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Lord Bassam of Brighton: As I have explained, there are precedents. The Criminal Justice Act 1991--which was Conservative legislation--gave the Secretary of State the power to extended the maximum length of curfew orders by order, using the negative procedure. This territory has been trodden before. I understand the power of the noble Baroness's case, but we are

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trying to strike a balance to secure flexibility should it seem sensible, after the pilots have finished, to have longer sentences.

That is an eminently sensible way to proceed. We have met the Delegated Powers and Deregulation Committee half way by picking up on the point about the need to make such orders subject to the affirmative procedure. In some respects, it could even be argued that we are going further by applying affirmative procedures in the curfew order provided under Section 12 of the Criminal Justice Act 1991.

So we understand the argument. We can see part of its import. We take a judgment that we require the flexibility. There are precedents already in place in legislation not put through Parliament by our own party but by Members from the party opposite.

Therefore, although, obviously, we must have great respect for the committee and its work, on this occasion we are trying to strike an important balance. For that reason, I think that we are right to proceed in the way in which we are.

Earl Russell: The Minister said that he had met the committee half way. I cannot help feeling that that savours of what paediatricians describe as a "space perception defect".

We have here a major constitutional principle. There are not very many things in this House which we assume regulations cannot do. Since I arrived here, I have been told by a great many people that extending the length of criminal sentences was one of those things.

I accept the point that the Minister makes about 1991. Almost always, where a question comes up about the limits on executive power, we find that at least once the executive has done it before and got away with it because perhaps we were busy looking at something else. So the fact that there is one precedent in what I remember was an extremely large Bill is not necessarily persuasive.

In conceding a small point of practice, even if one of some substance, while trying to hang on to the whole of the constitutional principle, the Minister is meeting the committee a long way short of half way.

I listened with growing surprise as his answer developed. The points about parliamentary time no doubt have substance. But he seemed to me to be saying that the existence of Parliament is inconvenient to Ministers. No doubt it is. It is meant to be. He is not the first Minister who has said that by a very long way. Parliament has had a rather perverse habit of finding that argument somewhat less than persuasive.

I do not say that there is an iron force in the convention about regulations. I of all people am in no position to say that. But when we voted on a regulation on the Greater London freepost, the noble and learned Lord, Lord Simon of Glaisdale, and many others had laid the ground for that change over a period of upwards of 10 years. The issue had been very carefully

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considered over a very long time and debated a great many times in this Chamber before anyone moved to leaping over the chasm.

I have heard no equivalent debate on whether we should relax the principle that regulation does not extend to length of criminal sentences. If that is indeed going to happen, it would call for very careful consideration by the whole of this House and another place over as long a period as we spent on the question of whether regulations could be voted upon.

Bringing it through just because it might be for the executive's convenience is very far from sufficient. This is a matter of the standing of this House and of the standing of Parliament as a whole. That issue needs a great deal more consideration than we have yet given it.

Baroness Blatch: I am grateful to the noble Earl for that intervention. I shall go back to the Hansard of 1991 to see exactly what happened at that time. However, if it was wrong, two wrongs do not make a right. We did not have the benefit of the Delegated Powers and Deregulation Committee. That has been a remarkable addition to the work of this House. It has been extremely helpful to those of us who deal with Bills as they go through the House.

The committee has given this matter very careful consideration. As I said earlier, it has been absolutely unequivocal in its advice and I believe that it should be heeded.

Lord Dholakia: I listened to the Minister carefully and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 115 not moved.]

Lord Bassam of Brighton moved Amendment No. 116:

    Page 24, line 38, at end insert--

("(3) An order under subsection (2)(a) above may make in paragraphs 2A(4) and (5) and 19(4) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42 [Drug abstinence orders]:

Lord Bassam of Brighton moved Amendment No. 117:

    Page 26, line 2, after ("(2)") insert (", (3A)").

On Question, amendment agreed to.

[Amendment No. 118 not moved .]

Lord Bassam of Brighton moved Amendment No. 119:

    Page 26, line 15, at end insert--

("(5) An order under subsection (4) above may make in paragraphs 2A(4) and (5) and 19(6) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").

On Question, amendment agreed to.

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7.15 p.m.

On Question, Whether Clause 42, as amended, shall stand part of the Bill?

Lord Dholakia: This clause relates to drug abstinence orders. As far as we can see, this new order serves no purpose at all. The clause introduces a new drug abstinence order requiring an offender to abstain from misusing Class A drugs.

The Government recently introduced drug treatment and testing orders. So far up to half of offenders placed on those orders have completed the treatment without regressing. Given the difficulty of working with addictive drug users, that must be seen as a very positive outcome. Treatment can also be made as a condition of an existing probation order. The difficulty with that provision is that often there are delays of two to three months before treatment can be made available. There is no presumption of treatment with drug abstinence orders. Class A users will not stop using the drugs because a court tells them to.

It is envisaged that there will be three pilot studies and that about 3,500 orders will be made every year. If that measure is rolled out nationally, we are talking of between 40,000 and 50,000 abstinence orders which are likely to be made each year. In our view, the offenders are being set up to fail. They will not face automatic custody but will be dealt with for those breaches in the normal way.

A recent study conducted by the Inner London Probation Service into the outcomes of breach proceedings during 1998-99 showed that 21 per cent received a custodial sentence. If that outcome were repeated with this group, the prison population would increase, it is estimated, by up to 10,000 per year.

There are other amendments in this grouping in the name of my noble friend Lord Thomas of Gresford and myself. Perhaps I may speak to them at this stage.

The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): Perhaps we should deal with the Question whether Clause 42 shall stand part of the Bill.

Clause 42, as amended, agreed to.

Clause 43 [Pre-sentence drug testing]:

Lord Dholakia moved Amendment No. 120:

    Page 26, line 23, at end insert--

("( ) A court shall not order a drug test unless it has been notified by the Secretary of State that arrangements for treatment are available in the relevant area.").

The noble Lord said: Amendment No. 120 is concerned with pre-sentence drug testing. Clause 43 enables a court, when considering passing a community sentence, to order a drug test. In most cases it will be known to the court, through reports and other notes, whether or not an offender is misusing Class A drugs. To order a further test would therefore be a questionable use of resources.

The key issue is treatment. Currently, there is often a delay of as long as two to three months before treatment becomes available to those who wish to engage in recovery. It is essential that the Government

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put aside funds to enable agencies to provide relevant treatment properly and promptly as a response to the order of the court for a test. I beg to move.

Baroness Masham of Ilton: I am rather worried about this in case it delays the procedure in court. There are so many drug users now, many of whom are Class A drug users. I believe it is important that drug users are tested so that they become aware; otherwise they will simply go further down the slippery slope. It is possible that they will be sent to a place such as Phoenix House, which deals with drug rehabilitation, instead of being sent to prison. I feel that this amendment might hold up the procedures.

In addition, some prisons now have drug rehabilitation units and it is possible that users will be sent there instead of to other places which would not rehabilitate them. I have worked with young offenders. Over the years I have been appalled at how young the users are and how large the drug population has become. It is very big and I believe that it is necessary to find out whether young people are taking drugs.

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