Psychoactive Substances Bill [HL]
Baroness Hamwee Excerpts(8 years, 10 months ago)
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Lord Norton of Louth (Con)
My Lords, Clause 3(2)(a) permits the Secretary of State by regulation to amend Schedule 1 in order to add or vary any description of substance, while Clause 3(2)(b) permits the Secretary of State by regulation to remove any description of substance added under paragraph (a). I appreciate that any regulation made under this provision has to be by statutory instrument, subject to affirmative resolution. I appreciate that paragraph (b), which, on the face of it, appears to be a Henry VIII power, is limited by the fact that the Minister can seek to utilise it only to remove a substance that the Minister has added under paragraph (a). A Minister cannot seek to remove a substance that is exempted under the measure as enacted.
However, I have a concern about the provision under paragraph (a) to vary the description of any substance. This concern is shared by the Constitution Committee of your Lordships’ House, and I declare an interest as a member of that committee. In its report published at the beginning of last week, the committee draws attention to the fact that the power to vary any description of substance could presumably be employed to narrow the description of such substances, thereby expanding the range of substances brought within the ambit of the Bill’s provisions.
The power to seek to vary the description of substance is subject to it being exercised by a statutory instrument but, given the breadth of the power and the absence of any definition of what is meant by varying a description of substance, that may be deemed an inadequate safeguard. Exercising the power by statutory instrument may be necessary but it may not be sufficient.
This is compounded by the fact that, as the Constitution Committee notes, the power to add, remove or vary the description of substances is not constrained by any explicit statement of the purpose or purposes for which the power may be exercised. Any constraint would have to be inferred from the scheme of the Bill but that may be difficult given that, as the committee notes,
“the Bill adopts an ostensibly neutral conception of what should constitute a (non-exempted) psychoactive substance”.
There is no notion of harm embodied explicitly in the Bill, so one cannot adumbrate clearly the range of substances upon which its provisions have effect. Given the wide power conferred by paragraph (a) to vary any description of substance, some amendment to the clause to make clear the meaning of vary would seem appropriate, along with a statement of the purpose or purposes for which the power may be exercised; in short, making it clear what it is and when it would be appropriate to use it.
If the Minister were to indicate that the Government would be prepared to consider amending the Bill along those lines, that would allay concerns about the broad and undefined powers given by this clause. Without such an assurance, the prudent course would be to remove altogether the provision to vary any description of substance. That would leave the Minister with the capacity to add by regulation and to remove by regulation anything added. That would offer at least some clarity in a way that we do not have at the moment. One either defines what is meant by varying a description of substance or one removes the term from the Bill. The amendment, by providing for removal, is designed to concentrate the Minister’s mind. I beg to move.
Baroness Hamwee (LD)
My Lords, my noble friend and I have Amendments 20, 21, 47 and 48 in this group. First, I welcome the introduction of this issue in Committee by the noble Lord, Lord Norton of Louth, which, as he said, was considered by the Constitution Committee. We are lucky to have committees which manage to just about keep ahead of the game in looking at legislation and helping the rest of the House in raising such issues. It is a very important point.
My amendments are in two pairs and both regard the regulations. One of each pair provides that when the Secretary of State consults before making regulations, as well as consulting those whom she considers to be appropriate, she should specifically consult the Advisory Council on the Misuse of Drugs both with regard to exempted substances under Clause 3 and excepting certain actions in regard to offences under Clause 10. The second amendment in each pair provides that she must also make a report to Parliament on the consultation. I have added that assuming that that is what would happen but I seek the Minister’s confirmation.
A number of people commenting on this Bill have said that the ACMD seems to have been sidelined when it should be upfront and the centre of what we are doing. I hope that this small point—it is not a small issue, but a small insertion—is something that the Minister and the Secretary of State would be glad to confirm as proper to be in the Bill.
Lord Howarth of Newport (Lab)
My Lords, we should be grateful to the noble Lord, Lord Norton, and to the noble Baroness for drawing our attention to these points. The Delegated Powers Committee and the Constitution Committee of your Lordships’ House had first done so, and it is unsatisfactory that there is so little clarity about the power to vary. We ought always to aim—certainly in this context—for as much legal certainty as it is possible to create.
I am glad that the noble Baroness, Lady Hamwee, has tabled amendments in this group that would amend Clause 10. This clause, which provides powers for the Secretary of State to create exceptions to offences, seems to be quite extraordinarily open-ended. I am rather surprised that the Constitution Committee did not draw attention to that as well. It leaves the Secretary of State free to retire from the field—to alter the specification of offences in all kinds of ways, subject only to the need to consult and the need for affirmative regulations. I submit that that is not a satisfactory way for the Government to legislate. Clause 10, if not Clause 3, does seem to create Henry VIII powers.
There is a broader constitutional point, which I think my noble friend Lady Bakewell made at Second Reading, when she noted that our normal constitutional practice—our normal tradition in this country—is to leave citizens free to do things unless they are specifically forbidden. The tenor of the Bill is to make everything forbidden, unless it is accepted in the field of the use of psychoactive substances. The House should be careful in permitting that kind of exception to constitutional tradition and practice. The policy had better work; it needs to be justified in its practice, because it is a somewhat objectionable principle.
The noble Baroness, Lady Hamwee, has tabled an amendment to require the Secretary of State to consult the Advisory Council on the Misuse of Drugs to report before exercising these different powers. It would be helpful if the Minister would clear up for us what consultation Ministers and their officials had with the Advisory Council on the Misuse of Drugs in the preparation of this report. It is, after all, the statutory duty of the ACMD to keep under review the situation in the United Kingdom in respect of drugs. However, we have been led to understand, possibly erroneously, that the first time that the Home Secretary sought the advice of the ACMD in drawing up this legislation was on 26 May, when she sent a letter asking for its advice on how to achieve better forensic services and to establish a comprehensive scientific approach to psychoactivity for evidential purposes. That was only two days before the Bill was laid before Parliament. It would appear, as the noble Baroness suggested, that the ACMD has been sidelined in the preliminaries to the legislative process.
It is by no means the first time that the advice of the ACMD has been rejected by Ministers of various Governments. Its recommendations in respect of the classification of magic mushrooms, cannabis, MDMA, khat and now of nitrous oxide have all been rejected by the Government. It was not always the case that the recommendations of the ACMD were so routinely ignored. Back in the 1980s, when we faced the crisis of mounting levels of heroin addiction and the spread of HIV and of AIDS, the ACMD’s advice was taken, to the great benefit of improved policy.
When the UK Drug Policy Commission chaired by Dame Ruth Runciman reported in 2000, and again when it published An Analysis of UK Drug Policy in 2007, it warned of the lack of research underpinning policy development, and that policymakers,
“operate partially blind when choosing effective measures”.
It would appear that that may still be the case in 2015. The recommendations of the Runciman commission were dismissed, as were the recommendations of the Global Commission on Drug Policy dismissed by the Home Office in 2011, as were, in 2012, the recommendations of the Home Affairs Select Committee that a royal commission should be established. However, policy should be made not on a basis of political expediency, but in response to evidence. It should be made not on a basis of anxiety about what the tabloids might say but on the basis of the advice of independent experts.
Professor Nutt, the chairman of the ACMD, was sacked essentially for telling the truth about the relative dangers of alcohol and tobacco vis-à-vis cannabis and ecstasy. Mephedrone was classified before the Government had received the advice of the ACMD, but following a huge campaign by the Sun newspaper and an endless series of “meow meow” stories, most of which turned out to be false when the facts were properly established. There were many resignations from the ACMD at that period. People in the front line of enforcement—the noble Lord, Lord Paddick, may be able to tell us something about this, if he chooses to do so—found that the vacillations and vicissitudes of policy made life very difficult for police officers in the front line of enforcement in Brixton or elsewhere.
Therefore, what advice does the Minister follow? What does he see as the role of expert advisers, and to what extent has the ACMD been consulted in this context? Certainly, I hope that he will answer the questions articulated by the noble Lord, Lord Norton.
Baroness Hamwee
My Lords, as we are in Committee, I would like to ask the Minister a question which I told the Bill team I would ask him, but which I forgot to include in my previous remarks. Why do the offences clauses, up to and including Clause 10, not receive a mention in the Home Office’s human rights memorandum, except a reference in the summary at the start of the memorandum? One would have expected that, having created new offences, they would have deserved some attention in that document.
Lord Kirkwood of Kirkhope (LD)
My Lords, I make a very short intervention simply to support this group of amendments ably moved by the noble Lord, Lord Norton, and in particular to support the plea of my noble friend Lady Hamwee for a better explanation vis-a-vis the advisory council—a point made eloquently by the noble Lord, Lord Howarth of Newport. When I read the Bill, I was astonished to find that the advisory council had been sidelined to the extent that it had. If it is to be sidelined in future, this is an extremely important change.
Speaking for myself, I will be looking very carefully at what the Minister says in reply to the previous speeches made on Amendment 47 because, if he is not careful, he might find another plethora of amendments being tabled at later stages to restore the advisory council to its rightful role, which it has discharged with distinction in my view since the 1971 Act. This is not an insignificant moment for me. If the Minister can persuade the Committee that these are simply incidental circumstances indicating that the advisory council has been put to one side for the temporary purposes of this Bill, that is one thing. However, if this is a systematic attempt to reduce its significance in future policy-making in this important area, I think noble Lords will want to return to this during later stages of the Bill.
Lord Bates
I think I have tried to deal with that important point. Effectively, it is a discussion about which came first, the chicken or the egg. On the exact phraseology—I am just trying to read and, being a simple man, I can do only one thing at a time; it is difficult to multitask at the Dispatch Box—my understanding was that the advisory committee used a particular phrase, which was not as strong as the noble Lord perhaps suggested. However, it was an invitation to the Government to explore legislation, which they then chose to do through a multidisciplinary panel along the lines I outlined earlier.
Clearly, there will be a point—once we have come back and published the Bill—where the Home Secretary, quite rightly, wants to explore further. The letter of 26 May to which the noble Lord referred, and which I do not have in front of me, sought the scientific advice of the ACMD on how we use forensics to determine what is a psychoactive substance. It was a particular task, which I hope demonstrates that there is a healthy relationship between the Home Office and the ACMD, which is not of course uncritical. It has a very important role to play. The fact that the chair and other members of that committee formed part of the group is important.
Let me just read out a point that has been highlighted for me. However, since October 2014, when the Government published their response to the expert panel’s report and Ministers wrote to the ACMD, we have been open and transparent about our plans to develop the blanket-ban approach, now encapsulated in the Bill. The Home Secretary has written again to the ACMD and we look forward to receiving its views on how we can strengthen the UK’s forensic capacity and capability to support the implementation of the legislation. I think that is broadly what I said the letter was about and what the response was. If there is any difference, I will write to the noble Lord.
In the mean time, I would be grateful if my noble friend would consider withdrawing his amendment.
Baroness Hamwee
My Lords, it is appropriate to mention that, as well as the two committees to which the Minister referred, the Secondary Legislation Scrutiny Committee also takes an interest in consultation on regulations. I was a member of it for quite a long time and we frequently asked officials to go back to different departments because an Explanatory Memorandum gave very little information about the consultation that had been undertaken and the responses to it. That probably got into my DNA so I did not even realise it was there in prompting me to raise this point. I would not threaten the Minister with the Secondary Legislation Scrutiny Committee but it will certainly be on top of this if the Explanatory Memorandum is inadequate in this respect.
Baroness Hamwee
My Lords, we have Amendment 28 in this group. The noble Baroness has covered the issues very thoroughly, particularly with regard to her Amendment 26, so I do not want to take too long. I struggled with the issue of research, in particular as to how Schedule 1 and Clause 10 fitted together, if they fitted at all. The noble Baroness alluded to that. As she said, the reference to the regulations in Schedule 1 raises the issue of non-human use and research for purposes other than those covered in the Medicines for Human Use (Clinical Trials) Regulations—for instance, understanding neurological processes. The definition seems to link a product with clinical trials. I am no scientist, but I do not know how you get to the point of a trial without a much wider exemption than we have as the Bill stands. Like the noble Baroness, I am concerned as to whether Clause 10 may be used to make research not an offence. I do not think that would be the right way to go about this but, if it is in the Government’s mind, questions would include what is being proposed, when it will happen and what the process of that will be.
On Tuesday last week, on the first day in Committee, I mentioned the problems of undertaking research on cannabis, through my amendment on medicinal cannabis. Those problems were described by Professor Curran and Frank Warburton in the report which I mentioned then. I am not entirely confident that our amendment captures everything that needs to be captured, and although I am glad to see the amendment on the same subject in the name of noble Lords, Lord Rosser and Lord Tunnicliffe, I am not entirely convinced that theirs captures everything either—but that is why we have Committee.
The correspondence which we received was very helpful in prompting us to focus on this. The Academy of Medical Sciences, in its letter to the Home Secretary, referred to the “important tools” that scientists need. This House has a well-deserved reputation for focusing on research and ensuring that research is assisted and not hampered. It is very clear to me that we need to explore this issue further and to ensure that the Bill does not hamper, but promotes, research.
Lord Howarth of Newport
My Lords, very briefly, I would endorse every word that the noble Baroness, Lady Meacher, said and put a rather practical consideration to the Minister. The noble Baroness, Lady Meacher, asked for a meeting, and I am sure that Ministers will wish to hold such a meeting. However, time is somewhat against us, as we have Report in a fortnight’s time, and it would be very helpful if the Minister could assure us that that meeting will take place. I am certain the Government will not ignore these very important representations from eminent research bodies in the medical field—they are bound to take account of them. However, just as the Academy of Medical Sciences has shared its letter with noble Lords who are participating in these proceedings, it would be very helpful if the Home Secretary would share her reply with us and if we could have, before Report, an explicit amendment tabled by the Government to remedy the defects that these eminent research bodies, under the umbrella of the Academy of Medical Sciences, have drawn to our attention.
Baroness Chisholm of Owlpen (Con)
My Lords, I believe that the noble Baroness, Lady Meacher, and the noble Lords, Lord Paddick and Lord Rosser, have the same ambition as the Government—to ensure that lawful medical practice and patient care, as well as bona fide research, are untouched by the provisions of this Bill.
The purpose of Schedule 1 is to list psychoactive substances exempted from the scope of the Bill. It excludes certain substances which are not the target of this legislation, and are mostly already subject to regulatory controls. Importantly, under paragraph 2, it exempts medicinal products; this is the subject of Amendment 25, as proposed by the noble Baroness, Lady Meacher. This covers those products that have marketing authorisations issued in the UK, in the EU, or such authorisation issued by the licensing authority. The current definition for medicinal products was a starting point for the Bill’s introduction and is being reviewed again by the Medicines and Healthcare Products Regulatory Agency.
We continue to test whether our objective is achieved by the schedule as currently drafted. For example, we recognise that unlicensed medicines for human use need to be taken out of scope. These are lawfully manufactured, imported, distributed or supplied for the treatment of individual patients after being ordered by a range of healthcare professionals, not just doctors. It was always our intention to remove these medicines and this activity from the scope of the Bill. In this case, we see the advantages of making provision on the face of the Bill—in Schedule 1 to the Bill—rather than in regulations made by virtue of the power in Clause 10. I confirm to the noble Baroness, Lady Meacher, that our intention is to bring forward appropriate amendments—if possible in time for Report—to ensure that the exemption for such products is properly aligned with existing medicines legislation.
Amendments 26, 28 and 49 all relate to safeguarding research into the medicinal and other legitimate uses of psychoactive substances. As I said, the Government attach a high priority to bona fide scientific research and to not putting in place unnecessary regulatory barriers that in any way impede research in the UK. We are actively ensuring, in accordance with our original intention, that any interaction between the provisions of the Bill and those conducting or supporting bona fide research into psychoactive substances is removed.
Along with the Department of Health, we are testing the need for greater latitude, over and above this exemption. As a priority, we are establishing how we best achieve this, perhaps through the drafting of further exemptions in the Bill. There could also be a case for making exceptions through regulations under Clause 10. We may well, therefore, bring forward government amendments on this issue on Report. I have listened to the concerns that have been expressed and all our further considerations will take account of the text and intent of noble Lords’ respective amendments.
Finally, the noble Baroness, Lady Meacher, has also tabled Amendment 27 in this group, which would exempt low non-psychoactive doses of psychoactive substances. My understanding is that such materials are used by forensic and other laboratories, which hold these chemical reference samples for investigative procedures. I can assure the noble Baroness that, as these substances are not supplied for human consumption, they are already outside the scope of the Bill.
I hope I have demonstrated that I have sympathy for the intention behind Amendments 25, 26, 28 and 49. We are actively looking at whether the definition of medicinal products needs to be strengthened and whether further precision is needed to safeguard legitimate research. We will also make every effort to get together with the experts; that is an excellent idea. On the understanding that we will return to these issues on Report, I trust that the noble Baroness will be content to withdraw her amendment.
Baroness Hamwee
My Lords, is there an issue around veterinary medicine as well as human medicine? I do not know the answer to that; it is a straight question. Is it something that needs to be looked at? The Minister is shaking her head, which suggests that one could go on producing veterinary medicines without offending under the Bill, which raises all sorts of other issues.
Baroness Chisholm of Owlpen
Veterinary medicines are not for human consumption, so they do not fall within the scope of the Bill.
Baroness Meacher
My Lords, I am grateful to the Minister for her response, which was very positive. I was particularly pleased that she agreed that these matters should be dealt with in the Bill, which suggests agreement that they are sufficiently important for them to be dealt with there, and said that the Government will be bringing forward amendments before Report on the medicinal matter and may bring forward amendments on the research matter. I understand from the experts—the scientists—that it is important that there are amendments before Report on that issue. I hope the Minister may be able to respond immediately to that point because it will be difficult to leave this one unless we have that assurance.
On the low-dose issue, her reply was interesting because I tend to agree with her that surely these things are not for human consumption. On the other hand, the matter has been raised with me by people who know about these things, and I must express my gratitude for the willingness of Ministers to meet the experts and cover that issue and the others because they are the people who need to advise Ministers about exactly what the wording should be on all these matters. I express my gratitude, and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I will speak also to Amendments 31, 32, 33 and 34. In view of the debate on the previous amendment, I should declare that some of my friends say that, when doctors ask the question, “Does anyone ever comment on your drinking?”, I should say yes because I drink so little. On the other hand, coffee and chocolate—now, there you are talking.
I am concerned about the definitions in Schedule 1. For example,
“‘caffeine products’ means any product which … contains caffeine, and … does not contain any psychoactive substance”.
I am bemused by this. It must mean “does not contain any other psychoactive substance”, in which case we should say so. We have heard that the Government will be responding to the Constitution Committee. I will not say that the committee was also bemused—that would be very disrespectful—but it pointed out some issues with the relationships between exemptions and so on. We await the response.
The first three amendments are all the same and the fourth one is, in essence, the same as the first three. The last amendment in this group refers to instruments relating to food. The noble Lord, Lord Blencathra, talked about the amount of EU regulation on this issue. I am interested in the words,
“the use of which in or on food is not authorised by an EU instrument”.
Should it not be “an EU or other applicable instrument”, which is what I am suggesting?
Even if there is no secondary legislation or any ruling which applies to this, perhaps we should future-proof it in case there is. I beg to move.
Lord Mackay of Clashfern
My Lords, the “other” must be implied and I see no reason why it should not be expressed. I think the amendment carries itself fairly easily.
Baroness Chisholm of Owlpen
My Lords, I understand that these are probing amendments which seek an explanation of some of the drafting in Schedule 1. Amendments 30 to 33 broadly deal with the same point, although Amendment 33 is in different terms to the others.
I am hesitant to say this following that which we have just heard but, taking alcohol as an example, Schedule 1 defines an alcoholic product as,
“any product which … contains alcohol, and … does not contain any psychoactive substance”.
The question is why the second limb of this definition does not refer to “any other psychoactive substance”. The answer is logical but, needless to say, not entirely straightforward. It hinges on the distinction between the natural meaning of the term “psychoactive substance” and the meaning given to that term by the Bill.
Under Clause 2, as we now all know, a psychoactive substance is a substance which,
“is capable of producing a psychoactive effect in a person who consumes it, and”—
importantly—
“is not an exempted substance”.
Alcohol is an exempted substance and so is not a psychoactive substance for the purposes of the Bill. It is therefore not necessary to refer in the definition of alcoholic product to “any other psychoactive substance” because we have already excluded alcohol from the definition of a psychoactive substance. I hope that makes sense.
Amendment 34 touches on a different issue—food additives and flavourings. These are already authorised under the EU legislation so the reference in paragraph 10 of Schedule 1 to an EU instrument—ugly though that may sound—is all that is required. My understanding is that this amendment would expand the paragraph referred to to read “an EU or other applicable instrument”. However, only EU instruments are relevant here and so the additional words are not required. I should perhaps add that we have discussed and agreed with the Food Standards Agency the approach taken in paragraph 10 in Schedule 1.
The noble Baroness suggested that the additional words might provide future-proofing. However, I remind her that there is a regulation-making power in Clause 3 designed with that in mind. In the light of this rather complicated explanation, I hope the noble Baroness will be content to withdraw her amendment.
Baroness Hamwee
My Lords, the Official Report will not record the facial expressions around the Chamber in response to the Minister. I think I follow what has been said, but whether it is a sensible way of writing legislation I rather doubt. Legislation should say what it really means and not leave us struggling to justify such really quite difficult wording. I am tempted to press this to a Division, but we have a lot to get through today so I will not take the time now, but who knows? I beg leave to withdraw the amendment.
Lord Mackay of Clashfern
My Lords, I support both sets of amendments, on prisons and vulnerable children. It strikes me that these are quite clearly aggravating factors and we should do everything we can to prevent these drugs being introduced to prisons and to vulnerable children.
Baroness Hamwee
My Lords, Clause 6, I believe, replicates almost exactly the provision in the Misuse of Drugs Act. Without commenting on either of the areas of concern, although I quite understand the concern, my question to the Minister is: have the Government had any advice about extending the list of aggravating factors generally? Right at the start of Committee we raised the issue of a review of the Misuse of Drugs Act. This is the sort of thing that could well come within the scope of a review.
The Minister will explain to the Committee in a moment the one word which would be different from Section 4A of the Misuse of Drugs Act and that is in his Amendment 43 to Clause 6(6). The MDA talks about delivering a controlled drug to a third person. Like the original drafter of this provision, I would have thought that referring to a psychoactive substance is logical and if we take out the word “psychoactive”—unless we are going to be told that that is what we have to read into it—it would seem to mean that if someone under 18 delivering anything to another person in connection with an offence falls within this. But I had better not further anticipate what we will be told about this.
Lord Bates
My Lords, these are two very important areas—prisons and children—and I am grateful to the noble Lords, Lord Rosser and Lord Kirkwood, for introducing these amendments.
I will put some remarks on the record but, given the views that have been expressed around the Chamber regarding children, I will undertake between Committee and Report, if the Children’s Society and noble Lords were interested and the right reverend Prelate was minded to join us, to arrange for us to meet the Children’s Society, with officials, and really examine this part of the Bill to see whether this is something that we need to look at in more detail. I will put some general remarks on the record but that is a commitment that I am happy to give in this important area.
I begin by acknowledging the problem that new psychoactive substances are causing in prisons, and take this opportunity to reassure noble Lords that a wide range of work is currently under way within the National Offender Management Service, including clear and unequivocal guidance to prison governors and staff about the dangers posed by these substances. There is a widespread prison media campaign, including the use of prison radio, to ensure that all prisoners are aware of the very serious risks associated with using new psychoactive substances. A National Offender Management Service steering group has recently been established to deliver actions on supply reduction; demand reduction; data and research; and messaging and communications.
Lord Kirkwood of Kirkhope
I hope I can say on behalf of the Bishops’ Bench that the offer of a meeting is welcome. If we can do that in association with the Children’s Society, that meets our immediate request and I would be happy to operate on that basis.
Baroness Hamwee
My Lords, if the correct way of dealing with subsection (6) is just to refer to the delivery of a substance, are the Government considering changing Section 4 of the Misuse of Drugs Act—I do not have the Act with me—to take out the reference to a controlled drug? I do not expect an answer at this point but I am not immediately persuaded that they should be different.
Lord Rosser
Before I respond on what I am doing with the amendment—I shall be withdrawing it; I do not want to appear to suggest that I am going to do something else—can the Minister say whether the Ministry of Justice is interested in seeing this become an aggravating feature in prisons?
Psychoactive Substances Bill [HL]
Baroness Hamwee Excerpts(8 years, 10 months ago)
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Baroness Hamwee
I am sorry to interrupt the noble Lord when he is in full flow, but I think he might be coming to the end. If he is considering bringing this back, I wonder if I could raise one thing that has been troubling me during this debate, concerning the advice as to harm or danger. If it is advice as to whether something is or is or not harmful, perhaps before the next stage, he might think about duties of care and liability and all those things. If it is advice as to whether a substance is dangerous, very dangerous or fatal, does he share my concern? I am not seeking to pick holes; I genuinely want to explore the subject. My concern is that if there are those categories, the lowest category would be interpreted as meaning “not harmful”; in other words, it would be reduced to people thinking, “Well, it’s not fatal and it’s not very dangerous, so it must be okay”. I do not know if there is a way through all this.
Lord Howarth of Newport
The noble Baroness, Lady Hamwee, makes a very important point, and I think that it was strongly suggested by the noble Baroness, Lady Chisholm, as well. We have to convey that there is no such thing as a safe dose. We are dealing with relative harms. We are helping individuals who are possibly ignorant, gullible and vulnerable—they may be very knowledgeable—to navigate their way through what is very treacherous territory indeed. The Government, in partnership with other well-intended agencies, NGOs and the voluntary sector, should be quite systematic about trying to ensure that the best information is available to people who are going to take risks and may come to appalling harm. In this policy-making process, we are looking for the least bad solution. We are not dealing with an ideal world—there is not going to be a drugs-free world; some would contend that that is not even an ideal. At any rate, the practical reality is that people will always use drugs, so our responsibility as good citizens and the responsibility of the Front Bench opposite on behalf of the Government is to minimise harm and danger.
Finally, the Minister talked about the value of the European early warning system, which is an important component of the array of policies to try to protect people from harm. But as the noble Lord, Lord Norton, inquired, we need to know how the Government intend to make sure that those early warnings are widely circulated and reach the people who are perhaps most in need of them. Earlier this year there was a spate of stories about people being killed by taking new psychoactive substances, which seem to have arrived somewhere in East Anglia and were spreading quite rapidly across the country. Whether or not there had been an early warning from an official European system, the fact is that people did not get the advice they needed in time. We have to think of all the best practical ways we can in order to help spare people that kind of fate. In the mean time, I beg leave to withdraw the amendment.
Baroness Hamwee (LD)
My Lords, I agree with so much of what has been said and will endeavour not to repeat it, other than just a little.
The point made about the appropriateness and therefore the credibility of the person undertaking the education, as I shall call it for want of a better word, is something about which I feel very strongly. When I was about to leave school—they left it until after our A-levels to give us anything that might now come under the heading of PHSE—there was a short, embarrassed and embarrassing discussion, which was not a discussion because we were talked at, by the member of staff least likely to be identified with by any of the 18 year-old girls present. The talk was about the white slave trade, and none of us could identify with her or with it because it was so unrelated to real life. Therefore, the term in subsection (1) of the amendment referring to “the realities” struck a chord with me. This work has to be trusted and be undertaken by somebody who is saying things that seem sensible to the people listening to them. That may include variations in harm and degrees of harm. If some substances are not harmful, one needs to say so. In subsection (1), I also liked the words,
“informed, risk-aware, resilient and responsible”,
which cover an awful lot of important ground.
I would want to see this work done in a wider context. Alcohol, tobacco, coffee and chocolate are I suppose referred to here. I wonder whether one can divorce this kind of education from sex education, for instance, because it is all about recklessness and about kids getting themselves into situations that are difficult and hard to get out of. What is in here is hugely important but it is part of a wider picture and needs to be presented as such.
With regard to Amendment 104, my noble friend and I refer to similar measures as part of our amendment about decriminalisation for possession—in other words, what can be done if someone is found to be in possession but it is not an offence. We have linked drug treatment and awareness. In that context, I should confess to the House, because there are all sorts of awareness courses, that I once had to go on a speed awareness course. Your Lordships can interpret that how you like.
The Minister of State, Home Office (Lord Bates) (Con)
I was getting nervous at that point for the noble Baroness, but was it speed as velocity?
Lord Bates
My Lords, I am grateful as these are important amendments and I pay tribute to the noble Lord for introducing them. When we had our meeting of all interested Peers, he said that it was vital that we spaced our time in Committee to allow in-depth debates on the key themes which run through drug policy. To me one of the key themes, along with enforcement, must be the value and importance of education. The noble Lord has afforded us that opportunity, along with the Official Opposition, and I am grateful for that.
I want to address some specific concerns, but a number of the points that I will raise were touched upon by my noble friend Lady Chisholm. She was good enough to say something about me but, behind the scenes, the great joy which your Lordships cannot see is that when we are having our briefings, because of her distinguished background in nursing and her volunteering within a drug rehabilitation unit, she brings great sensitivity and understanding to this issue. I have drawn on that many times myself and I am grateful for it.
I want to start with the big picture on education. The more that I have looked into it, the more I think that the most difficult thing in winning the battle in education has been the term “legal highs”. The fact that we have seen this sort of heading everywhere—it is pervasive, even on the high streets—saying there is somehow a high which is not age restricted, and which you can walk into a shop to get without being prosecuted for it, has been one of the most dangerous things for the policy of education. One of the groups which came to see me and officials at the Home Office in support of the Bill said that, above all, they wished that we could get the message out to young people that these are often not legal highs but lethal highs. Because of the point that the noble Lord, Lord Kirkwood, made at Second Reading about the pharmacology of these drugs, the term used was that people are often playing Russian roulette as to which part of the batch they receive. Added to the fact of their being able to get these substances on the high street through a store, without producing any ID or proof of age whatever, it does immense damage to the education cause to which we are all committed.
As in other parts of the legislation, we have sought to draw upon expert opinion where we can. A number of recommendations were made in the report by the Advisory Council on the Misuse of Drugs, Prevention of Drug and Alcohol Dependence. It highlighted the importance of embedding universal drug prevention actions in wider strategies to support healthy development and well-being in general. It also recognised that targeted, drug-specific prevention interventions remain a valid approach to those individuals considered to be at risk of harm. That came on board along with the expert panel’s report. When the noble Lord, Lord Rosser, spoke at Second Reading, he really tried to put me on the spot by saying that there was a substantial section in the expert panel’s report about education. While that was published under the coalition Government, he wanted to know whether it would remain government policy. I made the point that that was absolutely the case and that we remain committed to it.
I am pretty sure—and I will write on this if I am wrong—that the relatively small amount of £180,000, which was quoted in the Written Answer, will be part of a breakdown of the £7 million. The majority of that is a health lead and we were talking about what the Home Office spends, not on overall drug prevention, but specifically on new psychoactive substances. That is a key element.
I know this may sound strange but the legislative programme has a place in provoking awareness. I know this from my own Twitter account, where I now have a large number of new followers who do not necessarily agree with the policies of HMG in respect of new psychoactive substances. I am also realising that saying that might also get me trending on social media. I welcome this, because it is part of people engaging with the debate and the legislative process. People are asking, “Should they be banned?”, “Should there be a universal ban?”, “Should we be having partial bans or temporary banning orders?” and “Should we be widening the debate?”. The more young people who engage with the type of debate we have in this House the better.
In a similar vein, my noble friend Lord Blencathra talked about people in suits not being taken seriously when they talk in schools about drug prevention. I must be careful what I say here, given her presence in the Chamber, but the Lord Speaker’s schools outreach programme is very effective and I had the privilege to take part in it. People engage with it and talk about legislation and about the fact that legislating is not easy.
Baroness Hamwee
“( ) add any substance;”
Baroness Hamwee
My noble friend and I also have in this group Amendments 19 and 22. This takes us to the exemptions from the substances which may be the subject of the commission of an offence, and the other provisions in the Bill.
Our first amendment would allow the Secretary of State, by regulation, to add other substances to the list in Schedule 1. I wondered whether that point was covered by,
“add … any description of substance”,
but I do not think that normal language would mean that, and the Constitution Committee—I suspect the noble Lord, Lord Norton of Louth, is going to mention this—did not think so either. If it is not going to be possible in the Bill as drafted for other substances to be added, then why not? That seems to fly in the face of the respect that we all pay to the scientific process.
Dealing with certainty of provision and ministerial authority in respect of exempted substances, the Constitution Committee commented—I will mention just this one paragraph—on the powers of the Secretary of State being,
“unconstrained by any explicit statement of the purpose or purposes for which that power may be exercised”,
and suggested that:
“The House may wish to consider whether it is appropriate to confer upon the Secretary of State a power … unconstrained by any textual indication as to the purpose”.
That is part of the theme of certainty, which we touched on earlier. Amendment 19 would require the Secretary of State to exercise that power to add any substance—my addition—or to add or vary any description, or remove any substance, on the basis of recommendations of the Medicines and Healthcare Products Regulatory Agency; in other words, to implement its recommendations. The Secretary of State must also use the power to include a substance where that body or the Advisory Council on the Misuse of Drugs,
“determines that the substance poses a low overall risk”.
As regards the bodies which would make recommendations or a determination under this amendment, more than respect has been paid to both those bodies during this debate. The ACMD should be at the front and centre of this debate; it seems to have been somewhat sidelined in some of the consideration of the Bill. Our amendment in the next group, which we will look at next week, addresses that point.
In proposed new subsection (2B) in Amendment 19, we refer to the determination of a substance which poses a low overall risk. I can see that phrase might be thought to be rather woolly and insufficiently tough on drugs. However, it comes straight from Section 1 of the Misuse of Drugs Act, which sets out the role and responsibilities of the ACMD, whose duty is to keep under review drugs, the misuse of which,
“is having or appears to them”—
the ACMD—
“capable of having harmful effects sufficient to constitute a social problem”.
It goes on to talk about,
“preventing the misuse of … drugs or dealing with social problems connected with their misuse”.
I take that to be very wide indeed, and to include health. We think that that phrase would properly link assessments as to what should be exempted with terminology which must now be understood in this field. I beg to move.
Baroness Meacher
My Lords, in speaking to Amendment 16 I will also support Amendments 14, 17, 18 and 19. Amendment 19, on low-harm substances, links very closely with Amendment 16, and I will concentrate on Amendment 16 because of that particular focus.
Amendment 16 seeks to exempt from the scope of the Bill substances deemed to pose low health, social and safety risks. One of the objectives is to take a small step towards harmonising the Bill with the EU regulation. The Government have every right to opt out of the EU regulation, and of course they did so. However, there are very good reasons for attempting to move towards a degree of harmonisation. Paragraph 1.1 of the EU regulation says that,
“national restriction measures, which may differ depending on the Member State and on the substance, can hamper trade in the internal market and hinder the development of future industrial or commercial uses”.
So there are free market issues where the UK may cause problems for our own industries, and indeed trade, if the Bill goes ahead unamended. Amendment 16 goes some way towards reducing those obstacles to trade. Does the Minister know how significant the commercial and trade implications of the Bill will be for the UK if it is not amended in the way that Amendment 16 suggests and, if not, will he have these barriers assessed before introducing the Bill?
Lord Bates
At the invitation of the noble Lord, Lord Howarth, I will tell him why we disagree with him. He is right to say that in the previous groups we explored certain elements of common ground and were willing to look at them. But here, in essence, we go to the heart of the difference—a philosophical difference—between the two sides. On the one hand, does one go down the line of leaving the door open—in the right reverend Prelate’s helpful phrase, the “yes, but” approach? Or, do you say, “No. We have tried that. It is a blanket ban. We have been very clear about that”. Do you go down that route?
The expert panel wrestled with this. It was not an easy call. It set out opportunities for creating a regulatory model and looked at the New Zealand model very carefully indeed. The panel saw that there were some opportunities and good standards could be achieved—all of the points the noble Lord mentioned. But the panel said that the problem with creating a regulatory model is that it does nothing about the availability of new psychoactive substances, and use of “approved” NPS may increase, with “low risk” considered “safe” by the public. There could be the possibility that approved NPS may act as a gateway to illicit drugs. There may be a risk that unregulated drugs could be passed off as being regulated. The model could be costly and timely to implement, including establishing a regulatory body. It would not be a simple system to enforce, including the need for substance testing and test purchases. It could be difficult to prove the long-term safety of a product before it is authorised. It would be a challenge to define “low risk” and it could be a legal risk if “low-risk” products actually caused long-term harms.
Having weighed up all those points, the panel came down on the side of a blanket ban, saying that a regulatory model would not provide a proportionate response, as the infrastructure required to support the approach following primary legislation would take 12 to 18 months to develop, based on New Zealand estimates, and a mechanism for controlling NPS that were not “low risk” would still be needed, which could lead to confusing messages about NPS overall.
The regulatory power in Clause 3 has been designed to provide clarity so that there is no doubt as to our position on new psychoactive substances—they are banned—and to future-proof the list of exempted substances and ensure that substances such as medicinal products are not inadvertently caught by a 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, not because the Government consider them harm free, as is the case with smoking and alcohol. Certainly the Government do not go around with a cavalier attitude. They spend a great deal of time and employ various taxation and duty regimes to dissuade people from consuming either in excess. The Home Office expert panel considered the merits of a regulatory regime as part of their examination of how best to enhance our legislative response to new psychoactive substances. In looking at the opportunities and risks presented by such an approach, the panel considered the regulatory regime adopted in New Zealand. I will not deny that the expert panel identified some opportunities inherent in such an approach. I have touched on some of those.
Effectively, these amendments challenge what I would call an essential principle of the Bill before us and undermine the essence of the Government’s approach, which has been to listen to the views of the expert panel, consider the evidence and come forward with legislation. That is what we have done. These amendments would challenge the very heart of that principle. For that reason, I am afraid, the Government cannot support them. I ask the noble Lord to consider withdrawing them.
Baroness Hamwee
My Lords, I do not know whether I missed it, but the response seemed to be almost entirely to the noble Lord, Lord Howarth. I clearly need to go back and read what the answer was to the first of the amendments and my other amendments in the group. Given the time—
Baroness Meacher
I feel awful intervening at this time of night. We all need to go home. I just want to raise the point that the expert panel was established, as I understood it, rather than referring to the ACMD for its advice on some of these issues. I do not want the Minister to reply right now—perhaps he can do so when we next meet—on the question of how the expert panel was selected. It seems extraordinary to me that any set of experts would advise against having a calibrated system of low, medium and high risk and risk-associated penalties and responses to drugs. At this late hour I do not wish to say more, but I would be grateful if the Minister thought about this before we meet.
Psychoactive Substances Bill [HL]
Baroness Hamwee Excerpts(8 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
That is not exactly what the amendment says and we see a risk there to the prospects for the Bill, which carries the support of the Official Opposition and was in their manifesto. It was in the Conservative manifesto that we would bring forward this legislation. Norman Baker, who was the Liberal Democrat Minister in the Home Office, wrote to the Advisory Council on the Misuse of Drugs in the following terms:
“As our response makes clear, we will explore the feasibility of a UK wide new offence(s) by which the distribution for human consumption of non-controlled NPS is prohibited, based on the approach taken by the Republic of Ireland in 2010. This would give law enforcement greater powers to tackle NPS in general, rather than on a substance by substance basis. The international experience shows that it would have the most impact on the open availability of non-controlled NPS in high street ‘headshops’ and on UK domain websites, placing downward pressure on NPS related harms”.
That was from a Liberal Democrat Minister in the Home Office, not in history but in August 2014. Lynne Featherstone, who was then the Minister at the time, said on 11 March:
“I will be working right up until the dissolution of Parliament to ensure we have done as much as we possibly can to pave the way for a general ban. This will mean the next government can act quickly to clamp down on this reckless trade”.
Those are not the comments of some distant academic but the words of another former Liberal Democrat Minister in Her Majesty’s Government.
Action needs to be taken urgently to tackle new psychoactive substances, but we have not acted in a knee-jerk way, as has been suggested. The Advisory Council on the Misuse of Drugs looked at this in 2011 and issued a report saying that we should explore legislation to introduce a ban because it was clear that temporary banning orders were not working on an individual case-by-case basis. We then said that we would set up, in addition to that, an expert panel to take a broader range of views, including from law enforcement. That expert panel came to the view that there should be a ban on new psychoactive substances. That view was supported by the Home Affairs Select Committee and by the other committees in Scotland and Wales that the noble Lord, Lord Rosser, referred to. It was also of course endorsed by action by the Government in the Republic of Ireland. This is not a knee-jerk response: it has been gathering pace over a period of some three to four years. We have been steadily building up and testing the case, listening to the police and local government, and finding out what is working and what is not working. This is what they have recommended that they want to see.
This is not the end of the matter. In the wider debate, there is no reason there cannot be ongoing exploration of the effectiveness of the Misuse of Drugs Act. The All-Party Drug Misuse Group frequently produces excellent and thorough reports looking at the effectiveness of that overall policy. The Home Affairs Select Committee has the ability to look at this, and has done so. I think that there have even been specific reviews of the Misuse of Drugs Act; for example, in 2001 under the Labour Government. I am going from memory there rather than the official note, so I have to be very careful, but I think it might have been Dame Ruth Runciman who led a review of that nature. This is about timing, and if we need something further, there are many excellent avenues through which that exploration can take place.
The Government’s response is that we have a piece of legislation—the Misuse of Drugs Act—and we have a cross-government policy, which involves health, education and law enforcement. We listened to that advisory committee, took further evidence from the expert panel and recommended the course of action which we are now taking and which this amendment would delay coming into effect. That is why we do not want this amendment to be agreed and why I urge the noble Lord to withdraw it. We have made our case and built the evidence, and we have a mandate from the electorate on the manifesto to act in such a way—as did the noble Lord’s colleagues who served in the previous Government.
Baroness Hamwee (LD)
My Lords, a few minutes ago in his speech, the Minister distinguished between the issue of new psychoactive substances—the substance, if I can use the word, of the Bill—and the review of the Misuse of Drugs Act. My noble friend will deal with the fact that those are linked but distinct and the fact that we are not seeking to wreck the Bill, as some have suggested.
I wanted to intervene because of the reference to the report of the expert panel. We will come on to some of these issues in later groups of amendments, but one of its recommendations was about exploring,
“the feasibility of an approach to control NPS”,
and referred to,
“taking into account the need for … a robust definition in the legislation”—
an issue we are clearly going to come to. It also referred to,
“monitoring … possible adverse implications and unintended consequences”,
which we will come to as well.
In the next recommendation it also refers to “robust” definitions and needing to build,
“on learning and evidence from countries that have already taken this approach”.
It is not quite as simplistic and narrow as perhaps some noble Lords might be thinking from the debate all round the Committee.
Lord Bates
I certainly agree with the noble Baroness that the wider issue is not narrow, it is very broad, but what we are trying to do here with this Bill is very narrow. It is very focused and based on the evidence. The noble Baroness says that the two amendments are linked but distinct. Now she is a lawyer and I am not, but to me if they are linked then they cannot be distinct. They are linked in the sense that if they are both moved together, then one effect will be to have a review which will delay action being taken on this menace—or mischief, as the noble Lord, Lord Condon, said—which is happening up and down this country and through which people are suffering and dying. We need to take action and we are doing that on the basis of medical evidence, law enforcement evidence and evidence from the Local Government Association.
Baroness Hamwee
“( ) Section (Control of Cannabis) provides for legal possession and supply of cannabis prescribed by a doctor.”
Baroness Hamwee
My Lords, this amendment is also in the name of my noble friend Lord Paddick, and I will speak to our Amendments 50 and 110. Amendment 50 is the substantive amendment and is about the use of cannabis for medical purposes, which was trailed in the previous debate by the noble Baroness, Lady Meacher.
I cannot pretend to be an expert on the scientific and medical details of this issue, but politicians are not expected to be experts. We are generalists, here to represent strands of opinion and concern. As I cannot pretend to be an expert, it may therefore be that I will not understand the response from the Minister, except that I will almost certainly understand what will come as a no, judging by his Answer to the Oral Question asked by the noble Baroness, Lady Meacher, last Wednesday. On that occasion, the Minister said that the steps that she was inquiring about and that I am proposing in this amendment would,
“undermine … efforts to reduce drug harms”.—[Official Report, 17/6/15; col. 1158.]
But our concern is to enable cannabis and cannabis resin to be used for good and to reduce the danger of harm—we have many other amendments aimed at harm reduction. The matter was considered in 1998 by the House’s Select Committee on Science and Technology, which noted that it was rejected by the then Government on the day of publication. There have been other reports since, and very recently a report for the All-Party Parliamentary Group for Drug Policy Reform by Val Curran, professor of pharmacology at University College, London, and Frank Warburton. I am very grateful for such a readable report. It is so readable that I was tempted to read the whole of it out because it is quite short, but I will not. I will spare your Lordships that and attempt to pick out the points that I think are particularly salient.
Professor Curran writes that the problem of,
“a significant number of people”,
who,
“are not authorised to receive medication which they believe will alleviate their condition … are compounded by: An inflexible legal framework … A stranglehold on research into cannabis”,
and, as she puts it:
“A determination when considering medical licensing to equate cannabis, a well known substance in terms of its effects on humans and used medically for around 4000 years … with an entirely new chemical introduced by a pharmaceutical company”.
Therefore, Professor Curran and this amendment propose that these substances should be moved from Schedule 1 to the Misuse of Drugs Regulations 2001, which deals with substances perceived as having no recognised medicinal use, to Schedule 2, which would allow a doctor to prescribe them. They would be in the same class as heroin or diamorphine. I understand that there is no evidence of significant diversion of heroin from medical supplies to the illicit market—to anticipate one possible argument. They would be subject to strict controls via medical regulation, so the diversion to recreational use would be unlikely—to anticipate another possible argument.
Medicinal herbal cannabis is available in the Netherlands, in 23 states of the USA, in Canada and in Israel. Its most-established uses include the relief of pain and muscle spasms or cramps associated with many diseases and conditions, including multiple sclerosis and spinal cord damage, nausea and other responses during treatment for cancer and AIDS; and to deal with nausea and vomiting associated with chemotherapy and radiotherapy used for that treatment. The particular cannabis substances are being exported from the Netherlands to eight other European states, including Germany and Switzerland.
In the exchanges on the Oral Question asked by the noble Baroness, Lady Meacher, last week, the Minister referred to the drug Sativex having been licensed here. Indeed it has been, but it is very expensive and NICE recommends that it is not used to treat spasticity in multiple sclerosis sufferers because it is not cost effective. However, specialist prescribers can and do make individual funding requests, which has led to wide variations across England, and in Wales its use is approved.
It is no wonder that, given no access to legal cannabis-based treatment in a practical sense and no access to herbal cannabis legally, an estimated 30,000 people in the UK find their own sources, with the concomitant risks of severe side-effects, greater potential harm, and no benefit because most street cannabis is skunk with a different make-up from Sativex and from the drug that is manufactured and exported from the Netherlands and elsewhere.
In the Netherlands there has been a genetic alteration to maximise the benign substance, CBD. There is no THC in the drug that is produced there. Professor Curran also reports on a “Stranglehold on research”, as she puts it, and that Schedule 2 status for cannabis and cannabis resin would “greatly facilitate research”. In her report, Professor Curran talks about the “costly obstacle course” and the delay taken by licence applications for use in research. She refers to practical problems such as the need to import cannabis, with import licences being granted for 12 weeks and expiring before all the arrangements for the import licence to be implemented can be made. She said at a meeting that I attended a couple of weeks ago that it is,
“a shame not to allow talent to fly”.
I could have suggested a more caveated amendment—for instance, starting with clinical trials—but I wanted at this stage to get to the heart of the matter. This is about facilitating and stimulating research in the UK into the drug and its constituents, above all by allowing the import of a drug that is widely used—and much less expensive—in the Netherlands, to enable patients to access it without breaking the law and without risking the harms of an unlawful drug without medical supervision or quality control. I beg to move.
Baroness Meacher
My Lords, I shall speak briefly to this amendment because the noble Baroness has said most of what I was going to say. The aim, of course, is to decriminalise the 30,000 patients in this country who currently take cannabis not because they want some sort of high—they do not—but because cannabis, they say, is the best drug for their particular pain, seizures or discomfort. It seems to me that that is important.
The types of illnesses that can be helped have already been stated: multiple sclerosis, Parkinson’s disease, Crohn’s disease, epilepsy, chronic pain, glaucoma, and nausea and loss of appetite caused by chemotherapy. That is a lot of illnesses—disturbing and distressing illnesses—the symptoms of which can be alleviated by cannabis, so it does seem strange that there is such a resistance to reschedule cannabis from Schedule 1 to Schedule 2. Any substance from Schedule 1 has no recognised medicinal use. I just do not understand this, but maybe the Minister can comment on how any Government—it is not this Government; it is every Government—can continue to maintain that cannabis has no recognised medicinal use when Germany and Italy make sure that people with these illnesses can gain access to it. Germany and Italy and many countries across the world know that this is important for their populations. It would be really helpful if the Minister would consider that point.
I also want to draw the attention of the Minister and your Lordships to the extraordinary case of a little seven year-old boy called Jayden. Jayden suffers with Dravet syndrome—an extremely severe form of epilepsy—where he has at least 500 fits a day. He was on 22 pills a day including benzodiazepines. These medications plus the seizures resulting from the illness were giving him hallucinations and terrors. The poor child would scream for literally eight hours at a stretch until he was exhausted and presumably would fall asleep. His mother left home because she could not take it, so he was being looked after by his father.
When the child was four and a half, the father was told that he probably would not live another week. The father asked whether he should try medicinal cannabis. The doctor said that he should try anything, and so he did. The day after the child was given cannabis that the father had found in a chemist’s—this was in the United States; it could not happen here—the child suffered no fits, and then no fits on the following day. Since then he has had a small number, but nothing like before. He is now being painfully weaned off all the drugs that he had been taking, including the benzodiazepines. Anyone who knows anything about those drugs—I do not, actually—will say that it is excruciating to come off them. The poor boy has been put through all this, but he does now smile, walk and play in the water. But, of course, after all those seizures, I imagine that his brain is very damaged.
I have a five-minute clip, and I would ask the Minister to take five minutes of his precious time to look at it. I know that that is a lot of time in a Minister’s day, but even if one child is spared from going through the hell of that illness, I would suggest that that is well worth five minutes. This is a slightly cheeky request to make of a Minister, but it may be an important piece of work that the Minister could do.
Lord Bates
There was a video, which I would be keen to see. Perhaps the noble Baroness could send me the link or I will happily sit down and watch it with her. During the Bill’s passage, we have tried to have meetings with all interested Peers. We have a meeting on health and education on I think 7 July. Notices will be put out to all parties, but that would be a good opportunity for people to come forward. I am thinking particularly of my noble friend Lord Blencathra, who gave us his personal experience of living with multiple sclerosis and its effects. The point about the alternatives might usefully be made at that meeting if he can attend, as I hope he will. As I say, details will be on their way.
The advisory council has reported that there is clear evidence that cannabis has a number of acute and chronic health effects, which prolonged use can bring about. That is why the trials are important and why Sativex went through that process. The position is that it can be prescribed by a doctor, after the Medicines and Healthcare Products Regulatory Agency issued a marketing authorisation.
I do not know whether I have failed the test but the noble Lord, Lord Rosser, and the noble Baroness, Lady Hamwee, set a pretty low hurdle as to whether the Government’s position had changed since last Wednesday. Policy used to change pretty quickly under the previous coalition Government, but now it is a little more set out. Our position is our position but generally, as matter of policy, we have to remain alert and open to the medical evidence being brought forward. The correct channel for that is though the advisory council, which obviously draws on a broad body of research and evidence. I am grateful to the noble Baroness for giving us the opportunity to explore that issue again and, with that additional assurance of a meeting specifically on health matters to give Members of the House an opportunity to talk to those making the decisions, I ask her to consider withdrawing her amendment.
Baroness Hamwee
My Lords, I cannot be disappointed because my expectations were not high. The Minister has been very generous, particularly on the Modern Slavery Bill, in holding meetings that included people from outside the House. I wonder whether we could bring into that meeting some who can speak much more coherently on these issues than I can. I do not ask the Minister to commit himself to that now, but perhaps I could put it in his mind.
I am grateful for the support for the underlying issue from the noble and learned Lord. I have often been asked about the high points of my career in this House and I have said that perhaps the highest of them—this shows what a rotten politician I am—was when, on a Bill on family law reform, the noble and learned Lord said from the Dispatch Box of one of my amendments to his Bill, “The noble Baroness’s drafting is better than mine”. That really was the pinnacle of my achievements in your Lordships’ House.
I am delighted that the noble Lord, Lord Blencathra, has found a drug which suits him but, as I think he recognised, these are personal matters. I am quite puzzled as to the apparent differences between the physiologies of Britons—we are by no means a homogenous race—and those of people living in other parts of Europe. Clinical research is of course important and that is very much at the heart of this proposal, as the noble Baroness, Lady Meacher, said. I may have used this phrase already but Professor Curran said that research involving Schedule 1 drugs is “a massive uphill struggle”, for the reasons of time, cost and practicality mentioned in her report. Yes, Sativex is recognised but its expense, not its effectiveness, is the issue. The noble Lord, Lord Howarth, mentioned Bediol, which I think is about 10% of the cost of Sativex. Perhaps this goes against my street credibility but it is important to say that I have in mind boring pills, not getting high from a joint. I want to make that quite clear.
The issue comes down to what is harmful. Skunk is harmful and I do not want to see people continuing to be driven to it, or having to find ways of getting the drug that helps them from outside this country. As I said, my expectations were not high but I am very grateful to noble Lords for contributing as usefully as they have, and at greater length than we did previously. I certainly look forward to discussing the matter with the Minister and his colleagues from the Department of Health pretty soon because whatever happens with an amendment to the Bill, the issue has to go forward. Having said that, I beg leave to withdraw the amendment.
Lord Howarth of Newport
My Lords, I find it baffling that the Government, presented with the evidence from the two laboratory experiments that have taken place in recent years, in Ireland and in Poland, have none the less persisted in their approach of introducing a blanket ban on the supply of new psychoactive substances. As the noble Baroness, Lady Meacher, has just told the Committee, in the four years since the ban was introduced in Ireland, following an initial dip in the use of psychoactive substances and a rapid disappearance of head shops, consumption of new psychoactive substances actually rose to higher levels than before. The Irish, it is reported, are the largest consumers of new psychoactive substances in Europe. That has followed the implementation of a ban essentially the same as the Government are now proposing to introduce in this country.
Similarly in Poland, three years after the ban was introduced, the number of what the Poles call “poisonings” has risen to above the level before the ban. The evidence is that, in the face of a ban and of the closing down of the sources of supply that users were previously availing themselves of, users have resorted to more obscure and more dangerous suppliers online. The European Monitoring Centre for Drugs and Drug Addiction has confirmed that. It also seems highly likely that, with the greater difficulty of obtaining new psychoactive substances, more people taking drugs will have resorted to taking controlled substances and, indeed, may have become poly-drug users.
There seems to be some very significant evidence available from the experiences of bans in these two countries to indicate that the Government’s approach is fundamentally misconceived. The Minister has insisted that the approach of the Home Office is always to base its policy on good science, good evidence and expert advice. How come then that, in the face of this evidence, it is persisting with the policy that it is presenting to the House in this Bill?
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.
Baroness Meacher
My Lords, in moving this amendment, I will also speak to Amendment 8. I apologise that these have all come one after another and I was not anticipating that, but I will speak extremely briefly, noble Lords will be pleased to hear.
These amendments seek to limit the scope of the Bill to those substances that are synthetic—produced by chemical synthesis rather than grown naturally. The Government’s manifesto commitment, if I understand it, was to ban new psychoactive substances. All such substances identified by the EMCDDA have been of a synthetic nature. To broaden the scope of the ban beyond the limits of substances that are synthetic will create far more unintended consequences than I believe the Government really had in mind.
The point behind this amendment is that the Bill as it stands is disproportionate and will engender an intolerable degree of legal uncertainty for an awful lot of people—researchers, medical people or whoever—who have no interest in consuming these substances but may be involved in handling them. Actually, one should extend that to people who are in the commercial sector trading, producing and so forth who may need to use these substances and really do not want to be questioned by the police.
It would be helpful to know why the Government have extended the scope of the Bill to include natural psychoactive substances. Are the Government aware that there are many natural substances, included in perfumes and other products, for example, which could be caught unintentionally by the Bill as it stands? We had a debate earlier about the whole business of definition and in a sense that comes up here again. Things might be a bit simpler if the Bill were limited to synthetic substances. Will the Minister explain to the House what investigations have taken place to establish the unintended consequences of the extension of this definition to include natural substances? I beg to move.
Baroness Hamwee
My Lords, my noble friend and I have Amendments 9 and 10 in this group. Amendment 9 presents me with a dilemma, given the comments that we have been making about what has been happening in Ireland. Amendment 9 would import into the Bill the Irish definition in terms. Given where we are and given that the definition in the Government’s Bill is more telegraphic than the Irish one, I would nevertheless like to hear what the Government have to say about the differences.
I and other members of the Committee will have received from the Minister a response to points made at Second Reading, for which I am grateful. In response to one point that I made, the Minister wrote that,
“we have retained core elements of the Irish definition but sought to refine it so as to make it more concise”—
given the length of most of our legislation, that is not the most persuasive argument that I have heard—
“by removing reference to different substances and behaviour changes, and remove the element of subjectivity inherent in … the word ‘significant’”.
I understand that the Government do not want this to be read subjectively, but can I add a thought? Different people react differently and they react differently to different drugs. We have heard that. There is something in the connection between that and subjectivity and maybe neither of us is quite right, but there is an issue there. The Minister talked about removing reference to behaviour changes. The point about the Irish definition is the impact on behaviour changes.
The second limb of Amendment 9, which is not an addition to the first because it does not qualify the first, refers to the substance having the capacity, as in the Irish definition, to,
“cause a state of dependence, including physical or psychological addiction”.
We are told that that has been removed because the Government have,
“concluded that this was captured as part of affecting a person’s mental functioning or emotional state and was unnecessary duplication”.
That surprises me. The Irish looked on it as an alternative in their definition. Perhaps the way I can best put it is to ask how the scientists look at this. I would have thought it was completely separate from affecting mental functioning or emotional state and is therefore not an unnecessary duplication.
Lord Mackay of Clashfern
My Lords, when we talk about “banning”, we mean the substance being used to commit an offence under the Bill. There are two ways of reaching that conclusion. If you see someone taking a tablet or a substance and suddenly his mental state has been altered, cause and effect is likely to be demonstrated. The second way is that if you know the nature and qualities of substances, when you analyse the substance you may be able to do it that way too.
The important thing, however, is that it is not a question of the substance not being banned until you discover it: the definition applies right from the beginning. As the Minister said, when the Bill becomes law, substances with that character become the possible ways of committing the offence. The question of whether a particular substance is of that character can, I think, be approached in these two different ways, according to what is convenient in the circumstances of the individual case.
Baroness Hamwee
My Lords, before the noble Baroness responds, may I ask a question? It will display the depths of my ignorance, which will gratify the noble Lord, Lord Harris, who can never resist teasing me. If one has a herbal product and it is genetically modified, does that make the outcome synthetic, or does it remain herbal?
Psychoactive Substances Bill [HL]
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Baroness Hamwee (LD)
My Lords, last week during the debate on the Queen’s Speech, I asked a question that was not facetious. I asked why, if it was as easy as a blanket ban, we had gone through such hoops over the past few years. The press coverage that has been given to this Bill has given the answer: it is not that easy, certainly as defined. Examples of psychoactive substances falling within the definition have been given.
We have heard about flowers today, and air fresheners have been mentioned—as have e-cigarettes, ironically. I have to say that if the Bill were to outlaw those smelly devices that hang from the rear-view mirrors of some minicabs, masking who knows what other aromas, I would be delighted. I must not be too facetious, but I will say that I am very relieved that the Home Secretary allows me my substance of choice, which is coffee. I am sure that it is addictive both physically, because I have felt withdrawal symptoms, and psychologically; I need that mug on my desk. But like chocolate, it affects my mood, and I did wonder whether to send for a bar of chocolate to present to the Minister at the end of the debate. My noble friend suggested that that would be improper.
This is about definition. We have talked about the Irish legislation, and one question I have for the Minister is about the difference in definition between this Bill and the Irish legislation. It is very similar, but it talks specifically of,
“stimulation or depression of the central nervous system … resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or … cause a state of dependence, including physical or psychological addiction”.
The term “significant” may be significant. I do not know whether the Minister is in a position to tell the House why that definition is not replicated, or if not now then perhaps when we put down an amendment to explore it at the next stage.
But as noble Lords have said, definition is not everything, and it seems that in Ireland the closure of head shops has led to displacement to a more risky market. On the question of definition, I confess that I am baffled by the definitions set out in the schedule of exemptions, listing products that do,
“not contain any psychoactive substance”.
There is circularity in this and the Minister knows that I am concerned about it. If we need to express this more clearly, let us say so.
We also need to consider whether dosage should affect legality—a point made by my noble friend Lord Kirkwood. Let us look at how we express things. The Association of Convenience Stores has understandably asked for guidance in this area.
A term often used in debates in this House is “balance”. On this subject, like the noble Lord, Lord Patel of Bradford, I would focus on “proportionate”: a proportionate response to harm on the basis of evidence as to the whole context and the overall outcomes. I start from the view, which I think I share with the noble Lord, Lord Mancroft, that human beings with their frailties will always be human, and that they will, as they have always done, continue to take drugs. In other words, there will always be a market. So how do we get to the position of “least harm”? I suggest that we should look not just at Ireland and Poland but at states such as Oregon in the United States of America, which, in my terms at any rate, are progressive.
Some drugs we ban, and we know that prohibition does not work. Indeed, it may be the prohibition of classified drugs that has led to a demand for new psychoactive substances. People died from drinking moonshine when alcohol was prohibited. Some we regulate like nicotine and some we tax like alcohol. I risk becoming frivolous again, but if quinine is outlawed, are we to be driven to drinking neat gin without the tonic?
All this has led me to think that something like the New Zealand model deserves more attention. As I understand it, the model has not been abandoned and is still a work in progress. It incorporates the benefits of working from an evidence base as to harm with a thorough risk assessment, addresses the reliability of the product—quality control—and the reliability of the source, and avoids engagement with illegal suppliers. The noble Baroness, Lady Meacher, talked about the cost-effectiveness of that sort of model.
This is too serious a subject to ridicule, and because it is so serious we must not let the Bill be a knee-jerk political—in the worst sense—reaction to the problem. It is not a matter of being tough or soft on drugs. I do not see it in that dimension at all; it is far more complex. It is a great pity, with all respect—and real respect—for the Minister that the lead on drugs is not the Department of Health and that we are not using this opportunity to introduce different responses, as for instance in Portugal, with more emphasis on treatment. Addiction is not an appetite that can be turned on and off at will. I see the Bill as a lost opportunity. From these Benches, but not only these Benches I suspect, we will try to use the opportunities that we might be able to grasp in the forthcoming stages.
Like others, I must mention education, but I mean something far more than formal school-based education, although I have to say that the unsatisfactory approach to PHSE that we have seen for too long is not encouraging. The noble Baroness, Lady Bakewell, referred to it as “informed awareness”, which is a very good way of looking at it. The Minister has acknowledged this, but he will understand the danger, which concerns many of us, of diverting both attention and resources from health and education to enforcement, and from the more important focus of enforcement—the point made by my noble friend Lord Paddick from both experience and informed imagination, if I can I put it that way.
I am baffled that the Government’s projection is of only five prosecutions a year. Like others, I am pleased that possession for personal use is not to be an offence. But is it realistic to ban social supply, to rely simply on police discretion, and to make it an offence to import for personal use? These points were made by noble Lords, Lord Rea and Lord Howarth. I was a member of the APPG, led by the noble Baroness, Lady Meacher. The work done was immensely informative and helpful. I was struck during the evidence sessions that significant numbers of young people were taking NPSs because, the NPSs being called legal highs, they were aware of the implications that illegal highs would give them and of the implications of collecting a criminal record. I am not suggesting that we should oppose what the Government are trying to achieve. I was also struck during those hearings that the name of a drug is no guarantee of its content, which can vary from week to week and from place to place.
I hope that we can take the opportunity—the amendment, which is very moderate, is already drafted—to look at the medicinal use of cannabis and other products that deal with neurological conditions. This House will clearly be interested in whether the Bill is too restrictive of research, as the noble Baroness, Lady Hollins, mentioned, and—I do not think this has been mentioned—in issues that we have addressed in other Home Office Bills, such as there being only a civil standard of proof for orders that will have significant consequences.
Like my noble friends, I endorse the purpose but not the means in this Bill. Culture is, indeed, stronger than law, so why not a full regulatory regime with proper assessment of harm? Legislation must be rational and trusted and command respect. That will guide amendments from these Benches. Clearly, from the debate today, that will not be only from these Benches.
Queen’s Speech
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Baroness Hamwee (LD)
My Lords, I, too, congratulate both Ministers on their promotions. As a colleague said, the noble Lord is no ordinary Conservative—therefore, my congratulations are rather warmer. I also congratulate the noble Baroness. It was no surprise at all to me that she was elected unopposed.
The last debate in the last Parliament was on indefinite immigration detention, a topic which certainly deserves further attention—but there are so many topics and so little time today. Humane treatment is intrinsically right and important, and so are human rights. The Conservatives should be proud of their predecessors’ post-war achievements. Yesterday, I came into the Chamber as the noble and learned Lord, Lord Mackay of Clashfern, said this, putting it much better than I can. Whether we are talking about the convention or the court, I react against the idea of a British Bill of Rights, because that suggests that anything that is not British is inferior. Rights are rights, including rights for people whom we might not like very much. They are not something earned, and the term “deserve” has no place in our politics.
Reference is also made to “spurious” human rights and “bogus” asylum seekers—a similar kind of approach. Neither term is appropriate, unless and until, through proper process, they have been found to be so. Careless language can too easily validate xenophobia—and so, I fear, may some of the policies on immigration, but let us give them the benefit of the doubt and see what the detail is. Illegal working is already illegal, and seizing wages is unlikely to do more than to drive people further underground. As for cracking down on landlords, why should there not be a focus on the conditions endured by exploited occupants? Given the targets or ambitions for immigration numbers, it is ironic that the Conservatives talk up the problems of immigration. It must confirm a belief, which an awful lot of people hold, that the proportion of immigrants in our population is much higher than it actually is.
I accept that perceptions are important, and I accept the need to address the detail of people’s concerns; so, for instance, a requirement that recruitment agencies must recruit within the UK as well as abroad is sensible. I have a particular question about the labour market enforcement agency. I wonder whether the Minister can make clear how it fits into the review of the Gangmasters Licensing Authority. Are there different remits, or what? It is natural, too, to resent immigrants pitching up and immediately claiming benefits, although I know that they do so much less than the indigenous community.
Our policy must not raise expectations about reforms that cannot be met. The Conservative manifesto refers to a visa system which puts British people first:
“Across the spectrum, from the student route to the family and work routes”.
There are different views on how to achieve that. As one example, I believe—as I have said before, and will go on saying—that the family visa rules that do not support British citizens married to non-Britons with British children do not achieve this. Fluent English, which is also mentioned, is indeed a means to integration —I put it that way; not that a lack of it is a bar. But that raises questions about the availability and accessibility of the teaching of English.
We talked about integration and community cohesion a good deal during the passage of the Counter-terrorism and Security Act. I am sad that the nuanced, lower-key, persuasive approach to the counternarrative to terrorism does not seem to find a place in what we know so far about the extremism Bill. As has already been said by more than one noble Lord, during the passage of that Act we debated what the definition of extremism might be, but without reaching a conclusion. On banning orders and the proscription of organisations which fall short of existing thresholds, we need to take extreme care not to infringe that British value—freedom of speech. The counterextremism strategy is expected shortly. Can the Minister tell us what consultation is taking place, or will take place, on the construction of that strategy?
I hope we will be able to continue to address issues that we addressed in the previous Parliament, particularly on modern slavery, overseas domestic workers, supply chains and creating a tort of exploitation to allow for civil claims, which was dealt with in an amendment from the noble Baroness, Lady Young of Hornsey. We might also consider whether some of the young people who are going to conflict areas are, in a sense, trafficked. All this is very complex and needs a lot of sensitivity.
I shall say one word for now, and say more next week, on new psychoactive substances. If dealing with them is as easy as imposing a blanket ban, why did we go through so many hoops in the last Parliament?
All this requires resources, so a law to preclude raising income tax was one of the things that caused me to shout at my radio during April. My radio came in for a lot of abuse in April. I also abused it—and this is relevant to community cohesion—when I heard the policy on the right to buy social housing. It will be funded, and new properties provided, through the sale of all those high-value properties whose value local authorities, flush with cash, have failed to recognise and realise over the past few years. I congratulate the noble Lord, Lord Kerslake, on the coverage of his comments yesterday on this issue.
I did a word search in the Conservative manifesto and the word “passionately” is used only once, and that was in respect of a belief in home ownership. Of course I recognise the convention about the manifesto on which the Government were elected, and indeed that the Government are no longer “encumbered”—the Home Secretary’s term—by the coalition. Time will tell whether in addressing the detail of legislation, where the devil may reside, this House will be concerned with its workability or something more subversive.
Immigration: Detention
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Baroness Hamwee (LD)
My Lords, the noble and learned Lord will not have been aware of the very large number of colleagues who were below the Bar listening to his valedictory speech. I want to make him aware of that compliment. I remember when I was inevitably and always, in relative terms, a very junior lawyer and quite a new Peer—in my salad days, one might say—sitting next to the noble and learned Lord in a committee when it became apparent that the concept of the assignment of a trade mark rather escaped most of the other members of the committee. He turned to me and said, “You explain”, and I thought, “You’re asking me to explain?”. I join others in saying how invigorating his contributions have always been. I have always felt—I hope that this does not sound impertinent—how morally impeccable everything he has said in this Chamber as well as outside has been.
It is also a swansong for my honourable friend Sarah Teather. I thank her, too, and also her assistant Jonathan Featonby. I pay tribute to the NGOs and individuals who gave evidence to the inquiry of which I was a member. Not for the first time, I agree with the noble Baroness, Lady Lister. The Stephen Shaw review is simply not wide enough. We need softer measures, in sharp distinction to what feels hopelessly—I stress that word—indefinite. I know that James Brokenshire says that it is not indefinite because we have to comply with the European convention, but it feels indefinite if you cannot see the end, coupled with uncertainty about the outcome.
The evidence is that compliance rates from community-based arrangements for looking after asylum seekers are very high, and of course that is a much less expensive way of going about the work. There are relatively few absconds. The case management model used in Sweden is based on early intervention and a welfare and rights framework. Individuals feel that they are given a fair hearing—and if they have to leave, they can make their own arrangements with dignity. This inquiry has said to me, among other things, that one of the things that is most lacking is dignity. A fair process means that the outcome is much more readily accepted, so it is effective in every sense. I have noted that Sweden’s detention estate has a capacity of just over 250. We have getting on for 4,000, plus the use of prisons, plus the proposed Campsfield extension.
I was very much struck by the comment that the environment is “counter-therapeutic”—that is, to mental health care. I was also struck by the frustration with Rule 35, which the Chief Inspector of Prisons told us was often a bureaucratic exercise. We heard, too, about the lack of training of staff.
The noble Baroness referred to the definition of torture for legal purposes, and I support what she said. What we heard on mental health in general was disturbing, particularly that the first response to symptoms is often, “They’re not real”—there is a culture of disbelief.
The Home Office has put so much effort and thought into the issue of slavery and trafficking over the last few months, and into the operation of the national referral mechanism. There must be a read-across from that to the trauma suffered by many who find themselves in asylum and immigration detention because of their experiences. It may not be due to trafficking, but, my goodness, it amounts to a huge degree of trauma, and they are in danger of retraumatisation by the experience of detention.
Immigration detention gives a wrong message to those who seek sanctuary and support—I accept that that is not the only population of IRCs—and sends a message about them. I go so far as to say that I think that it gives support—which I know is unintended—to that nasty, xenophobic element of society that sees immigrants in a way that I know your Lordships do not.
Police: Reduction in Numbers
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Lord Bates
I totally agree with that, which is one of the reasons why, between March 2010 and March 2014, the number of neighbourhood police officers increased by 5,918. Total neighbourhood policing is up by 1,919, which reflects the change in the number of PCSOs. It is a vital part and there is no doubt that policing can take place effectively only when it is with community consent, working together with the police and law enforcement agencies to ensure that we reduce crime.
Baroness Hamwee (LD)
My Lords, is it not important not to look at these things in silos—and not just at police numbers alone? Community safety partnerships are made up of police local authorities, and fire and rescue, probation and health services. In times of financial difficulty, does the Minister agree that it is important to do things together, differently and holistically, and that community safety partnerships are good for community safety?
Lord Bates
I agree with my noble friend in respect of that. There are a number of examples where emergency responders, including the ambulance service, the fire authorities and the police, share back office and communication facilities to reduce costs and improve the effectiveness of the service. That is one of the changes behind the falling crime rate that we are seeing.
Modern Slavery Bill
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Baroness Hamwee (LD)
My Lords, on Report, I spoke forcefully in favour of the amendment of the noble Lord, Lord Hylton, because I thought it was essential to express the strength of my feeling, and for the House to be able to express the strength of its feeling. However, after that debate, I commented to a number of people that I did not think the amendment could stand because I believe that it contains inherent problems. I have in no way changed my view about the issue—having said that, it is inappropriate to refer to people as an “issue”; I mean the situation in which some people find themselves, for which few adjectives are adequate. I hope that those who thanked me at that point will not feel that I am breaking the faith. I am certainly not condoning the situation.
Lord Bates
My Lords, in the character of this legislation, this has been an exemplary debate. The issues have been raised calmly and with great passion and determination by people who have given their lives to tackling this issue of abuse. I am aware that some very serious questions have been asked. I will do my best to respond to them and will also seek to make some other points which I hope will be helpful in reassuring noble Lords about the Government’s intentions.
The noble Baroness, Lady Royall, talked about the position on legal aid for those people accessing the national referral mechanism, a point picked up by the noble Baroness, Lady Williams, as well. Any potential victims, including those on overseas domestic worker visas, will have access to legal aid for immigration, employment and damages claims, once they receive a positive reasonable grounds decision—reasonable grounds being, as we discussed before, a very low, almost formal, test for entering into the national referral mechanism. The Government have said that they have accepted the NRM review recommendations. Here, Jeremy Oppenheim suggested a new process to review decisions where a negative conclusive grounds decision has been made. The noble Baroness made a fair point about where the appeal system is under the existing NRM system. Jeremy Oppenheim recognised that we needed to do something, and we are running a pilot on this. The Government have accepted all the recommendations that have been put forward.
The noble Baroness also asked why this is different from the domestic violence visa. The domestic violence visa is designed solely for those who have come to the UK to join someone who is settled here. They may have come to make their home here. Domestic workers are issued with visas to come for short visits with their existing employers. Most visits are short: about 15 days.
My noble friend Lady Hamwee asked what the government amendment says about Immigration Rules and what the additional requirements will be. The requirements for the visa will be limited to the following: that the person has a conclusive grounds decision from the NRM; that they are a victim of trafficking or modern-day slavery; and that they are not excluded for reasons of public policy, for example serious criminality. My noble friend also asked whether we will allow people with the new visa to work for agencies that clean private homes. This is an interesting point, which we will consider and discuss with interested parties such as Kalayaan. Our concern will be to avoid inadvertently creating a further risk of abuse.
There is a wider point on the review that is being undertaken by James Ewins. This is different, because we have an amendment, but we also have an ongoing review by someone who is widely respected on all sides of the House for his ability to look at this issue. He has been asked to start his work and will report by July. That was one of the decisions that we took in response to the noble Lord, Lord Hylton, the first time he raised this. We therefore expect a report by July, and changes can be made from then. There is a tradition that Immigration Rules are handled in blocs twice a year for the convenience of the House, but it will be for the next Government to say whether this will come in October or whether action could be taken as early as July.
The noble Baroness, Lady Royall, asked whether far more workers have been abused since the changes to the overseas domestic worker visa. This is really a point about the evidence base for this. We have had some evidence presented to us, and other evidence that points in another direction. The quality of the evidence is one of the things that we have asked James Ewins to look at in order to assess its veracity.
The noble Baroness, Lady Williams, asked about the woefully low level of prosecutions. Of course, this is exactly what the Independent Anti-slavery Commissioner-designate has been brought in to do—to ensure that we care for victims but also that this is taken seriously. We specifically ask in the remit whether the policies and processes for pursuing those accused of perpetrating modern-day slavery against those who are on overseas domestic worker visas are effective. That is a specific part of his remit.
Can churches bring forward victims? We are already working with faith groups, including the Catholic Church—I pay tribute to the noble and learned Baroness, Lady Butler-Sloss, who chaired an excellent meeting with British Black Churches looking at this issue, increasing their awareness of it and getting their co-operation in fighting it—in our plans to communicate the new protections. The national referral mechanism review recommendation will support and improve relationships between statutory agencies and organisations including churches. Any organisation that comes into contact with a potential victim may work with the slavery safeguarding lead to refer them into the national referral mechanism.
When will the measures come into effect? I have dealt with that by saying that it is normally twice a year but it can in fact be any time.
Baroness Hamwee
My question was about bringing this particular clause—or section, as it will be—into effect.
Lord Bates
I do not want to get this wrong. I probably need to look to my left for some inspiration, which I have relied on heavily during the passage of the Bill, because this is at such a critical stage. It is pointless to say, as I normally do, that I will write to the noble Baroness. It is a very reasonable question and we should have an answer to it.
On employment tribunals, overseas domestic workers have the same rights of access to employment tribunal services as other workers where the tribunal has jurisdiction. They are able to file a claim and nominate a representative to appear on their behalf. Additionally, it may be possible to provide evidence via a videolink.
Of course, the answer to the noble Baroness’s question is really so obvious I wonder why she needed to ask it. [Laughter] It will come in in October. That is the current plan and the current schedule. But as I have also said, it is for the next Government to introduce this when they wish. There is nothing to stop them bringing it forward once they have James Ewins’ review.
The noble Lord, Lord Hylton, talked about the notification requirement. This is about notifying the authorities when they are going to change employer. This was something that Kalayaan highlighted in its report, Ending the Abuse, which was produced some time ago, in May 2011. I pay tribute to Kalayaan’s consistent work on this topic. The report says, on the right to change employers:
“Home Office data for the period from January 2003 to August 2010 shows that … 41 per cent … of migrant domestic workers cited abuse/exploitation as the reason for changing employer. Given that many MDWs prefer not to reveal their personal experiences to the Home Office, the figures are likely to be much higher in reality”.
That is still an issue with regard to the wording of Amendment 72D.
There have been a number of remarks and I probably cannot do justice to them all. I take seriously the intent behind the intervention by the noble Lord, Lord Alton, to say that there is usually a Parliament to press. I am trying to remember all that he said, but he said at the end that it is important to recognise the moment. In a sense, I am saying that, although perhaps not for the straightforward reasons that we have brought forward here, the Government have made significant steps. The noble Lord, Lord Hylton, acknowledged that. We have moved significantly down the route of making sure that, before people come here, they are aware of their rights and the protections that exist; that employers are aware of the consequences of abuse; that people who come here have knowledge of the minimum wage and other elements that they are entitled to; and that, when people arrive at port, there are interviews with Border Force officials. The Government have moved. They have not simply said no to the amendment but have launched a review; in essence, we are unsure whether we have gone far enough and whether this is the right route.
We have highlighted the particular problems with the amendment. As a number of people have pointed out—the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Deben, and the right reverend Prelate the Bishop of Derby—there are problems and weaknesses with this amendment. Being the generous man that he is, I know that the noble Lord, Lord Hylton, will probably recognise some of those deficiencies.
The question is whether the House wants to insist upon this amendment and send a Bill that incorporates it back to the other place. The noble Baroness, Lady Royall of Blaisdon, said that there is ample time, and I suppose that there is always time—
Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015
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Baroness Humphreys (LD)
My Lords, I merely seek clarification on one aspect of the 2015 Counter-Terrorism and Security Act’s code of practice for officers exercising functions under Schedule 1 of the Act, which accompanies these instruments. This code of practice is referred to in the 28th report of the Secondary Legislation Scrutiny Committee. The final sentence of the information paragraph reads:
“In its consideration of the Code the Committee was concerned that directions about when officers may search a member of the opposite sex, particularly a child, were not as clear and consistent as they need to be”.
I am most grateful to my noble friend the Minister for his reply to my written query regarding this matter, but I remain concerned that the clarification I sought has not quite been met.
The committee and I still have concerns relating to the powers that the code of practice confers on officers who need to search a child—defined as anybody under 18—in order to seize or retain their travel documents. The code is exemplary in its guidance to police constables and designated border control officers, highlighting the care which must be taken when exercising their powers and the need to be aware of the necessity of safeguarding a child’s safety and welfare, as well as urging officers to be sensitive to the intimidation that children travelling alone can feel and the possibility that they may be vulnerable to exploitation by an adult with whom they are travelling.
I draw the attention of the House to paragraph 31, which outlines the scope of the power as it relates to the searching of children who have been removed from an adult. In particular, it gives guidance that two officers of the same sex as the child should, where reasonably practicable, be present during the search. It was the insertion of the three words, “where reasonably practicable”, which most concerned the committee and which led to its call for clarity. It seemed to the committee that the words,
“two officers of the same sex … where reasonably practicable”,
could give rise to any number of permissible permutations. I would be grateful if the Minister would clarify which of these would be justifiable and acceptable.
If two officers of the same sex as the child are not available, would two officers, one of the same sex and one of the opposite sex, be acceptable? If they are not available, would two officers of the opposite sex to the child be acceptable? If two officers are not available, would just one officer of the same sex as the child be acceptable? If they are not available, would just one officer of the opposite sex to the child be acceptable? At this stage, I am at a loss to understand why the last alternative is included. Are we to take from this that our ports are so understaffed that there are likely to be times when only one officer of the opposite sex will be available to search a child?
The code has already referred to the intimidation that a child travelling alone can experience. Does the Minister believe that a child, removed from an adult, would experience a similar feeling if searched by one or two officers of the opposite sex because they were the only reasonably practicable alternatives?
I would also be grateful if the Minister would add some detail on the advice given to officers governing the circumstances in which a child may be searched in the absence of the responsible adult with whom they are travelling, and explain how the child is to be removed from the adult and where the search will take place. If the child is travelling with an adult who is deemed to be exerting influence or pressure, how is an officer to defend him or herself against accusations of inappropriate behaviour if the child is influenced to make accusations against the officer and there are no witnesses to the search?
However, these children are unlikely to make a complaint about the manner in which they are searched, by whom they are searched and where they are searched. They are intent on leaving this country and, to all intents and purposes, this renders them powerless to control their situation. I would want firm guidelines to govern the way in which my grandchildren could be removed from my presence and searched at a UK port. Those firm, unambiguous guidelines should be applicable to all children.
The Secondary Legislation Scrutiny Committee called for clarity in this aspect of the code of practice. I hope that the Minister will be able to provide the House with that clarity and describe, definitively, the circumstances under which children will be searched.
Baroness Hamwee (LD)
My Lords, I am grateful to the Minister for explaining this raft of instruments. I have a few comments and queries.
As my first query is on an order which is not before us but which is relevant, I do not expect an answer, but I want to use this opportunity to explain a point which I raised with the Secondary Legislation Scrutiny Committee, of which I am a member. The authority to carry scheme sets out to whom it applies. As one would expect, it applies to those who are subject to a temporary exclusion order. Statutory instrument 438—I apologise to the House that I did not make a note of its name—provides that, for the purposes of the service of the order, it can be served on an individual’s representative. I queried who a representative might be for this purpose. The advisers to the Secondary Legislation Scrutiny Committee took this up with the Home Office. I was concerned that, in the normal run of things, one might think that a representative was, for instance, a solicitor, but a solicitor who was not able to pass on the information to his client that an order had been served would find himself in a very difficult state and would probably disclaim the client.
An answer has come back and I want to get it on the record. It states:
“The Home Office agrees that … For adults … a representative must be a legal representative such as a solicitor or legal executive who acts on behalf of the person. The Home Office agrees that the Secretary of State cannot deem someone to be a representative in the absence of a clear relationship such as a … contractual relationship”.
As I have said, any lawyer thinking ahead a bit in that situation would disclaim that relationship. The Home Office also agreed that,
“for someone under 18 the term would cover the person’s parent or guardian”,
and that they could be a representative for this purpose. As I said, I am not expecting the Minister to comment on that.
Paragraph 22 of the scheme states that a person who,
“is refused authority to carry will be informed of that”,
in a notice by the carrier. It occurred to me to ask whether there is any penalty on the carrier who fails to pass on information—not information that they have been denied boarding, because they will have worked that out, but information of the contact telephone and email address that the individual needs to make further inquiries—and whether there should be any liability for compensation on a carrier who fails to pass on that information.
The Explanatory Memorandum to the authority to carry scheme regulations refers to,
“the need for an effective redress process in the case of mistaken identity. Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.
The second occasion would be pretty awful, but the first occasion of mistaken identity is pretty bad, too. I do not know whether the Minister has any comment on that.
With regard to the penalties for breach of the scheme, again I quote from the relevant Explanatory Memorandum. The consultees felt that the maximum £50,000 fine,
“was excessive and disproportionate, especially when compared to the possible fines imposed by other countries”.
Does the Minister have any information as to that comparison? There is also a feeling that the maximum penalty is unreasonably high, and I understand that there will be guidance on how the penalties will be applied. As this goes to the amount that will actually be levied in different circumstances, can the Minister tell the House when that guidance will be issued?
More generally, there has been a good deal of comment that the current authority to carry scheme is actually quite effective. What extensions from the current scheme will these various regulations and orders bring in?
Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015
Baroness Hamwee Excerpts(9 years, 1 month ago)
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Baroness Hamwee (LD)
My Lords, I thank the Minister for his explanation of the two documents. Around 300 responses is quite impressive, and about 250 are wholly or primarily about access to the communications data of journalists. I have just had one about nine minutes ago, as the Minister started speaking. I cannot read it on my BlackBerry, so I cannot do justice to that person.
It is ironic that, in response to the consultation on the acquisitions code, the Interception of Communications Commissioner wrote that it is,
“unhelpful when the reports in the media”—
which I stress—
“misinform the public by stating the use of powers to acquire communications data for crimes, not deemed to be of a serious nature under the Act, are inappropriate. It is also wrong for the reports in the media to cite the Act as a terrorist law and infer that its use for non terrorist related matters is inappropriate”.
I am sure the parties will come together over the next few months in their understanding of this.
From the report of the responses, it is clear that there is still a certain amount of confusion about detail. I note that respondents’ concerns that,
“data would be retained which CSPs did not retain for business purposes”,
were rebutted, as were the concerns that,
“the processing of data by CSPs was a stepping stone to a central database”.
As I said, a lot more communication is clearly needed.
Inevitably, and rightly, there is a focus on data involving certain professions—the Minister mentioned doctors, lawyers and so on—including MPs. I am glad that someone still regards being a Member of Parliament as a profession. I accept that there is no strict privilege here because we are not dealing with content. However, I make the point that, once a person is identified as communicating, it is often only a short step to an assumption about the issues, if not the detail of the content. I was aware of the distinction when I was in practice as a solicitor but it always seemed to me quite a difficult one. If one was tempted to say that one had acted for someone in the public eye, those who heard that comment would make assumptions about what the issues were. I am a bit confused by paragraph 3.75, which says that,
“when an application is made for the communications data of those known to be in such professions … at the next inspection, such applications should be flagged to the Interception of Communications Commissioner”.
I did not immediately see why that should be done then and not straightaway.
If it is not the wrong phrase to say that I look forward to the review of RIPA and the further work on data in the next Parliament, at any rate I anticipate that we will have it.
Lord Bates
My Lords, I am grateful to the noble Lord for his comments, some of which I will have to come back to him about in writing, but I can certainly deal with his question about where the 300 responses are. They are now on the Home Office website. I can certainly send him a link to that but they are there, along with details of how they were considered and which elements have been included in the revised codes.
My noble friend Lady Hamwee was right to stress the importance of the protection of journalists. That links to the previous debate, when we were talking about the importance of freedom of speech and academic freedom within university settings and how these were going to be upheld. Equally, the freedom of the press is one of our cherished principles and we need to maintain it. Therefore, having this review undertaken by Sir Anthony May, who is the Interception of Communications Commissioner and a former High Court judge—he is widely respected—was a helpful step. He came forward with two additional requirements to ensure that there were extra safeguards in place and immediately the Government responded to say that they would do just that.
There had been a suggestion to go still further. I know that some of the respondents, particularly the NUJ, were concerned about issues in relation to seeking the journalist’s permission or notifying the journalist beforehand. But that was not something that Sir Anthony May felt was appropriate at this stage. Of course, that would result in a tipping-off situation, which would potentially put lives at risk.
The noble Lord, Lord Rosser, asked why there was no impact assessment of these codes. A full impact assessment was provided for the underpinning primary legislation, DRIPA, which was enacted last summer, so that contains the elements he referred to. He asked whether the code would need to be updated. Clearly, if Parliament enacts new primary legislation, there might be a requirement to produce new secondary legislation, including replacing these codes.
My noble friend Lady Hamwee asked why paragraph 3.75 of the acquisition code says that the Interception Commissioner should be notified of cases involving sensitive professions at his next inspection rather than right away, as this would mean waiting for nearly a year. We have of course consulted extensively with the Interception of Communications Commissioner in drawing up the code. The formulation is that the code is based on what the commissioner believes will best enable him to carry out a rigorous oversight function.
The noble Lord, Lord Rosser, asked whether we have maintained a dialogue with the communications service providers. As my ministerial colleague James Brokenshire said last week, we work very closely with the telecommunications sector and it alerts us to new technological developments that may have an impact on its obligations.
The noble Baroness, Lady Hamwee, asked why the requirement for judicial authorisation provides only for journalists—oh, I do not think that she did ask that, did she?
Lord Bates
It is an excellent question, but I covered that in my pacy opening remarks because I was conscious that an important Statement was due to follow.
The noble Lord, Lord Rosser, asked whether paragraph 2.21 covers social media. As Minister James Brokenshire said at the Report stage of the then Counter-Terrorism and Security Bill:
“A communication can include any message sent over the internet. The legislation relates not to the retention of what the message contained, but purely to the fact that a message was sent”.—[Official Report, Commons, 6/1/15; col. 236.]
RIPA makes that clear and extends the machine-to-machine communications examples, such as the ones that were given.