Section 8 Amendment: Government adopts new approach?
The launch of the Government's white paper "Respect and Responsibility - Taking a Stand Against Anti-Social Behaviour" suggests that the Home Office may be adopting a new approach to addressing the use and supply of drugs on premises, following their ill-conceived amendment to Section 8 of the Misuse of Drugs Act 1971.
There is a great deal in the White Paper that has already prompted controversy, including measures to address with begging. However, the measure of most interest - tempered with some concern - is that regarding premises where the use or supply of drugs is taking place.
This clause has been trailed in the media as being a measure to clamp down on "crack dens." This was the same rationale for the amendment to Section 8(d) of the Misuse of Drugs Act 1971 by Section 38 of the Police and Criminal Justice Act 2001.
The proposal in the White Paper is a very mixed and needs to be approached with cautious optimism. Firstly, and most importantly, it leaves its scope very wide, and is not focused either on premises where crack is the drug in question, nor, more worryingly, on situations where the concern is about supply, rather than use.
The paper says:
For sometime local authorities, the police and local communities have been frustrated by their lack of powers to close down premises - rented, owner occupied or otherwise - where Class A drugs are being sold and used. We are determined to ensure that the ruin they can cause in communities is stopped.
Rather than the current approach, to pursue criminal proceedings under the Misuse of Drugs Act against the occupiers or managers of such premises, the White Paper proposes a more streamlined approach, which would probably require a lower standard of evidence.
The new powers will give police the power, after consulting the local authority, to issue notice of impending closure, ratified by a court, which will enable the property to be closed within 48 hours and sealed for a fixed period of up to six months. Drug dealers will be dealt with through the courts and the property will be recovered by the landlord.
Effectively, such a piece of legislation would give the police and local authorities the power to evict people from a property within 48 hours, without going through normal channels such as a landlord seeking possession, provided that the police could demonstrate that the use (or supply) of Class A drugs was taking place on the premises.
While the Government is proposing that this legislation be used to address properties where the use or supply of drugs creates a nuisance to communities, the scope of it is such that it could also be used against night-clubs, private citizens, squatters, treatment or housing providers or any other body.
Without seeing more detail as to the nature and scope of the proposed legislation, it is probably premature to condemn the proposal out of hand. Ideally, it would be a well-constrained piece of legislation that would require the police and local authority to demonstrate that nuisance was being caused and that such enforcement was the only solution
Such a piece of legislation would mean that there would be no need to proceed with the commencement of Section 8(d) of the Misuse of Drugs Act 1971 as amended by section 38 of the Police and Criminal Justice act 2001.
We would like to be able to welcome this proposal in the White Paper, and are glad to see that the Home Office has listened to the very real concerns of the field on this subject.
It would be churlish to criticise the twenty-two months of uncertainty ad confusion that stemmed from the original vote-grabbing decision to amend the law.
However, even though this is still only in the form of a White Paper, there is still substantial cause for concern, and it is far too soon for jubilation. In its loosest form, the proposal would represent a massive extension of police powers, with serious implications for civil liberties. In a constrained form, and as a replacement for Section 8(d) it would be a useful and appropriate measure.
In the meantime, the amended Section 8(d) remains on the statute book, awaiting commencement. The risk is that, in a frenzy to address the perceived drug problem, this piece of legislation is also enacted.
The Home Office should, without further delay, announce that such a commencement order will not be issued. Section 8(d) should then be repealed without any more prevarication, to allow the development of desperately needed harm reduction and housing provision.
In place, a carefully drafted piece of legislation, developed in full consultation with relevant fields, should be introduced in its place. Then, perhaps we can focus on the very necessary work in hand.