)

I suppose that then we would come to the vicinity argument, which is broader. That is why we are trying to add to the factors to be taken into consideration to protect the young people we want to capture in the provision. Let us be clear; the aggravating factor has to be attached to an offence. Someone will be arrested for drug dealing or intent to supply drugs. Therefore the aggravating factor will be applied in that context.

I understand the point that the hon. Lady is making with her amendment; that young people may be vulnerable in a number of areas. Young people gather in a host of other areas: skate parks; youth clubs; the cinema. We have tried in particular to address safer zones around schools because schools are a place where young people and children are by law obliged to attend. That is why we have a focus on schools.

I take the point made by my hon. Friend the Member for Bassetlaw about the way in which drugs are supplied. As I said, there may be examples of people being bold enough to sell drugs at the school gate, which is why our clause talks about the vicinity rather than just the school gate. I hope he understands that. My hon. Friend made a point about the success of the work that has been carried out; it has led to statistics that clearly indicate a decline in use in some areas. His remarks about cannabis use are interesting because some of the national figures show a decline and we have also seen a decline in the use of ecstasy, which is due to a number of factors.

More schools are attending in a serious way not just to illegal drugs but also alcohol and cigarettes. Beyond the schools other people have an involvement, so that wherever young people are, there are people to whom they feel they can speak. Having information that is self-accessible, such as ''Frank''—either the website or the phoneline—is also important. I do not think that information and education, if it is the right sort, is a green light to encourage the use of drugs by young people. In that context we need to remember that the majority of young people never use illegal drugs, which is to be welcomed.

However, we still have to be mindful of those children and young people who are involved in drugs for one reason or another and their vulnerability to becoming involved in drugs. My hon. Friend the Member for Bassetlaw will know—this issue was explored in the Second Reading debate and my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham) made the point appropriately—that for all sorts of reasons, factors such as deprivation and children not thriving at school and instability in home and family life can create a situation so that disproportionately there is more drug dealing and drug-associated activities in some communities than in others.

We have to acknowledge that factor if we are to tackle and target our attempts to reach those families and help them so that their children do not end up being vulnerable to pressures, whether they are to take drugs or for girls to become involved in early sexual activity and so on. We know from our research on young people who become involved in offending behaviour that often a number of risk factors are present that contribute to the likelihood of their becoming involved in offending behaviour. That is linked to their neighbourhood, their life chances and whether they are able to take life chances and opportunities in the future.

Ultimately, it will be a matter for the courts to determine, in the light of all the circumstances. The size of the school may be relevant. Unlike in urban, city areas—but probably like in the areas of my hon. Friends the Members for Barnsley, West and Penistone and for Bassetlaw—a number of schools in my constituency have huge expanses of grounds surrounding them. Indeed, the road and pavement route to one school in my constituency is the longest route for young people to walk, so they often take a particular footpath to get to school. People who want to sell drugs or at least to make contact with young people might think, ''Kids use this footpath as a route to school.'' People who are seen there may be placed under surveillance. Let us remember that they might then be arrested for an offence to which the aggravating factor could be applied. We shall issue guidance in the form of a Home Office circular and we shall consult widely on that. The Crown Prosecution Service will develop its own guidance as well.

I understand the desire behind the amendment and the point about other areas, but there are probably real practical difficulties in arriving at a comprehensive list of places where young people might congregate and to which the offence might apply. I remind the Committee that there is currently an aggravating factor of dealing to vulnerable young people. If they were at a cinema, a burger bar, a skate park or an arcade—the definition of an arcade was clearly outlined by my hon. Friend the Member for Bassetlaw—they would, we think, be covered by that factor. We have singled out schools because it is vital that young people can go to a place where they are expected to go by law without being exposed to the risks of drug dealing.

Angela Watkinson (Conservative, Upminster)

The Minister has referred to arcades, as the hon. Member for Bassetlaw did. In my constituency, there was an arcade in the other sense of the word, a place where there were slot machines. Known for drug dealing and drug supply, it attracted schoolchildren in the evenings and a lot of police attention and was eventually closed down. According to that definition, an arcade is exactly the sort of place where drugs would be available.

Caroline Flint (Labour, Don Valley)

I do not dispute the hon. Lady's example. As a number of other hon. Members have said, it is clear that there are various places in which drugs are supplied or, at least, where people can go to find out where to get them. I understand that. It is one reason why the Government introduced, through our legislation on antisocial behaviour, greater powers for the police to close down crack houses more quickly than was previously possible. The provisions should be seen in the context of the other powers to tackle problems in other premises that are used in dealing drugs, whether they are commercial or residential, or have become a magnet for drug taking and drug dealing.

Our premise is to examine how we can further protect young people from their vulnerability to being exposed to drug dealing in school areas. The provisions are not contingent on a person being arrested for drug dealing to a young person. If someone is drug dealing to an adult, but in the vicinity of a school, it is important that there is an opportunity, based on the guidelines, for that to be an aggravating factor in the offence.

I agree with what my hon. Friend the Member for Bassetlaw said. I certainly would like to pay tribute to those schools, and others, who work incredibly hard to equip our young people with the right knowledge and the confidence so that, when they are on their own and find themselves in a vulnerable situation, they will know how to handle it. That is the key aim of all our prevention work in that area. I believe that by supporting the clause, we can ensure that we send out a strong message of our intention to protect the most vulnerable.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the Minister for her reply. The clause, and the entire Bill, are both about sending out a message. The Minister said that we already have the aggravating factor for dealing to children. Why, therefore, do we need the clause at all? The truth of the matter is that the clause reflects the election timetable rather than being a serious piece of legislation. That is why we are trying to widen and strengthen it.

Caroline Flint (Labour, Don Valley)

Does the hon. Lady not agree that the aggravating factor of dealing in the vicinity, which would not necessarily apply to dealing direct to children, but to dealing in areas where children and young people are vulnerable, is important? That is the nature of the clause.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

It is a nice try, but that argument does not wash at all. The Minister knows that I am determined to ensure that measures are taken regarding people who are dealing to children or others, or dealing in the vicinity of a school. The fact that I would like the clause widened shows that I am concerned about vulnerable people and young adults. It is a shame that the Minister could not consider today, or go away and consider, other provisions that could be specifically included in the Bill to ensure that those areas are kept clear of dealers.

The Minister mentioned youth clubs. Youth clubs are the sorts of places that parents send their children to because they know that they are safe and supervised. However, if a dealer is in and around and making contact, that is a doubly heinous crime, because youth clubs are places like schools where one thinks one's children are safe, or where children should be safe. I therefore cannot understand the Minister's resistance to going back to the Department and considering widening the scope of the clause.

I am disappointed, in some ways, to hear that, yet again, the House of Commons and the Committee will not have the benefit of full and better particulars on the legislation. The Minister will issue guidance, and there will be a Home Office circular, and there will be consultation. The Minister said that she will be consulting widely. It would have been nice for that consultation to have happened before now. We should have had lengthy and detailed consultation about the provisions, to which we could all have had input. It is a shame that this issue is being used as a political platform when it should not be. It should concern us all, irrespective of our politics. However, the consultation will once again take place after the legislation and the CPS guidance are in place.

I am disappointed that the Minister is obviously resisting the amendment. She is even resisting the spirit of the amendment and is not willing to go away and think about it. I am pleased that she attempted to define vicinity. She defined it as cafes, apartments or houses near a school. What about club houses on playing fields that perhaps belong to the school but are not attached to it in any way? I want to explore this when we come to amendment No. 2. She needs to think about how vicinity of a school will be defined. Quite honestly, a clever defence lawyer will argue that half a mile down the road is no longer within the vicinity of the school even though that is a route that children take to it.

I hope that on Report the Minister can put some more flesh on the bones and not leave it again to a process that is outwith the Committee and the House. That is becoming patently obvious as we get into the details and entrails of clause 1. There are some important issues. We will think about how we frame our amendments on Report in the light of all our discussions. I shall invite my friends to vote on amendment No. 1 because I would like to show how strongly the Opposition feel that we should try to identify more premises where children could be vulnerable to this type of dealing and ensure that they are caught by the clause.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 9.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 25, in clause 1, page 1, line 18, leave out 'at a relevant time' and insert 'at any time'.

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to discuss amendment No. 26, in clause 1, page 2, line 1, leave out subsection (5).

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am afraid, Mr. Gale, that you and the rest of the Committee will get sick of the sound of my voice.

These amendments relate to subsection (3) of new subsection 4A, which is further qualified by subsection (5). The subsection that we have just been discussing has a further descriptor on it in so far as the first condition is that the offence was committed in the vicinity of the school at a relevant time. The current wording of the Bill seeks to limit the time frame in which the conditions for aggravation apply not simply to the vicinity but to the purposes to which the building is being put and the time at which the building is in use.

Subsection (5) defines the relevant time as

''any time when a school is in use by persons under the age of 18'',

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

The Minister does not seem to be entirely at ease with the provision. She wants to send out a clear message about schools and put it at the front of the Bill; indeed, it is so important, it is the first clause of the Bill. I agree with her, but she seems to be rowing back at every stage and watering down the provision more and more.

This subsection, which qualifies that the school has to be in use by people under 18 and that the dealing has to be perpetrated either an hour before or after the school has been used by people under 18, gives the dealer an easy exit route and ignores the realities of drug dealing. For the benefit of the hon. Member for Bassetlaw, I am referring to the Minister's view that there is dealing in and around schools. I keep seeing his face and it is clear that he does not agree and it worries him deeply. However, if it does take place, to add these further provisos is absolutely ridiculous, and I ask the Minister to consider deleting the subsection altogether. If a dealer arranges a meeting at a school late at night, he will not be subject to the provision of the clause. If he has a meeting with a child in the playing fields or the vicinity of the school early in the morning, say at 7 am, when only adults are around before the children have come into school, he will also escape the provision.

When we discuss the next pair of amendments, we will see another loophole and over-qualification of the offence. I do not understand why, having included this general provision in the Bill, the Minister is trying to restrict the application of it. What evidence does she have that setting such parameters will have any effect at all? Does she expect a large number of offenders to come under this provision? Does she have evidence that setting the parameters is sufficient to deter or affect any dealing activity, or that dealing in and around schools takes place only within an hour at either end of when a school is used by under-18s?

What if, as often happens, evening classes take place at a school? Any dealer plying his trade on school premises while adult classes are conducted in the school would escape the provisions, as the users of the school premises would be over 18. I fail to see the logic or sense of including qualifying times and ages, and I ask the Minister to delete them from the new section or give me the evidence base on which she is relying to show that these parameters are absolutely necessary.

It appears that the Minister is cutting off her nose to spite her face and, to use yet another phrase, tying at least one of her hands behind her back. She ought to float free and allow the more general provision to bite, rather than restricting it unnecessarily.

Caroline Flint (Labour, Don Valley)

The purpose of the provision relating to ''in the vicinity of a school'' is to protect young people under 18. That is why the new section not only takes into account school hours—whether they are 9 pm to 4 pm, or 9pm to 3.30 pm—but also recognises that a lot of activities in schools involving under-18s occur later in the evening and also in the school holidays. The premise of the clause is to protect young people when they are in the school either during the normal school day or at other times as well.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee F

Drugs Bill

Eric Illsley (Labour, Barnsley Central)

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

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

Question again proposed, That the amendment be made.

Caroline Flint (Labour, Don Valley)

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

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

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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

Caroline Flint (Labour, Don Valley)

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

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

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

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

Caroline Flint (Labour, Don Valley)

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

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

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

Angela Watkinson (Conservative, Upminster)

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

Caroline Flint (Labour, Don Valley)

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

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

Caroline Flint (Labour, Don Valley)

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

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

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

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

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 7.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

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

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

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

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

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

Henry Bellingham (Conservative, North West Norfolk)

It was a very posh school.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Henry Bellingham (Conservative, North West Norfolk)

To keep the boys out.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

No, to keep the girls in.

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

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

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

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

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

John Mann (Labour, Bassetlaw)

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

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

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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

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

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

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

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

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

Henry Bellingham (Conservative, North West Norfolk)

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

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

Caroline Flint (Labour, Don Valley)

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

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

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

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

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

John Mann (Labour, Bassetlaw)

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

Caroline Flint (Labour, Don Valley)

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

John Mann (Labour, Bassetlaw)

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

Caroline Flint (Labour, Don Valley)

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Caroline Flint (Labour, Don Valley)

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Amendment agreed to.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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

Eric Illsley (Labour, Barnsley Central)

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

'intends to use or uses'.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Subsection (7) states:

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

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

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

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

''intends to use or uses''.

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

''intends to use or uses''

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

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Crispin Blunt (Conservative, Reigate)

It is not a habit yet.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Two could make it almost a habit.

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

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

Eric Illsley (Labour, Barnsley Central)

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

Caroline Flint (Labour, Don Valley)

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

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Caroline Flint (Labour, Don Valley)

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

Angela Watkinson (Conservative, Upminster)

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

Caroline Flint (Labour, Don Valley)

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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

Amendment, by leave, withdrawn.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

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

Eric Illsley (Labour, Barnsley Central)

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

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

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

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

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

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

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

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

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

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

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

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

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

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

''notes and coins in any currency''—

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

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

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

''bearer bonds and bearer shares''

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

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

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

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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

Henry Bellingham (Conservative, North West Norfolk)

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

Caroline Flint (Labour, Don Valley)

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

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

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

Committee suspended for a Division in the House.

On resuming—

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Amendment, by leave, withdrawn.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment

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

'will apply upon Royal Assent'.

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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

Caroline Flint (Labour, Don Valley)

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

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

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

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

Amendment, by leave, withdrawn.

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

Question agreed to.

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

Clause 2 - Proof of intention to supply a controlled drug

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 31, in clause 2, page 3, line 3, leave out subsection (4B).

I see, Mr. Illsley, that you are shaking your head. This morning Mr. Gale gave us the impression that we could speak to general matters concerning a clause. I am happy with that or a clause stand part debate.

Eric Illsley (Labour, Barnsley Central)

Given the situation in which we find ourselves, for the moment let us speak to the amendment, then we will have a clause stand part debate, given that there is only one amendment to clause 2.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

It is a simple matter. I have used the device of removing subsection (4B), because I would like to hear what the Minister has to say about the burden of proof. I would prefer the burden of proof to fall on the defence. Once again, the matter will be dealt with not in the Bill but in regulation, but I would like to hear what the Minister says about the quantity of the drugs and the burden of proof.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The hon. Lady does us a service in introducing the amendment. Given my experience with subsection (6) of clause 1, I am with her in wishing to probe the Government. I am not necessarily seeking the withdrawal of subsection (4B). The wording at the moment is opaque, talking of evidence that

''is sufficient to raise an issue that the accused may not have had the drug in his possession with that intent''—

the intent to supply.

There is the question of the burden of the proof. The Bill's wording would, at the moment, make it, prima facie, appear that the burden falls on the defence. That need not necessarily mean that the defence would need the evidence. Inferences could be drawn by the defence from witnesses for the Crown. That is then the standard required to be demonstrated. If the proof of intent to supply, which is an essential part of the charge under clause 5(3), is not sufficient and raises a reasonable doubt, it would lead to acquittal on the intent to supply charge. Will a higher barrier be set that would allow a conviction of simple possession, but not possession with intent to supply? Will the defence be required to establish on the balance of probabilities that the person's intention was not to supply?

The use of the term ''to raise an issue'' and the fact that the accused may not have the drug, is somewhat novel and does not sit well. Raising an issue is not a term of art of which I am aware. Perhaps that is a term of art in English law. Although subsection (5) is needed, it could be much better drafted. I hope that the Minister will consider that between now and Report.

Caroline Flint (Labour, Don Valley)

The amendment relates to a clause that creates a presumption of intent to supply, where the defendant is found to be in possession of a particular amount of a controlled drug.

Just to set the context, we met a group of police officers working in the National Criminal Intelligence Service and in police forces throughout the country, all of whom were in one way or another involved in tackling drugs supply offences. One concern was raised in relation to how, on occasions, people involved in drug dealing would claim that their drugs were just for personal use to avoid a supply charge. I have also seen dealers on CCTV depositing small packets of a drug in the street and going back and forth, selling drugs and returning for their supply.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

My recollection is that possession under section 5 of the Misuse of Drugs Act 1971 is based on knowledge and control. Surely, in the situation that the Minister describes, although the person was not physically holding the drugs, they would still be in possession because they would have both knowledge and control of them.

Caroline Flint (Labour, Don Valley)

The hon. Gentleman is a lawyer. I will read what he said in Hansard. I was trying to describe how drug dealers operate to limit the opportunity for the police to come forward with a more serious offence for which there are more serious penalties. A number of the measures in the Bill are to do with closing some of the loopholes that the police have said need to be addressed and which in many cases foil them in bringing forward successful convictions.

The clause places an evidential presumption on the defendant, rather than a legal burden of proof. The presumption is rebutted where evidence is adduced that raises an issue, or arguable case, that the defendant did not intend to supply the drugs in his possession. If such evidence is raised, the prosecution will be required to prove beyond all reasonable doubt that the defendant intended to supply the drugs in his possession. With a number of such investigations other evidence may be available.

By introducing this provision we are not trying to limit the threshold, or say to the police that the threshold is enough. We would always want to look for a rounded body of evidence with which to bring forward an arrest and charge on an individual.

The level of possession that will give rise to the presumption will vary from drug to drug and will be prescribed in regulations approved by a resolution of both Houses of Parliament. In formulating those regulations, the Secretary of State will consult the Advisory Council on the Misuse of Drugs and a range of other people, too, including the Forensic Science Service, the police and the CPS, to come to an agreement on what the level should be.

I understand that in parts of the country the CPS and the police often look at the amount of possession informally. While that is not enshrined in guidance, they use it as a guide for whether they can take a case to court or not. That has not had the rigour of consultation and could lead to inconsistencies in different parts of the country.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The hon. Lady speaks about approaches taken by the CPS and the police in different parts of the country. What response did she get from the Lord Advocate and the Solicitor-General, who were presumably consulted on that matter as it relates to Scotland?

Caroline Flint (Labour, Don Valley)

I will seek the information that the hon. Gentleman needs.

I come to my next point. We sought advice on the issues surrounding the burden of proof. I will explain why we cannot accept the amendment tabled by the hon. Member for Chesham and Amersham and why the measures we provide offer greater scope for conviction for supply offences, while working within a framework that recognises that in some cases there could be a reasonable offence.

The purpose of the clause is to achieve greater consistency throughout the country when a defendant is charged with possession with intent to supply and clarify the point at which the quantity of drugs in a person's possession becomes above and beyond that reasonably held for personal use. We hope that there will be increased success in convicting dealers and that the proposals will contribute to disrupting their activities. As well as arrests and convictions, part of what we trying to achieve through looking at different ways of law enforcement is disrupting criminal activity. Anything that we can do to make street dealing harder is to be welcomed, whether it is done through the use of CCTV or other measures. We are trying to tighten the net around these individuals.

The amendment would prevent a defendant from being able to rebut a presumption that he intended to supply the drugs in question where evidence is adduced that raises an issue or argument in the case whether or not he intended to do so—for example, if the person is a known drug user. The amendment would require a court to do so, irrespective of considerable evidence raised to the contrary.

A person from a rural area who comes into a city area to buy their drugs might want to purchase larger quantities than we might consider normal for their own consumption. When we were working this matter through, we considered whether we should go down the route suggested by the hon. Lady or use our preferred option in the Bill. We felt that there could be circumstances where there needed to be an opportunity for a defence.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am grateful to the Minister for giving way. She has been generous with her time. When she says that it is for the accused or the defendant to raise an issue or arguable case—the latter words to do not appear in the Bill—is that the same as raising a reasonable doubt on the charge outlined in section (5)(3), the question of intent to supply, or is it different?

Caroline Flint (Labour, Don Valley)

I will look into that question and get back to the hon. Gentleman. If I cannot answer him this afternoon I will write to him with clarification.

The effect of the amendment would be to require a court, irrespective of considerable evidence raised to the contrary, to assume that a person intended to supply the drugs in his possession solely on the basis of the amount of drugs in question. The intention may be to create a reverse legal burden of proof, which would mean that the defendant would have to prove beyond reasonable doubt that he did not possess the drugs with intent to supply. We have taken advice on the matter and while we believe that we need to deal with loopholes that have been brought to our attention, the amendment would not be compatible with article 6(2) of the European convention on human rights, which enshrines the presumption of innocence.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I tabled the amendment because a fear was triggered in my mind by a briefing sent to us by Transform. That organisation felt that much of the debate was theoretical because its legal advisers had advised that the ability of prosecutors to activate a presumption of guilt for intention to supply is severely limited by the wording and technical detail in the Bill, and specifically by new subsection (4B), which I am seeking to delete as the vehicle for this debate. The advisers said that the caveat in new subsection (4B) means that if evidence is adduced—they have gone to a dictionary for the meaning of adduced, which is:

''To mention a fact as a supporting reason, piece of evidence etc.''—

the presumption of guilt of intent to supply will not be triggered.

Defence lawyers will inevitably use the caveat, which was included to make the Bill compliant with human rights legislation, as the Minister confirmed, to avoid the presumption by producing evidence that could even be in the form of a simple testimony from the defendant. The effect will be that the measure, which appears to be tough and which I support, will rarely if ever be deployed. Will the Minister answer that specific point, because it was the point of anxiety raised in my mind when I originally read the briefing?

Caroline Flint (Labour, Don Valley)

My understanding is that although the clause will allow a defence for an individual against presumption of guilt, it goes further than we have ever gone in that the person will have to give good reason as to why the presumption should not apply. The prosecution will still have to make a case against the person in court. I would hope that, in most cases, the amount of drugs on a person would not be the only piece of evidence. Many such individuals are charged with possession, so other information and intelligence would form the case against them.

I shall look into what the hon. Lady said in more detail. She is quoting from the Transform briefing, which I do not have in front of me, but I will have a look at it and compare notes. I do not accept her amendment for the reasons that I have outlined. The measure strengthens the opportunities to charge people with intent to supply. That loophole has been brought to our attention, but when we have shared concerns with the police and others, they have been happy.

The Lord Advocate and Solicitor General for Scotland are also happy with the clause. The hon. Member for Orkney and Shetland raised an issue about what ''raises an issue'' actually means. I understand that the term was used in the House of Lords this year in the case Sheldrake v. the Director of Public Prosecutions, Attorney-General's reference No. 4 of 2002—I shall look that up in whatever reference book is necessary. Apparently, the House of Lords refers to it in terms of raising an arguable case. That sounds like a lot of legal information to me, which the hon. Gentleman may be more aware of.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Does the hon. Lady believe that it is appropriate to import into Scots law, through a United Kingdom statute, a term that is a term of art in England only?

Caroline Flint (Labour, Don Valley)

I will take some advice and come back to the hon. Gentleman on that one so that I am absolutely clear about exactly what I may or may not be agreeing to.

The measure has a number of advantages. Not all defendants will be able successfully to raise the issue. It will send out a clear message to dealers, whose current dealing methods may be disrupted. While helping to understand the issues around setting thresholds, I hope that it might also improve consistency as to when those in possession of drugs are charged with intent to supply. We know that the police see the approach as being worth while; in some areas, as I said, the police have agreed informal thresholds with the CPS. We are seeing if we can give a bit more formality to that, to get more forces working to tackle individuals in this way. Therefore I call upon the hon. Lady not to press her amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

There is no doubt that this proposed reversal of the evidential burden raises some legal problems. In article 6 of the Human Rights Act 1998 it is stated clearly:

''Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.''

If the clause is enacted, I need to make sure that its apparent reversal of the burden of proof—meaning that individuals are presumed guilty until they prove themselves innocent—does not fall foul of that in any way.

I return to the term ''adduced'', which I know the hon. Member for Orkney and Shetland is particularly hung up on, as well as the phrase ''to raise an issue''. Again, we seem to be coming back to language. Yet that is, after all, what scrutiny of legislation is all about—to examine the language and to examine carefully whether it may work in the way we intend, or against us. I am not entirely unconvinced that the brief I have received from Transform is correct. I will withdraw this amendment on the understanding that, once again, the Minister will look at this area, as I still have worries about it despite what I heard her say. It is a very tough measure, which I approve of—and I want to ensure that it bites.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

On this question of workability, it is perhaps appropriate that I explain a little further my concern about the importing of this English term from the Sheldrake case into Scots law. The decision in Sheldrake, albeit a decision of the House of Lords, will not be binding in a Scots court. It is still open, then, to Scots courts to come up with their own construction of what would be meant by this term—which may be different. That, of course, is always open to the courts, but where we already have an established body of case law on terms that are not novel to Scotland—and when this part of the Bill is to apply UK-wide—why not use it? Why not just say ''led'' instead of ''adduced'', and say ''establish a doubt'' instead of ''raise an issue''?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

That is a good intervention with which I can agree. This just reinforces that we would like the Minister to reconsider the subsection and, if possible, write to us during the course of the passage of the Bill—before Report and Third Reading. I know that will put a burden on her and her office at a time when the legislative burden is huge, but it is important as we have some severe doubts about the efficacy of the clause. We would like to see it work and therefore would particularly appreciate the Minister giving us that undertaking. I will give way, if she is willing to give it.

Caroline Flint (Labour, Don Valley)

I give an undertaking to write to the hon. Members on these issues.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the Minister and, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I said earlier that I felt there was no real point in having clause 1 of the Bill. I feel rather more strongly about clause 2. While there is an element of it not advancing the law in any way—much the same was true of the previous clause—I see a number of dangers arising from clause 2. I can only see one advantage, to my mind; that it may reduce the amount of police time spent in court. At the moment, where a charge is laid concerning the intent to supply, it is normal to bring expert witnesses—who are normally drugs squad officers—to give evidence on what would constitute dealer quantities, and what inferences could be drawn from the possession of certain other articles.

It is possible that in making a presumption such as that, we would avoid the attendance of drug squad officers, particularly in summary cases. Although I can see the attraction of that, it may not necessarily be an advantage. It is a big advantage to the drugs squad officers to give evidence in court and to have the experience of being cross-examined on their experience by solicitors, advocates or barristers in a court. It keeps them sharp and allows them to build up a level of experience—I speak as someone who has been involved in training police officers in such areas in the past—that they are then able to use to much better effect on the big occasions and the big cases in the High Court, when it really matters.

The real danger that I can see in the clause is on the practical side. I foresee that, with the best will in the world, busy police constables working in the streets will come across cases in which there is a substantial amount of drugs but that substantial amount falls short of the level that is to be prescribed by the Secretary of State in order. In those circumstances, the police officers will think, ''Well, it is not a dealer quantity according to the regulation, so I will just charge him with simple possession.''

The provision will bring with it a laziness of attitude, which will mean that ultimately the community is not better served. Speaking from my own experience of having said to police officers, ''Go and look for further evidence; I am looking for evidence of this, that or the other'', I know that they will not necessarily do that of their own volition. I am concerned that if we operate with a presumption of this sort, a busy constable in the street or a busy duty sergeant will take the attitude that if the amount does not come up to the prescribed level, they will go for simple possession. By the time the matter is then reported to the prosecuting authorities, the evidence that might have been there will no longer be there.

The reason why I do not think that the provision achieves anything new is that existing case law says that simple possession of a substantial amount of drugs is sufficient for a court to infer intent to supply. That has been the case for some considerable time. If that has changed over the past four years, when my interest in those matters has been less vigorous than it otherwise might have been, I am willing to hear about it. However, that was certainly the position when I worked on those matters regularly. In such cases, the onus is on the defence to produce evidence that there was no intent to supply.

The Minister referred to people living in country areas. That brings me to an instance that I recall from my own days as an enthusiastic boy prosecutor. I was sent to Fort William sheriff court to deputise for the procurator fiscal. First in the court list that morning was an accused who had an enormous soap bar of cannabis resin. He was offering to plead guilty to the simple possession charge. With my customary good humour on a Monday morning, I growled at his defence solicitor that it must be possession with intent to supply or nothing, and went about my business.

However, when I spoke to the reporting officer, who was a drugs squad officer, he said that the accused lived in a very remote part of the north-west highlands and that he would have to say in court, if he were asked, that it was by no means unusual for people in those circumstances to buy substantial pieces of cannabis resin to take for long-term, but personal, use. He said that he would have to say to the court that he could not exclude that possibility, and so we did not have a strong case for intent to supply. The resin was all in one lump, rather than broken up. There was no cling film or any other paraphernalia that normally would be associated with such intent.

I raise that because it would still be open to that person to adduce evidence, to use the language of the Bill, that the drugs were not for personal supply. However, if that is to be the case, surely an awful lot more such cases will go to trial, although, on a common-sense view, the matter could be resolved a lot more easily and with less cost to the Legal Aid Board.

There will be a real difficulty for the Government when it comes to establishing what level of drugs will be stipulated in the order. The Minister says that there will be different levels for different drugs; that is common sense. However, as is shown by the situation that I have just outlined, there will be different situations in different towns and cities. If we get the level wrong, the traffic of cases through the courts will be affected enormously. Given the geographical differences, I cannot see how we could get the issue right.

If there were a real lacuna or gap in the law, I could see that this might be worth trying. However, the law as it exists is perfectly capable of dealing with all the issues if the police and the prosecution services are given sufficient resources to give each case proper consideration and preparation before it goes to court. If there is a problem, I suspect that it stems from a lack of resources, and the provision will not help that. If anything, it might make that worse.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I should like to raise a couple of issues. The Minister mentioned that no wide consultation on the clause had taken place. On what evidence does she base the need for the clause? I ask because I think that I have incomplete information on the trends in the number of offenders charged with unlawful supply and with possession with intent to supply unlawfully. The figures that are available to me come from the Home Office statistical bulletin for 2001-02, which was prepared, I think, by two people on 13 September 2004. The numbers of those charged in 1992 with supply offences was 2,190, and that number rose steadily each year to reach 7,230 in 1998. It then fell in each subsequent year, dropping to 4,870 in 2001 and 4,830 in 2002. I should be very interested to know the trends for 2003 and 2004.

The figures for those charged with intent to supply unlawfully are similar. The number rose to 9,610 in 1998, before falling steadily in subsequent years to reach 5,980 in 2002. That tells me that we are not being so successful in catching people guilty of being in possession with intent to supply and of unlawful supply. I am hoping that the Minister will reassure me that the provisions will improve those statistics. There is no doubt that the incidence of drug taking and the amount of drugs coming into this country over that period have increased, whereas the amount of people successfully prosecuted appears to have decreased.

The other point is again about timing. The amount of drugs that will give rise to the presumption will be prescribed by the Secretary of State in regulations. Once again, the Committee does not have the regulations in front of it—not even in the form of a draft—so that we can see what the quantities are, and what will be forthcoming. The Secretary of State has to draw up those regulations. They can come into effect only after consultation with the Advisory Council on the Misuse of Drugs and, I presume, consultation more widely, too.

How does the Minister envisage the timing on the clause? How far into the future are we looking? It appears to me that this is a paving clause, and we have a lot of stages to go through before it will bite. If the statistics that I quoted are correct and we are failing to catch dealers in the way that is anticipated, the clause cannot come into operation quickly enough. I hope that the Minister can deal with those two points.

Caroline Flint (Labour, Don Valley)

We have consulted the police. As I said, we held a forum with my right hon. Friend the Prime Minister, in which we brought together quite a number of people from different parts of the police service to discuss issues of law enforcement in relation to drugs. We also consulted the Association of Chief Police Officers on the issues relating to the clause.

We consulted the Advisory Council on the Misuse of Drugs about the thresholds, because we have to on a statutory basis. We are looking to consult further with ACPO, the Forensic Science Service, the National Treatment Agency for Substance Misuse, DrugScope, the Crown Prosecution Service and other experts in the field to try to come forward with the thresholds.

I understand the hon. Lady's point about offences, but it is not always clear from the figures how well we are doing on some of the issues. For example, disruption makes a huge difference. Over the past 12 months or so, we have been trying to get addicts into treatment, and I know through activities in which the police were involved that some operations in communities have disrupted supply and made it harder to engage in an active drugs street market. As a result, more people are presenting themselves for treatment, including, some people with addiction problems who are involved in street-level dealing. The issue is not always that clear.

I have looked at the figures, too. In the past year, for example, we have established five regional branches of the Asset Recovery Agency. At least five middle-market drugs units have been set up, often involving police and Customs and Excise. Also, there is the Serious Organised Crime Agency. There have been some better successes in drug law enforcement, and that is a reason why we are not complacent about the issue. We are considering issues on which the police have come to us. It is not that the measure will be a panacea, but the police feel that there is a loophole, and that the measure will be helpful to them in pressing forward with arrests and prosecutions.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I presume that the Minister is agreeing with me that the record shows that the number of offenders convicted has dropped dramatically since its peak in 1998. That in itself is worrying. I hope that she is reassuring me that the Government have recognised the failure in relation to dealers, and that she hopes to rely on the clause to help improve the conviction rate for suppliers.

Caroline Flint (Labour, Don Valley)

In a number of areas, we are considering how we can improve our tackling of level 1, 2 and 3 drug crimes. Towards the end of last year, I was pleased to help launch the London-wide middle market drugs unit, which brings together police officers and Customs and Excise to work at level 2 drug activity.

There are also our measures regarding crack houses, of which around 200 closed last year. At this moment ''Operation Crackdown'' is in progress, a three-month intensive exercise, involving many police forces throughout England and Wales, that focuses on drug-dealing in the community, closes down drug operations when they are on premises, and hopefully will result in more arrests and convictions.

We are conscious that we must ensure the police are provided with resources. There are more officers than ever before. Community support officers are also important in that regard, because at street level there are often residents living in fear who now feel they can share information with the authorities and provide wider evidence of drug dealing in their communities.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Will the Minister give way?

Caroline Flint (Labour, Don Valley)

I have given way twice to the hon. Lady, and I have answered her point. We are not complacent, which is why we have already set in train a number of measures, some of which, as in this case, have come directly from the police themselves. We think the clause is important.

Other issues have been mentioned. I will look at what has been said in the transcript of the Committee's proceedings, and see if there is anything further I can help with. We will commence consultation as soon as possible, and, while allowing for reasonable time for consultation and consideration of views that we receive, we do not anticipate any huge delays. We will ensure that hon. Members, particularly those from the Opposition, are given full information on what will be asked in that consultation, and will be happy to discuss the deliberations from it.

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

The Committee divided: Ayes 8, Noes 1.

Clause 3 - Drug offence searches: England and Wales

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 32, in clause 3, page 3, line 31, leave out 'the appropriate'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss amendment No. 33, in clause 3, page 3, line 34, after 'inform', insert 'in writing'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The clause significantly enhances the powers of the police with regard to dealers who swallow drugs or conceal them in their body cavities. I understand that is an increasingly common practice among dealers, who wrap substances such as crack cocaine in clingfilm and hide them in their mouths, or indeed in other parts of their body that would probably deter the Minister and me from searching for them, but thankfully do not deter the police and others. Subsection (2) ensures that a drugs-only intimate search may only be undertaken where the person concerned has consented. However, once again there seems to be over-qualification. New subsection (3A) provides that

''the appropriate consent has been given in writing''.

That has been grouped with my amendment No. 33.

Will the Minister clarify when consent would not be appropriate? For clarification and future interpretation, what would constitute appropriate consent? Would it be sufficient to sign a form? Is verbal consent sufficient?

My proposal, to insert ''in writing'', would allow a defendant or offender merely to sign a form indicating their consent. It would be a matter of course in the police station or wherever. Adding the words ''in writing'' is a vehicle to ensure that there are no loopholes that would allow the process to be challenged at a latter stage. In (3A), we say that

''A drug offence search shall not be carried out unless the appropriate consent has been given in writing''.

I have taken that clue of ''writing'' and tacked it on to (3B), because, if the consent were given in writing, it would be there for all to see and be less likely to be disputed in court. So why not deliver a copy in writing to the person who is the subject of the search and have him signify his consent in writing? Would that not be a simple and practical solution? I hope that the Minister finds it helpful.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I can certainly support amendment No. 33. It seems to me sensible to clarify that consent should be put in writing. It would, I presume, be the sort of thing that would be put into a form that would be completed and signed as appropriate. If it were not signed, it would be made clear that the opportunity to sign had been given and that the person had not taken it.

I am not so sure about amendment No. 32. There will be occasions when it is not necessarily the person to be searched who is in a position to give consent and situations where the capacity of the person to be searched is in doubt. So it is appropriate that we retain the words ''the appropriate'' in the clause.

Caroline Flint (Labour, Don Valley)

Amendment No. 32 would remove the words ''the appropriate'' from new section 55(3A) of the Police and Criminal Evidence Act 1984. That would mean that a drug offences search could be undertaken only with the subject's consent, rather than with appropriate consent. The change is important, because appropriate consent is a defined term in PACE. Section 65(1) of PACE defines appropriate consent as meaning:

''in relation to a person who has attained the age of 17 years, the consent of that person; in relation to a person aged 14 to 16, the consent of that person and his parent or guardian; in relation to a person aged 13 or under, the consent of his parent or guardian.''

The definition is just to account for those situations, but it is a widely used term in PACE. For example, it is used regarding the taking of fingerprints, intimate and non-intimate DNA samples and photographs where powers can be exercised with consent, as long as it is appropriate consent. I hope that the hon. Lady will agree to withdraw that amendment, because the effect of it would be to remove the safeguard of parental or guardian involvement in giving consent for those aged 16 or under on drug offence searches.

Amendment No. 33 would require the police to inform the suspect in writing if they intend to carry out a drug offence intimate search. The clause already obliges the police to give that information to the suspect but, as has been pointed out, it does not require it to be given in writing. That does not prevent the police from supplying that information in writing if they choose to do so. We felt that such a requirement would introduce unnecessary bureaucracy into the process. Adequate safeguards are already built in, because the fact that the authorisation was given, the grounds for it and the fact that consent was given prior to the search must be recorded in the suspect's custody record. The suspect can, of course, obtain a copy of his custody record. In light of those comments, I hope that the hon. Lady will not press that amendment either.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful to the Minister for clarifying that point. It is a perfectly reasonable and adequate explanation. Far be it from me to add a further burden of regulation or form-filling on the police. However, as the original consent has to be given in writing, I thought that it would be easy to photocopy or duplicate it and pass it to the defendant so that, at a future date, there was no doubt whatsoever about the authorisation and the appropriate consent being given, when it may be challenged in court. It is a minor point which I thought we should probe in Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Gillan: I beg to move amendment No. 34, in clause 3, page 4, line 12, leave out from 'draw' to end of line and insert

'any appropriate inferences from the refusal'.

I will not detain the Committee. Perhaps I am again dancing on the head of a pin, but I do not know what inferences could be deemed to be improper if they are being drawn by a court; a judge or a jury. I feel that it fetters the discretion of those bodies, therefore to replace the wording by

''any appropriate inferences from the refusal''

would broaden the scope of the proposal and leave it entirely to the discretion of the court, the judge or the jury. It is a simple amendment, to which I hope the Minister will respond.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am a little unclear about what the effect of the proposal would be. My difficulty is that I do not know whether I would join the hon. Lady on the head of a pin as I cannot see how the amendment would change things in any material way. At present, it is open to any court to draw such inferences from the refusal as appear proper, to use the same form of words as the hon. Lady. Therefore, why should the amendment be in the Bill?

Caroline Flint (Labour, Don Valley)

Amendment No. 34 would change the wording of the clause. It would not affect the working of the measure, or make any difference to the ability of the court to draw inferences from a refusal to consent to an intimate search in connection with a drug offence without good cause. The wording in the clause reflects on the other types of language used in legislation; sometimes we are prisoners of what has gone before.

One reason for our wanting to maintain the existing wording is that it is similar to a provision in section 62 of PACE, which allows adverse inferences to be drawn from a suspect's refusal to provide an intimate sample. It would be unhelpful, therefore, for the two provisions—one on providing an intimate sample and one in relation to an intimate search—to appear in the same part of PACE but for different wording to be used. We would not want people to think that there was a different meaning. The wording is consistent with that and with other adverse inference provisions such as section 34 of the Criminal Justice and Public Order Act 1994, which permits adverse inferences to be drawn from a defendant's silence in a police interview. I therefore ask the hon. Member for Chesham and Amersham to withdraw the amendment.

Crispin Blunt (Conservative, Reigate)

Does the word ''adverse'' appear in the legislation that the Minister referred to?

Caroline Flint (Labour, Don Valley)

No.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

To take up the cudgels on that point, my hon. Friend is right. The clause as drafted states ''may draw such inferences'' from the refusal as appear proper, not ''such adverse inferences''. We may accept an amendment from the Minister to insert the word ''adverse'', which would be much clearer; it was part of the thinking behind this small amendment. I will be happy to withdraw it if the Minister will undertake to have a quick look at the clause and ensure that the drafting is absolutely tight.

I am delighted that the Minister has accepted some of our amendments, but it proves my point that the Bill is hastily drawn legislation that has not had its t's crossed and its i's dotted. I do not want to appear ungrateful, but there are more than a few doubts and we are only on clause 3. I am not trying to score political points, I just hope that the Minister will double check that there are no small omissions from the clause and that it will achieve her objectives.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Mr. Hepple.]

Adjourned accordingly at fourteen minutes to Five o'clock till Tuesday 1 February at ten minutes past Nine o'clock.