Rwanda Asylum Partnership: Removal of Unaccompanied Children

Lord Tunnicliffe Excerpts

Thursday 21st July 2022 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I start by paying tribute to my noble friend Lady Lister for sponsoring today’s debate and for her long-term commitment to this issue. The quality of debate and the calibre of speakers who have taken part demonstrate the widespread concern over this policy. Fortunately for the House, it also means there is little that I need to add, other than the strong support on these Benches for the concerns and questions raised.

The shadow Home Secretary has recently asked the Government to provide an evidence base and transparent costings for the migration and economic development partnership with Rwanda, and has received neither. These calls have now been echoed by the cross-party Home Affairs Select Committee, whose latest report has called for detailed costings and stated that:

“There is no clear evidence that the policy will deter migrant crossings”.


The committee reported:

“There is a worrying trend in Home Office policy announcements being made before detailed policy has been worked through, tested and even agreed between Government Departments”.


It is part of that worrying trend that we are today having to repeat concerns over a lack of a proper screening process for those who are chosen for offshoring.

Is the Minister able to confirm that of the cases pulled from the aborted flight on Tuesday 14 June, there were known concerns that those due to be on the flight included children and victims of torture and trafficking? What changes have been made to the screening and safeguarding process since mid-June? Organisations working in the sector have raised concerns that children as young as 14 are being given a “standard age” of 23 when they arrive in the UK. What engagement have Ministers had with local authorities and organisations working with asylum seekers to discuss reported concerns? Can the Minister provide the House with more information on how the best interests of the child are being demonstrably prioritised in age assessment policy?

Finally, the proven way to stop children taking desperate and dangerous journeys to reach safety or family is to provide safe and legal routes. Will the Government look again at family reunion routes for unaccompanied children, to allow children who have survived unimaginable hardship to join loving family members in the UK?

Passport Applications: Digitisation

Lord Tunnicliffe Excerpts

Wednesday 18th January 2017 Lords Chamber

[Baroness Williams of Trafford]

There are a number of biometrics through which a person can be compared—it could be a photograph or fingerprints. The biometrics that we use on the British passport are very robust.

[Lord Tunnicliffe (Lab)]

I almost get the impression that the noble Baroness is saying that we have identity cards, but we simply call them passports. To go back to the Question, she seemed to give the Answer that the new system is exactly the same as the old one. I am not knocking the advances, as with facial recognition you have an electronic means of verifying that the individual in front of you is the person they say they are. However, that was clearly also true with old-fashioned photographs, which were much more difficult to manipulate. The problem surely is that digital photographs are much easier to manipulate and the possibility of fraud rises. I do not believe they are exactly the same, and if she wants to persist in that argument—I am sure it is what her brief says—I would be grateful if she would write to us with a little more explanation of the security measures that guarantee the validity of the electronic image.

[Baroness Williams of Trafford]

The noble Lord suggests that a passport is the same as an identity card, but actually it is a form of ensuring that the person’s identity is what they say it is.

Policing and Crime Bill

Lord Tunnicliffe Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for his masterly presentation of this legislation.

Part 1 of the Bill relates to the fire and rescue service, among other things, but undoubtedly that is the most controversial area. The noble Lord, Lord Paddick, my noble friend Lord Bach, the noble Baronesses, Lady Harris and Lady Bakewell, and the noble Lord, Lord Condon, all raised question marks over the concept of the PPC being responsible also for the fire service.

The fire and rescue service had to reduce its spending power by 17% in real terms between 2010 and 2015 and will have to reduce spending by a further £135 million between now and 2020. The National Audit Office revealed that the number of audits or inspections and fire safety checks by fire service and campaigns has fallen significantly. After decades of the numbers of fires, casualties and fatalities falling there was an increase in all those categories in the latest fire statistics, comparing those for April to September 2015 to the same quarter in 2014. For instance, there were 139 fire fatalities in 2015 compared with 108 in 2014. We are concerned that the Government’s proposals to allow PCCs to take over from fire and rescue authorities puts the independence and operational capacity of our fire services at risk. We are further concerned that, under the single employer model, it may be more difficult for the fire service to maintain independence, damaging its ability to carry out preventive work.

In this House, I have something of a unique relationship with the fire service. For 12 years, I was the London Fire Brigade’s biggest customer—such a big customer that it used to invite me to its Christmas parties. The reason for this was very sad, of course: in 1987 my organisation, London Underground, had a fire that killed 31 people. I joined as managing director after that and we then changed our protocols. We used to invite the London Fire Brigade to our premises 200 times a week on average. In that period, we came to realise just what a very unsafe environment we were managing and so did the fire brigade. Together with it and other specialists, we put an enormous effort into making the environment safe. At the same time, London changed its very fire brigade shape and created more and more unsafe environments, particularly tall buildings. The fire brigade adapted over that time into entirely new and extremely professional areas of concern because the essence of being a successful fire brigade is not to put out fires but to create the environment where fires do not occur in the first place. That is a wholly different area of emphasis.

As a number of noble Lords have suggested, under a single PCC who is unlikely to have had any intimate experience of the fire environment, there is a real possibility that the fire service could become second-class citizens—poor relations, as I think my noble friend Lord Bach put it. Before we go into that experiment, we will have to look at those provisions with great care and pore over that part of the Bill. I will take a great deal of convincing that that concept is sound, particularly the possibility of it being forced upon a successful fire authority. It is very probable that we will oppose it.

Part 2 of the Bill is about complaints and it was very useful that the noble Earls, Lord Lytton and Lord Attlee, as well as my noble friends Lord Prescott and Lord Harris, brought out the variety of problems that we still have with our police. We love our police but at the end of the day there has to be some way of knowing that they are sound: that there is not corruption and there are the right checks and balances. Listening to those contributions in the debate, one is left with the idea that there must be underlying problems which are still not being sufficiently addressed. We will look at the proposed new clauses relating to the IPCC with great care to see whether they will improve the environment or go far enough.

I was particularly seized by the comment—I wish I could remember which noble Lord made it—that taking “independent” out of the title to somehow make the body more independent does not seem self-evident. In fact, we will oppose “independent” being removed from the title. The Office for Police Conduct does not sound like anything that will hold anybody to account. I think it was my noble friend Lord Harris who made the point that the only person in this organisation who cannot previously have been a constable will be its executive head. We need to look at the composition of the board and the people working in the new organisation to make sure that they are not overly close to the police.

Part 3 touches on the issue of police volunteers. The loss of personnel in the police service is frightening. Funding from central government went down in the previous Parliament by 25%. The recent assurance that police budgets would be maintained has been drawn into question by the chair of the UK Statistics Authority, which ruled that in fact budgets will be cut in real terms between 2015-16 and 2016-17. Since the previous Prime Minister came into office, 18,000 officers have been lost, 12,000 of them from the front line. In this context, we will oppose any attempt by the Government to plug through the Bill the gaping hole in the police workforce with volunteers. We recognise the excellent work done by special constables, neighbourhood watches and police and crime panels, but there is a difference between volunteers bringing additionality to the police workforce and volunteers acting as their replacements.

It is very difficult to see why we need something different from special constables, who I believe have been around for over 100 years. They have constabulary powers and have been properly trained in how to use them. We have also developed the role of the PCSO, and debated and refined it over time. Should we not have properly trained PCSOs helping to secure an adequate police presence rather than looking to volunteers to fill the gap? For volunteers, there is already the special constable path. We will be looking extraordinarily carefully at the powers that are being requested for these volunteers, and the Government will have great trouble convincing us that they are anything other than a dangerous set of powers.

Part 4 reforms police bail and is to be generally welcomed. Indeed, some of the excesses of police bail in recent years have been truly appalling. There is no question but that if you are placed under police bail for weeks, months and in some cases years, it is a de facto punishment inflicted on you as an individual without a proper judicial process. We wholly welcome that reform. But it has to have the right checks and balances, and the enforcement of bail conditions must be fully adequate. It is particularly important that we have the right controls over issues such as confiscation of passports in the context of, for example, terrorism.

Part 4 does a number of other things. A key thing is that it recognises that 17 year-olds are children. The noble Baroness, Lady Hamwee, pointed out that this was partly a product of the European Convention on Human Rights. It is also of course laid down in the UN Convention on the Rights of the Child. How we came to ignore that convention and the human rights commission, I cannot understand. I commend the Government for putting this right but am sorry it has taken them so long to do it.

The other area covered by Part 4 that I will mention is mental health and holding people facing a mental health crisis in police cells. There has been total consensus in the Chamber that that reform is right. The noble Baroness, Lady Howe, hit the nail on the head when she touched upon parity of esteem—my noble friend Lord Harris and the noble Lord, Lord Condon, also raised it, I think. The provision of mental health services in this country is a disgrace, not in the sense that someone has done it evilly, but we all know we have been looking the other way for too long. Parity of esteem has to mean having the right resources. Holding people against their will in unsuitable accommodation is a central example of where many more resources will have to go in. To make sure that we are not holding people in police cells, they will have to go to proper secure accommodation, managed by the National Health Service. We must rethink, right through our legislation, how we work with mental health issues and must provide the right resources.

Finally, I will comment on Part 6, which relates to firearms. We await with some interest the amendments that the noble Earl, Lord Attlee, will table, including whether they will be specific to a .455 calibre or not—I am teasing him. One area where we will intervene is full cost recovery. The individual gun-holder’s licence must be the only one where a dangerous or powerful weapon is put in the hands of an individual and the state does not make full recovery of the cost of the licence it provides. I used to have a dangerous pastime, flying aeroplanes for fun. The state took enough money to pay for the cost of issuing that licence at every level—for example, if you are a professional pilot, they charge you the appropriate amount to make sure that that licence is maintained. I understand the difference is that the real cost is about £198, but we charge £88.

We look forward to examining the Bill in detail. It will give us an opportunity to discuss other issues: the noble Lord, Lord Moynihan, will no doubt bring forward some interesting amendments relating to sport and drugs, as will my noble friend Lord Brooke on alcohol. I welcome the noble Baroness, Lady Williams of Trafford, to her new role—perhaps we might get a hint before the end of the evening about who on the Front Bench will do what. Given the sheer length and complexity of the Bill, I commend to her the willingness of the noble and learned Lord, Lord Keen, in working with me or my noble friend Lord Rosser on previous Home Office Bills, to take as much stuff as possible off the Floor of the House and work face to face in informal committees. I do not think the Floor of the House is a good learning environment. Probing amendments are learning aids—we have to table them, but we can get some of those learning bits, where it is a matter of understanding things, out of the way. In addition, the Floor is not all that good an environment to try to negotiate compromises, and there will have to be a lot of compromises in the Bill. I hope that Ministers will be willing to put the effort in—we certainly will—to spend time off the Floor of the House to that end. With that, I hand over to the noble and learned Lord to reply and thank him for his efforts so far.

Historical Child Sex Abuse

Lord Tunnicliffe Excerpts

Thursday 30th June 2016 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I, too, thank the noble Lord, Lord Lexden, for bringing this debate before us. I find myself agreeing, at least in part, with the noble Lord, Lord Paddick, in his essential point that this is more complex than might be judged from some of the contributions. It seems to me that the essence of this whole area is the dilemma between victims and the accused, and the interests of society as a whole. It is an extremely complex area, and I hope, because of the diversity of inputs, we have something of a balance in terms of that complexity.

I was a little distressed with the first five contributions, not because I felt they were wrong or insincere in any way but because they focused so much on the harm of injustice to the accused. That is absolutely right, but I shall go on to talk a little about the victims’ side in this. I thank the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Judge, for bringing the debate back into the centre by talking about the victims, the problem of time, people who are dead being accused and particularly the issue of children. I have seen ways of handling child victims used elsewhere in the world that are much better than our own practices, which would prevent some of our problems.

I also thank the right reverend Prelate the Bishop of Chelmsford for explaining the really difficult dilemma the Church of England faced. It may not satisfy noble Lords, but at least it gave some perspective. I am a bureaucrat and could see myself in the middle of that dilemma, thinking “Where do we go, how do we make this as fair as possible, whose interest do we have to defend?”. Finally, I thank the noble Lord, Lord Paddick, for giving us the operational perspective on just how difficult these things are.

The scale of the historical child abuse that has emerged is deeply harrowing and difficult to comprehend. Lord Justice Goddard, who chairs the Independent Inquiry into Child Sexual Abuse, has described the inquiry’s task as “daunting”. Institutions that have a responsibility to safeguard children and vulnerable adults must take responsibility for their safeguarding practices and procedures and for any failures in these procedures. The Goddard inquiry into child sexual abuse will support the process of accountability for institutions that have previously failed in this duty. The inquiry is expected to draw conclusions about the patterns of child protection failings across a range of institutions in England and Wales, including the police, the criminal justice system and the Church of England. The findings of the inquiry must be studied closely.

Contemporary police forces have, in the main, done their best to investigate instances of historical child abuse, and the current guidance supports that. The College of Policing provides operational guidance to the police. It has detailed guidance—authorised professional practice—on investigating child abuse and safeguarding children, which contains a section, “Delayed reporting of child abuse allegations”. The College of Policing explains that the APP is authorised by the professional body for policing—the college itself—as the official source of professional practice. Police officers and staff are expected to have regard to the APP in discharging their responsibilities. There may be circumstances, however, where it is legitimate to deviate from APP providing there is a clear rationale for doing so. Guidance is just that—guidance. The police need discretion in how to investigate. Of course, any breach of professional practice, despite not carrying criminal liability, could have an impact on the inclusion of evidence, and the police must carry out their investigations with this understanding.

It must be remembered that in March 2016, the chief executive of the College of Policing, Chief Constable Alex Marshall, published a letter addressed to chief constables, commissioners, police and crime commissioners and the heads of public protection units. This followed discussion of the investigation of historic child sex abuse allegations between the College of Policing, the National Police Chiefs’ Council, the Home Office, the Metropolitan Police Service and Her Majesty’s Inspectorate of Constabulary. The chief executive’s letter stated that a,

“succession of high-profile cases concerning non-recent child abuse has focused public attention on the approach police take to victims, first at the point of reporting, and then in investigating crime. In cases involving sexual offences, substantial efforts have been made to improve the confidence of victims to come forward and report crimes to the police. It is important that progress is not lost”.

It is vital that the Government accept the need of the police for additional funding to investigate effectively the sudden and extreme increase in the number of historic child abuse cases recorded by the police.

Norfolk Constabulary Chief Constable Simon Bailey, the National Police Chiefs’ Council’s lead for child protection, said in March 2016 that there had been an 80% rise in child sex offence allegations in the three years to 2015. There were 70,000 investigations in just the past year, with historical complaints making up 25% to 30% of the total. Mr Bailey told The Times:

“The average cost of each investigation is £19,000, so the police force is now spending a billion pounds a year on cases. If it continues at this rate we will be investigating 200,000 cases at a cost of £3 billion by 2020”.

There have been errors made in investigations, which have been well illustrated in today’s debate, but overwhelmingly it must be remembered that it is victims who have struggled for justice.

In addition to greater police funding to investigate child sexual abuse, there must be consideration of and funding for provision of support for victims of abuse. These victims can live with the physical, emotional and psychological impact of the abuse for the rest of their lives.

A common call, which has been repeated today, when errors by the police are made or where they drop an investigation following a complaint of historical abuse, is for alleged perpetrators to receive anonymity. However, it cannot be forgotten that victims of sexual crimes are likely to be highly vulnerable and unlikely to come forward. For instance, Rape Crisis states that only around 15% of those who experience sexual violence choose to report to the police.

The criminal justice system must encourage victims to speak out. We know that publishing information about police investigations into alleged abusers encourages other victims to come forward. Furthermore, cases are often built from this vital information. However, the police must carry out investigations into alleged abuse responsibly and brief the press responsibly. The Labour Party is adamant that the Leveson 2 inquiry into unlawful and immoral conduct between the police and the press must go ahead once criminal prosecutions have ended. This will help scrutinise and create recommendations on the ways in which the press and the police should work together. Can the Minister assure me that part 2 of the Leveson inquiry will go ahead and will consider the concerns expressed by so many noble Lords today?

High Speed Rail (London-West Midlands) Bill

Lord Tunnicliffe Excerpts

Thursday 14th April 2016 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister and all noble Lords who participated in this debate for an interesting afternoon. I will resist the temptation to cover all the contributions because I recognise that it is getting late and noble Lords want to listen to the Minister rather than to me.

However, noble Lords will forgive me a little anecdote in my welcoming of the noble Lord, Lord Mair. We had an intimate professional relationship although we have never met each other. Between 1988 and 2000, I was the managing director of London Underground, and then its chairman. During this period, I was responsible for the creation and delivery of the Jubilee line extension and was in receipt of the reports that the noble Lord and his team wrote on this building and its clock tower. I particularly recall one occasion when the report said that if we carried on creating the station in the way that we were planning, the clock tower might move some 300 millimetres away from the rest of the building. As I said to my project director, “Somebody would notice”. In fact, the reports from the noble Lord’s team managed to make me so neurotic that my first task every morning when I came into my office during the construction phase was to look out of the window and make sure the clock tower was still standing. However, I am very pleased to welcome the noble Lord and meet him in the flesh at last.

In many ways this is an historic moment because this will be the last occasion when the general principle of the line will be debated. Unless something goes wrong, when we give the Bill a Second Reading this afternoon—as I feel we should and must—that will be the key political moment that will create a railway. Having created a railway myself in a modest way, I know that you do something very special because railways, if they are well done, last for ever in human terms. This railway will be here in hundreds of years’ time unless there is some great discontinuity in society as we know it. If you go on the Terrace and look at the skyline, I guarantee that some of those buildings will go; they will not last for hundreds of years. However, the impact of this railway on society will be profound. In giving this Bill a Second Reading, we will play our role in that historic event.

The Labour Party—these Benches—unambiguously supports this project. I have studied the case. The transport case is okay. I have looked at the other benefits prayed in aid and see that the analysts have had exactly the same trouble as we had of predicting what we might loosely call the generative effects of the railway. They in fact put quite a modest proportion of the benefit down to it.

When we developed the extension case, we had only a relatively modest transport case. I have to tell noble Lords that as construction costs went up, the actual ratio between the benefits and the cost dipped close to one—in fact, it dipped slightly under it. Yet that modest 10 miles of extra railway have had a spectacular effect on this city and the benefits are overwhelmingly clear and great. I believe that this railway will have the same effect on the Midlands and the north. I do not believe the modest figure in the document in respect of the regenerative effect: I believe that it will be much greater and will add to the economic, social and cultural life of the Midlands and the north in a way far beyond what we can predict. We could not predict what happened in east London but we could dream about it. We cannot predict what will happen in the Midlands and the north but we can see it as a vision. I believe that that vision will become a reality. But the word here is “belief” when you go away from the sums and try to envisage the future. That is what the role of politics is all about. At the end of the day, this is not about giving a technical report a tick but rather looking at this project and having the courage to make a political decision that it is worth pressing ahead with it to give the opportunity for an outstanding and spectacular change to occur to the whole shape of the relationship between the south-east and the Midlands and the north.

It will get the political go-ahead today because it was in the manifestos of both the Labour Party and the Conservative Party, and it is supported by the Liberal Democrats. It was of course originally a Labour project, introduced, as we know, by the noble Lord, Lord Adonis, with debates in 2009 and a Command Paper in 2010, so it has had support. Today, roughly 20 of the speeches have been in favour of HS2, with some against and some don’t-knows, but 20 out of 27 have been in favour. Therefore, very properly the Bill will get political backing, and it got overwhelming support in the House of Commons.

However, if our vision of HS2 is valid, we must not lose sight of its prime purpose, which is to dramatically enable the development of Birmingham, Manchester and Leeds, and the regions around them and beyond. It is no good just stuffing a railway into those cities; what we do in those cities must complement the railway, and the stations and the railway infrastructure are just part of that. The transport system—not just the railway transport system but the bus transport system and how HS2 integrates with all those facilities—will have to be concentrated on, as well as giving the regions the freedom and the economic regulation to allow the flowering of development. Over the lifetime of the project, we must take a holistic approach to how this railway is complemented by government and local government.

There are also one or two things that we have to get more right than we have done so far. In order to be a success both at this stage and in the construction stage, this project needs proactive and regular engagement from the sponsor. People keep talking about changes, and the sponsor must be involved. HS2 Ltd is the agent rather than the responsible body. There needs to be proactive and regular engagement with communities, stakeholders and special interest groups—environmental interest groups, industry groups and TU groups—right across the spectrum. I do not believe that you can overconsult in these situations. You can misconsult but you cannot overconsult. When we extended the Jubilee line, my experience was that the more you consulted the local communities, the more smoothly things went.

I have read some of the things that HS2 Ltd says it is going to do. I may be being unfair but it seemed to me that it is saying that it is going to employ many more PR people. However, our experience was that if you want to get people on side, you have to deliver the decision-makers. If you are building a station, you want the station project manager to talk to the local communities. People do not want to hear smooth words; they do not mind if the words are not very smooth if they believe that they are talking to the people who can make decisions and do the tweaks to make their lives better, taking their concerns on board. Therefore, I hope that the sponsors improve their game.

We must not lose sight of whose project this is. This is government’s project. The Government are responsible for it and, in the final analysis, they must recognise that they have to deliver it. In these circumstances, you can subcontract execution, which is effectively what has been done, but you cannot subcontract responsibility. Wherever anything is not going satisfactorily, it is the responsibility of the Government to intervene and improve things. The Government should remember that they are not only responsible for this project but own, are responsible for and control Network Rail, and control other parts of the infrastructure. When it comes to those parts of the infrastructure working together, the Government have to take on their responsibility and make sure that there are proper relationships between those public bodies and that we get good, integrated answers.

I ask the Minister one question: do the Government unambiguously accept their ultimate responsibility? Do they unambiguously accept that, although there are arm’s-length bodies, when they fail to work together properly or fail to have proper relationships with the community, it is the Government’s responsibility to step in to change things?

I listened to the debate, and a lot of issues have been raised, but the key one seems to be the environment. We must get this as right as possible. It is a difficult balance. I am not going to offer any views now as to where we will come down on that debate: we must, first, leave that to the Select Committee. I hope that we can bridge some of these gaps in understanding of the environment that we save in construction and delivery. We will have issues after the Bill comes back to the House, when it will effectively become a public Bill. We are concerned about embedding qualifications in the community; there are issues of ownership, where we may not entirely agree with the noble Lord, Lord Fowler. We need a way to ensure proper integration of Euston, and we probably need rather more reporting to government on the financial aspects, but those are relatively small details.

My final query is on the role of the Select Committee. We thank the Minister for his first statement—it was a real step forward in understanding—but we still have the key issue of what powers the Select Committee will have as compared with the powers of the Select Committee in the House of Commons. If the Minister is unable to give us clear answers on that today, I hope that he will get them to us as quickly as possible and share them with everyone who has spoken in today’s debate. The more clarity we have as to the role of the committee and its powers, the more efficiently it will work and the more that petitioners will understand what they can reasonably expect the committee to do, and not expect it to do things that it cannot do.

On these Benches, we support this project and believe that the Bill should be given a Second Reading today.

[Lord Ahmad of Wimbledon]

My Lords, first, I join other Peers in thanking everyone for their most interesting, detailed and expert contributions to the debate. I will seek to answer all the questions that have been raised, but, in the interests of time, in respect of those that I am unable to cover, I will of course review them and write to noble Lords.

I acknowledge, first and foremost, the widespread support across the House for this important project. In his concluding remarks, the noble Lord, Lord Tunnicliffe, said that ultimately it is the Government’s responsibility and that the Government need to have vision and leadership. I assure him and all noble Lords that that is exactly what the Government believe. The project requires accountability and, ultimately, the Government remain accountable to your Lordships’ House and to the other place for ensuring that this project proceeds on track—excuse the pun.

I also acknowledge that this has evoked great passion and emotion in certain respects, both for and against the Bill’s provisions and progress on HS2. My noble friends Lady Pidding and Lord Framlingham, the noble Viscount, Lord Simon, and the noble Lord, Lord Stevenson, among others, raised concerns about the environment, and I will come to them in a moment. It is understandable and right that they raised those concerns but, equally, it is promising to see such support for HS2 across the House.

I am indebted to my noble friends Lord Fowler and Lord Young for their strong support and also to others—I notice the noble Lord, Lord Faulkner, has now taken up a different position in his capacity as Deputy Speaker, but I thank him for his support. The noble Lord, Lord Adonis, has an important role on the National Infrastructure Commission. I pay tribute to his work in securing the progress that we have made on HS2 and thank him for his expert—as ever—contribution today.

I am sure that other noble Lords will not mind me singling out the maiden speech of the noble Lord, Lord Mair. I listened very carefully to his contribution and various people have been passing me notes about the current status of Big Ben. I am sure that the last time I looked, it was standing straight and erect as a great beacon of our democracy, our capital city and country. I think that we all acknowledge and greatly appreciate the efforts and expertise of the noble Lord in ensuring that that remains the case. I know that all noble Lords will have been encouraged by his contribution today. His knowledge of civil engineering and of underground construction will provide great insight into and scrutiny of this project, and his broader expertise will be of great value to your Lordships’ House going forward.

We have heard various contributions from noble Lords about how we are progressing on infrastructure. One thing I briefly share is that through projects such as HS2, the development of other catalyst issues, such as the HS2 college and—a few noble Lords alluded to the completion of Crossrail 1—the tunnelling academy that has emerged through Crossrail 1, demonstrates to me the expertise that we are developing in infrastructure, and transport infrastructure in particular. This was a point recently acknowledged by Ministers in Singapore who are currently embarking on a project with Malaysia to build the Kuala Lumpur-Singapore link. We are exploring how we can share common practices and expertise in these areas, and that is something that we should all be encouraged by.

The lack of engineers was also noted. The Government recognise this; indeed, I have a particular responsibility within the Department for Transport as a Skills Minister. In two years’ time, 2018 will be the year of the engineer, but there is much to be done across the board and we all share the responsibility for ensuring that we have the engineers not only to meet our challenges but, as the noble Lord, Lord Adonis, said, to export our expertise in years to come.

I turn now to the questions that were raised. Various noble Lords raised the issue of the Select Committee process. The noble Lords, Lord Rosser, Lord Berkeley, Lord Stevenson and Lord Tunnicliffe, raised the issue of what the responsibilities of the Select Committee will be. It is important to note that the powers of the committee are not set by the Government; they are set by the conventions of the House. I was asked a specific question about the difference between the Houses. The convention is that the Commons Select Committee can hear additional provisions but the Lords committee does not. This is because the procedure follows that of an opposed Private Bill.

For your Lordships’ information, an additional provision is effectively a mini hybrid Bill; it is a change that requires additional land to be taken or changes to the Bill’s powers. The difference in powers is, I think, entirely in keeping with this House’s role as a revising Chamber. An additional provision—again, to remove any doubt and to provide greater clarity—is a change that leads, as I have said, to additional land being required and/or breaches of the environmental envelope for the project set out in the environmental statement. I trust that that provides the greater detail that noble Lords have requested on this, but if further details are requested of course I will be pleased to write in this respect.

The noble Lord, Lord Rosser, also asked when we will outline our plans for HS2 in the Midlands and the north. As I mentioned, we have brought forward the planned opening of phase 2a by three years to 2027. In terms of phase 2 as a whole, the Government consulted on the proposed route between July 2013 and January 2014.

[Lord Tunnicliffe]

I understood that a resolution of the House could enable the committee to consider additional provisions. That is quite an important point. Would the Minister be so kind as to investigate that and share with us by letter the product of his investigations?

[Lord Ahmad of Wimbledon]

Of course. As I said, if there are additional questions, I will be pleased to write to noble Lords.

I thank the noble Baroness, Lady Randerson, for her support. She said that the Liberal Democrat approach would be that of a critical friend to the Bill. It is right that in the revising nature of our Chamber we would hope that the discussions we have are always friendly, albeit a tad critical, but I understand the concerns that the noble Baroness has raised. She raised, rightly, connectivity with the rest of the network. As she will know, we are undertaking one of the largest programmes of investment in the railways. That is important. I have previously said from this Dispatch Box that the Government are investing £38 billion in the railways in the next five years.

The noble Lord, Lord Birt, raised the issue of investment generally over the next 15 or 20 years. I can certainly give him the detail that in the next five years the overall transport investment is in excess of £60 billion, in addition to the money we are spending on HS2. I hope that that underlines the Government’s commitment to the importance of transport infrastructure in the United Kingdom.

Psychoactive Substances Bill [HL]

Lord Tunnicliffe Excerpts

Tuesday 14th July 2015 Lords Chamber

[Lord Mackay of Clashfern]

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.

[Lord Tunnicliffe (Lab)]

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.

[Lord Howarth of Newport]

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?

[Lord Tunnicliffe]

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.

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Amendments 2 and 5 to 8 seek to define a psychoactive substance—

[Lord Tunnicliffe]

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.

[Lord Bates]

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—

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[Lord Tunnicliffe]

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?

[Lord Bates]

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.

[Lord Bates]

That would seem an elegant solution.

[Lord Tunnicliffe]

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.

[Lord Bates]

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.

Psychoactive Substances Bill [HL]

Lord Tunnicliffe Excerpts

Tuesday 14th July 2015 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, as many noble Lords have pointed out, we had a wide debate on this issue in Committee. We were unconvinced by the argument at that time. We are unconvinced that an amendment to this Bill is an appropriate vehicle but, as ever, we await the government response with interest.

[The Minister of State, Home Office (Lord Bates) (Con)]

First, I thank the noble Baroness for moving this amendment and giving us the opportunity to return to this issue. I feel we will be returning to it often, as we have considered it often in the past. During the dinner break, I reread the Committee debate and used the time to look at the video that the noble Baroness, Lady Meacher, and the noble Lord, Lord Howarth, pointed me to when we met yesterday. It is a very moving story featuring testimony from a young boy in the United States with epilepsy who was taking medicinal cannabis to very helpful effect. No parent or grandparent would ever want to decry such examples, but of course they are individual stories or cases, and the duty in considering this is to look at the totality of the evidence. That is the duty of the Advisory Council on the Misuse of Drugs, which we have talked about a great deal, and of the Medicines and Healthcare Products Regulatory Agency, which needs to license and approve products for sale and use in the UK.

This amendment brings us back to some familiar territory. In responding to this amendment, I remind noble Lords that cannabis is a controlled drug under the Misuse of Drugs Act 1971 and listed in Schedule 1 to the Misuse of Drugs Regulations 2001. The 1971 Act will continue to regulate the availability of controlled drugs, and Schedule 1 to this Bill specifically excludes drugs controlled under the 1971 Act. The Government are already under a statutory duty under provisions set out in the 1971 Act to consult the Advisory Council on the Misuse of Drugs prior to implementing any changes to the classification of controlled drugs. Provisions in the 1971 Act also enable the advisory council, acting on its own initiative, to keep under review the situation with respect to controlled or dangerous drugs in the UK and to provide advice to the Government. To place a further statutory requirement on the Home Secretary to consult the advisory council in respect of the rescheduling of cannabis, as proposed in this amendment, will in the Government’s view amount to an unnecessary duplication. Moreover, by setting an arbitrary timetable, it would entail an unjustified diversion of the advisory council’s resources from more pressing tasks, particularly as the issue has relatively recently been examined by the council. Indeed, the advisory council has reviewed the evidence on the misuse and harms of cannabis twice in recent years. Its most recent report, published in 2008, confirmed its previous view that,

“the use of cannabis is a significant public health issue. Cannabis can unquestionably cause harm to individuals and society”.

As I highlighted in Committee, no compelling body of evidence has since been put forward to the Government to challenge the advisory council’s view or the Government’s position on cannabis. However, we have listened to the experiences of the noble Baronesses, Lady Hollins and Lady Meacher, and continue to listen very carefully to that evidence, as I am sure that the advisory council continues to do as well. Of course, we continue to monitor the evidence, but it is the Government’s view that the available evidence does not warrant a specific commission of the advisory council at this time. This position does not prevent the advisory council from reviewing the available evidence and providing further advice to Government on its own volition, if it considers that there is enough scientific evidence to warrant the legislative change proposed in the amendment.

In Committee, concerns were raised around the impact of the legislative framework on cannabis research, which was also raised in the meeting that I had with officials, along with my noble friend Lady Chisholm, on the issue of medical research. We were talking particularly about the difficulties involved in research. I said at that point, and I hold by it, that we remain very much open to receiving further evidence of the difficulties that might be there in conducting medical research. Certainly, if Professor Curran or other groups want to provide evidence—we have received a report prepared by the all-party parliamentary group—that will be considered very carefully. The Government attach the highest priority to bona fide scientific research, especially that which will lead to improvements to the future health and well-being of the people of this country. They are committed to removing unnecessary regulatory barriers that impede research.

The Government’s view is that the Misuse of Drugs Act 1971 and the regulations made under the Act already facilitate research in this area. It is therefore not necessary to move cannabis from Schedule 1 to Schedule 2 prior to its use in research or medicinal trials. Schedule 1 drugs are already used in research or medicinal trials. Where wider human trials are necessary, the Home Office can issue a general licence under the 1971 Act to enable prescribers to prescribe on a named-patient basis, pharmacists to dispense and patients to possess, as happened during the development of the cannabis-based medicine Sativex, to which the noble Baroness, Lady Hamwee, referred.

The Home Office licensing regime is aimed at enabling access to drugs under a framework that prevents diversion and misuse. The regime is not intended to create unnecessary barriers to research, nor do we believe that that is how it operates in practice. Where there is clear evidence that such barriers exist and that removing them will not increase the risk of diversion to the illicit market, we are open to reviewing them.

Indeed, the formalities for obtaining a Schedule 1 licence and the requirements that would normally apply to prevent diversion and misuse, such as safe custody, are in fact similar to those applicable to Schedule 2 drugs and most Schedule 3 drugs. A decision to grant a Schedule 1 licence will be based on an assessment of risk, which is specific to each individual application. This principle is no different from drugs in the other schedules under the 2001 regulations. It is also worth noting that controlled drug licences are not drug-specific and a Schedule 1 research licence enables an organisation to undertake research with all drugs listed in that schedule, subject to any ethical approvals where human trials are proposed.

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[Lord Bates]

My Lords, I wonder if it would be helpful to the House if I were to move the rest of this large group of largely minor and technical government amendments, Amendments 27 to 50, formally. I flagged up these amendments in Committee and have written explaining the basis of them. There is one significant change in Amendment 50, which provides a new clause to ensure that Border Force officers can access relevant provisions in the Customs and Excise Management Act 1979 when they intercept psychoactive substances being imported into or exported from the UK, particularly by post. Unless noble Lords want clarification—

[Lord Tunnicliffe]

I am sorry. I was going to interrupt the Minister to indicate that we would be content if the amendments were moved formally. We are indeed content.

[Lord Bates]

I beg to move Amendment 26.

Psychoactive Substances Bill [HL]

Lord Tunnicliffe Excerpts

Tuesday 30th June 2015 Lords Chamber

[Lord Cavendish of Furness (Con)]

With the leave of the House, I follow the noble Lord, Lord Brooke, in apologising for not having taken part at Second Reading. I declare an interest: I am what is called a recovering alcoholic. I am not about to fall over—it is 30 years since I last had a drink—but in keeping with what the noble Lord was saying, I regard myself as possibly still being an addicted person and therefore have to conduct my life accordingly. I endorse everything that the noble Lord says: we have to learn to take responsibility for our lives.

Getting that help means confronting some extremely ugly truths about what we have done and the effect we have had on ourselves and members of our families. That is a very hard role for the state to take on, and it has always been my view that one should rather encourage the private sector. The cost to the economy of addiction —whether to alcohol or to drugs, and in my view the two are closely related—is known almost precisely. The best outcome would be if a leading firm with good social values pioneered something that the rest of the world could piggyback on. Firms have a vested interest in their employees and their employees’ families being clean and free of drugs and alcohol, and they know what the cost is. It would be of enormous benefit, which perhaps could be reflected in some tax concessions, if the private sector were encouraged to lead on this matter.

[Lord Tunnicliffe (Lab)]

My Lords, the Opposition are not minded to support Amendment 23. I thank the noble Lord, Lord Paddick, for setting out so clearly the intention behind it, which is to decriminalise the simple possession of all drugs listed under the 1971 Act and partially replace that with a drug awareness programme. I emphasise that we believe that education and treatment have to be an essential part of the whole programme that the Government must responsibly pursue to tackle the enormous problems that drug addiction produces, but we do not believe that this is the vehicle to make such a substantial change to the 1971 Act. If the Government were minded to go down this road, surely they would first have to conduct a major programme of research and a major consultation. They may choose to do that, and I await the Minister’s response with some interest, but we are not in favour of the delay that such a research and consultation programme would lead to. The Bill mends a hole in the 1971 Act with respect to psychoactive drugs, and it should be enacted as soon as reasonably practicable in order to attack this difficult problem.

[Lord Bates]

My Lords, I thank the noble Lord, Lord Paddick, for introducing the debate on this amendment and giving us an opportunity to contemplate in broad terms these two groups of issues: one around the experience of dealing with people with drug problems and the other looking at international comparisons and alternatives, and health and education. This is something that your Lordships’ House does incredibly well: drawing on people who have had practical experience, not just in the police, as the noble Lord, Lord Paddick, has, but in adjudicating, as my noble and learned friend Lord Mackay of Clashfern has done in difficult areas. Then there were the contributions from the noble Lord, Lord Brooke of Alverthorpe, and my noble friend Lord Cavendish about their own experiences in trying to assist and work with people coming to terms with addiction. It has been a very thoughtful debate.

I am conscious that I will not be able to cover all the points, but we have a meeting with all interested Peers on 7 July in Committee Room 10A between 4 pm and 5 pm. We will announce it on the all-party Whip—or the business managers will, lest I overegg my powers. It has been set up particularly so that we can hear from Public Health England and about what is happening in education and treatment. I agree wholeheartedly with the noble Lord, Lord Tunnicliffe, that that goes very much to the heart of the wider issue we are seeking to address. The point made by the noble Lord, Lord Howarth, about updating where the Government and Public Health England are with the wider drug strategy and building recovery programmes might be usefully discussed at that meeting, along with many other issues.

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[Lord Tunnicliffe]

My Lords, for the avoidance of doubt, it is not the policy of the Labour Party to ban alcohol. I leave it to the Minister to enjoy the privilege of office and explain the intellectual case.

[Lord Bates]

Oh, that I could get away with that, although I can say that it is not the policy of Her Majesty’s Government to criminalise the consumption of alcohol. On that, we might be clear.

I understand the point made by the noble Lord, Lord Norton of Louth. He has spotted a certain lack of consistency in approach and wishes to draw the Committee’s attention to it. As a distinguished academic, he then invited me to put forward an intellectual case that would satisfy him. Of course, he knows that that will not necessarily be forthcoming.

As I listened to the debate, the thought occurred to me that the nearest you could get to an intellectual case would be to say that you would not necessarily be starting from here with alcohol. It has been enjoyed and endured, probably in equal measure, for about as long as people have been walking around in this great land of ours. Therefore, alcohol has been part of our culture and our society for millennia.

Psychoactive Substances Bill [HL]

Lord Tunnicliffe Excerpts

Tuesday 30th June 2015 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, I agree with the noble Baroness. I am glad that she has tabled these amendments and made the points that she has. It does not look as if there is anything to worry about but it certainly would be very helpful to have reassurance from the Minister and some clarification. It would also be very helpful if he felt it possible to add explicitly to the Bill the amendment in the name of the noble Baroness and the noble Lord, Lord Paddick; namely, that,

“the provision of advice or information … shall not be a prohibited activity”.

We have a number of charities and organisations active in the field which simply seek to reduce harm and to protect vulnerable people. They are not proselytising for the taking of drugs but are knowledgeable about it and doing what they do with good intentions. We certainly do not want the kind of information websites that we have debated as regards previous amendments to find themselves with questionable legal status. Clarification would be helpful and if the Minister feels able to put something in the Bill so much the better.

[Lord Tunnicliffe (Lab)]

My Lords, I am sorry that the Chamber is not fuller to witness this unique moment when I agree with my noble friend Lord Howarth of Newport. I am not sure that it will happen again: it has certainly not happened before. We all take the view that well-informed education is key to drugs policy and to addressing these very difficult issues. The spirit of Amendment 54 seems quite interesting. We are very interested in how the Minister responds to it. It would be very bad if, by accident, we inhibited thoughtful education on this issue.

I cannot go all the way on Amendment 53. Certainly, I can see why we would like to make a crime of assisting. Encouraging, once again, gets into worrying territory. I will listen to the Government’s response with great care.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I think we all agree that the key element of this Bill is the provision of civil sanctions. These are important because they offer an alternative, flexible mechanism to tackle the trade in new psychoactive substances. The amendments in this group relate to the list of prohibited activities in Clause 11. These activities essentially cover the offences in Clauses 4, 5 and 8— namely, the production, supply, importation and exportation of a psychoactive substance—along with the secondary offences of assisting and encouraging those offences.

Amendment 53 seeks to remove paragraph (f) from Clause 11(1) and so remove from the list of “prohibited activity” activities which assist or encourage the production, supply, offering to supply, importation or exportation of a psychoactive substance. In the normal way, the secondary offences of assisting or encouraging a crime apply to each of the main offences in the Bill, which is why the Government have specifically included such conduct in the list of prohibited activity.

If this amendment were to be made it would not, for example, be possible to serve a prohibition notice on someone providing precursor chemicals to another person knowing that the other person intended to use them to produce psychoactive substances. Were that the case, the relevant law enforcement agency might then have no option but to charge that person with the criminal offence of assisting the commission of an offence under Clause 4. Amendment 53 could therefore have the opposite effect to the outcome that the noble Lord is seeking to achieve, as it would force law enforcement agencies down the prosecution route rather than deploying a civil sanction.

The noble Baroness has asked how assisting or encouraging a crime differs from aiding or abetting a crime. This is a complex subject, which has excited much debate within the legal community ever since the Serious Crime Act 2007 created the offence of encouraging or assisting. Perhaps it is simplest to acknowledge that there is potential crossover between the two concepts—on occasion it will be possible both to aid and abet, and encourage or assist—but there will also be offences where, because of the circumstances, it will be possible to encourage or assist, even though there is no aiding or abetting.

Amendment 54 seeks to make clear in the Bill that the provision of harm reduction advice or information does not constitute a prohibited activity. Let me assure noble Lords that giving such harm reduction advice will not be a criminal offence under the Bill. The Government have no desire to hinder the giving of such advice—the opposite is in fact true—but if someone were to publish a manual on the production of psychoactive substances, we would wish to see that activity prohibited. The Bill allows for this. For instance, guidance published by a charity which identifies and highlights the dangers of these substances will be seeking to reduce the harms of these substances and will not fall foul of the Bill. I hope that having that assurance on the record will allay any concerns that the noble Lords and the noble Baroness may have in this regard.

The Government recognise that this legislation is not the silver bullet to tackle psychoactive substance misuse. The Bill must be seen in the context of our wider strategy to tackle the harms they cause. We are also driving forward another key recommendation of the expert panel, that of enhancing our efforts to reduce demand, including through effective prevention programmes and by providing the right health-related services to support individuals recovering from substance misuse. This is, of course incredibly important. On the basis of that explanation and the assurance that I have given on Amendment 54, I hope that the noble Baroness will be content to withdraw her amendment.

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[Baroness Hamwee]

My Lords, in moving Amendment 55A, I will speak also to Amendments 60A and 71A, which stand also in my name and that of my noble friend. Again, the amendment deals with notices.

Amendment 55A would apply Clause 12(6) to people over 18 as well as to those under 18, and would mean that a prohibition notice must specify the period for which it is to have effect—certainty, although in a slightly different context, is something which we have touched on a good deal during the passage of this Bill—and that it must not have effect for more than three years.

I cannot envisage circumstances in which it would be appropriate to apply a prohibition notice to anybody for more than three years. I have my doubts about prohibition and premises notices anyway, but if there is a need to apply a prohibition notice for a longer period, surely the circumstances must be such as to suggest that there should be a prosecution—something rather tougher than a notice. At any age, certainty is important. Amendment 60A would apply both certainty and a statutory maximum to a premises notice.

In neither case has an offence been proved. I cannot see what a notice might do that would not be available under other legislation, particularly anti-social behaviour legislation such as a community protection notice. What is achieved by providing that somebody knows that he should not commit a crime and that the police and the local authority have got their eye on him? In a way, a premises notice is more important. I am assuming that if we are talking about head shops the intention is permanent closure. But the straightforward, honest course would be to address that directly with a proper hearing, giving the recipient of the notice more of a chance to deal with his business interests and have his representations heard in a proper way. I am concerned about the extent there.

Amendment 71A would add that what the court should do in an order should be proportionate as well as appropriate. I assume that that is implied because what courts do almost by definition has to be proportionate—but I am seeking confirmation of that at this point. I beg to move.

[Lord Tunnicliffe]

My Lords, I have some limited sympathy with these amendments. Any notice that has indefinite extent, which seems to be where the Bill is, has a certain discomfort about it. Clearly the Government share this discomfort because they are limiting the period of extent to three years for under 18 year-olds. I cannot see, having accepted that indefinite extent is inappropriate for under 18 year-olds, why it should not be inappropriate for those over 18. “Proportionate” is a word we all like to move around in legislation. I found that the Government have used it quite freely throughout the document. I will be interested in their response to Amendment 71A as well.

[Baroness Chisholm of Owlpen]

My Lords, I thank the noble Baroness for these amendments and the noble Lord, Lord Tunnicliffe, for his views. We see the civil sanctions as a useful tool to take proportionate action against offenders. The Bill contains two levels of sanctions: prohibition and premises notices, and prohibition and premises orders. Orders are the most severe, being imposed by a court and attracting a criminal offence for non-compliance.

Amendments 55A and 60A relate to prohibition notices as provided for in Clause 12 and premises notices in Clause 13. The Government have deliberately created the notice regime to be light touch, allowing a senior police officer or local authority officer to impose such a notice where they reasonably believe that a person is carrying on, or is likely to carry on, a prohibited activity as defined by Clause 11. In the case of a premises notice, the test is that there is reasonable belief that prohibited activity is being, or is likely to be, carried on at particular premises. There is no criminal sanction. The purpose of these notices is to try to stop further criminal behaviour occurring in the first instance. They are a form of final warning.

Amendment 55A seeks to remove the differentiation, so that the time limit will apply to all notices. Our starting point in relation to adults is that, as the primary aim of a prohibition notice is to stop an individual engaging in criminal conduct—something they should not be doing in any event—there was no need to impose a time limit. I remind the noble Baroness, Lady Hamwee, that other civil orders of this kind made against an adult—for example, anti-social behaviour injunctions—may also have an indefinite duration. I recognise that there are particular sensitivities about imposing civil sanctions on young people. For these reasons, we have restricted the duration of a notice issued to a person under 18 to a maximum of three years.

On Amendment 60A, a premises notice cannot be issued to an individual under the age of 18. Similar considerations apply here to those in Clause 12, so we feel that there is no need to put a time limit on premises notices.

Turning to Amendment 71A, we entirely agree that any prohibitions, restrictions or requirements contained in a prohibition order or premises order must be appropriate and proportionate. Proportionality will routinely be considered by a court as part of this decision. It is also important to remember that the court is bound by Section 6 of the Human Rights Act 1968 to act in accordance with the convention rights. Arguably, for the reasons I have given, it was not strictly necessary to include a proportionality test in Clauses 17 to 19 but we included it so that there was symmetry with the test applied by a senior officer or a local authority for the issuing of a prohibition notice or premises notice. I accept the spirit in which the amendment is intended but it is simply not necessary to amend Clause 21 to achieve this end. On the basis of this explanation, I hope the noble Baroness will be content to withdraw her amendment.

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[Lord Howarth of Newport]

I, too, endorse what the noble Baroness, Lady Hamwee, proposed. There will need to be very convincing arguments from the Government as to why there should not be a right of appeal, and I have much sympathy also with what has been said on the standard of proof.

[Lord Tunnicliffe]

My Lords, just to revert to my original path, I do not agree with the noble Lord, Lord Howarth, on the burden of proof. We think that for the orders a balance of probabilities is appropriate. The only question I seek assurance on is that if any individual were to be either imprisoned or fined, it would be under the provisions in Clause 23—and my understanding is that under that clause the criminal standard of proof would be necessary. Providing that one has that assurance, we do not object to the burden of proof in the relevant parts of the Bill with respect to the order.

[Lord Bates]

I shall respond, first, to the point made by the noble Lord, Lord Tunnicliffe. Clause 23 would require the higher criminal standard of “beyond reasonable doubt”, so that is how the matter would be dealt with.

Turning to the point about appeals, I believe that, as proposed, Amendment 64A would be disproportionate, given the nature of prohibition and premises notices. These notices are the first stage of our graded response to tackling the supply of new psychoactive substances. They are intended as a final warning and can be issued by a senior police officer or local authority requiring that the subject of the notice desist from any prohibited activities.

A prohibition notice can be issued only if the relevant officer reasonably believes that the respondent is carrying out, or is likely to carry out, prohibited activity. Therefore, it cannot be issued without good reason, and the issuing officer must also reasonably believe that it is a necessary and proportionate response, given the circumstances. As I have indicated, a notice acts as a final warning. Breach of a notice is not a criminal offence and there are no other direct sanctions flowing from a failure to comply.

The noble Baroness drew a parallel with community protection notices and pointed to the fact that the Anti-social Behaviour, Crime and Policing Act 2014 provides for a right of appeal against such notices. Indeed, this amendment largely mirrors Section 46 of the 2014 Act, but there is an important difference between a community protection notice and the notices provided for in the Bill, in that breach of the former is a criminal offence—hence the right of appeal.

I am not persuaded that, in the absence of a direct sanction for breach, a right of appeal is called for. If the respondent takes issue with a prohibition or premises notice, they can make representations to the issuing agency, which could then, if appropriate, withdraw the notice in accordance with the provisions in Clause 14.

Where the relevant enforcement agency concludes that a prohibition or premises notice had been breached, it could decide to pursue a prosecution for one of the main offences or make an application for a prohibition order or premises order, as the case may be. If the respondent is charged with an offence, they will be able to defend themselves in court in the normal way. If an application is made for a prohibition or premises order, again, the respondent will have his or her day in court and will also be able to appeal against the making of the order. We therefore have judicial oversight where it is appropriate.

I have tried to set out the nature of our graded response to the trade in new psychoactive substances and to state why I believe that an appeal process is unnecessary in the case of a prohibition or premises notice.

The other amendments in this group seek to provide for the criminal standard of proof, rather than the civil standard, to apply when a court is considering making either a prohibition or a premises order—a point on which the noble Lord, Lord Tunnicliffe, sought clarification.

Clauses 17 and 19, which Amendments 65, 65A, 68 and 68A seek to modify, make provisions for the application process for prohibition orders and premises orders, outlining a number of conditions that need to be met for an order to be made. Proceedings under Clauses 17 and 19 are civil proceedings. Accordingly, it follows that the civil standard of proof should apply. The noble Lord suggested that, as the proceedings are part of the criminal process, the criminal standard should apply, but this is based on a false premise. The whole point of the civil sanctions in the Bill is to enable law enforcement agencies to adopt a proportionate response to any offending behaviour and, in appropriate cases, to seek to tackle the behaviour by action short of a prosecution.

The application of the civil standard to such proceedings is not without precedent. Under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, the civil standard applies to proceedings in respect of anti-social behaviour injunctions. The civil standard also applies to proceedings under Section 34 of the Policing and Crime Act 2009 in respect of gang injunctions. Of course, if a prohibition order or premises order is breached, the criminal standard of proof would apply to any proceedings for an offence under Clause 23, as I stated.

One of the key purposes of these civil orders is to enable the police, local authorities and other law enforcement agencies to act promptly to nip problems in the bud before they escalate. If the criminal standard of proof were to apply, it would necessarily dictate that more time was required for evidence gathering and there might be little to be gained by applying for a prohibition order as opposed to pursuing criminal prosecution for an offence under Clauses 4 to 8. These amendments would circumscribe the current flexibility built into the enforcement powers in the Bill, to the detriment of communities and defendants alike.

Much the same arguments apply to Amendments 85A to 85C to Clause 28. The clause provides that proceedings before the court under Clause 18 or Clause 25 are civil proceedings—those clauses relate to the making or variation of orders on conviction. It is the case that such proceedings take place in a criminal court, but it is important to remember that a prohibition order or premises order, as with similar civil orders, is not a punishment. As such, they do not form part of the sentence of the court. These orders are preventive in nature and in these circumstances it is again appropriate that the civil standard of proof and the civil standard of evidence should apply. Given that these are quite properly civil proceedings, I hope that the noble Baroness and other noble Lords with amendments tabled in this group will, on reflection, consider that the civil standard should operate and, in the light of this explanation, that the noble Baroness will withdraw her amendment.

Psychoactive Substances Bill [HL]

Lord Tunnicliffe Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Baroness Hamwee]

My Lords, I very much support what has been said on this amendment and, indeed, the amendment itself, in particular because we want to avoid driving those human beings who will go on using drugs underground. One small point I want to mention, before I forget about it, is that the impact in Northern Ireland should be looked at, because I wonder what has been happening across the border. The report by Mark Easton yesterday, to which the noble Baroness, Lady Bakewell, referred, revealed the difficulty that the police have in proving that a substance has a psychoactive effect. That seems to me to be very much at the heart of this, with only four successful prosecutions in five years.

The expert panel talked about “robust” definitions and the Constitution Committee of your Lordships’ House reported, I think yesterday, on the need for certainty. The Joint Committee on Human Rights probably does not have its full membership yet, but no doubt it would have taken points on the importance of certainty in legislation—it did so for other legislation, particularly the recent anti-social behaviour Bill. The Constitution Committee said:

“The Bill inevitably exists in tension (at least to some extent) with the principle of legal certainty since its raison d’être is the regulation of activities in respect of substances that may not currently exist and whose nature and composition cannot readily be prescribed in advance with any accuracy”.

I thought that was very honest of it. However, it then went on to comment about not making,

“unacceptably broad inroads into the principle of legal certainty”.

We may come on to some of the detail of that on later amendments, but it seems to me to be very relevant to the point that the noble Baroness, Lady Meacher, has made with this amendment.

A proper, independent assessment would mean that we had advice that was not from those defending their own scheme, which can sometimes happen. I hope that we can hear sympathetically from the Minister on this, because I have absolutely no doubt that the noble Baroness will pursue this matter throughout the passage of the Bill and she will certainly have support from these Benches when—not if—she does that.

[Lord Tunnicliffe (Lab)]

My Lords, somebody has to give the Government some support on this. Amendment 3 talks in the first proposed subsection about an impact assessment and it being used to justify the commencement of the Act. I do not understand Amendment 109, but Amendment 114 is clearly about delaying the commencement of some provisions of the Act until the report of that assessment has been considered. Amendments 3 and 114 between them would delay the commencement of the Act.

Although the balance was a little uncomfortable, we had a very good Second Reading, in which it was clear that the central debate was about whether you believed banning produces a benign effect or not. That was the essence of the debate, as it has been of the debates we have had today. The position of the Government is that effective bans are benign in their effect; the position of Her Majesty’s Opposition is that effective bans will have a benign effect; and the position of the Liberal Democrats was—at least until the election, we thought—that effective bans had a benign effect.

[Baroness Hamwee]

My Lords, I wonder whether I can quickly try to squash this. A clamp-down on new psychoactive substances, which was in our manifesto, is not the same as a complete ban.

[Lord Tunnicliffe]

I thank the noble Baroness for that clarification. As I say, we are divided between those who believe that banning has a benign effect and those who do not.

This is a simple, fairly narrow Bill to close a loophole in the 1971 Act which is growing exponentially. We believe that it is appropriate that this loophole should be closed urgently and that there is sufficient evidence to proceed to close it with this Bill, which we believe should be introduced as soon as reasonably possible. We believe new psychoactive substances are not safe and we want them to be illegal as soon as reasonably possible.

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[Lord Bates]

Let me try to avoid the ambiguity in it. The expert panel recommended that there should be a blanket ban. A blanket ban in the Republic of Ireland had been operating for three years, so it had had an opportunity to look at that. It looked at New Zealand and what had been happening there as another example. I can also point to the report in March from the Health and Social Care Committee of the National Assembly for Wales, in which recommendation 13 of its inquiry said:

“The Committee welcomes the Home Office’s expert panel’s recommendation of a ban on the supply of NPS in the UK, similar to the approach introduced in Ireland”.

I also have a quote from paragraph 4.23 of the report from the similar expert group set up by the Scottish Government:

“The Group agreed that there are a number of benefits to the Irish model, which could strengthen the tools that are currently available and being used by agencies to tackle NPS supply in Scotland”.

What I am doing here is piecing together the information to show that we did not whistle this out of thin air. Some serious people—whether you agree or disagree with them—looked at what was happening in Ireland, and this was their conclusion on which they based their recommendation.

To the next point, I am very much with the noble Baroness. I happen to think that one of the things with which we got close to this, mentioned by the noble Baroness, Lady Hamwee, was the Modern Slavery Act. It is without doubt the piece of legislation in either place with which I am most proud to be associated. One reason why was because of the process in which it actually engaged. It listened to the people who were on the ground, it talked to people, it talked to the experts, it framed legislation, it had pre-legislative scrutiny and there was an ongoing system of monitoring. Also, the Government committed themselves to proper post-legislative scrutiny; we will need to look at that. Should your Lordships and Parliament determine that the Bill gets on to the statute book, in our plans, although there is no set time for it, in a period of three to five years and certainly within the lifetime of this Parliament there will be some post-legislative scrutiny.

The other point which I make in passing here is that, if our friends in the Republic of Ireland were to undertake an impact assessment of our politicking to tackle this, it might not look so sharp. They would say, “Well, what has the UK been doing popping around with temporary banning orders, and every time they tweak one molecule the perpetrators and the traffickers simply change the packaging and change the molecule? What a ridiculous system that is”. In a sense it can go both ways and we must be conscious of that critique of us.

[Lord Tunnicliffe]

Can the Minister go back to his point on post-legislative scrutiny? I think the House at a subsequent stage may feel much more comfortable with this Bill if he were able to make some time commitment about when that would take place. Clearly he cannot now but I would be grateful if he would consult colleagues and see if he can be a little more specific at a future stage.

[Lord Bates]

I am very happy to do that. We are in Committee and this is where the Government listen to the arguments—

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[Lord Blencathra]

My Lords, I would be interested in hearing the Minister’s response to the noble Baroness, Lady Meacher. She seems to have a fairly good point—to me as an amateur anyway.

I wish to make my remarks mainly about Amendment 9. This may be heretical to noble and learned Lords and parliamentary draftsmen, but why can we not have the Government’s definition and the definition in Amendment 9? Definitions are going to be the big problem with this Bill—everybody recognises that—and I see no merit in brevity of definition if it makes for confusion. On the other hand, we do not want it to be tautological and we do not want too big a definition which is contradictory. I am sure that noble and learned Lords and parliamentary draftsmen will ensure that that does not happen. I ask the Minister to keep an open mind on this and be relaxed about extending the definition or picking up bits of Amendment 9 if it helps to bring more clarity, irrespective of the length of the definition.

[Lord Tunnicliffe]

My Lords, I shall comment briefly on this group. I hear the debate on Amendments 7 and 8 and will be interested in the Minister’s response. On Amendment 10, similarly, we will be interested in the Minister’s response.

On Amendment 9, I see this Bill—and I will be grateful if the Minister can flesh out whether he sees it in the same way—as a very narrow Bill. Broadly speaking, everything is illegal except the things that are defined as legal. Bringing in the word “significant” seems to me to be getting into significant bad and not significant good, and therefore we are into the area of legal challenges et cetera. The idea of the Bill, I think, is to be free from legal challenge and that is why it is formed in that way. The Minister will no doubt enlighten me.

The point of the noble Lord, Lord Howarth, on the process—of how the judgment will be made that a substance is psychoactive—is a good one. I would be grateful if either now, or perhaps in writing, the Minister could spell out how the Government envisage determining whether a substance is indeed a psychoactive substance.

[Lord Bates]

My Lords, these amendments seek to reframe the definition of a psychoactive substance for the purposes of the Bill. This Bill is designed to capture substances supplied for human consumption that have psychoactive effects. Its aim is to capture substances that are not currently controlled under the Misuse of Drugs Act 1971, but, as with all drugs when misused, carry health risks.

Subsection (2) provides that,

“a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state”.

We accept that this definition has been drawn purposefully wide. The nature of this market and of experience to date shows that producers of the substances are constantly and actively looking for loopholes to exploit, thereby fuelling this reckless trade. This learning has been central to how we have designed this Bill and in particular our definition.

By using a definition based on a substance’s effects rather than the chemical composition of substances, this legislation will avoid the issues that we have continued to face with the Misuse of Drugs Act 1971. Many new psychoactive substances are still legal due to the speed at which they are produced, with manufacturers inventing new substances by tweaking chemical formulas in order to avoid the existing controls. The need to capture such a wide range of substances, and any that might be invented in the future, necessitated a broad definition. The definition is in two parts: the trigger and the effects. The main effect of psychoactive substances is on a person’s brain, the major part of the central nervous system. By speeding up or slowing down activity here, psychoactive substances cause an alteration in an individual’s state of consciousness.

Amendments 7 and 8 in the name of the noble Baroness, Lady Meacher, seek to restrict the definition of a psychoactive substance so that it captures only synthetic substances. The nature of this market and of experience to date shows that producers of new psychoactive substances are constantly looking for loopholes to exploit, thereby fuelling their reckless trade. There are any number of natural products—such as fly agaric mushrooms and salvia divinorum—that are openly on sale in head shops and elsewhere which are far from safe though they are not banned under the Misuse of Drugs Act 1971. The Bill should give us a proportionate way of dealing with these substances as well.

Amendment 9 seeks to import the definition of a psychoactive substance—

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[Lord Bates]

That is a fair point, in that it is asking how this will be tested. We will come to those points because we are going to deal, to some degree, with medical testing and how it is possible to license some of these drugs so that they can continue to be tested. We were talking earlier about how universities and research institutions can continue testing on drugs such as cannabis. That is a key point: that testing will go on. I will make sure about that before Report.

[Lord Tunnicliffe]

May I take that as a commitment to write to noble Lords before Report? This has raised a very big question mark. Trying to hammer it out in words is too difficult; hammering it out on a piece of paper may give us much more confidence.

[Lord Bates]

I am happy to do that—let us set the matter out in writing. However, I want to state two basic principles that I hope that the noble Baroness in particular may just accept and will enable her to withdraw her amendment. First—going back to the first point—is that what is being sold in our streets and in head shops has never been tested on anything or anyone, yet is consumed by people in this country. That is the basis on which we are taking action. Secondly, we are mindful that the skilled perpetrators, manufacturers and distributors of this drug are in the sights of this legislation because we want to target them rather than the individual user. When they see a written definition they then go and find a potential loophole, something else appears on the market and the Bill becomes ineffective. We want to avoid that. Those are the two principles in play.

In the context of those two principles I am very happy to write with more detail on the mechanics of how that might be done, and perhaps a little more—looking at the Bill team—about the process we went through in consulting, to arrive at this definition. I hope that that will be helpful to the House and I undertake to do it before Report.