Lords Sitting of 29 October 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 Guildford.

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, before business begins, may I take the opportunity to inform the House that I shall be undertaking a ministerial visit to Edinburgh on Monday, 3rd November? Accordingly, I trust that the House will grant me leave of absence.

Secondary Schools: Selection
2.36 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What steps they intend to take to change selective secondary schools to comprehensive schools.
Lord Davies of Oldham: My Lords, we have no plans to change selective secondary schools to comprehensives. We have put in place mechanisms to allow local decision making on selection.
Lord Dormand of Easington: My Lords, I thank my noble friend for that reply. After so many years of exposing the inadequacy of the 11 -plus examination, why do we still permit some local education authorities to continue with it? At least two LEAs still do so. I say this to my noble friend in particular given that Labour governments have made the abolition of this examination their clearly stated objective. If the Government say that it is a matter of choice, which is implied in my noble friend's reply, who will accept responsibility for the literally hundreds of failures of this examination among young folk? Failure can devastate not only their careers but their lives.
Lord Davies of Oldham: My Lords, my noble friend is very knowledgeable on these issues and he will know that the context in which we discuss selection is very marginal to secondary education provision in this country. Of over 20,000 secondary schools, only 164 are grammar schools. As I indicated in my reply, the reason why grammar schools are retained is because local opinion expresses itself in those terms.
Lord Waddington: My Lords, was it not Alastair Campbell, speaking on behalf of the Prime Minister, who referred to "bog standard schools"? Does the Minister agree that it would be far more sensible for
256
the Government to concentrate on de-bogging bog standard schools than mess about with schools which are working very well?
Lord Davies of Oldham: My Lords, I am not sure that Alastair Campbell was speaking on behalf of the Prime Minister on that occasion, and he certainly was not speaking on behalf of his wife who, over recent months and years, has been fervent in her campaign in support of the comprehensive principle. However, I accept one point made by the noble Lord; namely, that it is important to concentrate on improving standards. We are proud of our record in terms of the improvements made over recent years and, as I hope will be conveyed to the House in the very near future, we intend to continue with that strategy of improvement by providing the necessary resources.
Lord Hunt of Kings Heath: My Lords, on the question of standards, does my noble friend agree that the evidence from Kent, which has a highly selective educational system, is that not only do less bright children do less well than in other parts of the country, but the same is true of the brighter children also? Is not that the evidence which shows that selective education works against the interests of very many children?
Lord Davies of Oldham: My Lords, the issue of the significance of selection has been debated for many years and even those who are most fervent in espousing the concept of selection—encompassing most, if not all, of the Conservative Party; I retract that: not all, some enlightened members of that party have not favoured selection—acknowledge that the benefits are concentrated on those who are selected. They have not paid attention to research into the effect of selection on others.
Lord Phillips of Sudbury: My Lords, could not the whole House rally behind the fact that the vast majority of school-age children go to comprehensive schools? Instead of slagging off those schools in one way or another, should we not do everything possible to raise and continue to raise standards in comprehensive schools to everyone's benefit and to the benefit of equality of opportunity?
Lord Davies of Oldham: My Lords, I agree entirely with those sentiments and I am sure that the noble Lord has expressed the general feeling in this House. He will recognise, as I mentioned earlier, that raising standards requires the Government to be committed to providing the necessary resources. We shall be giving direct evidence of that commitment shortly.
Baroness Platt of Writtle: My Lords, is the Minister aware that, in Essex, the 11-plus examination is voluntary and no one needs to take it if they do not want to do so? Indeed, the vast majority of children do not take it. We are very proud of our comprehensive schools as well as our selective schools.
Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness for that contribution. I think that it is recognised across the country as a whole that the best strategy for improving the quality of education and raising the standards which our students reach is not to opt for selection at the age of 11, thereby creating rejection among those who are not selected.
Baroness Sharp of Guildford: My Lords, are there any plans to reverse the Greenwich and Kingston judgments which enable selective schools to recruit pupils from far and wide outside their areas?
Lord Davies of Oldham: My Lords, there are no plans to do so at present because, as I have indicated, the number of selective schools is so small as to be on the margin of education provision in this country.
Baroness Whitaker: My Lords, does my noble friend agree that the year-on-year increase in GCSE qualifications must be a tribute to the achievements of our comprehensive schools because most children go to them?
Lord Davies of Oldham: My Lords, I am grateful to my noble friend for making that point. The whole House will recognise that there have been significant improvements in the standards achieved by our young people, for which great credit must be paid to their teachers, to their parents and, most of all, to the young people themselves. But, of course, the question of structure does arise. It is of benefit that comprehensive education has extended the opportunity for young people to sit examinations and to pass them adequately, which is much beyond expectations many years ago when the country had a selective system.
Lord Dormand of Easington: My Lords, will my noble friend now answer my specific question—who is responsible for the failures? He will readily accept that, where there is a selective system, for every child who passes the 11-plus there will be at least five or six who do not. Who is responsible for the failures, the LEAs or the Government?
Lord Davies of Oldham: My Lords, I recall that at one stage in his distinguished past my noble friend was an education officer. He will know that each local authority is responsible for education provision in its area. In those few areas where selection is still maintained, that is also the responsibility of the local authority.
Baroness Carnegy of Lour: My Lords, is the Minister prepared to congratulate Ms Diane Abbott on the courage she has shown in her choice of school for her child?
Lord Davies of Oldham: My Lords, I thought that that question might arise. I also thought that I had not too adequate an answer given that, on the whole, this noble House refrains from commenting upon individuals in the other place. I propose to follow the norms of the House.

Better Regulation Task Force Report
2.44 p.m.
Lord Clement-Jones Lord Clement-Jones asked Her Majesty's Government:
In light of the report of the Better Regulation Task Force on Better Regulation, what is their response to the chairman's statement that "the National Health Service is the greatest victim of regulatory excess".
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the Government are committed to reducing burdens on NHS front-line staff and are shifting the balance of power to the local level. But, with NHS spending at £62 billion a year and increasing by more than 7 per cent in real terms annually, public accountability and independent inspection remain essential, as the report of the task force accepts. Public protection also requires effective professional regulation.
Lord Clement-Jones: My Lords, I thank the Minister for that very upbeat reply. He quickly passed over the aspect of regulation but there are at least 36 bodies entitled to inspect NHS hospitals— probably more. The Government have created eight of them in their term of office and have plans to create even more. What concrete steps are the Government taking to simplify the number of regulators and to reduce the burden on NHS front-line staff?
Lord Warner: My Lords, if the noble Lord reads the report carefully he will find that 28 bodies are mentioned, 18 of which are the professional regulatory bodies of professional bodies. If he goes through the report, he will also notice that the authors state that the continuing trend towards separating delivery from central government suggests that the role of independent regulators will become increasingly significant. The Government welcome the report. As the noble Lord will know from our work on the Health and Social Care (Community Health and Standards) Bill, the new Commission for Healthcare Audit and Inspection will reduce the number of regulators.
Baroness Gardner of Parkes: My Lords, what is the cost to the National Health Service of this additional regulation? How much more will it cost than previously?
Lord Warner: My Lords, the answer to the factual question is that I do not know. I shall write to the noble Baroness. The report shows that there is a need for powerful, independent regulators, and that policy is supported by the Government.
Lord Campbell of Croy: My Lords, is it correct that the National Health Service is the largest corporate employer in the United Kingdom? If so, does the Minister agree that that is not in itself a reason for excessive regulation?
Lord Warner: My Lords, by and large, we have a regulatory system that is fit for purpose given the scale

259
of the NHS, the complexity of its activities, the need to protect the public and the need to ensure that public money is spent wisely. As I said, we are talking about a £62 billion a year business which has been much increased through investment by the Government.
Lord Walton of Detchant: My Lords, now that the individual regulatory authorities for the various health professions have been reformed and undergone major reconstitution with government support, is it really necessary to have a council for the regulation of the health professions overseeing the activities of these powerful and well organised individual bodies?
Lord Warner: My Lords, the spirit of the thinking behind that decision echoes some of the ideas in the Better Regulation Task Force report to improve the co-ordination between different regulatory bodies and ensure that best practice is shared. The council tries to achieve that purpose.
Lord Turnberg: My Lords, does my noble friend agree that, while there may have been a rational reason for setting up each of the regulatory bodies at the time, it is the accumulation of large numbers that has such a demoralising effect? Does he further agree that it is lime for the Government to look at the cumulative effect of these bodies and to consider whether some pruning could be arranged?
Lord Warner: My Lords, I accept the spirit in which my noble friend offers his thoughts. However, as I said earlier, there are proposals in the Health and Social Care (Community Health and Standards) Bill to incorporate the functions of four regulators into the functions of one regulator in the form of the Commission for Healthcare Audit and Inspection. The Government welcome the report. They will consider what further steps can be taken and will respond to the report by the end of the year.
Baroness Howarth of Breckland: My Lords, bearing in mind the long list of inquiries into things that have gone significantly wrong both in the health service and in social care, does the Minister acknowledge that good, streamlined regulation is vital to the community in terms of the human cost?
Lord Warner: My Lords, the noble Baroness is right. The names which drip off my lips are Alder Hay, Bristol Royal Infirmary, the Kennedy report and Victoria Climbié, to mention but a few.
Earl Howe: My Lords, are the Government relaxed about the fact that since 1997 the number of administrative staff in the NHS has gone up by 27,330, according to the latest figures that I have, while the number of available beds in the NHS has gone down by 14,000?
Lord Warner: My Lords, I am now aware of those figures as the noble Earl has drawn them to my attention. I do not take from that information anything other than
260
that the efficiency of the NHS has increased under this Government, the numbers of professional staff working in the NHS has increased and the productivity for patients has increased.

Mugabe Regime: Travel Ban
2.50 p.m.
Lord Faulkner of Worcester Lord Faulkner of Worcester asked Her Majesty's Government:
Whether they will continue to support the common position adopted by the Council of Ministers of the European Union imposing a travel ban on named Zimbabwean individuals in the Mugabe regime.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, yes.
Lord Faulkner of Worcester: My Lords, I thank my noble friend for that very clear reply. I support entirely the common position on the travel ban on Mugabe's thugs. My noble friend will be aware that this policy has given the governing council of the Inter-Parliamentary Union in Geneva the excuse to cancel the conference which was to be held in London next year and was due to be attended by Nelson Mandela and Kofi Annan. Does she agree that this raises some very serious issues for the IPU, as not only does it make it impossible for future conferences to be held in any EU member state, it also calls into question the nature of the organisation when it appears that a majority of countries which have no more than a passing acquaintance with parliamentary democracy are able to ride roughshod over the views of the rest?
Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government believe that our commitment to upholding the travel ban was demonstrated very fully by our decision not to ask for waivers for banned Zimbabweans to attend the Inter-Parliamentary Union conference which was scheduled to take place in London next year. The fact is that the IPU has now decided to move the conference from London in order to get round the travel ban in very much the way suggested by my noble friend. Her Majesty's Government regret that decision by the IPU, but we stand by our commitment, under international law, to uphold the travel ban. It is of course a matter for the IPU now to decide where it wants to hold the meeting—if, indeed, it wishes to do so—and who it wishes to invite to such a meeting.
Lord Avebury: My Lords, is the Minister aware that the Speaker of the Zimbabwean Parliament, Mr Emmerson Mnangagwa, refused to answer any of the letters addressed to him by the Secretary-General of the Inter-Parliamentary Union and that when the IPU tried to send a mission of three people to Harare, they were turned back at the door? In view of the fact that the governing council of the Inter-Parliamentary Union passed a resolution on 3rd October condemning the unlawful detention, torture and ill treatment of

261
33 Opposition MPs in the Zimbabwean Parliament, should not the travel ban be extended to cover all the ZANU-PF members in the present Zimbabwean Parliament?
Baroness Symons of Vernham Dean: My Lords, I was not aware of that exchange, or non-exchange, of correspondence that the noble Lord, Lord Avebury, has drawn to our attention. However, I am bound to say that I am not surprised to learn of the situation he describes.
There are now 79 individuals on the banned list, which will come up for review in the European Union in February next year when, no doubt, points such as the one the noble Lord, Lord Avebury, has drawn to our attention will be put before the EU. Your Lordships will also know that there are members of Her Majesty's Government who are banned from travelling to Zimbabwe. I enjoy the very peculiar distinction of having been banned twice—once as a Trade Minister and once as a Foreign Office Minister.
Baroness Park of Monmouth: My Lords, I believe that the Minister will agree with me that the common position makes specific references to the breakdown of the rule of law and order and to human rights abuses in Zimbabwe. How can we reconcile our support for that with the Home Office statement that it is safe to return to Zimbabwe? Indeed, the Home Office's policy requires Zimbabwean asylum seekers to seek voluntary return; unless they do so, they are refused accommodation, support and the right to work. May I suggest to the noble Baroness that there needs to be some reconciliation between this position and our very correct foreign policy, particularly in view of the immediate impact of CHOGM?
Baroness Symons of Vernham Dean: My Lords, I am aware of the position that the noble Baroness has drawn to our attention because she was kind enough to bring this matter to the attention of officials in the Foreign Office and the Home Office. I understand that she has had a meeting with officials and that the very matters she has raised with your Lordships are under consideration. She will know, of course, that there is a factsheet available to individuals who wish to return to Zimbabwe—its details have been discussed with the noble Baroness. However, she has raised some important questions and I understand that she may shortly expect a response from those with whom she has had the discussions.
Lord Watson of Richmond: My Lords, what will happen if Mr Mugabe decides to travel to CHOGM?
Baroness Symons of Vernham Dean: My Lords, as I understand it, he will cause considerable embarrassment, not least to the Nigerian Government, and I imagine that that embarrassment will extend to others. Noble Lords may also like to know that Mr Mugabe has not been invited.
Lord Howell of Guildford: My Lords, may I press the noble Baroness a little further on that question? Does she
262
accept our view that the Government were right to uphold the travel ban in relation to the IPU, even though the consequences have been a little unfortunate? But as for the meeting in Nigeria in December, surely the world should be moving to prevent such a journey taking place. Is it enough simply to wring our hands? Can we not mobilise support within the Commonwealth, of which we are a partner and a member, to prevent Mugabe and his gang going to Nigeria and to bring home the argument that merely because they have been suspended for one year they have somehow fulfilled their penalties and should be allowed back in? Surely we should reject that view with the utmost vigour.
Baroness Symons of Vernham Dean: My Lords, the fact is that when one does what is right, there are very often what the noble Lord has described as unfortunate consequences. That is what we have to face. With regard to the Commonwealth Heads of Government Meeting, we are not merely wringing our hands, as the noble Lord puts it. We have not invited Mr Mugabe. We have discussed this matter with the Nigerians and shall continue to rally as much support as possible for the position which has been adopted by Her Majesty's Government. We believe that we have a strong moral argument which is supported by many, many people in the Commonwealth. Perhaps, if I may say so, the noble Lord's injunction should also be addressed to some of the others in the Commonwealth who also need to be encouraged on this point. I see the noble Lord nodding at that remark, and I hope that he and his party will do so.
Lord Tomlinson: My Lords, is my noble friend aware of any action that the French Government might have taken to emphasise their solidarity with European Community decision-making in the light of the vote of the French parliamentary representatives, which showed a remarkable lack of solidarity?
Baroness Symons of Vernham Dean: My Lords, we have had our—how shall I put it?—differences of opinion with some of our friends in France over the travel ban. Your Lordships may recall an interesting interlude in the operation of the travel ban earlier this year in relation to a meeting held in Paris. However, under the EU common position, there is the possibility of a country issuing a visa for Zimbabweans to travel when such travel would accommodate a meeting under a treaty obligation. I refer, of course, to the meeting in Rome from 9th to 18th October at which the EU ACP arrangements were discussed. That was an obligation under a treaty, so the travel ban did not apply. That is a rather different European position from the one to which 1 believe my noble friend Lord Tomlinson was referring.
Baroness Sharpies: My Lords, are Her Majesty's Government getting help from South Africa or is South Africa being extremely difficult in this situation?
Baroness Symons of Vernham Dean: My Lords, we are getting some help from South Africa but, as I am sure the noble Baroness will know, there are a number

263
of our friends in the Commonwealth whose position on this is more nuanced than ours. When we have hoped, for example, to gain support in the United Nations for the possibility of a Security Council resolution, as I indicated yesterday, there has not always been the enthusiasm that we would have wished to see.

Postal Strikes in London
2.59 p.m.
Lord Monson Lord Monson asked Her Majesty's Government:
Whether they are taking steps to promote an early end to the current series of postal strikes in London.
Lord Davies of Oldham: My Lords, no one will benefit from industrial action by postal workers in London. It will disrupt services to consumers and businesses that rely on Royal Mail services. Resolution of disputes is a matter for the management of Royal Mail and the Communication Workers Union. The Government continue to encourage them to sit down together and reach a settlement on all outstanding issues.
Lord Monson: My Lords, I thank the noble Lord for his reply, the first part of which I agree with. Would he agree that, whereas a 24-hour stoppage is tolerable, to suspend postal deliveries for a full week, as has happened in the greater part of London, causes immense hardships—not only financial hardships to individuals and businesses but emotional distress as well? One thinks of lonely elderly people waiting in vain for the three or four birthday cards that they can normally look forward to getting, or the recently bereaved widow waiting for letters of condolence and support.
As successive governments have awarded Royal Mail quasi-monopoly status, is it not incumbent upon the Government to do everything in their power to bring this matter to a speedy resolution?
Lord Davies of Oldham: My Lords, I agree that the disruption is most unwelcome. In fact, the 24-hour disruptions to which the noble Lord made reference were also most unwelcome and made difficulties for people. I recognise the points made about the elderly. We are doing everything in our power to ensure that all benefit claimants receive their payments over this difficult period.
The Government are doing all they can to urge the two sides to come to agreement. They met yesterday afternoon and are meeting again today. We trust that those meetings will prove to be fruitful.
Lord Glenarthur: My Lords, I deplore all that is happening and share the opinion of the noble Lord, Lord Monson. What is the number of items—letters and parcels—that have been delayed? When the situation is resolved, how long will it take to return to
264
normal, so that those of us in the wider community can return to the service to which we have become accustomed?
Lord Davies of Oldham: My Lords, I am not able to give a figure for the number of items that are held in the post. That is an ever-changing figure, as the noble Lord will recognise. In addition, this is unofficial action and, therefore, we have not been able to predict the effects on the postal services. The noble Lord is right that the Post Office will expect to put maximal effort into restoring its services to normal as rapidly as possible when the disputes are settled. The first issue is, of course, to get the disputes settled.
Lord Clarke of Hampstead: My Lords, will my noble friend join with me in wishing the talks well this afternoon? We are in a situation in which 20,000 low-paid workers have withdrawn their labour, 11 major mail centres are shut, every London delivery office is closed for delivery and there is already a prospect of the dispute spreading to Southend, East Anglia, Oxford and other places. That is a matter of concern for the Government.
Would my noble friend agree it is not good to hide behind the idea that management must manage, when the Government appointed the current management structure, which is carrying out a vengeful and spiteful attack on those people who had an official day's action? When they returned to work, old agreements that had been properly negotiated were torn up and thrown in their faces. Can my noble friend spare the time this afternoon to sit down with me so that I can tell him about some of the incidents that have taken place in the name of the management that our Government, this side of the House, agreed to— although not with my permission or approval? When the Postal Services Act 2000 went through this House, I warned noble Lords what would happen. Get those spiteful, vengeful dogs off the back of these decent postal workers!
Lord Davies of Oldham: My Lords, the House will recognise how knowledgeable my noble friend is about these issues. I can only benefit by sitting down with him later this afternoon and discussing the issues further. What I am not prepared to do is to debate the merits of the dispute over the Dispatch Box when, as he will recognise, there is much complexity involved. It is absolutely essential, as he has said, that the two sides get together and address the issues properly.
Lord Razzall: My Lords, as noble Lords know, the strike, although spreading, is unofficial, and is taking place notwithstanding the valiant efforts of the Minister's noble friend the noble Lord, Lord Sawyer— who is not present today. Nevertheless, would the Minister agree that the dispute demonstrates the need for the Government to encourage moves towards compulsory arbitration in disputes involving essential public services?
Lord Davies of Oldham: My Lords, I am sure that the whole House recognises one point that the noble

265
Lord made; namely, that my noble friend Lord Sawyer has contributed substantially to improvement in industrial relations. In the past three years, industrial relations in Royal Mail have improved, and the present outburst of unofficial disputes is doing considerable damage.
The noble Lord will recognise that, when we are dealing with unofficial disputes, the only way of resolving them is by the two sides getting together. They met yesterday and did not resolve the issues, but the talks are continuing, and it would be quite inappropriate for outside agencies to act at this stage.
Baroness Trumpington: My Lords, speaking as a lonely elderly person who is aware that her birthday cards have gone astray, may I ask the Minister what he considers normal? Does he consider it normal that, when a parcel is delivered, the postman no longer rings the bell but simply leaves a card? While paying huge tribute to the postal services in the Palace of Westminster, will he ensure that, while the conversations are going on, more attention is paid to the efficiency of the Post Office as it works at present?
Lord Davies of Oldham: My Lords, it is in the interests of Royal Mail to ensure that it offers the best possible service. However, the noble Baroness will recognise why some aspects of past practice are inappropriate in this day and age. We can all recall the times when packages were left on our doorstep, or with friendly neighbours. It is much more difficult these days to distinguish people, when all sorts of material is sent through the post. It is important that items are collected by the individual concerned, that proper regard is given to security, and that items are not simply left outside the house.
Lord Brookman: My Lords, I speak with my old trade union hat on. Are the Government satisfied with the progress being made, bearing in mind the report of the noble Lord, Lord Sawyer, about the industrial relations situation as it has developed in the Post Office? Does the Minister agree that the huge fat-cat salaries being paid at the top end of the structure are unhelpful?
Lord Davies of Oldham: My Lords, salaries at the top level are related strictly to performance-related agreements, and payment is made only on the basis of achievement. The House will recognise that the disputes and difficulties will affect the hitting of such targets.
More generally, my noble friend, with the vast trade union background which he brings to bear on these matters, will recognise that there have been improvements in industrial relations in Royal Mail. This setback has sprung from difficulties over one issue alone—the question of the London allowance. In other parts of the country, great progress has been made, with the assistance of my noble friend Lord Sawyer. All is not
266
gloom. At present, we are in difficulties, but I reiterate the point that the two sides are meeting again today. We hope for a successful outcome.

Children: Contact with Separated Parents
3.9 p.m.
Baroness Buscombe Baroness Buscombe asked Her Majesty's Government:
What plans they have to introduce a legal presumption for parents to have continuing contact with their child following a divorce or separation.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, generally it is in the best interests of the child to have a continuing relationship with both parents following separation. We will encourage contact where it is safe and we will look at ways of diverting more cases away from the courts.
Where one parent refuses to comply with court-ordered contact, we want to look beyond the courts' current options of fine or imprisonment. We shall publish our proposals for improving contact in November.
Baroness Buscombe: My Lords, I thank the Minister for his reply. However, does he accept that it is only right that separated parents should each have a legal presumption of contact with their children; that is, real parenting time? Surely that would ensure that both parents could continue to contribute to their children's family life and that those children would benefit from care by both their parents and any grandparents and extended family members who were able and willing to play a role in their upbringing. Does the Minister agree that while children's safety should not be put at risk, it is cruel, inhuman and plainly wrong to keep fit parents from their precious children without a compelling demonstrative reason, and that it is cruel and damaging to the children as well as to the parents and the grandparents?
Lord Filkin: My Lords, as I indicated in my reply, it is the Government's view that it is strongly in the interests of children that they have such continuing contact with both their parents when it is safe to do so. However, we believe that the Children Act 1989 quite rightly put the responsibility for making decisions on contested contact issues with the courts, with the focus being on what is in the best interests of the child. We continue to think that it is right that the courts have a wide discretion to exercise judgment on what is in the best interests of the child looking at the particular circumstances of each case that comes before them. Having said that, we are strongly of the opinion that we need to try to find ways of encouraging increasingly successful contact arrangements because we share the view that it is desirable in the vast majority of cases that children have contact with both parents as part of their growing up.
Lord Northbourne: My Lords, if the noble Lord means what he says about the Government's

267
presumption that what we are discussing is in the interests of children, why will he not accede to the suggestion of the noble Baroness, Lady Buscombe, that there should be a presumption? The courts would still have the opportunity of going against that presumption if it seemed appropriate to do so, but the presumption would be a great help in achieving the objectives the Government appear to endorse.
Lord Filkin: My Lords, I do not fully understand that argument because as the law currently stands the courts have the duty as their prime obligation to consider the interests of the child. In our experience the Government, the family courts themselves and the judiciary recognise the desirability, where it is safe to do so, of a child having continuing contact with both parents, as common sense tells us. They have full liberty to reach the objective that the noble Lord indicated. We think that is a correct principle. Having said that, we have to pursue mechanisms to increase contact wherever we possibly can.
The Lord Bishop of Guildford: My Lords, does the Minister accept that the key to ensuring the welfare of children in these circumstances lies with the parents jointly agreeing how they will fulfil their responsibility to their children, and that any introduction into the process which encourages a battle around the rights of either or both of the parents would be disastrous? The system, including the provision of family mediation services, ought to work to encourage parents to fulfil their responsibilities. Will the Minister encourage us to believe that the Government will seek to increase support for such services in support of parents in this situation?
Lord Filkin: My Lords, the right reverend Prelate put his finger exactly on the central issue—how one can try to motivate parents to be more successful in reaching agreements for effective contact in the interests of their children. The evidence is that those cases that go to court appear to be less satisfactory in reaching outcomes that both sides think work than those that are dealt with by agreement between parents. Therefore, the whole thrust of our policy is: first, to try to ensure that when the court makes an order it is enforced and enforceable, which is not always the case, and, secondly, to try to push processes to mediation before they get into a court process, which does not appear always to be the best way of resolving these very difficult disputes. I strongly endorse what the right reverend Prelate said.
Earl Russell: My Lords, I thank the Minister for the spirit of the answers that he has given so far. If the Question had mentioned "presumption", it would have received a warm and wide welcome on these Benches. However, it mentions "legal presumption". Since the man of property is still with us, it raises the need for equal security against the risk which is sometimes underestimated of physical or sexual violence either to the child or to the woman. As we agree that the interests of the child are paramount,
268
does the Minister agree that this is often best discovered by the use of a genuinely independent advocate for the child?
Lord Filkin: My Lords, there are circumstances when it is right and necessary that the child has an independent advocate both in child contact cases and more often in child protection cases. I recognise and agree with that. I also take the thrust of the noble Earl's point about it being desirable that both parents have continuing contact without unduly fettering that by making it a specific legal obligation. There is no conflict between those objectives in practice in most cases because in practice it is desirable for the absent parent to have contact and, therefore, one wants to work towards making a reality of that both in the interests of the child and in the human interest of the absent parent.
Baroness Knight of Collingtree: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, I am sorry but we are out of time.

School Funding 2004–06
3.17 p.m.
Lord Davies of Oldham: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Education and Skills. The Statement is as follows:
"Mr Speaker, with permission, I would like to make a Statement about the funding of schools in the years 2004–05 and 2005–06. I am placing the details in the Library of the House.
"On 17th July this year I set out to the House the principles which I would follow to restore confidence in the school funding system, deliver stability in school budgets and give certainty for head teachers and governors. I promised a further update in the Autumn.
"Responsibility for school funding is shared between government, LEAs and the governing bodies and head teachers. We all want to ensure that schools can plan and manage their resources effectively to achieve the highest possible standards. I want to express my appreciation today for the commitment of all the education partners to these ambitions, and for the constructive way in which representatives of schools and local government have worked with us. I am confident that this will continue.
"As I said in July, I intend to support schools in three ways: a minimum increase in every school's budget; additional resources to help every LEA to support schools with additional pressures; and targeted transitional support to help all schools to achieve balanced budgets.

269
"I promised to introduce for 2004–05 and 2005–06 a minimum per pupil funding guarantee for every school, taking account of the average cost pressures facing schools in those years. I will achieve that by increasing both LEA core funding and the funding received from DfES grants.
"My officials have examined the relevant cost pressures—including increases in teachers' pay where we have assumed an inflation-led settlement. These pressures naturally vary between schools. However, following extensive consultation with our education partners, my best estimate for next year is that the combined effect of these factors on the average school will be of the order of 3.4 per cent.
"Each school receives funding through LEAs in two main ways: funding directly related to pupil numbers and funding relating to fixed costs. We have concluded, after careful consideration with our education partners, that pupil-led elements should rise by 4 per cent per pupil and fixed elements by 4 per cent in cash.
"This means that a school whose pupil numbers stay the same between 2003–04 and 2004–05 will be guaranteed a 4 per cent per pupil increase in its overall budget next year.
"A school whose pupil numbers decline will receive a funding increase of more than 4 per cent per pupil, to help cover fixed costs. However, because of declining pupil numbers, the number of primary schools with reduced cash budgets—and so possibly staff numbers—will be significant, as there are around 50,000 fewer primary pupils this year, with a similar reduction next year. Secondary schools with falling rolls will be in the same position.
"A school whose pupil numbers are increasing will be guaranteed at least a 4 per cent increase for all its existing pupils. Those schools will be guaranteed a rise of at least 4 per cent in their cash budgets and an overall per pupil increase of at least 3.4 per cent.
"I said in July that we would consider carefully the position of very small schools. Those will receive an increase of at least 4 per cent if their pupil numbers do not change. However, our general approach may not be appropriate for very small schools with much higher than average fixed costs. Therefore, funding for schools with 75 pupils or fewer will be determined according to their LEA's own school funding formula. For special schools, whose funding is normally based on places rather than pupil numbers, the guarantee will be a minimum 4 per cent increase in funding per place. LEA funding for specified costs, such as rates, will continue to be funded at cost and will be apart from the guarantee.
"The 4 per cent level at which 1 have set the minimum schools guarantee already takes some account of cost variation around the 3.4 per cent average. However, I should stress that that guarantee represents only the minimum increase that a school might receive next year. Across the
270
country, many schools will receive per pupil increases of more than 4 per cent, since the overall increase in education formula spending will be more than 5.5 per cent per pupil. The final budgets will be determined by LEAs, in consultation with schools forums and after the local government finance settlement has been announced. However, today's announcement should—subject to pupil numbers— give schools an early indication of the minimum increase in their budgets.
"For 2005–06, my expectation is that the minimum schools guarantee will again be at least 4 per cent for a school with unchanged pupil numbers. I will keep that under review and announce the final figure in due course.
"Other elements of schools funding will also be increased on the same basis. Thus the Learning and Skills Council will increase all its funding rates for school sixth forms by 4 per cent in 2004–05, and will increase current school sixth-form allocations for the period April to July 2004 by 4 per cent. Similar arrangements will apply in 2005–06.
"The changes to the Standards Fund caused significant problems for some schools this year, so in July I undertook to reverse the cuts which had previously been announced for the next two years. That additional spending is reflected in the Standards Fund allocations which are being issued to local authorities today.
"In 2004–05, schools will generally receive a cash increase of 4 per cent on this year's Standards Fund allocations. There will be some limited exceptions. Those include: grants where the amount of funding is directly related to actual costs; specialist schools, where I increased the funding rate in September this year and will make a further increase to £129 per pupil in 2005; and grants where funding is being especially targeted for policy reasons. For example, we are uprating the ethnic minority achievement grant by 4 per cent, but also taking the first steps towards a fairer distribution. However, no school will receive less ethnic minority achievement grant in cash terms in 2004–05 than it is receiving this year.
"Moreover, next year schools will receive either a 4 per cent increase on their per pupil schools standards grant, or the value of their announced SSG band for 2004–05, whichever is higher. Both Standards Fund and school standards grant will be uprated again— in line with the minimum schools guarantee—in 2005–06. I am also adding resources to revenue support grant to reflect in LEA baselines the budget support grants paid to some authorities in 2003–04.
"The total additional funding to maintain and uprate the Standards Fund and school standards grant, and to mainstream the budget support grants, will be £435 million in 2004–05 and £520 million in 2005-06.I am placing full details in the Library.
"I can also confirm that threshold pay costs will be fully funded next year. As at present, schools will be able to draw down well over £500 million from my department on a demand-led basis. In addition,

271
the £205 million we have allocated this year for performance-related pay will be uprated at least in line with the headline pay settlement for next year. If proper arrangements for point 3 of the upper pay scale can be settled, further resources will be allocated in September 2004.
"The schools guarantee must of course be backed by adequate resources for the local education authorities. Next year, I will therefore set the minimum increase in the schools formula spending share at 5 per cent per pupil. Again, that is a minimum—most increases will be higher. The provisional SFSS increase for each authority will be confirmed at the time of the local government finance settlement, but we expect the ceiling to be at least 6.5 per cent per pupil.
"As I said in July, every authority will receive sufficient grant in each of the next two years to cover its formula increase in education spending. Given that commitment, my right honourable friend the Deputy Prime Minister and I will be writing to authorities to set out the Government's clear expectation that every LEA passports in full its SFSS increase into a matching increase in its schools budget, unless there are wholly exceptional circumstances. I have statutory powers to require LEAs to set a minimum schools budget, and I will be prepared to use those powers if it is necessary to do so.
"I also expect LEA spending on their central education budgets to rise no faster than spending on schools. I am confident that most LEAs will concentrate on increasing schools' delegated budgets over the next two years, but the draft regulations that I have issued reflect my determination to achieve that. Under my proposals, LEAs will be able to seek an exemption in exceptional local circumstances. I will confirm the minimum increase in SFSS for 2005–06 next autumn but, if the minimum schools guarantee is 4 per cent, I would expect the minimum increase in SFSS again to be around 5 per cent.
"My proposals have been drawn up to support schools. But that support will not be at the expense of other services. In line with the commitment that I made in July, the Government will be providing additional resources for other services, including children's social services, to support spending in those services. The details will be announced as part of next month's local government finance settlement.
"My statement in July emphasised my commitment to sustaining school workforce reforms. That commitment stands. Much progress can be made from schools managing their total resources—people and money—more strategically and working in different ways. Over the next two years, the increase in resources for schools— through schools formula spending share and DfES grants, and including the additional resources that I am confirming today— provides headroom over the average cost pressures that schools face, to help schools make the most of the national agreement.
272
"The primary responsibility for maintaining sound financial management rests with schools themselves and their LEAs. I acknowledge that LEAs need more flexibility to help schools to balance budgets over the next two years, so I am amending the regulations to enable LEAs to target their resources at those schools which have particular problems, whatever their source. It is the responsibility of LEAs to use that flexibility. I expect them to do so and am confident that my expectation will be fully shared by the communities they serve.
"However, I do recognise that there are a limited number of cases where balancing budgets is beyond the capacity of individual schools and LEAs in the short term. That is most likely in those LEAs that have received the lowest increases in education formula spending and DfES grant between 2002–03 and 2004–05. For those LEAs, I therefore propose to make a targeted transitional grant available over the next two years and I am issuing indicative figures today. Those assume that that grant will be available to take the increase in funding for all authorities over the two-year period, up to a minimum of 12 per cent. That is well ahead of our best estimate of unavoidable pressures for those years. I estimate that that will cost around £120 million and benefit around a third of LEAs. The final allocations will be confirmed at the time of the local government finance settlement.
"However, that additional resource will be provided only where I am convinced that the LEA has made every effort to support its schools from within its own resources; that is, it should be passporting its SFSS increase in full; it should be directing its resources to delegated schools budgets as far as possible; and it should be intending to target the schools in greatest difficulty. It will be a condition of grant that each LEA prepares, with the schools concerned, a costed and credible plan to bring its schools' budgets into balance by 2006–07.
"In 2005–06, I propose to make further grant available to the same authorities at around half the level of that provided in 2004–05. Again, I will confirm the detailed figures next autumn.
"LEAs whose increases between 2002–03 and 2004–05 were greater than 12 per cent should be able to resolve local difficulties within their own resources. However, I do recognise that there are individual schools which have spent above their income this year and may therefore face difficulties in getting their budgets back into balance. Therefore, where an LEA can put forward a compelling argument that additional, transitional funds are needed in the short term—above and beyond those already available to it—and in order to avoid real damage to children's education, I am prepared to consider bringing forward DfES grant payments, so that the LEA will have funds available in 2004–05 for that purpose, with the expectation of a consequential reduction to what it will receive in future years. I will confirm the maximum amount that I might be prepared to make available to each LEA in that way following the local government finance settlement, but 1 expect the calculation to be based on a maximum grant of £300,000 per authority,

273
or 0.2 per cent of the authority's total education resources in 2004–05, if that is higher. Such grant would be subject to conditions similar to those for the targeted transitional grant.
"I am confident that the measures I have outlined today will help to create stability for schools. We will do all we can to help LEAs work with their schools, where necessary, to get budgets back into balance over the next two years. That is because, for any school, an annual excess of spending over income is not sustainable. I acknowledge that getting back into balance may mean difficult decisions. Where school spending varies significantly from the average—where 80 per cent is spent on staff costs and 20 per cent on non-staff costs—or from its income, the school needs to act to get back into balance.
"It is therefore vital that schools are well able to plan and manage their resources effectively. More and better support for schools is needed in that area, so I am announcing today that my department has commissioned KPMG to work with the National College for School Leadership and headteachers' associations to design and develop a varied menu of support and guidance to help schools' budget management. That support will be available from the turn of the year. It will prioritise schools in those LEAs that are in receipt of the targeted transitional grant.
"The proposals that I have announced today are designed to help restore confidence in the school funding system and increase stability in school budgets. I am grateful for the help and advice that we have received from our education partners. I have set out the framework for the school funding system over the next two years. It is now for LEAs to address the needs of every school, and for heads and governors to ensure that the resources they receive are used effectively. We all share responsibility for school funding and we must continue to work together to get it right".
My Lords, that concludes the Statement.
3.35 p.m.
Baroness Blatch: My Lords, I am grateful to the Minister for that very long and extremely complicated Statement. If there are other Members of this House who have understood it better than I have, I will hand over my job to them.
We were promised transparency. However, the Statement reads like a Russian novel. One has to return again and again to previous references in order to track the promised money and to make a judgment whether schools will be better off as a result of the announcement. Transparent the Statement is not.
The Government told us in a convoluted way that schools, parents, children and LEAs will all be grateful for the Statement and that all will be well in the world of school-based education. At this stage, we must take the Government at their word; and at this stage, we do. However, it is important to record that much of the
274
complexity of the announcement reflects the necessity for the department to address the chaos of last year, which was frankly of the Government's own making.
Last year, the Government blamed a failure of modelling and tried in vain to lay some of the blame on LEAs. The fact that a number of financial adjustments had to be made during the course of the year, and the conditions which created a legacy of uneven provision across the country, are testament to the ill thought-through and ill trumpeted settlement last year.
Children have suffered; teachers and headteachers have made huge sacrifices, many losing their jobs; and ancillary staff have also been affected. The Secretary of State in another place, when referring to the list presented to him by my honourable friend Damian Green of authorities with deficit budgets this year, accused those LEAs of scaremongering. Do the Government believe that the £14 million deficit of the Secretary of State's own county council, Norfolk, and the £22 million deficit of Kent County Council are merely figments of their imagination? If so, will the Minister provide some assessment of what he thinks those deficits are?
It is clear that more time will be needed to absorb the detail of the Statement. However, to help us understand it, will the Minister clarify the nature of the base measurement that was used for the 4 per cent-per-pupil increase? For example, those schools that were hard hit last year and those schools that benefited—some considerably—will remain in the same differential position. If there is a flat 4 per cent increase for all pupils, nothing will change. The schools that suffered most will benefit least and the schools that gained most will benefit greatly. I know that some money has been made available to address discrepancies. However, there was a threat in the Statement that that money will be clawed back over time.
What is the split between the Treasury and the LEA? More particularly, what will be the impact of the settlement on the local taxpayer? How much new money is planned to come from the Government?
What flexibility will there be for LEAs? What flexibility will they have if the only way in which they can meet all the demands and government guarantees that go with the settlement is by raising more local taxes? If the Secretary of State has threatened to use his powers to stop them raising those taxes, that money can come from only one other place and that is from other services. The Secretary of State has give a guarantee that that will not happen. Is there therefore a guarantee that the cash which will come from government will allow local taxpayers a fair deal and will allow LEAs properly to meet the obligations set out in the Statement?
Teachers are very concerned that funding will be inadequate to meet the pay awards to those who qualify under the performance-related pay scheme. Can salary increases be funded? Have the Government taken on board the fact that as pay increases, so, too, will national insurance? It will increase not only for individual employees throughout the education sector, but also for employers—the local authorities—as the pay bill increases.

275
The long Statement contains only two lines about special educational needs, indicating that it is to receive the same 4 per cent increase. However, there is no mention of the additional costs incurred as a direct result of the Government's legislation. Special educational needs have had a raw deal from the Government. Earlier this year, the Secretary of State said that some LEAs were spending too much on SEN. How much is too much? What comfort is there in the Statement for children with SEN?
Will the Minister tell the House how the 3.4 per cent increase, deemed to be the cost increases faced by schools, is made up? What are the constituent elements? Will the learning and skills councils allocate a 4 per cent increase in funding to all students, including those additional students in sixth-form school-based education? Is the additional money allocated for under-achieving ethnic minority children announced in the Statement to be new money met by the Government, or will it come from the overall education budget?
Meanwhile, we have to take the Government at their word. Like the local education authorities, the parents, the teachers and other staff, but most especially the children, we will be vigilant in examining how the proposal works in practice. Once again, the Government have raised the stakes. Throughout education, expectations are high. Last year, those expectations were cruelly dashed and government Ministers passed the buck to others.
Only when the detail of the settlement is completed by the Deputy Prime Minister will we be able to make a judgment as to the merits of the Statement and the degree to which children in the classroom will benefit—and, of course, the degree to which local taxpayers, who are suffering sorely from past settlements, are treated more reasonably.
The Secretary of State claims that this settlement will restore confidence, deliver stability and give certainty. Following the débâcle of last year, there is a mountain to climb. Much is now in the hands of the Secretary of State and the Deputy Prime Minister.
3.43 p.m.
Baroness Sharp of Guildford: My Lords, I, too, am grateful to the Minister for repeating the Statement. 1 echo the comments of the noble Baroness, Lady Blatch, on the complexity of the Statement.
The Statement was necessary because government announcements made in April about the funding of schools came unstitched during the summer. As the noble Baroness, Lady Blatch, mentioned, it was initially blamed on local authorities. However, it became clear that ultimately the fault lay with the department for failing to do its sums. That became clear once the Select Committee for Education and Skills in another place looked at the matter in detail.
In July, the Minister made a second Statement in order to explain what had gone wrong and he then promised this follow-up Statement. He then said that he would wait until the teachers' pay review commission had reported but it has not yet done so. He now says that the Government anticipate the pay
276
settlement taking place, but I am surprised that the Statement has been made before the review has been announced. I hope that the figures incorporated in the Statement mirror those which will come forward in the pay review. Presumably, the Secretary of State has prior knowledge of that.
We on these Benches welcome two other aspects of the Statement. First, it gives schools longer to plan next year's budgets. Last year, everything came unstitched at the last moment but this year they will have more time. However, they must still wait on the local government settlements, which will take time to put together. In the next month, most LEAs will be rushing around trying to sort out precisely what the Statement and its implications mean.
We also welcome the additional money which appears to be forthcoming. I say "appears to be" because it is by no means clear that there will be any new money. Will the Minister say whether there is any new money in the coffers? The only additional money I can identify as forthcoming is the £100 million to £120 million which will go into the transitional budgets. Equally, the Statement implies that the Government are withholding the increases for teachers moving up to the third level of the upper pay spine and perhaps that £ 100 million will be clawed back from the pay increase. Will the Minister clarify that issue and let us know whether the Government are expecting to save approximately £100 million in not paying the increases on that upper part of the pay spine?
Last year, the NUT survey estimated that 20,000 teachers and support staff had lost their jobs as a result of the mess in funding. Will the Minister clarify the situation in regard to primary schools, where rolls are falling? It has been mentioned that 50,000 pupils will be affected in each of the next two years because of that fall. My impression is that the guarantee does not fully apply to primary schools.
Some problems arise here. First, 1,000 extra teachers are being trained for the postgraduate certificate in education. Is the department confident that there will be jobs for them in primary schools next year? Is it confident that it will be able to meet the obligations to which it has committed itself? Secondly, will the Minister clarify the issue surrounding the pay spine? The Statement indicates that if proper arrangements for point three of the upper pay scale can be settled, further resources will be allocated in September 2004. What are those further resources? Where are they coming from? Is that new money or not?
In relation to the Standards Fund, the Statement makes clear—and it was clear in July—that the Government intend to reverse their previous decision and that the money will go directly to the schools instead of being merged into the general LEA budget. However, I would like the Minister to clarify one issue. There appears to be a reshuffling of the DfES budget in order to find some of the money which is to be forthcoming for the transitional arrangements, for example. As a result, those authorities worst hit last time will be somewhat better off this time. We mentioned, for example, Kent,

277
Sussex, Surrey, Hertfordshire and Essex. Is the correct inference that the LEAs which did better under last year's settlement will be doing worse under this one?
Furthermore, although we were assured that the workload agreement is going forward, is there really enough money in the package for that? At present, the amounts available seem to vary enormously from school to school and, indeed, from LEA to LEA.
I have two further short questions. First, it is not clear to me how schools which were running deficits this year will cope. Transitional arrangements are in place but, so far as I can see, they are loan rather than grant arrangements. I wonder how far the Minister is confident that those schools will be able to recoup the necessary money and pay it back. I am also particularly concerned about schools which borrowed against capital this year in order to meet their expenses and whether that means that they will have to forgo capital improvements that they had hoped for.
Finally, I have a question concerning the money for sixth forms and sixth-form colleges which comes from the LSC budget. Again, will the Government put new money into the LSC budget for that or will other parts of the budget have to be cut back in order to meet those commitments?
3.51 p.m.
Lord Davies of Oldham: My Lords, I am grateful for the responses to the Statement from the two noble Baronesses. I agree that the Statement is complex but that does not mean that it is not transparent. It merely means that we have to work very hard to analyse carefully the exact implications. But it was ever thus with school funding and local authority funding. I shall certainly attempt to clarify the matters which have been the subject of questioning from the Opposition.
First, I believe that the welcome for the Statement has been a little more grudging than is justified. Let us take the question of new money. Effectively, as set out in the Statement, the Government are providing £435 million in 2004–05 and £520 million in 2005–06 for schools over and above the amounts previously announced. That meets some of the detailed points raised by the noble Baroness, Lady Sharp. She asked whether there was new money and the answer is "yes".
Secondly, in being critical of the Government, the noble Baroness, Lady Blatch, should recognise that we are putting additional resources into schools. We all recognise the problems that were created last year when certain aspects of the model by which schools would receive the money did not prove to be as valid as we had hoped. But that problem was created by an extremely generous government allocation to schools. The Government fulfilled their commitment to spend more on education to an extent that, in my view, neither of the other two parties can remotely match. That is certainly the case with regard to the party of the noble Baroness, Lady Blatch. As a tax-cutting party, it is looking for substantial cuts in public expenditure
278
and should therefore be rather more cautious about challenging a government who are having some difficulties with their expenditure.
Baroness Sharp of Guildford: My Lords, can the Minister clarify whether the amounts of £435 million and £520 million respectively are to be provided on top of that announced following the Comprehensive Spending Review?
Lord Davies of Oldham: My Lords, that is exactly right. They are increased sums of money. The precise point raised by the noble Baroness was whether some of the figures, which clearly require additional sums to be allocated, represent new money. The figures that I have just quoted are the global sums of new money available.
I recognise the validity of some of the points addressed to me by the noble Baroness, Lady Blatch, concerning the problems experienced last year by, for example, Norfolk and Kent. We have listened carefully to their representations. They are among a group of counties for which we are making specific proposals to increase resources in recognition of the fact that the deficits which they identified had some validity. It is not that we accept the total position which they present in any way, shape or form. We recognise that a quarter of the counties have experienced difficulties, and that is what we are seeking to address.
Baroness Blatch: My Lords, the Minister has missed my point. His colleague in another place, the Secretary of State, called those counties "scaremongering". Does the noble Lord agree with that? If they are not scaremongering, what is the assessment of the deficit?
Lord Davies of Oldham: My Lords, my right honourable friend indicated that the figures were subject to challenge in the department against a background of a number of authorities clearly needing extra resources this year. When I repeated the Statement, noble Lords heard clearly and explicitly that we are meeting some of those increases. However, we do not accept some of the more extensive figures quoted by local authorities. We have held discussions with them and my right honourable friend made it absolutely clear that, following this Statement, he would continue to hold discussions with local authorities in that category. The local authorities participating in those discussions have done so very effectively. They recognise that there is a conscious intention on the part of the Government to address the difficulties experienced last year by some 30 counties.
I turn to the question raised by the noble Baroness concerning students with special educational needs. I recognise her long-standing commitment to, and interest in, that area. We are proposing that the same 4 per cent should be allocated for improving the opportunities and support for students with special educational needs. We are merely indicating that expenditure by some authorities last year represented such a large percentage increase that it could not be

279
sustained continually. There had to be recognition of the fact that improvements must be made. The 4 per cent will certainly be in addition to the base line created by those authorities when they were generous last year.
However—the noble Baroness herself has made this point from time to time—we also emphasise that part of the problem which arose last year was that money that we had expected to go into the general schools budget was directed by local education authorities to other priorities. We are insistent that the priorities of schools are properly identified. That is why, when local authorities apply for additional transitional support, we expect them to set out with great accuracy the particular needs of the schools and how they intend to spend that additional resource.
Therefore, in response to the general question of whether we have taken account of issues such as the pay review for teachers, the answer is "yes". However, we do not know the precise figure. We are genuinely in a chicken-and-egg situation. If we wait for teachers' settlements to come through, the announcement that we make about the overall position will delay schools' capacity to plan and budget. If we do what we are doing here and make an intelligent and, we hope, reasonably precise estimate of the additional costs, we can then make a Statement and provide schools and local authorities with such information that will be to their advantage as regards budgeting. I believe that that point has been recognised on both sides of the House.
The same issue relates to the question of the workload agreement. That has been taken into account in the figures which have been prepared, and I believe it will be seen that the Government have been able to make reasonable estimates of the impact upon schools. We all recognise that schools vary enormously, but we clearly have in place a. model of the costs which schools should incur. As a general model, we believe that about 80 per cent of schools' expenditure should go on salaries for teachers and 20 per cent on other costs. Where schools depart massively from that position, that causes difficulties. Indeed, some schools have departed from it. We shall ask that they return more closely to that model with the advice that we hope to provide through the assistance we are giving to schools on budgeting.
4 p.m.
Baroness O'Cathain: My Lords, the Minister was rather sad about the fact that my noble friend Lady Blatch and the noble Baroness, Lady Sharp, gave a grudging—I think that was his word—welcome to the Statement. However, I have to say that it was the most convoluted 20-minute Statement in financial terms that I have ever heard. I pay a compliment to the Minister. After he finished repeating the Statement I received a copy and quickly read it. He made it sound less convoluted than it reads. It is an appalling Statement. I suggest that perhaps the department should ask the Plain English Campaign to cast its eye over Statements such as this before they are delivered.
280
All the percentage figures are completely in the ether. I have three questions. First, does the Statement result in an increase in percentage of GDP spent on education in this country? I am bowling this at the Minister, but perhaps he could write to me stating how much other European Union countries spend on education as a percentage of GDP. Secondly, how much money will go on bureaucracy in attempting to get teachers and everyone else involved in the education system to understand the figures and to come up with managing them? Thirdly, how much will KPMG be paid for this consultancy? Will it be running around LEAs and training them in how to deal with financially convoluted processes? As a supplementary question, was the appointment of KPMG open to competition? Was this consultancy advertised or was it just plucked out of the air and given to KPMG as a nice juicy job?
Lord Davies of Oldham: My Lords, the noble Baroness is well versed in the nature of the British economy. She will recognise that against the background of growth which our flourishing economy provides, if the Government increase expenditure on schools by 4 per cent and have a target of 5 per cent for local authorities, generally the percentage expended on education in this country will rise over the lifetime of this period of our administration, as it did in the latter years before the last general election. So we are fulfilling our promise. That is why I chide noble Baronesses opposite who support positions which advocate tax cutting. They will recognise that there is a price to be paid in terms of the limits we can offer elsewhere. That is why we are determined to fulfil our priorities on education and health.
As to the extent to which by the end of this administration, after eight years of a Labour Government, we shall have moved up the league table as regards percentage of GDP spent on education, I merely indicate that I cannot give that precise figure. I do not know the performance elsewhere with great accuracy. However, we are moving up that league table. This is a commitment by the Government which is being fulfilled in this Statement. It is being fulfilled also in relation to the second question.
I apologise if, in the words of the noble Baroness, the Statement is convoluted. However, part of the difficulty is that we are seeking to guarantee that the money arrives in schools rather than, as she says, being wrapped up in bureaucracy. That involves very careful and selective targeting. Hence the difficulty.
As regards the noble Baroness's final point, I do not know how much KPMG was paid. I do know that this was put out to tender. It is helpful for schools to have assistance on effective budgeting.
Lord Sutherland of Houndwood: My Lords, I welcome the Statement and welcome unambiguously the prospect of additional cash for schools. Could any headteacher who is intelligent, who has read the

281
Statement and who has passed the examination in it draw any deductions now about the state of his budget next year in specific percentage terms?
Lord Davies of Oldham: My Lords, no doubt some headteachers will find that more difficult than others. Some run much more complex schools than others. However, the position is clear. We intend to increase the resources available to schools. We were hopeful that last year's position would be one in which all schools would receive benefit from the allocations made. Because of difficulties over certain aspects of finances and relationships with local authorities, it was not always the case that every school benefited in the way in which we would have liked. Now we are guaranteeing a basic 4 per cent floor for all schools. We are ensuring that schools which are in particular difficulty, are disadvantaged and running deficits receive additional help. Headteachers will certainly recognise that.
Lord Shutt of Greetland: My Lords, clearly, the Statement has been produced because there have been real problems in schools and local authorities. Because of such problems all the formulas that Members find difficult to understand are contained here. It seems to me that what should be done at decent speed is for between 12 and 20 schools to have their budgets for the current year considered, for this document to be applied to them and for it to be shown how it will affect different schools. I refer to large schools, small schools, primary and secondary schools within different local authorities. People would then have an understanding of how the formula would work in relation to their school. Can the Minister achieve that?
Lord Davies of Oldham: My Lords, there is local flexibility for school governors and local authorities. Elements of flexibility need to be taken account which are dependent on local decisions, as is entirely proper in our education system. Certainly, we could draw up an example using two or three schools to indicate what this will mean to them. We cannot do that for every school in the country; it is not our role to do so. This is contingent on decisions which they take. As I tried to make clear to the noble Lord, Lord Sutherland, the Statement contains good news for headteachers because the issues of underfunding are being addressed and resources are being made available.
Lord Shutt of Greetland: My Lords, I suggest that this is needed so that people know that it is good news.
Baroness Carnegy of Lour: My Lords, the question raised by the noble Lord, Lord Sutherland, was extremely apposite. We shall not know whether this is a good Statement until we hear the reaction of headteachers and local authorities. As someone who was chairman of a local education committee, albeit a long time ago, I know that school funding is complicated. It is based on extremely complicated formulae. For the first time in my recollection the
282
Secretary of State has given a full account of what he has done. He has had to do that because of the muddle that schools have been in. Teachers need to know quickly what their situation will be.
It seems to me that one statement made by the Minister regarding the fall in numbers was hugely significant. He said that rolls had dropped by 50,000 this year and will drop by another 50,000 next year. I expect that that will be cumulative. That drop in numbers will move year by year into secondary schools and there will be huge problems in funding. If we remember, the last time that school rolls fell, which was in the 1970s, the cost of the school remained the same but the number of pupils and the funding per pupil fell. So one hopes that anticipation of those problems is built into this Statement. I do not imagine that the noble Lord will be able to tell us whether that is so, but it would be absolutely essential.
I have one question for the noble Lord. Of the 4 per cent per pupil added on top of what had already been promised and the 5.5 per cent—I believe that that figure was mentioned—for other costs in the school, how much will be used up in salaries?
Lord Davies of Oldham: My Lords, on the last point, as I indicated in response to an earlier question, as the noble Baroness will recognise, inevitably a substantial part of any school's budget—80 per cent for an average school—is used for staff costs. That is a significant element in its budget. We have taken account in the 4 per cent figure of expected additional staffing costs which will flow from the eventual settlement made by the teachers' salary review board.
On the more general issue of the very diffuse and difficult world of effective planning ahead, of the few figures given probably one is of school numbers. They fluctuate, but nevertheless we were able to anticipate that there would be 50,000 fewer pupils in junior schools. As the noble Baroness indicated, that reduction will flow through the system in due course.
Lord Maclennan of Rogart: My Lords, I acknowledge that the Government's Statement is presented as an increase in expenditure to enable education authorities to balance their budgets more effectively and equitably. Is there any hope in the mind of the Government that nationwide there may be particular enhanced educational opportunities flowing from this expenditure? Perhaps I may make a specific inquiry, on which I would be happy to hear subsequently. Does the Minister anticipate that as a result of this there will be any increase in the availability of musical instruments being taught in schools?
Lord Davies of Oldham: Well, my Lords, the noble Lord has identified an area which has caused great concern in the past. We know about the enormous drop in the teaching of music in schools with the reduction of expenditure, both on full-time teachers employed in schools and peripatetic music teachers. I can say only that we are seeking to ensure that the education budgeting by schools and by local authorities will have far fewer problems than last year.

283
We have increased the amount of money available. The decisions on whether that then is. reflected in particular areas, such as the one on which the noble Lord expressed interest, is of course a matter for local decision. But I agree with him: it is an area for concern. I think that that view is shared widely in the community and in local authorities—and schools respond to community needs.
Baroness Howe of Idlicote: My Lords, I congratulate the Government on what clearly is a considerable sum of extra money. It is difficult to understand how it has all been organised and cut for the different branches of the education system. The Minister has already indicated that special educational needs will have special attention. But what proportion of the extra money will be allocated to educationally deprived areas where—I would certainly argue—the cost of educating children is probably double the cost in other better equipped areas?
Lord Davies of Oldham: My Lords., the noble Baroness speaks with considerable authority about these issues. I agree that they are important priorities. The Statement refers to the ethnic minority grant. It recognises that schools with a large number of ethnic minority students for whom often English is not the first language are an important priority. They need extra resources. That is why we are seeking to ensure that such resources are targeted. I very much agree with her.
The issue with regard to special educational needs is very much a decision for each local education authority. I can only attest to the fact that some of our difficulties last year were a reflection of some local authorities showing such a significant commitment to this group as to incur levels of investment and expenditure which is difficult to match year on year. We are ensuring that we do not see that figure drop, but we cannot expect enhancement at quite the level that occurred in some areas last year.

Criminal Justice Bill
4.16 p.m.
Report received.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 1:
Before Clause 1, insert the following new clause—
"APPLICATION OF PART 1 TO UNDER-EIGHTEENS
The provisions of the following sections shall not apply to persons under the age of 18—

(a) section 4;

(b) section 6;

(c) section 8; and

(d) section 9."

The noble Baroness said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 10 and 11.
We now reach the Report stage of this controversial Bill. The Marshalled List is littered with a vast number of government amendments. Sadly, the vast majority of those amendments are not in response to concerns expressed in Committee. The only exception to that observation relates to Part 9, and I generally welcome those amendments. Time is now running out for the Government to reach agreement on the Bill. We must all hope that they use that time wisely.
I turn to Amendment No. 1. Its purpose is to invite the Government to put their position in Part 1 on the record with regard to children. Some of the provisions of the Bill that we believe should not in some circumstances be applied to those under the age of 18 include, for example, Clause 4, involving the matter of street bail, Clause 6, entitled,
"Limits on period of detention without charge",
and Clauses 8 and 9, which are about taking fingerprints and non-intimate samples without consent.
We shall of course turn much later to the serious matter of whether young persons under the age of 18 should be subject to the mandatory sentences for murder in Schedule 19.
I have included these particular clauses in the amendment so that the Government can tell the House at the start of our deliberations what kind of response they will make to the serious objections that came from around the Committee about their plans for children.
I am aware that since Committee the Government have had some very constructive meetings with the Children's Society on these matters. Yesterday, the noble Baroness, Lady Walmsley, and I had a meeting with the Minister on the same issues. I hope that today she will be able to put forward some proposals that satisfy the House on these matters.
The response of the noble Baroness may mean that we can reduce the amount of time that would otherwise be needed for debate on this part. In particular, I would welcome an explanation of the guidance that will operate in respect of those under 18, and whether the Government have received an assurance from the Children's Society that the drafting of the guidance is now acceptable.
I have some additional questions on street bail. I have been requested by the Children's Society to put these questions to the noble Baroness. What arrangements have the Government made with regard to guidance on street bail as it affects young people? What alternative ways of policing low-level offending do the Government propose? Does the Minister accept that this could lead to a reduction in the need to use street bail at all? Is it really necessary for the whole arrest process to be completed for young persons? Does the Minister accept that it could be effective for young people to be taken home and given time to attend the police station with their parents or guardians? I beg to move.
Baroness Walmsley: My Lords, I support the amendment. The crux of the argument is this: the Government have set up a distinct youth justice system

285
and, in their Green Paper Youth Justice—The Next Steps, reiterate their basic approach as follows:
"When children and young people do become involved in crime we would continue to operate a distinct youth justice system broadly on present lines, with a clear and visible response to offending behaviour from age 10 upwards".
If that is so, why are the Government so reluctant to remove young people from some of the elements of the new legislation? One of the main themes in the Green Paper is,
"managing young remandees in ways which help to prevent the guilty reoffending".
If that is the case, keeping them in a police station for up to 36 hours and taking fingerprints without consent will not help. It is just treating the young person like a criminal, so the danger is that he will think that he might as well fulfil the prophecy.
Section 6 is the most serious issue. It increases the period of detention without charge for a non-serious arrestable offence to the same time that currently applies only to serious offences—an unwarranted escalation. The Minister says that it will be used only in unusual circumstances, but, as my noble friend Lord Thomas of Gresford said in Committee, if the police cannot get their act together in 24 hours, they should send the person home. After all, by definition, we are talking about non-serious offences.
On street bail, my concern, like that of the noble Baroness, Lady Anelay, is to keep young people out of police stations. But I am concerned that in the hurly-burly of the street it will be difficult for a police officer to operate all the safeguards appropriate to young people. During private meetings referred to by the noble Baroness, Lady Anelay, the Minister mentioned the guidance and training of police officers in that regard. However, it would be very helpful to your Lordships' House if she could give us some reassurance on the record today about how that would operate.
Baroness Kennedy of The Shaws: My Lords, I, too, support the amendments. I have the same concern about children being expected to comply with systems set up for adults. It is not good enough for the Government to say that such powers will be used only in exceptional circumstances. When governments legislate, they should always look in their wing mirror for the less benign government that may come into power later. That is why it is so important to ensure that the ground rules are sensible and not likely to be abused. It is not good enough to legislate while saying, as we have heard repeatedly in the Bill, that the powers will be used only exceptionally. We cannot accept a promise from the Minister as one that will be held to by others who may follow in her footsteps.
I ask the Minister, whose life in the law has centred around issues connected with children, in particular to recognise the importance of separating children from adults for the very special reasons that we know should apply: their inexperience and vulnerability matter; therefore, we should give them special protection.
286
I happen to believe that there should be a separate system altogether for children and that they should be taken out of the criminal justice system. The Government certainly do not seek to be as bold as I would like them to be. I would have thought that a truly bold and modernising Labour government would have thought of doing that. I certainly would not have thought that one would wish to include children in some of the powers that the Bill affords to the police and the authorities. I ask the Government to think again.
Lord Dholakia: My Lords—
The Lord Bishop of Worcester: My Lords, I thank the noble Lord for giving way. I, too, support the amendment. I, too, have received from the Children's Society and others notice of their concern that the Bill is flawed at a number of points—both here and in later amendments—in its assimilation of children into the criminal justice system that it is creating for adults.
I wish to amplify the point made by the noble Baroness, Lady Kennedy, that powers intended for exceptional use might be used by a less benign future administration if they are built into a statute. We know that the relationship between the generations in society is not always healthy. The pressure of rhetoric and journalism to move towards a less benign attitude towards children and their discipline is not just something that we might hypothesise could happen under a future administration; it is a very present reality.
Even this Government could not ignore the pressures, if another notorious case involving children arose, to deal with them by a reflex response that would subject them to methods of discipline and punishment inappropriate for use against children. That pressure is a present reality. Noble Lords must, therefore, be very vigilant at every point in the Bill where children are being drawn into the criminal justice system. We should be very clear that there are safeguards against present—not future—popular acclaim for a kind of toughness that I doubt is always appropriate for adults and is certainly not appropriate for children.
Lord Dholakia: My Lords, concern has been expressed from almost all sides of the House. The police have wide discretion, particularly on arrest and bail. Have the guidance notes made them aware of the importance of how the powers are used, bearing in mind that previous monitoring of similar exercises shows a tendency to pick on particular racial groups? That seems to feature prominently later in the criminal justice process.
I take it that, as with normal bail, the presumption is that a person will be granted street bail unless the offence is very serious. If that is the case, is it necessary to proceed with the arrest of youngsters when they could be taken home, as the Children's Society mentioned, and their parents or respective adult asked

287
to appear with them at the police station at an appropriate time, rather than starting a criminal process so early?
Lord Corbett of Castile Vale: My Lords, I share the general concerns voiced around your Lordships' House. But there is a danger that we are not paying enough attention to other things gong on, well ahead of any criminal justice system, affecting under 18 year-olds.
From my experience as an MP, there were children as young as 13 and 14 who I might otherwise flippantly suggest were orphans— I knew that they were not— whose behaviour was menacing and frightening to everyone who lived around them. So I do not think that we should get starry-eyed about what happens on the ground in too many areas of the country. However, one would hope that by the time anyone under the age of 18 was even considered for what is proposed in this part of the Bill, other things would have happened. The Youth Justice Board, which enjoys support throughout your Lordships' House, is in place and there are attempts at earlier intervention through schools with parenting orders and other such things.
I am saying only that we should consider these things in the round. In doing so, we should recognise that there will be some circumstances—and one hopes that there will be few—when to have a cut-off that says that none of these powers can be used unless the person concerned is 18 will encourage some people to behave badly. Some Members of your Lordships' House may have anecdotal experience of children as young as nine taunting police officers saying "You can't touch me and 1 know that". They boast about it. I wish to add that note of caution to this debate.
The Minister of State, Home Office(Baroness Scotland of Asthal): My Lords, I thank my noble friend Lord Corbett for reminding us of the reality of what happens on the ground and for bringing a sense of balance to our discussion. All Members of this House are totally committed to making sure that children have the right sort of support, guidance and assistance, and my noble friend is right to say that we must set that in the context of all that has been done—with the Youth Justice Board, the opportunities that we are providing in this Bill and others and in the system that we have provided to give children a proper alternative to the behaviour that some of them regrettably exhibit. The Government are not being starry eyed about children. We are seeking to address their needs in a proportionate way.
I also hear what my noble friend Lady Kennedy of The Shaws says about recognising the importance of separating children from adults. Noble Lords will know that, in many places in the Bill, that is precisely what the Government have done. We have sought to provide a proper protective net for children so that we differentiate in an appropriate way. I also hear what my noble friend says about not being able to dictate if there is a less benign government. I hope that I will be forgiven for saying that, at the moment, that does not seem entirely likely.
288
I very much take on board what was said by the noble Baronesses, Lady Anelay and Lady Walmsley, about needing a proper discussion at this stage and placing on record the sorts of aspirations and expectations that we are putting in place. Amendment No. 1 would exclude persons under the age of 18 from the important changes to PACE contained in Clauses 4, 6, 8 and 9. All those clauses are designed to make important contributions to the effectiveness of police investigations, the improvement of police efficiency and the whole process of dealing with and reducing crime. Tackling juvenile crime is at the core of that process and completely exempting this group from the changes we are proposing would significantly lessen their impact.
I take on board what the right reverend Prelate the Bishop of Worcester said about the tendency of some people to treat children with a reflex response that is all about discipline and punishment. We do not believe that to be the right approach and it is not in evidence in the Bill. However, unfortunately, juveniles commit a very high proportion of crime and they are responsible for a great deal of reoffending. Latest available figures show that 25 per cent of the total notifiable arrests were of juveniles and that 26 per cent of convicted juveniles were reconvicted within a year.
Clause 4 provides the police with the option to grant bail to arrested people without the need to take them to a police station. The key aim here is to keep more officers on patrol for longer periods so that they are visible to the public and can deter and deal with crime. We fully recognise that officers must apply careful discretion in deciding whether to grant street bail and that is particularly important where juveniles are concerned.
The draft guidance, agreed with representatives from children's charities following proceedings in Committee, emphasises the special considerations necessary in relation to juveniles before, during and after the granting of street bail. For example, it is particularly critical in relation to a juvenile that the officer is satisfied that the juvenile fully understands the process and what is happening.
The welfare of juveniles is a prime consideration and that means listening to what they have to say about their particular circumstances and taking into account factors such as the time of day and any possible risks the juvenile may face from parents or other carers. Arrested juveniles are entitled to the support of an appropriate adult at the police station and that would apply in the same way when they answer to street bail. The Government seek to give the officer an opportunity to exercise his or her discretion in a way that could inure to the advantage of the juvenile. Both the noble Baronesses, Lady Anelay and Lady Walmsley, said that they would not wish to see juveniles unnecessarily detained in police stations if there were no good reason for that. I absolutely agree.
Clause 6 increases senior officers' discretion so that they can authorise extended detention up to 36 hours in relation to a broader range of offences. The existing 24-hour limit means that the police can be forced to rush through investigations or content themselves with

289
a lower quality of evidence than might have been achievable if more time had been available. The use of the extended power is likely to be particularly relevant in cases of street robbery or when the police have to deal with a large of number of suspects. It would be wholly inappropriate to exempt juveniles in view of their regular involvement in offences of this nature.
We want this provision to help to ensure the successful investigation of offences. The key safeguard is the requirement for a senior officer of at least superintendent rank to make the decision in each individual case. In addition, the guidance we have drafted in relation to this provision stresses that detaining a juvenile beyond 24 hours will be justifiable only in exceptional circumstances or when the offence is indeed a serious one. The guidance emphasises the need to have strong regard to juveniles' special vulnerability and to seek and consider the views of the appropriate adult protecting their interests.
Clauses 8 and 9 involve amendments to Sections 61 and 63 of PACE and will allow the police to take fingerprints and a non-intimate sample from all persons arrested for a recordable offence and detained at a police station as a matter of routine. It is important that the police can take fingerprints quickly in order to prevent persons who may have previously come into contact with the criminal justice system from evading justice by giving the police a false identity and also for the police to be aware of any persons who may pose a risk to themselves or to others. That is a real problem in many cases. Sometimes it is necessary to take protective measures because of the innate vulnerability of that person, but the police can take them only if they know who they are.
Establishing the true identity of a juvenile, or even that the person is a juvenile, is vitally important both for the individual and the police officers dealing with them. The fingerprints and the profile obtained from the non-intimate sample can be checked against the two databases to see whether they match any taken from a crime scene. Potentially, that will allow more crimes to be resolved at an earlier stage.
Many young people who may be arrested as juveniles are not charged and may never go on to commit an offence. However, it is difficult for the police to distinguish between those who may or may not commit a crime in the future. It is, therefore, a sensible precaution to retain DNA profiles as a norm. Retaining an arrested person's fingerprints and non-intimate sample, whether it is a juvenile or an adult, as the norm is proportionate to the benefits to society and the prevention and detection of crime. Law-abiding citizens have no reason to be concerned about their fingerprints and samples being retained on the databases. The law already makes it clear that their use is restricted to the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution. The DNA profiles on the database of persons who have not been convicted of an offence have a marker to indicate that. The profiles of persons who have been arrested but not charged will also carry a marker to that effect.
290
The National DNA Database is not a criminal record. Just over 5 per cent of the 2 million profiles on the database are of individuals who have not been convicted of an offence. DNA profiles and the personal identification data associated with them are held by the laboratories that analyse them and the custodian of the National DNA Database. The laboratories and the custodian are subject to the provisions of the Data Protection Act 1998, and their databases are registered with the Information Commissioner. Personal data are kept securely and are accessed only on the authorisation of a designated person.
I do not think that there is a sufficient case to exempt juveniles from any of the important changes. Doing so would seriously dilute their effectiveness and the guidance and safeguards to which I referred will help to ensure that there is no adverse impact on juveniles resulting from their special vulnerabilities. On that basis, I hope that I have given a full explanation of the reasons why we think that our response is proportionate. I hope that the noble Baronesses will not press the relevant amendments.
Clause 6 will enable the investigative process at the police station to be completed effectively in the best interests of ensuring successful outcomes in the Criminal Justice system. Amendment No. 10, tabled by the noble Baroness, Lady Anelay of St Johns, would defeat that objective by continuing to limit detention beyond 24 hours to those offences deemed "serious arrestable". There are circumstances relating to a broader range of offences in which additional time will be necessary to achieve a successful outcome. Consideration must be given on a case-by-case basis and on the decision of a senior police officer, namely a superintendent or above.
The application of the new power will be considered on an exceptional basis, and the officer requesting or authorising any increased period will have to consider what circumstances merit the use of the new power. Although we are authorising extended detention for a broader range of offences, the circumstances of the case are the determining factors, rather than the type of offence. That is an important distinction. We do not want to use the power as a blanket; we want it used only if and when it is absolutely necessary. That approach meets our broader objective of allowing senior officers the relevant discretion for a set of offences that fall below the highest level of seriousness. That is an important distinction and should be emphasised.
Amendment No. 11 would have an adverse impact on that approach, as well as the undesirable consequence of reducing the existing scope for extended detention. Restricting the extended period of detention to indictable-only offences would reduce the number of offences that benefit from the longer period before charge. For example, the offence of theft is triable either way. Under PACE, it may be deemed a serious arrestable offence depending on the scale of loss to the victim or level of gain to the offender. The amendment would take away investigative powers already available to the police.

291
I was asked to emphasise the relevant parts of the guidance. In particular, the noble Lord, Lord Dholakia, asked about that. The guidance emphasises that use of the power is, generally, unlikely to be justified in more than a relatively small set of circumstances. Specifically, its use in investigations involving juveniles and other vulnerable groups should be considered only on a wholly exceptional basis. It is also important to remember that the Human Rights Act 1998 gives additional protection.
I was asked why we did not just allow the police officer to take the child home on bail. We have made it clear that, if someone is arrested, they will generally be taken to a police station from where they may ultimately be bailed, unless the circumstances make street bail the right step to take. A key purpose of police bail is to enable officers to stay out.
I hope that I have said enough and have been as comprehensive as both noble Baronesses wanted me to be. I hope that I have satisfied them that everything that should be on the record is now on the record and is consistent with the conversations that we have enjoyed for months.
4.45 p.m.
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Corbett of Castle Vale, invited us not to be starry-eyed. As somebody who chaired a youth court for several years before coming to the House, I assure him that I am not. In a youth court, one sees before one a procession, sadly, of dead eyes. They are the eyes of people who are dead to the world around them and have no care for what it can do to them.
I took to heart the words of the right reverend Prelate the Bishop of Worcester. We must be wary of drawing children into a system that is designed for adults. We must be careful that, when children and those under the age of 18 commit something that is defined as an offence, we treat them appropriately, taking account of the fact that they are children and may need treatment different from that required for others who have committed a similar offence.
I am grateful to the Minister for doing exactly as I invited her to do and hoped that she would. She has put on record a clear explanation of the discussions that have been held and of the Government's position on the matter. She will not be surprised if I say that, although she has gone a long way to meet my concerns, I must ask the Children's Society and other children's groups whether they believe that there is anything further that should be brought back at Third Reading. That may not be the case, and we may address such further concerns in other amendments. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Marlesford Lord Marlesford moved Amendment No. 2:
After Clause 1, insert the following new clause—
POWER TO SEARCH FOR FIREARMS
If a police constable has reason to believe that a person or persons in a particular area may be carrying firearms, he may arrange—

(a) for the area to be sealed off; and

292

(b) for the searching for firearms of any people or vehicles in that area, by whatever means he considers appropriate."

The noble Lord said: I originally moved the amendment in March last year, when we were discussing the Police Reform Bill. I shall not apologise to the House for moving a similar amendment to this Bill. The purpose of the amendment is unchanged: it is to assist the police to detect guns and remove them from the street before they are used and to demonstrate to an increasingly scared urban population that they are doing so.
The need for the amendment is more acute than it was a year and a half ago. Guns are pouring into the underworld and on to the streets. Many, we now learn, come from political criminals in Northern Ireland. Gun crime over here is becoming an ever-greater threat. On average, every day, there are 28 firearms offences in England and Wales. That does not include airguns, which, in general, have a less serious effect. Thirty years ago, the figure was 15 offences a week.
That total of more than 10,000 firearm offences in 2002–03 is double that of 1998–99, which is the first year that the Government could be regarded as having any responsibility. On average, two people are murdered each week with guns. The great bulk of firearm crimes—some 60 per cent—are committed with handguns. So much for the value of the highly controversial legislation requiring all licensed handguns to be handed in.
The Government were right to try the two-month amnesty for guns earlier this year, which netted the hand-in of 44,000 guns, which, to me, is an astonishing figure. But I doubt whether more than the tiniest fraction of those guns were handed in by criminals. The time has come for the police to go out and seek illegal guns. My amendment would help them do so. The greatest part of gun crime—68 per cent—is committed in three police areas; that is, London, Manchester and the West Midlands. In each of those areas, gun crime is increasing at a rate of more than 40 per cent per year.
Last year, the Minister who replied was the noble Lord, Lord Bassam of Brighton. I see that he is here. Perhaps he has come to reply again. I hope that he has a different brief to the one he had last year. He said that there were sufficient powers to stop and search and that my amendment was unnecessary. I found his argument unconvincing. He quoted no less than five Acts of Parliament which, in certain circumstances, might allow the police to search people for weapons, stolen property or other prohibitive articles. I am sure that there are twiddly bits of the law which, in many cases, could justify the police searching when they suspect that there are guns. Of course, there are powers to stop and search if a police officer thinks that someone is carrying a firearm. But that is not what my amendment is about.
One of the Acts that the Minister quoted was the Terrorism Act 2000. The amendment has nothing to do with terrorism. It is to do with gun crime, which is escalating at an ever-increasing rate. I am no lawyer, but I believe that it is inappropriate—to put it mildly— to use legislation enacted for one purpose for

293
something that is quite different. I want the police to have a clear, unambiguous legal mandate to act. The Minister said last year that the police have not asked for that power; more is the pity. Eighteen months later, they may take a different view.
In passing, one might note that a few years ago the police did not favour the introduction of identity cards. Now, the present Commissioner of the Metropolitan Police is frequently quoted publicly as asking for them. The Government are in the process of discussing the matter, but, as I understand it, have not yet convinced the entire Cabinet.
My amendment would do two things. First, it would send out a message that the Government are deadly serious about the criminal use of firearms and that they are determined to take any action that will reduce such crime by making the possession of a gun—real or replica—on the streets a very risky undertaking. Publicity would be given to these new powers; the high-profile use of the powers would send a fresh message to those carrying guns that it has become more risky to do so. When I say, "risky", I mean, "risky": there would be both a greater probability of being caught and the penalties would be much higher.
In Clause 265, the Government have inserted a five-year mandatory sentence for the illegal possession of firearms. Whatever one's view of the Government laying down mandatory minimum sentences, people with guns—especially if they are caught carrying them on the street—will face very unpleasant consequences. It is no slight argument that my amendment would reassure a public who have become more and more sceptical of the practical protection that they are receiving from this Government's much vaunted, but now rather tired, slogan: "tough on crime and tough on the causes of crime". The toughness is becoming almost cosmetic. It is rather like those television shows of all-in wrestling where the actors always survive to fight another day.
Secondly, when there is reason to suspect that someone in a particular area may be carrying a firearm, the police could seal off that area and make a rapid scan. In the case of pedestrians, the use of hand-held metal detectors, with which everyone is immensely familiar at airports and so forth, is obviously a largely foolproof and non-invasive method. I agree that searching cars would be more difficult. There would be different problems.
I recognise that sometimes when those carrying guns—perhaps in a club—become aware of a police operation, they might seek to dump the guns. That should enable the police to recover the guns, which is a primary objective of the exercise. The use of the powers would take time to develop, but police forces have the initiative, intelligence and local knowledge to develop techniques for using those powers effectively.
Last year, I quoted from a powerful speech made by the Labour Member of Parliament for Hackney North and Stoke Newington, Diane Abbott, in which she said:
"gun crime is casting a terrible shadow over my constituents".— [OfficialReport, Commons, 28/2/02; col. 939]
It is to deal with that disturbing statement, made by someone who knows all too well what they are talking about, that my amendment seeks to make a contribution. Anyone who saw, as I did, the brilliant, but chilling play, "Fallout" by Roy Williams, about crime subculture in some parts of London, will realise the crucial role of handguns in that culture.
I spoke to Diane Abbott yesterday. She said that next week a Back Bench committee on gun crime, which she chairs, will be publishing its report. It will indicate that the Government need to do much more to deal with gun crime. Therefore, if my amendment is accepted, I hope that it will receive a reasonably favourable reception when it goes back to the other place.
We must also learn from the USA where, sadly, due to a misplaced phrase in the Constitution, gun law still rules in many areas. I am thinking of the success of the tough regime of the former mayor of New York, Rudolf Giuliani. Since 1994, more than 90,000 guns have been seized from the streets. Shootings have plummeted by more than 74 per cent. Those who visit New York know that it has changed from being the murder capital of the world to being the safest large city in the United States. Thank God, we have nothing like that level of gun crime here. But, in Britain's cities, it is moving in the wrong direction.
The Minister ended his reply last year saying that the Government are always happy to take another look at such proposals and that these matters should be kept under review. Nineteen months later, I believe that the time has come for action. That is why, if the Home Office, through the Government, continues to resist the acceptance of my suggestion, I may wish to test the opinion of the House. I beg to move.
Lord Dholakia: My Lords, the noble Lord, Lord Marlesford, has raised the important issue of gun crime, which is so prevalent in the inner-city areas of our country. He rightly described areas such as Greater Manchester, the West Midlands and London. We see repeated headlines about ordinary citizens being victims of gun crime, gun crime related to drugs and a gun culture which has destroyed the lives of so many young people.
The newly emergent culture of black-on-black gun crime has followed the pattern of what happened in the United States in the 1970s and 1980s. Gun crime is obviously on the increase. The fear among ordinary people is now greater than ever before. Despite the number of guns handed in at the time of the gun amnesty, it did little to improve the situation. Even though we have high-profile policing, people now feel unsafe on our streets. 1 therefore believe that the noble Lord, Lord Marlesford, has done a public duty by focusing attention on the issue.
One has only to move among the communities of our inner cities to see that black people are as often the victims as anyone else in those areas. Many ordinary citizens, lawfully resident here, have asked how many times they will have to attend the funerals of their young people before the carnage that is destroying innocent lives is controlled.

295
However, I have some serious concerns about the wider implications of the amendment proposed by the noble Lord, Lord Marlesford. Its impact on some sections of our community could be counter-productive. Let us imagine sealing off an area such as Brixton, Broadwater Farm or Handsworth. The police would have the power to search anyone in those areas for firearms using any "appropriate means". A large number of people in certain racial groups will be affected. I do not doubt that innocent people have nothing to fear, but I suspect that caution is necessary.
The use of stop and search powers has blighted good relations between the police and ethnic minority communities. Even if there was a clear-cut link between the use of stop and search powers and crime rates, there could be no argument. The statistics show that black people are eight times more likely to be stopped and searched than are while people, a disparity which has created a worsening relationship between the police and the black community. It is difficult to exaggerate the damage which such a proposal may cause. It would further alienate young black and Asian people from the police and the criminal justice process.
The way forward must be to draw on the experience of the police towards a fairer and more effective use of police powers. We should make better-targeted use of the stop and search powers, more use of intelligence rather than a blanket approach to incidents which in the past has resulted in serious disturbances. Black and Asian people are as ready as white people to endorse police action if it is properly applied; such action would find public consent. However, the amendment would revert to the old practices. We have already thrown out the baby with the bath water; I do not believe that we need to throw the bath water back in.
I hope that the noble Lord, Lord Marlesford, will reflect on these points. Let me say that existing legislation already gives police constables very wide powers. If the suspicion relates to terrorism, powers are already set out in the Anti-terrorism., Crime and Security Act 2001. However, those powers do not seem to have helped to solve the problem.
The All-Party Parliamentary Group on Gun Crime is just about to publish its report. If at all possible, we should await the recommendations of that report and then decide on the appropriate course of action. I thank the noble Lord, Lord Marlesford, for raising this issue, but I hope he will understand that we shall not be able to support this amendment.
5 p.m.
Viscount Bledisloe: My Lords, I am in no position to comment on the extent of the problem to which the noble Lord, Lord Marlesford, has spoken, but surely this amendment is ridiculously far too wide-ranging to deal with it. First, it applies whenever a constable has reason to believe that a person is carrying a firearm, even when he is carrying it legally. If I am carrying my shotgun, perfectly legally, to my car, that would trigger this clause.
296
Secondly, no definition is made of the size of the areas which could be sealed off. Perhaps, in a somewhat Freudian fashion, the noble Lord referred to the "areas" of London and Manchester. Is he suggesting that the whole of London is to be sealed? The noble Lord shakes his head, but what is a particular area? Would Westminster be one of those areas? No limit is put on the size and scope of a place that may be sealed off.
Thirdly, once an area has been sealed off, a police constable may search any person or any vehicle, regardless of whether the people or the vehicles are those which he had reason to believe might be carrying the gun. I know that textual criticisms are perhaps not that favourably received in this House, but before one confers a power such as this, one must have some regard to the practicalities and to reasonableness.
Lord Monson: My Lords, before my noble friend sits down—
Lord Waddington: My Lords, is the noble Lord only intervening with a question?
Lord Monson: Yes, my Lords. I simply wanted to ask my noble friend whether he was aware that a shotgun is not classified as a firearm.
Viscount Bledisloe: My Lords, I was not aware of that, but the point I wanted to make was that I could still be searched even if I were carrying my licensed firearm. Perhaps my example was inappropriate and I apologise for that.
Lord Waddington: My Lords, we are much indebted to my noble friend Lord Marlesford for having raised this issue. No one can doubt that there is great public concern about the growth in crime associated with and involving the use of firearms. It is certainly right for us to consider whether there is a case to be made for the police to be given powers which they do not have at present in order to deal with this menace.
I believe that there are two questions to be answered. First, is any new power required? Even if one responds to that by saying, "No", there is the second question, which is: would it be desirable, in order to seek to calm public fears, to restate the law in very plain terms?
It is worth recalling our almost interminable debates on whether it was necessary to give the police new powers under the road traffic Acts to stop vehicles in order to test whether people had taken alcohol. We debated whether there should be a power to set up road-blocks, and a power to stop people on a random basis and then to test them. I was always firmly against any new powers being taken. First, I did not think it was necessary. I was convinced that, under the road traffic Acts, the police already had the power to stop any car, at any time, for any reason; and, secondly, I certainly did not think that it would be good for relations between the police and the public if we were to write such a power into the statute book, thus encouraging the public to criticise the police because it might be used oppressively. It was far better to leave

297
things as they were and allow the police to use their existing powers, which were in fact very much more potent than the public believed.
The question we must address today is, first, whether there are sufficient powers. I am sure that the Minister will address most of her remarks to that point. If she were to reply that there are such powers, but that they are set out in this and that statute and some are rather difficult to explain to the public, then I would ask her to address my second question: would it not be wise to restate some of those powers in very plain terms so that the public may be assured that, under certain circumstances, it would be possible, in an emergency, for the police to set up a cordon and stop every person entering the area to check whether he was carrying a firearm? I should have thought that the police have those powers already, but I should like the Minister to explain the present law.
Lord Corbett of Castle Vale: My Lords, I join in the general welcome given to the noble Lord, Lord Marlesford, for tabling this amendment. We must remind ourselves of the deep public concern over the growth of the criminal use of firearms. I should say, and here I chide my noble friend just a little, that part of that frustration is reflected in the long length of time it has taken the police to put into effect the National Firearms Certificate Holders Register, which passed into law in 1997. Again, the noble Lord, Lord Marlesford, has been active in ensuring that the database is taken seriously. In a sense it is beyond belief that it has taken so long, and that there is no up-to-date national record of those holding firearms, those who have applied for licence renewals and whether they have been granted or refused a licence. It is quite incredible and I simply remind my noble friend of the position along the route to what I really want to say.
After the tragic events at the start of this year involving the murders of the two sisters in Birmingham, I can attest to the enormous concern of everyone living in that part of the city about those wasted lives and those of others which, unhappily, have followed since. I am quite sure that it is the case that, in general, within the major cities of this country, the police have a fair idea of where illegal firearms are likely to be held. I am quite sure also that the police respond as best they can to public concerns over these issues.
However, we know from experience of dealing with crime that successful detection comes from two main sources. First—although this may sound like a truism it cannot be stated often enough—it comes from community co-operation, a lack of which is perhaps the single biggest impediment to a better clear-up rate. I am not knocking the police—there are all kinds of reasons why these things happen—but any police officer will immediately attest to the fact that their success in the job that they are doing in policing the areas to which they are attached comes from the support given by the local community.
Again in the area of the City of Birmingham that I had the privilege to represent, a turn-round in public attitudes and support for what the police were doing to combat
298
those dealing with drugs has led to an 85 per cent drop in drug dealing on the streets. The community, which was doing all kinds of other things at the same time, felt strong enough to say to the police, "This is the evidence that you need to deal with this problem. We expect you to deal with it and to achieve results". There have been some very dramatic results. As I said, the rates of known drug dealing—not drug use—have fallen dramatically.
On the back of that community co-operation comes intelligence. It is well known in another context—and noble Lords will forgive me if they feel I am trying to teach them to suck eggs; I am not—that the regular patrolling of streets by large numbers of police officers is perhaps not the most effective way of dealing with crime. I remember being informed that a police officer would have to patrol a street for 30 years in order to witness a burglary taking place.
Policing is becoming much more intelligence led and much more targeted. We have now the benefits of automatic number plate recognition—and, with that, the photographing of those at the wheel of such vehicles—which is being regularly used at all ports in this country. It is of immense use in the effort to combat a whole range of criminal activities.
The point I am making is that on the back of better community support and on the back of the technology that can aid the targeting, use and collection of intelligence, the police are likely to have a better chance of recovering illegally held firearms.
I take the point made by the noble Lord, Lord Dholakia, that we must be very careful in many areas because of their ethnic composition; we must ensure that these measures are not misunderstood. I hope that your Lordships will not misunderstand what I am saying—I am sure that you will not—because a crime is a crime and I do not care about the ethnic background of whoever is proven to be responsible for it. But, having said that, we have to show some sensitivity and there is always a danger that a random sweep can do far more damage than good, although the ambition of the noble Lord, Lord Marlesford, is to be wholly commended.
As the noble Lord, Lord Waddington, said, I hope that my noble friend will be able to assure the House that there are powers available to enable the police to deal with specific situations where they believe that in a particular house at a particular time there is likely to be a person or persons with firearms.
The only other thing that I wish to say is that it is not my intention to speak on every amendment before the House.
Lord Hylton: My Lords, I have some sympathy with the amendment but I agree with my noble friend Lord Bledisloe that it is far too widely drawn. Perhaps I may offer a couple of suggestions to the noble Lord, Lord Marlesford. It seems to me that he should specify a particular rank of police officer who could authorise such a proceeding and that he might pay some thought to the searching of premises as well as of people and vehicles. I accept that that may require an even higher degree of authorisation. I hope that the noble Lord will keep trying.
5.15 p.m.
Lord Mayhew of Twysden: My Lords, it is of course possible to identify a superficial blemish or inadequacy here and there in my noble friend's amendment, but that is not really the point with which your Lordships will wish to be concerned.
I agree with my noble friend Lord Waddington that my noble friend Lord Marlesford has rendered a service to the House by drawing attention to an issue to which we could so readily become wearily resigned—that is, the proliferation on our streets of illegal weapons, illegal firearms. It would be easy to accept that this situation is with us and that it will get worse and worse and it is important that this proliferation should be drawn to our attention. That is what the amendment does.
We heard on a previous occasion—we have been reminded of it today—that the Government's response has been, "Oh well, these powers are available. They are here and they are there—notably in the prevention of terrorism legislation''. We are seeing what might be called "powers creep"—that is, the use of powers under the prevention of terrorism legislation in circumstances for which they were never intended to be made available and in which, perhaps, they are unlawfully used. Not long ago, an incident where this was alleged to have happened—I believe in London— elicited an apology from on high.
It is not enough to say that the Prevention of Terrorism Act will allow people in most circumstances to intervene in the way the amendment seeks to authorise. I hope that the Minister will be able to say that there is already a specific power readily discernible in a single Act which enables this action to be taken, or, alternatively, give a sympathetic response to a very helpful amendment.
Lord Carlile of Berriew: My Lords, I, too, take the view that the noble Lord, Lord Marlesford, is doing the House a service in raising this issue for debate. He is right not to apologise for his persistence in doing so year on year.
I would add to his argument by reminding the House that, in the cities mentioned during the earlier part of the debate, those who have to deal with cases in the magistrate's court, in particular, when they come for first hearing, find that virtually no potential witness is willing to attend the court to give evidence of what has occurred. Those are real issues.
However, under the non-terrorism provisions of the Anti-terrorism, Crime and Security Act 2001 there is very extensive redefinition, codification arid extension of the powers available to the police and other control authorities to obtain information by covert as well as overt means which will lead, it is to be hoped, to the arrest of those concerned in the proliferation of firearms, particularly handguns.
300
I should say to the noble Lord, Lord Marlesford, that, for what it is worth, in my experience of murder and manslaughter cases—even in those committed with firearms—a significant proportion of the homicides are domestic rather than related to major crime, and the statistics should be viewed in that light.
I agree with the noble Lord, Lord Waddington—I have to reflect that this is the third time in a fortnight that I have found myself agreeing with him, which is probably a sign of increasing age rather than anything else—and I should like to add to what he said along the same theme. As he reminded the House, there has been a problem recently in relation to the exercise of the powers under Sections 44 and 45 of the Terrorism Act 2000 in relation to the defence exhibition in London— DSEI, as it is called for short. If one looks at what has occurred in relation to the exercise of those powers, one thing becomes apparent immediately, in my view. The police already have extensive powers to stop and search. They actually have, if properly applied, all the powers which the noble Lord, Lord Marlesford, would probably want if he were to analyse them with great care, to achieve the ends he wishes to meet, but there is a comprehension gap in the police.
I urge the Minister who replies to the debate to tell the House that the Government are making ongoing efforts to ensure that the police constable who is referred to in the noble Lord's amendment—which includes the constable who is there on the beat, often at a moment of tension, and is sometimes brought from another force to an area about which he knows little— understands the options open to him. There are options for stopping and searching under the Police and Criminal Evidence Act 1984. There are options for stopping and searching under the Terrorism Act 2000. Indeed, there is not just one set of options for stopping and searching under the Terrorism Act 2000, but multiple sets of options. Other options for stopping and searching are open to police officers.
I have inquired recently into whether there is a sort of menu or guide which enables constables to understand the choices they have to make. They may stop under one option but find that the search they carry out comes under another. For example, they may stop under Section 44 of the Terrorism Act because of possible terrorism, but may reach a decision that they do not want to search for terrorist material—which is all they can search for under Section 45 of the Terrorism Act—and instead may wish to search for firearms or for dangerous drugs. Therefore, they have to decide that their search should continue under another set of legislative provisions.
This is difficult for a police constable. I urge the Government and, indeed, ACPO, encouraged by the Government, to take steps to ensure that the bobby on the beat, if I can use that old-fashioned phrase, knows what his choices are. Otherwise he and his force will face expensive and hugely time-consuming civil action by those against whom they may have had reasonable suspicions but happened to use the wrong piece of legislation.

301
In summary, I suggest that the powers are there, we can achieve the aims of the noble Lord, Lord Marlesford, but there needs to be a greater understanding of how the kit that is available can be used to best effect.
Lord Dixon-Smith: My Lords, I join other Members of the House in thanking my noble friend Lord Marlesford for tabling this amendment. While it is not a perfect amendment, if nothing else, it serves a very useful function in drawing out the debate in a very constructive way. When my noble friend last introduced a similar amendment, I supported the principle, and I do so again today.
I readily acknowledge that there is already a plethora of law dealing with guns, particularly illegal guns, and of course the police have many powers that they can use. But so much of the law that we pass today is simply a regurgitation of existing law, because existing law is either not sufficiently understood or not sufficiently applied. So, as legislators, we make another attempt and draft a new provision, which is what my noble friend is trying to do.
The noble Lord, Lord Carlile of Berriew, hit the nail on the head when he said that the plethora of existing law is very often difficult for the policeman on the beat, who faces the problem of a suspected criminal in a particular situation and has to deal with it. He has to have the law behind him in his actions, otherwise he cannot act. He has to know what he is doing, and police training is fundamental.
Whether we should have a new law is ultimately a matter of judgment. The Government may well say, as they have said before, that they need not do this now and there is plenty of existing law. But if my noble friend is sufficiently persistent, I suspect that he may win the day. It may not be today, it may not be this year or next year, but possibly in two or three years' time, if—and this is the point—the problems of gun crime in our communities, particularly our conurbations, continue to become bigger and more difficult, causing greater and greater concern.
The noble Lord, Lord Dholakia, said that so much of this, sadly, is black on black crime. He cannot protest about that and then protest about the use of targeted intelligence which leads to stop-and-search operations, possibly stopping and searching black people more often than white. If that is where the crime is—and that is where the majority of gun crime, sadly, appears to be—targeted intelligence will mean that inevitably, in certain areas, blacks will have to be searched more often than whites. The police, regrettably, have to face potential community odium in order to do their job. They have my sympathy.
The noble Viscount, Lord Bledisloe, rightly criticised the rather wide scope of the amendment. He was concerned about what the police might do if he were marching down Piccadilly with a gun and seemed to assume that they would immediately act to shut the area down. That is highly unlikely; if he were to do so, a policeman might well tap him on the shoulder, say,
302
"Excuse me, sir, but may I see your licence?" and nothing more would happen. But if a policeman on the beat happens to see a man who he has strong reasons to suspect is carrying a gun going into a restaurant, what is he to do about it? It is necessary not just to know whom he saw going in with the gun but possibly to search everybody else because the guy who walked in with a gun might subsequently have handed it to somebody else who might have handed it to a third person. The issue is not straightforward.
The debate around the amendment has been extremely useful, and I await the Government's reply with interest. We have lots of law that could deal with this matter but the reality is that, in many parts of our more urban communities, that law is not seen to be a success. It may be, in part, a failure of community attitude—I thought that was a very useful comment. If the community wills a safe and crime-free community, on the whole, after a time, they get it. That is part of the difficulty.
This has been a very useful debate. The principle of the amendment should be supported on the basis of restating, in simple language which everybody can understand, a position which is wrapped up in the existing law in so many different ways.
Baroness Scotland of Asthal: My Lords—
Baroness Anelay of St Johns: My Lords, I apologise to the noble Baroness; she may have decided that after such a full and rounded debate, I should not speak, but I am going to disappoint her and go ahead—albeit very briefly, she will be relieved to hear.
I, too, am grateful to my noble friend for raising this important matter. He is right: there is a great concern among the public about the illegal use of firearms. If the Government believe that my noble friend's objective is already adequately covered by other legislation, I would, like others, be grateful if the Minister could quote chapter and verse so that we can be assured that the amendment is not necessary. I listened with great care and interest to the speech of the noble Lord, Lord Carlile of Berriew. I agree with him that there is a comprehension gap, so we may need to have something that clearly puts into legislation the kind of precautions that my noble friend seeks.
My noble friend referred to Diane Abbott, who chairs the All-Party Gun Crime Group. I should declare an unpaid interest as one of her vice-chairs— probably her most useless vice-chair, because as a consequence of having to sit so many days in your Lordships' House on this and other Bills, I have not contributed one iota to the admirable report that is about to be published next week. I rarely disagree with the noble Lord, Lord Dholakia, but I must do so on this occasion, because I would not necessarily have to wait until the publication of that report to support my noble friend's amendment today.
My noble friend is right to seek assurances today and, if necessary, if he feels that those assurances have not been adequately given, he is right to want to test the opinion of the House. If he does so, I shall of course

303
support him. Naturally, one must seek to take up whatever time there is in a Bill that is passing through to get a point across. He may have to wait several years before the Government introduce another Criminal Justice Bill. I hope so, although I do not have much real hope of that. Perhaps when the Minister responds, her first words will be words of joy—that there will be no Criminal Justice Bill in the next Session.
5.30 p.m.
Baroness Scotland of Asthal: My Lords, if only it were so.
I join those who say that this has been a good short debate, and I commend the noble Lord, Lord Marlesford, for raising the issue. However, he will have a reply in a different voice and tone, but it will be the same message.
Several noble Lords made their points eloquently, and I shall not recite them. I agree with the comments made by the noble Lord, Lord Dholakia, with the pithy dissection made by the noble Viscount, Lord Bledisloe, with the comments of my noble friend Lord Corbett and the comprehensive recitation given to us so well by the noble Lord, Lord Carlile of Berriew, on the powers already available.
I should say a word to the noble Lord, Lord Dixon-Smith, because I believe that he misunderstood the remarks of the noble Lord, Lord Dholakia. The import of the comments made by the noble Lord, Lord Dholakia, was that the issue of gun crime is a matter of importance to all our communities, and the black and minority ethnic community is no exception, because they have had the vice of gun crime visited on them. There was no suggestion that it was disproportionate in its occurrence to white gun crime, but simply that they joined together in the pain visited on the community, and that we can expect the same sympathy, anger and concern from the black and minority ethnic community as from any other part.
The disproportionality to which the noble Lord, Lord Dholakia, alluded to did not come from the nature of the offence. It is important that we make that distinction, because I am sure that other noble Lords would not want the noble Lord, Lord Dholakia, to be misunderstood. I certainly did not misunderstand him.
When this matter was raised earlier, in relation to the Police Reform Bill, my noble friend Lord Bassam in answer to the noble Lord, Lord Marlesford, set out the extensive powers that have again been referred to in passing during our short debate. For example, he referred to the powers under Section 1 of the Police and Criminal Evidence Act 1984, Section 60 of the Criminal Justice and Public Order Act 1994 and various provisions of the Terrorism Act 2000. Those have already been alluded to, so I shall not recite them again. In addition, Section 47 of the Firearms Act 1968 enables a constable to require the handing over of the firearm and any ammunition for examination so that he may ascertain whether the firearm is real or imitation, what type of firearm it is, whether it is loaded, or whether the ammunition is suitable for use in the firearm.
304
The noble and learned Lord, Lord Mayhew, with his usual delicacy and kindness, referred to the amendment as having certain superficial blemishes. I acknowledge that kindness, but regrettably, on this occasion, the noble Viscount, Lord Bledisloe, had it correctly. The amendment has a number of fundamental flaws. During the earlier debate, the noble Lord, Lord Marlesford, recognised the existence of these powers, but emphasised that he saw a need for powers to seal off areas to facilitate searching. On that specific point, we remain unconvinced that what is proposed is a proportionate response to the issue, for all the reasons given earlier by other noble Lords.
As your Lordships will be aware, the Government are fully committed to supporting the police in their efforts to tackle gun crime, which is a scourge. It is important to ensure that the police have the necessary powers available to them. Our developing programme to tackle gun crime includes tackling the links to drug supply and crime, through initiatives such as the Criminal Justice Interventions Programme and the National Crack Plan; reducing the supply and availability of firearms; effective police operations to drive down firearm offences; tough laws and effective enforcement; and engaging the worst affected communities to address the underlying gun culture. This Bill includes proposals for a five-year mandatory sentence for illegal possession of prohibited firearms.
However, we do not believe that it would be right to go as far as allowing for whole areas to be sealed off merely because a constable reasonably believed that some person within their area was carrying a firearm, even when there was no perception of any immediate danger or threat. When there is a reasonable belief that serious violence may take place in a particular locality, existing legislation already allows for generalised searching of persons and vehicles. That would not extend to sealing off the area, but anyone within or entering the area could be searched.
I hear what the noble Lord, Lord Waddington, says about whether we need to recite the provisions again in this Bill. I respectfully suggest that we do not. The noble Lord, Lord Carlile of Berriew, has a real point about ensuring that in practice police officers on the ground have a proper understanding of their powers and know how to exercise them. There is training, and that training will have to continue. When this Bill becomes law, there will have to be further training. However, the powers can be properly exercised by skilled police officers selecting the options available. I take to heart what was said about the increased need to do that, and perhaps the need to discuss further with ACPO how best to do that.
Although I do not think it would be justified to allow areas to be sealed off and swept for firearms as the noble Lord proposes, we are taking a whole range of actions to bite down hard on gun crime. We hope that the further measures in the Bill will be successful. I have heard all that the noble Lord, Lord Marlesford,

305
said. I hope that, notwithstanding the vigour with which he said he would press the amendment to a Division, he might think again.
Lord Marlesford: My Lords, I thank the Minister for her answer. I fear that in many ways my overall impression is that we have not moved forwards in the 18 months since I raised the issue. In the case of the noble Lord, Lord Dholakia, we have moved backwards. To the same amendment last time, he opened his speech by saying:
"From these Benches we lend support for the amendment".— [Official Report, 12/3/03; col. 692.]
Various points have emerged. It was a little fatuous for the noble Viscount, Lord Bledisloe, to make the point that he made. He seemed to ignore the common sense that the police would use in applying such laws. Furthermore, it is open to the Government and the Home Office to give precise guidance as to how such a law would be used. I am not saying for a moment that the wording is right, but I believe that the intention is right. I believe that there is a lacuna. The Minister has just emphasised again all the complicated possibilities that arise and that people have to know exactly where to find the measure. I am offering a much more general mandate to make the position perfectly clear. Of course, that mandate could be supplemented with guidance. My noble friend Lord Waddington and the noble Lord, Lord Carlile, made the telling remark that there is a lack of comprehension in this area.
There is also a danger that we are not taking on board the real fear that exists in certain communities. I got that feeling from talking to Diane Abbott. I suspect that none of us is worried about people carrying guns in the areas where we live. I personally believe that an awful lot of people would be very glad to see these kinds of powers put in place and that we could rely on the police to enforce them sensibly and sensitively with the help of guidance. For that reason I should like to test the opinion of the House.
5.41 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 140.

Division No.1

CONTENTS

Alton of Liverpool, L.

Carnegy of Lour, B.

Anelay of St Johns, B.

Colwyn, L.

Ashcroft, L.

Cope of Berkeley, L.

Astor, V.

Craigavon, V.

Astor of Hever, L.

Crathorne, L.

Baker of Dorking, L.

Denham, L.

Beaumont of Whitley, L.

Dixon-Smith, L.

Brooke of Sutton Mandeville, L.

L. Dundee, E.

Brougham and Vaux, L.

Eccles of Moulton, B.

Buscombe, B.

Feldman, L.

Byford, B.

Ferrers, E.

Campbell of Alloway, L.

Flather, B.

306

Fookes, B.

Moynihan, L.

Forsyth of Drumlean, L.

Murton of Lindisfarne, L.

Fowler, L.

Neill of Bladen, L.

Gardner of Parkes, B.

Newton of Braintree, L.

Glentoran, L.

Noakes, B.

Goschen, V.

Northbrook, L.

Hanham, B.

Norton of Louth, L.

Higgins, L.

O'Cathain, B.

Hodgson of Astley Abbotts, L.

Park of Monmouth, B.

Hooper, B.

Parkinson, L.

Howe, E.

Patten, L.

Howe of Aberavon, L.

Pearson of Rannoch, L.

Howell of Guildford, L.

Peel, E.

Hunt of Wirral, L.

Pilkington of Oxenford, L.

Hurd of Westwell, L.

Plumb, L.

Kilclooney, L.

Rawlings, B.

Kimball, L.

Rees, L.

King of Bridgwater, L.

Renton, L.

Kingsland, L.

Renton of Mount Harry, L.

Kirkham, L.

Roberts of Conwy, L.

Knight of Collingtree, B.

Rotherwick, L.

Lamont of Lerwick, L.

Saltoun of Abernethy, Ly.

Lawson of Blaby, L.

Seccombe, B. [Teller]

Liverpool, E.

Selsdon, L.

Luke, L.

Sharples, B.

McColl of Dulwich, L.

Shaw of Northstead, L.

Simon of Glaisdale, L.

MacGregor of Pulham Market,

Skelmersdale, L.

L.

Strathclyde, L.

Mancroft, L

Thomas of Gwydir, L.

Marlesford, L. [Teller]

Trumpington, B.

Masham of Ilton, B.

Waddington, L.

Mayhew of Twysden, L.

Wade of Chorlton, L.

Monro of Langholm, L.

Wakeham, L.

Montrose, D.

Wilcox, B.

NOT-CONTENTS

Ackner, L.

Elis-Thomas, L.

Acton, L.

Erroll, E.

Ahmed, L.

Evans of Parkside, L.

Alli, L.

Evans of Temple Guiting, L.

Amos, B. (Lord President)

Falconer of Thoroton, L. (Lord

Andrews, B.

Chancellor)

Archer of Sandwell, L.

Falkender, B.

Bach, L.

Farington of Ribbleton, B.

Barnett,L.

Faulkner of Worcester, L.

Bassam of Brighton, L.

Filkin, L.

Berkeley, L.

Gale, B.

Billingham, B.

Gibson of Market Rasen, B.

Blackstone, B.

Goldsmith, L.

Bledisloe, V.

Gordon of Strathblane, L.

Borrie, L.

Goudie, B.

Bragg, L.

Gould of Potternewton, B.

Brennan, L.

Graham of Edmonton, L.

Brett, L.

Gregson, L.

Brooke of Alverthorpe, L.

Grocott, L. [Teller]

Brookeborough, V.

Hannay of Chiswick, L.

Brookman, L.

Harrison, L.

Burlison L.

Haskel, L.

Campbell-Savours, L.

Hayman, B.

Carter, L.

Hilton of Eggardon, B.

Christopher, L.

Hogg of Cumbernauld, L.

Clark of Windermere, L.

Hollis of Heigham, B.

Clarke of Hampstead, L.

Howarth of Breckland, B.

Clinton-Davis, L.

Howe of Idlicote, B.

Colville of Culross, V.

Howells of St Davids, B.

Corbett of Castle Vale, L.

Hoyle, L.

Crawley, B.

Hughes of Woodside, L

David, B.

Hunt of Kings Heath, L.

Davies of Coity, L.

Hylton, L.

Davies of Oldham, L.[Teller]

Irvine of Lairg, L.

Dixon, L.

Kennedy of The Shaws, B.

Donoughue, L

King of West Bromwich, L.

Dormand of Easington, L

Kirkhill, L.

Dubs, L.

Lane, L.

307

Layard. L.

Ramsay of Cartvale, B.

Lea of Crondall, L.

Randall of St. Budeaux, L.

Levy, L.

Rendellof Babergh, B.

Lipsey, L.

Rooker, L.

Listowel, E.

Sainsbury of Turville, L.

Lloyd of Berwick, L.

Sandwich, E.

Lockwood, B.

Scotland of Asthal, B.

Lofthouse of Pontefract, L.

Sheldon, L.

McCarthy, L.

Simon, V.

Macdonald of Tradeston, L.

Slynn of Hadley, L.

McIntosh of Haringey, L.

Stern, B.

McIntosh of Hudnall, B.

Stoddart of Swindon, L.

MacKenzie of Culkein, L.

Strange, B.

Mackenzie of Framwellgate, L.

Symons of Vernham Dean, B.

Mallalieu, B.

Taylor of Blackburn, L.

Marsh L.

Temple-Morris, L.

Mason of Barnsley, L.

Tenby, V.

Massey of Darwen, B.

Tomlinson, L.

Merlyn-Rees, L.

Turnberg, L.

Monson, L.

Turner of Camden, B.

Morris of Aberavon, L.

Walpole, L.

Morris of Manchester, L.

Warner, L.

Nicol, B.

Warnock, B.

Northbourne, L.

Warwick of Undercliffe, B.

Patel of Blackburn, L.

Weatherill, L.

Paul, L.

Whitaker, B.

Pendry, L.

Whitty, L.

Pitkeathley, B.

Wilkins, B.

Plant of Highfield, L.

Williams of Elvel, L.

Prashar, B.

Williamson of Horton, L.

Prys-Davies, L.

Woolmer of Leeds, L.

Radios, L.

Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.
5.52 p.m.
Clause 2 [Warrants to enter and search]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 3:
Page 2, line 1, leave out "company" and insert "presence"
The noble Baroness said: My Lords, I shall speak also to Amendment No. 4.I can be brief on the matter. I tabled the amendments to invite the Minister to put on record his response to questions that I asked him in Committee. He is not in his place, but never mind. I am sure that the noble Baroness will respond just as well.
Clause 2 increases the powers of persons who accompany constables executing search warrants. It gives such persons the same powers as the constable who is executing the warrant, provided that the person is,
"in the company, and under the supervision, of a constable".
When we debated that in Committee on 30th June, I and other Members of the Committee referred to the importance of training being given to those who accompany constables in those circumstances, and that it should be clear what arrangements had been made for a disciplinary system to which the civilians should be subject.
The noble Lord, Lord Bassam, said (at col. 613 of the Official Report of that date) that he would write to me covering issues relating to not only civilian discipline but training. I waited with bated breath for that exciting letter and. by golly, was I made to wait.
It arrived in the nick of time at lunchtime today. I now invite whichever Minister is about to respond to put that response on record, so that it may be available to the public as it was to me, if somewhat in haste. I beg to move.
Lord Renton: My Lords, I warmly support the first of my noble friend's amendments. It is a very necessary drafting amendment. In the circumstances, "company" does not seem appropriate, but "presence" is ideal. On her second amendment, I must confess that I am a little puzzled because I am not quite sure how a layperson would ever receive such training. That may be because of my ignorance.
Baroness Scotland of Asthal: My Lords, I apologise straightaway to the noble Baroness. When 1 saw the amendments, I was somewhat puzzled about why she had tabled them because I had understood that we had written to her. I caused inquiry to be made as to whether the letter, if sent, had been received, and that was the vehicle through which she eventually— thankfully—received it. Both she and I now understand why we are here at the moment.
It is not clear that Amendment No. 3 would achieve what the noble Baroness wants to achieve. A civilian in the "company" or "presence" of a constable amounts to the same thing. They both imply that the constable is on the premises with the civilian authorised by the warrant. I make it plain that we want to ensure that the constable is on the premises with the civilian to provide supervision and guidance, but it would defeat the object if he had to be looking over the civilian's shoulder throughout the process.
Amendment No. 4 would make it explicit that accompanying civilians could exercise search-and-seizure powers only when they had received appropriate training. I understand why the noble Baroness has phrased the amendment in that way. We recognise the importance of police supervisors providing adequate guidance to accompanying persons about the roles that they are asked to fulfil. Specific training will often be necessary, particularly where certain individuals are used in this capacity on a regular basis. With that in mind, we will emphasise the importance of relevant training in issuing guidance to the police about how to use the new provisions.
There may be circumstances where the straightforward nature of the task involved or the experience of the accompanying civilian means that formal training is not necessary and that clear guidance and instruction will suffice. Furthermore, it may be difficult to allow for training where people have to be brought in at short notice because they have a particular skill or knowledge required at the time. We would expect there to be a slightly tighter level of supervision in those circumstances to ensure that all was well. The constable would of course retain overall responsibility for the operation. Where that is the case, it will be crucial that the police officers involved explain the tasks and procedures clearly and supervise the accompanying persons carefully.

309
For those reasons, I hope that the noble Baroness will withdraw her amendment. I have ensured that a copy of the letter from the noble Lord, Lord Bassam, to the noble Baroness is placed in the Library for the interest of all those who wish to see it.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister. I accept her explanation and assurances, and shall not return to the amendment at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved. ]
Clause 3 [Arrestable offences]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts had given notice of his intention to move Amendment No. 5:
Page 2, line 13, leave out from second "of to end of line 14 and insert "cannabis or cannabis resin"
The noble Lord said: My Lords, Amendment No. 5 relates to Clause 3(3), and seeks to avoid including all class C drugs in the same category as cannabis. The Government's defence of their proposal in Committee was weak and the logic of their reasoning not easy to follow. Although a great many research organisations, doctors and psychiatrists agree that the dangers of cannabis are yet to be fully assessed, the Government are proposing to reclassify—
Baroness Scotland of Asthal: My Lords, I think that I can save the noble Lord some pain by saying that we intend to accept the amendment in principle. In due course, we will come forward with a government amendment.
Lord Hodgson of Astley Abbotts: My Lords, that is a generous offer. I have had my breath taken away in the nicest possible way, so I shall not move the amendment. I look forward to seeing what the Government have to offer.
[Amendment No. 5 not moved. ]
Clause 5 [Drug testing for under-eighteens]:
Baroness Walmsley Baroness Walmsley moved Amendment No. 6:
Page 5, line 6, leave out ""14"" and insert ""17""
The noble Baroness said: My Lords, in moving Amendment No. 6, I shall speak also to Amendment No. 7. One reason why we have so much law in this country is that whenever an issue arises, instead of looking at the statutes to see what we have in our armoury and how it is working, the Government immediately bring in new legislation in an effort to be seen to be doing something. This issue is one such case.
The Government have said that the purpose of the drug-testing provisions is to ensure early detection and therefore early treatment, but I believe that the measures are unnecessary, given that any child charged will already be referred to a youth offending team officer for assessment of its needs. Part of that assessment is an analysis of any substance misuse, and
310
all YOTs have a specialist to follow up any needs or further assessments. Given that, I cannot see why it. is necessary to bring in the compulsion element.
I appreciate that the Government's aim is to ensure that children receive the help that they need. Compulsory treatment by court order is a very serious prospect, given that a breach is a criminal offence. The breach rate for adult drug testing is horrendous: 5,419 of the 6,186 orders made in 2002 were breached. That means that many, many children are likely to be in breach of the orders, thereby escalating their interaction with the judicial system just at the time when our aim should be to reduce it. We are putting them in real danger of committing a further offence by suggesting the orders be compulsory.
Moreover, Schedule 20 does not include the necessary safeguards to ensure that the dangerous step of using court compulsion to treatment would be taken only where absolutely necessary and where voluntary options had already been tried and tested. Children should have access to treatment services when they need them. Voluntary treatment is the most effective way to ensure successful outcomes for them and does not carry with it the danger of escalating into a breach-of-order offence I beg to move.
6 p.m.
Lord Hodgson of Astley Abbotts: My Lords amendments Nos. 8 and 9 would change the maximum age at which a juvenile requires an adult to be present during drug testing from 17 to 18. The reasons for that were given by my noble friend Lady Anelay in an earlier debate.
I explained in Committee that it appeared from the drafting of the Bill that the Government shared our belief that under-18s should be given special treatment for the intrusive process of drug testing. That is evidenced by the heading of the clause. However, the Government then shifted the goalposts for those aged 17 and 18. To be candid, we were not satisfied with the replies that we received.
I again emphasise that it is inconsistent for the Government to exclude 17 year-olds from special treatment when it comes to the need for an appropriate adult to accompany the child during testing. The Government appear to be overly concerned with PACE regulation provisions and resources, rather than with the practicalities and needs of a child's welfare.
The Minister observed at col. 64 of Hansard of 7th July that to include 17 year-olds,
"would not be consistent with the current provisions in code C of PACE".
That is an all-too-familiar response and it is an anomaly in PACE regulations that both the Children's Society and the UN Committee on the Rights of the Child have repeatedly tried to change. The more they are criticised on that point, the more the Government seem to fall back on the rather narrow defence that a change would not fit with the current PACE provisions.

311
The noble Baroness continued:
"The effect of increasing the age to include those under the age of 18 may lead to confusion. It would also necessitate the presence of an appropriate adult for those aged between 17 and 18 solely for purposes relating to the testing process. That may put undue pressure on family relationships, or have a disproportionate effect on resources".
First, I do not see how increasing the age to include all those under 18 could lead to confusion. On the contrary, the fact that special provisions exclude those between 17 and 18 from the category of child for whom the clause provides seems to be a more likely source of confusion. Secondly, the argument that undue pressure might be put on family relationships does not stand up to scrutiny as that would surely be equally true if we were discussing 14, 15 or 16 year-olds, but they are still required, quite rightly, to be accompanied by an adult.
Thirdly, the pressure would not be "undue", but entirely necessary, since it is designed to protect the safety and welfare of a child—that is, someone under the age of 18—during the drug-testing process. Finally, the claim that it might have a disproportionate effect on resources, even if true, is a lame excuse. The Government have made a drug strategy a central plank of their policy to contain crime, so what better use of resources could there be?
The Children's Society has explained that the number of children held by the police in an average year increases exponentially with the age of the child, with the biggest jump in numbers seen among 16 and 17 year-olds. We can therefore assume that if 17 year-olds did not need to be accompanied by adults for drug tests, some police time would be saved, but I stress that that is at the expense of the child's welfare. To omit 17 year-olds from certain clauses that protect children for administrative convenience is indefensible. Amendment Nos. 8 and 9 would ensure that a clause which the Government have carefully entitled "Drug testing for under-eighteens" meant just that, and that the laws drafted under it would relate to all children under the age of 18.
Baroness Scotland of Asthal: My Lords, I hope that I will be able to explain a little more clearly why we disagree with the amendments to satisfy both the noble Baroness, Lady Walmsley and the noble Lord, Lord Hodgson.
Amendment No. 6 would raise the minimum age for drug testing under the clause from 14 to 17. I understand that the noble Baroness believes that that would create more protection than would the provisions before us. I shall explain why I disagree.
There is strong evidence to suggest an association between the frequent misuse of substances and offending and other anti-social behaviour among young people. It is therefore important to identify drug-misusing offenders at an early stage and to take every opportunity to encourage them to access treatment and/or other programmes of help. If a young person under 18 is charged with a trigger offence, it is important to determine, where possible, whether his offending is linked to the use of illegal drugs, particularly the drugs which cause the most harm such as heroin and crack-cocaine.
312
The purpose of the drug test is to act as a screening tool to be used in conjunction with other interventions such as arrest referral. The effect of increasing the minimum age of drug testing from 14 to 17 would be the loss of that opportunity to identify young offenders who are taking specified class A drugs. We are targeting those aged 14 and above on the basis of the research evidence that we have. That evidence includes the clients of 11 youth offending teams and it suggests that the mean age at which younger offenders have reported first taking these drugs is around 14 to 15. We are trying to assist those vulnerable young people by giving them a little help at a time when they really need it.
Baroness Walmsley: My Lords, will the Minister explain why young people of that age group, who are using serious drugs, would be not picked up by the assessment of the youth offending team? Why is the test needed?
Baroness Scotland of Asthal: My Lords, our evidence suggests that they are not being picked up by the youth offending teams. We are trying to increase the safety net. The Bill aims to make each intervention with an offender a meaningful one in order to assist them to break the cycle of offending. The noble Baroness will know that the earlier we can do that, the better. Once patterns of behaviour are established, they are much harder to break than if we were able to make an early and targeted intervention before the real difficulty has ripened and taken root.
By identifying young drug misusers at an early stage in the criminal justice system, after charge, the young person can be engaged in interventions to address his drug use at the earliest opportunity before it escalates. We therefore propose that Amendment No. 6 should be resisted.
Amendment No. 7 is a consequential amendment that would remove the provision for the presence of an appropriate adult in the case of a person under the age of 17. For the reasons that I have just set out, we propose to resist that amendment too.
Clause 5(3) provides for the presence of an appropriate adult throughout the drug-testing procedure for those persons who have not attained the age of 17. Amendments Nos. 8 and 9 would raise the age at which the testing procedure must not take place, except in the presence of an appropriate adult, from under 17 to under 18.
The noble Lord was clear in reciting the reasons I gave in Committee and I do not resile from those. However, we do not believe that this would be consistent with the current provisions in Code C of PACE—the code of practice for the detention, treatment and questioning of persons by police officers—or with other drug-testing provisions in the Bill. That is important because the provisions applicable under PACE Code of Practice C require any person who appears to be under the age of 17 to be treated as a juvenile, in the absence of any clear evidence that he or she is older, and consequently

313
provides that an appropriate adult is required to be contacted and asked to attend the police station to see the detained juvenile.
Lord Hodgson of Astley Abbotts: My Lords, I thank the Minister for giving way. Will she explain why the clause is headed
"Drug testing for under-eighteens"?
If it were "under-seventeens", we would understand what she was driving at.
Baroness Scotland of Asthal: My Lords, the heading "under-eighteens" makes it clear that we are dealing with minors. Once one is dealing with an 18 year-old, one is dealing with an adult. The reason for the phrasing is to make clear that the provision deals with minors and not with adults. Of course, if the matter causes difficulty we can look at it again, but we believe that the heading is perfectly proper.
The effect of increasing the age to include those under the age of 18 may lead to confusion. It would also necessitate the presence of an appropriate adult for those aged between 17 and 18 solely for this purpose. That is exactly what I said in Committee.
We acknowledge all the concerns that the noble Lord has expressed. However, as I have outlined, we consider that there are sound reasons for maintaining consistency in the age level for the presence of an appropriate adult for drug-testing purposes with that in the appropriate adult criteria set out under PACE. We also consider that this age level should be applied consistently across the drug-testing provisions of the Bill and with other legislation. The noble Lord said that consistency should not matter in this regard—or it should not be the determining factor—but we believe that it has importance. Nevertheless, we recognised the perceived inconsistency of treating some aged 17 as adults during the detention process.
The review of PACE conducted by the Cabinet Office and the Home Office in 2002 recognised the need to consider whether more consistency should be introduced into the age levels applying to juveniles across the criminal justice system. That work will soon be underway. I can assure noble Lords that the views expressed on this issue today and on the previous occasion will be taken into account in that consideration. However, we do not believe that it would be proper to do so in a piecemeal way. We need consistency and clarity and for the time being we believe that this is the most appropriate way forward.
At this stage therefore, and for the reasons I have outlined, we propose that Amendments Nos. 8 and 9 be resisted. I reassure the noble Lord that we have heard what he said in Committee and that we have heard and inwardly digested what he has said today. When the matters are reviewed, those statements will be fully taken into consideration in the PACE review. But it will be done holistically and not piecemeal. I hope that he agrees that that is a more appropriate way
314
of dealing with PACE than taking bite-sized pieces out of it in a way that might cause confusion and get us into difficulties I know he does not want.
The Lord Bishop of Worcester: My Lords, before the Minister sits down, perhaps I may ask a question. She has repeatedly said that she has heard the concerns raised in this and the earlier debate. Will she acknowledge that whatever may be the individual arguments on individual amendments, the incremental effect of the Bill is to bring more young people within the range of adult treatment within the criminal justice system? Will she also acknowledge that for those of us for whom that is a serious concern, and for organisations such as the Children's Society, whatever may be the argument for each individual amendment, the incremental effect of the Bill must be taken most seriously?
6.15 p.m.
Baroness Scotland of Asthal: My Lords, we take these matters absolutely seriously and we are not taking a tranche-by-tranche approach to the Bill. We believe that its strength is the holistic nature of its provisions. Therefore, the right reverend Prelate will know—we have been in company throughout the 59 hours in Committee and I am sure we will be in company for the remainder of the Report stage—that we have tried to put these provisions in the context of how they should be seen in the whole. All the steps we are taking with young people in the community bite as regards education, health, cautioning and early intervention. That is not taking a piecemeal approach but it is looking at the whole piece.
I do not hesitate from telling your Lordships that we are trying to do something different from anything that has been done previously. This is the first time that the sentencers will have the whole palette—they will be able to look not only at the single offence, but to try to dig beneath it. They will be able to look at the difficulties—some of them social and intractable— which lurk beneath and address them. Only by addressing those difficulties will we cease to have young people continuing the cycle of abuse, offending, deprivation and loss. There is a loss not only to their victims but to themselves. They are too valuable for us not to fight for their recovery and this Bill does just that. I do not accept at all that we have "lost the plot".
Baroness Walmsley: My Lords, I am grateful to the Minister for her response. I am grateful in particular to the right reverend Prelate the Bishop of Worcester for his intervention because he put the matter more clearly than I did in expressing concern that with compulsory drug testing the danger of young people committing yet another criminal offence could be escalated. The point he made was what I meant, although he put it much better.
I am afraid that the Minister has failed to convince me of the necessity of the provision. However, I do not intend to test the opinion of the House at this stage. I shall go away and read carefully what she has said and consult the children's organisations about this important issue of escalation. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 7 to 9 not moved. ]
Clause 6 [Limits on period of detention without charge]:
[Amendments Nos. 10 and 11 not moved. ]
Clause 7 [Property of detained persons]:
Baroness Harris of Richmond Baroness Harris of Richmond moved Amendment No. 11 A:
Page 6, line 7, leave out from "him)," to end and insert "for the word "shall" there is substituted "may""
The noble Baroness said: My Lords, in moving Amendment No. 11 A, I shall speak also to Amendments Nos. 11B and 11C. I am disappointed that the Government have not seen fit to address the concerns we expressed in Committee about this part of the Bill. These amendments are therefore by way of a compromise and 1 urge the Minister to support them.
I shall speak first to Amendments Nos. 11A and 11C. Section 54 of PACE would be amended in such a way as to remove the requirement that a detainee's property be recorded. We feel that perhaps this goes too far, so we are proposing that the custody officer simply "may" record the property of someone who is detained.
However, our Amendment No. 11B states that if a detainee requests that his or her property be recorded, as it is now, the custody officer must comply with that request. That amendment covers everyone against any accusation of loss of property or the planting of evidence and ensures that the state upholds its obligations to maintain the safety of someone's property when he or she is in custody.
In order to reduce bureaucracy, which is the main plank of the police's argument, there are now sophisticated recording procedures which would take a nanosecond to use and which would certainly stop the laborious use of every piece of property being recorded manually. Digital photography could also be used as a way of ensuring that property is thoroughly recorded.
Therefore, I believe that the argument about bureaucracy is wearing a little thin. Our amendments seek to put the onus on the person who is detained to request his or her property to be recorded, should he or she wish that to happen. I beg to move.
Baroness Anelay of St Johns: My Lords, briefly, I fully support the amendments. They meet the objective of my noble friend Lord Hunt, which he set out in Committee.
Baroness Scotland of Asthal: My Lords, I believe that the intention of Amendments Nos. 11A and 11B, spoken to by the noble Baroness, Lady Harris, is to clarify that the custody officer should retain the legal capacity to record whatever property a detained person brings into custody and to make any such records in the detained person's custody record.
We believe that, in principle, there is force in what the noble Baroness said in relation to the first two amendments. However, we are a little concerned about
316
the wording of Amendment No. 11 A. As currently worded, it would effectively remove the absolute obligation on the custody officer to ascertain what a detained person has with him, but I do not believe that that is what any of us on either side of the House wants to achieve.
Allowing for that and for the close relationship between the two amendments, I hope that the noble Baronesses, Lady Harris and Lady Anelay, will be satisfied with an undertaking from me to bring forward amendments at Third Reading to achieve the clear intention of what each of us appears to be proposing today.
However, Amendment No. 11C appears to be intended to oblige the custody officer to make a record of property when requested to do so by the detained person. The guidance that we are drafting in relation to this clause will make it very clear that any reasonable request to record property should be complied with if it is practicable to do so. Imposing an absolute requirement to comply with requests would, we respectfully suggest, not be helpful as it would open the door to deliberately obstructive requests for excessive and time-consuming recording which are not fully justified by the circumstances.
On that basis, I hope that noble Lords will understand why we are not minded to accept Amendment No. 11C. However, we hope to deal with that matter in guidance to everyone's satisfaction.
Baroness Harris of Richmond: My Lords, I am very grateful to the Minister. I heard what she said about guidance and "any reasonable request". We have been along this road before. I very much look forward to seeing what she brings forward at Third Reading. In the mean time, I shall not press the matter to a vote and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 11B and 11C not moved. ]
Clause 8 [Taking fingerprints without consent]:
Baroness Harris of Richmond Baroness Harris of Richmond moved Amendment No. 12:
Page 6, line 17, after "offence" insert "and an officer of at least the rank of inspector authorises them to be taken"
The noble Baroness said: My Lords, in moving Amendment No. 12,I shall speak also to Amendments Nos. 13 and 14. The amendments cover Clauses 8 and 9 and are grouped together.
Amendment No. 12 seeks to insert a requirement that an officer of at least the rank of inspector authorises the taking of fingerprints without the consent of the detainee. Taking fingerprints without consent can still be construed as interfering with a person's liberty, and the use of those powers must be carefully monitored. Therefore, it would be far preferable for a manager of some seniority to take that responsibility. I maintain that fingerprints constitute personal data and, as such, must be treated with safeguards. The taking of them should be authorised by someone who is clearly accountable and has a thorough knowledge and experience of the law.
In Clause 9, again, we simply seek to insert a requirement for a person of at least the rank of inspector to authorise the taking of— this time— non-intimate samples without consent. Proposed new subsection (2D) is a simple insertion of that requirement. For these Benches, the taking of non-intimate samples without consent is even more problematic than the taking of fingerprints without consent. At present, only samples from those who are charged may be taken without consent. It is a slippery path indeed to take samples from just anyone who happens to have been arrested but before he has been charged with an offence.
Notwithstanding what the Minister said earlier in her explanation on Amendment No. 1 at the beginning of this afternoon's debate on Report, it seems to me that the Government are beginning to build a database on which people's DNA will be kept and that they are doing so by stealth. No proper debate has ever taken place about the taking of non-intimate samples. Indeed, the Government's own advisory body— the Human Genetics Commission— recommended in May 2002 that the Government should promote a greater degree of dialogue about the justification for the apparent increase in the range of offences for which DNA samples may be taken. It also recommended, among other things, which bodies should oversee the work of a national DNA database.
Therefore, even the Government's advisers are cautious about the burgeoning numbers of people who could conceivably be added to the database. It is a very worrying matter, and I hope that the Government will consider the amendments carefully. I beg to move.
Lord Clinton-Davis: My Lords, we are dealing here with the taking of fingerprints. My experience as an advocate goes back to the 1980s. In my view, an inspector will not always be available. At present, we devolve quite a lot of power to a police officer— usually a sergeant, but it may be a police constable— to undertake rather essential practices. There is nothing magical whatever about an inspector doing that work, particularly in relation to fingerprints; nor is it consonant with present practice. I consider myself, together with a number of other Peers, to be a custodian of civil liberties, but I have never heard anyone criticise the present procedures.
We must bear in mind that an inspector may not be on duty but that, invariably, a person will be on duty who has much experience in that regard. I believe that the amendment is misconceived on two grounds: first, it is not consonant with current practice; and, secondly, it never will be.
Baroness Anelay of St Johns: My Lords, I support the amendments. We share the concerns expressed by the noble Baroness, Lady Harris of Richmond. Of course, there is a careful balance in the existing provisions of PACE between the perceived need for the police to have new powers and the need for protection against an abuse of those powers. The noble Lord, Lord Clinton-Davis, challenges us, as supporters of the amendments, by saying, "Well, it's okay now so why mess around with it
318
when it is working?" Of course, the point is that here the Government are proposing a considerable extension of powers into realms where the police have never been able to exercise them. I shall give way to the noble Lord if he wishes to ask a question.
Lord Clinton-Davis: My Lords, that is the case only in relation to one thing: the taking of fingerprints.
Baroness Anelay of St Johns: My Lords, as we have already heard from the right reverend Prelate the Bishop of Worcester, the Bill adds by increments to the assaults on liberties. This is one such step. I remind the House that the Joint Committee on Human Rights set out a clear statement of concern about the powers that we are debating. Paragraph 54 of its 11th report states:
"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".
There are two principles here: the propriety of taking fingerprints from a person who has been arrested but not charged and the decision to add that information to a database. I remain convinced that I am right to support the noble Baroness, Lady Harris of Richmond, in challenging the Government to justify this extension of police powers. The Government were unable to convince us in Committee, reported in Hansard of 30th June 2003 at cols. 709 to 711. Since then there has been time for the Government to consider and rally their arguments. I shall be interested to see if the Minister is able to be more persuasive today.
6.30 p.m.
Baroness Scotland of Asthal: My Lords, certainly I hope that I shall succeed in being more persuasive. These extensions, as the noble Baroness has referred to them, are extremely important and will have a beneficial effect upon our ability to ensure that the system is just and fair and that those who perpetrate crimes against others are brought to justice.
I thank my noble friend Lord Clinton-Davis for his support, which is welcome. On the last occasion on which we discussed these issues noble Lords asked about correspondence we had had with Justice, the Law Society and the Human Genetics Commission raising many of the concerns previously raised by your Lordships on the proportionality of the proposed amendments, the creation of a universal DNA database, abuse of the proposed powers, access to personal data held on the database and security of the samples, and the sharing of information with foreign investigative agencies. I hope that I have been able to reassure all three organisations in my replies and shall endeavour to do the same in your Lordships' House today. I hope also that I shall be able to reassure the noble Baroness, Lady Anelay, that there is no difficulty in terms of managing the data and that adequate safeguards are in place, which will mean that her concerns have no foundation in fact.

319
Perhaps I should first remind the House why the Government propose to amend Section 61 of the Police and Criminal Evidence Act 1984 so as to 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. It is important for the police to be able to do that quickly in order to prevent persons evading justice by giving the police false identity and for the police to be aware of anyone who may pose a risk to themselves or to others. I explored those issues when we discussed the amendment, on which the noble Baroness, Lady Harris rightly commented.
I reiterate that the proposed amendments 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. That is important not just for the police but, as we explored earlier, possibly also for the individual concerned. The Government's proposed amendment to Section 63 of PACE in Clause 9 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, with corresponding savings in police time and cost but, just as importantly will save from misery those who have continued offences visited upon them by people who are not so identified.
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. That is important because we do not suggest that these are powers, as noble Lords rightly know, which will be unusually exercised. We suggest that they will be a routine exercise of power.
In previous debates, noble Lords suggested that safeguards must be maintained and that it should not be right for the investigating police officer to require fingerprints or a DNA sample to be taken. I ask noble Lords to consider the nature of the harm which it is said is being caused which requires these additional safeguards. The existing safeguards introduced by PACE will continue to apply and the use of this information is restricted to the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution.
Noble Lords may be concerned about the abuse of such powers, particularly in the light of recent revelations. We believe that police can make mistakes on occasion but that there are now sufficient powers in terms of guidance in codes of practice on how to exercise such powers and if they are used, how to exercise them lawfully. Existing remedies are available to anyone who feels that he or she has not been treated fairly or in accordance with the law. These safeguards have worked well. There have not been any complaints about the way in which the procedure has worked.
320
Anxiety has also been expressed about the suggestion that this is legislation by stealth. That is very much what was said by the noble Baroness, Lady Anelay. This is not a back-door attempt by the Government to create a universal DNA database. If that were part of the Government's agenda, I agree that it would raise significant practical and ethical difficulties and there would be a need for a national public debate such as we have seen over the issue of entitlement or identity cards.
In view of the enormous cost of such an enterprise, the Government would in any event have to consider seriously whether that was an effective way to target crime. I can assure noble Lords that such an idea is not on the Government's agenda. To those who say that these proposals will create a universal database I suggest that for that to be achieved everyone at some point in their lives would have to be arrested. We hope, of course, that that will not be the case. I hope that noble Lords agree that to create a national database using arrestable offences as a way forward would not be prudent or practical.
Ensuring public safety and fighting crime are among the most basic functions of the state. Striking the right balance between protecting individual privacy and taking necessary and proportionate action to protect the public is equally important. The Government are of the view that these proposals are proportionate to the benefits in terms of the prevention and detection of crime.
From our debates on the last occasion, noble Lords will know how useful some of these issues have been in terms of detection of crimes committed in the past and, indeed, in the future. We want to be proportionate. Already there are 2 million profiles, including about 177,000 in the first year. There has been significant enhancement of the data, which has been beneficial not simply to those dealing with cases but to the wider public because we have been able to detect crime more easily. I ask noble Lords seriously to consider whether in all conscience that is something they wish to frustrate.
Baroness Kennedy of The Straws: My Lords, before the Minister sits down, perhaps I may ask whether the Government have put their mind to the distinction to be made between a database which keeps the "barcode", the information which allows police and the authorities to make a comparison with a sample taken from a crime scene, and the keeping of the sample from which the barcode is made. As the noble Baroness will know, when a person is arrested a swab is taken from the inside of their cheek. From that sample is taken, from what is called the "junk DNA", a barcode. That barcode is then used to process it against other samples from the crime scene or to make comparisons with any other crime scene.
Those concerned with civil liberties and those involved in the scientific community are exercised by the rationale for keeping a sample. The question is: will it be used for some questionable purpose in the future? Is it possible that when we know more about genetic science, the Government's intention— or that of any

321
future government— may be to use this information to, for example, flag up those with a propensity for crime? The public would find that kind of usage very questionable. The suggestion is that the samples need not be retained but that only the barcode would be needed for the identification purposes outlined. So why is there a need to keep samples?
Baroness Scotland of Asthal: My Lords, I very much understand why my noble friend made those comments. We would say that the barcode is not enough. I understand too the fear she expressed that the samples would be used for some nefarious purpose, and she talked about a propensity for crime. I make it absolutely clear that that is outwith anything within the Government's contemplation. The noble Baroness will know that the barcode really is not enough because we need to allow for retesting and, with technology moving on, to upgrade old samples.
When we previously debated this issue, I referred to a case that was solved after 20 years because a sample had been taken and retained at the beginning of the use of this technology. Of course 20 years ago it would not have been possible to identify the person because the technology had not evolved to such a stage to make that possible. But, because the sample existed, one was able to use it for identification purposes, which could properly be used just because the technology had been proved. So it was not an improper purpose; it was a proper purpose. The sample enabled someone to be identified. He had committed a minor offence, such as shoplifting a very small item. The person was identified as having committed a number of very serious rape offences many years before. We were able to bring that person to justice because the sample had been retained.
We have clearly thought about how these powers should be used. I reassure the House that the provision is for that purpose alone. I note what my noble friend has said, but I am very happy to be able to lay that matter to rest. That is not the Government's intent. I recognise the anxieties there would be about that if it were.
Baroness Harris of Richmond: My Lords, I thank the Minister for her very full reply. I shall read carefully her comments in Hansard. We are most concerned about the routine exercise of power. I shall look carefully to see whether we should bring these issues back at Third Reading. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Taking non-intimate samples without consent]:
[Amendments Nos. 13 and 14 not moved. ]
Lord Dholakia Lord Dholakia moved Amendment No. 15:
After Clause 9, insert the following new clause—
"DESTRUCTION OF FINGERPRINTS AND SAMPLES

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

322

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

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

The noble Lord said: My Lords, we raised this matter in Committee and I do so again. The amendment relates to the further extension of circumstances in which the police may take non-intimate samples from a person in police detention. That includes taking such samples from a person arrested for a recordable offence. Such samples can be taken without the consent of the individual, only requiring the authorisation of an inspector. The new power is available whether or not the sample is required for the investigation of an offence and where the person is suspected of being involved.
One of the powers being given to the police is that DNA profiles extracted from an arrested person will be added to the DNA database and checked for matches with DNA taken from other scenes of crime. At the heart of the debate is the argument advanced by Justice about whether it is appropriate or necessary in a democratic society to obtain and retain information from innocent people. If the database is not considered appropriate, there is no logic in allowing the police to retain such samples of profiles.
The public are always very happy to co-operate in cases where DNA is sought from a large number of people to assist in solving a heinous crime. However, if it is generally known that people who are not proceeded against or are found to be innocent in court might have samples retained, it might be difficult to obtain the public's co-operation.
I also draw the Minister's attention, as I did in Committee, to the report of the Joint Committee on Human Rights on whether such information will be available to foreign investigators and intelligence agencies; the propriety of passing such information; and the damage it could cause to individuals.
We do not oppose samples being taken to determine whether or not a charge should be made. That is in the interests of the individual if he or she is innocent. We object to the proposal that this should be routine or on a continuous basis, irrespective of a charge being levelled. The whole question relates to infringing the rights and liberties of the individual. We believe it is for the court to determine in each case whether the sample or profile should be retained. These matters are for public debate and should not necessarily be pushed through as part of the Criminal Justice Bill. When liberties are affected we believe that we should strongly object. I beg to move.
6.45 p.m.
Baroness Anelay of St Johns: My Lords, as my name is attached to the amendment, I rise briefly to support it. I made it clear when we debated these matters in Committee that if the Government could not accept the compromise that I offered at that stage— they did not and I was defeated on a vote— that I would put my full support behind this amendment, which I do today.
Baroness Scotland of Asthal: My Lords, during our previous debate on this amendment, I said how important it is 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 future miscarriage of justice.
Retention of fingerprints and DNA samples, as the noble Baroness will know, can be used to establish innocence as well as guilt, and in enabling the swift elimination of innocent people from investigations with the minimum of inconvenience. I know that that is something which the noble Lord, Lord Dholakia, would welcome and would wish to see happen.
The police are already able to retain other information gathered as part of an investigation, such as witness statements and photographs. Samples and fingerprints are really no different from those pieces of information.
Furthermore, if the fingerprints and DNA samples are retained, they will be available to the police in the event of that person committing an offence in the future. I repeat: law-abiding citizens have absolutely nothing to fear from their fingerprints or DNA being retained, as they may be used only for the prevention or detection of crime.
The Lord Bishop of Worcester: My Lords, I am grateful to the Minister for giving way. I want to ask her whether the Bill divides humankind into three— the guilty who have been convicted of offences, the not guilty, and the probably dodgy. I do not wish to be probably dodgy, and I do not really wish to live in a society in which a substantial body of its citizenry have been marked in some database as being probably dodgy. Whatever the noble Baroness has. so graciously and persuasively said in argument, I think that is actually the incremental effect of the Bill.
Baroness Scotland of Asthal: My Lords, with the greatest respect, I disagree with the right reverend Prelate the Bishop of Worcester. There are not three categories of people— the guilty, the not guilty and the probably dodgy.
All we seek to do is to enable the system to make proper and judicious decisions in identifying those who have committed crimes. I wish that the world was not as it is. but we must: deal with it as it is. In reality, we must look at those who are arrested and have committed offences, and those who have repeated such offences. We live in an increasingly sophisticated world, where those who wish to avoid justice become increasingly skilled at doing so. It is therefore incumbent upon those of us who seek to redress the balance and to make the world fairer and more just to say that there is only one type of person, that we will treat everyone the same, and that we will use every available tool to differentiate the sheep from the goats. We know that others will do the same on a certain day that we will all have to meet in due course.
324
We seek to make a difference and to give those entrusted with the justice system the tools to make decisions clearly. I emphasise that the provision is not simply for those we wish to convict. DNA development has allowed us to release people wrongly imprisoned and sentenced as a result of a miscarriage of justice because our data in the past were flawed. There is a benefit but also a burden. It is a tool that can enable us to convict the guilty and to release the innocent. If the bottom line is to ask, "Is that a tool that I wish to throw away?", I say openly that it is not. It is a tool that can be used for justice, as a sword to pierce the guilty and, it is to be hoped, to shield those who are innocent.
Without detracting from everything that we have said, I understand the anxieties on the issue, but, with respect, I do not agree with them. Noble Lords expressed concern about sharing the protection of information on the National DNA Database. Those concerns were echoed in correspondence that we received from various parties, including Justice. Noble Lords mentioned, in particular, concerns about data protection and what some regard as the lack of clarity on the accountability of the owners and custodians of the National DNA Database. Concerns were also expressed about privacy protection where information may be made available to foreign investigators. The noble Lord, Lord Dholakia, touched on all those issues. I hope that I was able to reassure noble Lords on the latter point during our previous debate.
Access to personal data held by the custodian on the National DNA Database is restricted to persons authorised to have access by the custodian and the data subject, or their representative, as required by the Data Protection Act 1998. Persons are authorised to have access only to carry out their work. The access controls are tiered to limit the level of access to that necessary for this. The access controls are documented and strictly enforced. Accountability for any breach of Article 8 of the ECHR would be according to where any breach occurred; for instance, it could be within the office of the custodian, the Forensic Science Service laboratories, other forensic suppliers or the police.
We have safeguards. The powers will be used judiciously and justly; they will not be abused. I ask noble Lords opposite to think carefully before depriving us of this opportunity to do justice, not just for those accused, but those wrongly convicted, too.
Lord Dholakia: My Lords, I am grateful to the Minister, but I remind noble Lords that we are talking about innocent people found not guilty in court and not proceeded with. The Minister says that law-abiding citizens have nothing to fear; I am afraid that they have everything to fear when their civil liberties are being eroded. If the Government genuinely want the measure, why not hold public debate and consultation on it? At that stage we would know what the public really wanted. The measure affects people's liberty, so it is about time we put a stop to it. I intend, therefore, to test the opinion of the House.
6.55 p.m.
On Question, Whether the said amendment (No. 15) shall be agreed to?
Their Lordships divided: Contents, 103; Not-Contents, 101.

Division No.2

CONTENTS

Ackner, L.

Mackie of Benshie, L.

Addington, L.

McNally, L.

Alton of Liverpool, L.

Maddock, B.

Anelay of St Johns, B.

Mancroft, L.

Ashcroft, L.

Mar and Kellie, E.

Astor of Hever, L.

Marlesford, L.

Avebury, L.

Michie of Gallanach, B.

Barker, B.

Miller of Chilthorne Domer, B.

Blatch, B.

Newby, L.

Bledisloe, V.

Newton of Braintree, L.

Brooke of Sutton Mandeville, L.

Noakes, B.

Brougham and Vaux, L.

Northesk, E.

Byford, B.

Northover, B.

Carlile of Berriew, L.

Oakeshott of Seagrove Bay, L.

Carnegy of Lour, B.

O'Cathain, B.

Colwyn, L.

Palmer, L.

Cope of Berkeley, L. [Teller]

Park of Monmouth, B.

Dahrendorf, L.

Peel, E.

Denham, L.

Phillips of Sudbury, L.

Dholakia, L.

Pilkington of Oxenford, L.

Dixon-Smith, L.

Razzall, L.

Elis-Thomas, L.

Redesdale, L.

Falkland, V.

Rennard, L.

Ferrers, E.

Roberts of Conwy, L.

Flather, B.

Roper, L.

Fookes, B.

Russell, E.

Saltoun of Abernethy, Ly.

Forsyth of Drumlean, L.

Sandwich, E.

Goodhart, L.

Scott of Needham Market, B.

Goschen, V.

Seccombe, B.

Gray of Contin, L.

Sharp of Guildford, B.

Harris of Richmond, B.[Teller]

Shutt of Greetland, L.

Higgins, L.

Skelmersdale, L.

Hodgson of Astley Abbotts, L.

Smith of Clifton, L.

Holme of Cheltenham, L.

Steel of Aikwood, L.

Hooper, B.

Stern, B.

Hooson, L.

Stewartby, L.

Howe, E.

Stoddart of Swindon, L.

Howe of Aberavon, L.

Taverne, L.

Howe of Idlicote, B.

Taylor of Warwick, L.

Hunt of Wirral, L.

Thomas of Gresford, L.

Hurd of Westwell, L.

Thomas of Gwydir, L.

Kennedy of The Shaws, B.

Thomas of Walliswood, B.

Kimball, L.

Tope, L.

Kingsland, L.

Trumpington, B.

Kirkham, L.

Wakeham, L.

Knight of Collingtree, B.

Wallace of Saltaire, L.

Lester of Herne Hill, L.

Walmsley, B.

Linklater of Butterstone, B.

Watson of Richmond, L.

Livsey of Talgarth, L.

Wedderburn of Charlton, L.

Lyell, L.

Williams of Crosby, B.

McColl of Dulwich, L.

Worcester, Bp.

NOT-CONTENTS

Acton, L.

Bassam of Brighton, L.

Ahmed, L.

Berkeley, L.

Alli, L.

Billingham, B.

Amos, B.(Lord President)

Blackstone, B.

Andrews, B.

Borrie, L.

Archer of Sandwell, L.

Brennan, L.

Bach, L.

Brett, L.

Barnett, L.

Brooke of Alverthorpe, L.

326

Brookeborough, V.

Hylton, L.

Brookman, L.

Irvine of Lairg, L.

Burlison, L.

King of West Bromwich, L

Campbell-Savours, L.

Kirkhill, L.

Carter, L.

Layard, L.

Christopher, L.

Lea of Crondall, L.

Clark of Windermere, L.

Lipsey, L.

Clarke of Hampstead, L.

Lockwood, B.

Clinton-Davis, L.

Lofthouse of Pontefract, L.

Corbett of Castle Vale, L.

McCarthy L.

Craig of Radley, L.

Macdonald of Tradeston, L.

Crawley, B.

McIntosh of Hudnall, B.

David, B.

MacKenzie of Culkein, L.

Davies of Coity, L.

Mackenzie of Framwellgate, L.

Davies of Oldham, L.[Teller]

Mallalieu, B.

Dixon, L.

Masham of Ilton, B.

Dormand of Easington, L.

Massey of Darwen, B.

Dubs, L.

Morgan of Huyton, B.

Evaas of Parkside, L.

Morris of Aberavon, L.

Evans of Temple Guiting, L.

Nicol, B.

Farrrigton of Ribbleton, B.

Pitkeathley, B.

Faulkner of Worcester, L.

Pitkeathley, B.

Filkin, L.

Plant of Highfield, L.

Gale, B.

Radice, L.

Gibson of Market Rasen, B.

Ramsay of Cartvale, B.

Goldsmith, L.

Sainsbury of Turville, L.

Gordon of Strathblane, L.

Scotland of Asthal.B.

Goudie, B.

Sheldon, L.

Gould of Potternewton, B.

Simon, V.

Graham of Edmonton, L.

Symons of Vernham Dean, B.

Grocott, L.[Teller]

Taylor of Blackburn, L.

Harrison, L.

Tomlinson, L.

Haskel, L.

Turnberg, L.

Hayman, B.

Turner of Camden, B.

Hilton of Eggardon, B.

Walpole, L.

Hogg of Cumbernauld, L.

Warner, L.

Hollis of Heigham, B.

Warwick of Undercliffe, B.

Howie of Troon, L.

Whitaker B.

Hoyle, L.

Whitty, L.

Hughes of Woodside, L.

Williams of Elvel, L.

Hunt of Chesterton, L.

Williamson of Horton, L.

Hunt of Kings Heath, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.5 p.m.
Clause 13 [Offences committed on bail]:
The Attorney-General (Lord Goldsmith)The Attorney-General (Lord Goldsmith) moved Amendment No. 16:
Page, 9 line 39, leave out from " not)" to end of line 40.
The noble and learned Lord said: My Lords, in moving this amendment, I will speak also to Amendments Nos. 18 and 22, and indicate the Government's position in relation to Amendment No. 19 to be moved by the noble Lord, Lord Thomas of Gresford.
We discussed in Committee the wording that appears in three clauses. It was intended to make clear that, when a court is satisfied that there is not such a risk as is identified in the clause— a significant risk of the commission of further offences, for example— it would not be under an obligation to grant bail irrespective of other considerations. As I said in Committee, if a court concluded that a defendant was not likely to abscond again but thought that there were

327
other reasons to refuse bail— a risk of interference, for example— it was sensible to provide for the court to retain the power to refuse bail.
The words caused some difficulties. In Committee, the noble Lord, Lord Thomas of Gresford, proposed some wording— the wording that now appears in his amendment. We have looked at the matter again and concluded that it is an unnecessary precaution. There is little danger that a court would be under a misapprehension about how it would approach such a matter— it would in any event recognise that, if there were other reasons for not granting bail it would take those into account. Given that the words in question caused confusion, we thought it better to omit them. That is what the three government amendments do.
The noble Lord, Lord Thomas, proposes keeping words in and substituting a different form of words— those that he proposed in Committee. Having considered the matter carefully, we believe that it is best to drop the phrase altogether. I hope that the noble Lord will consider that that meets his concerns. I beg to move.
Lord Thomas of Gresford: My Lords, for the reasons outlined by the noble and learned Lord, it is not necessary for me to press Amendment No. 19. I am happy that the words, which the Government concede are confusing, have been left out of this and other clauses. Accordingly, I need not pursue the matter that concerned me in Committee.
On Question, amendment agreed to.
Lord Thomas of Gresford Lord Thomas of Gresford had given notice of his intention to move Amendment No. 17:
Leave out Clause 13.
The noble Lord said: My Lords, I have considered at some length the views expressed by the noble and learned Lord the Attorney-General in Committee. It was his view that these provisions were consonant with the European Convention on Human Rights. I take a different view, but we are not going to settle this on the Floor of the House. The matter may well go to the courts and I shall leave it to them to adjudicate. I will not pursue the matter.
[Amendment No. 17 not moved. ]
Clause 14 [Absconding by persons released on bail]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 18:
Page 10, line 16, leave out from "custody" to end of line 17.
On Question, amendment agreed to.
[Amendment No. 19 not moved. ]
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 20:
Page 10, line 32, at end insert—
"( ) The application of sub-paragraph (1) above shall be at the discretion of the court where the defendant is suffering from a mental disorder within the meaning of section 2 of the Mental Health Act 1983 (c. 20) (admission for assessment).""
The noble Lord said: My Lords, sub-paragraphs (3) and (4) of new paragraph 6 of Part 1 of Schedule 1 to the 1976 Act limit the chances of bail being granted by, inter alia, stating that failure to give the defendant a record of the decision to grant him bail shall not constitute a valid excuse. A defendant who fails to comply with those conditions and who has a mental health condition could, as a result of the two sub-paragraphs, be denied bail. The amendment would make special provision for the granting of bail to those suffering from a mental disorder within the meaning in Section 2 of the Mental Health Act 1983.
The Government say that they have considered the special nature of those with mental conditions and concluded that provision is made for them in the Bill. In Committee, the noble and learned Lord the Attorney-General said that, if the person had a mental disorder,
"the court would be entitled to find, and would be likely to find, that that person had 'reasonable cause' for his failure to surrender. So the presumption against bail would not apply". — [Official Report, 7/7/03; col. 108.]
As I read sub-paragraph (3), the court is required to take into account whether a defendant has a "reasonable cause". That does not seem to apply to the remainder of sub-paragraphs (3) and (4). Such details are key, and it may be helpful if I read out the sub-paragraph:
"Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, he does not fall within this paragraph unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time".
The claim made by the Attorney-General that those with a reasonable cause will be excused does not appear to be entirely true, given the detail of the wording. Overall, a defendant with a mental health problem who may have had a reasonable cause for failure to surrender to custody is given special consideration, unless he also failed to turn up at a certain place and time. That is my reading of the Bill. The word "unless" largely cancels out what comes before. Similarly, sub-paragraph (4) lacks any consideration for those with mental health problems.
Amendment No. 20 would provide a failsafe for those of our fellow citizens who are unfortunate enough to suffer from mental health problems. It cannot be sensible, given the pressure on our prisons generally, to remand such persons in custody. I beg to move.
7.15 p.m.
Lord Goldsmith: My Lords, as I said in Committee, the Government take the point that it would be unjust if a defendant were remanded in custody because of the risk that he would not surrender, if he was not responsible for his actions. Clause 14 places particular significance on a failure to surrender to custody.
Despite what the noble Lord said, I stick to what I said then: if it is clear that the defendant has a disorder and that that disorder has led to his non-appearance, the court would be entitled to find— I anticipate that it would find— that he had reasonable cause for his

329
failure to surrender. That is the clause to which the noble Lord rightly drew attention. If it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, the paragraph does not apply.
I must make two points. First, the fact that the defendant suffers from a mental disorder will not necessarily of itself mean that his failure to attend is reasonable. I think that it was the noble Lord, Lord Renton, who made the point in Committee that mental disorder crossed a wide range. In those circumstances, the court would have to consider whether the condition was the reason for failure to attend. The noble Lord's amendment would not allow that. He may say that it does because the matter would be left to the discretion of the court. However, the amendment would not do what the Government believe is necessary, which is to focus on the failure to attend as a significant fact.
The noble Lord's second point was that what I said in Committee was not right because of the second part of the clause. The clause goes on to say that the paragraph will not apply if it appears to the court that the failure to surrender was reasonable but that it will apply if,
"it appears to the court that he failed to surrender … as soon as reasonably practicable after the appointed time".
Respectfully, I take issue with the noble Lord about that. If a court has reached the view that, because of a disorder, the failure to surrender to custody is reasonable, it will not go on to say that it is reasonably practicable for him to attend on the next occasion, if that condition still exists. In other words, the words "reasonably practicable" carry within them the concept of whether the failure to attend was reasonable because of the disorder. The flaw that, the noble Lord suggests, is to be found in what the Government say is not there. The other clause includes the concept of reasonableness as far as concerns practicability as well. The Government do not think that the amendment is necessary. There is a sufficient safeguard against the danger with which the amendment is concerned.
The noble Lord made a point about sub-paragraph (4). I regret to say that I did not entirely follow it. I am happy to deal with the point, if the noble Lord wishes to repeat it. I understood him to refer to sub-paragraph (4) of new paragraph 9AB, which, as I understand it, is to do with the giving of a copy of a record of the decision to grant bail. We had that debate in Committee. The question is simply whether a technical failure to provide a copy of the record is in itself a reasonable excuse for not attending. In certain circumstances, it will be a reasonable excuse if someone does not know that they are to attend, but if someone knows that they are to attend and has been told by the court, the clerk and their own lawyer, no one will accept it as a reasonable cause if they then say, "I didn't have a piece of paper".
330
I hope that I have understood the point. I suggest that we need not be concerned about it in the particular context that the noble Lord raised.
Lord Hodgson of Astley Abbotts: My Lords, I accept that there is a wide range of mental health conditions, not all of which would permit the person to escape from the provisions of the clause. It is not a complete let-off. As the noble and learned Lord kindly remarked, the amendment was drafted to give the court discretion in such cases.
I am grateful for the emphasis that the noble and learned Lord placed on the phrase "reasonably practicable" and for the explanation that he gave of the construction that is placed on those words. In the light of his comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Appeal by prosecution]:
[Amendment No. 21 not moved. ]
Clause 18 [Drug users: restriction on bail]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 22:
Page 14, line 46, leave out from "not)" to end of line 47.
On Question, amendment agreed to.
Baroness Walmsley Baroness Walmsley moved Amendment No. 23:
Leave out Clause 18.
The noble Baroness said: My Lords, I think that we can assume that the Government's purpose is not simply to extend the grounds for refusing bail— although clearly Clause 18 does that— but to encourage class A drug users to undergo treatment. We all recognise that a large proportion of property crime is attributable to misuse of class A drugs, such as heroin, cocaine and crack. We fully support the policy that underpins Clause 18; that is, to encourage drug misusers to undergo treatment. However, we want such treatment to lead these people out of crime and not into further crime by breaching an order.
We know that a large percentage of those who test positive for class A drugs do not comply with drug treatment orders, thus sending them back into court for re-sentencing. Therefore, it would be more fruitful to look at why that is, rather than to force more people into treatment on pain of failing to obtain bail. The House of Commons Home Affairs Select Committee expressed concern about the practicality of enforcing such conditions against drug misusers who consent to the bail conditions, but then fail to comply with the treatment.
In Committee, the Minister assured us that the provisions under Clause 18 will apply only in areas within which such treatment is available. Your Lordships may recall that we were informed that in one police area there is an eight-month waiting list for detainees willing to submit to such treatment. I continue to have concerns about that. The noble and learned Lord the Attorney-General promised to write to me about any improvement in the availability of

331
high-quality drug treatment. I do not believe that I have received such information. I therefore remain sceptical about the practicality of the provisions.
The problem is that there is little confidence among drug users in the efficacy of many of the treatments available. Only 7 per cent of those who tested positive in a pilot in north-east London agreed voluntarily to any form of referral for assessment or treatment. In view of the lack of confidence in the treatment, it is not right to make it a condition of bail that people subject themselves to it.
Secondly, according to Liberty, there are human rights issues here as well as practicalities. Your Lordships may recall that in Committee, the noble Lord, Lord Maginnis of Drumglass, reminded us of the human rights of the victim, whom drug addicts might mug, steal from and perhaps injure while seeking property to sell in order to buy drugs. But we do not do any favours to those potential victims if we flagrantly forget the human rights of those accused of such crimes.
According to Liberty, issues are raised under Article 5 of the Human Rights Act 1998; that is, the right to liberty and security of person. It does not fit into one of the permitted exemptions under Article 5.1.c, although detention of drug addicts is permitted under Article 5.l.e. We would dispute that that justification applies to a person detained pending trial. The Government's presumption seems to be that drug users commit offences, therefore anyone who refuses treatment would be likely to commit offences while on bail and, therefore, should be refused bail. But, every bail application should be considered on a case-by-case basis.
In Clause 18, the introduction of a presumption against bail places the burden of establishing an entitlement to bail on the detained person rather than on the state. That has been considered by the Law Commission in its publication, Bail and the Human Rights Act, which concluded that such a reverse burden could breach Article 5.3. Liberty also argues that Clause 18 may raise issues under Article 8 of the Convention on Human Rights— that is, the right to respect for privacy and family life. There will be an obligation on a person, who has not been convicted of any offence, to undertake drug treatment to avoid remand in custody.
I appreciate that the Government are concerned that there is a link between crime and drug use, which I accept, and that they are promoting drug rehabilitation. However, I do not accept that applying a sanction that will involve the loss of liberty is an acceptable way of promoting such a policy, particularly in view of the climate of availability and quality of drug treatment services in this country at present. I beg to move.
Lord Renton: My Lords, it would be impossible for the Government to accept the proposal that this clause should be omitted from the Bill. It is a rather long clause, with very important amendments to previous legislation. In passing, perhaps I may say that a very large proportion of the Bill consists of amending
332
legislation that has been passed before. I hope that one day there will be some consolidation of this Bill and all the previous legislation dealing with criminal justice. That is necessary for the achievement of justice. If our law is in a state of continuous cross-reference, with all the confusion that that can cause, it will be difficult for justice to be achieved. I have some sympathy with what the noble Baroness said in moving that Clause 18 be omitted, but, quite frankly, that would be chaotic.
7.30 p.m.
Lord Goldsmith: My Lords, the noble Baroness, Lady Walmsley, recognises that the Government have a concern about the link between offending and drug use. The Government do not just have a concern about it; they are absolutely confident that there is a very strong link between drug use and offending. I mention again what I mentioned in Committee: research demonstrates that the use of heroin or crack cocaine is associated with higher levels of offending than offending by non-drug users— nearly 10 times as much.
Anyone involved in law enforcement— for example, the police and others involved in the criminal justice system— is well aware that time and again people charged with offences have a drug problem. Furthermore, the drug problem often leads them to further crime in order to feed that habit. Therefore, sadly, there is every chance that many offenders, if released on bail, would do exactly that.
The Government propose that where an adult who has tested positive for a specified class A drug but has refused to have his dependency assessed— or, having been assessed, refuses to undergo relevant follow-up action— is charged with an imprisonable offence, that would have a very significant consequence for bail. It does not mandate that there would be no bail. New paragraph 6A, inserted by subsection (4) of the clause, makes it clear that the court should not grant bail,
"unless the court is satisfied that there is no significant risk of his committing an offence".
If there is no such significant risk of committing an offence, the fact of the drug dependency or the failure to undergo treatment will not count against the person for bail.
This is a very serious issue. The noble Baroness is right, too, to indicate that the Government do not want just to say that the consequence is that bail would be refused, but also to give encouragement to people to undertake testing and appropriate treatment. We would much rather see people who are suffering from drug abuse being helped to get rid of that abuse by helping themselves and helping society as a result.
So there is a benefit in the provision: it will divert drug-misusing defendants into assessment and the appropriate follow-up assistance. It is important to take the opportunity to encourage drug-using offenders into treatment where their drug use can be addressed. I would hope that all noble Lords agree that that is an important and proper objective.

333
I should like to deal with the two issues raised by the noble Baroness. First, I must apologise for the fact that she has not received the letter that I promised her on the last occasion. There is nothing to say other than that I am very sorry this has happened. Only today did I learn that she has not had it. Perhaps I may set out now what will be in the letter, which will be sent very shortly. In that way I can deal with the particular points raised in relation to the availability of treatment.
The noble Baroness generously recognised that, on the last occasion we discussed this, I had said that the provision can apply only in areas where the court has been notified that arrangements for conducting assessments and providing suitable follow-up have been made. Further, they must not have been withdrawn in the area in which the person would have been resident if granted bail. That is made clear on the face of the Bill. The provision will not be brought into force in a given area unless the relevant assessment and follow-up is available. It is likely to be piloted in selected court areas, which will enable us to see how it is working.
We recognise that more treatment capacity is needed. We have already reduced waiting times and increased the numbers in treatment. The target is to double the number of people in treatment by 2008 to 200,000 per year, which is over the 1998 baseline. Direct annual expenditure on drug treatment services, including within prisons, will rise from £ 503 million in the financial year 2003–04 to £ 573 million from April 2005. That includes mainstream spending, prison treatment and pooled budgets.
We also need to ensure that additional investment in drug treatment is translated into additional capacity at the local level. Capacity is being strengthened in the communities most affected by drug misuse, drawing drug misusers into treatment through frontline health services, community outreach and using every opportunity presented by the criminal justice system.
The National Treatment Agency is working with drug action teams to ensure that drug misusers in all areas have access to the full range of treatment. We are also working to further reduce waiting times for treatment. The National Treatment Agency's programme to reduce waiting times is yielding significant improvements in access to services across the country. Waiting times for drug treatment services are being reduced in line with NTA targets. The average waiting time is currently 4.2 weeks for in-patient detoxification services and 4.5 weeks for residential rehabilitation services.
The NTA is also undertaking significant work to plug gaps around the country, thus ensuring that everyone, irrespective of their route of referral, has access to treatment where required, and that the treatment is available quickly and consistently. I can also say to noble Lords that Ministers at the highest level in the Government are concerned to ensure that we are in a position to provide the treatment that the noble Baroness rightly says should be made available as widely as possible around the country.
334
With my apology for not having given the noble Baroness that information before, I hope that at the least it provides some reassurance that the Government are serious about this matter. Perhaps I may repeat that these provisions will not apply except in areas where the treatment and assessment services are available.
I turn now to the human rights issues, which comprise the second point made by the noble Baroness. I am aware of the two points raised by Liberty. I do not accept them. First, I address the proposition that the clause does not fit into one of the permitted exceptions under Article 5(1)(c) of the ECHR. The exception under Article 5 to which this does relate is that which refers to detention considered reasonably necessary to prevent a person committing an offence. We have in fact amended this approach in line with the report of the Law Commission, to which the noble Baroness referred, in order to make it clear that it focuses on the likelihood of further offences being committed, which is a permitted exception. The issue is not simply the fact of drug use; it is the fact of drug use which leads to further offences being likely. That is why there is the exception to which I drew attention before.
So, there being a link between drug addiction and re-offending, which I suggest that all those involved in the criminal justice system and noble Lords in this House would accept without hesitation, we can focus on the perfectly proper exception: whether further offences are likely to be committed.
The other point raised by Liberty relates to Article 8 of the convention, covering the right to private and family life. I understand that that is in the context of a defendant being required to undergo a drug test to obtain bail. As noble Lords will know, Article 8 is one of those which is subject to limitations. Put broadly, those limitations are appropriate in a democratic society for the protection of the rights of others or other perfectly proper purposes. I have no doubt that the requirement that a person should submit to a drug test in order to be in a certain position so far as bail is concerned is a proper requirement, justified under Article 8.2.
Perhaps I may repeat what I said in Committee: these provisions are justified by the need to balance the protections of society against the risk of re-offending, with appropriate incentives for treatment for those who can benefit from it. While I understand the points that have been made, I remain of the view that Clause 18 is extremely important both for the public and drug users. Further, I respectfully agree with the observation made by the noble Lord, Lord Renton, that removing this clause would lead to considerable difficulties in any event.
I also take the noble Lord's point about justice requiring clarity in legislation. Of course he is right to point out that many of the provisions in this Bill involve amendment to previous Acts. It has been something of a trend for successive administrations to seek to amend criminal justice legislation in order to achieve better justice and better protection for our citizens. However, I take his point about the complexities. Of course I can

335
give absolutely no undertaking as regards finding time to introduce a consolidation Bill, but his point has been noted.
Baroness Walmsley: My Lords, I thank the noble and learned Lord the Attorney-General for his response. Perhaps I may reassure him that we agree with the Government in accepting that there is a very strong link between acquisitive crime and class A drug use— there is absolutely no difference between us on that point. Further, there is very little difference between us on the matter of the need to make available plenty of high-quality drug treatment services, and I am most grateful to the noble and learned Lord for outlining the improvements in that area. I hope that he will not blame me for continuing to put pressure on the Government on these matters. I do so because I know that we both share the same objective.
Turning to the points made on the human rights issues, if I were someone in danger of losing my liberty, even if I did not have much confidence in the drug treatment being offered to me, I would accept it. I would then be in danger of failing, being in breach of the order and then coming back to face another criminal offence. That is the matter which concerns us. However, I shall discuss again with Liberty the technicalities of the issues raised tonight by the noble and learned Lord. I thank him for his explanations. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that the Report stage begin again not before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Breast Cancer and Abortion
7.40 p.m.
Lord Alton of Liverpool Lord Alton of Liverpool rose to ask Her Majesty's Government what evidence links breast cancer with abortion; and what measures they are taking to alert women to any risks involved.
The noble Lord said: My Lords, as your Lordships will be aware, October is breast cancer awareness month. This is therefore a timely debate and I am grateful for the opportunity to ask this Unstarred Question today.
Breast cancer is the most common cancer in the United Kingdom and affects some 41,000 women every year. It claimed 13,000 lives in 2001, making it the second most common cause of cancer death in women after lung cancer. As the honorary chairman of the Forget Me Not Appeal for Liverpool's Royal Teaching Hospital, I am glad to report that our appeal raised £ 4 million for cancer treatment facilities, including the Linda McCartney Centre for Breast Cancer, which I invited Cherie Booth QC to open.
Throughout the country substantial progress has been made in detection and improved treatment of breast cancer. I hope that what I say today will further help to reduce the incidence of breast cancer among women.
I have never made any secret of my position on abortion. I have always believed in the right to life of the unborn. I do not believe that many of those who supported the Abortion Act 1967 ever anticipated that it would lead to some 6 million legal abortions or to the one in five pregnancies that now end in an abortion. I have also argued that being pro-life is not about choosing between a woman and a child. It should surely be about caring for both and affirming life and human dignity at every stage of life from conception to natural death.
So the issue is not whether you are for or against abortion; it is about its possible consequences. My remarks rely entirely on published studies, evolving medical knowledge, judicial settlements and freedom of information.
For some time now, I have been studying the effects of abortion on women and the evidence linking induced abortion to breast cancer. I find the evidence quite compelling, and it is that evidence that I lay before your Lordships' House today.
Twenty-eight out of the 37 independent studies that have been carried out world-wide have linked induced abortion with breast cancer. Thirteen out of 15 studies conducted on American women report increased risk. Seventeen studies are statistically significant, 16 of which found increased risk.
In 1996, Professor Joel Brind of Baruch College in New York and his colleagues at Pennsylvania State Medical College conducted a review and meta-analysis of the studies. It is important to note that half of the Brind team were abortion law supporters. That study found an overall 30 per cent elevated risk among women choosing abortion after their first full-term pregnancy, and a 50 per cent elevated risk among women choosing abortion before their first lull-term pregnancy.
It is thought that there are two ways in which abortion may cause breast cancer. First, an induced abortion causes biological changes to occur in a woman's breasts which make her more susceptible to breast cancer. During pregnancy, a hormone called estradiol, a type of oestrogen, causes both the normal and pre-cancerous cells in the breast significantly to multiply. By seven to eight weeks gestation, the estradiol level has increased by 500 per cent over what it was at the time of conception.
If the pregnancy is aborted, the woman is left with more undifferentiated— and therefore cancer vulnerable— cells than she had before she was pregnant. On the other hand, a full-term pregnancy leaves a woman with more milk-producing differentiated cells, which means that she has fewer cancer-vulnerable cells in her breasts than she had before the pregnancy.
A second way in which it is claimed that induced abortion can cause breast cancer is through delayed first full-term pregnancy. One of the most common ways in which women delay their first full-term pregnancy is of course by abortion.
In February 2000, the New England Journal of Medicine, possibly the world's most influential medical journal, acknowledged evidence of the link between induced abortion and breast cancer in an article written by researchers at the University of Pennsylvania School of Medicine. By contrast, the major studies cited as undermining any link, such as the Lindefors-Harris and others study of 1989 and the Melbye and others study of 1997, are seriously flawed by misclassification and methodological errors.
Over the past six years I have had meetings with Ministers and with the Royal College of Obstetricians and Gynaecologists and I have corresponded with the department. For more than two years now my colleagues and I have been told that Cancer Research UK is looking at this issue and will be producing a report. That report has yet to see the light of day.
In the RCOG's 2000 guidelines on the Care of Women Requesting Induced Abortion and in a recent Written Answer in another place, the RCOG and the Government maintain that evidence of a link between induced abortion and breast cancer is "inconclusive". Yet the RCOG has also acknowledged that the meta-analysis by Professor Brind,
"had no major methodological shortcomings and could not be disregarded".
It is impossible to reconcile the RCOG's two statements and I hope that the Minister will be able to clarify that issue today.
The recent scare with HRT supports the argument for a link between induced abortion and breast cancer. HRT and induced abortion share one thing in common— they raise oestrogen levels. A low fat diet and avoidance of alcohol also reduce a woman's exposure to the hormone oestrogen, which is the key trigger for breast cancer.
Women have a right to know about every possible risk factor for breast cancer, so why the silence on what appears to be a significant risk factor for breast cancer— induced abortion?
If the Government do not place sufficient weight on the mounting evidence of a link between induced abortion and breast cancer, there will be class-action law suits similar to those we are witnessing against the tobacco industry. Years of denial and complacency could lead to claims for billions of pounds in compensation.
In the United States, two more states, Minnesota and Texas, have just passed informed consent statutes requiring abortion clinics to warn potential clients about the link between induced abortion and breast cancer. The world's first known abortion-breast cancer settlement was reported in Australia 2001 because a young woman had been denied information about the possible link. Here at Westminster last year I met the lawyers who acted in that case.
Yesterday, in Washington DC, at the American Senate, I was briefed on the case of a 22 year-old woman from Philadelphia who had an abortion when she was aged 17. Last week she became the first person in the United States successfully to settle a medical malpractice case based on a claim for the failure of her doctor and the abortion clinic to inform her of the increased risk of breast cancer due to abortion.
I also spoke two days ago to Norma McCorvey, who used the pseudonym Jane Roe in the Supreme Court case Roe v Wade in 1973. She is now a leading opponent of abortion, not least because of its effect on women's health.
Today I urge the Government to do two things. First, the Department of Health should, as a matter of urgency, review and publish all the research. Secondly, the Government should press the Cancer Research UK working party to publish its report or at least its interim findings.
Obviously not all women who have breast cancer have had abortions, and no one should imply that. Similarly, not all women who have had abortions will get breast cancer. However, induced abortion causes women to change their childbearing patterns, which in turn leads them to forgo the protective effects of an early first full-term pregnancy. Young girls and women who abort before they have had a child— that is, the majority of abortion patients in the United Kingdom— are at most danger.
The independent evidence linking induced abortion with breast cancer should be— and I am sure will be— of concern to every Member of your Lordships' House. Whatever our views on abortion may be, we should surely all oppose the suppression of evidence and debate. We should all be in favour of freedom of information and empirical research. The Abortion Act 1967 gives women the right to choose, but women also deserve the right to know.
Baroness Hayman: My Lords, before the noble Lord sits down, I should be grateful if he would give me the opportunity, as chair of Cancer Research UK, to assure him that there will be no need for the Department of Health to press for publication of the results. This is a major international study designed to find exactly the evidence and conclusions that the noble Lord seeks. It will be peer reviewed appropriately and then— and only then because it is an important subject for women— it will be made available in the same way as all our research.
Lord Alton of Liverpool: My Lords, I am extremely grateful to the noble Baroness. I am glad that we are fighting on the same side in this particular battle.
7.50 p.m.
Baroness Gould of Potternewton: My Lords, I must, first, declare an interest as chair of the all-party choice group and chair of the Independent Advisory Group on Sexual Health and HIV.
The Motion put down by the noble Lord, Lord Alton, on the link between abortion and breast cancer is one that, as he himself said, he has raised on

339
a number of occasions, having spent some time examining the issues. He is perfectly entitled to do so, but my concern is that what he is doing has the potential to cause a great deal of unnecessary anxiety among women.
The noble Lord said that this was not a debate for or against abortion, but there appears to be a concerted campaign by LIFE as part of its continuing action to remove a woman's right to choose. Professor Jack Scarisbrick, LIFE's national chairman, said on 23rd June this year:
"Political correctness means that the 'sacred cow' or abortion can never be blamed in any circumstances".
Such a statement criticises the many men and women who supported the 1967 Act, which eliminated real tragedies that killed women and maimed many of them for life. I certainly do not wish to go back to the days before the 1967 Act. I have great respect for the noble Lord's views, but I disagree with him fundamentally. I believe that the 1967 Act, to use its own words, cares for life— it cares for those women's lives.
It is true, as the noble Lord said, that there has been an increase in breast cancer since the 1980s, but much of that increase has occurred in women between the ages of 50 and 64 who have been invited to have breast cancer screening for the first time. As the noble Lord also said, many factors increase the number of women diagnosed with breast cancer. Breast cancer risk is strongly related to age, with more than 80 per cent of cases occurring in women over 50. The risk of breast cancer for current users of HRT is 66 per cent higher than for never-users. Being overweight and obese increases the risk of post-menopausal breast cancer. Other risks identified are women's reproductive history, excessive alcohol intake, and only today we heard on the news that there was a risk of breast cancer from a high fat diet. Last Sunday's Observer highlighted the fact that girls whose periods began at 11 are 50 per cent more likely to develop breast cancer than girls who began their periods at the age of 15. All these factors have to be considered.
A substantial proportion of breast cancer cases can be explained by factors which influence exposure to oestrogen, and hormonal factors. During any pregnancy, hormone levels are high and this results in a short-term increase in breast cancer risk for the years following a full pregnancy, after which there can be a long-term decrease in risk. Therefore, pregnancy itself can create risk.
Research in respect of any of these factors is crucial, but it is also crucial that that research is credible and not influenced by the views of those carrying it out. For instance, one piece of research evidence that I read was by someone called Patrick Carroll. The research document did not say that LIFE had funded that piece of research. It is terribly important that the people asking for research to be carried out are identified.
Because I am very biased on the question of abortion, I intend to rely not on evidence from pro-choice groups, which I could have done, but on the impartial views of health professionals. It is essential that any woman considering an abortion must have
340
the facts accurately presented, including all the possible alternatives, so that she can give genuinely informed consent.
As the noble Lord said, in March 2000, the Royal College issued evidence-based guidelines on the care of women requesting an abortion. That included the question of the association between breast cancer risk and abortion. After considering the Brind evidence that the noble Lord referred to, the Royal College specifically reassured women who have had an abortion or who have breast cancer that the research evidence on this question is to date inconclusive. Indeed, it identified that studies based on the linkage of national registers on induced abortion and breast cancer, which are less open to bias than case control studies that rely on the recall of subjects, have not shown any significant association.
In December 2001, Professor Allan Templeton of the Royal College said:
"Life are mischief making, we reiterate our advice to women that no causal link between abortion and breast cancer has been proven"
Early studies by an American cancer organisation showed variable results, and these have been used as evidence in many instances. But many of those studies were flawed in a number of ways that led to unreliable results. Small numbers of women were involved, no medical records were used and data were collected only after breast cancer had been diagnosed. The organisation has since conducted better designed studies, using larger numbers of women and consulting medical records. These studies consistently showed that there is no association between induced and spontaneous abortions and breast cancer risk.
In February this year, the National Cancer Institute in the United States brought together 100 of the world's leading experts who study pregnancy and breast cancer risk. Their conclusions were clear: having an abortion or miscarriage does not increase a woman's subsequent risk of developing breast cancer.
Cancer Research UK, in its briefing for this debate, identifies many of the differences in studies between case-controlled studies and cohort studies. It found that three out of four case studies showed that there was no significant increase in risk and that the cohort studies showed no link. I appreciate that that work is ongoing and I hope, as the noble Lord does, that we will soon be able to have the findings. We may well be satisfied about different conclusions, because I am fairly certain that, from the evidence so far, the conclusions will not be what the noble Lord is looking for.
In conclusion, the weight of unbiased scientific evidence indicates that induced abortion does not influence a woman's likelihood of developing breast cancer. The efforts of anti-abortionists to scare women away from exercising their legal right to choose abortion is not based on any causal relationship.
I repeat the words of Professor Allan Templeton of the Royal College in reassuring women who might be worried about these tactics that the research evidence on the question to date is inconclusive.
7.57 p.m.
Baroness Knight of Collingtree: My Lords, I am bound to say that I think the noble Baroness was a little unfair to the noble Lord, Lord Alton. He did not, in any part of his speech that I heard, indicate that he wished to inhibit a woman's right to choose, as the noble Baroness said he did. I do not like abortion either, but both the noble Lord, Lord Alton, and I are democrats; we recognise that when a law is passed, it is a law, and that is what happened. I do not think that the noble Lord was asking this House, this country, or all our women to go back to a point when abortion was illegal.
I think the House is indebted to the noble Lord for bringing these factors to our attention. I am sure that others were as shocked as I was to hear some of the things he said. For instance, it is 50 per cent more likely, say some researchers— only some, of course— that women who have had an abortion will develop breast cancer. Surely that must be taken seriously. If the woman has a family history of breast cancer, the risk of her contracting it rises to 80 per cent after an abortion. Of course there will be some who seek to deny that there is any truth in these revelations. I am so sorry that the noble Baroness, Lady Gould, is leaving the Chamber. Actually, I see she is taking her place on the Woolsack, and I am grateful to her for remaining with us.
I do not think it is reprehensible for any group to fund research. What is wrong with that? Surely we are broad-minded enough to say that anyone can fund research and then we will listen to what everybody who funds research has to say. I read all the information that we have been given so far. China, for instance, strongly denies that there is any link between abortion and breast cancer. Well, I am not surprised at that, given that the Chinese government make abortion not something that a woman can choose but something that is absolutely compulsory. We have all been horrified by the rights of women in China being ignored in that way. They would have looked pretty silly if they had said that there was a link with breast cancer when they themselves are imposing it on women.
Those who seek to deny that there is any truth at all in these revelations remind me of the fact that, for years and years, people who did not want to believe it pooh-poohed the research that showed that smoking caused cancer. "Rubbish!" they said, and smoked their way to an early grave— not all of them, of course, but many did. Eventually it was recognised that they must at least be warned. They have the choice: they can choose to carry on smoking, but at least they are warned that there is a danger attached to it. However, it has taken years and years to get to that point.
There can be no shadow of a doubt that it is now made supremely easy for young girls to get abortions, and many people believe that that is a very good thing. I read somewhere recently that Britain is the abortion capital of the world. We are now told by researchers that the cancer risk they run is "incalculable"— that was the word used— if they had a history in their family
342
of breast cancer and had an abortion before the age of 18 That is not something that one can easily just argue away. At least, let us consider it, and of course let us look at whatever other research is carried out on the issue.
The researcher that came up with that fact studied 12 women, all of whom were diagnosed with breast cancer by the time they were 45. Surely, even those who reject such findings should acknowledge that, at the very least, the girl presenting for an abortion should be warned. That is all that the noble Lord, Lord Alton, is asking for She should be asked at least about her family history. Even if there is only a tiny amount of suspicion that there is a danger, surely it does not do any harm at least to ask her whether she has any such history in her family.
Abortion is championed by many to be no more significant or dangerous than having a tooth out. I believe that people who say that are wrong. Just as some smokers do not get cancer, some women who have a termination of pregnancy will not get it either. But the danger is there, and women deserve to be told about it. I have been concerned for many years that women who have severe psychological problems after abortion have never been warned about the risk. Not all of them suffer in that way, of course; a tough woman will not be bothered particularly, but a sensitive woman often is. That worries me, too, because those are the women who suffer— particularly if they do not conceive afterwards.
There is no packet on which we can print a warning, but we owe it to those women to ensure that every abortion clinic and every hospital carrying out the operation must look at the facts— all the facts. If they find significance in those facts, they must be open and honest with their patients and give them information about what a termination might bring in its wake.
8.3 p.m.
Baroness Massey of Darwen: My Lords, I am pleased that the noble Lord, Lord Alton, has raised an issue related to women's health I shall take the question at its face value, as it relates to the welfare of women. I shall not get in to the ethics or morality of the abortion issue. It is sad that sometimes women's health issues are used to fuel controversy about contraception, abortion and even hormone replacement therapy.
On Monday of this week, there was a debate in your Lordships' House, which I took part in, about inequalities in health, particularly in the North West of England. There are significant differences in the quality of health in different parts of the UK, let alone the world. Where general health is poor due to diet, lack of exercise, smoking and drinking, underpinned by poor socio-economic conditions, then specific health conditions are likely to be poor, too. In the North West, coronary heart disease, strokes, respiratory diseases and life expectancy rates are worse than in the rest of the country. So are the rates for breast cancer. Hereditary factors, referred to by noble Lords, and socio-economic factors, are by far the greatest determinants in poor health, together with

343
genetic factors, which must not be forgotten. I suggest that the inequalities are what governments should concentrate on.
There has been much debate on the causes of cancer. Some seem indisputable, in association with the socio-economic factors to which I have just referred. Smoking is the cause of much ill health, as well as cancer. We all know the stories of people of 90 who have smoked 40 cigarettes all their lives and are fit and well. Here genetic factors are clearly strong; but by and large, the link between lung cancer and smoking seems irrefutable.
That is not so with breast cancer. We can all be selective about evidence, but I have read a considerable number of reports in connection with this debate. The noble Baroness, Lady Gould, referred to some of those reports. The Royal College of Obstetricians and Gynaecologists and the US National Cancer Institute have evaluated studies and published evidence-based guidelines. The American study tells us that,
"induced abortion is not associated with an increase in breast cancer risk".
I now turn to the national evidence based clinical guidelines for induced abortions, which tell us that the vast majority of induced abortions— more than 98 per cent— take place because the pregnancy threatens the mental or physical health of the woman or her children. These are not mainly young girls. The guidelines go on to offer very specific guidance for clinicians which state that,
"verbal advice must be supported by accurate, impartial information which the woman considering an abortion can understand and may take away and read before the procedure … Professionals providing abortion services should possess accurate knowledge about possible complications and sequelae of abortion. This will permit them to provide women with the information they need in order to give genuinely informed consent".
The only advice that could be given in relation to the link with breast cancer at the moment in that it is not proven.
Women need information to make health choices; so do men. But women choose abortion because they see it as the only option in their current difficult situation.
Discussions about the link between breast cancer and anything that affects hormonal balance are not new. Women who choose to delay their first pregnancy beyond the age of 30 for very good reasons appear to have a greater risk of developing breast cancer. Women who choose not to breast feed also appear to increase their risks. I have read that breast cancer rates in nuns are very high due to their not having pregnancies and not breast feeding, whereas their cervical cancer rates are low due to lack of sexual activity. I have also read about possible links between breast cancer, alcohol consumption and certain foods. It is all very complex and very speculative.
But now let me move on to women's health choices. Let us suppose— I repeat "suppose"— that there were a link between breast cancer and abortion, and let us make an analogy with the link between breast cancer
344
and hormone replacement therapy — a link much better established so far as I know. Should women be denied a choice? I have had friends who were so devastated by menopausal symptoms that they were suicidal from lack of sleep due to night sweats, from hair falling out and hot flushes. Some women have horrendous reactions to the menopause, some do not. The friends I know who have been made miserable would have done anything to relieve those symptoms. They took hormone replacement therapy. That was their choice even though they may have known of potential risks.
The contraceptive pill has been associated with risk yet many women, for one reason or another, do not want a pregnancy. They are prepared to weigh up the risks and benefits. Professionals can give information only to help them make choices.
As I said earlier, women who make the choice of abortion do not make it lightly. I repeat that in 98 per cent of cases abortion is chosen because of a threat to the physical or mental health of the woman or her family. They have this right to choose even if there is risk involved. We all take risks every day. We drive, we cross roads and we perform tasks in the home or garden which may lead to accidents. We choose to take those risks.
We all know the risks of unsafe abortion. In the developing world it is the risks of maternally related mortality and morbidity as the result of poorly spaced pregnancies and complications from unsafe abortions— nearly half— that are major health concerns. I have worked in the former Soviet Union where at one time women had few reproductive health choices. The deaths were not from cancer.
Abortion is a women's health issue. A woman's reproductive health is what is best for her after being given all the information and weighing up evidence, risks and benefits. Let us be quite clear that women are generally very concerned about their health and that of their families. They do not take decisions lightly They are entitled to choice.
8.10 p.m.
Baroness Billingham: My Lords, the topic before us tonight is,
"To ask Her Majesty's Government what evidence links breast cancer with abortion, and what measures they are taking to alert women to any risks involved".
I have two answers to the proposition posed by the noble Lord, Lord Alton. The first is a very brief one. So far as the first part of the Question is concerned, I hope that the Government will do nothing until they have reliable and accredited information which they should then pass on to women in order to inform them of the risks. It is entirely irresponsible to alert women to risks unless there is proper accreditation.
So far the research to which the noble Lord, Lord Alton, alluded has no credibility whatever. The research upon which he depends is so flimsy as to be damaging. I take a sad view of this debate tonight. The noble Lord, Lord Alton, is flying a very dangerous and damaging kite.

345
The noble Lord, Lord Alton, has rightly been honest and open about abortion tonight. It has been his main interest for many, many years. I was going to use the word "obsession" but I shall not do so; it is an interest. Let us pluck out of the air the most frightening of abortion outcomes for women. That would probably be breast cancer. Why those two matters should be linked in this debate is self-evident: in linking the two matters we could be regarded as validating that link. That in itself is incredibly damaging and frightening.
Let us consider the two categories that we are debating. Speakers have already said quite rightly and properly that women do not undertake abortion lightly. A termination is a very big decision. It is often taken for purely medical reasons, sometimes for social reasons or a combination of the two. To put into the minds of such women the concept that termination could put their lives at risk at a later stage is a matter that ought to be looked at very critically indeed. It is grossly unfair to put such pressure on a woman who is making such a fundamentally important decision in her life.
Let us also look at the woman who has had a termination and might pick up a tabloid paper tomorrow. One of my fears is that, by having this debate, we could see the sort of tabloid headlines that we have all seen before. We have seen scares about HRT— in many ways, that is an ongoing debate— and many other such headlines. I saw one recently that said that having a scan and early diagnosis was in some way unnecessary and unhelpful.
I speak with some authority on the subject. I can tell the House that any woman who has had breast cancer becomes an immediate expert. Every part of her brain is on the lookout for any further information. Any such headlines that come into the public domain as a result of the debate would be appalling. I can only hope that other matters going on in this House today will make sure that that does not happen. We do not want publicity to be given to the issue, because it is not founded on fact or sound research. We have already heard about pregnancy, oestrogen and hormones. All that is known to us. We know that oestrogen is a factor not over weeks, but over a different period of time. We accept the problem. Certain scientific evidence is acceptable.
Suddenly putting the two factors— breast cancer and abortion— together is done for a very cynical reason. It is done to act as a stimulant to the case of the noble Lord, Lord Alton. It is not a way in which he should manipulate women's rightful fears. I very much hope that the debate gets very scant recognition. I certainly hope that no women— young or old— who have been or will be involved with termination and breast cancer will be unnecessarily alarmed by the half-baked research that he attributes and quotes and on which he seems reliant. It is very dangerous, damaging and cynical.
8.16 p.m.
Baroness Thomas of Walliswood: My Lords, the noble Lord, Lord Alton, has directed our attention to
346
an interesting and, as it turns out, highly controversial subject. I share his concern about the level of breast cancer— I do not think that any woman could fail to do so— but three points seem clear from the briefs provided to me by the Library. First, some people genuinely thought in the past that there might be a causal connection between early abortion and breast cancer later in life. Secondly, the weight of the most recent, largest and most academically careful research projects, such as the Danish study, now suggests that there is no proven link. Thirdly, some people have used the research to boost their message that abortion is dangerous as well as morally wrong, a matter with which the noble Baroness has just dealt.
I want to say straightaway that I have supported access to induced abortion on the NHS for many years. Indeed, years ago I played a part in determining my own party's policy in the area. On the other hand, I am shocked to learn that, every year in England and Wales, 180,000 women seek that way out of their difficulties and problems. I hope that the Minister will agree that it is very important for schools to provide effective and serious sex and personal-relationship education, starting in primary and continuing into secondary education with teaching to suit the age group. Both boys and girls— I repeat, boys and girls— need to learn how to understand and manage their developing bodies and emotions in ways which minimise both the risk of pregnancy and disease and fear of the unknown.
I shall return to the subject of the debate. Of course we know that there is protection against breast cancer associated with early child-bearing and breast-feeding. That is relatively well-established now, but the opposite— a causal connection between early abortion and additional risk of cancer later in life— is not proven.
Like the noble Baroness, Lady Gould, I was particularly interested to read the national evidence-based clinical guidelines on the care of women requesting induced abortion, which were published three years ago. The authors of those guidelines explain that their most robust recommendations must be supported by,
"at least one randomised controlled trial as part of a body of literature of overall good quality and consistency addressing the specific recommendation".
The evidence has to be well done and relevant. Clearly, the available research did not provide them with that level of certainty about the point of today's debate, because they concluded that,
"available evidence on an association between induced abortion and breast cancer is inconclusive".
That is how they suggest that women should be advised.
That conclusion is reached in response to the guidelines' insistence that professionals who provide abortion services should be able to provide patients with accurate and comprehensive information about

347
the possible complications and consequences of abortion. I entirely concur. Patients should always have access to such advice. I hope that attention to supplying that need would be a sufficient defence against malpractice actions such as those mentioned by the noble Lord. My guess is that such professional advice would be more impartial than some of the highly coloured outpourings of pro-life writers.
Finally, however much we may deplore the number of induced abortions, we should also understand that, sometimes, the continuation of a pregnancy to term can also be fraught with danger— to the woman, to any existing children and to the new baby. Nobody could wish to return to the situation before the legalisation of abortion, where women died, or became infertile or diseased, as a result of back-street abortions.
We should teach young men and women to approach sexual relationships responsibly. We could do worse than to study why the levels of induced abortion among very young girls are so high in the UK and to learn how we can reduce their number. The noble Baroness, Lady Massey, indicated that social factors might prove a fruitful area of research. However, to try to scare young women into bearing children against their will on the basis of flawed research into the consequences is not the way to go about it.
8.22 p.m.
Baroness Noakes: My Lords, I thank the noble Lord for giving the House an opportunity to debate the link between breast cancer and abortion. I also congratulate him on his bravery in being the sole noble Lord to speak among so many noble Baronesses.
Noble Lords who have spoken have traded the available scientific evidence on the link between induced abortion and breast cancer and I will not try to add to that. To my untutored eye, the evidence is far from compelling that there is a causal link between abortions and breast cancer. The view of the Royal College of Obstetricians and Gynaecologists that there is no proven link carries huge weight. I note the recent findings of the American National Cancer Institute, to which the noble Baroness, Lady Gould, referred. A workshop held this year found no evidence of increased risk. Regrettably, the evidence cited by the noble Lord, Lord Alton, does not seem to stack up.
However, if there is any genuine suspicion of a link between abortion and breast cancer, it is clearly right that it is researched. I welcome the research study being undertaken by Cancer Research UK's epidemiology unit at the University of Oxford and hope that it will report quickly. I was pleased to hear about the progress of the research from the noble Baroness, Lady Hayman, but the timescale is still in doubt and many women are anxious to see the results as soon as possible.
Baroness Hayman: My Lords, the noble Baroness is right, but for such a highly contested issue, it is important that we get the research right. An extensive, international analysis of all the available evidence,
348
some of which is published and some of which is not, takes time. That time has to be used properly and we will then have data on which we can hopefully all agree.
Baroness Noakes: My Lords, I thank the noble Baroness for that intervention. I wish to imply no criticism of Cancer Research UK. I was merely reiterating what I believe most women feel; namely, that the issue has been raised and they would like some more certainty about it as soon as possible.
I want to touch briefly on research. That being carried out by Cancer Research UK is not funded by the Government and we must thank such organisations for undertaking it. I believe that the Government should be providing the bedrock of funding for this kind of important research. I invite the Minister to say how much government money will go into medical research this year and what proportion of the total amount likely to be spent on medical research they will fund. Will she reflect on whether that is the right proportion, given the huge importance of issues such as breast cancer?
The Question tabled by the noble Lord, Lord Alton, raises the question of how much information should be given to women about potential risks. I believe that patients should be given a balanced explanation of the risks associated with any medical intervention. But a line has to be drawn between giving information on the basis on which informed choices can be made and overloading the patient with information. Information should not be given on the basis of unproven hypothesis. It is into that category that abortion and a breast cancer link falls. Indeed, I believe that it would be positively harmful to concentrate on risks that are not proven.
I wish no disrespect to the honestly held views of the noble Lord, Lord Alton, and my noble friend Lady Knight, but it is difficult to resist the notion that reducing the incidence of breast cancer is not the key concern of those who are behind the use of the so-called "evidence" of a link between abortion and breast cancer. Their target is the reduction in or the elimination of abortion. As many noble Lords have said, many other factors are associated with the incidence of breast cancer—
Baroness Knight of Collingtree: My Lords, I thank my noble friend for giving way and I want to intervene only briefly. What she has said could cause great worry. I cannot speak for the noble Lord, but I can say that nothing I have said today or was trying to do today was intended to do what she has described. I merely want all research examined and details when they emerge to be given frankly to women. That is my aim and that is all.
Baroness Noakes: My Lords, I am pleased that my noble friend has said that because I am sure that all noble Lords around the Chamber feel the same way. But many other factors are associated with the incidence of cancer. Family history is an important one, as are controllable issues such as obesity and the

349
decision to take HRT. There are other unproven links through alcohol and even through organo-chlorine insecticides.
However, these are not the targets of the campaigners— and I stress the campaigners outside your Lordships' House— because they have the abolition of abortion in their sights and not the health and well-being of women, which should be our primary concern.
Having taken two interventions, I must be brief. As regards reproductive health in this country, we are fortunate in having contraceptive services and the availability of abortion. There are many issues which we on these Benches do not believe the Government have got right. There are issues about the way in which breast cancer is currently being treated, which we do not believe the Government have got right. Our outcomes are among the worst in Europe; certainly below average. Our waiting times for breast cancer treatment are not improving, even after the reduction in time to first consultant appointment. For example, only 80 per cent then receive treatment within five weeks. And if one wants radiotherapy, one has to be one of the 53 per cent.
We believe that those issues about breast cancer are by far the more important for your Lordships' House to concentrate on, rather than the link between abortion and breast cancer. I look forward to hearing the Minister's reply.
8.29 p.m.
Baroness Andrews: My Lords, I am very grateful to the noble Lord for introducing a debate which has sparked such vital exchanges. I am sure that that was absolutely predictable and understandable, and I am grateful to all noble Lords who have spoken. I am conscious that we do not have enough time to address all the issues. I wish that we had the rest of the evening.
It is a timely debate for all kinds of reasons, and it provides an opportunity to pay tribute to Breakthrough Breast Cancer and Breast Awareness Week and also to the work of the voluntary societies, including the one in which the noble Lord, Lord Alton, himself is involved— the Forget Me Not Appeal. It is timely because breast cancer is a major preoccupation for every woman and is something that we think about for much of the time. If we have friends or members of the family who have suffered from it, there is always the overshadow of fear that we might get it ourselves. It is the second biggest cause of deaths from cancer among women, with 41,000 new cases each year.
It is absolutely right that we are rigorous and determined in identifying risks and, as my noble friend Lady Massey eloquently said, in providing the essential information that women need both to reduce risks and to make informed choices. But it is vital that we do nothing to raise unfounded fears and anxiety. As many noble Lords said, we know that there is a whole range of known risk factors relating to genetics, the environment, lifestyle, obesity and, as recent research has suggested, high alcohol intake. In
350
addition, there are reproductive and hormonal factors, such as having children at a late age, early puberty or late menopause.
I want to say at the outset that the Government are entirely committed to ensuring that women are as fully aware as possible of the risk factors. If the weight of expert evidence suggested a causal link between abortion and the risk of breast cancer, we would make that information widely available to women as soon as possible. But, as many noble Lords have said— particularly my noble friend Lady Gould— the weight of evidence is not stacking up. That evidence comes not only from the UK but from the US and now, increasingly, from other countries.
I believe we must be alert to some of the issues raised by the research quoted. For example, the Patrick Carroll study was reviewed by the RCOG. That study was not peer-reviewed, and the RCOG concluded that it failed to establish a causal association between abortion and breast cancer. The study by Joel Brind in 2000 was subject to other analyses. Other researchers analysed the literature and reached the opposite conclusion.
However, in this very brief overview of the great deal of evidence that has been made available thus far, I want to be able to show that there is a wealth of international research. Studies have involved many women of different ages and varying reproductive histories. As the noble Baroness Lady Thomas, said and as the American College of Obstetricians and Gynaecologists said recently, the results of the early studies were slightly inconsistent. But they were difficult to interpret because of methodological considerations— not least the varying patterns of recall of women and self-referral. That explains some of the inconsistency in those studies. However, more recent and more robust studies, whether they were case-controlled through the control group examining what happened to women who did not have cancer or abortions, or cohort— that is, large population— studies, have found no link between abortion and breast cancer.
I turn to what we in the UK, and the RCOG in particular, are doing. In 1999, the RCOG reviewed all the research evidence available at the time. Many noble Baronesses this evening have referred to the RCOG's guidelines produced in August 2000, which, I understand, were inspired by Dr Brind's study and which, indeed, reassured women who have had an abortion or breast cancer that the research evidence on this question to date is inconclusive. A long quotation was read from that set of guidelines.
However, I can tell the House that, after reviewing the most recent and refereed studies, the RCOG is now even more confident than it was in 1999 that there is no association between abortion and breast cancer. That should be reflected in new guidelines from the RCOG which are in the process of preparation.
Lord Alton of Liverpool: My Lords, perhaps I may intervene before the noble Baroness proceeds. I am grateful to her for giving way. Can she explain why the

351
RCOG also said that that evidence cannot be disregarded? Perhaps she can refer to the successful court action last week based on the same evidence, laid before the British Government, in both the United States and previously in Australia, where women have now won their cases for the right to have information.
Baroness Andrews: My Lords, I cannot comment on those cases because I am not aware of them. The RCOG guidelines state that professionals involved in abortion care should be equipped to provide women with information on, among other things, the long-term effects of abortion, which are rare or unproven, including breast cancer. So, it is aware of the need for women to be informed even where there is a remote or inconclusive risk. That is part of the whole scope of the information. I think it would be safer if I write to the noble Lord about the Brind study as I do not have the full RCOG report before me, simply the résumé.
We have had additional confirmation from the USA. The November 2003 edition of the International Journal of Gynaecology and Obstetrics includes a committee opinion from the American College of Obstetricians and Gynaecologists (ACOG) which reviewed the same peer review papers as those recently reviewed by the RCOG with one exception and concluded that there was no evidence in this body of medical research to suggest any causal link.
In addition, and cited in the briefing we had from Cancer Research UK, were cohort studies from Germany and Sweden and of large populations in France, Denmark and China. The noble Baroness, Lady Knight, referred to China. I cannot comment on what she said but have in front of me only what was said by the researchers. Those studies, which in one case involved over 1 million women, found either a non-significant increase, no correlation, no increase in risk or even a slight protective effect in some instances where women had had an abortion. I am happy to let noble Lords have that review.
Reference was made to Cancer Research UK's world class review. I am grateful to my noble friend Lady Hayman for her intervention. She knows so much more than I do about such matters. It is a vast and complex study. As she said, it is reviewing not just a potential link between abortion and breast cancer but a whole range of reasons why women contract breast cancer. We are anxious to have the results, but we also recognise that the results must be validated and confident. Therefore, we look forward to them being published as appropriate.
I turn to some of the wider issues raised, in particular by the noble Baroness, Lady Noakes. There is good news about breast cancer research. Research from Cancer Research UK published last year showed that in the past decade British women have had the world's biggest decrease in deaths from breast cancer thanks to better diagnosis and treatment. We want to build on that. It is not good enough and there is a long way to go but we are moving in the right direction and building up a knowledge base. Only last week we announced that the number of patients entering
352
clinical trials has doubled over the past three years. That will have a major impact on helping cancer patients to benefit sooner from new development.
As a Government we spend about £ 190 million on cancer research. Sadly, I cannot tell the noble Baroness what proportion of that goes to breast cancer because it is not broken down by tumour sites. One of our great successes is the expansion of the cancer screening programme. Breast cancer mortality decreased by 21 per cent in 1998. Thirty per cent of that reduction was attributed to breast screening. Quality improvements and the expansion of the programme now to women aged 65 to 70 will make a big difference.
The cancer networks are contributing, as are the cancer collaboratives. We know that there are some problems along the way. Noble Lords did not mention the postcode lottery. Yesterday in another place the Secretary of State addressed that very firmly and stated that the national cancer director has been asked to look at the NHS in every region to ensure that drugs and treatment which have been approved nationally by NICE are available.
The Cancer Plan and the extra £ 570 million for cancer services are major initiatives to ensure that the money gets to where it is needed. Just as we have tracked it now for two years to ensure that it does, so we shall track it again for another year.
On abortion our policy remains as it has been since 1967. Let me make clear that our aim is to reduce the number of unplanned pregnancies. I am pleased to say that our teenage pregnancy strategy is having an effect. We have had a 10 per cent drop in teenage pregnancies. That is to the great credit of those working in this field.
I must finish. I do so by reiterating that for the vast majority of women who seek to terminate a pregnancy, the decision is not an easy one. Accurate information is absolutely vital, but I cannot state too strongly that ethical and emotional issues should not be compounded by introducing fears about the possible risks of breast cancer in the future on inconclusive evidence. I am very grateful to all noble Lords who have taken part in the debate.

Criminal Justice Bill
8.41 p.m.
Consideration of amendments on Report resumed.
Clause 21[Conditional cautions]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 24:
Page 16, line 43, leave out paragraphs (a) and (b).
The noble Lord said: My Lords, Amendments Nos. 24 and 25 concern Clause 21, the subject of which is conditional cautions. Those empowered to give conditional cautions are listed in subsection (4) as:

"(a) a constable,

(b) an investigating officer, or

(c) a person authorised by a relevant prosecutor for the purposes of this section".

Amendment No. 24 would restrict the list to paragraph (c)—
"a person authorised by a relevant prosecutor".
Amendment No. 25 would increase the flexibility by permitting a police officer, but only one of the rank of chief inspector or above.
The amendments were initially tabled in Committee to prod the Government into explaining how and who would decide whether a conditional caution should be given. The noble and learned Lord the Attorney-General explained in Committee (at cols. 662 and 663 of the Official Report of 14th July) that this is the duty of the Director of Public Prosecutions. The police officer might propose appropriate conditions, but it will be for the prosecutor, in general for the Crown Prosecution Service, in the words of the noble and learned Lord,
"to confirm those conditions and determine that a conditional caution is appropriate".— [Official Report, 14/7/03; col. 663.]
We are extremely grateful for that explanation of how the process will work. However, we still argue that the wording of the Bill is not as clear as the explanation given by the noble and learned Lord in Committee because Clause 21(1) states:
"An authorised person may give a conditional caution to a person aged 18 or over ('the offender') if each of the five requirements in section 22 is satisfied".
The word "give" on page 16, line 33 gives us difficulty and we think it could be open to misunderstanding. Following from that, under current drafting, a constable could give a conditional caution, but that does not mean that he could, in the words of the noble and learned Lord,
"determine that a conditional caution is appropriate".— [Official Report, 17/7/03; col. 663.]
In Committee, I suggested that the word "administer" in place of "give" would be more accurate and less misleading. That approach did not commend itself to the Government. If therefore they are determined to persist with the word "give" in Clause 21(1) and all that that entails, then they should accept a greater restriction on the list of authorised persons. I beg to move.
Lord Goldsmith: My Lords, I had thought that the position was clear. We intend conditional cautioning to work by making it the prosecutor's decision to give a conditional caution. That is clear from the five requirements set out in Clause 22, the second of which is that a relevant prosecutor decides two things:
"that there is sufficient evidence to charge the offender with the offence, and … that a conditional caution should be given to the offender".
I suggest to the noble Lord, Lord Hodgson of Astley Abbots, that that brooks no ambiguity or misunderstanding. It is for the prosecutor to decide. With respect, I do not agree with him that in those circumstances the meaning of the word "give" in Clause 21 can change. It cannot mean that it is for the constable to decide, when it is clear in the Bill that it is for the prosecutor to decide.
354
The noble Lord proposes a scheme in which the officer who administers the caution must be of the rank of chief inspector or above. As I said in Committee, that cannot be an appropriate use of such a senior officer's time. One of our aims is to have an effective and efficient system for conditional cautions decided on by the prosecutor. I do not resile from my comment in Committee that I would expect that a police officer, having received an admission, would say to the prosecutor, "This looks like an appropriate case for a conditional caution", but it will be for the prosecutor to decide— he may agree or disagree. There will be guidance, as required in the Bill, giving even further help on the sort of case in which a conditional caution should exist.
Given the clarity on the face of the Bill, and that the decision will be the prosecutor's, the Government see no need to involve such a senior officer as the amendment would require. I hope that the noble Lord will not press the amendment.
8.45 p.m.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the noble and learned Lord. He used the word "administer" a moment ago. That is where our difficulty arises; that is to say, he rightly drew my attention to Clause 22(2). Paragraph (b) states that,
"a conditional caution should be given to the offender"
The relevant prosecutor decides whether it should be given. But that is different from what happens in Clause 21, which deals with the process whereby, the decision having been taken, the conditional caution is administered to the person in question. If that were not the case, paragraph (c) of subsection (4) would not appear in the same subsection as paragraphs (a) and (b).
We have a situation where the word "give" first in the decision to proceed with a conditional caution and then in the administration of it is being used interchangeably. That is unhelpful and unclear. They are not the same word and they are different functions, as I read Clause 21 from Clause 22. The noble and learned Lord is shaking his head. Does he wish to intervene?
Lord Goldsmith: My Lords, I am happy to do so. Under the scheme, the individual will be seen by a police officer. Obviously, that is the first stage, because it is as a result of an admission— that is key— that an offender comes within the scheme at all. It is for a prosecutor to decide whether there is sufficient evidence to charge and whether a conditional caution should be given. Once the decision has been made that it should be given, someone must "administer" or "give"— in my respectful submission, it matters not which word one uses— the caution. It is a process of explaining to the person the effect of the conditional caution, as set out in Clause 22(4), and ensuring that the document is signed. There will be other things to be done, but that is what "giving" and "administer" mean.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful for that further explanation. In order to explain fully how the process will work, the noble and

355
learned Lord uses the word "administer" to deal with one function as distinct from another. I understand his point about the five requirements and the conditional caution to be given by the prosecutor under Clause 22(2). Once that has been decided, the: process is an administrative one, the decision having been taken. Clarity is very important. If the Government are not prepared to use a word to distinguish the two different functions, I would like to test the opinion of the House.
8.50 p.m.
On Question, Whether the said amendment (No. 24) shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 65.

Division No.3

CONTENTS

Anelay of St Johns, B.

Kingsland, L.

Ashcroft, L.

Knight of Collingtree, B.

Attlee, E.

Linklater of Butterstone, B.

Avebury, L.

Livsey of Talgarth, L.

Blatch, B.

Lyell, L.

Bridgeman, V.[Teller]

Mancroft, L.

Brooke of Sutton Mandeville, L.

Marlesford, L.

Brougham and Vaux, L.

Mayhew of Twysden, L.

Buscombe, B.

Monro of Langholm, L.

Carlile of Berriew, L.

Noakes, B.

Carnegy of Lour, B.

Northesk, E.

Courtown, E.

Northover, B.

Denham, L.

Roper, L.

Dholakia, L.

Russell, E.

Dixon-Smith, L.

Seccombe, B.[Teller]

Dundee, E.

Sharp of Guildford, B.

Fookes, B.

Shutt of Greetland, L.

Gray of Contin, L.

Steel of Aikwood, L.

Harris of Richmond, B.

Stern, B.

Higgins, L.

Thomas of Gresford, L.

Hodgson of Astley Abbotts, L.

Thomas of Gwydir, L.

Hooper, B.

Thomas of Walliswood, B.

Howe, E.

Waddington, L.

Howell of Guildford, L.

Wakeham, L.

Hurd of Westwell, L.

Wedderburn of Charlton, L.

NOT-CONTENTS

Ahmed, L.

Evans of Temple Guiting, L.

Andrews, B.

Farrington of Ribbleton, B.

Bach, L.

Filkin, L.

Bassam of Brighton, L.

Gale, B.

Berkeley, L.

Gibson of Market Rasen, B.

Billingham, B.

Goldsmith, L.

Blackstone, B.

Goudie, B.

Borrie, L.

Gould of Potternewton, B.

Brennan, L.

Grocott, L. [Teller]

Brooke of Alverthorpe, L.

Hogg of Cumbernauld, L.

Brookman, L.

Hollis of Heigham, B.

Burlison, L.

Hoyle, L.

Campbell-Savours, L.

Hughes of Woodsde, L.

Carter, L.

Hunt of Kings Heath, L.

Clark of Windermere, L.

Hylton, L.

Colville of Culross, V.

Judd, L.

Corbett of Castle Vale, L.

Kennedy of The Shaws, B.

Crawley. B.

Kirkhill, L.

Davies of Coity, L.

Lea of Crondall, L,

Davies of Oldham, L.[Teller]

Lockwood, B.

Dixon, L.

Lofthouse of Ponterfract, L.

Dubs, L.

McCarthy, L.

Evans of Parkside, L.

Macdonald of Tradeston, L.

356

McIntosh of Haringey, L.

Sainsbury of Turville, L.

Masham of Ilton, B.

Sawyer, L.

Massey of Darwen, B.

Scotland of Asthal, B.

Mitchell, L.

Symons of Vernham Dean, B.

Morris of Aberavon, L.

Turnberg, L.

Palmer, L.

Whitaker, B.

Pendry, L.

Wilkins, B.

Pitkeathley, B.

Williamson of Horton. L.

Ramsay of Cartvale, B.

Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.
8.59 p.m.
[Amendment No. 25 not moved. ]
Clause 22[The five requirements]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 26:
Page 17, line 12, after "offender" insert ", having taken or refused to take legal advice,"
The noble Lord said: My Lords, in moving Amendment No. 26,1 shall speak also to Amendments Nos. 27 and 28. They all relate to Clause 22— dealing with "The five requirements"— which was peripheral to our discussion on the previous amendment. The process of handing out a conditional caution requires that the five requirements be fulfilled. Amendments Nos. 26 and 27 would ensure that the offender is given the opportunity to take appropriate legal advice before agreeing to the caution. Amendment No. 28 deletes the subsection which would enable the document of the caution to be used against the offender.
Once again, we discussed this matter in Committee, at col. 668 of the Official Report on 14th July. The Government explained that legal advice would be offered and that the issue would be covered in revised guidelines to the PACE regulations. The noble and learned Lord the Attorney-General suggested, with honeyed words, that the clause would become unmanageably large if it included everything that was relevant, which was already covered in the PACE codes. One appreciates the force of that argument.
However, the clause introduces an entirely new type of punishment, which has a direct impact on civil liberties. The amendments would increase the length of the clause, but negligibly. However, they increase its clarity on the critical point of the need to be offered legal advice without the complexities of cross-referencing to the PACE regulations.
We do not wish to replicate all the relevant parts of the PACE regulations in the Criminal Justice Bill. The addition of Amendments Nos. 26 and 27 would act as a failsafe and would not leave this fundamental provision open to any doubt. If Amendments Nos. 26 and 27 should be accepted, we would not wish to move Amendment No. 28.1 beg to move.
Baroness Kennedy of The Shaws: My Lords, in support of this amendment, perhaps I may mention a number of points of which the House may not be aware. Even when someone is cautioned, if an issue of

357
character arises in a criminal case, the caution is placed before the jury. Many people do not understand that. Many people imagine that if issues of character are raised, it is only previous convictions that will go before a jury. But a caution, too, goes before a jury if an issue of character is raised. That therefore has serious consequences.
It is for that reason that the issue of having at least the opportunity of access to legal advice could matter. If access to legal advice is not allowed, a person who may be agreeing to a caution should at least be warned that if, on any subsequent occasion, he comes before a court, the caution may be placed before the court as a material feature that might be considered in evaluating evidence. That has serious consequences and it is not a matter without implication. It is for that reason that I raise the matter with the Minister and ask that he might give it some consideration.
Lord Goldsmith: My Lords, I shall turn immediately to the issue raised by my noble friend Lady Kennedy of the Shaws. I entirely understand the point that she made about the significance of a caution; one might say, not just for the reason that she gives. Clause 22(4) will require that the person— I hesitate to use the word— giving or administering the caution should explain its effect to the offender and warn him that failure to comply with any of the conditions may result in prosecution. That much is clear.
However, the code of practice proposed under Clause 24 will also contain certain matters. I shall be happy to ensure that consideration is given in that code to whether this is something that should be dealt with. The code of practice must come back to Parliament, so at that stage we shall be able to see how the matter is dealt with. I hope that I have been able to give an assurance to my noble friend that the good point she has made will be considered in that way.
I turn now to the substance of the amendment. The first point I wish to make is that before a suspect can have made the clear admission of guilt, which is a prerequisite for a caution, he or she must have been informed of their right under the PACE code. It is not a question of cross-reference to the PACE code because one simply does not reach this stage without the admission having been made. Because of the requirements of PACE, that will have required the right to independent legal advice having been identified and the person told of it.
Thus, no one can reach the stage of a conditional caution without having had the opportunity to obtain advice. Further, I draw attention to the fact that Clause 22(3) identifies as the third requirement that the offender admits to the authorised person that he committed the offence. So there will have been an interview, the suspect will have been told of his right to legal advice and may well have availed himself of it— that is his or her choice— and all that will happen in any event.
At that stage the advice might cover the pros and cons of a conditional caution, if the matter is raised at that stage. If it is not, then the next question is whether
358
a suspect who returns to the police station on a subsequent occasion and is then offered a conditional caution— it is always an option which can be refused— would have access to legal advice about whether or not to accept it. Under the current arrangements, advice and assistance would be available through the attendance of a solicitor or by telephone. A suspect who had taken the opportunity to seek advice at interview would generally be expected to seek further advice from the same solicitor. Obviously, that would make sense.
It is right to say that, under the proposals being considered, a suspect would not qualify to receive advice from a solicitor attending the police station, but would continue to be able to obtain such advice over the telephone. So the advice will be made available in any event: at the initial interview, with further availability at least by telephone if the suspect returns to the police station and is there offered a conditional caution. That is why the Government do not consider it necessary to put on to the face of the Bill a provision that legal advice is a specific requirement for the issue of a caution because that advice is going to be available in any event.
I turn to Amendment No. 28. The noble Lord, Lord Hodgson, pointed out that this amendment would not be pursued if Amendments Nos. 26 and 27 were accepted. Of course they are not accepted, so I should deal with this amendment.
The provision set out in Clause 23(2), to which the amendment refers, is that the document referred to in Clause 22(5) is to be admissible as evidence. It is right to distinguish between the two different admissions. There is the admission referred to in Clause 22(3), and there is the admission which is written into the caution. A suspect does not reach the stage of a caution unless he has already admitted the offence. Of course, that particular admission will be admissible because it would have been obtained in circumstances where the PACE codes have been complied with, otherwise one could not reach the stage outlined in Clause 22(2)(a); that is, of the prosecutor being in a position to say that there is "sufficient evidence to charge". The initial investigative process must have been gone through and completed.
Thus a prosecution could not be founded on the caution document itself. It might be founded on an admission made in interview— that is possible— but not on the document itself. The caution document will outline the effects of non-compliance and will state clearly that it might be used in evidence against the person if criminal proceedings were to follow.
There is no need to exclude Clause 23(2). Indeed, that could give rise to problems. It may well be necessary in subsequent proceedings to consider whether or not the terms and conditions had been complied with and the defendant might, for example, say that he had complied with them and that he should not be brought back to court. So the terms of the document itself would need to be admissible in those circumstances.

359
I hope the noble Lord is reassured by the fact that, if it should turn on admissions, the key admission will be the admission that had been made before and not the admission put into the caution document.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the noble and learned Lord. He has been very clear and explicit about the fact that a suspect will not be able to go through the procedure without obtaining the relevant legal advice, a point which we wanted to have clearly on the record. I understand the points he made about Amendment No. 28 in regard to Clause 23(2). Our preference was to make matters explicit.
I am grateful to the noble Baroness, Lady Kennedy of The Shaws, for her intervention and for broadening my non-existent legal knowledge. Having said that, the Attorney-General has been very clear about the way the system will operate. We are reassured by that and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved. ]
Clause 23 [Failure to comply with conditions]:
[Amendment No. 28 not moved. ]
Clause 24 [Code of practice]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 29:
Page 18, line 7. at end insert ", in particular the role of the probation service"
The noble Lord said: My Lords, in moving Amendment No. 29,I shall speak also to Amendment No. 30. The amendments relate to Clause 24 and the codes of practice relating to conditional cautions.
Amendment No. 29 seeks to include the probation service in the fine-tuning of the conditions that are to be set. We discussed this issue in Committee on 14th July (at col. 678 of the Official Report) when a good deal of concern was expressed. The noble and learned Lord the Attorney-General explained at that stage that he wished to resist the inclusion of the probation service as a reference point but added:
"I hope that noble Lords will accept that I do not wish to say any more until I am able to give a more detailed and considered answer— [Official Report, 14/7/03; col. 679.]
We have since received a very helpful explanatory letter from the noble and learned Lord, which runs to more than three pages. It goes a long way to answering the concerns raised in Committee. I hope that the noble and learned Lord will not consider me too churlish if I make two points about the letter.
The first point concerns its timing. My e-mail in-box shows its receipt as timed at 12.42 p.m. or Wednesday 29th October— that is today, about eight hours ago. It is practically impossible for us to give proper consideration to the points raised in the letter— there are quite a lot of them— and, in particular, to consult with interested outside parties to obtain their comments and reactions. Many noble Lords will regard such discussions as being part of the scrutiny process of the House. It would have been helpful if we
360
had received the letter a little earlier. After all, the Committee stage on this part of the Bill took place on 14th July, three-and-a-half months ago.
Secondly, I draw the noble and learned Lord's attention to a sentence at the bottom of the first page of the letter, which states:
"Three things will be crucial to maintaining the integrity of conditional cautioning. First, there is the detailed guidance on the use of conditional cautions which is in the course of preparation".
This is precisely the point. It was the absence in Committee of the detailed guidance that led to many of the concerns in our debate, and the guidance is still not available.
So many Bills in the current Session and recent Sessions have been what one might call framework Bills. The Licensing Bill is one example. The detail, the flesh and blood of the legislation and its practical application for our society depend on regulations, codes, guidance notes, and so on. I ask the noble and learned Lord if the Government could make a greater effort to ensure that Bills come forward for our scrutiny fully fledged, and not just in outline. Whatever our partisan political viewpoint, we surely can agree that we want legislation that is clear and unambiguous. Such an outcome is best achieved when Bills have been well scrutinised, and we need the detail as well as the framework to achieve this.
Having got that off my chest, I now turn to Amendment No. 30, which would insert a new item into the clause highlighting the consideration that should be made when writing up the codes of practice for those with mental problems. This is rehearsing some of the arguments we had on Amendment No. 20. Amendment No. 30 anticipates the possibility of unfair or unachievable conditions being given to an offender who has mental problems and agrees without fully understanding the consequences.
We are bringing the amendment back at Report because we feel the noble and learned Lord gave unduly short shrift to the arguments in Committee, believing that the amendment would add little to the existing paragraphs. However, despite having read through them carefully, I cannot see anything that deals directly with the character of the offender in any of the existing paragraphs of Clause 24(2). I suppose it could be suggested that subsection (2)(f), which refers to,
"the form which such cautions are to take and the manner in which they are to be given and recorded"
covers someone who has a mental problem, but I find it hardly explicit— in fact, I find it hardly implicit. The inclusion of a further paragraph, drawing specific attention to the importance of proportionality and appropriateness would add an important dimension.
It is in eager anticipation of what the noble and learned Lord will say to us about Amendment No. 31 that I sit down. I beg to move.
9.15 p.m.
Lord Goldsmith: My Lords, I am grateful to the noble Lord. I will speak to Amendments Nos. 29 and 30 and also to Amendments Nos. 31 and 32 in the name of my noble friend Lady Scotland of Asthal.
We had an important discussion in Committee about how conditional cautioning would work. A lot of work has been done since to put flesh on that. I chaired a meeting and spoke to the head of the probation service about the points which had been raised. That has resulted, as the noble Lord has been good enough to say, in being able to give much more information about how conditional cautioning will work, and I shall shortly put that information on the record.
I entirely accept the noble Lord's point about the information being sent late to him and other noble Lords. I am glad that they have had it; there will of course be an opportunity to discuss much more about this when the code of practice comes to Parliament. Indeed, in the light of the pilots to which I shall refer in a moment, the code may well need to come back to Parliament, so there will be another opportunity. I say that because of the point that the noble Lord very properly makes about the desirability of and need for scrutiny. In any event, he is absolutely right that it would have been better if that letter had been received earlier, and I am sorry that it was not.
That being said, may I say a little more about the way in which the conditional cautioning scheme is proposed to be implemented? I see the scheme as a very valuable addition. It will help to keep people out of criminality and away from having to go to court; it will do something with their offending, help them and, one hopes, help victims too.
There will be scope for geographical variation, which need not be implemented in the same way in every area. It will provide a framework in which the provisions can operate and, particularly, for developing what could turn out to be innovative community justice schemes. The local criminal justice boards that we have established could play an important role.
The intention is to bring the provisions into force next April on the basis that it will then be possible for police and prosecutors to use conditional cautions when it is practicable to do so without special training. They could be used in the sort of relatively straightforward— or very straightforward— case, such as one in which the offender is asked to pay a small and readily ascertainable sum in compensation or attend a self-help group. That would be straightforward. There could be more complicated cases, which I want to deal with separately. However, conditional cautions of that simple kind, which would require little by way of training for the police or the CPS could start to be given nation-wide as soon as the provisions in the Bill are implemented. Therefore, we propose to set up pilots in six areas where we would monitor: the use of conditional cautions and evaluate the effect on the number of prosecutions; the extent of compliance with conditions; enforcement costs; success in terms of reconviction rates; and victim satisfaction.
362
We also believe that conditional cautioning could be used to deliver more sophisticated restorative justice solutions. That is potentially very exciting, as it would involve bringing victims and offenders into direct or indirect contact, where they want that, to discuss the crime and its effects, leading to outcome agreements in which the parties agree what the offender will do in response to the crime. The Government have recently produced a strategy document on that matter. It is a very interesting area that is not without its issues for some people. I have seen it in operation personally and have seen how beneficial it can be, but I also recognise that one must overcome certain hurdles. The outcomes might be compensation, reparation, rehabilitative activities or a formal apology.
The evidence certainly shows that restorative justice can reduce reoffending and improve victim satisfaction with the criminal justice system. Conditional cautioning offers a potential way in which to deal with the problem, but it cannot be done without training. We would clearly have to assess the results before we could recommend the approach on any great scale. We intend to test that use of conditional cautioning in two pilot areas, where we provide funding to train officers in using restorative processes. Those pilots would start when the general scheme is implemented and would be evaluated after a year of operation. That gives more of the flesh on how we would like to proceed.
Those provisions give rise to discussions about the National Probation Service, whose possible role we discussed in Committee. We plainly recognise that conditional cautions need to be properly used and robustly monitored. In the generality of cases, it is unlikely for that to be a priority for the probation service. However, in some cases there is scope for the service to play a useful role in assessing perhaps how suitable certain offenders are for a conditional caution, or in monitoring the performance of certain outcomes. This would depend on local circumstances and on the availability of funding.
I said in Committee that we did not consider the probation service was able to take on that role as its functions presently existed. That is why we have introduced the amendment. At the moment, its powers are limited to cases in which people have been charged with or convicted of an offence. That would not apply to conditional cautions, as it would not be the case as regards the people with whom we are concerned. We want to remove that statutory obstacle, which is the purpose of Amendment No. 31.
The amendment makes clear that the duties of the service extend to giving assistance to authorised persons in determining whether conditional cautions should be given, which conditions should be attached to conditional cautions and the supervision and rehabilitation of persons to whom conditional cautions are given.
I turn to the question of the code of practice. I am sorry that the noble Lord, Lord Hodgson of Astley Abbots, thought that I gave short shrift on the last occasion to the point that he made. It is not that I do not agree that in deciding whether cautions should be

363
given in a particular case one has to have regard to whether it is appropriate in that case; of course, that is right. But it seemed to us then— I regret to tell the noble Lord that it seems to us still— unnecessary to add to the list of things to be put into the code of practice a reference to the role of the probation service or a new item about deciding the appropriate conditions. I repeat what I said on the previous amendment; namely, that the code will have to come before Parliament and then one will see— I hope that noble Lords will agree— that it will be helpful and will adequately cover the areas which noble Lords think should be covered.
I turn finally to Amendment No. 32. There is a minor anomaly at the moment that while the Director of Public Prosecutions and the Serious Fraud Office are included in the list of relevant prosecutors who can decide whether a conditional caution should be given, the Attorney-General for some inexplicable reason has been omitted from the list. While I personally doubt that it is a privilege of which I or my successors will wish to avail ourselves, we ought at least to be given the option. That is the reason for putting that measure forward, which I hope will not be controversial.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the noble and learned Lord on three counts. It was helpful for him to put on the record in some detail the way in which the scheme will operate. I am also grateful that we now have the position of the National Probation Service clarified. I understand fully the point the noble and learned Lord made that previously it was not possible for it to be involved. I am also grateful that there may be a chance for further discussion on the code of practice when it is produced, which will no doubt be very soon.
It is important to consider the position of people with a mental illness regarding conditional cautions due to their particular vulnerability. However, the noble and learned Lord has given a number of clear commitments and I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 30 not moved. ]
Lord Goldsmith Lord Goldsmith moved Amendment No. 31:
After Clause 24, insert the following new clause—
"ASSISTANCE OF NATIONAL PROBATION SERVICE

(1) Section 1 of the Criminal Justice and Court Services Act 2000 (c. 43) (purposes of Chapter 1) is amended as follows.

(2) After subsection (1) there is inserted—

"(1A) This Chapter also has effect for the purposes of providing for—

(a) authorised persons to be given assistance in determining whether conditional cautions should be given and which conditions to attach to conditional cautions, and

(b) the supervision and rehabilitation of persons to whom conditional cautions are given."

(3) After subsection (3) there is inserted—

364

"(4) In this section "authorised person" and "conditional caution" have the same meaning as in Part 3 of the Criminal Justice Act 2003. "

On Question, amendment agreed to.
Clause 25 [Interpretation of Part 3]:
Lord Goldsmith Lord Goldsmith moved Amendment No 32A:
Page 18, line 28, at end insert—
"( ) the Attorney General,"
On Question, amendment agreed to.
Schedule 2 [Charging or release of persons in police detention]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 32A:
Page 181, line 23, after "bail" insert "for a period of not longer than 35 days"
The noble Lord said. My Lords, we return to a topic which we raised in Committee. We are dealing with the depths of Schedule 2 to the Bill. We are concerned to put a limitation on the period of time that pre-charge police bail is granted while a case is referred to the Crown Prosecution Service for a decision whether to charge. There is no such limitation at the moment but there is a tendency for the CPS these days to drag its feet over this— as over almost everything else— and it is wrong that a person should have charges hanging over him for an excessive period.
The noble and learned Lord the Attorney-General in his response on 14th July told us that the Home Affairs Select Committee had recommended such a limit and that the Government had paid attention to the charging pilots which,
"were suggesting that in most cases a five-week period should be sufficient to enable charges to be brought" —[Official Report, 14/7/ 03, col 684.]
In the amendment that we moved at that time we suggested that 28 days was an appropriate period but at this stage we have adopted the five-week period referred to in the charging pilots, hence this amendment stipulates a 35-day period for police bail before charge.
The noble and learned Lord the Attorney-General also pointed out that it was the Government's view, following the final evaluation report, to have no statutory limit. He suggested that although the period of bail should not be unreasonably long, it would be better for the guidance and instructions to be issued by the Director of Public Prosecutions and the Association of Chief Police Officers to stipulate an appropriate period. He also pointed out the power that exists for a person to go to court and ask for conditions of bail to be varied or discharged.
At this stage, we should like to press the Government on what they have in mind. What sort of guidance will there be? How long is it suggested that the period will be before an excessive period is deemed to have occurred? We have come back to the matter to find out whether the Government have made any progress in formulating guidance and instructions on the topic I beg to move.
9.30 p.m.
Baroness Anelay of St Johns: My Lords, I support the noble Lord, Lord Thomas of Gresford, in the amendments. They reflect accurately the concerns that my honourable friends in another place expressed in Committee, which were not taken further on Report; as we are aware, Report is a very curtailed matter in another place. I, too, should be grateful if the noble and learned Lord could tell the House what further progress had been made on guidance, as it is important to know what period will be considered excessive in such matters.
Lord Goldsmith: My Lords, I am very sorry that the noble Lord, Lord Thomas of Gresford, chose to make the attack on the Crown Prosecution Service that he did in moving the amendment. I noted him as describing it as having a tendency to drag its feet, in this as in most matters. As the superintending Minister responsible for the Crown Prosecution Service, I regard that as an unfair attack on it that ought not to have been made. It does a very important job. Its many professionals up and down the country deal with 1.4 million cases throughout the year, bringing them to the courts, and they deserve rather better than a generalised attack on them in those terms. I have absolutely no hesitation in rejecting that charge.
I shall deal with the length of time for bail. Let the circumstances in which we are referring to bail be understood. We are referring to a system in which the decision to charge will be taken by crown prosecutors in consultation with the police. The circumstances then will be that the custody sergeant will have taken the view that there probably is sufficient evidence to charge the particular individual, and that will then be considered with the prosecutors.
In the large majority of cases, it is very likely that the decision to charge will have been taken within a period of 35 days, the figure referred to in the amendment. However, the Crown Prosecution Service is not the only relevant body; there must be further investigations by the police in certain circumstances. Therefore, there will be cases where the nature of the investigations and the decisions means that a longer time is necessary. I draw attention to the fact that the president of the Association of Chief Police Officers, in an important letter that he recently sent to noble Lords, said that,
"any artificial time limit on the proposals is undesirable. Evidence can, of necessity, take time to prepare. If artificial time limits are imposed, when the prosecution have no control over the availability of evidence, they will lead to escalating costs, unnecessary hearings and discharged cases. Instead, each case should be closely monitored".
What would happen under the amendment if the 35-day limit was reached and the police and prosecution were not in a position to charge? There is no provision in the amendment for renewal of bail by the police. What would happen if the person presented himself at the police station? There would be only two choices: either the conditions which the police thought to be
366
necessary and appropriate in the case of that defendant would have to be abandoned, or the defendant would have to be charged there and then. That would reduce the benefits of a scheme in which a considered decision is taken so that cases which should not be in the system are dropped and that others go forward in a well prepared and focused way.
I reiterate that we are discussing bail and not custody. Conditions are attached to it, but the person is still at liberty. However, if he feels that the bail is oppressive and that too much time is being taken, either he can go to the custody officer— who can vary the custody conditions— or, failing that, he can go to the court and ask it to discharge or vary the bail. That would be a more than adequate way of controlling the provision.
I am sorry for having begun on an disagreeable note, but I hope that noble Lords will understand that it is right to make a clear statement about the position of the CPS. For the reasons that I have given, I resist the amendment.
Lord Thomas of Gresford: My Lords, I acknowledge the remarks of the Attorney-General about the CPS and I appreciate why he feels that it is necessary to leap to its defence. There is no room for complacency in that service. It is not the moment to debate its faults and failings, but he would find it difficult to answer all the charges that are levelled against it. I heard a lengthy complaint myself only two nights ago and I have personal experience of cases being put back and of comments made by judges about it. However, it is not an appropriate moment to debate that topic. Perhaps it is a matter that I can put down for full debate at another time.
Lord Goldsmith: My Lords, I would welcome that. It would be an opportunity to address the generalised points that the noble Lord has made.
Lord Thomas of Gresford: My Lords, the noble and learned Lord is right in saying that they are generalised points. I would make them specific if and when we came to them. On the matter before us, I have heard what he has said and reserve my position, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Defence disclosure]:
[Amendment No. 33 not moved. ]
Clause 32 [Notification of intention to call defence witnesses]:
[Amendment No. 34 not moved. ]
Clause 33[Notification of names of experts instructed by defendant]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 35:
Leave out Clause 33.
The noble Lord said: My Lords, the amendment raises important matters of principle relating to defence disclosure. Many issues arise from the clauses that cover it. I do not believe that a Wednesday night is an appropriate moment to raise the issues. The matter requires a fuller House and we shall come back to it at Third Reading. I shall move the amendment in order to hear what the noble and learned Lord says about it, but shall not take it further. I beg to move.
Baroness Kennedy of The Shaws: My Lords, the noble Lord indicated that the matter will not pursued tonight, but the whole issue of disclosure seems arcane to those who are not directly involved with it. That the Bill will require the defence to disclose a list of its witnesses to the Crown and the effect that that will have are matters of concern. Those witnesses will be seen by police. Even with the best will, that could be intimidatory to many people whose evidence may be necessary in seeing that justice is done.
If the police are to visit witnesses and see them in advance of the case coming to trial, there is every risk that people will not come forward. That is the concern of many of us. If we are not to proceed with the matter today, I hope that it will be debated fully and dealt with properly at the next stage of the Bill.
Lord Kingsland: My Lords, I believe that the noble Baroness was referring to a matter which would have been raised by the noble and learned Lord, Lord Ackner, had the noble and learned Lord been here—
Lord Goldsmith: My Lords, it would have been raised in Amendment No. 34, tabled by the noble Lord, Lord Thomas of Gresford, which he did not move. That amendment deals with witnesses, the subject to which my noble friend Lady Kennedy of The Shaws referred.
Lord Kingsland: My Lords, I entirely agree with what the noble Baroness said; but it is not a matter for debate today. I want to refer to Amendment No. 35; and, at the risk of testing the patience of noble Lords, to look at what was said about the matter in Committee.
In Committee, a number of noble— and noble and learned— Lords suggested that, in one way or another, the clause breached the principle of legal professional privilege. In responding to the debate, the noble and learned Lord the Attorney-General sought to reassure your Lordships at col. 732 of Hansard of 14th July 2003. I apologise to your Lordships in advance for quoting a number of extracts from what the noble and learned Lord said.
He said three things about the question of legal professional privilege. First, he said:
"It does not require that any unused expert report should be disclosed, precisely because of legal professional privilege, the importance and existence of which the Government and I were well aware before the clause was finalised".
368
The noble and learned Lord went on to say, secondly:
"Equally, legal professional privilege means that it would not be appropriate if an expert was known to have been consulted and was then seen by someone from the prosecution"
So far, so good. The noble and learned Lord then went on to add to that part of his speech:
"It would not be appropriate to probe that expert over the opinion that he had given before".
The noble and learned Lord then went on to say:
"It would be inappropriate to ask for information that would indicate material which had been provided by the accused, for example. If it were a psychiatric report— my noble friend Lady Kennedy gave an example in which the psychiatrist based his opinion on an account given by the defendant of what had taken place— that would be privileged information and ought not to be disclosed".—[Official Report, 14/7/03, col 732.]
However, at the beginning of the following paragraph in col. 733, the noble and learned Lord added:
"There are circumstances in which an expert does not have privileged information and where it would not be inappropriate for one party to consult an expert who had been consulted by another"
Further down the column, the noble and learned Lord explained what he meant by that statement. He said:
"It would be possible under the clause, provided that the expert was not questioned about the work done for the defendant or asked to give any opinion that would disclose in any way legally privileged material that he had had, for such a person to be consulted and employed by the prosecution". — [Official Report, 14/7/03, col. 733.]
But, as I understand it, in those circumstances, such a disclosure is already permitted in law. The noble and learned Lord, himself, said, at the beginning of the preceding paragraph that, in a civil case in which he had been involved in the 1980s, precisely that situation occurred. In response to an intervention by the noble Lord, Lord Brittan of Spennithorne, the Attorney-General said that there is no distinction between criminal and civil law. Therefore, in my submission, if the example that the noble and learned Lord gave of his own civil case is a motive for including this clause in the Bill, it cannot be a proper motive.
The one other reason that the noble and learned Lord gave for including the clause in the Bill was that it is intended to deter shopping around when it is improper. In my submission, that was extremely well dealt with by my noble friend Lady Anelay in her summarising remarks. She asked,
"why should not the defence be allowed to instruct more than one expert and on receipt of that report then decide whether to rely on it without the threat that the prosecution might leave the court to draw an adverse inference on the defence's decision not to use the expert's opinion?".—[Official Report, 14/7/03, col. 736.]
One is inclined to say to your Lordships that that is a very powerful argument. After all, earlier in the Committee stage we heard from the noble Lord, Lord Thomas of Gresford, that, in practice, such a provision is unnecessary anyway because 99.9 per cent of criminal cases are financed by legal aid and the rules of the legal aid system will not allow a defendant to seek to instruct more than one expert.

369
But surely the most telling reason why your Lordships should not adopt the provisions set out in the clause is this. There is a very good reason why the rules of disclosure for the prosecution, on the one hand, and the defence, on the other, should differ. The prosecution must prove its case beyond reasonable doubt. If its experts differ, there is prima facie doubt and the court must know about that. I suggest that it works in entirely the opposite way for the defence. The reason the defence should be entitled to disclose only its best case is that that is the best way to test the prosecution's obligation to prove its case beyond reasonable doubt. That has been English law for, dare I say it, hundreds of years. Why on earth should the Government second-guess it now?
9.45 p.m.
Lord Goldsmith: My Lords, I note, first, that the noble Lord, Lord Thomas, moved the amendment, although we had debated this issue in Committee and, indeed, divided on it then, although not, I accept, on this precise amendment. However, we divided on an amendment which had substantially the same effect. I do not suggest for a moment that the amendment, as it stands, is not entirely proper and that it could not be the subject of another division. However, we had debated it.
Perhaps I may say, gently, to the noble Lord, Lord Thomas of Gresford, that to say that these matters have been put down for Report but that he does not really want to deal with them now but wants to save them for Third Reading turns Third Reading into even more of a Report stage than perhaps some people think is appropriate. I make the comment and no doubt others will consider whether it is worth elaborating on it at some other time.
The noble Lord, Lord Kingsland, dealt with the substance of the amendment. I am happy to be taken back to what I said in Committee. First, the starting point is that normally the prosecution must disclose the identity of any expert it has consulted but does not call, and any unused reports. Secondly, it is said that there is a problem with some defendants shopping around. I made clear that I accepted— if I did not explicitly accept it, certainly I accept it now— that because of a point made by the noble Lord, Lord Thomas of Gresford, about the likely lack of availability of legal aid for publicly funded defendants, the prospects of that happening are at least small. However, there can remain a problem in cases where defendants are privately funded.
Thirdly, I attempted to give a clear and I hope helpful answer not about motive but about where professional privilege created a difficulty. I accepted entirely that although there had been those who wanted there to be disclosure of experts' unused reports, professional privilege in the Government's view meant that that was not appropriate, so that was
370
not a recommendation that found its way into the clause. I also accepted, as a result, that it would not be appropriate for anyone to go and see an expert to try to discover from him what he had been told by the defendant or what he had said to the defendant. I excepted a theoretical possibility— I indicated anecdotally that it happened to me— of someone whose skill was so forensic that it was acceptable for that person then to give evidence for one side rather than the other. I make it plain that that was no part of the motive. I have no reason to believe that that is a way that this provision would be intended to be used.
Baroness Kennedy of The Shaws: My Lords, I thank the Minister for giving way. I should like to correct two points. First, in the kind of cases where psychiatry is used it is very rare for there to be private representation. In serious criminal cases, legal aid is now available across the board because of the nature of the crime. It is only by choice that people might seek to privately instruct, which is rare. The second matter goes to the heart of this.
Lord Bassam of Brighton: My Lords—
Baroness Kennedy of The Shaws: My Lords, this is a question.
Lord Bassam of Brighton: My Lords, I would remind the noble Baroness that only points of elucidation are to be raised on Report when the Minister is dealing with questions.
Baroness Kennedy of The Shaws: My Lords, but it is very important. Normally, what happens is that when a psychiatrist goes to see a patient in preparation for a report, the first thing the psychiatrist says is, "You realise that anything I ask you I may have to disclose if I am required to do so in the case". So, almost invariably a consent has been given for disclosure but the disclosure is very specifically for purposes of the defence. I am concerned that that permission might be used and I want to know whether the Minister will put on the record that such a consent given by a defendant to a psychiatrist, taking information from him, for example, about the events that took place, will still be covered by privilege even where a consent has been given. I hope my noble and learned friend is following the point. I am asking whether he is prepared to say—
Lord Goldsmith: My Lords, I thought the noble Baroness said she had two questions. I was waiting for the second.
Baroness Kennedy of The Shaws: My Lords, I wanted my noble and learned friend to agree that the example of private representation is so rare that we are really talking about publicly funded work where shopping around is a nonsense. It just does not happen. Does the noble and learned Lord agree that it very rarely happens?
Lord Goldsmith: My Lords, I have just made it clear
that there are a few privately funded cases. The considerable majority of cases are publicly funded. I have made that absolutely plain already. I have said that as a result this is something which none the less can arise in privately funded cases. So I have answered my noble friend's question. She may not like the answer, but I have answered it.
My noble friend's second question was to ask me how to interpret consents which are given to psychiatrists in certain cases. I think that I need notice of the question. I shall certainly consider it and write to my noble friend about it. I do not think that I should answer it simply standing on my feet and being faced with it for the first time.
Lord Wedderburn of Charlton: My Lords, will my noble friend put that letter in the Library of the House?
Lord Goldsmith: My Lords, I put all letters that I send to noble Lords arising from debate in the Library. So the answer to that is, of course, yes.
Lord Thomas of Gresford: My Lords, I am very grateful to the noble Lord, Lord Bassam, and to the noble and learned Lord the Attorney-General for illustrating better than I possibly ever could the reason why I do not propose to debate the matter at length at this stage. The whole topic of defence disclosure is extremely important. If these provisions go through, they could significantly alter the balance in a criminal trial from that which the noble Lord, Lord Kingsland— for whose support I am grateful— indicated has been the law for centuries.
It is entirely wrong that a debate on a subject with principles as significant as these should depend on the vagaries of the timetable— there are 20 minutes to go until 10 o'clock, when we are supposed to cease debating it— and on the presence of a very thin House. The whole legislative process is thrown into disrepute if we try to make decisions simply based upon the vagaries of the timetable when various issues come forward for debate. That is the reason why I have not expanded upon the debate we had in Committee and why I shall reserve my fire on a very important topic for Third Reading.
Furthermore, an influential and major speaker on the topic, the noble and learned Lord, Lord Ackner, for reasons that we can well understand is not able to be present at this time of night, although he was in the House earlier this evening. These are all very good reasons for this debate to be delayed.
I shall not listen to gentle hints from the noble and learned Lord the Attorney-General on the topic. I think that it is a matter of considerable public importance. That is the reason why I shall withdraw the amendment at this stage but I give notice that we
372
shall have the kind of debate that was stifled— perhaps "stifled" is too strong a word— or not pursued because the noble Baroness, Lady Kennedy, was out of order under some technical rule of this House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 [Further provisions about defence disclosure]:
[Amendment No. 36 not moved. ]
Clause 37 [Faults in defence disclosure]:
[Amendment No 37 not moved. ]
Clause 38 [Code of practice for police interviews of witnesses notified by accused]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 38:
Page 27 line 41 alter "officers" insert "and other persons charged with the duty of investigating offences"
The noble and learned Lord said My Lords, in moving Amendment No 38, I shall speak also to Amendments Nos. 39 and 40.
In Committee, we addressed the question of the risk that in the hands of over-zealous or unscrupulous police officers undue pressure might be applied to defence witnesses by amending the Bill to require all interviews conducted by the police under the clause to be governed by a code of practice. That is set out in Clause 38.
The amendments will further strengthen the value of the code of practice as a safeguard. As the enabling powers stand, the code of practice would apply only to interviews conducted by police officers. But it occurs to us that interviews with defence witnesses might be conducted by non-police investigators under circumstances where the considerations may not be that dissimilar- for example, Customs or the Serious Fraud Office.
Amendment No. 38 modifies the enabling powers to apply the code to non-police investigators as well as the police Amendment No. 39 requires non-police investigators to have regard to the code Amendment No 40 provides that a failure to have regard to the code will not in itself expose a non-police investigator to criminal or civil proceedings. In short, therefore, the amendments extend the safeguard that we have already accepted and put into the Bill to non-police investigators I hope that noble Lords will agree that that is a useful and important additional safeguard. I beg to move.
Lord Thomas of Gresford: My Lords, it is indeed useful tinkering with the Bill, and we agree with it. It does not go to the fundamental principles with which this section of the Bill is concerned. We will support the amendments.
On Question, amendment agreed to.
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 39 and 40:
Page 28, line 11, after "officer" insert "or other person charged with the duty of investigating offences"
Page 28, line 41, leave out "police officer" and insert "person mentioned in subsection (3)"
On Question, amendments agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Waste and Emissions Trading Bill [H.L.]
Bill returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.
House adjourned at two minutes past ten o'clock.