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Caroline Flint: First, does the hon. Lady accept that in respect of the guidance we need to consult on the risks, and how to assess them in terms of young people in a given area? Does she accept also that there are issues that might vary, but that is how the guidance should help in order for the prosecution to make its case in relation to the offence of supplying drugs, for which a person would have been charged? It would therefore be the role of the Crown Prosecution Service to ask for the aggravating factor to be taken into account, and it will have to make the case based on the guidance. It does that in many other ways in relation to other aggravating factors.
Mrs. Gillan: I appreciate that the Minister is relying on a future publication on guidance, guidelines and consultation. That is why it would have been better if the draft guidelines had been available to the Committee and the consultation had been carried out prior to the Bill being laid before the House of Commons to be considered in Committee. There are matters that worry me deeply: the burden of proof seems to be slipping away because the defence will have many avenues to fall back on to remove their client from the ambit of the clause. That defeats the Government's purpose and the purpose of virtually all the Committee, notwithstanding the insistence of the hon. Member for Bassetlaw (John Mann) that dealing does not happen around schools. It is an extremely worrying aspect of the Bill.
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I am also worried about the Minister's insistence that the safety zone around a school does not have to operate when there has been nobody under the age of 18 inside the school for an hour, and that adults outside the school, on the school premises or in the vicinity of the school, which we have not yet defined, could deal drugs but would be outside the ambit of the provision. The Minister is familiar, as am I, with the Domestic Violence, Crime and Victims Act 2004, the
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Committee stage of which we both served on. In that context, there was a problem with children seeing and becoming inured to acts of domestic violence, and domestic violence repeating itself. There is no difference between that and children seeing and becoming inured to acts of drug taking and drug dealing and starting to believe that it is the norm.
By including these restrictions in this well-meaning clause, the Minister is cutting off her nose to spite her face and not achieving what she intended. I think that the risks are great whether or not the school has been occupied in the last hour by under-18-year-olds. If we are going to have a measure about being in the vicinity of schools, why not make it apply 24 hours a day, instead of leaving this loophole?
I am deeply unsatisfied with what the Minister has said. I appreciate that she will carefully consider how to define ''vicinity'' in the guidelines, but those guidelines are not available to the Committee at the moment so we are unable to see them. She is asking me to place faith in her, which I am unwilling to do. With a heavy heart, I shall press amendment No. 25 to the vote, and I ask colleagues to join me in voting for it.
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 7.
Division No. 3]
AYES
Bellingham, Mr. Henry
Blunt, Mr. Crispin
Gillan, Mrs. Cheryl
Watkinson, Angela
NOES
Clapham, Mr. Michael
Flint, Caroline
Heppell, Mr. John
Iddon, Dr. Brian
Mann, John
Taylor, Ms Dari
Todd, Mr. Mark
Question accordingly negatived.
Mrs. Gillan: I beg to move amendment No. 2, in clause 1, page 2, line 5, leave out subsection (6).
In rising to speak to amendment No. 2, I will be in danger of sounding like an old cracked record, because I have been around this circuit several times. However, I am determined not to give up, and I want to give the Minister yet another chance to respond.
I am pleased to say that the amendment is supported by both Opposition parties. The subsection offers another entirely unnecessary loophole for the defence, and the Minister could do a lot worse than to leave it out. It adds nothing more than a get-out clause. We either want to make dealing in and around schools an aggravated offence or we do not. However, it is hardly being tough on dealers to leave this particular get-out clause in the Bill.
As I read the Bill, a dealer could be selling drugs on a playing field or in a sports pavilion—not far from a
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school, but we do not know whether that would be deemed to be in the vicinity of a school—but if he says that he did not know that there was a school there and could not reasonably have been expected to know, he would escape the provision. I would like the Minister to confirm that that is the case, perhaps by nodding. If the pavilion is round the back of a school, perhaps behind a fence, and the dealer is new to the area, he could say that he did not know that the school was there, even though it might be a matter of yards away, and escape the aggravated offence.
Sports facilities and pavilions count, but many specialist schools have shared provisions that are open to the community. Since specialists schools were introduced and the use school facilities has increased, it is often difficult to tell the difference, because the facilities are open to the general public and do not have ''school'' plastered on the wall. Sometimes such facilities have ''leisure centre'' on the wall, for instance. However, such facilities are part of the school's premises, because they have been thoughtfully erected using private funding, as well as public sector funding, to expand the specialist school programme, of which I was so proud when I was a Minister. It is not easy to spot that such facilities are part of a school.
I shall give the Minister another example. I went to a boarding school in Cheltenham and the house in which I lived, St. Austin's, was some way from the school. I used to walk from the school to a house where I lived with 50 other girls. That house was part of the school, but there was no way that anyone could ever have told that, unless they happened to know that it was boarding house for girls. It looked like it could even have been one of those posh little boutique hotels that are so popular now.
Mr. Henry Bellingham (North-West Norfolk) (Con): It was a very posh school.
Mrs. Gillan: That is for others to say. My school was a hard school; it had bars on the window.
Mr. Bellingham: To keep the boys out.
Mrs. Gillan: No, to keep the girls in.
A dealer could argue that he did not know that that boarding house was part of the school and would get away with the aggravated offence, unless the Minister were willing to state, for when the legislation is interpreted in future, that she would include boarding schools.
There is another issue that I should like to ask about, although I did not know where in the Bill to raise it and have chosen this clause, because it deals with identifying premises. What happens, for example, when someone is dealing outside a local authority care home? In some cases care homes are educational establishments. The children resident there receive education on the premises. If the state is in loco
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parentis, an extra burden of care should be placed, with a commensurately high penalty for a dealer who offends anywhere in the vicinity of that home. Has the Minister considered extending the provision in proposed subsection 4A(6) of the Misuse of Drugs Act 1971, which I suggest should be deleted, to include care homes, as there would be a concentration of youngsters, which would appeal to any dealer?
That aside, I return to my original argument. If the offender or the offender's barristers reads the wonderful words in those provisions,
''did not know and could not reasonably have been expected to know'',
they could put up a pretty good argument that they did not know they were near a school in use by persons under the age of 18. If a night class was taking place, the dealer could say, ''But I thought it was an adult night class.'' There could be children learning in a late night session and the dealer would still get away with it.
John Mann (Bassetlaw) (Lab): Is not the hon. Lady in essence arguing against the entire clause, which she was earlier saying she supported? Let us consider the Johanna primary school, which I live next door to and which is at the back of Waterloo station. People who might well be of no fixed abode reside in that area. There might be an occasion when one such person sells a joint of cannabis to another. Is she suggesting that that should be an aggravated offence because it would be directly outside a school and, potentially, during the relevant hours?
Mrs. Gillan: I think that it is for the Minister to define the premises and what is going on. I have a dilemma because I support the clause but I do not think it is strong enough. It has too many loopholes, has been hastily put together and is not well drafted. That is probably as damning as I can get.
I am sad that I am in position where I appear to be arguing against the clause. If we were to include the clause and flex our muscles to show that we are against dealers being around children and school environments, why should we make it easier for a successful defence to be mounted to remove the application of the clause? It is as simple as that.
The hon. Member for Bassetlaw asked me to answer the questions, and I would love to do so from the Government Benches as a Minister in charge of this Bill. It is for the Minister to convince us that her proposed legislation will work well. While this measure is left in the Bill, I do not think it will work in the way that she intends.
Mr. Carmichael: I, too, welcome you to the Chair, Mr. Illsley. I always find that the wonderful thing about Standing Committees is that at the start one can never anticipate the direction in which they will go. As I prepared for today, I had at no stage anticipated that we would end up discussing provisions to protect the moral welfare of the young ladies at Cheltenham ladies college. That demonstrates the way in which matters can proceed.
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My hon. Friend the Member for Winchester (Mr. Oaten) and I have our names appended to the amendment. We had submitted an amendment on identical terms. Our purpose was to probe the Minister on the basis on which she felt that the provision would work. I have reservations about its practicalities and, as I mentioned, I come at this from the position of one who has previously worked both as a prosecutor and as a defence agent in the criminal courts for a good number of years.
Will the Minister explain about this particular defence, if I can put it that way? I am unsure whether someone can have a defence of an aggravating factor. If a matter is to be contested, how will this aggravating factor apply.? How will it be proved? Will it be done by way of proof and mitigation? If that is the case, what will be the standard of proof that is required to establish that an aggravation of the offence is involved? Is that something that the prosecution will have to prove beyond reasonable doubt, or will it be sufficient for it to prove it on the balance of probabilities?
When it comes to having that defence, the onus presumably moves to the defence to establish that the defendant
''did not know and could not reasonably have been expected to know''.
Again, will that be required to be established beyond reasonable doubt or on the balance of probabilities? Will it be sufficient for the defence to produce evidence that would produce any sort of reasonable doubt?
There is nothing in the Bill that deals with those matters. It would be of enormous assistance to prosecutors, defence lawyers and the courts if things were to be made available. Their absence rather confirms in my mind the suspicion that has been voiced by the hon. Member for Chesham and Amersham that this is not particularly well drafted legislation and that it has been produced in haste.
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