asked Her Majesty's Government:

My Lords, the Government will produce two Command Papers in July on the work of the convention and a White Paper in advance of the intergovernmental conference due to begin in October.

My Lords, I thank the Minister for that encouraging reply. Will the Command Papers or the White Paper set out the detailed analysis that I requested in my Question? Secondly, given the complexity of the issues, will it be possible for officials to be made available to brief Members of the House on some of the issues, perhaps through the Joint Committee on the European convention?

My Lords, so far only parts 1, 2 and 4 of the convention are in draft. We hope to have part 3 later this week. The two documents on the convention will be largely factual statements of what is contained, although I understand that there will be a foreword by my right honourable friend the Foreign Secretary on the documents dealing with the convention. They will not contain the detailed analysis that the noble Lord is looking for. We will publish the White Paper in preparation for the IGC, as we have done for previous IGCs. I cannot be definitive about the form of that White Paper, but I take the noble Lord's point that it is important to have some documentation that describes more of the detail. I cannot tell the noble Lord whether we will do it article by article for 460 articles, but I have discussed it with my right honourable friend the Foreign Secretary. We are seized of the issue and we will endeavour to be helpful to Members of this House and another place.

My Lords, does the Minister agree that the eventual ratification of the treaty will require the full informed consent of the British people?

My Lords, we have been over this before. If by that the noble Lord means to imply a referendum, I am sorry to have to disappoint him, as I have had to disappoint some of your Lordships on previous occasions. As your Lordships are aware, in Britain Parliament has the opportunity to scrutinise treaties before ratification. That has happened with all the European treaties since we joined the European Community and that is planned for this treaty too.

My Lords—

My Lords—

My Lords, could we hear the noble Lord, Lord Howell, first and then perhaps the noble Lord, Lord Maclennan?

My Lords, I am extremely disappointed by the Minister's reply. We are dealing with extremely contentious issues. At the very least we should be talking about Green Papers and Select Committee inquiries rather than White Papers and Command Papers. We have learnt not to have much trust in some of the Government's publications and dossiers. These issues have two or three sides and need very thorough public debate. Is the Minister really saying that we are going straight from here to White Papers on what amounts to a new Treaty of Rome, encompassing all the previous treaty legislation for the European Union? Is she really saying that the issue can be settled by just White Papers and parliamentary debate when eight other countries are going to have referendums, the constitutional implications are clear and the outcome is highly debatable and will influence this country for years to come? Her proposals are inadequate.

My Lords, I have not proposed anything except to say that there are definitely plans for two Command Papers and one White Paper. I have not ruled anything out. I specifically told the noble Lord, Lord Blackwell, that Her Majesty's Government would try to be as helpful as possible on the issue and that I was discussing it with my right honourable friend the Foreign Secretary and my honourable friend the Minister for Europe. I understand that the Constitution Committee of your Lordships' House has already made a request similar to that made by the noble Lord, Lord Blackwell. I am sure that the European scrutiny committee will also have a view on the issue. I am happy to talk to the chairmen or to the full committees, both of which have a strong interest in this matter, to learn what they would find helpful. The specific suggestion made by the noble Lord, Lord Blackwell, has not been ruled out. I made it clear that it was under discussion.

My Lords, we very much welcome the Government's commitment to publish their view, particularly in view of the fact that, on Friday at the last plenary session of the convention, the noble Baroness, Lady Scotland, felt moved to list so many objections to the draft of part 3, which was in front of the convention, that it almost called in question the Prime Minister's judgment that the convention's findings form a basis for negotiation. Can the Minister make it clear that in one or other of their publications, the Government's objections—which now look far greater in number than those of any other participant in the convention—will be made available so that we can decide whether, once again, we resemble the Scottish mother looking at her son marching with the soldiery, saying, "Look, look, they are all out of step but our Jock"?

My Lords, as we know, there is a wide variety of views about the convention, not only in your Lordships' House but elsewhere. The Government's detailed position will be set out in a White Paper published in preparation for the IGC. That will explain the Government's position on the issues in relation to a constitution. I hope that your Lordships will find that helpful.

The noble Lord, Lord Blackwell, asked for something slightly different. He wanted a comment, article by article, on the 460 articles of the convention, and he wanted explanations as to how they might be an extension of European powers. I understand the noble Lord's point; it is slightly different from the rather more strategic overview of the Government's position on different parts of the convention. As I have made clear to the House, what he has asked for has not been ruled out or agreed but is under discussion, and the Government are seeking to be helpful to your Lordships in another place.

My Lords—

My Lords—

My Lords, it is the noble Lord, Lord Harrison, I believe.

My Lords, can the Minister explain why those who wish to defend the British constitution in this House undermine it by calling for extra-parliamentary processes such as referendums?

My Lords, it is up to them to defend their position. The Government have been very clear that we have great faith in parliamentary democracy in this country. It is at the heart of our system, which is not a system that has been based on referendums. I am bound to say to your Lordships that what was good enough for the other side when they were in government is good enough for this side when we are.

My Lords—

My Lords—

My Lords, we are out of time on this Question.

asked Her Majesty's Government:

My Lords, the Civil Service played a full part in advising the Government on the recent announcement of proposals for constitutional change, consistent with the requirements set out in the ministerial code and the Civil Service code.

My Lords, has my noble and learned friend seen the evidence given by three former Permanent Secretaries to the Cabinet to the ably chaired Public Administration Committee in another place that they would have expected to give advice on major machinery of government matters? With regard to the recent changes, can he say whether the advice given by leading civil servants was inadequate, particularly with regard to the amount of time required to carry out their investigation? Was the advice mistaken, and was inadequate attention paid to that advice?

My Lords, no, in my experience the advice of senior civil servants has never been inadequate. I say that without any sense of overt or covert irony. It is for civil servants to give advice, as set out in the ministerial and Civil Service codes. Ministers are obliged to pay careful attention to that advice but, at the end of the day, as the noble Lord, Lord Fowler, said in the title of his book, Ministers decide.

My Lords, in the light of that question, the House will be aware that there is great concern in the House, particularly over the way in which the change in the role of the Lord Chancellor was handled. Can the noble and learned Lord tell us whether the Clerk of the Parliaments and the Secretary to the Cabinet were consulted? Does he recognise that, at this time when apologies are very fashionable, this House perhaps deserves some apology?

My Lords, I know that the noble Baroness was not here on the occasions when I expressed regret and apology. I am not sure that we can endlessly revisit the question of apology. On the first available occasion I said that I regretted the discourtesy, if your Lordships felt disapproving, and I apologised for it. I do not think that I can apologise more than once. I am sure that is good for the soul, but it does not seem to work for me.

It is wrong and invidious to specify any individual civil servant who might have given advice. Ministers had regard to the ministerial code and they came to a judgment. Some of your Lordships believe that the judgment was wrong, and that is your Lordships' prerogative.

My Lords, I believe that the noble and learned Lord said on two occasions that civil servants were consulted about the announcements. Were they consulted before the decisions were taken?

My Lords, yes.

My Lords, was advice tendered that it needed legislation to deal with the office of the Lord Chancellor and that it would take at least a year for that to take place?

My Lords, I was not privy to any particular advice about legislation or a legislative timetable, but there is no doubt that it was well appreciated that some degree of legislative change would be required—not least because, as my noble and learned friend points out by necessary implication, some of the Lord Chancellor's functions are statutory and could therefore only be changed either by Order in Council or by statute.

My Lords, one might come to the simple conclusion that, whoever is consulted or not consulted, when major changes in policy are mixed up with the personalities involved in a reshuffle, a government will end with egg on their face.

My Lords, I am sure that the noble Lord has experience of that particular scenario, but I would not want to intrude unnecessarily into private grief. The fact is that I have yet to hear any dissent from the policy announcements; namely, an independent supreme court and an independent judicial appointments commission. Those are the policy aspects. I accept that it is good summer sport to complain about presentation, but I urge your Lordships to go to the substance and not stay flicking about the surface

My Lords, when something goes wrong so badly as requires the noble and learned Lord the Leader of the House to apologise, does he think it is worth looking at the decision-making process which led up to the announcement? Am I alone in having slightly lost the plot in terms of what the nature of the relationship is between civil servants, Ministers, special advisers, special special advisers and all the many bodies in the Cabinet Office—the Prime Minister's Reform Strategy Group, the Prime Minister's Strategy Unit, the Prime Minister's Delivery Unit etcetera? I think that the Prime Minister recently said that he understood that it was possible to have too many targets. Does the noble and learned Lord the Leader of the House think that it is also possible to have too many cooks in No. 10?

My Lords, the noble Lord, Lord Saatchi, said that he had lost the plot. I hope that is not true; otherwise, it would mean that Saatchi was not working.

My Lords, is the noble and learned Lord aware that not even his skills in presentation—and we all know how considerable they are—are likely to allay in anything except the very long term the deep unease that this episode has caused?

My Lords, I hope that it is not simply presentation but I recognise that there is deep unease about it. That, I am sure, will pass. What we need to focus on I respectfully suggest, consonant with what this House normally tries to do, is to see what the policy changes are and whether we approve of them or not. I gently repeat to your Lordships that I have heard no one suggest that we should not have an independent supreme court or that we should not have an independent judicial appointments commission. Those are extremely important constitutional changes and they constitute a devolution of power from an executive where they probably ought not to have been.

My Lords, as the noble and learned Lord the Lord Chancellor is an office holder of this House, will any legislation affecting his position and role be started in this House?

My Lords, I cannot possibly say that. Indeed, it would be presumptuous of me to try to pre-empt the conclusions of the Select Committee which was set up only a few days ago. We ought to pay careful attention to any such recommendations that it may bring forward.

asked Her Majesty's Government:

My Lords, the Zimbabwe crisis is damaging regional economies and has adversely affected their interest rates, inflation, foreign direct investment and tourism. A study by the Zimbabwe Research Institute in May estimated the total cost to the combined Southern African Development Community countries to have been at least 1.88 billion dollars at the end of 2002. Zimbabwe's neighbours are also suffering damage to local production from the influx of cheap Zimbabwean goods, unpaid Zimbabwean debt, an increase in largely unskilled migrants and the cross-border spread of foot and mouth disease.

My Lords, do the Government still agree with the assessment of the noble Baroness, Lady Amos, that for every year of ruination in Zimbabwe it will take 10 years to recover? That is on the economic side. On the political side, does the noble Baroness believe that the African countries are sufficiently taking into account the fact that the longer they fail to live up to their obligations under the treaty for the African Union, NePAD and the SADC, to exercise peer pressure for human rights, good governance and the rule of law in Zimbabwe, the more that will lead to various treaties losing credibility and authority?

My Lords, I agree with my noble friend the Secretary of State at DfID that the longer this goes on the more difficult it is for the African economies to recover. I mentioned Zimbabwe's unpaid debts and the effect that the crisis is having on tourism in the region as just two of the instances where matters are worsening. I was very glad to learn that the African Union meeting is due to take place in Mozambique on Thursday and Friday of this week. That will provide a further opportunity to sound out African opinion on prospects for inter-party talks. I hope that the noble Lord will be pleased to learn that my honourable friend Hilary Benn, the Minister of State at DfID, will attend that meeting in Maputo.

My Lords, only last week the Mayor of Harare was here pointing out the desperate need for food aid in both rural and urban areas. Can the noble Baroness assure us that the Government will be able, given their commitments elsewhere in the world at the moment, to maintain or increase their aid to Zimbabwe in the case of this particular crisis? Given the movement of refugees across the border out of Zimbabwe, can the noble Baroness give me an idea of the progress being made by DfID and the Foreign Office in terms of developing a strategy for the whole of Southern Africa?

My Lords, we have devoted some £51 million to feeding Zimbabwe's hungry people since September 2001. We have been taking part directly in feeding 1.5 million of Zimbabwe's hungry people. We are, of course, working with international partners to maintain the pressures for change. Obviously, we work with the European Union, the United States and the Commonwealth. It is very important that, in doing all these things directly with aid, at the same time we reinforce that with pressure for a democratic solution. The Zimbabwe crisis is obviously producing a flow of refugees across its borders. One of the countries which is suffering is Botswana, which is having to repatriate around 1,000 Zimbabweans a week. South Africa's interior Minister claims that 3,000 Zimbabweans are being returned from South Africa this week. It is enormously important that we remain engaged with regional strategies to try to deal with the refugee issues.

My Lords, I know that the Government's line has been quiet diplomacy and quiet dialogue. One understands that in certain circumstances that works. But has the Minister noticed that the American Secretary of State has spoken out in very strong terms about President Mugabe's violent misrule and said that his imminent removal is a worthy and urgent goal? Has the Minister also noticed that the President of the United States is billed to speak shortly in South Africa in the same firm terms? Has the Minister further noticed that the American Congress has passed resolution after resolution pointing out the horrors taking place as the Zimbabwean economy collapses? Does the Minister think that it is time perhaps to revise the Government's approach and side more strongly with the Americans and others in bringing to an end Mugabe's hideous and cruel rule?

My Lords, I very much welcome what the United States has done over this, particularly what Secretary of State Colin Powell said in relation to what is going on in Zimbabwe. There was a quite disgraceful counter-attack from the Herald newspaper which referred to him as,

"a disgraceful Uncle Tom who always sang to his master's voice to the detriment of social justice and the rights of people of colour".

That was a quite disgraceful thing to have said.

I am also pleased that President Bush will visit five African countries and will talk to President Mbeki among others about Zimbabwe. But let me respond to the noble Lord. He said that we should be more strident on this point. I put it to the noble Lord that if we were to do as he asks, we would very much play to Mr Mugabe's agenda—that every time Britain speaks on this matter, we speak as a colonial power. That is the argument that he uses with other African countries. That is why we have experienced difficulties in the United Nations. At every opportunity President Mugabe portrays us an an old colonial power. What he wants is for this to become a bilateral row with the United Kingdom, and that is what we have to guard against. Therefore, we urge others to make the points. We are quite prepared to help to make the bullets but sometimes it helps to have someone else firing them.

My Lords, has the Minister seen reports that over 30 people in Bulawayo died of malnutrition last week? As she has suggested, would it not be less confrontational than my noble friend's proposed policy simply to ensure that food aid is delivered to those members of the Zimbabwean population who are presently being driven into starvation deliberately by the government of that country? Since this Question relates to the neighbouring countries, will Her Majesty's Government co-operate with them to ensure that those people receive the food aid that they already need?

Yes, my Lords; I strongly agree with the noble Lord's comment. The shortages in Zimbabwe are made a great deal worse by the regime's imposition of untenable prices and by the fact that the government try to have a monopoly on the distribution of food. That has been one of the main causes of the worsening of the already appalling plight of so many people in Zimbabwe. We have been working with other international organisations, as I indicated in my answer to the noble Baroness, Lady Northover. It is enormously important that we try to work round the Zimbabwe administration in order to ensure that food gets to where it is really needed.

asked Her Majesty's Government:

My Lords, we share the concern that forces around London should be able to retain the services of experienced and skilled officers. We have worked closely with chief constables and police authorities in the South East to put in place a range of targeted measures to assist retention. We shall continue to work with forces to monitor the effectiveness of those measures and to consider any further steps that may be necessary.

My Lords, I thank the noble Lord for that reply. However, I draw his attention to the fact that the retention crisis in the South East is getting worse by the month, and has been worsening for nearly three years. It is of great concern to all chief constables that those leaving forces around London are the experienced, trained officers—firearms officers, experienced detectives and those with long service. The measures that the Government have put in hand have not yet worked. Do they have further proposals in mind to stem the crisis?

My Lords, the noble Lord is right to say that there is a particular problem in the South East. We have long recognised that. The noble Lord asked me a Question some three years ago on this matter. It is for that reason that we have put in place a whole package of targeted retention measures. The happy story for the Thames Valley Police Authority is that in the past few years its numbers have started to rise. It has 135 more officers now than it had in March 1997. The noble Lord makes a good point about experienced officers leaving the service. For that reason we have put in place the 30-plus retirement scheme, which I understand is beginning to bear fruit.

My Lords, will the noble Lord accept that forces in the South East are in an uncomfortable position? On the one hand, there are the weighting attractions of the Metropolitan Police, and, on the other, the attractions of the lower cost of living of forces outside the South East? Will the Government consider extending the joint equity house purchase scheme that is currently available in the Thames Valley, Surrey and Hertfordshire to forces in Essex, Kent, Bedfordshire, Hampshire and Sussex?

My Lords, the scheme was introduced only recently—in March this year—and, as I understand it, is proving to be of value. We shall keep this matter carefully under review. If appropriate, Ministers will no doubt want to give careful consideration to extending the scheme to other forces in the South East that have a particular problem with retention.

My Lords, are community police officers now an actual force on the ground in London, and, if so, how many are there? In earlier debates we referred to the need for recruits who are not fully trained but who will supplement the numbers.

My Lords, I am sure that the noble Baroness is aware that under the Police Reform Act we made available schemes for what were described as community support officers. That scheme has had a very successful start within the Metropolitan Police Service area. My understanding is that financial provision was made up to 500 additional police officers in the first instance.

My Lords, are the targets being achieved in terms of recruitment among the minority communities? Does he agree that that would go some way to assist in meeting the overall recruitment target for police officers in London?

My Lords, I agree with the noble Baroness's last point. Yes, it makes a considerable contribution to recruitment and to ensuring that we reach the target numbers that we wish to reach for the police service as a whole. Although I do not have the statistics to hand, I know that we are making progress in increasing the numbers of ethnic minority members in the police service. I am happy to make the figures available to the noble Baroness at a later date and share them with other Members of this House.

My Lords, having observed community support officers on duty on one occasion, my question is: should not some thought be given to making them look more like police officers and less like traffic wardens?

My Lords, I believe that community support officers are offering a reassuring presence on the streets and are doing fine work. I take the noble Lord's point. The other side of the argument is that people have expressed the view that community support officers are one thing and police officers are another, and that they should not be easily confused.

My Lords, can I enlarge the Minister's geographical perspective by saying that the problem also exists in Wiltshire, which the Boundary Commissioners believe to be in the South West rather than in the South East?

My Lords, I am sure that Wiltshire Police Service is busy and active in recruiting new officers. Its statistics for the past two years indicate that they appear to be enjoying an additional number of police officers, in line with most other England and Wales forces?

My Lords is not the issue of retention the most important part of this Question?

My Lords, is it very important that we retain experienced police personnel. I made reference earlier to the 30-plus scheme, which is now in its second phase and is proving very successful. As well as bringing in new recruits—and we are hitting and surpassing our targets—we also need to retain experienced police officers who have a great deal to offer the communities that they serve.

My Lords, with the leave of the House, at a convenient time after 3.30 p.m., my noble friend Lady Symons will repeat in the form of a Statement the Answer given in another place by the Foreign Secretary to an urgent Question on the imprisonment and trial of two UK nationals at Guantanamo Bay.

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.—(Baroness Scotland of Asthal.)

moved Amendment No. 31:

A short debate took place on Clauses 7 and 8 last week dealing with the taking of fingerprints and DNA samples without consent when someone has been arrested for an offence, even if subsequently they are not charged. I do not seek to reopen that debate, but it is interesting to read Hansard at those points and see how your Lordships stressed the careful balance which the present Section 61 of PACE enjoys, and the concerns expressed at the proposals within Clauses 7 and 8 of the Bill.

The taking of fingerprints and samples may well be necessary in many circumstances, but there is significant concern about the necessity to retain that data indefinitely—and. I quote the noble Lord, Lord Carlisle of Buck low. He said:

"I am worried about those whose fingerprints are taken in the course of examination and who are not proceeded against or are acquitted. Their fingerprints are retained but we do not have general fingerprinting for all people. Surely there is an issue here".

The noble Baroness, Lady Scotland, the Minister, replied:

"I accept that that is an issue. I say that is an issue about balance and proportionality. That is a debate that we should have because the Committee will know that the Government's view, particularly in relation to the most serious offences, is that the risk to the public is so great that it is worth balancing it in their favour, as opposed to destroying information which may subsequently have proved to be vital and could have assisted in the identification of crime. It is a real issue and I do not seek to pretend otherwise. It is a question of where we draw that dividing line".—[Official Report, 30/6/03; col. 714.]

So it seems that the Minister accepts that this is an area which needs further consideration and I hope that she will reassure us that that is indeed the case.

The Joint Committee on Human Rights also expressed concern about the data implications of the two clauses. I shall quote from paragraph 53 of its report, in which it concludes,

"it is not clear to us who would be legally accountable if an error on the part of any of those parties, or of one of the laboratories submitting samples of analyses for inclusion on the database, or of one of the operatives entering the data or processing them, led to an unjustified interference with a data subject's right to respect for private life under ECHR Article 8. In short, who would be the appropriate defendant in an action by an aggrieved data subject claiming to be the victims of a violation of his or her right under ECHR Article 8?"

The noble Lord, Lord Hunt of Wirral, also quoted from that report in Hansard on 30th June at col. 708, which clearly identified the Joint Committee's unease about data retention.

We agree. There is simply not enough clarity yet in areas of responsibility for collection and retention of highly sensitive and personal data—especially if the person from whom that data is taken is never charged with an offence. There was no debate on this in the other place at the time that the Government introduced the proposals at Report stage, and it seems to us that what is proposed will add huge numbers to an already staggeringly large database—I understand that there are already 2 million samples included on it—and the concern of these Benches is that the taking of these fingerprints or DNA samples should not become routine, nor should it be a way to build up the number of profiles held on the DNA database.

I shall make one final quotation, this time from my honourable friend in another place, Simon Hughes. He said:

"This is another step on the road to holding every citizen's DNA on the national database, and it is being done with virtually no public debate. Thousands of people are arrested every year who are guilty of no crime. Their fingerprints and DNA may now be recorded and held, even if they withhold their consent".

That is our real concern. Some data will need retaining. Much more will not, and this new clause seeks, as my noble friend Lord Dholakia said, to reintroduce the ability to destroy fingerprints and samples of those who have not been charged.

I rise briefly to support this amendment. The erosion of liberty and personal freedoms rarely takes place in a single bound. It tends to be a creeping process. It is easy to speak of any individual changing of the balance as something that continues the shaping of proportionality. At some stage the Government have to answer the question—what principle underlies the belief that it is right, without having general fingerprinting and sampling across the board, to keep the fingerprints of those people who are arrested but never charged? I have a suspicion that in this area proportionality tends always to move by degrees against individual freedoms. I hope that I am wrong, and I shall be interested to hear what the Minister has to say.

I, too, support the amendment for the reasons already advanced. It seems to me that there is a case—it is not one I would support—for saying that such action should extend to the population at large or at random, or for any purpose that the police or others think appropriate. That is a case I would not support.

There is a case for saying that such samples should be retained only of those who have been charged or convicted. However, I can see no justification for treating people who have never been charged with an offence as being in a category different from the population at large. Members of the population at large are not subject to such samples being taken from them and retained against their wishes. Why, therefore, should someone who happens to have been arrested but not charged be treated in a different and more adverse way? There has been no explanation of that and I would not defend it.

I support entirely what my noble friend Lord Brittan said. I am not sure whether he is learned but he is very distinguished. There is a case, which many of us would not support, for all fingerprints to be on the database. I shall listen with great interest to what the Minister says in reply to my noble friend Lord Brittan. It seems extraordinary to treat separately those who have not been convicted just on the off chance that it might be handy for the government of the day at a future date. That should be resisted. It is an extraordinary idea and one that the Government should withdraw if they cannot explain it properly.

I support the amendment, to which I have added my name. As the noble Baroness, Lady Harris, of Richmond, said, it flows on from the debates we had on Monday. Like her, I shall not reopen the debate but the principles underlying it flow into today's debate.

The Government have not proved a case for retaining the evidence of fingerprints and DNA from those people who have crossed the threshold of a police station but were never charged or arrested. As the noble Lord, Lord Dholakia, said, we are not seeking to stop the police taking DNA and fingerprints from those people they think they will charge. It is a proper course to take in the exercise of tracking down whether a person should be charged. We are saying that we should not be creating a new subgroup of people against whom action was not subsequently taken but whose DNA, taken by so-called "non-intimate" samples of swabbing or fingerprints, has been retained.

My noble friend Lord Brittan commented that perhaps there is a case for a national database on the population at large. It is not a case that he would support and I suspect that many people would not do so. But if there is such a case, it is incumbent on the Government to set it out clearly and honourably and not try to move step by step towards it. As my noble friend Lord Alexander of Weedon rightly observed, there is sometimes a creeping process of eroding liberties and somehow one ends up with proportionality. One thinks one knows what is meant, then suddenly there is a completely different and unacceptable definition.

The Government must justify the position they have taken and we do not believe that they have done so as yet.

I, too, am persuaded to support the amendment. However much the individual parts of the Bill have much to commend them—and they do—the cumulative effect must be considered. I worry that the power given to retain fingerprints and DNA samples indefinitely is part of a cumulative rebalancing against civil liberties.

I accept that DNA is an increasingly valuable tool in the fight against crime and that samples may be necessary to establish whether charges are to be brought. But I worry about the indefinite retention of the information, whether or not the person is charged or convicted of any offence. Is it appropriate or necessary to allow the state to retain such information from innocent persons, and to begin to create a universal DNA and fingerprint database? I believe that that is a matter for open public debate and if such a national database is judged to be appropriate and necessary it seems to me that everyone in the country should be compelled to provide samples.

There may be a strong case for holding everyone's DNA on file. If so, the case must be made openly and publicly and not be introduced bit by bit in what looks to me like stealth.

I thank all Members of the Committee who have participated in this short debate and I hope I shall be able to give the answers for which a number have called. The right reverend Prelate the Bishop of Newcastle and others have sought to suggest that this in an incremental approach by government who by stealth seek to in some way abuse improperly the civil liberties of those who come innocently into the system. I say straightaway that that is not the purpose or intent of the Government. The application is being made openly to the Committee to consider whether this should properly form part of the Criminal Justice Bill and we are now having a proper debate about it.

I must emphasise at the beginning that the advances we have made in DNA and fingerprinting are significant. We have the ability to use the data not just as a sword with which to pierce the criminality of those who would hide from us, but the opportunity to use the data as a shield to protect those who are innocent of any offence and are often wrongly accused. It is easy to alight on only the examples which have enabled us to convict and bring to justice those who are guilty of crime, but not to highlight sufficiently the large number of people who have been set free as a result of the data being available and capable of being utilised to their benefit and that of the public.

We read an example of that at the weekend. Many Members of the Committee will have read the case of a former sailor who spent 16 years behind bars for the murder of a barmaid and was cleared by the Court of Appeal on Thursday last week. That person remained in prison because he refused to accept his guilt and as a result could not take advantage of parole.

I very much hope that when noble Lords consider what I have to say they bear in mind that this is not simply a sword, but also a shield, and also that all those who have nothing to fear from having their fingerprints and DNA samples retained may come to find that it is of benefit. Having the information available can exclude people who might otherwise have been investigated. It is therefore important that the—

Is the Minister arguing that by keeping fingerprints the Crown confers a benefit on certain people? If so, perhaps the statute could say that one could have the option of having one's fingerprints retained indefinitely so that one may be a beneficiary under the scheme that the Minister has in mind.

I did not say that there is a direct benefit, as the noble Lord suggests. I do not intend to deal with the matter at all facetiously; it is a very serious matter indeed. Often this is presented as all infringement and no opportunity or no benefit. I was simply highlighting that that is a very narrow way of looking at the use to which such data can and should properly be put. We are taking a balanced look at the information. It is important that we get it right. This is not a piece of sophistry; it may be of critical importance to those who come before our courts and are convicted improperly. It may also be important to victims and their families who see perpetrators go free. If we were to show a little courage, imagination and initiative, we may be able to stop certain criminal activities.

The issue is highly important. Have the Government considered the matter with the Law Society, the Bar Council, Justice and so on? Will the Minister give the Committee some idea of the consultations that have taken place?

Your Lordships will know that consultations took place on the whole Bill. Once I have explained the reasons why we have come to the conclusion that this is a proper stance to take, I shall answer my noble friend in greater detail. If I may, I would like to address the import of the amendment and the substance of it.

Will my noble friend confirm that the view of the lawyers on this matter is no more important than that of any other citizen?

Never let it be said that I suggest that lawyers are not ordinary citizens. I can assure your Lordships that there is parity of treatment.

Perhaps the noble Baroness will explain the arguments that she has just advanced that the retention of fingerprints and so on of people who are not guilty of other crimes can somehow prevent them being wrongly brought before the courts and convicted of future crimes. Surely the time to take that evidence is at the time of arrest.

I can answer the noble Lord, Lord Elton, straightaway. However, after I have answered his point, perhaps noble Lords would allow me to answer the main import of the amendment tabled by the noble Lord, Lord Dholakia.

In answer to the noble Lord, Lord Elton, an individual may be under suspicion for a particular offence but data on the database may be capable of being compared with DNA samples taken from the crime scene. That comparative study may be able to exclude that person from the investigation so that the police never have to pursue him or her further and they can go on to consider others. That is when it becomes a great utility. There are occasions when, for various circumstantial reasons, the police may alight upon a certain individual who appears to have all the necessary components to indicate that he or she may have been involved but they can be excluded. That is why I say that it can have a beneficial effect at an early stage.

It is important that the police are able to retain all information assembled during the investigation of an offence, not least to enable them to investigate a possible miscarriage of justice in the future, as I have already indicated. The police are already able to retain other information gathered as part of the investigation, such as witness statements, photographs, and so on, and we would say that samples and fingerprints are really no different.

Furthermore, if the fingerprints and DNA samples are retained they will be available to the police in the event of that person committing an offence in the future. Law-abiding citizens have nothing to fear from their fingerprints or DNA being retained as they may be used only for the prevention or detection of crime, the investigation of an offence or the prosecution of an offence.

In the year following the amendments to PACE made by the Criminal Justice and Police Act 2001 which removed the requirement to destroy the fingerprints/DNA of persons who were acquitted, approximately 400 offences were detected involving some 300 offenders using DNA profiles that would previously have fallen to be removed from the database. Those included three attempted murders, four rapes and a number of aggravated burglaries and serious assaults.

In resisting the proposed amendment, I would like if I may, to take noble Lords back to the cases that gave rise to the amendments to the Police and Criminal Evidence Act 1984, contained in the Criminal Justice and Police Act 2001 which allowed police the discretion to keep the DNA samples of people who were acquitted or against whom charges were dropped.

The implications of the requirement on the police to destroy DNA samples in those circumstances were brought into focus in the most acute way by two cases heard together in the Court of Appeal: R v B and R v Weir. In those cases compelling DNA evidence linked the accused to two particularly bad brutal attacks on elderly people in their homes, one resulting in rape and the other in murder. In both cases a match was made between samples taken at the crime scene and DNA profiles on the database. However, those profiles were derived from samples that were taken in relation to offences of which the two accused had been acquitted. They therefore fell to be destroyed under the terms of Section 64 of PACE as it then was. New samples were taken as a result of the link made and it was those new samples that were adduced in evidence.

Nevertheless, the Court of Appeal concluded that the matches had been used in the investigation of the subsequent offences contrary to the prohibition in Section 64; that the trial judge had no discretion to admit the evidence and that, therefore, neither man could be convicted. As the Court of Appeal said:

"It would have been perfectly possible for Parliament to conclude that the fight against crime was so important that there should be no restriction on the use of DNA samples so that where such samples were lawfully obtained by the police the information derived from them could be retained on a database for all purposes. Whether in the light of these two cases and the repercussions in relation to other cases, the authorities or Parliament wish to revisit Section 64 of PACE is not a matter for this Court of Appeal but there can be no doubt as to the seriousness of the consequences".

The House of Lords' decision in R v B when it reached them on appeal took a rather different approach to that of the Court of Appeal. The House of Lords decided that the trial judge had discretion to admit the DNA evidence, even though it derived from a sample that ought to have been, but had not been, destroyed. The Government welcomed that decision which at least meant that where compelling evidence was available the courts were not forced to ignore it. Nevertheless, the law was left in what was, in the Government's view, an unsatisfactory state, hence the need for reform. The court might be able to look at evidence if it so happened that the relevant police force had not yet caused the profile to be removed from the database, but that would depend on a combination of chance and police efficiency.

Those two cases demonstrate in the most chilling way, the danger that lies beneath the proposed amendment. The Government at the time realised that and this is what led to the decision to remove the requirement that such samples be destroyed and not used in subsequent investigations. The Government also accepted at the time of course that the retention and use of fingerprints and samples from those who have been acquitted raised potential issues under article 8 of the ECHR, but they did not believe that article 8 required the destruction of potentially vital objective evidence.

As I have already said, we do not expect the police to destroy all interview notes or documentation relating to previous investigations, whether or not they lead to a conviction. It is accepted that information may well be relevant to subsequent investigations. Information derived from DNA samples is one of the most objective and conclusive forms of establishing involvement in a crime or, equally important, disproving involvement. We do not believe that the police should be under a duty to throw it away. The police are not given carte blanche to do with such samples as they will and Section 64 of PACE makes it clear that DNA samples and fingerprints can be used only for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

We heard in our earlier debate reference to a challenge to the current provisions of Section 64 of PACE in the Court of Appeal in the case of R v Chief Constable of South Yorkshire (ex parte S and Marper.), to which the noble Lord, Lord Dholakia, referred. Those two appellants argued that the chief constable's decision to retain their fingerprints/DNA, notwithstanding that one of them wasp acquitted and the charge against the other was not proceeded with, was a breach of the ECHR. The appellants had claimed that the chief constable's decision was in breach of Article 8—the right to privacy—and Article 14—the right to non-discrimination.

As the noble Lord, Lord Thomas of Gresford, reminded your Lordships in our earlier debate, the Court of Appeal found that in those cases there was some interference with Article 8(1). However, the court also went on to find that under Article 8(2) the interference was proportional and justified. Furthermore there was no interference with Article 14. The appellants have appealed against the decision and the appeal will be heard before this House probably later this year.

I hope I have made it clear that if fingerprints and DNA samples are retained they will be available to the police in the event of the person committing an offence in the future. Law-abiding citizens have nothing to fear from this; it does not impugn their integrity or leave a stain on their character where this is perfectly normal and in the interests of detecting crime and protecting the rights of victims it is clearly desirable that the police should have every possible technological or scientific aid available to them to enable them to do so.

It is also important that the police are able to retain all the information assembled during the investigation of an offence not least to enable them to investigate a possible miscarriage of justice in the future. DNA profiles are useful, objective forms of evidence that can be used to indicate guilt or—and we must not forget this—help to establish innocence.

The noble Lord, Lord Dholakia, asked what we should do if other agencies wish to go on fishing exercises and use such samples improperly—an issue touched on also by the noble Baroness, Lady Harris. As your Lordships will remember, we dealt with that matter in part in our topical Question last week. I am happy to reiterate that opportunities for the database to be used in such a way are non-existent. The JCHR was concerned that the data might be placed at the disposal of foreign investigators and intelligence agencies conducting such fishing exercises in circumstances where the law governing the work of a foreign agency requesting the information offered little or no protection for privacy-related rights in relation to personal data held by public authorities.

There are in fact strict protocols set by Interpol for the provision of information from the national DNA database to foreign law enforcement agencies, which allow information to be provided to EU members but otherwise restrict the provision of information to countries with good human rights records. DNA profiles and personal identification data associated with them are held by both the laboratories that analyse the samples sent to them and the custodian. They are subject to the provisions of the Data Protection Act 1998. Their databases are registered with the information commissioner and personal data are kept securely. It is accessed only on the authorisation of designated personnel. Therefore, I hope that I have reassured noble Lords that any fear that this information may be used improperly is ungrounded.

The noble Lord, Lord Brittan, asked why people who are arrested are treated differently from the population at large. The objective difference is the fact that there has been an arrest and therefore they have come into contact with the criminal justice system, so information is obtained. We should make it clear that that is not only in relation to that person; and it is a matter that noble Lords should consider. Such information has been used to identify those who may be within the same family.

I shall give your Lordships an example. A serious offence of murder was committed. An incomplete profile was obtained from the DNA evidence available at the scene of the crime. It was not possible to identify the perpetrator from the information held on the database, but it was possible to identify a person in the perpetrator's family, because the DNA indicated similarities. From using the data available from the family member of the perpetrator it was possible thereafter to identify the perpetrator. Your Lordships should not underestimate how powerful such evidence can be.

Some noble Lords, including the noble Lord, Lord Dholakia, asked about mass screenings where people are given the option of having their sample added to the national database. Their consent is important and must be given in writing. We think there is a difference in terms of opportunity and ability. People come forward and offer themselves up for mass screenings, which we need to continue to encourage. But it is different to say that we should give up the information we have culled from an investigation because it may be used in other cases.

Your Lordships should also know that in many cases where individuals have not been charged or they have been acquitted of offences, subsequently it has been discovered when they were arrested for another offence—sometimes of a fairly minor nature—and their DNA was obtained, that they were in fact guilty of some very serious offences. There is one example where an individual was arrested in relation to a shoplifting case involving a mere £10. Thirty years previously, that individual had committed some serious sexual offences, and was able to be identified. So we have some powerful evidence that can be put to good use.

There are now approximately 2 million DNA profiles on the database—as the noble Baroness, Lady Harris, said—and approximately 180,000 crime scene samples.

Since its launch, the database has matched over 170,000 suspects to previously unidentified DNA found at crime scenes. About 4,000 matches per month are found between the profiles of individuals and those from scenes of crime, and if a biological sample is taken from a scene of crime there is a 42 per cent chance of finding a matching profile from an individual on the database. As the number of profiles on the database increases so will the chances of identifying the individual whose DNA was found at the crime scene. In practical terms, the proposed new power in respect of fingerprints will probably be used most frequently to confirm the identity of an individual where it is in doubt rather than to check against a particular crime stain or stains. To that end, it may often be that individuals are already on the database under an alias or alternative name. One can see the huge value to which that information will be put.

Of course it is accepted that police powers to retain DNA samples and profiles of persons who have been acquitted or against whom charges have been dropped raises concerns about intrusion into personal liberty. I recognise absolutely why the noble Lord, Lord Alexander, and others raise the issue. Many of those concerns were debated in relation to Clause 7. Some people may be concerned about the building of larger databases, particularly where it relates to people who have not been proceeded against for an offence. That was the point made by the noble, Lord Brittan.

It can therefore be argued that any intrusion on personal privacy is both necessary and proportionate to the benefits for victims of crime and society generally in detecting crime and protecting the public against criminals. There are many examples of persons who have been acquitted of one offence, or have had a charge against them dropped, who subsequently commit other offences. It does not therefore stigmatise someone not convicted of any offence if it is the norm to retain fingerprints/DNA that have been lawfully obtained.

I thank my noble friend for giving way. I intervened earlier to ask what consultation had taken place between the Home Office—or whoever else is involved—and the Law Society, the Bar Council, and so on. My noble friend said that she would respond.

I beg the noble Lord's pardon. I do not believe that we have had specific consultation with either the Law Society or the Bar Council on the two clauses. The noble Lord will know that, in the ordinary way, consultation takes place on many of those issues.

I wish to register the Committee's thanks for the courtesy and detail with which the noble Baroness has presented the Government's arguments. Although we may not agree with her, we can only respect and admire her full answer. Further to the comment made by her noble friend Lord Clinton-Davis, is it not true that our particular difficulty with the clauses is rooted in the fact that they were only introduced to the Bill in another place on 19th May whereas the passage of the Bill began last December? As the Minister rightly said, there had been full consultation with the outside world, including both lawyers and non-lawyers, on the whole Bill. The difficulty, I am sad to say, is that the outside world took little notice on 19th May during the debate in another place. This matter will be hitting them only now. Is that not the difficulty that we face as a result of the lack of consultation on these controversial issues?

Of course it would have been better if we had had a fuller opportunity to discuss the matters, and if the clauses had been more fully debated in another place. One of the beauties of your Lordships' House is that we have the luxury to do just that. I cannot emphasise enough the importance of this opportunity. I am sure that we are having a very similar discussion to that which would have surrounded the decision on whether we retain the data on those acquitted. Members of the Committee will know that our practice in the past was that, if an individual was acquitted in accordance with our law and the procedures, he would be entitled to have the DNA information contained on the record expunged.

We know from the two cases that I have outlined, and the 400-plus that have followed, how important the retention of that information has already proved to be. One need only look at the newspapers to see daily proof of the good use to which DNA evidence can be put. So much evidence that comes before our courts can be besmirched, argued with and undermined because it may convict the innocent and may allow the guilty to go free. An objective tool that we can use both to free and to convict is therefore very powerful.

There need come to light only one of the sort of cases we have discussed for the public to say, "We simply do not understand why the system is deliberately disabling itself from giving us justice when the same is easily obtainable". We must address that question.

Would it not be better if, before Report stage, the sort of organisations to which I referred were consulted? My noble friend puts forward a powerful case.

If the noble Lord could give way for one moment, I could answer one of the questions that he very thoughtfully raises as a keen supporter of Justice, of which I am chairman. Inevitably, as the noble Baroness says, there appears to have been no time to consult any bodies. But we have submitted to her very clear representations, which we have circulated to a number of noble Lords. The submission states:

"JUSTICE strongly opposes this new clause, added at the Commons Report Stage".

A later passage states:

"The issue of whether it is appropriate or necessary in a democratic society to permit the state to obtain and retain this information from innocent persons, and in effect begin to create a universal DNA and fingerprint database, is one of great importance. It is an issue upon which JUSTICE believes there should be a general and open public debate. If such a database is considered appropriate then all persons, arguably, should be compelled to provide samples".

That was the point eloquently raised by my noble friend Lord Brittan. I must say to the Minister that the more I listened to her speak about how DNA samples could contribute towards establishing innocence or guilt, the more I felt that she was arguing for a national database or screening. I fail to be in the least convinced by her long exposition of how to differentiate between the innocent who are not charged but have been arrested and the innocent who have been neither arrested nor charged. That is at the heart of the debate. I regret to say that, for me, the Minister has not begun to answer that case.

I wish to raise the question of why there was no consultation with the Human Genetics Commission, of which I am the chair. The issue raised by my noble friend of how access to genetic information can assist justice raises very important matters with regard to public expectation, which have been explored by the commission. The public want to see that information used to deal with crime.

However, concerns are expressed about the creation of a national database without proper consent from the whole public. There has not been consultation on the matter. There are advocates of that approach. Professor Jeffreys, the discoverer of DNA for police investigation, has said that either everyone should be on the database or the matter should not be approached in the way that the Government propose. It would help if those involved in the issues were consulted. I am afraid that the Home Office has not been in touch with the commission that I chair. The other matter that I wish to raise—

It is an intervention.

Sorry. I wish to raise the following point because it is important. A distinction should be made between samples and matters that are purely "the barcode" kept by the police. Many advocate that the barcode could be kept but that the issue of samples is of real concern and should be debated much more publicly.

I thank the Minister. She said that we have powerful evidence for why we are recommending the retention and collection of samples, but if the case is so powerful, why was it not included in the Bill when it was first introduced in the House of Commons? As the noble Baroness, Lady Anelay, said, the matter was introduced very late in the day and I do not think that there was proper consultation. I could have quoted from Justice or the Law Society, both of which have shown great concern about the proposal that the Government are introducing.

The issue that bothers us most is the erosion of the rights and liberties of individuals and that there has not been proper consultation with the bodies that matter. Even at this late stage, it would be appropriate for the Government to consult those organisations before Report. If they do not, I am certainly bound to consult them, bearing in mind what the Minister said.

I remind the Minister that she mentioned the case of someone who was acquitted after serving a long term in prison. But that case is not relevant to what we are discussing. The amendment would not have helped that case. The person was charged, so the sample would have been retained and there would have been no problem in that respect. We are talking about 300 or 400 out of the hundreds of thousands of cases that go before the court, so this is a matter of serious concern, unless there is a public debate on this particular issue. I do not intend to press the amendment to a Division.

If my noble friend the Minister were to say at this late stage that the Government are prepared to enter into consultation before Report, which they have not done, would the noble Lord, Lord Dholakia, be satisfied?

I thank the noble Lord, Lord Clinton Davis, but my answer would depend on the outcome of the consultations. I have got the preliminary views from those organisations but I will certainly return on Report after further consultation with these bodies, irrespective of whether the Home Office has consulted them or not.

I am always fascinated by demands for consultation. Have the bodies concerned made representations to the Minister? Have they asked to meet the Minister, and if not, why not? Why should it be necessary to hold up the passage of the Bill because interested bodies cannot be bothered to take the initiative?

If the noble Lord, Lord Hughes of Woodside, had listened to some of the answers put forward, he would have heard that this provision was introduced at a very late stage in the House of Commons and I do not think that the organisations involved had the opportunity to consult the Minister. However, I do not think that it is too late to consult them, and all that I intend to do therefore is to mention to the Minister that we will certainly be in touch with the organisations. If we feel on Report that the argument about the collection of samples has not been advanced, we will press appropriate amendments to a Division.

I reiterate what I said right at the beginning of the debate. Of course, in relation to all or any of these matters we remain open to discussion. We have already indicated that we will have the usual meetings with the Front Bench and other interested parties between now and Report. For the sake of the record, I make that offer once again.

I say openly both to Justice and to my noble friend Lord Clinton-Davis that, in relation to the Bar and the Law Society, in accordance with our usual practice, we will consider any representations made to us about any other issue arising from the Bill. I would love to answer the noble Lord, Lord Alexander, but I will do so on another occasion.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable friend Mr Mullin on the imprisonment and trial of two UK nationals in Guantanamo Bay. The Statement is as follows:

"On 3rd July, the United States designated six detainees, including two British nationals held at Guantanamo Bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised and will continue to raise these reservations energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about this over the weekend and will speak to him again in a few days.

"So far, neither of the detainees has been charged. However, we have made clear to the US that we expect the process to meet internationally accepted standards for a fair trial. We will follow the process very carefully. The US is aware of our fundamental opposition to the use of the death penalty in all circumstances. If there is any suggestion that the death penalty might be sought in these cases, we would raise the strongest possible objections with the US".

My Lords, that completes the Statement.

My Lords, I am grateful to the Minister for repeating the Statement from another place. I did not see the text in advance, which I understand. This is an answer to an urgent Question in the other place. However, I am aware of how strongly the Minister feels about the matter. I know that she feels concern that we all share about what is now proposed.

We understand why prisoners have been taken to Guantanamo Bay and why their rights have been suspended for a time. These are people who are suspected of revolting and evil acts and I have no doubt that it was hoped—it may still be hoped—that they could reveal details about other atrocities both in the past and to be completed, which would save many human lives.

That time has now passed, however, and there is talk about trials before a military commission or tribunal. It is right for us to pursue questions now that this talk has arisen. What has actually been agreed with the American Government about the procedures to be adopted? How will they work? When will they start? What sort of legal representation will the detainees have and what are the charges? Are they to be charged with treason or something different?

Will we remind our American allies, who fought bravely and understandably in Afghanistan and suffered the most dreadful injuries two years ago, that they need to work together with their coalition partners? They should not be surprised if things go wrong when they do not work closely together. The Americans are refreshingly outspoken about our affairs, which I welcome. However, why should we not be equally firm and outspoken about theirs—although always, of course, in the friendliest possible way?

My Lords, my understanding has always been that one of the pillars of the attitudes and civil rights of this country is that people are innocent until they are found guilty. That is a fundamental principle and many of us are delighted that the Minister has made that clear. However, first, is the House aware that these men do not know what charges they face? They have not been told. Secondly, is the House aware that, if they are found guilty, they may face the death penalty, which this country has decided no longer to accept? Thirdly, is the House aware that, if these men are found not guilty, they will not be acquitted and released but will be retained as enemy combatants for whatever length of time the US chooses to detain them?

Finally, is the House aware that the UK and the US are both signatories to United Nations conventions that absolutely guarantee the right to a fair trial, the right to defence and the right to access to lawyers by any country that is a signatory? Will the Minister tell us whether, given what good allies we have been to the US, the Prime Minister will raise this matter at the highest level, with the President of the US?

My Lords, I thank the noble Lord, Lord Howell of Guildford, and the noble Baroness, Lady Williams of Crosby, for their interventions. I am sorry that there was no advance text. However, the Statement that I repeated to your Lordships was very simple and straightforward. As the noble Lord, Lord Howell of Guildford, was kind enough to acknowledge, it was made in response to an urgent Question in another place.

We must be clear on one point: there are no charges laid against either of the British nationals at the moment. There has been a designation by the United States that has cleared the way to possible charges against the six named individuals. There must be a separate decision about whether any charges will be laid and go forward to a trial. I do not want to mislead any of your Lordships. It is probably logical to believe that such charges will be laid, but I stress to your Lordships that part of the reason why they do not know what the charges are is that they have not been laid at the moment.

I agree absolutely with the noble Lord's points about terrorism. Some appalling and terrible atrocities have been committed in several countries. We should never forget that people have suffered. We must do what we can to expunge it from the international arsenal of what is available to people who do not want to conform to the ways in which most of us are able to do business with each other. However, it is important to come back to the fundamental point made by the noble Baroness, Lady Williams of Crosby: those individuals are innocent until they are proved guilty before a court of law.

The individuals concerned have been a long time in a legal limbo in Guantanamo Bay. My right honourable friend the Prime Minister said that it would be unsatisfactory to go on not being clear about how anybody would be brought to trial. What can, at least, be said about the events of last Thursday and Friday is that some clarity has been brought to bear on the situation, but it is difficult not to have strong reservations about the way in which the United States proposes to proceed with the trials.

The noble Lord asked me what had been agreed. Little has been agreed about the trials. The United States has published its proposals and has said that it will engage with us on the matter. We propose to engage rigorously with it. We shall press the United States authorities for the internationally recognised remit over a fair trial and such things as the right to defence lawyers, the right to see the evidence that will be adduced against those who are to go before a court, the right to an appeals system and the right to have as open a trial as possible. I readily acknowledge that it is not easy to have an absolutely open trial, if matters relating to national or international security have to be dealt with in some detail. We are familiar with procedures under which a court can sit in camera to hear matters of great sensitivity that may impinge on national security.

I agree that we must be firm with the United States and friendly with the United States. I believe that putting our points vigorously to the United States is important for the United States itself. It is enormously important that, in a procedure in which, we are told, the death penalty may be available—that is a matter for the military commission—the United States leaves no stone unturned in ensuring that the trials are recognised as being as fair and open and as much in conformity with internationally recognised standards for fair trials as is humanly possible.

The noble Baroness raised the question of the death penalty. I regret to say that that penalty is still open to the commission. We have made our views on that abundantly clear, and we shall go on doing so.

My Lords, can my noble friend say whether the Government have pressed the United States Government to accept that lawyers chosen by the individuals, in the event of a trial, should be allowed to represent them, rather than lawyers allocated by the US military? Have the Government pressed for international observers—British observers, certainly—at any such trial? If not, will they do so? Has my noble friend any idea whether there are any rights of appeal against a decision by such a military tribunal?

My Lords, we have raised and are raising the issue of legal representation. As it stands, the legal representation has been selected by the United States Government from Department of Defense lawyers. As I understand it, it may be possible for other lawyers to be retained by anybody who goes to trial, but, again as I understand the current proposals, such other lawyers would have to be United States citizens. That might be a question of how United States lawyers deal with United States courts, which may be consonant with the way in which the United States operates in respect of criminal trials. In addition, any such lawyers would need heavy security clearance, and there are some questions that we would want to raise about the ways in which they would communicate. There are quite a number of issues relating to legal representation.

The question of having international observers has been discussed. The United States Government have agreed that there should be some international observers, but we need to explore further with the United States authorities how that might work. At the moment, I understand that the rights of appeal that are being suggested are ones within the Department of Defense.

My Lords, is the noble Baroness aware that the proceedings of the military tribunals have been condemned by the American Bar Association, the National Institute of Military Justice and the National Association of Criminal Defense Lawyers? Is she also aware that military tribunals have a disgraceful history, having been used to suppress the Sioux in the Indian wars of the 19th century? Many were condemned to death then, and they were reprieved only by the intervention of President Lincoln.

Will the noble Baroness confirm that the Government will press as hard as possible to ensure that the tribunals are opened up to the public and are held in public as far as is possible; that there are independent observers; and that the requirements of Article 14 of the International Covenant on Civil and Political Rights, which demands an independent and impartial tribunal at the first instance, are fulfilled?

My Lords, I am aware that some strong reservations have been expressed by the United States legal associations that the noble Lord mentioned. I am also aware that military tribunals are, in many countries, regarded as not being sufficiently cognisant of the separation of powers between the military authorities and the judicial authorities.

When I dealt with defence matters as a Minister in your Lordships' House, your Lordships spent a lot of time on the question of where the authority of military power ended and where judicial powers had to be invoked in our laws. I am bound to say that our justice system would not allow us to engage in a trial such as is proposed for anybody suspected of much less serious crimes.

All those issues are being raised by my right honourable friend. I was able to tell your Lordships in the Statement that I repeated that my right honourable friend had spoken this weekend to his opposite number in Washington. I assure your Lordships that he proposes to do so again later this week. I have seen a lawyer representing one of the British people who have been designated, and I shall be happy to see anybody representing the other individual concerned. All that is being fed to my right honourable friend for his discussions with Colin Powell.

My Lords, I regret that I was not here for the beginning of the Minister's Statement. Does she know of any precedent for the proposals being put forward by the United States Government? How long did it take us to get consular access to the British citizens concerned?

My Lords, I do not know the direct precedent. We had some particular arrangements for the Lockerbie trial, but that is not a precedent. From time to time, in a world in which international terrorism is such that crimes are committed against a country's nationals right the way around the world by individuals from different jurisdictions, there may be one-off arrangements. It is not surprising that there is no precedent for what is being discussed here, but that does not relieve any country of the capacity or the responsibility for dealing with a trial as fairly as possible. On the issue of precedent, it is not surprising that we do not have anything direct.

My Lords—

My Lords, I beg your Lordships' pardon. I did not answer the second point raised by my noble and learned friend as regards consular access. There has been no consular access because these are unlawful combatants. They were not in the position of nationals who might find themselves in prison on ordinary criminal charges. However, they have been seen by British officials five times since becoming inmates at Guantanamo Bay.

My Lords, the noble and learned Lord, Lord Ackner, first.

My Lords, can the noble Baroness tell us, knowing how unsatisfactory this position has been for a long time, why we were prepared to ease the restrictions on extraditing in favour of the United States—a subject which was recently raised in this House? Why was that not used, for instance, as a bargaining position in order to achieve some helpful resolution of the current problem?

My Lords, as I understand it, those two issues are very different. These individuals were not extradited from the United Kingdom. They are individuals who were taken into custody by the United States outside the United Kingdom's jurisdiction from various parts of the world. Now, possibly, they are to be charged with terrorism. They have not been extradited from the United Kingdom.

My Lords, is it not true that the whole of the Guantanamo Bay issue brings United States' justice into disrepute? Does she not agree that military tribunals without the right of access—locking up for years and years—go against the whole tradition of Anglo-American justice? Would she muse a tiny moment on the prospect of peradventure the noble and learned Lord, Lord Williams of Mostyn, was in Opposition? I can hear his mellifluous Welsh tones thundering against the injustice of these cases; I would have been in complete and utter agreement with him. This brings the whole of United States defence of democracy, defence of liberty and defence of justice into disrepute.

My Lords, I made the point a moment ago that it is in the interests of the United States to listen very carefully to what its friends are saying. It is in the interests of the US because if it is not able so to do, I fear that many individuals and perhaps some Governments around the world will draw the conclusions that the noble Earl, Lord Onslow, is drawing. It is sometimes possible to thunder about these issues and at other times to speak in a measured but, none the less, forceful tone about what we now expect to happen. There is a great deal of work to be done. I suspect that there will be many conversations about this. It is the measured calmness of diplomatic and ministerial representations that are likely to get us closer to the types of measures that constitute a fair trial.

My Lords, I think that I can assure my noble friend that the Government will have the support of almost everyone in this House for the actions that they take. Clearly, it is an appalling state of affairs. Those of us who have looked at the situation have come to the conclusion that it reflects badly on the United States, on its history and, indeed, on its traditions. I have one factual question: how many other British subjects are there in Guantanamo Bay who may find themselves in a similar position?

My Lords, I am grateful for what my noble friend said. Altogether, there are nine British subjects housed at Guantanamo Bay; that is, seven in addition to the two designated in this process.

My Lords, is not the best way of ensuring that our citizens get a fair trial to demand that they he handed over to British authorities for trial in our courts under the Terrorism Act 2000? If they have to be tried in the United States, would the Government ensure that the final rule—the regulations—which will govern the military tribunals are subjected to British legal experts for their comments? Particular issues are that the lawyer who will be defending not just our citizens but others too is a former military aide to President George Bush Senior; that the defendants, apparently, are to be offered the choice between pleading guilty and receiving a 20-year prison sentence, or the death sentence; and that the conversations between defence lawyers and their clients are to be monitored. Does she think that all those provisions are in accordance with the international standards that we are demanding?

My Lords, that is why the Government are voicing such strong reservations. I find it hard to disagree with many of the points raised by the noble Lord, Lord. Avebury. The monitoring of conversations is certainly something that we would find unacceptable. The plea bargaining process in the United States applies to its criminal law; that is being applied now to these cases, very much in the way described by the noble Lord. It might be argued that it puts undue pressure on individuals to own up to crimes for fear of finding themselves exposed to the death penalty if they do not do so. I absolutely understand the point made by the noble Lord. It is a point that would strike anyone who looks at these papers.

On the question of demanding that the individuals be handed over, in the preliminary discussions we examined a number of different options with the United States, including the one mentioned by the noble Lord. Indeed, my right honourable friend the Foreign Secretary made that clear some months ago in another place. The United States has been clear back to us that that was not an option.

My Lords, has the Minister or her colleagues made it clear to the United States' authorities that the way in which a trial would take place in this country, under the Terrorism Act, would ensure a fair balance between open justice and the need to protect the security of the intelligence and security sources—that being Option A? Option B would involve the United States' federal courts, with their fine reputation for the due process of law, conducting a trial according to their ordinary procedures. Option C would be an international tribunal that was independent and impartial, established under international law to satisfy the requirements of the International Covenant on Civil and Political Rights. Have those three options been—or will they be—put forward as possible options to the United States?

My Lords, I am tempted to say, "Yes, of course all these options have been discussed". I am pleased to hear what the noble Lord said about the balance in our Terrorism Act. Of course, there is an issue here. The noble Lord, Lord Howell of Guildford, was right to remind us of the seriousness of the crimes. Let us not forget that some of the crimes at the root of this are heinous and horrendous crimes. It is enormously important that we do everything we can to ensure that the people responsible are brought to justice.

That said, the whole system loses credibility unless there is a fair trial process. When so much of what we are arguing about is fairness and justice in the world, it is enormously important that the system we use to bring people to justice is self-evidently as fair as possible—that is, balancing the rights of the individual on trial against the rights of the rest of the world to security. The issue of federal courts is very interesting. So far, United States' citizens have gone through a quite different court procedure—a point which I am sure will not have escaped many of your Lordships. Again, this is a point on which one is tempted to argue that a system that is not quite right for United States' citizens might not be quite right for a great number of other citizens too.

The noble Lord makes the important point about international tribunals. Of course, he knows that the United States has not signed up to the International Criminal Court, much as we have urged it to do so. I take the point of the three options; the fact is that none of those three options is on offer. We have quite simple choices. We either stay in the room and argue for fair trials—or as fair as we can obtain—or we leave the room. I am for staying in the room.

My Lords, I am grateful for the Statement and for what the Minister has said about a fair trial being essential. Will the Government continue to press for the remaining seven British prisoners to be either charged or released? Secondly, would the noble Baroness use all her influence to secure adequate exercise facilities for these people?

My Lords, on the first point, yes. The noble Lord made a very important point about these other individuals. There are terrible choices here. These individuals can either have a lengthy stay without knowing what will happen to them or they can go forward to a trial process which may have many shortcomings and about which we have reservations. It is very important that the issue of the other seven is resolved. On the second point raised by the noble Lord of adequate exercise, we have pressed for that. It is not just a question of exercise, there should also be more contact through family letters. There is some evidence that family correspondence is not getting through. That has been the cause of quite a lot of distress. On both issues of family letters and exercise, we shall continue to make representations.

My Lords, it is impossible not to sympathise with the position the Government find themselves in. The Minister will have a clear idea of the concern and anger in all parts of your Lordships' House. Will she use her best endeavours to come back to the House when we resume in September with a progress report?

My Lords, indeed I will. Your Lordships may be interested to know that this issue falls into my ministerial portfolio as the Minister for counter-terrorism. Therefore I am well placed to return to your Lordships on this issue.

My Lords, the Minister says that it is important to bring influence to bear on a Government with which we have very close relations. We saw that in the run-up to the war in Iraq where it was publicly argued that we played a very important role by being in the room. At what point do we say we are going to leave the room and make it clear that we find something wholly unacceptable and that there is a fault line in our relationship?

My Lords, I find it difficult to speculate. I shall tell my noble friend why. I am not sure how that helps the individuals about whom I am most concerned—those who may stand trial. My noble friend talks about what might be some wholly unacceptable arrangement. It is also unacceptable to leave British citizens abandoned to their fate. Saying that we find it impossible to go on does not serve any useful purpose. We should continue to hold our nerve and continue to argue as vigorously as we can. My right honourable friend has arranged to have further discussions with Colin Powell later this week.

My Lords, the Minister has the whole-hearted support of this House in making clear to our friends in the United States that the British public will find baffling the refusal of the US authorities to consider the reasonable options advanced by my noble friend Lord Lester of Herne Hill. This refusal comes from a country which has had a close relationship with us, both in the conduct of the war against terrorism in the aftermath of 9/11 and more recently over Iraq. The failure to accept the handing over of British nationals to the British authorities suggests a lack of trust in our own ability to handle terrorism threats. This is simply not consonant with the close alliance of which we are a part.

My Lords, I agree with the noble Lord. The reaction of the British media has been very clear. In recent days many people have said to me that they find what is being proposed unacceptable. The Government have strong reservations. We must engage with the United States about this. They have indicated that they are still open to suggestions about the way trials are conducted. They have said they wish them to be open. I do not believe it is a lack of trust in the United Kingdom that lies at the root of this. It is the belief of the United States that they, as the retaining power, have the right to put these individuals on trial. However much we find that a difficult notion, we have to deal with the situation as we find it. It is enormously important that we engage as friends and use our not inconsiderable powers of persuasion.

My Lords, I beg to move that the House do now again resolve itself into Committee on the Bill.

moved Amendment No.32:

As the Minister said, we have tabled some amendments in this group. I listened carefully to what she said in justifying her position and attempting to destroy ours. I hear the words "targeted consultation" and "minimising bureaucracy", which is all good stuff. However. we are not entirely happy, and the amendments require a further airing.

As the Minister said, the amendments revise the codes of practice. We are grateful that the Government have tabled amendments that have gone some way to meeting our concerns. However, the practical operation of the last eight clauses that we have been debating will be governed by the codes. Much of our discussion in the Chamber has been understandably at a strategic—even a bird's eye—level, but the PACE codes of practice are the fundamentals of the system, where it comes most closely into contact with the general public.

Until now there has been a wide consultation process, laid down in Section 67(1) of PACE, which states that:

"When a Secretary of State proposes to issue a code of practice to which this section applies, he shall prepare and publish a draft of that code, shall consider any representations made about the draft and may modify the draft accordingly".

We are concerned that under the umbrella of bureaucracy minimisation and cutting down on and focusing consultation, the Government are proposing to narrow and shorten the consultation process too much. We agree with the Government that maintaining public confidence in the integrity of the system is absolutely critical. Is it wise in such circumstances to reduce the consultative process?

We also have some more specific concerns that our amendments address. Clause 9(4) lists the people who have to be consulted before any revision of a code. We agree with the noble Baroness that, as originally drafted, the consultation process seemed a little one-sided. Subsection (4)(a) refers to the police authorities, subsection (4)(b) to the chief officers of the police and subsection (4)(c) to such other persons as are thought fit. Of course, the police need to be involved, but there are others who need to be involved and to be able to make their views known.

The Law Society has provided us with a very helpful briefing on this point; it observes that the codes affect all aspects of pre-charge investigation, in turn affecting the post charge process, and can often affect the operation of the duty solicitor scheme. Accordingly, where there is to be a change in practice, it is in the interests of effective implementation, as well as in the interests of justice, for there to be obligatory consultation with all relevant parties.

Amendment No. 33 widens consultation to include what one might describe as "the legal professionals", two of which the Minister swept up in her amendment. However, we remain concerned that magistrates are being overlooked. They are very much at the sharp end of the practical implication of the codes. We should also like to see the Central Council of Magistrates' Courts Committees and the Magistrates' Association brought into the consultation process.

Our Amendments Nos. 34 and 36 take the issue wider, including representatives of the general public who become involved with the courts, as well as interest groups that deal with the impact of the judicial system. We have had a most helpful briefing from the Children's Society, which outlined some of the practical difficulties and implications if consultation is to be restricted in future. It says:

"The Children Act 1989 gave a technical legal definition of the term 'in care', meaning a child is subject to some form of care order, introducing the term 'looked after' for children living away from home and 'accommodated' for children for whom the local authority does not have a share in the Parental Responsibility. It is only after many years of representations that the significance of this has been acknowledged in the Codes of Practice. There is now a changed wording over who may act as the appropriate adult for looked after children consistent with the language and concepts of the Children Act 1989. Without the current duty to consult widely the representations necessary to effect this change would not have been considered and this long overdue change not happened".

Finally, the noble Baroness said that Amendment No. 37A was unduly restrictive, but it is an attempt to ensure that consultation on future codes is sufficiently wide by requiring the Secretary of State to disclose who has been consulted. Otherwise, the assurances given by the noble Baroness this afternoon—no doubt in absolutely good faith—will not bear heavily on her successors. The noble Baroness, Lady Walmsley, has taken a similar approach for the Liberal Democrats with Amendment No. 35, to which my noble friend Lady Anelay has added her name. I look forward to her contribution.

Our case for the amendments can be simply put. We are all agreed that maintaining public confidence in the system of justice is critical. Transparency is a vital ingredient in maintaining that confidence. The provisions of the PACE codes will be experienced at first hand by literally thousands of our fellow citizens. For many of them the code will govern their only contact with the judicial system. It is very important that there should be avenues for them to make their views known on the efficacy or otherwise of the codes when revisions are contemplated.

There is another, more pragmatic reason for keeping the consultation process on revision as wide as possible. As Mr Grieve observed in Committee in another place on 7th January at col. 123, where the maximum consultation on revisions to the codes has taken place, their new provisions are more likely to be accepted and it is less likely that their detail will be subject to challenge in court. That underlines the importance of Amendment No. 37A. We are seeking to mirror closely the present consultation process. There do not appear to have been any problems with it. "If it ain't broke, don't try to fix it", seems to be good advice on this occasion.

Amendment No. 35, in my name and that of the noble Baroness, Lady Anelay, would retain the existing provisions for making amendments to the PACE codes of practice, so that any changes to the safeguards for children are subject to wide consultation. The amendment has been suggested by the major children's organisations.

Clause 9 changes the current situation, under which the Home Secretary is obliged to undertake public consultation on any changes. The Bill proposes that he can amend or revise the codes with limited consultation. Government Amendment No. 32 amends that.

This significant change has received cross-party opposition in another place as well as in your Lordships' House. The Home Affairs Select Committee also expressed concern. There is a lot of support for the need to extend the breadth of consultation to, among others, the Home Affairs Select Committee, as well as the Law Society and the others included in government Amendment No. 32. It is also felt that any changes should be agreed through affirmative resolution in both Houses. Although the Government have indicated that the affirmative procedure is in place for new codes and significant amendments, many people are concerned that apparently minor changes can sometimes have major effects, even though they have been subject to limited consultation. The major children's organisations are concerned that the proposed limited consultation on changes is unnecessarily restrictive. They are particularly concerned to ensure that any changes to the safeguards for children are widely consulted on by a specified list of organisations that have made major contributions to consultation in the past.

Consultation can improve the codes and act as a check and balance to ensure that safeguards for children are maintained. The recent review involved 80 organisations and produced very few problems. The interaction between consultation and parliamentary scrutiny is well established and the resulting codes are robust and comprehensive. The noble Lord, Lord Hodgson, has quoted a clear example in which such consultation has resulted in a very beneficial change to the code.

I hear what the Minister has to say about the need to remove bureaucracy when minor changes are envisaged, but I remind her that on an earlier group of amendments her noble friend Lady Kennedy of The Shaws pointed out that a significant organisation was ignored in consultation on another matter in relation to the Bill. I hope that I have made the case for the widest possible consultation.

I endorse the view that the case of children needs the most careful consideration. There is much in what the noble Baroness, Lady Walmsley, has said. However, the need for consultation runs right through the Bill, regardless of who is concerned.

I warmly welcome government Amendment No. 37, which produces a properly parliamentary procedure, but it seems to contain an oddity. As I understand it, subsection (7) of the amendment says that the normal procedure for a code will be to bring an order to Parliament under the affirmative procedure. However, subsection (7A) appears to leave a range of options. It says:

"An order bringing a revision of a code into operation must be laid before Parliament if the order has been made without a draft having been so laid"—

that is, having been laid for an affirmative procedure. That subsection implies that a revision of a code can have the affirmative procedure or it can simply be laid before the House, which involves no procedure, but the intermediate stage—which is usually considered by the Delegated Powers and Regulatory Reform Committee, to which we pay close attention and which is yet to report—is for a negative order.

The difference is important. Affirmative orders have to be brought forward by the Government for debate, but negative orders appear on the Minute as such and offer themselves for selection by other Members of the House. However, I think that those that are simply laid before the House appear in a different part of the Minute that I practically never read, because there are scores, or even hundreds, of them coming through all the time. I do not regard the simple laying of the order as sufficient protection in a matter that, as the noble Baroness, Lady Walmsley, and others have said, can have a close effect particularly on children.

I am impressed by most of the amendments. However, Amendment No. 36, spoken to by my noble friend Lord Hodgson, says that consultations carried out before the code is formulated should include,

"those representing the interests of the victim, lay and professional witnesses and defendants".

Let us take defendants. There is no public body representative of criminals which would have to he consulted. I wonder whether my noble friend could explain what on earth is intended by including that. Are there bodies representing victims of these sort of crimes? I should be fascinated to know whether there are such bodies because victims can vary enormously right across society. Then we also find that the representatives of lay and professional witnesses have to be consulted. They, too, can vary greatly. If my noble friend could explain the amendment or say that perhaps it should not be moved, I should be grateful.

I agree with the noble Lord, Lord Renton, which I rarely do. He is seized of a very important point. Amendments have to make sense. I do not believe that the proposed measure makes a real contribution to our deliberations. The noble Lord, Lord Renton, made a very important point. I hope that the noble Lord, Lord Hodgson, will readily discard what is tabled in Amendment No. 36.

The Minister's amendment was predicted in the Government's memorandum to the Delegated Powers and Regulatory Reform Committee of which I am a member. The committee states at paragraph 9 of its report that the matter,

"is explained in full in the memorandum where it is stated that amendments are to be tabled about the level of parliamentary scrutiny that will apply".

The committee said that it would consider those amendments when they were available to the House. I think I am right in saying that the committee has not as yet been able to do that because the relevant business was tabled before it met. But the committee further stated:

"Meanwhile, we wish to endorse the principle (proposed in the memorandum) that new codes and significant amendments to existing codes (however that is to be defined) should be subject to affirmative procedure".

I was going to wait until the next group of amendments to comment on that but as I believe the noble Baroness said that the Government were prepared to accept that new codes should be subject to affirmative resolution, she has made an exception to the process of amendments to codes and has offered a rather different way of dealing with them. Of course, I have no idea what the committee would have to say about that because it has not yet considered the matter. But in principle the committee does not agree with that as it considers that such codes matter so much to ordinary people that they should be properly discussed by both Houses of Parliament even when the issue is simply that of amendments to the codes. I expect the noble Baroness realises that the Select Committee may or may not be in agreement on the matter. We are about to discuss that matter but I thought that I had better remind the Committee what the Select Committee said on that point.

It might be helpful if I respond to the two points made about Amendment No. 36. I think it is fair to say that victim support organisations could be consulted. I say to my noble friend Lord Renton and to the noble Lord, Lord Clinton-Davis, that defendants are not necessarily criminals. They may be innocent people who have been through the system and therefore have a view about the operation of the codes. As regards lay and professional witnesses, while I do not for a moment claim that the amendment is perfectly drafted from a parliamentary draftsman's point of view, it is an attempt to ensure that the generality of the public are involved in the matter on the grounds that it is altogether too important to be left to lawyers.

Before my noble friend sits down could he explain who would be the representatives? Which bodies would be the representatives of victims, of lay and professional witnesses and, separately, of defendants?

I do not wish to be so prescriptive as to suggest that the Government should lay out a list in primary legislation. I merely say that categories of bodies exist that represent the interests of victims, witnesses and defendants and who could be consulted.

Clearly a large number of organisations have already been consulted, if you like, in terms of the lobbying that they have put before us, some of which is of exceptional quality in a number of areas relating to this Bill and to several in which we have been involved recently. I have in my time represented organisations that deal with witnesses, victims and perpetrators. Sometimes it is extraordinarily difficult to separate out those groups. I add my voice to the wish that those groups continue to be consulted not in the interests of bureaucracy but because the comments that they make to an open-minded government can add quality to the codes on which the latter are consulting.

The noble Baroness is quite right but surely the phrase,

"such other persons as he thinks fit"

catches them all. It is impossible in legislation to mention everyone who ought to be consulted. That catch-all is very valuable.

I endorse what has just been said by my noble friend Lord Clinton-Davis. I say to the noble Baroness, Lady Howarth, that she is absolutely right about the nature of the consultation and the mix that quite often is inherent in the structure of the organisations with whom we consult. I hope that nothing that I have said will be misunderstood as indicating that the Government intend to limit those with whom they consult.

The Committee will know that the codes will be published on the website in draft so in practice anyone and everyone will as now be able to comment and make their position clear. At present there are no statutory consultees, only a general duty to consult which we exercise with great frequency and, I believe, efficacy. What we are talking about is the bureaucracy of having a list of specific organisations which have to be consulted on each occasion about each issue. Such a list may not include those who will need to be consulted. There is also the fear of changing that list but organisations change and metamorphose into different organisations. If you have a static list, does that mean that those on it are the only people who will be consulted? We want to make it clear that the matter is open.

I say to the noble Baroness, Lady Walmsley, that we take very seriously indeed the contribution made by children's charities which have been very vocal and rightly so. They have highlighted some of the nuances, differences and changes which are so important in making sure that children and young people's interests are properly reflected. We obviously wish them to continue to address those issues in the energetic way in which they have. We believe that the proposals will allow them to do so.

The Home Affairs Committee proposal is a novel one. We are suggesting that it should have an input into which procedure should be adopted, whether affirmative or negative. However, its novelty does not detract from its efficacy. We believe that it will bring something to the process. I take up the point made by the noble Lord, Lord Elton, about the affirmative procedure. Subsection (7) relates only to the new clauses—that must be the affirmative procedure. The proposed new subsection (7A) offers a choice for revision: either affirmative procedure or the simple laying of an order. We decided not to go for the negative procedure.

I say to the noble Baroness, Lady Carnegy, that we absolutely understand that the affirmative procedure was the course taken by the Delegated Powers Committee. We understand that the real import of what the committee was saying was that significant alterations were of equal importance to new codes, and for affirmative resolutions as appropriate.

The new process we are suggesting is that it may be necessary, for the convenience of everyone, to make minor changes to the codes which do not merit the full panoply of the affirmative resolution procedure. If the Home Affairs Select Committee were to indicate to my right honourable friend the Home Secretary that the negative resolution procedure would be preferable and appropriate, we would agree to be bound by that. It is on that novel proposal that we obviously want to have the comments of the Delegated Powers Committee and I have indicated that we shall examine the matter when we have that advice.

The Minister did not explain why the Government had decided simply to let papers not subject to parliamentary proceedings lie on the table. I was asking for an explanation as to why the middle alternative was not available to the committee so that both Houses could decide whether they wished to pursue a matter further.

We have made it clear that we agree that in the majority of such cases the affirmative procedure would be the most appropriate. As I have indicated, if the Select Committee came to the view that the negative resolution procedure was appropriate, we would follow that; and indeed the simple laying of an order would be appropriate where issues do not appear to be contentious or in need of that level of scrutiny. It gives us an opportunity to make each procedure fit the purpose in terms of the nature of the changes that we seek to make.

This is a much more flexible tool than we have had before, but we are trying to apply the lightest touch necessary but to allow both Houses a proper opportunity to scrutinise and debate these issues where that seems to be appropriate. We hope that the way in which we have phrased this—subordinating the exercise of the discretion of the Home Secretary to the committee's suggestion—will inspire confidence that we have got the balance right. Were the committee to come to the conclusion that the affirmative resolution should be used in each and every case having considered on the basis of the information before it that that would be appropriate, as I have indicated, my right honourable friend the Home Secretary is content to be so bound.

I wish to be clear about this. I did not realise quite what the noble Baroness was saying. If this amendment is accepted today, the Delegated Powers Committee has nothing to do with it. It is not for the Delegated Powers Committee to decide what Parliament should do; it merely advises this House. Is the noble Baroness putting this amendment to the Committee today, or is she leaving it for further consideration?

I am putting the amendment to the Committee today. I should clarify the point, as I may have innocently confused matters. The choice is between the affirmative procedure and the mere laying of an order, as the noble Lord, Lord Elton, indicated. I hope that I have made that clear.

In introducing the amendment I was attempting to explain that there are real difficulties in putting the proposal that the Home Secretary should be bound by the committee's recommendations on the face of the Bill, because of the possibility of the committee changing and the construct being different. We know that we cannot do that—the draftsmen have told us as much. But what we can do is to make a commitment to this House that these issues will go before the committee; the committee will have an opportunity to examine them; and the Home Secretary has indicated that he will be so bound.

So far as concerns the Delegated Powers Committee, we are asking this Committee to consider the amendment now, but we are doing so on the basis that the Delegated Powers Committee has not had an opportunity to have its say. What I was saying was that, if, contrary to our current expectation, a different view is alighted upon, we will consider that before we return to the matter on Report. So this may not be the end of it if there is a powerful argument that we should properly consider.

I thank the Minister for that response.

If we are to take Amendment No. 37 now, it may be helpful if I raise some of the concerns I have about Amendments Nos. 38 and 39. Otherwise, we shall have a repeat of the same debate on the next grouping. We are concerned about the parliamentary scrutiny aspect. We are grateful to the noble Baroness for her briefing letter. She has summarised it very fairly. She said:

"The basic intention of clause 9 is to speed up and simplify processes in relation to the codes so that it is easier to keep them up to date in the face of an ever-increasing rate of legislative and procedural change. However, concerns have been expressed during debate in the Commons, as well as by the Home Affairs Select Committee … that the proposed changes are too far reaching and do not allow for sufficient consultation and parliamentary scrutiny".

So far so good. But the letter went on to say:

"In the light of these objections we are now proposing to amend clause 9 so that any new codes will remain subject to the full affirmative resolution procedure in parliament as at present. In relation to proposed changes to the existing codes, our amendments would effectively allow the Home Secretary discretion to choose either the affirmative resolution procedure on a draft order or straightforward laying of a made order depending on his judgement about the level of scrutiny necessary in each particular case. However, in order to avoid allowing an inappropriate level of discretion to the Home Secretary, we would undertake in parliament during the passage of the Bill that he would agree to consult the HASC in every case and be bound by their views on which procedure to adopt in relation to each proposed change. This approach was trailed in debate at Commons Report stage and did not meet with any opposition".

That raises a number of serious concerns. We have, as yet, no definition for the phrase "new code". The noble Baroness has given us one off the top of her head this afternoon, but, cynically, one could argue that there will never be a new code; there will only be revisions of existing codes. Secondly, is it right that the Home Secretary should decide whether to use the affirmative or negative resolution? Thirdly, while it is true that the Home Affairs Select Committee will have some influence over which procedure is used, is it influence with teeth, given the political make-up of the committee?

Finally, I can see no role for this House in arriving at this decision. One of the primary roles of this House is as a revising Chamber. There is legal, judicial and general expertise in abundance in this House and it should therefore have a role in this procedure.

One final matter that I should like to raise with the Minister is how frequently the Government believe it will be necessary to review the PACE codes in future. It is one thing to consult on changes to the codes and to construct new codes. It is quite another to go through the hard, day-to-day realities of implementing the changes—new forms, new procedures and, above all, new training are highly absorptive of police time. So it would be helpful as we debate this general area if the Government could give some indication of their thinking as to the frequency with which these changes are likely to be made in future. For example, would the Government consider an amendment suggesting that codes could be revised, say, only twice in any 10-year period? There are issues that we have not teased out, and, rather than return to them in relation to Amendments Nos. 38 and 39, I thought it worthwhile to raise those points now.

I thank the noble Lord for that. A "new code" is a code covering entirely new subject matter. For example, there was recently a new code on the video-recording of interviews. One of the difficulties that I have is in giving the noble Lord any indication as to how often these changes will be necessary. Regrettably, none of us has a crystal ball and we often think that there is no need for revision. Then, because of technological and other changes, we find that a new code to meet the new arrangements becomes necessary, as the noble Lord probably knows from practice. So I cannot say how often that will be necessary, but the fact that it will be necessary we can take from the amount of times that we have had to do it so far. I anticipate therefore that it will be a rolling programme, but I cannot give any better indication than that.

Amendment No. 38 would require the retention of the affirmative resolution procedure for new and revised PACE codes. I have already mentioned that we are content to retain the affirmative resolution procedure for new codes. However, we want to keep some flexibility in relation to amendments, and that is why we intend effectively to give the Home Affairs Select Committee discretion over whether specific proposals should be subject to affirmative resolution or to a simple laying requirement.

I hear the comments of the noble Lord about the complexion of the Select Committees. However, that has not to date stopped them holding this Government to account, and every other government who have come within their view. We do not see that the Home Affairs Select Committee will do anything other than behave entirely independently. That is how they have operated in the past and we believe that they will continue to do so.

Amendment No. 39 would require the affirmative resolution procedure for analogous codes covering the work of military police forces. Currently such codes are only subject to negative resolution and, as they tend broadly to follow the main PACE codes, there is a good case for exempting them from any specific parliamentary procedure. Allowing for the government amendments which have already been discussed, we do not support either Amendments Nos. 38 or 39, but they are in the framework of the other proposals we have just outlined. I hear the comments of the noble Lord about scrutiny. That is why I made plain, in answer to the noble Baroness, Lady Carnegy, that we await the Delegated Powers Committee, because we wish to listen to what it might say. That is an innovative way of dealing with the matter.

I know that many noble Lords and others in another place have been concerned about how the Home Secretary will exercise his discretion. This is an appropriate way of giving both Houses the reassurance they seek. If we get an indication that the affirmative resolution procedure is preferred, that is the procedure we shall adopt.

If we are expanding this group to include the next, I apologise for returning to the point that I have just raised. I draw your Lordships' attention to Section 67 of PACE, which has not been amended in this respect so far as I can see. Under that Act, amendments to codes were put through exactly the same parliamentary scrutiny—that is the affirmative procedure—as the original codes. Therefore, the current proposal is a downgrading. It is not a downgrading from the top line to the second line—from affirmative to negative procedure. It is a downgrading from the top line to the bottom line, which means no parliamentary procedure.

All those who have expressed concern about children and the importance that even minor changes might have for them will agree that that should be looked at with great suspicion. We should possibly return to the issue on Report.

We are grateful to the Minister for her further courteous explanation on Amendments Nos. 38 and 39. We are not yet clear where we shall end up with Amendment No. 37, given that we have not yet had the report. So while we understand the Government's position, we shall reserve ours. So long as the Minister understands that we may wish to return to it on Report, we are prepared to let the matter rest for the moment.

I am grateful for that indication. I hope that when we have an opportunity for further reflection, noble Lords will feel more content. I hear the comments of the noble Lord, Lord Elton, about suspicion. If that view is shared by others, then I am sure that they will ask for the affirmative resolution procedure, which is the higher rather than the lowest of the three proposals, and I say. frankly, that if that is the view that is expressed, we would be content.

moved Amendment No. 37:

We have already had the debate about the powers of arrest for possession of class C drugs. I shall not repeat that debate, although I support the removal of Clause 11. I wish to make three brief points. First, the main reason that these Benches do not support the powers is that we believe they undermine the attempt to develop a credible set of drugs laws focused on reducing harm and concentrating law enforcement on the dealers in hard drugs. We believe that the many benefits of reclassification of cannabis will be undermined and diluted by allowing these police powers to remain in the Bill.

Secondly, in her response to our debate last week on her Amendment No. 6, the Minister commented that I had wrongly stated that the penalties for possession of cannabis would be increased by this Bill. I shall explain how I reached that conclusion. First, those agencies that advised the Government to reclassify cannabis as class C envisaged that a major consequence would be the removal of any custodial penalty for possession. By reclassifying it and then introducing the power of arrest and a two-year penalty the Government are, in effect, increasing the penalty from zero to two years.

In addition Schedule 24 increases the maximum penalty for offences of production, supply and possession with intent to supply a class C drug from five to 14 years. Many of those who wish to use cannabis for medicinal purposes, or even for leisure purposes, would prefer to grow their own than to have to engage with criminal dealers who also supply class A drugs in order to obtain their supplies. In doing so, they may wish to supply other users or sufferers of pain for which cannabis is a relief. That puts them in danger of a 14-year sentence rather than a five-year sentence. That is what I mean by an increase. If the Government would only allow people to grow their own and supply a small group of friends without running the risk of becoming involved with the criminal justice system, just as people, including my own grandfather, used to grow their own tobacco, the problem would be solved without any damage to society. It is a practical and reasonable solution proposed by these Benches and many drug policy experts, but clearly the Government are not inclined to listen.

Finally, on the matter of the Conservative amendment which we debated last week to remove other class C drugs from the power of arrest, we on these Benches have a great deal of sympathy with the idea and I trust that we will return to it at the Report stage.

I have considerable sympathy with what the noble Baroness said. It is not difficult to argue that the position adopted by the Government is fundamentally flawed. As I have argued on many previous occasions, cannabis should not have been reclassified from a class B to a class C drug when hardly a week goes by without new evidence emerging of the harmful effect of the drug and the way in which it can cause mental illness. The cannabis now on the streets is far more potent and potentially dangerous. It is odd and irresponsible for the Government to take a step which is bound to convey to son-le people the message that the use of cannabis is not a serious matter.

The Government's stance is entirely illogical; downgrading the drug but keeping the power of arrest. I do not believe that we should vote against the clause because it seeks to mitigate the effect of their folly in declassifying. But I am thankful for that small mercy. It does something to correct the mischievous impression they have created—that the drug is harmless—for which we should be thankful.

It would have been far better if they had singled out cannabis among class C drugs whose use would justify arrest. I pointed out previously the absurdity that the possession of, say, anabolic steroids should be arrestable. But there it is; this is making the best of a very bad job. I would therefore not vote against the clause.

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

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"

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 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".

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 he 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.

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 he 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 he 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 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 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.

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, 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.

I should like to speak to Amendment No. 47, which expresses concern about the maximum age at which children can have an appropriate adult with them when they are tested. There is a general feeling that children are becoming adults earlier than in the past, which may be part of the rationale for this amendment. Quite often, sadly, children in care get involved with the criminal justice system. The most recent statistics show that 10 per cent of children in care had a caution per annum and were three times as likely to be cautioned as other children.

The Government recognise that many of the children who will be caught by this provision are vulnerable. In the Children (Leaving Care) Act 2000, the Government recognised that these children have often had very difficult beginnings; their development can often be delayed, which is why that legislation extended the level of care to them until the age of 21. Indeed, the Government extended further provision to children in education after the age of 21 up to the age of 25. So it does not seem to follow reason for this clause to treat children as if they become adults at the age of 17. I suggest that these are quite under-developed young people, not as mature as other children their age. So I do not quite understand the reasoning behind this. I would appreciate some explanation from the Minister.

I thank all those who have contributed to this debate, particularly the noble Lord, Lord Adebowale, who moved the amendment. I recognise the experience and sensitivity which he brings to these issues. I hope, since the noble Lord, Lord Hodgson of Astley Abbots, indicated that some of these are probing amendments, that I shall he able to explain to the Committee how I see some of the issues fitting together.

Before I go into the detail, it is important first to underline what a number of noble Lords have said, particularly the noble Lord, Lord Adebowale, and the noble Baroness, Lady Walmsley; that children have different needs from adults, and they will not generally have developed a substance misuse problem or entrenched patterns of behaviour. We should bear that important point in mind when considering the amendments.

Amendment No. 43 seeks to introduce an additional safeguard to ensure that a custody officer shall not detain someone for the purposes of taking a drugs test unless he has reasonable grounds to believe that the person has a propensity to misuse drugs and that the misuse caused or contributed to an offence. We propose that the amendment be resisted because such a safeguard is already in place under the existing provisions for drug testing at Section 63B of PACE, whereby a sample may be taken only if the offence for which the person is charged is a "trigger offence"—offences where research has shown the clearest link between the offence and drug use—or if a police officer of at least inspector rank has reasonable grounds for suspecting that the misuse by that person of a specified class A drug caused or contributed to the offence for which they have been charged.

Amendment No. 45, in the names of the noble Baroness, Lady Walmsley, and the noble Lord, Lord Dholakia, seeks—as the noble Baroness explained—to raise the minimum age for drug testing under Clause 12 from 14 to 17. As has been touched on, 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 drug-misusing offenders at an early stage and to take every opportunity to encourage them to access treatment and/or other programmes of help. If a person under the age of 18 is charged with a trigger offence, it is important to identify where possible whether his or her offending is linked to the use of illegal drugs, particularly the drugs that cause the most harm, such as heroin and crack cocaine. We therefore propose that Amendment No. 45 and consequential Amendment No. 46 are resisted.

By contrast, Amendment No. 44 in the names of the noble Baroness, Lady Anelay of St Johns, and the noble Viscount, Lord Bridgeman, seeks to lower the minimum age for drug testing from 14 to 12, so the two amendments go in opposite directions. As I previously said, research indicates that drug abuse among children in particular often relates to class B drugs. The provisions of the clause provide only for testing for specified class A drugs. That would suggest that testing those aged under 14 for specified class A drugs would not currently be an effective use of resources. As the noble Lord, Lord Hodgson, highlighted, that was the response made in the other place. We therefore propose that Amendment No. 44 be resisted.

Of course I hear what the noble Lord said about the nature of the research, which was directed in part to schoolchildren. But the body of research on which we have relied supports the contention that we have outlined here and is reflected in what was said by the noble Lord, Lord Adebowale, and the noble Baroness, Lady Walmsley. We have to take a medium course in relation to what may prove most effective. We think that this is about right.

I referred to an article in yesterday's Observer. I have no way of knowing the seriousness of the research carried out by the University of Glasgow. Will the Minister undertake that her officials will see whether there is anything in that assertion and in such research? This is an important point where the child's welfare is central. If they are discovering a new trend, it would be helpful if the Home Office could find out why and how and whether the research is well based.

I would certainly be happy to look at that matter. A great deal of research has been undertaken by the Home Office. Home Office research study 192 and research study 261—Substance use by young offenders: the impact of normalisation of drugs use in the early years of the 21st century—work carried out by Richard Hammersley, Louise Marsland and Marie Reid—examined the prevalence of substance use and offending among a sample of 293 young people who were clients of the 11 youth offending teams in England and Wales. I think the noble Lord will accept that if they are already clients, they may be an indicative group on which we could rely.

Key findings from that research were that 40 per cent or more of the cohort felt that there was some relationship between their substance use and their offending; and substance use was very high. Eighty-six per cent had used cannabis; 91 per cent had used alcohol; and 85 per cent tobacco. A quarter had taken both cocaine and LSD. The use of the hardest drugs was lower; 18 per cent had taken crack cocaine and 11 per cent heroin. We have sought to craft the path we are taking on significant research, but I will look at any information about the new research to see whether it is outwith the trends that we have identified.

The clause as drafted provides for the presence, from the point at which an individual is requested to undergo a drug test, and for the test itself, of an appropriate adult for those who have not attained the age of 17. Amendments Nos. 47 and 50 in the names of the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay of St Johns, 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, that would not be consistent with current provisions in code C of PACE: the code of practice for the detention, treatment and questioning of persons by police officers.

The provisions applicable under the PACE Code of Practice C require any person who appears to be under the age of 17 to be treated as a juvenile and consequently provide that an appropriate adult is required to be contacted and asked to attend the police station to see the detained juvenile and that thereafter the appropriate adult's involvement in the process should continue. The attendance of an appropriate adult at police stations should be consistent with that of the current requirements placed on the police. The effect of increasing the age to include those under the age of 18 may lead to confusion. It would also necessitate the presence of an appropriate adult for those aged between 17 and 18 solely for purposes relating to the testing process. That may put undue pressures on family relationships, or have a disproportionate effect on resources. We therefore propose that Amendments Nos. 47 and 50 also be resisted.

Amendments Nos. 51 and 52, which were tabled by the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay of St Johns, would amend the definition of "appropriate adult" as the noble Lord has set out to include any close relation aged 21 or over, and to remove,

"any responsible person aged 18 or over who is not a police officer or a person employed by the police".

The clause as drafted is compatible with Code C of PACE. We see no reason to include that extra category of persons. In practice, in many cases, the police would in any case choose a close adult relation to act as an appropriate adult in the absence of a parent or guardian. However, unfortunately, there can be no guarantee that a close relation, of whatever age, would be suitable to act as an appropriate adult. We therefore propose that the amendments be resisted on that ground.

Amendment No. 49 would ensure that the provisions will not come into force in a given area unless appropriate treatment for young people is available there. The noble Lord, Lord Adebowale, very graphically made that point. I understand that the amendment arises from a concern that young people may be diverted into adult services where specific services for young people are not available.

The intention of the testing and drug rehabilitation requirements in the Criminal Justice Bill is to strengthen and increase the provision available to young offenders. We do not propose to push young people into adult-based services. Much work has already been done to expand the treatment facilities available for young people. All drug action teams (DATs) have completed an assessment of young people's needs in relation to substance misuse service provision. Each DAT provides an annual young people's substance misuse plan, which outlines holistic service provision for young people that is separate from adult services, and treatment services specifically designed to meet the differing needs of young people. The DATs also provide an annual return on progress, so we have a check. The Youth Justice Board is working to expand services further. It is providing funding for all 155 youth offending teams (YOTs) across England and Wales to have access to an allocated named drugs worker.

All DATs working with youth offending teams have undertaken assessments of local need and developed young people's substance misuse plans. The plans outline how services will be expanded so that, by April 2004, all young people who need treatment, including young offenders, will have access to it. We therefore propose that the amendment is not necessary. We resist the amendment but invite Members of the Committee to consider withdrawing it having heard what we have been able to say.

I shall now seek to answer some of the specific questions on matters other than those that I have just outlined, in the hope that we can further reassure Members of the Committee. The noble Lord, Lord Adebowale, asked about the status of the sample and the introduction of proceedings—to some extent, what the test results will be used for. The test results will be used to assist the court in making bail and sentencing decisions and to ensure that appropriate advice and treatment is made available to the detainee.

The whole purpose of drug testing after charge is as a screening tool. It does not of itself tell us about the extent of a person's drug use or linked criminality. Drug testing is used to identify those who misuse specified class A drugs—heroin and crack cocaine— who may need treatment and to encourage them to address their drug misuse and to access appropriate treatment. Test results may not be used as additional evidence in support of any offences of which the detainee has been charged, for other investigative purposes or as an aggravating factor when sentencing. The reason that it is such a powerful tool, as the noble Lord, Lord Adebowale, said, is that we want to deal with the issues holistically. If we are to address offending and to change behaviour, we need to know the nature of the difficulty with which we seek to deal.

The noble Lord, Lord Adebowale, also asked how the provisions would be introduced. They are to be piloted, on a limited basis at first, to enable evaluation of the effectiveness of the provisions to be undertaken and to inform possible further extension of the provisions. My right honourable friend the Secretary of State will have the option of bringing the drug testing provisions of the clause into effect by reference to specific police stations and specific police areas. That will facilitate the piloting of the provisions at a few selected sites alongside the continuing drug testing of those aged 18 and over. It will provide for effective targeting of the provisions with a view to future extension in police areas. It would be appropriate for the provisions to be piloted in areas where the pilot for arrest referral for the under 18s is to take place and where there is an existing adult testing on charge.

The noble Baroness, Lady Walmsley, asked about empirical data and the action plan orders, the estimated number of young people to be involved and the resources put aside. The noble Lord, Lord Adebowale, also raised that issue. I hope that I have been able to reassure him.

Members of the Committee have asked how we engage young people at the point of arrest to address their needs. It is intended that, by around March 2004, there will have been established in the drug testing pilot areas a model of working that assures that appropriate arrest referral services have been designed specifically to address the needs of young people. The model will be supported by local protocols between youth offender teams, the police, local drug action teams and crime reduction partnerships. That will ensure that an appropriate range of services will be available, with minimum delay, to support work undertaken with the young person in custody.

The noble Lord, Lord Hodgson, asked about drug testing for adults and how it is being rolled out across the country. It is proposed that, first, drug testing for adults should be rolled out in the 30 police basic command units with the highest levels of acquisitive crime. Testing for young people will be piloted, but in a limited number of BCUs, and will be fully evaluated. Disputed tests are sent to the Forensic Science Service for validation, which is carried out within 72 hours. The 30 police basic command units are provided with testing machines that use saliva. They shall continue to be used and provided in the roll-out.

I was also asked about the age for appropriate adults. As I think I already said, it is compatible with Code C of PACE as detailed. The noble Lord, Lord Adebowale, asked about the action plans. The action plan order will be dealt with at Clause 264. If Members of the Committee think it convenient, the Green Paper for young people could be discussed at that stage of the Bill.

I hope that I have dealt with each of the main issues raised. If I have neglected to answer specific points, I shall write to Members of the Committee. Having explained how we see the provisions fitting together, and taking into account the disparity of view evidenced in the nature of the amendment, I hope that I have been able to reassure Members of the Committee that the Government take the issues very seriously. We have based the suggestions on the empirical data that we have before us and we will integrate services to try to ensure that we respond appropriately to the needs of young people. We will enhance our opportunities to intervene in a productive and rehabilitative way to reduce the level of recidivism and, one hopes, reduce the distress caused not only to the victims of crimes perpetrated by young people under the influence of drugs but also the suffering of the drug offenders themselves.

Before the Minister sits down and the noble Lord, Lord Adebowale, replies, I had not planned to speak, but having heard about the holistic approach to this problem I find myself in disbelief at part of the response. I say that respectfully, knowing the Minister's concern for young people.

For many years, organisations, especially social services departments, have worked with the families of drug users experiencing considerable difficulties. Such organisations have a great deal of experience, as do Turning Point and the other voluntary organisations, in the field of the complex programmes needed to help these families. We know that problems are not only to do with drug taking. In many families, although not all, drug taking is to do with the problems that the family is experiencing as a whole. The parents' difficulty in dealing with their own children is among those problems.

During the 15 years I was in Childline, I talked to literally hundreds of children who described extraordinarily complex family dynamics that resulted in their taking drugs as a way out. How will social services and the voluntary organisations be supported while we try to develop innovative programmes when we know what will work in many places? We simply do not have enough people, expertise and resources on the ground to put the programmes into place. I apologise for intervening.

I welcome the intervention by the noble Baroness, Lady Howarth of Breckland. We are rightly concentrating on the provisions in this Bill and scrutinising how they will help us to better deliver the change that we seek. However, this must be seen in the context of all the other things we are doing.

We should start by examining the work that the Government have energetically pursued on Sure Start and then look at all the work that we have done together to bring all those who are involved in local delivery into the community legal service partnership, which, as I am sure the noble Baroness knows, brings together local authorities, central government agencies—through the Legal Services Commission—charities, non-governmental organisations and all the advice givers and providers in a locality. They do two things: they make a needs-based assessment of what is necessary for that area and then an audit of the providers tasked with delivering those services. Between the two the organisations have been able to fashion a care plan for the area that directs the needs of advice and service provision. Instead of having a maze of service providers or a desert with no service provision, a joining-up is happening.

Those who have participated in this Bill note the work we did together on the Courts Bill, which is still in another place. It will bring together a unified system, which is the second part of the jigsaw puzzle. We are dealing with the criminal justice part because through this structure we are creating the effective tools that we will need for creative intervention so that we remove the greater majority of people who simply go in and out of the system, serving life imprisonment sometimes, but 30 days or so at a time. If one links that with the work we are doing with young people and we look at the provisions in the Bill relating to street bail, we have a creative response to what the Government seek to do.

This is part of the holistic response. As we go through the Bill, it is important to see how all the parts of the jigsaw fit together. Each little section has its place and if we work energetically and properly the people of this country will have a system of which they can to be proud.

I intervene briefly, although I had not intended to, because I am disquieted by the idea that anyone will do to accompany the child. Of course, a variety of people could conceivably give the necessary support to the child but that idea seems to suggest that the family, or the care institution to which the child belongs, has no special responsibility. The Bill should make it clear that families matter, that the young person's drug behaviour matters, that care in the children's home matters, and that the people who run the children's home have a responsibility. Primarily, they should have to be there.

I hope that nothing that I have said detracts from what the noble Lord, Lord Northbourne, has just said. He is absolutely right. Families have a very powerful part to play. In the majority of cases, the close family member will be the appropriate adult to be called. However, the noble Lord will know from the extensive work that he has done with children's charities on these issues that regrettably, sometimes almost tragically, the family cannot provide an appropriate adult for the child.

Again, we are doing much to address the problem. I do not seek to suggest for a moment that the family will not usually provide the most appropriate adult, but we use the phrase "appropriate adult" so that we can encompass people who may not be part of the child's natural family. They may be the most appropriate adult to attend to give assistance to the child in that particular circumstance. It will enable us to have the right breadth.

Noble Lords will know that we seek to address the re-engagement of families with young people more directly with the work we are doing on parenting orders, both voluntarily and, if necessary, compulsorily, to enable adults to address the child's needs. The child or young person should be at the centre of what we are trying to do.

I thank the Minister for her response to my questions and my speech. I thought her response was very useful and detailed. I shall return to some points. I was very ably helped by the noble Baroness, Lady Howarth, who gave me an opportunity to see how the Bill fits into the wider government perspective.

However, I remain concerned about the resourcing of this part of the Bill, especially the testing orders. Although the Minister referred to the youth offending teams having named individuals for young, people, that is not the same as providing treatment. I note the Minister's reference to the provision of plans by the drug action teams with which I have wide experience. That is not the same as the provision of treatment. It is the provision of a plan.

I note that the Advisory Council on the Misuse of Drugs on which I sit has recently produced a report of which I am sure the Minister is aware, which indicates that between 250,000 and 300,000 young people of drug misusing parents are currently without recognised treatment. I do not wish to be mealy-mouthed about or to denigrate the efforts of the Government to provide an appropriate response to treatment and, indeed, to examine a holistic approach to treatment for young people. I fear, though, that on the ground the statements made in the House fail to have the desired effect. At this stage of the debate, we need to understand how precisely the Government will know that the plans have resulted in treatment provision. How will the Government know that young people will not find themselves in a police station being tested in wholly inappropriate circumstances, without the provision of appropriate treatment interventions, regardless of what the treatment test says?

Noble Lords will forgive me if I push the matter, but, although I appreciate the noble Baroness's response and her commitment, I still require further evidence that the jigsaw that was so eloquently described—the plans, the moneys committed by youth offending teams, the connections—is not missing a few pieces. We can all see what that jigsaw describes. From my experience, I can say that the descriptions of such jigsaws are often not recognised by the people whom they are meant to affect. I beg leave to withdraw the amendment.

moved Amendment No. 48:

Page 7, line 35, leave out paragraph (c)

In view of the fact that, under the Bill, children can be tested at the age of 14 and, under this subsection, at an age lower than 14, can the noble Baroness assure the Committee that the provisions are about testing with a view to treatment and have no implications for the age of criminal responsibility? It is important that we know that.

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.

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.