MISUSE OF DRUGS BILL

HL Deb 09 February 1971 vol 315 cc60-110

5.10 p.m.

THE MINISTER OF STATE, HOME OFFICE (LORD W1NDLESHAM)

My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(Lord Windlesham.)

BARONESS WOOTTON OF ABINGER

My Lords, before the Question is put, I wish to express some concern about the way in which the business of this House has been arranged. The Committee stage of this Bill was on the Order Paper for last Thursday for at least a week previously, and everyone concerned with the Bill made their arrangements accordingly. At half past four on Thursday afternoon we were discussing the first Amendment only when we were informed that the usual channels had agreed that the Committee stage should be adjourned at six o'clock until to-day.

Channels are, I think, means of communication, and whoever the "usual channels" may communicate with—presumably with one another—no attempt was made to communicate with persons interested in the Bill, all of whom had made their arrangements for the Committee stage last Thursday. There are 59 Amendments down to the Bill, 27 of them, I regret to say, in my name, and this short notice rearrangement was extremely inconvenient.

May I also point out that, owing to the postal strike, anybody who did not happen to be here at the right moment on Thursday, or does not happen to be here to-day, could have no possible way of knowing that this business was to be taken to-day. Finally, I should like to say that if this rearrangement was absolutely unavoidable I should have thought that the least that could have been done would be to give us the first place on the Order Paper to-day.

EARL ST. ALDWYN

My Lords, I sympathise with the noble Baroness in this matter. What happened was that on Thursday last there were representations from noble Lords opposite that the Committee stage should be curtailed. The discussions were conducted through the usual channels, and it was decided that the Committee stage should be adjourned at six o'clock. I am more than sorry that the noble Baroness was not aware of this or was not consulted previously.

With regard to the position of business to-day, I must admit that I was in some difficulty. As the noble Baroness has mentioned, owing to the postal strike it is difficult to communicate with people. I thought that if I put this Bill down for first business to-day (which is the normal practice) a number of people who were not aware of the arrangement on Thursday and had an interest in later Amendments, would not know of the arrangement for to-day. I also thought that noble Lords who were involved in the business which was already down for to-day might equally not know about the arrangement. Therefore, I thought that in the long run it was better to leave the existing business as it was and to insert the new business at the end. This would give more time for noble Lords to acquaint themselves with the arrangements.

We have done our best to keep your Lordships informed. The Press have been helpful about printing the information as to forthcoming business in your Lordships' House, and the B.B.C. have also helped by mentioning forthcoming business at the end of "To-day in Parliament "and" Yesterday in Parliament". But I am afraid that in the circumstances there will be occasions when inconvenience will be caused to your Lordships. I am sorry that this should be so.

LORD BESWICK

My Lords, I think it is only fair to say that if any blame is to be taken here I ought to take a share of it. I was part of the "usual channels". But I am bound to say also that the noble Earl faced a problem which I myself faced on occasions; namely, of satisfying everyone, everybody having a different idea as to what should be the solution. I thought the noble Earl was being fair when he said that he would announce the arrangement at the Thursday Silting, the point being that those who were interested in this matter would be present in the House and, if there were any objection, it could be voiced at the time the announcement was made. I can only say that I know that the noble Earl was anxious to help and to serve the House as a whole. I realise that it is not always possible to achieve that objective.

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD DERWENT in the Chair.]

Clauses 3 to 5 agreed to.

Clause 6 [Restriction of cultivation of cannabis plant]:

On Question, Whether Clause 6 shall stand part of the Bill?

LORD FOOT

I shall not detain the Committee for long, not because I think this question unimportant, but because I think it can be dealt with quite quickly. Your Lordships will see that the object of this Amendment is to eliminate Clause 6 altogether. Clause 6 creates new law. It provides that: it shall not be lawful for a person to cultivate any plant of the genus Cannabis". My objections to this clause are three in number: first, that I believe it involves a considerable danger of the wrongful conviction of innocent people; secondly, that I think it is unnecessary; and thirdly, that it raises what I might describe as a theological issue. I am rather sorry that nobody is sitting on the Bench of Bishops to help me out in this matter, because cannabis and cannabis resin are not, as I understand, artificial man-made things: they are in fact of natural growth and grow in many parts of the world.

I presume that the earliest record and reference to cannabis that we have is in the first chapter of Genesis, although, of course, it is not mentioned specifically by name. Your Lordships will remember that it was on the third day of Creation that God Almighty decided to create flora. As your Lordships may remember, the circumstances are recorded in Verses 11 and 12 of the first chapter of Genesis. Verse 11 reads: And God said, Let the earth bring forth grass, the herb yielding seed, and the fruit tree yielding fruit after his kind, whose seed is in itself, upon the earth: and it was so". Verse 12 reads: And the earth brought forth grass, and herb yielding seed after his kind, and the tree yielding fruit, whose seed was in itself, after his kind"— and the words to which I direct your Lordships' particular attention are the concluding words: and God saw that it was good. So far as cannabis is concerned, obviously that is an opinion which is not shared by Her Majesty's Government, nor, I may say, by Her Majesty's Opposition, because this clause appeared in their Bill which the present Government took over.

This is not perhaps the first time that the Tory and Labour Parties have found themselves in what, quite literally, might be described on this occasion as "an unholy alliance". The Government clearly do not share the view that this was a good thing, because they have provided in the Bill that if anybody seeks to carry on the good work he will be liable to a maximum penalty of 14 years' imprisonment—that is, unless the person concerned can, under, I think, Clause 28, show that he did not know what he was doing. I can only infer from that that the view of Her Majesty's Government is that the Almighty did not know what he was doing in the first place. I have not the assistance of the Bishops, and I have not even the assistance of the noble Lord, Lord Soper, to-day, who could have helped us on this matter.

A NOBLE LORD: You have a reverend Lord behind you.

LORD FOOT

The only reason I did not refer to my noble friend was that I thought any assistance I could get from the opposite side would be of greater help than assistance coming from my own Benches.

May I turn to the more mundane objections to this clause? They are these. I said that I think there is a serious danger here of innocent people being wrongfully convicted, because I presume—I am not an authority on this matter—that it is perfectly possible to cultivate cannabis inadvertently, even in this country, without knowing what it is or what you are doing. Therefore there is always the risk that somebody may engage in the cultivation of cannabis and commit an offence, without being aware that he is committing an offence at all. Clause 28 provides that with regard to various offences under this Bill, and in particular this offence of cultivating cannabis, proof of lack of knowledge shall, in certain circumstances, be a defence in proceedings brought under the Bill. I am not at all satisfied, in this context, that that clause does in fact provide protection against the innocent cultivator of cannabis. I say that because the way in which Clause 28 is framed shifts the onus of proof to the accused person, so that it is up to him to prove positively that he did not know what he was doing, and it requires him to prove a negative.

May I quote the relevant words of the relevant clause? They are these: Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused "— now I leave out some words which are irrelevant, (b) shall be acquitted thereof— (i) if he proves"— and if I may introduce the word there "affirmatively", because that is what it means, that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug;". So if somebody inadvertently grows cannabis in his garden—and I gather that this is something that does in fact go on, although the quality of the cannabis (and this may be some reassurance to the noble Baroness, Lady Summerskill) for drug-taking purposes is very poor indeed—and is found to be doing so and is prosecuted, he then has to prove the negative: that he did not know that this was cannabis. It will be immediately apparent to your Lordships that in some circumstances it may be very difficult for a person, however innocent, to prove positively to the satisfaction of a court that he did not know that what he was cultivating was cannabis.

The second branch of my more mundane argument is that this clause is really unnecessary. I say that because if your Lordships will look at Clause 4(1) and (2) you will see that that deals with production. It provides that: Subject to any regulations under section 7 of this Act for the time being in force,"— those are the regulations giving power to the Secretary of State to issue licences— it shall not be lawful for a person— (a) to produce a controlled drug;". Then, if you go on to subsection (2)(b), you will see that it is an offence for a person to produce a controlled drug, or to be concerned in the production of such a drug in contravention of that subsection by another. Why is it necessary to introduce a special clause making it an offence to cultivate cannabis? Surely if you cultivate cannabis you are automatically producing it. I do not see the necessity for this provision.

The other curious contradiction, or anomaly, is that if you are going to make it an offence, punishable by a maximum sentence of 14 years' imprisonment, to cultivate cannabis, why is there no corresponding prohibition against the production of the plants from which you get the hard drug, heroin? Why is there no specific prohibition in this Bill against growing the poppy, from which you get morphine and from which you get the heroin derivative? Those are the reasons why I suggest that this clause is both unnecessary and, in one sense, if you are going to have it at all, does not go far enough.

5.27 p.m.

BARONESS SUMMERSKILL

I find it difficult to understand what prompted the noble Lord to put this Amendment on the Order Paper, because leaving out Clause 6 would enable the unstable, and those with criminal tendencies, to cultivate cannabis. On the debate that we had on the first Amendment, I thought the Committee had made it clear that they did not favour Amendments which took a lenient view of the consumption of cannabis and the traffic in cannabis. Therefore, I feel that it is not necessary for me to emphasise the danger of this Amendment. I think that the noble Lord, on thinking it over, felt a little remorse and tried to explain that the reason why he had put it on the Order Paper was to protect the poor gardener who, thinking he was planting sweet peas, discovered cannabis growing in the garden. I do not think the noble Lord should worry. He should know the legal profession, and I am sure that we have enough confidence in our lawyers and courts to know that if a simple individual went to them and said, "This come up when I thought a different plant was coming up", they would recognise that it was not a deliberate piece of cultivation on his part which had resulted in the cultivation of this evil drug.

I ask your Lordships to forgive me if I quote from a report made last week by the International Narcotics Control Board. This report has been published since we last met. Having heard this report—and It think we should put it on record—I think that all the Amendments on the Order Paper should fall, including, with all respect, the twenty-seven Amendments standing in the name of my noble friend Lady Wootton.

The Times reported this review, under the heading, "Cannabis habit said to be nearly an epidemic", on February 6, and of course the report was from Geneva: Widespread indulgence in cannabis has now reached almost epidemic proportions and is still increasing sharply, particularly among the younger generation, according to the International Narcotics Control Board. Its latest annual review says that, while progression from cannabis to heroin may not be inevitable, there is evidence that many heroin consumers have begun with cannabis. While the existence of a process of transition from cannabis to other psychotropic substances, including LSD, had also been noted, the board says that for many people the ultimate progression is still to heroin. The review emphasizes that the public debate on cannabis is clouded by misunderstanding because of the 'wide variation in quality of the material consumed as cannabis by different people in different places'. Because of conflicting views about the degree of danger attached to the consumption of cannabis there is a dubiety of public opinion 'which fails to provide a corrective to heedless attitudes". These, the board says, arise more readily where cannabis is relatively novel than in countries such as India, which 'are alert to its dangers to the individual and to society '. The board expresses particular concern over the drug situation in Asia. It reports indications that opium, morphine and heroin traffickers are turning their attention to south-east Asia. Abuse of drugs is now geographically more widespread, includes much larger numbers, and has invaded all levels of society in the countries affected. The International Narcotics Control Board did not introduce any amendments of the character which we see on the Marshalled List to-night; their review indicates that they would be opposed root and branch to every one of them. It is quite clear that there is a tendency in some parts to feel that the youth of the world must have its way, and that if it wants new experiences then the older generation should not be bigoted and conservative; that young people must be allowed either to cultivate cannabis or to try it out in their rooms. The International Narcotics Control Board have made it quite clear that this is a danger, particularly in those countries which are not accustomed to the evil effects—

BARONESS WOOTTON OF ABINGER

The noble Baroness—

BARONESS SUMMERSKILL

I am just finishing—and Britain is one of these countries. Therefore I ask your Lordships to reject this Amendment and to turn your faces with me against any effort to take a lenient view of the traffic in cannabis.

BARONESS WOOTTON OF ABINGER

I should like to call the noble Baroness's attention to the fact that there is no Amendment on the Marshalled List which would make it legal to try cannabis in one's room.

BARONESS SUMMERSKILL

I can only say that we are discussing an Amendment which will make it legal for a man to grow cannabis in his back garden. I presume that he does not leave it in his back garden; he takes it into his room and tries it out.

LORD BEAUMONT OF WHITLEY

Will the noble Baroness forgive me for correcting her? The Amendment is not to make it legal: it is to keep it legal.

LORD KILBRACKEN

I should like to support this Amendment, but almost entirely on the grounds that this clause, as the noble Lord, Lord Foot, mentioned, is completely unnecessary. There was one point which he did not make: that, according to the interpretation clause, to produce a controlled drug includes the production "by manufacture, cultivation or any other method". It therefore seems quite clear that cultivation of any controlled drug is already illegal under Clause 4. Like the noble Lord, Lord Foot, I do not understand why cannabis is singled out for mention here when the garden poppy, for instance, contains 25 per cent. morphine. I cannot understand why cannabis in particular should be prohibited.

LORD HAWKE

If this clause goes through, I hope that the Government will tell the people a little more about what cannabis is, because there is no doubt that the vast majority of the population do not have a clue what the plant is or what it looks like. I heard of a case the other day when two wicked young people—possibly Young Liberals, for all I know—planted some cannabis and persuaded their old family nanny to keep it weeded and watered. Fortunately, she forgot to water it and eventually the plant perished; but she certainly never knew what it was, and other innocent people may fall into the same trap.

5.37 p.m.

LORD WINDLESHAM

In answer to the noble Lord, Lord Kilbracken, let me say that the plant cannabis is not a controlled drug. In reply to the noble Lord, Lord Hawke, whose remarks bear on the question put by the noble Lord, Lord Kilbracken, I would say that cannabis can be cultivated without being productive of resin. The resin comes from the flowering tops of female plants and the plant is not in itself a controlled drug. The reason why this clause is necessary is that we have an international obligation under the United Nations Single Convention on Narcotic Drugs of 1961, to which this country is a signatory, to prohibit the cultivation of the cannabis plant. For that reason this clause is included in the Bill. It is not a new prohibition: this is already the position under existing legislation. Under the Dangerous Drugs Act 1965, exactly the same prohibition applies. But, leaving aside the international obligation, it seems sensible that, so long as the supply and production of cannabis are prohibited, the possibility of evading the prohibition by private cultivation should also be prohibited. The Bill prohibits outright the production of controlled drugs, but it seems safest where the source is a plant—as is the case here—which has no legitimate purpose, to go further and to forbid its cultivation.

There have been very few prosecutions for this offence under the existing law; contravention has been extremely rare. The climatic factors make it most improbable that there will be intensive cultivation of cannabis under natural conditions in the United Kingdom. On the other hand, underground publications have shown that there is some interest in using artificial sunlight and other methods for indoor cultivation of cannabis, and it therefore seems expedient to the Government to maintain this restriction. In closing, I should say to the Committee that the defences in Clause 28 apply to the clause under discussion. For these reasons, I hope that the noble Lord will not persist with this Amendment and will be willing to withdraw it.

LORD FOOT

I shall not carry this Amendment to a Division, and in a moment I shall ask leave to withdraw it, but I should like to ask the noble Lord a question. He spoke of the Convention of 1961, under which we have an international obligation to prohibit the cultivation of the plant cannabis. I should like the noble Lord to tell us, not necessarily now, whether that Convention extends to the cultivation of the plants from which one gets morphine and morphine derivatives. I should like him to explain that, and if the answer is that it does extend to those plants, why is it not necessary to have a specific provision, similar to this one, covering the morphine plants?

LORD WINDLESHAM

I should like to take note of that point and deal with it on Report. It is unwise to speak without checking, but the difference probably lies in the fact that the cannabis plant is not a drug. It may or may not produce a drug in certain conditions. But this is an extremely technical matter, and I should prefer to check up and give the noble Lord an informed reply at a later stage.

LORD KILBRACKEN

When the noble Lord is taking up that point, will he also look at the definition of "produce" in Clause 37? That clause states: 'produce', where the reference is to producing a controlled drug, means producing it by manufacture, cultivation or any other method". If he is taking the line that the cannabis plant is not a controlled drug, how is it possible to cultivate a controlled drug? I do not see how it can be.

LORD WINDLESHAM

Let me add that question to the one I shall be answering from the noble Lord, Lord Foot, on Report.

Clause 6 agreed to.

Clause 7 [Authorisation of activities otherwise unlawful under foregoing provisions]:

5.40 p.m.

LORD KILBRACKEN moved Amendment No. 4: Page 6, line 21, at end insert ("and (c) that it is not unlawful under section 5(1) of this Act for a person to have a controlled drug in his possession if that drug has been lawfully prescribed for him.").

The noble Lord said: Under subsection (1) of this clause the Secretary of State is permitted to make certain regulations; under subsection (3) he is required to make certain regulations, and one of these is to secure that it is not unlawful for a doctor to prescribe a controlled drug. However, there is no corresponding provision that the Secretary of State shall make regulations permitting a person to whom that drug has been prescribed to have it in his possession. I do not know whether the noble Lord is going to say that regulations may be made—as of course they may—under subsection (1) enabling an addict to have such a drug in his possession; but, if so, I suggest to the Committee that that is not enough, and that if there is an obligation on the Secretary of State to permit controlled drugs to be prescribed then there should also be an obligation to permit the addict to have them, or to have it, in his possession. That is the intention of my Amendment, and I beg to move.

LORD ABERDARE

I very much appreciate the point made by the noble Lord, Lord Kilbracken. But I am not going to say that regulations may be made under subsection (1)(b) but that in fact they will be made, to satisfy, I hope, the noble Lord's point. As he rightly pointed out, the Secretary of State may by regulations make such other provision as he thinks fit for the purpose of making it lawful for persons to do things which under any of the following provisions of this Act, that is to say sections 4(1), 5(1) and 6(1), it would otherwise be unlawful for them to do"; and I can give the noble Lord the categorical assurance that the Secretary of State will be making regulations under this provision to ensure that it will be quite lawful for persons to have in their possession controlled drugs which have been properly prescribed for them. This follows the present Regulation 9(2)(b) of the Dangerous Drugs (No. 2) Regulations 1964, which provide for that exactly.

There are other cases where regulations are required to make sure that people are not committing offences when they obviously should be in possession of drugs. Another example which I might give the noble Lord is that of a police constable acting in the course of his duty. That situation, too, will be covered by regulations. The reason why the medical profession is dealt with differently in Clause 7(3) is simply that this is a kind of charter for the medical profession, whose members are vitally involved in the whole of this Bill, and it was thought wise to have their rights specifically safeguarded in subsection (3). But were we to go further and put other categories of persons into the Bill, it would be difficult to know where to draw the line. I hope, therefore, that the noble Lord will agree that the patients are better covered under regulations, as they are at the present moment.

LORD KILBRACKEN

I am grateful to the Minister for that reply. I realised that the Secretary of State would be able to make such regulations, and I felt perfectly certain that he would, but I felt that he should be under the same obligations to the patient as he is to the doctor. However, in view of the categorical assurance that the noble Lord has given me that these regulations will be made, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 [Occupiers etc. of premises to be punishable for permitting certain activities to take place there]:

LORD KILBRACKEN moved Amendment No. 5: Page 7, line 26, leave out paragraph (d).

The noble Lord said: In Clause 8 are set out offences which are committed if the person who is the occupier or is concerned in the management of the premises allows certain activities to take place. Among these we find, in paragraph (d): smoking cannabis, cannabis resin or prepared opium".

The other offences are all offences of a much more serious kind, such as, producing or attempting to produce a controlled drug",

or, supplying or attempting to supply a controlled drug",

or preparing opium for smoking".

I am absolutely in agreement that it ought to be an offence to allow any of these things to take place on one's premises, but I cannot see why paragraph (d) should be included in this category.

The first point that I want to make—it is really a minor one, but it has to be stated—is that smoking cannabis or cannabis resin, or indeed prepared opium, is not an offence under this Bill. The offence, of course, lies in possession. It is quite possible, I think, although about this I am not sure, to smoke a reefer which is not in your possession, which has been handed to you; but whether that is so or not, it is certainly true to say that smoking cannabis is not an offence. Possession is the offence; but here the owner of premises is being made liable for an offence of allowing something to take place which is not itself an offence.

But the second point, which is of much more substance is that I cannot begin to understand why, of all the drugs set out in Classes A, B and C in the Schedule, it should be an offence to permit the taking only of this one on premises that you control. We have had eloquent words from the noble Lord, Lord Foot, and my noble friend Lord Gifford, and from others, about the dangers or the lack of dangers in smoking cannabis, and of course it is a controversial subject; but whether it is completely harmless or less harmful than many noble Lords tried to indicate at earlier stages of the Bill, there surely cannot be any doubt whatsoever that cannabis is far less harmful than, and in a completely different category from, many of those in Class A, of which heroin, morphine and LSD are the best known to the general public. Therefore, why is it necessary to include smoking cannabis under this subsection?

A really absurd situation can arise here. If I give a party in my house and I become aware, in the course of the evening, that two or three of my guests are smoking cannabis—which can happen only too easily, and many of your Lordships may have had the experience—and if I turn a blind eye to it, I become liable to an offence punishable on indictment by 14 years' imprisonment and an unlimited fine. But if I am living in an establishment where there are three or four heroin addicts and night after night, or day after day, or whenever they use the stuff, they are injecting themselves by means of hypodermic syringes, and if I am fully aware of this fact and do not do anything about it, I do not commit an offence.

This seems to me to be absolutely nonsensical. It must be more serious to allow people to take Class A drugs on my premises, to permit them "knowingly' to do so, than to allow two or three kids at a party to smoke a reefer—or to turn a blind eye to it. So far as I am concerned, paragraph (c) is also unnecessary because to prepare opium for smoking involves "supplying a controlled drug" and so on, and is thus illegal under the provisions of an earlier clause. I cannot see any reason for picking out cannabis. Some noble Lords have quite hysterical feelings about cannabis; some speak as though cannabis were more serious than Class A drugs. I am not speaking in favour of legalising cannabis; I am saying that it is not as serious as those drugs which I am allowed to encourage people to use on my premises without committing an offence. Therefore, I propose that paragraph (d) be deleted. I beg to move.

5.52 p.m.

LORD WINDLESHAM

The effect of this Amendment would be to remove the liability imposed under Clause 8 on the occupiers and persons concerned in the management of premises who "knowingly permit" or suffer those premises to be used for the smoking of cannabis, cannabis resin or prepared opium. Here again I must say to the noble Lord that this is already the law. These provisions are taken from Sections 5 and 8 of the Dangerous Drugs Act 1965.

The noble Lord explained that he tabled this Amendment because he sees no reason to single out these drugs when it is not an offence to allow premises to be used for taking more dangerous drugs such as heroin. The reason is that, so far as is known, only cannabis, cannabis resin and prepared opium are smoked; other drugs commonly used are taken either orally or by intravenous injection. In the case of prepared opium, the liability on the occupiers and managers of premises used for smoking goes back to 1920, when legislation was enacted enabling the United Kingdom Government to give effect to treaty obligations which were entered into under The Hague Convention of 1912. At that time, the problem of opium dens, particularly in the docks, was much more acute than it is now. Bat places used for the purpose of smoking prepared opium are still discovered here from time to time.

As I have said, the smoking of cannabis or cannabis resin is already an offence. It was originally introduced in the 1964 Act and carried forward into the Dangerous Drugs Act 1965. The party at which cannabis smoking takes place is a common occurrence, and the police are much concerned that some such parties are promoted for profit and that these parties may be in private premises or in public premises. For this reason it is desirable to retain the provisions of the present law as regards the smoking of cannabis or opium. I think noble Lords will accept that the main distinction between taking drugs orally or intravenously and smoking them is that if drugs are smoked it is reasonable to suppose that others, people who are in charge of the premises—the owners, occupiers or managers—are likely on balance to know what is going on because of the distinctive smell. This may not be the case with drugs taken in other ways. For that reason it is not possible to accept this Amendment.

LORD FOOT

I find great difficulty in following the logic of the Minister's argument in reply to this Amendment. This clause of the Bill is concerned with what moral guilt and legal guilt ought to be attached to a person who allows his premises knowingly to be used for certain activities. Surely, as a matter of moral guilt it is a very much more serious matter for somebody knowingly to allow his premises to be used for the injection of heroin than it is for him to allow his premises to be used simply for smoking cannabis. Surely there is no argument or dispute about that. The Minister does not seem to me to answer in any way the question asked by the noble Lord, Lord Kilbracken.

All right! if you are going to include smoking cannabis, then why not make it an offence to allow premises to be used for something very much more serious? The Minister cannot get out of this by saying that it is much easier to detect it when people are smoking cannabis than when taking heroin or injecting amphetamines into their systems. But the clause says "knowingly". A man cannot be convicted unless he knows about it, and unless the prosecution in any particular case can satisfy the court that the person concerned knew about it. Surely the person who allows his premises to be used for the purpose of heroin taking should be certainly as open to prosecution as the person who allows his premises to be used for the purpose of smoking cannabis.

LORD JANNER

I wish merely to ask one question with regard to the answer given by the Minister. I am strongly in favour of preventing the smoking of cannabis or the use of any other dangerous drugs; but I understand that the law as it stands at the moment prevents anyone from participating in what is now to be included in the Bill. If that is so, may I make a suggestion? It is that the Dangerous Drugs Acts be consolidated and that this Bill, when it becomes an Act, be included in that consolidation. That would avoid repetitions of this nature. I cannot see why it is essential in a fresh Act to include something which is already the law and which in any circumstances would prevail whether or not these words were in the Bill.

LORD WINDLESHAM

This Bill will take the place of the Dangerous Drugs Act 1965. Therefore, in some clauses we are carrying over parts of existing legislation and in others changing it. There are some major differences in the present Bill. There is the distinction between possession and trafficking and the classification of drugs into categories A and B—all this is quite new. But in many places, aspects of the existing law, including the one to which we are referring, are carried over.

There is a practical point at issue here. I have explained the origin. The introduction into the law of offences of this nature resulted from opium smoking; and the law goes back to 1920. The smoking of cannabis is easily identifiable because of the smell. Parties take place, promoted for profit, where cannabis is smoked and the police have told us in the past (they already prosecute under this clause) that this is an important part of the law. For these reasons it is not realistic to expect the Government to say that they are going to remove the existing liability.

As the noble Baroness, Lady Summer-skill, said in her remarks on the first Amendment, this Amendment, together with many others on the Marshalled List, all form part of the same argument. It does not matter particularly to the movers what is the effect of some of these Amendments; when we get on to the penalties later we shall see some curious consequences of the arguments which have been put forward. But it is all part of a campaign to liberalise our attitude towards cannabis; and, as I explained in the long debate on Amendment No. 1, that is not a position that the Government can accept. For those reasons I must advise the Committee to reject the Amendment.

BARONESS WOOTTON OF ABINGER

I must point out to the Minister that although it may not be part of the Government's policy to take a liberal attitude towards cannabis, in this Bill they are halving the maximum penalty for possession.

THE MARQUESS OF SALISBURY

I have not taken any part in these discussions and I cannot pretend to be an expert on drugs. But I hope that the noble Lord, Lord Kilbracken, will not press his Amendment to a Division. As I understand it, the Government's argument on this particular Amendment, and on other matters connected with cannabis, is not that cannabis is such a very bad thing in itself but that it leads in a great number of cases to people proceeding from cannabis to the use of more serious drugs. If that is the case, I think the Government are bound to maintain their position. The noble Lord, Lord Foot, spoke about heroin. If I may say so to someone so able as himself, I think that he is guilty of what we used to call a non sequitur. The fact that heroin ought to have been included in this Bill and has not been, or should have been included in this Amendment and has not been, has no bearing on whether we put in cannabis. Heroin is quite a different subject, and to say that because heroin is not mentioned here we ought not to mention cannabis does not make sense to me.

LORD KILBRACKEN

I listened with attention and respect to what was said by the noble Marquess, Lord Salisbury, but I am bound to say that I cannot agree with him on one point. The point has been made by my noble friend Lord Gifford—and I think it was also indicated by the noble Baroness—that cannabis is likely to lead on to the use of other drugs. This has been suggested from time to time, and by noble Lords who perhaps have not studied the history of cannabis as closely as others. I believe I am right in saying that the general belief among those who have specialised in the subject is that there is no real evidence to that effect. It may well be found that many who take heroin have previously taken cannabis, but to state that one is responsible for the other is, I suggest, a post hoc, propter hoc argument. It may also be found that the great majority of those who take heroin, or morphia, or LSD, have previously smoked cigarettes or consumed whisky. I do not think that one may infer anything from that. Also, of course, it is well known in the medical profession that cannabis is not habit forming; is not addictive. Therefore I support those of my noble friends who have said that cannabis is probably the least serious of all the drugs; in the Schedule.

I must say that I was not greatly convinced by the arguments put forward by the noble Lord, Lord Windlesham. He said that one reason for insisting on this provision was that it was already in the existing legislation. To that I would only say that the fact that it is in existing legislation does not mean that we cannot try to improve the situation by this Bill. Naturally I would not wish to divide the Committee on this issue, but such a contradiction is involved that I would even prefer that the paragraph made the taking of controlled drugs an offence. I could understand, that, and it would be logical. But I feel that to single out cannabis in this way is completely unjustifiable and therefore, although I shall not divide the Committee, I do not wish to withdraw this Amendment.

On Question, Amendment negatived.

Clause 8; agreed to.

Clause 9 [Prohibition of certain activities etc. relating to opium]:

6.6 p.m.

LORD KILBRACKEN moved Amendment No. 6: Page 7, line 30, leave out paragraph (a).

The noble Lord said: Clause 9 relates entirely to the prohibition of certain activities et cetera relating to opium.

Once again I am at a loss to understand why opium has been singled out for attention and given an entire clause to itself. The noble Lord, Lord Windlesham, referred recently to the fact that some years ago all one's thoughts about drug-taking turned at once to opium dens at the quayside. But that is all completely a thing of the past. We never hear of anyone taking opium nowadays. I am informed that it is seldom taken and I believe that opium dens are practically non-existent. Even if opium is taken, I ask again: why is it necessary to have a clause in the Bill which specifically prohibits doing certain things with opium which are prohibited nowhere else in the Bill?

A special offence is created in Clause 9(1)(a): to smoke or otherwise use prepared opium.

It is nowhere stated in the Bill that it is an offence to smoke or otherwise use cannabis resin, about which all your Lordships have an obsession. It nowhere says that it is an offence to take morphia or heroin. Yet opium has been specified in this particular case. It seems to me almost an anachronism to include it. The noble Lord, Lord Beaumont of Whitley, is proposing the deletion of paragraph (c). I hope that he will express eloquent reasons for doing so. I am of the opinion that the entire clause is unnecessary, but, above all, paragraph (a), and I move this Amendment which would delete it.

LORD JANNER

I hope that the noble Lord, Lord Kilbracken, will not press his Amendment to a Division. I do not agree with him when he says that opium is not being smoked in some places much more frequently than any other drug which is used on those premises. In my mind there is no question at all that a considerable amount of opium is being smoked, and has been smoked for many years, at seaside places. I am not talking about seaside resorts, but shipping places. In prosecutions which have taken place it has been difficult to find the people who have actually participated in the smoking, because they have cleared off when the police arrived; but utensils have been found on the premises. I am not aware whether the discovery of utensils on premises is, in itself, grounds for a prosecution. Years ago there was a considerable amount of opium smoking in ports like Cardiff, but in many cases, although utensils were on the premises, the prosecution could not prove its case. I think it is important that this provision should be specifically put in the Bill, so that people will know that if utensils are found on their premises, that will be an offence. I do not know why other drugs have not been referred to, but I am sure that this drug should be referred to in the manner in which it is in the clause.

LORD WINDLESHAM

Special precautions against the smoking of opium are a long-standing feature of the law. The offence of smoking prepared opium was originally introduced in the Dangerous Drugs Act 1920 in order that the Government could give effect to their obligation, as a party to the International Opium Convention of 1912, to take measures for the gradual suppression of the manufacture of, trade in, and use of prepared opium. We are still under that obligation. Prepared opium is opium that is specifically prepared for smoking, and therefore the imposition of a ban on smoking at that time, when the opium den was quite a common feature, particularly in the docks, was a necessary and prudent step to take.

Since 1920, the law seems to have brought about a reduction in the incidence of opium smoking until it is comparatively rare for cases to come to the notice of the police. There seems, therefore, good reason to retain a law that has been demonstrably effective in the past. I understand that a small number of offences are committed every year in connection with opium; opium smoking is not unknown, and cases have recently come to light where opium has been smoked not only in the docks but in the West End of London. For these reasons, it seems a wise step to retain this provision. Therefore I must advise your Lordships not to accept this Amendment.

LORD KILBRACKEN

I certainly do not intend to press my Amendment, in view of what the noble Lord has said: that it has been infrequently used. May I ask him one question? Why, of the dozens of drugs listed in the Schedule, is it made an offence to ingest prepared opium alone and no other drug on the list at all?

LORD WINDLESHAM

The noble Lord is approaching this Bill as though he has a clean sheet of paper in front of him and can write offences down on the basis of what is known to-day. That is not so. There has been legislation in this field for fifty years. To answer his question one would have to go back to the Hague Convention of 1912.

BARONESS WOOTTON OF ABINGER

But surely my noble friend is quite right to call attention to the fact that when legislation is carried forward without revision, we get a great many unnecessary things and illogicalities. I think my noble friend is calling attention to some important illogicalities which might be nut right when we have this Bill, which in substance is a consolidating Bill.

Loan ST. JUST

May I follow on from what the noble Baroness has just said and take a slightly more positive attitude on this position? Cannabis is going to be made illegal. Often this is a group experiment. I think that the same should be done for LSD and also for heroin, because these, too, can be a group experiment among the young.

LORD KILBRACKEN

I am glad of the intervention of my noble friends. After what the noble Lord, Lord Windlesham, said, I should have thought it better if the Parliamentary draftsman had also started with a clean sheet of paper in front of him and begun from scratch, instead of producing a Bill clearly based on previous laws which are irrelevant and outdated. But I have no intention of pressing the Amendment and beg leave to withdraw it.

Amendment, by leave, withdrawn.

6.15 p.m.

LORD BEAUMONT OF WHITLEY moved Amendment No. 6A: Page 7, line 33, leave out paragraph (c).

The noble Lord said: This Amendment is not designed, rightly or wrongly, in any way to liberalise the Bill on drugs or to go soft on any particular drug. It is an Amendment concerned entirely with civil rights. I think it would be accepted by everyone that it is a dangerous thing to make something an offence which cannot morally be any kind of offence. In paragraph (c) we have such a situation. I have never smoked opium in my life, but I have an opium pipe. I should not be at all surprised if some noble Lords, particularly those who own historic mansions, with accumulations of belongings, also have opium pipes. We are now told by the Minister himself that opium smoking in this country is rare. I am certain that there are a hundred times as many opium pipes as there are people who smoke opium. This paragraph seems to me be taking a steam hammer to crack a nut and to be putting people in unnecessary jeopardy. It is not as if this were a major problem which we have to combat. There are few cases of conviction because the police find opium on premises, and there must be far fewer convictions because the police find utensils. It is ridiculous that we should make it an offence for people to do something which they have done for a long time, perfectly honestly and without moral danger, in order to catch occasional odd cases. I beg to move.

LORD WINDLESHAM

This Amendment falls for consideration under the same category as the previous two Amendments we have been discussing. The effect would be to do away with the offence of possessing pipes or other utensils for use in connection with the smoking of opium, or of any utensils used in connection with the preparation of opium for smoking. Again this is a provision of long-standing, going back to the 1920 legislation to which I have referred. The provision has proved effective in that opium smoking in this country is no longer widely practised. Nevertheless, I am advised that occasions do arise where the provision in question assists the enforcement of control.

The noble Lord mentioned the situation where somebody has in his possession an opium pipe. This point has been raised from time to time in connection with museums or private collections where opium pipes are held. But the thing to stress here, and to point out to museum curators and others, is that the offence under this provision rests in the words: possession … for use in connection with the smoking of opium or … used in connection with the preparation of opium for smoking In the case of museum curator or a private collector, the offence would not arise if the pipes were kept for purposes of exhibition only and there was no intention by the owner or the curator to use them for their original purposes. I hope that, with that explanation, the noble Lord will be content to withdraw his Amendment.

6.21 p.m.

LORD FOOT

I have listened to the explanation given by the noble Lord, but I am still uncertain whether these words mean what he says they mean. He says that the words, should have in his possession any pipes or other utensils for use in connection with the smoking of opium", mean for use by that individual for the purpose of smoking opium. And when we come to the words, used in connection with the preparation of opium for smoking", he says they mean used by him. I very much doubt whether those words do necessarily mean that. I suggest that what they may mean is this: to have in his possession any pipes or other utensils such as can be used in connection with the smoking of opium. I do not wish to push the matter further than this, but perhaps between now and the next stage of the Bill the noble Lord will consider whether those words can be improved so as to put the matter beyond doubt.

LORD WINDLESHAM

I will willingly do that, but without making any promises. The noble Lord has explained his point, and it is one that might usefully be looked at again by the draftsmen and by my, legal advisers. We can discuss it further on the Report stage.

LORD BEAUMONT OF WHITLEY

I thank the noble Lord for that undertaking. It seems to me also that the words do not mean what he says they mean. I should be quite satisfied if we could be assured on the Report stage either that they do mean that, and cannot be construed otherwise, or that they can be changed so that there would be a burden of proof on the prosecution to show that these particular utensils were intended to be, or were, used for the smoking of opium. As I have said, it is totally a civil rights point that I am raising, and that would meet it. I will put down a similar Amendment on the Report stage so that we can discuss it again. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 [Power to make regulations for preventing misuse of controlled drugs]:

On Question, Whether Clause 10 shall stand part of the Bill?

LORD PLATT

Before we give our approval to Clause 10 in its entirety, I should like to draw the attention of your Lordships to one or two points in it on which I should greatly appreciate an assurance from the noble Lord who speaks for the Government in this matter. To some extent any misgivings that I may have may be dispelled if the Committee pass Amendment No. 18. If I may refer to that Amendment for a moment, it would make it obligatory for the Secretary of State concerned, before making regulations, to consult such organisations as appear to be representative of the interests concerned and so forth. We have not yet reached that Amendment but, with your Lordships' permission, I wish to raise one or two items in this clause, which does give the Secretary of State very wide powers to make regulations about all kinds of things.

If these regulations follow the existing regulations in the Dangerous Drugs Act 1967 there could be certain anomalies that would need to be smoothed out. I will call attention to two of them. First of all, under Clause 10(2)(a) there is the question of safe custody of controlled drugs. I understand that considerable difficulties have arisen as to whether drugs kept in a locked car are in safe custody, and this point needs to be mentioned. It may be that they should be kept in a separate container which is also locked; but it is quite as easy for a thief to steal a separate locked container and open it at his leisure when he gets home as it is to steal drugs from a locked car. That is really a minor point but it is perhaps indicative of the things that need answering.

Then I think that subsection (2)(i) of Clause 10 requires a little further study, because it gives the Secretary of State power to make regulations whereby a doctor may be prohibited from administering to an addict certain scheduled drugs. This is really one of the objects of the Bill. If the doctor does not obey this injunction, of course, he has committed an offence. But there can be cases in which a doctor, quite unwittingly, prescribes drugs for an addict, not knowing the patient to be an addict and not suspecting that he is an addict. The patient then becomes suddenly ill, or gets into trouble with the law, and he is discovered to be an addict. In such a case the doctor, quite unknowingly, has been committing an offence under this Bill. I am quite certain that that is not the intention of this Bill or any of the regulations, but I should like to draw attention to the point to see whether I can get a little further assurance.

LORD ABERDARE

I think I can give one assurance that will satisfy the noble Lord. This clause tidies up and extends the miscellaneous powers that already exist. But under the first subsection the making of regulations is subject to the provisions of this Act. That is, notably, subject to Clause 31, which deals with the procedure that makes consultation with the Advisory Council an essential prerequisite to the making of regulations which are subject to the Negative Resolution procedure in both Houses of Parliament. I hope the noble Lord will accept that these regulations are safeguarded to some extent by the fact that the Secretary of State, before making them, must have consultations with the Advisory Council. On the detailed point about the doctor who may find himself in trouble unwittingly in the case of prescribing for an addict, I should like to look into that more closely and give the noble Lord a more considered answer later.

LORD PLATT

I thank the noble Lord.

Clause 10 agreed to.

Clauses 11 to 18 agreed to.

Clause 19 [Attempts etc. to commit offences]:

6.30 p.m.

LORD KILBRACKEN moved Amendment No. 7: Page 16, line 26, leave out ("or the foregoing").

The noble Lord said: Clause 19 is quite a short clause, but I find it rather confusing. I only hope that I do not get confused in moving this Amendment. The clause consists of two subsections, the first of which makes it an offence for a person to attempt to commit an offence under any provisions of this Act other than this subsection. I should have thought that the words, "other than this subsection", were unnecessary. I should not have thought that it was possible for a person "to attempt to attempt to commit an offence", but the draftsmen think that those words should be included.

When we come on to the next subsection we read: It is an offence for a person to incite another to commit an offence under any provision of this Act other than this or the foregoing subsection".

So far as the words "other than this subsection" are concerned, I again feel that they are unnecessary, because it is hardly possible to incite someone to incite someone to commit an offence. Your Lordships will notice that the words "or the foregoing" which we find in subsection (2) are not included in subsection (1). Therefore—if only I can get this right—it is an offence for a person to attempt to incite another to commit an offence, but it is not an offence for a person to incite another to attempt to commit an offence. Surely one is as necessary as the other? I wonder whether I may leave your Lordships to work out that little puzzle—or, at any rate, I will attempt to incite you to do SO.

VISCOUNT DILHORNE

I should like to support the Amendment so briefly but eloquently moved by the noble Lord, Lord Kilbracken. I should have thought that the words, "other than this subsection" were wholly unnecessary in subsection (1), and the words, "other than this or the foregoing subsection" wholly unnecessary in subsection (2). Subsection (1) merely makes it an offence to attempt to commit an offence under any provision of this Act. That is perfectly clear if the subsection stops there. I agree with the noble Lord's comments on the extra words. It seems to me bad and unnecessary drafting, and I hope that the noble Lord in charge of the Bill will see that this point is looked at again.

LORD FOOT

I do not want to fall out with the noble and learned Viscount, because I am hoping that in a minute he will give some support to me upon another Amendment. Nevertheless, on this occasion perhaps I might ingratiate myself with the Government by saying that I think they are right. It seems to me perfectly reasonable in Clause 19(1), because of the way in which the clause is framed, to say: It is an offence for a person to attempt to commit an offence under any provision of this Act other than this subsection". It has to be remembered that the people who have to interpret this Bill, and decide whether somebody can properly be prosecuted, may come to the conclusion that they can be prosecuted for the attempt to commit the offence under Clause 19(1) which is in itself an attempt to commit an offence. So it may well be argued that you can charge a person with attempting to attempt. That is what the final words of that subsection seem to me to put beyond any doubt.

When you come to Clause 19(2), where it provides that: It is an offence for a person to incite another to commit an offence under any provision of this Act other than this or the foregoing subsection", this means that in the first place it is an offence for a person to incite another to incite another to commit an offence, which is a nonsense. Equally—I am sorry if I am a little muddled about this—if the concluding words, "other than this or the foregoing subsection" were left out, then you would be in the position that it would be an offence for a person to incite another to commit an offence under Clause 19(2) which is in itself the offence of incitement. Equally it would be lunatic (would it not?) to leave out the words, "or the foregoing subsection"—that is the one that relates to attempt—because then it would be possible for a person to be accused of the offence of inciting somebody to attempt to commit an offence. But that is something which could not conceivably happen.

Suppose that Fagin, when he was presiding over his den of little thieves, had incited the Artful Dodger to go out and pick somebody's pocket, but had strictly enjoined him not to go beyond the attempt, but to confine himself to the preliminaries and never go through with the execution, then he would be inciting the boy to attempt to commit an offence. But if he strictly enjoined the young man not to carry the attempt into effect, how can he possibly be convicted of an offence? He is specifically informing the young man that he is not to commit it Therefore, for those reasons it seems to me that in point of fact—with all due deference to the noble Viscount—the draftsmen of this Bill have got it right.

LORD CONESFORD

I hope that the suggestion of my noble and learned friend Lord Dilhorne that the matter should be further considered will be adopted, because I believe that there would be no difficulty in construing the Bill if this particular clause were less wordy. But I also agree with the noble Lord, Lord Foot, that a good deal of the criticised words can be justified. If I have rightly read the whole of this clause, with the words as they stand, it seems that, as the noble Lord, Lord Foot, put it, in the view of the draftsman it is possible to attempt to incite. I should have thought you either did incite or you did not. I find it very difficult to know how you distinguish "attempting to incite" from "inciting". For those reasons, I think that on balance first of all we could have a clause less wordy than this, and secondly, for the reasons given by the noble Lord, Lord Foot, there is an imperfection.

VISCOUNT DILHORNE

If I may add one word—

LORD FOOT

Will the noble and learned Viscount allow me to answer that question before he replies? The noble Lord asks: "Is it possible to attempt to incite something?" I suggest that it could occur in the following circumstances. Suppose you write a letter to somebody, especially during the postal strike, suggesting—

LORD CONESFORD

Could the noble Lord speak a little louder? I find it very difficult to hear him.

LORD FOOT

I am sorry. I was trying to suggest the way in which a person can attempt to incite somebody to commit an offence. I suggest that it can happen in this way. Suppose I were to write a letter to somebody suggesting that he should break into a bank, and that letter is held up in the post, or there is a postal strike at the time and it never reaches him. Surely I should have committed the offence of attempting to incite him to commit the offence; but in fact the attempt remains an attempt because the letter never reached him.

LORD CONESFORD

I had considered that, in the circumstances imagined by the noble Lord, Lord Foot, that would be an incitement, but I may be wrong.

VISCOUNT DILHORNE

In view of the difficulties that the noble Lord, Lord Foot, has had in justifying this clause as it now stands, I should like to suggest to the noble Lord that to have two subsections are wholly unnecessary. If you had one subsection saying: It is an offence for a person to attempt to commit an offence or to incite another to commit an offence under any provision of this Act", I think that would cover the situation. I do not believe that there would be the slightest difficulty such as the noble Lord, Lord Foot, suggests. I therefore ask that this matter should be reconsidered. Unnecessary verbiage leads to difficulties. It is often assumed that Parliamentary draftsmen have sound reasons for the inclusion of every word in a Bill. It would be found difficult on thorough examination to justify the inclusion of two subsections and so many words.

LORD KILBRACKEN

Before the Minister replies, may I make two small points? As regards what the noble and learned Viscount has just said, may I say that he will find that in the 1965 Act there is a single clause in which these two different matters are dealt with in one sentence. He has been stressing the virtue of existing legislation; and if on this occasion the wording used to cover these points in the 1965 Act were used again it would overcome the difficulty completely. I wonder whether I may give the noble Lord, Lord Foot, an example of how one can incite a person to attempt. I may be quite wrong about it, but I should have thought that if Fagin told one of his little boys to go out and try to pick people's pockets in the Strand, or wherever they were operating, and the boy failed to do so because he was not sufficiently skilled or did not come across a suitable victim, he would nevertheless have attempted to commit an offence, and Fagin would have incited him to attempt to do so.

6.42 p.m.

LORD WINDLESHAM

I hope that noble Lords who have spoken in the Committee will give their services to Hansard, because, if I give an undertaking to look at this matter again, I wonder just what the Parliamentary draftsman and legal advisers will be looking at. The noble Lord, Lord Foot, whose support on this occasion is most welcome, seems to be thinking on the same linen as the draftsman. The effect of adopting the Amendment would be to make it an offence under this clause to incite a person to attempt to commit an offence under any provision of the Bill. It is on the whole undesirable to have a provision of this kind. The reason, I am informed, is that the act of incitement is itself the offence; and that is so whether the person incited attempts to commit or actually commits an offence, or indeed makes no attempt at all. It is the act of incitement that is the offence. To be convicted of a charge of inciting a person to commit an offence requires only proof of incitement, therefore, and whether or not the incitement was successful is immaterial.

However, far be it from me, when faced with a very powerful opinion by the noble and learned Viscount who formerly sat on the Woolsack, to say that on a matter as complicated as this I can be quite certain that the view I have explained is the correct one. Without giving any undertaking, I am sure it would be right for me to look at the wording of this clause again, so that we can discuss it at Report stage. With that assurance, I hope the noble Lord might be willing to withdraw the Amendment.

LORD KILBRACKEN

Before doing so, I should like to thank the noble and learned Viscount for his contribution which has been responsible for eliciting an undertaking from the noble Lord. It enables me to beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Offences relating to the doing of things outside the United Kingdom]:

On Question, Whether Clause 20 shall stand part of the Bill?

BARONESS WOOTTON OF ABINGER

I am seeking clarification about Clause 20. I think I am right (the noble Lord, Lord Windlesham, will correct me if I am wrong) in saying that this provision is not in the existing legislation which this Bill supersedes. Would the noble Lord confirm that point before I go further?

LORD WINDLESHAM

It might be more helpful to the Committee if the noble Baroness went further, and I will see if I can then give her the reply.

BARONESS WOOTTON OF ABINGER

I am quite willing. There are two subsections of this clause. They both create offences. There may be similar sections in Acts that I do not know, but I think I am right in saying that they are new in relation to drugs legislation. The first offence seems to me an odd one in two ways. First of all, it says that an offence is committed if somebody in this country does any act preparatory to, or in furtherance of, the commission in any place outside the United Kingdom of an act which, if committed in the United Kingdom, would constitute an offence under this Act. In other words, it makes it an offence for somebody in this country to take steps to bring about some result overseas in a country where the action is perfectly legal. It seems to me very odd that one may not in this country assist somebody who wants to do something that is legal in his country though it happens to be illegal here. The second thing that I find odd about it is that this is an offence under this Bill, but when I turn to the Schedule of penalties I cannot find any penalty on it. I should very much like to know what the penalty is.

When one comes to subsection (2), I fully understand that one has no right in this country to plot, as it were, to do in another country something that is illegal in that country. That is a serious offence, and that, I think, comes under the large category of 14-years offences, about which I shall have something to say later. But I should be very grateful if some reason could be given why one should not help a person to do something which is perfectly legal in his own country even though, owing to the ridiculous and antiquated laws imposed upon us by our Government, it happens to be illegal in this country.

LORD WINDLESHAM

I have the answer to the question the noble Baroness put as to whether or not this is a new power. The answer is that it is not. It is already on the Statute Book in Section 13(d) of the Dangerous Drugs Act 1965. Indeed, it has been a feature of drugs legislation for over twenty years; it is not a novel provision. The reason for the clause, and the reason for the existence of the power in the 1965 Act, is that it is designed to give broad effect to the principle of international cooperation in penalising unlawful activities with regard to dangerous drugs in one country having, or likely to have, effects in another. The 1961 Single Convention on Narcotic Drugs deals with this matter at very considerable length, and so I will spare the Committee the quotation which is in front of me. But it is an aspect of the international treaty to which I have already referred.

The noble Baroness asked whether the penalties for this offence had been omitted in some way from the Bill before us. I understand that that is not so; the penalties are contained in Clause 25(3), which provides penalties for offences under this clause. That answers the two specific questions. We have an international Treaty obligation; it is to assist people in other countries, as well as in this country, to prevent the trafficking in, the supply and the misuse of drugs generally. It is an aspect of the law which, on the whole, it seems worth carrying forward in the present Bill.

VISCOUNT DILHORNE

The noble Lord rose before I noticed he was going to, because I wanted to put a point to him on this clause, though I have to say that there has been no attempt by the noble Baroness to incite me to do so. Although I should not want in any way to weaken the penal provisions of this Bill there is always a considerable difficulty of definition with regard to "an act preparatory to the commission of an offence". I know there are precedents for having that, but it is extremely difficult to define; and, although there are statutory provisions to that effect in other Statutes, I think it is very seldom indeed that there is a prosecution for "an act preparatory to the commission of an offence".

Here, as we may see from this clause, the act may be merely the fact of having something in your possession. So, if you had something in your possession, presumably in some way the prosecution would have to prove that that possession by you was preparatory to the commission of an offence. I think that would be extremely difficult to prove, and I am wondering whether it really is necessary again to repeat in this Bill these words which, I believe I am right in saying, have caused such difficulty in the past. There is quite a different aspect of it when one refers to an act in furtherance of the commission of a crime". I should have thought that was pretty specific; but where do you draw the line here? I would ask the noble Lord to have a look at it before we get to the Report stage.

LORD WINDLESHAM

I will certainly have a look at it. As I have said, this is a matter of international obligations under the United Nations Convention. I did not have warning of this particular point that the noble Baroness has raised, and perhaps if I study it with greater care I can make a fuller statement in regard to the point raised by the noble and learned Viscount.

BARONESS WOOTTON OF ABINGER

I am much obliged to the noble Lord for his clarification. I still think this is a very odd provision, and a very odd form of legislation, that one finds in a Schedule of penalties the penalty for subsection (2) of Clause 20 but not for subsection (1) of that clause. It seems odd that they should be separated in this way. I should have thought that there might be a more intelligible way of presenting this. The other thing I would say is that we are constantly running up against the Single Convention. We are not bound to all eternity by the Single Convention, and it seems to me that we ought to think about suggesting a modern version of our obligations under that Convention.

On Question, Clause 20 agreed to.

Clauses 21 and 22 agreed to.

EARL ST. ALDWYN

My Lords, perhaps I might intervene at this point to say that it has been agreed through the usual channels—and I hope that all those most directly concerned have been consulted—that we should continue with this Committee stage until 8 o'clock; or that, if by any chance we should reach Clause 40 before 8 o'clock, we should stop at Clause 40. We will resume the Committee stage on Thursday next.

Clause 23 [Powers to search and obtain evidence]:

6.54 p.m.

LORD FOOT moved Amendment No. 8:

Page 17, line 34, at end insert: A person commits an offence if he—

1. (a) intentionally obstructs a person in the exercise of his powers under the foregoing subsection; or
2. (b) conceals or without reasonable excuse (proof of which shall lie on him) fails to produce any such books, documents, stocks or drugs as are referred to in the foregoing subsection."

The noble Lord said: I shall try to be as brief as I can on this Amendment, but may I start by saying, particularly to the noble Baroness, Lady Summerskill, that there is no hidden or overt intention in this Amendment to "go soft on drugs". Indeed, this Amendment is concerned only peripherally with the subject of drugs. It is mainly concerned with the state of the English law and whether on this occasion we are going about it in the right way.

May I say this by way of explanation and clarification? Clause 23 provides three different ways in which searches can be made of persons and premises. Under subsection (1) a constable or other person can be authorised by the Secretary of State to go into the premises of anybody who is carrying on a business of producing or distributing drugs, such as a chemist, and so on—carrying it on presumably, under licence. He can then call upon the occupier of the premises and the person carrying on the business to produce for his inspection various documents, records, stocks, drugs and the like. That is, of course, a perfectly proper and reasonable provision.

The next form of search which is provided for under subsection (2) is the form of search about which I have no doubt there will be some debate later on; that is, the search which can be carried out by a constable who has reasonable grounds to suspect that a person is in possession or control of drugs. It gives the constable powers to stop and search that person and to detain him for the purpose of a search, and it also gives him powers to seize and detain any drugs which he may find on that person or in any vehicle.

The third kind of search, which is under subsection (3), is the search carried out under a search warrant issued by a magistrate on evidence being given to him that there is reasonable grounds for thinking that certain premises may contain drugs, and which authorises a constable to enter those premises and to search for any drugs which may be on the premises, to seize them and so on. Those are the three kinds of search which are provided for in this clause.

Then if we look at subsection (4)—and this is the subsection which concerns me—it is provided in relation to all three forms of search that a person commits an offence if he: (a) intentionally obstructs a person in the exercise of his powers under this section".

If I may pause there, I have no objection to that at all, except only to say this—and I will perhaps refer to this in a slightly different context later on. My understanding is that under the present law there is already a perfectly clear offence committed by anybody who obstructs a constable in the exercise of his duties. The part of the subsection to which I wish to draw the special attention of the Committee is that which goes on to say that a person commits an offence if he: (b) conceals or without reasonable excuse (proof of which shall lie on him) fails to produce any such books, documents, stocks or drugs as aforesaid.

May I say at once that I see no objection to that particular part of the subsection in so far as it applies to the first kind of search of which I was speaking, where a person goes into the premises of somebody carrying on the business of the production or the distribution of a drug and calls upon that person to produce his records and his stocks and his documents. I see no objection to that, because there are ample precedents for it. One thinks, for example, of the law which requires scrap metal dealers to keep records and that those records shall be available for inspection by any authorised person. One thinks of the Firearms Act, which requires the dealers in firearms to keep records of all their transactions. It even comes down to the fact that there is an obligation under the Road Traffic Acts on anybody to produce his licence, his certificate of insurance, and so on.

There are multitudes of precedents for that kind of thing, but how does subsection (4)—and particularly the fact that a person commits an offence if he fails to produce any drug—work with the other two kinds of search; that is, where a policeman stops a man in the street under the powers to stop and search, and wants to search him? Supposing the policeman says to that man, "I am looking for drugs; have you got any?", and if that man has a drug in his possession but remains silent or says to the policeman, "I do not want to say anything to you", is not that person, under the terms of subsection (4)(b), quite clearly committing an offence of failing to produce a drug?

Let me take, if I may, another illustration. Under the subsection (3) procedure, where a police officer gets a search warrant enabling him to go into premises where it is reasonably suspected that a drug offence may be being committed, he goes in and says to all the people present, "I am looking for drugs". He may not go as far as this, but he could. He may say: "I require anyone with any drugs in their possession to produce them to me". Suppose the people remain silent. They would, as I understand this provision, automatically thereby be committing an offence, because they are failing, without reasonable excuse, to produce the drugs which they have in their possession. Therefore, if a police officer goes into premises in circumstances of that kind and in fact finds drugs in the possession of people who had previously been asked to produce them but who had remained silent, passive and inactive, they can, as I interpret this clause, then be prosecuted not only for having that drug in their possession, the substantive offence, but also for having failed to produce the drug when they were invited to do so.

It is a fairly serious matter, I suggest, because the penalty for such silence, for such passivity, if I may call it that, in such circumstances, is, on summary conviction, six months or £400, or both, and, on indictment, two years or a fine, or both. As it seems to me, this requirement, in the context of those two kinds of searches, is a clear breach and abrogation of what is a very ancient common law principle, that no man should be called on to incriminate himself. In this case, as I understand the clause, it is requiring a person in those circumstances to speak up; he is not entitled to remain silent. If he remains silent, or fails to produce the drug when required to do so, he is then committing an offence, and, therefore, under pain of penalty, he is being required to incriminate himself. I hope that I interpret the matter rightly. This seems to me to carry with it a matter of considerable principle.

On Second Reading, when the noble Lord, Lord Aberdare, was winding up the debate, he said that this Bill took no new powers. I intervened to ask him whether this subsection was not taking new powers. I was wrong about that, as the noble Lord will no doubt now know, if he did not know then, because there is a similar provision in the 1965 Act; it is not exactly in identical terms but it is substantially the same. Of course, if you go back to the 1951 Act, you will find what is a similar provision there, although, of course, at that time, in 1965 and in 1951, there was no right of search comparable to the one we have under subsection (2) in this Bill; that is, the right of the constable to search a man in the street. There was no comparable power in those days, because, of course, that was only introduced in the Act of 1967. But so far as the subsection (1) and subsection (3) kind of search is concerned—that is, under a search warrant—it is correct that there has been this, as I think, objectionable power, running back certainly as long ago as 1951, and it may be before that, because my researches have not gone that far.

One of the questions I would ask the Minister is this. I have made what investigations have been open to me to see whether this power requiring a person to incriminate himself has in fact ever been used; that is to say, whether anybody has ever been charged with the offence of failing to produce a drug in the circumstances which I have described. So far as my researches have gone, I cannot find that there ever has been a case. If that is so, may it not be because the prosecution would have been ashamed to bring a charge under this objectionable clause, as I think it; that is to say, that they would double up the charges, charging the person with the substantive offence of possessing the drug or supplying the drug, and then go on to charge him with the further offence of having failed to disclose it.

This constitutional principle that a man should never be obliged to incriminate himself can, of course, be illustrated from many sources. I do not want to detain the Committee longer than necessary, but I would give one illustration of the way in which this principle has been recently enunciated in the courts. It is the case of Rice v. Connolly, which is reported in [1966] All England Law Reports. It was an appeal to the Divisional Court by way of Case Stated against a conviction for wilful obstruction of the police, aid the Divisional Court consisted of the Lord Chief Justice, Lord Parker of Waddington, the late Mr. Justice Marshall and Mr. Justice James. The headnote of the case reads: The appellant was seen by police officers in the early hours of the morning behaving suspiciously in an area where on the same night breaking offences had taken place. On being questioned he refused to say where he was going or where he had come from. He refused to give his full name and address, though he did give a name and the name of a road, which were not untrue. He refused to accompany the police to a Police box for identification purposes, saying, 'If you want me, you will have to arrest me'. He was arrested and charged with wilfully obstructing the police contrary to S. 51(3) of the Act of 1964. On appeal it was conceded that 'wilfully' imported something done without lawful excuse. It was held that … the appellant had been entitled to decline to answer the questions put to him and (prior to his arrest) to accompany the police officer on request to the police box to establish identity; accordingly, in the circumstances, 'wilful obstruction' by the appellant was not established, although he had been obstructive, because no obstruction without lawful excuse had been established.

I should like to quote two short passages, one from the judgment of the Lord Chief Justice, and the second from the judgment of Mr. Justice Marshall. The Lord Chief Justice said this: 'Wilful' in this context in my judgment means not only 'intentional' but also connotes something which is done without lawful excuse, and that indeed is conceded by counsel who appears for the prosecution in this case. Accordingly, the sole question here is whether the appellant had a lawful excuse for refusing to answer the questions put to him. In my judgment he had. It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed "— and I would emphasise these words— the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest".

Then he went on: Counsel for the respondent has pointed out that it is undoubtedly an obstruction, and has been so held, for a person questioned by the police to tell a 'cock and bull' story, to put the police off by giving them false information, and I think he would say"— that is, counsel for the respondent— 'Well, what is the real distinction, it is very little away from giving false information to giving no information at all; if that does in fact make it more difficult for the police to carry out their duties then there is a wilful obstruction'.

Then the Lord Chief Justice concluded with these words: In my judgment there is all the difference in the world between deliberately telling a false story, something which on no view a citizen has a right to do, and preserving silence or refusing to answer, something which he has every right to do.

Mr. Justice Marshall in the course of his judgment, which was only four lines in length, said this: In order to uphold this conviction it appears to me that one has to assent to the proposition that where a citizen is acting merely within his legal rights, he is thereby committing a criminal offence.

I hope it is not going too far to say that that is precisely what this subsection, of which I am complaining, provides. In so many words it says that if a person stands upon his constitutional right to say nothing, to be silent and to be passive, then under this subsection he is guilty of an offence for which he may be liable to two years' imprisonment. I ask myself this question: can one think of any other similar form of search authorised by the law where there is any comparable provision to that which I am criticising? One thinks first of all of the Theft Act and stolen goods. There is in the Theft Act provision for the issue of search warrants authorising premises to be searched for stolen goods, but there is nothing in the Theft Act comparable to this subsection. There is nothing in the Theft Act—one would be astonished if there were—to the effect that where a person's premises are entered by a police officer looking for stolen goods, if the occupier fails without reasonable excuse to produce any stolen goods to the police officer, then he would be guilty of an offence. There is nothing comparable to that. I have also looked at the Firearms Act. I will not go into that because it is rather complicated; but the provision in that Act is quite different from the provision in this Bill.

The other matter which concerns me is this. Under the Road Safety Act it is provided that where a person is taken to a police station on suspicion of having too much alcohol in his blood, and is then invited to provide a specimen of urine or blood, he must be told at the time when he is invited to give that specimen that if he does not do so he may be committing an offence and may render himself liable to imprisonment, to disqualification and to a fine. There is nothing comparable to that provision here. A person in possession of some drug may be on premises which are entered tinder the protection of a search warrant. He may be told by the police officer, "If you have got a drug I want you to produce it to me". If he remains silent there is no need for the police officer to warn him, saying, "If you do not produce it you are rendering yourself liable to two years' imprisonment". There is no protection of that kind, comparable to the protection which we give to somebody under the provisions of the Road Safety Act.

Perhaps your Lordships would be good enough to look at Amendment No. 8, which I am now moving, and at Amendment No. 11. What I am proposing is that we should take subsection (4) from where it stands in Clause 23 and bring it up immediately under the first kind of search—that is, under subsection (1). Then I propose that we should slightly amend the wording of the subsection so that it reads A person commits an offence if he—

1. (a) intentionally obstructs a person in the exercise of his powers under the foregoing subsection; or
2. (b) conceals or without reasonable excuse (proof of which shall lie on him) fails to produce any such books, documents, stocks or drugs as are referred to in the foregoing subsection."—

that is subsection (1). Thus we should retain the full power to require a person who is carrying on a business to produce all his documents and his stocks and so on. The change which this Amendment would bring about is that that subsection would no longer be applicable to the two types of search under subsections (2) and (3) of the Bill. I do not think there is anything objectionable in principle to that, because obviously there is a clear distinction between requiring a person to incriminate himself and requiring a person to produce evidence that he is in fact complying with the law—as in the case of the chemist, who has to keep records and so on.

I do not think that this difficulty to which I have attempted to draw attention is cured by the words which appear in subsection (4); namely: … without reasonable excuse (proof of which shall lie on him".

I ask myself whether these words conceivably put the matter right. I think that manifestly they do not, because if a reasonable excuse for not producing a drug is that the common law of England says that you need not, then subsection (4) becomes a nonsense, for everyone would automatically be entitled to be acquitted. I apologise to the Committee for taking up so much time, but I hope that your Lordships will think that this is a matter of some legal consequence. My last word is this. I started off by saying that this Amendment has nothing whatever to do with one's views concerning the drug problem. Although it is not a new clause I believe that it represents a grave departure from one of the basic principles upon which the criminal law of this country has so long rested. I beg to move.

7.19 p.m.

LORD WINDLESHAM

It might be helpful if I intervened fairly early in this discussion, not to curtail it but rather to open it up. The effect of the Amendment would be to apply to only subsection (1) of Clause 23 the provisions of subsection (4) of the clause which, as the clause stands now, apply, with some exceptions to which I shall refer, to the whole clause. I accept at once what the noble Lord, Lord Foot, said in moving the Amendment, that he is concerned entirely with the clarity of the law and not with policies towards cannabis or drugs misuse generally.

As he said, this clause does not assume a power which was previously unknown to English law. He has told the Committee that Section 14(3) of the Dangerous Drugs Act 1965 contains similar provisions. Indeed, these are to be found in earlier drugs legislation. The 1965 Act—the present legislation—by Section 14(3) makes it an offence for a person wilfully to delay or obstruct a person who is exercising his powers to enter premises, whether with or without a search warrant, for the purposes of inspection and enforcement of the law. It also makes it an offence for a person to conceal any books, stocks, drugs, substances or documents that he may be required to produce for purposes of inspection. Those who have power to enter premises under these provisions are police constables and persons duly authorised by the Secretary of State—that is, Home Office Drugs Branch Inspectors and Regional Medical Officers of the Health Departments in England, Scotland and Wales.

The principle that is embodied in Clause 23(4), that a person is obliged, on pain of criminal proceedings, to co-operate with authorities who are lawfully investigating an offence, has its parallel in numerous other Statutes. The noble Lord, Lord Foot, has mentioned some of these. He gave the example of the car driver who has to produce his driving licence when required to do so by a police constable, under Section 224 of the Road Traffic Act 1960. I shall not go through any other examples in the law, although I will mention one that he did not include in his selection, namely, the Exchange Control Act 1947. Schedule 5, paragraph 1, enables the Treasury to require: any person … to furnish … any information in his possession or control which the Treasury or the person so authorised, as the case may be, may require for the purpose of securing compliance with or detecting evasion of this Act. The noble Lord, Lord Foot, has argued that subsection (4)(b) is objectionable in principle, in that as paragraph (b) appears to relate to subsection (2)—that is, the "stop and search" subsection—and subsection (3)—which relates to the "search of premises by warrant"—it could mean that a person would commit an offence if he failed to produce evidence that might incriminate him. Despite what the noble Lord has said, I do not believe that this is the draftsman's intention. He has explained his point of view in a very full speech, and it is a somewhat fine point of interpretation, but if noble Lords will look at the wording of subsections (2) and (3) they will see that it is difficult to envisage how an offence of concealing items could, in practice, be committed, if for no other reason than that if a search failed to produce such items there would be no proof that they were being concealed. However, I know this is a matter on which the noble Lord, Lord Foot, has strong feelings, and he has looked into it very carefully. It would not be right, therefore, to take up an inflexible position at this stage in the Committee's deliberations. Other noble Lords would like to take part, and the Government certainly want to hear what they have to say. Perhaps I could leave what I have to say at this stage at that point, and possibly come in again towards the end of the discussion on this Amendment.

VISCOUNT D1LHORNE

I think the noble Lord, Lord Foot, has performed a valuable service in drawing attention to the provisions of this paragraph (b) tucked away at the end of the clause. It is true, as the noble Lord, Lord Windlesham, has just said, that there are exceptions in our Statute law to the rule that a man is not compelled to incriminate himself, but I think it is right that when any such proposal comes before Parliament the reasons for it should be most carefully examined and a strong case made out for any such provision. The noble Lord who has just spoken seemed to suggest that this paragraph was in some way linked with the preceding contents of this clause. It is not, and that is where I think there is a real defect in drafting. It is a subsection of general application.

It is perfectly true that the first part, paragraph (a), is linked with what goes before in the clause. It reads: A person commits an offence if he— (a) intentionally obstructs a person in the exercise of his powers under this section; I am quite sure that that is fully warranted, and I disagree with the noble Lord's Amendment, in that he restricts the intentional obstruction to obstruction in the exercise of the powers under subsection (1). I think it is right as it stands that the intentional obstruction should be obstructing a police officer, or anybody else, in the execution of the powers given in subsections (1), (2) and (3).

But when one comes on to paragraph (b), it is a new offence, wholly unlinked and unassociated (except for the words "as aforesaid"), with the other contents of the clause. It provides that: A person commits an offence if he— (b) conceals or without reasonable excuse (proof of which shall lie on him) fails to produce any such books, documents, stocks or drugs as aforesaid. That is a perfectly general criminal offence. It is committed if you conceal any drugs. It does not matter whether or not a police officer, or anyone else, is seeking to exercise the powers under the preceding subsection. If a man has a drug in his hand, he will be in possession of it. That may be one offence. But if he puts it in his pocket he has concealed it, and therefore will be guilty of two offences. He will have concealed it, and he will be in possession of it. Is that really necessary? This provision about being guilty of a criminal offence if you fail to produce a drug is also an offence of a very general character.

When I read this clause I thought—and I am always reluctant to criticise the draftsman, because drafting is a very difficult art—that, so far as paragraph (b) was concerned, it was just an example of bad drafting. I am not really worried by the fact that in earlier drugs legislation there may be precedents for this kind of drafting: if there are, it is quite time that we improved it. I should have thought that the real intention behind (b) was that it should be linked only with subsection (1). I may be wrong about that: it might go on to subsection (2). But certainly it should be linked to what precedes it in this clause. Why I say I thought it must be intended to be linked with subsection (1) is by reason of the words "as aforesaid". It refers to: such books, documents, stocks or drugs as aforesaid". When you look back to what the words "as aforesaid" mean, you go straight back to subsection (1) which says what kind of books or documents they may be, and what may be inspected.

I should have no objection at all if the offence created by paragraph (b) were linked with subsection (1). I cannot but think that that really is the intention. If I that is so, then you get to the position that if the producer or supplier of any controlled drugs conceals them, or without reasonable excuse fails to produce them when the demand is made on him by the constable or other person to do so, he will be guilty of an offence. In that context this offence is complementary to subsection (1). It is not complementary, perhaps, to subsection (2)—at any rate, I doubt if it is. But what I think is absolutely wrong is that it should be a distinct and complete general offence committed in any circumstances, not just when the powers under this clause are being exercised. If no adjustment of this is made—which I think is really no more than a matter of drafting—then I, for one, would support any Amendment to delete the words of paragraph (b) as they now stand. But I could not, for the reason I have given, go so far as to support the noble Lord, Lord Foot, in his Amendment, because I think he limits the first part of that Amendment too narrowly. He limits it to subsection (1), and it certainly should extend to the other parts of the clause.

LORD AIREDALE

I hope that the noble and learned Viscount's interpretation of this clause is correct. So far as I know, if you are being searched by the police for a small piece of valuable jewellery, such as a small diamond ring, which you could easily conceal in the lining of your garment and make it very difficult for the police to find, you commit no offence by failing to produce it when the police begin searching. That being so—and it has been so for centuries: indeed, so far as I know, being so ever since the English criminal law began—it seems very curious that if you are being searched, not for a small piece of valuable jewellery but for a small quantity of not very valuable drugs, you commit an offence if you fail to produce to the police the drug that you are carrying.

That is a very strange anomaly, and one wants to know what is so special about drugs that this new breach in the English criminal law has to be made, in order to compel people to produce drugs, so making the life of the police easier when they are searching for drugs, but not when they are searching for other commodities which may have been stolen. I hope that the noble and learned Viscount's interpretation of the meaning of this clause is the correct one and that we shall have the matter clarified.

7.33 p.m.

BARONESS BIRK

I have added my name to this Amendment, so I naturally support it. The noble Lord, Lord Windlesham, said, "I do not believe it is the draftsman's intention", and that may well be so. But what I am sure he will agree about is how this is going to be interpreted. As I see the matter, looking at it from the more lowly position of one who, as a magistrate, would have to enforce this, it means (and to me this is a most important matter) that people could be charged with two offences instead of one. We seek to move these paragraphs up under subsection (1) because that is where we consider they may apply. I am not sure that I quite agree with the noble and learned Viscount on the point about paragraph (a), because I should have thought that the intention in the words "obstructs a person", and so on, was already covered by various other Acts. I should have thought these paragraphs did not need to be put in subsection (4) and that they could be put where the Amendment puts them, which is after subsection (1). In view of what has been said, I hope that the Minister will either accept the Amendment as it is, or will consider it further and bring back something which certainly eliminates what could be a very grave injustice.

LORD FOOT

I do not know whether it is permissible for me to intervene at this stage in order to try to shorten matters. If it is permissible within the Rules of the Committee, I should like to say at once that if, in view of the assistance which I have received from the noble and learned Viscount in this matter, with all the weight of his authority behind it, the Minister is inclined to say that he will have another look at this point before the next stage, then I will certainly withdraw the Amendment. That will not put him to the trouble of making a long answer this evening. I do not know whether that is helpful.

In making that proposal, I should like to make one observation upon some of the words which fell from the lips of the noble and learned Viscount, Lord Dilhorne, upon this matter of obstruction. I agree that it would be perfectly appropriate to leave paragraph (a) where it stands, having shifted the whole of subsection (4) up under subsection (1) and making it applicable in toto only to subsection (1). But I should have thought that under the Police Act 1964, with which the noble and learned Viscount will be familiar, there were perfectly ample powers to deal with anybody who obstructed a police officer—

VISCOUNT DILHORNE

If I may interrupt the noble Lord, I am not very concerned about this obstruction. But I think there is some convenience in repeating it in the same Act which is dealing with drugs, since it is easier to refer to than having to look at a various number of books. It is paragraph (b) with which I am concerned.

LORD FOOT

Equally, of course, I should have no objection to its being repeated at the end of this clause, as the noble and learned Viscount suggested. I do not know whether that assists the Minister.

LORD WINDLESHAM

I am grateful for the opportunity which the noble Lord has given me, and I have listened, as I undertook to do, with close attention to what has been said in this discussion. The noble and learned Viscount, Lord Dilhorne, has very rightly drawn attention to paragraph (a) of subsection (4)—that is, the one dealing with obstruction—because it is an extremely important part of subsection (4); we cannot consider that subsection without looking at paragraphs (a) and (b) together. There seems general agreement that paragraph (a) of subsection (4) is unobjectionable; the argument is centred on whether or not paragraph (b) of subsection (4) applies only to subsection (1), or whether it could apply also to subsections (2) and (3).

VISCOUNT DILHORNE

With great respect, it goes further than that. I have contended that it is not linked to any of those subsections. It is a perfectly general criminal provision creating a new offence.

LORD WINDLESHAM

I accept that correction, of course. The noble Baroness, Lady Birk, reminded the Committee that when I spoke earlier on this Amendment I said that I did not believe it was the draftsman's intention that this power in subsection (4)(b) should refer to subsections (2) and (3); nor do I. But in the light of what has been said, it is wise that we should try to avoid any possible doubt on this matter. I think therefore that the Committee would be well advised to accept the implications of the Amendment of the noble Lord, Lord Foot, and put the matter beyond any reasonable doubt in the future. I am advised that the best way of achieving this, bearing in mind what has been said about paragraph (a) of Clause 23(4), would be to leave paragraphs (a) and (b) where they are, but to remove the word "aforesaid" from paragraph (b) and to insert instead some new words—possibly, "as referred to in subsection (1) above".

VISCOUNT DILHORNE

With great respect, I do not think that that would do what is required, because that would only refer back to the books, documents, stocks or drugs, and that is the same as "aforesaid".

LORD WINDLESHAM

As I understand it, that is the intention of the noble Lord, Lord Foot. I think he is quite happy that people who have an obligation to keep books—chemists, pharmaceutical manufacturers and so on—should be subject to the provisions of subsection (4)(b). I am sorry if I misunderstood him.

VISCOUNT DILHORNE

I am sorry to interrupt the noble Lord again, but merely changing "as aforesaid" to "as referred to" in subsection (1) does not achieve that object. That is the point I am making; and if I may say so I think the noble Lord would be well advised to reconsider the wording again. The object of the noble Lord, Lord Foot, so far as I can see, is the same as mine: really to make paragraph (b) relate to subsection (1); and that is not done by changing the words "as aforesaid" to "as referred to" in subsection (1). That is a change without a difference.

BARONESS WOOTTON OF ABINGER

I hope the noble Lord will forgive me, but I am interested in the point which the noble and learned Viscount has made. At one time he said that paragraph (b) was related to subsection (1)—

VISCOUNT DILHORNE

No, I did not. I said that the trouble was that it was not.

BARONESS WOOTTON OF ABINGER

That it should be related to subsection (1)?

VISCOUNT DILHORNE

Yes.

BARONESS WOOTTON OF ANINGER

But at another stage he said that it created an entirely new criminal offence of concealment.

VISCOUNT DILHORNE

Of course it does, as it now stands. What I am saying is that it should be amended to relate it to subsection (1). My objection to it now—I hope I have made it clear—is that it creates a completely general offence unrelated to subsection (1).

BARONESS WOOTTON OF ABINGER

It surely would be a complete absurdity to create a completely new criminal offence in a subsection of a main clause of this Bill; and it would appear that, if it does that, it is creating an offence of concealment, which means that if you have any drugs you must walk about with them in your hand all of the time.

LORD WINDLESHAM

I hope that members of the Committee will realise that I am trying to be helpful. Instead, I am assailed on both sides. It may be found that the solution I have proposed will do the trick, though I am open to correction. We are to have a Report stage, and I will certainly look at this extremely carefully to see how the aims which the noble Lord has explained can best be achieved—whether it be by the method I have suggested or by some other method. If the noble Lord is happy with that assurance, perhaps we can leave the matter until Report stage.

LORD AIREDALE

May I suggest that there is one other difficulty in paragraph (b) which might be cured if we got rid of the words "any such" and substituted "the"? Then it would read, … fails to produce the books, documents, stocks or drugs as are mentioned in subsection (1). I think that might do it. But if you keep the generality by retaining "any such", then I agree with the noble and learned Viscount that I do not think it does it.

VISCOUNT DILHORNE

I do not think that will do it, either.

LORD FOOT

I am very grateful to the Minister for having gone so far as he has. I think we are agreed in principle upon this, and the only question now remaining is as to how it is to be done. I should like, if I may, to recommend my own Amendment, which seems to me to achieve the object in the best possible way, because your Lordships will remember that it comes in after subsection (1) and says: A person commits an offence if he … intentionally obstructs a person in the exercise of his powers under the foregoing subsection"— Let me pause there to say that I do not mind that being repeated later in relation to the other forms of search— or … conceals or without reasonable excuse (proof of which shall lie on him) fails to produce any such books, documents, stocks or drugs as are referred to in the foregoing subsection". I do not know whether the noble and learned Viscount thinks that that goes far enough—

VISCOUNT DILHORNE

I do not think it does.

LORD FOOT

Then I take the noble Viscount's point. If it does not go far enough, then I shall be only too anxious to find words that will carry it all the way. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

EARL ST. ALDWYN

I said earlier that we would adjourn the Committee stage of this Bill at 8 o'clock. The next Amendment is an extremely important one of principle, and I know that a large number of your Lordships have stayed particularly in order that you might record your verdict about it. On the other hand, I feel that it is an Amendment which will take a considerable time to discuss, and it would mean that the rest of the business would be extremely late. Therefore, if your Lordships agree, I would move that the House do now resume on the understanding that the proceedings on the Bill should be continued as first business on Thursday.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.