Clause 1: Overview
1: Clause 1, page 1, line 3, after “about” insert “synthetic”
My Lords, the contents of Amendment 1 are reflected in Amendment 3. I am grateful to my noble friend Lord Rees, the noble Lords, Lord Norton and Lord Howarth, and my noble friend, if I may call her that, Lady Hamwee, for putting their names to one or other of those amendments. My noble friend Lord Patel also wanted to add his name to one or other of the amendments but unfortunately the lists were full. I simply want to make the point about the breadth of support for the amendments.
The purpose of the amendments is to limit the scope of a blanket ban to synthetic psychoactive substances. That raises two issues: should we seek to limit the scope of the blanket ban at all; and, if we should, is the word “synthetic” the right one? I will not repeat what I or others said in Committee, but will refer to events since—there have been a number.
On the first point, since Committee, overwhelming support has emerged for limiting the scope of the blanket ban. As the Minister knows, the Government’s Advisory Council on the Misuse of Drugs makes very clear in a letter to the Home Secretary that it cautions against a blanket ban on all psychoactive substances. The ACMD points out:
“It is almost impossible to list all possible desirable exemptions under the Bill. As drafted, the Bill may now include substances that are benign or even helpful to people including evidence-based herbal remedies that are not included on the current exemption list”.
The Minister will also be aware of the letter to the Prime Minister published in the Times from the former Archbishop of Canterbury—one cannot go a lot higher than that—among other eminent academics and ethicists. They say:
“It is not possible to legislate against all psychoactive agents without criminalising the sale of harmless, everyday products that produce changes in mood”.
I very much hope that the Home Secretary will heed the advice of those many experts.
The second point raised by the amendment is why we use the term “synthetic” to define the ban on psychoactive substances. I believe I am right in saying that the Conservative manifesto referred to a ban on legal highs. In tabling the amendment, I assure the House that we seek to respect the Government’s manifesto commitment. However, the term “legal high” is, I am told, not appropriate for legislation. There is consensus among the experts that the target of the Bill should indeed be legal highs. The ACMD uses the word “novel”, and I shall quote a short paragraph from the ACMD letter on the issue. It states:
“The ACMD would support a ‘blanket ban’ on Novel Psychoactive Substances, but cautions against a blanket ban on all psychoactive substances”.
I have very good reason to believe that the ACMD would be entirely happy with the term “synthetic psychoactive substances” in place of the word “novel” to define a legal high. For me, that is very important.
At a meeting with a top professor of neuropsychopharmacology and a QC, we discussed the relative merits of the words “novel”, “new” and “synthetic” in this context. It was agreed that neither the term “novel” nor the term “new” would be recognised in a court of law. We have many lawyers here, and I am sure they will tell me if my legal adviser is wrong or right. Mr Fortson QC was very clear on this point. He said that the best term to define legal highs and thus to honour the Conservative manifesto commitment would be “synthetic psychoactive substances”. The following sets out what we agreed as drafted by one of those experts:
“We recommend that the target of the Bill be amended to define the banned substances as synthetic psychoactive substances. This will at a stroke eliminate the requirement for many innocuous psychoactive botanicals to be exempted, eg, perfumes, incense, herbal remedies”.
I believe that there could be many hundreds, perhaps thousands more. In particular, it will cover all current and future synthetic cannabis analogues, which are proving such a huge problem in prisons and elsewhere.
The only botanicals currently used recreationally that might currently pose any concern—I emphasise “any”—are kratom and salvia. However, they are not reported to lead to deaths or public disorder and, if they became more of a concern, they could readily be controlled under the Misuse of Drugs Act 1971. The point about botanical substances is that it takes years to create a new one. The Bill is designed to control synthetic substances, a new one of which can be created in a matter of minutes. The need is to find a definition of banned substances that is proportionate, ensuring that the Government avoid banning all sorts of harmless products and cause untold problems for manufacturers, shops and consumers, while spreading the blanket ban widely enough to catch all harmful synthetic substances—that is, those substances not controlled by the Misuse of Drugs Act.
On this point, I should notify Ministers and the House that I plan to table a tidying-up amendment at Third Reading to bring all synthetic psychoactive substances currently controlled under the Misuse of Drugs Act under the control of this legislation. It makes no sense to have hundreds of synthetic psychoactive substances controlled under one Act, while any new psychoactive substance would be controlled under different legislation —that is, this Bill. I hope very much that that amendment at Third Reading will not be controversial.
I turn to the issue of harm, addressed in Amendments 2, 6 and 7. I say at the outset that the wording of these probing amendments could be improved. For me, the main point of these amendments is to focus the minds of Ministers and your Lordships on what many have described as an extraordinary feature of the Psychoactive Substances Bill: the elimination altogether of the concept of harm from the system of control of supply, importation and production of psychoactive substances. The Government’s hand-picked expert panel recommended the inclusion of the concept of harm and a safety clause whereby substances of low or no harm would be excluded from the Bill. It is a matter of concern that this key recommendation is not reflected in the Bill—though I must confess that I have a feeling I know why, and it is a perfectly reasonable reason.
The Government’s Advisory Council on the Misuse of Drugs draws attention in its letter to the Home Secretary to the view of the expert panel concerning the need to include the concept of harm in the policy framework. The ACMD points out quite rightly that the suppliers of benign or beneficial substances could be prosecuted under the Bill. Is that what the Government really intend? The letter in the Times from senior scientists, academics and ethicists also expressed concern that:
“It is not possible to legislate against all psychoactive agents without criminalising the sale of harmless, everyday products that produce changes in mood”.
This amendment seeks only to bring the boundaries of the Psychoactive Substances Bill into line with the Misuse of Drugs Act 1971 in determining a level of harm below which the supply, import and distribution of a substance would not be a criminal offence. As some in this House know, I am a critic of the Misuse of Drugs Act on many grounds, but it does recognise that only harmful drugs should be controlled.
I understand that the Government want to avoid delays in banning dangerous substances while their level of harm is assessed, and this is a matter with which many of us have considerable sympathy. The issue of setting the level of harm as a floor below which a substance would not fall within the scope of the legislation is complex. The European Union still has not implemented its excellent regulation on psychoactive substances, purely because it is still working on defining what that threshold of harm should be. All are agreed that this is an important matter and a solution needs to be found, but it will certainly not be straightforward to find it. Therefore, I seek an assurance from the Minister that the Government will work with the ACMD and others to find that solution.
To end my remarks, I return to the first matter addressed in Amendments 1 and 3: the use of “synthetic” to define psychoactive substances controlled under this legislation. Can the Minister assure the House that the Government plan to work with the ACMD to find the right solution to the definition issue? Does he agree that, as it stands, the very wide definition in the Psychoactive Substances Bill is not satisfactory? Will the Government either work with the ACMD to agree the word “synthetic” or, if there is a better term to define legal highs, use that? I beg to move.
My Lords, I have added my name to the noble Baroness’s Amendment 3, and my noble friend Lord Paddick and I have Amendments 4, 5, 8 and 9 in this group.
On the term “novel”, which is the subject of one of our amendments, the Secretary of State in her correspondence with the Advisory Council on the Misuse of Drugs has explained how difficult a term this would be in legislation. I entirely accept that point, but as it was raised by the ACMD, which said that the omission of the term widened the scope of the Bill beyond that originally intended and cautioned against a blanket ban on psychoactive substances—because, for reasons we have heard, it would be almost impossible to list all desirable exemptions—I thought it was appropriate to raise it. As the Secretary of State points out, one might ask: novel since when? The use of the term “novel” as used by the ACMD is in itself slightly novel, but it is a term that is widely used. We have talked throughout this Bill—the term has come into common usage—of “new” psychoactive substances. If “novel” means new, and we have been using the term “new” again today, I think that it deserves some explanation from the Minister.
Importantly, I support the noble Baroness with regard to the term “synthetic”, because surely that is what this Bill is really all about. The Minister spoke in Committee about producers of new psychoactive substances constantly looking for loopholes, and I of course understand that, but the term is more precise than “novel”. I hope the Government can consider some way of addressing concern about the breadth of the ban. To me, the term “synthetic” imports a notion of artificiality, of materials being brought together, a combination. That is probably what it means; I suspect one of those comes from the Greek and one from the Latin. It suggests imitating a natural product.
The Minister referred in defence of the Bill to natural products being available in head shops which are far from safe. He mentioned fly agaric mushrooms. I had a quick look at the Kew botanic gardens website this morning, which calls them,
“the most iconic of … toadstools … commonly depicted in children’s books and on Christmas cards”,
so let us be very careful where we tread. It refers to their hallucinogenic properties, which I do not doubt, but then states that they have been well-known for centuries. Much the same can be said about salvia divinorum. The second part of that name suggests that there are sacred aspects to that substance, as is the case. Again, it has been in use for centuries. So I question whether it is appropriate to ban such substances now through this mechanism. We have a lot of drugs legislation, as the noble Baroness said, and one has to accept that this is a fairly hastily prepared Bill. It is not, I would have thought, directed at natural, albeit dangerous, substances known for centuries.
Is there something about how these plants are treated that distinguishes them from other plant-based drugs which are covered by the Misuse of Drugs Act? In the case of a substance that is integral to a religion, like the variety of sage to which I have referred, is there a mechanism for permitting its use in a religious context?
The question of harm is fundamental to everything we are talking about. As has been said, this issue has been raised by the ACMD and we on these Benches—and, I am sure, the whole House—are concerned about ensuring that harm is the focus of the legislation. My noble friend and I are concerned about the whole premise of the Bill—we have debated this before—because we do not believe that a complete ban can work. Human beings do not take well to prohibitions and if new psychoactive substances become more difficult to get hold of, they will be driven underground or users will turn to more harmful substances. That is why we believe that harm should be the focus of the Bill.
I turn now, as I did at the previous stage, to the Misuse of Drugs Act. This established the Advisory Council on the Misuse of Drugs and gave it an advisory role where,
“the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem”,
“preventing the misuse of such drugs or dealing with social problems connected with their misuse”.
I thought it would be appropriate to import those words into the Bill and our amendments deal with that. We do not seek to put them into Clause 1, as the noble Baroness has done, because that is an overview. It points to the definition clause but we have included the words in our amendment to Clause 2, the definition clause, providing a requirement on Ministers to refer matters to the ACMD and allowing it to oppose exemptions on this basis. The Secretary of State’s letter to the ACMD refers to a discretion about the definition and scope of the exemptions. We want to make it clear that the basis should be harm, not an unqualified, undefined term but using the terms in established legislation.
I have just seen, as other noble Lords will have done, the ACMD’s letter of 13 July. I do not criticise it but I am sure that I am not the only noble Lord who thinks that we could have done a better job on this Bill if there had been consultation with the ACMD before it was published. The advisory council has moved very quickly—it cannot have been easy for it—but it refers in its letter to having had only a narrow window of opportunity to make recommendations for amendments and to begin to formulate advice. This House does its best work when we have a good basis to work from and are not trying to second-guess the experts in the field.
My Lords, it is remarkable that the international community, having been increasingly aware of and alarmed by the dangers of new psychoactive substances, has none the less not so far succeeded in establishing a definition that is watertight in legal terms and available to the Government to use in their legislation as they seek to fulfil their manifesto pledge. The expert panel, on page 38 of its report, advised that the definitions in use in legislation would need to be robust. This group of amendments seeks to specify more closely the generic problem that we are seeking to address through this legislation.
In seeking to tighten and, in a sense, limit the scope of the Bill in this way, let me not give the impression—I know that other noble Lords who have supported these amendments would not want the impression to be given—that we in any way minimise the dangers from new psychoactive substances. This is a serious and challenging social problem.
Some of these new psychoactive substances have shown themselves to be capable of inducing paranoia, psychosis, seizure and, indeed, death. We have very limited testing facilities. The risks of taking an unidentified powder on its own, let alone in combination with other such drugs or alcohol, are very great. Some new psychoactive substances are more dangerous than the controlled substances that they seek to mimic. There is a very serious problem and we are absolutely at one with the Government in their determination to find effective ways to address this problem.
However, it seems to me that the term “psychoactive substance”, as deployed in the Bill, qualified only by the exemptions set out in Schedule 1, is too loose and too imprecise. Noble Lords who are lawyers and experienced judges will know far better than me what difficulties such looseness of definition might present to the courts. The noble Lord, Lord Paddick, with his experience as a senior police officer, will also appreciate the difficulty of looseness of definition when it comes to police officers performing the duties laid down for them in the Bill. It is very important that we try to light upon a form of words that expresses more precisely the nature of the drugs and the danger with which we are seeking to deal.
Therefore, I was encouraged by what the Home Secretary said in her letter of 11 July. Perhaps I may say how much, I am sure, all noble Lords who participate in these debates appreciate the rapidity and the comprehensiveness with which the Home Secretary has responded to the letter dated 2 July that she received from Professor Les Iversen, the chairman of the Advisory Council on the Misuse of Drugs. Her letter is very helpful in a great many respects. She says that she welcomes the offer of the ACMD to discuss this issue with officials and that:
“I propose that such discussions might usefully explore options for strengthening the definition of a psychoactive substance”.
I take it that we are all agreed that further work is needed to get the wording of this legislation right so that it is appropriately targeted.
Legislation in other countries, from which the Government have borrowed—the Irish, Polish and Romanian legislation—all omit the language of harm, which has been introduced, or I might say would be reintroduced, from the language of the Misuse of Drugs Act 1971 in Amendment 2 and, I think, Amendments 6 and 7. The Irish and Polish laws state that the psychoactive effect must be “significant” for the offences to come into play, which is a kind of qualification. The Romanian legislation goes further and is much more akin to the New Zealand legislation, which the Government have rejected. Under the Romanian legislation, a supplier or producer is required to submit a psychoactive risk assessment and to describe the nature of the substance in question.
There are difficulties with the concept of harm. The Misuse of Drugs Act 1971—chapter 38—established the remit of the advisory council. In wording that is used in some of these amendments, the advisory council is enjoined to take into account questions of harm. But it seems to me that there cannot be a simple, objective view taken of harm. The harm that a drug may cause depends on the context. It depends on the dosage, on the purity of the particular batch and on the person who consumes it, who may be an experienced, recreational drug user or perhaps a vulnerable and ignorant teenager. It depends on a whole range of social factors that probably would need to be taken into account. Even the original legislation probably creates a task that is singularly difficult for the ACMD to fulfil. No doubt that is one of the considerations that will be dwelt upon in the conversations between the ACMD and Home Office officials.
The expert committee also warned that closer thought needed to be given to possible unintended consequences of the loose and generalised term “psychoactive substances” used in the Bill. We do not want to criminalise priests. The more vigorously the priest swings the censer, the more incense is let loose into the body of the church. As I understand it, these days priests can no longer enjoy the benefit of clergy, so we have to be very careful that we do not unintentionally criminalise either priests or florists because flowers have psychoactive effects. I remain concerned about Lady Bates and the Minister, as, when he presents her with a bouquet of flowers, both he and the florist may be in breach of the law. He shakes his head but he has not yet told us how the language of the Bill protects him in such a situation. Of course, the enforcement authorities are advised to take a proportionate response so they may let him off lightly, but I would not be happy to rely upon that alone.
The Home Office’s own annual review declares that the Government’s policy in the European Union is to,
“work to ensure proportionate and effective EU level action on NPS”—
that is, new psychoactive substances. But then the Government rejected the EU’s proposed legislation and produced this legislation which, as drafted, is neither proportionate nor, it seems to me, likely to be effective because it imposes too much of a blanket ban, and we know that life does not work like that. If you simply say, “Here’s a social evil, we’re going to ban it. We want it to go away”, however much the police and other authorities attempt to prioritise enforcement of the ban amid all their other very challenging and difficult responsibilities, it seems to me highly unlikely that people will give up their drug-taking practices.
Given those considerations and given the warning of the ACMD that,
“The psychoactivity of a substance cannot be unequivocally proven”,
we have to tread very carefully. I believe that the term “synthetic” proposed in Amendments 1 and 3 is appropriate because the drugs that we are trying to deal with—the so-called new psychoactive substances—are now being routinely and rapidly synthesised, principally in China but also in India. I understand that the Minister, on one of his admirable sponsored walks, is about to do a walking tour of China. It may well be that in the course of his perambulations he will look in on one or two of these laboratories. Following his earlier fact-finding mission incognito to Glastonbury, he ought to pursue his investigations that little bit further. Anyway, we must deal with that. These are new drugs, synthesised in rogue laboratories, principally in China. If we use the term “synthetic”, we catch what we need to catch.
I understand that naturally derived substances have over the years since 1971 been pretty comprehensively reviewed by the advisory council. One or two may escape the more limited, tighter definition of “synthetic psychoactive substances”, and nitrous oxide, which the Government are anxious to control, may be one of them. However, if they are perturbed about that, I think that they already have means to hand under the 1971 legislation to deal with the problem of nitrous oxide. Salvia was mentioned, as were one or two other botanical substances. They can all be dealt with under the powers that already exist. I am very pleased that the Home Secretary, having regrettably sidelined the ACMD in the earlier phase of preparation of this legislation, is now keen to consult it, allow it to advise her officials and to bring it on board so that its expertise can be brought to bear.
I hope that, by the time this Bill reaches the other place, the Minister and his colleagues will find language which delimits and denotes much more precisely and exactly the drugs which are the evil that we are trying to protect our young people’s health and lives from.
My Lords, the noble Baroness, Lady Meacher, is right to avoid the use of the word “novel” or “new”. The problem is that what may be new or novel today may not be so next year. What we are seeking to do in this legislation is to create a series of criminal offences, and the prosecutor will need to be very precise in leading evidence to satisfy the requirements of the definition. A solution along the lines suggested by the noble Baroness, supported by the noble Lord, Lord Howarth, avoids that word, which lacks the precision that is needed. Of course, the word new or novel is widely used in common parlance, but that is not really the test that should be applied for legislation such as this. I am therefore sure that the noble Baroness was right to find some other form of wording, and the one she has suggested avoids that difficulty.
My Lords, I want to make two quick points as a codicil to this important group of amendments. I strongly support the attempt of the noble Baroness, Lady Meacher, to insert the word “synthetic”. As a former pharmacy graduate—non-practising—who studied such things, to me, the word “synthetic” makes perfect sense in this context, and it would make the Bill a lot clearer. I also support the amendments in this group that would reintroduce the concept of harm, which the 1971 legislation introduced in a way that has stood the test of time. Indeed, I am behind the thrust of all these amendments.
My noble friend Lady Hamwee referred to the Committee stage of this Bill, which the ministerial team dealt with in an exemplary way; it listened very carefully and did the best it could. But any Member of this House who has had the advantage, as some of us have, of reading the recent letter from Professor Les Iversen and the Home Secretary’s response of a few days later, will be left, as I certainly am, with a real concern about the difference in tone between the two approaches taken. I and many others expressed the concern in Committee that the Advisory Council on the Misuse of Drugs was being written out of the script. I use that harsh language deliberately, although I am not blaming the Minister.
On the second page of his letter, Professor Iversen says:
“The ACMD … wishes to present its concerns that the Bill, as drafted, may not achieve its aims”,
which is a pretty fundamental thing to say,
“and may produce serious unintended consequences”.
The heading of the subsequent paragraph states:
“The omission of the word ‘novel’ has widened the scope of the Bill”,
which all of us on my side of the argument were arguing against with the Government Front Bench. The heading of the next paragraph states:
“The psychoactivity of a substance cannot be unequivocally proven”.
Again, with my academic background, I support that view, which is the one taken in Committee. The heading of the next paragraph states:
“The Bill uncouples the concept of harm from control of supply, importation and production”,
which is the point that the noble Baroness, Lady Meacher, and others were making.
What relationship do the Government really have with the ACMD, given that they seem to be so far apart? We had a manifesto commitment which talked in yellow journalese about,
“a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called ‘legal highs’”.
That is the kind of language we would see in manifestos, and a few short weeks or months afterwards we get this Bill, which seems a long way away from Professor Iversen and his colleagues. That is a concern to me. I do not blame the Minister, by the way, but that is a concern that this House is right to reflect on Report. Admittedly, there are proceedings in the House of Commons and I am sure that the Minister’s approach in Committee—the way that he was prepared to pick up points and reflect on them—will continue. I have been in this business a long while and I can see a long distance between these two bits of correspondence. The Minister has some work to do to persuade this House on Report that that gap is not dangerous and that people may not get hurt unless this is sorted out before the final passage and Royal Assent of this Bill.
My Lords, I was very glad to hear the confirmation by my noble and learned friend Lord Hope of the possibility of the use of the word “synthetic”. I must admit that, having been slightly unhappy at the thought of the way this Bill might go, that thought was exacerbated by reading the annual report of the Chief Inspector of Prisons yesterday, in which he mentioned specifically the harm that was being done in our prisons by legal highs. That added speed to the need to do something about it. I was very glad that my noble friend Lady Meacher mentioned prisons because in addition to the police, the prison authorities need weapons in their hands so that they can take action against the people who are causing the harm with these substances.
My Lords, I have a very small question to ask relating to the definition of harm, which is qualified by the word “social”. I wonder what in fact that constitutes. If a drug results merely in the inability of the user to sleep satisfactorily or if it interferes with his learning but does not, as a general effect, cause him to disrupt those about him, is it still a social harm? It seems to me that self-harm is a dangerous product of these drugs and it would be a great pity if individuals taking them were not protected when we have the opportunity to do so by a definition which included that which harms the individual as well as society. This is a lawyer’s question. I hope that the noble and learned Lord, Lord Hope, might be able to lay my fears to rest; otherwise, either the Minister or the mover will doubtless do so.
My Lords, I am not sure if I am allowed to speak again on Report but I am challenged here. The words in the amendment are “social problem”, not social harm. I think that may be an answer to the noble Lord. They are different phrases, with different meanings.
My Lords, I have no particular difficulty with the first amendment concerning “synthetic”, and I think I indicated that to the Minister some time ago before it was actually formulated as an amendment.
However, I have considerable difficulty with the second amendment and how it is going to work. If somebody produces this material and that production is to be a crime, in the general view I have about the law he must at least have the means of finding out whether what he is doing is criminal. The difficulty that has been expressed before in relation to these psychoactive substances is that they are produced so quickly and changed so quickly and the harm is done so quickly that the Misuse of Drugs Act can hardly catch up with them. That is a very serious problem.
I agree very much with what the inspector has said in his report about the difficulty of prisons. Indeed, I have been told before that there are considerable difficulties with the input into prisons, by whatever means, of these legal highs. They certainly seem to have the effect of producing considerable violence, which is undoubtedly a social problem if ever there was one. How is this to work? The Advisory Council on the Misuse of Drugs will have to give advice. Will that not create exactly the same difficulty as the attempt to use the Misuse of Drugs Act to control these legal highs has proved to have in the past? That is the need and reason for the production of the Bill.
The noble Lord, Lord Howarth of Newport, said that the definition is very wide. My view is that, on the whole, the legal effect of a definition is rather more related to its precision than to its particular width. In some cases, the definition of what is made criminal is very wide indeed—as undoubtedly it should be to encompass many methods of carrying out the offence. I cannot see how the mechanism suggested here is going to be capable of working, given the problems that exist. I have been trying to think of how this could be modified but so far without too much success, except that something depends on the intention of the laboratories producing these substances. What are they doing it for? Are they intending to help people to sleep well or behave well and so on? I think they are probably not.
The purpose for which these substances, which may be synthetic, are produced seems highly relevant but it is quite difficult to get at defining an offence by reference to that. However, if the purpose for which the substance is produced is something that the state considers should be criminalised, that is a possible way to define an offence. That would at least have the effect of it being decided in relation to the time of production. It might not be possible to prove it immediately but the essence of it would be something that has happened before that production was put into the hands—or the body, one way or another—of the person receiving it, which is part of the crime that the Bill seeks to establish.
The intentions in China are possibly as human as intentions here. If people produce a substance in China, it is bound to be possible to say why they are doing it. I agree that the more remote they are, the more difficult it is to bring to bear our criminal system but the system has to work when the drug is brought into operation in this country. The people who bring it in will have a purpose. They will no doubt have some kind of relationship with those who produce it, in China or elsewhere. I do not think that they are normally bringing it in as a charity but for some commercial purpose.
As far as I can see, the type of approach that the noble Baroness, Lady Meacher, has suggested may be capable of being rephrased to bear on the purpose for which the drug is produced. If that were possible, it would be a much more feasible and workable solution than is contained in Amendment 2 at the moment. I am very sceptical about anything I could say about a definition of this kind that is supported by no less a person than the noble Lord, Lord Rees of Ludlow. However, this has legal implications as well, which is why I have been encouraged to say what I have thought about it up to now.
My Lords, the noble and learned Lord, Lord Mackay of Clashfern, hit on the essence of the Bill at the beginning of his contribution. It takes a different approach from the Misuse of Drugs Act 1971, because of the speed with which these new products are coming into our society. We all at least agree that their impact is one of tremendous and peculiar harm. The Labour Front Bench supports the Bill and the essential concept behind it. We had a manifesto commitment to address legal highs and we approve of the device used, which is a wide definition with exceptions. That is the difference between the two sides in this debate. We therefore, as a generality, oppose the narrowing of definitions, as that would go to the essence of how the Bill is designed to work.
Amendment 1 would narrow the definition to “synthetic”, which would potentially exclude a large group of naturally occurring substances. Amendments 2, 5, 6, 8 and 9 all seem to be about the same concept, with the same words used over and over again, as in Amendment 2, to limit the definition to,
“any drug which is, or appears to the Advisory Council on the Misuse of Drugs to be, misused and of which the misuse is having, or appears to the Advisory Council on the Misuse of Drugs”—
here we get to the key words—
“to be capable of having, harmful effects sufficient to constitute a social problem”.
Those ideas would drive right through the concept of the Bill and reverse its essence, meaning the psychoactive substance would first have to be proved harmful. The Bill is poised the other way round: if the substance is psychoactive, it is presumed to cause harm and is illegal under the Bill unless exempted.
The wording and framing of those amendments seems also to leave out the concept of self-harm, which the Bill seeks to address. It certainly takes out the more complex issues of harm such as dosage, volume, et cetera. We therefore cannot support those amendments.
I am very grateful to my noble friend for giving way. How does he deal with the objection raised by Professor Iversen and his colleagues on the ACMD in their letter of 2 July? The professor warns that:
“The psychoactivity of a substance cannot be unequivocally proven”.
He goes on to say how difficult it would be to demonstrate in court that a particular substance was indeed psychoactive. He also says:
“It is almost impossible to list all possible desirable exemptions under the Bill”.
Are those two objections not very serious ones to the legislation? What is my noble friend’s response to Professor Iversen?
My Lords, I thank my noble friend for that intervention and hope to respond to it, at least in part, as I progress through the points I am making.
Amendment 7 would delete the definition in the Bill and would hence create the opposite effect from the one that we wish to pursue. For those reasons, in general we oppose these amendments. But—and it is an important but—we have become increasingly concerned with the operation of the Bill. What will happen? The concern that was building up and which came out on the first day in Committee was about how it will work operationally. It is of particular concern because the Bill refers specifically to the “balance of probabilities” and then, in other places, ends up with criminal sanctions. That is starting to feel very wrong. We challenged the Minister on this and he promised to write to me to provide reassurances about the operational aspects and the whole issue of proving whether something was psychoactive. I intend to refer to the letter that I got from the Minister. I thank him for the letter and I thank him and the team for making sure that it was copied to anybody who has spoken in the event—so anybody who has spoken in the debate so far should have a copy of the letter.
The letter touches on the whole problem of what an enforcing officer does, how he handles things and how he comes to a conclusion, and so on—and it is not that helpful. But perhaps that is because being a policeman, customs officer or whatever is a difficult task; it is about decisions of degree. We have a concern about that, but I think that the Government in the letter commit to doing the best job that they can and to use the best advice, and I do not think that we can take that any further. The really key issue is about when someone will go to prison or be fined. What will be the process and the burden?
On the first page of the letter, the Government assure us:
“We are … committed to ensuring that there are mechanisms in place to determine the psychoactivity of seized substances in a timely and effective way”.
That seems to be for the efficient operation of the Bill and to cover the concerns that the advisory committee has about the provability of psychoactivity—it is a commitment from the Government to do something about it. On the next page of the letter, they set out the mechanisms that are being set up and offer three views of how psychoactivity might be proved,
“using existing data … identifying a substance’s chemical structure … and … in vitro neurochemical profiling”.
They seem persuadable. But I now go on to quote the letter directly, because I would like a response from the Minister. In the middle of that page, it says:
“Ordinarily, it can take between 9-12 months for a drug to be brought under the control of the Misuse of Drugs Act 1971, following the advisory and parliamentary process. Until a drug is listed in Schedule 2 to the 1971 Act, no offence can be committed under the Act in relation to that substance”.
Since the essence of the letter is that analogous procedures are going to be used for the proof that a substance is psychoactive, how long do the Government envisage the new processes will take, particularly the parliamentary processes?
The next paragraph of the letter is crucial in securing that appropriate level of proof before somebody is either fined or committed to prison for an offence under the legislation. It says:
“By contrast, under the Bill, substances are not required to be tested, assessed and/or then listed in order for enforcement officers to make use of the enforcement powers conferred by the Bill. As described above, the Bill gives enforcement officers the tools to be able to search for and seize any substance they reasonably believe to be psychoactive. The same ‘reasonably believes’ test applies to the issue of a prohibition notice or premises notice and applications for prohibition orders and premises orders are determined on the basis of the balance of probabilities”.
However—that is my however; it is not in the letter—the key sentence is the one that follows, which says:
“In the case of a prosecution for an offence under clauses 4 to 8 or (depending on the nature of the failure to comply with an order) 25 of the Bill, it will be for the prosecuting authorities to establish beyond reasonable doubt the psychoactivity of the substance in the order to secure a conviction”.
In other words, as I read it, the prosecuting authorities must meet the criminal test of evidence before an individual can go to prison or be fined for an offence under the Bill. I am concerned by the words in parenthesis,
“depending on the nature of the failure to comply with an order”,
and I would like the Minister to assure me that it means the general point that I have made. The letter goes on to say that various mechanisms will be set up, and I hope it implies that there are going to be adequate resources.
Given an affirmation by the Minister that I have accurately quoted his letter, some response on the time issue and an assurance that nobody will be sent to prison or fined unless the psychoactivity of the substance has been proved by the criminal test of beyond reasonable doubt, we are content with the definition in the Bill and will not be supporting any of the amendments.
My Lords, I thank the noble Baroness, Lady Meacher, for giving us the opportunity for this debate on Report. We have had a busy period between Committee finishing and Report commencing. It has been a very productive time. We have had many meetings, which were promised in Committee, about different aspects. We have had a rapid flow—a flood, even—of correspondence, which has been two-way, as it has been with the ACMD as well. This is, in a sense, how the process of legislation should work: Committee is a meaningful process, the Government reflect on it and then come to Report having considered further.
The noble Baroness, Lady Meacher, speaks with great authority and insight on these issues. Although there are a number of points which I need to address in my speech, I want to make sure that, as in an examination essay, when you try to answer the question that is put early on, just in case the examiner is not quite following the depth of your analysis, I put it on record that we are not ruling out the term “synthetic”. We are not saying that it is not adequate; it is within the complex of debate. The ACMD did not offer an opinion on “synthetic”. It suggested “novel” and we responded with “new”. I will come back to this, but I do not want to let the moment go by without saying that this is a genuine process by which we want to consider all the options and weigh the very signification contributions from Members of this House. We have benefited from the legal expertise that the noble and learned Lord, Lord Hope, and my noble and learned friend Lord Mackay offered us on how this may be viewed. This is a significant matter which we will want to reflect upon very carefully as we go through.
I was also grateful to the noble Lord, Lord Ramsbotham, for his intervention; he mentioned Her Majesty’s Inspectorate of Prisons, which has talked about the seriousness of this problem in the prison estate. It has been a growing problem. That observation came after Committee.
We also had the intervention from the Prisons and Probation Ombudsman, who reflected on the number of deaths in custody that had been due to this. He had examined 19 fatalities in prison between April 2012 and September 2014 where the inmate was known or strongly suspected to have been taking drugs, and this was a relevant factor in their death. We will be coming to responses to that in later groups of amendments, but I appreciate that point being made.
If the House will bear with me, I shall put some remarks on the record while I seek to address the points made particularly by the noble Lord, Lord Tunnicliffe, and mentioned by other noble Lords during the debate. The Government take seriously the views of the advisory council. The noble Lord, Lord Kirkwood, asked if there was a difference here. There should be a sort of tension between anyone who has a statutory duty to advise and, whoever are the Government of the day, I am sure that that tension is there.
We recognise that there were members of the ACMD who were on the expert panel. The ACMD advised particularly on the science while the expert panel, which was set up and asked to undertake the particular report by Norman Baker under the previous coalition Government—I am not going down that route—included people from a wider group, including law enforcement officers and various drug treatment organisations. They were the ones who came forward with a recommendation for a ban. Again, though, I want to make it clear that any reading of the report would show that it was hardly obvious what needed to happen; it was not a no-brainer. The expert panel wrestled with the question; they saw a number of disadvantages and advantages, but on balance they came down on the side of a ban.
As the House is all too aware, the Bill is designed to capture substances supplied for human consumption that have psychoactive effects. Its aim is to cover substances that are not currently controlled under the Misuse of Drugs Act 1971 but, as with any drug when misused, carry risks. The definition has been deliberately drawn widely, as the noble Lord, Lord Tunnicliffe, said, and is a necessary move away from the approach taken in the Misuse of Drugs Act. Potentially, this is the equivalent of the “Whac-A-Mole” problem—I am desperately in search of a more elegant legal term—where a substance is banned under a temporary banning order, but then up it pops again a few days later with a slightly changed molecule to get around the legislation. It is not accidental that we have drawn this widely; it was deliberately done to recognise that there is a particular problem here.
As my noble and learned friend Lord Mackay pointed out, this is a dynamic, fast-moving and fast-changing market. The market in psychoactive substances has dramatically changed over the last few years and shows no signs of abating. In fact it seems to be getting worse: we had an excellent session with Public Health England, to which all interested Peers were invited. One of the points that that body made was that a lot of clinics say that the ease of access to these drugs is fuelling a particular problem. The noble Lord, Lord Kirkwood, and others, such as the right reverend Prelate the Bishop of Portsmouth, also had the opportunity to meet a children’s organisation. We will come back to that later, but that organisation talked about how these so-called legal highs are used as part of the grooming process for vulnerable young people. These are very serious problems.
Amendments 1, 3 and 4 suggest ways in which the definition might be adjusted to restrict the scope of the Bill and its offences to those substances that are synthetic or are “novel”. We have previously debated the merits or otherwise of including a reference to “synthetic” in the definition of a psychoactive substance. As I indicated in Committee, there are a number of naturally occurring substances, known in years past as “herbal highs”, that are of concern and are far from safe. The noble Baronesses, Lady Meacher and Lady Hamwee, referred to those.
Salvia divinorum, or salvia, is a Mexican plant, with leaves that contain psychoactive chemicals that produce hallucinations when chewed or when dried and smoked. There is concern that salvia can trigger psychotic episodes, particularly in young people and people with a history of mental health problems. Other plant-based psychoactive substances include Kratom, which is sold as a psychoactive ingredient in “branded” products such as Palm Wine and Dutch Haze. Kratom acts as a sedative at higher doses and carries the risk of physical dependency. A further example is fly agaric mushrooms, which are used for their hallucinogenic LSD-type properties. Our view is that while these may not warrant control under the 1971 Act, the Bill provides a legal framework, subordinate to the 1971 Act, which should be deployed to restrict their availability. To do otherwise would arguably be arbitrary and would leave a loophole for those looking to maintain their profits from this trade.
The noble Lord, Lord Paddick, has taken up the advisory council’s recommendation that we should amend the definition to cover only “novel” psychoactive substances. I have already referred to our policy rationale in capturing some long-standing intoxicating substances in the context of natural products. This reasoning applies equally to products synthetic in nature such as nitrous oxide, which the noble Lord, Lord Howarth, mentioned, and alkyl nitrites, or “poppers”, which were tolerated for many years when control under the 1971 Act was the only option.
The other side of the coin is one of legal clarity. As the Home Secretary set out in her response to the advisory council, the inclusion of the term “novel” to describe psychoactive substances in legislation was considered unworkable. To make an amendment of this kind to the Bill would suggest that Parliament intended to exclude from its ambit psychoactive substances in existence before the enactment of the Bill. The psychoactive substances market that exists just prior to the Bill’s enactment would not be covered. That is clearly not our intention or an acceptable outcome, as the point we are getting at is that every time we redraw the rules too tightly, these very devious and sophisticated drug operations simply change their terms to fit the new criteria.
Fixing a point in time to the definition was also considered unworkable. Do we take the date when a substance was first discovered, manufactured or identified in the recreational market? Or, perhaps, we should identify the date on which a substance became widely used—a term which itself would be challenging to define. Of course, we are looking for a general approach to all these substances, not a substance-by-substance one. It is our view that this market is so fluid that to specify a specific cut-off date, either for the generality of psychoactive substances or for particular substances would be impractical, open to misunderstanding and abuse. The advisory council has helpfully clarified that the term “novel” should not be taken as introducing the concept of timing, which is just as well given the difficulties I have highlighted.
The UK is not unique in framing its legislation, where the predominant target is psychoactive substances generally, in the way set out in the Bill. Neither Ireland, New Zealand nor Australia—at both federal and state level—have used the terms “new” or “novel” and refer to psychoactive substances generally.
Amendments 2 and 5 to 8 seek to define a psychoactive substance—
My Lords, I am, albeit temporarily, on the same side as the Minister, and I am now confused. I think he said—some minutes ago, I grant you—that the Government had not ruled out the use of the word “synthetic”, but then he went on to rule it out. Can he be clear: are the Government thinking about adopting the word “synthetic”, and if so, in what timescale? If I misheard him, he now has the opportunity to be absolutely clear.
I ask the noble Lord please not to go to the other side just yet but to stay with me a little longer. I was referring to the amendment of the noble Lord, Lord Paddick, and was talking about the use of the term “novel” in this context. That was the ACMD point, as opposed to the point about the use of “synthetic”, which I shall come to later and have already touched upon. Now the noble Lord, Lord Paddick, looks puzzled; perhaps I have lost him in gaining the noble Lord, Lord Tunnicliffe. Perhaps I may continue with what I was saying and then I will come to the specific point raised by the noble Lord.
I accept that while our target in this Bill is substances that are harmful when misused, or which have the potential to cause harm, the Bill seeks to define the effect of these substances rather than to make any explicit reference to their harms. Of course, the advisory council has a considerable and impressive track record in making these harm assessments. It is a scientific body of experts which for the last 40 years has been advising successive Governments. These amendments would require assessments of individual substances, or even groups of substances, for the purpose of bringing them within the scope of the Bill and its offences.
Our fundamental issue with that is that it would perpetuate the inadequacies and frustrations of our current approach under the 1971 Act. As the expert panel found, a substance-by-substance approach would not meet our core objective to get fully ahead of the market and scientific developments. It would allow the suppliers to adapt their range of substances on sale in response to new controls. That is exactly what has happened in the past and is behind the purpose of this legislation. Indeed, by driving innovation in the market, the current approach adds to the harms caused by these substances, as each new generation of psychoactive substances is more potent than the last. We need a change in gear—that is what the blanket ban will deliver.
Finally, Amendment 9 adopts a different approach again to how we define a psychoactive substance for the purposes of the Bill. Clause 3 enables the Home Secretary to make regulations, subject to the affirmative procedure, which add to or vary the list of exempted substances in Schedule 1. As we have previously debated, the regulation-making power in Clause 3 has been designed to future-proof the list of exempted substances and ensure that, for example, medicinal products are not inadvertently caught by the blanket ban provided for in the Bill. Schedule 1 contains broad categories of established substances and products that we want to exclude from this regime, mostly because they are already regulated by other legislation.
I turn to the specific point put to me by the noble Lord, Lord Tunnicliffe. He pointed to the advisory council’s concerns about proving psychoactivity as a point of law. I wrote to the noble Lord on this very issue, and he quoted my letter, in which I said:
“The Government is committed to supporting the law enforcement community in the exercise of their powers under the Bill. We will work with the national policing lead and College of Policing on the development of policing guidance”.
It is important to recognise that different powers in the Bill apply to different standards of proof. For example, the powers of seizure in Clause 42 operate to a “reasonable belief” test. An officer’s reasonable belief that a substance is psychoactive could be based on a number of factors, including the substance’s packaging, its markings or even whether the individual from whom it was seized appeared intoxicated and the officer could infer that the substance found might be responsible. The same “reasonable belief” test applies to the issuing of a prohibition notice or a premises notice. Applications for prohibition orders and premises orders are determined on the basis of the balance of probabilities.
In the case of a prosecution for an offence under Clauses 4 to 8—I think that this comes to the point that the noble Lord invited us to look at—we have the criminal test of “beyond reasonable doubt”. Clause 25, which is referred to in my letter, deals with the offence of failing to comply with a prohibition order or premises order. That clearly involves the civil test of the balance of probabilities. However, failure to comply with the order can involve a criminal sanction. Therefore, quite rightly the noble Lord came back and asked whether it was possible that we could end up with someone being caught between the two tests—the civil and the criminal—and facing a criminal sanction on the balance of probabilities test. As I understand it, that is at the heart of his concern. I can certainly give him the assurance that before any criminal sanction could be made under Clause 25, there would need to be proof to the criminal standard of “beyond reasonable doubt” that the substance involved was indeed psychoactive.
I hope that that clarification will help the noble Lord, Lord Tunnicliffe, with his concerns. I also hope that the point that I made right at the beginning to the noble Baroness, Lady Meacher, that we are continuing in a genuine dialogue with the Advisory Committee on the Misuse of Drugs, will allow her to—
Before the Minister sits down, I would like to put one question to him on that issue. He said at the beginning that he was not ruling out the term “synthetic”, but I then became very confused when he started talking about a number of botanicals. Does he agree that there is in fact great value in separating the machinery for botanical substances, which are developed over many years and which can be brought under the Misuse of Drugs Act if they are dangerous—harmful—from synthetic substances, which need a rather different kind of machinery? I think that the Minister was indicating that there are botanical substances that may be to some degree harmful.
Of course the police are able to use common sense. They tend not to arrest and criminalise the possession of herbal cannabis. They will know that it is infinitely less dangerous than something such as alcohol. The same would apply to other botanical substances developed over many years. If they were brought under the Misuse of Drugs Act, which the Minister referred to as rather draconian, that Act also could be used with a degree of common sense. I want to be clear whether the Minister accepts the great value of separating these two completely different sets of substances.
The noble Baroness goes to the heart of the issue; we have a problem with that. We are just not convinced. There are botanicals, to which we have referred. There are other substances, such as nitrous oxide. Does “synthetic” as a term cover what we want it to cover, or will we be reassembled back here at some future date trying to clamp down on another loophole which has been exploited? That is the difficulty. When I say that I am not ruling out the term “synthetic”, that is absolutely correct, but we want to make sure that if the term is used, it is understood in a legal context as achieving the intention of the Bill, which is to uphold a blanket ban. I hope that, with that, I have provided some clarification.
I am grateful to the Minister for giving way. What is his difficulty about using the apparatus already available to the Home Secretary under the Misuse of Drugs Act 1971 to deal with botanical substances and, I think, nitrous oxide—natural substances about which the Government are concerned? It is open to them to classify them perhaps as class C drugs and deal with the problem in that way, distinguishing between natural substances and the synthetic substances that constitute this huge social threat by being barraged into our society week after week to the great danger of our young people.
That was the point that I was trying to address in response to my noble and learned friend Lord Mackay, who talked about the speed of this: the cumbersome process that existed before to categorise something, the period of time, and the agility of the criminal gangs behind the production of these substances. That goes to the heart of the purpose of the blanket ban. I know that we may not necessarily agree on that point, but I hope he will understand that that is where we are genuinely resolute: how do we uphold the blanket ban—which is the advice that we received from the expert panel, what similar panels in Wales and Scotland believe to be the way forward and what operates in Ireland—in a way that recognises the nuances we have but does not allow people to escape through loopholes? That is the challenge we are wrestling with. It is a dialogue that we are committed to continuing, both with your Lordships in the remaining process of the Bill and as it goes to another place, should it be your Lordships’ will that it does. That dialogue will continue; it is genuine and we are continually listening to views on this.
Listening to the Minister, one might almost interpret him as saying that this is a balanced issue on which he needs more time to think and on which he wants to involve noble Lords. However, the only time when noble Lords will get another chance to debate this will be at Third Reading. Is the Minister saying that he may be able to take this away and shed more light on his conclusions at Third Reading?
Look at the pace of events over the past week and the exchanges of correspondence that there have been. This is moving because we are genuinely exploring what the definition should be. Of course we will keep it under review for Third Reading and, should the Bill go to the other place, it is likely that, as a result of deliberations in your Lordships’ House, government amendments will be tabled in other areas dealing with other clauses. Therefore, through the normal process, we will get an opportunity to consider those Commons amendments should they be made. There will be opportunities for this discussion to continue with the ACMD in the proper way. However, I come back to the basic principle on which the noble Lord and I agree absolutely: we cannot have any more loopholes popping up so that people can exploit the gaps in the legislation. That is the whole point. We might as well not have the Bill if it will simply open up a number of new areas—be it botanicals or some other derivative—that can be used for the purposes that the Bill is intended to clamp down on.
Before the noble Lord sits down, let me make clear that the present difficulty is that botanical substances could be used as a basis for some form of psychoactive substance that would be dangerous in a way that was not shown hitherto. The Government’s present position is that “synthetic” should not be inserted but that further considerations may help clarify that problem. Therefore, the safe thing to do at the moment is leave out “synthetic” and use the general definition, which is what the group set up specially for this purpose advised.
Is the Minister saying—I think he is about to get an answer from the Box—that he may well further consider this issue before Third Reading and that we should debate further at that point? That is very important to the noble Baroness in deciding whether to press her amendment.
In responding on the Bill, I gave a number of examples of particular botanical substances that would fail the test of “synthetic”. Therefore, it is very much as my noble and learned friend has said. Those substances do not meet the harm threshold of the 1971 Act, but some natural substances are controlled under it. This is part of the confusion and discussion that is still to be resolved, but we believe that what we have at the moment is clear in terms of the intent of the Bill and that to insert “synthetic” at this stage would unnecessarily limit the scope of the Bill and potentially open up new loopholes, which would need to be closed down legislatively on another occasion.
My Lords, I thank all noble Lords who have contributed to this debate. It has turned into an incredibly wide-ranging, constructive and interesting debate, so I am most grateful to all noble Lords. I want to pick up in particular on the comments made by the noble and learned Lord, Lord Mackay. His initial comment was that he had no problem with the word “synthetic” and then introduced a very interesting point: that the intention behind a substance is very pertinent. Interestingly, he raised a similar point in writing to the chairman of the ACMD, saying that this would be a helpful addition to the definition of a synthetic psychoactive substance. If you bring in the intention behind the substance, then you have really got it. I am very grateful to the noble and learned Lord for that contribution.
Things became a bit more confused a little later, because if a botanical substance is treated and becomes a psychoactive substance it would automatically come within the definition of synthetic psychoactive substance. That is the purpose of the amendment: to keep a separation between genuinely botanical products, which take years to develop and produce and which can very properly be controlled under the Misuse of Drugs Act, and those substances which are treated, and can be treated rather quickly, to create another synthetic psychoactive substance. Those latter should be brought under the control of this legislation. It seems to me that we can produce two sets of very logical, useful legislation to deal with those two completely different types of substance. They might have similar effects, but their production and its timeframe are entirely different. They have to be treated differently under the law. I wanted to make that position clear bearing in mind the points made by the Minister, who said that he was not ruling out the use of “synthetic” but then raised some rather serious questions about whether he could introduce “synthetic” to define psychoactive substances covered by this Bill.
The crucial point here is that the Irish experience shows that you cannot assess whether a substance is psychoactive without using human beings to test it. It has not worked in Ireland. Dealing with the matter in the way that we have suggested in the amendment is a great deal better than they have managed to do in Ireland.
I hope I have managed to thank everybody adequately. I also thank the Minister for his meetings with me and, in particular, for the very helpful meeting we had yesterday. Only because I know that the ACMD supports us in this amendment and now feel confident that the Government will have serious discussions with the council about this issue, and because I am therefore confident that the Government will find their way to doing the sensible thing and having this clear division between botanicals and synthetics, I am prepared to withdraw my amendment.
Amendment 1 withdrawn.
Amendment 2 not moved.
Clause 2: Meaning of “psychoactive substance” etc
Amendments 3 and 4 not moved.
5: Clause 2, page 1, line 15, leave out paragraph (a) and insert—
“(a) in the opinion of the Advisory Council on the Misuse of Drugs is capable of producing a psychoactive effect in a person who consumes it, and(aa) is, or appears to the Advisory Council on the Misuse of Drugs likely to be, misused and of which the misuse is having, or appears to them capable of having, harmful effects sufficient to constitute a social problem, and”
My Lords, before I speak to Amendment 5, perhaps I should say to noble Lords who are wondering what is happening, “Do not go away”. I did not wish to abuse the House by too much toing and froing during the exchange on the first group of amendments but some points came out in that debate that are relevant to Amendment 5.
The noble Lord, Lord Tunnicliffe, made some interesting points and analysis of the situation in regard to harm. I shall quote again from the ACMD’s letter of 2 July on the concept of harm. It stated:
“Without the inclusion of the words ‘harmful’ or ‘potentially harmful’, the ACMD can envisage situations whereby the supplier of benign or beneficial substances could be prosecuted under the Bill”.
It also stated that the expert panel set up to consider this issue,
“recommended the inclusion of the concept of harm and a ‘safety clause’”—
as it called it—
“whereby substances of low or no harm—
and we know the difficulties of setting a threshold—
“would be excluded from such a Bill”.
Self-harm has been raised. It is a social problem within the terminology I have used, which, as I have said, is lifted from the Misuse of Drugs Act.
Without wishing to expand on this, to think now of using this Bill to ban botanical substances—types of sage and mushroom have been mentioned—which have been legal for centuries raises questions about propriety and whether it is too authoritarian and so on. Perhaps that is not an issue for now.
I accept the point about the time taken to show harmful effects causing social problems but we have to put this in the context of the substance producing a psychoactive effect and the time and difficulty involved with that. My amendment would deal with the question of harm without sabotaging the direction of the Bill.
If amendments are made in the Commons, we may welcome them. However, if amendments are not made in the Commons, we will not have the basis for further discussion because at that stage we cannot reintroduce issues that are unrelated to amendments that the Commons have made. I therefore beg to move and I wish to test the opinion of the House.
Amendments 6 to 8 not moved.
Clause 3: Exempted substances
Amendment 9 not moved.
10: Clause 3, page 2, line 14, leave out “such” and insert “—
(a) the Advisory Council on the Misuse of Drugs, and(b) such other”
I do not wish to speculate on whether it was my eloquence and that of the noble Baroness, Lady Hamwee, in Committee or the letter of 2 July from the Advisory Council on the Misuse of Drugs that carried more weight with the Government, who have now put their name to an amendment providing for the Secretary of State to consult the Advisory Council on the Misuse of Drugs in specific circumstances. I hope it might be the former explanation but I fear it is probably the latter.
The letter from the Advisory Council on the Misuse of Drugs stated that the Home Office should amend the Bill so that:
“In keeping with our role in the Misuse of Drugs Act, there should be a statutory duty to consult ACMD”.
Nevertheless, it is one for the record when the Minister responsible for the Bill adds his name to an amendment moved by the Opposition. I thank the Minister for that and for delivering so handsomely, in my opinion, on his undertaking in the debate in Committee on this issue to consider the matter further in advance of Report.
I do not think there is really any need for me to say any more, although the noble Baroness, Lady Hamwee, or the noble Lord, Lord Paddick, may wish to contribute. But on the basis that the Minister’s name is on this amendment and that therefore he will not be opposing it but supporting it, I beg to move.
My Lords, my name is on this amendment. We moved a similar amendment in Committee. Obviously, we are very pleased that, for whatever reason, the Minister has added his name to what is now the Labour Party amendment.
The noble Lord, Lord Rosser, has raised a concern about whether it was consultation and the debate in Committee that persuaded the Government to change their mind on this or whether it was the letter from the Advisory Council on the Misuse of Drugs. It is very disappointing that the consultation with the Advisory Council on the Misuse of Drugs did not take place at a much earlier stage in the preparation of the Bill, rather than after its publication. It certainly would have saved a lot of time and debate if that had happened. Even now, from the latest letter in the correspondence between the Home Secretary and the Advisory Council on the Misuse of Drugs, which we saw yesterday, it appears that the advisory council wants further changes and amendments. It is not right that we should have a half-baked Bill presented to this House on the understanding that it does not really matter because, if any deficiencies are highlighted as a result of this late consultation, they can be put right in the other place. We in this House have the right to amend Bills to make them worthy of being passed into law. We should not rely on amendments made by either the Government or the Opposition in the other place when the Bill is first presented to this Chamber.
My Lords, in supporting the amendment tabled by my noble friend Lord Rosser, I express my welcome to the amendment tabled by the Government. It gives me particular pleasure to support my noble friend but it also gives me pleasure to support the Minister in his tabling of that amendment. It is never really profitable in politics to seek to take credit; it is much more important that there should be results. But there has been pressure from all quarters for the Government to make it clear—and make it clear in the Bill—that they were going to involve the Advisory Council on the Misuse of Drugs in carrying forward the policy for which the Bill would legislate, so this can be nothing but good. If any credit is due to this House, because the issue has been emphatically raised in our proceedings, then it is one more instance of how the Minister has been the most honest of brokers between this House and his department. The integrity, good will and energy with which he has mediated these debates through to his colleagues in the Home Office is something which I think we all very much appreciate. I would like to place that on the record.
My Lords, this may be a short group as we, too, welcome this amendment. I do not think I have ever known an occasion before where all three main parties have put their names to the same amendment. It is a matter of semantics as to whether we have all come around to Amendment 10 or everybody has come around to government Amendment 22. What matters most is that we are all on the same page. In the context of the previous debate, that same page very much underscores the importance which the Government place and should place on the advice which they receive from the advisory council.
The Explanatory Notes made it clear that we expected to consult fully the council on Clauses 3 and 10. However, in bringing forward these amendments to turn such an expectation into a statutory duty, we have been mindful not just of those views and its opinion but of the deliberations and the views expressed in your Lordships’ House. These amendments reaffirm the value we place on the independent expert advice from the advisory council and our commitment to a constructive working relationship with it on the provisions of the Bill and the Misuse of Drugs Act 1971. We will continue to work with the council to achieve our common purpose of reducing and preventing harms caused by psychoactive substances to individuals, especially young people, families and communities. For these reasons, I am happy to support Amendment 10 and similarly to commend Amendment 22 to the House.
Amendment 10 agreed.
Schedule 1: Exempted substances
11: Schedule 1, page 37, line 7, leave out paragraph 2 and insert—
“2 All medicinal products prescribed by a doctor or sold by a licensed pharmacist.”
My Lords, in moving Amendment 11 I shall also speak to Amendment 12, both of which we debated in Committee. I intend not to repeat anything of the arguments we used then but rather to reflect on developments since. The intention of the amendments is to ensure that all legitimate medicines and substances used for any form of legitimate research are exempted from the scope of this legislation.
I am most grateful for the Minister’s letter to the noble Lord, Lord Rosser, in which he says that the Government are looking again at the definition of medicinal products in Schedule 1 to ensure that it is fully aligned with existing medicines legislation. The question is what exactly that means. I seek only an assurance from the Minister that the definition will include all medicines prescribed on a named-patient basis and all unlicensed—or any other—psychoactive substances prescribed by a doctor on the basis that the prescription is believed by that doctor to be in the best interests of the patient. My clear understanding is that a doctor can prescribe any medication, even if it is unlicensed or not recognised, so long as they believe that it will help the patient. Many medicines come on to the market which may have been tested in other countries or in other ways but which have not been through UK systems.
Amendment 12 deals with research. It would be helpful to have an assurance that all legitimate research, including laboratory research, involving psychoactive substances in academic institutions or undertaken by industry will be fully exempted from the scope of the Bill. Alternatively, perhaps the Minister could assure the House that the Government will seek an assurance from the ACMD that whatever wording is used will achieve that objective. We just want all noble Lords to be completely satisfied that these two objectives will be achieved.
I have added my name to Amendment 24, tabled by the noble Lord, Lord Paddick. The aim here, as I understand it, would be to ensure that the regulations exempting medicines and research are in place by the implementation date of the legislation. The wording in the amendment itself is slightly different, but I am sure that that is the intention. No doubt the Minister will comment on this in her response to this group of amendments.
My Lords, Amendment 24, to which the noble Baroness has added her name, comes from my noble friend Lord Paddick and me. Like the noble Baroness, I will not spend long on this, because I am optimistic about where the Government are going with it. I was concerned that the current provisions of the Bill are too limited, because they are limited to medicines. However, I will repeat one comment that I made at the last stage. Professor Val Curran, in her report for the all-party parliamentary group that the noble Baroness chairs on regulating cannabis for medicinal use, referred to a “stranglehold on research”. She sets out, quite pithily, the “costly obstacle course” involved in undertaking any research, because of the time taken by licence applications. Import licences are being granted for so short a time that they expire before the arrangements for the research can be made, so I welcome the Government’s further consideration of this. As Professor Curran says, at the moment, UK research into this area is a “massive uphill struggle”.
I was not meaning in any way to attempt to refute or reject something that the noble Baroness had just said—I was apologising to the House for being about to mention the medicinal use of cannabis, because it is somewhat marginal to the Bill. However, ensuring that research for medical purposes, or indeed for other legitimate industrial purposes, is not inhibited by the provisions of this Bill certainly is germane, and it is rendered all the more important because of the difficulties that the Misuse of Drugs Act 1971 already places, in practice, on certain sorts of research that it is highly desirable should be pursued. I also have the report by Professor Val Curran and Mr Frank Warburton in my hands, and I was going to draw to the attention of the House the observations made by the authors of that report that there is what Professor Curran calls a “stranglehold on research”. She says in the report:
“Carrying out research into cannabis in the UK is a costly obstacle course. It involves a minimum outlay of £5,000 to cover licensing and security; licence applications take about a year”.
She broadens out what she says to deal with other substances in Schedule 1, saying:
“As a result of its Schedule 1 status in the UK only four hospitals have been granted a licence to hold stocks of cannabis although all of them are able to hold heroin”.
So it is a somewhat confused situation. I was encouraged to read in the Home Secretary’s letter to Professor Iverson of 11 July that the,
“Government’s intention is for all bona fide medical and other scientific research to be untouched by the provisions of this Bill”.
I simply draw to the attention of the Minister and the House that the provisions of the 1971 legislation already make for very considerable difficulty in pursuing bona fide research into certain substances in Schedule 1. I am very happy to know that the Government are consulting and looking to amend the provisions of this Bill in the House of Commons, and I hope that they take fully into account when they do the difficulties that the 1971 Act has already created.
I shall be brief, but we have an amendment in this group, which states:
“Regulations under this section providing for medical research activity to be excluded from the application of the offences under this Act shall be laid before each House of Parliament within one week of sections 4 to 10 coming into effect”.
Something that has been referred to already is the letter that was received from the Advisory Council on the Misuse of Drugs. One point made in that letter was that the Bill could,
“seriously inhibit medical and scientific research on psychoactive substances”.
We have had the response from the Government in a letter to me, in which they referred to the views of the Advisory Council on the Misuse of Drugs. I take it that that includes the views of the advisory council on the Bill’s potentially seriously inhibiting medical and scientific research on these substances. The Government’s letter said:
“So that we can properly consider the ACMD’s advice, we now propose to defer tabling Government amendments on these issues until the Commons stages”.
On the basis that that is still the position—and I hope that the Minister will be able to confirm that the Government are still looking at the matter of the impact on research with a view to tabling amendments in the Commons—that would certainly suffice with regard to our Amendment 23, if the Minister can give that assurance.
I thank noble Lords for all their points. As discussed in Committee, there is common ground between these amendments and the Government’s position. As I said in Committee, it is the Government’s absolute and determined objective that bona fide medical and scientific research should be untouched by the provisions of the Bill. We will deal with the issue of research on cannabis when we reach Amendment 25.
It is already the case that broad swathes of research involving psychoactive substances fall outside the blanket ban. If a substance is not intended for human consumption for its psychoactive effects, it will not be caught by the Bill. Paragraph 3 of Schedule 1 exempts investigational medicinal products used in clinical trials. However, I understand, and the Government fully accept, that this exemption does not go far enough. This is an issue of some concern for the academic and scientific community. The noble Baroness, Lady Meacher, referred in Committee and again today to the letter in support of her Amendment 12 sent to my right honourable friend the Home Secretary by the Academy of Medical Sciences and five other leading scientific institutions. My noble friend Lord Bates responded to that letter yesterday. I shall read out the critical paragraph in that response:
“We have now had some further discussions with the Department of Health and the Medical Research Council. In going forward, we need to ensure that any amendment to the Bill satisfies the scientific community as represented by the Academy of Medical Sciences and your co-signatories, as well as our own policy and legislative requirements. For this reason, we intend to develop this work in the coming weeks with a view to introducing an amendment when the Bill is considered by the House of Commons. To help achieve this I would value engagement between your representatives and officials from both the Home Office and the Department of Health to reach a common understanding and satisfactory outcome in the next few weeks”.
I hope that that will reassure noble Lords that we are firmly committed to bringing forward an appropriate amendment on this issue, but it will take more time to get it right in consultation with the Academy of Medical Sciences, the Advisory Council on the Misuse of Drugs and others. We need to ensure that bona fide medical and scientific research is excluded from the ambit of the Bill, while not creating a loophole for others, whose only purpose is the recreational use of psychoactive substances, to exploit.
Amendment 11 is on a different point raised by the noble Baroness, Lady Meacher, in seeking to expand the definition of medicinal products, and therefore the exemption for such products, in paragraph 2 of Schedule 1. The noble Baroness is pushing at an open door here. As I also indicated in Committee, this is another area we are considering further with the Department of Health and the Medicines and Healthcare Products Regulatory Agency.
We are conscious that the Bill as drafted does not include unlicensed medicines for human use known as “specials”. These are lawfully manufactured, imported, distributed or supplied for the treatment of individual patients after being ordered by a range of healthcare professionals, not just doctors. As such, they need to be taken out of scope of the definition of a psychoactive substance.
In its letter to the Home Secretary, the Advisory Council on the Misuse of Drugs specifically raised concerns about the scope of exemption for herbal medicines. The European Herbal & Traditional Medicine Practitioners Association has also flagged a need to ensure that the exemption for medicines includes herbal medicines used by practitioners on a named-patient basis. This is another area where we are actively reviewing whether we need to adjust the current definitions in the Bill.
Medicines legislation is a complex area, as I know noble Lords are aware, and defining bona fide research is not as straightforward as one might imagine. We have certainly not so far been able to identify an off-the-shelf definition in existing legislation which we can readily apply. It is regrettable that we have not been able to table amendments in time for the House today, and I fear we will not be in a position to do so for Third Reading next Monday. I ask noble Lords to bear with us. We will use the time over the Summer Recess—no holidays for us—to bring forward appropriate amendments in the Commons. I will ensure that noble Lords taking part in this debate have sight of those amendments. Your Lordships’ House will then have an opportunity to consider the issue further when the Bill returns from the Commons in the autumn.
I hope that, in the light of that commitment, the noble Baroness, Lady Meacher, will be content to withdraw her amendment.
My Lords, I thank noble Lords who have spoken in this debate. I thank the Minister for her reassuring comments, her assurance about the Government’s commitment to ensuring that all bona fide medicines and research will fall outside the scope of the Bill, and her assurance that the Government will consult key experts to ensure that the Bill is right in this respect. On that basis, I beg leave to withdraw the amendment.
Amendment 11 withdrawn.
Amendment 12 not moved.
Clause 5: Supplying, or offering to supply, a psychoactive substance
13: Clause 5, page 2, line 36, at end insert “for the purpose of financial gain”
My Lords, this amendment is intended to avoid a situation in which we may find ourselves criminalising rather large numbers of young people. I am not sure that that is what the Government really want to do, and I myself would not at all like to see it happen. The Bill provides that it is not an offence to possess a psychoactive substance, but all means whereby people might obtain psychoactive substances would be made illegal. I do not know whether Ministers expect people to come into possession of psychoactive substances rather as if they had descended like manna from heaven—or perhaps, as some people would see it, surfaced from hell.
At all events, very many young people use psychoactive substances. I do not think anyone knows what the scale of use is in this country. The report on new psychoactive substances that the Home Office commissioned and published last year indicated that the data are extremely thin and inadequate. That is no one’s fault; it is a very widespread problem and it is hard to monitor the reality of it. Still, a lot of people are using psychoactive substances, just as a lot of students are using substances that they think will enhance their cognitive powers, and I do not think that a ban is going to stop them doing so.
The question is this: if a group of people club together, in the words of the Advisory Committee on the Misuse of Drugs in its letter of 2 July, and one of them supplies a psychoactive substance to a circle of friends but does not do so for the purpose of financial gain—it is a shared social activity that they have agreed to undertake—should that become a criminal offence? I suggest that it should not. More significant than my suggestion is the urging of the ACMD in its letter to the Secretary of State, in which it says:
“The Bill has the potential to both criminalise and apply disproportionate penalties to many otherwise law abiding young people and adults…An example is a young person being prosecuted for ‘supply and importation’ in a case of ‘social supply’ where a young adult has bought small quantities of Novel Psychoactive Substances on-line on behalf of a group of friends who have ‘clubbed together’. The ACMD believes that criminal justice sanctions would be disproportionate to the harm caused by such acts”,
and I think the ACMD is right. In her reply to Professor Iversen’s letter, the Home Secretary offered some reassurance when she said that,
“the Bill contains both criminal and civil sanctions which will enable law enforcement agencies to adopt a proportionate response to offending behaviour. In addition, the police and Crown Prosecution Service will exercise their professional discretion taking into”—
I think the next word is “account” but it has been missed out—
“all the circumstances of the offence and the offender”.
So that is good.
Oddly, she also says in the preceding paragraph that the expert panel,
“did not suggest excluding social supply”.
That is not how I read the expert panel’s report. Page 33 of that report, at the beginning of the section entitled “General prohibition on the distribution of non-controlled NPS”, in which the expert group set out to state the principles that should apply, said:
“Legislation of this type … can exclude … social supply”.
It did not recommend that it should exclude social supply, but contemplated that it should. I hope that the Government, in the light of that, might be prepared to think a little further about this issue.
Why do young people use psychoactive substances? Young people are better able to answer that question than perhaps your Lordships are. However, there is an attempt to answer that question in the wholly admirable resource pack for informal educators that the Home Office produced just recently. In a section headed “Do we know why young people use NPS?”, the group that put the document together said that,
“curiosity is one of the reasons that young people might be tempted to use NPS. Of course, for some people, we can’t ignore that the enjoyment of the effects of NPS products will be a key motivation for use. They can offer escapism, relaxation, shared social experiences and adventure”.
If those are the motives, we have to be very careful that we do not end up criminalising people, because they look like pretty innocent motives. Very often we are talking about social rituals that groups of young people perform. There is of course also the reality that teenagers and people a bit older often feel the temptation to rebel against authority. If you ban them from doing something that they enjoy and think is fun, and they do not understand why it should be criminalised, it is quite likely that they will rebel against the ban. People experiment as they grow up and mature, and some people continue to use such substances through the decades of their life that follow, holding the view as they do—and as many highly competent scientists do—that the effects of individual controlled drugs and many new psychoactive substances are no worse than the effects of alcohol or tobacco.
That is one of the reasons why, as the House knows, I have taken the view that the safer course would have been to legalise and regulate a selection of such substances rather than to attempt to ban the lot. I am not at all saying to the House that we should encourage anybody to consume psychoactive substances; I am saying that we should not criminalise young people in the circumstances that I have quite narrowly defined in this amendment. We should not damage their education, their careers, or their prospects of obtaining credit or jobs. We should be careful not to alienate people who believe that their activities are innocent and should not be prohibited, and certainly we should be careful not to discriminate unwittingly against members of black and ethnic-minority groups. Again, I was encouraged that the Home Secretary in her letter to Professor Iversen said:
“I share the Council’s desire to ensure that the enforcement powers in the Bill do not result in discriminatory impact on members of black and ethnic minority … groups”.
Therefore I think that we are at one in recognising the risks there may be here.
I will repeat a figure I quoted at Second Reading. It seems tremendously undesirable that between 2009 and 2013, under the existing drug legislation, 60,000 young people were criminalised simply for possession, and there is a danger that this legislation will add to those numbers. It would therefore be helpful if the Minister could say if the Government will reconsider the question of whether someone who provides a new psychoactive substance to a circle of friends, not dealing and seeking to make money out of it, should be subject to the same penalties as an organised criminal or a street dealer. Would it be a statutory defence that an individual obtained the psychoactive substances for themselves and their friends and not for sale or profit? Does the Minister envisage that there would be prosecutions in such a circumstance, and does he see that as being in the public interest? I beg to move.
My Lords, my noble friend Lady Hamwee and I have Amendment 16 in this group, which approaches the issue from a slightly different position. Our amendment suggests that:
“It shall be a defence that the person did not supply the substance for gain”.
The difference here is that as I understand it, the amendment in the name of the noble Lord, Lord Howarth, would mean that the prosecution would have to prove that this was the case, whereas in our case, if it was a defence, it would be a matter for the accused person to prove that they did not supply the substance for gain. As the noble Lord, Lord Howarth, said, on page 3, point 5, of the ACMD’s letter of 2 July, for very similar reasons it is not only concerned that this will criminalise,
“otherwise law abiding young people and adults”,
but concerned with regard to the discriminatory impact.
The Secretary of State is encouraging in her response to the letter, saying that,
“the police and Crown Prosecution Service will exercise their professional discretion taking into all the circumstances of the offence and the offender”.
However, the concern—which is not addressed by the Secretary of State, but is expressed by the advisory council—is that it is not simply a case of members of the black and minority-ethnic community being disproportionately stopped and searched by the police, which the Secretary of State addresses in her response, but that members of the black and minority-ethnic community are disproportionally more likely to be charged rather than cautioned for an offence. They are also disproportionally likely to have a formal disposal of their case rather than no further action being taken.
Therefore, while the Secretary of State’s efforts to improve the police’s use of stop and search is to be applauded, she does not address the other issues regarding the fact that members of that group are disproportionately more likely to face a form of sanction, be it a caution rather than no further action, and more likely to be charged with an offence rather than given a caution, bearing in mind that the Secretary of State says that out-of-court disposals would be used in “appropriate cases”. Our concern is that without it being a statutory defence, with the burden of proof lying on the accused, there is regrettably—to judge by evidence of what has happened in the past—a danger that the powers in the Bill will disproportionately affect black and minority-ethnic communities and will therefore discriminate against them, as the advisory council’s letter points out.
My Lords, all that needs to be said has been said. I will simply express my support for these amendments, on the grounds that for a child of 14 to get a criminal record will be far more serious for them than any damage that might be done by some rather dubious psychoactive substance. That is not to say that I in any way support young people taking these things, but we know that they do. All the literature— certainly that from Portugal—suggests that avoiding a criminal record is an enormous plus for a young person; they are much more likely to remain with their studies and get a job when they leave school. It is therefore a very serious matter to include these activities, whether it is sharing a substance with a group of friends or some such activity. The Government designate such an activity as a criminal offence at their peril in terms of the longer-term consequences, as well as the probable long-term costs to the Government, of dysfunctional young people, unemployed people and people getting into a criminal lifestyle.
My Lords, I, too, support these amendments but for a slightly different reason. I have a Private Member’s Bill, which I hope will come forward, to amend the Rehabilitation of Offenders Act. In it is something that I found when inspecting the prisons in Barbados. I found that at the age of 18 everyone’s criminal record was examined and everything except for violent and sexual offences was expunged so that a child did not take forward a criminal record after that age. I mention this merely because I think we ought to take very seriously the matter of people—particularly young people—taking forward into later life an early criminal record.
My Lords, I certainly sympathise with the observations of the noble Lord, Lord Ramsbotham, about the desirability of avoiding young people having convictions. However, I should like to take issue with the comment of the noble Baroness, Lady Meacher, about the prosecution of a 14 year-old. As a former Lord Advocate, I know that the prosecution will always take into account the circumstances of an offence. If we are faced with a 14 year-old who has supplied a psychoactive substance or cannabis to his friends, it is likely that there will be no prosecution—whatever his ethnic background,as far as the prosecution service in Scotland is concerned, I can assure the noble Lord, Lord Paddick, and I would be very surprised if the English prosecution service took a different view.
However, I am concerned about the introduction of the defence proposed by the noble Lord, Lord Paddick, because one has to have regard to all the circumstances of the offence. I speak having, about 18 months ago, received a communication from a mother who was separated from her husband. Her teenager son had gone to stay with his father for a weekend and he went to a head shop. He obtained a psychoactive substance and, sadly, as a result of that he died.
I am concerned about this amendment. Suppose someone supplies a psychoactive substance to his friend, the consequence of which is death—are we to say that there should always be a defence that he should not accept responsibility for the consequences of his act? I am not thinking of a 14 year-old. What about a 20, 30 or 40 year-old who supplies such a substance to a younger person who happens to be his friend and the consequence is death?
I share the view of the Home Secretary that this is a matter that ought to be left to the discretion of the prosecutor, taking into account all the circumstances. If a defence is open to an individual in any circumstances, that may mean that people who cause very serious damage to a family do not face up to the consequences. Therefore, I am against the amendment.
My Lords, it is very fitting that we come to the consideration of this amendment moved by the noble Lord, Lord Howarth, who put, as he always does, a very persuasive case. The noble and learned Lord, Lord Hardie, then spoke about the consequences of the ease of access to and availability of these very dangerous drugs in our society. That, in a sense, represents the parameters of our debate. This, in the whole list of recommendations in the letter from the ACMD to the Home Secretary, was probably the one to which we were most strongly opposed. I understand that, when preparing such legislation, there is a need for people with great expertise in science but there is also a need for people who focus on the legal aspects and how the legislation will be interpreted.
We are very mindful of the danger of creating a loophole effectively around the social supply of such substances. Later, we will debate what might constitute personal possession. We have said that people would not be prosecuted for the personal possession of substances but a lot of people have said that that is very difficult to define. There have been lots of attempts at doing so. In the Drugs Act it was specified as an absolute quantity. That was then felt to be unworkable and it was left to the judgment of the constable on the ground.
You could provide a defence for carrying a large quantity of psychoactive substances by saying that they were for social purposes, but the people behind these drugs have proved to be incredibly adept at finding their way around legislation. They are very savvy, being aware of the descriptions in the legislation to the letter, and they organise their activities around that. We feel that this would be a very wide loophole that would be exploited in ways that we did not intend.
The Bill seeks to tackle the trade in psychoactive substances, and social supply is central to how the trade operates. Social supply by friends was identified by the expert panel as the most common source for acquiring psychoactive substances. Therefore, it is clear that social supply, alongside sales from head shops and purchases online, is critical to sustaining the market in these substances. In its recommendation to create a general prohibition, the expert panel did not suggest excluding social supply, nor has this approach been taken in other jurisdictions. Moreover, in this respect the Bill mirrors the position taken towards substances that are subject to a temporary-class drug order.
We need to tackle the supply routes to remove these potentially dangerous substances from our communities. Excluding social supply from the scope of the Clause 5 offences would significantly weaken the framework of the Bill, not least by creating a loophole that could easily be exploited. Excluding social supply would also send out a confusing message. If a group of friends were poly-drug users and bought drugs on behalf of each other, they would be committing an offence if they supplied, say, cannabis to one another but not if they supplied a psychoactive substance.
The approach taken in the Bill—this is a point that the Home Secretary underscored in her response to the ACMD—does not mean that enforcement action will focus on social supply networks. Nor does it follow that someone arrested for a social supply offence will necessarily face prosecution. We are simply saying, as did the noble and learned Lord, Lord Hardie, that that ought to be a matter for the prosecutors to decide. We are very conscious of the impact of criminalising young people—a point raised by the noble Lord, Lord Ramsbotham. That is why we have not made personal possession an offence, but social supply would be such a wide area that it would be too open to exploitation.
The Bill contains both criminal and civil sanctions, which will enable law enforcement agencies to adopt a proportionate response to offending behaviour. In addition, the police and the Crown Prosecution Service will exercise their professional discretion, taking into account all the circumstances of the offence and the offender. The public interest test will apply to any prosecution, and there will be an option of pursuing an out-of-court disposal in appropriate cases. I take the point that the noble Lord, Lord Paddick, made, particularly in relation to BME communities, which I shall come to in a moment.
Ultimately, however, if the circumstances justify a prosecution, that option should remain open. Moreover, these amendments would make the task of the police and prosecutors in tackling commercial suppliers that much harder. The amendments, if made, would add another element to these offences which would need to be proven, with drug dealers attempting to evade justice by seeking to argue that they received no payment for the transaction in question.
I know that the advisory council was particularly concerned to ensure that the enforcement powers in the Bill did not result in a discriminatory impact on members of black and ethnic minority groups. The Government fully share these concerns. In Committee, we had a good debate on the stop-and-search powers in the Bill, and I subsequently wrote to the noble Lord, Lord Paddick, to explain the necessity for these and how they would avoid the need for the exercise of more intrusive powers of arrest. In addition, my right honourable friend the Home Secretary made it clear that we must reform the way stop-and-search powers are used and we are committed to legislate to mandate changes in police practices if the exercise of these powers does not become more targeted and stop to arrest ratios do not improve.
As was said during debate on the previous group of amendments, we greatly value the advice from the advisory council on the provisions of the Bill. This is the one recommendation that it made which we are unable wholly or partly to accept. To exclude social supply would create a significant loophole in the framework of the Bill, and I therefore ask the noble Lord to withdraw his amendment.
The noble Lord does not appear to have addressed the issue of disproportionate charging of black and minority ethnic suspects or the fact that, in terms of caution rather than no further action being taken, disproportionate action is being taken by the police and the Crown Prosecution Service. This is according to public data; it is not something that I am plucking out of thin air—it is an established fact. This Bill could make that situation worse. The noble Lord has not addressed specifically those issues.
My understanding of what he said was that it would be anomalous if someone who supplied cannabis to their friends would be prosecutable but that, if the amendments went through, the person would not be prosecuted in relation to supply of a psychoactive substance covered by the Bill. However, personal possession of cannabis is a criminal offence but simple possession of a psychoactive substance covered by the Bill is not a criminal offence. That is another anomaly and is not a persuasive argument against these amendments.
The noble Lord made a good point on stop-and-search powers and I know that a significant body of work is going on in relation to it. I was going to quote some of the reports on it and the actions that the Home Secretary has requested and taken on recording the data on how stop-and-search powers are used, particularly vis-à-vis black and minority ethnic communities. Perhaps I can undertake to write to the noble Lord and set that out in some detail. Because it is such a serious point, the ACMD was right to raise it in its letter, and the Home Secretary was right to acknowledge that point in her response. However, that does not take away from the wider point that allowing a defence or allowing for a provision relating to social supply of new psychoactive substances would provide a loophole that would be open to exploitation. It is for that reason, rather than the other, that I ask the noble Lord, Lord Howarth, to withdraw the amendment.
My Lords, I am grateful to everyone who has spoken. We know and applaud the Home Secretary’s drive to reform stop and search, and her desire that its incidence should be greatly reduced, not least in light of the findings that a high proportion of stop-and-search operations have been conducted illegally. However, the noble Lord, Lord Paddick, with all his experience of policing in Brixton, has raised a fresh point in our debates that is exceedingly important. It is that stop and search is producing a disproportionate incidence of cautions and charges among BME communities. I hope that the Home Office will reflect carefully on what the noble Lord had to say.
The noble Baroness, Lady Meacher, put it to us that the charge that a young person might receive for supplying a psychoactive substance to their circle of friends, although not doing so for profit, might actually be more damaging than the effect of the psychoactive substance. That would often be the case. She mentioned Portugal, where the health-led approach is very different from the comprehensive prohibitionist approach that the Government have espoused and are reinforcing in this legislation. It is interesting that the European monitoring centre’s statistics show us that Ireland, which has used the approach that the Government are now seeking to legislate to provide in this country, has the highest incidence of consumption of new psychoactive substances among the many European countries covered by this survey; and Portugal has the lowest. There are lessons to be learnt from that.
The noble Lord, Lord Ramsbotham, reminded us of the dangers of a criminal charge getting on to a young person’s record and being carried through into adulthood—and what a millstone that is around their neck. I should imagine that that is dangerous psychologically and in all sorts of practical ways.
I take seriously the intervention by the noble and learned Lord, Lord Hardie, who asked us to consider the extreme circumstances in which someone, perhaps with innocent intentions, had provided a substance to a circle of friends but it had all gone horribly wrong and someone had died. The noble and learned Lord said that the right solution was to leave the question of prosecution to the judgment of the prosecutor. I was pleased that the Minister indicated that that, too, would be his view—that discretion, which can be used by the police and the prosecuting authorities, is provided in the Bill. The intervention underlined how important the exercise of that discretion is.
I understand why the Home Secretary would not want to create a large loophole in the coverage of the legislation, and I was pleased that the Minister told us that the Government were seeking as far as they could to minimise the criminalisation of young people through this legislation and that he shares the concerns expressed by the noble Lord, Lord Paddick. I am sure that the House of Commons will want to think further about this issue. In the mean time, I beg leave to withdraw the amendment.
Amendment 13 withdrawn.
Amendment 14 not moved.
15: Clause 5, page 3, line 7, leave out “is reckless as to” and insert “should know”
My Lords, the amendment is in the name of the noble Lord, Lord Lucas, who cannot be here today. One should perhaps keep one’s mouth shut, because when I said to him, “I think you have a point”, he said, “Will you move my amendment for me, then?”.
The amendment would change the requirement in the clause that the supplier “knows” or is being “reckless” as to whether the recipient would,
“be likely to consume the substance for its psychoactive effects”,
to a requirement that he “should know” that that was the case.
I have seen the letter from the Minister to the noble Lord, Lord Lucas. It seems to me that the examples drawn on by the Home Office to defend the recklessness provision are rather different from the situation envisaged by the Bill. Reference is made to two provisions in legislation where retailers are required to consider the age of a purchaser, and I know that the noble Lord is particularly concerned about retail. A third reference is made to the Licensing Act, under which retailers are prohibited from selling alcohol to people over 18 who are drunk—fair enough.
However, there is a clear distinction between being reckless as to something and whether one ought to know. In my reading of it, “reckless” means heedless of the danger, although I am sure that there is relevant case law. Examples also used in the letter are about the recklessness test covering whom a product is being sold to—for example, whether the individual is known for drug taking or substance abuse; the substance’s intended use, which I think is quite difficult; and whether it would be unusual for a particular individual to purchase such a substance. Again, age is referred to. I do not think that it is quite that easy. I wonder whether a retailer would be more or less reckless if I, a usually well-dressed, middle-class woman, went to buy building materials that could be consumed in some way. My reason for doing so would be that I did not want the builder to break off from his work. Would that be different from the builder, in a dirty T-shirt and torn jeans, going to buy the same materials for the same purpose?
I make one important request of the Minister. I know that the Home Office is considering guidelines for retailers and is working with the Association of Convenience Stores and the British Retail Consortium. I am very sympathetic to their concerns. Will those guidelines have been advanced to a stage that will be helpful to Parliament by the time the Bill reaches the Commons so that the debate on the points that the noble Lord, Lord Lucas, is concerned about can be addressed in the context of the draft guidelines? I beg to move.
I thank the noble Baroness for presenting this amendment on behalf of the noble Lord, Lord Lucas, who clearly thought that discretion was the greater part of valour, being temporarily absent from your Lordships’ House. This is a subject that he feels very strongly about and one that he raised in Committee. We took that very seriously and it resulted in another letter, on 8 July, to which the noble Baroness has referred.
I signal to officials who may be listening to the debate that I want to respond particularly to the point about the guidance that will be developed as a result of the dialogue that is taking place with the Association of Convenience Stores. I say in parentheses that those stores are very supportive of what we are trying to do because a lot of criminal disruptive activity congregates in areas where there are head shops. That is of concern to their members who are in the vicinity of those shops from a public order point of view. I am therefore keen to be able to provide an answer to the question of when guidance might be available.
For a prosecution to be brought for the supply offence in clause 5(1), the prosecution must show, among other things, that the defendant knew, or was reckless as to whether, the psychoactive substance supplied was likely to be consumed by the person to whom it was supplied, or by another person, for its psychoactive effects. The mental element of the offer to supply offence in Clause 5(2) requires that the defendant knew, or was reckless as to whether, the substance that was being offered was likely to be consumed by the person to whom it was supplied, or by some other person, for its psychoactive effects. In formulating these offences, the mental elements were carefully considered. The Government considered whether the mental element should extend only as far as “knows” but we concluded that this could create an inappropriately high bar for prosecutors to overcome, with defendants arguing that they did not know for certain that the substance they were supplying was a psychoactive substance and likely to be consumed for its psychoactive effects. The Government settled on including the recklessness threshold. A test of “knows or is reckless” is commonly used in criminal law, both in the United Kingdom and other common law jurisdictions. Indeed, the formula is used in Ireland’s Criminal Justice (Psychoactive Substances) Act 2010.
Recklessness is where a person is aware of a risk that a result may occur and unreasonably decides to run that risk anyway. As recklessness involves an actual awareness of the risk, the person’s degree of knowledge, or at least understanding, would be relevant. For example, the degree of knowledge a supermarket worker would have about psychoactive products would be less than a member of staff in a household store used to selling solvents, and less still than a member of staff in a head shop, whose trade is predominately in these substances. The mental state of each would be considered separately.
In seeking to substitute a “should know” test, as the amendment proposes, my noble friend is intending to set a higher bar for prosecution and conviction. We need to bear in mind that the Bill is, in part, directed at stamping out the reckless retail trade in these potentially harmful substances. We know that head shops use a variety of ruses in order to stay on the right side of the law, including labelling their products as “plant food” or “not for human consumption” when they are fully aware that their customers are consuming these substances for their psychoactive effect. The recklessness test is directed at such ruses and, for that reason, we would not want to lose it.
This does not mean that everyone on a checkout at Tesco or Homebase needs to subject all customers buying tubes of glue to a full-on interrogation. But they will need to think twice if two or three young people attempt to buy multiple tubes of glue and nothing else or they are making repeated purchases. The Intoxicating Substances (Supply) Act 1985 already requires a retailer to be alert to such cases, and although that legislation applies only where the supply is to persons under 18, we do not envisage that this Bill will significantly change the burden on retailers. If that were the case, the Association of Convenience Stores would not be among those welcoming the Bill.
At this point I should make it clear that the Home Office intends to work with retail trade associations, such as the Association of Convenience Stores and the British Retail Consortium, on the legislation in the run-up to its implementation. We need to provide simple messaging to ensure that the requirements of the law are clear. As to the timing, we are working with the retail trade associations to produce guidance that meets their requirements. That work is ongoing and we need to see the final form of the Bill. I regret that I cannot commit to having draft guidance ready in time to share with noble Lords while the Bill is still going through its parliamentary stages.
Once retailers have knowledge of the law, we would expect them to consider whom they are selling the product to and make an assessment. For example, what product are they selling, what is its primary use, does it fit the profile of the customer and are there any wider considerations that the retailer can infer from the transaction? The guidance will illustrate the grounds that should be considered.
We need to be reasonable. If a retailer genuinely did not know the law, they need to be educated—the civil sanctions in the Bill allow for this, providing for a graduated response where appropriate—but where retailers either know or are reckless as to the consequences of their actions, they cannot be absolved of responsibility and action can and should be taken.
In any event, the proposed substitution of a “should know” test would be likely to capture some people who would not be caught by the recklessness test. This is because the “should know” test would capture someone who did not appreciate the risk but ought to have known that the substance was likely to be consumed for its psychoactive effects. Such a person would not be caught by the current recklessness test. This would appear to be contrary to the objectives of my noble friend and the noble Baroness who moved the amendment.
I hope that I have been able to satisfy noble Lords on the provisions of the Bill as it relates to retailers and therefore ask the noble Baroness to withdraw the amendment at this stage.
My Lords, it would be inappropriate for me to take the matter any further. I am sorry that the guidance—or guidelines; I am not quite sure which I should have said—will not be ready. I realised that it would not be ready before Third Reading, but I had hoped that it might be ready for the Commons to take some cognizance of it. I remain a little concerned, but, in the circumstances, I beg leave to withdraw the amendment.
Amendment 15 withdrawn.
Amendment 16 not moved.
Clause 6: Aggravation of offence under section 5
17: Clause 6, page 3, line 20, leave out “or B” and insert “, B or C”
The purpose of this group of amendments relating to prison premises is to make supplying or offering to supply new psychoactive substances on prison premises an aggravating feature affecting the seriousness of the offence. It was the Secretary of State for Justice who said in the Commons just three weeks ago that,
“there is an unacceptable level of drug use, both of illegal drugs and so-called legal highs, in our prisons”.
In the same exchange, the chairman of the Home Affairs Committee in the other place said:
“Thirty-five per cent. of prisoners have a drug addiction and 6% acquire that addiction while in prison”.—[Official Report, Commons, 23/6/15; col. 737.]
A succession of inspection reports produced by the prisons inspectorate, covering Highpoint, Bristol, Liverpool and Deerbolt prisons among others, has shown high levels of use of synthetic cannabis.
There is a market in drugs in at least some prisons, and it can lead as well to incidents of bullying, harassment and debt. The taking of psychoactive substances can undermine safety in our prisons. It may exacerbate unpredictable behaviour and the threat of violence and, in certain instances, increase the risk of suicide and self-harm. In a bulletin this month, the Prisons and Probation Ombudsman wrote:
“The use of New Psychoactive Substances … is a source of increasing concern, not least in prison. As these substances are not allowed in prison, and also because they are difficult to test for, it is possible that in addition to the cases in this bulletin there were other prisoners who had used such drugs before their death”.
The bulletin goes on to look at 19 deaths in prison between April 2012 and September 2014 where the prisoner was known or strongly suspected to have been using NPS-type drugs before their death. Continuing, the ombudsman wrote:
“NPS cover a range of substances, and the precise health risks are difficult to establish. However, there is emerging evidence that there are dangers to both physical and mental health, and there may in some cases be links to suicide or self-harm. Staff and other prisoners may be at risk from users reacting violently to the effects of NPS … Trading of these substances in prison can also lead to debt, violence and intimidation. Once again, this creates the potential to increase self-harm or suicide among the vulnerable, as well as adding to the security and control problems facing staff”.
Drug addiction is a key factor that leads to individuals committing crimes, and if some end up in prison as a result of the crimes that they have committed, they ought at the very least to be in a safe and constructive environment where action can be taken to wean them off drugs and be one part of the process of reducing the prospect of them reoffending when they are released from prison. However, that is not always the case. The prison environment is potentially profitable for a dealer because of the vulnerability of many of the people inside and the fact that it is literally a captive market.
The Government have rightly made it an aggravating feature of the offence of supplying psychoactive substances if it is carried out within the vicinity of a school where young people are present at the time of the offence. Young people can be vulnerable; so, too, are many in prisons. People who have already committed offences in part or in whole because of drugs may be vulnerable again when they finish their sentence, particularly if they have continued to take such substances in prison. It is the height of irresponsibility, callousness and indifference to vulnerable people, as well as the height of greed, to be willingly involved in the supply of psychoactive substances on prison premises and in the financial rewards that result, whether through doing it during a visit to the prison as a visitor, or as a rogue member of the prison staff, or as a contractor, subcontractor or supplier working at or in the prison, or as the sender of parcels or letters to the prison containing such substances, or through being a prisoner directly involved in the supply chain of such substances, or by whatever other means. For such people, the penalties for the offence need normally to be greater, because they know, and we know, that they are deliberately targeting with drugs very vulnerable people in a captive location to make money for themselves, and in so doing defeating the objectives of trying to get such vulnerable people off drugs and thus reducing the likelihood of their reoffending once they have served their sentence, to the benefit of society as a whole. There may of course be some involved who have been coerced against their wishes into playing a minor and unwilling role in the supply chain, but if that is shown to be the case, this would need to be taken into account.
In some cases, the prison authorities may feel that such an offence should be dealt with through internal prison disciplinary procedures; but particularly for those who are not prisoners, playing a very minor role, the courts should be the place for such an offence of supply or offering supply to be heard and dealt with, with the statutory requirement to regard supplying psychoactive substances on prison premises as an aggravating factor when determining the seriousness of the offence.
Obviously, court proceedings are not the whole answer or even the main answer to the problem of new psychoactive substances in our prisons. The ombudsman’s report to which I have already referred called for more training and education about the substances for both prisoners and prison staff. This is an issue that I understand the National Offender Management Service has been and is seeking to address.
The level of seriousness of the offence and the likely associated sentence send a message about how a particular kind of offence is regarded and will be dealt with both now and in the future. I hope that the Government will feel able to accept the amendment, which does not weaken but strengthens the Bill and identifies a further area of particularly serious concern where psychoactive substances are supplied in addition to the vicinity of a school already covered in the Bill; namely, on prison premises. I beg to move.
My Lords, Amendments 18 and 20 in this group are in my name and that of the right reverend Prelate the Bishop of Bristol. The theme is the same as that of the other amendments: we are talking about the aggravation clauses in the Bill. Our amendments would enhance the protection available to children under the aggravation clauses in two simple respects: first, by making it a statutory aggravating factor where children live in supported accommodation and are being importuned by potential offenders pushing drugs outside that accommodation; and, secondly, for “vulnerable child” to mean young adults under the age of 18, particularly 16 and 17 year-olds.
I am grateful to the Minister and his officials for their time. Together with the Children’s Society we had a productive exchange, which I found encouraging. I am also grateful for the amount of work done by the church because I know that it has first-hand experience and works closely with the Children’s Society. I hope that the right reverend Prelate will add some of his wise counsel and experience to this amendment.
Two points were fairly made in the course of the meeting yesterday and I shall summarise them quickly. The Minister’s view is that the non-statutory Sentencing Council’s guidelines as currently cast are sufficient. Having reflected on that—it is a fair point to make—I think the House would need to bear in mind that sentencing guidelines are, after all, merely additional factual elements that the courts are not obliged to consider when they weigh in the balance whether to upgrade or downgrade the severity of the sentence in the context of the facts and circumstances of the case in front of them. I do not think we are in agreement on the relative value of non-statutory versus statutory aggravating circumstances and I hope the Minister will reflect on that.
The evidence available to me is that young, vulnerable children are a magnet for drug-pushing offenders. Drug pushers know how to target them and there is evidence that that is happening. There is evidence from the Children’s Society, which I had not seen before—it makes sense when you think about it—that there is an unjustified, assumed prejudice that the hoodie image of a 16 to 17 year-old equates to young people being the authors of their own misfortune. In an insidious way, that plays into some elements of the criminal justice system which think that they are not in need of protection. That is wrong. We need to be clear that many of these 16 and 17 year-olds, although they may present publicly in a threatening or quasi-threatening way, are vulnerable and that some of their behaviour is a result of the damage they have experienced in earlier stages of their lives. We need to discount the negative attitude to younger people when we are considering the protection that they need. They are specifically targeted, both sexually and criminally, by the criminal fraternity. They are very vulnerable and protecting them by making the aggravating factor a statutory protection would help them.
At the meeting yesterday, the Minister again fairly made the point that it is quite tough—the noble and learned Lord, Lord Mackay of Clashfern, made a valuable contribution against me—to define an area outside sheltered accommodation because how would the potential offender, the drug pusher, know that he was outside such a premises? The evidence from the Children’s Society that I saw was compelling. I am not saying that the noble and learned Lord, Lord Mackay of Clashfern, is naive, but in this day and age it is naive to think that people who are about this kind of nefarious business do not know precisely where the 16 and 17 year-olds who are most vulnerable can be found. It would only take you 10 minutes in any local community to find out information of that kind. However, it is difficult to define in statute. When you are trying to prove mens rea beyond reasonable doubt, that is not a defence. It is too easily available to offenders who are arraigned at the bar on a charge of that kind.
My response to that would be that for that reason there is not a great deal of difference between that and being outside a school. The definition of being outside a school in the sentencing guideline is broadly drawn. It includes bus stops on the way to school and places where children gather an hour before and an hour after school. It is not only standing at the school gate that would be a bang-to-rights aggravating factor in the circumstances of any case. The context of supported accommodation is pari passu with the school provision that already exists in the 1971 Act. Indeed, these amendments seek to create a parity and similarity. They are modelled on the provisions of the Misuse of Drugs Act 1971.
These amendments seek to send a strong signal to members of the criminal fraternity that if they do this they cannot avoid the consequences of an aggravating factor being introduced into their sentencing. They will ensure consistency with the provisions of the 1971 Act, oblige courts to take such circumstances into account and increase protection for vulnerable 16 and 17 year-olds.
Again I thank the Minister and the right reverend Prelate for their support for these amendments. These may be narrow points but for the young people for whom we are trying to provide additional protection they are extremely important. I am grateful for the careful consideration the Minister has given to these points and I look forward to hearing what his attitude is now that he has had the chance to reflect further overnight on the useful meeting we had yesterday.
My Lords, I was glad to add my name to the amendments in the name of the noble Lord, Lord Kirkwood, and I thank him for his clear exposition of why they are important. They are intended to strengthen the legislation although, as a result of the conversations with the Minister yesterday, we recognise that there might be some practical difficulties around them. Nevertheless, I hope the Minister will listen carefully and continue the exemplary way in which he has been prepared to engage with colleagues on this issue. I thank him for that.
These amendments are important for a number of reasons. First, those of us who have any kind of jurisdiction around our cities at this time know full well that there are ruthless men and women who will go to any ends to exploit whoever is exploitable—and, of course, children and young adults are a very exploitable group.
Secondly, the Children’s Society—I am grateful for its briefing around this subject—recently polled some 16 and 17 year-olds who had felt the pressure to take drugs and to misuse alcohol. Those who have been able to withstand that pressure made it very clear that the reason they were able to do so was the positive impact of their families on the decisions that they might or might not have made. The flip side of that is that children who have no family in their immediate vicinity are made even more vulnerable by the fact that they may not be living with their family or may have lost contact with them altogether. This is a strong reason for the Minister to give careful consideration to these amendments. As I say, they are meant to strengthen this legislation.
Drugs in general but alcohol and psychoactive substances in particular are supplied not as an end in themselves but as a tool to groom children. Last year in my city 13 men were imprisoned for giving alcohol and drugs to young women and girls, some as young as 13. In return for supplying them with drugs, the girls were expected to have sex randomly with older men. I am sure that all noble Lords are repelled by such things.
I am told that in the north-east a group of young men in so-called supported accommodation was targeted by older men looking to exploit them through criminal activity. The giving of psychoactive substances for free gave these ruthless men the opportunity to say to the young men, “You are now indebted to us and you will pay back your debt with interest”. The result was that they were deployed in aggressive begging and criminal activity. In a way, “supported accommodation” is a bit of a misnomer. These premises are not regulated in the same way as children’s homes. Some 16 and 17 year-olds can be in the company of people who are being rehabilitated from drug addiction or have come out of prison.
I am concerned that careful consideration is given by the Minister and your Lordships’ House to these important amendments. I realise that there is an issue of whether these amendments should be put in legislation or whether they can be dealt with by sentencing guidelines. I believe that there is a problem and would not want to quell any discussion. If this may be a way forward, a note of caution needs to be sounded. There is some anxiety that these older children, to whom the noble Lord, Lord Kirkwood, drew attention, might be overlooked. There is some feeling that, by the age of 16 or 17, a young person might be able to make up their own mind. Therefore, I am not quite sure whether covering this in the sentencing guidelines will give the protection that the noble Lord and I would like.
Let me end where I began, by expressing the firm hope that the Minister, who has been excellent in his engagement over these amendments, might be willing to continue to further discuss these matters. I should be grateful to hear what he has to say this evening.
My Lords, I have put my name to the amendments of the noble Lord, Lord Rosser, in relation to prisoners. In Committee, I was not convinced but what I have learned subsequently has made me very much a supporter of these amendments. Earlier today, we heard the noble Lord, Lord Ramsbotham, talk about the report by the Chief Inspector of Prisons and how it highlights the problems caused by new psychoactive substances in prisons. This morning on the BBC Radio 4 “Today” programme, a prison governors’ representative put new psychoactive substances at the top of the list in terms of what was causing more deaths and violence in prisons. He put it above overcrowding and lack of staffing.
A friend who is a doctor told me that he has to commit people to mental hospitals because of psychosis caused by new psychoactive substances. When one thinks of the increased dangers for people who have psychotic episodes as a result of taking these substances in a confined space such as a prison, the potential consequences clearly make this a serious issue.
The clincher for me is that prisoners are using these substances because they are not detectable in the routine drug testing of prisoners. A deterrent for prisoners who might want to use controlled substances under the Misuse of Drugs Act is that they would show up under those tests. The fact that prisoners are being pushed into using new psychoactive substances because they do not show up in these tests requires an additional sanction against those who supply these substances in prisons. That is why I very much support the amendments tabled by the noble Lord, Lord Rosser.
I turn to the amendments spoken to by my noble friend Lord Kirkwood of Kirkhope and the right reverend Prelate the Bishop of Bristol. The Minister talked about an anomaly when we discussed an earlier group. The anomaly is that selling these substances in the vicinity of schools is covered but that selling in the vicinity of other premises where there are vulnerable young people is not. Supplying these substances to people under the age of 18 again should be an aggravating factor.
I think that in Committee there was a discussion about this amendment not being reflected in the Misuse of Drugs Act, which is why there now is a further amendment tabled by my noble friend Lord Kirkwood to amend the Misuse of Drugs Act in a similar way. I would welcome hearing the Minister’s response as to why it is not an anomaly that schools are covered but other types of premises are not.
My Lords, I apologise that I have not been able to be here for the whole debate. I had meetings earlier and I have others tonight. I thank my noble friend the Minister for the amount of information he has supplied. Indeed, I have not had enough hours in the day to read all the PDF attachments in my email inbox. I am sympathetic to one of the amendments; namely, that relating to children’s homes or places which hold vulnerable children, or whatever is the current correct terminology. Clause 6 creates an aggravated offence for selling drugs outside a school. It seems to me an anomaly if we do not include places which hold even more vulnerable children than those in schools.
I think that in Committee my noble friend said that one of the difficulties would be that everyone can see where a school is—there are big signs and lots of children—but that drug dealers might not know when they are selling drugs in the vicinity of a children’s home. I do not think that that will wash. The bad guys selling drugs know every potential outlet better than anyone else. They will know when there is a children’s home and a potential outlet nearby, and they will target it. I would like to hear from my noble friend the practical difficulties about including children’s homes or places which hold vulnerable children. It seems to me that they are even more important than ordinary schools.
For a few reasons, I am not so sympathetic on the point about prisoners. Drugs are a problem in prison but they should not be. There is no excuse for drugs being in prisons but certain excuses are used. We have, in my view, the ridiculous situation of completely free association. Wives and girlfriends can freely mingle with the prisoners, most of whom are male. They can hug, kiss and cuddle, and they have every opportunity to pass on drugs. I have never understood why we do not have a system where there is a glass screen between the visiting friends and relatives, and the prisoners, so that drugs cannot be so easily passed on.
In 1993, my noble friend Lord Howard of Lympne went to the Home Office. He decided to crack down on drugs and introduced springer spaniel sniffer dogs to some prisons. Two things were immediately noticeable. First, as soon as the relatives saw the dogs, they had to return to their cars to deposit the goodies that they were about to take into the prison. Secondly, there was resistance from a large number of prison officers and governors about the policy. I apologise to that very trendy trade union, the Prison Officers Association, if I misquote it. However, I was told at the time by prison officers that, if you are looking after 700 men in prison, you have to reduce the tension level. The way to reduce the tension level then was to let them have illegal access to drink, drugs and pornography. That reduced the tension levels, they said. Therefore, I do not have much sympathy for prison governors who say that there is a problem with drugs in prisons and the Government should do something about it. They have it in their own hands to tightly control drugs in prisons. However, if the noble Lord, Lord Paddick, is right that it is impossible to test for some of these psychoactive substances, we need to make sure that visiting relatives are not able to pass them on. I would be amazed if little sniffer dogs were unable to detect them. It may be difficult to do so with a blood test, but we now read in the press about sniffer dogs which can detect almost anything. Some dogs can detect whether you are about to have an epileptic fit and it should be possible to have a tighter control regime.
Finally, why stop at prisons? I consider nightclubs to be an even bigger problem. If we are to have an aggravated offence of selling drugs outside schools, what about an aggravated offence of selling them in nightclubs, or near nightclubs where young people hang out? Again, that is a large captive audience. Perhaps we should have an aggravated offence for people in positions of responsibility who commit this offence. A tiny minority of military officers or police officers may be tempted to commit this offence, but perhaps it could be an aggravated offence. Off the top of my head, I can think of a few areas where I would like to see an aggravated offence introduced, but it may be best to restrict it to schools, with the possible addition of children’s homes.
My Lords, whatever I may think about the general principle of the legislation, if we are to have it, I am sure it is right that there should be aggravated offences where the interests and protection of children are concerned. I support the extension of that principle to prisoners. I applaud my noble friends for tabling their amendments and other noble Lords for their amendments, and for supporting the various amendments in this group.
I say to the noble Lord, Lord Blencathra, who is set fair to close down the whole country, as far as I can see, that I understand that one of the difficulties that prison governors now face is that it has become a not uncommon practice for family members to send letters to prisoners on paper which they have previously soaked in a psychoactive substance. When the prisoner receives the letter, the thing to do is to smoke it. Therefore, this is not as straightforward an issue, as the noble Lord, of course, with his experience, very well knows. However, these are good amendments and should be supported.
My Lords, I support the amendment of my noble friend Lord Rosser. As some of your Lordships know, I have spent a certain amount of time in the last year or so visiting prisons in respect of the review that I have carried out for the Ministry of Justice on self-inflicted deaths of young people in prison. Psychoactive substances were not a prime element of our report, although the Prisons and Probation Ombudsman’s report issued in the last few days highlighted their increasing significance. I was struck by a discussion with the head of healthcare in an establishment who, when I asked about the level of drug use in the prison, said instantly one word, “Rife”, to the embarrassment of the deputy governor accompanying us. That goes to the point made by the noble Lord, Lord Blencathra, about the prevalence of drugs in prisons, and the growing proportion of them which are these new psychoactive substances. The reason they are a growing proportion is because of their undetectability and the fact that it becomes more difficult to identify and prevent them. That is why it is important to have an aggravating factor with regard to the supply of these substances in prisons.
The Government have already legislated to prevent people throwing things over the prison wall. Although that has been reported to me as a significant problem, I am not convinced that it is the main source of drugs in prisons, nor do I think that it is the most difficult source of drugs in prisons to deal with because it is pretty obvious where things have been thrown over the wall and no doubt somebody could pick them up before the prisoners do so. However, drugs brought in from outside are often brought in by individuals. The noble Lord, Lord Blencathra, talked about issues with visiting families and friends. I think that we should also examine the possible role of prison officers in this regard. Although this is not relevant to the report I was doing, I noticed the very different search regimes that exist in prisons for visiting dignitaries such as myself and those who are visiting because they are friends or family of prisoners, all of whom are subjected to fairly rigorous search regimes these days, and the apparent complete absence of similar search regimes for prison staff. These things should be examined as there is clearly a mismatch in that area.
Again, it was right for the noble Lord, Lord Blencathra, to highlight the fact that there seems to be an underlying current of people saying, “The only way that you can maintain good order in prisons is for there to be a certain level of availability of these things”. That is not the right approach—the right approach is to ensure that there is sufficient staffing, purposeful activity and focus on education and rehabilitation in the prison to ensure that availability of these things is no longer the mechanism to deliver good order. In the context of the report from the Prisons and Probation Ombudsman in the last few days and the report issued today by the Chief Inspector of Prisons, and given the level of the problem that exists in prisons, I hope that the Minister will feel able to accept my noble friend’s amendment.
My Lords, there is no doubt that one can think of serious aggravating factors in relation to these offences. In Committee I supported the amendment tabled by the noble Lord, Lord Rosser, and the amendments proposed by the noble Lord, Lord Kirkwood. However, I understand the difficulty that there are so many possible aggravating factors that it is very difficult to cover them all adequately, and that as they change and the circumstances change, the description of these aggravating factors may change. One of the problems is that, if you specify aggravating factors, the courts are apt to proceed on the basis that these are the aggravating factors that Parliament thought were important. Therefore, when the judge comes to pass sentence, he is inclined to give these full emphasis and possibly place less emphasis on other aggravating factors that may occur in a particular case.
At the time of the introduction of the Misuse of Drugs Act, when provision was made for aggravation, the statutory system of sentencing guidelines which has since been introduced did not exist with its statutory authority, which is binding to a substantial extent on the discretion of judges. That system has the great advantage of flexibility. To take the example of children’s homes, let us suppose it emerged that the people who were seeking to take advantage of vulnerable children had changed their method and, instead of trying to give these drugs out near the children’s home, found some way to get them into the children’s home so that they were possibly given to the children by others. I do not know exactly how this sort of thing might happen, but these situations can develop. These people are set on trying to overcome any obstacle to distributing their drugs to all who will take them, and to a greater and greater extent, if possible. I wonder whether it would be best no longer to have a provision for particular aggravation in the individual statute, but to rely on—and if necessary make reference to in the individual statute—the sentencing guidelines system, which is a flexible, influential and effective system within the criminal justice system as a whole. That has certain advantages, but it certainly would not work against a background in which a new Bill had other aggravating factors. Then, the question is: are the sentencing guidelines’ aggravating factors more or less important than those in the statute, if they happen to be different?
As I have said, I support the theory behind the amendments, but I wonder whether the more effective way of operating this within the criminal justice system is to make these amendments references to the sentencing guidelines. Instead of having a list of aggravating circumstances—conditions A, B and C—perhaps the statute before us should refer to the fact that aggravating circumstances are set out under the sentencing guidelines, for which the Coroners Act has statutory authority. That might be a more effective way of dealing with this matter—focusing on individual circumstances that are important and may change. Both the circumstances referred to—involving children, and prisons—are vital in the fight against the damage caused by such substances. Therefore, whatever happens, I want an effective method of treating these circumstances as aggravating circumstances to be before the courts on all occasions.
Thank you. I always get a little bit worried when the opposition Chief Whip appears in the Chamber towards the end of a debate on an opposition amendment. Anyway, I am sure that it has not pre-empted my response.
I want to put on the record that the noble Lords, Lord Rosser and Lord Kirkwood, are raising matters of enormous importance. That is why when they were raised in Committee, we undertook to reflect deeply on what was said. We organised a meeting with the Children’s Society, and there have been conversations since.
It would be helpful for those who picked up on the point made by my noble and learned friend Lord Mackay to be aware of the context in which we have to consider these amendments, because it is not immediately straightforward—or at least, it was not to me. The Misuse of Drugs Act 1971 contains no aggravating factors —the point that my noble and learned friend referred to. They were introduced in the Drugs Act 2005, which amended the 1971 Act and introduced an aggravated offence of supplying a controlled drug in the vicinity of school premises. The Coroners and Justice Act 2009, which was introduced under the previous Labour Government, stipulated that the courts must have regard to the sentencing guidelines. So, we moved from having nothing to having several statutory aggravating factors, and then to the commitment that the courts must not only pay due regard to but follow the sentencing guidelines. In February 2012, the Sentencing Council issued drugs offences definitive guidelines, which are the ones the courts are currently working from.
The guidelines describe the statutory aggravating factor:
“Offender 18 or over supplies or offers to supply a drug on, or in the vicinity of, school premises either when the school is in use as such or at a time between one hour before and one hour after they are to be used”.
Because that was put in the 2005 Act, which amended the 1971 Act, we, in preparing the Psychoactive Substances Bill, decided to follow through with that statutory provision. That is how we have arrived at this point. It was not a case of wanting to include some things and not others; we were simply following through in a consistent way the existing statutory amendments to the Act.
However, the sentencing guidelines provide other aggravating factors, for example:
“Targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18”.
That is very clear guidance. As a result of the 2009 Act, the courts have to follow that guidance.
Some particularly powerful examples have been given in the debate, for example by the right reverend Prelate the Bishop of Bristol. Others were drawn from the Children’s Society, a meeting with which the noble Lord, Lord Kirkwood, and the right reverend Prelate the Bishop of Portsmouth attended yesterday. We listened to examples whereby new psychoactive substances are used as a tool to groom young vulnerable children and to lure them into a dependency on criminal gangs. It was reminiscent of the debate we had during consideration of the Modern Slavery Bill, when we heard about the use of such tools to elicit dependency. However, it is clear that the sentencing guidelines refer to premises in which the intention was to locate vulnerable individuals.
Essentially, the debate on these amendments distils down to whether we deal with everything in statute—in other words, we turn the clock back to before the Sentencing Council, before the guidelines, before the coroners’ board and before the 2005 Act—or we take robust action to ensure that the guidelines are updated and reformed to reflect the concerns that have been drawn to our attention, not least by Her Majesty’s Inspectorate of Prisons, as we heard this morning, by the Prisons and Probation Ombudsman, by the Children’s Society and by others. Of course, the report of the noble Lord, Lord Harris, on deaths in custody, was published a couple of weeks ago, and I am sure the Justice Secretary is considering it.
All these things have to be taken into account, and I undertook to explore this issue with my right honourable friend Mike Penning, who leads on this policy area and is a Minister not only in the Home Office but in the Ministry of Justice. In the days when the Home Office used to deal with everything to do with prisons, some of these decisions were slightly easier to make; however, in Mike Penning we have someone who is a Minister in both departments.
We had a long discussion this morning about this. The view was that we wanted to listen carefully to what has been said. It was drawn to our attention immediately, particularly with the potential targeting of children’s homes and accommodation, and the examples that we have heard from the Children’s Society and the church, that action needed to be taken. My right honourable friend the Minister for Policing, Crime and Criminal Justice will therefore be writing to the chair of the council, the Right Honourable Lord Justice Treacy, to draw this debate to his attention and to invite the council to take your Lordships’ views into account when considering what changes to the guidelines on drugs may be required as a consequence of the enactment of this legislation. That is going to happen.
I think and I hope that that might go some way to addressing the amendment of the noble Lord, Lord Kirkwood, in particular, and with the promise that we want to continue the dialogue with the Children’s Society, which I thought was immensely helpful, as this legislation goes through—
I am grateful to the Minister for that very helpful suggestion. For the avoidance of doubt, the intention of our amendments is to treat school environments and supported accommodation environments pari passu within the legislation so that they are on a par. I am agnostic about where the provision lies as long as they are treated equally across the legislative platform.
The other thing, of course, is that there is a different set-up in Scotland. I hope that the offer the Minister has made to write would be to other jurisdictions and criminal justice systems within the United Kingdom—if he has that power.
Perhaps I might assist the House. Of course, this is a devolved matter and it would be for the Scottish Parliament to deal with the question of sentencing. But the reality is that the courts in Scotland take into account aggravating factors such as drug offences committed in prison, and it is a matter of practice in Scotland that judges will impose a higher sentence on someone who has introduced drugs into prison. I am pretty confident that that would follow in Scotland if this Act comes into being.
I am very grateful for that. Perhaps we should take a little bit more time over this. There are some provisions in the current statutory guidance; for example, if the offence occurs in the vicinity of a school one hour before or one hour after—so the vicinity of a school is defined. My first instinct—this is not our official position because we are discussing this—is that the terminology should be something around targeting any premises intended to locate vulnerable individuals or the supply to such individuals, so perhaps a broader range might be helpful in this regard. That will certainly be contained in that provision. We are going to write to the Sentencing Council. We will wait to see whether the Sentencing Council responds as quickly as the ACMD to letters from the Home Office, but we may have some responses in the latter stages of the Bill as to what its thinking is.
Whether we use the sentencing guidelines or statute to tackle these issues, particularly prisons—and I am very mindful of the examples that were given and, of course, the remarks of my noble friend Lord Blencathra about anomalies—in the current statutory sentencing guidelines aggravating factors include an offence committed while on bail or licence, but there does not seem to be reference to an offence committed while being detained in prison. Of course, that is because the argument is that these are covered by prison regulations but there is no doubt, just as the Children’s Society said, that over the past few years new psychoactive substances have gone from being an issue that was barely ever mentioned to now being its top concern. To have that example given this morning on the “Today” programme, with someone saying that this comes ahead of many other pressures—top of the list of concerns—shows that it is clearly growing in importance. Of course, the intervention of the ombudsman adds to that.
In the light of that and the letter that my right honourable friend Mike Penning will write to the Sentencing Council to ask it to take into account the views expressed in your Lordships’ House in this debate, including on this amendment, about the problem of these new psychoactive substances in prisons and on the prison estate, it may be that there is scope to go further on this issue. But I would be very happy to continue a discussion with the noble Lord, Lord Rosser, about how we might go further, particularly on whether the personal possession of new psychoactive substances in prison should be an offence. I am very happy to look at whether we could go further on that and perhaps look at an amendment that could be introduced later on.
I should also make the point that going down the route of the sentencing guidelines we have laid out here is probably more likely, because it goes with the grain of the current process of advising on sentences and for the courts to have regard to that. We should wait to see the Sentencing Council’s response to my right honourable friend Mike Penning’s letter, which has either gone today or will go tomorrow, and see if there is more that can be done at a later stage. I believe that we are travelling in the same direction here. We recognise that this is a growing problem. We want to deal with it and it is a question of what is the most effective way to ensure that yet again we do not create unintentional loopholes, which are exploited by the people who are the very target of this legislation. In that spirit, perhaps the noble Lord might consider withdrawing his amendment.
Before I respond, could I be clear about what the Minister is or is not offering? Is he offering to come back at Third Reading on this issue? I sense that he is not, but he is the one who has to tell me if he is talking in those terms, which obviously would influence my decision. He has not, as I understand it, made any commitment to provide amendments along the lines we have suggested when the Bill reaches the Commons either. If I have understood him correctly—that he is not offering to come back at Third Reading on this issue of prisons and he is not offering to table amendments along the lines of our amendment in relation to prisons when the Bill is in the Commons—that will influence what I have to say. But I am asking the Minister to say whether he is offering to come back at Third Reading or to table amendments along the lines of our amendment to the Bill when it gets to the Commons.
The principal point, which is about dealing with the issue of prisoners, is partially dealt with by the action that is being taken today or tomorrow—we do not have to wait until Third Reading—which is the letter from the Minister for Policing, Crime and Criminal Justice to the chair of the Sentencing Council, asking him to take into account the views of your Lordships’ House expressed in these two areas.
The noble Lord will know, from when he was in government, that a certain process needs to be gone through before formal amendments can be laid. To be entirely frank, I doubt whether I can go through all that process of the communication with the different departments and get the clearance to lay an amendment in time for Third Reading. It is likely to be when the Bill arrives in another place. None the less, I hope that the noble Lord might feel that there is enough there, along with our good will in supporting the thrust of what he is seeking to do, for him to withdraw his amendment at this stage.
The Minister has not given me a commitment to come back at Third Reading, and I am not surprised. Neither is there a commitment that when the Bill gets to the Commons, amendments along the lines that I am proposing will be put into the Bill by the Government. I think that is a fair summary of what the noble Lord has said.
I am also reflecting on some of the arguments that have been made. There is an argument in relation to the 2005 Act; there have been others as if to say, “We don’t want to put things in the Bill because circumstances may change”. In thanking all noble Lords who have spoken in this debate, I say that the reality is that—for the reasons that the Minister explained —the Bill contains a provision that it will be an aggravating feature to supply or offer to supply such substances in the vicinity of a school. Indeed, as I understand the Minister to have said, that has been in legislation for some time. In other words, this issue has not arisen and then suddenly moved on or disappeared.
Likewise, the issue of drugs in prison is not particularly new. We have an issue with new psychoactive substances because they are relatively recent. We are also in a situation where the issue is clearly significant in prisons. It has been commented on by the Chief Inspector of Prisons and by the ombudsman. It has even been commented on by the Secretary of State for Justice. I do not think that the Minister is going to come to the Dispatch Box and tell me that he has any reason for believing that the issue of drugs in prisons is going to disappear in a short time.
This is an issue which needs addressing, and in the same way as the issue of supplying or offering to supply in the vicinity of schools has been addressed—namely, by making it a statutory aggravating feature reflecting the seriousness of the offence. It is of course then for the court to determine what the sentence will be in the light of that aggravating feature. The Minister has said that this is an opportunity and that we can express our views. The best way to do that would be by taking a vote to see whether the House is of the view that such an offence—of supplying or offering to supply new psychoactive substances on prison premises—should be an aggravating factor increasing the seriousness of the offence, as it will continue to be under the Bill for supplying in the vicinity of a school.
We already have that continuing provision in the Bill about supplying or offering to supply in the vicinity of a school. In the light of that, the argument has been made that there is an equally serious issue in relation to our prisons—and frankly, there is no evidence that it is about to disappear. The problem in relation to drugs has been there for some time. The issue of the new psychoactive substances is an opportunity for the House to express its view that it should be an aggravating feature affecting the seriousness of the offence. The court would then have to decide what the sentence will be by taking that into account. I wish to test the opinion of the House to see whether it agrees with me on that.
Before the noble Lord sits down, just to be clear to those who are listening to this point in the debate, we are not arguing about whether it will be an aggravating factor. The Minister has written to the chair of the Sentencing Council, so it is not in doubt that we are looking at ways in which it will be an aggravating matter. The question is whether it should be a statutory one on the face of the Bill or one which, as a result of legislation which his Government passed in 2005 and 2009, now rests within the responsibility of the Sentencing Council to determine. That is really what is at issue.
Division on Amendment 17
Consideration on Report adjourned until not before 8.27 pm.