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Baroness Falkner of Margravine: My Lords, we on these Benches will indeed use the opportunity to wind up although I hope that I will not burden noble Lords too long with my remarks and shall be exceedingly brief.

As my noble friend Lord Dholakia and the noble Baroness, Lady Anelay, have pointed out in their compelling references to the harm inflicted by drugs, we too believe that this Bill addresses serious social concerns and therefore broadly welcome it.

As regards the issues around young people, I myself am a parent of a child in an inner-city school, and although my child is still at primary school, we, and
 
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many other parents and teachers worry about an increasing trend towards drug supply around the school. We also know that we will have to be far more vigilant when we come to this issue in secondary school. There is almost a sense of "Here but for the grace of God we go" in terms of the ongoing trend of abuse over years and decades. We do have some concern, however, whether Clause 1 adequately addresses these issues. As Justice has pointed out in its briefing on this Bill, the provisions would not cover cases where children had been employed in the preparation or wrapping of drugs, or where they were sold drugs in premises such as youth clubs or their homes. The noble Baroness, Lady Anelay, has already touched on that. Were this Bill to go any further, we would take up that matter in Committee.

I will now address myself to some of the issues that arise with respect to human rights—the Minister will recall that I am a member of the Joint Committee on Human Rights, and would not expect me to do otherwise. Many of these issues have already been touched on by my noble friend Lord Dholakia and by the noble Lords, Lord Mancroft and Lord Cobbold, but they bear repeating very briefly. Clause 2 raises concerns regarding the "reverse burden provision". The implication of this is that if it is proved that the accused is in possession of an amount of the drug which is greater than the amount prescribed in regulations made by the Secretary of State, the court or jury must assume that he intended to supply the drug. While we accept that the Bill allows for exceptions to this where evidence is adduced to the contrary, we nevertheless wonder why the Secretary of State has felt it necessary to introduce this reverse burden provision. Since we do not know what the prescribed amount of possession of the drug is, we cannot know what the amount will be which will trigger this statutory assumption. Hence we cannot know, in scrutinising this Bill, whether this engages Article 6(2) of the European Convention on Human Rights, which is the presumption of innocence. The noble Lord, Lord Cobbold, has spoken eloquently on this and we echo his concerns.

At Part 2 we welcome the introduction of the requirement that intimate searches for drugs may be undertaken when the person to be searched has consented. This is a welcome improvement on the current situation, and enhances human rights.

However, the provisions in the Bill at Part 2 for the drawing of adverse inferences from a refusal to consent to an intimate search or an X-ray or ultrasound scan may well go in the other direction and raise questions with regard to the right to a fair trial—Article 6(1) of the European Convention. The JCHR in its report on this Bill suggests that courts, when deciding whether there is a breach of Article 6, will take into consideration what safeguards are in place to ensure that the person is fully aware of the consequences of staying silent and that excessive weight is not placed on that silence by the court or the jury. We wonder whether the Minister can tell us in her response about those concerns and about what safeguards the Government intend to put in place in this regard.
 
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The noble Baroness, Lady Anelay, touched on the issue of carrying out X-rays and ultrasound scans on pregnant women or on those who may have other medical conditions for which the scans could be harmful. There is also the issue of the ethics of imparting medical treatment without the consent of the person to be treated. We see contradictions in the government approach regarding Part 3. The principle is introduced in Part 2 that consent must be given for certain actions. In Part 3, that is taken away. Hence, the accused is forced under threat of criminal sanction to undergo treatment. That raises Article 6 issues of the right to a free trial. We do not question the motives of the Government in this regard, and we appreciate that the intention of the Government is to try to get more drug users to undertake treatment. However, looking at the Government's own statistics in this area, one gets the impression that there is no need for criminal sanction for people to undertake treatment. The Minister has reiterated tonight that an increased number of people are taking up treatment—she said it was 54 per cent more than a few years ago. If that is correct we welcome it, and we exhort the Government to pursue those sorts of approaches rather than criminalising citizens who have not been charged with an offence.

Then we have the issues of compulsory testing on arrest, compulsory assessment of misuse, and intervention orders, which all engage the right to respect for private life in Article 8 of the European Convention on Human Rights. Other issues have been raised, including the possibility of classifying khat, about which I know quite a bit having lived in the Middle East. I remind noble Lords that the Yemeni community, in addition to the Somali community, uses that drug extensively. The classification of cannabis and magic mushrooms has been raised, which needs to be looked at.

We have maintained here and in the other place that we have no doubt that drugs are a serious and growing problem in society. The last time an overarching, joined-up assessment was undertaken of the problem and how to deal with it, was in the context of the Misuse of Drugs Act 1971. It has now been 34 years since that legislation, and a new generation of people's lives have been affected by this problem; yet we are just tinkering with the system. Is it not time to take a long, non-partisan look at what needs to be done?

While we support the Bill, we do so in the hope that if the Government are re-elected they will take a fresh look at the many issues involved, undertake meaningful consultation and carry out a comprehensive, overall review of drugs policy.

8.11 p.m.

Baroness Scotland of Asthal: My Lords, I thank all noble Lords who have participated in the debate. I say immediately to the noble Baroness, Lady Anelay, that I wish to associate myself entirely with the comments that she made at the end of her speech in the plaudits that she rightly gave to all of those who work so hard in the rehabilitation of those who have been addicted and therefore ruined by the abuse of illicit drugs.
 
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I understand the concern that has been expressed, most particularly by the noble Lords, Lord Mancroft and Lord Cobbold. I know that there are those who take a perfectly legitimate and proper view that the decriminalisation of all classified drugs would be the better course to take. I understand the arguments that they powerfully make in support of that contention, but each noble Lord will know that that view cannot be concurred with by Her Majesty's Government, for the reasons that I gave in opening and because of the nature of the consequences of so doing. I say to both noble Lords that this attempt by the Government does not fail to take into account the pernicious nature of drug abuse and the need for treatment; it is the reverse. It is the Government making clear that we fully understand that drug misuse is a health issue as well as a criminal issue. The thrust of the Bill is to try to address the demarcation between the two, so that those who are so sorely in need of treatment are better able to get it at an earlier stage, when intervention may be the most effective way of guaranteeing it.

I shall now address the specific issues raised by the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, supported so ably by the noble Baroness, Lady Falkner. Each of them raised issues about how Clause 1 would work. The noble Baroness, Lady Anelay, asked with her usual care why we did not have an aggravated offence. We have been clear that the jury are the determiners of facts, such as where the defendant was and whether the matters complained of against him have been made out in terms of quantity of drugs, location and transactions.

However, in relation to the sentencing, it is the proper role of the judge to say whether those matters were aggravating features, having taken them all into account. Additional matters may have to be borne in mind. The group attacked or targeted may have been a vulnerable group, so you have the element of vulnerability with that of location and the nature of the past-offending pattern of behaviour. The court will have to determine how far to go with treatment, punishment by way of detention, and rehabilitation. All those factors will be properly within the judge's purview. The better course would be, having set the template before the judge in an appropriate way, to allow the judge to exercise that discretion.

The noble Baroness and others, including the noble Lord, Lord Cobbold, turned to Clause 2. Why have a presumption? I want to be clear that it is an evidential presumption. It is not a change in the burden of proof. The presumptions are rebuttable, but all other factors can be taken into account. Noble Lords will know that, on many occasions, it is asserted on behalf of a defendant that substantial quantities of drugs were in his possession for personal use. It is amazing on occasion what quantity of drugs can be purported to be available for personal use.

The classification that we propose has the help of the medical services, which are able to judge—drug by drug—an appropriate benchmark. As noble Lords will know, each drug will differ, so it would be unsafe and unsatisfactory to prescribe a limit that would apply to all and implement it in terms of legislation. I hope that
 
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I made it clear in opening that, before the drugs are so identified, the Government will seek the advice of the Advisory Council on Misuse of Drugs. The level that will give rise to the presumption will vary from drug to drug. It will be prescribed in the regulations approved by a resolution of both Houses. The Secretary of State will consult, and your Lordships can be sure that he will give great weight to the advice that he gets from the advisory council. The evidential presumption of intent where the defendant is found to be in possession of a particular amount of controlled drugs is no more than that.

I am sure that the noble Lords, Lord Mancroft and Lord Cobbold, know full well that Clause 21 clarifies the law on magic mushrooms. It does not necessarily reclassify magic mushrooms as class A drugs. Noble Lords will be familiar with the debate that has gone on for a long time about dried and fresh magic mushrooms, and why one is bad and the other one is not. That part of the Bill clarifies the position and, if I may respectfully suggest it, makes a little more sense of it than was so before. The Bill makes an important contribution.

Issues troubled noble Lords about the nature and content of the examinations that would be brought about—the sensitivity that would be needed in terms of the cultural issues. I assure them that we are conscious of that importance. It does not mean that all such refusals will immediately be seen as culpable. What is important is lack of good cause. If there is good cause for refusal, no offence will be committed. It will be a question of fact. Those matters will be important to remember.

We have had much discussion about the use of cannabis and whether reclassification was or was not right. I assure the noble Lord, Lord Adebowale, and others that the work that has been undertaken to inform young people better, particularly in relation to the FRANK campaign, will continue. It is important that we continue to look at the empirical evidence that we have available in relation to this and every drug, because the development of our policy must be founded on fact, not hyperbole or rhetoric. I thank the noble Lord, Lord Adebowale, for his kind compliments in relation to the efforts that have been made by the Government to refocus drug policy.

I should also reassure the noble Baroness that the comments made by the noble Lord, Lord Adebowale, in terms of the use of cannabis were correct. Cannabis use among young people is not rising. The Schools Survey of 2004 shows that the use of cannabis by 11 to 15 year-olds has fallen from 13 per cent in 2003 to 11 per cent in 2004. The British Crime Survey shows slow but steady decline in the use of cannabis by 16 to 24 year-olds. In 1998 it was 28.2 per cent and has fallen to 24.8 per cent.

Of course we need to do more, but it is not the case that this is a problem that is going up and up. So we must be responsible in the way that we look at this matter and it is right, notwithstanding the fact that it
 
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was only recently referred back to be looked at again, for us to look forward to the November indication of whether the classification that we made was correct.

Other issues include residential rehabilitation, raised by the noble Baroness, Lady Anelay. She well knows that this is only one type of treatment. Not all of those rehabilitating from drugs will need rehabilitation in a residential setting, but it is necessary for those who are most amenable to it and to whom it will best apply. In relation to Article 6, raised by the noble Baroness, Lady Falkner, I hope that the comments that I have already made in relation to the rebuttable presumption have answered her points.

I shall now deal with some of the other issues that were rightly raised by the noble Lord, Lord Adebowale, on the importance of concentrating on rehabilitation. The Government agree with him that it is important. Protecting the health and welfare of the British public is central to the Government's thinking. Taking up a point made by the noble Lord, Lord Cobbold, legalisation of currently illegal drugs would run counter to the Government's health and education messages as well as to the aims that they seek to achieve by their drug strategy. It would not eliminate the need for prevention, treatment, education, information, advice and harm minimisation—all matters that were raised by the noble Lord, Lord Adebowale, and which have significant and ongoing costs attached to them.

Legalisation could be expected to attract substantial commercialisation. Legitimate businesses would endeavour to encourage demand for their products in their quest to maximise profit. There would be no reduction in drug-related crime and there would remain an illicit market. So I hope that noble Lords would accept that a regulated market through controlled outlets would not, we would respectfully suggest, eliminate illicit supplies, as alcohol and tobacco smuggling amply demonstrate.

The Government's reaction in relation to testing is an important addition. It has been suggested, including by the noble Lord, Lord Adebowale, that we should strengthen existing voluntary schemes, such as arrest referral, rather than creating what is referred to as a new criminal offence involving drug testing at arrest, and that we should work towards a national arrest referral service which would be user-focused and consistently applied across the country, drawing upon best practice.

I can reassure the noble Lord, Lord Adebowale, and the House that we are strengthening the existing voluntary arrangements by putting in more resources and integrating arrest referrals into drug intervention programmes. Arrest referral is a key gateway into the through care and after care provided by the criminal justice integrated teams. Arrest referral and other drug workers work in partnership with, or increasingly as part of, those teams. The voluntary arrangements are already national as they operate in custody suites throughout England and Wales and are available to all drug misusers following arrest.
 
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Our current statement of expectations makes clear that the examples of good practice, which I know have been cited by the noble Lord, Lord Adebowale, today and at other times, should be in place to develop nationally along with many other examples in order to engage individuals in treatment most effectively. Therefore, drug testing on arrest is not a new criminal offence. Rather, Clause 7 provides a power to request an arrestee to provide a sample. The arrestee will commit an offence only if he refuses to provide such a sample without good cause. The introduction of testing at an earlier stage in the process, combined with the requirement to attend an initial and possibly follow-up assessment following a positive test, aims to increase the proportion of those testing positive who attend an assessment. This is the key step towards engaging in the treatment and support, which I know the noble Lord recognises as being essential to changing behaviour and sustaining that presumption.

I hear what the noble Lord says in relation to ASBOs. We understand the interconnection between those issues; the importance of identifying the needs of young people; obtaining for them the help and support to divert them from crime and anti-social behaviour; making sure that there is early intervention in relation to drug treatment; and that the treatment is a more useful tool than incarceration or other forms of intervention, unless the behaviour means that it can be dealt with in no other way.
 
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I wish that we had a little more time because I want to say a little more about how the changes we have in the criminal justice system have helped the better co-ordination. We have created the national criminal justice boards, the local criminal justice boards and the crime and reduction partnerships, and we are the working together with Connexions, non-governmental organisations and drug treatment teams. All that partnership working means that we have created better integration in dealing with children and young people in particular, but also vulnerable young adults who are so often the victims of drugs and drug misuse.

These issues are complex and the Bill is a helpful addition to all those other steps. It is not a panacea. I want to reassure the noble Lord, Lord Mancroft, that we do not believe that it will fix all. However it will be a helpful contribution in ensuring that the focus is on the helpful treatment, assistance, advice and intervention for those who are addicted to drugs while maintaining a sufficiently and significantly robust line on those who want to take advantage of vulnerability by peddling what I know all noble Lords believe to be pernicious and soul-destroying drugs which limit the humanity which people are thereby able to express. I commend the Bill to your Lordships.

On Question, Bill read a second time.


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