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Baroness Scotland of Asthal moved Amendments Nos. 162 and 163:



"( ) to the offender or his counsel or solicitor,
( ) if the offender is aged under 18, to any parent or guardian of his who is present in court, and" Page 91, line 31, leave out subsection (3) and insert—


"(3) If the offender is aged under 18 and it appears to the court that the disclosure to the offender or to any parent or guardian of his of any information contained in the report would be likely to create a risk of significant harm to the offender, a complete copy of the report need not be given to the offender or, as the case may be, to that parent or guardian."

On Question, amendments agreed to.

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[Amendment No. 163A had been withdrawn from the Marshalled List.]

Baroness Scotland of Asthal moved Amendment No. 164:


    Page 91, line 41, at end insert—


"( ) In relation to an offender aged under 18 for whom a local authority have parental responsibility and who—
(a) is in their care, or
(b) is provided with accommodation by them in the exercise of any social services functions,
references in this section to his parent or guardian are to be read as references to that authority.
( ) In this section and section 153—
"harm" has the same meaning as in section 31 of the Children Act 1989 (c. 41);
"local authority" and "parental responsibility" have the same meanings as in that Act;
"social services functions", in relation to a local authority, has the meaning given by section 1A of the Local Authority Social Services Act 1970 (c. 42)."

On Question, amendment agreed to.

Clause 152, as amended, agreed to.

Clause 153 [Other reports of local probation boards and members of youth offending teams]:

Baroness Scotland of Asthal moved Amendments Nos. 165 and 166:


    Page 92, line 9, leave out "to the offender or his counsel or solicitor" and insert—


"( ) to the offender or his counsel or solicitor, and
( ) if the offender is aged under 18, to any parent or guardian of his who is present in court." Page 92, line 11, leave out subsection (3) and insert—


"(3) If the offender is aged under 18 and it appears to the court that the disclosure to the offender or to any parent or guardian of his of any information contained in the report would be likely to create a risk of significant harm to the offender, a complete copy of the report need not be given to the offender, or as the case may be, to that parent or guardian.
(4) In relation to an offender aged under 18 for whom a local authority have parental responsibility and who—
(a) is in their care, or
(b) is provided with accommodation by them in the exercise of any social services functions,
references in this section to his parent or guardian are to be read as references to that authority."

On Question, amendments agreed to.

Clause 153, as amended, agreed to.

Clause 154 [Pre-sentence drug testing]:

Baroness Anelay of St Johns moved Amendment No. 166A:


    Page 92, line 16, leave out "14" and insert "12"

The noble Baroness said: In moving Amendment No. 166A, I shall speak also to Amendments Nos. 166B, 166C and 167A, all of which are in my name. We now reach Clause 154, which provides that if someone who is aged 14 or over is convicted of an offence and the court is considering whether or not to impose a community sentence, the court has the power to order the convicted person to have a drug test to find out whether he has class A drugs in his system.

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The Explanatory Notes tell us that this clause re-enacts Section 36A of the Powers of Criminal Courts (Sentencing) Act with some modifications. One obvious modification is that the power is now extended to assess people below the age of 18. My amendments are probing in order to ask the Government to put on the record today the answers to the following questions. What other modifications has this new clause made and, if there are any, why? Why have the Government chosen the age of 14 as the magic new threshold? What about those who start drug use early? Amendment No. 166A therefore proposes the age of 12 simply as a device to cover that question. I am not proposing a reduction to the age of 12; it is simply a device to ask the Government why they have chosen the age of 14.

How routine do the Government expect the tests to be? Amendment No. 166B makes it a requirement for the court to order the test. Why are the Government restricting the test to class A drugs only? Is it not the case that the use of other drugs by younger persons may, indeed, be the early-warning system to problems with other, harder drugs later? Therefore, our amendments give the Secretary of State the power to specify other drugs to be tested.

Of course, drug testing can be of high value only when the Government commit adequate funding to services that will help the convicted person to live without the drugs. Therefore, my final question is: what extra services and funding do the Government intend to provide to cover the increased cost of the treatment for persons who will be tested under the new provisions in this clause? I beg to move.

Lord Dholakia: I shall speak to Amendments Nos. 166AA, 167ZA and 178ZB, which are grouped with Amendment No. 166A. We were deeply impressed by the representations made to us on these matters by Barnardo's and the Children's Society. Equally, we are concerned about extending drug testing to children under the age of 18.

The Bill proposes the introduction of compulsory drug testing and treatment for children. The Children's Society and DrugScope are urging the Government to reconsider those proposals on the basis that they are unnecessary, potentially counter-productive and not rooted in evidence. They also further confuse the distinctive status of children in law and within the criminal justice system. Critically, the Government have failed to demonstrate how the measures are in the best interests of children, as required by Article 3 of the United Nations Convention on the Rights of the Child.

Existing drug-testing powers in the criminal justice system are applicable only to those aged 18 and over. Under the provisions of the Bill, it is proposed that those powers be extended to anyone aged 14 and over. Clause 10 of Part 1 extends existing police drug-testing powers at the point at which a person is charged with an offence. Clause 145 of Part 12 extends the power for courts to order pre-sentence drug testing. Clause 239 of Part 12 extends the power to attach testing requirements to licence conditions following release from custody. The Bill also proposes reform to enable

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treatment and testing requirements to be attached to action plan and supervision orders made on offenders aged 13 and over, as set out in Clause 243 in Part 12 and detailed in Schedule 17.

We believe that the proposed measures in relation to drug-testing powers for children and treatment and testing requirements on action plan and supervision orders should be withdrawn entirely on the following grounds: they are without an explicit purpose or rationale for their necessity or effectiveness; they are an extension of powers used with adults without any consideration of how or whether they meet the best interests of children; they infringe children's rights to liberty, privacy and protection from inhuman and degrading treatment; they risk making a child's right to necessary treatment for a drug problem conditional upon their past or future involvement with offending; and they come at a time when expertise and evidence in relation to children's drug problems and their relationships with offending are at an early stage of development. The evidence which exists does not suggest that the Bill's proposals will be effective.

The UN Committee on the Rights of the Child has expressed serious concern about the UK's treatment of children who are in trouble with the law and, in particular, our failure to establish a system of juvenile justice that fully integrates the UN Convention on the Rights of the Child. Our obligations under the UNCRC commit the UK to separating the system for dealing with children in trouble with the law from that for adults. The Government have offered no explanation of how these new provisions are believed to be in the best interests of the children to whom they will apply and, indeed, have offered no rationale at all, other than their being an extension of existing adult provisions.

There are a number of issues on which the Bill is further confused by making a distinction between the presence of an appropriate adult for testing at charge for 14 to 16 year-olds and at pre-sentence testing for 14 to 15 year-olds. The Children's Society and DrugScope believe that all children under the age of 18 should have the same rights to protection, including the protection provided by the presence and advice of an appropriate adult, as dealt with in Articles 1 and 19 of the UNCRC.

In extending the drug-testing provisions of the Criminal Justice and Court Services Act to children, the Government are also creating another offence for which children may be punished by fine or imprisonment—that of refusing to provide a sample for testing. In the general context of record levels of child imprisonment and criminalisation, we are very concerned to see the creation of yet another offence for which children might be held culpable without any specific reason being given for the extension of testing to children in the first place.

4 p.m.

Baroness Scotland of Asthal: I believe we are being pulled in two opposing directions. The noble Baroness, Lady Anelay, pulls us downwards, and the noble Lord, Lord Dholakia, seeks to pull us upwards.

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That tends to make me believe that we might just about be in the right place. Perhaps I may deal with why we say that that is so.

I shall deal, first, with the noble Lord's Amendment No. 166AA. That seeks to raise the minimum age for drug testing from 14 to 18, which is the current age. As I believe the noble Lord pointed out, under Section 36A of the Powers of Criminal Courts (Sentencing) Act 2000 pre-sentence drug testing is already available for adults aged 18 and over.

The purpose of this clause is to lower the minimum age from 18 to 14 in line with other drug-testing provisions. There is strong evidence to suggest an association between the frequent misuse of substances and offending and other anti-social behaviour among young people. It is important to identify young drug-misusing offenders at an early stage and to take every opportunity to encourage them to access treatment and/or other programmes of help. We therefore propose that Amendment No. 166AA should be resisted on that basis.

The noble Baroness asked: why choose the age of 14 as opposed to 12 or any other age? The provisions of this clause provide only for testing for "specified class A drugs"—that is, heroin, crack and cocaine. That is because the Government's drugs strategy is focused on those particular drugs. Research has shown that they are currently the ones most commonly associated with drug-related crime, and they are the drugs that cause the most harm. However, research also indicates that drug abuse, among children in particular, often relates to class B drugs. That would suggest that testing children aged under 14 for specified class A drugs would not currently be an effective use of resources. Therefore, we propose to resist the amendment tabled by the noble Baroness, which is a probing amendment.

However, it is important for the Secretary of State to have the ability to amend, either up or down, the minimum age for drug testing under this 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, or that testing persons aged 14 to 18 was not effective. The provision therefore enables us properly to take into account the evaluation findings of this clause, once piloted—noble Lords know that we intend to pilot it—and other research evidence received.

The clause as drafted allows the Secretary of State to act upon any evidence received and, by order made by statutory instrument, amend the minimum age. Such statutory instrument is subject to the affirmative procedure and, as a consequence, stringent parliamentary scrutiny.

I turn to Amendment No. 166B which seeks to remove the discretion of the court, so that it "must"—as opposed to "may"—order a drug test when it is considering passing a community sentence. We believe that this is unnecessarily restrictive. To order a drug test routinely in all cases would not be an effective use of resources. The proposed amendment would limit the flexibility of the court to consider the circumstances before it on a case-by-case basis; for

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example, if a recent drug test result was already available to the court, and if the offender was tested after charge or as part of an ongoing treatment programme, or openly admitted to having a specified class A drug problem and was actively seeking help, the court might not necessarily find it of any value to order a test. We therefore propose that Amendment No. 166B be resisted.

Amendments Nos. 166C and 167A seek to broaden testing under this clause to any "specified drug". As currently drafted, drug testing is limited to "specified Class A drugs" only—that may explain why. As I have previously outlined, the Government's drugs strategy is focused on those particular drugs. For that reason, those are the drugs for which testing is already taking place, both on charge and pre-sentence for adults, and for which testing will be extended to younger people under this and other provisions in the Bill.

My right honourable friend the Home Secretary already has the power under the Criminal Justice and Court Services Act 2000 to specify, by order, different or additional class A drugs. Those drugs are detailed in the Criminal Justice (Specified Class A Drugs) Order 2001. We believe that that provides sufficient flexibility to respond to any new research evidence, should it emerge, linking other class A drugs with drug-related crime. We would therefore resist Amendments Nos. 166C and 167A.

The clause as drafted provides for the presence, of an "appropriate adult" during the testing process for those offenders who are under the age of 17. Amendments Nos. 167ZA and 167ZB seek to raise the age at which a person must not be tested for specified class A drugs except in the presence of an appropriate adult, from those under the age of 17 to those under the age of 18. However, I believe that it is right to say that this would not be consistent with the other drug testing provisions in the Bill; for example, the one that we discussed in relation to testing persons in police stations (Clause 12) and on release on licence (Clause 251) or with other legislation where the presence of an appropriate adult is required.

The clause as currently drafted reflects the position under the Police and Criminal Evidence Act 1984 (PACE), in which very specific safeguards are provided for persons under the age of 17 in recognition of the vulnerability of that age group and the need for protections in the particular circumstances of police detention. We believe that the safeguard of an appropriate adult should be applied consistently across the drug testing provisions of the Bill and with PACE and other legislation.

Increasing the age to include those under the age of 18 for the purposes of this clause would necessitate the presence of an appropriate adult for those aged between 17 and 18 solely for purposes relating to the testing process when this is not required under statute for other purposes. On that basis we therefore propose to resist Amendments Nos. 167ZA and 167ZB.

I hope that that fully explains why we have taken this course. Of course, we hope that by making the testing available it will enable the court to come to the

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most judicious and appropriate outcome for the offender and for those offended against. We really want to give the court tools to help those who are subjected to this terrible imposition of addiction to drugs to release them from it. We need the information to enable the court to do what we know will be very good work.


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