Lords Sitting of 30 June 2003

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.

Lord Boyce
Admiral Sir Michael Cecil Boyce, GCB, OBE, having been created Baron Boyce, of Pimlico in the City of Westminster, for life—Was, in his robes, introduced between the Lord Sterling of Plaistow and the Lord Guthrie of Craigiebank.

Network Rail: Performance
2.43 p.m.
Viscount Goschenasked Her Majesty's Government:
Whether the performance of Network Rail is satisfactory.
Lord Davies of Oldham: My Lords, following the problems created by years of under-investment and a flawed privatisation, Britain's railway infrastructure is now under the new ownership and strengthened management of Network Rail. Working with the industry as a whole within the strategic direction of the Strategic Rail Authority, the company is concentrating on its core priorities of operating, maintaining and renewing the railway to demanding performance targets—for the benefit of passengers and stakeholders, not shareholders.
Viscount Goschen: My Lords, I thank the noble Lord for that reply, although I could not work out whether he responded with a "yes" or a "no"; that is, whether or not he believes that Network Rail's performance is satisfactory. Perhaps he could tell the House.
Does the noble Lord agree with the view of his own rail regulator that the explosion of costs at Network Rail is a direct function of the fact that no longer is there any shareholder equity in the company? Further, do the Government now agree that the governance structure, which was forcefully argued for by the noble and learned Lord, Lord Falconer, when he was at the Dispatch Box, is in fact fatally flawed? As the rail regulator has himself pointed out, it is far more difficult to regulate a company with no shareholders.
Lord Davies of Oldham: My Lords, the answer to the first question put by the noble Viscount is that Network Rail has been fully in existence only since October of last year. It is, therefore, somewhat premature to ask how well it is doing set against such a limited perspective and against the Government's 10-year strategic plan for transport. Let me assure the
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noble Viscount and the House that the Government do not intend to throw money at Network Rail. However, over the 10-year period the Government will carry out the necessary investment to ensure that we have a modernised and effective railway system. I think that all noble Lords will recognise that there is much to be done.
Lord Bradshaw: My Lords, does the Minister agree that the contractual structure that has been wished upon the railway system is fatally flawed in that one cannot force a contractor to deliver at the very highest levels of quality? What is Network Rail doing to ensure that we do not have a railway which is maintained in bits and pieces and whose quality does not give us the type of service that we want?
Lord Davies of Oldham: My Lords, I accept what the noble Lord says. It is necessary to have a coherent structure in the development of the railway system, and that is what Network Rail is charged with providing. The contracting system requires Network Rail to establish a sophisticated system of monitoring. As we all know—recent events have emphasised the fact—that monitoring needs to be carried out with the greatest care. I do not believe that anything in the structure of the signing and development of contracts militates against Network Rail being able to succeed in its overall objectives.
Lord Faulkner of Worcester: My Lords—
Viscount Astor: My Lords—
Noble Lords: This side!
The Lord President of the Council (Lord Williams of Mostyn): My Lords, this side.
Lord Faulkner of Worcester: My Lords, does my noble friend agree that, while the railway system obviously still faces the most appalling difficulties, we can at least welcome the fact that the various elements in it are at last talking to each other in a constructive way, unlike the days of Railtrack when they were simply at each others' throats? Will he specifically welcome this morning's announcement by the Strategic Rail Authority of the route utilisation strategy for Midland Main Line? That demonstrates how the parties to the industry can work together for the benefit of all the people who work on it and use it.
Lord Davies of Oldham: My Lords, I appreciate very much what my noble friend indicated. In fact, there have already been some signal successes to which we can pay due regard and in which we can take pride. But we recognise that the problems of the past have been ones of coherence, particularly, as I mentioned earlier, in relation to the flawed privatisation. We now have a structure where, as my noble friend said, all the crucial players in the industry are talking and working together effectively.
Viscount Astor: My Lords, is the Minister really proud of the fact that the Byers bungle over the

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unnecessary administration of Railtrack has cost the taxpayer £70 million in fees and costs? Further, we are now told that by 2006 Network Rail's costs are to rise by £12 billion over budget to £27 billion. This year alone, services have been cut, delays have increased, fares have gone up and the passengers have suffered again. Is the noble Lord really proud of that record?
Lord Davies of Oldham: My Lords, I believe that some noble Lords will also recollect the costs of the botched privatisation process. Frankly, although a not insubstantial sum, the amount of £70 million must be set against the colossal costs to the nation, particularly in terms of transporting passengers and goods, of an ineffective railway. It is still early days as we attempt to recover from many years of substantial under-investment. Surely the noble Viscount recognises that what was handed over to the incoming administration in 1997 was a railway replete with problems, which will not be solved overnight.
Lord Berkeley: My Lords, does my noble friend agree that one of Railtrack's problems was that, in its seven years of existence, it did not manage to create an asset register and thus did not know what it owned or the condition of what it owned? Does not that problem still face Network Rail? Therefore, does my noble friend welcome the fact that maintenance of the Swindon to Paddington section of the line has been taken in-house, together with knowledge of the assets, so that at least control is held over that? Whatever contractors do, if they are not managed correctly, nothing right will happen.
Lord Davies of Oldham: My Lords, characteristically, my noble friend, with his great knowledge of the railway system, has hit upon a crucially important point. The failed structure of Railtrack led to a situation where the organisation was unaware of its assets. Network Rail is making significant progress on that point. It is a crucial building block in running the railway system effectively.
Lord Brooke of Sutton Mandeville: My Lords, is it an inherent part of the logic of a not-for-profit company that it is not entitled to make a profit but is entitled to make a loss?
Lord Davies of Oldham: My Lords, it is certainly the case that a considerable amount of the investment in Network Rail will repay only over a substantial period. I believe that the noble Lord will recognise that investment which is designed to produce the outcome of the main points of a 10-year strategy cannot be judged at present. But Network Rail is fully accountable to the Strategic Rail Authority and, therefore, the monitoring of its activities will be kept under the strictest review.
Lord Stoddart of Swindon: My Lords, with regard to the necessity, or otherwise, of having shareholders to
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be accountable to, is it not a fact that we shall spend £54 billion of public money over the next 10 years? I calculate that to be roughly £1,000 per person. Therefore, is it not correct that the rail shareholders are the general public—those who pay their taxes? I, and the country, need to be assured that that money is used properly to build a first-class railway system in this country.
Lord Davies of Oldham: My Lords, my noble friend is right. Members of the public represent the most substantial group of shareholders in the railway. Particularly significant is their role as taxpayers, given the considerable amount of government money invested in this area. But my noble friend will recognise that Network Rail and the Strategic Rail Authority have structures of accountability and they will be held to account. He will also recognise that nothing will serve the general public and taxpayers worse than for us to tolerate a railway that is well below modern standards.

Railway Safety
2.53 p.m.
Lord Bradshawasked Her Majesty's Government:
Why the safety regulations on the railway have been amended to preclude the use of the opposite line for trains in instances where track has been signalled for that purpose.
Lord Davies of Oldham: My Lords, we have consulted the Health and Safety Executive, the Rail Safety and Standards Board and Network Rail. None is aware of any recent amendments to standards or regulations that preclude the use of bi-directional signalling operations. However. I understand that the Railway Group Standard for the provision of lineside signals was changed in February 2002 when the installation of simplified bi-directional signalling was withdrawn for new signalling schemes.
Lord Bradshaw: My Lords. I thank the Minister for that reply, although I must say that it was rather opaque. The fact is that governments have sanctioned large sums of money for the provision of bi-directional signalling on most of our main lines and it is not being used, causing huge delays to people. It also prevents the safety regulations being enforced because it is difficult to inspect track if the single line is not used. Will the Minister therefore take back that Answer and press officials as to how much use is being made of bi-directional signalling where vast sums—tens of millions of pounds—have been spent in providing it and it is not being used?
Lord Davies of Oldham: My Lords, I am sorry if the noble Lord thought the Answer was opaque. He has much greater experience of the rail industry than I have and I thought the reply was perfectly clear. The simple fact is that the overall position with regard to bi-directional signalling has not been changed. I

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believe that the noble Lord is commenting on a limited area concerned with simplified bi-directional signalling for temporary or emergency situations which has been withdrawn. I hear what the noble Lord says about the potential costs in the through-flow of traffic, but it has been withdrawn because it was not felt that it was giving the necessary level of protection for trackside workers and that it caused some confusion with regard to the automatic warning system when trains went against the signals on the single tracks. Those are the two reasons for a limited reduction.
As regards the noble Lord's more general question about the whole system being suspended, that just is not so.
Lord Berkeley: My Lords, perhaps I may give my noble friend an example and ask him a question. Is he aware that the Strategic Rail Authority has announced that the franchise for the Great Eastern Ipswich to London service will be based on a total closure of the line every three weeks until 2012 so that the track can be renewed? That is a closure of 54 hours every third weekend for the next 10 years because the company will not be able to operate some trains on the single track remaining. Does my noble friend agree that that will seriously disadvantage passengers and freight? Perhaps he will encourage the industry and its contractors to come up with schemes that enable single-line working to be operated safely.
Lord Davies of Oldham: My Lords, my noble friend is right; the priority is safe operation of single directional working on the railway. I do not have particular knowledge of the problems with regard to the service on the line he mentions but I shall look into the matter. Some unfortunate costs are attached to the massive investment being put into renewing track since Hatfield in order to guarantee that it is safe. That causes some disruption to the railways.
Viscount Astor: My Lords, is the Minister aware that those of us who spent some time at Didcot station at seven o'clock this morning would have welcomed a train arriving at any platform on any line and from any direction? Is it not somewhat depressing that the Strategic Rail Authority has lowered the punctuality thresholds for Network Rail and the services?
Lord Davies of Oldham: My Lords, the second point is an important one. There are signs of a slow improvement in punctuality. The noble Viscount is right. We are starting from a base that is scarcely tolerable. We therefore want to see a more rapid improvement and that is why demands on Network Rail are an increasing tendency. However, I notice that the Opposition spokesperson does not care in which direction he travels so long as he travels.
Lord Methuen: My Lords, is the Minister aware that Midland Main Line services were suspended for the whole of Friday because apparently a Thameslink
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train brought down a mile and a half of the overhead line? Such incidents do not seem to occur in other countries. Will the Minister inquire why it happened?
Lord Davies of Oldham: My Lords, that was an unfortunate occurrence. It is the case that now and again some accident occurs on the railway producing massive disruption to passengers. Rightly, passengers feel poorly done by when that happens. For example, huge anxieties were expressed and there were great swathes of public complaints some weeks ago after a railside fire put the Paddington line out of action. Such events occur. I hear what the noble Lord says about accidents not happening elsewhere, but I believe that in some systems they do.
Lord Faulkner of Worcester: My Lords, does my noble friend agree that while everyone has a right to expect the railway to operate as safely as possible, we are in danger of adopting double standards when we treat railways so differently from highways? Is there a proposal, for example, for the rules on bi-directional working on our railways to be applied to contra-flows on motorways?
Lord Davies of Oldham: My Lords, that is perhaps a little adrift of the Question. I believe that the only view to which we would all subscribe in this House is that we expect vastly higher standards on the railways than those we have been able to achieve on the roads, and we intend to keep it that way.

Combined Heat and Power
3 p.m.
Lord Ezraasked Her Majesty's Government:
What prospect there is of achieving their objective of 10 gigawatts of combined heat and power (CHP) by 2010 as set out in the energy White Paper (Cm 5761).
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the measures to support combined heat and power announced in the energy White Paper, when taken together with the support measures previously introduced by the Government, can significantly help CHP. Although challenging, the target to which the noble Lord referred is achievable with sustained effort on the part of both the private and public sectors.
Lord Ezra: My Lords, I thank the Minister for that Answer and declare an interest in the promotion of small-scale generation of electricity. Does he agree that combined heat and power achieves efficiencies of up to 90 per cent compared with 40 to 50 per cent for a conventional power station, and that CHP has so far saved 4 million tonnes of carbon emissions in the atmosphere compared with conventional generation? However, does the Minister also agree that market conditions have meant a substantial slowdown in the

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creation of new CHP capacity? For example, in 2001, only 38 megawatts of new capacity were brought into effect compared with 800 megawatts in the previous year. In those circumstances, is not some major new initiative required in order to achieve the Government's objectives?
Lord Whitty: My Lords, the Government are well aware of and committed to the energy efficiency advantages of CHP. The noble Lord is right; the market conditions reflected in the relative prices of gas and electricity have reduced the market signals for the choice of CHP in a number of installations. However, the changes which the Government have brought about, both in the CHP draft strategy which we shall finalise later this year and in the energy White Paper, will help to turn that position, as will the changes in the new electricity trading arrangements (N ETA) regulations, which in part previously hindered the adoption of CHP in certain circumstances. A number of support measures are now in place to get us back on trend to achieve the target.
Lord Dixon-Smith: My Lords, the reality is that the new trading arrangements have successfully reduced the price of electricity by 40 per cent at the wholesale level and have been very beneficial for consumers. However, as the noble Lord, Lord Ezra, said, they have had a dramatic effect on investment. What positive steps will be taken by the Government to change things? Unless something is done now, the electricity generating industry will be frozen in its old-time, inefficient and environmentally unfriendly framework. The opportunity will no longer exist for new investment to be made because it is uncompetitive and uneconomic.
Lord Whitty: My Lords, the noble Lord is correct in referring again to the changes in prices which have reduced the incentive for CHP. However, he is wrong to say that the Government are not already engaged in substantial support for that sector to offset those market signals. We have changed the climate change levy exemption and introduced enhanced capital allowances and a community heating programme of £50 million. As a result of the energy White Paper, power station consent applications will need to give full consideration to the CHP option. We have set a target for the Government estate for CHP. As I said, we have altered the NETA arrangements, which in some cases inhibited CHP adoption, and there are a number of other support measures.
I agree that hitherto we have not seen the market turn around. The success of these measures should come about over the next two or three years. As I said in my Answer, the target is challenging but we believe that we have the support measures in place to deliver it.
Lord Hunt of Chesterton: My Lords, are the Government building on the achievement of certain local authorities which have exploited CHP in combination with alternative energy sources
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significantly to reduce their overall energy consumption? Are the Government ensuring that the National Grid is more competitive in integrating those initiatives into the national electricity system?
Lord Whitty: Yes, my Lords; a number of local authorities on both a medium and small scale have positively considered and begun to introduce CHP schemes, some of which are based on renewable energy sources. I commend them for doing that and recommend other local authorities so to do. As regards the National Grid, this relates back to the initial position under the NETA arrangements of Ofgem, which have now been substantially modified, partly in order to be less detrimental to the adoption of CHP. That will change the balance and the cost of CHP feeding into the National Grid.
Lord Jenkin of Roding: My Lords, what are the Government doing to implement the recommendations of the Carbon Trust, which is one of the Government's instruments, to try to achieve a low-carbon economy by encouraging the next generation of CHP technology, which, as the Carbon Trust states, offers potential for even better performance, lower costs and lower carbon emissions? What are the Government doing to encourage that?
Lord Whitty: My Lords, there are two dimensions to that. The first is to support the adoption of medium and relatively large-scale CHP through the various measures to which I referred. The second relates to micro-CHP and its potential contribution to the domestic and small commercial sector. The Government are at present much engaged in getting type approval adopted and in encouraging the sector to develop substantially in a way that can be incorporated into the next stage of building regulations, to encourage micro-CHP contribution to reducing what is still a burgeoning level of energy use within the domestic sector. So both parts of the next generation of technology are covered by government support.
The Countess of Mar: My Lords, can the Minister tell the House how many municipal and privately-owned waste incinerators incorporate combined heat and power technology and how many are operational in the United Kingdom?
Lord Whitty: My Lords, I regret that off the top of my head I cannot provide an answer for the noble Countess. I suspect that relatively few such facilities are municipally owned. In view of international comparisons, this is certainly an area in which we need to do substantially better.
Lord Avebury: My Lords, has there been greater investment in CHP as a consequence of this extension of the CCL exemption to that sector in April? Can the Minister tell the House what is meant by "good quality CHP" in that connection?
Lord Whitty: My Lords, there is a very complex definition of good quality CHP, which I am happy to

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provide to the noble Lord. The change has only just been brought about, since April. Therefore, I cannot say what effect that change in tax treatment has yet achieved. Clearly, at present there is a low level of take-up of new CHP, but all these measures are designed to encourage future planning decisions and commissioning in favour of CHP over the next two to three years.

Freedom of Information Act: 2000: Implementation
3.8 p.m.
Lord McNallyasked Her Majesty's Government:
Which Minister is now responsible for implementing the Freedom of Information Act 2000 and what progress has been made in preparing for its implementation.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I am responsible for the implementation of the Freedom of Information Act, working to my noble and learned friend Lord Falconer and Ministers in other departments.
We are making good progress in implementing the Act. Publication schemes approved by the Information Commissioner were adopted and published by all government departments, Parliament and the National Assembly for Wales on 30th November 2002. Schemes for all but a few local authorities and NDPBs came into effect in February this year. Publication schemes come into force today for police forces, the Crown Prosecution Service, the Serious Fraud Office and the Armed Forces.
Lord McNally: My Lords, does the Minister remember those heady days of 1997 when the noble Lord, Lord Clark of Windermere, was in charge of a radical White Paper on freedom of information; a paper so radical that it cost him his job? Since then freedom of information has gone from the Home Office to the Cabinet Office to the Lord Chancellor's Department and now to the Department for Constitutional Affairs.
Is not part of the problem that rather than wanting to destroy the culture of secrecy in Whitehall, the Government are now a fully paid-up member of that culture? Would it not be a good idea to ask the First Civil Service Commissioner to run her eve over these preparations to see whether they are as radical as those introduced by countries such as Ireland, Canada and Australia, which have really tried to bring about change, to see whether that will happen here?
Lord Filkin: My Lords, the noble Lord is unduly pessimistic about both the strength of the legislation and our commitment to implement it in ways that deliver real benefits to the public in improvements to public services and a strengthening relationship between government and the public. This summer I
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shall review the preparedness of government and other public bodies for implementation. As part of that process of review, I shall be meeting the Information Commissioner and discussing with the advisory committee, which has on it some of our strongest advisers and challengers, its views on the legislation. We shall put before Parliament in November, as we have done in previous years, a report on our preparedness. We are committed to making this Act work effectively and it will be done.
Lord Campbell of Croy: My Lords, are government departments also ready, when full implementation of the Act is carried out, to continue to protect secret information, such as the particulars of MI5 and MI6, which are important to the national security of our country?
Lord Filkin: My Lords, those are absolutely proper questions. In both cases we wish civil servants to be well organised and prepared to comply positively and effectively with the responsibilities that the Act gives them, while also ensuring that the exemptions that Parliament has given in the legislation, including of course the importance of protecting secrecy, are adequately protected. Those will be some of the questions that I shall be addressing during the summer with my officials and with other government departments in the run-up to the publication of the report in November.
Lord McNally: My Lords, perhaps the Minister can clarify this issue. When the Act is fully operational, if one public servant—say, a director of communications—made a complaint to another public body so that there was, in his own words, "A dossier that thick of complaints", would those complaints and the replies to them enter the public domain? If so, would it not be a lot healthier if that happened now?
Lord Filkin: My Lords, it is difficult without a fertile imagination to understand exactly to which hypothetical example the noble Lord might be referring. Nevertheless, I shall apply my brain to that hypothesis and see whether I can add anything further on subsequent reflections.
Baroness Gardner of Parkes: My Lords, who will bear the costs of obtaining the information? For example, when hospitals are obliged to release records, they are allowed to charge the person who asks for the information. What will be the position if one asks for information?
Lord Filkin: My Lords, there are two kinds of information. In my previous answer I referred to the information that public bodies themselves are meant proactively to publish on their websites. It is important that they are vigorous in doing so, which is what the Information Commissioner is reviewing. Clearly, accessing that information will be free.

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With regard to specific requests—provisions for which commence in January 2005, 11 months early—there will be some charges for those, but the amount will be no more than 10 per cent, with a capped figure to that. So those requesting the information will not bear the full cost, nor should they.
Lord Taylor of Blackburn: My Lords, will the Minister repeat the last part of his answer? Did he say the provisions would come in 11 months early?
Lord Filkin: My Lords, indeed so. I said, January 2005—11 months early.

Criminal Justice Bill
3.15 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Extension of powers to stop and search]:
Baroness Anelay of St Johnsmoved Amendment No. 1:
Page 1, line 10, after "property)" insert "insofar as they are offences under that section of a type that is specified for the purposes of this section by the Secretary of State in an order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament"
The noble Baroness said: Amendment No. 1 is a probing amendment. It is one of that merry band of amendments that has been hidden away in Grand Committee for half a dozen days on the Extradition Bill. I must say that it is marvellous to say that this is a "probing amendment" and really mean it.
Clause 1 of this not inconsiderable Bill of 307 clauses extends the powers available to police officers by allowing them to conduct stop-and-search operations on persons who are carrying articles which are either made, adapted or intended for use in committing offences of criminal damage.
The relevant offences are set out in Section 1(8) of PACE. At present they are burglary, theft, taking a motor vehicle without consent and obtaining property by deception. Clause 1 would add "criminal damage" to that list. The Government's stated purpose in adding that offence is to allow officers to search people for, and to seize, cans of spray paint used by so-called graffiti artists.
I shall not rehearse the points made in another place about whether a can of spray paint is said to be "made or adapted for" the purpose of painting graffiti; I suspect, as did some of my honourable friends in
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another place, that it is not. However, whatever one thinks about that issue, it is clear that a can of spray paint would come under the second limb of Section 1(7)(b) of PACE; namely, that it could be intended for use in committing an act of criminal damage.
The question for officers implementing these new powers would be not whether the person was carrying a can of spray paint, but what was his intention when carrying it. That is not an easy matter for them to decide. My amendment is simply to ask the Minister what guidance will be given to officers about intention in these circumstances. How are they to decide whether a person carrying a can of spray paint intends to use it to commit an act of criminal damage? Will the existing standards in relation to prohibited articles simply be applied to spray cans? Or will there be more specific guidance given on the new kinds of situation in which officers will be able to stop and search?
These matters were debated at some length in another place on 17th December last year. It is a matter of reflection as to how long the Bill has taken to reach this Chamber. A huge number of extra clauses have been inserted by the Government along the way. There were debates then as to whether a person could be stopped and searched if he was carrying a copy of Archbold, which it was accepted could not be used to commit an act of criminal damage in certain circumstances. The Minister smiles. She will have used copies of Archbold in very legal circumstances throughout her distinguished career. Mine stays static on my desk: it is too heavy to lift.
I shall not repeat those arguments, but they serve to illustrate the next issue that I raise on the amendment. In paragraph 94 of the Explanatory Notes the Government state that Clause 1 is needed because it gives officers the power to stop and search.
"where they have reasonable suspicion that a person is carrying, for example, a paint spray can which they intend to use in producing graffiti".
The words "for example" are the important ones. They signify that the amendment made by the clause to the Police and Criminal Evidence Act 1984 is not drawn narrowly so as to relate only to the issue of graffiti and spray painting. The clause is not limited but refers to all offences of criminal damage.
The Government have, perhaps deliberately, drafted Clause 1 very widely. We say that they are right to want to give the police the powers they need to tackle the scourge of graffiti. However, because Clause 1 goes so much wider, further explanation by the Government is needed.
My amendment seeks to elicit further information from the Government by restricting the scope of the new power only to articles which relate to those kinds of criminal damage which are specified by order by the Secretary of State. I appreciate that the drafting of my amendment is not perfect. It is not intended to be; it is merely a probing amendment to seek the Government's wisdom on the clause, particularly

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reflecting their further thoughts in the seven months since the issue was debated in another place. I beg to move.
Baroness Harris of Richmond: I declare my interest. I shall play a part in the Bill as a former chair of a police authority and also as a deputy chair of the Association of Police Authorities.
The clause is supported strongly by the police. They feel that the lack of such a power in the past has prevented their stopping such anti-social behaviour. Neighbourhoods can be blighted by such a visible and often highly offensive mess. So long as the police use those powers appropriately and proportionately—where they reasonably suspect someone of carrying an article to commit criminal damage—we on these Benches can support the amendment.
Lord Renton: In the past 50 years, crime seems to have become even more sophisticated than it used to be. Besides using fast motor cars, criminals now use various other modern inventions to assist them in the pursuit of crime. It is essential that the power of the police to arrest be restricted as little as possible. If the amendment had gone even further, I would have supported it gladly. My noble friend Lady Anelay has made a case that the Government should take very seriously.
The Lord Bishop of Worcester: I wish to speak on the amendment, as I am the independent chairman of the chief officer group concerned with race issues in the criminal and civil justice system in West Mercia. Without precise directions, the opportunities for perceptions and realities of discrimination to occur become much greater. Much effort has had to be expended in the post-Stephen Lawrence inquiry environment to check that such abuses do not occur. Therefore, this probing amendment asking the precise directions gives us the possibility of taking precautionary action against very damaging allegations that stop and search, in particular, are prone to bring about.
Lord Dholakia: I am delighted by the comments made by the right reverend Prelate on stop and search. We support the amendment. The clause extends stop-and-search powers and amends the PACE Act 1984 to include the offences under Section 1 of the Criminal Damage Act 1971.
We agree that the powers are reasonable in that there should be reasonable suspicion—there is no difficulty with that—but we are concerned about how they are used. Stop and search, and how those powers are used, is an area that creates very adversarial relationships between people from ethnic minorities and the police. Only a few years ago, 40 per cent of people stopped and searched in London were from an ethnic minority, predominantly black. At one time, 25 per cent of those stopped and searched nationally were from minorities. That is a very high proportion.
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Since then we have seen changes in policing methods, but we have still not seen intelligence-based stop and search. One must sometimes wake up to some areas of black settlement in this country to see how young people feel harassed in how they are stopped and searched.
Putting those arguments to one side, the point remains that if powers of this nature are extended, we wish to ensure that such a statutory instrument order is subject to the resolution of both Houses of Parliament. For that reason, we would certainly support the amendment.
Lord Bassam of Brighton: I am very grateful to the noble Baroness, Lady Anelay, for tabling the amendment. I am struck, in particular, by the fact that all noble Lords who supported the amendment—which, as the noble Baroness said, is restrictive—also support the clause, which generally widens stop-and-search powers. But I can understand the nervousness. I listened carefully to the noble Lord, Lord Dholakia, and the right reverend Prelate, who referred to "suspicions" that exist about stop and search. We know that there is a long history, particularly as regards the ethnic dimension, and that for a long time there has been a view that there is over-representation of black and ethnic minorities among those who have become subject to stop-and-search powers. I understand the nervousness, so I can see the value of using the opportunity in Committee to probe the intent behind the clause.
We seek to ensure that we have flexibility in how this important legislation and set of powers operate. It is universally agreed that property damage, graffiti on premises and walls, damage to motor cars and all such incidents are extraordinarily irritating, costly, and debasing and degrading to an environment. For that reason, there has been widespread support for the extension of stop-and-search powers to this area of criminal damage. We see no good reason to create or support a route to limit or restrict that extended power. The noble Baroness said that that was not the real intent behind her amendment but that it was to seek further reflection from the Government on how we see the power working.
If a police officer has a reasonable ground to suspect that he will find an article made, adapted or intended for use in causing any form of criminal damage, it seems entirely reasonable to allow him the power to stop and search the relevant person. As I said, a key focus of our proposal is to attack the growing and very serious problem of graffiti. However, we must bear in mind that there are many other kinds of wilful damage to property where police would benefit from stronger powers to deal with the perpetrators.
Careful safeguards have been put in place for the use of stop-and-search powers—the noble Lord, Lord Dholakia, referred to them. They are contained in PACE and the relevant code of practice, Code A, which is issued under the legislation. We are trying to ensure that it is not just spray paint cans about which the police can be concerned. Property can be defaced and damaged by marker pens, etching

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implements and other items that scratch and deface. Like many other Members of the Committee, when I travel to work by train I find it difficult to see through carriage windows because they have been scratched and damaged so that only a blurred image is visible. Sometimes, early in the morning or late at night, I look through the window rather bleary-eyed, but a lot of damage is done to trains and other public property in the way that I have described. There are other forms of criminal damage: spraying or scratching windows, damaging cars, etching on bus timetables and such activities. We want to be able to capture such activity with this offence.
The noble Baroness asked whether guidance would be issued. Guidance will be issued to the police. As the noble Baroness, Lady Harris, probably knows, the issue is already being discussed with the police authorities, police representatives and the Association of Police Authorities. There is recognition of the value of introducing the new and wider power, but guidance will be very carefully framed so the police use it appropriately. I hope that that has given sufficient comfort to those who supported the amendment.
I can well understand noble Lords' nervousness about any widening of stop-and-search powers. I have campaigned against such changes in the past. But, with this particular offence and the need to do more about graffiti in its many manifestations, the extension of stop-and-search powers is more than justified. I hope that, with those comments, the noble Baroness will feel able to withdraw her amendment.
Lord Elton: Although I agree in principle with the proposal, which is necessary, I wish to utter a word of caution. Stop and search is an area of extraordinary sensitivity, particularly in areas of mixed ethnic population. Extending the quarry of the search virtually to cover such items as felt-tip pens means that an officer can justify almost any stop and search by having found an article that in the possession of most people would be perfectly innocent. I hope, therefore, that the guidelines will be updated to take account of that, and that chief constables will be particularly aware of the sensitivities and be closely attentive to the conduct of their constables in such areas. This is exactly the sort of thing that could spark considerable civil unrest. One reason why PACE was introduced was in response to that danger, and, as I was the Minister who took the legislation through, I say that with feeling.
3.30 p.m.
Baroness Anelay of St Johns: I thank all noble Lords who have contributed to this short debate and I mark well the words of my noble friend Lord Elton, who, as he said, took through the PACE provisions in the first instance. This is, indeed, a sensitive matter. The right reverend Prelate the Bishop of Worcester was right to direct attention to the importance of having precise directions in areas of particular sensitivity.
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I am encouraged by the Minister's response saying that there will be guidance and that it will be carefully framed. It will have to be to make the provision work flexibly and to gain the respect of people who will be stopped and searched ever more increasingly under these provisions.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Warrants to enter and search]:
Baroness Anelay of St Johnsmoved Amendment No. 2:
Page 2, line 1, leave out "company" and insert "presence"
The noble Baroness said: With the leave of the Committee, I shall speak also to Amendments Nos. 3, 4 and 5, all of which are probing amendments.
Clause 2 of the Bill increases the powers of persons who accompany constables executing search warrants. The clause gives such people the same powers as the constable executing the warrant provided that the person is,
"in the company, and under the supervision, of a constable".
Paragraph 98 of the Explanatory Notes tells us:
"For example, it will often be necessary for someone who is expert in computing or financial matters to assist a constable in searching premises.… This provision enables such experts to take an active role in carrying out searches and in seizing material, rather than being present in a merely advisory or clerical capacity ".
That is a helpful explanation, and I am sure that the Government are right to seek to expand the role of such experts. In recent months, we will all have seen on the television pictures of police raiding premises where they anticipate finding computers upon which a vast number of pornographic images of children are held. Naturally, the police must have computer experts with them to recover material that the person owning the computer may have thought had been deleted. I am sure that the Government are right to try to deal with that matter.
The difficulty is that a number of questions flow from such a new active role for experts, and I want to try and clear those up. Proposed new subsection 2(B) specifies that the person must be,
"in the company, and under the supervision, of a constable".
Amendments Nos. 2 and 3 would alter those phrases to:
"in the presence and under the direct supervision of".
It looks as if I am pulling at straws, but I am not. The amendments probe the circumstances in which experts and other persons would be able to conduct searches on their own. I am picturing circumstances in which a constable goes into a house to search for a computer accompanied by one or two experts and they look around the house. If the constable is in the living room and the experts are in the study, does that still mean that the person who is with the constable is in their company and under their supervision? I am trying to flesh out that question. Do constables actually have to be in direct sight of and contact with the person for them to be considered to be in their company and under their supervision?
If that is not the case, the person who is accompanying the constable could be given the same sort of leeway as that given to the constable. The purpose of the amendment is to flesh out what happens if the provision is accepted and the search is going ahead I beg to move.
Baroness Harris of Richmond: In sympathy with the noble Baroness, Lady Anelay of St Johns, I would like the same issue clarified. Will the Minister clarify beyond doubt that a constable would have to be on the premises with the authorised person when the search was being conducted? If that is the case, we on these Benches are content to support the clause. It seems sensible to allow the authorised person, who is probably a specialist or expert, to search for suspected records or whatever it is they are looking for. They will know best. With that proviso, I support the amendments.
Baroness Carnegy of Lour: I support the amendment. Speaking as a completely lay person, the arrival of a police officer in one's house accompanied by someone else is more unnerving than the arrival of a police officer on his own. The behaviour of the person who accompanies the police officer must be impeccable. Such people have the same powers as a police officer and must therefore know precisely what can and cannot he done when a house is being searched. Flow will such people be briefed? Will they know exactly what their powers are on paper? Will they have a description of what they can do?
When people become absorbed in searching a computer, it is important to know how far they can go. It would be very frightening if one's computer was suspected of holding pornographic pictures, especially if it did not. I am imagining such a scene. Will the Minister tell us how such a person will know exactly what he or she can do?
Lord Dholakia: This clause is literally an extension of Clause 1. It raises some important issues identified by my noble friend Lady Harris and by the noble Baroness, Lady Anelay of St Johns.
The noble Lord, Lord Elton, was absolutely right to pinpoint the need to be sensitive about the powers that we invest, not only in the police, but in the people who accompany them. One simply has to look back in history to see what happened in Brixton and at Broadwater in relation to stop and search. Situations such as those must never be repeated.
I seek clarification about matters relating to the individuals accompanying the police when entering and searching. If such powers are given to the police, will they be subject to the Police and Criminal Evidence Act and the discipline identified in that Act? Will the person accompanying the police be subject to the same disciplinary code under PACE as the police officer? Would such a person be subject to the same independent police complaints authority machinery as the police officer involved? If not, we must be very
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careful not to grant these powers because there must be some accountability whether or not such people are with a police officer.
Lord Mayhew of Twysden: My noble friend Lady Carnegy of Lour and the noble Lord, Lord Dholakia, have each made an important point. My noble friend Lady Carnegy of Lour said that the arrival of one or more such persons would have an unnerving effect. It is proper that we look at the matter through the eyes of someone who is the unsuspecting and unwilling recipient of a visit. Of course, it is proper for the Government to develop a law to take account of technological advances. We all understand that, and the objectives are shared throughout this House. Equally, however, we must take care not to create what one might call 1984 powers. Under the clause as drafted, such people could enter a house with the powers of a constable, which, after all, are enormous, without even having to say who they are or to carry evidence of identity.
I wish to support, in particular, Amendment No. 5. which requires that such a person,
"shall be required to carry evidence of identity and to produce it to the occupier".
It is noteworthy that the clause does not confer the office of constable on such people, only the powers. Somebody who holds the office of a constable—the root and foundation of all a policeman's powers—must say who he is and show his identity, if required. I hope, therefore, that the Government will, at the least, accept Amendment No. 5. Without it, we would not keep a proper balance.
Baroness Howe of Idlicote: I support the amendments. It is worrying to have people entering houses, albeit with the authority of the police. I remember the number of complaints we had at the Broadcasting Standards Commission when people arrived with cameras, no doubt with the co-operation or permission of the police. It is a serious matter. We need to be reassured as to whether the powers in the Bill will extend to that category of person.
3.45 p.m.
Lord Bassam of Brighton: First, I thank the noble Baroness, Lady Anelay of St Johns, for the way she moved the amendment. Helpfully, she focused on practical examples. It is by considering practical examples that we will perhaps understand better how we intend the new power in the clause to operate. Some helpful and constructive comments were also made during our discussion. I shall go through each amendment in turn. I shall also make some additional points at the close. I think that I can satisfy Members of the Committee on the points they raised in this important short debate.
Amendment No. 2 would achieve an interesting change by using the term "presence" rather than "company". That gets us off to a good start in considering the collective impact of the amendments. The amendment would make little difference. Essentially, the two words amount to the same thing.

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I think that the noble Baroness understands that. It was a peg on which to hang the debate. That is understandable.
The words simply imply that the constable is on the relevant premises with the authorised civilian. The noble Baroness gave a useful example and asked whether it would be right for the constable to be in the hallway while the civilian was in the study. The answer is "Yes". It is OK under the clause. The constable does not have to be looking over the civilian's shoulder but must be on the premises.
In a sense, that brings us to Amendment No. 3. We take the view that it is right that civilians accompanying a constable to assist in exercising search and seizure powers under a warrant should be supervised by that constable in doing so. There will be supervision. The Bill also makes it clear that a civilian can exercise the relevant powers only in the company—the "presence", if you like—of the constable. Beyond that, there is no need of a further requirement for direct supervision. To be effective, the civilian will need some freedom of action, but he will always act under the general direction of the constable.
I accept that there is a balance to be struck. The example of the computer and the technical expertise that the civilian might have is useful. I am sure that we could extend the range of examples. The civilian will have that technical expertise. The constable may not, but he will appreciate and understand the importance of gaining access to data that the computer might hold, including, in particular, pornographic images and so on. That was a helpful way of looking at the situation.
I repeat that the civilian will always be under the general direction of the constable. The constable retains ultimate responsibility for ensuring that the warrant is properly executed. In part, that addresses the issue raised by the noble Lord, Lord Dholakia. The constable is subject to the PACE codes and to police disciplinary requirements and will have to ensure that the civilian conducts himself properly at all times. In general, the power would not work effectively if the constable had constantly to be looking over the shoulder of the civilian when, actually, he wanted the civilian to use his initiative and exercise his imagination in conducting what might be a very forensic search, particularly if computer records were being examined.
Amendment No. 4 would create a requirement for further written authority from a senior officer before somebody accompanying a constable in executing a warrant could exercise relevant search and seizure powers. That is not necessary. Such a person's participation would, in any event, have already been authorised by a judge or magistrate. That authority would have been given in the knowledge that it implied access to specific powers. Obtaining additional written authority from a chief inspector or other senior officer would add a further level of bureaucracy and might even contribute to delay. In many instances, speed will be of the essence. I am sure that Members of the
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Committee who have knowledge of the importance of speed in some police operations will understand why we make that observation.
The suggestion in Amendment No. 5 has already been accommodated in amendments to PACE code of practice B, made in response to a similar amendment tabled in Committee in another place. They cover the searching of premises and the seizure of property. The noble and learned Lord, Lord Mayhew of Twysden, was right to remind us of the importance of getting it right and not appearing draconian or 1984-ish.
Amendments to that code came into effect on 1st April. They require that any person accompanying a constable on a search of premises should carry proper identification for production on request. In addition, there is a requirement that the officer in charge of the operation or, specifically, in charge of the search will be required by the code to identify and introduce any such persons and briefly describe their role in the process. That goes a long way towards what I might want if I were feeling vulnerable and threatened by the presence of officers and civilian support staff in my home or my property. The fact that there is a requirement to explain why the person is there and is assisting in the search operation is reassuring. It means that people will get a clear explanation and will be able to understand why the search is being conducted in a particular way.
I think that I have covered all the points raised in the debate save one: would the support staff—the civilians—be fully briefed? They would have to be fully briefed on the nature of the operation. A warrant sets clear limits on what can be searched for and seized, and police officers will always provide thorough briefing. One further thought occurs to me. There will have to be a degree of training for support staff who are to exercise powers under the Bill. They will need to understand fully the import of what they are doing.
The noble Baroness, Lady Howe of Idlicote, raised the issue of complaints, as, I think, did the noble Lord, Lord Dholakia. The officer whom the civilian is accompanying is ultimately responsible and would, initially, face any disciplinary or complaints action as a consequence. Ultimately, the line of responsibility runs to the chief constable, and there is no change from the current position with regard to liability for civilians attending at the execution of a warrant. That liability is there, as it is. The Bill gives further powers to allow civilians to take action in assisting the search. There is that ultimate line of responsibility, and we believe that the current arrangements work satisfactorily. There will be that liability for civilians attending at the execution of a warrant.
Lord Dholakia: Will the individual assisting the police be subject to any discipline, and will the matter of discipline be the responsibility of the police accompanying the individual? If that is the case—the Minister said that from time to time the police are unable to keep an eye on what is going on—what will happen to the individual if he crosses the boundary of

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his particular responsibility, because there could be heated circumstances? Who will be responsible for the individual and what will be his or her accountability?
Lord Bassam of Brighton: When the noble Lord first spoke. he raised an important issue. As I said, we shall require civilians to have the flexibility to work without a constable constantly looking over their shoulder. They will need to use their initiative in helping and supporting the activity of searching premises for particular things. I understand the concerns of the noble Lord, but it must be remembered that the conditions of employment of civilians are very important in this regard. They must conform to proper procedures. They must conform to what is set out in their contract about what they can and cannot do. Subsequently, if they are found to be in breach of it, that is a serious disciplinary offence in itself. As I carefully explained, the line of accountability and responsibility is such that there remains that civil liability right up to the level of chief constable.
If the noble Lord is still unclear about how that will work, we shall ensure that by the time we reach Report it will be set out more clearly in writing how we see those disciplinary responsibilities working. It is an area of concern which we want to ensure we get right. Obviously, I shall share the correspondence with all Members of the Committee.
Lord Elton: I am glad that I shall be copied in, because I, too, have the same anxiety that the noble Lord. Lord Dholakia, expressed. In his reply, when the Minister brought before us the possibility of a civilian assistant crossing the grounds of propriety, he said that that would be a very serious disciplinary offence, but as the civilian is not within the disciplinary system, that does not seem to be more than a matter of interest. What we want to know is what would be the effect.
That was not actually the point which I wished to raise, but it is tangential to it. The picture in our minds is the searching of a small premises where the constable may be in the hall and the assistant may be in the study. But what if it is a factory on several floors? Surely, in that situation, the matter of carrying personal identification is important. Equally important for the assistant is the willingness and readiness to exhibit it, rather than throwing one's weight around and generally causing anxiety. It really is necessary for these people to be caught within a proper code of conduct which bites on them, as opposed to merely meeting with reproval if it does not succeed.
My final question is rather bigger. I understand new subsection (2A)(a), which reads,
"the execution of the warrant".
But why is it necessary for these people to have the power of seizure? Surely the constable can do the seizure. That would considerably limit the extension of power asked for under the Bill. Of course, the limitation of the extension of power is something on which we should be keen.
Lord Hylton: Before the Minister replies, I noticed that he said that the present arrangements worked
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satisfactorily. Will the Government consider what has happened and is liable to happen in deportation cases—whether involving convicted criminals, overstayers or illegal immigrants? There seems to be plenty of scope for official parties to go to the wrong address or person, perhaps mistaking or confusing their name. Out of this, not only can aggravation occur to individuals, but there can also be considerable repercussions for race relations in the area in question.
Lord Bassam of Brighton: I listened carefully to the noble Lord, Lord Elton. I understand his nervousness—in particular, given his comments when we discussed the earlier amendment. The noble Lord has practical experience of introducing legislation which for many people was very controversial. Back in 1984, when the Police and Criminal Evidence Act of which the codes were part, was introduced, there was great concern. There had been an earlier reliance on judges' orders and so forth, but the PACE code was considered to be a very big leap of faith. Those of us— including myself—who argued against PACE and the way in which it was going to work were wrong. It has done a great deal to protect the liberties of the individual. It set clear lines for the police for the operation of legislation. It has worked in the interests of the police and the policed.
We want to ensure that that important tradition continues. For that reason, any changes must be very carefully thought through—a view obviously supported and well appreciated. So, yes, this is an important extension. The noble Lord said that he could see an important way in which it could be constrained by taking away from civilians the power of seizure. However, we take the view that seizure powers exercised by civilians will be important because they give necessary operational flexibility. It may—it probably will—be exercised only in the following 'way. From time to time, a civilian individual will see something which he or she knows to be of relevance and significance to the investigation which is in hand, acquires—seizes—it and passes it to the constable saying, "Look, this is germane to our inquiry. It clearly is part of what we are after. Here it is. This is the documentation or disk that you will require for the furtherance of this investigation". Seizure will probably be in those terms in most instances. I hope that that gives a reasonable example of how we see this working.
I have nothing further I can usefully add to the debate, which has been helpful. The reflections of the noble Lord, Lord Hylton, were helpful in that regard too.
Baroness Anelay of St Johns: I am grateful for the contributions of all Members of the Committee, which have drawn out some of the remaining concerns which we will need to resolve between now and Report. I am also grateful to the Minister for saying that he will write in detail to Members of the Committee with regard to the important matter raised by the noble Lord, Lord Dholakia; that is, the disciplinary system to which civilians should be subject. It is important that that is considered before the next stage.

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I was also struck that after the Minister spoke about civilians needing some freedom of action, he said that they would be under general direction; that they would want to use their initiative; and that it would be important for them to exercise their imagination. All of that made me think more carefully about the points made by my noble friend Lady Carnegy about the importance of guidance and training. I am grateful to the Minister for saying that he will give further thought to the issue of training. I hope that he will consider that between now and Report. He might include something on the matter in his letter and consult the police as to how that might be approached.
Lord Bassam of Brighton: I am grateful to the noble Baroness for giving way. Yes, that is something which should be spelt out more clearly. We want to get this right. We are grateful for the support for how the clause will be exercised. I am particularly appreciative of the understanding of the noble Baroness of what we are trying to achieve and what it will add to the way in which police investigations are carried out. I am more than happy to give a commitment to cover issues relating not just to civilian discipline but to training.
4 p.m.
Baroness Anelay of St Johns: I welcome that commitment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 to 5 not moved.]
Clause 2 agreed to.
The Minister of State, Home Office (Baroness Scotland of Asthal)moved Amendment No. 6:
After Clause 2, insert the following new clause—
"ARRESTABLE OFFENCES

(1) Schedule 1A to the 1984 Act (specific offences which are arrestable offences) is amended as follows.

(2) After paragraph 2 there is inserted—

"Criminal Justice Act 1925
2A An offence under section 36 of the Criminal Justice Act 1925 (untrue statement for procuring a passport)."
(3) After paragraph 6 there is inserted—
"Misuse of Drugs Act 1971
6A An offence under section 5(2) of the Misuse of Drugs Act 1971 (having possession of a controlled drug) in respect of a class C drug (within the meaning of that Act)."

(4) After paragraph 17 there is inserted—

"17A An offence under section 174 of the Road Traffic Act 1988 (false statements and withholding material information).""
The noble Baroness said: The proposed new clause would amend Schedule 1 A to the Police and Criminal Evidence Act 1984 so that fraudulently obtaining a passport or a driving licence and possession of a class C drug were arrestable offences.
Turning first to the provisions on identity fraud, which are contained in subsections (2) and (4) of the new clause, we know that organised criminals and terrorists rely on documents such as passports and driving licences in order to operate and access financial
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services and that obtaining these documents is a gateway to numerous other offences. At present, anyone suspected of such offences would be summonsed to attend court at a later date. Regrettably, it is our experience that terrorists and organised criminals are unlikely to respond to a summons. If we are to target these dangerous groups we need to give the police the power to do so by making these offences arrestable.
In addition to terrorism, ID fraud—which is often manifested in the use of false passports and driving licences—is an enabler for many offences and has a significant role in illegal immigration and organised crime. Under the current law the police are unable to take immediate action against those suspected of fraudulently obtaining passports or driving licences. The provision contained in the new clause strengthens the law so that the police will be able to arrest such people, who are then less likely to disappear before they are due to appear in court or to destroy the evidence on which the police may later seek to rely. By making the offence arrestable, the police will also be able to search for evidence related to that or another arrestable offence which is connected with or similar to that offence.
Subsection (3) of the proposed new clause replicates exactly the position currently contained in Clause 11. The two provisions have been put together for drafting reasons. It makes sense that provisions relating to the conferring of a new power of arrest should be in a single place in the Bill.
The subsection extends the application of Section 24 of PACE to provide the police with the power of summary arrest in respect of offences of possession of those drugs which are classified as class C drugs under the Misuse of Drugs Act 1971. It achieves this by adding such offences to the specific offences listed as arrestable in Schedule 1A to PACE.
In July last year my right honourable friend the Home Secretary announced his intention to bring forward proposals to Parliament to reclassify cannabis from a Class B to a class C drug under the Misuse of Drugs Act. In conjunction with this he also announced that the police would continue to be able to arrest persons for offences of possession of cannabis where public order is threatened. Currently, the possession of cannabis is an arrestable offence under Section 24(1) of PACE by virtue of the fact that it carries a sentence of up to five years' imprisonment. Reclassification, however, would mean that possession of cannabis would carry a maximum penalty of two years' imprisonment and therefore it would no longer be an arrestable offence under Section 24(1). In order to preserve the power of arrest it is necessary to make specific legislative provision to add possession of a class C drug to the list of specific arrestable offences contained in Schedule 1A to PACE. The list was formerly contained in Section 24(2) of PACE.
By retaining the power of arrest we are not only maintaining the status quo, there will be a presumption against arrest except where specific factors exist—for example, where public order is at.

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risk; where a person deliberately blows smoke into the face of a police officer; where a person repeatedly flouts the law; or where children are put at risk—for instance, where a person is in possession of cannabis near a school.
Under guidance to police forces which the Association of Chief Police Officers is developing, the power of arrest should be used only in such exceptional circumstances. This will greatly assist the police to keep effective control of our streets. It is proposed that ACPO will publish those guidelines on its website. In the vast majority of cases the police will issue a warning on the street and confiscate the drug. Significant resources should therefore be saved which can be redeployed towards fighting more serious drug crime.
Subsection (3) of the new clause should apply also to offences of possession of class C drugs—that is, anabolic steroids and the benzodiazepines. It would be inconsistent with the principles underlying the three-tier classification structure in the Misuse of Drugs Act to have specific laws which relate only to cannabis. In practice, however, we envisage very few cases where the power of arrest will be used in relation to other class C drugs, but it will be available in individual cases where there are specific factors of the kind I have referred to in respect of cannabis.
I know that amendments have been tabled in relation to the proposed new clause. My explanation will probably suffice at this stage, but I shall be happy to respond to any points that may be made in support of other amendments. I beg to move.
Lord Hodgson of Astley Abbottsmoved, as an amendment to Amendment No. 6, Amendment No. 7:
Line 12, leave out "a class C drug (within the meaning of that Act)" and insert "cannabis or cannabis resin"
The noble Lord said: Amendment No. 7 would amend the proposed new clause, which the Minister has clearly and helpfully explained. As she pointed out, as a result of Amendment No. 6, the Bill will be restructured—again— by the addition of a new clause extending the list of arrestable offences in PACE. As the Minister hinted in her opening remarks, we have some concerns about this, particularly in regard to subsection (3) and the relatively casual way in which the possession of any and all class C drugs is now to become an arrestable offence. We are not convinced that the Government have fully thought through the effects of this policy change.
Our amendment would limit the arrestable offences to possession of cannabis or cannabis resin and leave the legal position of all other class C drugs unchanged. For the sake of good order, in moving it I shall speak also to Amendments Nos. 40, 41 and 42, which would be relevant only if the Bill were to proceed in its unamended form. They are amendments to Clause 11—
"Power of arrest for possession of Class C drugs"—
and have exactly the same objectives as Amendment No. 7; that is, to restrict the power of arrest for possession of class C drugs to cannabis or cannabis resin.
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As the Minister pointed out, in July 2002 the Government announced their intention to implement a long-stated policy objective of downgrading cannabis to a class C drug. This will bring cannabis into a category containing 117 other drugs. For the most part they are fairly obscure pharmaceuticals but, nevertheless, have vital medical properties for sufferers of certain diseases such as epilepsy, as the Minister explained.
The Government's thinking on the issue of cannabis appears, outwardly at least, to be rather muddled. No doubt the Minister will enlighten the Committee when she responds. The proposal to downgrade cannabis to a class C drug has, rightly or wrongly, been widely interpreted as an acceptance by the Government of the use of cannabis for social and recreational purposes. It is fair to say that that interpretation has been underlined by various government statements suggesting that the police should not waste their time targeting cannabis and their endorsement of cannabis acceptance policies by the police.
However, under the Bill, the Government appear to be turning 180 degrees. Having at first proposed an apparent relaxation by moving cannabis to class C, they are now using the Bill not only to retain possession of cannabis as an arrestable offence but, for good measure, to add 117 other drugs to the arrestable list at the same time.
Further, when read in conjunction with Schedule 24(2), which increases the maximum sentence for dealing in cannabis from five years to 14 years, the policy appears still further confused. The drug's seriousness is apparently to be downgraded, but punishments for dealers are becoming harsher—a mixed and confused message if ever there was one. Demand is more than likely to increase as users become aware of cannabis having been reclassified as a less pernicious drug. Accordingly, supply will increase, and if the Government think that their provisions in Schedule 24(2) will hold back this tide, I can only refer them to the well known example of King Canute.
If the Bill proceeds unamended, it will not be only on the general issue that people are confused. Many of us have had a very helpful letter from the noble Lord, Lord Adebowale, in his capacity as chief executive of Turning Point. He says:
"The most disheartening aspect of these contradictory proposals in the law is that changes in patterns of supply and use of cannabis cannot now be easily analysed. No one will be able to say whether changes have come about because of the reclassification or because of the increase in penalties for possession".
One aspect of the drugs issue on which we can all surely agree is that it is bedevilled on every side by often unfounded assertions. We need hard information on this difficult topic, and these proposed changes by the Government will not help us achieve that. A further problem relates to the fact that in retaining the power of arrest for possession of cannabis, the Government have swept up possession of all class C drugs into an arrestable offence. In consequence, 117 other drugs are to be treated on an equal par with cannabis.

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As observed in Committee in the other place by Simon Hughes on 7th January:
"there were no complaints in the 1970s, 1980s or 1990s about law enforcement as a result of the fact that possession of class C drugs was not an arrestable offence".—[Official Report, Commons Standing Committee B, 7/1/03; col. 128.]
So if there has been no cause for concern over it not being an arrestable offence for the past 30 years, why should there be such a concern now? Why, potentially, take up police time by extending their powers in an area where there appears to have been no problem over the past 30 years?
These 100 or so other drugs include many medicinal drugs. The Minister referred to benzodiazepines, taken by epileptics. While it is understood that possession of drugs with a prescription is not an arrestable offence, is this legally true, as opposed to being practically true? If it is true, does that mean that epileptics will in future have to carry their prescriptions around with them and, if they do not, might they be arrested? That seems strange. A distinction should be made and if cannabis is soon to be included in the class C category, the importance of our amendments is underlined.
In the Committee stage in the other place, the Minister, Hilary Benn, stated that if a class C drug was in someone's possession because it had been obtained on a doctor's prescription, that would not be contrary to the Misuse of Drugs Act 1971. The police would not be able to arrest for possession unless the drug had not been prescribed. The Minister said in Committee on 7th January that the drugs which are legal with prescription are,
"put in a separate category from cannabis in what will now be the class C category of drugs".—[Official Report, Commons Standing Committee B, 7/1/03; col. 139.]
The problem is that at the moment, I can see no provision in the Bill that separates existing class C drugs from cannabis—hence, the further need for our amendments.
I fear that the Government are in a muddle over their attitudes and policy towards cannabis. Unamended, the Bill will make the muddle worse because it will sweep 117 other class C drugs into the muddle. It is no good the Minister saying that the police will not arrest for possession non-cannabis class C drugs. If they do not need to arrest, why change the law to give them these new powers?
If the Government are determined to pursue their mixed cannabis message, while it is regrettable, then so be it, but let their message be mixed over cannabis alone and not over all class C drugs. I beg to move.
4.15 p.m.
Baroness Walmsley: Since we have this amendment before us, part of which is the replacement for Clause 11, I hope I will be permitted to put the point of view of these Benches on the way in which the Bill addresses possession of class C drugs, particularly cannabis. In the light of this, I have, along with the Minister, given notice of my intention to oppose the Question that Clause 11 stand part of the Bill.
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The main reason for our objection to Clause 11 and Amendment No. 6 is not the measures about passports and road traffic offences, which we of course support. No, it is subsection (3) relating to cannabis and other class C drugs. The Government's approach in the Bill to cannabis departs substantially from that recommended by the Home Affairs Select Committee in another place and the Advisory Council for the Misuse of Drugs.
In his helpful letter, to which the noble Lord, Lord Hodgson, referred, the noble Lord, Lord Adebowale, who regrets he cannot be in his place this afternoon, gives Turning Point's point of view. He reminds us that the rationale behind the Home Affairs Select Committee's recommendation for reclassification of cannabis was that cannabis needed to be separated from the markets of drugs that cause the most harm. He goes on to say:
"But I fear that the separation of markets will be undermined by the mixed approach the Government has decided on. The separation needs to be at the point of supply, not at the point of consumption".
The Government pride themselves on taking the advice of scientists and experts. Indeed, their whole approach to controversial issues such as how to tackle foot and mouth disease, CJD and SARS, and how to deal with the stem cell and GM crop issues, is based on their claim that they devise policy in the light of the facts as interpreted by experts. In this case, they are ignoring the experts.
Following the reclassification of cannabis from class B to class C, the Government are now in danger of diluting the benefits of that through this legislation. Neither of the two eminent committees that recommended reclassification seriously considered that the Government might retain the power of arrest and greatly increase the penalties for possession of cannabis. While I am aware that the Government have claimed that these powers will be used only when there is a so-called aggravating factor, the powers themselves are wide open to abuse.
The Minister said that arrest is likely to be the exception rather than the rule. This seems a very strange way in which to legislate. If the reason why the Government are proposing changes to arrestability and sentencing for cannabis possession is because they believe cannabis to be more harmful than other class C drugs, I wonder why they are reclassifying at all. If not, why the sudden need to toughen the law? There was never any suggestion before the reclassification that existing penalties for possession of class C drugs were too lenient.
On these Benches, we believe that although the use of cannabis is not without harm, the Government were right to reclassify it, to emphasise the difference between cannabis and other more harmful class B drugs. In addition, there is no evidence that such a move will lead to significant increased use. Given those facts, it is logical for us to oppose the introduction of new powers of arrest and increased maximum sentences.

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A major incidental advantage of reclassification is that it frees up police time to deal with the hard-drug dealers, who should be the target of our efforts. A major study on the policing of cannabis by the Joseph Rowntree Foundation in 2002 estimated the cost of enforcing the law on cannabis at £500 per case, or £38 million per year—half a per cent of the total police budget. Introducing the measures in this Bill with regard to arrest and sentencing could remove the advantage of all those savings which could be deployed to consolidate or regain public confidence in the police.
I should like to say a word about aggravating factors. Neither the Bill nor the accompanying notes spell out what the aggravating factors are. As the noble Baroness said, that will come in guidance for the police later in the year. In the light of that, I believe the Bill to be very short-sighted in the way in which it deals with cannabis. Arrest is probably never an appropriate response to the personal use of cannabis, regardless of the circumstances. DrugScope, which has looked at what is probably meant by aggravating factors, is concerned that the discretionary use of the power of arrest will create problems which will serve further to undermine the confidence of some sectors of the community in the police force and the criminal justice system.
Again, the noble Lord, Lord Adebowale, says in his letter:
"There is no compelling evidence that the arrest of people in possession of cannabis leads at all frequently to arrests for more serious offences. Indeed, an analysis of 30,000 custody records found that only 1 per cent of those charged with cannabis possession was later charged with more serious offences".
Therefore, possession of cannabis is not going to lead to other more serious offences.
I hope that the three-strike approach to cannabis possession will not be included in the guidelines. As for the possibility of a public-order aggravating factor, it is highly unlikely that it will be a major problem. Cannabis users rarely offend public order as alcohol abusers do—quite the opposite. In my small experience of cannabis users, they are normally so laid back that they are almost horizontal. Anyway, the police already have extensive powers to deal with breaches of public order, so I am puzzled as to why the provision is needed. There are very real dangers of alienating young people by arresting them for something that they know to be less harmful than tobacco and alcohol.
I am also concerned about the effects of the powers on those who obtain great relief from cannabis, many of whom are MS sufferers, who grow their own and may supply other sufferers. They have waited a long time for a licensed cannabis medicine, and may have to wait several months more. Their relief at the reclassification will have faded when they read the Bill. The possession of a large number of cannabis plants may be regarded as an aggravating factor by some police officers. Police discretion in the matter is dangerous. Many recreational cannabis users are young people who do not engage in any other criminal behaviour and who do not go on to use any other
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drugs. In the light of that fact, I am sure that we do not want to see them given a criminal record with which to start out in life.
A survey of police officers conducted by Tiggey, May et al found that three quarters of police officers felt that the present cannabis laws criminalised individuals who would not otherwise come to the attention of the police. Nearly half believe that the current arrangements damaged their relations with local communities. It seems absurd to destroy completely the potential benefits of reclassification by including the power of arrest and increased penalties in the Bill. The Runcimann report of 2000 concluded that,
"the present law on cannabis produces more harm than it prevents. It is very expensive of the time and resources of the criminal justice system and especially of the police. It inevitably bears more heavily on young people on the streets of inner cities, who are also more likely to be from minority ethnic communities, and as such is inimical to good police-community relations. It criminalises large numbers of otherwise law-abiding, mainly young people to the detriment of their futures".
Three years on from the Runcimann report, I see no reason to revise that verdict. If powers of arrest are introduced for possession of class C drugs, many of those harms will persist.
Lord Lloyd of Berwick: I support the amendment, but for my own part I would go further. The reclassification of cannabis as a class C drug was regarded by many as a move in the right direction. Why, therefore, are the Government changing tack so soon? The Minister says, by way of explanation, that the exercise of the new power will be subject to guidelines and, in any event, will be exercised only very occasionally. I do not, for my part, like that. If the power of arrest is to be there at all—although I am against that power for class C drugs—it ought to be spelt out in the Bill in which circumstances it can he used, and not left to guidance.
The Lord Bishop of Worcester: I hope that this is an appropriate moment at which to say that the whole new clause, and in particular the issues around class C drugs, is for me the focus of a major concern that will appear at a number of points throughout the Bill. I support many of the points made by previous speakers.
The clause, and its earlier subsections, activates a kind of post-September 11th anxiety level in the whole of society and builds upon it. It takes us into an arena where the most creative ways of dealing with criminal offences and offending behaviour generally are submerged under a rhetoric of toughness. The Chamber needs to consider carefully whether that rhetoric of toughness actually contributes to a rise in the level of crime.
If we add to the number of arrestable offences, we add to the number of the people arrested. It may be possible to justify this arrest, that arrest or the next arrest. It may be possible to justify, as the Minister did, particular additions to the list of arrestable offences on

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the grounds of experience. But at what point will we consider the incremental effect on the culture of arrestability in our society?
If we increase the number of offences, we increase the number of people arrested—otherwise, there is no point in doing it. If we increase the number of people arrested, we statistically increase the number of people wrongly arrested. If we increase the number of people wrongly arrested, we increase the number of people who are inducted into a criminal culture. I do not know at which specific point and in response to which specific clause the Chamber will rebel against that incremental culture. However, I hope that at some point it does. If it does not, under the guise of a rhetoric driven by articles in the popular press and so forth, we shall believe that we are reducing criminal activity and actually be sowing the seeds by which it is increased.
It is no coincidence that the nub of the debate on the clause relates to cannabis. As other Members of the Committee have said, that is an area in which we can be sure that we shall increase the number of people whom we bring into touch with a criminal culture, and whom we label, arresting them sometimes correctly under the law and sometimes wrongfully. In that process, we shall not be reducing criminal activity—we shall be laying the grounds for its future increase. I beg noble Lords to consider very carefully in relation to each and every clause whether we should not have a presumption of not adding to the number of arrestable people and incarcerated people, all of which inhibits the possibility of rehabilitation and reducing criminal activity.
Lord Waddington: The new policy on cannabis was unveiled some months ago. My noble friend Lord Carlisle made a most spirited speech, pointing out the contradictions in the new policy and the absurdity of saying that possession of cannabis was really pretty unimportant and that the police should not waste their time on it, yet increasing the penalties for dealing in cannabis. Now we have confusion worse confounded. The Bill adds to the confusion by saying that cannabis is not all that dangerous, but that in spite of that fact, and despite the fact that we are downgrading it to class C, its possession should be an offence warranting arrest. That is pretty absurd.
I should have liked things to be left well alone. I do not subscribe to the view that cannabis is unimportant and not really all that dangerous. I have plenty of evidence of the fact that it is extremely dangerous. It is well acknowledged, for instance, that it could precipitate very serious mental illness. I do not subscribe to the nonsense of it being unimportant—but that is a different matter. The fact remains that there is no consistency whatever left in the Government's policy.
The absurdity of the position is best illustrated by the amendment tabled by my noble friend Lord Hodgson. There are a number of substances in class C, and the Government themselves acknowledge that cannabis is really rather different from the rest of them. Yet in the interests of consistency they are
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saying, "Because we, for our very strange reasons, think that cannabis possession should be an arrestable offence, we feel that it is now necessary to make anabolic steroid possession an arrestable offence". There is no sense whatever in that.
If the Government really think that there is a case for cannabis possession being an arrestable offence even though it has been downgraded to class C, then it should be dealt with on its own. On that I agree with what has been said. We certainly should not go along with the view that it really does not matter if a whole lot of other offences are created or a whole lot of other circumstances are recognised where arrest would be proper.
4.30 p.m.
Lord Renton: I confess that I am not as knowledgeable of drugs of an illegal kind as those who have already spoken; so I shall not burden the Committee by commenting on them. On arrestable offences, however, I think that the right reverend Prelate the Bishop of Worcester puts forward a view that should not be ignored. We do not want too many people arrested on a purely prima facie piece of evidence when they may not be deliberately guilty.
Subsection (2) deals with an,
"untrue statement for procuring a passport".
We do not want people to obtain passports by deliberate deceit. However, I should think that many people have been inaccurate, although not deliberately untruthful, in making their passport application. I therefore believe that the provision should refer to "a deliberately untrue statement" rather than simply "an untrue statement". That might enable justice to be done in those circumstances.
I do not think that the Minister mentioned the next issue when she put forward subsection (4). If she did I did not take it in. It is to be an offence under Section 174 of the Road Traffic Act 1988 to make false statements and to withhold material information. Broadly speaking, it is upon the prosecution to establish a case against anyone. Although there are circumstances in which the burden of proof changes, my recollection is that it does not do so here under Section 174. It can be a matter of opinion whether particular information which could even be described as material should give rise to an offence that is punishable and arrestable. I ask the Government to reconsider the exact wording of the subsection. I think that we could be abandoning what has been the usual practice of not arresting people unless they have been deliberately misleading.
Lord Alexander of Weedon: I wish to add to the argument advanced by the noble and learned Lord, Lord Lloyd of Berwick, and the right reverend Prelate the Bishop of Worcester. We have heard several times in this House in the past few months the argument that even if something may be an offence on which it would be undesirable to charge many people, it should remain an offence and we should rely on the discretion of the prosecution not to bring such a charge. That was

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argued a number of times in relation to the Sexual Offences Act. I heard it put forward in the moving debate on the Patient (Assisted Dying) Bill, introduced by the noble Lord, Lord Joffe. The argument was that a humane discretion would be exercised on when to prosecute.
I feel increasingly uneasy when I hear that argument. I believe that the law should be clear. I believe that that is immensely important when the underlying philosophy of our law is that there is a liberty to do that which is not prohibited. We should regard the law and that underlying principle as a rock on which people can set their feet. It is not good enough for the Government to seek to justify the creation of a criminal offence by saying, "This will be used only in certain limited circumstances. For the most part those who live in anxiety may take consolation in the fact that the discretion will not be used to prosecute". I suspect that that is not much consolation to those who live in anxiety.
Even more importantly, I think that underlying this debate is a very important principle of the philosophy of the criminal law. We should not lightly expose people to prosecution by the seductive argument that the prosecuting authorities are humane, sensitive people who will always exercise their judgment wherever possible in favour of mercy.
Viscount Colville of Culross: If the debate is reverting to the more general topic of the government new clause, I should like to add one point on false documentation. The Minister is dealing with passports and driving licences, which are of course the key that opens the door to many things in this country. However, has she thought of national insurance numbers? I remember a remarkable burglary in which the target turned out to be blank birth certificates. We had little doubt that the improper use for which those were taken was to get national insurance numbers and thereby to he able falsely to claim benefits.
I do not think that that matter falls into any category of which the noble Lord, Lord Alexander of Weedon, disapproves; nor, I think, does it fall into anything of which the right reverend Prelate would disapprove. It is not at the moment covered. As far as I can see, it is a pretty serious matter. It is causing an enormous drain on national resources. Will the noble Baroness look into it? I have given her no notice of it, but I should be very grateful sometime for an answer.
Baroness Scotland of Asthal: I thank the noble Viscount for that intervention. I think that he makes a very good point on national insurance numbers. We know that a huge amount of fraud results from the use of passports and other identification which could include national insurance numbers, resulting in more than £1 billion of waste.
I think that the noble Lord, Lord Renton, was the only Member of the Committee to refer specifically to other issues of fraud. I understand his hesitation about the way in which those offences have historically been viewed. He is right that offences of fraudulently obtaining a passport or driving licence were
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previously, rather innocently, seen as the result of someone making a mistake or deliberately doing something for their own use. Consequently, those matters were previously not regarded as arrestable. Very unfortunately, times have changed significantly. We now know that passports and other forms of identification can be used for a very serious purpose as the major instrument of those who want to spread terror and anxiety among our community. We have to deal with those matters much more seriously.
Lord Renton: I am grateful to the noble Baroness for giving way. If someone does not make a deliberately untrue statement but innocently does so, should that really be arrestable?
4.45 p.m.
Baroness Scotland of Asthal: Within the meaning of the section if a person made an innocent misstatement, he or she would not be caught. We seek to catch those who seek to use the documents fraudulently. There are many examples of documents that have been obtained improperly. Others have obtained documents to demonstrate the ease with which they can he obtained. One remembers well the journalist who made a fraudulent application for a driving licence on behalf of Mr Blunkett. We know that such documents can be obtained. We need to ensure that people understand that they should not be obtained fraudulently and that we bring an end to that practice. Of course, I shall consider the drafting as the noble Lord suggests to see whether it needs to be perfected in any way. We believe that it suffices at the moment but I undertake to reconsider it.
I turn to the main import of all that has been said in relation to the amendments we are discussing. The theme that ran through the address of the noble Lord, Lord Hodgson, was very much that the measure constituted muddled thinking on the part of the Government. That point was taken up by the noble Baroness, Lady Walmsley, who said that it was short-sighted arresting someone or increasing the penalty for possession. I believe that the noble Baroness made that point on a number of occasions. However, as regards possession, the Government have not increased but reduced the punishment. The noble Baroness will know that previously the sentence was up to five years' imprisonment. We have now reduced it to a maximum sentence of two years. Were the Government's amendment not to be accepted, it would no longer be an arrestable offence. I believe that the noble Baroness said on three occasions that the Government were increasing the penalty. I say very clearly that we are not; we are reducing it.
I believe that the noble and learned Lord, Lord Lloyd, in raising the issue of class C drugs and of moving in the right direction, tried to suggest that we were withdrawing from that very positive stance. I hope that shortly I shall be able to persuade the noble and learned Lord that that is not what we seek to do.
The right reverend Prelate the Bishop of Worcester made a valid point as regards the major concern about rhetoric on toughness. I make it absolutely clear that

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the Government have no truck with rhetoric. We wish to change things on the ground. I speak for the Government today and I say that, I hope, with clarity. I believe that noble Lords are exercised about the way in which we deal with very difficult social issues on the ground. We wish to deal with them productively and carefully so that we maximise the opportunities to make sure that the rehabilitation of those who offend is, if not assured, at least provided with the best opportunity for advancement so that we do not have the current level of recidivism. I say to the right reverend Prelate that we do not seek to increase the number of arrestable offences. At the moment possession of cannabis is an arrestable offence.
It is right when looking at the level of offences to bear in mind that possession of class C drugs is at the moment capable of being an offence for which people are dealt with. The number of persons found guilty or cautioned for offences involving unlawful possession of class C drugs in England and Wales in 2000 was only 331, but I am sure that those were the more serious cases which had to be dealt with and were dealt with, whereas 70,306 people were dealt with for possession of cannabis. In terms of reducing the number of arrestable offences, I suggest, I hope, mildly and with the greatest respect, that the moves that we are taking will reduce that number and not increase it, although I entirely take on board what Members of the Committee said in relation to the way in which the measures will bite.
As regards possession, I believe that the noble Lord, Lord Hodgson, asked whether people in receipt of prescriptions would be at risk. The Committee will know that Regulation 10 of the Misuse of Drugs Regulations 2001 governs that matter. A person may have in his possession controlled drugs under the terms of Schedule 2, 3 and Part 1 of Schedule 4 to the regulations. That allows a person to have those controlled drugs in their possession for administration for medical, dental or veterinary purposes in accordance with the directions of a practitioner. That is the position. We are not changing it. It will remain the same. It has not caused anxiety in the past and it is highly unlikely to cause real difficulty in the future. However, we have to deal with class C drugs generically. They all come within the same classification.
The noble Lord, Lord Waddington, was right to say that cannabis is not viewed as benign by everyone. The Government are not being inconsistent in their view. The noble Lord, Lord Waddington, mentioned the psychotic effect that cannabis can have on those who suffer from mental illness. Cannabis has been identified as an accelerant in terms of the disintegration of the mental health of some vulnerable adults who have a propensity to that particular vulnerability. We say that cannabis can be a very serious drug. We are not suggesting that its use should be considered lawful. We seek to discourage the use to which it is currently put, particularly by young people. However, we take into account that circumstances need to be addressed in terms of how they are treated.
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We need to view the way in which we approach cannabis, and the arrestability of cannabis, within the context of the new structure we seek to put in place in relation to how offenders will be dealt with. As regards the framework—we think that this has coherence—it is important that the guidance that will be produced by ACPO will set a standard which will be applied by all police officers across the country. Of course I hear and understand what the noble Lord, Lord Alexander, said in relation to the need for clarity and consistency of the law. Like him I believe that it is important that that clarity exists if we are to retain our common law, as that which is not denied is inherently permitted within the way in which our law has always been structured. We do not propose to change that.
In the situation in which we now find ourselves there are two pull factors. First, the use of cannabis is deemed to be unlawful because of its aberrant effect on a large number of the population. Secondly, if we wish to reduce its use, we have to be much more sensible and flexible in the way in which we respond to those who may be capable of being persuaded to give up its use entirely. That is where one has to look at the structure which we shall put in place. We are sending out a very clear message to young people that cannabis misuse, or, indeed, any other drug misuse, constitutes criminal activity which will not be tolerated. Police enforcement will, therefore, be consistent with the more structured framework for early juvenile offending established under the Crime and Disorder Act 1998 where a young offender can receive a reprimand, a final warning or charge depending on the seriousness of the offence. Following one reprimand any further offence will lead to a final warning or charge. Any further offence following a warning will normally result in a charge being brought. After a final warning, the young offender must be referred to the youth offending team, to arrange a rehabilitation programme to prevent re-offending.
Let us put that in the context of the way in which we hope that all those dealing with young offenders will approach their treatment and rehabilitation. The officer will have an opportunity to caution the young offender and to remove the cannabis. There will also be an opportunity to track the behaviour of that offender and, hopefully, to make a helpful intervention to stop repeat behaviour before it becomes deleterious to that young offender's health and leads to further activity.
I hear the noble Baroness, Lady Walmsley, when she says that only 1 per cent of the people who use cannabis go on to use more serious drugs. However, I must say to her that that 1 per cent is still very important. We know that those who go on to use them can be destroyed by that experience. I speak for not only myself, but our Government: we do not wish one such person to be lost. We wish to put in place a system that can do justice to the vulnerable and to those who need assistance and support.
The framework is consistent. One difficulty that we have found in dealing with the approach that many have had is that it has not been holistic and has not looked to see how the various parts of the Bill fit

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together. If one puts the Bill together, the Government's case in relation to the matter is consistent and clear. It is not muddled. However, it tries to be sensitive in its response to the general concerns throughout, because on both sides of the Committee there are those who hold the views of the noble Lord, Lord Waddington, those who might hold views more akin to those of the noble Baroness, Lady Walmsley, and all those who fit between the two.
The way in which we have structured the Bill—using the guidelines, setting it out as we have—gives us the flexibility to respond in a way that might be capable of meeting the needs of those who will be subject to it. That is not only young people, but the community subjected to the bad behaviour that comes with the problem, and the families who are destroyed by the abuse that comes with it. We will have a system that we hope to he prouder of than we have been of the system in the past. There is a lot of work for us to do, but the Government think that we have got matters about right.
Baroness Carnegy of Lour: Will the Minister assure the Committee that she could justify, were she asked to, the bringing into arrestability of each of the 117 offences besides cannabis? I am not asking her to do it now—it would take too long—but is she sure that she could justify that, in the same way in which she did the bringing in of cannabis? It strikes one as quite a large class of drugs suddenly to be brought into arrestability simply because cannabis has just been downgraded.
Baroness Scotland of Asthal: I have already said that, generically, the class C drugs will be treated together. I pray in aid the relatively small number of users—abusers, rather—of class C drugs who have found themselves before the courts. Certainly, we would not anticipate that that number should be greatly increased by anything in the Bill. Consider the sensitivity and appropriateness with which the matter has already been approached by those law enforcement agencies that have had the duty imposed on them to deal with it. They have already demonstrated over many years that they are able to deal appropriately with such matters, and we do not expect them to change tack now.
In relation to the discomfort on certainty spoken about by the noble Lord, Lord Alexander, I can say that we have the historical basis to know how the police have dealt with the matter until now. We are not changing the nature of the offence in relation to class C drugs, merely making it arrestable. We can be assured on this occasion that the police and prosecuting authorities will respond appropriately, because they always have. There is nothing to indicate that there has been a material change.
Lord Elton: Is the Minister then saying that cannabis will in future be treated in the same way as all the other drugs, which have very rarely come before the courts? If not, what is the point of changing the classification?
Baroness Scotland of Asthal: We believe that there will be a material reduction in the number of people
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who will be arrested and dealt with in the way we have described in relation to cannabis. That is because we are seeking to address—I gave the criteria earlier—the specific aggravated cases of use or abuse of cannabis. I have also tried to make it clear that we are trying to address on the ground an opportunity for police officers to interact more creatively with the young people with whom they have to deal, by giving them the flexibility to caution or remove and dispose of the drugs. They will still be able to say that the offence is wrong and to dissuade, but hopefully their being able to warn and caution will have a beneficial effect.
The Lord Bishop of Worcester: With great respect to the noble Baroness, she said something in reply to the intervention of the noble Baroness, Lady Carnegy, that I found immensely revealing. She said that we knew how the police had historically acted. The people about whom we are talking do not know that. They know the opposite. We need to take that terribly seriously.
Baroness Scotland of Asthal: We take that seriously. I was talking about those who currently use class C drugs. We are really talking about those who have been in receipt of prescriptions and other prescribed drugs. When I say that we know, we know from the empirical data that improper cases have not been brought against such people. That is what I mean by "we know". The empirical data suggest that that is the position, not that we are somehow, by osmosis, assuming some special knowledge. The data demonstrate that there is no need for anxiety on those grounds. If there were, I can promise that we would be appropriately anxious.
Lord Hodgson of Astley Abbotts: I am very grateful to all Members of the Committee who have spoken in support of Amendment No. 7, in whole or in part. The noble Baroness, Lady Walmsley, brought her great experience to the debate. The noble and learned Lord, Lord Lloyd of Berwick, wanted to go further than the amendment, but underlined the concerns about guidelines and there being nothing in statute. My noble friends Lord Waddington and Lord Alexander of Weedon spoke on the dangers of ever-wider discretionary powers and the impact that they will have on public confidence in the judicial system and on police-public relationships, a point picked up by the right reverend Prelate the Bishop of Worcester. As ever, my noble friend Lady Carnegy put her finger on the reality of what will happen to the 117 drugs.
The Minister—I mean this most sincerely—gave her usual polished and informative reply. I look forward to reading much of what she said. We will want to come back to the matter on Report, when I would like her to answer three points. First, she did not give any examples—perhaps her officials could help—of problems with class C drugs that have occurred in the past 30 years when they have not been arrestable offences. Secondly, she made a handsome effort to clarify the Government's attitude towards cannabis.

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The reality is that, although it may be clear in the Home Office, outside the Home Office it is not as clear as it thinks, if indeed it thinks that it is.
Finally, the Minister said that it was not right to have special laws for cannabis, but we are doing so. We are downgrading it to class C, and upgrading penalties for class C because cannabis is in it. We are changing the treatment of class C drugs for cannabis. A special law is exactly what we now have. For the time being, I beg leave to withdraw the amendment.
Amendment No. 7, as an amendment to Amendment No. 6, by leave, withdrawn.
On Question, Amendment No. 6 agreed to.
Clause 3 [Bail elsewhere than at police station]:
Baroness Anelay of St Johnsmoved Amendment No. 8:
Page 2, line 26, after "delaying" insert "(for such time, which shall not exceed such maximum as may be prescribed by the Secretary of State in an order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament)"
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 9. These are probing amendments.
Clause 3 of the Bill contains provisions that are colloquially known as "street bail", which will allow police officers to grant bail at places other than police stations. Amendment No. 8 reflects a point that was raised in another place; namely, whether there should be any time limit to the period during which a constable can delay taking an arrested person to a police station or releasing him on bail, if the person's presence at a place other than a police station is necessary to carry out reasonable investigations.
In responding to a similar amendment in another place, the Under-Secretary of State, Mr Benn, said,
"no time limits currently operate under PACE. Most delays in the circumstances that we are discussing will be relatively brief, but there will be circumstances in which a delay could exceed two hours: for example, when the arrested person needs to accompany the police officer during the search of the premises".
There being no time limit at present in PACE, is it possible that an arrested person could be granted "street bail" many hours after his or her arrest? In another place, the Under-Secretary of State added:
"The police, in grabbing street bail as a new power, will not have much incentive to waste a lot of time by keeping people for longer than two hours before granting them street bail".—[Official Report, Commons Standing Committee B, 17/12/02; col. 13.]
In that case, can the Minister expand a little on the sorts of times that we are talking about here? How long might it be before a person was given "street bail" in such circumstances?
Amendment No. 9 would insert a requirement that a detained person should receive a copy of the reasons for such a delay immediately after they are recorded when the person arrives at the police station or is
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released on bail. Will the detained person receive such a notice? If not, why not, and when will they become aware of the reasons for the delay? I beg to move.
5 p.m.
Lord Dholakia: Some of us were present at the meeting held by the Children's Society. Various concerns were expressed about the matter, particularly about the potential erosion of current safeguards in the PACE code of practice, which would be involved. Currently, when a child is arrested, the police have a duty to ensure that the parent, carer or appropriate adult is informed and present during any interview or charging procedures. We are aware that the Metropolitan Police and the Association of Chief Police Officers welcome the provision that bail be granted elsewhere than in a police station. That would save them from inconvenience and reduce the burden on police time. It would also keep operational officers on the street and people who do not need to be detained out of police stations.
The issue identified by the noble Baroness, Lady Anelay, requires some answers. It is important to bear in mind the comments of a number of legal bodies in this country. I draw particular attention to the comments of Justice in this regard. First, it said that while it supports the approach, it is particularly keen to ensure that there should be a time limit of four weeks from arrest to attendance at a police station to avoid people being subject to bail; such cases should be followed up efficiently. Secondly, it raised the important point that the police station to which the person is bailed must be reasonably proximate to his or her place of residence. Thirdly, it said that the arrested person must be entitled to free legal advice, in the nature of police station representation, on answering their bail to ensure that they are in no worse a position than someone who is subject to normal arrest. The most important point raised by the noble Baroness, Lady Anelay, is about the need to give reasons why that is happening. Much of the conflict between young people and the police would be alleviated if they knew clearly the grounds on which the matter was taken up by the police.
Lord Carlisle of Bucklow: I support the comments of the noble Lord, Lord Dholakia. As I understood it—perhaps I have misunderstood; if so, I apologise—the amendment of my noble friend Lady Anelay related to the delay between the person originally being bailed and eventually being taken to the police station. If so, my understanding is that the present position is that we have a welcome power—I certainly welcome it—for a constable, on arresting someone, to bail him at somewhere other than in a police station. That provides flexibility and saves much potential wasted police time and it means that people do not have to be unnecessarily taken to a police station, which may be a considerable distance away, and that they do not have to be detained while the various documents are gone through. That is all sensible, desirable and welcome.

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On the other hand, as the noble Lord, Lord Dholakia, mentioned, there should be some time limit on the time in which a person is required to attend at a police station. New Section 30A(3) states:
"A person released on bail under subsection (1)"—
which I understand to be a person released on bail other than at a police station—
"must be required to attend a police station".
However, no time limit is put on the time during which that should take place. I believe that Justice and the Law Society are right to say that there should be some limitation on the period during which that bail should last. Presumably by its very nature, bail for someone on the point of arrest in relation to street bail is likely to involve an offence of a lesser degree of seriousness than that involved if he had been formally taken to a police station. If the person is merely told that he can go home on bail but not told anything about when he must appear at a police station, he may well go home to another part of the country, stay there for some weeks and suddenly find, out of the blue—when he has pretty well forgotten about the whole issue—that he has been summoned to go to a police station.
I say that because new Section 30B makes it clear that the notice that the person is given at the time must,
"inform him that he is required to attend a police station".
However, it is purely discretionary in that he merely "may" specify the police station and the time when he is required to attend. He may well he told to go home on bail without any indication at that stage—other than being told that he must attend a police station—of when that will be. I should have thought that it was sensible that there should be a final time limit of four weeks, as the Law Society and Justice suggest, before the end of which he should be required to attend at a police station.
I say to my noble friend Lady Anelay that the only matter that makes me hesitate is that if I am right that her amendment could have that effect, it is rather a long-winded way of saying what I should have thought could have been met if one merely added the words "within four weeks" at the bottom of the second line on page 3 of the Bill.
Lord Bassam of Brighton: We have had a valuable discussion on this matter. The amendments relate to the new capacity that we want to introduce to enable the police to bail arrested persons from the point of arrest, which has become known as street bail. We recognise that we are breaking significant new ground here and I appreciate the fact that considerable support has been expressed for it. In particular the noble Lord, Lord Carlisle of Bucklow, recognised the value of the flexibility that this will introduce into the system. However, the new flexibility must be balanced against the need to ensure that, first, it works well and, secondly, it is not abused. We accept that striking that balance is creating some difficulty for us all.
The question of time limits concerning the period of time between arrest, street bail and appearing at a police station is dealt with in the next grouping, which
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contains Amendment No. 12. It would probably be better if I deal with that issue when we reach the grouping. Amendment No. 8 is directed towards imposing limits on the delay allowed in taking an arrested person to a police station or street bailing them when their presence elsewhere is required to carry out urgent investigations. The capacity for such a delay in relation to removal to a police station is long established, and the clause extends similar provisions to street bail. I think that I can say with some confidence that any delay in such circumstances will not generally be very long, although in certain situations it may be for longer than two hours.
Such a delay might be absolutely essential; indeed, it could be completely counter-productive for it to be anything other than that. I cite, for example, the circumstance where an arrested person is needed to attend a complicated search of premises. However, the police must be able to justify the delay and they will be required specifically to record the reasons for that delay. Imposing what might be described as a somewhat arbitrary time limit does not seem justified in those circumstances. In effect it would restrict a measure of flexibility that has been in place and available to the police for many years. Further, it should be placed on the record that the procedure has apparently operated without any great difficulties and has not noticeably infringed the rights of arrested persons.
So, although it is possible that the delay between the time of arrest and street bail being granted could be significant, searches of premises can take some time. While it is obvious that such investigations must be undertaken quickly, I am sure that we can all think of cases or examples in which they may need to take longer and in which having the apprehended person present at the time would be of immense value to the quality and conduct of the investigation.
Amendment No. 9 refers to the written record of any delays occurring when the arrested person first arrives at the police station or is released on street bail. It would require the arrested person to be given a copy of that record forthwith. In practice, the reasons for any delay will normally be apparent to the person arrested and often will be explained to them by the officer concerned. A record of those reasons will always he available in the detained person's custody record, the police officer's pocket book or the documentation that the arrested person receives when they are street bailed. With that in mind, the absolute requirement that the amendment would impose to provide an immediate copy of the written record in every case seems an unnecessary burden.
The noble Lord, Lord Dholakia, discussed the requirement for the arrested person to attend the police station. That is a very right and proper matter to raise. The noble Lord suggested that the police station ought to be reasonably proximate to the arrested person's home. That is not unreasonable on the face of it, but let us consider the different circumstances under which someone might be arrested. For example, if a suspect is arrested in Newcastle, but lives in Truro, why make the police travel to Truro? What would be

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the justification for doing that? I do not think that we could reasonably—either operationally or in terms of the effective use of police time—impose a strict stipulation that the police station that an arrested person should attend must be reasonably proximate to their home. That could create great difficulties for the police themselves. However, it may be that sensible arrangements could be made for the arrested person to attend a police station.
The noble Lord also raised the issue of free legal advice. The current situation will pertain. Suspects will be given free legal advice, as they are under the arrangements as they currently operate. We see no difficulty in that. Indeed, I believe that there is wide agreement that the present arrangements work very well. If the noble Lord has a further point which he thinks we should consider, then of course we shall listen to what he has to say.
I hope that, with those comments, the noble Baroness will feel able to withdraw the amendment.
5.15 p.m.
Lord Carlisle of Bucklow: The Minister said that it would he better to deal with the question of whether there should be a final date in a later grouping; that is, when we come to the amendment which, at page 3, line 18, specifies after the word "subsequently" a period of two weeks. Surely the present position is that there is no time limit from the date of the granting of bail until the person is required to turn up at the police station either in Clause 3 or in the later clause. Thus the effect of the amendment on the later clause would be merely to state that if an arrested person is not given notice of the time when he has to attend the police station, then within two months he should be given notice of that time. I sought to make that point that a limit should be put on the time from the date of bail until the requirement to appear at a police station. With respect, the noble Lord has not dealt with that point.
Lord Bassam of Brighton: I have not dealt with it because I thought that we might address those issues when we look at Amendment No. 12. If I am reading my notes correctly, the aim of that amendment—which would insert,
"within the period of two weeks from the date on which bail was granted"
after "subsequently"—would be more usefully included in the discussion we shall have when we reach the next grouping, of which Amendment No. 12 forms a part.
Baroness Anelay of St Johns: I am grateful to my noble friend Lord Carlisle of Bucklow for pointing out that there are two types of time limit involved here. That is why I asked for Amendments Nos. 8 and 9 to be degrouped from the following set. I anticipated that there could be just this kind of difficulty in dealing with these matters.
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In practice, the noble Lord, Lord Dholakia, has outlined so sufficiently the arguments that I would have put in support of Amendment No. 12 that it would not be right for me to seek to repeat them. When we reach the next grouping, I shall simply drop those remarks from my speech and rely on the arguments already put forward by the noble Lord.
I am grateful to the Minister for advancing the argument further than was possible in another place and I shall read carefully what he has said about the time limits addressed in this group of amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
Baroness Anelay of St Johnsmoved Amendment No. 10:
Page 3, leave out lines 3 and 4.
The noble Baroness said: With the leave of the Committee, I shall speak also to Amendments Nos. 11, 12, 13, 15, 16 and 17. These amendments continue on the theme of the previous grouping, probing the Government's new provisions on street bail.
Amendment No. 10 would delete the proposed new Section 30A(4), which states that no condition other than that of reporting to a police station may be imposed as a condition of street bail. As Members of the Committee will be aware, conditions are frequently imposed when bail is granted, such as the requirement not to go to a particular place or to speak to a particular person, such as a witness. However, new Section 30A(4) imposes no conditions as requirements of street bail other than the requirement to report to a police station at a specified time. Therefore, a question arises as to the types of case where street bail would be used if it could not be used in cases where the other requirements might be appropriate.
Is the prohibition on conditions imposed in order to avoid some perceived bureaucratic obstacle, or is that perhaps for another reason, such as human rights considerations? I should be grateful if the noble Baroness or the noble Lord—whoever is to respond—could address those points.
Amendment No. 11, to which the noble Lord, Lord Dholakia, has added his name, would require the notice of street bail to set out the consequences of failure to surrender to bail. In that situation, it will be important to ensure that the arrested person knows what is going on. The amendment would not require much in the way of bureaucracy; it could be achieved simply by adding a paragraph to what I assume will be a pre-printed street bail form saying, "If you fail to attend the police station at a specified time, then you may be arrested". What is the harm in that? It would allow everyone to know where they stand, and I hope that the Minister is able to accept that.
I shall skate over Amendment No. 12. As I mentioned, it was covered in the debate on the previous group. Amendment No. 13 relates to the

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possibility under new Section 30B(6) of varying the police station or the reporting time. Again, that must be done in writing. Subsection (7) specifies that,
"more than one such notice may be given",
of any changes. It is another open-ended provision in this clause and one on which I hope the Minister will comment. In what circumstances do the Government envisage that an arrested person would receive more than one amendment—are we talking about three, four or even more?—o the arrangements relating to the police station and the time of his street bail?
Amendment No. 15 concerns what happens when a person who has been required to attend a police station as part of street bail is then told that his attendance is no longer required. Is such a person deemed to have been released on any form of bail? Therefore, is he still technically on street bail, or, once he is told that he is no longer required to report to a police station, is he released without bail? I should welcome clarification on that point.
New Section 30D allows a constable to arrest without a warrant a person who fails to answer his street bail, although failure to answer to street bail is not in itself a criminal offence—at least, in so far as I read the Bill. Amendment No. 16 would insert a new "reasonable excuse" provision into this power so that a constable could only arrest a person who "fails without reasonable excuse" to attend the police station at the time specified. The questions are obvious: what happens if a family member falls seriously ill or if the arrested person himself is in hospital? As I read the Bill, the constable would still be able to arrest him. Is that what the Government intend should happen?
Finally, Amendment No. 17 is a small drafting amendment. Members of the Committee will have noticed —the noble Lord, Lord Dholakia, has referred to it already—that at present new Section 30D(2) at the top of page 4 of the Bill states that a person arrested after having failed to attend a police station in accordance with the terms of his street bail must be taken to a police station, which may be,
"the specified police station or any other police station".
My amendment would simplify that wording to "any police station". I do not believe that that causes any change of meaning. It reduces the number of words by two-thirds and, as I am trying to increase the number of words in my Amendment No. 11, which I should love the Government to accept, this is the quid pro quo in that it knocks out some words. I beg to move.
Baroness Harris of Richmond: I rise briefly to speak to Amendment No. 11. It is absolutely essential that the person who is arrested in the street understands the process, and particularly the consequences, of failure to surrender to bail. That would have been explained to him fully if he had been taken to a police station, and he should have no lesser explanation in the street.
The briefing that we were given from the Law Society states that it is important that persons fully understand the significance of arrest and bail, particularly if English is not their first language. I want
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to stress the point: particularly if English is not their first language. In the Commons, the Minister said that it was intended to print that information on the back of the notice. However, that will be inconsequential if the information is printed only in English and the person bailed cannot read English. I respectfully suggest that potentially that could cause great problems in large cities such as London, Birmingham, Liverpool and so on.
Lord Carlisle of Bucklow: I want to speak briefly to Amendment No. 12 in order to remind the Minister that he will, I hope, deal not only with the question of whether there should be a time limit between a person being arrested and his being given notice of the requirement to attend, as the amendment suggests, but also with the question of whether there should be a time limit between the time of his arrest and the time at which he must attend a police station.
Lord Bassam of Brighton: Again, I am grateful for the way that noble Lords have spoken to these amendments. It has been very helpful because it has focused on the practical aspect of the issue, and I believe that that is the right approach in dealing with this piece of legislation and the innovations contained within it. I shall work through each in turn and try to answer all the points raised.
As explained, Amendment No. 10 would remove the proposed restriction on imposing conditions on street bail, other than a requirement to attend a specified police station at a specified time. I believe it is fair to say that arresting officers who consider street hail will often have limited information about both the arrested person and the circumstances of the offence. With that in mind, we take the view that it would be very difficult to impose realistic and helpful conditions, and the clause, as drafted, would not allow them to do so. Indeed, the clause is designed to offer officers greater flexibility—we make no apology for that—in dealing with what will often be more mundane offences and offenders where bail conditions are unlikely to be required. In some senses, it is for that reason, which is more helpful to the person arrested, that we have had the clause drafted as it is.
Amendment No. 11 attracted support not only from the noble Baroness, Lady Anelay, and the Official Opposition but also from the noble Baroness, Lady Harris, on the Liberal Democrat Benches. That amendment seeks to require that street bail notices refer to the consequences of failing to answer to bail. Again, I can understand why there is a desire to spell out in more detail the notification given.
There is no need to include that point in legislation, and I can give a firm commitment that the standard form that we are devising will set out the consequences clearly. In particular, it will set out the effect of the police power to arrest someone who fails to surrender to street bail. The guidance that we shall issue to the police will stress that, in addition to providing the notice, the arresting officer should explain fully to the persons concerned the consequences of breaking bail.

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I also picked up the point concerning the importance of language. Again, that is something on which we need to be clear in addressing this issue. As the noble Baroness, Lady Harris, said, understanding is critical here. Although it is a useful innovation and has flexibility, which is desirable, there is not much point in having that if someone fails to understand exactly what is happening to him. We recognise and sympathise with that point.
Amendment No. 12 deals with the issue of time limits. It seeks to specify the time and location for answering to street bail, and the proposal is that it should be within two weeks of such bail being granted. That would apply where the information could not be given at the time of arrest and where the police sought to use the flexibility within the clause to give the details at a later date.
It would clearly be good practice for the police to clarify as soon as possible the position for persons released on street bail. However, it will often be important to ensure that all the necessary facilities and personnel are available to deal with such a person when he answers his bail. With that in mind, fixing the precise location and date at the earlier time may, in itself, be a very time- consuming process. I believe it is accepted, as it was in earlier debates, that the flexibility provided by this new approach to working is important. We are seeking to retain that. So imposing a strict time limit would reduce that flexibility and might force the police to hurry into arrangements that were unsatisfactory and unworkable from the arrested person's point of view and could be counterproductive to their aim. Taking a little more time might be to the benefit of everyone involved.
Having said that, it is important to put on the record our expectation that, in practice, the vast majority of people will be dealt with within four weeks of arrest. That is our expectation and it is right that we clarify the issue at this stage. However, for the reasons I have explained, we believe it important to retain that flexibility in the interests of both the police and the arrested person, who must be properly respected and responded to.
Amendment No. 13 would limit the police to issuing no more than one written notice of amendment to the arrangements for answering to street bail. The noble Baroness, Lady Anelay, made a reasonable point, asking why there should be a repeated succession of changes. I understand the point she is making and our expectation is that that would not be the case. However, people go on holiday; their arrangements continually change; the unexpected arises, as we expect in our lives. Therefore, there may be a need to change arrangements. A rigid limit to just one set of changes could cause unnecessary problems and undermine the effectiveness of street bail in individual cases. Again, for the record, it is our intention that any changes will be kept to a minimum, but there may be odd occasions when it would be better for a further notice, and then an additional one, to be sent.
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Amendment No. 15 seeks to make explicit that a person who has notified that he no longer needs to answer to street bail previously granted should be regarded as having been released without bail from the point when he received the notice. It is self-explanatory that he will not be required to attend the police station and that the matter will not be pursued. For that reason, I cannot see that the amendment takes us further. We believe that what appears in the clause is explicit in the drafting.
Amendment No. 16 would restrict the police's power to arrest a person who fails to answer the street bail to circumstances where he had no reasonable excuse for failing to do so. We believe that this is an unnecessary restriction on the police in relation to what is clearly a discretionary power. If they were satisfied in a particular case that circumstances did not justify them arresting someone who had missed his bail appointment, they would be perfectly able to decide not to do so. The police have plenty of experience in dealing with people who fail to answer for bail for a whole range of reasons. We take the view there is no real reason to expect that they will fail to use this power flexibly where people have good excuse and reason to offer when confronted with what has taken place.
Finally, Amendment No. 17 is intended to simplify the wording relating to the police's station to which a person arrested for failing to answer to police bail can be taken. I congratulate the noble Baroness on the concision of her wording. There is no question that it seeks to achieve what we do with fewer words. I suppose I should be grateful and that I ought to accept the wording. But we feel that the existing wording spells out the position more fully—so it is a fulsome explanation in the wordage count. For that reason, we cannot accept the amendment to the clause.
However, a number of points have been valuably made in the discussion and Members of the Committee have raised issues of which we need to take account between now and Report. While I am not giving a cast-iron commitment to consider them all, they will focus our minds on practicalities. They have been valuably raised in the debate and therefore I am most grateful not only to the noble Baroness for tabling her amendments but to all Members who have contributed. We need to be certain that we have the provisions right and I give a commitment that we will further interrogate the wording.
5.30 p.m.
Lord Alexander of Weedon: I hear the Minister's commitment and I welcome the provision that the police should be able to grant bail otherwise than at a police station. I want to raise an issue and hope that I have the peg on which to raise it; that is, the difficulties of the time provision, the four weeks and the flexibility. That indicates that there will be difficulties for defendants and I want to raise a point for which the noble Baroness, Lady Scotland, was a protagonist in her previous incarnation; that is, ensuring that people have proper representation. It would be helpful if the noble Lord could tell us his views on whether those who are released on bail in this way will be entitled to

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free legal advice in the nature of police station representation in regard to answering their bail. It would be a great pity if this beneficent provision in the Bill created an unintended disadvantage for defendants.
Lord Bassam of Brighton: I understand that free legal advice will continue to be available in a similar way to the present provision. In such circumstances, it will be helpful if it is because it will enable the person who has been arrested and is perhaps the subject of allegations to be represented. It means that he will be able to present himself better in dealing with the police and it is in everyone's interest that that continues to be the case. I hope that that satisfies the noble Lord's point.
I wanted to make a further point in response to an issue raised by the noble Baroness, Lady Harris. I wanted further to clarify what might happen when a police officer is considering giving street bail to someone and it becomes apparent that the person's understanding is not as full as perhaps would be desirable in that circumstance. If the officer cannot speak the language, and it is clear that he is not achieving a level of understanding, it is unlikely that he will go the extra step further and use street bail. It would, or could, be misunderstood by the person he was arresting or seeking to arrest. In that circumstance, it would probably make good operational sense to take him to a police station where interpretation can be properly arranged and where he can be fully appraised of his rights and responsibilities. Police training will need to tease out those issues so that they are properly clarified for all concerned.
Baroness Anelay of St Johns: I thank the Minister for his full and careful response, in particular for his statement that the Government will consider some of these issues during the Summer Recess. The amendments examine the practical end of how to achieve street bail in the best way because, as my noble friend Lord Alexander of Weedon said, we support it.
I welcome the Minister's comment that in regard to Amendment No. 11 there will be a standard form clearly setting out the consequences of failure to surrender. I was grateful for his further words addressing the point raised by the noble Baroness, Lady Harris of Richmond.
The disappointment is that he could not see fit to accept my Amendment No. 17. My noble friend Lord Renton is in his place and he is always assiduous in trying to reduce the number of words in a Bill. I was trying to do my little bit but I was delighted to hear the reason prayed in aid by the Minister for saying, "No, you can't chop those words out". He said that there should be a fulsome explanation and he welcomed it. Those words will come to haunt him in the future when I press other amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 11 to 13 not moved.]
Baroness Walmsleymoved Amendment No. 14:
Page 3, line 24, at end insert—

"(8) In cases where the person arrested is a child, bail will only be granted in the presence of an appropriate adult to whom copies of any notifications must be given.

(9) "Appropriate adult" has the same meaning as in the Codes of Practice under the Police and Criminal Evidence Act 1984 (c. 60)."

The noble Baroness said: Amendment No. 14 is a probing amendment, the purpose of which is to ensure that in cases involving children the granting of bail will take place only in the presence of an appropriate adult. As we have heard, Clause 3 removes current requirements of the Police and Criminal Evidence Act 1984 for a police officer to proceed to a police station as soon as practicable after arresting a person. It also allows police officers, on arrest, to give bail to the person rather than take the person to a police station at that point. The Children's Society and other children's charities are concerned about how that might affect children.
The clause has the legitimate aim of making the best use of police time and of reducing the time that police officers spend on administrative tasks. It also means that the total time that people are deprived of their liberty will be reduced, as the "custody clock" starts not from the time of arrest but from the time detention is authorised by the custody officer at the police station.
The children's organisations are concerned about the impact of the changes on children and the removal of current safeguards under the PACE codes of practice. The organisations are seeking assurances about how the new provisions will comply with the UK's obligations under the United Nations minimum rules for the administration of juvenile justice to ensure that parents or guardians are immediately informed of any arrest. It is difficult to see how that can he done on the street.
As currently drafted, we believe that the clause will result in the wholesale sacrifice of the additional safeguards provided under the PACE codes of practice for children, with four possible consequences. First, there is the risk of a lack of understanding on the part of the child of the significance of the duty to answer to bail at the specified police station at the specified time and the implications and consequences of noncompliance, bearing in mind that failure to answer to bail is an offence.
Secondly, those responsible for the care of the child are not directly informed of the fact of an arrest, nor the requirement to answer bail. A child may have what they feel is a valid reason for not informing their parents or carers. That may result in censure of parents or carers who are totally unaware of their responsibilities because they have not been passed on to them by the child.
Thirdly, the presence of "Failure to answer to bail" on an individual's record, no matter when it dates from, means automatic exclusion from any compassionate release provision if a person is serving a custodial sentence. That could be very serious for the

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young person some way down the road. Fourthly, there is the possible re-emergence of "guided tours" of scenes of offences with the arrested individual asked to identify which was "their" offence.
Part of the reasoning for the introduction of the codes of practice was that particularly vulnerable suspects should not incriminate themselves without the advice and safeguards they introduced. That is even more significant given the proposed provisions in the Criminal Justice Bill for indeterminate and extended custodial sentences.
To conclude, we believe that in cases involving children it is imperative that safeguards are put in place to ensure that parents or guardians are informed of an arrest and that children are supported throughout the process of arrest and bail. I beg to move.
Baroness Anelay of St Johns: I support the amendment, which is tabled in my name also. I shall not speak at length because the noble Baroness, Lady Walmsley, put the argument in a convincing, unassailable form.
As currently drafted, the Bill means that we would throw overboard a whole series of safeguards for children. I believe that that would be done at our peril and should occur only after careful thought. I look forward to the Minister's response as to why the Government feel that these safeguards properly can be jettisoned. At the moment I am not persuaded.
5.45 p.m.
Lord Hylton: I do not want to speak on the question of bail for children. Nevertheless, it would be helpful if the Minister replying to the amendment would confirm that information about the arrest of a child at any age up to 18 is always given to the parent or guardian or, failing that, to the next of kin. I raise the point because it is one which for many years caused great worry and anxiety in Northern Ireland. I hope that the position is satisfactory in England and Wales.
Baroness Howe of Idlicote: I, too, shall be brief. The case has been effectively put by the noble Baroness, Lady Walmsley. Clearly, arrest on bail is a good, additional power and should save time. However, I believe that in that respect the Bill has not been childproofed as there is no indication in the Bill of any different treatment of children.
As a past juvenile court magistrate, one aspect which would worry me is the reaction of the child. I am afraid that in many cases the child would not just not tell but would be frightened of telling the parent or guardian. That again, as we have heard, could result in an offence for the individual of not reporting but also could be problematical for the parent. No fewer than eight children's societies are concerned about this matter. I very much hope that the Minister will bear in mind what has been said and accept the amendment.
Baroness Howarth of Breckland: I support the noble Baroness, Lady Walmsley, and the eight children's groups which have raised concerns. I also speak from my own experience.
I am sure that the Minister will see how inappropriate it would be to issue bail to young people on the streets without the presence of a responsible adult. As has been said, it would leave young people with the responsibility of telling their parents and of accepting guilt in circumstances where we know that many young people do not have the level of understanding to recognise exactly what they are accepting and agreeing to. They desperately need their own rights considered in those circumstances.
They will also find themselves carrying an undue burden of personal anxiety. Some might say that such young people probably deserve that if they have got themselves into trouble. My experience is that these are some of the most vulnerable young people in our society, who are experiencing considerable difficulties. Their families are not supportive. I have spoken to many children who, had they gone home and told of what had happened, would have put themselves in danger of a very severe beating. That would not have been reported because they would have been fearful of further beatings. There is something to be said for the right time and place and having the right authorities and a police officer with you rather than going home and telling about this yourself.
It is crucial that the PACE regulations are kept in place. I shall not go through them again because the noble Baroness, Lady Walmsley, did so. Such regulations are in place to protect children in these kind of circumstances. It would be a very retrograde step in our child care were we to lose such regulations.
I also believe that there is great anxiety about granting bail to people with learning difficulties, particularly young people but also vulnerable adults on the street. They will have the same problem about not necessarily understanding what they are agreeing to in terms of an offence that might or might not have been committed. If I was on the street and someone was to say I had done something, it would be easier to accept it and pay the fine than to battle. I have only three points for speeding and that is because I was in a 50 miles per hour limit when I thought I was in a 70 miles per hour limit. It is very easy just to say, "I accept" because the reality is before you. With people who are more vulnerable it is significantly more difficult.
I believe that that would be a real step backwards. I hope very much that Ministers will see fit to protect children and vulnerable adults in these circumstances.
Lord Elton: I rise briefly to support one of the most effective three minute speeches I have heard from any Front Bench delivered by the noble Baroness, Lady Walmsley. I should like to leave two thoughts in your Lordships' minds. The first is that we must not assume that the police always arrest the right person. The protection we provide is not merely for the guilty who should be anxious but also for the innocent who

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should be relieved. This is one of those embarrassing moments when I have to say that I shall speak later on the second point when it comes back to me.
The Earl of Listowel: I support the noble Baroness's amendment. I would welcome some advice from the Minister on a point of concern. I am concerned about children in care but particularly about care leavers. They often lose touch with those people from their local authority with whom they should be keeping in touch. I am concerned that they might be particularly vulnerable to, perhaps, a misapplication of this measure. I would appreciate it if the Minister could write to me or offer some assurance in her reply.
Lord Elton: The noble Baroness, Lady Howe, raised an important point. She thought the Bill had not been child-proofed. We now have a Minister for Children. Has she had a chance to look over the Bill and will she in future look through all legislation that affects children? This is a serious question and one that needs to be pressed.
Lord Bassam of Brighton: This has been a very useful 10 minutes. We had a three-minute introduction that was stunning in getting to the point. I think the discussion has been very helpful. This Chamber is at its best when it focuses on the practical and this has been a very practical discussion.
The amendment would prevent street bail being granted to a child except where an appropriate adult was present. Broadly speaking, appropriate adults are responsible persons whose normal role is to attend police stations to support detainees who are either juveniles or mentally vulnerable in some way.
We recognise that this is a difficult area. We are dealing with a group with an age range of 11 to 18. I recognize—as a parent more than anything else—that what one sees with those aged 11 and those aged 18 is very different. Obviously, there will have to be a very age-responsive response by the officers on the street conducting particular operations and exercise.
So we expect that the police will have to exercise great care when deciding whether to street bail a juvenile. The noble Lord, Lord Elton, made the point that the police do not always get it right. Anyone in public life who has ever had to deal with any kind of casework involving the police knows that. It is obvious that the police do not always get the issue right.
However, the very nature of street bail means that an appropriate adult will probably not normally in any event be available on the spot to participate in the process. Therefore, in the guidance that we are developing for the police we intend to emphasise that an officer considering such action in relation to a juvenile must be satisfied that the juvenile fully understands the implications of street bail and the obligations which flow from it. In a way, that takes us hack to an earlier debate and the point made about language by the noble Baroness, Lady Harris. This concerns more than language; it concerns an understanding of what is happening to them—the
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processes involved, the consequences of their actions and, perhaps, their failure to act and think responsibly, which will confront juveniles in this situation.
Additionally, we are likely to specify that street bail should be given only to a juvenile who is able to provide a satisfactory name and address of a parent, guardian or some other person responsible for his welfare. That will make a qualitative difference. In those circumstances, the police will be able to post a copy of the street bail notice to that parent or guardian, with an indication that it would be helpful if that person could attend the police station with the juvenile when he answers his bail. That is an important point to remember, not least because we want this measure to work. The guidance will have to be carefully constructed to meet the juvenile welfare concerns raised by the noble Baronesses, Lady Howarth, Lady Walmsley and Lady Howe. All their concerns about relationships with young people in the street are important.
In particular, I take the point about a police officer considering street bail for those who might be mentally vulnerable. Guidance must state clearly that street hail should not be given to anyone they suspect of being mentally vulnerable. So street bail will be inappropriate in those circumstances.
We are very grateful to the children's charities which have contributed to the discussion behind the scenes on this particular aspect of the Bill. I am more than happy to make a commitment from the Dispatch Box today that not only have we found their representations to be very useful, but that we would like to continue to consult with them in drafting and framing the guidance because we need to draw on their valuable experience and ensure that we get it right.
Although I appreciate that not everyone will be happy with that commitment or what lies behind it, we think that it is important that this power and facility is there. Obviously, if a young person, perhaps aged 11 or 12, is confronted by a police officer, it is likely that the police officer will be less inclined to use street bail. But I think we also have to recognise that 17 and 18 year-olds are sometimes very streetwise indeed. Having the facility to use street bail will be extremely useful in those circumstances. Not only will it mean that they can be apprehended and begin to understand the full implications of their own actions, but also it will usefully mean that the police can make an intervention that bears on their future conduct.
In those circumstances it would be sensible operationally for the police to have the opportunity to use street bail. Of course, there will be a requirement that ensures that when the juvenile attends a police station he does so in the company of an adult, is properly represented and has the opportunity of full legal advice.
I am grateful to all Members of the Committee who have contributed to the debate. I hope I have picked up the various points that were of particular concern. Obviously, we shall have the opportunity further to reflect on the issue. As I said, I have made what I think is a valuable commitment to further consultation with

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the children's charities, which I think can help us hone and perfect the operation of street bail with regard to juveniles.
Lord Campbell-Savours: Perhaps I may act as sweep following the points made by the noble Baroness, Lady Howe, and the noble Lord. What is Margaret Hodge's role? Will she now be child-proofing all legislation of this nature affecting children?
Lord Bassam of Brighton: Our expectation is—this is obviously a developing and emerging role so far as Margaret Hodge is concerned—that the process will involve a degree of "child-proofing" of legislation. But she has a very wide-ranging remit. It would be wrong for me today to try to itemise from the Dispatch Box exactly how it will work in all circumstances. Clearly, there needs to be consultation across Whitehall. One reason for having such an important post is so that the consideration given in legislation to the position of the child is foremost in government thinking, not just our government, but those in future.
Baroness Carnegy of Lour: I go back to the noble Lord's reply to the discussion in general. He said he hoped he had picked up the points; I think he picked up very few of them. The noble Baroness put the case clearly. Other noble Lords made points; the noble Baroness, Lady Howe, made an important point. It is totally unsuitable for only guidance to protect a child of 11, 12, 13, 14 from being put on bail and having to go home to tell his parents about it. That is simply not right. The noble Lord should ensure that this issue is dealt with in the Bill.
The noble Baroness's use of the term "a child" may be wrong. I agree that 17 or 18 year-olds may be in a different position. That was obviously a most unsatisfactory answer and I hope that when the noble Lord reads the record of the discussion, he will see that the amendment is nearer the mark and that this is not a suitable matter for guidance.
6 p.m.
Baroness Howe of Idlicote: Further to the question on the Minister for Children, the noble Lord indicated that there would be a role for a Minister to child-proof legislation. Has the new Minister for Children childproofed the Bill, or would the noble Lord invite her to do so at this stage?
Lord Bassam of Brighton: I cannot be explicit about whether the Minister has child-proofed the legislation and all its many ramifications. It would be wrong of me to say otherwise. I recognise the importance of the issue, so after the debate I shall certainly draw to the attention of my honourable friend Margaret Hodge the implications of this part of the legislation in particular.
In response to the noble Baroness, Lady Carnegy of Lour, I am sorry if I have missed something. I was very careful in my response. I made the point that the age range was very wide, and that common sense says that
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the application of street bail may be more appropriate at the upper band of the age group than at the lower band. It is important across the age range. But it is how the power is used and the sensitivity exercised that will be key. I have made the point several times from the Dispatch Box today that training in the application of the new facility will be essential.
Baroness Howarth of Breckland: I respectfully ask the Minister how much training the ordinary police officer has in child development? Social workers, after many years of training, sometimes find it quite difficult to assess the level of a child's understanding and certainly their capacity to defend themselves in relation to this kind of accusation or occurrence. What concerns me most is that police officers on the street will be making assessments sometimes of quite emotionally young children. I accept that there may be a difference with 17 and 18 year-olds, but I am very concerned about young children. Police officers are there to do a different job.
Lord Bassam of Brighton: I respect what the noble Baroness says. She is much more experienced in these matters than I am and obviously understands and appreciates the value of police training. She is absolutely right to say that the role of police officers is very different. But that relationship must exist. The police deal with young people on the streets. It is right that training is put in place, but we will have to ensure that it is appropriate for the powers proposed in the legislation. I am firmly of the view that the training will have to be informed by links with the wider professional group that comes into contact with young people. It is many years since I was a social worker, and I was not a terribly successful one, but the one thing that I drew from the experience was that I was part of an important network with considerable responsibility. That responsibility was not taken lightly by any of the professionals involved.
We understand the importance of child-proofing and ensuring that proper relations are drawn across Whitehall in understanding how the legislation will operate. All Members of the Committee who contributed to the debate made that important point. We will try to take it on board.
Lord Elton: The Minister can answer this question after sitting down because we are in Committee. I remain anxious about what I am hearing. The noble Baroness, Lady Howarth, has made a very important point. A policeman will not know a child's exact calendar age, mental age and emotional age. Given that there is bound to be error, it is important that the system for all children should protect those who need protection, even if it means doing so where perhaps it is not thought necessary. Therefore, it seems important that the protection already provided in statutes should not be lost to these people because of the very attractive idea otherwise of letting them go before they get to the police station.

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I presume that the job description of the Minister for Children was worked out before the honourable Member was appointed. Where can we see a description of the Minister's duties and functions?
The Earl of Listowel: I thank the Minister for offering extensive consultation, as I understand it, with the children's charities as the Bill proceeds; it is very welcome. I wish to draw attention to care-leavers. There has been much concern about care-leavers' involvement with the criminal justice system in the past. Often they can appear older than they are, as they have had to look after themselves from a young age. I am sure that we will discuss care-leavers in some detail in the future, but I wish to mark up my concern.
Lord Bassam of Brighton: I appreciate all the concerns raised. This has been a very valuable discussion. The police deal with juveniles on the street every day of their working lives, so they have an immense body of experience to draw on. There has been agreement today that sometimes they make mistakes, but the considerations that they have at present are important.
There will be a cautious approach, certainly at the outset, in how the measure is applied. The police will be very mindful that, if it is clear that someone is vulnerable, it would be much better for them to apprehend the individual—of whatever age—to ensure that they are taken properly to a police station and the usual processes are followed through. My guess is that there will be very cautious use of the measure, particularly with younger people and those who we might consider vulnerable. Nevertheless, the legislation gives effect to a very powerful and, in some ways, liberalising measure.
Baroness Walmsley: I am very grateful to all Members of the Committee who have supported the amendment. The Minister will note that support came from all sides of the Committee. He may be interested to know that many on his own Benches, although they have not spoken today, are very supportive of this and similar amendments.
I, too, am as interested as the noble Lords, Lord Elton and Lord Campbell-Savours, in the remit of the Minister for Children, Margaret Hodge. All members of the All-Party Children Group would be very pleased if her remit were based on the United Nations Convention on the Rights of the Child and our obligations under it. We would regard that as a step very much in the right direction.
A one-size-fits-all approach is totally inappropriate for children. Anyone who has ever seen their three-year-old daughter shuffling around the house in one's high-heel shoes, or their four-year-old son tramping around in one's husband's football boots, will realise that. This is adult legislation being made to fit children—it just does not fit.
The Minister said that the police would operate the clauses with great care. Great care will not really do in that respect. He said that a police officer would bring in street bail only if he could be satisfied that the child
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understands the implications, that he will tell his parents, and that a name and address has been supplied. As the noble Baroness, Lady Howarth, said, how can he know whether the child has understood, that he will tell his parents, and that the name and address supplied is not completely fictitious? He simply cannot.
Although I am very grateful to the Minister for his commitment to consulting the children's charities about the guidance to be written, it seems almost unbelievable that appropriate guidance can possibly be written. However, I am sure that the children's charities will be delighted to consult to see if such guidelines could be produced to protect children in respect of street bail. To be frank, that is highly unlikely. However, given the strength of feeling that has been demonstrated in the Chamber today, it is likely that we will return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 to 17 not moved.]
Clause 3 agreed to.
Clause 4 [Use of telephones for review of police detention]:
Baroness Anelay of St Johnsmoved Amendment No. 18:
Page 4, line 14, after "out" insert "with the authority of an officer with the rank of superintendent or above"
The noble Baroness said: In moving this amendment, I wish to speak also to Amendments Nos. 19 and 20. For the convenience of the Committee, I shall speak also to the Question that Clause 4 stand part of the Bill. I have given prior notice to both Front Benches in order to save a little of the Committee's time.
I turn to the question of the use of telephones for review of police detention. It is a serious matter that was fully debated in another place in Committee. At issue is the restriction of one's liberty and the police's deciding to do that over the telephone. Clause 4 allows reviews of detention under PACE to be conducted by telephone rather than requiring the reviewing officer to be present at the police station.
Amendment No. 18 would require the authority of a superintendent to be given before a telephone review could take place. Will the Minister tell the Committee whether it is intended that there should be any such check on the use of telephone reviews or whether they will become the norm?
Amendment No. 19 would require that the review be carried out by an officer of at least the rank of inspector. That is the case under the existing wording of Section 40A, but it appears to have been omitted here. Is that therefore an intentional change to the existing provision?
Amendment No. 20 would allow the detained person to be legally represented while the telephone review was being carried out. Will the Minister confirm that that is the Government's intention?
With regard to Clause 4 in its totality, the Parliamentary Under-Secretary of State, Mr Benn, admitted in another place that the provisions relating to telephone review and detention, which the Bill replaces, were inserted into PACE by the Criminal Justice and Police Act 2001, but were never brought into force. The 2001 Act allowed telephone reviews where it was "not reasonably practicable" for the reviewing officer to be present at the police station. Clause 4 omits the "not reasonably practicable" test and allows telephone reviews in all circumstances.
It is astonishing that the Government seek to go much further than was envisaged in the 2001 Act in relation to telephone reviews, without even testing out the provisions that were put into that Act in the first place. Perhaps the Minister would comment on the following words:
"A review by telephone with no visual contact between the reviewing officer and the detainee is not satisfactory ‖ Such reviews are better than no review, but they should be reserved for circumstances in which there is no reasonable scope for alternatives. That is why we are proposing the term 'not reasonably practicable"'.
Those are the words of the predecessor of the noble Baroness as Minister of State at the Home Office, Mr Charles Clarke, in the Standing Committee on the Criminal Justice and Police Bill 2001 in another place on 7th March 2001 at column 560. I beg to move.
6.15 p.m.
Baroness Harris of Richmond: The clause amends Section 40A of PACE, but the section is not in force, as was cited at the second sitting of the Commons Standing Committee on 17th December at column 73. We on these Benches are generally in favour of telephone reviews, but we would like to hear a number of issues addressed. The new section, Section 40A, does not specify that an inspector should carry out the discussion on the review of the detention. Will the Minister confirm that it is indeed the intention that an inspector should deal with that? If that is so, will that assurance be given in the Bill?
We have considered this point before, during the proceedings of the police Bills with which I have been involved. I have witnessed a steady downgrading of the ranks who are now carrying out increasingly more responsible roles. We will soon be asked to let constables undertake this sensitive task, no doubt, and probably without recourse to parliamentary scrutiny.
Why are we amending legislation that we passed only last year that has not even been used yet? It would have been preferable to experience its workings before attempting to amend it.
How will the consideration be made that will need to be taken into account when deciding whether or not to carry out a review by telephone?
The clause is about extending someone's detention and is a serious and sensitive matter. It touches on questions of civil liberty and the right of the police to detain someone. It should never, ever, be treated lightly or indiscriminately. There should be reviews of
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its effects and a clear undertaking that a senior officer of a rank not below that of inspector should conduct those reviews. Although we are generally in favour of reviews by telephone, we do not think that it is necessary to tamper with something that is not presently in force.
How do we judge whether it is necessary to have the greater flexibility that the changes will introduce? It could become routine practice for matters to be dealt with over the telephone by an unknown police officer who has little grasp of the issues or the background involved in the case. Also, the proposal could facilitate people being detained for too long and without good reason. The person taking the decision should be able to form an independent judgment, and it is vastly preferable that that person should be the inspector at the police station rather than on the telephone. When an inspector is not available, the facility provided for under Section 40A as it is currently drafted is satisfactory. For all those reasons, we oppose the question that Clause 4 stand part of the Bill.
Lord Renton: I do not go as far as my noble friend Lady Anelay, even with her great experience of police matters. The mobile telephone has enabled a great deal to be achieved in the prevention of crime and the arrest of criminals. The clause, especially should the amendments proposed by my noble friend Lady Anelay be accepted, creates a realistic application of what legitimately needs to be done. However, we must specify the authority of the officer involved, as in Amendment No.18, which states, "a superintendent or above", or Amendment No. 19, which states:
"an officer of at least the rank of inspector".
Also, although it has scarcely been mentioned, it is important to bear in mind what is proposed in Amendment No. 20. If there is a legal representative—and there will be very soon—that representative should be brought into the matter, so Amendment No. 20 is also very important. I hope that the Government will accept the amendments, although I fundamentally agree with the clause.
Lord Alexander of Weedon: I agree with my noble friend Lord Renton. As I see it, it is something of a reserved power for situations in which video conferencing facilities are not permissible. The three amendments to which my noble friend drew attention are sensible and would limit the potential for dispute about the standards of the process. Also, having the telephone facility may sometimes assist the defendant to reach a decision favourable to him or her that might not otherwise be reached as speedily.
Lord Bassam of Brighton: I am grateful for all the contributions to the debate and for the temper in which the discussion took place. It was most helpful. I shall work through the amendments.
Amendment No. 18 would limit telephone reviews of the need for continuing detention without charge to circumstances in which an officer of at least the rank of superintendent had given authority. Our view is that telephone reviews are generally a satisfactory

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alternative to reviews conducted in person. The noble Lord, Lord Alexander of Weedon, made the point that there was a positive side for many potential defendants. Such reviews may allow them to be released sooner than they had expected. The facility has a positive effect and is not there only for the convenience of the police officers involved in the particular arrest and detention.
The considerations to be taken into account when deciding whether to carry out a review by telephone will need to be covered in further guidance to the police. However, we do not think that such reviews should be considered so exceptional as to require a very senior officer's authority, as the amendment would require. If the amendment were made and such authority were required, the police would lose much of the flexibility that the new arrangements are intended to create. We should consider the responsibilities that a superintendent or chief superintendent might have. Calling on such an officer to conduct a review by telephone would be to draw on an important police operational resource. Generally, it would represent an onerous and unnecessary administrative and bureaucratic burden, and we do not see any need for such a stringent level of control.
PACE provides for the detained person or any solicitor representing him who is available at the time to have an opportunity to make representations to the reviewing officer before any decision about the continued need for detention without charge is taken. That applies to telephone reviews as much as to reviews in person. Creating an absolute right for a solicitor to be present during a telephone review, as the amendment suggests, could create long delays while people wait for the solicitor to attend at the police station. That would tend to defeat the key purpose for which telephone reviews are being introduced.
The criteria for extending detention are clear. The reviewing officer must have reasonable grounds to believe that continued detention without charge is necessary to secure or preserve evidence or obtain evidence by questioning. Coupled with other protections, such as the clear right to make representations, that should be sufficient to protect against unjustified periods in police custody. A requirement to allow a solicitor to be present, such as Amendment No. 20 would create, is impracticable and unnecessary.
Amendment No. 19 is unnecessary in any event. All reviews of detention without charge, including telephone reviews, must be carried out by an officer of at least the rank of inspector. That point is already covered.
It is not our intention that reviews by telephone will become the norm. I welcome the support given to the clause in general by the noble Baroness, Lady Harris of Richmond. I know that she understands, from a practical perspective, the problems that can exist for a police force in a large, sprawling rural area. We see the benefit of telephone reviews in circumstances in which it would be impractical for police officers who might be available to conduct a review in person to travel
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large distances to do so, with all the difficulties of moving around that that could create. I think, in particular, of North Yorkshire police area and of Devon and Cornwall area, which is long and narrow. In such areas, it would take many hours for an officer to travel from one end of the area to another. To restrict the operation of telephone reviews in the way in which the amendment suggests could have serious consequences.
The noble Baroness, Lady Anelay of St Johns, raised an important point with regard to Section 40A of PACE. It was introduced after Committee in another place and brought into force as of 1st April this year. We see it as having value. I take the point that the noble Baroness made, and I appreciate the fact that she coupled it with the stand part debate.
PACE, as amended by the Criminal Justice and Police Act 2001, makes provision for reviews of detention to be conducted by telephone, if it is not reasonably practicable for the reviewing officer to be present at the police station. I have already said that we do not expect that to be the norm. We expect the major benefit to be to large rural police areas. We want to broaden the capacity for review, so that telephone reviews can also be used where they are considered the most practical and efficient approach. We seek to focus on practicality and efficiency.
All discussions about the review will be held over the telephone, including any representations made by or on behalf of the detained person. A review in person could still be carried out, in any event, if the reviewing officer considered it necessary to the decision-making process. If the reviewing officer comes to the conclusion that it is important to be there in person while the review is carried out, he will decide to do so. Such officers will have to make the decision first-off, before proceeding to determine the next step.
The noble Lord, Lord Alexander of Weedon, raised a point about the value of telephone reviews. He referred to video conferencing. It is important to put it on record that we would not expect a telephone review to take place if there were a facility for video conferencing, which is a superior facility of tremendous value. We would expect that approach to be adopted first-off.
The provision will help the police to overcome the resource and logistical problems of arranging reviews, especially at night. It would also be of tremendous value in saving inspectors' valuable time, particularly time spent covering vast distances in larger rural police areas. It is for those reasons and to improve the efficiency and effectiveness of the police service that we believe that the approach is right and seek to amend, at this early stage, what is, I accept, a relatively new provision that has not yet been widely used.
My final point is that guidance will be important, and we intend to review and monitor carefully the way in which the clause is introduced, not just because of its value but because we see it having long-term importance and significance in improving police effectiveness.
Lord Renton: Before the noble Lord sits down, does he realise that unless these amendments are accepted a detained person, who may be innocent, can continue to be detained by an inexperienced young police constable? Is he content with that and is it right? Surely we need some safeguard of the kind these amendments propose.
6.30 p.m.
Lord Dholakia: I should like to add to what the noble Lord said. I understand that when the matter was discussed in the other place, the government body, the Youth Justice Board, expressed serious concerns, particularly in relation to the detention of young people. The Minister is reported to have said that the Government would certainly consider safeguards. I see no mention of that whatever. Can the Minister indicate the concerns expressed by the Youth Justice Board and have those concerns been met in relation to young people?
Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Dholakia, for raising that last issue. We are still considering the points made. Therefore, it would be inappropriate for me to comment on that observation. But it is an important contribution. Yes, it is right that safeguards are in place. To pick up the point raised by the noble Lord, Lord Renton, that is why it will take a senior police officer—an inspector, a very senior rank—with considerable experience to make the decision as to whether a review needs to be undertaken in person or via the telephone. I consider an inspector to be of very senior and important rank and an integral part of middle management within the police service. It is a pivotal position. This power needs to be properly exercised by someone with the experience that an inspector carries.
Lord Ackner: Will the Minister confirm that an arrested person has the right, in relation to these telephone methods of dealing with the case, to be represented at the interview if he so requests? If the Minister can confirm that, I do not follow why there is any resistance to the suggestion that the arrested person should be so informed of that right to ensure that he exercises it if he wants it.
Lord Bassam of Brighton: The position is that a person who is so detained is advised on arrest that he or she can have legal representatives there when interviewed. That is standard practice. A person who is providing legal advice will be advised of the review and will be able to make representations on behalf of the person who it is considered should be further detained. The provision, significance and involvement of the person able to give legal advice is there at all stages, as it always has been.
Lord Ackner: In those circumstances, why is Amendment No. 20 being resisted?
Lord Bassam of Brighton: Because—
Lord Brennan: I am generally in favour of any means of saving costs and expediting decisions involving the
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liberty of the subject that are reasonable. I invite the Minister, in his further considerations, to bear in mind what I am about to relate. When we telephone our bank to complain about its bad service we endure the savage irony of a lady telling us that the conversation will be recorded in order to preserve quality control. The process we are presently discussing, however seriously, involves the liberty of the subject. If it is not to be the norm, if it is not to be used should video conferencing be available, if it is to be the subject of careful guidance, we can assume that the occasions for its use will not be too many. In those circumstances, if the integrity of the process has to be demonstrated, is that not going to be successfully achieved by recording the telephone conversation between the inquiring officer and the advising officer?
Lord Ackner: Before the Minister answers the noble Lord's question, can he answer mine? Simply, what is the basis of the Government resisting Amendment No. 20? By all means, then reply to the noble Lord's question.
Viscount Colville of Culross: Can the Minister confirm my recollection about these reviews? They are of the utmost importance to the person being detained. One of the ways in which they are important is that the reviewing officer should reassure himself that the people carrying out the investigation are getting on with it. It is not something for which the defence solicitor will be much use. He may wish to know it but he will not be able to assist. What the reviewing officer wishes to know is that there are still grounds for detention in that ongoing inquiries are actively taking place. In the type of geographical circumstances mentioned by the noble Lord, Lord Bassam—I remind him of the Dyfed-Powys force and some of the other Welsh forces where the distances are very great indeed—it is extremely important that the reviewing officer should talk to the people on the ground who are at the police station and carrying out the investigations. That is as much of a safeguard for the person who has been detained as having the solicitor present in the course of the review. There is a better balance here perhaps if looked at in that way.
Lord Bassam of Brighton: The noble Lord makes a very important point. For operational reasons, which in a sense is the counter-argument raised by my noble friend Lord Brennan, the significance of having the facility to review these very few but appreciable cases and recognising the importance of the individual's liberty, obviously is as important as anything else. Operationally, that facility must exist.
The answer to the question of why we are resistant to Amendment No. 20 is simple. As it is, with the proposition that it contains, Amendment No. 20 could create long delays in many cases while waiting for a solicitor to attend the police station. If it is difficult for the police officer to attend the police station to conduct the review in person, it may equally be the case in large geographically spread out police authority areas for the solicitor or legal representative to attend

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the police station. That would tend to defeat a key purpose for which telephone reviews are being introduced.
The criteria for extending detention are and will be clear. The reviewing officer must have reasonable grounds to believe that continued detention without charge is necessary to secure or preserve evidence or obtain evidence by questioning. That very important criteria, which in some circumstances will be limited, must be satisfied. The criteria will be very clear and will have a bearing on the judgment made by a senior police officer. Understanding the importance of that should impress upon Members of the Committee who have been raising and pressing these amendments. I understand the concern about the individual's liberty, but the operational advantages and, coincidentally, the point made by the noble Lord, Lord Alexander of Weedon, about the benefits to the arrested person, are also important considerations. Efficiency and effectiveness are key parts of our argument. While we respect the liberty of the individual, we must have regard to the importance of operational matters in these situations.
Lord Dholakia: Before the Minister sits down, I asked about the Youth Justice Board which expressed serious concern about the detention of young people in this provision. The Minister replied that the Government are giving serious consideration to this matter. We should like to know precisely what is the intention of the Government in relation to the representation made by the Youth Justice Board? Would it not be wise for the Government to withdraw this clause until they are in a position to come back and inform the Committee about the action they intend to take?
Lord Bassam of Brighton: The answer is plainly "no". Parliament recognised the importance and significance of this power in earlier legislation. We greatly respect the advice that is given to us from all quarters—not least, of course, from the Youth Justice Board, which does brilliant work and has an excellent track record.
Obviously the guidance will have to be clear where juveniles are concerned and we are listening to representations on that issue. It would not be appropriate to withdraw the clause or power while we take on board the comments and observations being made. Ultimately, the guidance will be critical to the way in which the provision is operated. That is common in this kind of legislation and in many other kinds of legislation.
Lord Alexander of Weedon: The noble Lord kindly referred to the broad support that I give to the principle of the clause but, having listened to the debate and the question of the noble and learned Lord, Lord Ackner, will the Minister consider whether the effectiveness of the process includes its validity? If it does, would it not be sensible to accept unreservedly that a person has the right to the presence of legal representation, and to be told that he has that right?
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That would complete the integrity of the process, which is surely one of the points at the heart of its efficiency.
Lord Bassam of Brighton: I respect what the noble Lord says about the validity of the process—that is an important consideration—but there is no need for legal advice to be physically present. Representations can be made over the phone and the amendment does not take us any further in that regard. Amendment No. 20 is not needed. Legal representatives do not always attend physical reviews at present. The operation of the review process has worked very well and we are not aware of any wholesale abuse of it. We believe that we have got the balance about right.
I listen to what the noble Lord, Lord Alexander, has to say about this because I know of his great experience in this field. Obviously we will continue to consider the point he has made as we go through the legislation, but we are content with the way it is drafted.
Baroness Anelay of St Johns: I am grateful to the Minister for his response. particularly because in this complex debate he has been called upon to respond at different times to different points as it has developed. Detention is a serious matter. As the noble Baroness, Lady Harris of Richmond, said at the beginning of the debate, this is a serious, sensitive matter of civil liberty.
We believe that a senior officer should be involved. I was intrigued by the Minister's response that a senior officer, an inspector, was involved. He referred to a senior officer in middle management, so suddenly "senior" is "middle". I am not too sure where the logic is in that, but never mind.
I am concerned with the issues raised by my noble friend Lord Alexander of Weedon about the integrity of the whole process. The Minister has directed us time and time again—both in this debate and before it—to the issue of guidance. I shall dream tonight that guidance will form the third, fourth or fifth volume of the Bill. There is a deep concern that without the safeguards in my amendments the Government have not justified their stance on Clause 4.
The killer blows came from two quarters. First, from the noble Viscount, Lord Bledisloe—I beg the Committee's pardon, from the noble Viscount, Lord Colville of Culross. I am looking at the right person but saying the wrong name. I apologise to the noble Viscounts, who are both in their places. One killer blow was delivered by the noble Viscount, Lord Colville of Culross, when he referred to the fact that the reviewing officer needs to be there to check upon this serious process. The second lethal blow was dealt by the noble Lord, Lord Dholakia. We have not been told the response to the Youth Justice Board.
Although I shall not press my amendments, I believe that the Government need further time to consider the whole issue and to bring forward a good Clause 4. When we get to clause stand part I shall maintain my objection. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 and 20 not moved.]
6.45 p.m.
On Question, Whether Clause 4 shall stand part of the Bill?
Their Lordships divided: Contents, 115; Not-Contents, 117.

Division No. 1

CONTENTS

Acton, L.

Hogg of Cumbemauld, L.

Ahmed, L.

Hollick, L.

Allenby of Megiddo, V.

Hollis of Heigham, B.

Amos, B.

Howarth of Breckland, B.

Andrews, B.

Howie of Troon, L.

Ashton of Upholland, B.

Hoyle, L.

Bamett, L.

Hunt of Chesterton, L.

Bassam of Brighton, L.

Hunt of Kings Heath, L.

Beaumont of Whitley, L.

Janner of Braunstone, L.

Berkeley, L.

Jones, L.

Billingham, B.

Judd, L.

Blackstone, B.

Kirkhill, L.

Bledisloe, V.

Lea of Crondall, L.

Borne, L.

Lipsey, L.

Bragg, L.

Lockwood, B.

Brennan, L.

Lofthouse of Pontefract, L.

Brooke of Alverthorpe, L.

Macdonald of Tradeston, L.

Brookman, L.

McIntosh of Haringey, L.

Burlison, L.

McIntosh of Hudnall, B.

Campbell-Savours, L.

MacKenzieof Culkein, L.

Carter, L.

Mackenzie of Framwellgate, L.

Chan, L.

Massey of Darwen, B.

Chandos, V.

Milner of Leeds, L.

Clark of Windermere, L.

Mitchell, L.

Cohen of Pimlko, B.

Morgan, L.

Colville of Culross, V.

Morris of Aberavon, L.

Cooke of Thorndon, L.

Patel of Blackburn, L.

Corbett of Castle Vale, L.

Pendry, L.

DarcydeKnayth, B.

Peston, L.

David, B.

Pitkeathley, B.

DaviesofCoity.L.

Plant of Highfield, L.

Davies of Oldham, L.

Prys-Davies, L.

Dean of Thomton-le-Fylde, B.

Puttnam, L.

Desai, L.

Radice, L.

Dixon, L.

Ramsay of Cartvale, B.

Dormand of Easington, L.

Randall of St. Budeaux, L.

Dubs, L.

Rea, L.

Elder, L.

RendellofBabergh, B.

Erroll, E.

Rooker, L.

Evans of Parkside, L.

Sainsbury of Turville, L.

Evans of Temple Guiting, L. [Teller]

St.John of Bletso, L.

Sawyer, L.

Falconer of Thoroton, L. (Lord Chancellor)

Scotland of Asthal, B.

Simon, V.

Farringtonof Ribbleton, B.

Symons of Vernham Dean, B.

Faulkner of Worcester, L.

Taylor of Blackburn, L.

Filkin, L.

Temple-Morris, L.

Gale, B.

Thornton, B.

Gibson of Market Rasen, B.

Tumberg, L.

Gilbert, L.

Turner of Camden, B.

Golding, B.

Warner, L.

Goldsmith, L.

Warwick of Undercliffe, B.

Gordon of Strathblane, L.

Weatherill, L.

Gould of Potternewton, B.

Whitaker, B.

Graham of Edmonton, L.

Whitty.L.

Grocott, L.[Teller]

Williams of Elvel.L.

Hardy of Wath, L.

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

Hayman, B.

Hilton of Eggardon, B.

Woolmer of Leeds, L.

NOT-CONTENTS

Aberdare, L.

Liverpool, E.

Ackner, L.

Luke, L. [Teller]

Addington, L.

Lyell, L.

Alexander of Weedon, L.

MacGregor of Pulham Market L.

Alton of Liverpool, L.

Anelay of St Johns, B.

Mackie of Benshie, L.

Astor of Hever, L.

Maclennan of Rogart, L.

Barker, B.

McNally, L.

Biffen, L.

Maddock, B.

Blaker, L.

Manaoft, L.

Blatch, B.

Mar.C

Bowness, L.

MarandKellie, E.

Bridgeman, V.

Marlesford, L.

Brooke of Sutton Mandeville, L.

Marsh, L.

Brougham and Vaux, L.

Mashamofllton.B.

Burnham, L.

Mayhew of Twysden, L.

Buscombe, B.

Miller of Hendon, B.

Caithness, E.

Monro of Langholm, L.

Carlisle of Bucklow, L.

Montrose, D.

Camegy of Lour, B.

Mowbray and Stourton, L.

Cavendish of Furness, L.

Murton of Lindisfame, L.

Chadlington, L.

NeillofBladen, L.

Clement- Jones, L.

Newby, L.

Colwyn, L.

Northbrook, L.

Cope of Berkeley, L.

Northesk, E.

Craig of Radley, L.

Norton of Louth, L.

Craigavon, V.

Oakeshott of Seagrove Bay, L.

Crickhowell, L.

O'Cathain, B.

Denham, L.

Pearson of Rannoch, L.

Dholakia, L.

Peel, E.

Dixon-Smith, L.

Perry of Walton, L.

Elliott of Morpeth, L.

Phillips of Sudbury, L.

Elton, L.

Rawlings, B.

Feldman, L.

Razzall, L.

Fraser of Carmyllie, L.

Reay, L.

Gardner of Parkes, B.

Rees, L.

Geddes, L.

Renton, L.

Goodhart, L.

RusseU. E.

Gray of Contin, L.

Scott of Needham Market, B.

Greaves, L.

Seccombe, B.[Teller]

Greenway, L.

Selborne, E.

Griffiths of Fforestfach, L.

Shaw of Northstead, L.

Hanham, B.

Shutt of Greetland, L.

Hanningfield, L.

Skelmersdale, L.

Harris of Richmond, B.

Smith of Clifton, L.

Haskins, L.

Stem, B.

Higgins, L.

Stewartby, L.

Hodgson of Astley Abbotts, L.

Stoddart of Swindon, L.

Howe, E.

Strathclyde, L.

Howe of Aberavon, L.

Swinfen, L.

Howeofldlicote, B.

Thomas of Gresford, L.

Howell of Guildford, L.

TordofT, L.

HuntofWirral, L.

Trefgame, L.

Hurd of Westwell, L.

Ullswater, V.

Hylton, L.

Vivian, L.

Jacobs, L.

Waddington, L.

Jenkin of Roding, L.

Wakeham, L.

Jopling, L.

Walmsley, B.

Kimball, L.

Walpole, L.

Resolved in the negative, and Clause 4 disagreed to accordingly.
Clause 5 [Limits on period of detention without charge]:
Baroness Anelay of St Johnsmoved Amendment No. 21:
Page 4, line 26, leave out "an arrestable offence" and insert "an offence which is triable only on indictment"
The noble Baroness said: With the leave of the Committee, I shall speak also to Amendments Nos. 22, 23 and 24, the last of which is in the name of the noble Baroness, Lady Walmsley.
At present, detention for up to 36 hours is confined only to what are termed "serious arrestable offences", as defined in PACE. The Government propose to enlarge the range of offences for which detention for up to 36 hours is possible by changing this to "all arrestable offences". My amendments present two alternatives of choice to the Government and to the Committee. The first would change "arrestable offences" to offences "triable only on indictment". Although that would of course allow robbery, at which it appears the clause is aimed, to be covered, I recognise that this would create some anomalies in relation to theft of substantial sums, as was pointed out at col. 88 in Committee in another place.
I have therefore drawn up my alternative set of amendments, Nos. 22 and 23, as a pair. They would retain the existing wording of "serious arrestable offence" but would allow detention of up to 36 hours for other offences as specified by the Secretary of State. That approach would allow the Government to specify offences such as robbery, if that is what they wish; it would give them flexibility while also giving us some certainty and parliamentary scrutiny of what offences would be covered.
I ask the Government at what particular mischief the clause is aimed. Surely the police do riot, as a rule, want to detain people for 36 hours for every sort of arrestable offence. I find that difficult to believe. So why have the Government rejected the approach of specifying particular offences such as robbery, for which the power is sought?
I have added my name to the amendment in the name of the noble Baroness, Lady Walmsley, but will leave it to her to expound upon it. I simply say here, as I did on a previous occasion, that in this respect, as in others, it is vital that we should consider the interests and welfare of children. I beg to move.
Lord Waddington: It seems to me that as a result of Amendment No. 6, which was carried a short time ago, we are left in a completely absurd position. Clearly, something has to be done. As a result of the acceptance of Amendment No. 6, possession of a class C drug is an arrestable offence; as a result of Clause 5, anybody who is arrested for an arrestable offence can be detained without charge for up to 36 hours. That means that anybody in possession of some of the fairly innocuous drugs listed as class C drugs, including anabolic steroids, can find himself detained for 36 hours. That is manifestly absurd.
Somehow or other, the Government have to get themselves out of the mess they have got into as a result of Amendment No. 6. I am not quite sure how they will do it, but things certainly cannot be left as they are.
Lord Carlisle of Bucklow: Following on from what my noble friend Lord Waddington has said, if one accepts the premise that the time one should be held in detention prior to charge should be as short as possible, on what basis do the Government justify making this change at all? Am I right in saying that all the research that has been done and figures that have been collated show that the average time for which
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people are kept in detention, for arrestable but not seriously arrestable offences, is well below the limit of 24 hours? If that is so, what is the justification of putting it up to 36 hours?
I point out to the Minister that, in practice, many arrests for the type of offence that will now be covered will take place in the evening. This will result in people spending the equivalent of two nights in the nick rather than one—for them, a great deal of time. There is no justification for removing or changing the wording at all in view of the way "arrestable offence" is already defined in the PACE legislation.
7 p.m.
Lord Alexander of Weedon: I support Amendment No. 22 in particular as it seems to give the Government an appropriate degree of flexibility. What concerns me about the proposal is that there seems not to be any very good reason for it. It will apply to minor offences, as my noble friend Lord Waddington said, but it will also cover offences such as touting for car hire services and traffic offences.
The Home Affairs Select Committee in the House of Commons was in no sense convinced that there was a general problem. Its report said:
"We therefore question the need for an extension in non-serious cases. There are other—more appropriate—provisions in the Bill, which are designed to assist the police in conducting their investigations before charge".
There does not seem to be any special reason why we should need a longer period of detention without charge than most other civilised jurisdictions. In another place, the figures were helpfully supplied for other jurisdictions. We are told that in Australia,
"in New South Wales, the period of detention is four hours. In Queensland, it is eight hours, which can be extended for a further eight hours with a magistrate's approval. In South Australia, the period is four hours, with a four-hour extension granted by a magistrate. In Canada, the period is 24 hours, with a possible extension from a justice of the peace. In Denmark, it is 24 hours, with a 48-hour maximum, to be extended by the court. In Finland, the period is 24 hours. In France, it is 24 hours, with an extra 24 hours possible on the stamp of the public prosecutor. In the Netherlands, the period is six hours, excluding the hours between midnight and 9 a.m., and there can be an extension of another six hours thereafter".—[Official Report, Commons, 2/4/03; col. 931.]
When other jurisdictions operate with a system in which 24 hours is an absolute maximum, unless extended by judicial authority, it would be deeply disappointing if for some reason we went for a longer period in our own country where we pride ourselves on the need to be alert—to keep people in custody for the minimum period. That is something for which the Minister would have to provide a very good explanation, which so far, reading all the material surrounding the Bill, I have not seen.
Baroness Walmsley: I wish to speak to Amendment No. 24, which is tabled in my name and that of the noble Baroness, Lady Anelay of St Johns. It is another probing amendment from the children's charities whose purpose is to ensure that children and other vulnerable groups are not subjected to the increased police powers to detain people for longer periods.

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As we heard, Clause 5 provides police powers for detaining suspects before any charge is made beyond 24 hours and up to 36 hours for any arrestable offence, and allows detention for a whole range of non-serious and in many cases very minor offences. The children's charities are concerned that the provision will lead to increased detention periods for children and believe that that should be weighed against what we know about how harmful periods of detention can be. The measures seem disproportionate, given the range of offences involved.
Amendments were tabled on Report in another place to delete the provision on the grounds that the range of offences being brought into it was not warranted. The Home Affairs Select Committee also expressed considerable concerns at the provision and is opposed to its introduction.
It is widely accepted that the numbers involved will be extremely small. However, the provision represents a dramatic lowering of the threshold for the significant deprivation of liberty at the behest of an individual—albeit senior—police officer without the need for magisterial involvement. Reduction of the threshold for the exercise of the power to "arrestable offences" means that offences such as football ticket touting are in effect viewed as equivalent to murder and firearms offences when consideration of extended detention is made.
The Government have said that the change is necessary in order to bring into the existing provision offences such as robbery, but that is not one of the current specified offences nor does it fall within the offences covered by the definitions in Section 116 of, and Schedule 5 to, the PACE Act. If there is real concern about particular offences, the simple course of action would either be to include robbery in the specified offences, amend the definition or accept Amendment No. 23, tabled by the noble Baroness, Lady Anelay. The recent revision of the PACE codes of practice, operational as of 1st April, saw a significant revision of the level of seniority of officers who could authorise suspension of the codes and their provisions. My noble friend Lady Harris expressed concern on that matter earlier. The result is that the majority of decisions are now exercised by officers at the level of inspector, or even a suitably qualified sergeant. The children's charities are concerned that a future revision of the code would move the decision making for the increased powers to detain to those levels.
The organisations believe that it is essential to prevent any unnecessary extension of the detention period before charge for children. Cases involving children should be treated as a matter of priority to ensure that, as required by the UN Convention on the Rights of the Child, detention is used only for the minimum appropriate time. Detaining children for up to 36 hours for a range of arrestable offences does not seem a proportional response. Therefore, I look
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forward to hearing the Minister's comments on the amendment and whether she can give the children's charities and myself any reassurance on the matter.
Lord Mayhew of Twysden: Detention without charge is a familiar feature of all totalitarian states. In the case of democratic states, it is recognised as a regrettably necessary power in jealously scrutinised circumstances. I believe that to be quite right, as I am sure the Minister does.
I endorse the remarks of my noble friend Lord Alexander of Weedon, who very helpfully reviewed Commonwealth jurisdictions and other jurisdictions elsewhere in the world to make the point that the averages are way below the law in this country now, let alone what is proposed by the clause.
I should like to ask the Minister one question and make one point. Am I right in recalling that the present 24 hours derives from the recommendation of the Philips Royal Commission in 1978, on whose work the PACE Act is founded? I believe that I am, but I cannot be absolutely certain. If that is the case, the provision has survived for very little under 20 yeas. One wonders what recent development has created the necessity in the minds of the police or the Government to enlarge it, as the clause does.
The point that I wish to make is this. Does the Minister not accept that if this is to become available to the police, there is foreseeably going to be a lesser degree of urgency in the examination of a case and the investigation of the defendant than would otherwise be the case? Those cases ought to be examined urgently when the liberty of the citizen is involved. I hope that the noble Baroness will be good enough to deal with that in due course.
Baroness Howe of Idlicote: I rise very briefly to support Amendment No. 24. In doing so I pray in aid Amendment No. 21 as it was spelled out by the noble Baroness, Lady Walmsley. The noble Lord, Lord Alexander of Weedon, outlined the consequences of the time allowed for adults. His description brought home even more firmly how much more dangerous it is in every sense of the word to detain children longer than necessary and against all our international obligations. The comments of the noble and learned Lord, Lord Mayhew of Twysden, also carry weight. Why must it take longer in this country than in other countries? Are we that inefficient in doing what we must to proceed with charges? The point requires further explanation and I hope that the Minister will be able to satisfy us all.
7.15 p.m.
Baroness Scotland of Asthal: I hope that I will he able to explain why we think that a certain increased flexibility may be needed and may assist in this matter. Of course the noble Lord, Lord Waddington, uses this as an ideal opportunity to stress the consequences of reclassification as a class C drug. I acknowledge that we are going to deal with that matter. The noble Lords, Lord Carlisle and Lord Alexander, and the noble and learned Lord, Lord Mayhew, each asked the same

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questions—why are we doing this and why is change necessary. I shall turn directly to those questions which have been echoed by the noble Baroness, Lady Howe, and, particularly in relation to children. by the noble Baroness, Lady Walmsley.
The amendments in this group provide a good basis for discussing the whole purpose of Clause 5. I hope that the nature and breadth of the discussion that we are likely to have will mean that we will not require a separate clause stand part debate and that the noble Baroness, Lady Anelay, will resist a temptation to which she succumbed on another matter.
In essence, as Members of the Committee said, Clause 5 extends the time an arrested person may be detained without charge, with the authority of a superintendent—which, I stress, is a position even more senior than inspector; I think that the noble Baroness will accept that such dizzy heights indeed represent the most senior echelons of the police—from 24 to 36 hours for any arrestable offence, rather than just serious arrestable offences. The Committee will know that serious arrestable offences are either inherently very serious, as in murder, rape or kidnapping, or specific offences producing serious consequences, such as serious injury or serious financial loss. However, as I think the noble Baroness said in relation to a number of other offences including robbery, many offences which the police will need to investigate at some length and have significant consequences for victims will not qualify as serious arrestable offences.
There is an issue as to whether in order to bring about a small, significant and important change such as extending the time, we really want to move the large volume of cases out of the arrestable offence category into the serious category. A number of other consequences would flow from that. I should say straightaway that that path was considered. However, for reasons that I shall explain, we thought that it was perhaps not the best course to take.
As the Committee will know, PACE currently allows detention without charge for longer than 24 hours only in relation to a serious arrestable offence, within the category that I have just described. A superintendent can then authorise detention up to 36 hours, and in serious cases a magistrates' court can authorise detention up to an absolute maximum of 96 hours. So the noble Lord, Lord Alexander of Weedon, should bear in mind that in that regard our structure is already significantly different from others.
As I said, serious arrestable offences are inherently very serious because of their nature. However, there are some complex offences with significant consequences for victims which will not qualify as serious arrestable offences. The detention clock, however, starts ticking as soon as the arrested person arrives at the relevant police station. Delays over which officers have no control whatever can occur throughout the process. Such delays can eat into detention time and may even prevent police officers from concluding some investigations. That problem was strongly highlighted in the recent review of PACE
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which was undertaken jointly by the Home Office and the Cabinet Office and which involved discussions with a whole range of police officers at every level. The Home Affairs Select Committee has also accepted that the current position could cause difficulties.
PACE already allows for the detention clock to be stopped in one very specific scenario, which is where the detained person is removed to hospital for medical treatment. One option might be to extend the circumstances in which the clock could be stopped to a much broader range of delays. However, that could create major administrative and bureaucratic burdens through custody officers having to stop and start a large number of clocks for a whole variety of reasons. As I know that this issue troubles the Committee, I shall in due course give examples of what. has happened in practice. That may help the Committee to understand some of the difficulties with which we have regrettably had to deal.
Amendment No. 21, in the names of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, suggests limiting extended detention to offences that are triable only on indictment. Unfortunately that would have the undesirable consequence of reducing the existing scope for extended detention in relation to a number of offences which are arrestable but which can be tried either way and which may or may not be classed as serious arrestable offences. For example, theft of £100 would be an arrestable offence triable either way, either by the magistrates or by the Crown Court, whereas theft of £1 million, which is also triable either way, would be a serious arrestable offence. At present, the suspect in relation to the theft of £ 1 million could be kept in detention for up to 36 hours; but if this amendment were accepted, he could not. So in that regard the distinction between the serious arrestable offence and the arrestable offence would be expunged.
The solution we are proposing is to allow senior police officers a sensible but carefully controlled discretion to authorise extended detention in relation to a broader range of offences. Amendment No. 22, which was also tabled by the noble Baroness, Lady Anelay, would merely retain the current position. We cannot support that, as it has already been proven to have significant problems. Taken with Amendment No. 23—also tabled by the noble Baroness and the noble Viscount, Lord Bridgeman—it would allow for extended detention both for serious arrestable offences and for other offences specifically designated in secondary legislation. That would provide some additional flexibility, but it would not meet the broader objective of the clause, which is to allow senior officers the relevant discretion in relation to a whole set of offences which fall below the highest level of seriousness but which may nevertheless occasionally warrant longer periods of detention.
I believe that the noble and learned Lord, Lord Mayhew, said—he is right—that for the majority of cases 24 hours has sufficed and has been ample. However, it has caused difficulty in relation to some cases. The breadth of the problem is clear when one considers some of the offences which do not

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automatically qualify as serious arrestable offences. For example, as I said, they include theft, robbery, burglary, handling stolen goods, riot, threats to kill, actual bodily harm, indecent assault, blackmail, conspiracy to defraud, counterfeiting and criminal damage.
We do not think that it would be right to categorise all these and other offences as serious arrestable offences as that would open them up to a whole set of additional powers, some of which are unlikely to be appropriate; for example, the capacity for much longer detention up to 96 hours and for the police to delay the fundamental rights to legal advice and not to be held incommunicado. The Committee will appreciate that the offences can be variable in severity from the very heavy end to those which, technically, fall within the category but do not have the weight that would require the use of the additional powers.
Amendment No. 24 in the name of the noble Baroness, Lady Walmsley, concedes the general principle of allowing extended detention in relation to arrestable offences, but would limit that scope to serious arrestable offences where children or mentally vulnerable persons were involved. I say straight away that I appreciate the anxiety that the noble Baroness expressed in relation to the vulnerable, whether due to age, disability, infirmity or mental illness. We understand that. In reality, however, we do not think that what we are proposing in Clause 5 is opening up the prospect of such vulnerable individuals being held in detention for more than 24 hours in anything other than the most exceptional circumstances. We shall stress this aspect in guidance to the police, but any senior officer seeking to extend detention in such circumstances would be acutely conscious of the need for a complete justification of their action and very clear arguments to demonstrate that what they were doing was compliant with basic human rights. Nevertheless there will be rare occasions when the use of this extended power will be appropriate in relation to juveniles or the other vulnerable suspects. As I say, I fully understand the motivation behind the amendment, but I believe that it is not necessary.
It is worth re-emphasising that any authorisation for detention beyond 24 hours will continue to require the authority of a senior officer of at least superintendent rank. The range of offences potentially covered will be broader, but that process of consideration by a highly trained and experienced officer will continue. And, as now, that officer will have to be fully satisfied that the investigation is being conducted diligently and expeditiously before granting any extension whatever.
We have no reason to expect that the change we are proposing will result in large numbers of people being held in custody for extended periods. Under the current arrangements, Home Office statistics state that during 2001–2002 only 697 people were detained for more than 24 hours and subsequently released without charge. That gives us a flavour of the kind of care with which senior officers are currently operating the procedure. That is indicative of the relatively small
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number of cases in which lengthy detention is necessary and we do not think that the changes in Clause 5 will result in any huge increase. However, there will be a small set of cases where the broadened capacity will enable more investigations to be concluded effectively and avoid the consequences of rushing through investigations to beat the clock.
There is a whole set of reasons why the basic 24 hours detention period can be insufficient. I wish to give a number of examples of the species of case where we have discovered problems. For example, there may be issues linked to fitness for interview, multiple defendants to deal with or delays in connection with the provision of legal advice. Large amounts of time can also be lost obtaining translation support or the services of an appropriate adult required to support a juvenile or someone who is mentally ill. The noble Baronesses, Lady Walmsley and Lady Howe, rightly emphasised that it is important for vulnerable young people and people who are vulnerable due to their mental capacity to have people with them during the process to give them support. The problem is a practical one in that sometimes it takes considerable time to get the right people in the right place before matters can progress. As I indicated earlier, the police have provided us with many real life examples where these and other factors can cause significant problems.
One interesting case involved an allegation of making threats to kill. The suspect requested both a solicitor and a doctor, and an interpreter was also required. Several hours were used up awaiting the solicitor and consultations with him had to be interrupted when the doctor arrived. Then the interviewing process had to be suspended because the solicitor claimed that the interpreter's dialect was wrong and the suspect could not understand it. Many hours were absorbed by these interrelated delays and serious pressure was placed on the PACE clock. Therefore, the time spent in interview was short but the time spent making the necessary arrangements was not.
In another case a robbery suspect was eventually identified from fingerprint evidence, but was then arrested for another matter and transferred between police stations. When the PACE time was calculated, there was only one hour left and the superintendent concerned was not satisfied that the financial loss involved in the offence was sufficient to warrant treating it as a serious arrestable offence. Further necessary identification procedures could not be completed in the time available and eventually the suspect had to be released with no further action taken. That was the proper procedure but some would ask whether it was just in terms of the interests of justice and proceeding in relation to a case.
An interesting case involving multiple defendants saw five people, all with the same surname, arrested on suspicion of theft. The single solicitor who dealt with them all had to consult with each one individually and then participate in a complicated series of interlocking interviews. During the process one of the detainees asked for a private consultation with the solicitor and subsequently changed his story. The interviewing

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process had effectively to start all over again. That wasted a huge amount of detention time and illustrates, I hope, the severe problems which can arise in trying to deal with multiple-defendants within a reasonable timescale.
As regards medical issues, the police advised us of a case of two young men arrested in connection with a domestic burglary. Both were heavily under the influence of heroin and were examined by the police surgeon who certified them fit for detention but not for interview. Much of the initial 24 hour detention period had been absorbed before the interviewing process could even begin. In another case, a 19 year-old arrested for assaulting a police officer was kept under close supervision by the police surgeon due to drug issues. In the event he eventually had to be admitted to hospital, but by then nearly 17 hours of detention time had been used up.
The examples go on and on. For example, two 16 year-olds arrested on suspicion of theft of motor vehicles came into custody at 2 a.m. After a rest period, they were ready to be interviewed at 10 a.m. the following morning. Regrettably, no one from one of the juveniles' families was willing to attend. Difficulties in obtaining an appropriate adult from social services led to a very long delay. In the event, the interview itself took only just over half an hour, but all the delays were caused by matters wholly outside the control of the police.
Many further examples have been given to us. They basically show the logistical difficulty that there is sometimes in managing all the processes to make sure that the defendant's or the arrested person's rights are preserved, and that they get the right amount of assistance. Even when the police are trying extremely hard, they are sometimes fighting against the clock.
Rather than trying to set out a list of all those proper causes that would make the clock stop, we think it right simply to give the superintendent, in the limited number of cases where it may be appropriate, the very skilful job of deciding whether the police are prosecuting with the expedition we would wish, whether they are taking all reasonable steps, and whether their complaints and concerns in relation to what has prevented them from dealing with matters as quickly as they would wish are justified. Then he could decide whether there could be an extension.
If one looks at the breadth of offences and the species of cases where that may be necessary, one sees complexity. We understand why many of the suggestions in the amendments were made; frankly, we went through the same process when considering how to craft provisions that would not be so heavy and ponderous as to expand unnecessarily, but would target the mischief that had to be cured. With the greatest respect, we feel that we have alighted on the lightest touch that will be necessary, by giving someone of real seniority the opportunity to make those judgments on a practical basis.
I should share with the Committee the fact that the police have been very frank and conscious about the effect that some of the pressure of fighting against
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the clock may have on some of the judgments being made. They are conscious that they may sometimes be tempted to stretch the law so that a specific offence can be treated as a serious arrestable offence when the criteria are not really met. We have been made aware of cases that are clearly borderline, but that superintendents obviously feel under pressure to interpret as serious arrestable offences in order to allow time for necessary and clearly justifiable investigation work to be done.
We would rather that that temptation were taken out of harm's way, so that those superintendents who have legitimately and robustly policed the process properly will feel able to do so, and to make the sort of judgments that we would want them to make, against a clear backdrop. Of course, there will be guidance in relation to such matters.
In summary, we think that the limited and controlled extension to police discretion that the clause allows is fully justified by the practical problems that the current system causes for the police. As is currently the case, they will have to have good and demonstrable reasons to extend detention in every individual case. Such decisions will have to be taken at a senior level. If the police are to deal with crime effectively, they must have the powers and time that they need to do so. This is not a game of " 10 seconds—the clock is counting—and you're out". Things must be dealt with expeditiously and well. That is why the clause should remain part of the Bill, and why we oppose the various amendments.
The noble Lord, Lord Alexander of Weedon, gave us the examples of other states. Of course, he will know that each system depends not only on one clause, but on how the whole system operates together. We would point to many parts of our system, including the benefits of the common law and where it interacts with statute, to say that we would prefer our system to any of those to which he alludes. It is probably not possible for us to review each and every system and look at the benefits and disadvantages, because all countries would probably have the conceit in the end to say that they preferred their own. It is a poor thing, but it is mine own.
7.30 p.m.
Lord Thomas of Gresford: It is typical of this Government that they should put logistical difficulty and practical problems for the police ahead of liberty and the freedom of the individual. By definition, we are dealing with offences that are not serious. If, in the period of 24 hours, the police are incapable of getting together a solicitor, interpreter or doctor for an offence that is not serious, the prisoner should be released on bail and invited to come back with his solicitor and all the necessary support at a later date.
I would really like the noble Baroness to say on what basis that cannot be done. The idea that people should be held for up to 36 hours without the intervention of the court and without charge is simply unacceptable. She should not assume because my noble friend Lady Walmsley has confined herself to

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children's issues—she has done so throughout the Bill—that we as a party are not wholly in support of the amendments. That is why we oppose the Question that Clause 5 stand part of the Bill, which we shall debate later.
Lord Hylton: Will the Government consider requiring the approval of a magistrate for an extension from 24 hours to 36 hours? Surely that would be very easily done in places where there were stipendiary magistrates. As has been mentioned, it happens in a number of other common-law jurisdictions. It would be a useful safeguard to have.
Lord Mayhew of Twysden: Has the Minister yet been able to discover whether the present arrangement derives from the recommendation of the Philips Royal Commission? I ask that because she will find, in the introduction to its report, one of the finest expositions of the balance that has to be struck between administrative and security convenience on one hand and preserving the liberty of the citizen on the other. I happen to remember many conversations with Sir Cyril Philips in which it was perfectly clear how important he regarded the maintenance, within practical limits, of the liberty of the citizen.
The point has already been made but, in the cases that the Minister mentioned, to what extent would her problem not be solved by the extension of bail?
Baroness Scotland of Asthal: Let me deal first with the comments made by the noble Lord, Lord Thomas. I tried to give the practical examples not because we suggest for a moment that the rights of the individual should be suborned for simple administrative convenience. There is a balance between the needs of maintaining a person's individual liberty and the societal needs of having offences that have been committed interviewed properly, sought properly and charged properly if appropriate. Those are balancing issues of equal importance. The one does not expunge the other.
On the point raised by the noble Lord, Lord Hylton, to date it has been thought more appropriate for the flexibility of the procedure to be dealt with by a superintendent, particularly bearing in mind the speed with which that must be done. The noble Lord said that it could be done by what used to be a stipendiary magistrate—a district judge—but he will know that the numbers of district judges are far outweighed by the lay magistracy. We have taken the view to date that that is most appropriately done by a very senior officer, who will be able to assess what the operation demands and can judge whether the officers involved in undertaking the investigation really are proceeding with the matter expeditiously and dealing with matters in a way that is in accordance with good practice or, to put it colloquially, whether they are swinging the lead. It is often the practitioner who has had the day-to-day management of such cases who is much more able to question the officer about whether he has done that which he should have done in order to ensure that the
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person is dealt with properly and fairly. That is why we involve a very senior officer. In operational terms, they will be much better skilled for judging whether what they are being told by the officers on the ground about why they cannot make progress holds water or not.
Speaking for myself, the noble and learned Lord, Lord Mayhew, was right in his comments on the route from which the approach came. I have not been able to get confirmation in this regard. Like the noble and learned Lord, I should be relying on my memory. I hope that it is not faulty but one cannot rely on it in this regard when one speaks for the Government. I undertake to look at the matter.
The noble and learned Lord was absolutely right to say that a balancing exercise was involved. Our argument takes into account what the balance now is and gives voice in relation to the relevant cases. We do not suggest that a plethora of cases will be extended; a number of noble Lords, including the noble Lord, Lord Alexander of Weedon, and the noble and learned Lord, Lord Mayhew, said that for the greater majority of cases, 24 hours more than suffices and does not cause difficulties; the police are well able to manage cases within that time frame.
We seek flexibility for the exercise of discretion in relation to the small number of cases that are outside the norm. If we did otherwise—if we agreed to the suggestions in the amendment—we should have a much blunter instrument. One would catch many more offences unnecessarily. The provision allows the superintendent to have the flexibility to target only those cases, in relation to the different species of robbery and other issues, which are needful of this provision. We should be very reluctant indeed to say that the broad swathe of cases should simply be converted from arrestable offences to serious arrestable offences. That would send the wrong message: one that is directly opposed to what I believe noble Lords opposite say they want; they want the arrangement to be targeted, not extended.
We have given the matter much thought. Obviously, we will consider further everything that has been said in Committee. We still believe that this provision will enable us to have the lightest possible touch in order to deliver on those small number of cases in which the approach is needed but it will not so pollute the rest of the pool and put everyone in a very difficult position.
Baroness Anelay of St Johns: We have certainly had a full and rounded debate—
The Earl of Listowel: Before the noble Baroness withdraws the amendment, I thank the Minister for her full replies. Perhaps I missed her response to the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Thomas of Gresford, on extending bail. What was her response?
7.45 p.m.
Baroness Scotland of Asthal: Of course there is scope in relation to bail because all such matters will be interlocking. If these offences fall within that small

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category of cases in which the superintendent believes that bail is not appropriate at that moment because of the nature of the investigation, one would need the extension and one would not grant bail. If noble Lords look at the other provisions that we are introducing, they will appreciate that we are very much trying to encourage throughout the whole process the granting of bail wherever possible and allowing the person who is subject to arrest to come back to the police station to be interviewed. One sees that in our approach to street bail and giving prosecutors and those responsible for the investigation the ability to grant bail. We are talking about a species of case in which bail may not be appropriate in those circumstances and more time is needed in order to get the sort of investigation that will bring the matter to a speedy conclusion; the clock is ticking against the individual in that context. We should expect bail to be granted in all those cases in which it was appropriate and the person could come back and continue it. We would not expect that in those cases the superintendent would say that an extension of detention was necessary because they could say that the person could go and return on another day and that the investigation could be continued. That is the flexibility that we seek. However, that does not take away from the general thrust of our approach: wherever possible, bail should obviously be granted if it is appropriate to the circumstances.
Baroness Anelay of St Johns: We have had a full debate. The Minister will therefore be delighted to hear that I will follow her invitation and resist the temptation to speak separately to the Question whether Clause 5 should stand part.
The Minister began and ended by discussing the need for increased flexibility. The difficulty is that life is not very flexible when one is in a police cell. The clause is about increasing detention by up to 50 per cent.
I shall consider very carefully between now and Report the full information that the Minister gave in her attempt to counter the very powerful arguments that were advanced from all sides of the Committee. I do not believe that she met those arguments. It would be wrong to pick out some from so many because we should move on. However, I must point out that the situation regarding children has not been resolved. I believe that the time between now and Report could usefully be used to carry out further consultation and, if the Minister agrees, to have a meeting with her and her officials on that matter. We might be able to take matters further. She mentioned the question of guidance—that word returns again. Can she tell us whether the House will be able to see guidance on children at least before Third Reading?
Baroness Scotland of Asthal: I am not able to comment specifically on that. I should be more than happy to discuss these issues between Committee stage and Report, and not simply in relation to the issues involving children; I should be happy to cover significant matters of concern to noble Lords. The
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noble Baroness knows that it has been my practice in dealing with other Bills that that is a productive way in which to work together—we try to hone the areas in which there are differences and resolve those areas in which it may be possible for us to come to some appropriate accommodation in relation to the Bill.
I shall do whatever is possible in relation to guidance and I certainly undertake to notify the noble Baroness as to the earliest possible point at which we may be able to put drafts before the House or Members of the Committee.
Baroness Anelay of St Johns: I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22 to 24 not moved]
Clause 5 agreed to.
Lord Bassam of Brighton: I beg to move that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage should begin again not before 8.50 p.m.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

European Communities (Definition of Treaties) (Database Protection Agreement between the United Kingdom on behalf of the Isle of Man and the European Community) Order 2003
7.49 p.m.
Lord Davies of Oldham Lord Davies of Oldham rose to move, That the draft order laid before the House on 9th June be approved [22nd Report from the Joint Committee].
The noble Lord said: My Lords, the order declares an agreement, in the form of an exchange of letters between the European Community and the United Kingdom on behalf of the Isle of Man, to be a Community treaty, as defined in Section 1(2) of the European Communities Act 1972. The effect of declaring the agreement a "Community treaty" is that the provisions of the European Communities Act will then apply to it, and that will enable the Government to exercise powers under Section 2(2) of the Act to make subordinate legislation to give effect to the agreement.
The agreement binds the Community and the Isle of Man to provide for the mutual protection of rights in databases, in accordance with the provisions of Chapter III of Directive 96/9/EC of the European Parliament and of the Council of 11th March 1996. Chapter III requires member states to provide a database maker with a sui generis right to prevent the unauthorised extraction and/or reutilisation of the whole, or a substantial part, of the contents of that database.
The directive applies to databases whose makers are European economic area nationals, residents or companies. However, databases made by non-EEA nationals, residents and companies may also be protected within the territory of the Community by the sui generis right. But such protection is not automatic and depends on agreements being concluded with the Council.
The Copyright and Rights in Databases Regulations 1997 (S.I. 1997/3032) implement the directive and establish a sui generis right in the United Kingdom for EEA databases. Part 2 of the isle's Copyright (Amendment) Act 1999 follows similar lines and makes provision for Isle of Man databases. In both cases, the sui generis right is called "database right". However, although British databases qualify for reciprocal sui generis protection throughout the European Community, that is not so for databases made by Manx companies and residents of the Isle of Man who are not EEA nationals.
The Manx Government therefore requested Her Majesty's Government to enter into negotiations with the European Commission with a view to concluding an agreement on its behalf that will provide EC-wide sui generis protection for Isle of Man databases. In return, the isle offered to protect EC databases in the Isle of Man by "database right". The Isle of Man could not, of course, conduct its own negotiations as it is a dependency of the Crown for whose international relations the United Kingdom is responsible.
The Council has declared itself satisfied that the Isle of Man's legislation offers equivalent sui generis protection to that offered by the Community and it has approved the agreement with the United Kingdom. The agreement was published in the Official Journal of the European Union on 5th April (No. L89, 5.4.2003) and as Command Paper No. Cm 5836 on 13th June 2003.1 beg to move.
Moved, That the draft order laid before the House on 9th June be approved [22nd Report from the Joint Committee].— (Lord Davies of Oldham.)
Baroness Miller of Hendon: My Lords, we agree with the order, as put forward by the Minister, and we thank him for explaining it so well. We understand that the Isle of Man Government are very happy with it and we have seen copies of the agreement.
Lord Clement-Jones: My Lords, we also thank the Minister for that lucid explanation. We on these Benches also support the order.
Earl Ferrers: My Lords, the noble Lord mentioned the words "sui generis" six times, I believe. What does he mean by that?
Lord Davies of Oldham: My Lords, it means that the databases, and what they represent in law, are governed by regulations. Therefore, one cannot come
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along with a generalised concept of computer material as it must relate to the specific concept of a database, as defined in the law.
On Question, Motion agreed to.

Food Supplements (England) Regulations 2003
7.55 p.m.
Earl Howe: My Lords, I beg to move the Motion standing in my name on the Order Paper. The Minister's recent appointment to the Department of Health enables me to begin with a brief reassurance. The Motion standing in my name this evening should not be construed in any sense personally. It does of course fall to the noble Lord to reply to the Motion on behalf of the Government, but clearly the situation which has prompted this debate is not of his making.
Nevertheless, I hope he will understand that I have tabled this Motion for two reasons: first, to make clear to him that the Food Supplements Directive in its present form is unacceptable; and, secondly, to bring home to the Government that, in failing to represent British interests properly in Brussels, they have let down this country and its consumers very badly. I may be proved wrong, but I fully expect the Minister to be in denial about those two propositions.
For six years, successive Ministers have brushed aside any suggestion that the UK market for vitamin and mineral supplements would be severely affected by the directive. They have reassured us that any adverse consequences would be negligible and, indeed, have taken considerable credit for negotiating flexibilities into the final text, which they claimed fully met the fears expressed by UK supplement manufacturers and retailers. It is now abundantly clear that those reassurances were hollow and that the manufacturers' fears about this measure were right all along.
Perhaps I may set out the situation briefly. For very many years in this country, health food supplements have been freely available for consumers to buy, provided they are legally safe—that is, provided they comply with the general food safety requirements laid down under the Food Safety Act. My understanding is that more than 40 per cent of the public consume these products and that 32 per cent of the population take vitamins or other dietary supplements every day.
It is true to say that this country enjoys a far less restrictive regulatory regime for food supplements than many other European countries. However, through the FSA, we have the means in the UK to regulate food supplements to ensure that they are marketed safely. Against that background, a European directive designed to harmonise the marketing of food supplements across the EU would, I think, excite little comment in this country if its purpose and effect were to regulate purely on grounds of safety. That, indeed, has been the Government's stated aim all along for this measure, ever since the Commission's Green Paper was published in 1997.

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Some three years ago, Gisela Stuart, the then Minister, re-emphasised the Government's commitment to a safety-based approach and said that the aim of Ministers was to ensure that any eventual restriction on the range of available products could be justified on health rather than on trade grounds. Even as late as last January, Hazel Blears gave very similar reassurances during a debate in another place. "So far, so good", everyone thought. We had a Government prepared to stand up for the British consumer and British interests—we should let them get on and do that.
But when the directive was at last published, what emerged completely blew apart the assurances that the Government had previously given. Although couched in terms that suggest that its purpose is consumer safety, the directive is nothing more nor less than a market harmonisation measure. The legal principle that underpins it is that everything is forbidden unless it is positively allowed.
The directive therefore contains a positive list showing the nutrients and nutrient sources that are permitted for use. Unfortunately, that list has precious little to do with science, safety or, indeed, reality. It was lifted bodily from another directive that was not specifically geared towards food supplements. For that reason, more than 300 nutrients or nutrient sources currently on the British market and accepted as safe by the regulators for many years do not feature on the lists. These missing substances are contained in thousands of products currently on sale in this country. Those products will become illegal under this directive. That means that they will either have to be reformulated or else removed from the market altogether.
I have a list of some of these ingredients and how they are used. Sulphur, including glucosamine sulphate, is an essential element missing from the list and is valued for its role in the synthesis and maintenance of connective tissue. Boron, not on the list, is widely used to assist the absorption of calcium. Silicon is again widely used in conjunction with other minerals to support healthy hair, nails and skin. Vanadium is used to control diabetes or blood sugar levels. Mixed tocotreniols is almost the whole spectrum of naturally occurring vitamin E, a potent source of antioxidants. Fourteen different forms of Selenium, another source of antioxidants, are important as a trace element and seen as beneficial for the functioning of the heart and for cancer. Calcium ascorbate is a type of vitamin C for those who cannot tolerate ascorbic acid. The list also includes 21 forms of food forms of iron, including iron-based yeast; 30 different forms of magnesium; 21 different forms of potassium. I could continue with many more examples.
The point here is that all these ingredients have been used in food supplements for many years, quite safely. Many of them have been reviewed by the Expert Group on Vitamins and Minerals and have been given safe upper limits. The implicit suggestion by government has been that products affected by the directive can be reformulated so as to exclude
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ingredients that are prohibited and to include permitted substances with a comparable potency. That, to be sure, is possible in a few instances, though it has to be said that nearly all changes of active nutrients would require manufacturers to undertake time-consuming and expensive trials to verify shelf-life. In other cases, though, reformulation is neither desirable nor a practical proposition. It is well recognised that one chemical form of an ingredient is quite different from another in what is termed its bio-availability—that is to say the ease with which the human body can absorb it into the system. Iron chelate, for example, is easily absorbed and well tolerated. Ferrous sulphate, which could be substituted for it, is not.
The Government are also quick to point to the derogation in the directive which will allow manufacturers to submit a dossier to Brussels to enable any nutrient missing from the list to he added to it. Again, in the vast majority of cases the submission of dossiers will simply not be a practical proposition. The rules insist on manufacturers analysing and submitting a large array of technical data which is often not available and would take a long time and a great deal of money to assemble.
There is a case to be made for such an elaborate process when we are dealing with nutrient sources that have never been tried or marketed before. But there is no case for it when we are dealing with nutrient or food ingredients that have had a long period of significant and safe use. Even assembling and analysing existing data costs many thousands of pounds. To create additional data would cost hundreds of thousands of pounds.
If you mention the phrase "regulatory impact assessment" in Brussels, you are more than likely to he met with looks of blank incomprehension. As far as I know, no assessment of the impact of this directive on business has been done. It should have been, because the fact is that unless there is a much simpler process for submitting safety information on well-used nutrient sources, the industry will not be able to afford to take advantage of the derogation. I am therefore asking the Government to go away and negotiate that simpler procedure.
Even if that can be achieved, and even if ingredients are added to the permitted list, we are left with a derogation that is time-limited. At the end of 2009, any ingredients that have been added to the list will no longer be authorised. That is completely illogical and unsatisfactory and I am asking the Government, through my Motion, to negotiate an amending directive which would allow member states to permit on their own domestic market products which are recognised by the competent authority as safe and appropriately labelled, but which would otherwise lie outside the restrictions of the food supplements directive. That proposal would not undermine the present directive and would also be entirely consistent with the principle of subsidiarity, which seems to have got lost in all of this.
There is a final important issue that is causing concern; that is the dosage levels of each nutrient that will be allowed. Dosage levels in vitamins and minerals

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sold in the UK have not been the subject of any safety concerns whatever. Yet there is now the very real prospect that because of the directive maximum permitted dosages will have to be scaled down quite drastically. Subject to negotiations still to be completed, maximum permitted levels of vitamins and minerals will be determined much more along the lines currently adopted on the Continent, which works from the starting point of the recommended daily allowance. You can take 1,000 mg of vitamin C quite safely—and indeed you can buy it here in that dosage—but the recommended daily allowance of vitamin C is a great deal less than that.
The directive states that the maximum permitted levels of nutrients will be decided by reference to the RDA and to nutrient intake from food, not simply by reference to what is safe. That is the nanny-state approach writ large. We need to remind ourselves that these are not pharmaceutical products which, if you are not careful with the dosages, can poison you. They are food supplements, which are not only safe to use but are readily capable of improving people's well-being and health. Why should the UK have to abandon its traditional approach and conform to continental dosage levels for absolutely no good reason? If that happens, as looks likely, British consumers will either have to pay a lot more for multiples of lower dose tablets, or else order what they want on the Internet with no guarantee of the quality of what they are buying.
The losers from these regulations will above all be British consumers. The directive represents an unwarranted erosion of consumer choice and consumer rights. As an EU harmonising measure, it is completely misconceived. The Government point to their achievements in negotiation, but they have not done nearly enough to uphold our national interest. They have allowed the EU bandwagon to roll over us. They need to do much more and they should be in no doubt of the millions of people who will be watching and judging them as they do so. I commend the Motion to the House.
Moved, That this House regrets the limited nature of the lists of permitted nutrients contained in the Food Supplements Directive and calls upon Her Majesty's Government to revoke the Regulations (S.I. 2003/1387), and (1) to negotiate with the European Union Commission an amendment to the directive permitting individual member states to allow food supplements to be marketed which are recognised by the competent authority as safe and appropriately labelled; (2) to secure simplified requirements for the submission of dossiers to the Scientific Committee for Foods in respect of ingredients which have been omitted from the positive lists and which can demonstrate a long history of safe use; and (3) to ensure that maximum permitted levels of vitamins and minerals are based on sound science.—(Earl Howe.)
Lord Clement-Jones: My Lords, we on these Benches very strongly support the Motion so well moved by the noble Earl, Lord Howe. Throughout
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dealings on the Food Supplements Directive, the Government's approach has been characterised by complacency. A prime example of that was on 20th January when a major debate took place in the other place on what was then the proposed Food Supplements Directive. The government amendment in that debate, as regards the Food Supplements Directive, stated that the Government were committed to allowing safe and properly-labelled food supplements to be freely marketed, welcomed the Government's intention to take advantage of flexibility to permit continued use of substances not on the permitted list where products comply with existing food safety legislation in the UK and noted, finally, that the long-term availability of products currently on the market will depend on future developments on maximum limits and lists of permitted nutrients.
Let us take each of those aspects in turn. First,
"safe and properly-labelled food supplements to be freely marketed".—[Official Report, Commons, 20/1/03; col. 100.]
In fact, the directive takes off the market a whole range of supplements in the form of vitamins and minerals found to be safe. As a result of the establishment of the so-called positive lists, as the noble Earl, Lord Howe, pointed out, which dictate the nutrients and nutrient sources permitted for use in dietary supplements, the Food Supplements Directive will lead to the banning of nutrients such as boron, sulphur, vanadian, tin, germanium and so forth. All except germanium, sulphur and vanadian have been reviewed by the UK Expert Group on Vitamins and Minerals and have been given safe upper levels and found to be safe. Hundreds of sources of vitamins and minerals will also be banned which pose no threat to public safety, some 270 as calculated by the industry.
In the debate on 20th January, Hazel Blears claimed that reports of the imminent withdrawal of swathes of products are misleading. But a huge number of UK products will he affected. Just take the list provided to some of your Lordships by Holland and Barrett. Products equating to some £6 million worth of sales will have to be taken off the market by that retailer. The Department of Health in answer to a recent Written Question from me stated that up to 5 per cent of the market for food supplements may be affected. Based on a market of £450 million, that is an enormous £22.5 million.
Rather than pooh-poohing the claims of manufacturers and retailers about the threat that the directive poses to their businesses, the Government need to start vigorously arguing for an amending directive to add to the positive lists. What are the Government doing to promote such an amending directive?
In the debate on 20th January the government amendment welcomed the Government's intention to take advantage of flexibility to permit continued use of substances not on the permitted list where products comply with existing UK food safety legislation. That gave a quite misleading impression that the Government had secured substantial derogation to allow missing nutrients not on the positive lists when that was not the case; far from it.

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Continued use is allowed for certain substances if not in the annexes until December 2009 if safety dossiers have been submitted by July 2005. But, far from being a flexible system, the cost of preparing a dossier for submission is massive. The biological and toxicological data required for the technical section depend on an analysis and submission of a large array of data which have to be specially generated. The manufacturers say that those kind of data take two years or more to create and therefore could not be ready by the deadline of July 2005.
Even the Government in answer to Written Questions accepted that the cost of producing one dossier could be anything in the region of £80,000 to £250,000. Were the Government aware of those costs when they were debating the matter in January? In practice, it appears that fewer than a dozen dossiers are being produced. The Government, far from patting themselves on the back, should be urging their EU partners for a simplified process of approval of these dossiers.
In the debate on 20th January the Government claimed that the long-term availability of products currently on the market will depend on future developments on maximum limits and lists of permitted nutrients. Hazel Blears, the then Minister responsible said as regards maximum permitted limits:
"The important thing is that the Government are engaged actively in the debate and are not simply throwing our hands up and saying that there is nothing that we can do".—[Official Report, Commons, 20/1/03; col. 102.]
She later added:
"Our efforts will focus on getting a good deal for the UK on implementation. I accept that many consumers value the high-dose products on the UK market, but we are actively pressing for thorough scientific risk assessments. There is still a great deal to play for".—[Official Report, Commons, 20/1/03; col. 106.]
The UK Expert Group on Vitamins and Minerals recently completed an assessment exercise for the FSA. Its report was trumpeted by the FSA in a quite sensationalist way as saying that vitamins can damage your health, are a waste of money and could lead to cancer. That caused huge alarm among consumers. That was by our own UK agency. That bodes extremely badly for acceptance by the EU bodies of sensible upper limits.
If our own FSA had its way, vitamins such as B6 vitamin C and zinc would now be able to be sold only in far lower doses than hitherto. What valid safety reasons are there for reducing dosages of those vitamins and minerals? For instance, how many adverse reactions have been notified as a result of vitamin B6 consumption since advice was last given in 1997?
I recently asked a series of Written Questions relating to the UK expert group's report" to which I have not yet had a reply. These related to how the expert group's report was handled by the FSA's press office. Why were its recommendations for safe upper limits substantially different from other internationally respected organisations as regards safe upper limits?
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It is no wonder that consumers and manufacturers are so pessimistic about the outcome of this directive. At a meeting with industry representatives and the Minister for Public Health on Monday 9th June, the Food Standards Agency stated that the European Union is now likely to set maximum permitted levels for nutrients in food supplements on the basis of nutritional need—not safety.
The Government's support is needed to ensure that pressure from countries with a more restrictive approach does not prevail and that—where safe—supplements containing ingredients at current levels can continue to be sold.
In the mean time, there is great uncertainty on dose levels. When and if these regulations become law this August, no one will know what daily dose level of vitamins will be allowed. That makes it impossible for manufacturers who need to be able to plan for their products. There will be a huge impact on small and medium-sized enterprise suppliers. What account have the Government taken of that? We have a thriving health food industry in Britain.
Hazel Blears, in the debate I cited, said:
"I am informed that the vitamins that people want to take will be available in the formulations … on the positive list. However, companies may be required to reformulate their products or submit dossiers if they want to carry on with a specific formulation".
That itself is also grossly complacent. Reformulation may be impossible. Some 20 per cent of food supplements in the UK contain one or more of the 270 prohibited ingredients. Some products of course contain more than one prohibited ingredient. In total, an estimated 5,000 products are affected. The costs are impossible to calculate.
The reformulated product, as pointed out by the noble Earl, Lord Howe, may not be as effective—for example, the form of selenium permitted by the EU SCF committee. The positive list of nutrient sources does not now include selenomethionine, which is found in broccoli. Ms Blears made the breathtaking claim:
"we have been able actively to engage in those negotiations to make sure that we can retain UK consumers' rights to the supplements that they value, and ensure that they make those goods more widely available in future".—[Official Report, Commons, 20/1/03; cols. 105–06.]
That flies in the face of every analysis of the impact of the directive. The UK consumers affected are: pregnant women, those suffering from arthritis or osteoporosis, women during the menopause, those suffering from endometriosis, diabetics and so on. That is a huge swathe of patients and consumers.
In many areas, we on these Benches have argued for the precautionary principle to be applied to new and untried products and technology. But what possible reason can there be for introducing the restrictions contained in the directive for products which have had years of safe use? Is it because we must all be in thrall to new pharmaceuticals and are not allowed to rely on natural traditional remedies?

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I hope that as a result of this debate the Government and the FSA will redouble their efforts and achieve a satisfactory outcome for consumers and manufacturers of these food supplements.
8.15 p.m.
Lord Beaumont of Whitley: My Lords, on behalf of the Green Party, I express our support for the noble Earl and his efforts today. I do not wish to take up your Lordships' time at this time of day. This is a very important debate which, one would have thought, could have been timed for a better period than the dinner hour.
Nevertheless, I want to make two points. First, no matter what the FSA say, the Government cannot possibly say that they would have introduced this measure unless they were being forced to by the European Union. This is certainly an area where subsidiarity should have been allowed to prevail and we should have been allowed to conduct our own affairs in our own way.
Secondly, I would like to support briefly what the noble Lord, Lord Clement-Jones, said about the precautionary principle. The Government and the European Union appear to have introduced the precautionary principle as a justification. The precautionary principle is not, as the noble Lord said, there to be introduced and involved in things which have been going along for a long time without any proven harm of any kind. It is very bad and dishonest to use that particular argument in this case.
I hope that the noble Earl will have his way and that the House will decide that the Government must go back and renegotiate the measure. It is quite intolerable as it stands.
Lord Turnberg: My Lords, I find myself in the unhappy position of disagreeing almost entirely with the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones. Along with many other noble Lords no doubt, I have received letters, largely from a variety of organisations involved in the manufacture or sale of food supplements but also from individuals, expressing horror that a range of so-called natural substances, vitamins and minerals will no longer be available to the public. The basis of the concern lies largely—not entirely—in the difficulties and expense that the industry would have in complying with the directive. Furthermore, they question the need for regulation given that the supplements have been used safely for many years—or so it seems.
There are very cogent reasons for adopting greater regulation—by that I mean some regulation—in an area of public safety that stands out because of the almost complete absence of regulation governing it.
Earl Howe: My Lords, I am grateful to the noble Lord for giving way. Is he saying that there are no mechanisms in this country to withdraw food
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supplements from the market if there are safety concerns? That is clearly not correct; we do have such mechanisms.
Lord Turnberg: My Lords, what we do not have is information. I shall develop that theme in my argument. The public are not completely aware of potential dangers, safety limits and so on. That information is not available. Quite rightly, we have very stringent regulation for pharmaceutical drugs but not for so-called natural products. Do the public not deserve to be informed about what they are eating? Should they not have available information to give them some idea of whether additives and supplements are safe, in what dose, and whether there is any evidence that they will do what they are claimed to do.
It is suggested that vitamins are essential for life. That is absolutely true, but it is far from the truth to suggest that they are all safe in whatever dose they are given and no matter for how long. The fact that they are essential for life does not mean that taking several times the daily dose makes you a healthier person. Indeed, the opposite may be the case. Noble Lords have mentioned boron, silicon and tin as beneficial. But what is the evidence that taking any extra than that which you gain in your normal diet does you any good?
The noble Earl mentioned that iron chelates are better absorbed than iron sulphate. That is perfectly correct. Several years ago, when I was a physician, I wrote up a patient who had been taking an extra iron pill a day simply because she felt that it would do her good—a not unreasonable assumption. But I saw her because she had developed haemochromatosis, a rather nasty liver disease. Iron itself is potentially dangerous. Vitamins A and D are marvellous if you are among the unusual subjects who are deficient in either. It is also possible that minute doses—I stress minute—taken over long periods will protect against deficiencies. But large or even modest doses of either are dangerous and cause all sorts of well-recognised ill health.
Folic acid, which is in the vitamin B group, is excellent in small doses in pregnancy. But taken in the same dose—about 5 milligrams a day—it could unbalance others with undiagnosed pernicious anaemia, of which there are quite a number in the population, and precipitate the condition of subacute combined deficiency of the spinal cord causing paralysis. Indeed, many such cases are described. A dose of 400 micrograms—less than half a milligram—seems safe and may well be worthwhile to the population since there is now increasing evidence that it may prevent heart attacks. But greater doses lead to potential dangers.
I use those examples to point out that, although a little bit of what does you good may be fine, a lot more seemingly harmless supplements are certainly not fine. The directive is necessary because at present the public do not have much information on the composition of many additives—their purity, dosage, the evidence on which claims are made about what they can do, and their safety. Regulation seems entirely appropriate.

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I support the noble Earl's wish to secure simplified, less bureaucratic dossiers to be submitted. I particularly support his desire to ensure that maximum permitted levels of vitamins and minerals are based on sound science. How could I not support that? However, I am concerned that the proposal to revoke the regulations would leave us with too little to ensure the safety of the public. I am therefore unable to support the proposal.
Lord Skelmersdale: My Lords, would the noble Lord, Lord Turnberg, be good enough to tell us what interests he has in that particular matter?
Lord Turnberg: My Lords, my interests are solely those of an ex-physician. I am involved in the Academy of Medical Sciences and I give scientific advice to the Association of Medical Research Charities. Noble Lords can make of that what they like.
Lord Alexander of Weedon: My Lords, before the noble Lord sits down, perhaps I may ask him two questions. I accept totally his impartiality in this area, but why is his point that we need to have safe use not sufficiently covered by paragraphs 2 and 3 in the Motion moved by the noble Earl, Lord Howe? Also, why does he think that the issues that he so genuinely raises could not he better dealt with on the basis of subsidiarity in this country?
Lord Turnberg: My Lords, I am not sufficiently versed in the system of subsidiarity for this sort of directive, so perhaps the Minister will answer that question.
I think that paragraphs 2 and 3 are very reasonable; I am concerned about paragraph 1.
Baroness Howarth of Breckland: My Lords, I was not sure whether I would speak in this debate, so I must declare an interest as a member of the board of the Food Standards Agency. I feel a bit like Daniel in the lion's den after the speech by the noble Lord, Lord Clement-Jones.
I want to correct some issues about the agency. Although we sympathise with the Consumers for Health Choice and the industry about the scope of the positives lists, it seems unlikely that the Commission will consider reopening discussions. I will return to that matter later, so perhaps noble Lords should wait until the end of my speech before standing up.
The Food Standards Agency's focus is on pressing for a maximum limit to be based on safety rather than on restrictive nutritional need. However, when the report that was mentioned by the noble Lord, Lord Clement-Jones, by the UK's Expert Group on Vitamins and Minerals was published, the Food Standards Agency pointed out that a good balanced diet would meet all one's requirements. However, we appreciate that people may wish to exercise their own choice as consumers about certain vitamins and
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minerals. In that respect, we are keen to promote good labelling and information about those products so that people are clear about what they are using.
Baroness Oppenheim-Barnes: My Lords, perhaps the noble Baroness would answer my question on that point. After the semi-hysterical outbursts of the FSA about vitamins and many other matters, how can the agency and the noble Baroness possibly support the directive, particularly when she knows that, year after year after year, Europe has held up the nutritional food labelling in this country for which the FSA has fought without any success whatsoever?
Baroness Howarth of Breckland: My Lords, I should remind the noble Baroness and the noble Lord, Lord Clement-Jones, that we are not responsible for the way in which the media reproduce information. Our officials fought hard to make sure that the list was not as restrictive as it is. In fact, the list was hard-fought and hard-won in terms of some of its content.
It was because we believed that consumers should have a choice that we negotiated forcefully in the EU for the law to allow food supplements that are safe and properly labelled to be freely marketed, and for any restriction in the range of products to be justified on public health grounds. The criteria of safety and consumer choice underpin the FSA's approach to all food legislation.
We were concerned at the time of the negotiations, when there was a change in the presidency, that, had the negotiations been reopened at that stage, the directive would have become more restrictive. I was in discussion with our officials during that time. The compromise was, as I said, hard fought for, and the concessions finally supported were the best that could be achieved at the time.
I am simply trying to put the record straight about the position of the Food Standards Agency. There will be considerable difficulties in renegotiating with the EU. That is a position for the Government to take. We will continue to make sure that the nation has as much information as possible in labelling, choice—where choice means that food is safe and healthy—and information about a good and balanced diet, which is the best way to get vitamins and minerals.
8.30 p.m.
Lord Pearson of Rannoch: My Lords, following upon what the noble Baroness said, I want to ask the Minister one simple question: what is the status of this beautiful example of the benefits of our membership of the European Union? In other words, what is the status of the directive in the European Union? Is it subject to qualified majority voting? If so, have we been outvoted, or would we have been outvoted if we had put it to a vote? Is there anything that we can do about it? Is the amending directive proposed by my noble friend on the Front Bench a possibility, or, as usual, have we had it?
Earl Ferrers: My Lords, I suppose that I should declare an interest. My interest is that I am a sometime consumer of some supplements.

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I am grateful to my noble friend Lord Howe for having put down the Motion. He made a devastating argument against the regulations. He said that it was a market harmonisation measure—nothing more, nothing less. That is so. The measure is designed to harmonise the markets of European Union countries. Why? In the United Kingdom and the Netherlands, where millions of consumers have used higher rates of minerals and vitamins for decades, it will mean less of a substantial number of products. It ought to open up the market to our standards; as it is, it will close up our markets.
Despite what the noble Lord, Lord Turnberg, said, there is no evidence that the products, some of which have been used for 50 years, are unsafe. That should be the test: are they safe? At the moment, all products are submitted to the Health Food Manufacturers' Association, which has a department for examining new products. It ensures that the ingredients and the doses are correct, and it works closely with the Food Standards Agency. If the regulations come into effect, any product that contains any of the 300 relevant substances must be removed or re-formulated. There is nothing wrong with those products. If they are removed or re-formulated, it will he an expensive business. If the products were dangerous, we could understand; but they are not. They have not been dangerous for years. Somebody once said that there were fewer bureaucrats in the European Commission than in Surrey County Council. One wonders what on earth they are doing the whole time concocting such regulations.
As I understand it, it is the stated policy of the Government that products may be legitimately brought to the market provided they are safe and properly labelled. The directive runs strictly counter to that. Why have the Government accepted the situation?
There is a way round, as has been pointed out. Dossiers can be compiled for submission to the European Union Scientific Committee for Food by 2005, but that is expensive. Until the noble Lord, Lord Clement-Jones, spoke, I had not realised that the cost of doing it would be between £80,000 and £250,000. It costs a huge sum of money to prepare a dossier to request that what one is presently producing perfectly legally can continue to be produced. Of the 300 products removed by the regulations, only about 15 are having dossiers put forward.
I find these regulations amazing and pointless. What have the Government been doing for the past six years? They always say that they are in favour of consumers, but why have they not been looking after the interests of the United Kingdom? Last week, Her Majesty's Government announced a monumental reform of the common agricultural policy, but said that France—typically—had been excluded. Why can we not be excluded from a poor directive such as this about food supplements? If the French Government can do it, why cannot the British Government? I am sure that the noble Lord, Lord Warner, will use his great might to ensure that that happens. But there is an alternative.
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My noble friend is quite right to suggest taking the regulations away and renegotiating them. They have no advantage for Britain; they have no advantage for consumers; and they will damage our industry and the freedom of people to take safe supplements when they wish to do so.
Lord Phillips of Sudbury: My Lords, I congratulate the noble Earl, Lord Howe, on bringing forward this Motion today. The noble Lord, Lord Turnberg, said that one must be aware of the potentially dangerous consequences of our agreeing to this Motion. I suggest that there are other potential dangers in the steady bureaucratisation and over-regulation of life which many people feel is in train. In the European Union last year, there were more than 4,000 separate directives and regulations. On occasion, there really is a tendency for the issue of safety to be carried to an extent and degree which undermines the reasonable freedom and liberty of individuals to make decisions for themselves.
Lord Turnberg: My Lords, I thank the noble Lord for giving way. Does he agree that it is important for the public to be aware of exactly what it is that they are taking, the safety profiles, and the potential benefits or otherwise of them?
Lord Phillips of Sudbury: My Lords, I do indeed agree but I believe that the Motion takes account of those matters in a proportionate way. We have here yet another example of an EU sledgehammer to crack a nut. I shall be very interested to hear from the Minister how many products are off the list. Is it 270, or more or fewer? My suspicion is that if the large pharmaceutical companies had had a great interest in the matters being discussed today, we would not be facing this kind of regulation. Tobacco and alcohol are freely—rightly—available substances which can cause mayhem with people's lives and health. I wonder whether we are not perhaps being a little out of kilter in the way in which we are dealing with some of these traditional medicines.
Do not let us make any mistake; this will hit the small shop and will decimate yet another domestic industry in the way that others have been previously. I believe that the measures suggested in the Motion will be quite enough. Does the Minister have any statistics on the number of deaths and serious incapacities that have been caused by the products that are subject to this new regime? Unless he can give noble Lords a fairly striking statistic, he will fail to win round those who have a degree of open-mindedness about this issue—I still do. One of the few herbal products that I know has damaging results, which comes from a Chinese herb, is aristolochia which apparently can reduce hereditary Members of the House to silence. But that is the only one I have managed to track down.
I should also like to know what are the estimated costs of compliance? Has there been a cost-benefit analysis? If so, with what result?

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Finally, from where will people who currently use these traditional herbal medicines get their supplies in future? Will it be a criminal offence to obtain them from outside the European Union?
The Countess of Mar: My Lords, I stand before the House today as an example of what vitamins and minerals can do for one. When I first suffered from organophosphate poisoning, I developed intolerances to standard drugs and to many foods. I had great difficulty in surviving; I was a very sick person. I was given very high doses of vitamins and minerals— admittedly under medical supervision.
The blurb that goes with the directive and the statutory instrument states that vitamins and minerals will be available to medical practitioners to prescribe to their patients. They will not be. Manufacturers rely greatly upon over-the-counter sales of their products. Anyone who has any idea about business will know that if the turn-over of a product falls below a certain level it will no longer be produced. This will happen to vitamins and minerals, some of which were listed by the noble Earl. Lord Howe. I am grateful to the noble Earl for bringing this matter to our attention.
I listened with great interest to the noble Lord, Lord Turnberg, who referred to the rigorous testing of drugs. How is it then that, I understand, some 40,000 people a year die from adverse drug reactions? How is it that 40 per cent of people over 65 in hospital are there as a result of adverse drug reactions? If rigorous testing produces that result, heaven help us with minerals and vitamins.
This is about trade. It has nothing to do with consumer safety or anything else; it is purely and simply about trade and the restriction of trade by certain interest groups. The noble Lord, Lord Phillips, said that the major manufacturers are not involved. They are. They are up to their necks and beyond in it. This is where the problems arise. They do not like the business that the small manufacturers have. We have seen this happen over and over again in this field.
The noble Lord also mentioned herbal medicines. We are not talking about herbal medicines today, but about vitamins and minerals. But I have no doubt that we shall go on to herbal medicines.
I am concerned about the parameters used to determine safe levels. The recently published report, Safe Upper Levels for Vitamins and Minerals, from the expert group on that subject states:
"The determination of Safe Upper Limits and Guidance levels entails the determination of doses of vitamins and minerals that potentially susceptible individuals could take daily on a life-long basis without medical supervision in reasonable safety".
"Potentially susceptible individuals"? The noble Lord, Lord Turnberg, referred to a number of his patients. Is everyone else to be prevented from having these food supplements? Thousands of people benefit from them every day even if they have only a placebo affect. If they think they are doing them good, does it
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matter? They are not knocking on the doors of doctors' surgeries; but if we take many of these supplements off the list, they will be.
The House knows that I keep animals. I know that our animals suffer from a selenium deficiency because our land is deficient in selenium. I know, too, that in order to make selenium work you have to have vitamin E with it. My goats, for example, have a tiny dose of vitamin E and selenium twice a year, which keeps them fit. They have wonderful pregnancies with very few delivery problems. They are good, fit and healthy goats. If I did not give them selenium and vitamin E they would have staring coats and they would have problems with birthing. These things happen.
We do not know enough about what vitamins and minerals do to humans because the research has not been carried out. To take them away from us now would be a grave error. I ask the Minister to listen to the noble Earl, Lord Howe—to take note and to do what he asks.
Lord Phillips of Sudbury: My Lords, before the noble Countess sits down, my point about large industrialists was precisely hers. The issue we are discussing affects small producers. My point was that if the very large pharmaceuticals were really interested in some of the products we are talking about, the outcome might be different.
Lord Colwyn: My Lords, it was my intention to intervene for a few minutes, but can I clarify whether this is a timed debate? Does the debate finish at 8.50, or may it run on?
Lord Grocott: My Lords, it is not a timed debate, although, as is normally the case with these matters, the usual channels try and put on in the dinner break something which will last for roughly an hour. It is not a science, it is an art. If we come to a conclusion within a reasonable time, we could move on to the Criminal Justice Bill, which contains important matters for debate as well.
Lord Colwyn: In that case, my Lords, perhaps I may have just two minutes. I have spoken on this issue for many years in your Lordships' House. Many of the commonly used ingredients that will be banned by the directive are more efficient than those that will be retained. There is no logical reason for their exclusion; it is entirely without scientific justification and certainly not in the best interests of the consumer.
A combination of a detrimental lifestyle with smoking, inner-city pollution, alcohol abuse, inadequate diet and other stresses with the problems of over-farming, pesticides and soil depletion seriously undermine normal health. Despite the many advances in healthcare, there is evidence that herbal, vitamin and mineral supplementation can help many of the problems associated with modern living—not only for those of us who do not achieve the recommended intake of nutrients but for the population as a whole if it is believed that the recommended intakes are not sufficient for optimal health.

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The Library has given me a copy of the regulatory impact assessment referred to in the Explanatory Notes. It describes the objective of the directive as a means of facilitating trade:
"The Directive lays down a frame-work for Community rules on food supplements marketed as foodstuffs … in order to promote the free movement of trade … and ensure a high level of consumer protection".
These two objectives seem incompatible. The FSA was set up to protect the consumer, not to further trade, its remits being food safety and nutrition.
According to the RIA, the only downside of the regulations might be a reduction in consumer choice. Millions of consumers are concerned that the restrictions may affect their health and their right to look after their health.
The RIA makes no reference to the role of food supplements making good the mineral and vitamin deficiencies induced by soil depletion and their role in the maintenance of an efficient immune system.
In conclusion, the RIA presents four options as to how the directive should be incorporated into UK law. I am concerned that the FSA has not fully understood the implications of the directive. I am concerned that it has not grasped the clinical and scientific evidence of the importance of nutrition, a fact at last recognised by the American Medical Association in its advice that everyone—even healthy adults—is in need of supplementation.
I hope that the Government will take notice of this short debate. What is needed is an amendment that would allow member states to permit products on their own domestic market which were recognised by the competent authority as safe and appropriately labelled but which would otherwise lie outside the technical restrictions of the directive.
Baroness Oppenheim-Barnes: My Lords, one of my greatest concerns about this directive and the FSA is that consumers are thoroughly confused. They think that things they always thought safe may not be safe. The majority of consumers do not have a balanced diet. Many sectors of society, such as geriatrics, need to have a greater intake of vitamins in the form of medicines than other members of the community. These are all serious considerations.
I am concerned that people will stop taking what they need to take as a result of this confusion. Surely. this is just another step along the road to the situation where, in a few years' time, we will be telling consumers that they should buy only one orange and not two because they might have an excess of vitamin C.
Lord Monson: My Lords, when the Minister comes to reply, can he explain why the principle of subsidiarity referred to by the noble Earl, Lord Howe, and the noble Lord, Lord Beaumont of Whitley, has once again been treated with total contempt by the European Commission?
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Secondly, with reference to the last question posed by the noble Lord, Lord Phillips of Sudbury, is it not the case that the people of this country will still be able to obtain the vitamins and minerals in question from Norway, Switzerland, the Channel Islands and elsewhere, even if these wretched regulations are agreed to?
Lord Stoddart of Swindon: My Lords, I want to make two short points. First, we are being hurried along in this debate although many other noble Lords would like to speak. The Government, knowing that the resolution was down for debate, should have made adequate provision for the debate to take as much time as was needed, and should not have put it on in the dinner hour. Secondly, I presume that this is a single market matter. What proportion of the supplements are consumed in this country and how many are exported abroad?
Lord Warner: My Lords, this has been a stimulating debate. On occasion, the thought crossed my mind that some of your Lordships might be taking some of the supplements that we were discussing.
I cannot respond to all the points, but I shall try to pick up many of them along the way. I assure the noble Earl, Lord Howe, that I am not into denial. Although I was not previously involved in the issue, I do not believe that UK consumers and manufacturers have been let down, and I hope to persuade the noble Earl and others of that in the course of my remarks.
I recognise that the noble Lord, Lord Clement-Jones, stands ready to accuse me of complacency. However, as he told the Health and Social Services Journal that I am feisty and competitive, I believed that I ought to live up to that reputation along the way.
The noble Earl, Lord Ferrers, referred to whether we were dealing properly with Europe. As I recall, the Government have actually been at the heart of Europe, negotiating hard for United Kingdom interests. I recollect from memory that the noble Earl's party had some sort of internal difficulties about that issue. However, that was a long time in the past, I am sure.
The noble Lord, Lord Phillips, and a number of other noble Lords asked for statistics. I do not have all the statistics immediately to hand, but I will look into it and write to noble Lords. I do not believe that the issue is just about statistics, as I believe noble Lords will agree at the end of my remarks.
The debate has served to confirm that many noble Lords feel very strongly and that the public should have a right to continuing access to a wide range of supplements. That is both my personal view and that of the Government, and nothing in the regulations gives any support to the argument that a variety of supplements will not be available to members of the public—and a wide range of supplements, at that. That was the position adopted by the Food Standards Agency on behalf of the UK in the negotiations on the Food Supplements Directive. I share the views expressed by the noble Baroness, Lady Howarth, that FSA staff fought hard for the UK's interests. She put the record straight very effectively on that issue.

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The Government have always taken the view that the market should be open to all foods that are safe and properly labelled. That principle underpins our approach to all food legislation. We need to find the correct balance between our obligations to protect public health and the desire for wide consumer choice and the benefits of free trade.
My noble friend Lord Turnberg, in his clear and authoritative way, put the case for public safety that underpins the directive and regulations. He put the case for protecting the public better than I could. Not all the substances are safe for life, irrespective of duration and levels of consumption. That is a point that is often overlooked in this area.
The Government's responsibility is to ensure that appropriate food safety controls are in force and to promote honest and informative labelling in order to facilitate informed choice. It is for consumers to choose what they eat, and we know that they welcome a wide range of choice. Let me be clear that the Government do not wish to do anything that thwarts people taking responsibility for their own health by using food supplements that are safe to use.
The noble Earl, Lord Howe, raised the point that the legal principle should be that everything is allowed unless it is specifically forbidden. He complained that the directive ran shy of that. The establishment of a permitted list is an approach common in all food law—for example, for additives, nutrients and nutrient sources in products such as baby food. The extension of that particular principle to nutrients and nutrient sources used in food supplements is not therefore a departure in principle from current practice and was supported in the negotiations in Brussels by all 14 member states.
I am acutely aware of how important the availability of food supplements is to certain consumers as well as to businesses and individuals involved in the use, manufacture and sale of food supplements. I should like to make it clear that these regulations do not set the maximum limits for vitamins and minerals in food supplements, which is an area for further negotiations. I shall return to that issue. The Government have absolutely no desire unnecessarily to reduce consumer choice or unduly to restrict trade. That is why we will work hard to ensure that these maximum limits are based on safety and not nutritional needs.
Noble Lords should not underestimate the difficulty of the negotiations on the Food Supplements Directive. They were carried forward with great vigour and in full consultation with a wide range of interested parties. However, we should recognise that only in the Netherlands and the Republic of Ireland are there, as in the UK, diverse markets in food supplements. Those two other EU member states were the only ones sympathetic to our concerns over potential loss of products from the market.
I do not want to spend too much time going over old ground, although quite a few other noble Lords did go over old ground. It is important to understand that while the directive does not deliver all that the UK wanted, it was a lot better than it might have been and
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certainly was the best deal that we could achieve in the circumstances. At the time of the vote on the directive in the Council of Ministers the UK made a carefully considered judgment that if it had blocked the directive's adoption and forced further negotiations, that would very likely have resulted in a more rather than less restrictive regulatory framework.
It is important to note that most of the UK stakeholders we consulted, including all the major trade associations representing UK food supplements manufacturers, agreed and supported that position. This decision was not taken in a "hole in a corner" manner within the Government but with the industry. However, it is also important to recognise that, in negotiations, the UK secured a number of important concessions, notably inclusion of the derogation in Article 4(6) of the directive that allows us to permit the continued marketing in the UK of food supplements containing substances currently excluded from the permitted lists until 1st January 2010 where relevant criteria are met. That represents a very long transitional period. I thought that that achievement was rather underestimated in a number of noble Lords' contributions.
I should also like to bring to the attention of noble Lords—specifically the noble Earl, Lord Ferrers—one perhaps rather underplayed effect of the directive, which is that it will open up markets for products manufactured by UK business in other member states where those have previously not been permitted to be sold.
It has been suggested that the Government should go back to the negotiating table in Brussels with a view to securing an amendment to the directive. I do not know why those who suggest that think that we could achieve now what we could not achieve in the first place. The reality is that the Commission has secured a deal and will not reopen discussions. As regards the future effects of this directive in Europe, the Government's priority now is to make the best possible use of our influence and negotiating capital when we come in due course to negotiations on maximum limits for vitamins and minerals in food supplements.
As a member of the European Union the UK is obliged to implement the directive. We must recognise that, however much we wish that the directive were different, failure to transpose its requirements properly would be a serious breach of our obligations under the EC treaty and would result in infraction proceedings against the UK and in the likelihood of our facing heavy fines. Ultimately, implementation would be forced upon us. The Government do not think that that would be the most sensible way forward.
The implementing regulations, which have been debated so vigorously here today, make full use of the flexibility available to us under the directive; namely, they permit the continued marketing of food supplements until 1st January 2010, providing the relevant criteria are met; they do not require notification of marketing of new products; and they

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prohibit trade in non-compliant products from the latest possible date to allow sufficient time to enable them to be brought into line with the requirements of the new legislation.
I hope that noble Lords will also support the Government's welcome for the labelling requirements in the directive which will contribute to our commitment to promoting honest and informative labelling in order to facilitate informed consumer choice.
I am not brushing under the carpet the very legitimate concerns that have been raised today. The Government acknowledge that consumers and industry are worried about a number of issues. I am very well aware of, and sympathise with, concerns about the missing nutrients and nutrient sources that are currently excluded from the directive's "positive lists"; the expense and time involved in preparing dossiers to support the safety of these substances; the loss of particular product characteristics and the costs resulting from the reformulation of products in those cases where that may become necessary. But it is worth bearing in mind that the regulations do not cover natural sources of vitamins and minerals such as cod liver oil and that the lists of permitted nutrients in the regulations can be extended if satisfactory safety dossiers can be compiled by the industry.
We welcome the steps members of the industry are taking in a very responsible way to collaborate to ensure efficient and effective submission of safety dossiers and I am particularly pleased that discussions on dossier preparation are to take place between the European Food Safety Authority and representatives of the relevant interest groups. We certainly give that initiative our wholehearted support and hope that some simplification of dossier preparation will take place.
We must look to the future. I am aware that there is concern about the future setting of maximum limits for vitamins and minerals in food supplements and concern that that could have the effect of removing certain high-dose vitamin and mineral food supplements from the market at some time in the future. But, as I said, the directive does not set specific maximum limits for vitamins and minerals or other nutrients in food supplements. It agrees principles to be followed when they are established by future EC legislation. These are that maximum limits should take account of safety criteria and dietary intakes as well as due account of measures of nutritional need. I hope that everyone agrees that consumer safety should be the prime concern. That is certainly the Government's position. The Government's firm view is that maximum limits should be set at levels based on scientific risk assessments and should not be limited by considerations of nutritional need. Maximum limits should be set at levels that protect public health. The noble Lord, Lord Turnberg, made a number of comments very relevant to that. The Food Standards Agency continues to press that approach in Brussels.
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This is a very important issue for the Government, as well as for consumers and the food supplements industry. We recognise that there are many high-dose food supplements products on the UK market and that many UK consumers value those products highly. There is nothing in the regulations to suggest that people will lose access to those supplements in the immediate future. Simply engaging in Brussels bashing on the directive will not help British consumers and industry. What we need to do is to influence the outcome of the future negotiations on maximum limits in Brussels. It is crucial that food supplements manufacturers and retailers, as well as members of the public and noble Lords, make effective use of all legitimate means at their disposal. The safety-based regime we are calling for offers benefits to consumers in other countries as well as our own and to businesses across the EU. We need to get this message across. While negotiations on the existing directive are finished, there is still a lot to play for regarding the future setting of maximum limits.
The report of the Expert Group on Vitamins and Minerals has been mentioned. I commend its findings to the House. This group of independent experts has carried out a thorough review of currently available information on the safety of vitamins and minerals in food supplements. The handling was questioned by the FSA, but careful study of the FSA's press release suggests that the review was a balanced document that provided clear advice to consumers, to help them make informed choices.
I welcome the fact that the Food Standards Agency has recently had initial positive discussions with representatives of the food supplements manufacturing industry on actions that need to be taken as a result of the implications of the report of the Expert Group on Vitamins and Minerals. We are working very closely with the experts and the industry in that area. Not only do I welcome that work on behalf of UK consumers, who have a right to be able to make properly informed choices over the products that they might buy, but I welcome the discussions as a positive step taken by UK food supplements manufacturers in demonstrating to the rest of Europe that the industry is a responsible one. All that should help to put the UK in a strong position when it comes to entering into negotiations on maximum limits in due course.
I acknowledge the concerns expressed today over some of the potentially less positive effects that the regulations could have in future on consumer choice and the food supplements industry. However, the directive has been agreed and we are obliged to implement it. The Government's focus is now on the future and, in particular, on minimising restrictions on consumer choice and trade by pressing for a safety-based approach to the setting of maximum limits. Much of what I have said addresses the concerns of the noble Earl's Motion.
Earl Ferrers: My Lords, the Minister has not explained why the Government are content to see 300 products removed from the market. Is that safety, or is it bureaucratic neatness?
Lord Warner: My Lords, I thought that I had made it clear that the products will not immediately be removed from the market, and that a good deal of negotiation is to go on in terms of maximum limits in the period ahead.
Earl Howe: My Lords, it has been a very good short debate. I thank everyone who has participated in it, including the Minister. However, despite the reassurances that he sought to give, it is clear that the Government are on the defensive on the issue. He was not able to answer the key points raised by a number of noble Lords. I, for one, was not reassured. To claim that the directive is about consumer safety and nothing else is, I am afraid, patently untrue.
The Government point to the derogation. If the directive were really about safety, any nutrient added to the list after the submission of a dossier should be allowed to remain on the list permanently, not simply until the derogation expires. But that is not the case. That gives the lie to the Government's claim as to what the directive is about.
The Minister said that there was no evidence that the public would be denied supplements. Indeed, there is a two-year period before any products currently marketed need to come off the market. However, the shelf life of the products is such that manufacturers now have to plan for what happens in two years' time. Effectively, they have to take action now.
As regards maximum limits, if safety is to be the prime consideration in determining the maximum permitted levels—I commend what the Minister had to say on the Government's intentions on that score, which I hope that they can carry through—why does the directive state that the recommended daily allowance should also he taken into account when determining the limits? That does not seem reassuring either. If there were a real health risk from those products, the Government would have statistics about the harm and deaths that result from people taking food supplements. No such statistics exist; indeed, I have yet to hear any evidence that nutrients that are prohibited under the directive cause people any harm.
The situation created by the directive is absurd. Consumer choice should not be curtailed unless there are genuine safety reasons for doing so. We should not have to ban safe, legal products just to achieve EU harmonisation. The noble Lord, Lord Phillips, said that this was a case of an EU sledgehammer cracking a nut; I quite agree. The House needs to send a strong and unequivocal message to the Government that the regulations are unjustified and unacceptable and that they must take further urgent action to safeguard British interests and British consumer freedom. I therefore wish to seek the opinion of the House.
9.10 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 132; Not-Contents, 79.

Division No. 2

CONTENTS

Aberdare, L.

Kilclooney, L.

Alexander of Weedon, L.

Kimball, L.

Allenby of Megiddo, V.

King of Bridgwater, L.

Anelay of St Johns, B.

Kirkham, L.

Arran, E.

Liverpool, E.

Astor of Hever, L.

Lucas, L.

Attlee, E.

Luke, L.

Barker, B.

Lyell, L.

Beaumont of Whitley, L.

McColl of Dulwich.L.

Bell, L.

MacGregor of Pulham Market, L.

Biffen, L.

Blaker, L.

Mackie of Benshie, L.

Blatch, B.

McNally, L.

Bledisloe, V.

Maddock, B.

Bridgeman, V.

Mancroft, L.

Brooke of Sutton Mandeville, L.

Mar, C.

Brougham and Vaux, L.

Mar and Kellie, E.

Burnham, L.

Marlesford, L.

Caithness, E.

Masham of Ilton, B.

Carlisle of Bucklow, L.

Mayhew of Twysden, L.

Carnegy of Lour, B.

Miller of Hendon, B.

Cavendish of Furness, L.

Monro of Langholm, L.

Chadlington, L.

Monson, L.

Chester, Bp.

Montrose, D.

Clement-Jones, L.

Mowbray and Stourton, L.

Cobbold, L.

Murton of Lindisfarne, L.

Colwyn, L.

Newton of Braintree, L.

Cope of Berkeley, L. [Teller]

Northbrook, L.

Courtown, E.

Northesk, E.

Craigavon, V.

Norton of Louth, L.

Crathorne, L.

O'Cathain, B.

Crickhowell, L.

Onslow, E.

Dahrendorf, L.

Oppenheim-Barnes, B.

Darcy de Knayth, B.

Patten, L.

Denham, L.

Pearson of Rannoch, L.

Dixon-Smith, L.

Peel, E.

Eccles of Moulton, B.

Phillips of Sudbury.L.

Eden of Winton, L.

Plummer of St. Marylebone, h.

Elliott of Morpeth, L.

Prior, L.

Elton, L.

Quinton, L.

Erroll, E.

Rawlings, B.

Evans of Parkside, L.

Reay, L.

Feldman, L.

Renton, L.

Ferrers, E.

Roberts of Conwy, L.

Flather, B.

Roper, L.

Fookes, B.

Russell, E.

Fraser of Carmyllie, L.

Ryder of Wensum, L.

Gardner of Parkes, B.

Saatchi, L.

Geddes, L.

Sainsbury of Preston Candover, L.

Gilmour of Craigmillar, L.

Gray of Contin, L.

St John of Fawsley, L.

Greaves, L.

Seccombe, B. [Teller]

Greenway, L.

Selborne, E.

Harris of Richmond, B.

Sharples, B.

Higgins, L.

Shaw of Northstead, L.

Hodgson of Astley Abbotts, L.

Shutt of Greetland.L.

Howe, E.

Skelmersdale, L.

Howe of Idlicote, B.

Smith of Clifton, L.

Howell of Guildford, L.

Stevens of Ludgate, L.

Hunt of Wirral, L.

Stewartby, L.

Hylton, L.

Stoddart of Swindon, L.

Jenkin of Roding, L.

Strange, B.

Jopling, L.

Strathclyde, L.

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Tebbit, L.

Vivian, L.

Thomas of Gresford, L.

Waddington, L.

Trefgame, L.

Wakeham, L.

Ullswater, V.

Walmsley, B.

NOT-CONTENTS

Acton, L.

Hardy of Wath, L.

Amos, B.

Haskins, L.

Andrews, B.

Hayman, B.

Bach, L.

Hollis of Heigham, B.

Barnett, L.

Howarth of Breckland, B.

Bassam of Brighton, L.

Howells of St. Davids, B.

Berkeley, L.

Hunt of Chesterton, L.

Blackstone, B.

Hunt of Kings Heath, L.

Borrie, L.

Irvine of Lairg, L.

Brennan, L.

Jones, L.

Brooke of Alverthorpe, L.

Judd, L.

Brookman, L.

Kirkhill, L.

Burlison, L.

Lockwood, B.

Campbell-Savours, L.

Lofthouse of Pontefract, L.

Carter, L.

McIntosh of Haringey, L.

Chan, L.

McIntosh of Hudnall, B.

Chandos, V

MacKenzie of Culkein, L.

Clark of Windermere, L.

Mackenzie of Framwellgate, L

Cohen of Pimlico, B.

Milner of Leeds, L.

Corbett of Castle Vale, L.

Mitchell, L.

David, B

Morgan, L.

Davies of Coity, L

Morris of Aberavon, L.

Davies of Oldham, L. [Teller]

Pendry, L.

Dean of Thornton-le-Fylde, B.

PitKeathley, B.

Plant of Highfield, L.

Desai. L.

Puttnam, L.

Dixon, L.

Ramsay of Cartvale, B.

Dubs, L.

Randall of St. Budeaux, L.

Elder, L.

Rendell of Babergh, B.

Evans of Temple Guiting, L.

Scotland of Asthal, B.

Falconer of Thoroton, L. (Lord Chancellor)

Simon, V.

Stone of Blackheath, L.

Farrington of Ribbleton, B.

Taylor of Blackburn, L.

Faulkner of Worcester, L.

Turnberg, L.

Gale, B.

Warner, L.

Gibson of Market Rasen. B.

Warwick of Undercliffe, B.

Gilbert, L.

Whitaker, B.

Goldsmith, L.

Whitty, L.

Gordon of Strathblane, L.

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

Gould of Potternewton, B.

Grocott, L. [Teller]

Woolmer of Leeds, L.

Resolved in the affirmative, and Motion agreed to accordingly.

Criminal Justice Bill
9.20 p.m.
House again in Committee.
Clause 6 [Property of detained persons]:
The Deputy Chairman of Committees (Lord Geddes): Before calling Amendment No. 25, I must advise the Committee that, if it is agreed to, I shall not be able to call Amendment No. 26 due to pre-emption.
[Amendments Nos. 25 to 27 not moved.]
On Question, Whether Clause 6 shall stand part of the Bill?
Lord Hunt of Wirral: Clause 6 is very worrying for a number of reasons. In its further report—HL Paper
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118 printed on 9th June—the Joint Committee on Human Rights made it clear that it has a serious objection to the clause. It stated:
"We therefore remain of the view that clause 6 of the Bill should be either omitted or amended to ensure that there is adequate legally enforceable protection for rights … particularly as it has become increasingly clear to us that the information contained in a detainee's custody record may often effectively determine the outcome of a criminal trial, engaging the right to a fair hearing under ECHR Article 6 as well as the right to the peaceful enjoyment of possessions … At the very least, there should be a statutory requirement to keep all property taken from a detainee in a sealed bag, and to keep a list of anything left in the possession of the detainee if the detainee or his or her legal representative requests that it be done".
I thought it wise to quote the Joint Committee in full because it clearly has some serious reservations about the clause.
Clause 6 would refer back to the Police and Criminal Evidence Act 1984 and would remove the words in Section 54 so that it would no longer contain
"and record or cause to be recorded".
Section 54 would therefore read,
"The custody officer at a police station shall ascertain everything which a person has with him".
There would therefore be no obligation to record what there was with the individual when he arrived at the police station.
There are a number of other issues in addition to those raised by the Joint Committee. The Law Society pointed out that PACE introduced transparency and accountability into police investigations. We recognise that recording possessions is time-consuming. I agree with the Law Society that it can involve some additional paperwork. However, I also agree with the Law Society that it is not overly onerous and provides all the parties with protection. Without the obligation to record, there will be disputes as to what was originally in the suspect's possession, particularly where money is concerned. Items may have evidential value or be used to assist in inquiries into other matters. Surely, it will be more difficult for the police to protect themselves against allegations that evidence relied on was never in the suspect's possession.
It is the view of the Law Society that this provision will lead to increased litigation and increased distrust of the police. Nevertheless, this House must face the fact that the Government are intent on seeking to remove some of the bureaucracy involved. We did not seek to move the amendments because that would concentrate on the details. It might be useful to explore in Committee with the Minister ways in which the intention could be met without the sweeping away of this provision.
Perhaps I may add that in sweeping away this duty to record or cause to be recorded, I wonder whether the Minister has thought about whether there is now the right to record. If police officers still want to record the items, do they have any statutory authority to do so now? Perhaps the noble Baroness will address that point. It may well result from the sweeping away of this provision in this way.

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It is important that a full list should be made of a detained person's property. The list assists the police in many ways, including those that I have already pointed out. It is important also because it ensures that the police cannot be criticised at a later time or, indeed, he subject to any allegation that they have held on to property. It is all there recorded. But there must be occasions which no doubt the Minister will point out where that has involved unnecessary paperwork. Perhaps we might explore with the Minister whether or not it might be at the request of the defendant or the accused person that there could be an obligation to record, or whether it will be possible for the police still to record at their own initiative. Would they need to seek the agreement of the defendant?
I can well understand the purpose of these provisions but it may well be that they will be counterproductive. A failure to list all property could prevent the successful prosecution of other offences committed by that person. It is also possible for the police who are making the decision about which property to record to fail to record property that appears at the time to be irrelevant to that particular prosecution.
There are views that this clause should not stand part of the Bill and that is why we seek this debate. We on these Benches support the reduction of bureaucracy where it is appropriate, but we feel that the police and others may find that they have reason to regret this particular clause if it becomes part of the Bill.
Lord Thomas of Gresford: I support the words of the noble Lord. Lord Hunt of Wirral. I really do not know where this has come from. What is this great bureaucracy? On the custody record there is always recorded on the front page a list of property that has been taken from the accused; that is all. Normally it is a fairly small list because most people who are arrested do not have all that much on them. They do not have the kitchen sink with them, generally speaking, and it is not a great onerous burden.
After that has been filled in, pages and pages of observations on the accused will be contained in the custody record stating everything that has happened to him while he has been in the custody of the police: where he has been, which room he has been to, what food he has had, what refreshment, when he has been interviewed and so on and so forth. There will be pages of that. The record of the property is a tiny part of the first page. So when one realises the practicalities, one wonders what is behind it.
As the noble Lord, Lord Hunt, said a moment ago, if property is not recorded, a danger exists of a defendant saying, "I had my money taken from me". I recall a case in Hong Kong where a defendant said that his life savings of 20,000 dollars were taken from him. As a result, his statement was excluded because of the way in which the police, according to his allegation, had behaved. No record had been made of his property, so the possibility for spending hours—if not days—on a fruitless investigation of what he had on him when he was arrested is obvious.
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I wait for an explanation of why this issue is regarded as serious and why it is in the Bill. It seems to be another piece of ACPO that has found its way into these provisions.
9.30 p.m.
Lord Carlisle of Bucklow: If ever there was a totally non-party political clause in this Bill, it must be this one. My objection, like that of the noble Lord, Lord Thomas, and my noble friend Lord Hunt, is purely pragmatic. If the provision is the suggestion of the police, they will cause themselves greater trouble than they will save. I realise that making a list of an individual's possessions in the station takes a certain amount of time, but why do they want to do away with it? The opportunity it gives for the defence of plant is enormous. The prosecution say, "He had in his possession some cannabis", and the defendant says, "Well, it was planted among my possessions after I handed them in to the police". The next question would be, "Well, officer, where is your evidence? Let us see what was handed in". Answer: "We have no evidence of what was handed in". Pragmatically, it seems an extraordinarily unwise thing to do.
Equally, at the other end, as the noble Lord, Lord Thomas, said, the opportunity is enormous for defendants to say, "I handed in things which have since been stolen or been removed by the police". I would have thought that the amount of time likely to be taken up in investigating allegations of plant on the one hand or investigating allegations of taking property which did not belong to them on the other, would, in the mind of the police, far outweigh the period of time it takes to record a list of items that a person has on them.
Is not the answer to see whether we can devise a simpler, quicker way to record people's possessions when they are handed over to the police, rather than remove the security of recording, which I see as being of advantage to both sides?
Lord Elton: I see nothing but grief coming from this proposal for the reasons that have already been given. I wonder whether the noble Baroness can put herself in the unlikely position of being arrested after a visit to, let us say, Selfridges, being taken into the police station and relieved of three carrier bags and her handbag. It takes some time, but the difficulty is cleared up. She gets the bags back and there is a very smart new leather wallet missing from one carrier bag and her credit cards from her handbag. She says, "Where are my wallet and my credit cards?" They will say, "What wallet and what credit cards?" Even if that does not happen, it is what she will begin to think is going to happen. There is no point in inflicting this kind of uncertainty and insecurity on people who are not as yet proven to be guilty of anything.
Will it be possible for someone to proceed against the police if they honestly think that something has been removed from their property before it is returned? What evidence can they give beyond that

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which the police can give? There would be a very unpleasant situation leading to a great deal of wasted time in court. I long to hear the justification for it.
Lord Campbell-Savours: I share precisely the same views as the other Members of the Committee who have spoken. I shall not take up time by explaining why I believe they are correct. I hope that my noble friend has a very good explanation.
Baroness Scotland of Asthal: I have never been awaited with such obvious anticipation. There is a sensible way of looking at the issue. I reassure Members of the Committee that we will not remove the ability to record. Clause 6 removes the absolute requirement to make a detailed record of the property brought into custody by a detained person and allows scope for alternative methods of securing those items where it is deemed appropriate.
I hear my noble friend ask, sotto voce, "By whom?". Discretion will be exercised by the police officer dealing with the matter. PACE currently requires the custody officer to ascertain and record everything in a detained person's possession when they arrive at the police station. As Members of the Committee indicated, it can use up a great deal of time, especially when the detained person is carrying many small items of property or many documents.
The amendment of PACE would retain the requirement for the custody officer to ascertain what the detained person has in his or her possession but would remove the necessity always to record everything in detail.
Lord Campbell-Savours: Perhaps I may stop my noble friend at this point. Does that mean that if the detained person says, "I want you, as a police officer, to record my possessions", the police officer can say, "I note what you have but I am not prepared to make a written note"?
Baroness Scotland of Asthal: In those circumstances, the officer would not necessarily refuse. With the greatest respect to my noble friend, perhaps I may be allowed to finish. The officer could say, "I am going to put all your possessions into this bag, which will be sealed. You will be able to sign and verify that everything that was in your pocket is now in this bag". That simple action would perhaps prevent the officer from having to itemise 39 penny pieces, 25 tuppenny pieces, 100 single coins, et cetera. But all the possessions would be in a sealed bag, noted, dated and timed, which may lead to greater efficiency.
Of course we have different levels of offences. The noble Lord, Lord Elton, gave the example of me in Selfridges with my numerous bags.
Lord Carlisle of Bucklow: Did he not say Harrods?
Baroness Scotland of Asthal: I think that he said Selfridges. I do not think that he thought I was quite up to Harrods on a ministerial salary. Those were days
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gone by for me. With my numerous bags and handbags, I would expect that all my items would be removed from me and that I would be asked to verify that they were all mine. They would doubtless be put into a sealed bag, and I could provide my signature. They would then give me back my sealed bags, which I would open.
Lord Elton: My difficulty is that we are removing a right that is contained in statute and replacing it with what the noble Baroness says should happen. Will the proposal be set down in regulation?
Baroness Scotland of Asthal: The provisions have been crafted so as to be permissive. Members of the Committee will know that PACE demands that each and every item be detailed and noted. The provision simply gives the officer an opportunity to vary the way in which those items are identified. It could be five pieces of clothing, for instance, which are identified and put into a bag without being separately described. The noble Lords, Lord Thomas of Gresford, Lord Hunt and Lord Carlisle, all made valid points about the potential importance of those items to prosecutions when they come before the court. We know that there is often a dispute as to what was or was not in the possession of the accused and whether that item had any probative value in terms of guilt or innocence. That is absolutely understood by the police and by those who prosecute. Preserving the integrity of the evidence in a manner that will make it amenable to be dealt with appropriately in court is a matter that will exercise all those who prosecute and defend. History has shown us what happens when there is a slip between cup and lip.
The provision will simply allow the prosecution and the police to make a judgment as to which cases may need the detailed, item-by-item recording that we currently have, and which cases may possibly be recorded in a slightly different and more generous way. It is permissive. It just removes the absolute requirement to make detailed records; it does not remove the requirement to record.
Lord Elton: I have a copy of PACE in my hand. It seems from a quick glance that the word "record" has been removed from the only place it appears in that section. If I am wrong, I am happy to apologise and to withdraw, but there does not seem to be any requirement, once those few words have been removed, to do anything except "ascertain".
Baroness Scotland of Asthal: It does not prohibit the officer recording and it is our intention that the ability to record will continue. I have tried to make that clear. The amendment to PACE would retain the requirement for the custody officer to ascertain what the detained person has in his possession. Perhaps the noble Lord, Lord Elton, has more difficulty than I do, but normally the only way one can ascertain what a person has is by requiring. I respectfully and humbly

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submit that the information can then be recorded because that is one way of ascertaining what a person has.
Lord Elton: Ascertaining is finding out: recording is making a permanent record.
Baroness Scotland of Asthal: To use the practical example, if the officer is asked, "Did you ascertain what was in the defendant's possession on the date in question?", and he replies, "Yes", he would then be asked, "What was in his possession?", and the officer would dictate the answer. The officer would then be asked, "How can you assure the court that that is an accurate record?" It would be a very silly officer who did not say, "I recorded it here and the accused signed it" or some such thing. We are looking at how such evidence will be produced. It would be a very foolish prosecutor indeed who replied, "I ascertained it but I made no note of it whatsoever".
I see the noble Lord, Lord Thomas of Gresford, is itching to rise.
Lord Thomas of Gresford: Why change the provision? At the moment the property is listed and the person who has been arrested signs for it. He acknowledges what has been taken away. Why remove that provision?
Baroness Scotland of Asthal: The clause allows for bureaucracy to be made slightly easier. In appropriate cases, instead of listing things item by item, one could collate and describe certain things that may have been in the defendant's possession in a more generic way. It will still be incumbent on the prosecution to establish the chain of events, make sure that no one could have interfered with anything or taken anything away. The noble Lord, Lord Thomas of Gresford, knows those arguments well, and he knows the way in which it may be suggested in a trial that something has been altered, interfered with or left behind or that something could have been done that was not done. All those arguments arc grist to the mill, in the ordinary cut-and-thrust of criminal proceedings. We all know the basis on which they will be used.
The amendment would retain the requirement for the custody officer to ascertain what the detained person had in his possession but would remove the necessity always to record everything in detail. As I said, there will be cases in which, because of the nature of the offence with which one is dealing, the only prudent and responsible thing to do is to record in minute detail the precise nature and contents of what is in the accused's possession. On other occasions, that may appear to be less necessary because of the nature of the offence. I see that the noble Lord, Lord Carlisle of Bucklow, is itching to intervene, so I shall give way again.
9.45 p.m.
Lord Carlisle of Bucklow: I listened carefully to what the Minister said. In some ways, we are now dealing with semantics. The Minister gave the example of
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putting five—or was it eight?—coats that she had bought at Selfridge's, and at John Lewis's on the way, into one bag that is then sealed and signed by her. I accept that that is a recording by the police of what they have received from her.
We are probably now saying that the wording implies that there is no duty to make a record of any kind of what a person may have with him. It may be a matter of semantics, and the answer may be for the Minister to consider the clause again to see whether the wording is right or whether there are other ways of achieving the same end.
Baroness Carnegy of Lour: In the Explanatory Notes, it says:
"Clearly, it will still be necessary to make records, not least to ensure against claims that property has been mishandled or removed".
I am trying to picture the scene that the noble Baroness describes in which all of a person's things are put into a big, black plastic bag. The bag is sealed, and the person signs something to say that it was sealed. Later, the person gets the bag back, opens it and says, "This is the bag, but my wallet is missing". If everything has not been written down, the system has not helped. Is it not necessary for everything in the bag to be listed?
Baroness Scotland of Asthal: Sometimes, it will he; sometimes, it will not. That will depend on the nature and quality of the evidence and the sort of matter that is to be dealt with.
All that the proposals do is give those dealing with the matter some flexibility. At the moment, each and every item must be separately noted. The provision enables the person dealing with the matter to describe things generically and, therefore, more quickly, rather than making a more detailed list.
What the noble Lord, Lord Carlisle of Bucklow, says is right. We may have to examine the language again. I am a little surprised and concerned that so many noble Lords thought that we were suggesting that there would be no recording at all. That is absolutely not what we think. As I said, in the cut-and-thrust of ordinary criminal litigation, there will have to be a modicum of recording for any form of property. Even if it is just the minimum that I described and it all goes into a sealed bag, that will still be a record.
I am happy to consider whether we can do anything else to make it clear that we are not seeking to expunge from the procedure the requirement to make a record. We seek simply to amend the requirement that every minute item must be separately recorded in one place.
In trying to make the procedure work better, there is a hope and expectation that the pilots—currently in five areas where we have encouraged and enabled staff from the Crown Prosecution Service to assist officers to formulate the nature of the charge—will be rolled out across the country by the end of the calendar year. Officers will not have just their own judgment as to the evidence and decisions they need to make in relation to these issues, but they will have the advice and assistance of a properly qualified member of the CPS

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when making these evidential judgments, which are sometimes very difficult. I shall give way in one moment. We certainly found that in the cases where the pilots worked they have greatly improved the efficacy of the process.
The Lord Bishop of Chester: I have listened to the brief debate with interest. The title of the clause is "Property of detained persons". We are dealing with the property of other people. For that reason alone an accurate record ought to be kept. If one is giving something that one owns to someone else, the very least one can expect is that an accurate record is kept. The precision of the record is a matter for debate, but the accuracy of the record is essential.
In the circumstances where people are detained in police stations, there is a lot of emotion in the air. Listening to the debate, I wonder whether the game is quite worth the candle of making the change. Certainly, the case for a change, in my view, has not been made as clearly as it might have been.
Baroness Scotland of Asthal: I absolutely agree with the right reverend Prelate that it is the accuracy that counts. Perhaps I may respectfully say that I think a great deal is being made of this. It may not be worth a candle, but I would put it the other way. All we are trying to do is something very practical and very simple which it is to be hoped will make things a little easier and a little faster both for the accused person and the officer. The right reverend Prelate is right in saying that these can be very distressing circumstances. Any of us who have had our bags totally turned out and have had to go through every item while an officer examines, looks at and notes them, know that that, too, can be very distressing and humiliating. Those of us who have gone through Heathrow and have had people examine the contents of our wash bags or handbags know to our cost that not every item in that bag would one like to be examined with the particularity that others feel they should give it.
What the defendant feels about these issues is going to be important. It would be a very foolish person who would ignore someone who was suggesting reasonably that they wanted a particular detail. By the same token, if they were being wholly unreasonable, it would be something that the officer would take into account. It cuts both ways. We are trying to ensure that we are proportionate in what we do. Many accused would be very happy simply to to be asked, "Is this your bag? Would you like to look at what is in it?" and then close the bag and have it sealed. They would find that far less painful than to have a great big trawl through all the intimate items contained therein.
That is all this clause is trying to do. I am very conscious that this was an anxiety; that it has been explained clearly; and that noble Lords thought that we were not requiring any recording. I shall take it away and determine whether we can tighten the drafting to make that clear. If we cannot, on the Pepper v Hart basis and what is said in the notes
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attached to Clause 6 that will greatly assist in determining our intention. With that, I hope that noble Lords will be content.
Lord Thomas of Gresford: I am not persuaded. It may be that in only one in 100 cases what is in a person's property will be important. But it can arise in all sorts of ways—bloodstaining, DNA and fingerprints. It would be the easiest thing in the world for a defendant to say, "Well, it's not recorded what I had. This is a plant". On the other hand, it would be easy for a policeman to say, "Yes, that was there". The adjudicating authority, whether magistrates or a jury, will say, "Well, we have a policeman's word against that of the defendant. We believe the policeman". So this goes to issues of guilt or innocence and the liberty of the person.
I am not persuaded by the argument that it is embarrassing to have your handbag or your washbag searched. As an inveterate loser of nail scissors at airports I find it irritating but hardly embarrassing. It is a completely different situation in a police station.
Baroness Scotland of Asthal: Perhaps I should remind the noble Lord that what ladies have in their handbags quite often differs from what gentlemen have. Speaking as a member of the former sex rather than the latter, I can tell the Committee that it can he deeply embarrassing.
Lord Thomas of Gresford: I am silenced.
Lord Hunt of Wirral: I hesitate to intervene in the discussion about the contents of respective handbags, but I hope that the noble Baroness will think again. The right reverend Prelate made an important point. We are not persuaded, but we can see what the Minister is seeking to do and there may well be a way through. I do not want the Minister to think that she can come back and say, "Well, I have tried, but there is no better way than to sweep the provision away".
I have two suggestions. First, it would be possible to insert a "may" into Section 54 of the Police and Criminal Evidence Act so that it reads, "may record or cause to be recorded". Secondly, I hope that there will be an opportunity for an individual to request that a full record be made. That is important.
The Minister said that she will reconsider the matter. I hope that she will table amendments in her name when we reach the Report stage.
Clause 6 agreed to.
Clause 7 [Taking fingerprints without consent]:
Lord Thomas of Gresfordmoved Amendment No. 28:
Page 4, line 41, after "offence" insert "and an officer of at least the rank of inspector authorises them to be taken"
The noble Lord said: Clauses 7 and 8 were introduced on Report in the Commons and have not been debated to any great degree. Clause 7 extends the circumstances in which the police may take a person's

707
fingerprints without consent to include taking fingerprints from a person arrested for a recordable offence and detained in a police station.
It extends the current powers in Section 61 of PACE, which have limitations. Fingerprints can at present be taken from those in police detention without consent following charge with a recordable offence or notification that a suspect will be reported for such an offence; or, secondly, on the authority of an inspector, which can be given only where the officer has reasonable grounds for believing that the suspect is involved in a criminal offence and that the fingerprints will tend to confirm or disprove his involvement or facilitate the ascertainment of his identity. I emphasise that that is for the purposes of confirming or disproving his involvement in the offence of which he is suspected or of finding out who he is.
The new proposals make it possible for police officers to require fingerprints from a person without his consent merely on arrest. They do not require the authority of an inspector; nor are they limited to inquiries which tend to confirm or disprove his involvement in a particular matter for which he has been arrested. They are therefore a significant advance on Section 61 and we oppose them.
The amendment is limited. All we seek—we shall come back to the clause in much greater detail at a later time—is to retain the existing requirement of an officer of at least the rank of inspector must authorise the taking of the fingerprints from someone who is detained but not yet charged. We think that that safeguard must be maintained. It should not be right for an investigating officer of detective constable or police constable rank to require fingerprints in circumstances like these. Nor do we think that fingerprints should be retained indefinitely simply because a person has been arrested, even though no charge may follow. I beg to move.
10 p.m.
Lord Hunt of Wirral: I share the concerns expressed by the noble Lord, Lord Thomas of Gresford, with all his experience in these matters. I could not put it any better, but I would like to add to his analysis of the existing provisions of PACE. They have reached a very careful balance—a carefully articulated balance—between the perceived need for the police to have new powers and the provision of protection against abuse of those powers. It is very carefully balanced.
I think that a number of noble Lords find it difficult to sweep away those provisions in the way proposed by the Government. At a rather late stage in the Bill's progress, they are suddenly saying that there should be powers in Clause 7 to allow the police to take fingerprints from anyone who has been arrested for recordable offences without his or her consent, whether or not he is she is subsequently charged with any offence, and then to retain the fingerprints indefinitely.
The report of the Joint Committee on Human Rights, from which I quoted earlier, sets out very clear concerns about these powers which I share, and I
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support the noble Lord, Lord Thomas of Gresford. The Joint Committee reminds us of the ECHR provisions, particularly Articles 3 and 8. It is a worrying fact that although there was a dialogue between the Minister who attended and the committee, the committee stated very clearly in paragraph 54 of its report:
"This leaves us significantly concerned about the risk that arrangements for managing the hugely increased volume of personal data which would become available through the operation of the proposed new powers would be inadequate to secure compliance with ECHR Article 8".
It goes on to deal with a very important point. There has been a steady increase in the number and scope of statutory provisions allowing data to be shared between agencies within and outside the United Kingdom for a wide range of investigative purposes. The Joint Committee draws attention to the risk that the databases might lawfully be put at the disposal of foreign investigators and intelligence agencies conducting speculative "fishing expeditions" in circumstances in which the law governing the work of the foreign agency requesting information offers little or no protection for privacy-related rights in respect of personal data held by public authorities. The Joint Committee also draws attention to the lack of clarity in the allocation of legal responsibility for securing compliance with Convention rights.
The Minister will be aware that there are negotiations relating to the draft agreements between the European Union and the United States of America, including a draft agreement on mutual legal assistance, which would lead to the establishment of joint European Union/USA investigative teams. However, this represents the worrying prospect that Article 9 of the draft agreement would prevent the United Kingdom or any European Union member state from refusing to provide information to 1JSA investigators on account of the lack of effective protection in the USA for privacy-related rights in respect of personal data.
I hope that the Minister will understand that it is right for us to challenge the Government on the need for the clause. One is entitled to ask, if there is such a need, why the clause was not put in the Bill in the first place. I know that there has been police pressure for that sort of power, but the danger is that the police could charge a person just to be able to get their fingerprints and try to match them at will to the database to see if they can clear up crimes. Those are the sorts of worries that could arise in profusion.
There are two principles here: first, the propriety of taking fingerprints from someone who has been arrested but not charged and, secondly, the decision to add that information to a database. Those are worrying aspects, and I join the noble Lord, Lord Thomas of Gresford, in seeking to challenge the Government to justify that quite considerable extension of police powers.
Baroness Scotland of Asthal: I should say immediately that, although I hear what the noble Lord says about the Joint Committee on Human Rights, it

709
accepted that there was no breach of Article 3 in relation to the provisions. To that extent, the committee accepts that they are sound.
It might be helpful if I explored a little more fully how the clause was justified. The Government's proposed amendment to Section 61 of the Police and Criminal Evidence Act 1984 will, as the noble Lord, Lord Hunt, said, allow the police to take fingerprints from a person arrested for a recordable offence and detained at a police station as a matter of routine. We accept that that is a departure, but we argue that it is an important issue that may materially affect the police's ability to identify the correct defendant for the correct charge. It can be used to release people as much as to detain them, if people are identified as having participated improperly in criminal activity.
It is important for the police to be able to do that quickly in order to prevent persons evading justice by giving the police a false identity, and also for the police to be aware of anyone who may pose a risk to themselves or others. The proposed amendment would introduce an unnecessary layer of bureaucracy and possibly inhibit the police from being able to ascertain quickly who it is they are dealing with.
The Government's proposed amendment to Section 63 of PACE will allow the police to take a sample of DNA from a person arrested for a recordable offence and detained at a police station as a matter of routine. The profile obtained from the sample can then be searched against the national DNA database to see whether it matches that from a crime scene. That will potentially allow for more crimes to be resolved and at an earlier stage. Imposing a restriction whereby the taking of the sample has to be authorised by an inspector or above would introduce an unnecessary level of bureaucracy.
The clause will give the police a discretionary power, which they would be able to exercise in the appropriate case. At the moment the Police and Criminal Evidence Act 1984 governs that. Under PACE, the police may take fingerprints from all those charged with, informed they will be reported for, or convicted of a recordable offence. The police may also take fingerprints from those suspected of a criminal offence where there are reasonable grounds for believing that the fingerprints will tend to confirm or disprove the suspect's involvement.
The police may also take a person's fingerprints to facilitate the ascertainment of a suspect's identity. I am sure that noble Lords will recall many very distressing cases in which individuals subsequently found guilty of some of the most heinous offences—I am thinking particularly of some of the most notorious rape cases—were identified at an early stage but DNA or fingerprint samples were not taken from them and retained. Had that happened, the police might have been able much earlier to identify the perpetrator of those murders/rapes and to prevent ensuing tragedy.
710
One need only think of the Ripper who was identified and questioned on a number of occasions in relation to a number of his victims. On each occasion he was let go. In such cases it would be of great assistance if this sort of DNA and fingerprint sampling were available to the police. It would assist in identifying those people at an earlier stage.
It is very easy to discuss these issues as if we were discussing semantics. We are not discussing semantics. We are talking about the ability to identify those who commit identifiable crimes and who can properly be brought to book by means of the independent DNA and fingerprinting evidence that is available to us now as it has not been available to us historically.
The current framework means that the police may miss the opportunity to establish a detained person's true identity if that person lies about who they are and the police have no reason to believe that they have done so. That may inevitably result in criminals, some of them guilty of serious offences, not being identified when they come into custody for other matters. The problem presents itself even more acutely now that we have technology that can check a fingerprint against national records during the time that a detained person can reasonably expect to be in custody.
A number of police officers tell us that, now that accused persons know that their identity could be ascertained early in the process by means of fingerprints, many of them quickly decide that it is not worth the candle and own up to who they are, thereby saving a great deal of time and trouble. Those who chance their arm, to put it colloquially, are identified more easily and more quickly.
This clause will enable those who seek to evade justice by assuming a false identity to be properly identified and dealt with through the due process of law. It may in addition also reveal, by markers on the police national computer, if they are a danger to themselves or others. I stress that they could be a danger to themselves. When people do not give their correct identity, it is sometimes impossible for police to recognise that they are, for example, a suicide risk. They are not given proper supervision. They are treated like an ordinary arrested person, put in a cell and left on their own. The police have no idea that they are susceptible and something untoward may occur which could have been prevented if they had been properly identified.
The power can therefore be helpful not only to the police in detecting crime but occasionally also to the accused, particularly if they require medication or an appropriate adult to be present if they suffer from any form of vulnerability that may be known in the system but not disclosed. I see the noble Baroness, Lady Walmsley, in her place. I think that she knows only too well what happens with those who suffer from mental difficulties. They are quite often the last to identify themselves as vulnerable and sometimes the appropriate steps are not taken to help them.

711
Broadening powers to take fingerprints pre-charge has civil liberties implications, as the noble Lord, Lord Thomas of Gresford, said. There may also be concerns about building larger databases of fingerprints, particularly where it relates to people who have not been proceeded against for an offence. While I recognise all those concerns, we have concluded that any intrusion on personal liberty is proportionate to the benefits in detecting crime and protecting the public against criminals.
In coming to the conclusion that the new powers are compatible with our human rights obligations, we have noted in particular that: the power is discretionary; and that the Divisional Court and Court of Appeal, in the case of R (S & Marper) v Chief Constable of South Yorkshire, agreed with the Government that a balancing exercise involving the rights of an individual, victims of crime and society must be carried out when assessing whether powers are proportionate. The individual's rights are not automatically the most important.
I understand the sensitivity involved, but when one has to balance that against the need to identify the perpetrators of crime, the Government argue that we must come down on the side of the proper detection of crime in this instance. Anyone who has behaved properly and has not become involved in inappropriate and improper criminal activity has nothing to fear from his fingerprints being retained, but it is very difficult indeed to explain to the family of a murder victim or to a victim of rape or of an avoidable offence that we had the technology and ability to identify the individuals concerned, but we let them pass us by.
Using available DNA, fingerprints and sophisticated technology, the police have cleared up a number of offences, particularly in relation to rape. Those offences have been attributed to people currently serving terms of imprisonment for similar or other offences. I hope that the Committee will think that that is a proper and just thing for us to seek to do.
10.15 p.m.
Lord Thomas of Gresford: It is always dangerous to refer to other cases. The case of R (S & Marper) v Chief Constable of South Yorkshire was a case in which it was held that there was an infringement of Article 8.1 of the European Convention on Human Rights. I do not suppose that we have heard the end of that. Certainly the Court of Appeal held that the retention of such samples where no prosecution followed was legitimate, but I am sure that will be challenged.
As regards the Ripper case, I do not recall the Ripper being arrested. His name may have come up on a database or on a search. Certainly that happened with the Cannock Chase murders, where the name of the ultimate accused came up on three separate databases or searches but there was never any crosschecking, which would have revealed that he was the only person who appeared on all three types of search.
The noble Baroness said that the clause removes an unnecessary layer of bureaucracy; that is to say, simply the inspector authorising the taking of the fingerprints
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as opposed to anyone else. I do not regard that as an unnecessary layer of bureaucracy. The measure introduces an element of authoritarianism. The argument that you have nothing to fear if you have done nothing is always trotted out to support authoritarian measures of that kind. The noble Baroness told us that it is a discretionary power. The discretion exists at the moment but it exists to be exercised by an inspector of police. Now it is proposed that that discretion should be exercised by the man who "nicked" the offender—the detective constable or the police officer. It seems to me that a person with greater authority than the person who does the arresting should be brought into play in order to exercise that discretion. I have no doubt that we shall come back to the issue and to that of DNA. which we are about to discuss, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
The Countess of Mar: In view of the lateness of the hour, and in view of the agreement that the Government Front Bench has with the House that we close at 10 o'clock except on special occasions, I beg to move that the House do now resume.
Moved, That the House do now resume.—(The Countess of Mar.)
10.20 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 4. Not-Contents, 91.

Division No. 3

CONTENTS

Allenby of Megiddo, V. [Teller]

Howe of Idlicote, B.

Colville of Culross, V.

Mar, C.[Teller]

NOT-CONTENTS

Acton, L.

Davies of Oldham, L. [Teller]

Amos, B.

Dean of Thornton-le-Fylde, B.

Andrews, B.

Desai, L.

Anelay of St Johns, B.

Dixon, L.

Bach, L.

Dubs, L.

Barker, B.

Elder, L.

Bassam of Brighton, L.

Evans of Parkside, L.

Blackstone, B.

Evans of Temple Guiting. L.

Borrie, L.

Falconer of Thoroton, L. (Lord Chancellor)

Brennan, L.

Bridgeman, V.

Farrington of Ribbleton, B.

Brooke of Alverthorpe, L.

Faulkner of Worcester, L.

Burlison, L.

Ferrers, E.

Campbell-Savours, L.

Fookes, B.

Carter, L.

Gale, B.

Chandos, V.

Gibson of Market Rasen, B.

Chester, Bp.

Golding, B.

Clark of Windermere, L.

Goldsmith, L.

Clement-Jones, L.

Gordon of Strathblane, L

Cohen of Pimlico, B.

Greaves, L.

Corbett of Castle Vale, L.

Grenfell, L.

Davies of Coity, L.

Grocott, L. [Teller]

713

Hardy of Wath, L.

Puttnam, L.

Harris of Richmond, B.

Ramsay of Cartvale, B.

Hodgson of Astley Abbotts, L.

Randall of St. Budeaux, L.

Hollis of Heigham, B.

Renton, L.

Howells of St. Davids, B.

Russell, E.

Hoyle, L.

Sawyer, L.

Hunt of Kings Heath, L.

Scotland of Asthal, B.

Hunt of Wirral, L.

Shutt of Greetland, L.

Jones, L.

Simon, V.

Judd, L.

Skelmersdale, L.

Kirkham, L.

Smith of Clifton, L.

Lofthouse of Pontefract, L.

Stone of Blackheath, L.

McIntosh of Haringey, L.

Strathclyde, L.

McIntosh of Hudnall, B.

Taylor of Blackburn, L.

Thomas of Gresford, L.

MacKenzie of Culkein, L.

Thornton, B.

Maclennan of Rogart, L.

Turnberg, L.

Milner of Leeds, L.

Walmsley, B.

Mitchell, L.

Warner, L.

Morgan, L.

Warwick of Undercliffe, B.

Morris of Aberavon, L.

Whitaker, B.

Northbrook, L.

Whitty, L.

Pendry, L.

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

Pitkeathley, B.

Plant of Highfield, L.

Woolmer of Leeds, L.

Resolved in the negative, and Motion disagreed to accordingly.
10.31 p.m.
Clause 8 [Taking non-intimate samples without consent]:
[Amendments Nos. 29 and 30 not moved.]
On Question, Whether Clause 8 shall stand part of the Bill?
Lord Hunt of Wirral: I sense that this will be a very brief intervention, but I believe it is important to put to the Government and to the Minister our concern that Clause 8 is in the Bill. It would enable samples to be taken from the 1.2 million people a year who are arrested for possible recordable offences but who are not all charged, and it would allow those individuals and their DNA to be added to the national database.
I recognise the force of the Minister's comments about other cases. However, if we are to go down this road to establish a national database, then I really do not believe that we should do it through the addition of this clause to the Bill. Instead, I believe that we should have a full and proper debate and discuss the safeguards that are vitally necessary. That is why I do not believe that Clause 8 should stand part of the Bill.
Baroness Scotland of Asthal: Due to the lateness of the hour, I can take the matter equally briefly and say that I pray in aid all the comments that I made in relation to the previous amendment. It is 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. The police are already able to obtain other information gathered as part of the investigation, such as witness statements, photographs and samples. We argue that fingerprints are no different.
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However, I accept that we shall debate these issues again, and I anticipate from the mood of the Committee and from the comments made in relation to the other matters by the noble Lord, Lord Thomas of Gresford, that we shall have an opportunity to do so at length. Therefore, at this stage, I do not seek to say anything more.
Lord Carlisle of Bucklow: Does the Minister agree that there is a difference between the right, in the course of an investigation, to take fingerprints and other samples as against the right to retain them after a person has not been charged or has been acquitted? It seems to me that those are two different issues.
Baroness Scotland of Asthal: They are two different stages. I say to the noble Lord, Lord Carlisle, that, when considering the ability to identify the perpetrators of crime generally, it is important to have all material available to us so that we can exclude those who are innocent of any offence and, indeed, identify those who may have perpetrated the offence. The new technological improvements give us that ability in a way that we have never had it before. I simply say for the consideration of the Committee at this stage: is it right that we should wilfully disable ourselves from taking advantage of that information when it is available? That is an issue that we shall have to debate.
Lord Carlisle of Bucklow: That is an argument for everyone in the country to be fingerprinted—and that I can understand. 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.
Baroness Scotland of Asthal: I accept that that is an issue. I say that it 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.
I can reassure the Committee that no improper use will be made of the information contained. The previous debate touched on what we do in relation to international agencies and the protection of the proper conduct of such matters. We have always been jealous of the sanctity of our information and that will continue. However, there will be an opportunity for us to debate these important issues in greater depth. I agree with the noble Lord and others who say that these issues are deserving of proper debate. We should do that when we examine them more fully during the course of the Bill.
Lord Renton: At this late hour, I shall not trouble the Minister with all the points in the clause which from

715
the drafting point of view cause me a certain amount of perplexity. But perhaps I may refer to one of them. At Clause 8(3), line 30. we find the expression,
"taking of samples without appropriate consent".
What is the difference between "consent" and "appropriate consent'"? Why ever should such a phrase have been inserted?
Lord Thomas of Gresford: Perhaps I may outline our position on this. We have consistently opposed government proposals to remove the obligations to destroy samples after proceedings against a suspect are stopped. We did so in respect of the Criminal Justice and Police Bill in 2001 and we will do so in respect of this Bill. As regards the building up of a national database, if that is the proposal, it should be fully and openly debated. It should not be added, as happened here, as an after-thought on Report in the Commons, nor debated with only two or three speeches as part of a Bill such as this. The issue of whether we should trade the value of the tool of DNA or the value of the tool or fingerprints in the fight against crime, against our civil liberties is very big. Our civil liberties are very much at stake and we will return to the issue at other stages of the Bill.
Baroness Scotland of Asthal: We understand the position of those who sit on the Liberal Democrat Benches. Obviously, having listened to later discussions, it will be for noble Lords to say whether that position remains. With the greatest degree of gentleness, I would say to the noble Lord that we are not trading the issue of the value of the tool of DNA against our civil liberties. Our civil liberties are in danger when we are subjected to severe causes of violence. Our civil liberties are in danger when we are not able to protect those for whom we really care.
It is a balancing exercise and I absolutely understand what the noble Lord says in relation to us doing all we can to preserve that balance. But balance it is and I wish that we could say it could go one way without the other, but it cannot. The noble Lord is right to say that we must find out where the line is drawn.
As to the comments of the noble Lord, Lord Renton, appropriate consent is defined in terms in Section 65 of PACE and varies between adults and juveniles. These are interesting and detailed issues but we shall have to deal with them another time. Perhaps I may say to the noble Lord that this is not a secret method of building up a national database which will in the end include everyone. It is an opportunity to retain information which may greatly assist us in the detection of crime.
Noble Lords are fully aware of the real issues in our country of confidence in our being able to detain and restrain those who seek to behave inappropriately and improperly. That is something we shall have to face. We shall have to find an appropriate answer to those who say that we have got the balance wrong so far.
The Lord Bishop of Chester: Perhaps I may briefly intervene to say that on several occasions the Minister
716
referred to this being a balancing judgment between different opinions and liberties. Several times she has referred to quite emotive cases such as the Yorkshire Ripper, and so forth.
I have no objection to powers being given to allow samples to be taken when necessary. However, if someone is not willing to give a sample—a mouth swab is not entirely non-intimate; there is an intimacy in giving that—the case for ensuring that a police inspector or person of similar rank has to authorise it may be part of the balancing exercise. While agreeing with the force of the Minister's comments, I would urge her at least to consider introducing that sort of balancing exercise into the procedure.
Baroness Scotland of Asthal: Perhaps I may say to the right reverend Prelate that in relation to the detail we shall have to have a debate and a discussion. I indicated at Second Reading and do so again today that the Government will continue to listen to all contributions made on the Bill and will reflect upon them. Of course, I cannot say to the right reverend Prelate that we will do a volte-face and change our minds on everything in relation to the Bill. However, I certainly assure him that we shall not stop listening.
10.42 p.m.
On Question, Whether Clause 8 shall stand part of the Bill?
Their Lordships divided: Contents, 71; Not-Contents, 23.

Division No. 4

CONTENTS

Acton, L.

Gale, B.

Amos, B.

Gibson of Market Rasen, B

Andrews, B.

Golding, B.

Bach, L.

Goldsmith, L.

Bassam of Brighton, L.

Gordon of Strathblane, L.

Blackstone, B.

Grenfell, L.

Borrie, L.

Grocott, L. [Teller]

Brennan, L.

Hardy of Wath, L.

Brooke of Alverthorpe, L.

Hollis of Heigham, B.

Burlison, L.

Howells of St. Davids, B.

Campbell-Savours, L.

Hoyle, L.

Carter, L.

Hunt of Kings Heath, L.

Chandos, V.

Jones, L.

Chester, Bp.

Judd, L.

Clark of Windermere, L.

Lofthouse of Pontefract, L.

Cohen of Pimlico, B.

McIntosh of Haringey, L.

Colville of Culross, V.

McIntosh of Hudnall, B.

Corbett of Castle Vale, L.

MacKenzie of Culkein, L.

Davies of Coity, L.

Massey of Darwen, B.

Davies of Oldham, L. [Teller]

Milner of Leeds, L.

Dean of Thornton-le-Fylde, B.

Mitchell, L.

Desai, L.

Pendry, L.

Dixon, L.

Pitkeathley, B.

Dubs, L.

Plant of Highfield, L.

Elder, L.

Puttnam, L.

Evans of Parkside, L.

Ramsay of Cartvale, B.

Evans of Temple Guiting, L.

Randall of St. Budeaux, L.

Falconer of Thoroton, L. (Lord Chancellor)

Rendell of Babergh, B.

Sawyer, L.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Simon, V.

717

Stone of Blackheath, L.

Warwick of Undercliffe, B.

Taylor of Blackburn, L.

Whitaker, B.

Thornton R

Whitty, L.

Turnberg, L.

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

Warner, L.

Woolmer of Leeds, L.

NOT-CONTENTS

Anelay of St Johns, B.

Hodgson of Astley Abbotts, L.

Attlee, E.

Hunt of Wirral, L.

Barker, B.

Maddock, B.

Blatch, B.

Montrose, D.

Bridgeman, V.[Teller]

Northbrook, L.

Carlisle of Bucklow, L.

Peel, E.

Chan, L.

Renton, L.

Cope of Berkeley, L. [Teller]

Russell, E.

Shutt of Greetland, L.

Elton, L.

Smith of Clifton, L.

Geddes, L.

Thomas of Gresford, L.

Greaves, L.

Walmsley, B.

Resolved in the affirmative, and Clause 8 agreed to accordingly.
10.53 p.m.
Lord Bassam of Brighton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at seven minutes before eleven o'clock.