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Public Bill Committee Debates

Draft Criminal Justice and Police Act 2001 (Amendment) Order 2009

The Committee consisted of the following Members:

Chairman: Mr. Eric Illsley
Burrowes, Mr. David (Enfield, Southgate) (Con)
Caborn, Mr. Richard (Sheffield, Central) (Lab)
Clarke, Mr. Charles (Norwich, South) (Lab)
Eagle, Maria (Parliamentary Under-Secretary of State for Justice)
Gilroy, Linda (Plymouth, Sutton) (Lab/Co-op)
Hesford, Stephen (Wirral, West) (Lab)
Hollobone, Mr. Philip (Kettering) (Con)
Howarth, David (Cambridge) (LD)
Lucas, Ian (Wrexham) (Lab)
McDonagh, Siobhain (Mitcham and Morden) (Lab)
Seabeck, Alison (Plymouth, Devonport) (Lab)
Taylor, Ms Dari (Stockton, South) (Lab)
Timpson, Mr. Edward (Crewe and Nantwich) (Con)
Tredinnick, David (Bosworth) (Con)
Willis, Mr. Phil (Harrogate and Knaresborough) (LD)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Sara Howe, Committee Clerk
† attended the Committee

Third Delegated Legislation Committee

Thursday 22 January 2009

[Mr. Eric Illsley in the Chair]

Draft Criminal Justice and Police Act 2001 (Amendment) Order 2009

8.55 am
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): I beg to move,
That the Committee has considered the draft Criminal Justice and Police Act 2001 (Amendment) Order 2009.
It is a pleasure to be here this early in the morning. I know that that is harder for Opposition Members, who were partying late into the night, from what I hear. I hope that they had a great time and that they are not too under the weather this morning as a result.
The order is designed to add the offence of cannabis possession to the penalty notice for disorder scheme. That is part of the process that the Government are going through to set in train arrangements to reclassify cannabis as a class B drug, it having been classified as class C. The order enables cannabis possession to be subject, at the discretion of the police officer on the spot, to a penalty notice for disorder.
The offence was included in a previous draft order, laid before Parliament on 15 December. In view of concerns raised about some of the other offences listed in that order, we decided to withdraw it and consult more widely on the new offences to be added to the scheme. However, as my right hon. Friend the Home Secretary has said, the penalty notice for disorder will play an important part in the overall regime to deal with cannabis possession, so I am introducing the new order now.
Penalty notice disposal provides the police officer on the spot with a quick and effective way of punishing minor, nuisance offending by minimising the paperwork and processing required from the police. I remind the Committee that this measure is just about possession for personal use; it does not extend beyond that most minor of the potential offences. Issuing a penalty notice for disorder takes the police officer approximately 30 minutes, compared with two and a half hours to prepare an evidential case file if there is an arrest and more serious action. The officer is then freed up to return to patrolling the street. The cases do not have to be taken to court, which relieves the burden on the courts.
Cannabis, which is used in public far more commonly than other illicit drugs, is linked with antisocial behaviour and public disorder. Penalty notices are specifically designed to deal with such behaviour. Cannabis warnings will continue to be available to the police, but penalty notices for disorder are a criminal sanction and impose a financial penalty, which cannabis warnings do not. Penalty notices are therefore sanctions of a different order. We intend to fix the penalty amount for cannabis possession at £80.
The introduction of the provision will offer a proportionate response to a second possession offence, as part of a strengthened escalation process of enforcement on reclassification of cannabis to a class B drug, which is due to take place on 26 January. It is intended that first offences will continue to be dealt with by a cannabis warning, with instances subsequent to that dealt with by the issue of a PND. One would expect arrest and prosecution if someone was caught for a third offence. Instead of a series of cannabis warnings, which have no escalating effect and therefore do not provide a deterrent to further offences as an escalation of penalties does, this measure will provide an intermediate step between a cannabis warning and arrest and prosecution.
PNDs have greater potential to alter behaviour, providing the offender with a final reminder, in the form of the financial penalty, to change their ways before more serious action is taken. We believe that this disposal will provide valuable assistance to the police in cracking down on those caught in possession of cannabis for personal use and that it will be a useful addition to their armoury of powers. On that basis, I hope that the Committee will support the order.
8.59 am
Mr. David Burrowes (Enfield, Southgate) (Con): It is a pleasure to be able to serve under your chairmanship, Mr. Illsley. That was in doubt when I was stuck for 30 minutes in a tunnel at Euston because of someone having been taken ill at Green Park. I apologise for being late.
This debate is an unexpected pleasure, given that the order was originally due to be debated on Monday. The content of the order does not surprise us, given the Home Secretary’s announcement last October that the Government in effect recognised their mistake and were reclassifying cannabis as a class B drug, and the accompanying announcement of the extension to the PND scheme.
The process this morning, however, borders on farce. The order relates to enforcement following the cannabis reclassification. It was the Government’s original plan to include cannabis offences with 21 new offences. Paragraph 4.7 of the explanatory notes explains that the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2008, which was introduced under the negative resolution procedure, set out the penalties payable and included the 21 offences in question, until the Government belatedly realised that they had not properly consulted Transport for London and other organisations, particularly, I understand, about taxi touting. The explanatory note tells us that
“the Government now plans to consult”.
We are here this morning, as has been explained, because of the order made on 10 December reclassifying cannabis as a controlled class B drug. That order comes into force on Monday. The Government therefore are in effect going on bended knee before us today—although we have not actually seen the Minister do that this morning. Paragraph 3.1 of the explanatory notes makes it clear that the Government want us to follow through with the order, as it would, apparently,
“greatly aid the enforcement of the offence of cannabis possession”.
It adds:
“It extremely helpful if early consideration”—
such as we are giving today—
“could be given”.
I do not propose to be helpful today. Why should we treat the process of passing delegated legislation as an administrative tool to fit in with the Government’s policy timeline, which is how, in many ways, the Government seem to want us to deal with the order today? Parliament approved the reclassification order on 10 December, but during the debate strong reservations were made about the issue before us today—specifically in relation to enforcement. I want to deal with some of those reservations.
First, explanatory notes issued prior to confirmation of the order on 10 December said that there was no formal public consultation. For clarification, the order that was to have come before us on Monday was explicit about that. The explanatory memorandum argued that
“all those most involved and affected have had ample opportunity to make their views known.”
The fact that the previous order was pulled because of lack of consultation must put the spotlight on that very issue of consultation with respect to penalty notices for disorder for cannabis possession.
Today’s explanatory memorandum refers to wide publicity and debates in Parliament that have made the Government’s intention clear. There is no dispute about that intention, which was made clear in October. What is not clear are the details of consultation by the Government with their own stakeholders.
During the debate on the order reclassifying cannabis —which took place at a similar time to this on 6 November—my hon. Friend the Member for Hornchurch (James Brokenshire) asked the Under-Secretary of State for the Home Department, the hon. Member for Tynemouth (Mr. Campbell) about this, noting that
“the explanatory notes make it clear that a consultation is being conducted by the Ministry of Justice”,
and adding:
“Will he confirm the nature of that consultation? Is it simply in relation to cannabis or to class B drugs more generally?”
The Under-Secretary replied:
“I cannot confirm that, but I will try to do so as soon as I can.” —[Official Report, Eighth Delegated Legislation Committee, 6 November 2008; c. 8.]
No answer was forthcoming during the debate and we still await with bated breath the details of the consultation. Can we have an answer today? Which stakeholders have been consulted? Did the consultation relate just to cannabis or other class B or indeed class C drugs? Were there any objections and was an alternative sanction regime considered? The suspicion is that the announcement of the fixed penalty notice regime was made during the flurry that followed the announcement of the reclassification, which came off the back of the Prime Minister’s commitment to do so, and because the Government wanted to talk tough.
Mr. Phil Willis (Harrogate and Knaresborough) (LD): Will the hon. Gentleman add to his list, so that I do not have to repeat it later, a request to the Minister for any evidence or research done showing that fixed penalty notices for possession of cannabis will result in the change in behaviour that the Government intend?
Mr. Burrowes: The Minister drew a link between cannabis use and antisocial behaviour and public disorder—the type of behaviour at which the fixed penalty notice regime was originally targeted. She also said that such behaviour attributed to cannabis use could be dealt with properly using fixed penalty notices. However, the concern is that the announcement in October of the “three strikes and you’re out” policy—it sounds tough, but we need to draw out how tough it really is—was made without proper consideration. Now that the Government are at the point of no return, we need to know whether there has been the proper consultation indicated back when the reclassification order was made.
Paragraph 7.1 of the explanatory memorandum makes it clear that the PND scheme was established
“for a specified range of minor anti-social behaviour and regulatory offences.”
Low-level antisocial behaviour was the target when the PND scheme came into being, but the concern now is that it has been extended beyond its original remit and purpose. The drip-by-drip alterations to its remit could have been more of a torrent had the Government had their way originally and added 21 new offences. As it is, we now have another drip in the dumbing down of justice with the inclusion of offences that should be prosecuted.
We need to get to the heart of the issue and ask the Minister to explain the Government’s rationale for including possession of cannabis in the PND scheme. As was said in an earlier intervention, is the underlying intention of the PND scheme still linked to antisocial behaviour and public disorder? If so, what is the evidence supporting the link between that and cannabis use? Or does the Government’s reason for reclassifying cannabis remain the same—that cannabis, especially its stronger forms readily available on the streets, is harmful? I endorse that view. The Home Secretary, in her announcement of the Government’s change of mind, said that the reclassification of cannabis as a class B drug will reinforce the message that it is harmful and should not be taken. How does that rationale for the reclassification tally with the enforcement regime? The Government talk about sending out the right message, but will not the use of the fixed penalty notice for public disorder send out the message that cannabis possession falls alongside minor regulatory antisocial behaviour offences.
Maria Eagle: Given the argument that the hon. Gentleman is developing, is he in favour of the use of cannabis warnings, which are currently in use and which we propose to continue to make available to police officers? Is he really arguing for the prosecution of every possession offence?
Mr. Burrowes: I shall explain where I am coming from and, in particular, draw attention to the problems of relying wholly or as a first strike on cannabis warnings and their practical enforcement. We need a reclassification, which is happening, but we also need tough enforcement. As far as we are concerned, that should normally lead to prosecution. That is a matter for the discretion of police officers, but certainly we do not agree with this “three strikes and you’re out” approach”, which we think is a downgrading, rather than an upgrading in terms of enforcement. However, I shall develop that argument later.
The concern about fixed penalty notices is that they are not a tougher sanction, because they lead to no criminal liability, no admission of guilt and no criminal record. Even the Government guidance states that a PND should not be used where
“The seriousness of the offence is such that a PND is not a suitable disposal.”
How will that apply to a case of simple possession of a small amount of cannabis, consistent with personal use, that is none the less high-potency, with a high THC value? We know that 80 per cent. of cannabis seizures are of skunk. What would the police officer’s decision be in that case? What effect would that type of cannabis have on the decision whether to issue a PND or to arrest and consider prosecution? How will the officer decide on the spot whether the cannabis is high-potency skunk?
The problem is that the Government seek to talk tough about “three strikes and you’re out”, but what they are doing in the order is going soft on enforcement. That is clear from the practical implications of the enforcement regime. Strike one is a warning, as the Minister outlined, but the problem is that more often than not, warnings are not recorded.
The Government will be quick to point out that they have a new computer system, but they have a long track record on computer systems. In January 2007 the Home Office informed the House that the proposed PentiP computer system would be introduced by September 2009, at a cost of £9.3 million. Then, on 23 September, the Home Office—surprise, surprise—informed us that the cost had risen £10 million to £19.3 million and that implementation would be delayed until May 2012. Then we heard from the Minister during the debate on the order reclassifying cannabis that the implementation date was 2010. Will she confirm exactly when PentiP will be operational to record cannabis warnings? Without that computer system and proper local schemes and procedures in place, cannabis warnings could go unrecorded and multiple warnings could be issued. We will not get beyond strike one. The Government are rushing to get everything ready for the planned implementation date on Monday, but the computer system is not even in place to record the first strike.
Why is cannabis being singled out as the only class B drug meriting a PND? Will the Government extend fixed penalty notices to simple possession of amphetamines? Given the number of cases of class A possession now being dealt with by cautions, will fixed penalty notices be extended to cocaine, for example, or ecstasy? If the Government can argue that there is an established link between antisocial and disorderly behaviour and class A drugs, will a similar Committee be convened in haste to deal with that? Will a rationale of expedience be used to get cases through and boxes ticked?
David Tredinnick (Bosworth) (Con): I am listening to my hon. Friend’s eloquent speech. He has clearly researched the matter carefully. What is coming through is the impression that the Government have been hasty and that the measures have not been thought through with great care. Rather like all the recent financial measures, they have been brought forward impetuously, which is why this Committee has been forced to sit at the most unusual hour of 8.55 in the morning. It illustrates the general chaos in the Government at the moment.
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Prepared 23 January 2009