Motion on Amendment 1
1: Clause 1 page 1, line 5, after “9” insert “and (Possession of a psychoactive substance in a custodial institution)”
My Lords, I beg to move that this House agree with the Commons in their Amendment 1.
Noble Lords will recall the debate on Report in this House on 14 July, on the use of psychoactive substances in prisons. The noble Lord, Lord Rosser, then argued that the supply of psychoactive substances in prisons was of such concern that it should be made a statutory aggravating factor under Clause 6 of the Bill.
In response, I recognised that the use of psychoactive substances by prisoners represented a significant challenge to the welfare of prisoners and the safe and secure management of prisons. While expressing sympathy for the noble Lord’s amendment, I argued that the promulgation of further aggravating factors was properly a matter for the Sentencing Council. That being the case, I undertook to write to the Sentencing Council to draw its attention to the debate, which the Minister for Policing, Fire and Criminal Justice and Victims has now done. I also argued that it would be worth looking at alternative ways of addressing this problem, including introducing an offence of possession of a psychoactive substance in prison. Your Lordships’ House was not persuaded that these undertakings went far enough and consequently agreed the amendment put forward by the Opposition.
Having reflected on the debate on Report, the Government are content that the supply of, or an offer to supply, a psychoactive substance in prison should be treated as a statutory aggravating factor. Commons Amendment 5 therefore simply makes drafting improvements to the amendment passed by this House in July. Specifically, the amendment replaces the reference to “prison premises” with the term “custodial institution” and then defines this term to include adult prisons and their juvenile equivalents, service custody premises and immigration detention accommodation. Immigration detention centres are not, of course, penal institutions, hence the adoption of the term “custodial institution” as an alternative to the reference to prison premises.
Commons Amendment 6 brings forward subsection (9) of Clause 6 and simply improves the logical flow of the clause.
As I indicated in July, the Government were giving separate consideration to the case for including in the Bill an offence of possession of a psychoactive substance in a custodial institution. The case for this is essentially the same as the one set out by the noble Lord, Lord Rosser, when he put forward his amendment to Clause 6. The presence of psychoactive substances in prisons is a destructive and growing problem. The use of psychoactive substances—now the drugs of choice among prisoners—has been linked to mental health problems and disturbed behaviour by prisoners, including violence. It is having an increasingly destructive impact on security and order in prisons and on the welfare of individual prisoners. In a bulletin published in July, the Prisons and Probation Ombudsman identified 19 deaths in prison between April 2012 and September 2014 where the prisoner was known, or strongly suspected, to have been using psychoactive substances before their death.
Control and order are fundamental foundations of prison life. Without them, staff, prisoner and visitor safety cannot be guaranteed and the rehabilitation of prisoners cannot take place. We have already introduced a number of measures to tackle the use of psychoactive substances in prisons. These include training of specialist dog teams to search and detect synthetic drugs in prisons in England and Wales; searching cells for hidden drugs; patrolling prison perimeters; and searching visitors to prevent drugs from being smuggled in. More than 120 dogs have now received special training in psychoactive substance detection and we will have trained more than 300 dogs by the end of the calendar year. Other measures include a major push on prison communications to make sure that offenders are aware of the consequences of taking psychoactive substances —as are visitors who attempt to bring them in—and the introduction of new drug tests in the coming months to identify prisoners using psychoactive substances.
Nonetheless, the use of psychoactive substances remains significant and pervasive in prisons. A possession offence in prison—as provided for in Commons Amendment 9—will enable the police and Crown Prosecution Service to pursue cases where prisoners, visitors or staff are found with small quantities of psychoactive substances in prisons. The introduction of such an offence will support our stance that the use of psychoactive substances in prison is not to be tolerated.
Many instances of simple possession by prisoners can often effectively be dealt with by the internal prison disciplinary service. Where joint working between prisons and the police identifies a particular problem with psychoactive substances in a prison, a prison possession offence could be used very effectively and might just deter some of those involved. Under the Misuse of Drugs Act 1971, possession offences quite properly attract lower maximum sentences compared with production, supply and importation offences, and so it is here. While the offences in Clauses 4 to 8 of the Bill have a maximum penalty of seven years’ imprisonment, Commons Amendment 10 to Clause 9 provides for a maximum penalty for this new offence of two years’ imprisonment. Commons Amendments 1, 21, 22, 27, 31 and 34 to 37 are consequential on Commons Amendment 9. General possession of a psychoactive substance in the community will continue to not be a criminal offence. This reflects the recommendation of the expert panel that the focus of the legislation should be on tackling the trade in psychoactive substances, but as I have set out, the problems caused by the use of psychoactive substances in prisons are such as to justify a targeted possession offence that applies only in the context of possession in prisons or other custodial institutions.
The Government have listened to the arguments put forward by this House for strengthening the Bill to tackle the particular harms caused by the use of psychoactive substances in prisons and other custodial institutions. Having pressed for such strengthening of the Bill, the House will, I am sure, join me in welcoming these Commons amendments.
My Lords, as the Minister has said, this group of amendments indicates that the Government have accepted the view of this House, as expressed through the carrying of an amendment on Report, that when sentencing an offender for the offence of supplying or offering to supply a psychoactive substance, it should be regarded as a statutory aggravating factor if that offence took place on prison premises. The only change the Government have made is to replace the reference in the Lords amendment to “prison premises” with “custodial institution”, and we welcome the Government’s decision to accept the view of the House on this matter.
However, this group of amendments also provides for a new offence of possession of a psychoactive substance in a custodial institution as opposed to the far more serious issue of supplying such substances, which is now already covered in the Bill. The new offence of possession will cover inmates, visitors and staff in prisons with, I think, the maximum penalty being two years’ imprisonment, an unlimited fine, or both. Thus, the only new power the new offence would give is the ability further to punish inmates and others in a prison for possessing psychoactive substances for their own use, as opposed to supplying them to others. Since those who run our prisons already have powers to discipline and punish inmates for possessing controlled psychoactive substances, I ask the Minister this: where has the late pressure come from to create this new offence, since the Government did not previously think it should be provided for in the Bill? Has the pressure come from those running our prisons, or from the Prisons and Probation Ombudsman or the Chief Inspector of Prisons, who have both certainly expressed concern about the impact of psychoactive substances but neither of whom, as far as I am aware, has called for a new offence of possession? What they have argued is that better and more effective detection mechanisms need to be in place to detect psychoactive substances in our prisons, along with more frequent drug testing.
Is not the reality that, for those who possess psychoactive substances in the confines of our prisons, where the bullying and violence associated with the existence of such substances has already been identified by the Chief Inspector of Prisons, the need is to regard this primarily as a health issue and to focus on education with an appropriate drug education and awareness strategy? What are the Government actually doing to combat possession of new psychoactive substances for personal use through these means, which are surely likely to be more effective, if the resources are provided, than the new offence proposed in this group of amendments? Is that not the support that those who run our prisons really need to address this issue, along with the resources to provide effective detection mechanisms and more regular drug testing? Are not those the resources that this Government have so far been failing to provide, as, in my opinion, the Minister implicitly acknowledged in his opening comments? What is the Government’s estimate of the reduction in the personal use of psychoactive substances in our prisons that will result from the creation of this new offence, and on the basis of what information was that estimate made?
Finally, will this new possession offence in prison for inmates, visitors and staff also apply to poppers? I ask this in view of the support there has been, including from the Commons Home Affairs Committee, for adding poppers to the list of exemptions to the ban on psychoactive substances because of the potential consequences of such a ban in this case. In the light of the decision by the Home Secretary to refer the issue of poppers for further consideration by expert bodies, do we really want to create a new possession offence in respect of a substance which is popular in some sections of the gay community, has been used recreationally in Britain for more than 30 years and has not so far been banned by any Government, given the likelihood that within the next few months a decision could be made as a result of expert consideration that it should continue to not be banned?
Having said that, and having made my points, I want to make it clear that we certainly do not intend to oppose the Commons government amendments creating the new offence of possession, but we want answers to the points that I have raised.
My Lords, the situation described by the Minister is very serious and seems to lead directly to issues of prison reform—drugs being one of the considerations—but one would want to look at far wider causes than how concerns about prison manifest themselves in this issue. I wondered what ingenuity might be applied to introduce the issue of poppers, since it would be quite difficult to provide an amendment to the government amendments to deal with that, so I congratulate the noble Lord, Lord Rosser, on finding a way to introduce the subject.
We, of course, will not oppose these amendments, but I must say that we will now have possession of a controlled drug being an offence, possession of a new psychoactive substance not being an offence, but possession of a new psychoactive substance in prison being an offence. In our view, that is too muddled but, of course, at earlier stages of this Bill we were calling for a widespread health-based review of all drugs laws, so I am sure that the Minister will not be entirely surprised that I make that comment.
My Lords, I warmly endorse all that the noble Lord, Lord Rosser, has said. One aspect of Amendment 9 that the Minister mentioned was that a number of improvements were being made in prisons to the detection of new psychoactive substances. I should like to refer particularly to a very powerful report published last month by the Chief Inspector of Prisons on the use of new psychoactive substances. He said:
“Drug misuse is a serious threat to the security of the prison system, the health of individual prisoners and the safety of prisoners and staff”,
but the new psychoactive substances are an even more serious offence and,
“are now the most serious threat to the safety and security of the prison system”.
Because dealing with the new psychoactive substances—searching for them and so on—was so patchy in the Prison Service, the Chief Inspector of Prisons recommended:
“The Prison Service should improve its response to current levels and types of drug misuse in prisons and ensure that its structures enable it to respond quickly and flexibly to the next trend”.
I will mention the next trend before I conclude. The chief inspector recommended:
“A national committee should be established, chaired by the Prisons Minister, with a membership of relevant operational experts from the public and private prison sectors, health services, law enforcement, substance misuse services and other relevant experts. The committee should be tasked to produce and publish an annual assessment of all aspects of drug use in prisons, based on all the available evidence and intelligence, and produce and keep under review a national prison drugs strategy”.
If that annual report was required, it would, of course, cover the possession mentioned in the amendment that we are discussing, but I am particularly concerned that, in briefing the cross-party group on criminal justice, drugs and alcohol that I chair, the chief inspector mentioned the next trend causing him and his inspectors even more worry, which was the introduction of powdered alcohol. Therefore, we must have a system in place that monitors trends as well as current practices. I ask the Minister: what is happening about the establishment of such a national committee?
My Lords, I thank the noble Lord, Lord Rosser, for his welcome of the amendment and other noble Lords who have spoken in favour of it. It is important.
The noble Lord asked a number of questions on whether the offence will apply only to prisoners. This is an important point to address to the noble Baroness, Lady Hamwee. The new offence will apply to all persons in possession of a psychoactive substance in prison. It is not particularly targeting prisoners themselves, so it could include visitors—or staff, for that matter—who possess these new psychoactive substances.
The noble Lord asked what pressure had come for this. Pressure came from a number of sources, including those that argued in favour of his amendment last July. Although it was not originally one such pressure, the noble Lord, Lord Ramsbotham, has brought to the fore the impressive and disturbing report of Her Majesty’s Chief Inspector of Prisons, called Changing Patterns of Substance Misuse in Adult Prisons and Service Responses, from December 2015. As the noble Lord has quoted, the chief inspector has said that new psychoactive substances,
“have created significant additional harm and are now the most serious threat to the safety and security of the prison system that our inspections identify”.
The noble Lord is absolutely right to identify this. I spoke in my introductory remarks about the additional dogs being trained for inspections, but it is right—the noble Lord, Lord Rosser, asked for this—that there should be a major push on prison communications to ensure that offenders are aware of the consequences of taking psychoactive substances, as are visitors attempting to bring them in. New drug tests are also being developed in this area.
I know that it was slightly ingenious to bring poppers into this group. I had prepared some remarks to address that in the second group of amendments. If noble Lords will allow me, I will address my remarks in that setting, lest I duplicate them.
On the prison drugs strategy, the idea that the noble Lord, Lord Ramsbotham, suggests is very interesting. While I cannot give a firm undertaking today, I would want to speak to the Prisons Minister, Andrew Selous, about this suggestion. I will get back to the noble Lord on whether a national committee could do this. Again, we are conscious of the constantly changing nature of this. In many ways, that was the argument for the blanket ban on psychoactive substances, rather than the whack-a-mole situation we were in before, where new things popped up as other things were outlawed.
With those comments and promises to get back to noble Lords on specific points of interest and to address further concerns in the next group, I beg to move.
Motion on Amendments 2 to 4
2: Clause 1, page 1, line 7, leave out “Section 10” and insert “Section (Exceptions to offences)”
3: Clause 4 page 2, line 32, leave out from “subject to” to end of line 33 and insert “section
(Exceptions to offences) (exceptions to offences).”
4: Clause 5 page 3, line 14, leave out from “subject to” to end of line 15 and insert “section
(Exceptions to offences) (exceptions to offences).”
My Lords, in drafting this Bill, we have adopted a similar approach to that taken by the Republic of Ireland’s Criminal Justice (Psychoactive Substances) Act 2010; namely, setting out a broad definition of a psychoactive substance and then circumscribing it with a robust set of exemptions to narrow the Bill’s scope. The current list of exempted substances in Schedule 1 includes substances controlled through existing legislation, such as alcohol, tobacco and nicotine, medicinal products and controlled drugs, and substances where psychoactive effects are negligible, such as caffeine and foodstuffs.
I am delighted to see my noble friend Lady Chisholm of Owlpen in her place with me on the Front Bench. During the Bill’s passage through this House, my noble friend responded to amendments tabled by the noble Baroness, Lady Meacher, and the noble Lord, Lord Rosser, and agreed that we should look again at the drafting of the Bill with a view to strengthening the exemptions for medicinal products and research. As my noble friend Lady Chisholm made clear on Report in July, the Government have no intention through this Bill of fettering the discretion of clinicians to prescribe or direct the supply of substances which, in their clinical judgment, meet the needs of their patients. My noble friend also made it clear that we have no intention of constraining bona fide scientific research. This Government attach the highest priority to research and are committed to removing—or not putting in place—unnecessary regulatory barriers that impede that research in the UK.
During the summer, the Home Office worked closely with a range of public and private organisations to address both points, and I am confident that the new formulation put forward in these Commons amendments effectively responds to the issue and ensures that we have a robust list of exemptions.
Let me deal first with the definition of a medicinal product in Schedule 1 to the Bill. One concern put to us by the noble Baroness, Lady Meacher, was that the definition did not cover so-called “specials”; that is, products which are used in healthcare but have no marketing authorisation. These products have been manufactured or imported, to the order of a doctor and certain other medical practitioners, specifically for the treatment of individual patients to meet their special clinical need.
It is not our intention that medicinal products regulated under the framework provided for in the Human Medicines Regulations 2012 should be caught by this Bill. In defining a medicinal product by reference to a product with certain types of marketing authorisation, we were, on reflection, not casting the net widely enough. Commons Amendment 41 properly aligns the Bill with the regulatory framework for medicines. The Home Office worked closely with the Department of Health and the Medicines and Healthcare Products Regulatory Agency during the summer to revise this exemption.
Following careful consideration, Commons Amendment 41 uses the definition of a “medicinal product” as defined in Regulation 2 of the Human Medicines Regulations 2012. This would mean that any substance which falls within the following definition would be caught by the exemption and so would be outside the scope of the Bill:
“(a) any substance … presented as having properties of preventing or treating disease in human beings; or … (b) any substance … that may be used by or administered to human beings with a view to … (i) restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action, or … (ii) making a medical diagnosis.”.
The Human Medicines Regulations consolidate the law of the United Kingdom concerning medicinal products for human use, including their authorisation, manufacture, distribution, importation and sale. I can assure noble Lords that we are satisfied that this revised definition covers all medicinal products that are approved for use in the UK. This definition includes investigational medicinal products, homeopathic medicinal products and traditional herbal medicines. That being the case, we can dispense with paragraphs 3 to 5 of Schedule 1, and Commons Amendment 42 removes them accordingly.
The Medicines and Healthcare Products Regulatory Agency will remain the body which regulates activity in relation to medicinal products, whether they are authorised or not, and these amendments and the Bill will not encroach on that. The MHRA is already called upon to determine whether a product meets the definition of a “medicinal product”. This will be an important role going forward to assist with ensuring that the exemption for medicinal products is relied on only in appropriate cases. Our approach will ensure that the regulatory frameworks for psychoactive substances and human medicines complement rather than overlap each other and ensure that the public are properly protected for medicinal and non-medicinal psychoactive substances.
Having dealt with the changes to the list of exempted substances, I now turn to exempted activities. Commons Amendment 11 provides that it would not be an offence under the Bill for a person to produce, supply, offer to supply, possess with intent to supply, import or export, or possess in a custodian institution a psychoactive substance if, in the circumstances in which it is carried by that person, the activity is an exempted activity. Commons Amendment 43 then sets out the list of exempted activities. These fall into two categories. The first exempts legitimate activities of healthcare professionals, while the second covers research. I will explain both in turn.
The exemption for healthcare-related activities will cover healthcare professionals acting in the course of their profession, and ensures that the Bill will not fetter their discretion as clinicians. At the moment a healthcare professional is free to prescribe or direct the supply of any psychoactive substance that is not a medicinal product as defined by the Human Medicines Regulations if, in their clinical judgment, this is in the best interests of the patient. While we do not have specific examples of such substances in mind, we wish to ensure that the Bill does not fetter clinicians’ freedom in this regard.
Commons Amendment 11 will ensure that, either now or in the future, a healthcare professional will not be hindered in offering treatment which in their clinical judgment is right for their patient. There are separate rules, in particular in relation to controlled drugs, which govern which substances a healthcare practitioner can and cannot prescribe which are unaffected by this exemption.
We have defined a “health care professional” using the existing definition in Regulation 8 of the Human Medicines Regulations 2012. This definition includes a doctor, dentist, pharmacist, nurse and midwife among others. The exemption also extends to people who supply substances to patients in accordance with a prescription issued by a healthcare professional, or at their direction.
Turning to research, while the inclusion of investigational medicinal products in Schedule 1 signalled our intention to exempt research activity, the Government recognise that the exemption fell short of what was required and, as such, failed to cover all research which could be caught by the Bill. I am grateful to the Academy of Medical Sciences and to noble Lords for raising this issue. The Home Office has reconsidered this issue and, after consulting the Department for Business, Innovation and Skills, the Department of Health, the Health Research Authority, the Government Office for Science, the Academy of Medical Sciences, the Association of the British Pharmaceutical Industry and the devolved Administrations, we have identified a revised approach.
Given that a wide range of bodies might undertake relevant research, our approach has been to frame the exemption around research which has received appropriate ethical approval from an ethics review body. We understand that all research which will be caught by the Bill should receive such approval. We have discussed this approach with the Academy of Medical Sciences and others in the research community, who are content with our approach.
All research that is approved by one of the Health Research Authority’s research ethics committees will be exempted and, as the Health Research Authority’s remit covers health and social care research, we expect that this will be a major mechanism for the exemption of research. We acknowledge the possibility of research in fields other than health and social care and, for that reason, the exemption will also cover all research approved by: an ethics committee constituted by a government department; an NHS body; a research institute, including universities; or a charity which is concerned with advancing health or saving lives.
These mechanisms for ethical approval are already in place and the Government believe that any research involving the consumption of a psychoactive substance by a human should be considered by an ethics committee, not least to give due regard to the safety of the research’s participants. From our discussions with the research community over the summer, we have not been able to identify any example of in-scope research which has not been considered by an ethics body, so this exemption should not create any additional bureaucracy for the research community, nor require bona fide researchers to do anything they do not already do. We are just conscious not to create a loophole which allows head shops and others to undertake so-called research to facilitate the supply of these substances. It is worth putting on record again that a considerable amount of scientific research falls outside the scope of the Bill in any case. Only research involving the consumption of a psychoactive substance by a person would be caught.
Commons Amendment 11 includes a power to add to or vary the list of exempted activities in the new schedule inserted by Commons Amendment 43. This regulation-making power effectively replaces that in Clause 10, so Commons Amendment 12 omits that clause. Commons Amendments 2 to 4, 7, 8, 13, 29, 30 and 38 are all consequential on Commons Amendments 11 and 43.
I was asked about poppers. The Government recognise that representations have been made to the effect that poppers have a beneficial health and relationship effect. In consultation with the Department of Health and the Medicines and Healthcare Products Regulatory Agency—the MHRA—the Home Office will therefore consider, following the enactment of the Bill and before the Summer Recess, whether there is evidence to support these claims and, if so, whether it is sufficient to justify exempting the alkyl nitrites group, or individual substances in that group. Clause 3 enables the Home Secretary, by regulations—after statutory consultation with the Advisory Council on the Misuse of Drugs and subject to the affirmative procedure—to add to the list of exempted substances in Schedule 1 to the Bill.
Finally, I thank all those in the medical and research community, as well as those in government departments and this House, who assisted us over the summer in drafting these amendments. I now believe that we have a strong exemption list which meets the guiding principle. I beg to move.
I thank the noble Lord for his very full and thorough explanation of the purpose and intention of this group of amendments. As the Minister has said, the intention of this group is to address concerns expressed by ourselves and other noble Lords, including the noble Baroness, Lady Meacher, during the Bill’s passage in this House, that healthcare activities and scientific medical research relating to new psychoactive substances were not adequately protected in the Bill. The amendments insert a new clause and schedule to provide for exemptions to the offences under Clauses 4 to 8 of the Bill and the new possession offence which has just been discussed. As the Minister said, these exemptions are for activities carried out by healthcare professionals and for approved scientific research activity. The Government’s amendments also confer on the Secretary of State the power, through regulations subject to the affirmative procedure, to add to or vary any activity described in the schedule to the Bill which has now been inserted by the Commons.
The Minister has referred to the position of those bodies and institutions directly affected by this Commons amendment. I think the Minister has already said this, but I would be grateful if he would confirm that those bodies and institutions are satisfied that the amendments that have been carried in the Commons, and which we are considering at the moment, meet the concerns that they have expressed.
Finally, in relation to poppers, I understand that a decision is likely to be made fairly soon. I think the suggestion was that conclusions might be reached by the summer. Are we then in a situation where poppers might be banned under the terms of the Bill, only to be—if I may use the expression—unbanned in the summer? Or are we in a situation where the terms of the Bill in relation to the new psychoactive substances will not come into force until a conclusion has been reached in respect of poppers?
I welcome these amendments very much, particularly the ones relating to research, a concern about which was shared on these Benches. I remember asking about veterinary research, as distinct from research relating to human medicine. There were some raised eyebrows at that point and I had better not pursue it now. But I assume that these provisions will enable research regarding the medicinal use of cannabis, about which we were particularly concerned and on which I moved an amendment. The possible limitation of research was one of the concerns underlying that amendment.
I have a couple of questions for the Minister. I hope I gave him enough notice of them. I am sorry that they came so late by email. Both relate to the definition of,
“a relevant ethics review body”.
The first is on the use of the term “individuals” in paragraph 4(b) of the proposed new schedule. I wondered whether that might suggest—clearly absurdly—that we were looking at research involving separate individuals rather than cohorts of people. When I looked at the Human Medicines Regulations, I realised that the term “human beings” was used and that seemed a rather more appropriate term, less likely to be interpreted in a different way.
My second concern is with regard to charities. We very much want to see wide research so we welcome this approach. I recognise that the regulation of charities has been the subject of some concern and some change recently, but we may not be altogether rid of—how can I put it?—dodgy charities. Is there any sort of loophole here that would enable a dodgy charity to have an ethics committee—it would probably be rather a dodgy ethics committee but, nevertheless, it would be one—that would allow less than appropriate research?
I would like to pursue the matter raised by the noble Lord, Lord Rosser, as well as touch on a broader aspect of the legislation. I am in the slightly odd position of having arrived in this place after the original debates in Committee, and I would like to make two points.
First, there is something I do not really understand—and I say this having been chief executive of the British Beer & Pub Association. Pubs were created in 1751. This legislation is all or nothing. There is no allowance for things that might be sold in either a licensed premises or a regulated premises. There are many things in British life that are sold under such circumstances and I do not understand why we have to have an all-or-nothing approach to these substances. I understand the nature of the legislation but there are chemical circumstances under which people could define things and regulate them. If we have been doing something for 260 years, I think the Home Office might catch up. It is probably not its finest hour in terms of legislative process.
To follow up the question asked by the noble Lord, Lord Rosser, since the Government say—this is a change of position, although it was not a specific government amendment—that they will look at something, they could do one of two things. They could either adjust the timetable for the whole legislation and defer it slightly or rush through a consideration of something that is likely to be driven underground in the mean time. The noble Lord, Lord Rosser, asked whether we are going to ban and then unban. What advice will be given to the police in the mean time? Are they to disregard the sale of illegal products or are they just not to prosecute? It really does not make sense. I suggest that we either adopt a position of regulating products or defer the introduction of this legislation.
In response, I say first to my noble friend Lord Hayward, who has been a welcome addition to this House since his arrival, that when we were considering the Bill during its earlier stages in this House, the problem we were trying to identify was that once these new psychoactive substances were named, I or someone else, such as my noble friend Lady Chisholm, would come before your Lordships’ House with secondary legislation seeking to ban a particular chemical composition. Then it would be slightly tweaked by one or two molecules and reappear the next week as something else, and all the time people would be put at risk. That was the mischief that the whole thrust of this legislation was about. In the Conservative Party manifesto at the last election, we also made it clear that we would institute a blanket ban.
Forgive me for going through the points raised almost in reverse order, but my noble friend Lord Hayward asked whether we are going to ban and then unban. That is to prejudge the outcome of the consultation and review. The review may say that it is something that should be taken off the list; it may say that it should remain on the list. That is for it to do, so we do not know what the outcome will be. As we do not know that, we cannot prejudge it by putting it into this primary legislation. But because of this legislation we have a secondary legislation option whereby, if that decision is taken as a result of the consultation, we can act quickly to address it.
Let me deal with some of the other points which were raised. First, the noble Lord, Lord Rosser, asked me to confirm whether various medical groups and research groups had been consulted. Yes, they have, and they have been immensely helpful. I know that many in your Lordships’ House who spoke in Committee and on Report were speaking precisely to that point about the potential danger that this posed to legitimate medical research. I think they would welcome the fact that we have made it explicit in the Bill that these exemptions are there for research.
I thank the noble Baroness, Lady Hamwee, for her advance notice of the question on charities. The charity we are talking about would of course be a registered charity, and it would have to be one concerned with the advancing of health and saving lives. One hopes that the ability of someone to set up a “charitable body” which then started dispensing might be restricted, in the same way as restricting research to that approved by an ethics committee was the correct way forward. I can confirm that the Academy of Medical Sciences and other research communities were consulted on this. Also in response to the noble Baroness, cannabis is a controlled drug so it is outside the scope of the Bill, as controlled drugs are specifically exempt. The regulations that govern research in relation to cannabis are under the Misuse of Drugs Act, which is unchanged.
I may have answered the other points that were raised —no, there was a specific one on the term “individual”. The definition of the ethics body in new paragraph 4(b) does not exclude clinical trials of cohorts of people, as it refers to “individuals”—plural—not to an individual. It is important that medical charities such as Cancer Research are able to benefit from this exemption. We do not believe that the exemption for charities risks opening any loopholes. Section 1 of the Charities Act 2011 defines a charity as,
“an institution … established for charitable purposes only”.
Section 2(1)(b) of the Act states that the charitable purposes must be in the public interest. Head shops are unlikely to be considered as acting in the public interest—on the contrary, we would argue—so could not benefit from this exemption. I hope that that has been helpful in addressing some of the points raised.
The situation with poppers is that they are not banned at the moment, but they will be when the Bill comes into effect and becomes an Act. I accept what the Minister says about the wording being “could” not “will”, but they could then be unbanned in the summer, as I think the Government have said that they expect their consideration by experts will be concluded by the Summer Recess. Is that a particularly satisfactory situation? If I am correct, something that is not banned at the moment may end up being banned for a few months and then unbanned.
In a sense, my argument is about what alternative we have to this. The moment for putting something through now, in primary legislation, has passed. We have to allow this to take its course. Our concession was to say that we would undertake a review in consultation with the Department of Health and the Medicines and Healthcare Products Regulatory Agency. Following the enactment of the Bill, and before the Summer Recess, we will consider whether there is evidence to support these claims. There is a question mark there and we believe that that research and consultation need to happen before we take any further action at this stage.
I see that the cavalry has arrived; I am, as ever, grateful my noble friend Lady Chisholm. To add to the list of exemptions requires the Home Secretary only to make regulations subject to affirmative procedure. To remove from the original list of exemptions would require further primary legislation. I think I have already said this, so I rest my case at that point and beg to move Amendments 2 to 4 in my name.
My Lords, the point is well made and this is an almost insoluble dilemma. I entirely see the Government’s concern to have the overall legislation in place quickly. However, first, can the Minister give the House any news as to when this may come into effect? Secondly, with regard to the particular situation which has been described, this is by no means a solution, but has the Minister been advised as to the likely view of the judiciary—if that is not an improper question for a Minister to answer—in a situation where, by the time a charge comes to be heard by a court, an exemption has been made through regulations?
Subject to your Lordships’ approval this afternoon, the legislation will come into force in April 2016. We discussed in Committee, with the noble Lord, Lord Pannick, how the police might respond to that. The police of course have discretion in these circumstances, and we have said very clearly that we know who we are after in relation to this, which is the people who are actually importing, selling and supplying these dangerous substances. I believe that the police can use their discretion at that point. If there are specific circumstances that require further clarification on that, it can be provided for later under the terms of the Bill.
Motion on Amendments 5 to 13
5: Clause 6, page 3, line 43, leave out “on prison premises.” and insert “in a custodial institution.
( ) In this section—
“custodial institution” means any of the following—
(a) a prison;
(b) a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;
(c) a removal centre, a short-term holding facility or pre- departure accommodation;
(d) service custody premises;
“removal centre”, “short-term holding facility” and “pre-departure accommodation” have the meaning given by section 147 of the Immigration and Asylum Act 1999;
“service custody premises” has the meaning given by section 300(7) of the Armed Forces Act 2006.”
6: Clause 6, page 3, transfer subsection (9) to the end of line 29 on page 3
7: Clause 7 page 4, line 18, leave out from “subject to” to end of line 19 and insert “section (Exceptions to offences) (exceptions to offences).”
8: Clause 8 page 5, line 6, leave out from “subject to” to end of line 7 and insert “section (Exceptions to offences) (exceptions to offences).”
9: After Clause 8, insert the following new clause—
“Possession of a psychoactive substance in a custodial institution
(1) A person commits an offence if—
(a) the person is in possession of a psychoactive substance in a custodial institution,
(b) the person knows or suspects that the substance is a psychoactive substance, and
(c) the person intends to consume the psychoactive substance for its psychoactive effects.
(2) In this section “custodial institution” has the same meaning as in section 6.
(3) This section is subject to section (Exceptions to offences) (exceptions to offences).”
10: Clause 9 page 5, line 26, at end insert—
“( ) A person guilty of an offence under section (Possession of a psychoactive substance in a custodial institution) is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine, or both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum, or both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum, or both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both.”
11: After Clause 9, insert the following new clause—
“Exceptions to offences
(1) It is not an offence under this Act for a person to carry on any activity listed in subsection (3) if, in the circumstances in which it is carried on by that person, the activity is an exempted activity.
(2) In this section “exempted activity” means an activity listed in Schedule
(3) The activities referred to in subsection (1) are— (a) producing a psychoactive substance;
(b) supplying such a substance;
(c) offering to supply such a substance;
(d) possessing such a substance with intent to supply it; (e) importing or exporting such a substance;
(f) possessing such a substance in a custodial institution (within the meaning of section (Possession of a psychoactive substance in a custodial institution)).
(4) The Secretary of State may by regulations amend Schedule (Exempted activities) in order to—
(a) add or vary any description of activity;
(b) remove any description of activity added under paragraph (a).
(5) Before making any regulations under this section the Secretary of State must consult—
(a) the Advisory Council on the Misuse of Drugs, and
(b) such other persons as the Secretary of State considers appropriate.
(6) The power to make regulations under this section is exercisable by statutory instrument.
(7) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
12: Clause 10 page 5, line 27, leave out Clause 10
13: Clause 11 page 6, line 16, leave out “regulations under section 10.” and insert “section (Exceptions to offences).”
Motion on Amendments 14 to 20
14: Clause 23, page 14, line 34, leave out from beginning to “except” in line 35 and insert “in a case where the prohibition order or the premises order imposing the access prohibition was made by a court in England and Wales or Northern Ireland, the court that made the order,”
15: Clause 23, page 14, line 42, at end insert—
“( ) in a case where the prohibition order or the premises order imposing the access prohibition was made by a court in Scotland, the sheriff.”
16: Clause 27, page 17, line 3, leave out paragraph (b) and insert—
(i) the order was made under section 18 on an appeal in relation to a person’s conviction or sentence for an offence, or
(ii) the order was made by a court under that section against a person committed or remitted to that court for sentencing for an offence,
the court by or before which the person was convicted (but see subsection (6A));”
17: Clause 27, page 17, line 8, at end insert—
“(6A) Where the person mentioned in subsection (6)(b)—(a) was convicted by a youth court, but
(b) is aged 18 or over at the time of the application,
the reference in subsection (6)(b) to the court by or before which the person was convicted is to be read as a reference to a magistrates’ court or, in Northern Ireland, a court of summary jurisdiction.”
18: Clause 31, page 19, line 32, leave out “arising by virtue of” and insert “under”
19: Clause 31, page 20, line 1, leave out subsection (5) and insert—
“( ) An Act of Adjournal under section 305 of the Criminal Procedure (Scotland) Act 1995 (Acts of Adjournal) may be made in relation to proceedings before the High Court of Justiciary, the sheriff or the Sheriff Appeal Court—
(a) arising by virtue of section 18 or 28;
(b) under section 27, where the application relates to a prohibition order made under section 18;
(c) under section 29(5);
(d) under subsection (1) of section 30, where the relevant order (as defined in subsection (3) of that section) was made under section 18;
(e) under section 30(7).”
20: Clause 31, page 20, line 13, leave out subsection (7)
Noble Lords will recall that at Report in July, I moved various technical amendments to the Bill to ensure that it properly reflects Scots law and Scottish judicial and policing practice. The Commons amendments in this group are in a similar vein. The group also repeals the Intoxicating Substances (Supply) Act 1985, which the Bill renders redundant. I can provide further detail if required, but for now, I beg to move.
Motion on Amendments 21 to 48
21: Clause 35 page 22, line 5, leave out “8” and insert “(Possession of a psychoactive substance in a custodial institution)”
22: Clause 35, page 22, line 21, leave out “8” and insert “(Possession of a psychoactive substance in a custodial institution)”
23: Clause 38 page 24, leave out lines 1 to 4 and insert—
“( ) a warrant that relates only to premises specified in the warrant (a “specific-premises warrant”), or
( ) in the case of a warrant issued in England and Wales or Northern Ireland, a warrant that relates to any premises occupied or controlled by a person specified in the warrant (an “all-premises warrant”).”
24: Clause 39 page 24, line 23, at end insert—
“( ) An application for a search warrant may be made without notice being given to persons who might be affected by the warrant.
( ) The application must be supported—
(a) in England and Wales, by an information in writing; (b) in Scotland, by evidence on oath;
(c) in Northern Ireland, by a complaint on oath.
( ) A person applying for a search warrant must answer on oath any question that the justice hearing the application asks the person.
In the case of an application made by a procurator fiscal, that requirement may be met by a relevant enforcement officer.”
25: Clause 39 page 24, line 32, leave out “search warrants.” and insert “—
(a) applications for search warrants made in England and Wales or Northern Ireland, and
(b) search warrants issued in England and Wales or Northern Ireland.”
26: Clause 39 page 24, line 33, after “warrant” insert “issued in England and Wales or Northern Ireland”
27: Clause 42 page 26, line 9, leave out “8” and insert “(Possession of a psychoactive substance in a custodial institution)”
28: Clause 47 page 28, line 37, leave out subsection (5)
29: Clause 49 page 29, line 28, leave out “regulations under section 10” and insert “section (Exceptions to offences)”
30: Clause 50 page 31, line 12, leave out “regulations under section 10” and insert “section (Exceptions to offences)”
31: Clause 53 page 32, line 43, leave out “8” and insert “(Possession of a psychoactive substance in a custodial institution)”
32: Clause 53, page 33, line 2, leave out second “or” and insert “except where paragraph (b) or (c) applies;”
33: Clause 53, page 33, line 4, at end insert—
“(c) if the person is remitted to the High Court of Justiciary to be dealt with for that offence, the High Court of Justiciary.”
34: Clause 53, page 33, line 26, leave out “8” and insert “(Possession of a psychoactive substance in a custodial institution)”
35: Clause 53, page 33, line 28, leave out “8” and insert “(Possession of a psychoactive substance in a custodial institution)”
36: Clause 53, page 33, line 30, leave out “8” and insert “(Possession of a psychoactive substance in a custodial institution)”
37: Clause 53, page 33, line 32, leave out “8” and insert “(Possession of a psychoactive substance in a custodial institution)”
38: Clause 54 page 34, line 9, leave out “regulations under section 10.” and insert “section (Exceptions to offences).”
39: Clause 58 page 36, line 23, after “Court” insert “, other than the reference in section 30(1) in relation to a prohibition order made under section 18,”
40: Clause 61 page 37, line 9, at end insert—
“( ) The power under section 384(1) of the Armed Forces Act 2006 (“the 2006 Act”) may be exercised so as to extend to any of the Channel Islands (with or without modifications) any amendment or repeal made by or under this Act of any part of the 2006 Act.
( ) The power under section 384(2) of the 2006 Act may be exercised so as to modify any provision of that Act as amended by or under this Act as it extends to the Isle of Man or a British overseas territory.”
41: Schedule 1 page 38, line 7, leave out from “products” to end of line 12 and insert—
“In this paragraph “Medicinal product” has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 2 of those Regulations).”
42: Schedule 1 page 38, line 13, leave out paragraphs 3 to 5
43: After Schedule 1, insert the following new Schedule—
1 Any activity carried on by a person who is a health care professional and is acting in the course of his or her profession.
In this paragraph “health care professional” has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 8 of those Regulations).
2 Any activity carried on for the purpose of, or in connection with—
(a) the supply to, or the consumption by, any person of a substance prescribed for that person by a health care professional acting in the course of his or her profession, or
(b) the supply to, or the consumption by, any person of a substance in accordance with the directions of a health care professional acting in the course of his or her profession.
In this paragraph “health care professional” has the same meaning as in the Human Medicines Regulations 2012 (see regulation 8 of those Regulations).
3 Any activity carried on in respect of an active substance by a person who—
(a) is registered in accordance with regulation 45N of the Human Medicines Regulations 2012, or
(b) is exempt from any requirement to be so registered by virtue of regulation 45M(2) or (3) of those Regulations.
In this paragraph “active substance” has the same meaning as in the Human Medicines Regulations 2012 (see regulation 8 of those Regulations).
4 Any activity carried on in the course of, or in connection with, approved scientific research.
In this paragraph—
“approved scientific research” means scientific research carried out by a person who has approval from a relevant ethics review body to carry out that research;
“relevant ethics review body” means—
(a) a research ethics committee recognised or established by the Health Research Authority under Chapter 2 of Part 3 of the Care Act 2014, or
(b) a body appointed by any of the following for the purpose of assessing the ethics of research involving individuals—
(i) the Secretary of State, the Scottish Ministers, the Welsh Ministers, or a Northern Ireland department;
(ii) a relevant NHS body;
(iii) a body that is a Research Council for the purposes of the Science and Technology Act 1965;
(iv) an institution that is a research institution for the purposes of Chapter 4A of Part 7 of the Income Tax (Earnings and Pensions) Act 2003 (see section 457 of that Act);
(v) a charity which has as its charitable purpose (or one of its charitable purposes) the advancement of health or the saving of lives;
(a) a charity as defined by section 1(1) of the Charities Act 2011,
(b) a body entered in the Scottish Charity Register, or
(c) a charity as defined by section 1(1) of the Charities Act (Northern Ireland) 2008;
“relevant NHS body” means—
(a) an NHS trust or NHS foundation trust in England, (b) an NHS trust or Local Health Board in Wales,
(c) a Health Board or Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978,
(d) the Common Services Agency for the Scottish Health Service, or
(e) any of the health and social care bodies in Northern Ireland falling within paragraphs (a) to (d) of section 1(5) of the Health and Social Care (Reform) Act (Northern Ireland) 2009.”
44: Schedule 2, page 39, line 25, at end insert—
APPLICATION OF THIS SCHEDULE
This Schedule applies to—
(a) applications for search warrants made in England and Wales or
Northern Ireland, and
(b) search warrants issued in England and Wales or Northern Ireland.”
45: Schedule 2, page 39, line 29, leave out paragraph 1
46: Schedule 2, page 42, line 27, leave out “issued in England and Wales or Northern Ireland”
47: Schedule 4, page 48, line 16, at end insert—
“Intoxicating Substances (Supply) Act 1985
(1) The Intoxicating Substances (Supply) Act 1985 is repealed.
(2) In consequence of the repeal made by sub-paragraph (1), in Schedules 3 and 6 to the Regulatory Enforcement and Sanctions Act 2008, omit the entry relating to the Intoxicating Substances (Supply) Act 1985.”
48: Schedule 4, page 53, line 40, at end insert—
“Regulatory Enforcement and Sanctions Act 2008
In Schedule 3 to the Regulatory Enforcement and Sanctions Act 2008 (enactments specified for the purposes of Part 1 of that Act), at the appropriate place insert—
“Psychoactive Substances Act 2016”.”