Lords Sitting of 7 July 2003

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.

European Constitution
Lord Blackwell Lord Blackwell asked Her Majesty's Government:
Whether they will undertake to provide Parliament with an article by article analysis of the draft European Constitution, setting out where and how proposed European Union powers differ from those in existing treaties and what scope is provided for the future extension of European Union powers.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the Government will produce two Command Papers in July on the work of the convention and a White Paper in advance of the intergovernmental conference due to begin in October.
Lord Blackwell: My Lords, I thank the Minister for that encouraging reply. Will the Command Papers or the White Paper set out the detailed analysis that I requested in my Question? Secondly, given the complexity of the issues, will it be possible for officials to be made available to brief Members of the House on some of the issues, perhaps through the Joint Committee on the European convention?
Baroness Symons of Vernham Dean: My Lords, so far only parts 1, 2 and 4 of the convention are in draft. We hope to have part 3 later this week. The two documents on the convention will be largely factual statements of what is contained, although I understand that there will be a foreword by my right
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honourable friend the Foreign Secretary on the documents dealing with the convention. They will not contain the detailed analysis that the noble Lord is looking for. We will publish the White Paper in preparation for the IGC, as we have done for previous IGCs. I cannot be definitive about the form of that White Paper, but I take the noble Lord's point that it is important to have some documentation that describes more of the detail. I cannot tell the noble Lord whether we will do it article by article for 460 articles, but I have discussed it with my right honourable friend the Foreign Secretary. We are seized of the issue and we will endeavour to be helpful to Members of this House and another place.
Lord Rees-Mogg: My Lords, does the Minister agree that the eventual ratification of the treaty will require the full informed consent of the British people?
Baroness Symons of Vernham Dean: My Lords, we have been over this before. If by that the noble Lord means to imply a referendum, I am sorry to have to disappoint him, as I have had to disappoint some of your Lordships on previous occasions. As your Lordships are aware, in Britain Parliament has the opportunity to scrutinise treaties before ratification. That has happened with all the European treaties since we joined the European Community and that is planned for this treaty too.
Lord Howell of Guildford: My Lords—
Lord Maclennan of Rogart: My Lords—
The Lord President of the Council (Lord Williams of Mostyn): My Lords, could we hear the noble Lord, Lord Howell, first and then perhaps the noble Lord, Lord Maclennan?
Lord Howell of Guildford: My Lords, I am extremely disappointed by the Minister's reply. We are dealing with extremely contentious issues. At the very least we should be talking about Green Papers and Select

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Committee inquiries rather than White Papers and Command Papers. We have learnt not to have much trust in some of the Government's publications and dossiers. These issues have two or three sides and need very thorough public debate. Is the Minister really saying that we are going straight from here to White Papers on what amounts to a new Treaty of Rome, encompassing all the previous treaty legislation for the European Union? Is she really saying that the issue can be settled by just White Papers and parliamentary debate when eight other countries are going to have referendums, the constitutional implications are clear and the outcome is highly debatable and will influence this country for years to come? Her proposals are inadequate.
Baroness Symons of Vernham Dean: My Lords, I have not proposed anything except to say that there are definitely plans for two Command Papers and one White Paper. I have not ruled anything out. I specifically told the noble Lord, Lord Blackwell, that Her Majesty's Government would try to be as helpful as possible on the issue and that I was discussing it with my right honourable friend the Foreign Secretary and my honourable friend the Minister for Europe. I understand that the Constitution Committee of your Lordships' House has already made a request similar to that made by the noble Lord, Lord Blackwell. I am sure that the European scrutiny committee will also have a view on the issue. I am happy to talk to the chairmen or to the full committees, both of which have a strong interest in this matter, to learn what they would find helpful. The specific suggestion made by the noble Lord, Lord Blackwell, has not been ruled out. I made it clear that it was under discussion.
Lord Maclennan of Rogart: My Lords, we very much welcome the Government's commitment to publish their view, particularly in view of the fact that, on Friday at the last plenary session of the convention, the noble Baroness, Lady Scotland, felt moved to list so many objections to the draft of part 3, which was in front of the convention, that it almost called in question the Prime Minister's judgment that the convention's findings form a basis for negotiation. Can the Minister make it clear that in one or other of their publications, the Government's objections—which now look far greater in number than those of any other participant in the convention—will be made available so that we can decide whether, once again, we resemble the Scottish mother looking at her son marching with the soldiery, saying, "Look, look, they are all out of step but our Jock"?
Baroness Symons of Vernham Dean: My Lords, as we know, there is a wide variety of views about the convention, not only in your Lordships' House but elsewhere. The Government's detailed position will be set out in a White Paper published in preparation for the IGC. That will explain the Government's position on the issues in relation to a constitution. I hope that your Lordships will find that helpful.
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The noble Lord, Lord Blackwell, asked for something slightly different. He wanted a comment, article by article, on the 460 articles of the convention, and he wanted explanations as to how they might be an extension of European powers. I understand the noble Lord's point; it is slightly different from the rather more strategic overview of the Government's position on different parts of the convention. As I have made clear to the House, what he has asked for has not been ruled out or agreed but is under discussion, and the Government are seeking to be helpful to your Lordships in another place.
Lord Stoddart of Swindon: My Lords—
Lord Harrison: My Lords—
Lord Williams of Mostyn: My Lords, it is the noble Lord, Lord Harrison, I believe.
Lord Harrison: My Lords, can the Minister explain why those who wish to defend the British constitution in this House undermine it by calling for extra-parliamentary processes such as referendums?
Baroness Symons of Vernham Dean: My Lords, it is up to them to defend their position. The Government have been very clear that we have great faith in parliamentary democracy in this country. It is at the heart of our system, which is not a system that has been based on referendums. I am bound to say to your Lordships that what was good enough for the other side when they were in government is good enough for this side when we are.
Lord Stoddart of Swindon: My Lords—
Lord Campbell of Alloway: My Lords—
Lord Williams of Mostyn: My Lords, we are out of time on this Question.

Constitutional Change: Civil Service Advice
2.46 p.m.
Lord Sheldon Lord Sheldon asked Her Majesty's Government:
What was the role of the Civil Service in advising them on their recent decisions on constitutional changes.
Lord Williams of Mostyn: My Lords, the Civil Service played a full part in advising the Government on the recent announcement of proposals for constitutional change, consistent with the requirements set out in the ministerial code and the Civil Service code.
Lord Sheldon: My Lords, has my noble and learned friend seen the evidence given by three former Permanent Secretaries to the Cabinet to the ably chaired Public Administration Committee in another

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place that they would have expected to give advice on major machinery of government matters? With regard to the recent changes, can he say whether the advice given by leading civil servants was inadequate, particularly with regard to the amount of time required to carry out their investigation? Was the advice mistaken, and was inadequate attention paid to that advice?
Lord Williams of Mostyn: My Lords, no, in my experience the advice of senior civil servants has never been inadequate. I say that without any sense of overt or covert irony. It is for civil servants to give advice, as set out in the ministerial and Civil Service codes. Ministers are obliged to pay careful attention to that advice but, at the end of the day, as the noble Lord, Lord Fowler, said in the title of his book, Ministers decide.
Baroness Williams of Crosby: My Lords, in the light of that question, the House will be aware that there is great concern in the House, particularly over the way in which the change in the role of the Lord Chancellor was handled. Can the noble and learned Lord tell us whether the Clerk of the Parliaments and the Secretary to the Cabinet were consulted? Does he recognise that, at this time when apologies are very fashionable, this House perhaps deserves some apology?
Lord Williams of Mostyn: My Lords, I know that the noble Baroness was not here on the occasions when I expressed regret and apology. I am not sure that we can endlessly revisit the question of apology. On the first available occasion I said that I regretted the discourtesy, if your Lordships felt disapproving, and I apologised for it. I do not think that I can apologise more than once. I am sure that is good for the soul, but it does not seem to work for me.
It is wrong and invidious to specify any individual civil servant who might have given advice. Ministers had regard to the ministerial code and they came to a judgment. Some of your Lordships believe that the judgment was wrong, and that is your Lordships' prerogative.
Lord Crickhowell: My Lords, I believe that the noble and learned Lord said on two occasions that civil servants were consulted about the announcements. Were they consulted before the decisions were taken?
Lord Williams of Mostyn: My Lords, yes.
Lord Morris of Aberavon: My Lords, was advice tendered that it needed legislation to deal with the office of the Lord Chancellor and that it would take at least a year for that to take place?
Lord Williams of Mostyn: My Lords, I was not privy to any particular advice about legislation or a legislative timetable, but there is no doubt that it was well appreciated that some degree of legislative change would be required—not least because, as my noble and learned friend points out by necessary implication,
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some of the Lord Chancellor's functions are statutory and could therefore only be changed either by Order in Council or by statute.
Lord Brittan of Spennithorne: My Lords, one might come to the simple conclusion that, whoever is consulted or not consulted, when major changes in policy are mixed up with the personalities involved in a reshuffle, a government will end with egg on their face.
Lord Williams of Mostyn: My Lords, I am sure that the noble Lord has experience of that particular scenario, but I would not want to intrude unnecessarily into private grief. The fact is that I have yet to hear any dissent from the policy announcements; namely, an independent supreme court and an independent judicial appointments commission. Those are the policy aspects. I accept that it is good summer sport to complain about presentation, but I urge your Lordships to go to the substance and not stay flicking about the surface
Lord Saatchi: My Lords, when something goes wrong so badly as requires the noble and learned Lord the Leader of the House to apologise, does he think it is worth looking at the decision-making process which led up to the announcement? Am I alone in having slightly lost the plot in terms of what the nature of the relationship is between civil servants, Ministers, special advisers, special special advisers and all the many bodies in the Cabinet Office—the Prime Minister's Reform Strategy Group, the Prime Minister's Strategy Unit, the Prime Minister's Delivery Unit etcetera? I think that the Prime Minister recently said that he understood that it was possible to have too many targets. Does the noble and learned Lord the Leader of the House think that it is also possible to have too many cooks in No. 10?
Lord Williams of Mostyn: My Lords, the noble Lord, Lord Saatchi, said that he had lost the plot. I hope that is not true; otherwise, it would mean that Saatchi was not working.
Lord Peyton of Yeovil: My Lords, is the noble and learned Lord aware that not even his skills in presentation—and we all know how considerable they are—are likely to allay in anything except the very long term the deep unease that this episode has caused?
Lord Williams of Mostyn: My Lords, I hope that it is not simply presentation but I recognise that there is deep unease about it. That, I am sure, will pass. What we need to focus on I respectfully suggest, consonant with what this House normally tries to do, is to see what the policy changes are and whether we approve of them or not. I gently repeat to your Lordships that I have heard no one suggest that we should not have an independent supreme court or that we should not have an independent judicial appointments commission. Those

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are extremely important constitutional changes and they constitute a devolution of power from an executive where they probably ought not to have been.
Lord Swinfen: My Lords, as the noble and learned Lord the Lord Chancellor is an office holder of this House, will any legislation affecting his position and role be started in this House?
Lord Williams of Mostyn: My Lords, I cannot possibly say that. Indeed, it would be presumptuous of me to try to pre-empt the conclusions of the Select Committee which was set up only a few days ago. We ought to pay careful attention to any such recommendations that it may bring forward.

Zimbabwe and Southern Africa
2.52 p.m.
Lord Blaker Lord Blaker asked Her Majesty's Government:
What is their estimate of the effect on neighbouring countries of the situation in Zimbabwe.
Baroness Symons of Vernham Dean: My Lords, the Zimbabwe crisis is damaging regional economies and has adversely affected their interest rates, inflation, foreign direct investment and tourism. A study by the Zimbabwe Research Institute in May estimated the total cost to the combined Southern African Development Community countries to have been at least 1.88 billion dollars at the end of 2002. Zimbabwe's neighbours are also suffering damage to local production from the influx of cheap Zimbabwean goods, unpaid Zimbabwean debt, an increase in largely unskilled migrants and the cross-border spread of foot and mouth disease.
Lord Blaker: My Lords, do the Government still agree with the assessment of the noble Baroness, Lady Amos, that for every year of ruination in Zimbabwe it will take 10 years to recover? That is on the economic side. On the political side, does the noble Baroness believe that the African countries are sufficiently taking into account the fact that the longer they fail to live up to their obligations under the treaty for the African Union, NePAD and the SADC, to exercise peer pressure for human rights, good governance and the rule of law in Zimbabwe, the more that will lead to various treaties losing credibility and authority?
Baroness Symons of Vernham Dean: My Lords, I agree with my noble friend the Secretary of State at DfID that the longer this goes on the more difficult it is for the African economies to recover. I mentioned Zimbabwe's unpaid debts and the effect that the crisis is having on tourism in the region as just two of the instances where matters are worsening. I was very glad
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to learn that the African Union meeting is due to take place in Mozambique on Thursday and Friday of this week. That will provide a further opportunity to sound out African opinion on prospects for inter-party talks. I hope that the noble Lord will be pleased to learn that my honourable friend Hilary Benn, the Minister of State at DfID, will attend that meeting in Maputo.
Baroness Northover: My Lords, only last week the Mayor of Harare was here pointing out the desperate need for food aid in both rural and urban areas. Can the noble Baroness assure us that the Government will be able, given their commitments elsewhere in the world at the moment, to maintain or increase their aid to Zimbabwe in the case of this particular crisis? Given the movement of refugees across the border out of Zimbabwe, can the noble Baroness give me an idea of the progress being made by DfID and the Foreign Office in terms of developing a strategy for the whole of Southern Africa?
Baroness Symons of Vernham Dean: My Lords, we have devoted some £51 million to feeding Zimbabwe's hungry people since September 2001. We have been taking part directly in feeding 1.5 million of Zimbabwe's hungry people. We are, of course, working with international partners to maintain the pressures for change. Obviously, we work with the European Union, the United States and the Commonwealth. It is very important that, in doing all these things directly with aid, at the same time we reinforce that with pressure for a democratic solution. The Zimbabwe crisis is obviously producing a flow of refugees across its borders. One of the countries which is suffering is Botswana, which is having to repatriate around 1,000 Zimbabweans a week. South Africa's interior Minister claims that 3,000 Zimbabweans are being returned from South Africa this week. It is enormously important that we remain engaged with regional strategies to try to deal with the refugee issues.
Lord Howell of Guildford: My Lords, I know that the Government's line has been quiet diplomacy and quiet dialogue. One understands that in certain circumstances that works. But has the Minister noticed that the American Secretary of State has spoken out in very strong terms about President Mugabe's violent misrule and said that his imminent removal is a worthy and urgent goal? Has the Minister also noticed that the President of the United States is billed to speak shortly in South Africa in the same firm terms? Has the Minister further noticed that the American Congress has passed resolution after resolution pointing out the horrors taking place as the Zimbabwean economy collapses? Does the Minister think that it is time perhaps to revise the Government's approach and side more strongly with the Americans and others in bringing to an end Mugabe's hideous and cruel rule?
Baroness Symons of Vernham Dean: My Lords, I very much welcome what the United States has done over this, particularly what Secretary of State Colin Powell said in relation to what is going on in

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Zimbabwe. There was a quite disgraceful counter-attack from the Herald newspaper which referred to him as,
"a disgraceful Uncle Tom who always sang to his master's voice to the detriment of social justice and the rights of people of colour".
That was a quite disgraceful thing to have said.
I am also pleased that President Bush will visit five African countries and will talk to President Mbeki among others about Zimbabwe. But let me respond to the noble Lord. He said that we should be more strident on this point. I put it to the noble Lord that if we were to do as he asks, we would very much play to Mr Mugabe's agenda—that every time Britain speaks on this matter, we speak as a colonial power. That is the argument that he uses with other African countries. That is why we have experienced difficulties in the United Nations. At every opportunity President Mugabe portrays us an an old colonial power. What he wants is for this to become a bilateral row with the United Kingdom, and that is what we have to guard against. Therefore, we urge others to make the points. We are quite prepared to help to make the bullets but sometimes it helps to have someone else firing them.
Lord Elton: My Lords, has the Minister seen reports that over 30 people in Bulawayo died of malnutrition last week? As she has suggested, would it not be less confrontational than my noble friend's proposed policy simply to ensure that food aid is delivered to those members of the Zimbabwean population who are presently being driven into starvation deliberately by the government of that country? Since this Question relates to the neighbouring countries, will Her Majesty's Government co-operate with them to ensure that those people receive the food aid that they already need?
Baroness Symons of Vernham Dean: Yes, my Lords; I strongly agree with the noble Lord's comment. The shortages in Zimbabwe are made a great deal worse by the regime's imposition of untenable prices and by the fact that the government try to have a monopoly on the distribution of food. That has been one of the main causes of the worsening of the already appalling plight of so many people in Zimbabwe. We have been working with other international organisations, as I indicated in my answer to the noble Baroness, Lady Northover. It is enormously important that we try to work round the Zimbabwe administration in order to ensure that food gets to where it is really needed.

Police Forces: Retention of Officers
3 p.m.
Lord Bradshaw Lord Bradshaw asked Her Majesty's Government:
What action they are proposing to deal with the problem of retaining police officers in forces around London.
Lord Bassam of Brighton: My Lords, we share the concern that forces around London should be able to retain the services of experienced and skilled officers. We have worked closely with chief constables and police authorities in the South East to put in place a range of targeted measures to assist retention. We shall continue to work with forces to monitor the effectiveness of those measures and to consider any further steps that may be necessary.
Lord Bradshaw: My Lords, I thank the noble Lord for that reply. However, I draw his attention to the fact that the retention crisis in the South East is getting worse by the month, and has been worsening for nearly three years. It is of great concern to all chief constables that those leaving forces around London are the experienced, trained officers—firearms officers, experienced detectives and those with long service. The measures that the Government have put in hand have not yet worked. Do they have further proposals in mind to stem the crisis?
Lord Bassam of Brighton: My Lords, the noble Lord is right to say that there is a particular problem in the South East. We have long recognised that. The noble Lord asked me a Question some three years ago on this matter. It is for that reason that we have put in place a whole package of targeted retention measures. The happy story for the Thames Valley Police Authority is that in the past few years its numbers have started to rise. It has 135 more officers now than it had in March 1997. The noble Lord makes a good point about experienced officers leaving the service. For that reason we have put in place the 30-plus retirement scheme, which I understand is beginning to bear fruit.
Viscount Bridgeman: My Lords, will the noble Lord accept that forces in the South East are in an uncomfortable position? On the one hand, there are the weighting attractions of the Metropolitan Police, and, on the other, the attractions of the lower cost of living of forces outside the South East? Will the Government consider extending the joint equity house purchase scheme that is currently available in the Thames Valley, Surrey and Hertfordshire to forces in Essex, Kent, Bedfordshire, Hampshire and Sussex?
Lord Bassam of Brighton: My Lords, the scheme was introduced only recently—in March this year—and, as I understand it, is proving to be of value. We shall keep this matter carefully under review. If appropriate, Ministers will no doubt want to give careful consideration to extending the scheme to other forces in the South East that have a particular problem with retention.
Baroness Gardner of Parkes: My Lords, are community police officers now an actual force on the ground in London, and, if so, how many are there? In earlier debates we referred to the need for recruits who are not fully trained but who will supplement the numbers.
Lord Bassam of Brighton: My Lords, I am sure that the noble Baroness is aware that under the Police Reform Act we made available schemes for what were described as community support officers. That scheme has had a very successful start within the Metropolitan Police Service area. My understanding is that financial provision was made up to 500 additional police officers in the first instance.
Baroness Uddin: My Lords, are the targets being achieved in terms of recruitment among the minority communities? Does he agree that that would go some way to assist in meeting the overall recruitment target for police officers in London?
Lord Bassam of Brighton: My Lords, I agree with the noble Baroness's last point. Yes, it makes a considerable contribution to recruitment and to ensuring that we reach the target numbers that we wish to reach for the police service as a whole. Although I do not have the statistics to hand, I know that we are making progress in increasing the numbers of ethnic minority members in the police service. I am happy to make the figures available to the noble Baroness at a later date and share them with other Members of this House.
Lord Elton: My Lords, having observed community support officers on duty on one occasion, my question is: should not some thought be given to making them look more like police officers and less like traffic wardens?
Lord Bassam of Brighton: My Lords, I believe that community support officers are offering a reassuring presence on the streets and are doing fine work. I take the noble Lord's point. The other side of the argument is that people have expressed the view that community support officers are one thing and police officers are another, and that they should not be easily confused.
Lord Brooke of Sutton Mandeville: My Lords, can I enlarge the Minister's geographical perspective by saying that the problem also exists in Wiltshire, which the Boundary Commissioners believe to be in the South West rather than in the South East?
Lord Bassam of Brighton: My Lords, I am sure that Wiltshire Police Service is busy and active in recruiting new officers. Its statistics for the past two years indicate that they appear to be enjoying an additional number of police officers, in line with most other England and Wales forces?
Baroness Sharples: My Lords is not the issue of retention the most important part of this Question?
Lord Bassam of Brighton: My Lords, is it very important that we retain experienced police personnel. I made reference earlier to the 30-plus scheme, which is now in its second phase and is proving very successful. As well as bringing in new recruits—and we
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are hitting and surpassing our targets—we also need to retain experienced police officers who have a great deal to offer the communities that they serve.

Business
3.7 p.m.
Lord Grocott: My Lords, with the leave of the House, at a convenient time after 3.30 p.m., my noble friend Lady Symons will repeat in the form of a Statement the Answer given in another place by the Foreign Secretary to an urgent Question on the imprisonment and trial of two UK nationals at Guantanamo Bay.

Dealing in Cultural Objects (Offences) Bill
Brought from the Commons; read a first time, and ordered to be printed.
Legal Deposit Libraries Bill
Brought from the Commons; read a first time, and ordered to be printed.
Sustainable Energy Bill
Brought from the Commons; read a first time, and ordered to be printed.
Marine Safety Bill
Read a third time, and passed.

Criminal Justice Bill
3.9 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Dholakia Lord Dholakia moved Amendment No. 31:
After Clause 8, insert the following new clause—
"DESTRUCTION OF FINGERPRINTS AND SAMPLES

(1) Section 64 of the 1984 Act (destruction of fingerprints and samples) is amended as follows.

(2) In subsection (3) the words ", except as provided in the following provisions of this section," are omitted.

(3) Subsections (3AA), (3AB) and (3AC) are omitted."

The noble Lord said: The amendment relates to the further extension of circumstances in which the police may take non-intimate samples from a person in police detention. That includes taking such a sample from a person arrested for a recordable offence. Such samples can be taken without the consent of the individual. It only requires the authorisation of an inspector. The new power is available whether or not the sample is required for the investigation of an offence in which the person is suspected of being involved.
One of the powers being given to the police is that DNA profiles extracted from arrested persons will be added to the DNA database and checked for matches with DNA taken from crime scenes. We have no difficulty in accepting that the action proposed is minor and that the process will benefit crime detection and help to protect the general public from criminality. At the heart of the debate is the argument, advanced by Justice, as to whether it is appropriate or necessary in a democratic society to permit the state to obtain and retain information from innocent persons. If the database is not considered appropriate, then there is no logic in allowing the police to retain such samples or profiles.
The public is always happy to co-operate on cases where DNA is sought from a large number of people to assist in solving heinous crimes. However, if it were generally known that people who are not proceeded against or are found innocent in court might have the samples and profiles retained, ordinary members of the public would find it difficult to co-operate in establishing a national, perhaps international, database, on which they had no say whatever. I draw the attention of the House to the report of the Joint Committee on Human Rights. It says:
We draw the attention of each House to the risk that the database might lawfully be put at the disposal of foreign investigators and intelligence agencies conducting speculative 'fishing expeditions' in circumstances where the law governing the work of the foreign agency requesting information offers little or no protection for privacy-related rights in relation to personal data held by public authorities. We also draw attention to the lack of clarity in the allocation of legal responsibility for securing compliance with Convention rights".
The number of profiles now being held total over 2 million. We could be adding another 300,000 arrestees a year to that number. We do not oppose samples being taken to determine whether or not a charge should be made. That is in the interests of the individual if he or she is innocent. We object to the proposal that this should be routine or on a continuous basis, irrespective of the charge being levelled.
Our amendment is designed to amend the Police and Criminal Evidence Act to take out the sections that allow fingerprint and DNA samples to be retained. We want to ensure the destruction of samples taken from detainees who are subsequently not charged. We have an important safeguard where courts should be the ultimate authority to determine if such samples should be kept. I am aware of the judgment of the Appeal Court in the case of S and Michael Marper against the Chief Constable of South Yorkshire. But we are now talking of the indiscriminate storing of samples and profiles. Surely the correct course of action, when the
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whole question of rights and liberties are infringed, is for the court to determine in each case whether the sample or profile should be retained.
We do this in relation to most matters in which police have to seek an order to retain or destroy material. DNA fingerprinting should not be an exception. Can the Minister tell me whether individuals would have the right to demand to see what use was being made of the samples? Would they be told if the information was being shared with international police forces? Who will be responsible for the protection of information on the database? I beg to move.
3.15 p.m.
Baroness Harris of Richmond: A short debate took place on Clauses 7 and 8 last week dealing with the taking of fingerprints and DNA samples without consent when someone has been arrested for an offence, even if subsequently they are not charged. I do not seek to reopen that debate, but it is interesting to read Hansard at those points and see how your Lordships stressed the careful balance which the present Section 61 of PACE enjoys, and the concerns expressed at the proposals within Clauses 7 and 8 of the Bill.
The taking of fingerprints and samples may well be necessary in many circumstances, but there is significant concern about the necessity to retain that data indefinitely—and. I quote the noble Lord, Lord Carlisle of Buck low. He said:
"I am worried about those whose fingerprints are taken in the course of examination and who are not proceeded against or are acquitted. Their fingerprints are retained but we do not have general fingerprinting for all people. Surely there is an issue here".
The noble Baroness, Lady Scotland, the Minister, replied:
"I accept that that is an issue. I say that is an issue about balance and proportionality. That is a debate that we should have because the Committee will know that the Government's view, particularly in relation to the most serious offences, is that the risk to the public is so great that it is worth balancing it in their favour, as opposed to destroying information which may subsequently have proved to be vital and could have assisted in the identification of crime. It is a real issue and I do not seek to pretend otherwise. It is a question of where we draw that dividing line".—[Official Report, 30/6/03; col. 714.]
So it seems that the Minister accepts that this is an area which needs further consideration and I hope that she will reassure us that that is indeed the case.
The Joint Committee on Human Rights also expressed concern about the data implications of the two clauses. I shall quote from paragraph 53 of its report, in which it concludes,
"it is not clear to us who would be legally accountable if an error on the part of any of those parties, or of one of the laboratories submitting samples of analyses for inclusion on the database, or of one of the operatives entering the data or processing them, led to an unjustified interference with a data subject's right to respect for private life under ECHR Article 8. In short, who would be the appropriate defendant in an action by an aggrieved data subject claiming to be the victims of a violation of his or her right under ECHR Article 8?"

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The noble Lord, Lord Hunt of Wirral, also quoted from that report in Hansard on 30th June at col. 708, which clearly identified the Joint Committee's unease about data retention.
We agree. There is simply not enough clarity yet in areas of responsibility for collection and retention of highly sensitive and personal data—especially if the person from whom that data is taken is never charged with an offence. There was no debate on this in the other place at the time that the Government introduced the proposals at Report stage, and it seems to us that what is proposed will add huge numbers to an already staggeringly large database—I understand that there are already 2 million samples included on it—and the concern of these Benches is that the taking of these fingerprints or DNA samples should not become routine, nor should it be a way to build up the number of profiles held on the DNA database.
I shall make one final quotation, this time from my honourable friend in another place, Simon Hughes. He said:
"This is another step on the road to holding every citizen's DNA on the national database, and it is being done with virtually no public debate. Thousands of people are arrested every year who are guilty of no crime. Their fingerprints and DNA may now be recorded and held, even if they withhold their consent".
That is our real concern. Some data will need retaining. Much more will not, and this new clause seeks, as my noble friend Lord Dholakia said, to reintroduce the ability to destroy fingerprints and samples of those who have not been charged.
Lord Alexander of Weedon: I rise briefly to support this amendment. The erosion of liberty and personal freedoms rarely takes place in a single bound. It tends to be a creeping process. It is easy to speak of any individual changing of the balance as something that continues the shaping of proportionality. At some stage the Government have to answer the question—what principle underlies the belief that it is right, without having general fingerprinting and sampling across the board, to keep the fingerprints of those people who are arrested but never charged? I have a suspicion that in this area proportionality tends always to move by degrees against individual freedoms. I hope that I am wrong, and I shall be interested to hear what the Minister has to say.
Lord Brittan of Spennithorne: I, too, support the amendment for the reasons already advanced. It seems to me that there is a case—it is not one I would support—for saying that such action should extend to the population at large or at random, or for any purpose that the police or others think appropriate. That is a case I would not support.
There is a case for saying that such samples should be retained only of those who have been charged or convicted. However, I can see no justification for treating people who have never been charged with an offence as being in a category different from the population at large. Members of the population at
16
large are not subject to such samples being taken from them and retained against their wishes. Why, therefore, should someone who happens to have been arrested but not charged be treated in a different and more adverse way? There has been no explanation of that and I would not defend it.
Baroness Carnegy of Lour: I support entirely what my noble friend Lord Brittan said. I am not sure whether he is learned but he is very distinguished. There is a case, which many of us would not support, for all fingerprints to be on the database. I shall listen with great interest to what the Minister says in reply to my noble friend Lord Brittan. It seems extraordinary to treat separately those who have not been convicted just on the off chance that it might be handy for the government of the day at a future date. That should be resisted. It is an extraordinary idea and one that the Government should withdraw if they cannot explain it properly.
Baroness Anelay of St Johns: I support the amendment, to which I have added my name. As the noble Baroness, Lady Harris, of Richmond, said, it flows on from the debates we had on Monday. Like her, I shall not reopen the debate but the principles underlying it flow into today's debate.
The Government have not proved a case for retaining the evidence of fingerprints and DNA from those people who have crossed the threshold of a police station but were never charged or arrested. As the noble Lord, Lord Dholakia, said, we are not seeking to stop the police taking DNA and fingerprints from those people they think they will charge. It is a proper course to take in the exercise of tracking down whether a person should be charged. We are saying that we should not be creating a new subgroup of people against whom action was not subsequently taken but whose DNA, taken by so-called "non-intimate" samples of swabbing or fingerprints, has been retained.
My noble friend Lord Brittan commented that perhaps there is a case for a national database on the population at large. It is not a case that he would support and I suspect that many people would not do so. But if there is such a case, it is incumbent on the Government to set it out clearly and honourably and not try to move step by step towards it. As my noble friend Lord Alexander of Weedon rightly observed, there is sometimes a creeping process of eroding liberties and somehow one ends up with proportionality. One thinks one knows what is meant, then suddenly there is a completely different and unacceptable definition.
The Government must justify the position they have taken and we do not believe that they have done so as yet.
The Lord Bishop of Newcastle: I, too, am persuaded to support the amendment. However much the individual parts of the Bill have much to commend them—and they do—the cumulative effect must be

17
considered. I worry that the power given to retain fingerprints and DNA samples indefinitely is part of a cumulative rebalancing against civil liberties.
I accept that DNA is an increasingly valuable tool in the fight against crime and that samples may be necessary to establish whether charges are to be brought. But I worry about the indefinite retention of the information, whether or not the person is charged or convicted of any offence. Is it appropriate or necessary to allow the state to retain such information from innocent persons, and to begin to create a universal DNA and fingerprint database? I believe that that is a matter for open public debate and if such a national database is judged to be appropriate and necessary it seems to me that everyone in the country should be compelled to provide samples.
There may be a strong case for holding everyone's DNA on file. If so, the case must be made openly and publicly and not be introduced bit by bit in what looks to me like stealth.
Baroness Scotland of Asthal: I thank all Members of the Committee who have participated in this short debate and I hope I shall be able to give the answers for which a number have called. The right reverend Prelate the Bishop of Newcastle and others have sought to suggest that this in an incremental approach by government who by stealth seek to in some way abuse improperly the civil liberties of those who come innocently into the system. I say straightaway that that is not the purpose or intent of the Government. The application is being made openly to the Committee to consider whether this should properly form part of the Criminal Justice Bill and we are now having a proper debate about it.
I must emphasise at the beginning that the advances we have made in DNA and fingerprinting are significant. We have the ability to use the data not just as a sword with which to pierce the criminality of those who would hide from us, but the opportunity to use the data as a shield to protect those who are innocent of any offence and are often wrongly accused. It is easy to alight on only the examples which have enabled us to convict and bring to justice those who are guilty of crime, but not to highlight sufficiently the large number of people who have been set free as a result of the data being available and capable of being utilised to their benefit and that of the public.
We read an example of that at the weekend. Many Members of the Committee will have read the case of a former sailor who spent 16 years behind bars for the murder of a barmaid and was cleared by the Court of Appeal on Thursday last week. That person remained in prison because he refused to accept his guilt and as a result could not take advantage of parole.
I very much hope that when noble Lords consider what I have to say they bear in mind that this is not simply a sword, but also a shield, and also that all those who have nothing to fear from having their fingerprints and DNA samples retained may come to find that it is
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of benefit. Having the information available can exclude people who might otherwise have been investigated. It is therefore important that the—
Lord Neill of Bladen: Is the Minister arguing that by keeping fingerprints the Crown confers a benefit on certain people? If so, perhaps the statute could say that one could have the option of having one's fingerprints retained indefinitely so that one may be a beneficiary under the scheme that the Minister has in mind.
3.30 p.m.
Baroness Scotland of Asthal: I did not say that there is a direct benefit, as the noble Lord suggests. I do not intend to deal with the matter at all facetiously; it is a very serious matter indeed. Often this is presented as all infringement and no opportunity or no benefit. I was simply highlighting that that is a very narrow way of looking at the use to which such data can and should properly be put. We are taking a balanced look at the information. It is important that we get it right. This is not a piece of sophistry; it may be of critical importance to those who come before our courts and are convicted improperly. It may also be important to victims and their families who see perpetrators go free. If we were to show a little courage, imagination and initiative, we may be able to stop certain criminal activities.
Lord Clinton-Davis: The issue is highly important. Have the Government considered the matter with the Law Society, the Bar Council, Justice and so on? Will the Minister give the Committee some idea of the consultations that have taken place?
Baroness Scotland of Asthal: Your Lordships will know that consultations took place on the whole Bill. Once I have explained the reasons why we have come to the conclusion that this is a proper stance to take, I shall answer my noble friend in greater detail. If I may, I would like to address the import of the amendment and the substance of it.
Lord Campbell-Savours: Will my noble friend confirm that the view of the lawyers on this matter is no more important than that of any other citizen?
Baroness Scotland of Asthal: Never let it be said that I suggest that lawyers are not ordinary citizens. I can assure your Lordships that there is parity of treatment.
Lord Elton: Perhaps the noble Baroness will explain the arguments that she has just advanced that the retention of fingerprints and so on of people who are not guilty of other crimes can somehow prevent them being wrongly brought before the courts and convicted of future crimes. Surely the time to take that evidence is at the time of arrest.
Baroness Scotland of Asthal: I can answer the noble Lord, Lord Elton, straightaway. However, after I have answered his point, perhaps noble Lords would allow me to answer the main import of the amendment tabled by the noble Lord, Lord Dholakia.
In answer to the noble Lord, Lord Elton, an individual may be under suspicion for a particular offence but data on the database may be capable of being compared with DNA samples taken from the crime scene. That comparative study may be able to exclude that person from the investigation so that the police never have to pursue him or her further and they can go on to consider others. That is when it becomes a great utility. There are occasions when, for various circumstantial reasons, the police may alight upon a certain individual who appears to have all the necessary components to indicate that he or she may have been involved but they can be excluded. That is why I say that it can have a beneficial effect at an early stage.
It is important that the police are able to retain all information assembled during the investigation of an offence, not least to enable them to investigate a possible miscarriage of justice in the future, as I have already indicated. The police are already able to retain other information gathered as part of the investigation, such as witness statements, photographs, and so on, and we would say that samples and fingerprints are really no different.
Furthermore, if the fingerprints and DNA samples are retained they will be available to the police in the event of that person committing an offence in the future. Law-abiding citizens have nothing to fear from their fingerprints or DNA being retained as they may be used only for the prevention or detection of crime, the investigation of an offence or the prosecution of an offence.
In the year following the amendments to PACE made by the Criminal Justice and Police Act 2001 which removed the requirement to destroy the fingerprints/DNA of persons who were acquitted, approximately 400 offences were detected involving some 300 offenders using DNA profiles that would previously have fallen to be removed from the database. Those included three attempted murders, four rapes and a number of aggravated burglaries and serious assaults.
In resisting the proposed amendment, I would like if I may, to take noble Lords back to the cases that gave rise to the amendments to the Police and Criminal Evidence Act 1984, contained in the Criminal Justice and Police Act 2001 which allowed police the discretion to keep the DNA samples of people who were acquitted or against whom charges were dropped.
The implications of the requirement on the police to destroy DNA samples in those circumstances were brought into focus in the most acute way by two cases heard together in the Court of Appeal: R v B and R v Weir. In those cases compelling DNA evidence linked the accused to two particularly bad brutal attacks on elderly people in their homes, one resulting in rape
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and the other in murder. In both cases a match was made between samples taken at the crime scene and DNA profiles on the database. However, those profiles were derived from samples that were taken in relation to offences of which the two accused had been acquitted. They therefore fell to be destroyed under the terms of Section 64 of PACE as it then was. New samples were taken as a result of the link made and it was those new samples that were adduced in evidence.
Nevertheless, the Court of Appeal concluded that the matches had been used in the investigation of the subsequent offences contrary to the prohibition in Section 64; that the trial judge had no discretion to admit the evidence and that, therefore, neither man could be convicted. As the Court of Appeal said:
"It would have been perfectly possible for Parliament to conclude that the fight against crime was so important that there should be no restriction on the use of DNA samples so that where such samples were lawfully obtained by the police the information derived from them could be retained on a database for all purposes. Whether in the light of these two cases and the repercussions in relation to other cases, the authorities or Parliament wish to revisit Section 64 of PACE is not a matter for this Court of Appeal but there can be no doubt as to the seriousness of the consequences".
The House of Lords' decision in R v B when it reached them on appeal took a rather different approach to that of the Court of Appeal. The House of Lords decided that the trial judge had discretion to admit the DNA evidence, even though it derived from a sample that ought to have been, but had not been, destroyed. The Government welcomed that decision which at least meant that where compelling evidence was available the courts were not forced to ignore it. Nevertheless, the law was left in what was, in the Government's view, an unsatisfactory state, hence the need for reform. The court might be able to look at evidence if it so happened that the relevant police force had not yet caused the profile to be removed from the database, but that would depend on a combination of chance and police efficiency.
Those two cases demonstrate in the most chilling way, the danger that lies beneath the proposed amendment. The Government at the time realised that and this is what led to the decision to remove the requirement that such samples be destroyed and not used in subsequent investigations. The Government also accepted at the time of course that the retention and use of fingerprints and samples from those who have been acquitted raised potential issues under article 8 of the ECHR, but they did not believe that article 8 required the destruction of potentially vital objective evidence.
As I have already said, we do not expect the police to destroy all interview notes or documentation relating to previous investigations, whether or not they lead to a conviction. It is accepted that information may well be relevant to subsequent investigations. Information derived from DNA samples is one of the most objective and conclusive forms of establishing involvement in a crime or, equally important, disproving involvement. We do not believe that the police should be under a duty to throw it away. The police are not given carte blanche to do with such

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samples as they will and Section 64 of PACE makes it clear that DNA samples and fingerprints can be used only for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.
We heard in our earlier debate reference to a challenge to the current provisions of Section 64 of PACE in the Court of Appeal in the case of R v Chief Constable of South Yorkshire (ex parte S and Marper.), to which the noble Lord, Lord Dholakia, referred. Those two appellants argued that the chief constable's decision to retain their fingerprints/DNA, notwithstanding that one of them wasp acquitted and the charge against the other was not proceeded with, was a breach of the ECHR. The appellants had claimed that the chief constable's decision was in breach of Article 8—the right to privacy—and Article 14—the right to non-discrimination.
As the noble Lord, Lord Thomas of Gresford, reminded your Lordships in our earlier debate, the Court of Appeal found that in those cases there was some interference with Article 8(1). However, the court also went on to find that under Article 8(2) the interference was proportional and justified. Furthermore there was no interference with Article 14. The appellants have appealed against the decision and the appeal will be heard before this House probably later this year.
I hope I have made it clear that if fingerprints and DNA samples are retained they will be available to the police in the event of the person committing an offence in the future. Law-abiding citizens have nothing to fear from this; it does not impugn their integrity or leave a stain on their character where this is perfectly normal and in the interests of detecting crime and protecting the rights of victims it is clearly desirable that the police should have every possible technological or scientific aid available to them to enable them to do so.
It is also important that the police are able to retain all the information assembled during the investigation of an offence not least to enable them to investigate a possible miscarriage of justice in the future. DNA profiles are useful, objective forms of evidence that can be used to indicate guilt or—and we must not forget this—help to establish innocence.
The noble Lord, Lord Dholakia, asked what we should do if other agencies wish to go on fishing exercises and use such samples improperly—an issue touched on also by the noble Baroness, Lady Harris. As your Lordships will remember, we dealt with that matter in part in our topical Question last week. I am happy to reiterate that opportunities for the database to be used in such a way are non-existent. The JCHR was concerned that the data might be placed at the disposal of foreign investigators and intelligence agencies conducting such fishing exercises in circumstances where the law governing the work of a foreign agency requesting the information offered little or no protection for privacy-related rights in relation to personal data held by public authorities.
There are in fact strict protocols set by Interpol for the provision of information from the national DNA database to foreign law enforcement agencies, which
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allow information to be provided to EU members but otherwise restrict the provision of information to countries with good human rights records. DNA profiles and personal identification data associated with them are held by both the laboratories that analyse the samples sent to them and the custodian. They are subject to the provisions of the Data Protection Act 1998. Their databases are registered with the information commissioner and personal data are kept securely. It is accessed only on the authorisation of designated personnel. Therefore, I hope that I have reassured noble Lords that any fear that this information may be used improperly is ungrounded.
The noble Lord, Lord Brittan, asked why people who are arrested are treated differently from the population at large. The objective difference is the fact that there has been an arrest and therefore they have come into contact with the criminal justice system, so information is obtained. We should make it clear that that is not only in relation to that person; and it is a matter that noble Lords should consider. Such information has been used to identify those who may be within the same family.
I shall give your Lordships an example. A serious offence of murder was committed. An incomplete profile was obtained from the DNA evidence available at the scene of the crime. It was not possible to identify the perpetrator from the information held on the database, but it was possible to identify a person in the perpetrator's family, because the DNA indicated similarities. From using the data available from the family member of the perpetrator it was possible thereafter to identify the perpetrator. Your Lordships should not underestimate how powerful such evidence can be.
Some noble Lords, including the noble Lord, Lord Dholakia, asked about mass screenings where people are given the option of having their sample added to the national database. Their consent is important and must be given in writing. We think there is a difference in terms of opportunity and ability. People come forward and offer themselves up for mass screenings, which we need to continue to encourage. But it is different to say that we should give up the information we have culled from an investigation because it may be used in other cases.
Your Lordships should also know that in many cases where individuals have not been charged or they have been acquitted of offences, subsequently it has been discovered when they were arrested for another offence—sometimes of a fairly minor nature—and their DNA was obtained, that they were in fact guilty of some very serious offences. There is one example where an individual was arrested in relation to a shoplifting case involving a mere £10. Thirty years previously, that individual had committed some serious sexual offences, and was able to be identified. So we have some powerful evidence that can be put to good use.
There are now approximately 2 million DNA profiles on the database—as the noble Baroness, Lady Harris, said—and approximately 180,000 crime scene samples.

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Since its launch, the database has matched over 170,000 suspects to previously unidentified DNA found at crime scenes. About 4,000 matches per month are found between the profiles of individuals and those from scenes of crime, and if a biological sample is taken from a scene of crime there is a 42 per cent chance of finding a matching profile from an individual on the database. As the number of profiles on the database increases so will the chances of identifying the individual whose DNA was found at the crime scene. In practical terms, the proposed new power in respect of fingerprints will probably be used most frequently to confirm the identity of an individual where it is in doubt rather than to check against a particular crime stain or stains. To that end, it may often be that individuals are already on the database under an alias or alternative name. One can see the huge value to which that information will be put.
Of course it is accepted that police powers to retain DNA samples and profiles of persons who have been acquitted or against whom charges have been dropped raises concerns about intrusion into personal liberty. I recognise absolutely why the noble Lord, Lord Alexander, and others raise the issue. Many of those concerns were debated in relation to Clause 7. Some people may be concerned about the building of larger databases, particularly where it relates to people who have not been proceeded against for an offence. That was the point made by the noble, Lord Brittan.
It can therefore be argued that any intrusion on personal privacy is both necessary and proportionate to the benefits for victims of crime and society generally in detecting crime and protecting the public against criminals. There are many examples of persons who have been acquitted of one offence, or have had a charge against them dropped, who subsequently commit other offences. It does not therefore stigmatise someone not convicted of any offence if it is the norm to retain fingerprints/DNA that have been lawfully obtained.
Lord Clinton-Davis: I thank my noble friend for giving way. I intervened earlier to ask what consultation had taken place between the Home Office—or whoever else is involved—and the Law Society, the Bar Council, and so on. My noble friend said that she would respond.
Baroness Scotland of Asthal: I beg the noble Lord's pardon. I do not believe that we have had specific consultation with either the Law Society or the Bar Council on the two clauses. The noble Lord will know that, in the ordinary way, consultation takes place on many of those issues.
Baroness Anelay of St Johns: I wish to register the Committee's thanks for the courtesy and detail with which the noble Baroness has presented the Government's arguments. Although we may not agree with her, we can only respect and admire her full answer. Further to the comment made by her noble friend Lord Clinton-Davis, is it not true that our particular difficulty with the clauses is rooted in the
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fact that they were only introduced to the Bill in another place on 19th May whereas the passage of the Bill began last December? As the Minister rightly said, there had been full consultation with the outside world, including both lawyers and non-lawyers, on the whole Bill. The difficulty, I am sad to say, is that the outside world took little notice on 19th May during the debate in another place. This matter will be hitting them only now. Is that not the difficulty that we face as a result of the lack of consultation on these controversial issues?
Baroness Scotland of Asthal: Of course it would have been better if we had had a fuller opportunity to discuss the matters, and if the clauses had been more fully debated in another place. One of the beauties of your Lordships' House is that we have the luxury to do just that. I cannot emphasise enough the importance of this opportunity. I am sure that we are having a very similar discussion to that which would have surrounded the decision on whether we retain the data on those acquitted. Members of the Committee will know that our practice in the past was that, if an individual was acquitted in accordance with our law and the procedures, he would be entitled to have the DNA information contained on the record expunged.
We know from the two cases that I have outlined, and the 400-plus that have followed, how important the retention of that information has already proved to be. One need only look at the newspapers to see daily proof of the good use to which DNA evidence can be put. So much evidence that comes before our courts can be besmirched, argued with and undermined because it may convict the innocent and may allow the guilty to go free. An objective tool that we can use both to free and to convict is therefore very powerful.
There need come to light only one of the sort of cases we have discussed for the public to say, "We simply do not understand why the system is deliberately disabling itself from giving us justice when the same is easily obtainable". We must address that question.
Lord Clinton-Davis: Would it not be better if, before Report stage, the sort of organisations to which I referred were consulted? My noble friend puts forward a powerful case.
Lord Alexander of Weedon: If the noble Lord could give way for one moment, I could answer one of the questions that he very thoughtfully raises as a keen supporter of Justice, of which I am chairman. Inevitably, as the noble Baroness says, there appears to have been no time to consult any bodies. But we have submitted to her very clear representations, which we have circulated to a number of noble Lords. The submission states:
"JUSTICE strongly opposes this new clause, added at the Commons Report Stage".
A later passage states:
"The issue of whether it is appropriate or necessary in a democratic society to permit the state to obtain and retain this information from innocent persons, and in effect begin to create a universal DNA and fingerprint database, is one of great

25
importance. It is an issue upon which JUSTICE believes there should be a general and open public debate. If such a database is considered appropriate then all persons, arguably, should be compelled to provide samples".
That was the point eloquently raised by my noble friend Lord Brittan. I must say to the Minister that the more I listened to her speak about how DNA samples could contribute towards establishing innocence or guilt, the more I felt that she was arguing for a national database or screening. I fail to be in the least convinced by her long exposition of how to differentiate between the innocent who are not charged but have been arrested and the innocent who have been neither arrested nor charged. That is at the heart of the debate. I regret to say that, for me, the Minister has not begun to answer that case.
Baroness Kennedy of The Shaws: I wish to raise the question of why there was no consultation with the Human Genetics Commission, of which I am the chair. The issue raised by my noble friend of how access to genetic information can assist justice raises very important matters with regard to public expectation, which have been explored by the commission. The public want to see that information used to deal with crime.
However, concerns are expressed about the creation of a national database without proper consent from the whole public. There has not been consultation on the matter. There are advocates of that approach. Professor Jeffreys, the discoverer of DNA for police investigation, has said that either everyone should be on the database or the matter should not be approached in the way that the Government propose. It would help if those involved in the issues were consulted. I am afraid that the Home Office has not been in touch with the commission that I chair. The other matter that I wish to raise—
A Noble Lord: It is an intervention.
Baroness Kennedy of The Shaws: Sorry. I wish to raise the following point because it is important. A distinction should be made between samples and matters that are purely "the barcode" kept by the police. Many advocate that the barcode could be kept but that the issue of samples is of real concern and should be debated much more publicly.
4 p.m.
Lord Dholakia: I thank the Minister. She said that we have powerful evidence for why we are recommending the retention and collection of samples, but if the case is so powerful, why was it not included in the Bill when it was first introduced in the House of Commons? As the noble Baroness, Lady Anelay, said, the matter was introduced very late in the day and I do not think that there was proper consultation. I could have quoted from Justice or the Law Society, both of which have shown great concern about the proposal that the Government are introducing.
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The issue that bothers us most is the erosion of the rights and liberties of individuals and that there has not been proper consultation with the bodies that matter. Even at this late stage, it would be appropriate for the Government to consult those organisations before Report. If they do not, I am certainly bound to consult them, bearing in mind what the Minister said.
I remind the Minister that she mentioned the case of someone who was acquitted after serving a long term in prison. But that case is not relevant to what we are discussing. The amendment would not have helped that case. The person was charged, so the sample would have been retained and there would have been no problem in that respect. We are talking about 300 or 400 out of the hundreds of thousands of cases that go before the court, so this is a matter of serious concern, unless there is a public debate on this particular issue. I do not intend to press the amendment to a Division.
Lord Clinton-Davis: If my noble friend the Minister were to say at this late stage that the Government are prepared to enter into consultation before Report, which they have not done, would the noble Lord, Lord Dholakia, be satisfied?
Lord Dholakia: I thank the noble Lord, Lord Clinton Davis, but my answer would depend on the outcome of the consultations. I have got the preliminary views from those organisations but I will certainly return on Report after further consultation with these bodies, irrespective of whether the Home Office has consulted them or not.
Lord Hughes of Woodside: I am always fascinated by demands for consultation. Have the bodies concerned made representations to the Minister? Have they asked to meet the Minister, and if not, why not? Why should it be necessary to hold up the passage of the Bill because interested bodies cannot be bothered to take the initiative?
Lord Dholakia: If the noble Lord, Lord Hughes of Woodside, had listened to some of the answers put forward, he would have heard that this provision was introduced at a very late stage in the House of Commons and I do not think that the organisations involved had the opportunity to consult the Minister. However, I do not think that it is too late to consult them, and all that I intend to do therefore is to mention to the Minister that we will certainly be in touch with the organisations. If we feel on Report that the argument about the collection of samples has not been advanced, we will press appropriate amendments to a Division.
Baroness Scotland of Asthal: I reiterate what I said right at the beginning of the debate. Of course, in relation to all or any of these matters we remain open to discussion. We have already indicated that we will have the usual meetings with the Front Bench and other interested parties between now and Report. For the sake of the record, I make that offer once again.

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I say openly both to Justice and to my noble friend Lord Clinton-Davis that, in relation to the Bar and the Law Society, in accordance with our usual practice, we will consider any representations made to us about any other issue arising from the Bill. I would love to answer the noble Lord, Lord Alexander, but I will do so on another occasion.
Lord Dholakia: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Guantanamo Bay: UK Nationals
4.4 p.m.
Baroness Symons of Vernham Dean: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable friend Mr Mullin on the imprisonment and trial of two UK nationals in Guantanamo Bay. The Statement is as follows:
"On 3rd July, the United States designated six detainees, including two British nationals held at Guantanamo Bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised and will continue to raise these reservations energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about this over the weekend and will speak to him again in a few days.
"So far, neither of the detainees has been charged. However, we have made clear to the US that we expect the process to meet internationally accepted standards for a fair trial. We will follow the process very carefully. The US is aware of our fundamental opposition to the use of the death penalty in all circumstances. If there is any suggestion that the death penalty might be sought in these cases, we would raise the strongest possible objections with the US".
My Lords, that completes the Statement.
4.6 p.m.
Lord Howell of Guildford: My Lords, I am grateful to the Minister for repeating the Statement from another place. I did not see the text in advance, which I understand. This is an answer to an urgent Question in the other place. However, I am aware of how strongly the Minister feels about the matter. I know that she feels concern that we all share about what is now proposed.
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We understand why prisoners have been taken to Guantanamo Bay and why their rights have been suspended for a time. These are people who are suspected of revolting and evil acts and I have no doubt that it was hoped—it may still be hoped—that they could reveal details about other atrocities both in the past and to be completed, which would save many human lives.
That time has now passed, however, and there is talk about trials before a military commission or tribunal. It is right for us to pursue questions now that this talk has arisen. What has actually been agreed with the American Government about the procedures to be adopted? How will they work? When will they start? What sort of legal representation will the detainees have and what are the charges? Are they to be charged with treason or something different?
Will we remind our American allies, who fought bravely and understandably in Afghanistan and suffered the most dreadful injuries two years ago, that they need to work together with their coalition partners? They should not be surprised if things go wrong when they do not work closely together. The Americans are refreshingly outspoken about our affairs, which I welcome. However, why should we not be equally firm and outspoken about theirs—although always, of course, in the friendliest possible way?
4.8 p.m.
Baroness Williams of Crosby: My Lords, my understanding has always been that one of the pillars of the attitudes and civil rights of this country is that people are innocent until they are found guilty. That is a fundamental principle and many of us are delighted that the Minister has made that clear. However, first, is the House aware that these men do not know what charges they face? They have not been told. Secondly, is the House aware that, if they are found guilty, they may face the death penalty, which this country has decided no longer to accept? Thirdly, is the House aware that, if these men are found not guilty, they will not be acquitted and released but will be retained as enemy combatants for whatever length of time the US chooses to detain them?
Finally, is the House aware that the UK and the US are both signatories to United Nations conventions that absolutely guarantee the right to a fair trial, the right to defence and the right to access to lawyers by any country that is a signatory? Will the Minister tell us whether, given what good allies we have been to the US, the Prime Minister will raise this matter at the highest level, with the President of the US?
4.9 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord, Lord Howell of Guildford, and the noble Baroness, Lady Williams of Crosby, for their interventions. I am sorry that there was no advance text. However, the Statement that I repeated to your Lordships was very simple and straightforward. As the noble Lord, Lord Howell of Guildford, was kind enough to acknowledge, it was made in response to an urgent Question in another place.

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We must be clear on one point: there are no charges laid against either of the British nationals at the moment. There has been a designation by the United States that has cleared the way to possible charges against the six named individuals. There must be a separate decision about whether any charges will be laid and go forward to a trial. I do not want to mislead any of your Lordships. It is probably logical to believe that such charges will be laid, but I stress to your Lordships that part of the reason why they do not know what the charges are is that they have not been laid at the moment.
I agree absolutely with the noble Lord's points about terrorism. Some appalling and terrible atrocities have been committed in several countries. We should never forget that people have suffered. We must do what we can to expunge it from the international arsenal of what is available to people who do not want to conform to the ways in which most of us are able to do business with each other. However, it is important to come back to the fundamental point made by the noble Baroness, Lady Williams of Crosby: those individuals are innocent until they are proved guilty before a court of law.
The individuals concerned have been a long time in a legal limbo in Guantanamo Bay. My right honourable friend the Prime Minister said that it would be unsatisfactory to go on not being clear about how anybody would be brought to trial. What can, at least, be said about the events of last Thursday and Friday is that some clarity has been brought to bear on the situation, but it is difficult not to have strong reservations about the way in which the United States proposes to proceed with the trials.
The noble Lord asked me what had been agreed. Little has been agreed about the trials. The United States has published its proposals and has said that it will engage with us on the matter. We propose to engage rigorously with it. We shall press the United States authorities for the internationally recognised remit over a fair trial and such things as the right to defence lawyers, the right to see the evidence that will be adduced against those who are to go before a court, the right to an appeals system and the right to have as open a trial as possible. I readily acknowledge that it is not easy to have an absolutely open trial, if matters relating to national or international security have to be dealt with in some detail. We are familiar with procedures under which a court can sit in camera to hear matters of great sensitivity that may impinge on national security.
I agree that we must be firm with the United States and friendly with the United States. I believe that putting our points vigorously to the United States is important for the United States itself. It is enormously important that, in a procedure in which, we are told, the death penalty may be available—that is a matter for the military commission—the United States leaves no stone unturned in ensuring that the trials are recognised as being as fair and open and as much in conformity with internationally recognised standards for fair trials as is humanly possible.
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The noble Baroness raised the question of the death penalty. I regret to say that that penalty is still open to the commission. We have made our views on that abundantly clear, and we shall go on doing so.
4.13 p.m.
Lord Dubs: My Lords, can my noble friend say whether the Government have pressed the United States Government to accept that lawyers chosen by the individuals, in the event of a trial, should be allowed to represent them, rather than lawyers allocated by the US military? Have the Government pressed for international observers—British observers, certainly—at any such trial? If not, will they do so? Has my noble friend any idea whether there are any rights of appeal against a decision by such a military tribunal?
Baroness Symons of Vernham Dean: My Lords, we have raised and are raising the issue of legal representation. As it stands, the legal representation has been selected by the United States Government from Department of Defense lawyers. As I understand it, it may be possible for other lawyers to be retained by anybody who goes to trial, but, again as I understand the current proposals, such other lawyers would have to be United States citizens. That might be a question of how United States lawyers deal with United States courts, which may be consonant with the way in which the United States operates in respect of criminal trials. In addition, any such lawyers would need heavy security clearance, and there are some questions that we would want to raise about the ways in which they would communicate. There are quite a number of issues relating to legal representation.
The question of having international observers has been discussed. The United States Government have agreed that there should be some international observers, but we need to explore further with the United States authorities how that might work. At the moment, I understand that the rights of appeal that are being suggested are ones within the Department of Defense.
Lord Thomas of Gresford: My Lords, is the noble Baroness aware that the proceedings of the military tribunals have been condemned by the American Bar Association, the National Institute of Military Justice and the National Association of Criminal Defense Lawyers? Is she also aware that military tribunals have a disgraceful history, having been used to suppress the Sioux in the Indian wars of the 19th century? Many were condemned to death then, and they were reprieved only by the intervention of President Lincoln.
Will the noble Baroness confirm that the Government will press as hard as possible to ensure that the tribunals are opened up to the public and are held in public as far as is possible; that there are independent observers; and that the requirements of

31
Article 14 of the International Covenant on Civil and Political Rights, which demands an independent and impartial tribunal at the first instance, are fulfilled?
Baroness Symons of Vernham Dean: My Lords, I am aware that some strong reservations have been expressed by the United States legal associations that the noble Lord mentioned. I am also aware that military tribunals are, in many countries, regarded as not being sufficiently cognisant of the separation of powers between the military authorities and the judicial authorities.
When I dealt with defence matters as a Minister in your Lordships' House, your Lordships spent a lot of time on the question of where the authority of military power ended and where judicial powers had to be invoked in our laws. I am bound to say that our justice system would not allow us to engage in a trial such as is proposed for anybody suspected of much less serious crimes.
All those issues are being raised by my right honourable friend. I was able to tell your Lordships in the Statement that I repeated that my right honourable friend had spoken this weekend to his opposite number in Washington. I assure your Lordships that he proposes to do so again later this week. I have seen a lawyer representing one of the British people who have been designated, and I shall be happy to see anybody representing the other individual concerned. All that is being fed to my right honourable friend for his discussions with Colin Powell.
Lord Morris of Aberavon: My Lords, I regret that I was not here for the beginning of the Minister's Statement. Does she know of any precedent for the proposals being put forward by the United States Government? How long did it take us to get consular access to the British citizens concerned?
Baroness Symons of Vernham Dean: My Lords, I do not know the direct precedent. We had some particular arrangements for the Lockerbie trial, but that is not a precedent. From time to time, in a world in which international terrorism is such that crimes are committed against a country's nationals right the way around the world by individuals from different jurisdictions, there may be one-off arrangements. It is not surprising that there is no precedent for what is being discussed here, but that does not relieve any country of the capacity or the responsibility for dealing with a trial as fairly as possible. On the issue of precedent, it is not surprising that we do not have anything direct.
A noble Lord: My Lords—
Baroness Symons of Vernham Dean: My Lords, I beg your Lordships' pardon. I did not answer the second point raised by my noble and learned friend as regards consular access. There has been no consular access because these are unlawful combatants. They were not in the position of nationals who might find themselves
32
in prison on ordinary criminal charges. However, they have been seen by British officials five times since becoming inmates at Guantanamo Bay.
Lord Williams of Mostyn: My Lords, the noble and learned Lord, Lord Ackner, first.
Lord Ackner: My Lords, can the noble Baroness tell us, knowing how unsatisfactory this position has been for a long time, why we were prepared to ease the restrictions on extraditing in favour of the United States—a subject which was recently raised in this House? Why was that not used, for instance, as a bargaining position in order to achieve some helpful resolution of the current problem?
Baroness Symons of Vernham Dean: My Lords, as I understand it, those two issues are very different. These individuals were not extradited from the United Kingdom. They are individuals who were taken into custody by the United States outside the United Kingdom's jurisdiction from various parts of the world. Now, possibly, they are to be charged with terrorism. They have not been extradited from the United Kingdom.
The Earl of Onslow: My Lords, is it not true that the whole of the Guantanamo Bay issue brings United States' justice into disrepute? Does she not agree that military tribunals without the right of access—locking up for years and years—go against the whole tradition of Anglo-American justice? Would she muse a tiny moment on the prospect of peradventure the noble and learned Lord, Lord Williams of Mostyn, was in Opposition? I can hear his mellifluous Welsh tones thundering against the injustice of these cases; I would have been in complete and utter agreement with him. This brings the whole of United States defence of democracy, defence of liberty and defence of justice into disrepute.
Baroness Symons of Vernham Dean: My Lords, I made the point a moment ago that it is in the interests of the United States to listen very carefully to what its friends are saying. It is in the interests of the US because if it is not able so to do, I fear that many individuals and perhaps some Governments around the world will draw the conclusions that the noble Earl, Lord Onslow, is drawing. It is sometimes possible to thunder about these issues and at other times to speak in a measured but, none the less, forceful tone about what we now expect to happen. There is a great deal of work to be done. I suspect that there will be many conversations about this. It is the measured calmness of diplomatic and ministerial representations that are likely to get us closer to the types of measures that constitute a fair trial.
Lord Richard: My Lords, I think that I can assure my noble friend that the Government will have the support of almost everyone in this House for the actions that they take. Clearly, it is an appalling state of affairs. Those of us who have looked at the situation

33
have come to the conclusion that it reflects badly on the United States, on its history and, indeed, on its traditions. I have one factual question: how many other British subjects are there in Guantanamo Bay who may find themselves in a similar position?
Baroness Symons of Vernham Dean: My Lords, I am grateful for what my noble friend said. Altogether, there are nine British subjects housed at Guantanamo Bay; that is, seven in addition to the two designated in this process.
Lord Avebury: My Lords, is not the best way of ensuring that our citizens get a fair trial to demand that they he handed over to British authorities for trial in our courts under the Terrorism Act 2000? If they have to be tried in the United States, would the Government ensure that the final rule—the regulations—which will govern the military tribunals are subjected to British legal experts for their comments? Particular issues are that the lawyer who will be defending not just our citizens but others too is a former military aide to President George Bush Senior; that the defendants, apparently, are to be offered the choice between pleading guilty and receiving a 20-year prison sentence, or the death sentence; and that the conversations between defence lawyers and their clients are to be monitored. Does she think that all those provisions are in accordance with the international standards that we are demanding?
Baroness Symons of Vernham Dean: My Lords, that is why the Government are voicing such strong reservations. I find it hard to disagree with many of the points raised by the noble Lord, Lord. Avebury. The monitoring of conversations is certainly something that we would find unacceptable. The plea bargaining process in the United States applies to its criminal law; that is being applied now to these cases, very much in the way described by the noble Lord. It might be argued that it puts undue pressure on individuals to own up to crimes for fear of finding themselves exposed to the death penalty if they do not do so. I absolutely understand the point made by the noble Lord. It is a point that would strike anyone who looks at these papers.
On the question of demanding that the individuals be handed over, in the preliminary discussions we examined a number of different options with the United States, including the one mentioned by the noble Lord. Indeed, my right honourable friend the Foreign Secretary made that clear some months ago in another place. The United States has been clear back to us that that was not an option.
Lord Lester of Herne Hill: My Lords, has the Minister or her colleagues made it clear to the United States' authorities that the way in which a trial would take place in this country, under the Terrorism Act, would ensure a fair balance between open justice and the need to protect the security of the intelligence and security sources—that being Option A? Option B would involve the United States' federal courts, with
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their fine reputation for the due process of law, conducting a trial according to their ordinary procedures. Option C would be an international tribunal that was independent and impartial, established under international law to satisfy the requirements of the International Covenant on Civil and Political Rights. Have those three options been—or will they be—put forward as possible options to the United States?
Baroness Symons of Vernham Dean: My Lords, I am tempted to say, "Yes, of course all these options have been discussed". I am pleased to hear what the noble Lord said about the balance in our Terrorism Act. Of course, there is an issue here. The noble Lord, Lord Howell of Guildford, was right to remind us of the seriousness of the crimes. Let us not forget that some of the crimes at the root of this are heinous and horrendous crimes. It is enormously important that we do everything we can to ensure that the people responsible are brought to justice.
That said, the whole system loses credibility unless there is a fair trial process. When so much of what we are arguing about is fairness and justice in the world, it is enormously important that the system we use to bring people to justice is self-evidently as fair as possible—that is, balancing the rights of the individual on trial against the rights of the rest of the world to security. The issue of federal courts is very interesting. So far, United States' citizens have gone through a quite different court procedure—a point which I am sure will not have escaped many of your Lordships. Again, this is a point on which one is tempted to argue that a system that is not quite right for United States' citizens might not be quite right for a great number of other citizens too.
The noble Lord makes the important point about international tribunals. Of course, he knows that the United States has not signed up to the International Criminal Court, much as we have urged it to do so. I take the point of the three options; the fact is that none of those three options is on offer. We have quite simple choices. We either stay in the room and argue for fair trials—or as fair as we can obtain—or we leave the room. I am for staying in the room.
Lord Hylton: My Lords, I am grateful for the Statement and for what the Minister has said about a fair trial being essential. Will the Government continue to press for the remaining seven British prisoners to be either charged or released? Secondly, would the noble Baroness use all her influence to secure adequate exercise facilities for these people?
Baroness Symons of Vernham Dean: My Lords, on the first point, yes. The noble Lord made a very important point about these other individuals. There are terrible choices here. These individuals can either have a lengthy stay without knowing what will happen to them or they can go forward to a trial process which may have many shortcomings and about which we have reservations. It is very important that the issue of the other seven is resolved. On the second point raised by the noble Lord

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of adequate exercise, we have pressed for that. It is not just a question of exercise, there should also be more contact through family letters. There is some evidence that family correspondence is not getting through. That has been the cause of quite a lot of distress. On both issues of family letters and exercise, we shall continue to make representations.
Lord Mayhew of Twysden: My Lords, it is impossible not to sympathise with the position the Government find themselves in. The Minister will have a clear idea of the concern and anger in all parts of your Lordships' House. Will she use her best endeavours to come back to the House when we resume in September with a progress report?
Baroness Symons of Vernham Dean: My Lords, indeed I will. Your Lordships may be interested to know that this issue falls into my ministerial portfolio as the Minister for counter-terrorism. Therefore I am well placed to return to your Lordships on this issue.
Baroness Kennedy of The Shaws: My Lords, the Minister says that it is important to bring influence to bear on a Government with which we have very close relations. We saw that in the run-up to the war in Iraq where it was publicly argued that we played a very important role by being in the room. At what point do we say we are going to leave the room and make it clear that we find something wholly unacceptable and that there is a fault line in our relationship?
Baroness Symons of Vernham Dean: My Lords, I find it difficult to speculate. I shall tell my noble friend why. I am not sure how that helps the individuals about whom I am most concerned—those who may stand trial. My noble friend talks about what might be some wholly unacceptable arrangement. It is also unacceptable to leave British citizens abandoned to their fate. Saying that we find it impossible to go on does not serve any useful purpose. We should continue to hold our nerve and continue to argue as vigorously as we can. My right honourable friend has arranged to have further discussions with Colin Powell later this week.
Lord Maclennan of Rogart: My Lords, the Minister has the whole-hearted support of this House in making clear to our friends in the United States that the British public will find baffling the refusal of the US authorities to consider the reasonable options advanced by my noble friend Lord Lester of Herne Hill. This refusal comes from a country which has had a close relationship with us, both in the conduct of the war against terrorism in the aftermath of 9/11 and more recently over Iraq. The failure to accept the handing over of British nationals to the British authorities suggests a lack of trust in our own ability to handle terrorism threats. This is simply not consonant with the close alliance of which we are a part.
Baroness Symons of Vernham Dean: My Lords, I agree with the noble Lord. The reaction of the British media has been very clear. In recent days many people have said to me that they find what is being proposed unacceptable. The Government have strong reservations. We must engage with the United States about this. They have indicated that they are still open to suggestions about the way trials are conducted. They have said they wish them to be open. I do not believe it is a lack of trust in the United Kingdom that lies at the root of this. It is the belief of the United States that they, as the retaining power, have the right to put these individuals on trial. However much we find that a difficult notion, we have to deal with the situation as we find it. It is enormously important that we engage as friends and use our not inconsiderable powers of persuasion.

Criminal Justice Bill
4.35 p.m.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee on the Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No.32:
Page 6, line 13, leave out "and" and insert—
"( ) the General Council of the Bar,
( ) the Law Society of England and Wales,
( ) the Institute of Legal Executives, and"
The noble Baroness said: I wish to speak to all the amendments standing in my name. Several of the amendments to this Clause suggest being more specific about those whom the Home Secretary must consult about new codes or proposals to amend existing codes. Currently Clause 9 specifies as consultees only persons representing the interests of police authorities and persons representing the interests of chief constables, together with such other persons as the Home Secretary thinks fit. We agree that it is sensible to include the Law Society and the Bar Council and they are covered by government Amendment No. 32 That amendment also includes the Institute of Legal Executives as members of that organisation will frequently be involved in advising detainees at police stations and will therefore have day to day dealings with the codes. That was a point made in Committee in another place and we accept its validity.
We do not agree that magistrates need to be specified as consultees in every case as suggested by Amendment No. 33 They have a direct interest in only certain aspects of the codes and the proposals in Clause 9 allow ample scope for them to be consulted where that is necessary. Amendment No. 34 would expand the reference to the Secretary of State consulting with such other persons as he thinks tit to

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specify that such persons must have experience in the general field of activity covered by the codes. We do not think that is necessary, as targeted consultation would obviously be directed towards people who are in a position to comment on new codes and proposed changes from an informed position.
Amendment No. 35 would require that the persons to be consulted on new or revised codes at the discretion of the Home Secretary should be specified in a list issued by him and should include organisations involved in consultations on revisions of the codes prior to these latest proposed amendments to PACE. We think that would defeat a key objective of Clause 9, which is to enable consultation in each individual case to be directed towards those organisations and individuals best placed to comment on the particular issues raised, which will vary from item to item. Requiring what would be very broad consultation for even the most minor amendments would tend to reinforce the bureaucratic nature of the whole process rather than to make matters more straightforward in the way we are proposing.
Amendment No. 36 would require that among those whom the Home Secretary thinks fit to consult should be included those representing the interests of the victim, lay and professional witnesses and defendants. Once again, we suggest that that would tend to undermine the intention of allowing for targeted consultation according to the specific subject matter. The requirement to consult the main representative bodies for the legal profession, which we are intending to include, does much to cover the interests of defendants, victims and witnesses. However, there will clearly be many situations where broader consultation will be necessary and the clause allows for that.
We are looking to minimise the bureaucracy surrounding the introduction of any new or revised code and provide a targeted and focused approach to consultation. Amendment No. 37A may provide an element of bureaucracy. It would add an unnecessary feature of laying the list of consultees before Parliament at the same time as a code. We have already indicated in considering Amendments Nos. 34 and 35 that the Secretary of State will consult as considered relevant and necessary. The focus should be on the content and effectiveness of any new or revised code and not on elements of the process of achieving that outcome.
Following on from discussion in another place and taking into account the views of the Home Affairs Select Committee, we have been considering the procedural options for dealing with new and amended codes. We now accept that the affirmative procedure is justified for new codes and significant amendments and that is reflected in government Amendment No. 37, which stands in my name. However, we have been trying to devise a quicker route for handling minor and straightforward changes.
We have looked hard at the scope for involving the Home Affairs Select Committee in advising on whether specific changes warrant detailed parliamentary scrutiny or not. However, there are substantial legal difficulties in
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the way of specifying a role for the committee in the Bill. In particular, the difficulties arise from the fact that the names and functions of parliamentary committees are subject to change over time. We have seen that happen in the past few years. We might in due course be faced with a need to change primary legislation to remove or modify a statutory requirement for consultation that was not compatible with the way Parliament reorganised its business. I understand that there are also difficult issues linked to the mechanism by which the Secretary of State would consult such a committee in pursuance of a statutory obligation and the remedies available to the committee if he failed to do so.
A more workable alternative is to amend the legislation so that there is effectively a choice between affirmative resolution and simply laying before Parliament for any proposed changes. That is the approach reflected in Amendment No. 37. Further to that, I am prepared to give an undertaking here in Committee that the Home Secretary will seek the Home Affairs Committee's advice on the appropriate procedure for each and every proposed amendment to the codes and also that he will be bound by the committee's advice in every case. That will effectively ensure informed parliamentary oversight of the procedure to be used, but without referring to the committee in the Bill.
In summary, the government amendments which have been proposed go a considerable way towards meeting the concerns that have been raised and ensuring that new and revised codes are subject to adequate processes of consultation and parliamentary consideration. We recognise that the proposed involvement of the Home Affairs Select Committee is an innovative idea, but we hope that it can prove very effective in practice in ensuring sensible levels of parliamentary scrutiny. While we resist the opposition amendments, that is against the background of our own proposed amendments picking up what we regard as the most telling and important points that they raise. We also recognise that the Delegated Powers and Regulatory Reform Committee has not yet had an opportunity to consider our amendments. We shall of course consider its comments very carefully and, if necessary, review the position in the light of its recommendations. With that explanation, I hope that noble Lords will feel able to be content.
4.45 p.m.
Lord Hodgson of Astley Abbotts: As the Minister said, we have tabled some amendments in this group. I listened carefully to what she said in justifying her position and attempting to destroy ours. I hear the words "targeted consultation" and "minimising bureaucracy", which is all good stuff. However. we are not entirely happy, and the amendments require a further airing.
As the Minister said, the amendments revise the codes of practice. We are grateful that the Government have tabled amendments that have gone some way to meeting our concerns. However, the practical operation of the last eight clauses that we have been debating will be governed by the codes. Much of our

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discussion in the Chamber has been understandably at a strategic—even a bird's eye—level, but the PACE codes of practice are the fundamentals of the system, where it comes most closely into contact with the general public.
Until now there has been a wide consultation process, laid down in Section 67(1) of PACE, which states that:
"When a Secretary of State proposes to issue a code of practice to which this section applies, he shall prepare and publish a draft of that code, shall consider any representations made about the draft and may modify the draft accordingly".
We are concerned that under the umbrella of bureaucracy minimisation and cutting down on and focusing consultation, the Government are proposing to narrow and shorten the consultation process too much. We agree with the Government that maintaining public confidence in the integrity of the system is absolutely critical. Is it wise in such circumstances to reduce the consultative process?
We also have some more specific concerns that our amendments address. Clause 9(4) lists the people who have to be consulted before any revision of a code. We agree with the noble Baroness that, as originally drafted, the consultation process seemed a little one-sided. Subsection (4)(a) refers to the police authorities, subsection (4)(b) to the chief officers of the police and subsection (4)(c) to such other persons as are thought fit. Of course, the police need to be involved, but there are others who need to be involved and to be able to make their views known.
The Law Society has provided us with a very helpful briefing on this point; it observes that the codes affect all aspects of pre-charge investigation, in turn affecting the post charge process, and can often affect the operation of the duty solicitor scheme. Accordingly, where there is to be a change in practice, it is in the interests of effective implementation, as well as in the interests of justice, for there to be obligatory consultation with all relevant parties.
Amendment No. 33 widens consultation to include what one might describe as "the legal professionals", two of which the Minister swept up in her amendment. However, we remain concerned that magistrates are being overlooked. They are very much at the sharp end of the practical implication of the codes. We should also like to see the Central Council of Magistrates' Courts Committees and the Magistrates' Association brought into the consultation process.
Our Amendments Nos. 34 and 36 take the issue wider, including representatives of the general public who become involved with the courts, as well as interest groups that deal with the impact of the judicial system. We have had a most helpful briefing from the Children's Society, which outlined some of the practical difficulties and implications if consultation is to be restricted in future. It says:
"The Children Act 1989 gave a technical legal definition of the term 'in care', meaning a child is subject to some form of care order, introducing the term 'looked after' for children living away from home and 'accommodated' for children for whom the local authority does not have a share in the Parental Responsibility. It
40
is only after many years of representations that the significance of this has been acknowledged in the Codes of Practice. There is now a changed wording over who may act as the appropriate adult for looked after children consistent with the language and concepts of the Children Act 1989. Without the current duty to consult widely the representations necessary to effect this change would not have been considered and this long overdue change not happened".
Finally, the noble Baroness said that Amendment No. 37A was unduly restrictive, but it is an attempt to ensure that consultation on future codes is sufficiently wide by requiring the Secretary of State to disclose who has been consulted. Otherwise, the assurances given by the noble Baroness this afternoon—no doubt in absolutely good faith—will not bear heavily on her successors. The noble Baroness, Lady Walmsley, has taken a similar approach for the Liberal Democrats with Amendment No. 35, to which my noble friend Lady Anelay has added her name. I look forward to her contribution.
Our case for the amendments can be simply put. We are all agreed that maintaining public confidence in the system of justice is critical. Transparency is a vital ingredient in maintaining that confidence. The provisions of the PACE codes will be experienced at first hand by literally thousands of our fellow citizens. For many of them the code will govern their only contact with the judicial system. It is very important that there should be avenues for them to make their views known on the efficacy or otherwise of the codes when revisions are contemplated.
There is another, more pragmatic reason for keeping the consultation process on revision as wide as possible. As Mr Grieve observed in Committee in another place on 7th January at col. 123, where the maximum consultation on revisions to the codes has taken place, their new provisions are more likely to be accepted and it is less likely that their detail will be subject to challenge in court. That underlines the importance of Amendment No. 37A. We are seeking to mirror closely the present consultation process. There do not appear to have been any problems with it. "If it ain't broke, don't try to fix it", seems to be good advice on this occasion.
Baroness Walmsley: Amendment No. 35, in my name and that of the noble Baroness, Lady Anelay, would retain the existing provisions for making amendments to the PACE codes of practice, so that any changes to the safeguards for children are subject to wide consultation. The amendment has been suggested by the major children's organisations.
Clause 9 changes the current situation, under which the Home Secretary is obliged to undertake public consultation on any changes. The Bill proposes that he can amend or revise the codes with limited consultation. Government Amendment No. 32 amends that.
This significant change has received cross-party opposition in another place as well as in your Lordships' House. The Home Affairs Select Committee also expressed concern. There is a lot of support for the need to extend the breadth of consultation to, among others, the Home Affairs Select Committee, as well as the Law Society and the

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others included in government Amendment No. 32. It is also felt that any changes should be agreed through affirmative resolution in both Houses. Although the Government have indicated that the affirmative procedure is in place for new codes and significant amendments, many people are concerned that apparently minor changes can sometimes have major effects, even though they have been subject to limited consultation. The major children's organisations are concerned that the proposed limited consultation on changes is unnecessarily restrictive. They are particularly concerned to ensure that any changes to the safeguards for children are widely consulted on by a specified list of organisations that have made major contributions to consultation in the past.
Consultation can improve the codes and act as a check and balance to ensure that safeguards for children are maintained. The recent review involved 80 organisations and produced very few problems. The interaction between consultation and parliamentary scrutiny is well established and the resulting codes are robust and comprehensive. The noble Lord, Lord Hodgson, has quoted a clear example in which such consultation has resulted in a very beneficial change to the code.
I hear what the Minister has to say about the need to remove bureaucracy when minor changes are envisaged, but I remind her that on an earlier group of amendments her noble friend Lady Kennedy of The Shaws pointed out that a significant organisation was ignored in consultation on another matter in relation to the Bill. I hope that I have made the case for the widest possible consultation.
Lord Elton: I endorse the view that the case of children needs the most careful consideration. There is much in what the noble Baroness, Lady Walmsley, has said. However, the need for consultation runs right through the Bill, regardless of who is concerned.
I warmly welcome government Amendment No. 37, which produces a properly parliamentary procedure, but it seems to contain an oddity. As I understand it, subsection (7) of the amendment says that the normal procedure for a code will be to bring an order to Parliament under the affirmative procedure. However, subsection (7A) appears to leave a range of options. It says:
"An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid"—
that is, having been laid for an affirmative procedure. That subsection implies that a revision of a code can have the affirmative procedure or it can simply be laid before the House, which involves no procedure, but the intermediate stage—which is usually considered by the Delegated Powers and Regulatory Reform Committee, to which we pay close attention and which is yet to report—is for a negative order.
The difference is important. Affirmative orders have to be brought forward by the Government for debate, but negative orders appear on the Minute as such and offer themselves for selection by other Members of the House. However, I think that those that are simply laid
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before the House appear in a different part of the Minute that I practically never read, because there are scores, or even hundreds, of them coming through all the time. I do not regard the simple laying of the order as sufficient protection in a matter that, as the noble Baroness, Lady Walmsley, and others have said, can have a close effect particularly on children.
Lord Renton: I am impressed by most of the amendments. However, Amendment No. 36, spoken to by my noble friend Lord Hodgson, says that consultations carried out before the code is formulated should include,
"those representing the interests of the victim, lay and professional witnesses and defendants".
Let us take defendants. There is no public body representative of criminals which would have to he consulted. I wonder whether my noble friend could explain what on earth is intended by including that. Are there bodies representing victims of these sort of crimes? I should be fascinated to know whether there are such bodies because victims can vary enormously right across society. Then we also find that the representatives of lay and professional witnesses have to be consulted. They, too, can vary greatly. If my noble friend could explain the amendment or say that perhaps it should not be moved, I should be grateful.
5 p.m.
Lord Clinton-Davis: I agree with the noble Lord, Lord Renton, which I rarely do. He is seized of a very important point. Amendments have to make sense. I do not believe that the proposed measure makes a real contribution to our deliberations. The noble Lord, Lord Renton, made a very important point. I hope that the noble Lord, Lord Hodgson, will readily discard what is tabled in Amendment No. 36.
Baroness Carnegy of Lour: The Minister's amendment was predicted in the Government's memorandum to the Delegated Powers and Regulatory Reform Committee of which I am a member. The committee states at paragraph 9 of its report that the matter,
"is explained in full in the memorandum where it is stated that amendments are to be tabled about the level of parliamentary scrutiny that will apply".
The committee said that it would consider those amendments when they were available to the House. I think I am right in saying that the committee has not as yet been able to do that because the relevant business was tabled before it met. But the committee further stated:
"Meanwhile, we wish to endorse the principle (proposed in the memorandum) that new codes and significant amendments to existing codes (however that is to be defined) should be subject to affirmative procedure".
I was going to wait until the next group of amendments to comment on that but as I believe the noble Baroness said that the Government were prepared to accept that new codes should be subject to affirmative resolution, she has made an exception to the process of amendments to codes and has offered a rather

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different way of dealing with them. Of course, I have no idea what the committee would have to say about that because it has not yet considered the matter. But in principle the committee does not agree with that as it considers that such codes matter so much to ordinary people that they should be properly discussed by both Houses of Parliament even when the issue is simply that of amendments to the codes. I expect the noble Baroness realises that the Select Committee may or may not be in agreement on the matter. We are about to discuss that matter but I thought that I had better remind the Committee what the Select Committee said on that point.
Lord Hodgson of Astley Abbotts: It might be helpful if I respond to the two points made about Amendment No. 36. I think it is fair to say that victim support organisations could be consulted. I say to my noble friend Lord Renton and to the noble Lord, Lord Clinton-Davis, that defendants are not necessarily criminals. They may be innocent people who have been through the system and therefore have a view about the operation of the codes. As regards lay and professional witnesses, while I do not for a moment claim that the amendment is perfectly drafted from a parliamentary draftsman's point of view, it is an attempt to ensure that the generality of the public are involved in the matter on the grounds that it is altogether too important to be left to lawyers.
Lord Renton: Before my noble friend sits down could he explain who would be the representatives? Which bodies would be the representatives of victims, of lay and professional witnesses and, separately, of defendants?
Lord Hodgson of Astley Abbotts: I do not wish to be so prescriptive as to suggest that the Government should lay out a list in primary legislation. I merely say that categories of bodies exist that represent the interests of victims, witnesses and defendants and who could be consulted.
Baroness Howarth of Breckland: Clearly a large number of organisations have already been consulted, if you like, in terms of the lobbying that they have put before us, some of which is of exceptional quality in a number of areas relating to this Bill and to several in which we have been involved recently. I have in my time represented organisations that deal with witnesses, victims and perpetrators. Sometimes it is extraordinarily difficult to separate out those groups. I add my voice to the wish that those groups continue to be consulted not in the interests of bureaucracy but because the comments that they make to an open-minded government can add quality to the codes on which the latter are consulting.
Lord Clinton-Davis: The noble Baroness is quite right but surely the phrase,
"such other persons as he thinks fit"
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catches them all. It is impossible in legislation to mention everyone who ought to be consulted. That catch-all is very valuable.
Baroness Scotland of Asthal: I endorse what has just been said by my noble friend Lord Clinton-Davis. I say to the noble Baroness, Lady Howarth, that she is absolutely right about the nature of the consultation and the mix that quite often is inherent in the structure of the organisations with whom we consult. I hope that nothing that I have said will be misunderstood as indicating that the Government intend to limit those with whom they consult.
The Committee will know that the codes will be published on the website in draft so in practice anyone and everyone will as now be able to comment and make their position clear. At present there are no statutory consultees, only a general duty to consult which we exercise with great frequency and, I believe, efficacy. What we are talking about is the bureaucracy of having a list of specific organisations which have to be consulted on each occasion about each issue. Such a list may not include those who will need to be consulted. There is also the fear of changing that list but organisations change and metamorphose into different organisations. If you have a static list, does that mean that those on it are the only people who will be consulted? We want to make it clear that the matter is open.
I say to the noble Baroness, Lady Walmsley, that we take very seriously indeed the contribution made by children's charities which have been very vocal and rightly so. They have highlighted some of the nuances, differences and changes which are so important in making sure that children and young people's interests are properly reflected. We obviously wish them to continue to address those issues in the energetic way in which they have. We believe that the proposals will allow them to do so.
The Home Affairs Committee proposal is a novel one. We are suggesting that it should have an input into which procedure should be adopted, whether affirmative or negative. However, its novelty does not detract from its efficacy. We believe that it will bring something to the process. I take up the point made by the noble Lord, Lord Elton, about the affirmative procedure. Subsection (7) relates only to the new clauses—that must be the affirmative procedure. The proposed new subsection (7A) offers a choice for revision: either affirmative procedure or the simple laying of an order. We decided not to go for the negative procedure.
I say to the noble Baroness, Lady Carnegy, that we absolutely understand that the affirmative procedure was the course taken by the Delegated Powers Committee. We understand that the real import of what the committee was saying was that significant alterations were of equal importance to new codes, and for affirmative resolutions as appropriate.
The new process we are suggesting is that it may be necessary, for the convenience of everyone, to make minor changes to the codes which do not merit the full

45
panoply of the affirmative resolution procedure. If the Home Affairs Select Committee were to indicate to my right honourable friend the Home Secretary that the negative resolution procedure would be preferable and appropriate, we would agree to be bound by that. It is on that novel proposal that we obviously want to have the comments of the Delegated Powers Committee and I have indicated that we shall examine the matter when we have that advice.
Lord Elton: The Minister did not explain why the Government had decided simply to let papers not subject to parliamentary proceedings lie on the table. I was asking for an explanation as to why the middle alternative was not available to the committee so that both Houses could decide whether they wished to pursue a matter further.
Baroness Scotland of Asthal: We have made it clear that we agree that in the majority of such cases the affirmative procedure would be the most appropriate. As I have indicated, if the Select Committee came to the view that the negative resolution procedure was appropriate, we would follow that; and indeed the simple laying of an order would be appropriate where issues do not appear to be contentious or in need of that level of scrutiny. It gives us an opportunity to make each procedure fit the purpose in terms of the nature of the changes that we seek to make.
This is a much more flexible tool than we have had before, but we are trying to apply the lightest touch necessary but to allow both Houses a proper opportunity to scrutinise and debate these issues where that seems to be appropriate. We hope that the way in which we have phrased this—subordinating the exercise of the discretion of the Home Secretary to the committee's suggestion—will inspire confidence that we have got the balance right. Were the committee to come to the conclusion that the affirmative resolution should be used in each and every case having considered on the basis of the information before it that that would be appropriate, as I have indicated, my right honourable friend the Home Secretary is content to be so bound.
Baroness Carnegy of Lour: I wish to be clear about this. I did not realise quite what the noble Baroness was saying. If this amendment is accepted today, the Delegated Powers Committee has nothing to do with it. It is not for the Delegated Powers Committee to decide what Parliament should do; it merely advises this House. Is the noble Baroness putting this amendment to the Committee today, or is she leaving it for further consideration?
Baroness Scotland of Asthal: I am putting the amendment to the Committee today. I should clarify the point, as I may have innocently confused matters. The choice is between the affirmative procedure and the mere laying of an order, as the noble Lord, Lord Elton, indicated. I hope that I have made that clear.
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In introducing the amendment I was attempting to explain that there are real difficulties in putting the proposal that the Home Secretary should be bound by the committee's recommendations on the face of the Bill, because of the possibility of the committee changing and the construct being different. We know that we cannot do that—the draftsmen have told us as much. But what we can do is to make a commitment to this House that these issues will go before the committee; the committee will have an opportunity to examine them; and the Home Secretary has indicated that he will be so bound.
So far as concerns the Delegated Powers Committee, we are asking this Committee to consider the amendment now, but we are doing so on the basis that the Delegated Powers Committee has not had an opportunity to have its say. What I was saying was that, if, contrary to our current expectation, a different view is alighted upon, we will consider that before we return to the matter on Report. So this may not be the end of it if there is a powerful argument that we should properly consider.
Baroness Carnegy of Lour: I thank the Minister for that response.
5.15 p.m.
Lord Hodgson of Astley Abbotts: If we are to take Amendment No. 37 now, it may be helpful if I raise some of the concerns I have about Amendments Nos. 38 and 39. Otherwise, we shall have a repeat of the same debate on the next grouping. We are concerned about the parliamentary scrutiny aspect. We are grateful to the noble Baroness for her briefing letter. She has summarised it very fairly. She said:
"The basic intention of clause 9 is to speed up and simplify processes in relation to the codes so that it is easier to keep them up to date in the face of an ever-increasing rate of legislative and procedural change. However, concerns have been expressed during debate in the Commons, as well as by the Home Affairs Select Committee … that the proposed changes are too far reaching and do not allow for sufficient consultation and parliamentary scrutiny".
So far so good. But the letter went on to say:
"In the light of these objections we are now proposing to amend clause 9 so that any new codes will remain subject to the full affirmative resolution procedure in parliament as at present. In relation to proposed changes to the existing codes, our amendments would effectively allow the Home Secretary discretion to choose either the affirmative resolution procedure on a draft order or straightforward laying of a made order depending on his judgement about the level of scrutiny necessary in each particular case. However, in order to avoid allowing an inappropriate level of discretion to the Home Secretary, we would undertake in parliament during the passage of the Bill that he would agree to consult the HASC in every case and be bound by their views on which procedure to adopt in relation to each proposed change. This approach was trailed in debate at Commons Report stage and did not meet with any opposition".
That raises a number of serious concerns. We have, as yet, no definition for the phrase "new code". The noble Baroness has given us one off the top of her head this afternoon, but, cynically, one could argue that there will never be a new code; there will only be revisions of existing codes. Secondly, is it right that the Home Secretary should decide whether to use the

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affirmative or negative resolution? Thirdly, while it is true that the Home Affairs Select Committee will have some influence over which procedure is used, is it influence with teeth, given the political make-up of the committee?
Finally, I can see no role for this House in arriving at this decision. One of the primary roles of this House is as a revising Chamber. There is legal, judicial and general expertise in abundance in this House and it should therefore have a role in this procedure.
One final matter that I should like to raise with the Minister is how frequently the Government believe it will be necessary to review the PACE codes in future. It is one thing to consult on changes to the codes and to construct new codes. It is quite another to go through the hard, day-to-day realities of implementing the changes—new forms, new procedures and, above all, new training are highly absorptive of police time. So it would be helpful as we debate this general area if the Government could give some indication of their thinking as to the frequency with which these changes are likely to be made in future. For example, would the Government consider an amendment suggesting that codes could be revised, say, only twice in any 10-year period? There are issues that we have not teased out, and, rather than return to them in relation to Amendments Nos. 38 and 39, I thought it worthwhile to raise those points now.
Baroness Scotland of Asthal: I thank the noble Lord for that. A "new code" is a code covering entirely new subject matter. For example, there was recently a new code on the video-recording of interviews. One of the difficulties that I have is in giving the noble Lord any indication as to how often these changes will be necessary. Regrettably, none of us has a crystal ball and we often think that there is no need for revision. Then, because of technological and other changes, we find that a new code to meet the new arrangements becomes necessary, as the noble Lord probably knows from practice. So I cannot say how often that will be necessary, but the fact that it will be necessary we can take from the amount of times that we have had to do it so far. I anticipate therefore that it will be a rolling programme, but I cannot give any better indication than that.
Amendment No. 38 would require the retention of the affirmative resolution procedure for new and revised PACE codes. I have already mentioned that we are content to retain the affirmative resolution procedure for new codes. However, we want to keep some flexibility in relation to amendments, and that is why we intend effectively to give the Home Affairs Select Committee discretion over whether specific proposals should be subject to affirmative resolution or to a simple laying requirement.
I hear the comments of the noble Lord about the complexion of the Select Committees. However, that has not to date stopped them holding this Government to account, and every other government who have come within their view. We do not see that the Home Affairs Select Committee will do anything other than
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behave entirely independently. That is how they have operated in the past and we believe that they will continue to do so.
Amendment No. 39 would require the affirmative resolution procedure for analogous codes covering the work of military police forces. Currently such codes are only subject to negative resolution and, as they tend broadly to follow the main PACE codes, there is a good case for exempting them from any specific parliamentary procedure. Allowing for the government amendments which have already been discussed, we do not support either Amendments Nos. 38 or 39, but they are in the framework of the other proposals we have just outlined. I hear the comments of the noble Lord about scrutiny. That is why I made plain, in answer to the noble Baroness, Lady Carnegy, that we await the Delegated Powers Committee, because we wish to listen to what it might say. That is an innovative way of dealing with the matter.
I know that many noble Lords and others in another place have been concerned about how the Home Secretary will exercise his discretion. This is an appropriate way of giving both Houses the reassurance they seek. If we get an indication that the affirmative resolution procedure is preferred, that is the procedure we shall adopt.
Lord Elton: If we are expanding this group to include the next, I apologise for returning to the point that I have just raised. I draw your Lordships' attention to Section 67 of PACE, which has not been amended in this respect so far as I can see. Under that Act, amendments to codes were put through exactly the same parliamentary scrutiny—that is the affirmative procedure—as the original codes. Therefore, the current proposal is a downgrading. It is not a downgrading from the top line to the second line—from affirmative to negative procedure. It is a downgrading from the top line to the bottom line, which means no parliamentary procedure.
All those who have expressed concern about children and the importance that even minor changes might have for them will agree that that should be looked at with great suspicion. We should possibly return to the issue on Report.
Lord Hodgson of Astley Abbotts: We are grateful to the Minister for her further courteous explanation on Amendments Nos. 38 and 39. We are not yet clear where we shall end up with Amendment No. 37, given that we have not yet had the report. So while we understand the Government's position, we shall reserve ours. So long as the Minister understands that we may wish to return to it on Report, we are prepared to let the matter rest for the moment.
Baroness Scotland of Asthal: I am grateful for that indication. I hope that when we have an opportunity for further reflection, noble Lords will feel more content. I hear the comments of the noble Lord, Lord Elton, about suspicion. If that view is shared by others, then I am sure that they will ask for the affirmative resolution procedure, which is the higher

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rather than the lowest of the three proposals, and I say. frankly, that if that is the view that is expressed, we would be content.
On Question. amendment agreed to.
[Amendments Nos. 33 to 36 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 37:
Page 6, leave out lines 15 and 16 and insert—
"(5) A code, or a revision of a code, does not come into operation until the Secretary of State by order so provides.
(6) The power conferred by subsection (5) is exercisable by statutory instrument.
(7) An order bringing a code into operation may not he made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
5(7A) An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.
(7B) When an order or draft of an order is laid, the code or revision of a code to which it relates must also be laid.
(7C) No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.
(7D) An order bringing a code, or a revision of a code, into operation may include transitional or saving provisions.—
On Question, amendment agreed to.
[Amendments Nos. 37A to 39 not moved.]
Clause 9, as amended, agreed to.
Clause 10 agreed to.
Schedule 1 agreed to.
Clause 11 [Power of arrest for possession of Class C drugs]:
[Amendments Nos. 40 to 42 not moved]
On Question, Whether Clause 11 shall stand part of the Bill?
Baroness Walmsley: We have already had the debate about the powers of arrest for possession of class C drugs. I shall not repeat that debate, although I support the removal of Clause 11. I wish to make three brief points. First, the main reason that these Benches do not support the powers is that we believe they undermine the attempt to develop a credible set of drugs laws focused on reducing harm and concentrating law enforcement on the dealers in hard drugs. We believe that the many benefits of reclassification of cannabis will be undermined and diluted by allowing these police powers to remain in the Bill.
Secondly, in her response to our debate last week on her Amendment No. 6, the Minister commented that I had wrongly stated that the penalties for possession of cannabis would be increased by this Bill. I shall explain how I reached that conclusion. First, those agencies that advised the Government to reclassify cannabis as class C envisaged that a major consequence would be the removal of any custodial penalty for possession. By reclassifying it and then introducing the power of arrest and a two-year penalty the Government are, in effect, increasing the penalty from zero to two years.
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In addition Schedule 24 increases the maximum penalty for offences of production, supply and possession with intent to supply a class C drug from five to 14 years. Many of those who wish to use cannabis for medicinal purposes, or even for leisure purposes, would prefer to grow their own than to have to engage with criminal dealers who also supply class A drugs in order to obtain their supplies. In doing so, they may wish to supply other users or sufferers of pain for which cannabis is a relief. That puts them in danger of a 14-year sentence rather than a five-year sentence. That is what I mean by an increase. If the Government would only allow people to grow their own and supply a small group of friends without running the risk of becoming involved with the criminal justice system, just as people, including my own grandfather, used to grow their own tobacco, the problem would be solved without any damage to society. It is a practical and reasonable solution proposed by these Benches and many drug policy experts, but clearly the Government are not inclined to listen.
Finally, on the matter of the Conservative amendment which we debated last week to remove other class C drugs from the power of arrest, we on these Benches have a great deal of sympathy with the idea and I trust that we will return to it at the Report stage.
5.30 p.m.
Lord Waddington: I have considerable sympathy with what the noble Baroness said. It is not difficult to argue that the position adopted by the Government is fundamentally flawed. As I have argued on many previous occasions, cannabis should not have been reclassified from a class B to a class C drug when hardly a week goes by without new evidence emerging of the harmful effect of the drug and the way in which it can cause mental illness. The cannabis now on the streets is far more potent and potentially dangerous. It is odd and irresponsible for the Government to take a step which is bound to convey to son-le people the message that the use of cannabis is not a serious matter.
The Government's stance is entirely illogical; downgrading the drug but keeping the power of arrest. I do not believe that we should vote against the clause because it seeks to mitigate the effect of their folly in declassifying. But I am thankful for that small mercy. It does something to correct the mischievous impression they have created—that the drug is harmless—for which we should be thankful.
It would have been far better if they had singled out cannabis among class C drugs whose use would justify arrest. I pointed out previously the absurdity that the possession of, say, anabolic steroids should be arrestable. But there it is; this is making the best of a very bad job. I would therefore not vote against the clause.
Baroness Scotland of Asthal: I thank the noble Baroness, Lady Walmsley, and the noble Lord, Lord Waddington, for what they have said. If one

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were to take the middle course, it looks as though the Government have got it about right—no one is happy, but everyone seems to be content.
Clause 11 negatived.
Clause 12 [Drug testing for under-eighteens]:
Lord Adebowale Lord Adebowale moved Amendment No. 43:
Page 7, line 17, at end insert "and has reasonable grounds for believing that the person has a propensity to misuse Class A drugs and that the misuse by the person caused or contributed to an offence"
The noble Lord said: In moving Amendment No. 43, I shall speak also to Amendment No. 49. I know that Amendment No. 48 will be considered separately, but it may be convenient to raise some of the points now. I realise that some Members of the Committee will want to return to that amendment.
Clause 12 highlights the Government's intention to extend blood testing at the point of arrest and pre-sentencing to 14 to 17 year-olds. They also want to include blood testing and treatment conditions as part of post-custody licence. Before turning to the specifics of the amendment, I want to turn to the principles of extending blood testing to young people.
The overwhelming objective is to ensure that we maintain the right balance between providing appropriate interventions and doing so at an early stage while treating young people and respecting their rights carefully. That also involves considering what we mean by appropriate interventions for young people aged 14 and over, as well as children who are below 14.
The Bill aims to extend testing and subsequent interventions as regards people who are over 14 and under 18 at different stages within the criminal justice system. While I have supported the expansion of options for adult users aged 18 and over in the criminal justice system, the transfer of testing of young adults is not so straightforward. Our imperative is to ensure that testing young people does not become a bolt-on to existing arrangements for the testing and treatment of adults. We must also be satisfied that the provisions in the Bill will not lead to the position in which criminal justice initiatives for young people become a priority over providing treatment to those young people who have not committed a crime and who can be prevented from committing a crime in the future by prompt access to treatment outside the criminal justice system.
In addition, while drug experimentation and occasional use are relatively common among adolescents, national statistics suggest that fewer than 1 per cent of young people aged 16 or under have ever used heroin or cocaine and even fewer are regular users. Testing therefore may be a poor means of identifying problem behaviours. Certainly the price of not getting it right by providing the wrong intervention at the wrong time is high.
I know that Drugscope and the Children's Society have expressed deep reservations about these proposals. These include serious concerns on whether the proposals contravene the UN declaration on the rights of the child and whether the powers to observe
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urine testing and holding people in police cells while awaiting results may contravene European human rights law. It would be wrong to dismiss these concerns outright. They share many of the concerns to which I shall now turn.
I declare an interest as chief executive of the social care charity, Turning Point. I know from experience that drug taking is a serious problem, especially among under-18s. Ten thousand young people were in contact with Turning Point in 2001–02, although that includes intervention across prevention, education as well as treatment. At a local level, for instance, in Sheffield we supported 4,000 people and approximately 200 people in treatment. Turning Point's view is that early interventions, including criminal justice interventions, are needed to support young people over 14 whose patterns of abuse may be entrenched even at a young age.
Four points on testing need to be addressed before I am satisfied that the Government have struck the right balance between treatment and protecting the rights of the young person first. The Bill's proposal for testing people who are charged will result in them engaging in a treatment process at a police station, which by no stretch of the imagination is a young people friendly environment. I hope we can receive assurance that the welfare of the young person will not be compromised and that the appropriate links with specialist drug agencies will be made at an early stage.
My second concern centres on guidance and safeguards. The aim of testing at charge is surely to identify problematic substance misuse and related crime and to provide suitable care. I would like assurances on how testing by police at the point of charge will help identify and sensitively meet a young person's broad and often complex range of social care needs that may include education or problems within the family home.
My third concern over testing is over the status of the sample and how the information derived from the results of the test is used. We need assurances that information from test results is handled sensitively. These results should be used only to inform a course of treatment rather than influencing criminal proceedings where they have no bearing on the crime and do not relate to problematic behaviours. I hope that the Minister will confirm that the test results will not be used as additional evidence in support of offences that the person has been charged with, or as an aggravating factor when sentencing. As part of this argument, we must recognise that not all class A drugs, such as LSD and ecstasy drugs, are linked to dependence or offending, making testing for them of little use in identifying problematic behaviours.
My fourth point on testing is that we need a greater understanding of ways in which drug testing will work in practice, particularly clarity of issues around consent and the presence of an appropriate adult—a point already raised by Drugscope and the Children's Society.
My specific amendment focuses on the circumstances that give rise to the testing of young people who are under 18. It seeks to restrict drug

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testing to two situations. First, there must be reasonable grounds for believing that the person is dependent or has a propensity to misuse class A drugs. Secondly, that misuse or dependency caused or led to a criminal offence. It is very much a belt and braces amendment.
I appreciate that it is the Government's intention to incorporate the criteria that govern testing for adults to young people who are under 18. This includes a requirement that an individual must have been charged with an acquisitive offence and that class A drugs have been misused and contributed to that offence. However, given that Clause 12 introduces testing for under-18s for the first time, I believe that the safeguard should also be set out clearly on the face of the Bill.
The amendment also makes clear that the clause is not about random testing of 14 year-olds, which is the extreme way in which it may be painted. It is important that the police are reminded of their obligations before a young person is deprived of his liberty and a sample is taken from him. In any event, given the gravity of the proposals that extend drug testing to young people for the first time, I hope that the Government will use the opportunity to confirm that these safeguards will he put in place.
The aim of Amendment No. 48 is to probe the Minister's intention with regard to testing for children. It removes the right to change by statutory instrument the age for testing. I know that the other place expressed strong reservations about extending drug testing downwards to children aged 13 and under and allowing this change in law to be introduced through a statutory instrument. I need to be convinced that testing for children would maintain the sensitive balance between providing appropriate interventions and respecting the human rights of children.
The Criminal Justice Act 1991 defines a child as a person who is under the age of 14. The most persuasive argument for not testing below the age of 14 is the result of the recent lifestyle survey which indicates that testing for class A drugs for under 14s would not be an efficient use of resources. While it is true that children may develop problems with drug use, there are also important human rights issues in relation to consent and concerns about the legality of testing children between the ages of 10 and 14. I am unsure whether testing children would conform with international and national obligations to treat children in a special and careful way, and to give them certain rights in the criminal justice system. It would be useful if the Minister could confirm the legal consequences of testing for children aged 14 and under. I am certainly aware that a child will need to have parents present if he is to be detained at a police station for testing and that this will have repercussions for the individual and the family concerned. In any event, I would be very interested to learn whether the noble Baroness, Lady Scotland of Asthal, has plans to extend drug testing for children at a later date.
Anticipating the Minister's response. I understand that the Government may want to argue that this power gives them the right to increase the age for
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testing as well as to lower the age. The way around this would be to make specific provision for increasing the age limit only by explicitly stating that the Secretary of State can by statutory instrument increase. but not lower, the age for testing.
I also wish to speak to Amendment No. 49. There is a current requirement that states that testing cannot be carried out until arrangements for testing have been made for the police area as a whole or for the particular police station. This amendment places an additional requirement that will mean that testing cannot take place until arrangements for treatment have been developed in the police area as whole. Moreover, treatment would need to be appropriate for young people under 18. It would not be sufficient for adult-based service provision only to be available in that area.
I am concerned that the Bill is explicit on the testing requirements but silent on the right to treatment that should follow testing. This concern is shared by Turning Point and DrugScope. If we are prepared to take what many would regard as the drastic step of testing a young person then this House needs to be satisfied that safeguards are in place to ensure that the testing procedure works well and that treatment follows. A failure to deliver treatment would mean invading a person's privacy without delivering any consequential benefit at the other end.
Many noble Lords will be familiar with the Audit Commission's report that demonstrated that provision of treatment is often patchy or inadequate. A failure to provide treatment will severely damage a young person's life and may mean that he will continue his drug use and disengage from services in the future. There is also a risk of relapse if after-care services are not provided. This amendment will ensure that young people have age-specific, tailored services rather than being tested or treated in an adult-based system. I hope that the Minister will give a strong signal that testing for young people will not encourage young people into an adult-based system. which will only serve to exacerbate rather than to deal with their behaviour. My amendment is an important safeguard to prevent that happening.
I also hope that the Government will take the time to research what works and to promote good models for young people's services. The service needs to be specifically designed for young people and not to be a cut-down version of adult services. Young people should be involved in the planning, management and review of services. Services must take account of issues such as accessibility, confidentiality and the need to avoid stigmatisation. An effective assessment process that identifies the needs and aspirations of the young person on an individual basis is also essential. This involves the development of accurate and comprehensive assessment procedures and it must also be appreciated that the process of intervening with vulnerable young people is likely to require the involvement of a wide range of agencies.
Treatment provisions also need to be consistent with other government-led policy which is moving towards young people's needs holistically and from a preventitive

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health and welfare point of view. Indeed, the Government's own guidelines confirm that children should not be referred to adult services and that under the Children Act 1989 local authorities are responsible for protecting children and young adults and promoting their welfare. This is the most persuasive argument in support of Amendment No. 49. I hope that the Minister will give an assurance that the Government will develop pilots and timescales to improve the evidence base because of the specific needs of young people and my concern over testing. I hope that they will examine thoroughly the best ways to help prevent young people from committing crime and to prevent dependent drug use from happening in the first place.
I would also welcome some clarity on how action plan orders will operate for young people following the Criminal Justice Bill, given that community orders only apply to young offenders aged 16 and over, and an assurance that the role of drug agencies in supporting youth defending teams will be enhanced. Has the Minister estimated the number of young people who will access treatment in the next year? What new resources have been put aside for developing young people-specific services? It would be useful to know how the Government envisage that testing for young people will link in with other initiatives such as the long-awaited Green Paper on children at risk.
Finally, I hope that the Minister will be prepared to give a commitment to report back to Parliament to share lessons learnt from pilots and from young people's interventions before proceeding with tests for under-18s. I beg to move.
5.45 p.m.
Lord Hodgson of Astley Abbotts: We have some amendments in this group and I have listened with care to the noble Lord, Lord Adebowale, who obviously speaks from great experience and knowledge. We share some, but not all, of his concerns. Certainly we share his emphasis on the importance of treatment and prevention. Our Amendments Nos. 44, 47 and 50 all focus upon the age boundaries at which children can be tested for drugs while Amendment Nos. 51 and 52 concern the age boundaries and definition of those adults who can accompany children during testing for drugs. Our view is that, provided testing is well regulated to ensure no adverse impact on the child's welfare, we support this new proposal for testing of under 18 year-olds for drugs. However, certain age brackets and certain definitions within this clause have caused us some concern and we have put down these amendments to enable us to tease out the Government's thinking on these important points.
Amendment No. 44 concerns the minimum age for testing for class A drugs, which our probing amendment proposes to reduce from 14 to 12. It could be argued that if the drug testing process is carefully undertaken without intrusive measures and with an appropriate adult present the new proposal in Clause 12(3) of the Bill is a step in the right direction. If, and I repeat if, the procedure for drug testing is sufficiently
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regulated to allay concerns among parents and the children's societies as well as the many interest groups in drug treatment we see no reason why, in principle, this testing should not be extended to 12 year-olds. As Mr Grieve pointed out in Committee in the other place:
"There is ample evidence that drug misuse starts before the age of 14 and … it is perfectly likely that children of 12 will be brought into police stations".—[Official Report, Commons Standing Committee B, 7/1/03; col. 147.]
It is also perhaps useful to draw to your Lordships' attention Mr David Kidney's explanation in the same Committee meeting as to why testing is appropriate for children, as justified to him by Sergeant Cartlidge of the Staffordshire Police At columns 152 and 153 he said:
"The first is a moral reason: if someone who is young and vulnerable has a dependency that might destroy the rest of their life, we should intervene to try to help them. The second concerns crime prevention: if we know that such drug dependency will drive a young person into increasing acquisitive crime, it would be helpful to intervene to try to wean them off the drugs, so that they are not driven to commit the offences."
So the two main aims must be those of rehabilitation and prevention. Rehabilitation is clearly focused on the child's welfare, and prevention, although in part concerned with maintaining good order in society, has the child's interests at heart in keeping him out of trouble or, at worse, prison.
If the Government believe that class A drug habits in children can be reduced through the drug testing process why is 14 chosen as the minimum age? Could it not be tackled successfully at an earlier age? The Minister's response to that query in the other place was that:
"The school lifestyle surveys of 11 to 15-year-olds carried out by both the Department of Health and the Youth Justice Board found that cannabis was the most widely used drug, and that class A drug use was very rare".
I believe that that point was made by the noble Lord, Lord Adebowale.
"Those results indicate that testing for class A drugs in those under the age of 14 would not be an effective use of resources".—[Official Report, Commons Standing Committee B, 7/1/03; col. 162.]
While that is undoubtedly interesting evidence, those are drug tests on school children who, I stress, were at school. I may be wrong, but I suspect that the majority of young people whom the police suspect to be stealing to fuel a class A drug habit may well not be the type to have a high school attendance record. In other words, the Minister may quite inadvertently have reached an inaccurate conclusion because of the way that the sample was selected.
In support of that view I quote the article in yesterday's Observer by Stephen Khan, which was entitled, admittedly rather luridly,
"New wave of heroin sucks in pre-teens".
Not only does the article detail the increasing supply of heroin, but it also states:
"Academic studies have shown pre-teens are now experimenting with heroin".

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In the article Professor Neil McKeganey of the University of Glasgow said:
"We asked drug-using 11 and 12-year-olds in Scotland if they had tried some form of heroin. Between 5 and 6 per cent of them said yes. Five years ago the percentage would have been zero".
Such evidence—I have no way of knowing how accurate it is—paints a very different picture of class A drug use among pre-teens. We accept that this is a very sensitive issue which was discussed at length at Committee stage in the other place, but we wish to probe the Government—particularly considering the arbitrariness of other government age categories—as to why the minimum age of 14 has been chosen, considering the factors that I have just been explaining.
While Amendment No. 44 concerns the minimum age at which a child can be tested for drugs, Amendments Nos. 47 and 50 relate to the maximum age of a child who must he accompanied by an adult when tested for drugs. Clause 12 is entitled,
"Drug testing for under-eighteens",
and yet the accompaniment of an appropriate adult during testing seems to be relevant only to a person who has not yet attained the age of 17. That is line 28 on page 7 of the Bill.
In the other place the Minister explained, again at Committee stage on 7th January, that the provisions applicable under,
"the Police and Criminal Evidence Act … require that any person who seems to be under the age of 17 be treated as a juvenile".— [Official Report, Commons Standing Committee B, 7/1/03; col. 165.]
That is a curious use of the words "seems to be". A moment earlier the Minister had told the Committee that:
"The Children and Young Persons Act 1933 as amended by schedule 8 to the Criminal Justice Act 1991 defines … a young person as a person who has attained the age of 14 and is under the age of 18".—[Official Report, Commons Standing Committee B, 7/1/03; col. 162.]
Not 17. He went on to explain that using the provisions of PACE are easier and more practicable as they do not necessitate the presence of an appropriate adult during the testing process of a 17 year-old.
Both the Children's Society and the United Nations have rather different views on that age cut off. Article 1 of the United Nations Convention on the Rights of the Child states that for the purpose of the present convention a "child" means every human being below the age of 18 years. The Children's Society concurs with that statement and I am sure that many noble Lords will instinctively agree that a 17 year-old should fall within the definition of "child" as regards legal procedure. That means anyone under the age of 18, hence our amendment.
A very helpful briefing from the Children's Society, which I am sure many noble Lords will have received, further highlights that concern. The UN Committee on the Rights of the Child has twice criticised the anomaly of 17 year-olds being regarded as adults during the pre-trial process for the purpose of PACE and remand. This occurred in both 1996 and 2002.
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Specifically in its 2002 report it recommended that the United Kingdom should review the status of young people of 17 years of age with a view to giving protection to all children under the age of 18. Clause 12 again raises that anomaly in our law in so far as a 17 year-old will not be safeguarded by the advice or presence of a parent or other appropriate adult in the process of being charged, in deciding to consent to a drug test—the refusal of which is itself a criminal offence—nor finally during the process of carrying out the test by mouth swab. A 17 year-old is in every other aspect a minor in both domestic and international law. We believe that the failure to treat them as such in the process of arrest, charge and pre-trial decision making and to provide the same safeguards as those in place for children of younger ages needs a better justification than the Government have so far given.
I understand that the terms "juvenile", "young person" and "child" can have varying definitions under different Acts, or under different subsections of different Acts. During this debate I seek to focus strictly on a person under the age of 18. That follows the logic of the special provisions that the Government have made for the treatment of under 18s when testing for drugs. The Government apparently share our belief that under 18s should be given special treatment when it comes to the procedure involved in drug testing. It seems therefore highly inconsistent for the Government to exclude those who are 17 from this same special treatment when it comes to the attendance of an appropriate adult. Common sense dictates that 17 year-olds should be afforded the same safeguards as other children. That means that an appropriate adult should be present during testing. Why change and confuse an already established set of definitions and further complicate the already highly sensitive area of drug testing for children? The children's best interests and welfare must surely he our central concern, not the use of the most convenient points of administrative reference.
Finally, I turn to Amendments Nos. 51 and 52. They still concern Clause 12. The previous amendments deal with precise age limits for those to be tested. whereas these deal with the age boundaries and appropriateness of adults who are to be in attendance during the testing of an under-18 year-old for drugs. We feel that defining the appropriate adult requires a careful balance to be struck, one that guarantees that the time that a child spends in custody is the minimum possible, but equally that the accompanying adult has enough authority, maturity and relevant experience to ensure that the child will be treated properly. Clearly it is wrong to restrict unduly the range of appropriate adults, as we would all want the child to be held by the police for as short a time as possible.
Consequently, the inclusion of Amendment No. 51 seeks to broaden the choice available under new subsection (10)(a), while keeping it within the boundary of a family member. The child to he tested therefore has the additional possibility of having a responsible relative in attendance during the process. We feel that such an adult relative should be over the age of 21. We think that setting a minimum age of 21

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puts some distance and maturity between the child being tested and the accompanying adult. Without that one could have a situation where the person being tested is on the verge of turning 17 and the accompanying adult only a year older.
While Amendment No. 51 broadens the choice of appropriate adults who can be in attendance during testing, Amendment No. 52 seeks to inquire of the Government just how broad that definition can be. New subsection (10)(a) defines the appropriate adult as a parent, guardian or person representing a local authority or organisation in which the child is in care. New subsection (10)(b) widens the definition of "appropriate adult" to include social workers. We have no objection to these categories which include the most relevant parties; namely, those who have raised the child themselves, those who are taking care of the child at the time and those who have been trained how to look after the best interests of a child.
However, new subsection (10)(c) makes the possibility of the appropriate adult in attendance being "any responsible person". It is hard to see how such a person can be expected to have the knowledge to judge where the child's best interests will be. Hence our amendment, which would remove new subsection (10)(c).
When presented with these thoughts in Committee in another place, the Minister explained on 7th January that PACE has a three-stage test,
"which enables the police to identify an appropriate adult if a parent, guardian or social worker is unavailable".—[Official Report, Commons Standing Committee B, 7/1/03; col. 165.]
The Minister was presumably referring to Section 37(13)(b) of PACE, which describes those responsible for the welfare of the arrested juvenile, other than parent or guardian, as,
"any other person who has for the time being assumed responsibility for his welfare".
Accordingly, this clearly gives the police yardsticks by which to identify the appropriate adult. Yet it seems that no such yardsticks exist in this Bill. Certainly they do not appear in new subsection (10)(c). Furthermore, we are not just dealing with a juvenile's protection when in custody—there is the additional burden of responsibility, given the potentially intrusive nature of the drug-testing procedures.
New methods of testing for drugs are now being tried, and another helpful briefing from the Children's Society explains the position. New forms of testing involve saliva being taken from the mouth and then run through a machine, but this merely gives a positive or a negative result. Two issues are raised here: the first is whether the Government will have one of these expensive testing machines in every police custody station in the country when these laws come into effect and, if not, how intrusive will the alternative testing have to be.
The second issue is a little more complex. These machines gave only a positive or a negative result, and so, presumably, further intrusive tests, such as urine or blood samples, will have to take place to corroborate
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or confirm the initial result. We understand that if the child disputes the validity of a test the court will only accept the result of urine analysis as a legal standard of validity although we understand that, in practice, technology in this area has advanced at a great pace.
All these facts do not yet appear entirely clear. As I understand it, these machines have not yet developed past piloting stage. One therefore has a concern that the Government are equally unsure about the degree to which such non-intrusive testing schemes will work at a national level. Both potential outcomes are examples of how the possibility remains for intrusive drug testing for under-18s. This adds extra weight to my previous argument in Amendments Nos. 47 and 50 concerning the importance of the attendance of an appropriate adult for 17 year-olds.
Amendments Nos. 51 and 52 further underline the necessity for stricter guidelines to be placed upon the definition of "appropriate adult". This is presumably why the Government have provided a detailed specification of the definition of "appropriate adult" in the Bill rather than simply referring to the PACE guidelines.
We think that the words:
"any responsible person aged 18 or over"
leave the field too broad. Amendments Nos. 51 and 52 are therefore probing amendments to ask the Government for an explanation of how that phrase will be interpreted.
6 p.m.
Baroness Walmsley: I support Amendments Nos. 43 and 49 in the name of the noble Lord, Lord Adebowale, to which I have put my name. I echo his cogent arguments, which I have no intention of repeating. I should also like to speak to Amendments Nos. 45 and 46 in my name and support Amendment No. 50 in the name of the noble Lord, Lord Hodgson of Astley Abbotts.
On Amendment No. 43, I think it is vital that drug testing of young people at the charge stage is done only where there are grounds for believing that the misuse of a class A drug is habitual and has caused or contributed to the offence. We know that only about 3 per cent of young people who ever use drugs have a problem habit. We also know that many young people experiment with drugs. For the majority, this does not go on to become a habit or a problem at all. Similarly, while most young people try a cigarette at some stage, many of them never go on to become smokers, despite the fact that nicotine is a lot more addictive than something like cannabis.
It is vital, therefore, that we are not heavy-handed in the way in which we deal with this sort of experimentation. The introduction by this Bill of compulsory drug testing for children for the very first time raises many serious issues. It should, like all our other legislation, be based on the UN Convention on the Rights of the Child, to which we are signatories. In this connection, I declare my interest as a parliamentary ambassador for the NSPCC, which campaigns for that very thing. That is why I have laid, and support,

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amendments that treat 17 year-olds the same as 14, 15 and 16 year-olds in respect of these issues—in other words, the same as anybody under 18, as does the convention.
In relation to Amendment No. 49, we are all aware that the provision of treatment services for under 18s is very patchy indeed. When an adult has a drug test which comes up positive, we can be fairly confident that there are some sort of treatment services available for them, although some are better than others. However, the same cannot be said for children. It is therefore quite unjustified to insist that children undergo such tests and consequent invasion of privacy when the services are not there for them. I will return to whether such testing is the best way of addressing the problem in the debate on Clause 12 stand part.
In the meantime, I ask the Minister why the Government seem to be so muddled about the cut-off ages for different purposes for under-18s? Is she convinced that putting them in a situation where to refuse such a test is a criminal offence is really the best way to get compliance from a young person who finds himself in trouble with the law?
Since the noble Lord, Lord Adebowale, mentioned Amendment No. 48, perhaps I may also express my support for that. I would not like the Home Secretary to be able arbitrarily to lower the age limit. I already have considerable reservations about drug testing for 14 to 18 year-olds, so to take it any lower would be a very bad thing.
The Earl of Listowel: I should like to speak to Amendment No. 47, which expresses concern about the maximum age at which children can have an appropriate adult with them when they are tested. There is a general feeling that children are becoming adults earlier than in the past, which may be part of the rationale for this amendment. Quite often, sadly, children in care get involved with the criminal justice system. The most recent statistics show that 10 per cent of children in care had a caution per annum and were three times as likely to be cautioned as other children.
The Government recognise that many of the children who will be caught by this provision are vulnerable. In the Children (Leaving Care) Act 2000, the Government recognised that these children have often had very difficult beginnings; their development can often be delayed, which is why that legislation extended the level of care to them until the age of 21. Indeed, the Government extended further provision to children in education after the age of 21 up to the age of 25. So it does not seem to follow reason for this clause to treat children as if they become adults at the age of 17. I suggest that these are quite under-developed young people, not as mature as other children their age. So I do not quite understand the reasoning behind this. I would appreciate some explanation from the Minister.
Baroness Scotland of Asthal: I thank all those who have contributed to this debate, particularly the noble Lord, Lord Adebowale, who moved the amendment. I recognise the experience and sensitivity which he
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brings to these issues. I hope, since the noble Lord, Lord Hodgson of Astley Abbots, indicated that some of these are probing amendments, that I shall he able to explain to the Committee how I see some of the issues fitting together.
Before I go into the detail, it is important first to underline what a number of noble Lords have said, particularly the noble Lord, Lord Adebowale, and the noble Baroness, Lady Walmsley; that children have different needs from adults, and they will not generally have developed a substance misuse problem or entrenched patterns of behaviour. We should bear that important point in mind when considering the amendments.
Amendment No. 43 seeks to introduce an additional safeguard to ensure that a custody officer shall not detain someone for the purposes of taking a drugs test unless he has reasonable grounds to believe that the person has a propensity to misuse drugs and that the misuse caused or contributed to an offence. We propose that the amendment be resisted because such a safeguard is already in place under the existing provisions for drug testing at Section 63B of PACE, whereby a sample may be taken only if the offence for which the person is charged is a "trigger offence"—offences where research has shown the clearest link between the offence and drug use—or if a police officer of at least inspector rank has reasonable grounds for suspecting that the misuse by that person of a specified class A drug caused or contributed to the offence for which they have been charged.
Amendment No. 45, in the names of the noble Baroness, Lady Walmsley, and the noble Lord, Lord Dholakia, seeks—as the noble Baroness explained—to raise the minimum age for drug testing under Clause 12 from 14 to 17. As has been touched on, there is strong evidence to suggest an association between the frequent misuse of substances and offending and other anti-social behaviour among young people. It is important to identify drug-misusing offenders at an early stage and to take every opportunity to encourage them to access treatment and/or other programmes of help. If a person under the age of 18 is charged with a trigger offence, it is important to identify where possible whether his or her offending is linked to the use of illegal drugs, particularly the drugs that cause the most harm, such as heroin and crack cocaine. We therefore propose that Amendment No. 45 and consequential Amendment No. 46 are resisted.
By contrast, Amendment No. 44 in the names of the noble Baroness, Lady Anelay of St Johns, and the noble Viscount, Lord Bridgeman, seeks to lower the minimum age for drug testing from 14 to 12, so the two amendments go in opposite directions. As I previously said, research indicates that drug abuse among children in particular often relates to class B drugs. The provisions of the clause provide only for testing for specified class A drugs. That would suggest that testing those aged under 14 for specified class A drugs would not currently be an effective use of resources. As the noble Lord, Lord Hodgson,

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highlighted, that was the response made in the other place. We therefore propose that Amendment No. 44 be resisted.
Of course I hear what the noble Lord said about the nature of the research, which was directed in part to schoolchildren. But the body of research on which we have relied supports the contention that we have outlined here and is reflected in what was said by the noble Lord, Lord Adebowale, and the noble Baroness, Lady Walmsley. We have to take a medium course in relation to what may prove most effective. We think that this is about right.
6.15 p.m.
Lord Hodgson of Astley Abbotts: I referred to an article in yesterday's Observer. I have no way of knowing the seriousness of the research carried out by the University of Glasgow. Will the Minister undertake that her officials will see whether there is anything in that assertion and in such research? This is an important point where the child's welfare is central. If they are discovering a new trend, it would be helpful if the Home Office could find out why and how and whether the research is well based.
Baroness Scotland of Asthal: I would certainly be happy to look at that matter. A great deal of research has been undertaken by the Home Office. Home Office research study 192 and research study 261—Substance use by young offenders: the impact of normalisation of drugs use in the early years of the 21st century—work carried out by Richard Hammersley, Louise Marsland and Marie Reid—examined the prevalence of substance use and offending among a sample of 293 young people who were clients of the 11 youth offending teams in England and Wales. I think the noble Lord will accept that if they are already clients, they may be an indicative group on which we could rely.
Key findings from that research were that 40 per cent or more of the cohort felt that there was some relationship between their substance use and their offending; and substance use was very high. Eighty-six per cent had used cannabis; 91 per cent had used alcohol; and 85 per cent tobacco. A quarter had taken both cocaine and LSD. The use of the hardest drugs was lower; 18 per cent had taken crack cocaine and 11 per cent heroin. We have sought to craft the path we are taking on significant research, but I will look at any information about the new research to see whether it is outwith the trends that we have identified.
The clause as drafted provides for the presence, from the point at which an individual is requested to undergo a drug test, and for the test itself, of an appropriate adult for those who have not attained the age of 17. Amendments Nos. 47 and 50 in the names of the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay of St Johns, seek to raise the age at which a person must not be tested for specified class A drugs except in the presence of an appropriate adult from those under the age of 17 to those under the age of 18. However, that would not be
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consistent with current provisions in code C of PACE: the code of practice for the detention, treatment and questioning of persons by police officers.
The provisions applicable under the PACE Code of Practice C require any person who appears to be under the age of 17 to be treated as a juvenile and consequently provide that an appropriate adult is required to be contacted and asked to attend the police station to see the detained juvenile and that thereafter the appropriate adult's involvement in the process should continue. The attendance of an appropriate adult at police stations should be consistent with that of the current requirements placed on the police. The effect of increasing the age to include those under the age of 18 may lead to confusion. It would also necessitate the presence of an appropriate adult for those aged between 17 and 18 solely for purposes relating to the testing process. That may put undue pressures on family relationships, or have a disproportionate effect on resources. We therefore propose that Amendments Nos. 47 and 50 also be resisted.
Amendments Nos. 51 and 52, which were tabled by the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay of St Johns, would amend the definition of "appropriate adult" as the noble Lord has set out to include any close relation aged 21 or over, and to remove,
"any responsible person aged 18 or over who is not a police officer or a person employed by the police".
The clause as drafted is compatible with Code C of PACE. We see no reason to include that extra category of persons. In practice, in many cases, the police would in any case choose a close adult relation to act as an appropriate adult in the absence of a parent or guardian. However, unfortunately, there can be no guarantee that a close relation, of whatever age, would be suitable to act as an appropriate adult. We therefore propose that the amendments be resisted on that ground.
Amendment No. 49 would ensure that the provisions will not come into force in a given area unless appropriate treatment for young people is available there. The noble Lord, Lord Adebowale, very graphically made that point. I understand that the amendment arises from a concern that young people may be diverted into adult services where specific services for young people are not available.
The intention of the testing and drug rehabilitation requirements in the Criminal Justice Bill is to strengthen and increase the provision available to young offenders. We do not propose to push young people into adult-based services. Much work has already been done to expand the treatment facilities available for young people. All drug action teams (DATs) have completed an assessment of young people's needs in relation to substance misuse service provision. Each DAT provides an annual young people's substance misuse plan, which outlines holistic service provision for young people that is separate from adult services, and treatment services specifically designed to meet the differing needs of young people. The DATs also provide an annual return on progress,

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so we have a check. The Youth Justice Board is working to expand services further. It is providing funding for all 155 youth offending teams (YOTs) across England and Wales to have access to an allocated named drugs worker.
All DATs working with youth offending teams have undertaken assessments of local need and developed young people's substance misuse plans. The plans outline how services will be expanded so that, by April 2004, all young people who need treatment, including young offenders, will have access to it. We therefore propose that the amendment is not necessary. We resist the amendment but invite Members of the Committee to consider withdrawing it having heard what we have been able to say.
I shall now seek to answer some of the specific questions on matters other than those that I have just outlined, in the hope that we can further reassure Members of the Committee. The noble Lord, Lord Adebowale, asked about the status of the sample and the introduction of proceedings—to some extent, what the test results will be used for. The test results will be used to assist the court in making bail and sentencing decisions and to ensure that appropriate advice and treatment is made available to the detainee.
The whole purpose of drug testing after charge is as a screening tool. It does not of itself tell us about the extent of a person's drug use or linked criminality. Drug testing is used to identify those who misuse specified class A drugs—heroin and crack cocaine— who may need treatment and to encourage them to address their drug misuse and to access appropriate treatment. Test results may not be used as additional evidence in support of any offences of which the detainee has been charged, for other investigative purposes or as an aggravating factor when sentencing. The reason that it is such a powerful tool, as the noble Lord, Lord Adebowale, said, is that we want to deal with the issues holistically. If we are to address offending and to change behaviour, we need to know the nature of the difficulty with which we seek to deal.
The noble Lord, Lord Adebowale, also asked how the provisions would be introduced. They are to be piloted, on a limited basis at first, to enable evaluation of the effectiveness of the provisions to be undertaken and to inform possible further extension of the provisions. My right honourable friend the Secretary of State will have the option of bringing the drug testing provisions of the clause into effect by reference to specific police stations and specific police areas. That will facilitate the piloting of the provisions at a few selected sites alongside the continuing drug testing of those aged 18 and over. It will provide for effective targeting of the provisions with a view to future extension in police areas. It would be appropriate for the provisions to be piloted in areas where the pilot for arrest referral for the under 18s is to take place and where there is an existing adult testing on charge.
The noble Baroness, Lady Walmsley, asked about empirical data and the action plan orders, the estimated number of young people to be involved and
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the resources put aside. The noble Lord, Lord Adebowale, also raised that issue. I hope that I have been able to reassure him.
Members of the Committee have asked how we engage young people at the point of arrest to address their needs. It is intended that, by around March 2004, there will have been established in the drug testing pilot areas a model of working that assures that appropriate arrest referral services have been designed specifically to address the needs of young people. The model will be supported by local protocols between youth offender teams, the police, local drug action teams and crime reduction partnerships. That will ensure that an appropriate range of services will be available, with minimum delay, to support work undertaken with the young person in custody.
The noble Lord, Lord Hodgson, asked about drug testing for adults and how it is being rolled out across the country. It is proposed that, first, drug testing for adults should be rolled out in the 30 police basic command units with the highest levels of acquisitive crime. Testing for young people will be piloted, but in a limited number of BCUs, and will be fully evaluated. Disputed tests are sent to the Forensic Science Service for validation, which is carried out within 72 hours. The 30 police basic command units are provided with testing machines that use saliva. They shall continue to be used and provided in the roll-out.
I was also asked about the age for appropriate adults. As I think I already said, it is compatible with Code C of PACE as detailed. The noble Lord, Lord Adebowale, asked about the action plans. The action plan order will be dealt with at Clause 264. If Members of the Committee think it convenient, the Green Paper for young people could be discussed at that stage of the Bill.
I hope that I have dealt with each of the main issues raised. If I have neglected to answer specific points, I shall write to Members of the Committee. Having explained how we see the provisions fitting together, and taking into account the disparity of view evidenced in the nature of the amendment, I hope that I have been able to reassure Members of the Committee that the Government take the issues very seriously. We have based the suggestions on the empirical data that we have before us and we will integrate services to try to ensure that we respond appropriately to the needs of young people. We will enhance our opportunities to intervene in a productive and rehabilitative way to reduce the level of recidivism and, one hopes, reduce the distress caused not only to the victims of crimes perpetrated by young people under the influence of drugs but also the suffering of the drug offenders themselves.
6.30 p.m.
Baroness Howarth of Breckland: Before the Minister sits down and the noble Lord, Lord Adebowale, replies, I had not planned to speak, but having heard about the holistic approach to this problem I find myself in disbelief at part of the response. I say that respectfully, knowing the Minister's concern for young people.

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For many years, organisations, especially social services departments, have worked with the families of drug users experiencing considerable difficulties. Such organisations have a great deal of experience, as do Turning Point and the other voluntary organisations, in the field of the complex programmes needed to help these families. We know that problems are not only to do with drug taking. In many families, although not all, drug taking is to do with the problems that the family is experiencing as a whole. The parents' difficulty in dealing with their own children is among those problems.
During the 15 years I was in Childline, I talked to literally hundreds of children who described extraordinarily complex family dynamics that resulted in their taking drugs as a way out. How will social services and the voluntary organisations be supported while we try to develop innovative programmes when we know what will work in many places? We simply do not have enough people, expertise and resources on the ground to put the programmes into place. I apologise for intervening.
Baroness Scotland of Asthal: I welcome the intervention by the noble Baroness, Lady Howarth of Breckland. We are rightly concentrating on the provisions in this Bill and scrutinising how they will help us to better deliver the change that we seek. However, this must be seen in the context of all the other things we are doing.
We should start by examining the work that the Government have energetically pursued on Sure Start and then look at all the work that we have done together to bring all those who are involved in local delivery into the community legal service partnership, which, as I am sure the noble Baroness knows, brings together local authorities, central government agencies—through the Legal Services Commission—charities, non-governmental organisations and all the advice givers and providers in a locality. They do two things: they make a needs-based assessment of what is necessary for that area and then an audit of the providers tasked with delivering those services. Between the two the organisations have been able to fashion a care plan for the area that directs the needs of advice and service provision. Instead of having a maze of service providers or a desert with no service provision, a joining-up is happening.
Those who have participated in this Bill note the work we did together on the Courts Bill, which is still in another place. It will bring together a unified system, which is the second part of the jigsaw puzzle. We are dealing with the criminal justice part because through this structure we are creating the effective tools that we will need for creative intervention so that we remove the greater majority of people who simply go in and out of the system, serving life imprisonment sometimes, but 30 days or so at a time. If one links that with the work we are doing with young people and we look at the provisions in the Bill relating to street bail, we have a creative response to what the Government seek to do.
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This is part of the holistic response. As we go through the Bill, it is important to see how all the parts of the jigsaw fit together. Each little section has its place and if we work energetically and properly the people of this country will have a system of which they can to be proud.
Lord Northbourne: I intervene briefly, although I had not intended to, because I am disquieted by the idea that anyone will do to accompany the child. Of course, a variety of people could conceivably give the necessary support to the child but that idea seems to suggest that the family, or the care institution to which the child belongs, has no special responsibility. The Bill should make it clear that families matter, that the young person's drug behaviour matters, that care in the children's home matters, and that the people who run the children's home have a responsibility. Primarily, they should have to be there.
Baroness Scotland of Asthal: I hope that nothing that I have said detracts from what the noble Lord, Lord Northbourne, has just said. He is absolutely right. Families have a very powerful part to play. In the majority of cases, the close family member will be the appropriate adult to be called. However, the noble Lord will know from the extensive work that he has done with children's charities on these issues that regrettably, sometimes almost tragically, the family cannot provide an appropriate adult for the child.
Again, we are doing much to address the problem. I do not seek to suggest for a moment that the family will not usually provide the most appropriate adult, but we use the phrase "appropriate adult" so that we can encompass people who may not be part of the child's natural family. They may be the most appropriate adult to attend to give assistance to the child in that particular circumstance. It will enable us to have the right breadth.
Noble Lords will know that we seek to address the re-engagement of families with young people more directly with the work we are doing on parenting orders, both voluntarily and, if necessary, compulsorily, to enable adults to address the child's needs. The child or young person should be at the centre of what we are trying to do.
Lord Adebowale: I thank the Minister for her response to my questions and my speech. I thought her response was very useful and detailed. I shall return to some points. I was very ably helped by the noble Baroness, Lady Howarth, who gave me an opportunity to see how the Bill fits into the wider government perspective.
However, I remain concerned about the resourcing of this part of the Bill, especially the testing orders. Although the Minister referred to the youth offending teams having named individuals for young, people, that is not the same as providing treatment. I note the Minister's reference to the provision of plans by the drug action teams with which I have wide experience. That is not the same as the provision of treatment. It is the provision of a plan.

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I note that the Advisory Council on the Misuse of Drugs on which I sit has recently produced a report of which I am sure the Minister is aware, which indicates that between 250,000 and 300,000 young people of drug misusing parents are currently without recognised treatment. I do not wish to be mealy-mouthed about or to denigrate the efforts of the Government to provide an appropriate response to treatment and, indeed, to examine a holistic approach to treatment for young people. I fear, though, that on the ground the statements made in the House fail to have the desired effect. At this stage of the debate, we need to understand how precisely the Government will know that the plans have resulted in treatment provision. How will the Government know that young people will not find themselves in a police station being tested in wholly inappropriate circumstances, without the provision of appropriate treatment interventions, regardless of what the treatment test says?
Noble Lords will forgive me if I push the matter, but, although I appreciate the noble Baroness's response and her commitment, I still require further evidence that the jigsaw that was so eloquently described—the plans, the moneys committed by youth offending teams, the connections—is not missing a few pieces. We can all see what that jigsaw describes. From my experience, I can say that the descriptions of such jigsaws are often not recognised by the people whom they are meant to affect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 44 to 47 not moved.]
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 48:
Page 7, line 35, leave out paragraph (c)
The noble Lord said: Amendment No. 48 would delete paragraph (c) of subsection (3). As noble Lords will recall, following the extensive debate we have just had, Clause 12 concerns drug testing for under-18s—or should it be under-17s? Paragraph (c) enables the Secretary of State to substitute the specified ages—14, 17, 18—as he thinks appropriate. It is perhaps a guide to the Government's sensitivity on the issue that they have eschewed the use of the good, clear word "change" in favour of the more mealy-mouthed word "substitute".
The age barriers were discussed in connection with the previous amendment. The inclusion of subsection (3)(c) is indicative of the Government's underlying uncertainty in their decisions regarding ages. We appreciate that some flexibility is defensible. In Committee in the other place, the Minister replied to the point by arguing that, as it was a new proposal, the Government wished to have the power to change specified ages as a failsafe. I always find it inherently unsatisfactory when Ministers argue that powers will never be used but that the Government need them none the less. If the Bill remains unamended, it will allow for the minimum age of testing to he reduced by statutory instrument from 14 to 12, something that the noble Baroness eloquently argued against in connection with the previous set of amendments.
With an earlier group of amendments—Amendments Nos. 37, 38 and 39—we discussed the Government's policies on restricting consultation when revising the PACE codes. Even under the new government proposals for PACE code revision, there was still a procedure for public consultation before change to the codes was implemented. I see no such requirement for consultation here beyond the standard affirmative resolution procedure.
As we pointed out, maintaining public confidence in the criminal justice system must be our central concern. Consistency is an important part of that confidence. If numerous changes are to be made to the ages, the police may become confused, and the public may become distrustful. I hesitate to say it but if the minimum age is to be altered as often as, for example, the Government's policy on cannabis has been, people could be excused for not knowing where they stood with regard to their child's legal status.
As a minimum, there should be a requirement for a public consultation procedure along the lines of that for the PACE codes so that important interest groups can make their views known before any fundamental and far-reaching changes are made. I beg to move.
6.45 p.m.
Baroness Carnegy of Lour: In view of the fact that, under the Bill, children can be tested at the age of 14 and, under this subsection, at an age lower than 14, can the noble Baroness assure the Committee that the provisions are about testing with a view to treatment and have no implications for the age of criminal responsibility? It is important that we know that.
Baroness Scotland of Asthal: In moving the amendment, the noble Lord, Lord Hodgson of Astley Abbotts, said that there was an underlying uncertainty in the Government's approach to the issue of age. I hope that, in responding to the previous group of amendments, I demonstrated that there was no uncertainty. We have set the ages at the appropriate mark to respond to the empirical data that we have. I hope that I have been able to explain that fully.
As I said, research indicates that drug abuse among children, in particular, often relates to class B drugs. The provisions in the clause provide for testing only for class A drugs. That suggests that testing those aged under 14 for specified class A drugs would not currently be an effective use of resources. I highlighted that in my response to the earlier amendments. We suggest respectfully that it is important that my right honourable friend the Secretary of State has the ability to amend—up or down—the minimum age of drug testing under the clause. For example, evidence may emerge to suggest that we would be justified in extending such drug testing to include persons under the age of 14. There is no such evidence now but, as the noble Lord indicated, that may change. We would have to consider that. The provision enables us properly to take into account the evaluation findings, once piloted and other research evidence has been received, so that we can make an informed decision.

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The Select Committee on Delegated Powers and Regulatory Reform, on which the noble Baroness, Lady Carnegy of Lour, sits, considered the issue and, on 12th June, published a report. The committee found that the delegation and the level of scrutiny proposed under the clause were appropriate. We invite the Committee to be content with the committee's assessment.
I can reassure the noble Baroness, Lady Carnegy of Lour, that there will be no impact on the age of criminal responsibility. She can rest assured about that. I resist the amendment. I hope that, having heard what I have said, the noble Lord will feel more content than he was when he moved it.
Lord Hodgson of Astley Abbotts: I am sorry to disappoint the noble Baroness. I am grateful to my noble friend Lady Carnegy of Lour for her support. My concern was not about the fact that we might have to change the ages. My concern was about the public consultation—or lack of it—that was to go with such a change.
We have heard from all parts of the Committee strong views on the importance of the various ages—14, 17, 18, 21 and so on. People do not necessarily agree—often, as the noble Baroness said, they are at odds—but, clearly, they feel strongly about the matter. It would not be right for the Secretary of State to be able to introduce by statutory instrument a sudden change to an age without having had regard to the views of interest groups and other people who are concerned and have huge knowledge and experience. As I suggested, it should be done along the lines of the PACE codes. That is a good procedure which could be introduced for this particular change. With the greatest respect to the Joint Committee, I do not find the argument that we should leave it to an affirmative resolution statutory instrument satisfactory. In the light of the Minister's response, I propose to test the opinion of the House.
6.50 p.m.
On Question, Whether the said amendment (No. 48) shall be agreed to?
Their Lordships divided: Contents, 114; Not-Contents, 97.

Division No. 1

CONTENTS

Addington, L.

Brooke of Sutton Mandeville, L.

Adebowale, L.

Brougham and Vaux, L.

Alton of Liverpool, L.

Burnham, L.

Ampthill, L.

Buscombe, B.

Anelay of St Johns, B.

Byford, B.

Ashcroft, L.

Campbell of Alloway, L.

Astor of Hever, L.

Carnegy of Lour, B.

Attlee, E.

Colwyn, L.

Barker, B.

Cope of Berkeley, L. [Teller]

Blatch, B.

Cox, B.

Bridgeman, V.

Craig of Radley, L.

Brittan of Spennithorne, L.

Darcy de Knayth, B.

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Denham, L.

Montrose, D.

Dholakia, L.

Moynihan, L.

Dixon-Smith, L.

Newby, L.

Elton, L.

Newton of Braintree, L.

Ferrers, E.

Noakes, B.

Fookes, B.

Onslow, E.

Fowler, L.

Oppenheim-Barnes, B.

Gardner of Parkes, B.

Palmer, L.

Geddes, L.

Perry of Walton, L.

Glenarthur, L.

Phillips of Sudbury, L.

Glentoran, L.

Pilkington of Oxenford, L.

Greenway, L.

Plumb, L.

Griffiths of Fforestfach, L.

Razzall, L.

Hamwee, B.

Rennard, L.

Hanham, B.

Renton, L.

Hanningfield, L.

Roberts of Conwy, L.

Harris of Richmond, B.

Russell, E.

Henley, L.

St. John of Bletso, L.

Higgins, L.

Saltoun of Abernethy, Ly.

Hodgson of Astley Abbotts, L.

Sandberg, L.

Howarth of Breckland, B.

Scott of Needham Market, B

Howe, E.

Seccombe, B.

Howe of Aberavon, L.

Selborne, E.

Howe of Idlicote, B.

Selsdon, L.

Howell of Guildford, L.

Sharp of Guildford, B.

Hurd of Westwell, L.

Shutt of Greetland, L. [Teller]

Kennedy of The Shaws, B.

Skelmersdale, L.

Lamont of Lerwick, L.

Smith of Clifton, L.

Lang of Monkton, L.

Stern, B.

Lester of Herne Hill, L.

Stewartby, L.

Linklater of Butterstone, B.

Stoddart of Swindon, L.

Listowel, E.

Strathclyde, L.

Luke, L.

Thomas of Gresford, L.

MacGregor of Pulham Market, L

Tordoff, L.

McNally, L.

Trumpington, B.

Ullswater, V.

Maddock, B.

Vivian, L.

Mancroft, L.

Waddington, L.

Masham of Ilton, B.

Wade of Chorlton, L.

Mayhew of Twysden, L.

Wakeham, L.

Michie of Gallanach, B.

Wallace of Saltaire, L.

Miller of Chilthorne Domer, B.

Walmsley, B.

Miller of Hendon, B.

Watson of Richmond, L.

Weatherill, L.

Monro of Langholm, L.

Wilcox, B.

Monson, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Dixon, L.

Ahmed, L.

Donoughue, L.

Alii, L.

Dormand of Easington, L.

Andrews, B.

Dubs, L.

Ashton of Upholland, B.

Evans of Parkside, L.

Bach, L.

Evans of Temple Guiting, L

Bassam of Brighton, L.

Farrington of Ribbleton, B.

Beaumont of Whitley, L.

Faulkner of Worcester, L.

Berkeley, L.

Filkin, L.

Bernstein of Craigweil, L.

Gale, B.

Blackstone, B.

Gibson of Market Rasen, B.

Borrie, L.

Gilbert, L.

Bragg, L.

Golding, B.

Brett, L.

Goldsmith, L.

Brooke of Alverthorpe, L.

Gordon of Strathblane, L.

Brookman, L.

Goudie, B.

Burlison, L.

Grocott, L. [Teller]

Campbell-Savours, L.

Hardy of Wath, L.

Carter, L.

Harris of Haringey, L.

Clark of Windermere, L.

Hayman, B.

Clarke of Hampstead, L.

Hogg of Cumbernauld, L.

Clinton-Davis, L.

Hollis of Heigham, B.

Corbett of Castle Vale, L.

Howells of St. Davids, B.

Crawley, B.

Hoyle, L.

David, B.

Hughes of Woodside, L.

Davies of Oldham, L. [Teller]

Hunt of Chesterton, L.

Dean of Thornton-le-Fylde, B.

Jones, L.

73

Jordan, L.

Plant of Highfield, L.

Judd, L.

Prys-Davies, L.

King of West Bromwich, L.

Puttnam, L.

Kirkhill, L.

Rendell of Babergh, B.

Lea of Crondall, L.

Rooker, L.

Lockwood, B.

Sawyer, L.

Lofthouse of Pontefract, L.

Scotland of Asthal, B.

McCarthy, L.

Simon, V.

Macdonald of Tradeston, L.

Stallard, L.

McIntosh of Haringey, L.

Symons of Vernham Dean, B.

MacKenzie of Culkein, L.

Temple-Morris, L.

Mackenzie of Framwellgate, L.

Turner of Camden, B.

Maginnis of Drumglass, L.

Warwick of Undercliffe, B.

Mallalieu, B.

Watson of Invergowrie, L.

Mason of Barnsley, L.

Wedderburn of Charlton, L.

Merlyn-Rees, L.

Whitaker, B.

Mitchell, L.

Whitty, L.

Morris of Aberavon, L.

Williams of Elvel, L.

Parekh, L.

Williams of Mostyn, L. (Lord President of the Council)

Patel of Blackburn, L.

Pendry, L.

Williamson of Horton, L.

Pitkeathley, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7 p.m.
[Amendments Nos. 49 to 52 not moved.]
On Question, Whether Clause 12, as amended, shall stand part of the Bill?
Baroness Walmsley: Clause 12 should not stand part of the Bill. It may be useful to outline what the testing provisions will mean in practical terms to a young person. A young person aged 14 or over, charged with house-breaking, for example, which is a trigger offence for testing, is asked to agree to a drug test. Should they refuse to consent, their refusal constitutes a criminal offence punishable by a fine of £2,500 or imprisonment, regardless of whether the burglary charge is subsequently dropped or even that they are acquitted.
Should they consent, the blood test would be taken by a mouth-swab procedure. In the case of 14 to 16 year-olds, this would require the presence of a parent or appropriate adult. But if they are 17 then no such safeguard would be provided. As we said earlier, under the UN Convention on the Rights of the Child, 17 year-olds should be treated the same.
A positive test would be made known to the court hearing the bail application and to the youth offending team charged with ensuring further drug-specific assessment. However, there is no assurance that a comprehensive specialist assessment of drug use would have been completed in time for the first bail hearing. It is unclear, but a matter of some importance, how the information relating to the test result will be recorded, how long it will be kept and how the privacy of the information will be safeguarded, whether in terms of police records or in relation to court disclosures. There remains the question of whether such positive drug test results might be used under the bad character provisions of this Bill, whether in relation to the immediate trial for the charge leading to the test, or even in any subsequent criminal proceedings the individual may face.
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The Children's Society believes that introducing a testing regime of this kind is counter-productive to the aim of improving the effectiveness of efforts to help young drug users. They believe that coerced testing to identify drug use at charge introduces a confrontational and heavy-handed approach to a sensitive subject for young people in trouble. Great progress has been made over recent years with more young people's drug services, specialist provisions for youth offending teams and assessment practices that are designed to ensure young people can discuss their drug use honestly with the focus on support. I am worried that testing at charge risks negatively affecting the assessment and trust-building skills that underpin current and developing practice with young people.
Testing cannot distinguish between one-off, experimental and problematic use. It can also not show whether or not or when the person was intoxicated, how much they used or how long ago. It cannot tell us how they took it, whether by injecting, snorting or smoking which would be important in establishing the risks and the seriousness of their problem. Testing for class A drugs will miss situations where a young person has problems with alcohol, solvents or other illegal drugs that may be related to their offending. Equally, it may still miss people who do use class A drugs because drugs such as cocaine are detectable for as little as 12 hours after use. If the aim is really to find out about the extent of involvement with substance misuse, the relationship with alleged offending and need for help and support, then a class A drug test result—positive or negative—tells us very little indeed. A young person may test positive if they have only used the drug once or where drug use played no role in the alleged offence. I am concerned that a positive test result may have a negative and potentially prejudicial influence upon the legal process in which they are involved.
It may continue to be the case that courts remand some under-18s to Holloway Prison, despite its accepted inappropriateness for young people, because it is the view that it is the only place where they will get drug treatment. This shows the knowledge of drug use can and does affect court decision-making about bail and remand. In many cases these are entirely appropriate considerations. However, there is a significant and understandable risk that by disclosing test results to the court before a full assessment has been made, magistrates may react to a positive test for class A drugs. They may see it as an indicator of chaotic or dependent problems when in fact there is no such problem. There is simply no automatic connection between a positive test result at time of charge and the commission of the alleged offence.
Turning to the rights of children, I believe that these provisions engage UN Convention on the Rights of the Child and Human Rights Act principles and rights. Once again the measures highlight the anomaly of our treatment of 17 year-olds as adults for the purpose of PACE by leaving 17 year-olds without the safeguard of being advised and accompanied by a parent or appropriate adult. They apply the existing adult procedures to children when our UNCRC obligations

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are to separate the system of justice for children and to treat children as children first. The collection of non-intimate samples for drug testing by the police when it is not evidence for the purpose of identifying the young person, nor necessarily in respect of the charge being brought against them, must surely engage the young person's Article 8 right to privacy and personal integrity.
The use of criminal sanctions to coerce consent to such a test is also an interference with the personal integrity of the individual. The Joint Committee on Human Rights has clearly stated in relation to the collection of similar samples under Clause 8 of this Bill that there needs to be a means of ensuring in each individual case that such an infringement is necessary and proportionate. Although the JCHR was not referring to Clause 12 and has not made any published assessment of this clause, I do not believe that the case has been made for these measures, either on the basis of necessity or proportionality.
I am further concerned that the passing on of a test result to the court without consent may also breach article 8. The claimed purposes of both the test itself and the disclosure to the court are solely to ensure that the young person receives an assessment and, where appropriate, treatment. Such substance misuse, assessment and referral should happen as a matter of course under existing procedures. This throws into question the necessity of automatic disclosure to the court. It should remain the case that the youth offending team can inform the court of a young person's drug use once they have assessed it and if they believe it to be important to the consideration of bail and bail support. If the intention of the Government is to provide better means of identifying need at the police station and better connection to necessary treatment, the answer is to build on existing arrest referral schemes, which bring drug specialists into the police station, and to allow the developing good practice, through asset assessment and youth offending team partnerships with drug specialists, who embed in good practice.
The measures in Clause 12 would engage the police in gathering tests that are not evidence in respect of the crime at hand and draw the results, regardless of their possible lack of significance, into the formal pre-trial process. For these reasons, I urge the Government to rethink these measures and consider deleting Clause 12. I beg to move.
Baroness Scotland of Asthal: Not surprisingly, I would resist such a move. I should say straightaway what I said in answer to the earlier amendments. The test results may not be used in additional evidence in support of any offences of which the detainees have been charged, or for other investigative purposes, or as an aggravating factor when sentencing. The noble Baroness has concerns and fears about those issues. That is why we have made it absolutely clear that the tests cannot be used for that purpose.
I understand the fear expressed by the noble Baroness, who is right to be concerned. I am delighted to have the opportunity to reassure her that that is not
76
the purpose to which the tests can be put. The purpose of drug testing after charge is as a screening tool. It does not in itself tell us anything about the extent of a person's drug use or linked criminality, which is exactly the point the noble Baroness sought to make. I respectfully agree with her.
Clause 12 introduces changes to the drug testing provisions in the Police and Criminal Evidence Act 1984—PACE. Section 38 of the Act relates to the duties of the custody officer after charge, and Section 63B to testing for presence of class A drugs. We have touched upon those issues earlier today. The clause will allow for persons aged under 18, specifically those aged 14 and above, to be tested for specified class A drugs after charge, and for the custody officer to detain the young person concerned to enable a sample to be taken for that purpose. Where the young person has not attained the age of 17, the clause provides for an appropriate adult to be present from the making of a request that the individual undergo a drug test to the taking of the sample. The provisions are intended to be introduced on a pilot basis.
Section 38 of the Police and Criminal Evidence Act 1984 currently allows a custody officer, in the areas where that section has been brought into force, to request a sample to be taken from persons aged 18 and over who have been charged with a "trigger offence". We discussed the definition of trigger offences earlier. They are defined in Schedule 6 to the Criminal Justice and Court Services Act 2000. It allows the custody officer to test for the presence of any specified class A drug, such as heroin and cocaine/crack. A person may be detained for up to six hours after charge for that purpose, and failure to provide a sample without good cause is an offence. Those charged with non-trigger offences may also be tested when a police officer of inspector rank or above authorises the test on the basis of reasonable grounds to suspect that misuse of any specified class A drug caused or contributed to the offence. It is significant that we chose inspector rank at this point; it indicates the weight we believe to be appropriate.
The criminal justice White Paper, Justice for All, confirmed our intention to extend these drug-testing provisions to those aged under 18. We propose to pilot the provisions in respect of young persons aged 14 and above. Should evidence emerge to suggest that we would be justified in extending the measure to include persons under the age of 14, as the noble Lord, Lord Hodgson, would probably like us to do, there is provision to do so. Equally, testing may be restricted to those older than 14 if evidence warrants such a change.
Clause 12 accordingly amends the relevant provisions inserted in PACE—namely, Section 38, relating to the duties of a custody officer after charge, and Section 63B, which sets out the conditions for drug testing—to enable drug testing to apply to those under 18, and specifically to those aged 14 and above. Subsection (2) makes the necessary amendments to Section 38(1) of PACE, which sets out the exceptions under which the custody officer can detain persons after charge, to allow for arrested juveniles, provided

77
they have reached the minimum age of 14, to be detained to enable the taking of a sample under Section 63B of PACE. Subsection (3) amends Section 63B of PACE to provide for the drug testing of those aged 14 and above and to require the presence of an appropriate adult prior to and during the testing procedure in the case of those having attained the age of 14 but not yet having attained the age of 17.
It is important for us to consider the details of the provisions as they all fit together well—contrary to what has been said. One can see a synergy. The subsection inserts Section 63B(10), which defines the persons who may act as an appropriate adult. The definition is compatible with the appropriate adult definition as detailed in the PACE code C, which is the code of practice for the detention, treatment and questioning of persons by police officers. The minimum age for drug testing under the clause is extended from the age of 18 to 14. Subsection (3) inserts Section 63B(9), which will allow for the drug testing of persons aged under 18 to be introduced on a pilot basis.
If one considers how the provisions fit together, the anxiety that the noble Baroness understandably has about them does not appear to be justified. We would suggest that it is a proper and balanced response to a very difficult, complex and sensitive issue. I invite the noble Baroness, on mature reflection and bearing in mind all that we have said in earlier debates, to be content that Clause 12 stand part of the Bill. However, I can anticipate that at some other stage she may wish to come back to the issue, knowing the acuity with which she has addressed the issue.
7.15 p.m.
Lord Dholakia: I wish to ask the Minister a couple of questions. First, the duty of taking a sample is vested in the custody officer. Is the Minister satisfied that a police officer is the one who will carry out the duties, and not someone delegated with such a responsibility? Secondly, will she give an assurance that there are a sufficient number of women police custody officers, particularly in the case of young girls from whom a sample may be required? Thirdly, the Home Secretary is expecting the police officer to make arraignments in his area. Is the Minister satisfied that every police station has such facilities available, or are there likely to be instances when youngsters will be shuffled from one police station to the other to find appropriate facilities?
Lord Hylton: When the Minister replies, will she deal with several points that were properly and rightly raised by the noble Baroness, Lady Walmsley? For example, what will happen to the information and its recording of the results of the drug tests? Could they be used subsequently to blacken the reputation of the person in question? Might they become a bar to the employment of that person? If that should happen, that is one of the things most likely to set the person into a lifetime of crime. Furthermore, the noble Baroness, Lady Walmsley, observed that magistrates
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and perhaps others may, as a result of the tests, make wrong assumptions about the person. That is an important point on which we would like to hear more.
The Earl of Listowel: I thank the Minister for her reassurance regarding the occasions when the information from the screening would not be used in court. For the sake of clarity, will she say when, if ever, that information would be used in court, and how it would be framed if it were used?
Baroness Scotland of Asthal: I wish to deal with the issues raised by the noble Earl, Lord Listowel, and the noble Lord, Lord Hylton. The very first thing I did was to answer the question raised by the noble Baroness, Lady Walmsley, when she asked what would happen to information regarding results. I thought that I made the position clear but I repeat that the test results may not be used as additional evidence in support of any offences with which the detainee has been charged, nor for other investigative purposes, nor as an aggravating factor when sentencing. Those tests cannot be used for any of those purposes. The whole point of the drug testing after charge is simply as a screening tool.
Lord Hylton: I am most grateful but can the noble Baroness say whether the records will be destroyed? Or will they continue to exist in the form of a statistic which does not name the person in question?
Baroness Scotland of Asthal: I say straight away that I do not know the answer to the question regarding a statistic. However, I can say that the record will not be capable of being used in relation to the offender. It enables us to target the offender's needs in terms of assessment but it will not be used as a tool with which to beat the offender in any adverse way. That is what I was trying to make absolutely clear to the noble Baroness. It is a matter about which the noble Earl, Lord Listowel, will also be concerned as I know of his genuine and long-standing interest in the rights of young people and children. I hope that I have made the position as clear as I know how.
Lord Elton: Before the noble Baroness sits down, can she make something clear? She said that the information will not be used in relation to an individual but are we right in supposing that the identity of the individual will be stripped out of the statistic so that it will not be there to be used?
Baroness Scotland of Asthal: I do not know the answer to that question save to reassure Members of the Committee that the information will be held in accordance with the Data Protection Act 1998 and the Human Rights Act. I have not, if I am absolutely frank, looked at the detail because I was reassured that the policy intent was not to use the information in relation to the way in which the offender would be dealt with.
Lord Elton: The noble Baroness will recognise that policy intents change with Ministers and governments and that what actually matters is the availability of the material. Will she write to me and place a copy of the letter in the Library?
Baroness Scotland of Asthal: I am certainly happy to write. Sometimes things change for the better. However, that is for others to say.
I turn to some of the issues raised by the noble Lord, Lord Dholakia. The noble Lord asked who would take the sample, whether there would be sufficient women police officers, and whether there would be sufficient capacity within a police station. We have decided that it will be right and proper to pilot the matter so that we can get it absolutely right. We shall ensure that all the areas that participate in the pilot have the wherewithal to do so appropriately within the confines of what we propose.
As regards who will supervise the taking of the samples, that will come under the general supervision of the custody officer who has responsibility for the care of persons detained in police custody. The custody officer will decide whether the drug testing procedure should be followed and will ensure that the taking of samples is in line with the PACE codes of practice and guidance. The request for the sample has to be made by a police officer who must first warn the person concerned of the consequences of failure to provide such a sample. I assure the Committee that training is provided for all those expected to administer a test.
In relation to the question about police station facilities, I have already said that the scheme will be piloted and that a custody officer will be involved as regards the details set out in Section 38 of PACE. I absolutely understand the import of what the noble Lord said about having sufficient women police officers available, particularly if the taking of samples is of an intimate nature. All the usual good practice and procedure will be adopted in relation to those matters. I have no difficulty in reassuring the noble Lord about that.
As I indicated in my response to earlier amendments, we consider that if this matter can be advanced constructively through the pilots it will enable us to gather the kind of empirical data that we shall need to ensure that the procedure and practice that we seek to embed are sound, robust and in accordance with the good practice that we would want and that they deliver the kind of results that the Committee clearly would like to see. I hope that with that the noble Baroness will feel at least a little more content.
Baroness Walmsley: I am most grateful to the Minister for her response. I am particularly grateful to her for the reassurance that she gave that the test results will not be used as evidence of bad character. We on these Benches do not like those provisions in the Bill anyway but to add drug testing of under-18s to them would be even worse. However, it is clear from the number of amendments that were tabled to Clause
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12 that there is considerable disquiet about how it will work. I was a little worried to hear the Minister mention that the Government intended to retain the power of the Home Secretary to reduce the relevant age despite the result of the previous Division. Perhaps that is an indication of what the Minister intends will happen to the Bill when it returns to the other place.
Those of us who are very concerned about the provisions of Clause 12 will watch the pilot schemes with great interest and will undoubtedly come back to the Minister with further questions as that process proceeds further down the track.
Clause 12, as amended, agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 53:
Transpose Clause 12 to after Clause 3.
On Question, amendment agreed to.
Lord Davies of Oldham: I beg to move that the House be now resumed. In moving the Motion, I suggest that the Committee stage begins again not before 8.28 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Social Security (Jobcentre Plus Interviews for Partners) Regulations 2003
7.28 p.m.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham)The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham) rose to move. That the draft regulations laid before the House on 25th June be approved [24th Report from the Joint Committee].
The noble Baroness said: My Lords, these draft regulations will bring into force from 12th April 2004 work-focused interviews for the partners of recipients of certain social security benefits. This new requirement will apply where the amount of benefit in payment includes an amount for that partner and where both are aged below 60.
As a condition of continued receipt of the full amount of benefit payable, the partner will be required to take part in an interview at or after the 26 week point of the claim.
Since we came to power our welfare-to-work initiatives have helped transform the lives of hundreds of thousands of people. One of our greatest successes has been in helping lone parents into work. In the past five years the percentage of lone parents in work has increased from just over 40 per cent to nearly 54 per cent. We want to do even better.
Work-focused interviews have been the keystone to our success with lone parents. They are the mechanism by which we can ensure that everyone understands the opportunities available to them so that those who want to work may do so.
I draw the analogy with lone parents quite deliberately because what is required is the work-focused interview. What is not required is joining the new deal or going into work subsequently. But the interview empowers lone parents by giving him or her information and placing him or her in a position to make the choices that he or she may need to make.
The regulations will place a requirement on partners to discuss their individual skills, experience and circumstances with an adviser so that they may be made aware of the practical support and financial help that is available to them to find work now or in the future. The partner will be provided with a personal and tailored service and given access to a wide range of help and information on work, benefits and services available.
Apart from attending the interview, no other requirement will be placed upon them. They will not be required to find work or to join a new deal programme, and advisers will operate the scheme in a way that takes account of individual circumstances—for example, the health of the person they may be with, or their own circumstances—in a sensitive way. Taking part in one work-focused interview six months after both of them have been on benefit is not an onerous requirement. Where the partner, however, fails to take part in an interview without showing good cause or explanation for that failure, the claimant's benefit will be reduced until he or she complies. I shall go on to talk about good cause later, but your Lordships will be pleased to learn that both the claimant and the partner will have a right of appeal against the decision.
As I said, we will implement this requirement sensitively. The regulations contain a number of safeguards to protect those who may have difficulty with the requirement. It may not always be appropriate to interview someone at the required time—for example, a partner may recently have been discharged from hospital or may have just given birth. Obviously, in those circumstances the interview will be deferred.
In other circumstances—for example, if a partner has recently had an interview with an adviser as a benefit claimant in his or her own right—the requirement would normally not apply. There may also be circumstances where it is not appropriate at all to call a partner in for interview—for example, where someone is terminally ill. Where a partner has had the interview waived or deferred, he or she will be treated as having met the requirement.
The benefits to which the regulations will apply are jobseeker's allowance (income based, not contribution based), income support, incapacity benefit, severe disablement allowance, and carer's allowance. These are the main benefits payable to people of working age.
In order to provide good customer service, we have ensured that where the benefit recipient is entitled to a number of specified benefits at the same time the partner will only be required to take part in one interview, and not separate interviews for each benefit. We have also provided flexibility for an interview to be conducted in a location other than in a Jobcentre Plus
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office, including the arrangement of a home visit where partners cannot be reasonably be expected to visit an office.
I now turn to the interview and to "good cause". The interview should be a meaningful two-way discussion between the partner and the personal adviser. By taking account of an individual's circumstances, advisers will help partners to explore ways in which they can overcome barriers to work and move closer to the labour market. In return, partners will be required to participate actively in the interview.
The test of whether partners have taken part will be whether they attend at the time and place specified, and whether they provide information in areas relevant to their employment prospects, such as their level of education, previous work history and any barriers to the work they seek.
The consequences of a partner not taking part in an interview where neither the partner nor the claimant has shown good cause within five working days can lead to the claimant's benefit begin reduced. However, partners will then have a further month to provide evidence of good cause for not taking part in the interview if they wish to avoid the reduction provided that that evidence could not reasonably have been provided within five working days of the day on which the interview was to take place. So, for example, if someone had an extended period of hospitalisation, this would give that person the space to come back to us.
Examples of circumstances of what constitutes good cause for not taking part in an interview are set out in the regulations—for instance, if someone suffers an accident or illness on the day set for interview or where people have misunderstood the requirements placed upon them because of language or learning difficulties.
The level of the reduction will follow the rate of sanction applied during a claim in other work-focused interview regimes, which is an amount equivalent to 20 per cent of the personal rate of income support for a person aged 25 or over. So currently the reduction would be £10.93 per week, or in the range of 5 per cent or 7 or 8 per cent for a couple with children.
The regulations also stipulate how the sanction will be applied if the individual is claiming more than one benefit, as well as prioritising the benefits against which the reduction should be applied. Of course, no sanction will be applied against any benefit not included in the list of specified benefits and the total reduction will not exceed the amount set.
In addition, the regulations ensure that the claimant retains entitlement to a nominal amount of each benefit, to prevent the claim from lapsing and to ensure that entitlement to any "passported benefits", such as housing benefit or NHS prescription charges, remains.
I hope that your Lordships will understand what we are seeking to do with these regulations. I do not think that we are asking anyone to do anything unreasonable. Partners will be required to do no more than discuss their situation and work aspirations with an adviser so that they are aware of the practical and financial help that is

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on offer. It is certainly the case that very often, in particular parts of the country, a partner of someone claiming JSA is more likely to be able to find work than the person claiming the JSA and yet that person may not be aware of the opportunities or the help and support we can give. But we will ensure that we make people aware of the opportunities available to them, including, for example, possible eligibility to claim tax credits, childcare and all the rest of the benefits that may come into play.
Participation in a work-focused interview is a central element of this policy. I am satisfied that these draft regulations are compatible with the European Convention on Human Rights and I commend them to the House.
I emphasise again that the regulations simply provide a requirement that, after six months, partners attend a work-focused interview—one interview only. Nothing else need subsequently follow. They need not join the new deal—although I hope that they will. They need not seek work although I hope that they will. They may not find a job—but I hope that, if that is their choice, they do. But this is not going to be voluntary. That is why a sanction is attached—which I very much hope will not be needed. As I say, I believe that this is the kind of interview that people need to attend and find out what the situation is. Where work-focused interviews have taken place, they have been hugely successful. With that, I hope that your Lordships will agree the regulations. I beg to move.
Moved, That the draft regulations laid before the House on 25th June be approved [24th Report from the Joint Committee].—(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, the House, as always, will be grateful to the noble Baroness for explaining the context of the regulations. Inevitably, the drafting is sometimes rather technical. One therefore relies on the Explanatory Note. As I have had occasion to say on previous occasions, I do not think that those writing explanatory notes achieve the degree of clarity that one might desire.
I take as an example the first paragraph of the Explanatory Note attached to these regulations. It states:
"These Regulations impose a requirement on the partners of claimants of certain benefits to take part in a work-focused interview Can interview') where the claimant is entitled to that benefit at a higher rate referable to the partner".
I literally do not understand what that paragraph means. Perhaps the noble Baroness would care to look at the note.
Baroness Hollis of Heigham: My Lords, I am trying to find the paragraph to which the noble Lord refers.
Lord Higgins: My Lords, I am looking at the draft regulations and at the Explanatory Note attached on a final page. I do not understand what the expression "referable to the partner" means. No doubt when the noble Baroness comes to reply she can clarify it. I also believe that the word ought to be "when" rather than "where".
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Leaving that aside, I believe it is important that the Explanatory Note should be drafted in rather clearer terms than is sometimes the case. I have found several other such examples. However, I shall not bore the House by going into the matter further—save to say that perhaps the noble Baroness will remind us of the definition of "partner" in this context.
The noble Baroness stressed strongly that there was to be only one interview. Therefore, I am somewhat puzzled by the final part of the third paragraph of the Explanatory Note, which states:
"Regulation 8 specifies when a requirement to take part in two or more interviews is satisfied by the partner taking part in a single interview".
The noble Baroness has said that partners are required to take part in only a single interview. I am not clear in what circumstances they may be required to take part in two, but in fact can arrange to take part in only one. Again, the drafting of the explanatory memorandum could be clearer.
In her opening remarks the Minister drew attention to the situation regarding lone parents, and suggested that the success rate had increased from 46 to 54 per cent. However, as I understand it, the Government are currently rolling out compulsory work-focused interviews to all lone parents on income support. During the pilot phase only 17 per cent of lone parents due to have a compulsory interview received an invitation letter and only 14 per cent attended the interview. I have some difficulty in reconciling that figure with the figure of 46 per cent rising to 54 per cent which the Minister mentioned. Even the interviews that were attended have been criticised by various studies of the pilot scheme, including a comment that the interviews that did happen did not seem to encourage those few who attended to get into work. The study found that the proportion of lone parents in work, 18 months after claiming benefit, was lower in the pilot areas than elsewhere. That suggests that the pilot areas were not an enormous success.
Similarly, regarding the position with disabilities, another study said that in practice personal advisers felt that the pilots were driven by placement targets. In another place this evening there is a debate about the problems of targets. The study went on to say that rather than being able to help all clients in making moves towards the labour market, the main priority was given to targets for placing clients on job seekers' allowance into jobs, while other targets, particularly for the number of new claims processed, put further pressure on any scope for working with clients on incapacity benefits.
It seems that the Jobcentre Plus scheme has had only a comparatively limited effect. Looking at the overall picture, it has been difficult to obtain any figures on this issue, although attempts to do so are being made by way of parliamentary Questions. In February the then pensions Minister said that separate data for sustained jobs were not available for the New Deal for 50 Plus, the New Deal for Lone Parents, or the New Deal for Partners. It is important that if someone moves into a job the relevant consideration is how long they remain there. Perhaps the Minister can inform us

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whether there are any relevant statistics on how many of these people move into permanent jobs. We also have no figures for the cost per job of helping people into employment. Succeeding in doing that is a great advantage, particularly for the individual concerned, but one ought to have some appraisal of cost benefit analysis.
The Minister stressed the penalties for not attending an interview. I am not clear to what extent that has already happened regarding the pilots. I am also puzzled by one aspect which I believe we have discussed previously—that benefits might be reduced to allow for the fact that the partner has not taken part in an interview. Apparently they should never go below 10 pence. I have forgotten why, if the penalty is imposed—it would be hefty penalty if one progressively withdrew all those benefits because a partner was not attending the interviews—the benefit never falls below 10 pence. I may have misunderstood that structure. In any case, the explanatory memorandum does not give any guidance on that matter.
There has been much research into the way in which the pilots and the introduction of various schemes for lone parents, people with disabilities and so on have operated. This seems to be something of a cottage industry. There appears to have been a growth in employment in studying how these various proposals work. We are anxious that they should work. It is of great importance to the individuals concerned and to the economy. Regarding the general principle, one understands why the Government feel that this action should be taken for partners of those who are claiming benefit, so that if possible both they and the economy should benefit from both of them participating in employment. These are difficult matters and the Minister seemed over-optimistic on whether any significant success had been achieved. We must hope that this action results in greater employment, but we have doubts, given the history thus far.
Earl Russell: My Lords, the regulations are paved with good intentions. The Minister will remember a series of exchanges that we have had about the principle of this at every stage of the passage of the legislation through the House. So I do not expect to surprise the noble Baroness greatly by my comments tonight. But perhaps I may save her a small amount of work regarding the point made by the noble Lord, Lord Higgins, about the surviving benefit of 10 pence. Am I right in supposing that that will continue as a passport to housing benefit? If so it serves a useful, necessary and sensible purpose, and diminishes the force of the criticisms that I might otherwise have made and of the indignation which I might otherwise feel.
We have a balance of argument. I can see why the Minister and the Government wanted to introduce some sort of provision for partners. The days when men must work and women must weep are very long gone. We should all be glad of that. So, because someone's partner has been working, that does not necessarily shed any light on whether they should work. The fact that the Government want to have interviews for partners, to see whether they can be
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found a suitable opportunity for working, is something that we should welcome. However, there is here an undistributed middle that is of some importance. On these Benches, we move heaven and earth to try to get an opportunity to work for those partners who want to do so. We believe categorically in choice.
The Minister has many times given an undertaking, which I accept, that no one under these provisions will be compelled to work. That is clear. However, there is a grey area that was slightly touched on in the Statement on the latest Green Paper on pensions, where people might talk about "encouraging" partners with children to work. That puts us on these Benches in greater doubt. The juggling necessary to combine children with work is a particular skill—just like going under the bonnet of a car engine and seeing what happens there. Some of us have that skill, some of us do not. It is not the business of the state to decide for people, or even to encourage them to decide, which way they should do that. The matter is strictly personal. The state should be helping them to choose whichever way they wish to go, no matter which way that might be. If the regulations were to be a precursor of any serious encouragement to both partners to work when they have young children, that would cause us concern.
The Minister has always said that the purpose of the interviews was that you do not know what you do not know. I take that point. However, although the Minister is undoubtedly right, it seems that people who have partners in work are more likely to be in work themselves.
According to the findings of the House of Commons Library, that appears to be nothing to do with work-focused interviews where we have carried out pilots. It reports that no evidence was found of an effect on labour-market participation and that the analysis of respondents' job-search behaviour found no difference between pilots and control respondents in the proportions of non-working lone parents looking for a job or delaying a search for work. Nor were there any differences between them in the methods used to find a job.
As regards further study of the pilot, there could be a significant finding. We have an immense amount of administrative effort which does not appear to be issuing in any particularly solid result. That is a point at which one might well pause and ask a few questions.
I take absolutely the Minister's point that our requirement is only one interview and that there is no pressure to work beyond that. When the Bill was before us, I made the point that it would produce fear and distress. Carers UK has discovered that that has turned out to be the case. It states that judging by calls to its helpline there is a problem in the style and approach to carers. Many find that insensitive and it seems to place a large degree of worry on stressful caring responsibility. It believes that it undermines carers' self-worth because it suggests that work is considered the only valuable activity.

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If that is so, it should be a cause for concern. One does not want to cause that kind of reaction and one knows that people dealing with the welfare state often do so in a state of considerable anxiety. No doubt some of it is unjustified, but where that is the case, one wants to make it plain that that is the case and the creation of fear is not a useful process.
Furthermore, there is a specific problem with Bangladeshis. The Disability Alliance informs me that there is no specific word for "carer" in Sylheti, which is regularly spoken among Bangladeshis, because it is regarded as the task of all the women in the family. In this case, it is not easy to explain to them what is on offer and what is not, and who is allowed exemption for caring responsibility and who is not.
The point is also made that invalid care allowance is available only to one person, whereas the care of an invalid may rest upon several people. The other people may not receive any consideration for the care that they are giving. That point might be worth attention and it might even be possible to give it some attention.
It will not surprise the Minister that my chief complaint about these regulations—my chief complaint about this interview—is that it can be made a ground of a benefit sanction. The Minister is painfully familiar with my views on benefit sanctions. I keep asking her for evidence to refute them, as she clearly does not agree with them. She does not have any. On our latest round of Questions for Written Answer on the housing benefit sanctions, the Minister was able to offer me no information on what visible means of support were available to those suffering a benefit sanction. There is no information on whether more of them were admitted to hospital than other people and no information on whether more of them ended up in prison than any other people.
There seems to be a lamentable lack of curiosity. In the absence of any evidence to the contrary, I shall continue to believe that the imposition of a benefit sanction is a penalty little less in gravity than the death penalty; that it is potentially life-threatening. I have read the judgment of Mr Justice Collins and of the noble and learned Lord, Lord Phillips of Worth Matravers, in the case of Q. Incidentally, when the asylum Bill was before the House, I gave warnings that the Government were risking precisely that judgment. Some of these people were reduced to a state of real life-threatening misery.
I would like to know, and I hope that the Minister would like to know, how many of the other people who are victims of benefit sanctions are reduced to any equivalent sense of misery. That seems to be material in assessing how far a benefit sanction is a justifiable penalty.
The Minister remarked—a little casually, I thought—that the regulations were ECHR compatible. I wonder how familiar she is with the developments in process about the interpretation of Article 3; that is, inhuman or degrading treatment. She may remember that it was one of the main grounds of Mr Justice Collins' judgment in the case of the asylum seekers. It seems at present to be
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the basis of Article 3 that to establish inhuman or degrading treatment one must establish destitution plus—destitution plus some other form of gross hardship or injury. Clearly, that is not a stable resting place; it is not a clear definition. It will go either forward or backwards.
I am in no position to prophesy which, but which it is may have a real relevance to the future of benefit sanctions. It could conclude with the whole lot of them being found contrary to Article 3. Therefore, the Minister might exercise a little more scholarly caution in the assertion that the regulations are ECHR compatible. Incidentally, if she reads the judgment of the noble and learned Lord, Lord Phillips, she will note that he did not say that they were ECHR compatible; he said that the point was open to doubt on both sides. That is not nearly as much of a clearance as the Home Secretary took it to be.
The Minister was not in the Chamber last Friday when my noble friend Lord Goodhart gave the Government a powerful but carefully drafted warning about our future conduct on regulations if the Government should continue to put through measures in them which cause us more discontent than many of the measures that we vote against in Bills. My noble friend chose his words very carefully indeed. I will not repeat them because I am in full agreement with them.
Baroness Hollis of Heigham: My Lords, if these regulations were welcomed. I thank noble Lords for their welcome. However, I suspect that the responses were slightly more ambivalent. I may be able to help the noble Lord, Lord Higgins, with some of the specific points that he raised. On his first point about partners, I agree that the wording is not the most felicitous. It states simply that it applies to partners if the claimant is receiving an additional increase in benefit by virtue of having a partner. It is a truism, but it is for the purpose of clarification. There may be truth in truisms occasionally.
On the definition of a partner, we go to the classic debates that we have had on many previous Bills. A partner is a member of the same couple as the claimant or, in the case where the claimant has more than one partner, a partner by reason of a polygamous marriage and so forth. A couple is defined by reference to the definitions of married couple and unmarried couple in Part 7 of the Social Security Contributions and Benefits Act. A married couple are a man and a woman who are married together and are members of the same household. Unmarried couple means a man and a woman who are not married to each other but who are living together as husband and wife. In the past we have discussed what that includes: they share a common financial budget, they share a household, there is a presumption that they have children together and so on. That is a partner.
The noble Lord then asked about several interviews. Someone can be in receipt of several benefits but only one work-focused interview is required, not one interview per benefit. For example, someone may have carer's allowance and that would be topped up by income support. They would not have an interview for

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both carer's allowance and income support: they would have just one interview. Many of the reasons for the priority order were explained in the primary legislation.
The first part of the noble Lord's comments were about the lack of clarity or the possible ambiguity—and I accept some of his criticisms—of the explanatory memorandum.
The noble Earl, Lord Russell, was quite right to explain the point about the 10 pence, being to hold a residual benefit in place to allow one to obtain passported benefits like housing benefit, or free prescriptions and so on. It is a decency insurance net. The noble Earl's second point was to suggest that, though this might be a good thing and was well-intended, all the evidence about what has happened to lone parents suggests that it is not a particularly effective way to proceed.
Lord Higgins: My Lords, before the Minister goes to the more substantive point, can she explain what the first paragraph of the explanatory memorandum means? I simply do not understand it.
Baroness Hollis of Heigham: My Lords, the noble Lord, Lord Higgins, is referring to the explanatory memorandum at the back:
"These regulations impose a requirement on the partners of claimants of certain benefits",
and they are listed in Regulation 11(4), in the order of priority,
"to take part in a work-focused interview Can interview') where the claimant is entitled to that benefit at a higher rate",
because he has a partner. So "referable to" is because he has a partner. That is what it means at any rate, I can assure the noble Lord. I agree about the infelicity of the wording.
Lord Higgins: My Lords, it does not say what the Minister has just said. It says,
"where the claimant is entitled to that benefit at a higher rate referable to the partner".
She has explained what that means. I cannot possibly put that construction on it. Officials who draft this kind of thing and put forward nonsensical paragraphs explaining things really ought to get a rocket.
Baroness Hollis of Heigham: My Lords, I hope that the noble Lord, Lord Higgins, will accept my explanation and allow me to get on to the substantive point. I have said I agree that some of the language is less than felicitous. I do not know how much more he expects me to say on that. I will go on to the substantive point as I am sure that your Lordships know we have other regulations that we need to explore in a moment.
I do not agree with the assessment of the efficacy of the process that we set in train when we introduced work-focused interviews for lone parents. Since they were introduced work-focused interviews have led to a 36 per cent increase in the number of lone parents joining the New Deal, which is voluntary. The New Deal, associated
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with and, in many cases triggered by, the work-focused interviews shows something like a doubling of the rate of lone parents, held constant for age, gender—not gender—and educational qualification, entering into work. Something like 371,000 lone parents have joined the New Deal and half have found jobs. Those lone parents who go through the New Deal appear to also enjoy higher wages and a wage premium of between 6 and 9 per cent, particularly if they are in full-time work. I cannot give precise evidence about sustainability, but it is certainly sometimes the case that lone parents come out of the labour market during the long summer holiday period if, for example, their childcare arrangements break down or the child's health becomes fragile. It is the case that where they have come through the New Deal, have qualifications in consequence and where we seem to see higher wages, there is a greater likelihood for them to be able to hold on to the job.
Sometimes a lone parent may take several occasions to come in to the labour market, just as other young people may do. It depends entirely on the social and educational capital—the work skills—that the lone parent brings into the labour market. I challenge the noble Lord, Lord Higgins, and say that it is not the work-focused interview alone, it is what the work focused interview has led on to— joining the New Deal, going into work, acquiring education and training, very often getting, as a result, eligibility for tax credits, enjoying a significantly higher income and springboarding their children out of poverty. If a lone parent goes into work the risk of poverty for their children falls by 75 per cent. That is a striking statistic. These results are a package but all the evidence is that the first step, to bring, sometimes reluctant, people to an interview can open doors and open windows that would otherwise be closed, particularly in areas where there is a low history of work and a high level of social exclusion.
I now turn to the comments of the noble Earl, Lord Russell. He says that it is not the business of the state to determine how people juggle work and childcare. I agree with that, but it is the case that if both partners, the claimant and the partner, are both unemployed and they have children it is not unreasonable to assume that between them they can manage the childcare without specifying the gender. The noble Earl, Lord Russell, will know that if a couple have children then between them they need only work 30 hours to get the full benefit of the tax credit system, which is very substantial indeed. One partner could work 16 hours, one could work 12 and thus manage the childcare even if they did not seek childcare payments through the tax credit system. It is sensitive and sensible in respect of childcare.
Secondly the noble Earl, Lord Russell, asked about carers. I was slightly concerned because I have not seen the material that he mentioned but I have been able to get some additional material for him that may be helpful. It was the case that earlier we carried out a written consultation exercise, contacting 34 organisations of which 11 responded. Concerns were raised but Carers UK responded to the consultation on these draft regulations and did not raise concerns regarding the

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interview being intimidating. It may be that we are crossing wires slightly. I stand to be corrected on this, but some of their concerns did not apply to these particular regulations but were involved in an earlier consultation exercise and I hope that as a result of that exercise we have been able to abate their worries.
The noble Earl, Lord Russell, then made a point about Bangladeshi women. I take that point, which I thought was sensitive, but it remains the case that some 3 per cent of all children are the children of Bangladeshi/Pakistani parents and 8 per cent of all poor children are the children of Bangladeshi/ Pakistani parents. One of the major reasons for that is that 73 per cent of partnered white women are in work and only about 23 to 26 per cent of Bangladeshi/ Pakistani partnered women are in work.
If there is a single explanation for child poverty—it is almost a predictor of deprivation for children, which is so bad for them and for our society—it concerns their distance from the labour market. When looking at India or Africa, who does one seek to help into the labour market? To whom do you give education? One gives it to women. If the women come into work not only does the family have a second income, but that also brings education into the family and the language and aspirations of the children are lifted. I hope that the noble Earl would extrapolate that into the situation of some of our poorest ethnic minority families whose children, although bright and able, are simply not being mainstreamed as we would wish them to be.
The final point of the noble Earl concerned benefit sanctions—a benefit sanction of about £10. If a couple are on JSA with two children they would have an income of about £250 and we are talking of a sanction of about 4 to 5 per cent. The noble Earl asks what happens to their health. Most sanctions can be alleviated quite quickly if someone meets the terms or the requirements of the condition and goes for the interview or actively seeks work. We could not do what the noble Lord asks. He knows, as a distinguished professional in the field of research, that one cannot test for something unless one has a base line from which to start. Unless one has analysed the health and wellbeing of everyone who is a claimant and tried to work out the impact of two, or three, or four weeks' of benefit sanction that cannot be done.
Earl Russell: My Lords, the Minister knows that for many years we have been pressing the Government to conduct research on the level of minimum income necessary for good health. That would provide a base line. The Government seem to be extremely reluctant to supply it. In that circumstance, I wonder how the Minister can know what she has just told me.
Baroness Hollis of Heigham: My Lords, one of the reasons for not going down this path—this is not a debate that I would normally entertain—is that 50 per cent of lone parents smoke; they smoke because they are poor; they are poor because they smoke; and there is a heavy correlation between what they do as a result
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of that and their poor health and the poor health of their children, 75 per cent of whom suffer from respiratory illnesses.
What does the noble Earl suggest that we do about that? We do not normally shout about it or stigmatise people because of it. We try to raise levels of aspiration. We can introduce lone parents to nicotine help if that is what they seek and we hope that as a result their health and the health of their children will improve. If there is a sanction, how much of that is due to their smoking and how much of it is due to being denied a small element of their benefit? It is probably less than they spend on smoking each week. The average lone parent spends about £15 a week on cigarettes and the sanction is £10.
I do not know how we could conduct the research that the noble Earl suggests. I do not believe that it is technically possible. The noble Earl has an honourable record in challenging sanctions and he is absolutely right to press us on what we believe we are doing and on the implications. Without a sanction, all benefit conditions become voluntary. Why should anyone seek work—they could stay in bed, play the guitar, or whatever—if there is no sanction? They do not receive their JSA unless they are actively seeking work. Are we saying that all requirements associated with benefits should be voluntary?
Earl Russell: My Lords, I believe that the Minister knows perfectly well that I am not saying that. I have always said that I am prepared to have a sanction that is compatible with the continued good health of the claimant. I would like to know at what level that should be fixed, but that involves research that the Government have not yet carried out.
Baroness Hollis of Heigham: My Lords, I had hoped that the noble Lord had accepted my argument for a sanction representing 4 to 5 per cent of income, which is rather less than someone spends on cigarettes per week. How on earth can we determine what element of their poor health may be due to the sanctions and what element is due to their existing smoking? There is absolutely no way of telling. I am puzzled that the noble Earl does not accept my argument on this. Ultimately, I believe that these sanctions are modest.
We are asking partners of claimants to take seriously the obligation to attend a work-focused interview which I believe is an opportunity not a threat; it is about empowerment and choice. As I have seen with lone parents in the past, if we do not have a sanction, and people believe that it is voluntary, people will not attend. They prefer not to bother. That is one of the problems that we often face with lone parents and their children. Once they come in to do the work-focused interview and come into the New Deal their aspirations rise and their children benefit as well.
I suspect that the noble Earl and I will not agree on this. Over the years I have changed my mind on this in the light of information and research reports that I

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have read. I hope that when the noble Earl reads the same literature he will join me and change his mind too.
Lord Higgins: My Lords, it has been apparent that the noble Baroness has changed her mind on some issues that we have debated in the past. Did the sanctions apply during the period of the pilot? I am puzzled by the study that says that only 17 per cent of lone parents received an invitation for an interview and only 14 per cent actually attended an interview. Were the sanctions in action during that pilot scheme?
Baroness Hollis of Heigham: My Lords, in some cases sanctions were in action. But let me write to the noble Lord, because this order is about the New Deal for partners not the New Deal for lone parents. If he wants me to follow up the detail about what happened to some of those pilot schemes—how many people were sanctioned, how many of those were accepted as good cause, and what happened then—I will be very happy to write to him. I think that is the best way rather than trying to bounce the statistics around tonight.
With that, I hope your Lordships will accept the regulations.
On Question, Motion agreed to.

Avian Influenza and Newcastle Disease (England and Wales) Order 2003
8.14 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs
(Lord Whitty)The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs
(Lord Whitty) rose to move, That the draft order laid before the House on 25th June be approved [24th Report from the Joint Committee].
The noble Lord said: My Lords, the order extends to avian influenza and Newcastle disease powers introduced by the Animal Health Act 2002 in relation to foot and mouth disease. I am sure I do not need to remind anyone of the foot and mouth outbreak. We learnt lessons. We must be properly prepared for any future outbreak, whether it is foot and mouth or any other disease.
Although the Animal Health Act was somewhat contentious in this House, we introduced it in order to bolster our powers and introduce new powers for foot and mouth which allowed powers to be extended to other diseases by order approved by a resolution of both Houses. That is the background to the draft order.
Your Lordships will be aware of the outbreak of avian influenza on the Continent this year. There were 250 confirmed cases, mainly in the Netherlands, and over 31 million birds had to be slaughtered. The outbreak, occurring as it did so near to the UK and spreading to Belgium and Germany, naturally heightened concerns here. As a result of the outbreak, the Dutch authorities have shared their experience
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with us. One of their findings is that they believe that up to 20 premises were already infected when avian influenza was first suspected. In order to get on top of the disease and stop it spreading, the Dutch authorities introduced preventive culls, involving commercial holdings within a radius of 3 kilometres around infected farms. In the main affected area, all commercial poultry within a radius of 10 kilometres around infected farms were slaughtered.
We have considered the need for the possibility of a preventive cull here, should an outbreak occur. In the Netherlands, where the structure of the industry is slightly different, there was a very high density of poultry holdings in the areas affected. but these were small farms with shared labour. Our industry tends to be more concentrated in that we have fewer locations but with more birds in them. The veterinary advice being given to me and my colleagues is that the need for a preventive cull in the United Kingdom is unlikely. Nevertheless, in the light of the Netherlands experience and the strong advice from the Dutch authorities, the need for such a cull is not ruled out. Having the powers would be essential to our armoury.
Your Lordships will recall that during the debate on the Animal Health Act there was much concern that we should use vaccination wherever possible as an alternative to a cull in relation to preventive culls. Vaccination, however, is not practical for avian influenza, at least with the current technologies. Birds would have to be dosed individually by injection, and immunity can take up to three weeks. Some poultry require two doses. Vaccination, moreover, does not prevent birds becoming infected and shedding virus, mainly via faeces. Thus we do not see vaccination as an alternative effective tool in this context.
If we were ever to use these powers there would need to be a disease control slaughter protocol. This describes the purpose, factors and procedures behind the use of a preventive cull. We have one in place for foot and mouth disease—it is incorporated in the FMD contingency plan. We intend to produce a separate one for avian influenza and for Newcastle disease.
The 2002 Act allows two further measures to be introduced by affirmative order. They involve the provision to slaughter vaccinated animals and the power of entry for testing and sampling. I have already said that given current technology it is unlikely that we would vaccinate, and therefore the first measure does not apply. As far as powers of entry for the purpose of slaughter or vaccination are concerned, they apply automatically under the 2002 Act. It is only powers of entry for the purposes of testing and sampling which need to be extended by this affirmative order. In the event of an outbreak, delays in our ability to test poultry for virus or disease control could lead to the spread of disease and prolongation of an outbreak. Hence, these powers of access for testing are needed.
The advice given to Ministers is that we are as much at risk of an outbreak of Newcastle disease as we are of avian influenza. It would therefore he deficient of us to prepare for an outbreak of avian influenza without

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covering Newcastle disease. Both diseases require amendment to the same pieces of legislation. Therefore, it is important to do both together today. I commend the order to the House.
Moved, That the draft order laid before the House on 25th June be approved. [24th Report from the Joint Committee]
—(Lord Whitty.)
Baroness Byford: My Lords, I am grateful to the Minister for taking us through this statutory instrument. Many of us are very concerned about the avian flu outbreak on the Continent, because it spreads very quickly through the poultry sector. The noble Lord was right to give us the figures on that. I had them as well, so I will not repeat them. However, I have one or two questions for him.
This instrument is being introduced in our House; I do not think it has been debated in another place. It is the first time that we have had a chance to look at it. In his comments the Minister referred particularly to "commercial poultry". Will he look at Article 4(3)(c), which defines,
"any poultry the Secretary of State thinks should be slaughtered"?
I have some questions regarding that phrasing, because if the order is only for commercial poultry, the statutory instrument should define it as such, but it clearly does not.
What animals—that is bad English—or what poultry are included in the definition of "any poultry"? Does that include game birds, for example, or exotic, expensive birds kept in wildlife parks? Would somewhere such as Slimbridge have some of its animals killed in a cull if the Minister thought it fit? What about endangered species and pets, which many people have? I believe that after cats and dogs, birds are the most popular animals kept. I am concerned that the Minister clearly said in his comments that the order refers to commercial poultry, yet the statutory instrument states "any poultry". I would be glad for that to be clarified.
I appreciate what the Minister said about vaccinations. We had a long debate on the Animal Health Bill and we would obviously be in favour of vaccination rather than slaughter. In this case, as it stands, medical science is not far enough advanced along that line and therefore there is no option, so I do not take the Minister to task on the matter.
Why does the order refer to the 1981 Act, since I understand that in the Animal Health Act 2002 the matter is covered under Schedule 2A on page 13? We need to clarify that point; we should not have to go back to previous Acts if the new updated Act can cope with it. From my interpretation of reading through, that is how I viewed the matter.
The Minister is right to say that we have fewer and much larger farms and therefore many more birds; and so our problem may be different from that on the continent. I accept that the order is necessary. With those few comments and questions, I thank the
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Minister for bringing it before us and explaining it, but I would be grateful if when he winds up he could answer my questions.
Baroness Miller of Chilthorne Domer: My Lords, we on these Benches also welcome the order, but I would like to clarify a few points. Some while ago in your Lordships' House the Minister mentioned that Defra had a horizon-scanning department—I think that is how he termed it. I am slightly surprised that, given that horizon-scanning ability, there was an outbreak in March, but we are only now getting the order in July, so I am questioning the speed with which the department scans the horizon.
I have been reading the comments of the chief vet with regard to avian influenza. He is clear that,
"While wild birds are as susceptible as domestic poultry to the disease … Water fowl, especially ducks, posed a potentially greater risk in that they could carry high pathogenic strains of the virus without showing signs of disease".
The point in my quoting him is that Article 4(4)(c) says that poultry should be culled which,
"have been exposed to the infection of avian influenza or Newcastle disease",
and on some occasions it will he difficult to judge whether they have been exposed.
I wonder what sort of guidance keepers of ducks, in particular, can expect from Defra. I would not want to think that the result was that all free-range keeping of poultry would be so constrained so that they would not be exposed to these diseases. I have in mind the Welfare of Ducks Bill, which was introduced in the House by the noble Lord, Lord Beaumont of Whitley, quite rightly, because ducks need water and they often do not obtain it. This may he a step further in making it more difficult for poultry-keepers to ensure that they obtain it.
I wish to make a point about the number of regulations. The Government have said that they encourage small producers. I looked at the British Poultry Council's very helpful web site to see how many pieces of legislation that, as a small poultry keeper of around 100 chickens supplying the market with very high-quality free-range birds, I might expect to deal with. There is almost one regulation or piece of legislation for each of the 100 birds. There are 97, of which 39 are concerned with housing, keeping, feeding, transporting, marketing and slaughtering, and 58 relate to processing and labelling. I urge the Government, when they feel that they have time, to consolidate those provisions as was done in the Water Bill. That would be particularly helpful to small producers, who cannot spend their entire time reading legislation; otherwise, they will never have time to produce anything.
Lord Whitty: My Lords, I appreciate the welcome given to the order by both Front-Bench speakers. The noble Baroness, Lady Byford, was wrong in saying that the House of Commons had not considered the order. For the record, it was considered in the House of Commons this afternoon.

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The noble Baroness questioned my reference to "commercial poultry". She is right that the definition of poultry in the order includes domestic fowl, turkey, geese, ducks, guinea fowl, pigeons, pheasants and partridges and would therefore cover a range of fowl outside commercial premises. The structure of the industry is such that exposure is likely to arise within commercial premises. However, the powers would extend to breeds defined as poultry under Section 87 of the Act. The powers may be extended, although we would need a separate statutory order to do that.
The problem with avian influenza is that almost any bird can carry it. Indeed, the most likely incursion to this country would be via a bird. That is a slight problem, but, in general, it is likely that any preventative cull would be in the commercial sector.
The noble Baroness asked why the order referred to the 1981 Act. Footnote (a) to the order explains that the Animal Health Act is an amendment Act to the 1981 Act. Noble Lords will recall that that difficulty arose during the passage of the Animal Health Act. Although the noble Baroness is right to say that the issue was covered in the 2002 Act, it was as an amendment to the 1981 Act. Reference is therefore made to the 1981 Act, as it has now been amended.
The noble Baroness, Lady Miller, referred to horizon-scanning in the department, which happens on this front as on others. We did not introduce the order on the basis of the outbreak in the Netherlands because the Dutch authorities thought that they could contain the disease in the initial stages without engagement in a substantive preventive cull, as did we. The Dutch authorities have shared much of their report with their European colleagues. It is clear that the outbreak was very similar to foot and mouth in that the disease was not detected until at least 20 premises had already contracted it. In those circumstances, the authorities had to engage in a preventive cull to stop the further spread of the disease to areas where they had not yet detected it. In the light of the experience of the Dutch after the outbreak, we decided that we needed to introduce the extended power.
The noble Baroness asked whether the order would cover free-range poultry. Regrettably, free-range poultry are more vulnerable, in a sense, because the most likely arrival of the disease would be via a stray wild bird from the Netherlands. I am afraid, therefore, that free-range birds will not be exempt from the order.
I note the noble Baroness's reference to the complexity of regulations covering poultry and the need for consolidation, or at least a better explanation, of them. I shall take that message away.
Baroness Byford: My Lords, before the Minister sits down, will he answer my question about the birds in wildlife communities such as Slimbridge? Is there a chance that such birds might be considered, should a disease outbreak be known in a certain area? They are commercial flocks in a way, although not in the same sense as the Minister mentioned earlier.
Lord Whitty: My Lords, the fowl in Slimbridge would not be covered by the list of poultry that I read out. We could extend the cover, but that would need a separate statutory instrument, which is not before the House tonight. The definition does not include the type of fowl at Slimbridge.
On Question, Motion agreed to.

Criminal Justice Bill
8.31 p.m.
House again in Committee.
Clause 13 [Grant and conditions of bail]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 54:
Page 8, line 40, leave out "for his own welfare"
The noble Lord said: In moving this amendment. I shall speak also to Amendments Nos. 55, 56 arid 57. I am very grateful to the noble Baroness, Lady Walmsley, for her support for these amendments. The amendments concern Clause 13, the subject of which is grant and conditions of bail. The specific subject that we wish to probe in this group of amendments is the conditions to be imposed on bail for under 18 year-olds. As in our debate on Clause 12, our concern is to ensure that the child's welfare remains the predominant priority. Speaking in Committee in another place, Mr Grieve expressed a concern that
"children's welfare issues will no longer be the responsibility of the civil courts".".— [Official Report, Commons Standing Committee B, 7/1/03; co1.170.]
He said that intervention is taking place earlier when full representation is not readily available. We also have doubts over the appropriateness of a custody sergeant setting the conditions of hail, however well intentioned, without the presence of the relevant welfare authorities.
I draw the attention of noble Lords to Article 3(1) of the United Nations Convention on the Rights of the Child, which was quoted by the Joint Committee on Human Rights in its report on the UN Convention:
"In all actions concerning children …the best interests of the child shall be a primary consideration".
Without the guaranteed involvement of the appropriate family member or welfare authority, the granting of bail may cease to be primarily concerned with the welfare of the child and would instead be in the best interests of administrative convenience. We understand that the provision has been included in the Bill at the recommendation of the Law Commission, which observed that a defendant might be remanded in custody when release on bail with imposed conditions would have sufficed.
Although we approve of any reasonable proposal that minimises the chances of a child spending time in custody, this provision could place a heavy burden on the police, and, at the same time, present them with conflicting responsibilities that may be difficult to reconcile. I do not expect that these amendments are

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entirely properly drafted, but they concern an important issue and I look forward to hearing the Minister's response. I beg to move.
Baroness Walmsley: I rise to support Amendments Nos. 54 to 57, which are probing amendments. Although I am always pleased that the welfare of children is well to the fore in the minds of all who deal with them in the criminal justice system, I do not think that the child's welfare should ever be seen as justification for bail conditions or anything to do with custody. It is not for the justice system to decide on the child's welfare, but youth offending teams and the social services. Non-custodial responses should always be the norm for children and it should only be in exceptional circumstances that they are not granted bail. I find it difficult to see how it could ever be in their interests or for their welfare for them not to be granted bail.
As I said, I support the amendments as probing amendments. I shall be interested to hear how the Minister responds to the amendments and what reassurances he can give us.
Lord Hylton: I am puzzled by the amendments. Clause 13 appears to set out cases in which bail conditions may be imposed. Am I right to say that, in such circumstances, bail will be granted?
The Attorney-General (Lord Goldsmith): In speaking to Amendments Nos. 54, 55, 56 and 57, I want also to speak to Amendment No. 58, which is grouped with them.
The noble Lord, Lord Hylton, is right in saying that Clause 13 is concerned with circumstances in which bail would be granted, but granted on conditions. The noble Lord, Lord Hodgson of Astley Abbotts, is right to say that Clause 13 follows a recommendation made by the Law Commission. I shall explain why, and I hope that in doing so I may provide the assurance that the noble Baroness, Lady Walmsley, sought.
As things stand, under the Bail Act 1976 a defendant under 17 can be remanded in custody on several grounds. One of those grounds—it may not arise frequently, but it is there—is if it would be for his or her own welfare or in his or her own interests to be remanded in custody. That power exists at the moment. We have no provision that would enable bail conditions to be imposed in the same circumstances.
The Law Commission pointed out—rightly, in the Government's view—that, in circumstances in which the court was of the view that it was necessary for the welfare of or in the interests of the young person to take a step, custody would, at the moment, be the only option. I accept that those may be unusual circumstances and that that is not the usual reason for refusing bail. If conditions had been imposed—a good example might be a condition to reside in a hostel—the court would be of the view that custody would not be necessary and it would be satisfactory to grant bail on that condition. Subsection (1) amends the Bail Act 1976 so as to provide that additional option, an option beneficial to the young
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person because it provides the possibility, which would not otherwise exist, of allowing bail in circumstances that otherwise could lead to a refusal.
It is not expected that the provision will be used to impose conditions on young defendants that are inappropriate or in inappropriate circumstances. As I explained, the objective is to fill a gap in the current provision, which might result, as the noble Lord, Lord Hodgson of Astley Abbotts, said, in someone being remanded in custody when he or she could have been released on bail if only appropriate conditions could have been imposed. That is the intention behind Clause 13(1). I hope that that explanation of the limited circumstances in which it arises will reassure Members of the Committee who spoke.
Amendment No. 58 is simply a drafting amendment, as the Committee will see. At the moment, the provision to which it refers talks about "Part", without identifying what it is part of. The amendment makes clear what that is. I hope that I have persuaded the noble Lord not to press the amendment.
Lord Dholakia: Before the noble and learned Lord sits down, perhaps I may ask him two questions in relation to Clause 13. The Bill does not propose to remove or amend paragraph 3 of Schedule 1 to the 1976 Act under which the defendant need not be granted bail if the court is satisfied that he should be kept in custody for his own protection or, if he is a child or young person, for his own welfare. If that is the only reason to refuse bail, some other secure setting should be provided. This is allowed under Clause 13(2)(c) and Clause 13(3)(b). Can the Minister confirm that this would apply in such cases?
My second point concerns pre-sentence or medical reports. Can the Minister further confirm whether the lack of timely preparation of such reports would not act adversely in terms of refusal of bail. Many times it is not the fault of the individual; sometimes the court and its officers do not prepare their reports in time. The individual ought not to suffer because of that.
Lord Goldsmith: As regards the first point raised by the noble Lord, Lord Dholakia, I agree. It would be unsatisfactory if it were necessary to detain a young person in custody when some other secure place could be found short of custody which would satisfy the requirement of providing the protection that the young person needs. The clause provides that by enabling a condition to be imposed—for example, the young person resides in a hostel which thereby provides a secure place and obviates the need for custody.
Turning to the second issue raised by the noble Lord, he will know that it often is required and is very much in the interests of the defendant—whether a young person or not—that particular reports are prepared before a sentencing decision is reached by the magistrates or by the court. It is very important that the court should know the background and circumstances and therefore have the full range of options available. In many cases there will be a

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statutory requirement not to proceed to a sentence or a particular form of sentence without. such a report being obtained.
In order that those who provide these reports can do their job properly, it will sometimes take time. It will always take some time. I have no doubt that the courts, and the probation service where it is responsible, will do all that they can not to prolong unnecessarily the time taken. During the period that such a report is being prepared, it may be necessary to provide a secure place for a young person. It is not their fault that that is happening, but it is a requirement that in their own and the public's interests a proper report should be obtained. I hope that deals with the questions posed.
Lord Hodgson of Astley Abbotts: I am grateful to the noble and learned Lord for his explanation of this group of amendments. He has assuaged our fears; I am not sure that our fears were not groundless in the first place. I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55 to 57 not moved.]
Lord Goldsmith Lord Goldsmith moved Amendment No. 58:
Page 9, line 7, leave out "that Part" and insert "Part 1 of Schedule 1 to the 1976 Act"
On Question, amendment agreed to.
Clause 13, as amended, agreed to.
Clause 14 [Offences committed on bail]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 59:
Page 9. line 42, leave out "the defendant"
The noble and learned Lord said: In moving Amendment No. 59, I shall speak also to Amendment No. 60, both standing in the name of my noble friend Lady Scotland of Asthal. These are both simply drafting amendments. The word "defendant" appears in what is grammatically the wrong place. The intention is to correct that grammatical error with these two amendments. I beg to move.
On Question, amendment agreed to.
Lord Goldsmith Lord Goldsmith moved Amendment No. 60:
Page 9, line 43, at beginning insert "the defendant"
On Question, amendment agreed to.
On Question, Whether Clause 14, as amended, shall stand part of the Bill?
8.45 p.m.
Lord Thomas of Gresford: Articles 5, 6, 7, 8 and 11 of the European Convention on Human Rights have very important safeguards—the right to liberty, the presumption of innocence, respect for private and family life, and freedom of association. The proposal in Clause 14 is that bail should be refused to an adult defendant who is on bail in criminal proceedings on the date of the offence. The only exception is if the court is satisfied that there is no significant risk that he would commit an offence if released on bail which reverses existing hail presumptions. By opposing that Clause 14 stand part of the Bill we are concerned to
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inquire of the Government precisely what is the thinking behind this change? The presumption moves from a right to bail unless there is a significant risk of offending or absconding to entirely the other way round. We look forward to hearing what the Government have to say.
Lord Renton: It was the present Government who persuaded both Houses of Parliament to pledge the convention on human rights onto our statute book. I was in favour of that. But, as the noble Lord, Lord Thomas of Gresford, pointed out, we have to be very careful in ensuring that our own law does not in any way conflict with the convention, even in minor matters. The Government should consider carefully the effects of Clause 14 upon the Act embodying the convention on human rights. For that reason I am glad that the noble Lord has moved that we should rewrite Clause 14.
Lord Borrie: I am most interested in the proposal of the noble Lord, Lord Thomas of Gresford. My reading of Clause 14 is that this is a well-justified tightening of the rules on bail both to ensure compliance with the European Convention on Human Rights and to prevent abuse and to retain the discretion of the court, which is the most important matter.
Paragraph 2A of Part 1 of Schedule 1 to the Bail Act 1976, according to the Law Commission in a report a couple of years ago, could be seen as contradictory to the European Convention on Human Rights. The Law Commission said the Act needed amending to make plain that just because the defendant was on bail at the time of the alleged offence, that was not an independent ground for refusal of bail. It is meant to be—I hope that Clause 14 does this—only one consideration that the offence was committed on bail. This is surely a very valid consideration that the court should take account of in determining whether there is a real risk of the defendant offending yet again while on bail. This surely is one of the key legitimate grounds for refusing bail, along with the other ones with which we are familiar such as the risk of absconding and the risk of interfering with witnesses.
Lord Goldsmith: Bail is a very important part of our criminal justice system, but it is right also to recognise that there are sadly many who are provided with bail who yet go on to commit other offences, as there are many who are provided with bail who yet go on not to surrender to custody. Home Office research has shown that as many as one in four of those who are granted bail go on to be convicted of a further offence committed when they are on bail. For offences such as vehicle crime and shoplifting, that research indicated that the figure is as many as over 40 per cent who commit further crimes while on bail.
That is clearly a source of legitimate concern for the public—that someone who has committed an offence is granted bail, yet commits a further offence during that period. Equally—and I make the point at this stage although it is more relevant to Clause 15 than

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Clause 14—those who are granted bail yet do not turn up to their custody create a great problem for the criminal justice system. It is obviously a waste of time and resources if someone fails to surrender to custody when the court is ready to deal with the case. But more than that, it is a source of frustration and distress to victims and witnesses who turn up for the case to be dealt with, only to find that a defendant who has been given this opportunity—that is, given bail—has failed to turn up himself. I am sure that noble Lords will agree that it is entirely justifiable that, as the jurisprudence of the European Convention on Human Rights makes plain, a reason for not granting bail would be the existence of some risk that a person would commit an offence while on bail.
My noble friend Lord Borrie is absolutely right in saying that the present position under the Bail Act 1976 is one that the Law Commission has suggested takes the position too far. Paragraph 2A of Part 1 of Schedule 1 to that Act purports to make the fact that a defendant was on bail at the time of the alleged offence an independent ground for the refusal of bail—full stop, as it were. The Government are drawing back from that by proposing that we should consider the true justification for the refusal of bail in such a case which is not that the alleged offence was committed by a defendant who was already on bail, but the risk of a further offence being committed derives from that fact.
Most people would regard the fact that an offence was committed when a defendant was on bail as very significant in assessing the risk that further offences could be committed, as my noble friend suggested. Subsection (1) therefore repeals the existing provision in paragraph 2A and replaces it with a requirement for the court to refuse bail to an adult defendant who is on bail in criminal proceedings at the date of the offence, unless it is satisfied that there is no significant risk that he would so fail if released. That is obviously a very important final piece to the clause. As my noble friend Lord Borrie said, it leaves it for the court to have the ability to say that notwithstanding that an offence has been committed while on bail, it is appropriate to grant bail because there is no significant risk that the person would commit a further offence.
I suggest that that position is entirely consistent with our ECHR obligations. I respectfully agree with the noble Lord, Lord Renton, that it is critical in such areas that we should comply with our obligations under the European Convention on Human Rights. The Government's view is that the clause does that, because it remains open to the court to say that notwithstanding that there has been an offence, there is no significant risk of the person committing a further offence while on bail.
While dealing with those matters, it is right to draw attention to the rather different provision that applies in subsection (2), which would apply to defendants under 18, to whom the reverse presumption would not apply. Different language is used, and the court is to give particular weight to the fact that the offence was
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committed on bail in deciding whether or not the defendant would be likely to reoffend if released on bail.
I hope that the Committee agrees that in putting these amendments forward we have had full regard to our European convention obligations. Compared with the 1976 Act we are extending the ability of the court to be able to grant bail in appropriate cases and have ultimately struck a balance which is acceptable. I hope that against that background the Committee will agree that Clause 14 should stand part of the Bill.
Baroness Carnegy of Lour: Will the noble and learned Lord explain to me as a lay person exactly what the difference is between the way a person is treated in subsection (1) as opposed to subsection (2)? I do not understand what the difference is when the person is under 18. More weight is given to a certain fact in subsection (2), but is weight not given to it in subsection (1) as well?
Lord Goldsmith: Yes, of course, but subsection (1) goes further because the court is required to refuse bail unless it is satisfied—and the test is there set out—
"that there is no significant risk of [the person] committing an offence".
In reaching that conclusion the court will have regard to all the circumstances. Undoubtedly a stronger test would apply to the adult than to the person under 18. I hope the Committee agrees that that is the right approach.
The Deputy Chairman of Committees (Baroness Fookes): The Question is that Clause 14 stand part of the Bill. As many as are of that opinion will say "Content", the contrary "Not Content". The Contents have it.
Clause 14, as amended, agreed to.
The Deputy Chairman of Committees: I call Clause 15.
Lord Thomas of Gresford: I intended to reply briefly to the comments of the noble and learned Lord the Attorney-General.
The Deputy Chairman of Committees: The clause has already been passed. I paused slightly before I put the Question.
Lord Thomas of Gresford: With the greatest respect I did not hear a pause, if one can hear a pause. However, I shall confine my remarks to the next clause to which they are equally applicable.
Clause 15 [Absconding by persons released on bail]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 61:
Page 10, line 12, leave out from "custody" to end of line 13.
The noble Lord said: This is my opportunity to speak which I shall take.
The noble and learned Lord the Attorney-General indicated that the Government were very concerned to comply with the convention and to ensure that

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convention rights are upheld. In relation to Clauses 14 and 15 he will know that the Joint Committee on Human Rights pointed out that it was unable to accept his view as expressed previously. No doubt that view will be expressed again in a moment. Provisions which deny a person hail unless he or she can convince a court that there is no significant risk of their reoffending—I refer to Clause 14—or failing to surrender for trial seem to us to constitute a disproportionate interference of the right to liberty under Article 5.1 of the European convention. A court would be prevented from considering the other convention rights of the defendant, of members of his or her family and of other defendants
The amendment is designed to leave out the words,
"but this does not require the court, if so satisfied, to grant bail (disregarding other considerations)".
That means that the court may come to the conclusion that there is no significant risk that, if released on bail, the defendant would fail to surrender to custody. But even though it comes to that conclusion, it is not required to grant bail. That seems to me to be entirely wrong. If a court is to determine the circumstances set out in the proposed amendment to the 1976 Act—to the effect that the defendant is not to be granted bail in the circumstances so specified—and if it comes to the conclusion that there is no significant risk, why does it not follow the natural consequence of that finding and allow bail? On what other basis is bail to be refused? That is the problem—no significant risk that he would fail to surrender to custody. It seems to me that with that conclusion the proper decision for the court must be to grant bail. I should welcome enlightenment from the noble and learned Lord as to why the Government take a different view. I beg to move.
9 p.m.
Lord Hodgson of Astley Abbotts: Would the noble and learned Lord like me to speak to Amendment No. 64 now, or would he prefer to move his amendments first? Which would be most convenient?
Lord Goldsmith: The amendment is grouped with this one. It would probably be convenient, therefore, if the noble Lord were to speak to it now.
Lord Hodgson of Astley Abbotts: Amendment No. 64 relates to Clause 15, and to persons released on bail. I hope that the wording is largely self-explanatory.
The amendment relates to a worry brought to our attention by the Magistrates' Association that no consideration or allowance with regard to bail has been made for those with mental disorders. While proposed sub-paragraph (3) in Clause 15(1) makes provision for bail to be permitted where,
"it appears to the court that the defendant had reasonable cause for his failure to surrender to custody",
the defendant would still be denied bail if,
"he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time".
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Proposed sub-paragraph (4), referred to by the noble Lord, Lord Thomas, further limits the chances of bail being granted by stating that a failure to give the defendant a copy of the record of the decision to grant him bail shall not constitute a valid excuse either. The Magistrates' Association believes that that opens up the possibility of a defendant with a mental disorder being denied bail for failing to comply with these conditions when it is entirely possible that he may not have understood the full implications of them.
It cannot be in the interests of anyone—the police, the Prison Service, the judicial service, or particularly the person in question—further to increase the strain on the system by refusing bail to people who, while confused, have no malicious intentions in failing to comply with bail conditions.
We should have been more comfortable had the proposed new sub-paragraph (4) in Clause 15(1)—
"a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure"—
been eliminated, because the Auld Report, which the Government have quoted and used extensively, states on page 430n that,
"bail notices should be couched in plain English, printed and given to the defendant as a formal court order when the bail decision is made, so that he understands exactly what is required of him and appreciates the seriousness of the grant of bail and of any attached conditions".
That would have reduced our concerns on this point. In the absence of that, Amendment No. 64 is designed to provide a failsafe which will enable the court to grant bail at its discretion to a defendant suffering from a mental disorder within the meaning of Section 2 of the Mental Health Act 1983.
Lord Renton: I support what my noble has said in relation to Amendment No. 64. The point that must be borne in mind about mental disorders is that they can vary enormously. Some will be so severe that the defendant concerned has absolutely no control over his actions. Others may be only slightly involved in an error of judgment. But the discretion of the court is necessary in whatever circumstances arise here, and therefore I believe that the amendment proposed by my noble friend is a very useful one.
Lord Goldsmith: I shall speak to Amendments Nos, 61 and 64. I note that the noble Lord, Lord Thomas, did not speak to Amendment No. 62, from which I infer that he does not intend to move it. However, I do not want to leave it unanswered if that was in fact an oversight.
Lord Thomas of Gresford: I should have spoken to Amendment No. 62. I note that the noble Lord, Lord Hodgson, made much the same point, that a failure to give a copy of the record shall,
"not constitute a reasonable cause for a person's failure to surrender to custody".
We find that unnecessary and restrictive.
Lord Goldsmith: I am happy to deal with that now, or the matter might return later. It is better at least to explain the position as I understand it. I shall therefore speak to Amendments Nos. 61, 62, and 64—and also to government Amendments Nos. 63, 65 and 66. They deal with different topics.
Amendment No. 61, moved by the noble Lord, Lord Thomas, would remove the concluding words of the new paragraph 6(1),
"but this does not require the court, if so satisfied to grant bail (disregarding other considerations)".
The noble Lord asked why would it be appropriate to deny bail if there was no significant risk that if released on bail a person would fail to surrender to custody. The answer is that there might be another good reason for not granting bail—for example, if there was a risk that that person would interfere with witnesses or the course of justice. There are a number of circumstances under which bail can be refused. All that this is doing is to make clear that if there are reasons for refusing bail independent of the question of absconding, then the court will retain the power to refuse bail, which it would have under the Bail Act 1976 in any event.
It could not be right to say that although one condition has been dealt with, even though there is another good reason for refusing bail, that that should be excluded automatically. So we could not accept the deletion of the words. Of course, the words are an amendment to an existing Act, which contains a number of provisions about the presumptions, subject to these amendments, in which bail would be provided, and so the other provisions of the Act should apply.
Amendment No. 62 seeks to remove paragraph 6(4), which, as the noble Lord, Lord Thomas, said, provides that,
"a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody".
That is no more than to repeat the provision that already exists in the Bail Act, in Section 6(4). There is no change by making this provision. In any event, the Government believe that this will rightly avoid technical arguments that a defendant could not have been expected to know his bail date because the court had failed to give him the required copy. The defendant might have been in court and heard very well the magistrates say, and perhaps his lawyer afterwards, "This is the date that you are supposed to attend". There would be no doubt that he had known the date—and to say later, "I didn't turn up because I haven't had a copy of the bail record", would be unacceptable. There might be circumstances which would lead the court to take the view that he had reasonable cause not to attend. But it could not just be the fact that there was no copy of the record.
I turn to Amendment No. 64, moved by the noble Lord, Lord Hodgson. As the noble Lord, Lord Renton, said, there will be degrees of disorder from which a person falling within the definition referred to by the noble Lord, Lord Hodgson, could suffer. I entirely take the point that it would be unjust if someone who was not responsible for his actions fell to be remanded in custody
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because of the risk that he would not surrender. A person who is mentally disordered ought to have been identified as such, and diverted away from the court, before this stage in the proceedings. If that has not happened, but it is nevertheless clear that the person is disordered, then I suggest that the court would be entitled to find, and would be likely to find, that that person had "reasonable cause" for his failure to surrender. So the presumption against bail would not apply. That remains in this case for the court to consider. Did the person have reasonable cause for failure to surrender? That is the reason for resisting the amendment, although recognising and understanding the thinking which lay behind it.
I turn to the three government amendments. The purpose of Amendment No. 63 is to correct a disparity in the treatment of defendants aged 18 and below. Under the Bill as it stands, a defendant under 18 who has absconded not only is not subject to the presumption created by Clause 15(1); he would moreover benefit from a presumption in favour of bail owing to the removal of paragraph 6 of Schedule 1 to the Bail Act. That result would not be sensible and the amendment therefore requires the court in the case of defendants under 18 to give particular weight to the fact that they have failed to surrender to bail in assessing the risk of future absconding.
Amendment No. 66 simplifies and improves subsection (2) because it provides for a straightforward three-month limitation period to run from the defendant's surrender to custody, arrest or court appearance in respect of the offence, whichever is first. Amendment No. 65 is simply a drafting amendment and I hope that I need say no more about it.
Lord Renton: Before my noble friend Lord Hodgson replies, perhaps I may with great humility reply to what the noble and learned Lord the Attorney General said about Amendment No. 64. At first he seemed to accept the proposition that the circumstances arising from mental disorder would vary enormously, but then he gave the impression that we should not leave the matter to the discretion of the court. I would have thought that if justice were to be done, there must be variation. The court must have a discretion to apply whatever is required in the particular circumstances of the particular mental disorder.
Lord Hodgson of Astley Abbotts: Will the noble and learned Lord explain further why the Government did not follow the clear recommendation of the Auld report as to how bail notice should be couched, printed and handed out? He touched on it, but I thought it a glancing blow only. We are trying to achieve a balance throughout the Bill, particularly in this clause. The issue of bail, as he rightly reminded us, is important and one about which there is great public concern. The Auld report gave a clear recommendation, but the noble and learned Lord did not quite give it the drive through the covers that it might justify.
Lord Thomas of Gresford: Before the noble and learned Lord replies to that question, and after he has received the important information just communicated to him by the noble Lord, Lord Evans, perhaps I may ask him to deal with my point about the findings of the Joint Committee on Human Rights. He did not refer to them in his reply. The Joint Committee mentioned the case of Le Tellier v France where the European Court of Human Rights held that pre-trial detention must be limited to a reasonable period of time and the court must examine all the circumstances for or against a public interest in detention, justifying any detention with due regard to the principle of the presumption of innocence.
The court identified five factors which may justify detention pending trial: the risk of absconding, the risk of interfering with the course of justice, the prevention of crime, the preservation of public order and the need to protect the defendant. But the court made it clear that the individual's particular circumstances and personal characteristics must be taken into account and the reasons given for refusing bail must not be abstract or stereotyped, which is the point that the noble Lord, Lord Renton, was making a moment ago.
The problem about Clauses 14 and 15 is that they impose a straitjacket on the court that it must be confined by in considering the particular case in front of it. It is required not to give consideration to the particular circumstances and personal characteristics of the individual. It follows that Clauses 14 and 15 do have an abstract or stereotyped response to either the question of re-offending or the possibility of the defendant absconding. The Joint Committee on Human Rights has some weight in your Lordships' deliberations and if it feels that these provisions deny a person bail and they do constitute a disproportionate interference with Article 5(1) then we need to have a justification from the Government for why these provisions are put forward. Otherwise a court considering the matter at some future date may well say that these clauses are incompatible. The noble and learned Lord did not deal with that in his response and I ask him to do so now.
9.15 p.m.
Lord Goldsmith: Three quite separate points had been put before I sat down. I will try and deal with them in turn.
The noble Lord, Lord Renton, questioned me further on the issue of the mentally disordered defendant. What I wanted to do, and hope I did do, was to draw attention to the fact that in the provisions that are set out in Clause 15, the presumption that is set out in Paragraph 6(1) is subject to Paragraph 6(3), which would be the new Section 6(3) of the Bail Act, 1976. It provides that where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody he does not fall within the paragraph unless it appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time. The point that I was anxious to make is that when somebody is suffering from a condition where it is not right to say that he is responsible for not turning up,
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where he cannot have been expected to do so having regard to the condition, then the court would be entitled to say—I would expect it to do so—that he has a reasonable cause for not attending and therefore it is inappropriate for us to apply this presumption. It may then look at the case more generally and may, or may not, decide that in all the circumstances custody is appropriate. I see that the noble Lord, Lord Renton, wishes to speak and I give way.
Lord Renton: My Lords, I thank the noble and learned Lord for giving way. Is he is saying that the reasonable cause to which he refers could be mental disorder?
Lord Goldsmith: I do not want to be too telegraphed about this matter. It may be that the reason that the person has not attended is due to a mental disorder and that the magistrates or the court consider that in those circumstances it is appropriate to say that the person had reasonable cause not to attend or could not have been expected to attend. That is why I venture to suggest that the noble Lord had helpfully reminded the Committee that the degree of conditions could vary from very extreme to not so extreme. Of course, the court would have to look at the circumstances.
Secondly, I was chided by the noble Lord, Lord Hodgson, for not having dealt with the matter of the terms of a bail notice. The Government expect and wish that bail notices should be provided. It is important that that takes place. The sole point with which I was dealing—it is the sole point with which Amendment No. 62 is concerned—is whether the mere fact that such a notice has not been served should in itself constitute a reasonable cause for not attending. I suggest that based on existing law and based on common sense, the fact that such a document has not been served cannot be a reasonable cause. That does not mean that there may not be reasonable cause based upon a number of circumstances which to the court appear appropriate. That was my reason for responding to the amendment in a way that the noble Lord thought was a glancing blow. I thought I had driven it to the covers and perhaps rather further.
Lord Dholakia: I believe that the Minister is dealing with an example of mentally ill offenders. Many noble Lords have served as magistrates and will be aware that many people who appear before them are inadequate in various ways. Many times bail is granted with conditions. Surely the easiest way is for there to be an obligation on the court to ensure that bail notices are clearly specified—not only the attendance but also the conditions—rather than putting the onus on an individual having to justify why he or she did not appear with the excuse mainly that he or she just did not understand the conditions.
Lord Goldsmith: I repeat, as the 1976 Act states and as appears to the Government to be right, that failure to give a copy of the record of the decision to grant bail shall not constitute a reasonable cause for failure to attend. I suggest that as a matter of common sense that

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does not in any way detract from the desirability that notices should be provided and that they should be clear. However, as a matter of common sense, that cannot be a reasonable cause not to attend when one has been told in court, one has heard what has been said and others have reminded one and told one at the time. One cannot simply say, "Well, for this technical reason I did not get a copy of the document, therefore, I am entitled not to turn up; I am entitled to put the public, the court, the witnesses and the victims to inconvenience". In our view that will not wash.
The third point is the compatibility of the provision with ECHR requirements. The noble Lord, Lord Thomas of Gresford, referred to the Human Rights Committee, a committee for which I have great respect, having sat on it before taking my present position. Ultimately, it is a matter of what the jurisprudence of the Strasbourg court requires, and that does not consist of just one case but a number of cases.
As the noble Lord, Lord Thomas, rightly accepted, one of the clear circumstances in which it is appropriate, according to European jurisprudence, not to grant bail is in circumstances that concern the risk that someone would fail to surrender to custody if granted bail. This provision deals with precisely that. Generally speaking, it cannot be acceptable for someone to be released on bail, which is the basis for saying, "You will come back, and the witnesses and the victims will attend so that the court can deal with the case", and for him or her to fail to attend. Not surprisingly the European Court, while rightly saying that there must be reasonable times imposed and matters of that kind, states that that is a perfectly legitimate circumstance in which bail can be refused.
Ultimately, courts themselves, as public authorities, are also bound, as the noble Lord would be the first to remind me, by the requirements of the Human Rights Act and the European convention. The Government's view—and as it happens my view—is that the provision is compatible with our obligations under the European convention.
Lord Thomas of Gresford: Referring to the first amendment to which I am speaking, which would amend subsection (1), I now understand the meaning of lines 12 and 13, from "but" to "considerations", the part that we seek to exclude. I happen to think that it is very badly worded. I did not understand it before, and one or two alterations would make it clear what the noble and learned Lord had in mind. May I suggest a form of words which he can read in Hansard tomorrow? My suggestion is, "but this does not require the court, even if so satisfied, to disregard other considerations for not granting bail". I think that is what he said was the meaning of that particular phrase. I do not pretend to have any particular expertise, but if I did not understand it first time around, it is possible that other people might not, so I respectfully suggest that the wording be clarified.
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On the general issue—the human rights issue—we are back in the situation which permeates the Criminal Justice Bill and other legislation that is brought forward by the Government in this field. We are back to trying to impose, as I said earlier, the straitjacket upon the adjudicating body, whether it be magistrates or the judge in the Crown Court. All the matters to which I have referred from the European case, and cases, and all the matters to which the noble and learned Lord has referred, are already taken into account by magistrates in the exercise of their discretion in granting bail. Why it cannot be left to the adjudicating body to decide whether it is appropriate to grant bail in these circumstances—having regard to the individual in front of them and the particular circumstances, whether it be a mental or physical disability or failure to receive the court order—I do not know.
The notice from the court—the copy of the record of the decision to grant bail—is not quite as simple as the noble and learned Lord thinks. In very many cases, a large number of conditions of bail are imposed. There may be six or seven or eight including reporting, where a person is going to live, whom he may have contact with, and so on. It is extremely easy for a person charged with an offence to overlook one or other of those bail conditions. It is therefore particularly appropriate that he should have, in writing, quite specifically, what the conditions of his bail are.
I do not propose to press the amendment at this stage, but it is a serious issue. I would ask the noble and learned Lord to look at the wording—possibly my off-the-cuff amendment of it would make what he is aiming at rather clear—and to consider the whole position generally, particularly in the light of the conclusions of the Joint Committee on Human Rights.
Lord Renton: Before the amendment is withdrawn, I ask the Government to bear in mind what the noble Lord, Lord Thomas of Gresford, has said about the general effect of the clause and its general effect as amended by the Government. This is a part of the law in which, in the interests of justice, the terms should be absolutely clear. It affects people's freedom, it affects the protection of the public by depriving people of bail or putting them into custody when there is a risk to the public. It is not part of our duty in either House of Parliament to have legislation affecting these matters put in such long and complicated terms. It would be wise if, between now and Report, the Government considered the complete redrafting of this clause.
Lord Goldsmith: I rise because I think the noble Lord, Lord Renton, put that as a question to me. I beg to differ with him and the noble Lord. Lord Thomas, as to the alleged lack of clarity in the clause, which fits in any event within an existing Act of Parliament that carries with it particular presumptions, as I have said, subject to these clauses. But of course I always listen to the suggestions of the noble Lord, Lord Renton, and I give him that assurance.
Lord Thomas of Gresford: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
9.30 p.m.
Lord Goldsmith Lord Goldsmith moved Amendment No. 63:
Page 10, line 28, at end insert—
"(1A) After paragraph 9AA of that Part (inserted by section 14(2)) there is inserted—
"9AB (1) Subject to sub-paragraph (2) below, this paragraph applies if—

(a) the defendant is under the age of 18, and

(b) it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody.

(2) Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, this paragraph does not apply unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

(3) In deciding for the purposes of paragraph 2(1) of this Part of this Schedule whether it is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would fail to surrender to custody, the court shall give particular weight to—

(a) where the defendant did not have reasonable cause for his failure to surrender to custody, the fact that he failed to surrender to custody, or

(b) where he did have reasonable cause for his failure to surrender to custody, the fact that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

(4) For the purposes of this paragraph, a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody.""

On Question, amendment agreed to.
[Amendment No. 64 not moved.]
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 65 and 66:
Page 10, line 36, leave out "subsection (12) or" and insert "either or both of subsections (12) and"
Page 10, leave out lines 41 to 47 and insert—
"(13) This subsection applies if an information is laid for the relevant offence no later than 3 months from the time of the occurrence of the first of the events mentioned in subsection (14) below to occur after the commission of the relevant offence."
On Question, amendments agreed to.
Clause 15, as amended, agreed to.
Clause 16 [Appeal to Crown Court]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 67:
Page 11, leave out line 28.
The noble and learned Lord said: In moving the amendment I shall speak also to Amendment No. 68 and touch on Amendment No. 68A, to which the noble Lord, Lord Hodgson, will speak.
Clause 16 creates a new right of appeal to the Crown Court against the imposition by magistrates of certain conditions of bail. That was recommended by Lord Justice Auld in his review, and it complements the
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removal by Clause 17—to which we shall come shortly—of the existing High Court power to entertain such appeals.
As the Bill stands, the conditions that may be challenged in that way are requirements relating to residence away from a certain area, provision of a surety, or giving a security, curfew, or electronic monitoring. It was argued in another place that a condition to reside at a particular address was potentially as restrictive as one to reside away from a particular area.
The Government agreed to consider that argument, and we have been persuaded by it. So the amendments tabled by the Government—if the Committee agrees to them—give a right of appeal against the imposition of a condition that the defendant should reside at a particular place, with the exception of a bail hostel.
We also said that we would consider a requirement not to contact a particular person, which is the subject of the amendment in the name of the noble Lord, Lord Hodgson. I wait to hear what he says about it, but I have indicated to him already that the Government are not resistant to his proposal, with certain adjustments. I beg to move.
Lord Hodgson of Astley Abbotts: As the noble and learned Lord the Attorney General has kindly made clear, we have tabled Amendment No. 68A in this group. With the Committee's permission, I shall move Amendment No. 68A in a modified form by omitting the last two words of the amendment; that is, the words, "or person", so that the words to be inserted by the amendment are:
",or
(e) that the person concerned makes no contact with another person".
As the noble and learned Lord made clear, this is an addition to Clause 16(3), listing appealable conditions. This is a further appealable condition. The noble and learned Lord referred to the discussion in another place. The Minister replied that he did not believe that the conditions were,
"so great a restriction on a defendant's liberty as to require a right of appeal",
but he conceded that he,
"would like to look at the proposal and to consider further the point made by the hon. Gentleman [Mr. Grieve] in respect of paragraph (h)".—[Official Report, Commons Standing Committee B, 7/1/03; cols. 176–8.]
Paragraph (h) is now paragraph (e) in Amendment No. 68A and makes reference to not contacting a particular person. We are very grateful to the Minister for taking that consideration on board. That condition of bail stands out because there are circumstances where a defendant's liberty might be curtailed to an unreasonable extent by its imposition. Freedom of association should be protected by the ability to appeal against restrictions placed on it.
Another consideration is that such a condition curtails the freedom not only of the defendant but of the person whom the defendant is prevented from seeing. Accordingly, the condition potentially has

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doubly far-reaching effects on the liberty of the defendant and that of the other people specified in the condition. The bail condition as laid out in Amendment No. 68A is quite frequently opposed; therefore, we are grateful for the Government's sympathetic response to the amendment.
Lord Thomas of Gresford: We support Amendments Nos. 68 and 68A. My only qualification is that I do not see why it is necessary to specify the conditions of bail that may be the subject of an appeal. I would have thought that the right of appeal should apply to any condition of bail. Although, at this hour, I am not in a position to recall any specific additional condition of appeal, there are frequently conditions other than those listed. I look forward to hearing from the Minister why the provision is limited in that way.
Lord Goldsmith: I am content to accept Amendment No. 68A as modified, given the support that it has received and the remarks of the noble Lord, Lord Hodgson. I understand that it is acceptable to modify the amendment in that form.
I wish to respond to one remark made by the noble Lord, Lord Thomas. There is no amendment before the Committee to add to the clause any other condition as being subject to appeal. There is no amendment to remove the conditions that exist. Given the lateness of the hour, I hope that the noble Lord will forgive me for saying that it is not therefore appropriate for me to comment on what I would have said to other amendments had they been moved. I beg to move Amendment No. 67.
On Question, amendment agreed to.
Lord Goldsmith Lord Goldsmith moved Amendment No. 68:
Page 11, line 29, at beginning insert—
"(aa) that the person concerned resides at a particular place other than a bail hostel,"
On Question, amendment agreed to.
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 68A:
Page 11, line 32, at end insert ", or

(e) that the person concerned makes no contact with another person"

On Question, amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 [Appeals to High Court]:
The Deputy Chairman of Committees (Lord Geddes): Before calling Amendment No. 69, I must advise the Committee that if the amendment is agreed to I will not be able to call Amendment No. 70 due to pre-emption.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 69:
Page 12, line 12, leave out subsections (2) to (5).
The noble Lord said: This amendment probes the Government to tell us why it is necessary to abolish the inherent power of the High Court. The High Court has a supervisory jurisdiction. It governs everything that happens in lower courts. I do not understand why that inherent power, which can be invoked in several circumstances, should have been abolished in subsections (2) to (5). I await an explanation. I beg to move.
Lord Renton: I support what the noble Lord, Lord Thomas of Gresford, has said. However, I wish to make a very minor drafting point. The word "inherent" is quite unnecessary. It is used twice—in the first line of subsection (2) and the first line of subsection (3). It would be sufficient simply to refer to "the power of the High Court".
Lord Goldsmith: The noble Lord, Lord Thomas of Gresford, asked why we should remove this right. The answer, in the words of another, is that it is a hit of a muddle and a wasteful duplication of process. That other was Lord Justice Auld. I will read what he said in his review, because I hope that noble Lords will see that it gives a complete answer to the point that was raised and shows why the provision is sensible. He said:
"We have a permanently manned Crown Court all over the country which can deal with the matter by way of appeal, and those detained in custody no longer have to await the next visit on circuit of the High Court Judge or apply to a judge in Chambers in London to seek release. It is a separate and parallel, not appellate, jurisdiction. In my view, there is no longer any need for a High Court Judge to consider afresh the grant of bail after refusal by a magistrates' court or the Crown Court. If the magistrates' court and a Crown Court Judge, the latter on an original application or appeal by way of re-hearing, acting within the proper bounds of their discretion, have refused bail, it is an anomaly that another judge, albeit a High Court Judge, be entitled to exercise a further discretion in the matter",
The provision is required because there is an unnecessary and wasteful duplication of process. The rights of the defendant, which are, of course, very important, are entirely adequately safeguarded by the fact that the magistrates will have considered the matter and a judge in the Crown Court on appeal or by way of original application will have considered whether bail should be granted. It is for those reasons that the Committee in another place accepted after deliberations that the clause was welcome.
Government Amendment No. 70, which is grouped with Amendment No. 69, is merely consequential on an earlier change to Clauses 81 and 82, which removed specific provision for the variation of bail conditions.
Lord Renton: Could the noble and learned Lord deal with my very minor drafting point? Is the word "inherent", which is used twice, necessary at all?
Lord Goldsmith: I apologise to the noble Lord, Lord Renton, for not having picked up on that point. I do not regard the word as inappropriate. It is quite common to refer to some of the powers of the court, especially the High Court, as being inherent, which

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indicates that they do not derive from any particular statutory provision, but that they are inherent—I cannot find a better word. I hope that the noble Lord agrees that that puts the matter clearly beyond doubt and that it is not inappropriate.
Lord Mayhew of Twysden: Is there not an inherent weakness in what is being put forward by the noble and learned Lord? If one chooses to go to the Crown Court in virtue of its inherent jurisdiction—one goes to the Crown Court first by way of the original application—there is to be no appeal from that decision if the clause is agreed to. Is that altogether satisfactory?
Lord Goldsmith: The process that would take place—I was going to say in the vast majority of cases, because I can think of only one exception to the rule and I am not sure how many others there are—would be that the first decision about bail in any case would be for the magistrates' court. The matter would then go to the Crown Court. The application could be renewed at the Crown Court or, in a sense, appealed to the Crown Court. In those cases there would be two opportunities for the position as to bail to be considered. The exceptional case that I was considering—and I am not sure whether I am technically right about this—would be if a voluntary bail had been preferred, which might mean bypassing the magistrates altogether. I am not confident about that being the only exception or necessarily right in itself.
Generally speaking—this was the view of Lord Justice Auld, a very experienced Court of Appeal judge—it is unnecessary to have an additional jurisdiction alongside that of the Crown Court judge. That is why the Government take this approach.
9.45 p.m.
Lord Thomas of Gresford: It is not so much an "alongside" jurisdiction as a long stop jurisdiction. If the Committee will forgive me for being anecdotal, I will say that I remember a case in which a defendant surrendered to his bail on the first day of his trial. By a mischance, his surety had not attended at court for his bail to be renewed. Bail would have been renewed in the ordinary course of events, but, because the surety did not arrive, the defendant was taken off to Brixton.
Then, the surety arrived, but it was 4.15 and the judge had gone home, as judges tend to do at the Old Bailey. I withdraw that comment; it is not fair. They work very hard. Mr Geoffrey Robertson and I—he was my junior at the time—attended before the duty High Court judge. We dragged him from his dinner and obtained an order. At about 10 o'clock at night, I think, we went down to Brixton and retrieved our client, so that he was not required to spend the night in custody. He would not normally have been in custody.
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That was not something that happened every day, but it was useful to have the long stop provision. I see no reason why that inherent power should not continue.
Lord Goldsmith: I understand from that anecdote that it happened a long time ago—Mr Geoffrey Robertson was the noble Lord's junior—and that the case involved an Old Bailey judge, among the most experienced of our criminal judges, and that the application resulted in the defendant avoiding one night in custody. In a sense, the story makes the point. If an extremely experienced criminal judge, such as an Old Bailey judge, has, in his discretion and knowing all the circumstances of the case, reached the view that it is appropriate to withdraw hail or withdraw it in those circumstances, why should that decision be overridden by another judge who happens to be a High Court judge but—dare I say it—might have been from my former chambers and had commercial or civil experience but not the criminal experience of an Old Bailey judge? I stand unrepentant, notwithstanding the anecdote. This is an appropriate clause.
Lord Mayhew of Twysden: I am sorry to prolong the matter. Even somebody from the noble and learned Lord's old chambers could see the justice of the application made by the noble Lord, Lord Thomas of Gresford, in the circumstances that he cited. In that anecdote, there is no criticism of the Old Bailey judge: he had gone home. He had to withdraw bail, when the surety did not turn up, and he was no longer there when the surety did turn up.
That is all that we are looking for. It is not enough to say, "It was a long time ago, and it is a very rare circumstance. Anyway, what's a night?". In each of the circumstances, the anecdote warrants keeping the clause.
Lord Borrie: I am not sure that it does. Have we forgotten that the surety failed to turn up? I know that that was not the fault of the accused, who might have had to spend a night in gaol as a result, hut it is a fact. What if he had not turned up for hours? That would have been too bad, and the accused would have had to stay one night.
Does that justify there being the long stop that the noble Lord, Lord Thomas of Gresford, suggests? To my mind, it has been out of date since 1970, when the Courts Act created the Crown Court and all the rest of it. In 2003, we are now just about catching up with the situation. High Court judges should no longer be expected to be the back stop or long stop, as the noble Lord put it. I listened closely to the anecdote and I did not really feel that that hard-luck case justified the retention of the High Court judge's role in life in the circumstances mentioned.
Lord Thomas of Gresford: If that was the only circumstance in which the High Court judge was required to be a long stop, I would agree with the noble Lord, Lord Borrie. But that is not the case. One simply cannot envisage or categorise the circumstances which

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will arise in all sorts of cases. In answer to the noble and learned Lord, of course the Old Bailey judge was not making a decision to refuse bail. As the noble and learned Lord, Lord Mayhew, pointed out, he was unable to grant bail in the absence of the surety, who just turned up late. I use it as an anecdote and not as a principle; in those circumstances, the long stop was useful. It does not require anything more than that the High Court judge should be capable of taking a decision of that kind where the liberty of the subject is involved.
After all, the High Court judge is there entrusted with the responsibility—as are all judges—of maintaining the liberty of the person. Although I apply to withdraw the amendment, I hope that the noble and learned Lord will consider what has been said and question with his officials whether it is necessary to do this. I am not persuaded by the suggestion made by the noble Lord, Lord Borrie, that it has taken us 33 years to catch up. In fact, I think that it is 31 years since the Crown Courts were brought into being. I am not persuaded that that is the proper approach. I am much more concerned with what happens to individuals. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goldsmith Lord Goldsmith moved Amendment No. 70:
Page 12, line 28, leave out from "bail" to end of line 29.
On Question, amendment agreed to.
Clause 17, as amended, agreed to.
Clause 18 [Appeal by prosecution]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 70A:
Page 13, line 8, after "imprisonment" insert "for two years or more"
The noble Lord said: Clause 18 concerns appeals by prosecution against bail. The Auld report made recommendations on revising the system for bail. The clause seems to have been drafted by the Government to follow some of the recommendations of Lord Justice Auld and would enable the prosecution to appeal against the grant of bail in respect of all and any offences punishable by a custodial sentence of any length. As I understand it, it used to be permissible with regard to offences carrying a custodial sentence of five years or more only.
We accept that those who persistently offend while on bail need to be reined back. Surely, the Bill as drafted risks clogging up the courts with appeals of all variations against potentially minor cases. Misdemeanours undoubtedly are committed on bail. The noble and learned Lord the Attorney-General already has referred to some of these statistics in earlier amendments. Are they widespread enough to warrant the possibility of a higher prison population figure?
Lord Justice Auld explained in chapter 10, paragraph 90, page 433 of the report, that some of those who offend while on bail are guilty of committing what are called in America "quality of life crimes" which although not necessarily serious cause an unbalancing effect on the "community's sense of security". While one should not underestimate the effect of such antisocial behaviour, do such actions require the very strong and draconian line that the Government are now proposing to take? There must be some doubt whether the right balance is now being struck.
If the Auld report was referring to more serious offences, that would be a different matter. Since there are no statistics, we cannot really tell. There has been a helpful briefing from the London Criminal Courts Solicitors Association which points out that if the Government want to restrict bail further, they need to provide clearer evidence that the public are put at risk by the operation of the law as it stands. It has also stated that it is not aware of any supporting evidence or statistics. Nevertheless, one statistic that is thrown around regularly and with good reason is the size of the prison population in England and Wales. That now stands at around 73,500 and has risen by around six per cent just this year.
Leaving aside the civil liberty issue, will not the Government's proposals in this clause create a further burden on the already fast-growing prison figures and threaten to overwhelm a prison service already operating at arguably more than full stretch? Moreover, is there not the practical danger for those who are remanded, having been refused bail, that far from encouraging rehabilitation, it will serve to reinforce any tendency towards criminal behaviour?
We believe that a rethink is needed. Our amendment allowing prosecutions to appeal against bail where the custodial sentence in prospect is two years or more offers a more sensible and balanced way forward. I beg to move.
Lord Thomas of Gresford: In supporting this amendment, I should like to approach it from a different angle. This Bill and many criminal justice Bills support an industry of satellite litigation. As a member of the Bar one should not really object to that because it means more work. I note that the noble Baroness, Lady Kennedy of The Shaws, agrees with me. But litigation is piled on litigation. The right of appeal for the prosecution means another hearing, the use of court time and the payment of counsel for prosecution and defence. Some limitation should be put upon it. This modest amendment of two years or more is practical as well as right in principle. We on these Benches support this amendment.
Lord Goldsmith: This is not about satellite litigation. This is not about providing work for lawyers. It is about circumstances in which, in the view of the prosecution, bail has wrongly been granted to somebody. The public may need protecting against that person during the period until the offence comes to be tried. I noted the point made by the noble Lord,

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Lord Hodgson, about statistics. The statistics that I referred to before seem to me to speak volumes, Nearly one in four of defendants granted bail goes on to commit an offence of which they are convicted during the period of bail. There are a substantial number— nearly one in eight—who fail to surrender to their bail with all the consequences. This means a waste of time and resources and frustration for victims and witnesses when they find the case does not take place. These are serious issues which affect the quality of life of the British people.
This amendment proposes a different limitation on the offences where the right to appeal by the prosecution may arise. We do not find this a sensible limitation. We do not see that it is sensible to limit cases to those where imprisonment is capable of being two years. We follow the line that Lord Justice Auld took that such an appeal should arise in all cases of offences which are imprisonable, having regard to the fact, as he said, that there may be offences which are not of the most serious in the calendar of criminal offences but may cause considerable nuisance and detriment to quality of life, especially if repeated. For someone to have committed what may not have been the most serious offence, and for it then to be repeated precisely when that person is on bail. can cause a strong belief in the public that the law is simply being made a fool of.
I do not accept that the proposed limitation is sensible. However, I hope that noble Lords will be reassured to hear that the right for the prosecution to appeal against a grant of bail is not used in a wide or cavalier fashion. On the contrary, the internal guidance provided within the Crown Prosecution Service recognises that the right to take a case to appeal should be used judiciously and responsibly. The most recent guidance produced internally uses the expression—which is why I used it before—that we must look principally to see whether the public need protecting from the defendant. If that test is applied, I hope that it will be agreed that, whether the offence has a maximum of two or five years, it is proper to look to see whether or not this is a case in which bail has been wrongly granted.
Of course, the fact that the prosecution appeals against a grant of bail does not for a moment mean that the appeal will succeed. The outcome is entirely within the discretion and judgment of the court to which it goes. If the court takes the view that it was entirely right and proper to have granted bail, it will say so and will no doubt go on to make some comment about the desirability of the appeal having been brought in the first place.
I hope that my remarks on the Crown Prosecution Service approach will give some comfort to the noble Lord. It is unnecessary to limit the provision in the arbitrary way proposed in the amendment.
Lord Hodgson of Astley Abbotts: I am grateful to the noble and learned Lord for his response arid to the noble Lord, Lord Thomas of Gresford, for his support. It is always helpful, as a non-lawyer, to have a lawyer giving me some practical examples.
I listened carefully to the Minister's remarks, and I accept the statistics that he repeated. However, when Ministers reach for phrases such as "internal guidance" and say that we do not have to worry about this draconian legislation because of such guidance, I am less impressed. We are really talking about how the measure will work. It is quite a re-balancing of the system, and we were trying to find a balance at another point on the fulcrum. To return to the cricket analogy, if the Minister's earlier comments were a drive through the covers for four, this was a dab down to third man for a single.
We should like to read what he said, discuss it with some of the expert bodies that have briefed us on this point, and consider whether we want to return to the matter at a later stage. In the meantime—
Lord Thomas of Gresford: Before the noble Lord withdraws the amendment, as he appears about to do, and in answer to the noble and learned Lord, I remind him that paragraphs 175 and 176 of the Auld report's recommendations stated:
"Magistrates and judges in all courts should take more time to consider matters of bail … Listing practices should reflect the necessity to devote due time to bail applications and allow the flexibility required for all parties to gather sufficient information for the court to make an appropriate decision".
The Auld report itself says that we should take more time over bail applications and, no doubt, more time over appeals on bail applications.
Lord Goldsmith: I was going to make an offer to the noble Lord, Lord Hodgson, but I shall comment on what the noble Lord, Lord Thomas, has just said. Nothing that I have said for a moment suggests that we do not want each court that deals with a bail application to consider it fully and properly and to take the time that is necessary to do so. I do not understand why it is thought that the comments made sensibly, if I may respectfully say so, by Lord Justice Auld undermine what I have said about the prosecution right of appeal.
My offer to the noble Lord, Lord Hodgson, is the following. Among the expert bodies that we would like to consult I should be happy to meet with him and others to talk about the way that the Crown Prosecution Service, which is the department for which I am ministerially accountable, exercises the powers that we are discussing. That may help the noble Lord reach a view about the way that this power—I do not accept that it is a draconian power—of appeal (it is no more than that) will be exercised.
Lord Hodgson of Astley Abbotts: That is indeed a generous offer which I may very well take up. I thank the noble and learned Lord very much for his comments. As I was about to do when I was hit from two directions, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guiting: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Co-operatives and Community Benefit Societies Bill
Returned from the Commons with the amendments agreed to.
House adjourned at six minutes past ten o'clock.