HL Deb 31 March 1998 vol 588 cc265-72

10.14 p.m.

Lord Evans of Parkside

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

Moved, That the House do now resolve itself into Committee.—(Lord Evans of Parkside.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Manufacture and supply of scheduled substances]:

Baroness Anelay of St Johns

moved the Amendment Page 1, line 10, at end insert ("of the rank of superintendent or above""). The noble Baroness said: It is somewhat refreshing that I do not have to refer to an amendment number between one and about 500, as has been the case with the Crime and Disorder Bill. There is just one amendment; I hope that it is nonetheless worthy to be discussed. The amendment would restrict the wide power granted to the police under the Bill to a police officer of a specified rank.

I recognise that I may not have selected the most appropriate wording or the most felicitous way of expressing myself, or indeed the correct rank within the police force. I am certainly open to persuasion on that point. I would simply note that I have borrowed wording from Section 42 of the Police and Criminal Evidence Act 1984 which covers the authorisation of continued detention.

This Bill gives power to a constable—any constable—to grant consent to a manufacturer to continue to produce precursors when he or she has formed the suspicion that the customer who has ordered them will then use them in the course of the illicit drugs trade. At Second Reading I raised several concerns about the way in which this power might be used. I can now confirm that the Minister has satisfied my concerns on several of those points. I am grateful for the conversations I have had outwith the House with the noble Lord, Lord Evans of Parkside, who has been most co-operative on this point, and I believe that many of my worries have been met. However, there are some issues which remain unresolved.

I certainly agree with the Government that it is right that innocent manufacturers who are only seeking to co-operate with the police should be given statutory protection from prosecution. They should not be put at the mercy of administrative indulgence to escape prosecution. But I believe it is important that when we give the police statutory powers we should take care that they are both clearly and carefully defined so that we reduce the capacity for abuse as far as possible so that we are then able, first, to protect the public; secondly, to prevent corrupt police officers from misusing their powers—as I remarked at Second Reading, sadly we know that there are such officers, though those in charge of police forces much regret the fact—thirdly, to prevent collusion between corrupt police and corrupt manufacturers, though I hope that this would never happen—but, if it did, the Bill would give the manufacturer an absolute defence in that what would normally be considered illegal would suddenly become legal—and, fourthly, we should ensure that innocent and helpful manufacturers feel that they are not tainted by association with any corrupt manufacturer. It is important that we do not in any way discourage chemical manufacturers and those who work for them from reporting their suspicions to the police. I am concerned that, by the granting of such a wide power to any constable, we leave too much room for abuse. I am convinced that that is not what the Government wish to do.

At first I had considered a more prescriptive amendment which would have required the police officer to be acting in the course of his or her duty when granting the consent. I tabled such an amendment. I apologise to those noble Lords who saw that amendment and then saw it disappear. The amendment was superseded with a second one. That was simply because I took the opportunity to speak to representatives of the chemical industry. I also read carefully in Hansard the comments of the Minister at Second Reading and I also read carefully the letter from the noble Lord, Lord Evans of Parkside, which he was kind enough to send to me after Second Reading. I accepted the arguments put therein that my original amendment could have led to an unnecessary burden being imposed on the manufacturers and would not in itself have achieved my objective.

That objective is to ensure that such a serious step of granting consent by any constable to a manufacturer is taken only after serious consideration by senior police who have knowledge of this trade. I have already referred to the letter I received from the noble Lord, Lord Evans of Parkside. He made the point that it is unlikely that the kind of operation involved would be undertaken without careful preparation within the force involving comparatively senior officers. What I wish to do is to make sure of that happening rather than leave it to chance.

At this stage I would like to take the opportunity to pay tribute to the chemical manufacturers, first, for the efforts which are being made to protect against the diversion of chemicals into the illicit production of drugs and chemical weapons, but also for the fact that they co-operate fully with the Government wherever possible and the police authorities in the controlled delivery of chemicals which are destined for use in the illicit production of drugs and chemical weapons where this is expected to lead to the apprehension and conviction of criminals involved in such trade or production.

That sounds somewhat stilted language but that is simply because it has been lifted word for word from the document that the Chemical Industries Association has produced. It is its voluntary code of practice which has been in operation since March 1994. I believe that it is a valuable tool which the industry has been using in its efforts to co-operate with the police and the Government. I have also read the comprehensive practical guide which it has produced to the trade controls affecting the United Kingdom chemical industry. I am aware that the chemical industry is in regular contact with NCIS and the Home Office Drugs Unit.

I would not wish to do anything to disrupt the bond of trust which I hope is continuing to be built up between those three parts of the triangle in trying to prevent the illicit production of drugs and the precursor chemicals which will provide drugs. No doubt anything that helps to clarify the legal position of manufacturers and to prevent innocent manufacturers from prosecution must he a positive and welcome step.

I fully support the intent behind this Bill, but I believe that the amendments I have tabled for today would bring proper security to the public, the police and manufacturers, which I believe is necessary.

I have also mentioned to both the noble Lord, Lord Evans of Parkside, and the Minister that there are other matters about which I still have some concerns. One of them is the position of the police constable who may grant consent for the chemical manufacturer to continue to manufacture precursors when the police have a suspicion they may be abused for the illicit drug trade. The question I have to ask is this: wherein lies the protection for the constable? Wherein lies his or her immunity from prosecution? Is it built into the substance of this Bill, which presumably will become an Act in the not too distant future? Is it built into the statute here, whereby the fact that we are saying that the chemical manufacturer may be given this permission means that we are allowing the police officer to grant it in the knowledge that the police also will not suffer prosecution? I simply ask that so it may be a matter of record in Hansard for the protection of the police taking part in such an operation.

The second matter is one that I raised at Second Reading. I simply mention it again in the hope that the Minister may make a clear statement on this point. It is the issue of entrapment within the specific context of the Bill. The Bill has the potential to encourage and facilitate the practice of entrapment in that chemical manufacturers may well be more ready to co-operate with the police in such situations if it is clear that by so doing they will not be committing an offence. Indeed, I would expect that it is the hope of the Government and the Chemical Industries Association that the Bill will assist chemical manufacturers to come forward when otherwise they may not do so.

But that could have unfortunate and, I am sure, unintended results where, for example, it is the police who are inciting somebody to manufacture controlled drugs illegally. So we could have a situation—although I hope not—where a corrupt police officer incited a corrupt manufacturer to act. One could then end up with a situation whereby the manufacturer could say, if later apprehended, that he was given consent by a police officer.

That is the kind of situation which I am trying to avoid and why I have been seeking ways in which to put something on the face of the Bill which would allow the grave matter of a police officer granting consent to a manufacturer to be treated in a very serious way. Therefore, I eventually decided that the appropriate way of doing so would be to require that the police officer who granted such a consent should be of sufficiently senior rank that it was not a decision that could be taken on the hoof by any constable anywhere at any time in response to information received while on the streets. The decision should be taken at an operationally high level. As I have said, although I fully support the intentions behind the Bill and welcome its objectives, I have some concerns about the way in which it may operate and I therefore beg to move.

Lord Thomas of Gresford

I pay tribute to the noble Baroness, Lady Anelay of St Johns, for the careful way in which she has approached this matter, the research that she has undertaken and the inquiries that she has made, all with the intention of improving the Bill. Perhaps I may also express my gratitude to the noble Lord, Lord Evans of Parkside, for writing to me on this matter last week. I regret that I was out of the country until yesterday and was therefore unable to reply.

I accept the argument that has been put forward by the noble Baroness that there is a need to limit the scope of the consent that can be given under the proposed new Section I A. I have followed her argument and I fully accept that her suggestion that the "constable" should be an officer, of the rank of superintendent or above", is a sensible and practical way of approaching the problem. It gives confidence and protection to the manufacturer and avoids the corrupt situations to which the noble Baroness referred earlier. Accordingly, I support the amendment.

Viscount Waverley

While being delighted that precursors are receiving much-needed attention, I welcome the thrust of the Bill. I did not speak at earlier stages, for which I apologise, but I arrived back from central Asia only this afternoon.

Anything that will achieve a tightening of co-operation in controlled deliveries is to be welcomed; is much needed and is required by all participants at all levels in the fight against drugs with regard to the impact of precursors. I drew attention to that point on 9th December in an Unstarred Question.

However, I oppose the amendment. It is clear to me that those involved in the fight against drugs need potential bottlenecks, with their inherent delays, avoided to ensure overall effectiveness. There needs to be much greater input in decision-making at junior levels. I believe that the amendment would be viewed as unhelpful.

Lord Williams of Mostyn

We do not really understand the need for the amendment, in that the purpose of the clause is to protect the supplier of scheduled substances from prosecution in circumstances which would otherwise be unlawful. The supplier is helping the police to bring to justice an illicit producer of controlled drugs—or a potential producer. He has no interest in where the consent comes from.

I understand the concerns of the noble Baroness about entrapment and the use of agents provocateurs. If any operation involving the sale of precursor chemicals involved the use of covert policing techniques, it would in any case be likely to require authorisation at ACPO level. The noble Baroness will remember the precedents: Sections 50(3) and 51(5) of the Drug Trafficking Act 1994 and Section 12(2) of the Prevention of Terrorism (Temporary Provisions) Act 1989. Those are sufficiently serious precedents, to which I imagine that my noble friend turned for assistance. A police officer would not be committing an offence by granting the consent which the Bill allows.

I am very grateful for the support of the noble Viscount who, on a number of previous occasions, has either corresponded with me or asked Questions in your Lordships' House about this very important matter.

10.30 p.m.

Lord Evans of Parkside

I thank the noble Baroness, Lady Anelay of St Johns, for the helpful discussions that we have had. I also congratulate her on the work that she has put into this small but very important subject. I have been very impressed by the work that she has done and the people she has contacted to ensure that everything humanly possible has been done to improve the Bill.

At Second Reading the noble Baroness referred to entrapment. This point was also raised by the noble Lord, Lord Thomas of Gresford. A distinction must be drawn between entrapment and the actions of an agent provocateur. I understand that the guidelines of both the Home Office and the Association of Chief Police Officers make it quite clear that the police should not act as agents provocateurs to incite or counsel offences. That seems to be right and proper, and I am sure that the Committee agrees with it. But, subject to the safeguards provided by the court, I do not envisage similar objections to operations that help to catch individuals who intend to commit offences anyway. There have been examples in the past which have brought many serious criminals to justice. I suggest that the Bill does not give rise to questions of principle about the conduct of operations involving precursor chemicals which already apply to other operations, for example drug trafficking. To treat it differently would be inconsistent and unnecessary.

The main amendment would set the lowest threshold at which the police could give consent to the supply of scheduled substances in circumstances that would otherwise be unlawful. I join the noble Baroness in paying tribute to the chemical industry and individual companies which have worked very hard with the authorities to try to minimise the impact of the illegal drug trafficking which unfortunately goes on at too high a level in this and other countries. But it is unusual to specify in statute the rank at which particular action may be taken by the police. Such decisions are normally left to the discretion of chief officers of police. I understand that, in instances where a minimum rank is specified in statute, very important matters are at stake. For example, a superintendent is required to authorise detention without charge beyond 24 and up to 36 hours in the case of a serious arrestable offence.

It is important to remember that constables are entrusted with very considerable powers—for example, to stop and search people and vehicles and exercise powers of arrest. I also look to the Drug Trafficking Act 1994 and the Prevention of Terrorism (Temporary Provisions) Act 1989 as the best precedents to follow in this Bill. Both go only so far as to specify that the consent should be that of a constable. The noble Baroness explained that she was not absolutely wedded to superintendent as the rank at which consent should be given. At one level that is perhaps a good idea because, as a rank, superintendents are not thick on the ground. But it is worth noting the words of the noble Viscount, Lord Waverley. He referred to the danger of creating bottlenecks in issues of this kind. For example, presumably a search would have to be made for the particular officer who might not be closely involved in the particular affair.

Based on precedents in other legislation, I do not see the need for any rank other than constable to be specified. While I appreciate the tremendous work that she has put in, in all the circumstances I hope that the noble Baroness, who has listened to the Minister, and, I hope, my own modest contribution, will not seek to press her amendment at this stage.

Lord Burnham

Before the noble Lord sits down, perhaps I may draw his attention to the custom of the English language whereby for at least 500 years the word "constable" has been used, as I am sure he is aware, as the definition for anyone who is connected with the prosecution of the law, and that therefore the use of the word "constable" may well be considered to be valid and reasonable in the context of the Bill for that very reason.

However, we are now at the end of the 20th century. Many of us are accustomed to the use of "PC"—not politically correct in this context, but as a police constable. We consider that the constable is the man of no rank. He does not have three stripes on his arm and has not become a sergeant. Therefore in the context of the Bill, should not the noble Lord be a little more definite as to what is the police rank of the man who may be permitted to give authority in these cases?

Sadly we are only too familiar, in the case of the Metropolitan Police, of instances of police constables who may be considered to have misbehaved in one way or another, and possibly be corrupt. We might hope that someone of the rank of superintendent or above may be that much more responsible. We must not have someone who is corrupt who may misuse his rank or his power in such cases.

At a later stage in the Bill it might be desirable that further thought be given to that matter. I am sure that at this stage in the evening my noble friend will not press her amendment. However, perhaps further consideration could be given to the Bill's wording so that we define a little more carefully for the public what we mean and who are the persons who may have the authority to give a judgment as to whether permission should be given for any of these things to be used. I thank the noble Lord for giving way.

Lord Evans of Parkside

The noble Lord has made some important points. One of the things that I have discovered about this place which is different from the other place, is that, unlike the other place, we have the opportunity to have a Third Reading at which further amendments may be tabled leading to further discussion.

I note the point that the noble Lord made. The noble Lord referred to the Metropolitan Police and some of the dreadful and sad cases that we have seen in recent months. The noble Baroness referred also to that matter. When we think of corruption within the Metropolitan or any other police force, we should not think only of constables. Sadly and unfortunately, there has been corruption and convictions which have gone far beyond the rank of constable.

We read from time to time about drug trafficking and the illegal drugs trade. I have read that a million pounds or hundreds of thousands of pounds offered in bribes is not uncommon. I shall consider what the noble Lord said about the word "constable", and, if necessary, we could return to this matter on Third Reading. I note what he said about the noble Baroness, but it will be for her to tell the Committee what she proposes to do.

Baroness Anelay of St Johns

I am grateful to my noble friend for his intervention at this late hour, which I warmly welcome. I am pleased that he wishes us to look more carefully at definitions. One of the definitions that I might remind the Committee was raised on Second Reading was that of agent provocateur. I look at the Government Chief Whip in the context of the timing of the end of our business today, and the definition of that phrase becomes a little clearer.

I return to the substance of the Bill. The Minister referred to the fact that the Bill would protect the innocent chemical manufacturers and I greatly welcome that. However, I believe that there is a necessity to bear in mind the protection of the public, too. That is the reason why I brought forward this amendment. An action as important as granting consent to a manufacturer to continue to manufacture substances, suspecting that they will be used in an illegal drugs trade, is so serious that it ought to be taken in the full knowledge of a senior officer of the police force.

I do not intend to divide the House or to press the matter further. As the noble Lord, Lord Evans of Parkside, mentioned, there is in this House the prospect of Third Reading. I give a commitment that I do not intend to seek a Report stage. I have no wish to prevent the Bill from becoming law as quickly as possible so that it may protect the chemical manufacturers who are assisting the police. In bringing the amendment forward, I am trying to ensure that we also protect the public. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment.

Report received.