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The Lord Chancellor: My Lords, I am grateful to the noble Baroness. She was involved with the Stevens commission, which dealt with this very issue. It recommended that there should be a form of appointments commission.

As regards Law Lords sitting in this House, the position will be different for those who are currently Law Lords and who will form the initial members of the supreme court. They will not be able to sit and vote here while they are members of the supreme court. Once they cease to be members of the supreme court, they can come back. In relation to the subsequent appointments, members of the supreme court will not be appointed to the House of Lords but, as I made clear, it is hard to imagine a group which would be more suited to coming into the House.

I should at the outset have disclosed a possible interest. I was a Queen's Counsel and my wife is a Queen's Counsel. I apologise for not making that clear at the outset.

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Criminal Justice Bill

4.1 p.m.

The Attorney-General (Lord Goldsmith): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Goldsmith.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Carter) in the Chair.]

On Question, Whether Clause 18 shall stand part of the Bill?

Lord Dholakia: We had considerable discussion on this matter during the second day of Committee. I shall not detain the House much longer. Clause 18 amends Section 1 of the Bail (Amendment) Act 1993, so that the prosecution's right of appeal to the Crown Court against a decision by magistrates is extended to cover all imprisonable offences. This is about bail provision and not about sentencing.

Clause 18 would extend to all imprisonable offences the prosecution's right of appeal to the Crown Court against a magistrate's decision to grant bail. We were impressed by the representation made to us by the London Criminal Court Solicitors' Association, as mentioned during discussion on this clause during the second day of the debate.

In any application for bail, the prosecution puts forward objections to bail and the reasons for those objections before the defence makes its application. The prosecution already has rights of appeal against bail granted in the more serious cases. If the Government want to restrict bail further, they should produce evidence that the public is put at avoidable risk by the operation of the law as it now stands. We are aware of no such evidence produced by the Government.

This clause is likely to clog our courts even further. More importantly, it is also likely to clog our prisons with people who could usefully spend time on bail rather than on remand in custody. Evidence on the Continent suggests that wherever you make sparing use of remand provision, it helps in terms of the prison population. Taking almost every imprisonable offence and giving the right to the Crown prosecutor for refusal of bail by the Crown Court will only add to the problem of our prison population.

Lord Goldsmith: I am grateful to the noble Lord, Lord Dholakia, for raising those points. We discussed the matter in large measure on the previous day in Committee when an amendment was put. I would therefore prefer the Committee to read what I said on that occasion at cols. 120 to 121 of the Official Report for 7th July and I shall simply summarise the position. The noble Lord, Lord Dholakia, asked what is the evidence that it is necessary to make a change. The statistics demonstrate that as many as one in four

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defendants granted bail go on to commit an offence of which they are convicted during the period of bail. Secondly, as many as one in eight of those granted bail fail to attend for the trial, which causes great inconvenience to witnesses and victims who have turned up, as well as cost and delay in the courts. In the Government's view, the evidence exists that it is necessary to look carefully at bail and when it is granted in order to protect the public.

However, as I said, while the intention of the clause is that there should be a right of appeal, it will be exercised sparingly. Again, I refer to what I said on the previous occasion, drawing attention to the fact that the Crown Prosecution Service, for which I have ministerial responsibility, recognises that the right to take a case to appeal should be used judiciously and responsibly. That is set out in the internal guidance, which looks principally to see whether the public need protecting from the defendant in deciding whether or not to make an appeal against bail. It is not for the Crown Prosecution Service to decide whether bail should or should not be granted. That will be for the court to decide. That is the purpose of the appeal. I hope therefore that that is of some reassurance to the noble Lord.

Lord Dholakia: I am grateful to the Minister. We decided to object to the Question that the clause shall stand part simply because on the previous day in Committee we supported an amendment relating to serious cases attracting two years' or more imprisonment. Here we have a blanket authority for Crown prosecutors. However, in the light of what the Minister said, I withdraw my objection.

Clause 18 agreed to.

Clause 19 [Drug users: restriction on bail]:

Lord Hodgson of Astley Abbotts moved Amendment No. 71:

    Page 14, line 17, leave out "not" and insert "only"

The noble Lord said: In moving Amendment No 71, I shall speak also to Amendment No. 72. The two amendments relate to Clause 19, which concerns the restrictions on bail for drug users. Specifically, subsection (4) deals with supplementary provisions about bail and makes special exceptions applicable to drug users. This amendment ties in with our Amendment No. 70A to Clause 18, which we discussed at our previous meeting in Committee. It sought to question the Government's proposal to reverse the presumption to bail except for serious crimes. Amendment No. 71 again highlights the change of emphasis underlying this Bill with a shift towards presuming against bail.

In our view, the emphasis of subsection (4), new Section 6A, is entirely negative—half empty as opposed to half full. This is the wrong approach and may well have human rights implications. The onus should not be on the defendant to satisfy the court that he has a right to bail. It is rather for the prosecution to

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make out a case for refusing bail. The amendment proposed is to replace "not" with "only" and "unless" with "if" in the sentence,

    "a defendant who falls within paragraph 6B below may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail".

Amended, the sentence would read,

    "a defendant who falls within paragraph 6B below may only be granted bail if the court is satisfied"

and so forth. While the amendment is not designed to, nor will it, bring about any fundamental change to the judicial system of our country, this alteration, perhaps seemingly technical, will help to ensure that the justice system remains balanced and fair. I beg to move.

Baroness Walmsley: At the end of discussion on these amendments in another place, the conclusion of the parliamentary draftsman was that they made no difference to the meaning of the provision in the Bill. We will therefore not be supporting them.

Lord Goldsmith: The noble Baroness, Lady Walmsley, makes my point for me. It is the view of parliamentary counsel that there is no difference between saying that a defendant may not be granted "unless" and saying a defendant may only be granted "if". As it does not seem to us that this makes any difference, I, too, resist this amendment. I invite the noble Lord to withdraw it.

Lord Hodgson of Astley Abbotts: The world of parliamentary draftsmanship is always a strange one. To replace "not" by "only" and "unless" by "if" seems to me to make quite a difference in the way the clause will be interpreted. As the noble Baroness says, this has been raised once before. As it is now on the record again, I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

On Question, Whether Clause 19 shall stand part of the Bill?

Baroness Walmsley: I oppose Clause 19, which is designed to provide a presumption against bail for alleged offenders shown to be drug abusers. This provision does not appear to follow from either the Law Commission report or the Auld report. The courts already have a great deal of discretion as regards bail. This clause goes against the spirit of the Bail Act, is unnecessary and may well be overturned by the courts. Also, during its discussion in another place, the drafting of the clause attracted considerable criticism. I shall explain why I believe it should not stand part of the Bill.

I accept that, as quoted in the Government's paper, Criminal Justice, The Way Ahead,

    "drug-addicted defendants can be extremely prolific in their offending. Offenders using heroin or crack cocaine are estimated to commit property offences at twice the rate of offenders who do not use drugs".

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I also accept the evidence of the deputy commissioner of the Metropolitan Police, who quoted figures that suggest that there is currently a very low level of voluntary uptake for treatment. He said:

    "In the Hackney pilot of compulsory drug testing for everybody brought into the police station and charged, it is 62 per cent testing positive for opiates. Yet only seven per cent of those people agreed voluntarily to any form of drugs referral scheme after arrest".

The policy is supposed to be encouraging hard drug users to undergo treatment, not forcing them to do so. To use compulsion in the current climate of provision is both impractical and unfair as well as breaching the human rights of the defendant.

Let me deal with the practicalities. The Home Affairs Select Committee in another place said that whether Clause 19 will work in practice is dependent on two things: first, the ability to enforce the bail condition; and secondly the availability of treatment to which the bail condition relates. On the first point, the Association of Police Authorities has highlighted some potential problems. In some pilot areas, a "large percentage" of those who test positive for class A drugs do not comply with drug treatment orders,

    "thus ending back in court for re-sentencing".

There must therefore be considerable doubt about the practicality of enforcing such conditions against drug users who consent to the bail condition but then fail to comply with the treatment.

On the second point, the committee was pleased to note that the provisions under Clause 19 will apply only in areas within which treatment is available. Therefore a person,

    "could not be refused bail simply on the basis that he had refused treatment where there was not treatment available".

As the Minister conceded in evidence to the committee, there is not enough treatment available at the moment. The committee was informed that in one police area, there is an eight-month waiting list for detainees willing to submit to treatment. I wonder if the noble and learned Lord can tell me whether that situation has improved in the few weeks that have passed since that was said.

In the end, while the committee supported the proposal to impose a treatment condition on the bail of drug users, it said it is essential that sufficient resources are made available for the provision of treatment. To decide whether this clause is justified we need to look at how effective current treatment programmes are in reducing drug misuse and related criminal activity. We need to look also at the quality and availability of these programmes. Here I must declare an interest as a trustee of Adapt, a drug and alcohol treatment and rehabilitation charity.

A few weeks ago we had an Unstarred Question in your Lordships' House about drug treatment services. During that debate many noble Lords drew attention to the fact that there has been little or no increase in the number of drug rehabilitation and treatment beds in the past 10 years. This is despite the fact that all the research shows that residential drug treatment is the most effective kind. This takes the user away from the pushers on his own street corner and gives him a

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chance to detox properly and to come to terms with the issues in his own life which led him into drug abuse in the first place. I say he, although I really mean he or she. Many drug addicts are women and there is a real issue about the lack of availability of good quality treatment services for women with dependent children.

Sadly, although the Government have increased the money available for drug treatment, there are two major problems. The first is that the money is going into administrative posts and bureaucracy in the drug action teams instead of into treatment services. The second is that the Government are playing the numbers game and setting targets for the number of people in treatment instead of the number of addicts that come off drugs and stay off drugs. In these circumstances, agencies will choose the cheaper community option so that they can spread the money further and hit the targets for the number of people receiving some sort of treatment. If they had a target for the number of people who actually got off drugs, the picture of how they spend the money would be very different. In this situation, it is unjust and unworkable to make it a condition of bail that a defendant accepts an assessment and treatment. He or she may have tried one of these ineffective programmes before and failed and be justifiably afraid of failing again. As was said about this issue in another place, drug treatment is a bit like dieting. One has to be ready to do it before starting out and one size does not fit all. Going through detox, treatment and rehab is a very difficult process and all drug users know it. All fear failure and failure can be painful and damaging. No wonder drugs experts fear that the imposition of such a condition of bail will be a negative rather than a positive move.

My second concern is to do with human rights. Liberty has been in touch with a number of your Lordships about this clause, telling us that it raises issues under Article 5 of the Human Rights Act 1998, on the right to liberty and security of person. It does not fit into one of the permitted exemptions under Article 5(c). Although detention of drug addicts is permitted under Article 5(e), Liberty disputes that this justification applies to a person detained pending trial. The presumption by the Government seems to be that drug users commit offences, therefore anyone who refuses treatment will be likely to commit offences while on bail and should therefore be refused bail. It is a principle of justice that every bail application should be considered on a case-by-case basis. The introduction of a presumption against bail in Clause 19 places the burden of establishing an entitlement to bail on the detained person rather than the state—guilty until proved innocent rather than the other way round.

The Law Commission considered this in its publication Bail And The Human Rights Act, which concluded that such a reverse burden could breach Article 5(3). Liberty also argues that Clause 19 may raise issues under Article 8 of the Human Rights Act, on the right to respect for privacy and family life. This clause places an obligation on a person who has not

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been convicted of any offence to undertake drug treatment to avoid being remanded in custody. Liberty appreciates that the Government are concerned that there is a link between crime and drug use and that they are promoting drug rehabilitation. However, Liberty does not accept that applying a sanction that will involve the loss of freedom is an acceptable way of promoting such a policy. I agree.

4.15 p.m.

Lord Hylton: The noble Baroness, Lady Walmsley, has made out a very strong case. I trust that the Government will not just brush it aside. It is a pretty lamentable state of affairs when those who want to come off drugs may have to wait for up to eight months before they can obtain treatment. We all know that treatments for whatever kind of addiction—drugs or some other type—are unlikely to be successful in the long run unless the person being treated undergoes it voluntarily and has, or acquires, an intention to stick with the treatment and put it into practice after it has finished. The noble Baroness said that bail should be treated on a case-by-case basis. I entirely agree, and I hope that that point of view will secure a little more support from your Lordships.

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