HL Deb 12 July 2001 vol 626 cc1225-9

6.58 p.m.

Lord Rooker

rose to move, That the draft regulations laid before the House on 20th June be approved [First Report from the Joint Committee].—(Lord Rooker.)

The noble Lord said: My Lords, this statutory instrument relates to new sections inserted into the Police and Criminal Evidence Act 1984 by the Criminal Justice and Court Services Act 2000, which introduced new powers for the compulsory drug testing of offenders and alleged offenders at various points of the criminal justice system, including the testing of persons in police detention.

The purpose of these regulations is to prescribe the persons who, if certain conditions are met, may take a sample of urine, or a non-intimate sample, from a person in police detention, for the purpose of ascertaining whether he has any specified Class A drug in his body. The conditions and procedures for such testing are set out in new Sections 63B and 63C of the Police and Criminal Evidence Act 1984, as inserted by Section 57 of the Criminal Justice and Court Services Act 2000.

Under these new provisions, police officers will have the power to request persons aged 18 or over in police detention to provide a sample of urine or a non-intimate sample, such as oral fluid (saliva), for the purpose of testing for any specified Class A drug where the person concerned has been charged with a "trigger" offence (as set out in Schedule 6 to the Criminal Justice and Court Services Act 2000), or has been charged with an offence and a police officer of inspector rank or above, who has reasonable grounds to suspect that the misuse of a specified Class A drug caused or contributed to the offence, has authorised the taking of the sample.

The Class A drugs concerned are heroin and cocaine, including crack, as currently defined in the Criminal Justice (Specified Class A Drugs) Order 2001 (SI 1816/2001), laid before Parliament on 10th May. The "trigger" offences are offences under various provisions of the Theft Act 1968, mainly relating to acquisitive crime, and certain offences under the Misuse of Drugs Act 1971, if committed in respect of a specified Class A drug.

The draft statutory instrument, in compliance with Section 63B(6) of the Act, defines the person who may take samples from persons in the target group. The classes of prescribed person in regulation 2 are intentionally wide. It is proposed that, in addition to police officers (as provided for in sub-paragraph (1)(a)), the persons prescribed to take samples should also include persons employed by the police force or police authority for this purpose among other duties, and persons employed by a contractor engaged by the police authority or police force to provide the drug testing service.

Sub-paragraph (1)(b) provides for police forces or police authorities to employ civilian staff directly for this purpose among other duties. This would allow for a similar arrangement to that which already exists in some police forces, where civilian staff—sometimes referred to as "civilian detention officers"—are recruited to carry out fingerprinting and other processes, including the taking of DNA swabs, within the custody environment.

Sub-paragraph (1)(c) extends this further to allow the possible future use of persons employed by other bodies contracted by police authorities or police forces to provide the service of taking samples for this purpose.

The draft regulations will provide flexibility to police forces and police authorities to use non-police personnel to take the samples when considered appropriate, and thereby free up police officers for other duties. The Association of Chief Police Officers drugs sub-committee, the Association of Police Authorities and the police forces involved in the pilot drug testing programme were included in those consulted about the persons to be prescribed to take samples.

The regulations are subject to the affirmative resolution procedure to allow for better scrutiny by Parliament, given the intrusive nature of drug testing, especially if the sample to be taken is urine. Although the class of prescribed persons is wide, samples can be taken only following a request by a police officer, and there are sufficient safeguards in place to ensure that those taking the samples can properly carry out the task. These include training in the use of drug testing equipment and procedures; modifications being made to the PACE codes of practice in accordance with the new Section 66(2) of the Police and Criminal Evidence Act 1984 in connection with the exercise by police officers of their powers under Section 63B; and guidance to be issued to the police, which will be revised, as necessary, to ensure that any future contracting-out arrangements include safeguards in respect of training, security, health and other relevant issues in relation to the persons who will take the samples.

The provisions for testing persons in police detention are to be piloted initially in three police force areas, Nottinghamshire. Staffordshire and part of the Metropolitan Police district. For the purpose of the pilots, only non-intimate samples, oral fluid (saliva), are to be taken, making use of the advancements in drug testing technology. The use of oral fluid is less invasive and avoids some of the health and safety and human rights issues associated with urine testing.

Approval of the draft regulations will help provide police forces and police authorities with sufficient flexibility to engage staff to undertake drug testing now and in the event of further implementation in other areas.

I shall be happy to answer further questions in relation to the regulations. The House will know that SI 2254/2001, which is subject to the negative procedure, also relates to this issue. It gives the power required to carry out the pilot projects. I commend the regulations to the House.

Moved, That the draft regulations laid before the House on 20th June be approved [First Report from the Joint Committee].—(Lord Rooker.)

7.15 p.m.

Viscount Bridgeman

My Lords, this is the first occasion on which I have had the pleasure of speaking opposite the Minister. With due deference as a Whip, I congratulate him on his performance during his first two weeks at the Dispatch Box in your Lordships' House, in particular on the prisons' debate last night.

These regulations have the support of my party. The Minister has answered the points which were of some concern to us. This is a pilot scheme and I understand that it will not be rolled out until it has been properly evaluated. He has also covered the question of the training of civilian personnel, which we regard as of paramount importance. We have been assured that the operation will at all times be closely monitored by a police officer.

I wish to raise only one other point. During the passage of the Bill in another place, my right honourable and honourable friends made the point that Class B drugs, particularly amphetamines, might be included. The then Parliamentary Under-Secretary of State said that, in the Government's view, it was not appropriate at that time. Has the Minister had any further thoughts on this point? Otherwise, we support the regulations.

Lord McNally

My Lords, it may have been a technical oversight, but the Minister did not make the usual declaration that this statutory instrument is compatible with the Human Rights Act. I am sure that it is, but Ministers usually do give that assurance.

The Minister recognised that there are human rights aspects to these regulations. My honourable friends in another place have voiced concerns. We are talking about people who have not been convicted of any crime, and. it is therefore necessary that Parliament should look carefully at the powers that the Government and the authorities intend to take.

So far as concerns these powers, we should be very careful about what we put in place. One only has to look at the problems that various athletics and sporting bodies have had in relation to drug testing and the taking of samples to imagine what "my learned friends" might do with sample testing that had not been rigorously carried out. When this testing is being carried out by what the Minister said was an intentionally wide group of people, will there be external witnesses to verify the testing procedures? The Minister pointed out that this was partly intended to free up the police for other duties, but will the police have overall supervision and responsibility for the testing?

We welcome the fact that pilot projects will be carried out. It is an indication that the Government realise we are entering delicate areas. Will we know in advance what the definition of "success" will be for these pilot projects, or will the Government simply say retrospectively that the pilot projects have been a success? It would help to know in advance what "success" is deemed to be.

A point which occurred to me as the Minister was moving the regulations is what would be the situation if the tests produced evidence of a non-Class A drug? If testing produces a result that is outside the terms of the order but still of use in a criminal case, could that be allowed in evidence?

Overall, we, like the Opposition, accept that this is a proper way forward but that it carries some dangers. We recognise that there is now an intimate connection between the levels of violent crime and intrusive crime—that people under the influence of drugs commit crime and that crime is committed in order to provide the funds to obtain drugs. We realise why the Government are taking this route, but they are right to proceed with caution.

Lord Rooker

My Lords, I regret that I did not include a verbal statement to the effect that we were satisfied that the regulations complied with human rights legislation. We are satisfied. I probably shortened my briefing notes too much and removed a paragraph. I know that in regard to the following order I have kept that statement in the notes.

Lord McNally

My Lords, as the Opposition Whip indicated, the Minister has had such a successful first two weeks in his new post that it might be good to miss once in a while.

Lord Rooker

My Lords, they have not laid a finger on me as yet!

I am glad to have the opportunity to place these facts on record. As regards evaluation, I cannot score up what will be a success or a failure. Evaluation is not a five-minute job. It will take place over a two-year period and will continue beyond the end of the pilots. As information about changes in re-offending becomes available, we can carry out a longitudinal study. Interim reports are due in spring 2002 and 2003.

They will inform decisions on the extension of the programme. A final report will be available in early 2004. We are not rushing this matter.

I want to make one point absolutely clear for the record. The samples taken, whether they relate to Class A or Class B drugs, may not be used in evidence in respect of any offence. That is not their purpose. Samples can be taken only under the conditions that I have set out; namely, if a person is charged with certain trigger offences. I am happy to give specific details. These are generally acquisitive crimes: theft, robbery, burglary, aggravated burglary, taking of motor vehicles and obtaining property by deception. That is where we see the correlation between the use of Class A drugs and robberies and theft in order to fund a Class A drug habit. That is in some ways the purpose of the exercise.

I turn to the supervision of samples. Samples will be taken and tested in the presence of the detainee. The purpose is to identify those drug-misusing offenders who may need treatment. The drugs will be validated using the equipment provided; namely, by electronic identification. The sample will be sent to the Forensic Science Service laboratory for more detailed confirmatory analysis if the test result is disputed by the detainee—if the person says, "I haven't been on these drugs". I hope that covers the point regarding drugs for medication. The Forensic Science Service laboratory will be able to separate out the information relating to medication, which the equipment, good though it is, is unable to do. I used the term "people" widely. I was not saying that any Tom, Dick or Harry could come along and carry out this work. The idea is to give flexibility to police authorities and police forces to decide whether to use their own staff or independent contractors who are trained and qualified to carry out all the necessary procedures.

As regards Class B drugs, we do not have a smidgen of information connecting the kind of crimes that I have listed. So the pilot study is narrow, but it is nevertheless important given the amount of Class A drugs and the amount of acquisitive crime connected to them. To approach Class B drugs in the same way would not be proportionate. We can claim on the evidence we have that what we are attempting to do is proportionate to the kind of crime and what is thought to be the connection with Class A drugs. We do not have evidence that would stand the test regarding Class B drugs. Therefore, to apply the same procedures would be held as non-proportionate. I suspect that my learned friends in the judiciary would throw any such case out. The measure is highly targeted in that respect.

I have covered issues of quality, testing and the breadth of the pilot studies. As the pilots continue and we receive the reports we shall no doubt return to the matter in this House and in another place.

On Question, Motion agreed to.