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Baroness Scotland of Asthal: In moving the amendment, the noble Lord, Lord Hodgson of Astley Abbotts, said that there was an underlying uncertainty in the Government's approach to the issue of age. I hope that, in responding to the previous group of amendments, I demonstrated that there was no uncertainty. We have set the ages at the appropriate mark to respond to the empirical data that we have. I hope that I have been able to explain that fully.
As I said, research indicates that drug abuse among children, in particular, often relates to class B drugs. The provisions in the clause provide for testing only for class A drugs. That suggests that testing those aged under 14 for specified class A drugs would not currently be an effective use of resources. I highlighted that in my response to the earlier amendments. We suggest respectfully that it is important that my right honourable friend the Secretary of State has the ability to amend—up or down—the minimum age of drug testing under the clause. For example, evidence may emerge to suggest that we would be justified in extending such drug testing to include persons under the age of 14. There is no such evidence now but, as the noble Lord indicated, that may change. We would have to consider that. The provision enables us properly to take into account the evaluation findings, once piloted and other research evidence has been received, so that we can make an informed decision.
The Select Committee on Delegated Powers and Regulatory Reform, on which the noble Baroness, Lady Carnegy of Lour, sits, considered the issue and, on 12th June, published a report. The committee found that the delegation and the level of scrutiny proposed under the clause were appropriate. We invite the Committee to be content with the committee's assessment.
I can reassure the noble Baroness, Lady Carnegy of Lour, that there will be no impact on the age of criminal responsibility. She can rest assured about that. I resist the amendment. I hope that, having heard what I have said, the noble Lord will feel more content than he was when he moved it.
Lord Hodgson of Astley Abbotts: I am sorry to disappoint the noble Baroness. I am grateful to my noble friend Lady Carnegy of Lour for her support. My concern was not about the fact that we might have to change the ages. My concern was about the public consultation—or lack of it—that was to go with such a change.
We have heard from all parts of the Committee strong views on the importance of the various ages—14, 17, 18, 21 and so on. People do not necessarily agree—often, as the noble Baroness said, they are at odds—but, clearly, they feel strongly about the matter. It would not be right for the Secretary of State to be able to introduce by statutory instrument a sudden change to an age without having had regard to the views of interest groups and other people who are concerned and have huge knowledge and experience. As I suggested, it should be done along the lines of the PACE codes. That is a good procedure which could be introduced for this particular change. With the greatest respect to the Joint Committee, I do not find the argument that we should leave it to an affirmative resolution statutory instrument satisfactory. In the light of the Minister's response, I propose to test the opinion of the House.
6.50 p.m.
On Question, Whether the said amendment (No. 48) shall be agreed to?
Their Lordships divided: Contents, 114; Not-Contents, 97.
Addington, L.
Adebowale, L.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Barker, B.
Blatch, B.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Cox, B.
Craig of Radley, L.
Darcy de Knayth, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Elton, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Kennedy of The Shaws, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Listowel, E.
Luke, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Mancroft, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Moynihan, L.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Onslow, E.
Oppenheim-Barnes, B.
Palmer, L.
Perry of Walton, L.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Plumb, L.
Razzall, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Russell, E.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Thomas of Gresford, L.
Tordoff, L.
Trumpington, B.
Ullswater, V.
Vivian, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Weatherill, L.
Wilcox, B.
Williams of Crosby, B.
Acton, L.
Ahmed, L.
Alli, L.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Jones, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Mason of Barnsley, L.
Merlyn-Rees, L.
Mitchell, L.
Morris of Aberavon, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Puttnam, L.
Rendell of Babergh, B.
Rooker, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Stallard, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Turner of Camden, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord President of the Council)
Williamson of Horton, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
[Amendments Nos. 49 to 52 not moved.]
On Question, Whether Clause 12, as amended, shall stand part of the Bill?
Baroness Walmsley: Clause 12 should not stand part of the Bill. It may be useful to outline what the testing provisions will mean in practical terms to a young person. A young person aged 14 or over, charged with house-breaking, for example, which is a trigger offence for testing, is asked to agree to a drug test. Should they refuse to consent, their refusal constitutes a criminal offence punishable by a fine of £2,500 or imprisonment, regardless of whether the burglary charge is subsequently dropped or even that they are acquitted.
Should they consent, the blood test would be taken by a mouth-swab procedure. In the case of 14 to 16 year-olds, this would require the presence of a parent or appropriate adult. But if they are 17 then no such safeguard would be provided. As we said earlier, under the UN Convention on the Rights of the Child, 17 year-olds should be treated the same.
A positive test would be made known to the court hearing the bail application and to the youth offending team charged with ensuring further drug-specific assessment. However, there is no assurance that a comprehensive specialist assessment of drug use would have been completed in time for the first bail hearing. It is unclear, but a matter of some importance, how the information relating to the test result will be recorded, how long it will be kept and how the privacy of the information will be safeguarded, whether in terms of police records or in relation to court disclosures. There remains the question of whether such positive drug test results might be used under the bad character provisions of this Bill, whether in relation to the immediate trial for the charge leading to the test, or even in any subsequent criminal proceedings the individual may face.
The Children's Society believes that introducing a testing regime of this kind is counter-productive to the aim of improving the effectiveness of efforts to help young drug users. They believe that coerced testing to identify drug use at charge introduces a confrontational and heavy-handed approach to a sensitive subject for young people in trouble. Great progress has been made over recent years with more young people's drug services, specialist provisions for youth offending teams and assessment practices that are designed to ensure young people can discuss their drug use honestly with the focus on support. I am worried that testing at charge risks negatively affecting the assessment and trust-building skills that underpin current and developing practice with young people.
Testing cannot distinguish between one-off, experimental and problematic use. It can also not show whether or not or when the person was intoxicated, how much they used or how long ago. It cannot tell us how they took it, whether by injecting, snorting or smoking which would be important in establishing the risks and the seriousness of their problem. Testing for class A drugs will miss situations where a young person has problems with alcohol, solvents or other illegal drugs that may be related to their offending. Equally, it may still miss people who do use class A drugs because drugs such as cocaine are detectable for as little as 12 hours after use. If the aim is really to find out about the extent of involvement with substance misuse, the relationship with alleged offending and need for help and support, then a class A drug test result—positive or negative—tells us very little indeed. A young person may test positive if they have only used the drug once or where drug use played no role in the alleged offence. I am concerned that a positive test result may have a negative and potentially prejudicial influence upon the legal process in which they are involved.
It may continue to be the case that courts remand some under-18s to Holloway Prison, despite its accepted inappropriateness for young people, because it is the view that it is the only place where they will get drug treatment. This shows the knowledge of drug use can and does affect court decision-making about bail and remand. In many cases these are entirely appropriate considerations. However, there is a significant and understandable risk that by disclosing test results to the court before a full assessment has been made, magistrates may react to a positive test for class A drugs. They may see it as an indicator of chaotic or dependent problems when in fact there is no such problem. There is simply no automatic connection between a positive test result at time of charge and the commission of the alleged offence.
Turning to the rights of children, I believe that these provisions engage UN Convention on the Rights of the Child and Human Rights Act principles and rights. Once again the measures highlight the anomaly of our treatment of 17 year-olds as adults for the purpose of PACE by leaving 17 year-olds without the safeguard of being advised and accompanied by a parent or appropriate adult. They apply the existing adult procedures to children when our UNCRC obligations
are to separate the system of justice for children and to treat children as children first. The collection of non-intimate samples for drug testing by the police when it is not evidence for the purpose of identifying the young person, nor necessarily in respect of the charge being brought against them, must surely engage the young person's Article 8 right to privacy and personal integrity.The use of criminal sanctions to coerce consent to such a test is also an interference with the personal integrity of the individual. The Joint Committee on Human Rights has clearly stated in relation to the collection of similar samples under Clause 8 of this Bill that there needs to be a means of ensuring in each individual case that such an infringement is necessary and proportionate. Although the JCHR was not referring to Clause 12 and has not made any published assessment of this clause, I do not believe that the case has been made for these measures, either on the basis of necessity or proportionality.
I am further concerned that the passing on of a test result to the court without consent may also breach article 8. The claimed purposes of both the test itself and the disclosure to the court are solely to ensure that the young person receives an assessment and, where appropriate, treatment. Such substance misuse, assessment and referral should happen as a matter of course under existing procedures. This throws into question the necessity of automatic disclosure to the court. It should remain the case that the youth offending team can inform the court of a young person's drug use once they have assessed it and if they believe it to be important to the consideration of bail and bail support. If the intention of the Government is to provide better means of identifying need at the police station and better connection to necessary treatment, the answer is to build on existing arrest referral schemes, which bring drug specialists into the police station, and to allow the developing good practice, through asset assessment and youth offending team partnerships with drug specialists, who embed in good practice.
The measures in Clause 12 would engage the police in gathering tests that are not evidence in respect of the crime at hand and draw the results, regardless of their possible lack of significance, into the formal pre-trial process. For these reasons, I urge the Government to rethink these measures and consider deleting Clause 12. I beg to move.
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