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Baroness Scotland of Asthal: I thank the noble Baroness, Lady Walmsley, and the noble Lord, Lord Waddington, for what they have said. If one

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were to take the middle course, it looks as though the Government have got it about right—no one is happy, but everyone seems to be content.

Clause 11 negatived.

Clause 12 [Drug testing for under-eighteens]:

Lord Adebowale moved Amendment No. 43:

    Page 7, line 17, at end insert "and has reasonable grounds for believing that the person has a propensity to misuse Class A drugs and that the misuse by the person caused or contributed to an offence"

The noble Lord said: In moving Amendment No. 43, I shall speak also to Amendment No. 49. I know that Amendment No. 48 will be considered separately, but it may be convenient to raise some of the points now. I realise that some Members of the Committee will want to return to that amendment.

Clause 12 highlights the Government's intention to extend blood testing at the point of arrest and pre-sentencing to 14 to 17 year-olds. They also want to include blood testing and treatment conditions as part of post-custody licence. Before turning to the specifics of the amendment, I want to turn to the principles of extending blood testing to young people.

The overwhelming objective is to ensure that we maintain the right balance between providing appropriate interventions and doing so at an early stage while treating young people and respecting their rights carefully. That also involves considering what we mean by appropriate interventions for young people aged 14 and over, as well as children who are below 14.

The Bill aims to extend testing and subsequent interventions as regards people who are over 14 and under 18 at different stages within the criminal justice system. While I have supported the expansion of options for adult users aged 18 and over in the criminal justice system, the transfer of testing of young adults is not so straightforward. Our imperative is to ensure that testing young people does not become a bolt-on to existing arrangements for the testing and treatment of adults. We must also be satisfied that the provisions in the Bill will not lead to the position in which criminal justice initiatives for young people become a priority over providing treatment to those young people who have not committed a crime and who can be prevented from committing a crime in the future by prompt access to treatment outside the criminal justice system.

In addition, while drug experimentation and occasional use are relatively common among adolescents, national statistics suggest that fewer than 1 per cent of young people aged 16 or under have ever used heroin or cocaine and even fewer are regular users. Testing therefore may be a poor means of identifying problem behaviours. Certainly the price of not getting it right by providing the wrong intervention at the wrong time is high.

I know that Drugscope and the Children's Society have expressed deep reservations about these proposals. These include serious concerns on whether the proposals contravene the UN declaration on the rights of the child and whether the powers to observe

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urine testing and holding people in police cells while awaiting results may contravene European human rights law. It would be wrong to dismiss these concerns outright. They share many of the concerns to which I shall now turn.

I declare an interest as chief executive of the social care charity, Turning Point. I know from experience that drug taking is a serious problem, especially among under-18s. Ten thousand young people were in contact with Turning Point in 2001–02, although that includes intervention across prevention, education as well as treatment. At a local level, for instance, in Sheffield we supported 4,000 people and approximately 200 people in treatment. Turning Point's view is that early interventions, including criminal justice interventions, are needed to support young people over 14 whose patterns of abuse may be entrenched even at a young age.

Four points on testing need to be addressed before I am satisfied that the Government have struck the right balance between treatment and protecting the rights of the young person first. The Bill's proposal for testing people who are charged will result in them engaging in a treatment process at a police station, which by no stretch of the imagination is a young people friendly environment. I hope we can receive assurance that the welfare of the young person will not be compromised and that the appropriate links with specialist drug agencies will be made at an early stage.

My second concern centres on guidance and safeguards. The aim of testing at charge is surely to identify problematic substance misuse and related crime and to provide suitable care. I would like assurances on how testing by police at the point of charge will help identify and sensitively meet a young person's broad and often complex range of social care needs that may include education or problems within the family home.

My third concern over testing is over the status of the sample and how the information derived from the results of the test is used. We need assurances that information from test results is handled sensitively. These results should be used only to inform a course of treatment rather than influencing criminal proceedings where they have no bearing on the crime and do not relate to problematic behaviours. I hope that the Minister will confirm that the test results will not be used as additional evidence in support of offences that the person has been charged with, or as an aggravating factor when sentencing. As part of this argument, we must recognise that not all class A drugs, such as LSD and ecstasy drugs, are linked to dependence or offending, making testing for them of little use in identifying problematic behaviours.

My fourth point on testing is that we need a greater understanding of ways in which drug testing will work in practice, particularly clarity of issues around consent and the presence of an appropriate adult—a point already raised by Drugscope and the Children's Society.

My specific amendment focuses on the circumstances that give rise to the testing of young people who are under 18. It seeks to restrict drug

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testing to two situations. First, there must be reasonable grounds for believing that the person is dependent or has a propensity to misuse class A drugs. Secondly, that misuse or dependency caused or led to a criminal offence. It is very much a belt and braces amendment.

I appreciate that it is the Government's intention to incorporate the criteria that govern testing for adults to young people who are under 18. This includes a requirement that an individual must have been charged with an acquisitive offence and that class A drugs have been misused and contributed to that offence. However, given that Clause 12 introduces testing for under-18s for the first time, I believe that the safeguard should also be set out clearly on the face of the Bill.

The amendment also makes clear that the clause is not about random testing of 14 year-olds, which is the extreme way in which it may be painted. It is important that the police are reminded of their obligations before a young person is deprived of his liberty and a sample is taken from him. In any event, given the gravity of the proposals that extend drug testing to young people for the first time, I hope that the Government will use the opportunity to confirm that these safeguards will be put in place.

The aim of Amendment No. 48 is to probe the Minister's intention with regard to testing for children. It removes the right to change by statutory instrument the age for testing. I know that the other place expressed strong reservations about extending drug testing downwards to children aged 13 and under and allowing this change in law to be introduced through a statutory instrument. I need to be convinced that testing for children would maintain the sensitive balance between providing appropriate interventions and respecting the human rights of children.

The Criminal Justice Act 1991 defines a child as a person who is under the age of 14. The most persuasive argument for not testing below the age of 14 is the result of the recent lifestyle survey which indicates that testing for class A drugs for under 14s would not be an efficient use of resources. While it is true that children may develop problems with drug use, there are also important human rights issues in relation to consent and concerns about the legality of testing children between the ages of 10 and 14. I am unsure whether testing children would conform with international and national obligations to treat children in a special and careful way, and to give them certain rights in the criminal justice system. It would be useful if the Minister could confirm the legal consequences of testing for children aged 14 and under. I am certainly aware that a child will need to have parents present if he is to be detained at a police station for testing and that this will have repercussions for the individual and the family concerned. In any event, I would be very interested to learn whether the noble Baroness, Lady Scotland of Asthal, has plans to extend drug testing for children at a later date.

Anticipating the Minister's response, I understand that the Government may want to argue that this power gives them the right to increase the age for

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testing as well as to lower the age. The way around this would be to make specific provision for increasing the age limit only by explicitly stating that the Secretary of State can by statutory instrument increase, but not lower, the age for testing.

I also wish to speak to Amendment No. 49. There is a current requirement that states that testing cannot be carried out until arrangements for testing have been made for the police area as a whole or for the particular police station. This amendment places an additional requirement that will mean that testing cannot take place until arrangements for treatment have been developed in the police area as whole. Moreover, treatment would need to be appropriate for young people under 18. It would not be sufficient for adult-based service provision only to be available in that area.

I am concerned that the Bill is explicit on the testing requirements but silent on the right to treatment that should follow testing. This concern is shared by Turning Point and DrugScope. If we are prepared to take what many would regard as the drastic step of testing a young person then this House needs to be satisfied that safeguards are in place to ensure that the testing procedure works well and that treatment follows. A failure to deliver treatment would mean invading a person's privacy without delivering any consequential benefit at the other end.

Many noble Lords will be familiar with the Audit Commission's report that demonstrated that provision of treatment is often patchy or inadequate. A failure to provide treatment will severely damage a young person's life and may mean that he will continue his drug use and disengage from services in the future. There is also a risk of relapse if after-care services are not provided. This amendment will ensure that young people have age-specific, tailored services rather than being tested or treated in an adult-based system. I hope that the Minister will give a strong signal that testing for young people will not encourage young people into an adult-based system, which will only serve to exacerbate rather than to deal with their behaviour. My amendment is an important safeguard to prevent that happening.

I also hope that the Government will take the time to research what works and to promote good models for young people's services. The service needs to be specifically designed for young people and not to be a cut-down version of adult services. Young people should be involved in the planning, management and review of services. Services must take account of issues such as accessibility, confidentiality and the need to avoid stigmatisation. An effective assessment process that identifies the needs and aspirations of the young person on an individual basis is also essential. This involves the development of accurate and comprehensive assessment procedures and it must also be appreciated that the process of intervening with vulnerable young people is likely to require the involvement of a wide range of agencies.

Treatment provisions also need to be consistent with other government-led policy which is moving towards young people's needs holistically and from a preventitive

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health and welfare point of view. Indeed, the Government's own guidelines confirm that children should not be referred to adult services and that under the Children Act 1989 local authorities are responsible for protecting children and young adults and promoting their welfare. This is the most persuasive argument in support of Amendment No. 49. I hope that the Minister will give an assurance that the Government will develop pilots and timescales to improve the evidence base because of the specific needs of young people and my concern over testing. I hope that they will examine thoroughly the best ways to help prevent young people from committing crime and to prevent dependent drug use from happening in the first place.

I would also welcome some clarity on how action plan orders will operate for young people following the Criminal Justice Bill, given that community orders only apply to young offenders aged 16 and over, and an assurance that the role of drug agencies in supporting youth defending teams will be enhanced. Has the Minister estimated the number of young people who will access treatment in the next year? What new resources have been put aside for developing young people-specific services? It would be useful to know how the Government envisage that testing for young people will link in with other initiatives such as the long-awaited Green Paper on children at risk.

Finally, I hope that the Minister will be prepared to give a commitment to report back to Parliament to share lessons learnt from pilots and from young people's interventions before proceeding with tests for under-18s. I beg to move.

5.45 p.m.

Lord Hodgson of Astley Abbotts: We have some amendments in this group and I have listened with care to the noble Lord, Lord Adebowale, who obviously speaks from great experience and knowledge. We share some, but not all, of his concerns. Certainly we share his emphasis on the importance of treatment and prevention. Our Amendments Nos. 44, 47 and 50 all focus upon the age boundaries at which children can be tested for drugs while Amendment Nos. 51 and 52 concern the age boundaries and definition of those adults who can accompany children during testing for drugs. Our view is that, provided testing is well regulated to ensure no adverse impact on the child's welfare, we support this new proposal for testing of under 18 year-olds for drugs. However, certain age brackets and certain definitions within this clause have caused us some concern and we have put down these amendments to enable us to tease out the Government's thinking on these important points.

Amendment No. 44 concerns the minimum age for testing for class A drugs, which our probing amendment proposes to reduce from 14 to 12. It could be argued that if the drug testing process is carefully undertaken without intrusive measures and with an appropriate adult present the new proposal in Clause 12(3) of the Bill is a step in the right direction. If, and I repeat if, the procedure for drug testing is sufficiently

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regulated to allay concerns among parents and the children's societies as well as the many interest groups in drug treatment we see no reason why, in principle, this testing should not be extended to 12 year-olds. As Mr Grieve pointed out in Committee in the other place:

    "There is ample evidence that drug misuse starts before the age of 14 and . . . it is perfectly likely that children of 12 will be brought into police stations".—[Official Report, Commons Standing Committee B, 7/1/03; col. 147.]

It is also perhaps useful to draw to your Lordships' attention Mr David Kidney's explanation in the same Committee meeting as to why testing is appropriate for children, as justified to him by Sergeant Cartlidge of the Staffordshire Police At columns 152 and 153 he said:

    "The first is a moral reason: if someone who is young and vulnerable has a dependency that might destroy the rest of their life, we should intervene to try to help them. The second concerns crime prevention: if we know that such drug dependency will drive a young person into increasing acquisitive crime, it would be helpful to intervene to try to wean them off the drugs, so that they are not driven to commit the offences."

So the two main aims must be those of rehabilitation and prevention. Rehabilitation is clearly focused on the child's welfare, and prevention, although in part concerned with maintaining good order in society, has the child's interests at heart in keeping him out of trouble or, at worse, prison.

If the Government believe that class A drug habits in children can be reduced through the drug testing process why is 14 chosen as the minimum age? Could it not be tackled successfully at an earlier age? The Minister's response to that query in the other place was that:

    "The school lifestyle surveys of 11 to 15-year-olds carried out by both the Department of Health and the Youth Justice Board found that cannabis was the most widely used drug, and that class A drug use was very rare".

I believe that that point was made by the noble Lord, Lord Adebowale.

    "Those results indicate that testing for class A drugs in those under the age of 14 would not be an effective use of resources".—[Official Report, Commons Standing Committee B, 7/1/03; col. 162.]

While that is undoubtedly interesting evidence, those are drug tests on school children who, I stress, were at school. I may be wrong, but I suspect that the majority of young people whom the police suspect to be stealing to fuel a class A drug habit may well not be the type to have a high school attendance record. In other words, the Minister may quite inadvertently have reached an inaccurate conclusion because of the way that the sample was selected.

In support of that view I quote the article in yesterday's Observer by Stephen Khan, which was entitled, admittedly rather luridly,

    "New wave of heroin sucks in pre-teens".

Not only does the article detail the increasing supply of heroin, but it also states:

    "Academic studies have shown pre-teens are now experimenting with heroin".

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In the article Professor Neil McKeganey of the University of Glasgow said:

    "We asked drug-using 11 and 12-year-olds in Scotland if they had tried some form of heroin. Between 5 and 6 per cent of them said yes. Five years ago the percentage would have been zero".

Such evidence—I have no way of knowing how accurate it is—paints a very different picture of class A drug use among pre-teens. We accept that this is a very sensitive issue which was discussed at length at Committee stage in the other place, but we wish to probe the Government—particularly considering the arbitrariness of other government age categories—as to why the minimum age of 14 has been chosen, considering the factors that I have just been explaining.

While Amendment No. 44 concerns the minimum age at which a child can be tested for drugs, Amendments Nos. 47 and 50 relate to the maximum age of a child who must be accompanied by an adult when tested for drugs. Clause 12 is entitled,

    "Drug testing for under-eighteens",

and yet the accompaniment of an appropriate adult during testing seems to be relevant only to a person who has not yet attained the age of 17. That is line 28 on page 7 of the Bill.

In the other place the Minister explained, again at Committee stage on 7th January, that the provisions applicable under,

    "the Police and Criminal Evidence Act . . . require that any person who seems to be under the age of 17 be treated as a juvenile".—[Official Report, Commons Standing Committee B, 7/1/03; col. 165.]

That is a curious use of the words "seems to be". A moment earlier the Minister had told the Committee that:

    "The Children and Young Persons Act 1933 as amended by schedule 8 to the Criminal Justice Act 1991 defines . . . a young person as a person who has attained the age of 14 and is under the age of 18".—[Official Report, Commons Standing Committee B, 7/1/03; col. 162.]

Not 17. He went on to explain that using the provisions of PACE are easier and more practicable as they do not necessitate the presence of an appropriate adult during the testing process of a 17 year-old.

Both the Children's Society and the United Nations have rather different views on that age cut off. Article 1 of the United Nations Convention on the Rights of the Child states that for the purpose of the present convention a "child" means every human being below the age of 18 years. The Children's Society concurs with that statement and I am sure that many noble Lords will instinctively agree that a 17 year-old should fall within the definition of "child" as regards legal procedure. That means anyone under the age of 18, hence our amendment.

A very helpful briefing from the Children's Society, which I am sure many noble Lords will have received, further highlights that concern. The UN Committee on the Rights of the Child has twice criticised the anomaly of 17 year-olds being regarded as adults during the pre-trial process for the purpose of PACE and remand. This occurred in both 1996 and 2002.

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Specifically in its 2002 report it recommended that the United Kingdom should review the status of young people of 17 years of age with a view to giving protection to all children under the age of 18. Clause 12 again raises that anomaly in our law in so far as a 17 year-old will not be safeguarded by the advice or presence of a parent or other appropriate adult in the process of being charged, in deciding to consent to a drug test—the refusal of which is itself a criminal offence—nor finally during the process of carrying out the test by mouth swab. A 17 year-old is in every other aspect a minor in both domestic and international law. We believe that the failure to treat them as such in the process of arrest, charge and pre-trial decision making and to provide the same safeguards as those in place for children of younger ages needs a better justification than the Government have so far given.

I understand that the terms "juvenile", "young person" and "child" can have varying definitions under different Acts, or under different subsections of different Acts. During this debate I seek to focus strictly on a person under the age of 18. That follows the logic of the special provisions that the Government have made for the treatment of under 18s when testing for drugs. The Government apparently share our belief that under 18s should be given special treatment when it comes to the procedure involved in drug testing. It seems therefore highly inconsistent for the Government to exclude those who are 17 from this same special treatment when it comes to the attendance of an appropriate adult. Common sense dictates that 17 year-olds should be afforded the same safeguards as other children. That means that an appropriate adult should be present during testing. Why change and confuse an already established set of definitions and further complicate the already highly sensitive area of drug testing for children? The children's best interests and welfare must surely be our central concern, not the use of the most convenient points of administrative reference.

Finally, I turn to Amendments Nos. 51 and 52. They still concern Clause 12. The previous amendments deal with precise age limits for those to be tested, whereas these deal with the age boundaries and appropriateness of adults who are to be in attendance during the testing of an under-18 year-old for drugs. We feel that defining the appropriate adult requires a careful balance to be struck, one that guarantees that the time that a child spends in custody is the minimum possible, but equally that the accompanying adult has enough authority, maturity and relevant experience to ensure that the child will be treated properly. Clearly it is wrong to restrict unduly the range of appropriate adults, as we would all want the child to be held by the police for as short a time as possible.

Consequently, the inclusion of Amendment No. 51 seeks to broaden the choice available under new subsection (10)(a), while keeping it within the boundary of a family member. The child to be tested therefore has the additional possibility of having a responsible relative in attendance during the process. We feel that such an adult relative should be over the age of 21. We think that setting a minimum age of 21

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puts some distance and maturity between the child being tested and the accompanying adult. Without that one could have a situation where the person being tested is on the verge of turning 17 and the accompanying adult only a year older.

While Amendment No. 51 broadens the choice of appropriate adults who can be in attendance during testing, Amendment No. 52 seeks to inquire of the Government just how broad that definition can be. New subsection (10)(a) defines the appropriate adult as a parent, guardian or person representing a local authority or organisation in which the child is in care. New subsection (10)(b) widens the definition of "appropriate adult" to include social workers. We have no objection to these categories which include the most relevant parties; namely, those who have raised the child themselves, those who are taking care of the child at the time and those who have been trained how to look after the best interests of a child.

However, new subsection (10)(c) makes the possibility of the appropriate adult in attendance being "any responsible person". It is hard to see how such a person can be expected to have the knowledge to judge where the child's best interests will be. Hence our amendment, which would remove new subsection (10)(c).

When presented with these thoughts in Committee in another place, the Minister explained on 7th January that PACE has a three-stage test,

    "which enables the police to identify an appropriate adult if a parent, guardian or social worker is unavailable".—[Official Report, Commons Standing Committee B, 7/1/03; col. 165.]

The Minister was presumably referring to Section 37(13)(b) of PACE, which describes those responsible for the welfare of the arrested juvenile, other than parent or guardian, as,

    "any other person who has for the time being assumed responsibility for his welfare".

Accordingly, this clearly gives the police yardsticks by which to identify the appropriate adult. Yet it seems that no such yardsticks exist in this Bill. Certainly they do not appear in new subsection (10)(c). Furthermore, we are not just dealing with a juvenile's protection when in custody—there is the additional burden of responsibility, given the potentially intrusive nature of the drug-testing procedures.

New methods of testing for drugs are now being tried, and another helpful briefing from the Children's Society explains the position. New forms of testing involve saliva being taken from the mouth and then run through a machine, but this merely gives a positive or a negative result. Two issues are raised here: the first is whether the Government will have one of these expensive testing machines in every police custody station in the country when these laws come into effect and, if not, how intrusive will the alternative testing have to be.

The second issue is a little more complex. These machines gave only a positive or a negative result, and so, presumably, further intrusive tests, such as urine or blood samples, will have to take place to corroborate

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or confirm the initial result. We understand that if the child disputes the validity of a test the court will only accept the result of urine analysis as a legal standard of validity although we understand that, in practice, technology in this area has advanced at a great pace.

All these facts do not yet appear entirely clear. As I understand it, these machines have not yet developed past piloting stage. One therefore has a concern that the Government are equally unsure about the degree to which such non-intrusive testing schemes will work at a national level. Both potential outcomes are examples of how the possibility remains for intrusive drug testing for under-18s. This adds extra weight to my previous argument in Amendments Nos. 47 and 50 concerning the importance of the attendance of an appropriate adult for 17 year-olds.

Amendments Nos. 51 and 52 further underline the necessity for stricter guidelines to be placed upon the definition of "appropriate adult". This is presumably why the Government have provided a detailed specification of the definition of "appropriate adult" in the Bill rather than simply referring to the PACE guidelines.

We think that the words:

    "any responsible person aged 18 or over"

leave the field too broad. Amendments Nos. 51 and 52 are therefore probing amendments to ask the Government for an explanation of how that phrase will be interpreted.

6 p.m.

Baroness Walmsley: I support Amendments Nos. 43 and 49 in the name of the noble Lord, Lord Adebowale, to which I have put my name. I echo his cogent arguments, which I have no intention of repeating. I should also like to speak to Amendments Nos. 45 and 46 in my name and support Amendment No. 50 in the name of the noble Lord, Lord Hodgson of Astley Abbotts.

On Amendment No. 43, I think it is vital that drug testing of young people at the charge stage is done only where there are grounds for believing that the misuse of a class A drug is habitual and has caused or contributed to the offence. We know that only about 3 per cent of young people who ever use drugs have a problem habit. We also know that many young people experiment with drugs. For the majority, this does not go on to become a habit or a problem at all. Similarly, while most young people try a cigarette at some stage, many of them never go on to become smokers, despite the fact that nicotine is a lot more addictive than something like cannabis.

It is vital, therefore, that we are not heavy-handed in the way in which we deal with this sort of experimentation. The introduction by this Bill of compulsory drug testing for children for the very first time raises many serious issues. It should, like all our other legislation, be based on the UN Convention on the Rights of the Child, to which we are signatories. In this connection, I declare my interest as a parliamentary ambassador for the NSPCC, which campaigns for that very thing. That is why I have laid, and support,

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amendments that treat 17 year-olds the same as 14, 15 and 16 year-olds in respect of these issues—in other words, the same as anybody under 18, as does the convention.

In relation to Amendment No. 49, we are all aware that the provision of treatment services for under 18s is very patchy indeed. When an adult has a drug test which comes up positive, we can be fairly confident that there are some sort of treatment services available for them, although some are better than others. However, the same cannot be said for children. It is therefore quite unjustified to insist that children undergo such tests and consequent invasion of privacy when the services are not there for them. I will return to whether such testing is the best way of addressing the problem in the debate on Clause 12 stand part.

In the meantime, I ask the Minister why the Government seem to be so muddled about the cut-off ages for different purposes for under-18s? Is she convinced that putting them in a situation where to refuse such a test is a criminal offence is really the best way to get compliance from a young person who finds himself in trouble with the law?

Since the noble Lord, Lord Adebowale, mentioned Amendment No. 48, perhaps I may also express my support for that. I would not like the Home Secretary to be able arbitrarily to lower the age limit. I already have considerable reservations about drug testing for 14 to 18 year-olds, so to take it any lower would be a very bad thing.

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