Psychoactive Substances Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Tuesday 14th July 2015 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I shall speak to Amendment 56, which refers to Clause 56(2)(a). It is a probing amendment along similar lines to Amendment 21. As there are three different ways in which possession can become a criminal offence, the aim of the amendment is to clarify with Ministers the circumstances in which possession is not a criminal offence and those in which it is. I thank Mr Fortson QC for his briefing on this issue.

The Government have emphasised that the Bill does not make simple possession of a psychoactive substance a criminal offence, and I and many others certainly welcome that important step forward in the Bill. We know from the lengthy experience in Portugal, for example, that decriminalising possession there and investing more resources in treatment and less in prisons has resulted in fewer young people being addicted to drugs. That is surely one of our primary objectives. I find it enormously positive that the Government understand that issue and are taking it forward in the Bill.

As I said, there are three situations in which possession can become a criminal offence. If a person produces a psychoactive substance at home, for example by cooking something up in the kitchen, and they intend to consume it purely by themselves, they will have committed an offence. I want to make clear to your Lordships that I am not suggesting that anyone should cook up a psychoactive substance in their kitchen, albeit I have a number of friends who do just that—they create interesting and highly intoxicating alcoholic beverages in their kitchens. It is very easy to be rather hypocritical about these issues. Nevertheless, I wanted to make the point. It is not that I am promoting the idea of young people getting into the kitchen and creating these things. However, one has to think about the inconsistency.

If a young person is thinking about getting hold of a psychoactive substance and goes out to a dealer, buys a substance and goes home, they will not be committing a criminal offence if they are found with the substance in their hand. If they are found to have created, or are creating, the substance at home, they will be committing a criminal offence. It is possible to say that it could be very much safer for a young person to take a substance when they know its ingredients, rather than go to a crack dealer. I gather that that is what has happened in Ireland. As the head shops have closed, young people have gone to the crack dealers, who are doing a nice business with these psychoactive substances. One has to think of the incentive effect of these kinds of inconsistencies.

It is not only a criminal offence to create a substance in your kitchen. It is also a criminal offence, as the noble Lord, Lord Paddick, said, to import a substance for your own consumption. It is also a criminal offence if you export a substance for your own consumption—which might seem a slightly peculiar idea, but it is in the Bill. To illustrate the point, if someone has a psychoactive substance in their pocket, they are not committing an offence if they are at home. However, if they go on holiday with the substance tucked away in their pocket because they have forgotten it is there, and if it is still in their pocket when they come back, they will have committed two offences: importing and exporting a psychoactive substance. I know that that sounds a ludicrous example but one has to be conscious of the kinds of things that arise out of inconsistencies in legislation.

I understand from Mr Fortson QC—I would not have been aware of it otherwise—that this issue is of some importance. The offences to which I have referred are apparently described as lifestyle offences. Therefore, they trigger the most draconian provisions of the Proceeds of Crime Act 2002. Either the prosecutor or the court could initiate confiscation proceedings under POCA for one of these offences of possession of a psychoactive substance. That would seem, certainly to Mr Fortson QC, to be an entirely disproportionate response to what appears to be a rather insignificant offence. It was he who suggested that I should at least raise this matter in the House and seek the agreement of the Minister to ask her officials to look into these inconsistencies and to explore whether there is a way of finding a resolution that would feel somewhat more comfortable.

[Baroness Chisholm of Owlpen (Con)]

My Lords, as the noble Lord, Lord Paddick, has indicated, Amendment 21 seeks to exclude from the importation offence in Clause 8, the importation of a psychoactive substance by a person for their own personal consumption. Amendment 56, in the name of the noble Baroness, Lady Meacher, aims to do something similar in that it seeks to exclude production for personal consumption from the scope of the offence in Clause 4.

The Government do not accept that there is an inherent contradiction between, on the one hand, making it an offence to import or produce a psychoactive substance for personal use and, on the other, not criminalising personal possession. The Bill is about tackling the trade in psychoactive substances, whatever form it may take, both domestically and internationally. The importation of psychoactive substances, particularly by post, is indisputably a key form of supply. To exclude importation for personal consumption, even assuming you could neatly carve such conduct out of the importation offence, has the potential to drive a coach and horses through the ban on importation. It would be an open invitation for individuals to import numerous small quantities, which they could then combine together for onward supply.

It is also important to mention that the proposal would impose a near impossible task on Border Force customs officials and National Crime Agency officers in policing the importation ban. It is obvious that it would be very difficult and time consuming for them to determine whether a particular consignment of psychoactive substances was for onward supply or for personal use. For example, a person could import a significant quantity of psychoactive substances at one time, claiming that it was a year’s worth of supplies for their personal use.

With a blanket ban, the Border Force will have a clear mandate to seize any substance likely to be consumed by any individual for its psychoactive effects, and where the importation is not for an exempted activity. This will enable it to stop these potentially dangerous substances entering the country. In fact, between 2014 and 2015, more than 3.5 tonnes of new psychoactive substances were seized by Border Force officers. This was a 75% increase on the previous year.

Once the Border Force has identified a consignment, it can then simply invoke its seizure powers and the substances will be subject to a forfeiture process. In appropriate circumstances, the National Crime Agency will wish to investigate further and seek prosecution of an individual for a Clause 8 offence.

I can assure noble Lords that, as for any offence, a prosecution for an offence under Clause 8 would be pursued only if the public interest test is met. This is clearly set out in the Crown Prosecution Service’s Code for Crown Prosecutors. The sort of questions that the prosecutor must ask him or herself when considering the public interest test include: “Is prosecution a proportionate response?”, “What is the impact on the community?”, and, “Was the suspect under the age of 18 at the time of the offence?”. I hope this reassures noble Lords that decisions to prosecute for any offence in the Bill will not be taken lightly and a number of factors will be considered.

Interestingly, the national policing lead has advised that the long-term focus of enforcement action will be on those sources of supply which caused the most harm to communities in terms of crime and disorder, or where they are connected with organised crime. Some of these considerations apply equally to Amendment 56, to the extent that it could open up a significant loophole which could be exploited. More to the point, I put it to the noble Baroness, Lady Meacher: do we really want to encourage people to manufacture psychoactive substances in their garden shed, or, indeed, their bath? I suggest not. Production is clearly a critical link in the supply chain and we should not tolerate it on any level, whether it is on an industrial or cottage-industry scale.

The purpose of the Bill is to clamp down on the supply of NPS, not to criminalise young people. A range of civil sanctions is available to law enforcement agencies which offer an alternative route to criminal proceedings as a means of tackling the production and supply of psychoactive substances. The use of these sanctions will enable law enforcement officers to take action swiftly to nip a problem in the bud or to adopt a more proportionate approach to low-level offending. It will be a matter for the relevant law enforcement officer to determine the most appropriate course of action.

I hope that has reassured noble Lords—

[Lord Howarth of Newport]

I just wonder whether the noble Baroness is not sending a rather confusing signal to people. She is saying, on the one hand, that it must be illegal to import a substance; on the other, she is saying—and I am glad she is, in a way—that the public interest consideration will come into play when decisions about the prosecution are to be made. She is saying that it will be illegal to do it, but she is dropping the very broadest of hints that you are not going to get prosecuted for it. Is that not rather confusing for people?

[Baroness Chisholm of Owlpen]

I did not mean to be confusing. People certainly will be prosecuted for it, but as I said, the use of these sanctions will enable law enforcement officers to take action swiftly to nip a problem in the bud or to adopt a more proportionate approach to low-level offending. So it will be a matter for the relevant law enforcement officer to determine the most appropriate course of action.

While Border Force will seek to intercept, seize and forfeit any consignment of psychoactive substances coming into the UK, the focus of any criminal justice response will be on cases in which there is evidence of greatest harm. Similar considerations would apply to the enforcement of the production offence. Given this, I trust that the noble Lord feels able to withdraw his amendment.

[Lord Paddick]

I am very grateful to the Minister for her response. Like the noble Lord, Lord Howarth, I am slightly confused. Clearly, the Bill is aimed at tackling the trade, but whether you buy your psychoactive substance from a website abroad or from a drug dealer on the street, it would seem that the Bill is aimed at tackling one part of the trade but not the other—unless I am confused about that, as I see the Minister and the expressions on people’s faces.

Of course Border Force needs to intercept these packages, which is why we are saying that this should be a defence rather than an exemption or not be an offence in itself. Clearly, if somebody is importing a large quantity and saying that it is a year’s supply, they would have great difficulty in convincing the courts that that defence was available to them.

There are two reasons for raising this issue. First, the Advisory Council on the Misuse of Drugs raised it. In point 5 of its letter, it states:

“The Bill has the potential to both criminalise and apply disproportionate penalties to many otherwise law abiding young people and adults”,

and it specifically mentions importation. Secondly, we wanted to get on the record, which we have achieved, the fact that the public interest test will be applied and that, hopefully, not many young people will end up with a criminal record as a consequence of these measures. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Norton of Louth (Con)]

My Lords, I would not dissent from the points that have been made about what should go into an annual report. I rise very briefly to comment on Amendment 55 and to commend my noble friend Lord Bates for tabling it; it is extremely helpful. He has already touched on it and the reasons for it, and I just reinforce that. The noble Lord, Lord Rosser, did not I think disagree with having the review, but suggested that there should be a second one later on. The point I would make is that there will be: most Acts are now subject to review four to five years after enactment, so this measure would come up for review at that point in the normal course of events. What we have here is an early review, which is eminently sensible in the context of this measure, and it is being done on a statutory basis. I have long advocated post-legislative review. I think it is an excellent thing and now, as I say, it has been brought in as a matter of course. But, where necessary, it is very valuable for it to be made on a statutory basis, for it to be included in a measure so that it is a firm provision. It will be reviewed within 30 months, which, in the context of the measure, is an appropriate period. I commend the Government for bringing this amendment forward.

[Baroness Chisholm of Owlpen]

My Lords, I undertook to reflect on the various amendments that were tabled in Committee. Having reflected, as the noble Lord, Lord Rosser, stated, we have brought forward Amendment 55 in this group.

As I indicated in Committee, post-legislative scrutiny of all primary legislation takes place three to five years after Royal Assent. We accept that there is a case here for special treatment. The Government are bringing forward their post-legislative scrutiny of this particular piece of legislation and will place a review of the operation of the Act on a statutory footing.

We remain firmly of the view that that the duty to undertake a review should be a one-off requirement, rather than a continuing annual requirement with all the costs that that would entail. We are not persuaded of the benefit of undertaking a bespoke review of this legislation year after year. I appreciate that the amendment in the name of the noble Lord, Lord Howarth, is not confined to a review of this legislation, but my point about the resource constraints carries ever more weight when one looks down the list of matters to be addressed in the noble Lord’s annual review of the Government’s drugs strategy.

Given these considerations, the Government’s amendment simply requires a review of the operation of the Act and places a duty on the Home Secretary to prepare a report on the review and lay a copy of the report before both Houses of Parliament within 30 months of the Bill coming into force. As noble Lords know, a period of 30 months has been specified in order to allow for the collection of up to two years’ worth of data post implementation.

The need for a review of the Bill was one of the issues raised by the Advisory Council on the Misuse of Drugs in its letter of 2 July to the Home Secretary. In the Home Secretary’s response, published yesterday, she said:

“The Home Office is keen to work with the ACMD and would welcome the opportunity to have an early discussion on both the scale and scope of the review having regard to resource constraints, and how to make best use of existing data and evidence”.

Until we have had those discussions with the advisory council, it would be wrong to commit now to the review taking a particular form. I can say that I would expect the review to cover much of the ground identified in the amendment moved by the noble Lord, Lord Rosser.

Turning to Amendment 54 in the name of the noble Lord, Lord Howarth, I agree that many of the issues he raises need to be looked at from time to time. That is why we already produce an annual review of our 2010 drugs strategy. The most recent annual review was published in February and highlighted the progress made across the three strands of the strategy—namely, reducing demand, restricting supply and building recovery. The report also set out our future commitments, including new initiatives and actions to respond to emerging evidence and the changing nature of the drugs market.

I recognise that substance misuse is not an issue that government can tackle alone. We value contributions made by our key partners to support the delivery of the 2010 strategy, including: our independent experts, the Advisory Council on the Misuse of Drugs; law enforcement agencies, including the National Crime Agency; international partners; and those working within the prevention, treatment and recovery sector. We are also committed to ensuring that, where possible, we assess the effectiveness and value for money of the 2010 strategy. Furthermore, our action to restrict the supply of illicit drugs is complemented by activity through the serious and organised crime strategy, which was launched in 2013 and which has been the subject of its own annual report. Together, the strategies are making significant steps forward in tackling the supply of drugs by organised criminals in the UK and overseas.

We recognise that drugs are a complex and evolving issue, so we will continue to develop the strategy and consider other approaches to help us respond to emerging threats and challenges. We will also continue to report in a proportionate way on progress in tackling these threats and meeting these challenges. I hope that noble Lords will agree that on reflection the approach taken in Amendment 55, coupled with the existing reporting on the 2010 drugs strategy, is the right way forward and, on that basis, that the noble Lord, Lord Rosser, will be prepared to withdraw his amendment.

[Lord Rosser]

I thank noble Lords who have spoken in the debate and the Minister for her response and for addressing government Amendment 55. I am obviously a little disappointed that there is apparently to be a one-off review, with no further review, although I note the observation made by the noble Lord, Lord Norton of Louth. It rather begs the question: if the Government are determined that it will be a one-off review and no more, what happens if the report that comes out is rather negative in respect of the operation of the Act? Surely if that were so, there would be a strong case for a further review within a fairly short time to see whether the situation had improved, and perhaps to set out what had happened in relation to any recommendations there might be in the review of the operation of the Act. There is presumably not much point in having such a review if problems are found and no recommendations are made as to how they might be addressed.

That issue will probably have to be left for another day, but I am not sure that it is necessarily wise for the Government to shut the door on any further review of the operation of the Act when that very review might make a case for one within a short time, particularly if it finds that the situation is not as satisfactory as one might have hoped. However, I appreciate that the Government have made some movement with their Amendment 55. I also note the noble Baroness’s comments that much of the information set out in our Amendment 52 is likely to be covered in the review of the operation of the Act under government Amendment 55. In the light of that, I beg leave to withdraw my amendment.