Criminal Justice Bill

HL Deb 29 October 2003 vol 654 cc283-335

4.16 p.m.

Report received.

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—

1. (a) section 4;
2. (b) section 6;
3. (c) section 8; and
4. (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 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.

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 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.

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 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.

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.

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 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—

1. (a) for the area to be sealed off; and
292
2. (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 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.

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.

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 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 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.

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.

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, "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 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.

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, 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.

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.

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 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.

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 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 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 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 ofHansard 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.

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.

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 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 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 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 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 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 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.

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.

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 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 moved Amendment No. 15: After Clause 9, insert the following new clause—

"DESTRUCTION OF FINGERPRINTS AND SAMPLES

1. (1) Section 64 of the 1984 Act (destruction of fingerprints and samples) is amended as follows.
322
2. (2) In subsection (3), the words ", except as provided in the following provisions of this section," are omitted.
3. (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.

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.

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) 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 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 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 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 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 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".

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 moved Amendment No. 22: Page 14, line 46, leave out from "not)" to end of line 47.

On Question, amendment agreed to.

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 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 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.

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.

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 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.