Investor Visas: Money Laundering
Lord Howarth of Newport Excerpts(9 years, 9 months ago)
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Lord Keen of Elie
With respect to the noble Lord, the proposition that no proper checks were carried out prior to April 2015—or, indeed, November 2014 —is not well founded. I believe that Transparency International, in one of its important pieces of work, referred to what it termed a “blind faith” period, but there was no such thing because persons wanting to invest in the United Kingdom pursuant to a tier 1 visa application were required to do that through either a broker, a bank or a lawyer, who would be regulated under the FCA and therefore bound to carry out relevant financial due diligence and anti-money laundering checks.
Lord Howarth of Newport (Lab)
My Lords, how effective does the Minister think that any checks will be as long as they are carried out by the very banks which the National Crime Agency informs us are laundering billions of dollars every year? If the anti-corruption summit, which we are told the British Virgin Islands, the Cayman Islands and Jersey have declined to attend, is to be anything more than gesture politics, will the Government follow it immediately by effective action: legislation to abolish the tier 1 visa racket and to require transparency of beneficial ownership of offshore companies and trusts?
Lord Keen of Elie
The Government have no plans to abolish the tier 1 route.
Lord Keen of Elie
There are a number of reasons for the reduction. It is noteworthy that the reduction in the number of applications from Chinese nationals began in 2013, before any of these changes were made, and has progressively lowered thereafter. It may be attributed in part to capital controls being increased and improved in some of those countries.
Lord Howarth of Newport
The Minister said that the Government had no plans to abolish the tier 1 visa system. How does he justify that to ordinary Londoners, who see themselves priced out of the London housing market in consequence of large quantities of ill-gotten capital being imported into this country through the tier 1 visa system and invested in London housing?
Lord Keen of Elie
The premise underlying the question is fundamentally wrong. It is not necessary to have a tier 1 visa or visa application to invest in property in the United Kingdom. Conversely, an investment in property in the United Kingdom is not a qualifying investment for the purposes of a tier 1 visa application.
Immigration Bill
Lord Howarth of Newport Excerpts(10 years ago)
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Lord Howarth of Newport (Lab)
My Lords, I am very grateful to the noble Lord, Lord Wallace, for proposing this new clause. I am a member of the All-Party Parliamentary Group on Anti-Corruption. Like the noble Lord, I have had the opportunity to examine the statistics in the report from Transparency International UK which he mentioned. I find them extremely concerning.
It would appear that, under the tier 1 investment visa scheme, we are operating a charter for money laundering. An individual is required to invest only £2 million in government bonds, or the share or loan capital of a business trading in the United Kingdom, and after five years they can have indefinite right to remain. As the noble Lord mentioned, there is a tariff on this. If they are happy to invest £5 million over three years or £10 million over two years they get a faster track to the right to remain. It is a pretty cheap ticket for them to come in. Large amounts of money have been brought in— £3.15 billion since 2006—by this route. I am advised that golden investor visa approvals have risen from 153 in 2009 to 1,173 in 2014. The largest number are Chinese, followed by the Russians. At the same time, the Chinese and Russian authorities are telling the world that they are very alarmed about the export of corruptly gained capital from their countries. The Government inveigh against corruption across the world. They propose themselves as international leaders in campaigning against corruption, yet it would appear that the right of potentially corrupt individuals—and there is good reason to think they are actually corrupt—to come, take up residence and remain in this country can be bought remarkably cheaply.
I have some questions for the Minister. Will he advise the Committee what precautions the Government are taking to ensure that those who benefit from these tier 1 visas are not corrupt? What investigations are undertaken? What requirements are there on people to declare their wealth and the sources of their wealth? What due diligence is pursued to ensure that those answers are honest, accurate and comprehensive? Do the Government maintain a list of those who are suspected by police authorities or intelligence sources internationally to be criminals or money launderers? Do they ensure that people who are on that list do not obtain visas? What proportion of applications for tier 1 visas is turned down? Do the Government intend to undertake any retrospective scrutiny of individuals who have already been granted visas under this scheme?
The noble Lord, Lord Wallace, referred to things that have been said by the chairman of the Migration Advisory Committee, Professor Sir David Metcalf. Those of us who know him know that he is a man of very great experience and wisdom. He told the Home Affairs Select Committee that the tier 1 scheme is,
“absolutely not fit for purpose”.
Indeed, that could be said to be an understatement. It is worse than unfit for purpose if it pollutes our national life. The noble Lord, Lord Wallace, alluded to the effects on the housing market. That alone must be a matter of very great concern. There is a cascade of misery that derives from the ability of wealthy individuals to force up prices of houses and apartments in London, and if they are doing that through the use of ill-gotten money, it is even more intolerable, as I am sure the Committee would agree. If this is a scheme to enable people who may be participants in organised crime or actively investing in it, it runs absolutely counter to what should be the main strategic purpose of the Home Office in any case.
Sir David said that the scheme brings “absolutely no gain” to the United Kingdom. It may be that the Government disagree, in which case the Minister will tell us, but it seems a reasonable proposition. Therefore, I hope that the Minister will tell us that he will accept the new clause that has been tabled, but if he intends to keep tier 1 visas, what is he going to do to ensure that there is not the abuse that Transparency International and many others believe there is in consequence of the availability of this scheme?
Lord Green of Deddington
My Lords, I speak in firm support of this amendment. We have had two very powerful contributions, and I will not repeat what was said. Listening to them and looking at the study, this is bizarre. It is really quite extraordinary. You can see why it is attractive. There is no need for a job offer or a sponsor, and the visa applies not just to the main applicant but to all his immediate family members. There are no language requirements and, since 2011, the residence requirement has been only 180 days. Talk about an offer. What do we get? We get nothing because these sums of a few million, which are evidently nothing to these applicants, are given back to them after a few years. They can put them in gilts and get their money back. It is absolutely bizarre. I suppose it is intended to give the impression that Britain is open to investors, and investors are a good thing, but we really should not give the impression that we are really quite as naive and foolish as that.
The noble Lord, Lord Wallace, has already quoted some very effective remarks from Sir David Metcalf, as has the noble Lord, Lord Howarth, so I shall not repeat them, but coming from someone of his stature, they should certainly be taken into consideration.
It is hardly too cynical to describe this as a scheme for selling British passports to the very wealthy. There is absolutely no justification for that and this scheme needs to be scrubbed, frankly. It may be that it could be replaced by a more effective scheme that actually brought serious investment and jobs to this country. That is for another day but this has got hopelessly out of hand. It is a useless system and should be abolished.
Lord Bates
Forgive me for trying to be reasonable. I was simply saying that this was an interesting argument that I listened to and followed. A number of points were raised from all parts of the Committee, expressing concerns about how this system operates. I want to go back and talk with colleagues about the system and how it operates, and then come back with answers to the points raised or suggestions as to how things could be improved.
Lord Howarth of Newport
If this does come back, will the Minister share with the House how the Government intend to make their position credible and defensible before this international conference, at which the Prime Minister will claim that Britain is leading in the security of its provisions to prevent money laundering?
Lord Bates
Her Majesty’s Government’s position is always credible and defensible. Most people would recognise that this is a sensitive area, but the UK has taken a very strong stand in the international community on tackling money laundering. It does that consistently through raising matters at the G20, which is a prime vehicle for operating on this, and through the OECD, which has its regulations as well. We will continue to do that. I would have thought that everybody would welcome the fact that the Prime Minister is taking this leadership and wanting to see how further things could be done. It is absolutely the role of this House to apply pressure to the Executive to make sure that they are living up to the arguments and principles that they seek that others observe.
Psychoactive Substances Bill [HL]
Lord Howarth of Newport Excerpts(10 years, 7 months ago)
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Baroness Hamwee (LD)
My Lords, I have added my name to the noble Baroness’s Amendment 3, and my noble friend Lord Paddick and I have Amendments 4, 5, 8 and 9 in this group.
On the term “novel”, which is the subject of one of our amendments, the Secretary of State in her correspondence with the Advisory Council on the Misuse of Drugs has explained how difficult a term this would be in legislation. I entirely accept that point, but as it was raised by the ACMD, which said that the omission of the term widened the scope of the Bill beyond that originally intended and cautioned against a blanket ban on psychoactive substances—because, for reasons we have heard, it would be almost impossible to list all desirable exemptions—I thought it was appropriate to raise it. As the Secretary of State points out, one might ask: novel since when? The use of the term “novel” as used by the ACMD is in itself slightly novel, but it is a term that is widely used. We have talked throughout this Bill—the term has come into common usage—of “new” psychoactive substances. If “novel” means new, and we have been using the term “new” again today, I think that it deserves some explanation from the Minister.
Importantly, I support the noble Baroness with regard to the term “synthetic”, because surely that is what this Bill is really all about. The Minister spoke in Committee about producers of new psychoactive substances constantly looking for loopholes, and I of course understand that, but the term is more precise than “novel”. I hope the Government can consider some way of addressing concern about the breadth of the ban. To me, the term “synthetic” imports a notion of artificiality, of materials being brought together, a combination. That is probably what it means; I suspect one of those comes from the Greek and one from the Latin. It suggests imitating a natural product.
The Minister referred in defence of the Bill to natural products being available in head shops which are far from safe. He mentioned fly agaric mushrooms. I had a quick look at the Kew botanic gardens website this morning, which calls them,
“the most iconic of … toadstools … commonly depicted in children’s books and on Christmas cards”,
so let us be very careful where we tread. It refers to their hallucinogenic properties, which I do not doubt, but then states that they have been well-known for centuries. Much the same can be said about salvia divinorum. The second part of that name suggests that there are sacred aspects to that substance, as is the case. Again, it has been in use for centuries. So I question whether it is appropriate to ban such substances now through this mechanism. We have a lot of drugs legislation, as the noble Baroness said, and one has to accept that this is a fairly hastily prepared Bill. It is not, I would have thought, directed at natural, albeit dangerous, substances known for centuries.
Is there something about how these plants are treated that distinguishes them from other plant-based drugs which are covered by the Misuse of Drugs Act? In the case of a substance that is integral to a religion, like the variety of sage to which I have referred, is there a mechanism for permitting its use in a religious context?
The question of harm is fundamental to everything we are talking about. As has been said, this issue has been raised by the ACMD and we on these Benches—and, I am sure, the whole House—are concerned about ensuring that harm is the focus of the legislation. My noble friend and I are concerned about the whole premise of the Bill—we have debated this before—because we do not believe that a complete ban can work. Human beings do not take well to prohibitions and if new psychoactive substances become more difficult to get hold of, they will be driven underground or users will turn to more harmful substances. That is why we believe that harm should be the focus of the Bill.
I turn now, as I did at the previous stage, to the Misuse of Drugs Act. This established the Advisory Council on the Misuse of Drugs and gave it an advisory role where,
“the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem”,
and in,
“preventing the misuse of such drugs or dealing with social problems connected with their misuse”.
I thought it would be appropriate to import those words into the Bill and our amendments deal with that. We do not seek to put them into Clause 1, as the noble Baroness has done, because that is an overview. It points to the definition clause but we have included the words in our amendment to Clause 2, the definition clause, providing a requirement on Ministers to refer matters to the ACMD and allowing it to oppose exemptions on this basis. The Secretary of State’s letter to the ACMD refers to a discretion about the definition and scope of the exemptions. We want to make it clear that the basis should be harm, not an unqualified, undefined term but using the terms in established legislation.
I have just seen, as other noble Lords will have done, the ACMD’s letter of 13 July. I do not criticise it but I am sure that I am not the only noble Lord who thinks that we could have done a better job on this Bill if there had been consultation with the ACMD before it was published. The advisory council has moved very quickly—it cannot have been easy for it—but it refers in its letter to having had only a narrow window of opportunity to make recommendations for amendments and to begin to formulate advice. This House does its best work when we have a good basis to work from and are not trying to second-guess the experts in the field.
Lord Howarth of Newport (Lab)
My Lords, it is remarkable that the international community, having been increasingly aware of and alarmed by the dangers of new psychoactive substances, has none the less not so far succeeded in establishing a definition that is watertight in legal terms and available to the Government to use in their legislation as they seek to fulfil their manifesto pledge. The expert panel, on page 38 of its report, advised that the definitions in use in legislation would need to be robust. This group of amendments seeks to specify more closely the generic problem that we are seeking to address through this legislation.
In seeking to tighten and, in a sense, limit the scope of the Bill in this way, let me not give the impression—I know that other noble Lords who have supported these amendments would not want the impression to be given—that we in any way minimise the dangers from new psychoactive substances. This is a serious and challenging social problem.
Lord Mackay of Clashfern (Con)
My Lords, I have no particular difficulty with the first amendment concerning “synthetic”, and I think I indicated that to the Minister some time ago before it was actually formulated as an amendment.
However, I have considerable difficulty with the second amendment and how it is going to work. If somebody produces this material and that production is to be a crime, in the general view I have about the law he must at least have the means of finding out whether what he is doing is criminal. The difficulty that has been expressed before in relation to these psychoactive substances is that they are produced so quickly and changed so quickly and the harm is done so quickly that the Misuse of Drugs Act can hardly catch up with them. That is a very serious problem.
I agree very much with what the inspector has said in his report about the difficulty of prisons. Indeed, I have been told before that there are considerable difficulties with the input into prisons, by whatever means, of these legal highs. They certainly seem to have the effect of producing considerable violence, which is undoubtedly a social problem if ever there was one. How is this to work? The Advisory Council on the Misuse of Drugs will have to give advice. Will that not create exactly the same difficulty as the attempt to use the Misuse of Drugs Act to control these legal highs has proved to have in the past? That is the need and reason for the production of the Bill.
The noble Lord, Lord Howarth of Newport, said that the definition is very wide. My view is that, on the whole, the legal effect of a definition is rather more related to its precision than to its particular width. In some cases, the definition of what is made criminal is very wide indeed—as undoubtedly it should be to encompass many methods of carrying out the offence. I cannot see how the mechanism suggested here is going to be capable of working, given the problems that exist. I have been trying to think of how this could be modified but so far without too much success, except that something depends on the intention of the laboratories producing these substances. What are they doing it for? Are they intending to help people to sleep well or behave well and so on? I think they are probably not.
The purpose for which these substances, which may be synthetic, are produced seems highly relevant but it is quite difficult to get at defining an offence by reference to that. However, if the purpose for which the substance is produced is something that the state considers should be criminalised, that is a possible way to define an offence. That would at least have the effect of it being decided in relation to the time of production. It might not be possible to prove it immediately but the essence of it would be something that has happened before that production was put into the hands—or the body, one way or another—of the person receiving it, which is part of the crime that the Bill seeks to establish.
Lord Howarth of Newport
What would be the practicalities of trying to prove the intention of a chemist in China?
Lord Mackay of Clashfern
The intentions in China are possibly as human as intentions here. If people produce a substance in China, it is bound to be possible to say why they are doing it. I agree that the more remote they are, the more difficult it is to bring to bear our criminal system but the system has to work when the drug is brought into operation in this country. The people who bring it in will have a purpose. They will no doubt have some kind of relationship with those who produce it, in China or elsewhere. I do not think that they are normally bringing it in as a charity but for some commercial purpose.
As far as I can see, the type of approach that the noble Baroness, Lady Meacher, has suggested may be capable of being rephrased to bear on the purpose for which the drug is produced. If that were possible, it would be a much more feasible and workable solution than is contained in Amendment 2 at the moment. I am very sceptical about anything I could say about a definition of this kind that is supported by no less a person than the noble Lord, Lord Rees of Ludlow. However, this has legal implications as well, which is why I have been encouraged to say what I have thought about it up to now.
Lord Tunnicliffe (Lab)
My Lords, the noble and learned Lord, Lord Mackay of Clashfern, hit on the essence of the Bill at the beginning of his contribution. It takes a different approach from the Misuse of Drugs Act 1971, because of the speed with which these new products are coming into our society. We all at least agree that their impact is one of tremendous and peculiar harm. The Labour Front Bench supports the Bill and the essential concept behind it. We had a manifesto commitment to address legal highs and we approve of the device used, which is a wide definition with exceptions. That is the difference between the two sides in this debate. We therefore, as a generality, oppose the narrowing of definitions, as that would go to the essence of how the Bill is designed to work.
Amendment 1 would narrow the definition to “synthetic”, which would potentially exclude a large group of naturally occurring substances. Amendments 2, 5, 6, 8 and 9 all seem to be about the same concept, with the same words used over and over again, as in Amendment 2, to limit the definition to,
“any drug which is, or appears to the Advisory Council on the Misuse of Drugs to be, misused and of which the misuse is having, or appears to the Advisory Council on the Misuse of Drugs”—
here we get to the key words—
“to be capable of having, harmful effects sufficient to constitute a social problem”.
Those ideas would drive right through the concept of the Bill and reverse its essence, meaning the psychoactive substance would first have to be proved harmful. The Bill is poised the other way round: if the substance is psychoactive, it is presumed to cause harm and is illegal under the Bill unless exempted.
The wording and framing of those amendments seems also to leave out the concept of self-harm, which the Bill seeks to address. It certainly takes out the more complex issues of harm such as dosage, volume, et cetera. We therefore cannot support those amendments.
Lord Howarth of Newport
I am very grateful to my noble friend for giving way. How does he deal with the objection raised by Professor Iversen and his colleagues on the ACMD in their letter of 2 July? The professor warns that:
“The psychoactivity of a substance cannot be unequivocally proven”.
He goes on to say how difficult it would be to demonstrate in court that a particular substance was indeed psychoactive. He also says:
“It is almost impossible to list all possible desirable exemptions under the Bill”.
Are those two objections not very serious ones to the legislation? What is my noble friend’s response to Professor Iversen?
Lord Tunnicliffe
My Lords, I thank my noble friend for that intervention and hope to respond to it, at least in part, as I progress through the points I am making.
Amendment 7 would delete the definition in the Bill and would hence create the opposite effect from the one that we wish to pursue. For those reasons, in general we oppose these amendments. But—and it is an important but—we have become increasingly concerned with the operation of the Bill. What will happen? The concern that was building up and which came out on the first day in Committee was about how it will work operationally. It is of particular concern because the Bill refers specifically to the “balance of probabilities” and then, in other places, ends up with criminal sanctions. That is starting to feel very wrong. We challenged the Minister on this and he promised to write to me to provide reassurances about the operational aspects and the whole issue of proving whether something was psychoactive. I intend to refer to the letter that I got from the Minister. I thank him for the letter and I thank him and the team for making sure that it was copied to anybody who has spoken in the event—so anybody who has spoken in the debate so far should have a copy of the letter.
Lord Bates
The noble Baroness goes to the heart of the issue; we have a problem with that. We are just not convinced. There are botanicals, to which we have referred. There are other substances, such as nitrous oxide. Does “synthetic” as a term cover what we want it to cover, or will we be reassembled back here at some future date trying to clamp down on another loophole which has been exploited? That is the difficulty. When I say that I am not ruling out the term “synthetic”, that is absolutely correct, but we want to make sure that if the term is used, it is understood in a legal context as achieving the intention of the Bill, which is to uphold a blanket ban. I hope that, with that, I have provided some clarification.
Lord Howarth of Newport
I am grateful to the Minister for giving way. What is his difficulty about using the apparatus already available to the Home Secretary under the Misuse of Drugs Act 1971 to deal with botanical substances and, I think, nitrous oxide—natural substances about which the Government are concerned? It is open to them to classify them perhaps as class C drugs and deal with the problem in that way, distinguishing between natural substances and the synthetic substances that constitute this huge social threat by being barraged into our society week after week to the great danger of our young people.
Lord Bates
That was the point that I was trying to address in response to my noble and learned friend Lord Mackay, who talked about the speed of this: the cumbersome process that existed before to categorise something, the period of time, and the agility of the criminal gangs behind the production of these substances. That goes to the heart of the purpose of the blanket ban. I know that we may not necessarily agree on that point, but I hope he will understand that that is where we are genuinely resolute: how do we uphold the blanket ban—which is the advice that we received from the expert panel, what similar panels in Wales and Scotland believe to be the way forward and what operates in Ireland—in a way that recognises the nuances we have but does not allow people to escape through loopholes? That is the challenge we are wrestling with. It is a dialogue that we are committed to continuing, both with your Lordships in the remaining process of the Bill and as it goes to another place, should it be your Lordships’ will that it does. That dialogue will continue; it is genuine and we are continually listening to views on this.
Lord Howarth of Newport
My Lords, in supporting the amendment tabled by my noble friend Lord Rosser, I express my welcome to the amendment tabled by the Government. It gives me particular pleasure to support my noble friend but it also gives me pleasure to support the Minister in his tabling of that amendment. It is never really profitable in politics to seek to take credit; it is much more important that there should be results. But there has been pressure from all quarters for the Government to make it clear—and make it clear in the Bill—that they were going to involve the Advisory Council on the Misuse of Drugs in carrying forward the policy for which the Bill would legislate, so this can be nothing but good. If any credit is due to this House, because the issue has been emphatically raised in our proceedings, then it is one more instance of how the Minister has been the most honest of brokers between this House and his department. The integrity, good will and energy with which he has mediated these debates through to his colleagues in the Home Office is something which I think we all very much appreciate. I would like to place that on the record.
Lord Bates
My Lords, this may be a short group as we, too, welcome this amendment. I do not think I have ever known an occasion before where all three main parties have put their names to the same amendment. It is a matter of semantics as to whether we have all come around to Amendment 10 or everybody has come around to government Amendment 22. What matters most is that we are all on the same page. In the context of the previous debate, that same page very much underscores the importance which the Government place and should place on the advice which they receive from the advisory council.
The Explanatory Notes made it clear that we expected to consult fully the council on Clauses 3 and 10. However, in bringing forward these amendments to turn such an expectation into a statutory duty, we have been mindful not just of those views and its opinion but of the deliberations and the views expressed in your Lordships’ House. These amendments reaffirm the value we place on the independent expert advice from the advisory council and our commitment to a constructive working relationship with it on the provisions of the Bill and the Misuse of Drugs Act 1971. We will continue to work with the council to achieve our common purpose of reducing and preventing harms caused by psychoactive substances to individuals, especially young people, families and communities. For these reasons, I am happy to support Amendment 10 and similarly to commend Amendment 22 to the House.
Lord Howarth of Newport
My Lords, I am not sure that the issue of the medicinal use of cannabis is germane to this particular Bill—
Baroness Hamwee
I would just make it clear that I am talking about research. It happens to be in that context, but it is research.
Lord Howarth of Newport
I was not meaning in any way to attempt to refute or reject something that the noble Baroness had just said—I was apologising to the House for being about to mention the medicinal use of cannabis, because it is somewhat marginal to the Bill. However, ensuring that research for medical purposes, or indeed for other legitimate industrial purposes, is not inhibited by the provisions of this Bill certainly is germane, and it is rendered all the more important because of the difficulties that the Misuse of Drugs Act 1971 already places, in practice, on certain sorts of research that it is highly desirable should be pursued. I also have the report by Professor Val Curran and Mr Frank Warburton in my hands, and I was going to draw to the attention of the House the observations made by the authors of that report that there is what Professor Curran calls a “stranglehold on research”. She says in the report:
“Carrying out research into cannabis in the UK is a costly obstacle course. It involves a minimum outlay of £5,000 to cover licensing and security; licence applications take about a year”.
She broadens out what she says to deal with other substances in Schedule 1, saying:
“As a result of its Schedule 1 status in the UK only four hospitals have been granted a licence to hold stocks of cannabis although all of them are able to hold heroin”.
So it is a somewhat confused situation. I was encouraged to read in the Home Secretary’s letter to Professor Iverson of 11 July that the,
“Government’s intention is for all bona fide medical and other scientific research to be untouched by the provisions of this Bill”.
I simply draw to the attention of the Minister and the House that the provisions of the 1971 legislation already make for very considerable difficulty in pursuing bona fide research into certain substances in Schedule 1. I am very happy to know that the Government are consulting and looking to amend the provisions of this Bill in the House of Commons, and I hope that they take fully into account when they do the difficulties that the 1971 Act has already created.
Lord Howarth of Newport
My Lords, this amendment is intended to avoid a situation in which we may find ourselves criminalising rather large numbers of young people. I am not sure that that is what the Government really want to do, and I myself would not at all like to see it happen. The Bill provides that it is not an offence to possess a psychoactive substance, but all means whereby people might obtain psychoactive substances would be made illegal. I do not know whether Ministers expect people to come into possession of psychoactive substances rather as if they had descended like manna from heaven—or perhaps, as some people would see it, surfaced from hell.
At all events, very many young people use psychoactive substances. I do not think anyone knows what the scale of use is in this country. The report on new psychoactive substances that the Home Office commissioned and published last year indicated that the data are extremely thin and inadequate. That is no one’s fault; it is a very widespread problem and it is hard to monitor the reality of it. Still, a lot of people are using psychoactive substances, just as a lot of students are using substances that they think will enhance their cognitive powers, and I do not think that a ban is going to stop them doing so.
The question is this: if a group of people club together, in the words of the Advisory Committee on the Misuse of Drugs in its letter of 2 July, and one of them supplies a psychoactive substance to a circle of friends but does not do so for the purpose of financial gain—it is a shared social activity that they have agreed to undertake—should that become a criminal offence? I suggest that it should not. More significant than my suggestion is the urging of the ACMD in its letter to the Secretary of State, in which it says:
“The Bill has the potential to both criminalise and apply disproportionate penalties to many otherwise law abiding young people and adults…An example is a young person being prosecuted for ‘supply and importation’ in a case of ‘social supply’ where a young adult has bought small quantities of Novel Psychoactive Substances on-line on behalf of a group of friends who have ‘clubbed together’. The ACMD believes that criminal justice sanctions would be disproportionate to the harm caused by such acts”,
and I think the ACMD is right. In her reply to Professor Iversen’s letter, the Home Secretary offered some reassurance when she said that,
“the Bill contains both criminal and civil sanctions which will enable law enforcement agencies to adopt a proportionate response to offending behaviour. In addition, the police and Crown Prosecution Service will exercise their professional discretion taking into”—
I think the next word is “account” but it has been missed out—
“all the circumstances of the offence and the offender”.
So that is good.
Oddly, she also says in the preceding paragraph that the expert panel,
“did not suggest excluding social supply”.
That is not how I read the expert panel’s report. Page 33 of that report, at the beginning of the section entitled “General prohibition on the distribution of non-controlled NPS”, in which the expert group set out to state the principles that should apply, said:
“Legislation of this type … can exclude … social supply”.
It did not recommend that it should exclude social supply, but contemplated that it should. I hope that the Government, in the light of that, might be prepared to think a little further about this issue.
Lord Bates
The noble Lord made a good point on stop-and-search powers and I know that a significant body of work is going on in relation to it. I was going to quote some of the reports on it and the actions that the Home Secretary has requested and taken on recording the data on how stop-and-search powers are used, particularly vis-à-vis black and minority ethnic communities. Perhaps I can undertake to write to the noble Lord and set that out in some detail. Because it is such a serious point, the ACMD was right to raise it in its letter, and the Home Secretary was right to acknowledge that point in her response. However, that does not take away from the wider point that allowing a defence or allowing for a provision relating to social supply of new psychoactive substances would provide a loophole that would be open to exploitation. It is for that reason, rather than the other, that I ask the noble Lord, Lord Howarth, to withdraw the amendment.
Lord Howarth of Newport
My Lords, I am grateful to everyone who has spoken. We know and applaud the Home Secretary’s drive to reform stop and search, and her desire that its incidence should be greatly reduced, not least in light of the findings that a high proportion of stop-and-search operations have been conducted illegally. However, the noble Lord, Lord Paddick, with all his experience of policing in Brixton, has raised a fresh point in our debates that is exceedingly important. It is that stop and search is producing a disproportionate incidence of cautions and charges among BME communities. I hope that the Home Office will reflect carefully on what the noble Lord had to say.
The noble Baroness, Lady Meacher, put it to us that the charge that a young person might receive for supplying a psychoactive substance to their circle of friends, although not doing so for profit, might actually be more damaging than the effect of the psychoactive substance. That would often be the case. She mentioned Portugal, where the health-led approach is very different from the comprehensive prohibitionist approach that the Government have espoused and are reinforcing in this legislation. It is interesting that the European monitoring centre’s statistics show us that Ireland, which has used the approach that the Government are now seeking to legislate to provide in this country, has the highest incidence of consumption of new psychoactive substances among the many European countries covered by this survey; and Portugal has the lowest. There are lessons to be learnt from that.
The noble Lord, Lord Ramsbotham, reminded us of the dangers of a criminal charge getting on to a young person’s record and being carried through into adulthood—and what a millstone that is around their neck. I should imagine that that is dangerous psychologically and in all sorts of practical ways.
I take seriously the intervention by the noble and learned Lord, Lord Hardie, who asked us to consider the extreme circumstances in which someone, perhaps with innocent intentions, had provided a substance to a circle of friends but it had all gone horribly wrong and someone had died. The noble and learned Lord said that the right solution was to leave the question of prosecution to the judgment of the prosecutor. I was pleased that the Minister indicated that that, too, would be his view—that discretion, which can be used by the police and the prosecuting authorities, is provided in the Bill. The intervention underlined how important the exercise of that discretion is.
I understand why the Home Secretary would not want to create a large loophole in the coverage of the legislation, and I was pleased that the Minister told us that the Government were seeking as far as they could to minimise the criminalisation of young people through this legislation and that he shares the concerns expressed by the noble Lord, Lord Paddick. I am sure that the House of Commons will want to think further about this issue. In the mean time, I beg leave to withdraw the amendment.
Lord Blencathra (Con)
My Lords, I apologise that I have not been able to be here for the whole debate. I had meetings earlier and I have others tonight. I thank my noble friend the Minister for the amount of information he has supplied. Indeed, I have not had enough hours in the day to read all the PDF attachments in my email inbox. I am sympathetic to one of the amendments; namely, that relating to children’s homes or places which hold vulnerable children, or whatever is the current correct terminology. Clause 6 creates an aggravated offence for selling drugs outside a school. It seems to me an anomaly if we do not include places which hold even more vulnerable children than those in schools.
I think that in Committee my noble friend said that one of the difficulties would be that everyone can see where a school is—there are big signs and lots of children—but that drug dealers might not know when they are selling drugs in the vicinity of a children’s home. I do not think that that will wash. The bad guys selling drugs know every potential outlet better than anyone else. They will know when there is a children’s home and a potential outlet nearby, and they will target it. I would like to hear from my noble friend the practical difficulties about including children’s homes or places which hold vulnerable children. It seems to me that they are even more important than ordinary schools.
For a few reasons, I am not so sympathetic on the point about prisoners. Drugs are a problem in prison but they should not be. There is no excuse for drugs being in prisons but certain excuses are used. We have, in my view, the ridiculous situation of completely free association. Wives and girlfriends can freely mingle with the prisoners, most of whom are male. They can hug, kiss and cuddle, and they have every opportunity to pass on drugs. I have never understood why we do not have a system where there is a glass screen between the visiting friends and relatives, and the prisoners, so that drugs cannot be so easily passed on.
In 1993, my noble friend Lord Howard of Lympne went to the Home Office. He decided to crack down on drugs and introduced springer spaniel sniffer dogs to some prisons. Two things were immediately noticeable. First, as soon as the relatives saw the dogs, they had to return to their cars to deposit the goodies that they were about to take into the prison. Secondly, there was resistance from a large number of prison officers and governors about the policy. I apologise to that very trendy trade union, the Prison Officers Association, if I misquote it. However, I was told at the time by prison officers that, if you are looking after 700 men in prison, you have to reduce the tension level. The way to reduce the tension level then was to let them have illegal access to drink, drugs and pornography. That reduced the tension levels, they said. Therefore, I do not have much sympathy for prison governors who say that there is a problem with drugs in prisons and the Government should do something about it. They have it in their own hands to tightly control drugs in prisons. However, if the noble Lord, Lord Paddick, is right that it is impossible to test for some of these psychoactive substances, we need to make sure that visiting relatives are not able to pass them on. I would be amazed if little sniffer dogs were unable to detect them. It may be difficult to do so with a blood test, but we now read in the press about sniffer dogs which can detect almost anything. Some dogs can detect whether you are about to have an epileptic fit and it should be possible to have a tighter control regime.
Finally, why stop at prisons? I consider nightclubs to be an even bigger problem. If we are to have an aggravated offence of selling drugs outside schools, what about an aggravated offence of selling them in nightclubs, or near nightclubs where young people hang out? Again, that is a large captive audience. Perhaps we should have an aggravated offence for people in positions of responsibility who commit this offence. A tiny minority of military officers or police officers may be tempted to commit this offence, but perhaps it could be an aggravated offence. Off the top of my head, I can think of a few areas where I would like to see an aggravated offence introduced, but it may be best to restrict it to schools, with the possible addition of children’s homes.
Lord Howarth of Newport
My Lords, whatever I may think about the general principle of the legislation, if we are to have it, I am sure it is right that there should be aggravated offences where the interests and protection of children are concerned. I support the extension of that principle to prisoners. I applaud my noble friends for tabling their amendments and other noble Lords for their amendments, and for supporting the various amendments in this group.
I say to the noble Lord, Lord Blencathra, who is set fair to close down the whole country, as far as I can see, that I understand that one of the difficulties that prison governors now face is that it has become a not uncommon practice for family members to send letters to prisoners on paper which they have previously soaked in a psychoactive substance. When the prisoner receives the letter, the thing to do is to smoke it. Therefore, this is not as straightforward an issue, as the noble Lord, of course, with his experience, very well knows. However, these are good amendments and should be supported.
Psychoactive Substances Bill [HL]
Lord Howarth of Newport Excerpts(10 years, 7 months ago)
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Lord Howarth of Newport (Lab)
My Lords, I am glad to support the amendment tabled by the noble Lord, Lord Paddick. The Government say that it should not be an offence to be in possession of a substance for your own use. If the consequences of the legislation are similar to those that have been seen in Ireland, the head shops and the UK-based websites will be closed down. We know that the police have been tasked to go after the street dealers zealously. What is most likely to happen is that people will turn to online suppliers based in other countries and will receive packages, at any rate for their personal use, through the mail.
The amendment seems, first, logical. If it is to be legal to possess then you must contemplate some means whereby people can come into possession. Secondly, it seems realistic in the sense that, in practical terms, it will be impossible to close down the online trade. I know that powers are to be taken in an amendment we shall debate later to deal more effectively with packages, but the volume of mail and internet-based business is so huge that it is unrealistic to suppose that more than a tiny fraction of packages containing psychoactive substances will be intercepted. On the grounds of both logic and practicality, this is a sensible amendment and I hope the Government will feel able to accept it.
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 Hamwee (LD)
My Lords, this takes us back to the control of cannabis for medicinal use. In Committee, there was some interest in, and I would say some sympathy for, the proposal that medicinal use should be permitted through some means or other. I am using those terms extremely loosely but there was certainly recognition of the difficulties and publicly expressed concerns. Very appropriately, concern was also expressed in the Chamber about the need for controlled trials, and a recognition of the difficulties around trials and of the paradox that medicinal herbal cannabis is widely available elsewhere in Europe, either produced in certain countries or imported from them, and in the United States, and that those medicines are much less expensive than Sativex, which is the medicine available—that is quite a wide definition—in this country on limited prescriptions.
I do not want to repeat that debate but I am mindful of the list of conditions we are aware of, and the severity of many of those conditions, which cannabis seems to alleviate—not for everyone, perhaps, but for an awful lot of people, and with very dramatic effects—so I did not feel that I could let the matter rest there. I was also aware that the Labour Front Bench did not feel able to support the amendment at that stage, possibly because of its defective form. The noble Lord, Lord Rosser—as I heard him and as I read in Hansard—was non-committal on the principle of the issue on that occasion. I hope that this evening the Opposition will be able to take the opportunity to indicate their position.
The noble and learned Lord, Lord Mackay, pointed out that there was already a procedure which would allow for cannabis to be moved from Schedule 1 to Schedule 2 to the Misuse of Drugs Regulations 2001 by regulations made under the Misuse of Drugs Act 1971. The amendment places the proposals squarely within the existing provisions of the Misuse of Drugs Act to allow for that change in the regulations to place cannabis among those drugs which may be illegal for recreational use but can be available via prescription. I am proposing the very much more tentative step—a preliminary step, perhaps; I hope so, at any rate—of consultation with the ACMD under the 1971 Act with regard to the use of the Secretary of State’s powers under the regulations to achieve the alteration that I am speaking of with regard to both cannabis and cannabis resin. I beg to move.
Lord Howarth of Newport
My Lords, I hope indeed that, as the amendment proposes, the Government will consult in the relatively near future with the ACMD about the desirability of rescheduling cannabis from Schedule 1 to Schedule 2 to facilitate the use of cannabis-based medications. I draw great encouragement from the fact that the noble Baroness, Lady Hollins, has added her name to the amendment. She is an extremely distinguished psychologist and a very senior figure in the BMA. If Ministers are less than impressed by any contribution on scientific or medical subjects that I may be able to make, they should be fully aware that the noble Baroness is in support of the amendment.
Perhaps I may refer again to the pamphlet published under the auspices of the All-Party Parliamentary Group on Drug Policy Reform, Regulating Cannabis for Medical Use in the UK, authored by Professor Val Curran and Mr Frank Warburton. I remind the House that at the outset of that document, the authors state:
“Based on a review of the research literature, the most established uses of medicinal herbal cannabis in places where it is most widely available such as in the Netherlands include: The relief of pain and muscle spasms or cramps associated with multiple sclerosis or spinal cord damage; chronic neuropathic pain (mainly pain associated with the nervous system, e.g. caused by a damaged nerve, phantom pain, facial neuralgia or chronic pain which remains after the recovery from shingles); nausea, loss of appetite, weight loss and debilitation due to cancer or AIDS; nausea and vomiting associated with chemotherapy or radiotherapy used in the treatment of cancer, hepatitis C or HIV infection and AIDS; Gilles de la Tourette syndrome; therapy-resistant glaucoma”.
That is a significant list of conditions and diseases which good scientific evidence indicates are alleviated by cannabis-based medication. Yet we have a state of affairs in this country, in contrast to others, in which such alleviation and medical benefit is hardly available to people. That contrasts strongly with the countries which regulate the medical use of cannabis and cannabis derivatives, including Canada, the Netherlands, Israel, Spain, Uruguay and some 20 or more states within the United States of America. These are all mature societies which have thought deeply about the practicalities of drug control. They have come to a variety of policy conclusions but none of them has taken the decision flippantly or negligently to ensure that medical cannabis can be available in appropriate circumstances for patients who would benefit from it.
The current situation in the UK is that there are numerous people for whom cannabis would incomparably alleviate chronic pain, for example, but who simply cannot get hold of it. That is because of the rigidity of the regulations, the lottery of prescribing—a small number of doctors are willing to prescribe but very many are not—the cost of research and the consequential additional cost of production, and the inflexibility of the licensing system. This case is thoroughly made out in the document from which I have quoted. It surely must be time that the British authorities thought again about this and made moves at least to reconsider, open-mindedly and in a practical and constructive fashion, whether we should at long last reschedule cannabis from Schedule 1 to Schedule 2.
Baroness Meacher
My Lords, we debated this issue at length in Committee and I will therefore speak only very briefly. I support very strongly the amendment tabled by the noble Lord, Lord Paddick, which was spoken to by the noble Baroness, Lady Hamwee.
The Minister is aware that cannabis medication has proved a literal life-saver for children with Dravet syndrome, an extreme form of childhood epilepsy. If cannabis could be available as soon as Dravet syndrome was diagnosed, very severe brain damage caused by literally hundreds of fits every day could be avoided. The appalling side-effects of benzodiazepines for tiny children could also be done away with. On the basis of that single syndrome, the value of medicinal cannabis for these tiny children seems sufficient to make the case for cannabis to be shifted from Schedule 1 to Schedule 2.
As we know, Schedule 1 has in it only those drugs that are deemed to have no medicinal value at all. One simply cannot say that any longer of medicinal cannabis. The evidence of the medicinal value of cannabis for a range of other severe, long-term illnesses is now also irrefutable. That is a strong word when research is so difficult to undertake and the research studies have therefore been relatively small, but the evidence from countries across the world is now so strong, even on the basis of these small studies, that I do not think we should be questioning it.
Lord Howarth of Newport
The Minister will know from reading the report that some of the very significant practical difficulties for research arising from the fact that cannabis is in Schedule 1 are described in that report. He will also be aware that whereas cannabis is in Schedule 1 and is that much more tightly controlled, heroin is in Schedule 2 and is also very tightly controlled. The Minister said he had looked at the totality of the evidence. Does he have any evidence of leakage of heroin from hospitals, which are allowed to hold it because it is a Schedule 2 drug, into the illicit market? It is no more likely that cannabis would leak from its proper medical research uses into the illicit market than that heroin would. Heroin does not, I believe, so why would cannabis?
Lord Bates
That is an interesting point which will, of course, be considered by those committees which advise the Government on these important issues. I would imagine that that factor has been considered, and if it has not, I am sure that the noble Lord will ensure that in future it should be considered in making decisions on this issue.
Home Office records confirm that no university that has applied for a Schedule 1 licence has so far been refused one, and we have not seen any evidence that licensees have been unable to comply with the Schedule 1 licence requirements. About 70 Schedule 1 licences are currently held by universities and hospitals enabling them to undertake research with all substances in Schedule 1 under the terms of that licence, as opposed to being limited to a single drug.
Where that research involves live human subjects, there are other, non-Home Office requirements, such as ethics approval, and I think there is some anecdotal evidence that the ethical demands, processes and commitments that must be gone through are more onerous than the licensing ones and may in practice present greater challenges to researchers than the requirements of the 1971 Act.
I have no doubt the debate on the legal status of cannabis, including its scheduling, is one we will return to from time to time as the evidence develops. For now, I hope I have been able to present some evidence to the noble Baroness that while we carefully considered her proposal, we do not regard it as necessary and do not see the case for there being a change in the Government’s position at this time.
Lord Rosser
In Committee, we discussed an amendment providing for the Secretary of State to establish a scheme to promote public awareness of new psychoactive substances, including the dangers that these substances may pose, and to provide an annual report to Parliament. Amendment 51, which I am moving, is in a similar vein. In his response in Committee, the Minister referred to a meeting that was to take place with Public Health England and the Department for Education earlier this month. He said:
“The Bill is primarily a law enforcement measure, setting out definitions et cetera, although it is part of a wider context that includes education. As to whether we should have references to education or treatment programmes in the Bill, I personally favour things that are very clear and focused about what they want to do. What we hope to achieve through education is a very important part of the context. I undertake to reflect on that between now and Report”.—[Official Report, 23/6/15; col. 1570.]
Since the discussion in Committee, we have had the letter of 2 July to the Home Secretary from the chair of the Advisory Council on the Misuse of Drugs, which set out the ACMD’s views on the Bill. That letter says:
“The ACMD would like to help the Government in refining the Bill by making recommendations”.
It goes on:
“The ACMD is willing to suggest detailed amendments … helping develop an implementation strategy including information, education, treatment and harm reduction services which may be required for users of Novel Psychoactive Substances”.
The ACMD then includes in its recommendations that the Government should,
“ensure adequate resources are in place to support education, prevention, acute health interventions, treatment and harm reduction services to prevent and to gather evidence of Novel Psychoactive Substance-related harms”.
Therefore, the ACMD was talking with regard to amendments to the Bill on information, education and treatment, and clearly had some doubts about whether adequate resources were available. In her reply, the Home Secretary made no response to the ACMD offer to “suggest detailed amendments”, including on the issues of education, treatment and harm reduction. Perhaps the Minister could fill in that gap when he responds.
On the ACMD recommendation in respect to the provision of adequate resources, the Home Secretary referred to,
“a comprehensive action plan on psychoactive substances to further enhance”,
the Government’s,
“response to prevention, treatment and information sharing”,
and to refreshing the Government’s,
“over-arching approach to reducing the demand for drugs … enabling … a broad approach to prevention”,
to be taken.
I believe the Home Secretary may also have received a letter from a number of organisations involved in this field which expressed concern about the educational and preventive response from the Government about the risks to young people from new psychoactive substances. The organisations said that the current approach to preventing young people coming to harm from NPS is insufficient to meet the scale of the problem and have asked the Government to consider the proposals recommended by the Welsh Government’s Health and Social Care Committee. That committee, of course, recommended a targeted public awareness campaign for young people, as well as one specifically for parents, an evaluation of current education programmes, investment more generally in drugs education in schools, and NPS training for front-line staff. In addition, we have already had the report of the Government’s expert panel, which also included recommendations on education and awareness.
I am not sure what the difficulty was with the amendment in Committee, and I hope that the outcome of the Minister’s reflection since Committee, which he said he would undertake, will prove to have been positive. After all, he said in his recent undated letter to my noble friend Lord Howarth of Newport:
“I feel strongly that prevention is at the core of how we tackle the misuse of drugs and keep our young people safe from drug related harms”.
What we do not want is government—any Government —maintaining that it has comprehensive action plans and is refreshing overarching approaches to address the issues arising from the use of new psychoactive substances, as the Home Secretary has done in her reply to the ACMD, when there is no requirement on government to then report to Parliament regularly on what those measures are that have been introduced and implemented and how successful or otherwise they have been in resolving the problems they were designed to address.
I have already referred to the Minister’s comment in Committee:
“What we hope to achieve through education is a very important part of the context”.—[Official Report, 23/6/15; col. 1570.]
That is fine. But what, in detail, do the Government hope to achieve through education, and how and when will they update us on the progress they are or are not making towards whatever it is they have decided they are seeking to achieve through education? Can the Minister give some specific answers to those specific questions I have just posed, or, alternatively, accept this amendment, which provides the framework through which the Government could report regularly to Parliament on their objectives with regard to the use of and public awareness about NPS, and the extent to which the measures they have taken have been effective?
One thing appears clear and that is that any education, treatment and prevention programmes in respect of new psychoactive substances to date have been less than fully effective. If they had been, presumably we would not have felt the need for this Bill. Legislation, law enforcement and criminal sanctions are important but so, too, are education, training and prevention programmes and measures if we are to address fully the use and supply of psychoactive substances. A Bill that deals with only the former aspect and makes no reference to the latter, and which lays no duty on the Secretary of State to report on the measures taken and their effectiveness, is surely incomplete and does not recognise the equal importance of education, information and prevention.
I simply conclude with one further point and question. In his recent—again, undated—letter to me setting out the Government’s amendments for Report, the Minister referred to the fact that the Government already report annually on their drug strategy. If the Minister can confirm that that is a report to Parliament and that it will in future contain information on the matters in respect of new psychoactive substances referred to in my amendment, it may be that my amendment is no longer needed. I beg to move.
Lord Howarth of Newport
My Lords, the amendment which has just been moved by my noble friend Lord Rosser ranges more widely, and very valuably, by comparison to my more limited Amendment 53 in this group, which is confined to the question of education and would require the Secretary of State to,
“require that all secondary schools report annually on their drug education programmes”,
and requires that Ofsted and the equivalent agencies in Scotland, Wales and Northern Ireland,
“when reporting on the performance of secondary schools, include an assessment of the extent and quality of drug education provided by the school”.
It goes on to require that:
“The Secretary of State shall request that each further and higher education institution publish annually a report on its programme to reduce harms caused by the use of drugs by its students”.
The noble Lord, Lord Bates, with characteristic helpfulness, organised a meeting on the theme of education and prevention which a number of us were able to attend. We met people from Public Health England, and also present was an official from the Department for Education. It was a very interesting and very useful meeting, and I am most grateful to the noble Lord and the noble Baroness, Lady Chisholm, for making that possible. I was particularly impressed by the thoughtfulness, energy, commitment and good sense of the representatives from Public Health England. I was also very encouraged by the work that they have in train, which they described. They have been somewhat limited by their lack of resources. Our meeting was on the eve of the Budget. I expressed the hope—in semi-jocular fashion—at the end of the meeting that the next day would see their budget quadrupled. They smiled a little wryly. In fact, the next day the Chancellor announced a £200 million cut to the public health grant to local authorities. That must be highly problematic for other departments—the Home Office, the Department of Health and, I dare say, the Department for Education.
The Home Office’s annual review sketches out—as is its fashion; it does not deal with anything other than sketchily—some of the educational approaches that are being undertaken. It talks about the Rise Above project; it talks about the government-sponsored website Talk to FRANK; it talks about communications campaigns that have been undertaken in 2013 and 2014; and it refers to the New Psychoactive Substances (NPS) Resource Pack for Informal Educators and Practitioners, which I have read and which I admire very much. It is full of good sense and gets the tone exactly right. So, to that extent, there is some modest encouragement.
The annual review also talks about the Government’s:
“Promotion of good practice in demand reduction in NPS at EU and international level, led by the UK”.
I found that assertion to be a trifle unconvincing. If we consider the work that has preceded it in Portugal, the Netherlands, Denmark, Germany and Switzerland, it is difficult to see that the United Kingdom Government are in the lead in this process of developing preventive and educational strategies.
Lord Bates
I am grateful to the noble Lord, Lord Rosser, for moving this amendment and for the debate that we have had. Education is a critical element of this. It is right that we focus on education programmes, and I will come to those in a minute.
Probably the worst impact on a child’s education is what happens in places such as Canterbury, where there is a head shop across the road from a school. Young people can wander past that shop and obtain new psychoactive substances without any production of proof of age. Those substances are easily available and accessible. I cannot think of a worse signal to send to young people about what the Government’s position is. They may have had the most wonderful, textbook PSHE lesson from an inspiring teacher but, if that is their experience when they walk out the door, it is significantly undermined. Therefore, we need to keep this in context, and I will respond to the point made by the noble Lord, Lord Rosser. Although education clearly needs to be robust and measured in its effectiveness, the overall purpose of the action being taken—with support from the Official Opposition—will have a far greater effect, particularly in relation to NPSs.
Prevention and education is a key strand of our balanced drug strategy, and it is vital that we prevent people, especially young people, using drugs in the first place and intervene early with those who start to develop problems. We have recently refreshed our approach to reducing the demand for drugs, enabling us to take a broad approach to prevention. The approach combines universal action with targeted action for those most at risk or already misusing drugs. It includes investing in a range of evidence-based programmes which have a positive impact on young people, giving them the confidence, resilience and risk-management skills to resist drug use. This refreshed approach is very much in line with the goal of building character, which was referred to by the noble Lord, Lord Howarth. Nicky Morgan had raised this.
While good practice is highlighted, the advisory council report also acknowledges strong evidence that some prevention approaches are ineffective in reducing drug misuse. These include stand-alone, school-based curricula designed only to increase knowledge about illegal drugs, fear arousal approaches, and stand-alone mass media campaigns. That was backed up by the evidence that we received in the all-interested-Peers meeting.
It is therefore vital that we ensure that our young people are equipped with the best possible tools and skills to make positive choices about their health. We have implemented a range of activity to support this approach—for example, a new online resilience-building resource, Rise Above, aimed at 11 to 16 year-olds; developing the role of Public Health England to support local areas; sharing evidence to support commissioning and delivery of effective public health prevention activities; and launching toolkits. I was grateful for the support of the noble Lord, Lord Howarth, for the tone and content of the toolkit which is available in the pack and on the website.
The Government have also invested in resources to support schools; for example, the development of the Alcohol and Drug Education and Prevention Information Service, which provides practical advice and tools based on the best international evidence, including briefing sheets for teachers. In addition, Mentor UK, which runs the service, manages the Centre for the Analysis of Youth Transitions database, which hosts evaluations of education programmes aimed at improving outcomes for young people.
As part of its inspections programme, Ofsted will from September make a judgment about the quality of a school’s provision for pupils’ personal development, behaviour and welfare. The criteria for an outstanding judgment in this area include: that pupils are safe and feel safe at all times; that they understand how to keep themselves and others safe in different situations and settings; and that they can explain accurately and confidently how to keep themselves healthy. As part of judging the quality of leadership and management, Ofsted also evaluates the effectiveness and impact of provision for pupils’ spiritual, moral, social and cultural development, which includes understanding the consequences of their behaviour and actions and recognising legal boundaries.
We have also taken specific action to address the threat of psychoactive substances by publishing a resource pack, which I have referred to already.
As we will come to in a later debate, the Government already review annually their activities and progress under the Drug Strategy 2010, with the most recent review published in February this year. That is a cross-government, cross-departmental approach; it is published on the Home Office website. I am happy to undertake to write to colleagues who are in charge of that process drawing attention to this debate and the interest taken in monitoring the effectiveness of education on new psychoactive substances, because, as we have heard, be it in prisons or in children’s homes, the problem is growing.
Lord Howarth of Newport
I am very grateful to the Minister for giving that undertaking. When he writes to his colleagues, will he broaden out the remit, or the request, so that he invites them to respond across the whole field of drug education and not simply in relation to new psychoactive substances?
Lord Bates
I am trying to be helpful by responding particularly to the point made by the noble Lord, Lord Rosser, who asked what we were doing on evaluation. I have not consulted officials—perhaps they will be waiting for me in the corridor afterwards to tell me—but it seems to me sensible and appropriate to reflect the concerns expressed in this debate on how we evaluate.
Lord Rosser
We had an amendment in Committee that called for the Secretary of State to publish an annual report on new psychoactive substances. We then set out some of the information that should be included in that report. This amendment basically seeks the same. The lack of basic data and information was an issue identified by the Government’s expert panel. These issues included the difficulty for any one agency of keeping abreast of all the new developments. The acknowledgement that the Misuse of Drugs Acts 1971 needs to be supplemented by other legislation has meant that more professional networks, including trading standards, require information. The current time lags between data collection and publication of data obtained by current networks mean that the systems cannot be employed in the service of providing more timely early warning-type information. Finally, there is a need to collect, analyse and distribute information in a more systematic and timely fashion to help inform policy and practice at both a national and local level.
In his recent letter to me on the government amendments for Report, the Minister said that the Government were not persuaded of the need,
“to produce an annual report on the operation of the Act”,
but that they,
“agree that … there is a case for a one-off duty to review the operation of the Act and to lay a report on the review before Parliament”.
Accordingly, government Amendment 55,
“requires such a report to be prepared and laid before Parliament within 30 months of the coming into force of Clauses 4 to 8 of the Bill”.
In his letter, the Minister continued:
“This timetable would allow for the collection of two years’ worth of data on the operation of the Act”,
and that data were,
“of the kind set out in your amendment 105 at Committee stage”,
which would help to inform the review.
Is the noble Baroness able to say a little more about the information that will be provided in the review referred to in government Amendment 55 and the extent to which it will include the kind of issues referred to in my amendment on annual reporting? Surely, after the first review of the operation of the Act, which the government amendment says will be within 30 months of Clauses 4 to 8 coming into force, there should be regular updates since the facts about the effectiveness of the operation of the Act and the measures taken may change.
Alternatively—what I ask comes back to what the Minister said on the previous amendment—will the information that we have called for in our amendment also be covered in the annual report on the Government’s drugs strategy, to which, as I have said, the Minister made reference in relation to the previous amendment on education, training and prevention? I beg to move.
Lord Howarth of Newport
My Lords, my Amendment 54 in this group ranges more widely than that of my noble friend, and might indeed be regarded as somewhat clunky. However, it is intended to be illustrative of the range of issues that I think ought to be covered in a proper annual review or annual report issued by the Home Office.
I have looked at the three annual reviews issued since 2013. The February 2015 review of the progress of the Drug Strategy 2010 consists of all of 28 pages of text. It covers some of the issues indicated in my amendment which I think ought to be covered in an annual review, but far from all of them. I am afraid to say that it seems to me a thin and superficial document which is simply not commensurate with the importance and complexity of the issue and the major social challenge that drug abuse presents. It is also an inadequate form of accountability to Parliament, being as flimsy as it is. It contrasts with the European Drug Report, which is produced annually by the European Monitoring Centre for Drugs and Drug Addiction, which is a much more substantial document, containing tables, graphs, citations and footnotes—an altogether more serious and substantial report. We do not find that kind of material in the Home Office’s annual review.
The Minister said in her foreword to the latest annual review, “We are not complacent”. That is good. However, on page 10, she spoke about:
“Promotion of good practice in demand reduction in NPS at EU and international level, led by the UK”.
That is a fine assertion but, as I said in the previous debate, not to me a convincing one. Regrettably, the annual review does not go on to tell us what this promotion has meant or what the good practice in demand reduction should be.
The expert panel’s report said on page 53 that adequate monitoring of whatever the policy proves to be,
“needs to be in place”.
I think that it was looking for a substantial annual review. It also seems to me that the implication of the letter from Professor Iversen to the Home Secretary of 2 July is that a whole range of issues need to be kept under solid and informative review.
The expert panel report contains a very important section on pages 35 to 36, in which it sets out the key opportunities and the key risks of the policy that the Government have embarked upon in this legislation. Among the key risks are those of supply, demand, enforcement, harms, forensic science, legal issues and communications. Among the opportunities are, again, supply, demand, enforcement, harms, forensic science, legal issues, communications and costs, so, according to the expert panel, there are both opportunities and risks entailed in the Government’s policy. I suggest that certainly the Government’s initial report, which they have promised to issue within 30 months, but also the annual review issued by the Home Office, ought to deal in very substantial measure with all those opportunities and risks that have been found.
The section of the European Monitoring Centre report on prevention tells us that the use of NPSs by young adults ranged from a high of 9.7% in Ireland to a low of 0.2% in Portugal. It also tells us that Sweden, which practises a draconian prohibitionist policy, has the second-highest drug-induced mortality among 15 to 64 year-olds. These are among the sorts of pieces of information that ought also to appear in the Home Office’s annual review.
Page 15 of the last edition of the annual review, in the section discussing restricting supply, referred briefly to liaison with Pakistan, Afghanistan and West Africa, but had nothing whatever to say about liaison with China and India, which are the key countries in terms of NPSs. On page 19, we are told that the UK,
“chaired a G7+ country Expert Meeting … in Berlin in November 2014”,
which led to agreement on a “set of actions”, but we are not told what the actions were. On page 23, we are told that there is a strategy of:
“Transferring the responsibility for developing locally led, integrated, recovery orientated treatment systems to local authorities”,
but there is no discussion of the funding situation for local authorities—the very large cuts there have already been, followed, of course, by the cuts just announced to the funding for Public Health England.
Psychoactive Substances Bill [HL]
Lord Howarth of Newport Excerpts(10 years, 7 months ago)
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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.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to my noble friend Lord Norton of Louth for introducing this amendment. Perhaps I may structure my response by first putting on the record some important comments which might be helpful to the House and then, at the conclusion of those remarks, seeking to address some specific issues and questions which have been raised.
The Constitution Committee drew to the attention of the House the fact that the power to vary Schedule 1 could be exercised so that something which, on the enactment of Schedule 1, is an exempted substance ceases to be exempted. A similar point was raised by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. The Constitution Committee also commented on the absence of a statement of purpose or purposes for which the Clause 3 power may be exercised. At this point, I would put that in the context of assuring my noble friend that the Constitution Committee has concentrated our minds. I think that the report was published last week, on 18 June, and we will be considering it carefully. We will have a full response to the committee ahead of Report.
As we indicated in our delegated powers memorandum, the list of exempted substances needs to be robust and kept up to date so as not to unintentionally criminalise the production, supply and so on of psychoactive substances that may legitimately be consumed for their psychoactive effect. Following on from one of our debates last week, I can assure the noble Baroness, Lady Hamwee, that the regulation-making power indeed enables substances to be added to Schedule 1. To take an example, alcohol is both a substance and a description of a substance. It may also be necessary to vary an existing entry: for example, if the regulations mentioned in paragraphs 2 to 5 of the schedule relating to medicinal products were revoked and replaced with new regulations. While we expect the list in Schedule 1 to remain reasonably stable, the regulation-making power affords the necessary flexibility to make required changes relatively speedily should it be appropriate to do so.
We have deliberately drafted this regulation-making power so that it will not be possible to exercise it to remove any description of a substance that is contained in Schedule 1 on enactment. But I would be wary of further narrowing the scope of the regulation-making power, as Amendment 15 seeks to do. I stress that the power is subject to the affirmative procedure, so any regulations would need to be debated and approved by both Houses. I will of course reflect on this debate before responding formally to both the Constitution Committee’s views and the Delegated Powers Committee’s report.
Amendments 20 and 47 would require the Home Secretary to consult the Advisory Council on the Misuse of Drugs before making regulations under Clauses 3 and 10. The noble Lord, Lord Rosser, spoke in support of these amendments and has added his name to Amendment 20. I begin by saying that the Home Office continues to greatly value the scientific advice provided by the Advisory Council on the Misuse of Drugs. Following its advice over the last few years, we have controlled more than 500 new psychoactive substances under the Misuse of Drugs Act 1971. The advisory council will continue to have its central role in assessing the harms of specific drugs, including new psychoactive substances, for control under the 1971 Act and in providing advice to Ministers.
In drafting Clauses 3 and 10, the Government included a requirement for the Home Secretary to consult with such persons as she considered appropriate prior to making any regulations: for example, regulatory bodies and relevant experts. This was to account for the fact that the Government may need to consider different types of substances and so wanted to tailor their consultations to organisations with specific expertise. For example, if it was thought necessary to change the description of food, we would want to consult the Food Standards Agency. In this example, the advisory council would not necessarily have much to contribute to any consultation. None the less, as noble Lords will have seen from the Explanatory Notes to the Bill, the ACMD was included as an example of the type of consultee the Government had in mind. That being the case, I am happy to take away Amendments 20 and 47 to consider the matter further in advance of Report.
The Government are, again, supportive of the principle behind Amendments 21 and 48, but I question whether we need to specify such a requirement in the Bill. There are many examples on the statute book of requirements to consult before a Minister exercises regulation or order-making powers. It is taken as read that the outcome of any consultation would be published —a point mentioned by the noble Lord, Lord Kirkwood —alongside the making of the relevant regulations or order. We do not need to clutter the statute book with express duties of this kind. There is a joint working protocol between the advisory council and Home Office, which commits us to open and transparent dealings. The advisory council routinely publishes its advice to the Home Secretary and I fully expect it to continue to do so. We will encourage other bodies responding to any consultation on these regulations to do likewise.
Any regulations made under Clauses 3 and 10 will be made by the affirmative resolution procedure. It is standard practice to publish an explanatory statement alongside draft regulations. Such a statement would, among other things, summarise the outcome of the consultation. Therefore, one way or another, Members of both Houses will be able to consider the consultation responses in conjunction with the draft regulations to be made under Clauses 3 or 10. In the light of this explanation, and on the understanding that I will give a sympathetic consideration to Amendments 20 and 47, I hope that my noble friend Lord Norton would feel able to withdraw his amendment.
I now turn to some of the specific points raised. On Clause 3(3), I agree with the noble Lord, Lord Rosser, that it is difficult to conceive of circumstances where the Home Secretary would reach the conclusion that there were no appropriate persons to consult. We have had some excellent work by the Delegated Powers Scrutiny Committee and the Constitution Committee on the Bill. Were there not to be an adequate and full demonstration of the experts who had been consulted, that particular measure—which might be before the House on an affirmative basis—would clearly be in for a very difficult ride. In reality of course, the Government would not seek to do that.
The noble Lord, Lord Kirkwood, made the point that he was very concerned about whether this was some kind of attempt to downgrade or sideline the ACMD, which I understand. The council does of course have a statutory duty under the Misuse of Drugs Act, which is very important, and it was consulted. It has been looking at the area of psychoactive substances. I cannot remember the exact date of that but I am happy to get details. One of its recommendations was that the Government ought to consider and explore a legislative response to this. I do not say this in order to unearth a previous relationship, but it was Norman Baker, the Liberal Democrat Home Office Minister, who decided to put this out to an expert panel.
To make a serious point, the purpose there was not to deal with a question on the science, which is just one component of this. Another part of it is then to say, “How do we deal with the science?”. Whereas we have an eminent group of scientists on the ACMD, the expert panel is particularly constituted so that it has expertise on enforcement at local authority level; forensics; prosecution, from the Crown Prosecution Service; medical science, of course, with three members of the ACMD on the expert panel; social sciences; an international dimension, with drug addiction; and, very importantly, education and prevention, with representatives from Mentor UK and DrugScope. So it was constituted to address a different stage in the problem, the issue having been identified earlier.
I want to deal with the points that have been made, although I shall provide a fuller response to the Constitution Committee. My noble friend Lord Norton of Louth made a particular reference to the term “vary”. It might be helpful if I add some words to the record at this stage on that point. “Vary” is given its natural meaning in the Bill: the ability to amend individual definitions within Schedule 1. It does not stretch to changing the principle of an exemption, nor to removing it. Schedule 1 exempts groups of substances; the ability to vary the definitions is important to future-proof the legislation against regulatory changes, which may change how particular substances are legally defined. It may be that a definition in the Bill is varied in the way in which it narrows its scope. However, this would be the case only if the scope of the underlying regulation was also narrowed. A similar approach has been taken in Ireland—without wanting to reopen that particular canard at this stage. Since the passing of the Criminal Justice (Psychoactive Substances) Act 2010 in Ireland, they have not needed to make any amendments to their exemption list. We therefore anticipate a stable list.
The noble Baroness, Lady Hamwee, mentioned a point that she had raised with officials and which we had tagged under the Clause 10 stand part debate. These offences are modelled closely on those provided by the Misuse of Drugs Act 1971, which has been in force for 45 years. Although it was enacted before the Human Rights Act 1998, the compatibility of the 1971 Act with the human rights convention has been tried and tested thoroughly in both domestic courts and the European Court of Human Rights. By following closely the existing law and statute, we have endeavoured to draft offences that we believe are compliant with the ECHR. In view of this, and to avoid restating old arguments in the memorandum that are already well accepted by the courts, the decision was taken that the ECHR compliance of these offences did not require rehearsing in the memorandum. Instead, the memorandum focuses on those issues that may properly be described as new or significant. We look forward to any observations on these and other provisions from the Joint Committee on Human Rights; in the usual way, a full response to the committee’s report will be possible once it has been received.
With those assurances, which I reiterate are on important issues which we undertake to consider very carefully and come back to on Report, I hope that the noble Lord will withdraw his amendment.
Lord Howarth of Newport
I listened carefully to what the Minister said about the Government's consultation with the Advisory Council on the Misuse of Drugs on the subject of psychoactive substances, and I think that I heard him tell the Committee that the ACMD had urged the Government to do something about psychoactive substances. An expert panel, which is not the same as the ACMD, was then set up. It would be helpful if the Minister could tell the House, in response to the points that I put to him in my contribution, what dealings the Home Office had with the ACMD on this legislation on psychoactive substances, following receipt of the advice from the expert panel, up until the letter that the Home Secretary sent to the ACMD on 26 May. Given that the ACMD has a statutory duty to keep under review the situation of the UK in regard to drugs, surely it would have been appropriate—and I should have thought a statutory requirement—to seek its views as to the wisdom of the policy that the expert panel recommended and on which the Government were proceeding to legislate. What consultations took place on this specific Bill?
Lord Blencathra
My Lords, as someone from the highlands of Scotland, I like to be cool as well, but I suspect that it is a slightly different interpretation.
I was not quick enough on my feet to ask this of the noble Lord, Lord Paddick, before he sat down. I readily acknowledge his great practical expertise in these matters and I acknowledge my own ignorance. Is there a definition, in statute or in case law, of how much is a “small amount” of drugs for personal use? One needs to know how much a person could get away with by claiming, “This is just for my personal use, guv”. Or is it rather like the cross-channel ferries, where people can come back with 10,000 cases of cigarettes and lots of booze and claim that they are a heavy drinker and smoker, and possibly get away with it?
The noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, quote favourably from the Portuguese experiment, and there are some debatable results there. I would also refer them to the trendiest, most socialist and liberal country in the EU—Sweden. Sweden has a zero-tolerance policy on drugs and, admittedly, a big back-up self-harm programme behind it. Although one can quote Portugal favourably, one can also quote Sweden and its no-tolerance policy favourably. I hope that noble Lords have seen the reports from Sweden, as I have, and if I am wrong, I am happy to be reminded and amended later on.
Lord Howarth of Newport
My Lords, like the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, I too have been impressed and encouraged by the evidence emanating from Portugal. Just before I add a few words on the subject of Portugal, I would say to the noble Lord, Lord Blencathra, that if he looks at the incidence of drug-related deaths in Sweden, he will find that they are exceptionally high. People are ignoring these draconian policies that the Swedes do indeed operate, but not with happy consequences. One of the reasons is that criminalisation and the panoply of very severe penalties in operation in Sweden deter people from seeking treatment and help. Personally, I think that that is ill advised.
The Portuguese took another route when they faced a real crisis of drug abuse at the beginning of the century. They consulted an expert panel, which recommended the depenalisation—I think that that is perhaps the term—of small amounts of drugs for personal use. Again I say to the noble Lord, Lord Blencathra, that under the Portuguese legislation, those “small amounts” of each drug are very precisely defined, so it can be done in legislation. At the same time, they invested very significant resources in treatment, education, programmes of social reintegration and the disruption of supply. It was a coherent strategy that appears to have worked very successfully.
As an aspect of that strategy, dissuasion commissions were set up so that somebody apprehended in possession of an amount of a drug—a psychoactive substance—would have to go before the dissuasion commission. As the noble Baroness said, it consists of a clinical psychologist or psychiatrist, a social worker and a lawyer; it is a fairly formidable panel to have to face. But if you are brought before that panel, you are not charged with a criminal offence. It does have power to impose administrative sanctions but its main focus is on getting people into treatment.
The central principle of the Portuguese legislation is that drug abuse is a health issue and not a criminal issue. I would suggest to the House that the results have been most impressive. Over five years, the number of people injecting drugs halved; drug-related deaths and new HIV infections more than halved; drug use among the 15 to 24 year-old age group fell; there was no rise in use in the older age groups; very importantly, the rates of continuing use, year-on-year use as opposed to occasional use, fell below the European average; and the numbers seeking treatment doubled, while the costs to the criminal justice system plummeted. All this is documented—there is plenty of evidence to tell us about the success of the Portuguese experiment, which has been going for 15 years. As the noble Baroness noted, the global financial crisis and the extraordinary pressure on the public finances of Portugal made it difficult to persist as fully as they would have wished with the education and treatment dimensions of the strategy. None the less, they have continued with the policy, and as she said, it has become accepted right across the political spectrum. I know that Home Office representatives have visited Portugal to learn at first hand from Dr Goulão and others about how it has worked. It is puzzling and disappointing that more lessons have not been taken on board.
Amendment 23 in the name of the noble Lord, Lord Paddick, would create powers such that,
“a senior officer or a local authority may require the person to attend a drug treatment programme or drug awareness programme”.
“May require” is quite a prudent element in the drafting, only because—and I fully endorse the policy of encouraging people to go to such programmes and benefit from them—the scale of drug-taking is, sadly and very worryingly, large in this country. A survey of Cambridge students found that 63% had taken illicit drugs, half of them before they had reached the age of 16; 45% of them had bought drugs for their friends; and 14% said that they had at one time or another sold drugs for a profit. A survey in 2011 of people in management jobs in London found that one in 10 took illegal drugs at work or at social events associated with their work. Mostly, they used class A drugs—cocaine and ecstasy. Of course, the use of cocaine and other class A drugs can lead to serious addiction, illness and death, so we should congratulate those such as Dr Owen Bowden-Jones, one of the members of the noble Lord’s expert panel, who set up Club Drug Clinic at the Chelsea and Westminster Hospital—and other such clinics have been established across the country—which is particularly focused on helping young professionals who become addicted in this kind of way. I am simply describing the scale of the challenge we face if we seek to make drug awareness and drug treatment programmes available universally to people found in possession of drugs. It is estimated that some 350,000 children in this country have a parent who is a drug addict. I understand that one-third to one-half of those entering prison are already problem drug users. In 2010, there were 2,182 drug-related deaths. So it is a colossal challenge whatever strategy is adopted. Helping more drug users find the healthcare treatment they need will be a challenge on a large scale.
This is not a new dilemma. Back in 1924, the Government of the day established the Rolleston committee. Its recommendation to the Government certainly was that penal elements of policy were important, but it also said that addiction should be treated primarily as a disease. I would suggest that the moral imperative is not to stigmatise or to punish but to help those who are sick. We must communicate facts accurately, precisely and honestly if young people are to respond constructively, seriously and respectfully to the policy and the legislation. In 2000, Lady Runciman and her colleagues said that,
“the most dangerous message of all is the message that all drugs are equally dangerous. When young people know from their own experience that part of the message is either exaggerated or untrue, there is a serious risk that they will discount all of the rest”.
One of the difficulties with this legislation is that it fails to discriminate between the harms at different levels of psychoactive substances. I understand the problem that, with the proliferation of psychoactive substances on such a scale and at such a pace, this is a very difficult thing to do, but it remains an important objective of policy.
When the previous Labour Government were being tough on the causes of crime and sought to get more people into treatment, they found that it was not plain sailing. The Home Office identified at one point 320,000 so-called problem drug users and invited them to undergo voluntary testing in the hope that it would offer a route away from the revolving door of crime and addiction and into treatment. If I remember aright, the Home Office reallocated a very large sum of money—some £600 million; it was a PES transfer, if that is the right terminology—from the Home Office to the Department of Health and the National Treatment Agency. The Drugs Act 2005 set up the drugs intervention programme, expanding the drugs treatment and testing orders and making it compulsory to test on arrest or when an ASBO is issued so that a defendant was offered the choice of treatment or jail.
Lord Howarth of Newport
Will the Minister help us just a little bit further, because I know the Home Office knows a good deal about what has happened in Portugal? Much earlier in his speech, he was very dismissive of the benefits of decriminalisation on the Portuguese model, as I understood him to say—that is, possession of small amounts of drugs precisely defined for personal use. How, then, does he account for the success of the Portuguese policy?
Lord Bates
I did not mean to be dismissive about that. The Drugs: International Comparators report, which was referenced by several noble Lords, is clear that the success in Portugal cannot be attributed to decriminalisation and dissuasion panels alone. While drug use went down and health outcomes went up, there was at the same time a significant investment in treatment, which has already been referred to. That is an important part of it. That report could have looked at some of the—albeit modest—successes which we have had in this country with our approach. What is beyond doubt is that it is not just enforcement or the law but also education and health treatment which are at the heart of our being able to deal with this problem.
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.
“Possession for personal use
Possession for personal use of any psychoactive substances, including psychoactive substances hitherto controlled under the provisions of the Misuse of Drugs Act 1971, is not a criminal offence.”
Lord Howarth of Newport
My Lords, this amendment proposes that the possession for personal use of any psychoactive substances, including psychoactive substances hitherto controlled under the provisions of the Misuse of Drugs Act 1971, is not a criminal offence. We touched quite extensively on this issue in the debate on Amendment 23 in the name of the noble Lord, Lord Paddick, but his amendment ranged considerably wider. I hope that the Committee will be willing to focus more tightly on the specific issue that is expressed in the proposed new clause.
In recent years, some 25 countries have removed criminal penalties for personal possession of some or all drugs. Now, for the first time, Her Majesty’s Government of the United Kingdom are tiptoeing towards the decriminalisation of possession for personal use because they have omitted, quite deliberately, to criminalise such possession where psychoactive substances are concerned, as defined in the Bill. However, that raises the question of why they are stopping at new psychoactive substances and, of course, the substances that are exempted in Schedule 1. Why do they not now proceed to decriminalise possession for personal use of small amounts of drugs controlled under the Misuse of Drugs Act 1971? The policy is inconsistent and confusing. As such, I fear that it is liable to damage respect for the law, and the law in respect of drugs is already not much respected as it is.
Why does the Home Office judge it appropriate to criminalise young people wholesale? I am advised that in the period 2009 to 2013, 59,742 young people under the age of 20 were criminalised for possession of controlled drugs—something like 29% of young people in that age group who received a criminal record. Such an approach is clumsy, to say the least, and I submit that it is very damaging to those young people: the short-term and long-term effects of having a criminal record weigh heavily on their educational and employment prospects and their prospects of being able to obtain credit. It is also expensive for the Exchequer. The continuation of this criminalisation appears to ignore the findings of the Home Office’s own study, Drugs: International Comparators, which found that the relative toughness of the prohibitionist approach makes no difference to actual consumption.
Like it or not, the recreational use of drugs is widespread in our society. Indeed, I would say that in certain sections of society it is normal. I do not know whether we are welcoming the Minister on his return from a fact-finding mission to Glastonbury at the weekend; he may perhaps have been invited by the organisers in his official ministerial capacity or perhaps he went incognito, possibly not even wearing his suit. I like to think that he was accompanied by Lady Bates and that she may have been bearing in her hand at least a small posy of flowers, because it could be the last time under this legislation that he will have the opportunity to give her flowers—then he will have to default to his position of presenting her with chocolates.
If the Minister was at Glastonbury, no doubt he will have ignored the vapourings coming from left field from such figures as Billy Bragg and Charlotte Church, but he will not have failed to notice that significant numbers of young people there were consuming psychoactive substances. Possibly he regards all of them as lost souls. Still, he may have taken some satisfaction from knowing that this will be the last time that drugs will be consumed at Glastonbury because, through the virtues of this legislation, he will have completed the circle of prohibition: it will be impossible for them legally to obtain psychoactive substances in future. Such will be the zeal for enforcement of the police and other authorities, prioritising this prohibition alongside their duties to deal with illegal immigration and threats of terrorism, he can be confident that next year no drugs will be consumed at Glastonbury—unless, perhaps, psychoactive substances descend like manna from heaven on to the fields of Glastonbury, because that is still a possibility. Miracles do occur, and it is not impossible that psychoactive substances will continue to be consumed at Glastonbury and other festivals.
We need a realistic and constructive approach to this matter. The constructive policy is to decriminalise the possession of all drugs for personal use—to legalise, to regulate and, as we have noted in earlier debates, to have a serious campaign to inform and educate people about the realities and dangers of drugs. How helpful it would be if we could distinguish legally between the recreational use of drugs and problem usage. Through decriminalising, I believe that we could get more people, more quickly into more effective help and treatment. This is the difference between the Swedish approach and the Portuguese approach, which we discussed earlier. Decriminalisation, as recommended in the proposed new clause, would release the police from so much futile activity.
I am told that Her Majesty’s Government are spending something of the order of £1.5 billion a year on drug law enforcement. The impact assessment for the Bill, at paragraph 75, anticipates that the costs of the new measures to the public sector will be only £60,000 in year 1 and £50,000 a year thereafter. This is a joke: all the new offences created and all the enforcement activities legislated for in the Bill will cost a lot of money. We would do better to switch that expenditure and other expenditure into a real drive on information, education, youth work, healthcare through Public Health England and doing very much better about drugs in prisons.
Should we be condemning or should we be helping? In our society, there is no consensus as to whether the use of drugs is a crime, a vice, a weakness, an illness, an adventure, an act of rebellion or a recreation. It is all these things to different people at different times. But if we cease treating it as a crime, we will, as I have said before, greatly reduce the alienation of so many young people from politics and government, and we will be better placed to help people in need.
The noble Baroness, Lady Meacher, asked me to convey her apologies to the Committee that she is unable to speak to her Amendment 46. She has had to go because she is hosting a reception for Leonard Cheshire Disability, which is being attended by the Secretary of State. I beg to move.
Lord Paddick
My Lords, I rise to support Amendment 39 and to speak to Amendments 45 and 52, which are in my name and that of my noble friend Lady Hamwee. I agree with some of the remarks made by the noble Lord, Lord Howarth of Newport. However, I got a touch of déjà vu because I think I made out the case for the decriminalisation of drugs when I spoke to Amendment 23. I will not go over that again.
Amendment 45 clarifies the offence of intentionally importing a psychoactive substance under Clause 7(1)(a) to exclude the importation if it is,
“for the person’s own consumption”.
Amendment 52 makes a similar change to the definition of “prohibited activity”. It would amend Clause 11(1)(d) to read,
“importing such a substance other than for the person’s own consumption”.
As we have heard, the Government do not intend to make possession of psychoactive substances under this Bill a criminal offence. This Bill is targeted at those who supply such substances. While it is therefore reasonable and logical for the importation of such substances for sale or supply to also be an offence, it seems disproportionate to make importation solely for one’s own consumption an offence.
What will happen if this Bill becomes law is what happened in Ireland when similar provisions were enacted. People who currently buy their psychoactive substances from head shops will instead buy them from street drug dealers or, more likely, buy them online. Under this Bill, the police will be able to close down UK-based websites, forcing users to buy their drugs from websites overseas. When they buy their drugs from such websites, they will be guilty of importing psychoactive substances, even if their only intention is to consume the drugs themselves. It seems inconsistent for the Government not to criminalise possession of psychoactive substances under this Bill but still to criminalise people for trying to possess them in this way.
Lord Bates
My Lords, I thank the noble Lord, Lord Howarth, for introducing this amendment. The amendments in this group relate to the personal use of such substances. Let me assure the noble Lord at the outset that the Bill does not make possession of a psychoactive substance for personal use a criminal offence. Similarly, it is not an offence to possess for personal use a drug subject to a temporary class drug order. In that sense, the current process is consistent with the way in which we have tackled such issues in the Misuse of Drugs Act, in that the intention is to catch the suppliers and manufacturers of the products.
The noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, whose apologies we note, have argued that the Bill is internally inconsistent in making it an offence to import a psychoactive substance for personal use but not criminalising personal possession. I hope I can persuade the Committee that this is not the case. The very principle of this Bill, as recommended by the expert panel, is to tackle the supply of these substances. Given that the vast majority of these substances are imported from abroad, clearly, if we are to tackle the supply, we need to ensure that we have in place a robust importation offence and that the Border Force has sufficient powers to effectively stop these substances crossing the border. On that point, I advise the Committee that the Government intend to table further amendments to ensure that the Border Force can access the powers under the Customs and Exercise Management Act 1979 when it intercepts psychoactive substances coming into the UK.
We cannot have a robust importation offence if we permit small quantities of psychoactive substances to be imported for personal use. We want to stop all these dangerous substances entering the country, not facilitate their use. The expert panel was clear that the Bill should focus on the supply of these substances and target all sources, even social supply, which can be a gateway for people into regular drug use. Any supplier of a new psychoactive substance is contributing to the overall drugs problem.
The substances caught in this Bill are deliberately being treated differently from the drugs controlled by the Misuse of Drugs Act 1971. The 1971 Act controls drugs where we have expert evidence of specific harms and therefore apply the full ban on possession and supply for public protection. For those not—or not yet—controlled under the 1971 Act, we are targeting the trade alone. However, allowing possession of a psychoactive substance is one thing; deliberately weakening the controls by creating a loophole that allows the importation of small quantities is something else, both in principle and in practice.
I have already outlined one risk in allowing importation of personal quantities—that of creating the possibility for individuals to import multiple packages of small quantities of psychoactive substances, which on their own are consistent with personal use but could enter the supply chain when combined. There is a raft of practical challenges with this approach: how much would constitute personal use? Would it cover all substances? Would you allow someone to import a year’s worth of substances for their personal use? That could, depending on the substance, be a significant quantity.
Another concern would be the enforcement challenges that this new approach would create. A blanket importation ban simplifies enforcement by the Border Force: any psychoactive substance found at the border and which is evidently intended for human consumption can be seized and destroyed, unless it is an exempted substance or for an exempted activity. Allowing smaller packages for personal use would impose significant demands on the Border Force, requiring it to investigate the importation in each and every case to determine whether the seized substances are for onward supply or personal use. It would simply be unrealistic and an unnecessary burden to put this measure in place.
On the website question, which is a fair point, it should be said that there were two effects of the Irish experience: one was immediately to close down the head shops in the Republic of Ireland; the other was to allow the Government to take down the websites that were supplying these substances, which were on a Republic of Ireland domain. On the offences committed when there is the intention to import, if you can prove that you did not know the website was overseas and that you were importing, you would not have intentionally imported. Is that clear? Perhaps it is just not clear to me. Let me read it again: on the offences committed when it is intentionally imported, if you can prove that you did not know the website was overseas when you were importing, you would not have intentionally imported. Yes, that is very clear.
Finally, I should add that the importation of psychoactive substance offences in both Ireland and Australia also apply to all quantities imported: there is no exemption for personal consumption. Amendment 52 would stand or fall with Amendment 45, as it seeks to make a consequential amendment to the list of prohibited activities to replicate the change in the importation offence.
I hope that I have been able to provide some comfort to the noble Lord, Lord Howarth. I suspect I may have been unable to persuade the noble Lord, Lord Paddick. However, having given the issue a good airing, I hope that he and other noble Lords will not feel the need to press their amendments.
Lord Howarth of Newport
My Lords, the groupings were perhaps not quite right, at least as far as Amendment 39 is concerned. That is probably my fault, but I am grateful to noble Lords for their participation and presence in this short but worthwhile debate.
The Minister’s charm is such that he would almost persuade the Committee to agree to what is palpably bad legislation, and I congratulate him on his manner at the Dispatch Box. In seeking to refute the proposition put forward by the noble Lord, Lord Paddick, he said that we could not have a partial relaxation of a ban on importation for personal use because it is very important that the Border Force has powers—those powers will be further supplemented in amendments to come—to ensure that, in the phrase I think he used, all these dangerous substances do not get through. He went on to say that there is also the Misuse of Drugs Act, which would allow the proscription of individual substances where there is evidence that they are dangerous. There is quite a tension, if not an inconsistency, between those points. We can think about that a little further.
As to the practicalities for the Border Force, I hope that at some point in proceedings the Minister will be able to give us some statistics about the number of packages that enter this country. We all know that there has been an enormous increase in mail order, online retailing. He mentioned that the Irish-based websites had been closed down by their legislation, but we know that the Irish have become big consumers of new psychoactive substances, even more than they were before the prohibition legislation was brought in. How are they getting them? Where are they coming in? What means are there to prevent the entry of all these packages, which Postman Pat then takes up the garden path and pops through the front door? I cannot see how the Border Force will inspect all these packages. I understand that a few years ago, it was able to inspect only some 2% of shipping containers. The Minister is landing the Border Force with a completely impossible task.
Lord Bates
That is one of the reasons why the Republic of Ireland Government are pleased that we are following their lead in this regard. Naturally, when you make a blanket ban, as they have done, people find it very easy simply to cross the border—which, of course, is not really there—to obtain these supplies in the north of Ireland. I can give the noble Lord some quick statistics. More than three and a half tonnes of new psychoactive substances were seized by Border Force officers in 2014-15—a 75% increase on the previous year. Officers undertake targeted physical checks, supported by technology such as X-ray and new portable FirstDefender devices, to intercept suspected packages out of the 250,000 parcels that come through the UK’s depots.
Lord Bates
We can, but the whole purpose of the legislation is to try to close the loopholes. As I explained, if there was a loophole that meant you could import for personal use, how do you actually track that? Whether it is one packet or multiple packets, what is an appropriate amount for personal use? That makes it very difficult for Border Force officials. We are taking a blanket approach, as we have with other substances, because it gives clarity to the purpose of the policy.
Lord Howarth of Newport
The noble Lord has provided us with some helpful information. I am still left puzzled as to how he thinks people will obtain these psychoactive substances, which it will not be a criminal offence to possess for personal use. Either they will have chemistry sets and synthesise them themselves, or his system of border controls and so forth will fail to work. Anyway, I am grateful for the thoughts that have been offered and the information that has been provided, and I beg leave to withdraw the proposed new clause.
Lord Paddick
My Lords, Amendment 51 stands in my name and the names of my noble friend Lady Hamwee and the noble Baroness, Lady Meacher. It would allow the Secretary of State to make regulations to license people and premises to sell low-risk psychoactive substances after consultation with representatives of the police, local authorities and small businesses.
The Government, in their background briefing to the Bill, acknowledge that some so-called head shops are well run and that the owners or managers of these premises make every effort to remain with the law and to conduct their business responsibly. We maintain that were all head shops to disappear, as happened when similar legislation was enacted in Ireland, users would resort to far more dangerous suppliers, such as street drug dealers and overseas websites. There is a real danger that the complete disappearance of head shops would result in more deaths from new psychoactive substances. Together with other amendments already debated, this amendment would allow low-risk psychoactive substances that have been exempted from the Bill to be sold to adults only, in closely regulated premises, by fit and proper licence holders.
We had a discussion this afternoon about how alcohol is very closely regulated. We are saying that, through this amendment, other low-risk psychoactive substances could be regulated and controlled. The overall effect of these changes would be to keep users from being driven into the hands of criminal suppliers and unregulated websites. I beg to move.
Lord Howarth of Newport
My Lords, I support this amendment. I think it is going to be very difficult in practice to implement the kind of regime that the noble Lord and his cosignatories call for, but I share his view that it may well be of much more questionable benefit than the Government suppose to close down the existing head shops en masse. I suspect that they vary very much in terms of the responsibility with which they deal with their clients but am pretty sure that, as the noble Lord, Lord Paddick, said, there are head-shop proprietors and staff who take a responsible view of the risks that their clients may run and the desirability of ensuring that they do not come to harm. It is very difficult to know how to prevent anyone coming to harm, not least because it is very difficult to identify the exact nature of the substances sold, even for the head-shop importers and proprietors, and there is not the evidence to tell us about the long-term effects of the use of new psychoactive substances.
However, I agree with the noble Lord, Lord Paddick, that there is a lesser danger in this than there is in consigning the users of new psychoactive substances to street dealers and to online sources based outside this country operated by people who have no scruples at all. The consultation process that the noble Lord has proposed would be problematic, because people in the neighbourhood of head shops tend not to like them and it would be very difficult to get local public assent to the licensing of head shops, but a responsible local authority ought to undertake that kind of exercise.
I was very interested to note that, in the briefing from the Local Government Association on this amendment that I think we have all received, it makes some very practical points:
“We would oppose councils being made responsible for licensing because of the difficulties in assessing if a product is of low overall risk. Unless there was a full scale testing and risk assessment regime in place covering health and other risks the safety of a product could not be guaranteed”.
It is absolutely right about that, which is one of the reasons why, on another amendment, I have argued for the provision of a network of testing facilities. We ought to aim at that. We should encourage responsible conduct by people who would seek to supply psychoactive substances to the market in this country. There is evidence that many people operating cannabis cafes in the Netherlands for example, particularly because they are under pretty close police and other supervision, take good care to ensure that the products that they offer are relatively safe and that they guide purchasers to buy the products that may be least dangerous and least unsuitable for them. One might even say, for those who favour the taking of cannabis, it is positively suitable for them—but I am neutral on that point. We have all the time to think practically and realistically and, in tabling this amendment, noble Lords are doing just that.
Lord Blencathra
I rise briefly in response to a point made by the noble Lord, Lord Paddick, when he mentioned that the closure of the head shops in Ireland had resulted in the whole trade going underground. I am not sure whether my noble friend has had a chance to see it or research it, but my Google alert this morning said that some new report had been published by some doctors or professors in Ireland—maybe it was Dublin university, or something—that suggested that, quite the contrary, use of psychoactive substances overall had declined dramatically with the head shops ban and it had not gone underground, as people had feared. I have not had a chance to Google it and study it all but, if my noble friend is not aware of it, perhaps he and his assistants in his office can swot up on it. I am sure that it is a measure that will be addressed again at Report. We had a big debate last week on the situation in Ireland, so it would be worth while studying this academic research to see whether it is kosher.
Lord Bates
Well, I have given a couple of examples of things that may have been included by mistake. We know from the European monitoring centre that there are hundreds of new substances and chemical compounds that have been identified in the course of each year. Over 500 substances have already been banned in the past five years alone. Therefore, because of that fast-moving change, we have an enabling power in the Bill to allow us to respond quickly and effectively should a threat or an oversight with an unintended consequence come to light. I would have thought that, in good legislative practice, the fact that the Government would seek to respond in that way would carry a great deal of support.
I am conscious of time, but also of the fact that we dealt with a number of these issues under Amendment 19, when we discussed risk. We had a very good and thoughtful debate on that issue, and it was clear from that why, when the expert panel looked at the New Zealand licensing example, it felt that there were weaknesses in it because of how low risk or low harm would be defined. Therefore, the panel chose not to recommend going down that line but instead chose to follow the example of the Republic of Ireland and a blanket ban.
I come to the point raised by my noble friend Lord Blencathra, who asked whether I had seen the new report produced by Trinity College Dublin, an eminent academic source, on the ban on head shops and how it was actually impacting. One of the authors of the study, Dr Bobby Smyth, claims that,
“the results of the survey show that the kind of drugs being sold in headshops are not being used to the same extent any more”.
That would seem to challenge one of the arguments that has frequently been put forward—that somehow the incidence of usage has increased. That is not what has been found. Dr Smyth also claims that those drugs have not been driven underground, as has been feared, stating that,
“the findings have shown that the implementation of legislation, targeted primarily at the vendors of NPS, did indeed coincide with a fall in NPS use among this high risk group of teenagers who attend a drug and alcohol treatment service … The study found that, among the two groups surveyed, not only did the problematic abuse of headshop drugs fall but that the use of cocaine and amphetamines also fell”.
Consumption of so-called legal highs fell sharply after the Government cracked down on head shops that sold them, according to new research. Researchers studied two groups of young people attending a drug and alcohol treatment centre in Dublin. The first group attended the service immediately before the legal changes designed to drive head shops out of business were introduced, and the second attended a year later, after the ban came into effect. The percentage of problematic users of head shop drugs fell from 34% in the first group to zero in the second. The percentage who had taken any such drugs in the previous three months fell dramatically from 82% pre-ban to 28% after the ban was introduced. The study was published in the International Journal of Drug Policy. That clearly produces some evidence, which I know was sought by Members of the Committee earlier when they asked whether the ban was having any effect.
Was the expert panel’s recommendation to take a different approach from New Zealand a sensible way forward? I think it probably is. Just last week, the state of Western Australia passed a blanket ban as well. There is a gathering view that this is having some effect in tackling a very difficult problem, and that licensing, however well-meaning and thoughtfully presented the arguments for it may be, is not as effective in achieving the outcomes that we all want.
Lord Howarth of Newport
Whatever policies are introduced on head shops—whether a wholesale ban, a crackdown, some degree of tolerance, supervision or licensing—we will not end up with the state of affairs that might well be desired by all of us: that there should be no more importation and consumption of new psychoactive substances. The Minister spoke earlier about the difficulties of defining “low harm”. I agree with him that these definitions are very hard to pin down. However, I also put it to him that in this field we are looking for the least bad solution. There is no ideal solution. We are looking for a practical set of measures that will, as far as possible, protect young people and society from the perils of dangerous psychoactive substances. There is a strong case for doing more work to achieve a workable, practical definition of “a low degree of harm”, and the approach advocated by the noble Lord, Lord Paddick, in this amendment should not be discarded.
Lord Bates
I respect the noble Lord in taking that position but it is a different position from that which the Government have arrived at after taking advice on this. The Local Government Association, which has to wrestle with these problems, has seen numerous examples over recent months of local authorities using a range of powers to shut down head shops in, for example, Lincoln, Portsmouth, Newcastle, Kent and Medway as a result of anti-social behaviour in and around these premises. I am not aware of any local authority or police force that welcomes head shops in its community.
Before I have letters flooding my way from the Australian high commissioner, I should point out that the government of Western Australia introduced legislation last month but it has not yet been passed. I hope that clarifies the position, and I hope that the noble Lord is reassured and feels able to withdraw his amendment.
Lord Paddick
I thank the Minister and other noble Lords for their contributions. The noble Lord, Lord Howarth of Newport, talked about having received the LGA briefing on this amendment. Regrettably, we have not received it, which puts us in a slightly difficult position in commenting on it. However, from what I have heard in the Chamber this afternoon, there seems to be some confusion over what the amendment is proposing. It proposes that local authorities license people and premises but the decision on which substances can be sold—that is, whether something is a low-risk substance—would be agreed by the Secretary of State, who would then put that substance on the exempt list. We have debated what “low-risk substance” means or could mean on a previous amendment. Our Amendment 22 offered a definition of “low overall risk” taken precisely from the Misuse of Drugs Act. What a low-risk substance is and how you define it is a separate debate.
I am grateful to the noble Lord, Lord Blencathra, for raising this new research. Again, it is difficult to comment without having read it, unlike the Minister. However, it sounds as though the surveys were conducted in a treatment centre for young people. The difficulty, as I have mentioned, is that when substances are made illegal people are very reluctant to come forward to seek treatment because those substances are now illegal, whereas previously they were legal and people had no qualms about coming forward.
Last week we offered the House the chance to have an independent, objective review, not only of the operation of the Misuse of Drugs Act but of what is happening in Ireland. It is very difficult for us in Committee to decide which side of the argument we come down on when there appears to be completely conflicting evidence of what the effects of the Irish ban are.
As to one thing I am more certain about, the Minister talked about the rejection of the New Zealand model. I understand that the problem with that model is that the suppliers of new psychoactive substances have not been prepared to put up the money to have their substances tested to the extent that they need to be to be approved. That is why the New Zealand model has run into the ground.
Lord Howarth of Newport
There have also been difficulties because of objections to testing on animals.
Lord Paddick
I accept that testing anything on animals is another very contentious issue. However, it is not right to say that the New Zealand model, whereby the door has been left open to allow people to have substances tested to see whether they are low risk, has been rejected, other than on commercial grounds by the people who are producing them.
Having said all that, I am very grateful to the Minister for his explanation. I beg leave to withdraw the amendment.
Psychoactive Substances Bill [HL]
Lord Howarth of Newport Excerpts(10 years, 7 months ago)
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Baroness Hamwee (LD)
My Lords, I shall also speak to Amendment 54. This takes us back to Clause 11, particularly subsection (1)(f), which makes,
“assisting or encouraging the carrying on of an activity listed in”,
the previous paragraphs a prohibited activity. Our first concern, which we dealt with in Amendment 54, was that this should not prevent information or education, in the very widest sense, about psychoactive substances. The approach of informing and supporting people who are taking or considering taking psychoactive substances might include support for reducing their consumption rather than cutting it out, or gentle direction towards the use of what might be thought less-harmful substances. I was reminded of what I might call the dark days of Section 28 regarding the promotion of homosexuality; there was a sort of resonance there that I wanted to pick up on. Amendment 54 would provide that advice and information was not to be a prohibited activity, even though I accept that some noble Lords might think of advice and information in a slightly different way from what we envisage.
Then I wondered why this was necessary at all. What happened to aiding and abetting, and what about Sections 44 and 45 of the Serious Crime Act 2007, which deal with intentionally,
“encouraging or assisting … an offence”?
Are they not adequate? Do we have to provide something specific? Section 44(2) says that the person,
“is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act”.
I am sorry, I have not introduced this very well, but my question is not only why Section 44 does not apply but whether there is a deliberate exclusion of Section 44(2) regarding the not foreseeing of the consequence of the act. I would be concerned if that was not to apply. I beg to move.
Lord Howarth of Newport (Lab)
My Lords, I agree with the noble Baroness. I am glad that she has tabled these amendments and made the points that she has. It does not look as if there is anything to worry about but it certainly would be very helpful to have reassurance from the Minister and some clarification. It would also be very helpful if he felt it possible to add explicitly to the Bill the amendment in the name of the noble Baroness and the noble Lord, Lord Paddick; namely, that,
“the provision of advice or information … shall not be a prohibited activity”.
We have a number of charities and organisations active in the field which simply seek to reduce harm and to protect vulnerable people. They are not proselytising for the taking of drugs but are knowledgeable about it and doing what they do with good intentions. We certainly do not want the kind of information websites that we have debated as regards previous amendments to find themselves with questionable legal status. Clarification would be helpful and if the Minister feels able to put something in the Bill so much the better.
Lord Tunnicliffe (Lab)
My Lords, I am sorry that the Chamber is not fuller to witness this unique moment when I agree with my noble friend Lord Howarth of Newport. I am not sure that it will happen again: it has certainly not happened before. We all take the view that well-informed education is key to drugs policy and to addressing these very difficult issues. The spirit of Amendment 54 seems quite interesting. We are very interested in how the Minister responds to it. It would be very bad if, by accident, we inhibited thoughtful education on this issue.
I cannot go all the way on Amendment 53. Certainly, I can see why we would like to make a crime of assisting. Encouraging, once again, gets into worrying territory. I will listen to the Government’s response with great care.
Baroness Chisholm of Owlpen
My Lords, I thank the noble Baroness for these amendments and the noble Lord, Lord Tunnicliffe, for his views. We see the civil sanctions as a useful tool to take proportionate action against offenders. The Bill contains two levels of sanctions: prohibition and premises notices, and prohibition and premises orders. Orders are the most severe, being imposed by a court and attracting a criminal offence for non-compliance.
Amendments 55A and 60A relate to prohibition notices as provided for in Clause 12 and premises notices in Clause 13. The Government have deliberately created the notice regime to be light touch, allowing a senior police officer or local authority officer to impose such a notice where they reasonably believe that a person is carrying on, or is likely to carry on, a prohibited activity as defined by Clause 11. In the case of a premises notice, the test is that there is reasonable belief that prohibited activity is being, or is likely to be, carried on at particular premises. There is no criminal sanction. The purpose of these notices is to try to stop further criminal behaviour occurring in the first instance. They are a form of final warning.
Amendment 55A seeks to remove the differentiation, so that the time limit will apply to all notices. Our starting point in relation to adults is that, as the primary aim of a prohibition notice is to stop an individual engaging in criminal conduct—something they should not be doing in any event—there was no need to impose a time limit. I remind the noble Baroness, Lady Hamwee, that other civil orders of this kind made against an adult—for example, anti-social behaviour injunctions—may also have an indefinite duration. I recognise that there are particular sensitivities about imposing civil sanctions on young people. For these reasons, we have restricted the duration of a notice issued to a person under 18 to a maximum of three years.
On Amendment 60A, a premises notice cannot be issued to an individual under the age of 18. Similar considerations apply here to those in Clause 12, so we feel that there is no need to put a time limit on premises notices.
Turning to Amendment 71A, we entirely agree that any prohibitions, restrictions or requirements contained in a prohibition order or premises order must be appropriate and proportionate. Proportionality will routinely be considered by a court as part of this decision. It is also important to remember that the court is bound by Section 6 of the Human Rights Act 1968 to act in accordance with the convention rights. Arguably, for the reasons I have given, it was not strictly necessary to include a proportionality test in Clauses 17 to 19 but we included it so that there was symmetry with the test applied by a senior officer or a local authority for the issuing of a prohibition notice or premises notice. I accept the spirit in which the amendment is intended but it is simply not necessary to amend Clause 21 to achieve this end. On the basis of this explanation, I hope the noble Baroness will be content to withdraw her amendment.
Lord Howarth of Newport
Did the Minister mean the Human Rights Act 1968 or that of 1998?
Lord Howarth of Newport
My Lords, I take this opportunity very briefly to raise an issue with the Minister which applies in Clause 12 and in a range of clauses going through to Clause 22. These clauses would create powers of enforcement action to deal with prohibited activity, in prohibition notices, premises notices and orders. Among the authorities so empowered will be local authorities, and I imagine that among their staff on the front line of enforcement will be trading standards officers. Will the Minister clarify what the Government expect of trading standards officers? Presumably they will have a role in closing down head shops and online sites if they are in their locality.
When the All-Party Parliamentary Group for Drug Policy Reform held its inquiry, we received rather impressive evidence from representatives of the trading standards officers profession. They explained to us—this was a couple of years ago—that they lacked the powers to tackle the problem of psychoactive substances in their localities. This Bill would endow them with a considerable range of powers and duties. I do not know whether other noble Lords have received a copy of the trading standards journal, TS Review, which landed on my desk quite recently. It is a very impressive publication, which emanates from the trading standards officers profession—beautifully produced, and full of good sense. I learned quite a lot from perusing it, such as the fact that the number of trading standards officers has fallen by 45% since 2009, and that training budgets for them have been cut.
Professor John Raine is quoted from a publication entitled The Impact of Local Authority Trading Standards in Challenging Times. He said that trading standards services,
“have lost much of their resilience”,
and specialist knowledge. Sylvia Rook is quoted as saying, rather sadly:
“If you’ve only got 4 staff in your Trading Standards service, there is no option—staff have to be generalist”.
Noble Lords will recall the debates we had on the problems of definition and identification of psychoactive substances—about whether a substance is psychoactive and, if so, what exactly it is. These powders look pretty much alike. Karin Layton is quoted as saying:
“Generic officers won’t be able to stand up in court and give evidence effectively”.
If that is so, the anxiety is that cases will collapse in court.
As it is, trading standards officers have a colossal workload. They are enjoined to enforce some 250 pieces of legislation before they get to this new legislation or, indeed, to the Bill whose First Reading was moved by my noble friend Lord Rooker earlier today to provide for a proportion of folic acid to be included in bread. The sort of things that trading standards officers must deal with include nuisance callers on the telephone, purveyors of horsemeat and underage purchases of alcohol. There is an excellent section within this publication entitled “Saving Lives: The Health Benefits of Disrupting Alcohol and Tobacco Sales to Underage People”, a subject we debated this afternoon. They must deal with fraudulent energy efficiency salesmen, animal welfare, weights and measures —which has always been their classic role—the defence of intellectual property rights, e-crime and the enforcement of consumer contracts regulations.
The trading standards officers’ profession is determined to cope; these are good, public service, professional people. They are debating among themselves whether, in the circumstances of austerity, there will be a need to design new regional structures so that the work of generalist TSOs can be supported by specialist TSOs. That all represents a very constructive approach on their part but there is clearly a long way to go. It will be very difficult for them to fulfil the tasks that are provided for in Clause 12 and subsequent clauses. Therefore, I would be grateful if the Minister would comment on how realistic the Home Office and the Government are being in asking trading standards officers to do yet more. It is a common weakness of Governments to will the ends but not the means, so I would be grateful for the Minister’s comments.
Lord Howarth of Newport
I am grateful to the Minister. The story he has just told about Canterbury illustrates the difficulty and expense that local authorities are going to incur in seeking to implement the ban that the Bill would create. We know that the Local Government Association is very keen to see head shops closed down, and we understand why that is so. I am perplexed about how it can argue that it will save local authorities money. A lot of activity is enjoined upon them in this measure. I do not know whether the Minister has interrogated it about the basis on which it gives this assurance that it will save local authorities money during the enforcement period. I can see that if they were successful in closing down the head shops then they might have less to do in this regard; but in the transition, while they are actually engaged in these enforcement activities, surely it will cost more money. I would be grateful for the Minister’s further thoughts, perhaps not this evening but in due course, on how local authority trading standards departments are to perform the duties that the Government are laying upon them at a time when there has been such a decrease in the number of trading standards officers and in the budgets of local authorities, in particular, in the budgets for training TSOs.
Baroness Meacher (CB)
My Lords, I will not take up the House’s time, but I wish to express my strong support for these amendments. It is eminently reasonable to have right of appeal, as the noble Baroness said, bearing in mind the considerable penalty that somebody will suffer if their livelihood is suddenly withdrawn from them. It also seems eminently sensible to set the standard of proof at the criminal level. I support these amendments and hope very much that the Minister can comply with those two proposals.
Lord Howarth of Newport
I, too, endorse what the noble Baroness, Lady Hamwee, proposed. There will need to be very convincing arguments from the Government as to why there should not be a right of appeal, and I have much sympathy also with what has been said on the standard of proof.
Lord Tunnicliffe
My Lords, just to revert to my original path, I do not agree with the noble Lord, Lord Howarth, on the burden of proof. We think that for the orders a balance of probabilities is appropriate. The only question I seek assurance on is that if any individual were to be either imprisoned or fined, it would be under the provisions in Clause 23—and my understanding is that under that clause the criminal standard of proof would be necessary. Providing that one has that assurance, we do not object to the burden of proof in the relevant parts of the Bill with respect to the order.
Lord Paddick (LD)
My Lords, Amendment 87A concerns the power to stop and search. I shall speak also to Amendment 94A, which concerns the power to seize and destroy substances. They are both probing amendments to try to understand why the Government feel it is necessary to include these powers to stop and search.
Originally we focused on Clause 23, which is about failing to comply with a premises order or a prohibition order, but, on reflection, similar arguments would apply to Clauses 4 and 8 in that the power to stop and search is supposed to be on the basis of suspicion that a person has committed, or is likely to commit, an offence under those clauses. These are criminal and arrestable offences. If a police officer or a customs officer suspects that a person has committed either of these offences, they would have a power under common law to stop and search that individual, having arrested them. My question to the Minister is: why is there a need for a separate power to stop and search when there is already a power under common law to do that?
Amendment 94A concerns the power for the police to dispose of seized psychoactive substances even where an offence has not been committed. Clause 46(1)(c) states that if an officer reasonably believes that an item is a psychoactive substance it can be seized and destroyed. My question to the Minister is, surely it needs to go beyond what an officer reasonably believes, otherwise legal substances could be destroyed by the police, with no comeback for the owner of the substances, simply on the basis of an officer’s reasonable belief about those substances that is not well founded and is not factual. I beg to move.
Lord Howarth of Newport
My Lords, my amendment in this group seeks to introduce a new clause after Clause 35. Again, it is on the subject of stop and search and, like the amendments of the noble Lord, Lord Paddick, its purpose is to probe.
The Committee should be told what the Government’s policy on stop and search is. In April last year the Home Secretary announced that she intended to introduce a comprehensive package of reform of police stop-and-search powers. She had been informed by Her Majesty’s Inspectorate of Constabulary that a quarter of a million stop-and-search operations—or some 27% of street searches—in 2013 had been illegal. In the other place she said:
“I want to make myself absolutely clear: if the numbers do not come down, if stop-and-search does not become more targeted, if those stop-to-arrest ratios do not improve considerably, the Government will return with primary legislation to make those things happen”.
She went on to say:
“nobody wins when stop-and-search is misapplied. It is a waste of police time. It is unfair, especially to young, black men. It is bad for public confidence in the police”.—[Official Report, Commons, 30/4/2014; col. 833.]
The Home Secretary noted that black people were still seven times more likely to be searched on the street than white people, which had been seen as “sharply divisive” in Britain’s black and minority ethnic communities. She might also have noted that in 2013, white people were twice as likely to have taken drugs in the previous year as black or Asian people.
Lord Howarth of Newport
My Lords, I am conscious that I am prevailing upon the patience and tolerance of the House in moving an amendment at this time of the evening and at the very tail end of the Bill. However, it is on an important topic which warrants our consideration.
I emphasise that this is, of course, a probing amendment, which, if it were pressed seriously, would be a wrecking amendment. It is no part of our role to wreck the legislation; rather, we seek to improve it and offer advice to our elected colleagues in the other place on how to make it better.
My amendment proposes that the provisions of this Bill should not be brought into force,
“before both Houses of Parliament have debated the conclusions of the United Nations General Assembly Special Session on Drugs in 2016”.
I think that special session is due to be held in March of 2016. When, some time ago, the Secretary-General of the UN, Ban Ki-moon, announced that there would be a special session of the UN General Assembly on drugs, he urged all member states to,
“conduct a wide-ranging and open debate that considers all options”.
Indeed, some Governments across the world have developed rational policy in relation to drugs and have led public opinion. I have in mind the Czech Republic, Portugal, Switzerland, Germany, the Netherlands, Uruguay and, of course, a number of states of the United States of America.
In 2009, three former Latin American presidents wrote in an article in the Wall Street Journal that,
“it’s high time to replace an ineffective strategy with more humane and efficient drug policies. … we must shatter the taboos that inhibit public debate about drugs in our societies. … the long-term solution is to reduce demand for drugs in the main consumer countries. To move in this direction, it is essential to differentiate among illicit substances according to the harm they inflict”.
That differentiation is conspicuously lacking in this legislation.
The Global Commission on Drug Policy, whose membership is a roll call of eminent and respected international figures—such as Kofi Annan, Paul Volcker, Javier Solana, former UN Commissioners for Human Rights and for Refugees, former presidents of Poland, Portugal, Switzerland, Brazil, Chile, Colombia and Mexico—said in a report published in 2011:
“The global war on drugs has failed, with devastating consequences for individuals and societies around the world. … fundamental reforms in national and global drug control policies are urgently needed”.
These were formidable indictments of the prohibitionist orthodoxy.
In a debate in your Lordships’ House on 17 October 2013, a former Lord Justice of Appeal told us that it is perfectly clear,
“that there has to be a rethink on drugs in this country. It clearly is not working”.—[Official Report, 17/10/13; col. 677.]
Public opinion in Britain has been shifting. It is a generational change, and a change that is registered right across the political spectrum regardless of how people vote. Younger people feel that prohibition has failed and that a different set of policies is needed. YouGov research for the Sun newspaper in 2012 found that 67% of people thought the policy was working badly. Ipsos MORI research in 2013 for the Transform Drug Policy Foundation found that 53% of people thought that it was right to regulate the production and supply of cannabis and to decriminalise possession.
The United Kingdom, as one of the world’s major consumers of drugs, especially cocaine, has a major responsibility for the devastation that has been wrought in the producer countries and transit countries of Latin America, the Caribbean and west Africa. It behoves us to consider the implications of our own habits of self-indulgence and patterns of consumption for unfortunate people the world over. Policy should be based on evidence and experience, not on taboo, fear of what the tabloids may say, a fixed mindset, moralism, and certainly not on panic.
There is a crisis in relation to new psychoactive substances. We all agree about that but the policy response needs to be based on evidence and needs to be rational. As I have said before, it seems futile to attempt to overlay on the digital global economy a system of prohibition that failed to work effectively in the pre-digital era; nor do I think that idiosyncratic legislation in one country or one small group of countries, such as the United Kingdom, Ireland, Poland and Romania, is going to provide the right solution—there is no solution—or, rather, an appropriate range of policies.
Earlier today when we were referring to Ireland and the difficulties that the Border Force might face in enforcing the bans on importation, the Minister observed how difficult it is when a country—in that case, Ireland—seeks to legislate in isolation, and seemed to be arguing for a more cohesive international approach. In that respect, I very much agree with him.
The European Monitoring Centre on Drugs and Drug Addiction, in its very recently published annual report, observes that the complexity of the drugs problem is far greater now than it was 20 years ago. It notes that manufacture, supply, retail, relevant websites and payment processing may all occur in different countries. Crudely simplistic unilateral legislation cannot even begin to work.
I believe it is time for all the political parties to admit the failures of policy over the past half-century. I believe that the United Kingdom should join the countries that are willing to think afresh about these problems and that we should adopt a thoroughly constructive approach in the lead-up to the United Nations General Assembly Special Session. I would be most grateful if the Minister told us what part the Home Office is playing in the developing discussions.
My noble friend Lady Meacher, who chairs the All-Party Parliamentary Group for Drug Policy Reform, has been intensively engaged in international diplomacy on behalf of the group to try to ensure that there is a productive outcome of the process leading up to the UNGASS. In the mean time, we should refrain from implementing what I am sorry to repeat that I believe is ill-conceived prohibitionist legislation, at any rate until we see the outcome of these global discussions and Parliament has had the opportunity to deliberate upon the discussions and findings of the UN General Assembly. I beg to move.
Baroness Meacher
My Lords, I support this amendment because of the enormity of the importance of the UNGASS to global drug policy. I will take less than two minutes of the House’s time but I plead with your Lordships to bear with me.
The All-Party Parliamentary Group for Drug Policy Reform has provided a document which we hope will be of interest to the Government. We worked for about 18 months on the document, called Guidance on Interpreting the UN Drug Conventions. We have worked closely with senior Mexican officials and experts from around the world on the document and we have had discussions with I cannot even say how many country representatives. I spoke at the Vienna CND on it.
As we speak, the President of a very significant Latin American country has his office and Ministers discussing the proposal that he would like to adopt to present the essentials from this guidance document to the UNGASS next year. This week a Latin American ambassador said he very much hoped that the UK Government would support the President’s initiative. The former president of the Organization of American States supports our work. The European Commission wants to work with us on an EU document to go to UNGASS because it is so impressed with our document.
Very briefly, the guidance urges UN member states across the globe to begin a process to develop evidence-based policy. The UN conventions upon which we all base our policies were not developed on the basis of evidence of which policies would achieve the overarching objective of the UN conventions to advance,
“the health and welfare of mankind”.
Rather, global drug policy has been based upon a wrong-headed psychological theory of motivation. Punish everyone involved with drugs and we will achieve a drug-free world: so said President Nixon all those years ago in 1971. The opposite has of course occurred in the last 50 years.
Lord Bates
My Lords, I thank the noble Lord, Lord Howarth, for moving his amendment, which gives us an opportunity to return to the big picture on the issues we face, namely the global work which is happening on tackling drugs. Let me start by outlining the importance that the Government attach to the special session and our approach to influencing its form and outputs. The 2016 session will be the highest-level UN meeting on international drug policy since 1998. It represents a unique opportunity to engage with all UN member states, international organisations and civil society, to see how they can improve the global response to the harms caused from drugs. We very much appreciate the work undertaken by the All-Party Group on Drug Policy Reform.
The Government are committed to taking a leadership role at that special session. We are working with our international partners to share our national expertise and to advocate a modern, balanced and evidence-based approach to drugs within the UN conventions—an approach which delivers prevention and recovery, alongside proportionate action to restrict the supply of drugs.
Part of our objectives for the special session will be to enhance international action on new psychoactive substances. This is an area where the UK is recognised as a global leader and our long-term plan is delivering significant successes. In April, the Government secured international controls on mephedrone, the first new psychoactive substance to be banned at an international level. We will continue to work with the World Health Organization and the United Nations Office on Drugs and Crime to strengthen the UN’s scheduling system and ensure that the most prevalent, persistent and harmful new psychoactive substances are banned at an international level. We will also use the special session to enhance information-sharing about the latest forensic and public health evidence. I am sure that the Committee will welcome the UK’s ongoing work to fund and support the UN’s global Early Warning Advisory and the European Monitoring Centre for Drugs and Drug Addiction.
We will also encourage international law enforcement co-operation to tackle the production and supply of new psychoactive substances. This includes supporting China and India to enhance their interception of psychoactive substances for export. We will use the special session to share the lessons we have learned on the need for a balanced and evidence-based approach. We will build on our work through the UN, G7 and EU to share our experience of delivering targeted prevention campaigns.
The Committee will understand the important contribution that civil society and international organisations, such as the World Health Organization, could make to the special session. I reassure noble Lords that the Government are focused on ensuring an open and inclusive preparatory process. We are working closely with our international partners and civil society. We must not, however, allow international discussions to delay for one moment UK action to tackle the pernicious psychoactive substances harming our communities right now. That is why we do not accept this amendment. But in saying that, I would also say to the noble Baroness, Lady Meacher, and to the noble Lord, Lord Howarth, that I am of course very happy to arrange a meeting. It would perhaps be beneficial to have one with my right honourable friend Mike Penning, who leads in the Home Office on this particular area, to offer some reflections about what the Government’s position should be going into that important set of negotiations.
This might be the last time I am on my feet in Committee, so my final point is to thank noble Lords for their contributions. It has been an excellent process and has given us a lot of food for thought, which we will reflect on between now and Report. This might be the only contentious part of my closing comments, but I do think that we have a rational approach to drugs policy. It may not be the one that some Members would choose, but it certainly has a rationale to it. In addition, it is not without success: we can all take a modicum of encouragement from the fact that overall drug use, particularly among young people, is falling. That is to be welcomed. Given the context of the earlier debates, I would point out that the use of alcohol and tobacco is also falling among young people. That offers some hope that we are on the right track, although of course we have a very long way to go.
Lord Howarth of Newport
My Lords, perhaps on behalf of the Committee, I can say again how much I believe all of us have appreciated the way the Minister and his colleague, the noble Baroness, Lady Chisholm, have dealt with the proceedings in the Committee. There are profound differences of view as to what the right policy should be, but we have managed to debate these difference of view in, I think, an amicable and constructive fashion. I certainly value that very much and am most grateful to him. I am not so enthusiastic about the Minister’s response to this specific amendment and, when he said that the Government do not intend to delay implementation of the Bill for one minute, I thought he showed himself to be uncharacteristically hard-line.
The Minister then went on to be a little modest about the success of the Government’s policies, saying that they had been “not without success”. That did not seem to me to be a very large or confident claim. He then did make a rather large claim, and I am not convinced that it is a justifiable one. He said that drug use, especially among young people, has been falling. I just wonder whether he or any of us really knows—it is peculiarly difficult to find out what is really going on. The drug scene constantly mutates: you can monitor usage of some particular drugs but you can be pretty sure that if you find that there is a dip in the use of cannabis, it is because there is an increase in the use of ecstasy or whatever. It is very hard to keep track of it. I notice that in the report on new psychoactive substances that Mr Penning’s predecessor, the coalition Minister Norman Baker, produced, it was evident that the experts consulted were really finding it very hard to get a handle on what was actually going on in the field of new psychoactive substances.
The Minister, in his response, uttered a great many decent sentiments and used some encouraging words. He spoke of the Government taking a “leadership role” with international partners and of working towards “balanced”, “evidence-based” and “proportionate” policy—who could do anything other than cheer that? He said that there would be a wide-ranging “sharing” of information and talked of partnership with the World Health Organization and with civil society. That I find genuinely encouraging. If the Government really are intent on developing an open and inclusive preparation process, as he told us, that will be helpful, because a lot of people have a contribution to make.
I was a bit more nervous when he spoke of partnership with China. I have myself advocated that the Foreign Office develops its relationship with China in relation to drugs, but none of us should forget that China uses the death penalty and that one of the problems about prohibition is that it leads to constant infringement, of the direst kind, of human rights.
This is complex territory, but I am very grateful to the Minister for agreeing to meet us. He has proposed that we should have a meeting with Mr Penning. If he can persuade the Home Secretary herself to meet the noble Baroness, Lady Meacher, myself and some others, that would be even more desirable, but I shall leave that with him. In the mean time, I beg leave to withdraw the amendment.
Psychoactive Substances Bill [HL]
Lord Howarth of Newport Excerpts(10 years, 7 months ago)
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Lord Howarth of Newport (Lab)
My Lords, it is indeed time for a fundamental review of the Misuse of Drugs Act 1971. It is now almost half a century old and was the product of the prohibitionist orthodoxy that developed during the 1960s. It was the way in which our country implemented the requirements of the UN convention of 1961; subsequently, we doggedly signed up to the 1971 and 1988 conventions. It is through this legislation that the full panoply of prohibition was established, with the criminalisation of supply and possession. It is more than time to look again at the principles underlying this legislation, because there is an abundance of evidence that the legislation has failed in its purpose of protecting society from harm. I agree very much with the noble Lord, Lord Paddick, that our objective has to be to minimise the damage that drug usage causes in our society.
Since this legislation was introduced, we have seen, generation by generation, very significant increases in the use of drugs. There have been fluctuations in the use of cannabis, but if noble Lords study the latest annual report from the European Monitoring Centre for Drugs and Drug Addiction, they will see that it sounds alarm bells over the rising problem of cannabis, in particular the increasing potency and purity of herbal cannabis and cannabis resin. The cannabis that is available in the market for consumers in this country is now far higher in THC, the most dangerous component of cannabis, than the cannabis that people were accustomed to using in the 1960s. A far larger proportion of our population now uses cannabis than in those days. Britons are among the largest consumers of controlled drugs in Europe. Therefore, there is evidence that the system is not working.
Prohibition is based on a false analysis of supply and demand. Where supply is interdicted, demand does not consequentially fall. Prices rise and the profits of criminals rise, but demand is displaced to different drugs. One reason we have the problem of new psychoactive substances, which the Bill seeks to address, is the prohibition of other substances, which has displaced demand, and people are looking for new opportunities to find the experience that they seek.
MDMA, better known as ecstasy, is another controlled drug, but the control has simply failed. Statistics indicate that some 300,000 young people each week are using ecstasy. As I mentioned at Second Reading, in universities its use is widespread, as is the use of smart drugs that are supposed to facilitate mental concentration and help people do better in severely competitive situations.
It is more than time for an analysis of the kind that the noble Lord, Lord Paddick, has recommended—an objective expert review of the way that this legislation has worked. It has been a gift to criminals. On the black market, price increases of 100 times between production and retail are not uncommon. In 2013, it was estimated that taxpayers across the world were spending something in the order of $188 billion on the enforcement of prohibition regimes, with the effect of creating an illegal drugs market of some 240 million users, with a turnover of $320 billion. This is a massive illicit business created by the prohibitionist orthodoxy.
At the same time, the Home Office estimated that the social and economic costs of organised drug crime in England and Wales were £10.7 billion a year. The collateral damage of the war on drugs has been immense, with diversion of public spending from health, education, development and other good causes—or, if you prefer, from the lowering of taxes and the reduction of deficits—and from tackling social exclusion and violent crime on estates in this country. That extends to the countries of production and transit: there have been 100,000 deaths in the drug wars in Mexico for which our people, as consumers, have to take serious responsibility. There is corruption of public life in many countries, and the proceeds of the illegal drug trade are used to finance terrorism. There are abuses of human rights, the use of the death sentence in a number of countries across the world, and environmental damage; for example, in Latin America, where the coca bean is produced.
Money laundering is a very significant problem, which is greatly exacerbated by prohibition. Banks in this country—unburdened by any particular sense of civic responsibility or by effective regulation—fund money laundering of drugs money, which is a profitable activity, as do money transfer services. It is not just the financiers, though. Other white collar professionals—accountants and lawyers—do not ask the questions they are required by the law to ask and are happy to facilitate the transfer of the proceeds of the illicit trade into the licit economy. It is ubiquitous across the country. At the other end of the scale, nail bars, taxi firms, car washes and, I am told, even childcare organisations are local small businesses that are used to facilitate the laundering of the proceeds of the drugs trade.
The Chancellor now wishes to make the City of London an offshore centre for trading in the Chinese currency regardless of the fact that the great majority of new psychoactive substances emanate from China. Prohibition is an engine of crime, of international organised crime, of gang-related street crime and of acquisitive crime. It accounts for between one-fifth and one-third of acquisitive crime. More enforcement leads to more violence and more profit. Prohibition drives innovation.
The Misuse of Drugs Act was never effective, but to attempt to overlay a regime that was not effective in the circumstances for which it was designed on today’s world of digital communications is, I believe, doomed to failure. The internet has made it far easier for people to obtain the information they need to know how to synthesise such drugs, to market them and to make them available. Smartphones enable people to tell each other about the arrival of new consignments of drugs—I am told even that invitations to parties contain links to suppliers. To extend the prohibition regime as the Government propose in the Bill seems a project doomed to failure.
Over the years, the Government have lacked conviction in the enforcement of prohibition. The noble Lord, Lord Fowler, to his immense credit, when faced with the challenge of HIV and AIDS in the 1980s, wisely and humanely decided that to provide clean needles and needle exchanges was the right thing to do and that harm prevention should trump law enforcement. There has been vacillation by successive Home Secretaries about the classification of cannabis. In 2010, when cannabis had once again been moved to a different classification, the Lancet stated:
“Politics has been allowed to contaminate scientific processes and the advice that underpins policy”.
The noble Lord, Lord Bates, may correct me but I understand that in the preparation of this legislation the Advisory Council on the Misuse of Drugs, created under the 1971 legislation to be the Government’s statutory adviser in this field, was sidelined. As the noble Lord said in moving this amendment, this seems to be an end to evidence-based policy and the attempt at a rational assessment of harm. Ministers have done this through this legislation and the broader policy. They have further discredited the Misuse of Drugs Act, on which they rely and which they insist is so necessary.
In an interview in the Independent in 2005, David Cameron said:
“Politicians attempt to appeal to the lowest common denominator by posturing with tough policies and calling for crackdown after crackdown. Drugs policy has been failing for decades”.
I greatly fear that this Bill will be another failure, and I commend to the Minister and the Home Secretary the course of action proposed in this amendment.
Lord Condon (CB)
My Lords, I cannot support these amendments, not because I challenge the sincerity of those who wish to encourage wider debate about drugs and the value of criminalising or decriminalising them, but because I think this is the wrong Bill at the wrong time to try to bolt on this wider debate. There is a real mischief that needs to be dealt with now: the mischief of so-called legal highs, which, tragically too often, are lethal highs. Many families are grieving in this country because youngsters, in particular, have taken these substances and died as a result. The mischief that needs remedying as soon as possible is the spread of so-called head shops and other such shops in many of our major cities around the country. We are just getting into the serious music festival season. Many of those festivals will have the equivalent of head shops on open display. There is real confusion among many vulnerable, naive youngsters, who assume that, because there are head shops or stands at music festivals selling these substances, they must be medically safe.
I spoke yesterday to the chief constable of Hertfordshire, Andy Bliss, who leads for the police service on these issues, and the police are adamant that there is a real need for this legislation as soon as possible. So let there be a wider debate around the big issues of evidence, prohibition and legalising or not legalising drugs, but we need to deal now, laser-like, with this real and present mischief. Any attempt to make this Bill into a wider debate will dilute, probably defer and possibly damage our intent to deal with this real and present mischief. Although there is a need for this wider debate, I hope that it will not destroy the laser-like focus of this Bill, which deals with a real and imminent problem.
Baroness Meacher
I would like to point out that the Government introduced what I consider to be a very good instrument, the temporary class drug orders. These could be sped up. You can, or should be able to, put an order in place quickly for a 12-month period while an assessment is undertaken. If the drug is not deemed to be safe, it is placed under the Misuse of Drugs Act. There is an instrument in place.
Lord Howarth of Newport
From all his experience, does the noble and learned Lord anticipate that there may be problems in the criminal justice system over definition and establishing that a substance is indeed psychoactive; and that in the case of individuals it is their intention to supply illegally? Also, does he have any anxieties about the practicalities of enforcement? In the interests of the courts and of wider society, it is important that legislation that lays impossible burdens on the police, HMRC and other enforcement authorities is not enacted. They are going to have a large, complex and difficult additional set of tasks under this legislation, at a time of diminishing resources.
Lord Mackay of Clashfern
The impact assessment to some extent deals with that. It is plain that the difficulty has arisen in relation to the emergence of new substances whenever a particular prohibition is enacted. I hear what the noble Baroness, Lady Meacher, says about this. The problem is that by the time the enactment takes place, considerable harm may be occurring. The idea of this Bill is to prevent the production of these dangerous substances as a general matter of course.
Lord Bates
These substances are available. For example, a grandmother told me about the death of her grandchild, although it was not directly related to this. She expressed absolute despair that across the road from a school in Canterbury, 100 yards away from it, was a head shop selling “legal highs”. She believes that they are lethal highs. They are allowed to be traded, on the high street, to children way below any age of consent. There are no restrictions, as there are with alcohol and tobacco. Anyone can go in there with cash and come out with a brightly coloured package which actually says “not fit for human consumption” or “plant food”. Are we supposed to stand idly by when the Local Government Association is telling us that and when the police are telling us that they lack the powers to act? The Republic of Ireland has closed these shops down altogether. We need to get a clear and important message to young people that these drugs are not without risk.
Lord Howarth of Newport
No one is suggesting that we should stand idly by. No one is suggesting that these new psychoactive substances do not carry hideous dangers. No one is suggesting that urgent action is not needed. The question at issue is whether the policies in this legislation are well framed and well designed to address what is undoubtedly a very grave and serious problem.
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.
Lord Blencathra
My Lords, I have no idea whether cannabis is relevant and effective in dealing with nausea or spasms caused by motor neurone disease or other diseases, but I have a wee bit of experience of multiple sclerosis, and I say to the House that I do not want to be used as an excuse to legalise cannabis, because it is not necessary for treating the spasms that come from multiple sclerosis; there is already a fairly large range of drugs on the market that deal with that.
The spasms are difficult to describe and usually happen at night. The main muscles of the body—the torso, the legs and the chest—just spasm, and it is difficult to get a bit of sleep when that happens. In my case, when it started getting bad, my consultant said, “In that case, we must give you a drug that will deal with the spasms”. At the top of the list is baclofen, which is dirt cheap and highly effective. The maximum prescribed dose is 50 milligrams. I take 10 milligrams in the morning and 20 milligrams at night and have had no more body spasms because of it.
Okay, I cannot speak for all multiple sclerosis sufferers. When I was a constituency Member of Parliament, I had constituents come to me who said that they wanted cannabis legalised so that they could deal with their MS. I said that there were clinical trials under way that resulted in the drug Sativex, but they were not so keen to take a pill; they wanted to smoke a joint because it made them feel better in many other ways. Well, it could, but I do not want people who wish to smoke cannabis to get high to use the excuse that it is essential for multiple sclerosis sufferers in order to remove their pain and spasms.
If baclofen does not work—it seems to work for about 95% of people—doctors usually try tizanidine: I will give the Minister the spellings later. Following that, going down the list, is gabapentin. It is not usually prescribed because the other two drugs are usually much more effective. At the bottom of the list is Sativex, which is the cannabis derivative. The problem here, as has been stated already, is that NICE reviewed it and concluded that it was not cost effective. Unfortunately, that is absolutely right, because it costs 10 times as much as baclofen, which I have in my pocket at this precise moment.
I therefore think that the solution is: patients should be prescribed baclofen. If that does not work, they can go on to tizanidine, and if that does not work they can try the next legal drug, gabapentin. If those three do not work, then people can be prescribed Sativex. I suggest that my noble friend the Minister should say to the Department of Health and NICE that in those priority corridors it should be permissible to use it throughout the whole of the United Kingdom. Wales overruled NICE and has allowed Sativex to be prescribed. It is not prescribed, except by private prescription, in England, Scotland and Northern Ireland. I think that that is wrong. It should be allowed to be used by doctors but not as the first port of call.
There is merit in rejecting the amendment as far as multiple sclerosis is concerned. It may be beneficial for other illnesses when people suffer spasms but it is not necessary to deal with the problems that occur with multiple sclerosis. I wish to put my liberal credentials—or near liberal credentials—on the table. A part of me takes the view that if people want to smoke a cannabis joint and get high, okay, let them but do not expect the taxpayer to pick up the bill for the cancers and other illnesses they may get later. Similarly, a part of me thinks that if people want to eat themselves through gluttony into obesity and sit on their backsides, taking no exercise, let them, provided the NHS does not have to pay for that.
As the taxpayer has to pay for these things and for the dangers which smoking cannabis can cause, the taxpayer and the Government must be in a position to say, “No, I’m sorry. You’re not allowed to smoke that because there are alternatives that can deal with the alleged problem”.
Lord Howarth of Newport
May I say how welcome it is to see the noble Baroness, Lady Chisholm of Owlpen, on the Front Bench alongside her colleague from the Home Office? I hope that she will report this debate to her colleagues in the Department of Health. It is excellent that the two departments are represented on the Front Bench for this important debate.
The noble Lords, Lord Rea and Lord Ribeiro, spoke with all the authority of their medical expertise, and the noble Lord, Lord Blencathra, spoke with the authority that comes from his own unfortunate experience. I follow the noble Baronesses, Lady Hamwee and Lady Meacher, in commending to the Committee, and very much to the two departments represented on the Front Bench, the report just recently published under the auspices of the All Party Parliamentary Group for Drug Policy Reform by Professor Val Curran and Mr Frank Warburton, entitled Regulating Cannabis for Medical Use in the UK. Had they heard the presentation of this report by Professor Curran from University College London, they would have been persuaded that the arguments put forward are eminently reasonable.
She talked about the severe constraints applied to the progress of medical research by the Government of the United Kingdom’s persistence in listing cannabis in Schedule 1. She told us that it costs a minimum of some £5,000 to achieve the licence and to pay for the secure conditions to enable the pursuit of research into the medical properties and potential benefits of cannabis. That is a severe discouragement, particularly in the stringent climate of funding for academic research. She estimated that research on cannabis costs some 10 times as much as research on other drugs. It is a serious constraint, yet a significant body of evidence strongly suggests that cannabis-based medications can be beneficial for a whole series of conditions, many of which have been itemised by previous speakers.
The noble Lord, Lord Ribeiro, drew attention to the tentative evidence that may be emerging of benefits in relation to post-traumatic stress disorder. That is certainly a pressing and important issue for us in this country, as well as in America. Professor Curran also told us that there are suggestions that cannabis could be beneficial in the treatment of schizophrenia. It would seem perverse in the extreme to continue to deny ourselves the opportunity effectively to pursue research on the medical benefits of cannabis when patients suffering from such a range of diseases could be assisted.
Lord Bates
My Lords, first, I thank the noble Baroness, Lady Meacher, for giving us the opportunity to have this debate. In some senses, it is a rehearsal of our discussion following the Oral Question she asked in your Lordships’ House last week.
The Government’s position is that we have no plans to reschedule cannabis. There is clear scientific evidence that cannabis is a harmful drug which can damage people’s mental and physical health, and which can have a pernicious effect on communities.
Let me deal with a couple of the points that were raised in the debate. In responding to these amendments, I remind the Committee that cannabis is a controlled drug under the Misuse of Drugs Act 1971, and listed in Schedule 1 to the Misuse of Drugs Regulations 2001. The 1971 Act will continue to regulate the availability of controlled drugs, and Schedule 1 to the Bill specifically excludes drugs controlled under the 1971 Act.
To move herbal cannabis and cannabis resin to Schedule 2 to the 2001 regulations, and thereby enable their prescribing, would amount to a circumvention of the established evidence-based regulatory process that successive Governments have had in place to ensure that products made available in the UK as medicines are as safe and effective as possible. My noble friend Lord Ribeiro made the point about the importance of rigorous clinical trials.
Lord Howarth of Newport
How, then, does the Minister explain that heroin, which is a far more dangerous drug, is in Schedule 2?
Lord Bates
I shall come to that a little further on. The point made by the noble Lord about diamorphine, which is prescribed in this country, is perfectly fair. Interestingly, in some other countries it is not prescribed. There will be a difference of view. That is one reason why, from a government and policy point of view, it is important that we have the best possible scientific advice and give due regard to it. The advisory council is specifically charged with that under the Misuse of Drugs Act 1971; that categorisation is its view. Should there be derivatives—I shall answer my noble friend Lord Blencathra’s point on that in a minute—we have the Medicines and Healthcare Products Regulatory Agency, which can offer some advice as well. Beyond that, the National Institute for Health and Clinical Excellence can decide on the deployment.
That is not a case of policymakers passing the buck but of their basing policy on the evidence that comes before them. The Government’s position, based on the advice of the Advisory Council on the Misuse of Drugs, is that cannabis in its raw form is a harmful drug and its use should not be encouraged. The advisory council has reported that there is clear evidence that cannabis has a number of acute and chronic health effects, and that prolonged use can induce dependence. Even occasional use of the drug can pose significant dangers for people with mental health problems.
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 Bates
I will come to that in just a minute because it is a specific point which the noble Baroness, Lady Bakewell, raised in the earlier debate on the issue of the “Newsnight” report, of which I have read a transcript although I did not actually catch it last night. I want to address some of the points in there. What I am going through is the methodology by which we arrived where we were. Taking the amendment at its word, we are effectively deciding whether we should delay the progress of the UK introducing the new psychoactive substances legislation and the blanket ban in order to undertake an assessment of how effective the 2010 Act has been in the Republic of Ireland. Our view on that is no, because that assessment has already taken place in the expert panel review and—
Lord Howarth of Newport
The Minister invited us to look at page 38 of the expert panel’s report, where it recognised that there were some risks. It said that:
“A precautionary principle would now be used rather than one of acting proportionately in response to evidence of harm”,
and went on to suggest that very significant difficulties would attach to this approach. It was by no means unambiguous in its recommendation of the blanket ban.
Lord Bates
Let me try to avoid the ambiguity in it. The expert panel recommended that there should be a blanket ban. A blanket ban in the Republic of Ireland had been operating for three years, so it had had an opportunity to look at that. It looked at New Zealand and what had been happening there as another example. I can also point to the report in March from the Health and Social Care Committee of the National Assembly for Wales, in which recommendation 13 of its inquiry said:
“The Committee welcomes the Home Office’s expert panel’s recommendation of a ban on the supply of NPS in the UK, similar to the approach introduced in Ireland”.
I also have a quote from paragraph 4.23 of the report from the similar expert group set up by the Scottish Government:
“The Group agreed that there are a number of benefits to the Irish model, which could strengthen the tools that are currently available and being used by agencies to tackle NPS supply in Scotland”.
What I am doing here is piecing together the information to show that we did not whistle this out of thin air. Some serious people—whether you agree or disagree with them—looked at what was happening in Ireland, and this was their conclusion on which they based their recommendation.
To the next point, I am very much with the noble Baroness. I happen to think that one of the things with which we got close to this, mentioned by the noble Baroness, Lady Hamwee, was the Modern Slavery Act. It is without doubt the piece of legislation in either place with which I am most proud to be associated. One reason why was because of the process in which it actually engaged. It listened to the people who were on the ground, it talked to people, it talked to the experts, it framed legislation, it had pre-legislative scrutiny and there was an ongoing system of monitoring. Also, the Government committed themselves to proper post-legislative scrutiny; we will need to look at that. Should your Lordships and Parliament determine that the Bill gets on to the statute book, in our plans, although there is no set time for it, in a period of three to five years and certainly within the lifetime of this Parliament there will be some post-legislative scrutiny.
The other point which I make in passing here is that, if our friends in the Republic of Ireland were to undertake an impact assessment of our politicking to tackle this, it might not look so sharp. They would say, “Well, what has the UK been doing popping around with temporary banning orders, and every time they tweak one molecule the perpetrators and the traffickers simply change the packaging and change the molecule? What a ridiculous system that is”. In a sense it can go both ways and we must be conscious of that critique of us.
Lord Bates
I am very happy to do that. We are in Committee and this is where the Government listen to the arguments—
Lord Howarth of Newport
Should the Irish Government take post-legislative scrutiny of their legislation, will the Minister take that into account?
Lord Bates
Of course we will take it into account, but should we necessarily stop taking our own advice and implement what has been recommended to us until that time happens? Of course this is a fast-moving world in which there are very devious forces—“ingenious forces” is the correct term—using their dark methods to perpetrate these drugs, which are blighting the lives of communities. That was a key message that came out of the “Newsnight” documentary. Here was a community that was absolutely blighted. Unless I actually misread the transcript that I saw, the people there certainly were not saying, “Hey, listen, let us just have a free-for-all”. They were saying, “Where are the Gardai? Where are the police? We want them to come down, because these drugs are running rife in our community”.
Of course, there will always be chancers—we will come up with one answer to this, then people will come up with something in response, whether it is on the dark web or elsewhere. One of the wonderful things about this House is that the noble Baroness, Lady Meacher, who is an acknowledged expert in drug policy, mentioned the dark web, while behind her sits the noble Baroness, Lady Lane-Fox, who can offer her a tutorial on the dark web if required. The point is that we are all moving in the same direction.
I am conscious of the figures that have been put out in the Eurobarometer poll, which talked about the level of usage. This figure should be viewed with caution, because: the sample for each member state is relatively low, at 500 respondents; the questions used have changed over the years, making comparisons over time less reliable; and the Eurobarometer survey tends to overestimate usage when compared to more robust surveys.
As I touched upon earlier, we can say categorically that prior to the introduction of the Irish legislation in 2010, 102 head shops were operating in Ireland. After the legislation came into force, the trade virtually disappeared, and the Garda drugs unit told the BBC just last week that the head-shop trade has gone. Furthermore, no Irish-domain web pages selling NPS are still in operation. Those are examples of concrete progress. They may not address all the points, but I hope that they might demonstrate to the noble Baroness that the Government have considered this.
Lord Mackay of Clashfern
My Lords, I just wonder whether it would be for the Secretary of State to monitor this. I would have thought that the importance of this topic, particularly in the light of the concerns that the noble Baroness has expressed, would merit post-legislative scrutiny by a committee—usually a Joint Committee of both Houses—rather than by the Secretary of State. There is room for that sort of consideration to be kept in mind. I think that the Minister has given at least some encouragement to that and I certainly think that that would be a good thing to do, rather than have the Secretary of State in a sense being his own monitor in this area. It is better that it should be independent, in the sense of being done by Parliament.
Lord Howarth of Newport
My Lords, I suggest that post-legislative scrutiny would be assisted if the Home Secretary, on behalf of the Government as a whole, were to make an annual report to Parliament along the lines that the noble Baroness, Lady Meacher, has suggested. I propose that an annual report from the Government as a whole should cover the three principal strands in the drug strategy introduced by the coalition Government in 2010: reducing demand, restricting supply and building recovery.
I hope that the annual report would begin with a presentation of the facts, in so far as they had been ascertained by the Government, and that it would cover developments in the usage of drugs of all sorts: controlled drugs, psychoactive substances under the terms of the Bill, exempted substances under the terms of the Bill, and prescription drugs of which there is abuse. I would also want to see a breakdown by age groups and by regions. We need to know about consumption patterns—whether the consumption of one drug is being displaced by consumption of another; what new drugs are available to consumers in this country; what the most popular ones are, and the ones about which there is the greatest cause for anxiety. We need to know about developments in purity, potency and toxicity.
I hope that the Government would advise Parliament on the development of markets in drugs and tell us what us has happened to the head shops, year by year. Maybe they will all close down quickly, as in Ireland. If so, I hope that the Government would then tell us where people are finding their drugs—perhaps from online sources such as the surface web, but perhaps from the grey net or the dark net. All this is usefully discussed in a preliminary way in the latest annual report from the European monitoring centre. But 18 months ago, the European monitoring centre reported that there were 651 websites selling drugs to Europeans. We need to know what the evolution of this online market is and about the shifting locations. The noble Lord, Lord Bates, told us just now that, following the legislation in Ireland, Irish web-based domains were closed down. But we know that at the same time the consumption of new psychoactive substances has risen in Ireland. Where, then, are Irish consumers obtaining their drugs? We would need to have that equivalent information here. We need to know about patterns of social media use relevant to the drugs trade and what is happening in terms of street markets and gangs.
I hope also that the Home Office would report to Parliament on the drugs situation in prisons, which is an extremely disturbing situation, one understands. Which drugs are most in use in prisons? How have they been obtained? The Home Office should report on any issues there may be about corruption in the National Offender Management Service; on the effectiveness, as it believes it to be, of the means it is using to try to reduce drug consumption in prisons; and on the effectiveness of rehabilitation. Very importantly, the Home Office needs to report on the question of continuity. What happens to prisoners when they leave prison? Do they continue to have the benefit of rehabilitation services? What is the relapse rate? The noble Lord, Lord Ramsbotham, told this House, perhaps a couple of years ago, that the Chief Inspector of Prisons had reported that in Her Majesty’s Prison Oakwood it was easier to obtain drugs than soap. We need to know what progress the Home Office and the Government as a whole are making with regard to prisons.
We should be advised on the Government’s dealings with the Advisory Council on the Misuse of Drugs—what advice they have sought from the council, what advice they have received from the council, what advice they have accepted from the council and what advice they have rejected from the council. In the case of rejection of the council’s advice, I hope that the Government would offer a reasoned explanation as to why they have declined to accept the advice that the ACMD has given—as has occurred on a number of occasions in recent years.
We should be told what drugs have been newly controlled under the Misuse of Drugs Act regime and about how, in practice, the relationship between the various relevant regimes—the MDA regime and the regime created under this legislation in respect of psychoactive substances and exempted substances—relate to each other, and whether it is effective co-ordination or the Government see problems in having at least three different systems of regulation operating concurrently. I hope that we would hear about the dealings of the Government with other consultees and partners: people with academic expertise, the voluntary sector, non-governmental organisations and other expert organisations.
We should be provided with information about the state of forensic services, about which the Home Secretary has recently expressed her own personal anxiety. We will come a little later in our proceedings to talk about the possibility of a network of testing centres. Do the Government think that that is desirable? If so, what progress is there in making testing facilities widely available around the country? We will need a report on progress in education and training, but, again, we will have an opportunity to discuss those issues more extensively a little later.
I hope that we would hear about the impact of drug usage of all kinds—controlled drugs, psychoactive substances and the exempted substances—on health, society and the economy. The European monitoring centre has particularly asked the Government to monitor acute drug-related harms. Again, I would expect to see their response to the EMC reflected in the report. Of course we would want to know about the progress of treatment and engagement strategies with different groups of consumers or people at risk.
We should hear a report on enforcement and the strategies of the NCA, the police and Her Majesty’s Revenue & Customs. If the online trade is thriving, and if that is becoming the principal source of supply, we should be advised what percentage of postal packages, for example, the system is able to check for drugs. We should also know what percentage of shipping containers the Government are able to inspect.
Surveillance will be another important component of the report. What powers are the Government using to ascertain what is going on in the drugs trade, particularly the online trade? We need to know the statistics on the usage of data-search powers and have an assessment of their effectiveness. Perhaps a little later, the Minister will give us some preliminary thoughts on how the enforcement regime that the Government are proposing to create through this legislation will relate to the new surveillance regime, which we understand the Home Office will introduce later in the year. Undoubtedly, these things will need to be understood in conjunction.
The Bill creates powers of prohibition notices and prohibition orders, and we would want to hear about the incidence and effectiveness of the use of those powers. We would want to know the number of seizures and successes, but also about the challenges that the Government identify. The new stop-and-search powers created in the Bill are another appropriate subject for report and we will debate those towards the end of Committee.
We would need to hear about the Government’s progress in dealing with the problems of money laundering and the extent to which the proceeds of the drugs trade are thought to be funding terrorism. We will need to know about the costs of enforcing this regime—not just to the NCA, the police and HMRC but to the Financial Conduct Authority, which I think has lead responsibility for dealing with money laundering; the criminal justice system, which, for example, will incur costs in hearings in the attempt to establish definitions of psychoactive substances; and the Foreign and Commonwealth Office. At Second Reading, the Minister was kind enough to say that he would follow up the point I made previously, that when mephedrone was banned, the Government did seek to come to an understanding with the Chinese authorities so that they would facilitate the effective interdiction of supply. However, it appears that that did not work very well because production shifted to India. We will want to know what part the Foreign Office is playing in assisting the Home Office to make a success of its strategy.
The local government dimension is hugely important. The Minister has explained that the Government are acting in response to pleas from the Local Government Association, and we all understand how very unpleasant and difficult it is for people if they have head shops in their neighbourhoods and the anti-social behaviour that may be associated with that. But there will be costs for local government in training and maintaining in the field the numbers of trading standards officers that are going to be needed and, I dare say, in prevention, more youth workers. Again, it would be useful to know what is going on there. The Department of Health will have a whole complex story to tell.
I think that the Government would owe it to Parliament to provide in the annual report a cost-benefit analysis of the overall strategy: have they found, with experience, that the policy is working as they hoped? How does it need modification? What do they see as the way forward?
I acknowledge that all this may make for quite a long report, but I think that it would be very interesting and worthwhile and a very useful form of accountability of government to Parliament.
Lord Howarth of Newport
I am not sure whether it is fair to ask the Minister this, but perhaps her noble friend sitting beside her will find an opportunity to comment. While I readily accept that it is unrealistic to expect the Home Office within 12 months to produce a report remotely of the range that I suggested, none the less over time the compass of the report should grow so that it does address itself on behalf of the Government as a whole to that range of issues and concerns.
I wonder whether some of the difficulty that the Government may find in producing an annual report on their policies in relation to drugs and how they are proceeding may be because there have been such extensive reductions in staffing in Whitehall that it is very difficult for departments to get this work done. It would be helpful to have some comment on that and on the structure within government whereby the Home Office works in co-ordination with other government departments in the broader strategy to deal with the problem of drugs, to which I understand that Government are committed.
Baroness Chisholm of Owlpen
I thank the noble Lord. I have a lot of sympathy for what he said, and I think that it is right for us to go away and reflect on this and come back at Report. Of course, the Home Office has every intention of reviewing the Bill once it is implemented. We just do not feel we should put such a commitment in primary legislation. It is in our interests to consider the impact of this Bill and how the psychoactive substance market is changing to ensure that both our legislative and non-legislative responses are as effective as possible. Having said that, of course we will go away and think further on this.
Lord Howarth of Newport
My Lords, the definition of a psychoactive substance in the Bill does indeed seem to me rather vague. We should be grateful to both noble Baronesses who have so far spoken in this debate for pressing the Government to tighten the definition and to give us some clarification. It would be helpful if the Minister would explain to the House the basis upon which he was able to give us an assurance—I thought he gave it rather tentatively and with less than full confidence—at Second Reading, that if he were to send a bouquet of flowers for the gratification of Lady Bates, he would not be in breach of the law. I see that it is suggested that incense might be caught under the law. How can he be sure that all kinds of substances and activities that, on a common-sense view, people would regard as innocent may not in fact be caught?
I would also like clarification—if this is not leaping ahead too far—as to what is, in Schedule 1, a traditional herbal remedy. The term is terribly loose. I fancy that it is going to be quite difficult for police officers or courts to be very clear what the term “traditional” in a legally binding context means. How in practice does he foresee psychoactive substances are going to be identified? Will there have to be tests in court? That would seem to be expensive and disproportionate. Will there have to be a large number of placebo-based comparative scientific trials? Again, that would seem expensive, disproportionate and impractical. I think he owes it to us to clarify a little further than the drafting of the Bill does what he means by psychoactive substance.
Lord Blencathra
My Lords, I would be interested in hearing the Minister’s response to the noble Baroness, Lady Meacher. She seems to have a fairly good point—to me as an amateur anyway.
I wish to make my remarks mainly about Amendment 9. This may be heretical to noble and learned Lords and parliamentary draftsmen, but why can we not have the Government’s definition and the definition in Amendment 9? Definitions are going to be the big problem with this Bill—everybody recognises that—and I see no merit in brevity of definition if it makes for confusion. On the other hand, we do not want it to be tautological and we do not want too big a definition which is contradictory. I am sure that noble and learned Lords and parliamentary draftsmen will ensure that that does not happen. I ask the Minister to keep an open mind on this and be relaxed about extending the definition or picking up bits of Amendment 9 if it helps to bring more clarity, irrespective of the length of the definition.
Lord Howarth of Newport
The noble Baroness explained that she was a chocolate addict. However, chocolate is exempted in Schedule 1 and she need not have worried. I am worried that Lady Bates is not going to have the pleasure of floral tributes from her husband.
Lord Bates
I will send her chocolates.
I can assure noble Lords that we are dealing here with the trade in new psychoactive substances. In looking at the workings of the Bill it is necessary to consider the definition of a psychoactive substance alongside the elements of the offences in Clauses 4 to 8, which we will come to shortly. It is not correct to equate the effect of a scent wafting through the air with the direct inhalation of fumes, such as from a solvent, and the offences apply only where a substance is likely to be consumed for its psychoactive effect. We may all appreciate the sight and smell of a fine bouquet of flowers, but we are not consuming the flowers or their scent for their psychoactive effect.
The noble Baroness asked whether the reference to “allows” in Clause 2(3) goes further than the recklessness test in the offence clauses. The noble Baroness is, I fear, seeking to compare apples and pears. In Clause 2 we are not dealing with the mental elements of criminal offences. The phraseology in Clause 2 is designed for a wholly separate purpose compared with that used to determine the mens rea of the various offences, so the question whether “allows” is a higher or lower test than recklessness does not arise.
I shall respond to the point made by the noble Lord, Lord Rosser. The ban will come into effect as soon as the Bill is brought into force. What we are debating here is the quality of evidence required to pursue a successful prosecution. As I have said, we have asked the Advisory Council on the Misuse of Drugs to provide advice on how we can strengthen our forensic capacity to this end. It goes without saying, therefore—given that we are consulting widely on this— that the opinions and views of your Lordships’ House will also be helpful at arriving at that definition of minimal harm.
Psychoactive Substances Bill [HL]
Lord Howarth of Newport Excerpts(10 years, 7 months ago)
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“Guidance
The Secretary of State must issue guidance, before this Act comes into force and regularly updated thereafter, as to how users, enforcement authorities and others can identify individual psychoactive substances, the degree of the psychoactivity, their safe uses and their relative harms.”
Lord Howarth of Newport (Lab)
My Lords, the new clause proposed in Amendment 11 follows very closely on the debate which we held just before the dinner break. In their proposals in this Bill the Government are setting a very complex and difficult task for police officers, customs officers and others. The definition of a psychoactive substance is quite deliberately broad and, some would say, vague. Powders and pills look much alike and the question is, how is an officer to know, first, if a substance is indeed a psychoactive one and, secondly, what is in the mind of the person in possession of that substance? How are they to determine the intention? That is essential in the establishment of whether or not a criminal offence is being committed. I would also be grateful if the Minister told us whether he envisages that there will be a de minimis level of psychoactivity and below that level, enforcement officers will not be worrying and will not seek to enforce the regime that the Bill creates. Or, are the Government saying that any substance which is at any level psychoactive is to be controlled, in the sense that this particular legislation will control it?
As we have also acknowledged in earlier debates, there is a shortage of forensic facilities in this country. That is why the Home Secretary belatedly, just before the Bill was tabled in Parliament, wrote to the Advisory Council on the Misuse of Drugs to ask,
“how best we can establish a comprehensive scientific approach for determining psychoactivity for evidential purposes”.
That suggests that the Home Secretary is rushing into enacting legislation before she has any clear idea as to how it would work. What we know is that significant additional burdens will be laid upon police whose numbers and resources have been diminishing and may well continue to do so. These measures, as the noble Baroness, Lady Meacher, has already put to the House, may further inhibit research in important respects and create multiple new possibilities for the criminalisation of people who are in some way involved with new psychoactive substances.
I propose that the Government owe it to consumers, businesses, research institutions and those responsible for enforcement to explain exactly what they intend, and to advise them all on how this legislation would work. The Minister kindly undertook to write to us, the Peers who have been involved in consideration of this Bill, between Committee and Report. I suggest that in due course the Government should write to a much wider range of readers—people who will have responsibilities created under this legislation, who will need to understand the definition of and the practicalities of identifying a psychoactive substance, and what is in the minds of people they apprehend who may be contemplating purposes that the Government wish to discourage and would make a criminal offence. That is the burden of the new clause proposed in Amendment 11. The Secretary of State must issue guidance before this Bill comes into force and keep it regularly updated thereafter as to how users, enforcement authorities and others can identify individual psychoactive substances, the degree of their psychoactivity, their safe uses and their relative harms.
I now move to the new clause proposed in Amendment 12, in the same group. If people are to look after themselves and others—their children, friends and people whose interests they care about—they are going to need full and reliable information about psychoactive substances. We have heard much about how the internet can be a force for bad, but it can also be a force for good in its ability to disseminate information that may be extremely valuable and helpful in enabling people’s safety to be preserved. It is the Government’s responsibility to use the means at their disposal to provide the fullest information they can. The previous Government, I think, relaunched the FRANK website, the earlier version of which was considerably criticised, but I praise them for doing this because it is a genuine effort to provide fairly full and certainly honest information about psychoactive substances.
The difficulty about the Talk to FRANK website is that its official provenance and rather starchy tone mean that it will not be the go-to website for young people who want to find out about drugs. While it is important that the Government maintain a website of this kind and amplify the information that it provides, they should recognise that the work they do in preparing and maintaining such a website is complementary to other, unofficial sites that are created and maintained by experienced people, whose motive is good, because they want to share information about the realities of psychoactive substances and protect people from coming to harm by their use of such substances. I have in mind websites created by organisations such as DrugScope, Bluelight, Urban75, SafeOrScam and PillReports, which are examples of some of the websites to which people can go to learn about psychoactive substances. Those websites are maintained with very good intentions with regard to the public good—public safety and health—and I therefore hope that the Government see their work as complementary.
At all events, we need to capture as much evidence as we can about the substances, so that we better understand the harms we are trying to prevent, the ills we need to cure and the effectiveness of the measures taken to prevent people coming to harm, and to remedy— so far as is possible—the harms that people experience. We should learn as much as we can from collaboration with other countries; the European Monitoring Centre for Drugs and Drug Addiction is an excellent model of international information sharing and co-operation. However, we cannot expect the people of this country habitually to turn to the website of the EMCDDA; they need to have something that is designed for them, and more appropriate and accessible for them.
My second proposal, in subsection (b) of the proposed new clause in Amendment 12, is that the Secretary of State should provide,
“a network of testing centres, readily accessible at no charge to users and others, at which they can be informed about the identity, composition, toxicity and potential harms to human health of any substances brought in by them which there is reason to think may be psychoactive”.
As I understand it, that service is available in the Netherlands. It appears that they have a fuller range of forensic resources and facilities for the identification and testing of substances, and that access to those facilities is freely available to the public at large as well as to officials and enforcement authorities. We should seek to construct such a model in this country, not least because an early alert to a bad consignment of drugs, which is very dangerous, could save lives. I beg to move.
Baroness Meacher (CB)
My Lords, I support the noble Lord, Lord Howarth, on both those amendments. We talked a lot about legislation earlier on today, but we know, both internationally and from the Home Affairs Select Committee and others, that legislation does not make very much difference at all to the key issues relating to drugs, whether traditional drugs or new psychoactive substances. The important job the Government have concerns information. I have said it before and will say it again: young people do not want to kill themselves, believe it or not, and they do not even want to harm themselves and finish up in hospital. Why do they kill themselves and finish up in hospital? Because they do not have the information they need to keep themselves safe. Why do they not have the information? Because far too many substances are banned in a rather simplistic way. Countries such as the Netherlands, which have coffee shops where people can get cannabis, have very little problem with heroin, for example. There are other ways of keeping people safe. But the most important way, as the noble Lord, Lord Howarth, says, is information. I agree with his ideas about how this should be done—it cannot be typical government information. It really is important. If we stopped focusing on legislation quite so much and focused on some of these other issues, we might actually make some progress.
I want also to support the noble Lord, Lord Howarth, in relation to the testing centres. Testing centres would be a very important adjunct if we were to have a more proportionate system where low-harm substances would be regulated, labelled and so on, as recommended by the European Commission and approved by the European Parliament. If we had a proportionate system like that, and had testing centres, a young person could go into a testing centre and ask whether a substance was low harm and okay to take. With a combination of a proportionate legal system, testing centres and really good information, we would begin to have a really good drugs policy. Would that not be wonderful? We could lead the world with such a policy.
Many Latin American countries talk about these things. They know just how bad the war on drugs can be. They know just how important it is for the demand end of the drugs market to be managed effectively in order to save them from tens of thousands of deaths a year, corruption, government failure and all the rest of it. It is absolutely disastrous across the Atlantic. In my view, we have a responsibility to ourselves and our young people but also to Latin America and central American countries.
I very strongly support what the noble Lord, Lord Howarth, said. I really hope that Ministers will take it very seriously and somehow link it with a proportionate, rational system of drug control.
Baroness Chisholm of Owlpen
I thank my noble friend Lord Norton for that. That is probably covered by FRANK, which is an element of our broad approach to prevention. We are investing in a range of programmes that have a positive impact on young people and adults, giving them the confidence, resilience and risk-management skills to resist drug use. It has been a valuable resource for young people, parents and teachers, especially when used for wider resilience-building and behaviour change. It continues to be updated to reflect new and emerging patterns of drug use and to evolve to remain in line with young people’s media habits and to strengthen advice and support. Since its launch it has been visited by more than 35 million people, and millions have called the helpline to speak to specially trained advisers.
I hope that explanation has gone at least some way to satisfying the noble Lord, Lord Howarth, and that on that basis he will be content to withdraw his amendment.
Lord Howarth of Newport
My Lords, I am grateful to the noble Baroness, Lady Meacher, the noble Lords, Lord Paddick and Lord Norton, and particularly my noble friend Lord Tunnicliffe on the Front Bench. He saw some merit in what I said. This illustrates the virtue of the Committee process. The dialectic helps us all to learn. My noble friend Lady Meacher was right to say that information is at the very least as important as legislation, because we have all this evidence that prohibition has not worked. In that case, it is much better that people should be helped to understand what they do.
The noble Lord, Lord Paddick, was concerned that my recommendation of a network of testing centres would lay impossible demands on the existing resources of laboratories and forensic facilities. Of course, he is right: with our existing resources we could not possibly construct such a network that would be accessible in all regions of the country. My proposition is that we should aim to achieve that. We know that this legislation will in any case require an expansion of forensic facilities. It seems to me that you can achieve both purposes simultaneously: to enable those whose responsibility it is to enforce the law to have speedy access to the information they need, but to also assist vulnerable consumers. I am grateful to the noble Lord, Lord Norton, for his endorsement of the value and importance of providing reliable, trustworthy and up-to-date information to all concerned.
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.
“Education
(1) The Secretary of State shall require that all children of secondary school age receive education designed to teach them about the realities of psychoactive substances (whether controlled or otherwise) and develop them as persons who are informed, risk-aware, resilient and responsible in relation to psychoactive substances.
(2) Ofsted and equivalent agencies in Scotland, Wales and Northern Ireland shall, in the course of their normal inspections of secondary schools of all kinds, inspect the performance of individual schools in drug education and include their findings on this in the reports which they issue on those schools.
(3) Ofsted and equivalent agencies in Scotland, Wales and Northern Ireland shall publish an annual report on the state of drug education in schools in each nation of the UK, together with recommendations.
(4) The Secretary of State shall monitor the programmes and resources available to schools to support their teaching about psychoactive substances of all sorts (including both controlled and exempted substances).”
Lord Howarth of Newport
I apologise that the Committee has to put up with an inordinate amount of talk from me, but I will be as brief as I can on what is a subject of major importance: how we strengthen education in relation to drugs. In introducing this proposed new clause, I congratulate my noble friends on the Front Bench on their excellent new clause set out in Amendment 104, which is grouped with this one.
The coalition’s strategy as enunciated in 2010 included reducing demand, and in that, education is or should be key. I would like to see the Secretaries of State for the Home Office, for Education, for BIS and for Health jointly reporting as proposed in the new clause set out in Amendment 104. My noble friends have called for an annual report on the subject of education, but it should be one that emanates from the Government as a whole, and particularly those departments.
The situation as it stands is that schools are required to provide drug education programmes and information about drugs in the science national curriculum. But not all schools, indeed a diminishing number, are required to deliver the national curriculum, and even in those that are, the evidence is that this fairly minimal requirement does not prove to be particularly effective in educating people about the realities of drugs. After much anguished debate, the last Government decided that PSHE should be a non-statutory subject in the national curriculum. It is fair to say that the last Government provided funding for early intervention to support children at risk, and I assume that the troubled families programme has something to offer in this connection.
I have read that the Government are spending some £7 million annually on drug education as a whole. On the other hand, the Minister of State at the Home Office, Mike Penning, told the House of Commons in a Written Answer on 2 June that the total spend on education and prevention campaigns in relation to new psychoactive substances from 2013 to 2015 had been only £180,556. That seems extraordinarily little. It would be helpful if the Minister provided the House with correct figures so that we know what the Government are spending on various aspects of drug education. Whatever it is, however, I would contend that it is inadequate.
The Home Affairs Select Committee of the House of Commons, in its 2012 report Breaking the Cycle, was scathing about the efforts being made at that time by the Government to promote education about drugs. It quoted the charity Mentor, which complained angrily:
“We are spending the vast majority of the money we do spend on drug education on programmes that don’t work”.
The committee found that most schools provide drug education once a year or less. I have no doubt that there are schools that do very well, but the Home Affairs Select Committee was talking about the generality of schools. It reported that the Department for Education, with, one might say, a shrug of its institutional shoulders, had said that it does not monitor the programmes and resources that schools use to support their teaching. That is why, in subsection (4) of new Clause 13, I have proposed that the Secretary of State,
“shall monitor the programmes and resources available to schools to support their teaching”.
It seems to me a dreadful dereliction of responsibility if that is not happening.
Education strategy in the fight against drugs must be transformed. When the public health campaign about tobacco got serious, it worked. The Secretary of State must insist that all secondary schools take seriously their responsibility to educate children about drugs. It may well be argued—and it may well be right—that education should start before children reach the secondary level; certainly it should apply in every secondary school.
Effective techniques exist to teach young people resilience and the capacity to make their own considered decisions. As the noble Baroness, Lady Meacher, said, we must act on the demand at that point—legislation is not going to do it on its own. We must bring about a society in which fewer people want to use these substances. The way to make a very good start on that is to get serious about education.
I have made specific proposals about the role of Ofsted and the equivalent agencies in Scotland, Wales and Northern Ireland. School inspections should routinely examine what is happening with drug education in schools, and Ofsted’s findings should go into its reports on each school. Ofsted should also publish an annual report on the state of drug education in schools in each nation of the United Kingdom and make recommendations about necessary improvements. That way, not only would the message get out to all schools but all schools would be invigilated and monitored on the way they acquit themselves of this responsibility.
More broadly, it is not just specific drug education that matters: it is the quality of education overall. The propensity to use drugs correlates with poor educational standards and is found more widely in communities where, as things stand, the standard of education offered in local schools is not what we would wish. Deficient education is among the pathologies that incubate drug abuse. It is a broader question.
The same vigour needs to be brought to the approach in further and higher education. The funding councils should make it a condition of publicly provided support for the universities that they demonstrate that they have programmes to help people understand the realities of drugs and that they report on what they are doing every year. Universities UK ought to promote best practice, not only in relation to new psychoactive substances but to prescription drugs that are being widely misused by students in universities, as I have mentioned before.
Drug users of all ages need help to become properly informed, properly risk aware and properly capable of taking their own sensible, responsible decisions. I hope that the Minister, in responding, will also tell us how his department, which has lead responsibility in government, plans to work with other government departments, particularly with the Department for Education, and to ensure that we have a coherent strategy that tackles this problem at the roots and does not simply try to patch things up when they have gone wrong. I beg to move.
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.
Lord Howarth of Newport
My Lords, when the Minister takes part in the Lord Speaker’s outreach programme, does he wear a suit?
Lord Bates
That is mandatory, is it not, at least for the male Members? I would certainly not dream of turning up in our ceremonial gowns. They would probably think it was Christmas and misunderstand what was coming.
Education is not just for teachers and it is for all of us, including the media, to ensure positive role models. As a parent and grandparent, I think children often respond best to very clear messages. Ambiguous messages which say, “This might be okay or it might not—take it along to a testing station”, or “This might be against the law or it could be legal”, spread confusion which is unhelpful to pupils and teachers.
Drug education is part of the national curriculum for science at key stages 2 and 3. My noble friend Lord Norton of Louth said that if we made this a key performance indicator then schools would start taking in seriously. It is already, in a way, because to be judged outstanding by Ofsted you must be able to demonstrate with great clarity that pupils are safe and feel safe at all times and that they understand how to keep themselves and others safe in different situations and settings. We need to explore further whether inspectors follow that in every school but the bones of what is necessary are there.
We have had some excellent contributions and discussions. As I flagged up earlier, we have a further meeting on 7 July. We have invited Public Health England to be represented at that, as well as the Department for Education. That will be a useful opportunity to explore these issues.
Lord Bates
I understand where the noble Lord is coming from, and we will look at this. The Bill is primarily a law enforcement measure, setting out definitions et cetera, although it is part of a wider context that includes education. As to whether we should have references to education or treatment programmes in the Bill, I personally favour things that are very clear and focused about what they want to do. What we hope to achieve through education is a very important part of the context. I undertake to reflect on that between now and Report.
Lord Howarth of Newport
My Lords, the debate produced a very beautiful meeting of minds between the noble Baroness, Lady Meacher, and the noble Lord, Lord Blencathra, which once again demonstrates the supreme value of Committee proceedings in your Lordships’ House. I am extremely grateful to all noble Lords who have spoken, all of whom have emphasised the fundamental importance of education and the critical need to get it right.
I agree with the noble Lord, Lord Blencathra, that children do not take kindly to being preached at. I was suggesting not that they should be preached at but that they should be taught, with real professional skill. I would certainly envisage that appropriate role models—the kind of people who can talk to young people in their own language and whom young people will be able to identify imaginatively with—are of course the sorts of people who will be able to play a very valuable part, if schools have the imagination and skill to find them and bring them into the schools programme.
However, there have to be more systematic pressures on schools. I very much agreed with the noble Lord, Lord Norton, when he said that having performance in respect of drug education forming part of the data that go to establish league tables will give a salutary shock to quite a number of schools. The noble Lord, Lord Bates, suggested that that is almost the case, and I drew some encouragement from the quotation that he gave us about the requirements of Ofsted. Yet I have a sense that the prevailing culture in our schools is such that they are not taking that point from Ofsted sufficiently seriously, and if they fail to perform in this regard they may not be able to qualify to be rated “outstanding”. I am not sure that enough of them know about it or that enough of them are being seen to act on it.
The noble Lord, Lord Kirkwood, made the point with which I so much agree: that the funding so far provided for the system is—I do not think this was his word—derisory. That is sending a signal from government that this is a second or third-order issue. I know that the Minister does not think it is at all but I hope he will reflect on how he can, tactfully as always, bring more effective pressure to bear on his ministerial colleagues in the Department for Education. He undertook that he would talk to them. I also understand that it is very difficult for them to persuade the system as a whole that it has got to take on yet another task in a new way. There are endless pressures on schools. New Ministers and officials are for ever coming up with new policies and asking the people on the front line to implement their bright ideas. I understand all those difficulties, but having acknowledged that, we have all recognised and are all fully persuaded that we have got to do better on education and that that is going to be fundamental to the success of the overall strategy.
I am glad that my noble friend Lord Rosser drew attention to a significant section in the report of the expert panel which should give strength to the Minister’s elbow. I was grateful for the remarks from the noble Baroness, Lady Hamwee, who survived her education, which is something that everybody has to do. I was grateful to the Minister for a series of thoughtful and helpful points. Of course he is right that the term “legal highs” has been profoundly unhelpful, and I have every sympathy with the Government in their creation of an aggravated offence of supplying psychoactive substances in proximity to schools. I think there is an amendment which adds other institutions where children may be present.
If the Minister would be kind enough to write to us clarifying the figures—what is being spent on what, on public account in this field—that would be very helpful. I was also much encouraged by what he said about wanting young people themselves to be involved in the debate, as it were owning the issue and the problem and to help us all to find better ways to deal with it. I look forward to returning to this broad issue at Report and in the mean time beg leave to withdraw the amendment.
Lord Howarth of Newport
My Lords, I want to speak to Amendments 17 and 18, which I have tabled rather impertinently as amendments to Amendment 16 in the name of the noble Baroness, Lady Meacher. Here I think that the substantial measure of agreement and meeting of minds that we had in the previous debate on education will rapidly dissipate.
I remind the Committee that it is my belief that prohibition has broadly failed and that it is because of that failure that we have the problem of new psychoactive substances. I believe that our objectives should be to protect people, particularly young people but people of all ages, from the dangers of drugs and to minimise the harms that they may cause. In nothing I say do I mean to imply that I would encourage the consumption of drugs—we are looking for the least bad solution to a very intractable and very important problem. My proposal is therefore pragmatic, but I believe that the least bad way to go is selectively and cautiously to legalise certain drugs and very strictly to regulate their availability.
The purveyors of psychoactive substances, after all, seek to create and distribute substances that mimic the effect of controlled drugs, and they do so quite unscrupulously. They do not mind how corrupt, how adulterated, how toxic and how dangerous those substances are, and that is the problem that we are up against. It seems to me therefore that it would be more prudent and more responsible, rather than to have a blanket prohibition or ban, to make legally available one substance in each of the three principal classes of drugs. The first would be a stimulant—it might be MDMA, better known as ecstasy. The second would be a depressant, which might be cannabis—the noble Baroness, Lady Meacher, spoke of the significance of the ratio of THC to CBD within any individual variety of cannabis. If you have no THC, you have no “high”, as I understand it, so I guess that there would have to be some element of THC if people were to use the drug. We would seek to provide a version of cannabis that was the safest kind—that does the trick in the sense of making people feel that this is the substance that gives them the experience that they are looking for. Thirdly, there should be a hallucinogen: perhaps magic mushrooms or mescaline. In all those cases, I propose that we legalise and regulate drugs that are of relatively low risk, of which society has long experience, and which in many societies have become socialised and in their use normalised.
The Minister was quite quickly dismissive of the experiment that has been initiated in New Zealand. It is perfectly true that the expert committee, having carefully considered the policy adopted in New Zealand, decided it could not recommend it, and that the policy has run into a number of practical difficulties there. But essentially the New Zealand approach was to find a way, very carefully and selectively, to legalise the use of drugs that have been demonstrated to be of low risk, and I do not actually think that the story of the New Zealand experiment has yet reached an end.
At all events, I emphasise that there would have to be strict regulation and quality control and that these drugs should be introduced only in circumstances of the best security that we can provide to their users. There should be regulation of their composition and their strength; there should be control over how they are transported; manufacturing should be licensed and strictly regulated, as should retailing; there should be no sales to children; I believe that no advertising should be permitted; marketing would certainly have to be very strictly regulated; and so forth. That is the type of regime that we already operate in our society. That is how we deal with alcohol and tobacco—two drugs, as the noble Baroness said, which are, by any reasonable standard of judgment, more dangerous than cannabis—and with medicines. So there are already models. There is already a basis of selective legalisation and regulation on which we can build—and, no doubt, which needs to be improved.
The availability of these drugs should be accompanied by advice as to their safe use, exactly as happens when you collect a prescription for medicine; there should be full information. Of course, as we have already argued, this all needs to be set in a context of education, to help people to make mature and wise decisions.
The Lord Bishop of Bristol
I just wanted some clarification. One thing that worries me is whether, in the end, the direction of Amendment 18 will not prove to be a bit confusing. I think it was John Maxwell who said that when people say, “Yes, but”, nobody ever hears the “Yes”. If you say, “No, but”, does anybody hear the “No”?
Lord Howarth of Newport
I hope that I can offer some reassurance to the right reverend Prelate, if he will follow me in the argument that I want briefly to unfold. Let me continue by noting that there would be the advantage, as with alcohol and tobacco, that the Government could tax these substances and use the lever of taxation to influence the preferences of consumers and their behaviour. Of course, the Exchequer would benefit, and I know the great importance that the Minister and, indeed, all of us attach to the reduction of the deficit. A new source of taxation would be not unwelcome, I think, to the Exchequer. What I am recommending is, in effect, a market solution, a kind of reverse Gresham’s law. I believe that relatively good drugs would drive out bad drugs. It works in the Netherlands, where safer varieties of cannabis are made available in licensed shops and there is no demand in that country for the synthetic cannabinoids that are so fashionable and so popular in this country—and so very dangerous to their users.
Of course, there will always be people who are inveterate and irremediable risk-takers, and young people will always be tempted to challenge authority. But I suspect that most consumers would be very happy if they knew that they could obtain legally a psychoactive substance that they could be assured was relatively safe. After all, that has been the attraction—albeit the illusory and deceptive attraction—of so-called legal highs. Why would people go to dodgy dealers to buy white powders about which they knew nothing if they had a safer and legal alternative available to them? There may be a fear that the legal availability of certain drugs would lead to an increase in consumption; but I mentioned in an earlier debate the report by Dr Deborah Hasin of the Department of Epidemiology at Columbia University in New York, in which she found that there is no correlation between the availability of medicinal cannabis and increased consumption by teenagers. Public opinion has allowed the state governments of Colorado, Washington, Oregon and the District of Columbia to legalise and regulate cannabis. The same process has happened although with a very different model in Uruguay. This is a less dangerous approach than the prohibitionist approach, which we have had nearly 50 years of experience to demonstrate does not work. What I am putting forward is by no means perfect, but I believe it would be safer and better than the kind of anarchy that, paradoxically, prohibition creates. I would be grateful if the Minister would, if he does not agree with me, explain why he does not agree with me.
Drugs: Cannabis
Lord Howarth of Newport Excerpts(10 years, 8 months ago)
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Lord Bates
My noble friend and other noble Lords are experts in the medical world, and I am realising very quickly that the problem is that there are many different types of medical research and science, some bits of which are contradictory. For example, the Institute of Psychiatry and Cancer Research have taken a different view on this. That is why we need to have a process which clearly and openly evaluates the introduction of these drugs, primarily to ensure that people are kept safe.
Lord Howarth of Newport (Lab)
My Lords, in continuing to list cannabis in Schedule 1, on the basis that it is a drug of extremely limited medicinal value, are the Government not flying in the face of much academic and expert medical opinion, contrary to the principle of basing policy on scientific evidence just enunciated by his noble friend Lord Gardiner of Kimble? Why should patients who have been prescribed a cannabis-based medication, because nothing else relieves their chronic pain so effectively, be obliged to make repeated trips—at heavy cost in cash, stress and fatigue—to Holland to collect it, when under a sensible and humane regime they would be able to pick it up at a local pharmacy in their own country?
Lord Bates
Part of the argument here is that one of the reasons why Sativex is not widely prescribed, although it has been licensed for marketing, is that general practitioners believe that there are other drugs which are more effective in tackling the issues it is meant to deal with. That is a point for debate, but we are acting on the advice of the Advisory Council on the Misuse of Drugs and abiding by the decisions of the Medicines and Healthcare Products Regulatory Agency. It would be a derogation of duty for the Government to do anything other than that.
Psychoactive Substances Bill [HL]
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The Minister of State, Home Office (Lord Bates) (Con)
My Lords, the objective of this Bill is to protect the public. New psychoactive substances are not merely a bit of harmless fun providing an instant buzz. These substances are untested and unknown, with clear evidence of short-term harms and potential long-term adverse consequences. The trade in these substances is quite simply reckless. Those who perpetrate it have no regard for the welfare of the end user. Indeed, the producers of these substances deliberately seek to evade the controls on drugs by manufacturing products that mimic the effect of controlled drugs.
However, in mimicking the effects, these synthetic copies can also replicate the dangers associated with the original drug. It is not just the manufacturers of new psychoactive substances who take this cavalier approach to public safety. Those who sell them are not open and honest about the products that they are marketing. Instead, they seek to absolve themselves of liability by selling the substances in packages labelled “not for human consumption”, “plant food”, or some other fiction.
We should be under no illusion about the harms caused by new psychoactive substances. They have been associated with paranoia, psychosis and seizures, and tragically have led to the death of too many unsuspecting users. Indeed, the number of deaths has been growing at an alarming rate—from 29 in England and Wales in 2011, to 60 in 2013, with a further 60 deaths reported in Scotland in the year before last.
There has also been a sharp rise in new psychoactive substance-related inquiries by health professionals to the National Poisons Information Service. In addition to the health hazards, a number of local authorities have reported instances of anti-social behaviour in the vicinity of retail outlets selling these products, known as head shops.
The open sale of psychoactive substances on the high street and the internet gives the false impression that they are somehow safe to use. Indeed, it is for this reason that they are commonly referred to as legal highs. The very term seeks to reassure the user that they are both legal and safe. I have already sought to debunk the notion that these substances are safe. As for their legality, research has shown that nearly one in five in fact contain controlled drugs.
In short, many new psychoactive substances present a very real hazard to their users in the same way as controlled drugs. As they are untested, there is no way of knowing which, if any, are benign and safe to use.
Over the period of the last Parliament, we sought to deal with this challenge. We set up an early warning system to monitor closely the availability of these substances. The Police Reform and Social Responsibility Act 2011 introduced temporary class drug orders so as to speed up the process of bringing harmful new substances within the tight controls of the Misuse of Drugs Act 1971. We have used the powers in that Act, as amended, to ban over 500 new psychoactive substances. Although these steps have afforded some protection, we found ourselves sucked into a game of cat and mouse: no sooner do the Government ban one substance than another pops up with a new chemical formulation designed to evade the current controls, with the added concern that these new formulations have greater potency. And so the process continues.
It was against that backdrop that, in December 2013, the Government appointed an expert panel to undertake a review of new psychoactive substances. The membership of the panel included representatives from medical science, social science, law enforcement and other criminal justice agencies, local government and those working in the field of education and prevention. The expert panel was asked to make a clear recommendation for an effective and sustainable legislative response to new psychoactive substances.
In coming to a view on the most appropriate way forward, the panel considered various alternative approaches and looked at how these had been applied in other jurisdictions, such as the United States, Ireland and New Zealand. The panel’s findings in relation to the regulatory approach adopted in New Zealand are instructive, given the interest shown in this approach by the All-Party Parliamentary Group on Drug Policy Reform, chaired by the noble Baroness, Lady Meacher, and including, on that inquiry, my noble friend Lord Mancroft, the noble Lord, Lord Howarth, and the noble Baroness, Lady Hamwee.
In its own 2013 report into new psychoactive substances, the all-party parliamentary group was attracted to the New Zealand model because it afforded the prospect of low-risk substances being licensed for sale. However, the expert panel expressed a number of reservations about a regulatory approach and pointed to the difficulties of defining low risk from a legislative and harms perspective. The panel was also concerned that a regulatory regime would send out confusing messages about the safety of new psychoactive substances. Finally, in relation to New Zealand, it is worth recording that no applications for a licence have been submitted to the regulatory authority. Consequently, in practice, a blanket ban is in operation there.
Having considered the approach in New Zealand and elsewhere, the expert panel recommended that the Government develop proposals for a general prohibition on the supply of non-controlled psychoactive substances. Last October, the then Minister for Crime Prevention, Norman Baker, accepted the expert panel’s advice on behalf of the Government. This indeed has been the position of all three parties, reflected in the manifestos on which they stood in the general election.
The Conservative manifesto said:
“We will create a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called ‘legal highs’”.
The Labour manifesto said:
“we will ban the sale and distribution of dangerous psychoactive substances, so called ‘legal highs’”.
The Liberal Democrats said that they would,
“clamp down on those who produce and sell unregulated chemical highs”.
I now turn to the detail of the Bill. Clauses 1 and 2 and Schedule 1 define a psychoactive substance for the purpose of the Bill. The definition is purposefully wide; it encompasses any substance that,
“is capable of producing a psychoactive effect in a person who consumes it”.
In defining what we mean by a psychoactive effect, our definition draws on scientific advice and international precedents, including the 1971 UN Convention on Psychotropic Substances. As I have indicated, we make no apologies for the breadth of the definition. If we were to adopt too narrow a definition, we could, in a few months’ or years’ time, find ourselves having to bring forward further legislation because we were faced with a new generation of harmful substances that escaped the controls provided for in this Bill.
Lord Howarth of Newport (Lab)
The Minister is arguing for the broad definition that is in the Bill. Will he clarify one point? If the Bill were already on the statute book as presently drafted and he felt moved today to send Lady Bates a bunch of flowers, the perfume of which would make her feel much more benevolent towards him and much happier about his absence on ministerial duties, would he be in breach of the law?
Lord Bates
We will come back to this many times in Committee, I am sure, but we are confident that that would not fall into this category. Clauses 2 and 3, as I am sure the noble Lord has read, set out very clearly that this is something that is taken and consumed for the purpose of achieving the psychoactive high to which I referred. So I do not accept his point, although I am sure that we will come back to it many times during the passage of the Bill.
While starting with a wide definition of a psychoactive substance, the Bill then seeks to narrow it, as in the Irish model, so as to exclude certain substances and activities—perhaps the noble Lord was slightly pre-empting my text—that are not the target of this legislation. The Bill does this in two ways. First, it provides for a list of exempted substances. This covers substances that are either already subject to regulation, such as controlled drugs, medicines, alcohol and tobacco, or those where their psychoactive effect is negligible, namely caffeine and foodstuffs. The Bill includes a power to add to or vary this list by regulations, subject to the affirmative procedure.
The second means by which legitimate activities are excluded from the ambit of the controls in the Bill is through the power, in Clause 10, to provide for exemptions to the main offences. Similar provision is included in the Misuse of Drugs Act 1971 and has been used successfully, for example, to ensure that healthcare professionals, when acting in a professional capacity, are not caught by the offences in that Act.
Let me also assure noble Lords that if there is legitimate research into new medicines to tackle any number of the conditions that afflict the human race, the Bill will not be a barrier where such research involves the testing of psychoactive substances.
Having defined a psychoactive substance, Clauses 4 to 9 go on to provide for the key criminal offences. As the expert panel recommended, these focus on the trade in psychoactive substances rather than on the users. The Bill achieves this by making it an offence to produce, supply, offer to supply, possess with intent to supply, import or export a psychoactive substance. The maximum penalty for these offences is seven years’ imprisonment. I should add that the way these criminal offences are constructed excludes psychoactive substances that are not intended for human consumption. So no offence would be committed, for example, where a person produces or supplies a psychoactive substance for veterinary or industrial purposes.
I want to stress that there is no offence of simple possession. This mirrors the position with substances subject to a temporary class drug order. That said, if a new substance comes along where the evidence of harm is such as to warrant it being added to the list of controlled drugs under the 1971 Act, the personal possession offence in that Act would then apply.
As with the legislation in the Irish Republic, we have designed the enforcement framework so that the police, local authorities and other law enforcement agencies can adopt a flexible, proportionate response depending on the particular circumstances of a case. We need a system that is nimble enough to be able to nip problems in the bud before they escalate. In addition to the core criminal offences which I have described, the Bill therefore also provides for four civil sanctions: prohibition notices, premises notices, prohibition orders, and premises orders. Let me be clear that there is no requirement to escalate enforcement action through the civil powers before a criminal prosecution is considered. If the criminality is of such a serious nature as to justify an immediate prosecution, it is right and proper that the relevant enforcement agency should adopt that course.
Where the civil sanctions are an appropriate response, the prohibition notice and the premises notice will act as a final warning to those engaged in the production, supply, importation or exportation of psychoactive substances. A prohibition notice issued by the police, the National Crime Agency, the Border Force or a local authority will require the respondent to desist from undertaking relevant prohibited activities, such as selling psychoactive substances from a particular head shop or through a website. Where the prohibited activity is taking place on particular premises—again, the head-shop example comes to mind—a premises notice could be issued separately to the landlord so that they take reasonable steps to stop the prohibited activity taking place on the premises in question.
If the respondent fails to comply with a notice, the relevant enforcement agency can then move swiftly to apply to a court for a prohibition order or a premises order. Again, I should make it clear that there is no requirement to escalate a case through the civil powers. If the breach of a prohibition notice is so egregious, it is then open to the police or other enforcement agency to pursue a prosecution for one of the main offences in the Bill. A prohibition order or premises order will be made by the court, normally on an application from the police, a local authority or other relevant agency. It will be open to the court to attach such prohibitions, restrictions or requirements to an order as the court considers appropriate. Clause 21 gives some examples of these. This is by no means an exhaustive list and should not be read as such, but the examples given are significant—hence their inclusion in the Bill. A prohibition order could include a requirement on the respondent, perhaps the proprietor of an online business or of a head shop, to hand over any remaining stocks of psychoactive substances.
It would also be possible to attach to either a prohibition order or a premises order an access prohibition. This would operate much like the premises closure powers in the Anti-social Behaviour, Crime and Policing Act 2014. An access prohibition could bar all access to premises for an initial period of up to three months, extendable to a maximum of six months. An access prohibition is most likely to be used against commercial premises such as a head shop, but could relate to any relevant premises. Where the premises are used as a dwelling, it would be open to the court to allow limited access for those who habitually reside on the premises, but the decision will be one for the court to take. Breach of a prohibition order or premises order will be a criminal offence, punishable by up to two years’ imprisonment. The Bill provides for a right of appeal against these orders, and the respondent or other persons significantly affected by the order may apply to the court for the order to be varied or discharged.
Also included in the Bill are bespoke enforcement powers that will enable the police, National Crime Agency officers and customs officers to stop and search persons, vehicles and vessels. The powers to stop and search a person will apply where the officer has reasonable grounds to suspect that a person has committed one of the main offences in the Bill: namely the offence of producing, supplying et cetera a psychoactive substance, or the offence of breaching a prohibition order or premises order. In such a case, the officer may search the person for evidence of such an offence. The powers to search vehicles and vessels will apply where an officer has reasonable grounds to suspect that there is evidence of one of these offences in or on the vehicle or vessel.
Additionally, there are powers to search premises for relevant evidence and to seize such evidence. These powers are subject to judicial authorisation and extend to local authorities as well as to the police, National Crime Agency and Border Force officers. The Bill sets out other safeguards, including protecting material subject to legal or journalistic privilege. Further safeguards in the Police and Criminal Evidence Act 1984, including those in the relevant PACE codes of practice, will also be engaged.
Finally, the Bill makes provision for the forfeiture of seized items. Given that the whole premise of the Bill is that psychoactive substances are, or are potentially, harmful, we should not be allowing these substances, once seized, to re-enter the supply chain or to be returned to users. There is, therefore, a clear presumption that any seized psychoactive substances will be destroyed. Where there is evidence of an offence under the Bill, or the seized item is not a psychoactive substance, the Bill provides for a judicially authorised forfeiture process. There is also a fast-track procedure for the disposal of small quantities of a psychoactive substance where, for example, this is consistent with personal use and there is no evidence of an offence being committed under the Bill.
The words of the expert panel were that there was no silver-bullet approach to tackling this issue. The criminal justice response to the trade in psychoactive substances, as provided for in this Bill, must be seen in the context of our wider strategy to tackle the harms they cause. Alongside law enforcement activity to restrict the supply of new psychoactive substances, we are driving forward another key recommendation of the panel that we enhance our efforts to reduce demand, including through effective prevention programmes, and provide the right health-related services supporting individuals to recover from substance misuse. The dangers posed by new psychoactive substances are widely recognised, and there is now a broad consensus that the current approach is failing to provide timely protection where it is clearly needed.
The three main political parties represented in your Lordships’ House differed on many things in the recent election but, as I have indicated, there was welcome agreement on the need for a general ban on new psychoactive substances. That view is widely shared, including by the police, the Local Government Association, the Royal Society for Public Health and others. However, there is one further organisation that I should like to add to the list: the Angelus Foundation. Angelus was founded by Maryon Stewart to campaign on the dangers of new psychoactive substances following the tragic death of her daughter, Hester, in 2009. The Angelus Foundation knows more than most about the potential fatal consequences of these substances, so we should heed its words with care. It said this of the Bill:
“Angelus has led the call for a strong legal response to the easy availability of these legal substances and has long campaigned for fundamental measures to disrupt the supply of these legal drugs”.
The Bill is intended to help prevent further tragedies so that other parents do not have to suffer what Maryon Stewart and her family have had to endure.
During the later stages of the Bill, noble Lords will properly want to scrutinise its detail carefully, but I trust that the House will overwhelmingly be able to join me today in endorsing its core purpose. On that note, I commend the Bill to the House. I beg to move.
Lord Howarth of Newport
My Lords, we are agreed on all sides of the House that, with new psychoactive substances, we are presented with a seriously dangerous situation. Noble Lords have mentioned the numbers of deaths that have been recorded; we have no statistics—we cannot obtain them—on the amount of long-term damage to mental health and on other health damages that may be caused by the use of those substances. Very frequently, we read stories in the media about tragic outcomes for young people who have taken a new psychoactive substance of one sort or another. The noble Lord, Lord Farmer, spoke eloquently about the anxieties of parents and the responsibilities that government has to support parents and families, and he was quite right on that point.
It is a simple thing for a moderately competent organic chemist to tweak the molecular structure of an existing, controlled substance to create a new substance which, as the law stands, is uncontrolled. The development of the internet has transformed the marketing and distribution of drugs, so that we face this hideously dangerous combination of the facility with which new substances can be created, distributed and obtained.
The latest annual report of the European Monitoring Centre for Drugs and Drug Addiction talks in some detail about how web sales are developing. It is an unfortunate fact that Britons appear to be exceptionally reckless, prone to bingeing and poly-drug usage and relaxed about buying their drugs from sources about whom they know little or nothing. The new toxicology is terrifying. Mephedrone is effective at a 10th of the dose of ecstasy, and a gram of a new hallucinogen may contain enough to provide 5,000 doses. The noble Lord, Lord Kirkwood, talked about the importance of dosage in this situation. People who consume new psychoactive substances are doing so on the basis of no information about the composition, safety or toxicity of the substances that they are ingesting. It can be only a question of time before a new psychoactive substance that has widely lethal consequences is launched on a market of ignorant and gullible consumers.
Clearly, action is necessary and the Government are right to seek to address this problem. However, there is no clear solution, as I think we all agree. What we certainly need is a rational discussion, and I am very pleased that the All-Party Parliamentary Group on Drug Policy Reform, chaired so ably by my noble friend Lady Meacher—I call her “my noble friend” because I regard her as a great friend—initiated this process. I add to the praise that has been given to Norman Baker for the work that he did as a Minister in the Home Office in the coalition Government, and for the establishment of the expert group, which indeed contains some very real experts—among them people who were witnesses to the all-party group’s inquiry. Similar processes have been undertaken in Scotland and Wales, leading to broadly similar conclusions.
However, I believe that the impulse to slap into manifestos a commitment to ban was all too typical of the way that politics works and that we would have done better to go more slowly. Is it really true that the Government omitted to consult the Advisory Council on the Misuse of Drugs as they drafted this legislation—or at least not until the very last stage when the Bill was already written and just before it was tabled in Parliament? Did they ask the council for its advice on the relatively narrow, though very important, aspect of the legislation, which is how on earth people are to discover what is a psychoactive drug and what is not? As my noble friend Lord Patel noted, the ACMD has a statutory duty to act as the Government’s adviser in this field. I hope that if they failed to seek the ACMD’s advice earlier, it was not because Home Office Ministers have all too often not liked the advice that they have received from the ACMD, whether it is about the classification of cannabis or about khat, or indeed about how to deal with nitrous oxide, which it recommended should not be banned but will be caught by the Bill. The ACMD should not be sidelined.
Noble Lords will have seen a very powerful critique of the legislation from Transform and Release, which reached me only yesterday. If noble Lords on the Front Benches have not yet had an opportunity to study that critique, I hope that they will do so. The briefing from Transform and Release raises a whole number of questions about police powers, the legal and scientific complexities associated with the Government’s proposals, the impacts on research and the thinness of the impact assessment. All those matters we can examine more closely in Committee.
The problem that we have to deal with is not that people use psychoactive substances. They always have, whether for stimulus, for insight, for relaxation, for pleasure, for oblivion, for the thrill of risk or for the thrill of challenging authority. The question is not whether we should seek to ban all psychoactive substances; the Government are not proposing to do that. Who are we, as politicians, to tell people what psychoactive substances they may use or what their recreational practices should be? At least I am pleased that the Government have not sought to criminalise use. However, I fear that this decriminalisation is more apparent than real, because they will criminalise social use in the sense that a group of people might share a substance, and they will of course criminalise the importation of psychoactive substances. The problem that we need to address is the risks and dangers that consumers are undergoing. We need to ask how we can protect them as well as we can from the dangers that many noble Lords have described. The object in drugs policy should be to minimise these dangers and the harms that drugs cause.
All the evidence we have about the history of prohibition, as my noble friend Lady Bakewell reminded us, shows not only that it does not work but that it is counterproductive. During our recent era of prohibitionist orthodoxy—since the 1960s with the UN conventions and the passage of the Misuse of Drugs Act 1971 in this country—we have seen, generation by generation, an increase in drug usage. I understand that it is now the case that about one quarter of people in their 50s and 60s have used drugs, one third of those in their 40s have used drugs, and more than half of those in their 20s and 30s have used drugs. Even during the period of prohibition, there has been a cultural normalisation of drug usage. There have been many unfortunate consequences of this—among them, I contend, an alienation from politics. Such large numbers of people as regularly use recreational drugs, and, certainly in their own belief, come to no harm, consider that the politicians who seek to ban their pleasures are authoritarian, ignorant and irrelevant and do not understand them. This is one factor that has tended to undermine people’s respect for the political class.
As the noble Lord, Lord Mancroft, reminded us, the costs are absolutely huge. The impact assessment is extraordinarily optimistic. It seems highly likely that one consequence of this legislation will be a misallocation of rapidly declining police resources that need to be harboured and used for top priorities in ways that will really be effective. Prohibition creates a free market in crime—it is a gift to international organised crime—and of course causes immense misery and human waste. I see no reason why this new extension of prohibition will not have the same effects.
The expert panel identified arguments on both sides. It identified merits in the course that the Government are pursuing, but it also identified a number of problems. Among the problems is the confusion that the legislation will cause. For example, there will be inconsistency between the regime created by the Misuse of Drugs Act and the regime created by this legislation. Why decriminalisation under one piece of legislation and for one range of drugs but not another?
Critics of the Bill will be tempted to accuse the Government of hypocrisy and irrationality when they look at Schedule 1, which exempts tobacco and alcohol. Tobacco is so lethal and, as the noble Baroness, Lady Hollins, reminded us, the number of deaths caused by alcohol is vastly greater than the number of deaths caused by controlled drugs. However, while the Government ban new psychoactive substances, they refuse to introduce minimum pricing for alcohol. What about sugar? I do not know whether sugar could be a psychoactive substance, but food is exempt and so presumably sugar is exempt. We have all heard of a sugar rush. Simon Stevens, chief executive of NHS England, described the habitual use of such quantities of sugar in the national diet as a “slow burn of poison”, and yet I do not think that any action is being taken on that. People will see the policy as arbitrary and see introducing a blanket ban as evidence that policymaking on the basis of evidence is being abandoned.
The Bill will be impractical. How on earth are people to know what a psychoactive substance is? The definition is very broad. In practice, we are going to be faced with the difficulty that very inadequate resources are available for forensic testing. The ACMD has belatedly been asked what its views are on this. There will be big costs to the criminal justice system as test cases are brought and the attempt is made to establish legally watertight definitions in this field.
Above all, though, the Bill will not work. Yes, head shops will be closed down and that will be pleasing to the Local Government Association—one understands its worries about anti-social behaviour on the part of some numbers of young people gathered round some head shops and the difficulties for overstretched trading standards officers. But the Government are missing the opportunity, if they would choose to take it, to mobilise head shop proprietors as useful advisers—people who might actually seek to help young people. That may seem an improbable notion to some noble Lords, but it would not have been beyond the bounds of possibility.
With the closing of head shops, we will no doubt see, as in Ireland, Poland and perhaps Romania, a temporary fall in the consumption of new psychoactive substances. But the experience, as noble Lords have said, of Ireland and Poland is certainly that subsequently, as consumers turn to online sources, consumption rose. My understanding is that young people in Ireland are now the heaviest consumers of new psychoactive substances in Europe. Those experiments that took place in Ireland and Poland were laboratory experiments from which the Government might have learnt. Evidently, they were an own goal, as my noble friend Lady Meacher told us the President of Poland admits. Instead of seeing that, the Government are copying that legislation.
The culture of this country has changed so far. I understand that it is now widespread in universities, particularly in academically elite universities, to use so-called smart drugs to improve people’s performance. In highly competitive situations such as in universities or the City, modafinil, Ritalin or varieties of amphetamines are routinely bought by significant numbers of people online. We may well see that chemical cognitive enhancement becomes almost as much a familiar practice as cosmetic surgery.
People will turn to buy their drugs online. They may go to China. Have the Government had discussions with the authorities in China about how they might seek to work with them to prevent our fears being realised? When mephedrone was banned, they had discussions with the authorities in China—production was immediately transferred to India, the quality deteriorated and consumption rose. Official corruption is widely pervasive in the countries from which these substances come. It will be impossible to inspect all the packages that come through, and I fear that we shall end up worse off than we have been.
I see that I have talked for too long, as I too often do. I will conclude by saying that I do not think that legislation in one country can work. There will be an opportunity to develop international collaboration on a constructive basis. Next year, the United Nations General Assembly will hold a special session on drugs. There is a tide of change, as other noble Lords have noted, away from criminalisation and towards treating drug abuse as a health issue and social issue rather than a criminal issue. Yet between 2009 and 2013 in the United Kingdom, 60,000 young people aged 20 and under were criminalised for possession of drugs. At the same time, the Home Office’s international comparative study, on which I congratulate it, concluded in 2014:
“Looking across different countries, there is no apparent correlation between the ‘toughness’ of a country’s approach and the prevalence of adult drug use”.
The Home Office was tiptoeing towards decriminalisation but then, come an election, the default position was to resort to a ban.
All of us need to think hard about this. The Government need to think again and I hope that in Committee we can assist the Government to think again and find useful ways to advise the elected House by way of amendments to this legislation.
Lord Bates
My Lords, this has been a debate of characteristic quality in your Lordships’ House. Immense expertise from around the House has been brought to bear on this issue—by people who have actually devoted their lives to trying to understand and tackle this issue of drugs. I was very struck by the words of my noble friend Lord Mancroft, who talked about the common approach shared by all sides of the argument about seeking to protect our children and the community from the effects of these harmful substances. In that we are united. How we go about that will be a matter of some debate as the Bill moves into Committee, should your Lordships choose to grant it a Second Reading, and the Government will welcome that.
Your Lordships’ expertise has raised some very thoughtful points. I summarise them as falling into two broad categories: those that look at the particular issue of psychoactive substances and those that relate to wider drugs policy. The noble Lord, Lord Tunnicliffe, touched on that when he said that effectively there were two debates going on here. The all-party group has done some excellent research and taken great evidence—I read its report and recommendations very carefully before this debate, as your Lordships would expect—and I think it is almost quorate in this debate, with the noble Lords, Lord Rea and Lord Howarth, my noble friend Lord Mancroft and the noble Baronesses, Lady Hamwee and Lady Meacher, all present and all making points.
Another view points to the growing threat of these new psychoactive substances. The early warning system in the European Union—among our European friends, with whom we are working closely on these issues— identified 24 new substances in 2009; in 2010 there were 41; in 2011, 49; in 2012, 74; and in 2013, 81. We are on an exponential rise in the number of these new substances. As my noble friend Lady Browning made clear, this amounts to playing Russian roulette.
I found one of the most telling contributions to be that of the noble Lord, Lord Kirkwood, because he came at it from the perspective of pharmacology. I hope that does not impinge on his street cred among his colleagues. He talked about the challenges of dosage and of manufacturing these compounds. Things are coming into this country and being identified at the moment which people are consuming when they have absolutely no understanding of how they have been produced or what is being put before them. People are looking at that and saying, similarly to my noble friend Lord Farmer, who talked about families, that things must be done. That approach is not lacking in intellect.
There is a growing number of substances so, effectively, we have a choice before us. Do we go down a route where we have base legislation in the Misuse of Drugs Act and then the Government come forward with 500 individual measures and temporary banning orders on banned substances, but their manufacture is unshown? It is almost like a Whac-A-Mole game in the arcade; once one is stopped, another pops up somewhere else. Or do we go down the route of a blanket ban? I know that that is not supported in many of the contributions that were put here, but let me offer some of the places where it is supported.
The Home Affairs Select Committee took a lot of evidence, and a lot of the people who gave evidence to it also gave evidence to the all-party group on the misuse of drugs. The Select Committee said in its summary, first, that:
“We conclude that there is currently an epidemic of psychoactive substances and it is highly likely that the creation of new psychoactive substances will continue to increase in the future unless immediate action is taken”.
It went on to recommend that,
“new legislation, brought in to address the problem of ‘legal highs’, is specific and focused. The law must ensure that the police and law enforcement agencies can take action comprehensively against those who sell new psychoactive substances and remove the reliance on existing legislation which is ill-suited to comprehensively tackling this problem. The legislation needs to allow sellers of new psychoactive substances to be prosecuted for an offence which is equivalent in sanction to that of the Misuse of Drugs Act”.
In addition to the Home Affairs Select Committee, support comes from: the expert panel appointed by Norman Baker, as was mentioned; the similar panel appointed by the Scottish Government to look into this, which came to the same conclusion; the Health and Social Care Committee of the National Assembly for Wales; several countries, including Ireland and New Zealand, which were mentioned; and each of the main political parties in England and Wales at the election. I am simply saying that it is not an inconsequential body of opinion and we are, rightly, trying to follow the evidence in legislation. I suggest that even if it is not compelling in some areas, that is quite a comprehensive body of evidence.
I want to address some of the specific issues raised.
Lord Howarth of Newport
Before the Minister departs from what he has just been discussing, I would be grateful if he would answer one point. He suggested that there is a binary choice: either we carry on attempting to swat these new psychoactive substances as they arrive in our midst or we have a blanket ban. However, there is a third option, which is selectively to legalise and strictly regulate certain drugs of which society has long experience, which are less dangerous and which society on the whole knows how to deal with. Is that not an option that ought to be considered? It is a market solution. People would be interested in and attracted to taking those drugs if they were looking for some psychoactive experience, but if they found that they could get satisfaction from a range of carefully selected, legalised substances, they would be much less interested in buying what the online merchants were offering them. It would be a market way to address the problem.
Lord Bates
I hear what the noble Lord says and once again I appreciate the passion that he feels about the topic and his knowledge of it, but in a sense that debate went before this piece of legislation. We looked at that. I do not want to run through the whole list again but other people, including the Home Affairs Select Committee and the expert panel, all looked at that and came to the view that that was not the case. That is a point of wider drug policy. It is perfectly legitimate to continue to have that debate, but not in relation to the Psychoactive Substances Bill now before us, which is seeking to tackle a very specific problem in a way that we believe is in keeping with the expert opinion that we have had.
I recognise that the noble Lord, Lord Patel of Bradford, and many others—I keep saying this—have an immense level of expertise. I should, in mentioning expertise, say that I am very grateful to be assisted on the Front Bench by my noble friend Lady Chisholm, who also brings immense experience to this, from her understanding both of drugs and of their health effects. The noble Lords, Lord Rosser, Lord Patel, Lord Kirkwood and Lord Rea, asked about the Advisory Council on the Misuse of Drugs. Its 2011 report called on the Government to explore legislation for new psychoactive substances. The Home Office set up a six-month policy review, with a primary focus on looking at how law enforcement powers could be strengthened. Ministers informed the ACMD in October 2014 of the Government’s plans to develop the blanket ban approach. The Home Secretary has written again to the ACMD, and welcomes its views on how we strengthen the UK’s forensic capacity and capability to support the implementation of the legislation in 2016. The ACMD continues to provide expert scientific advice which is greatly valued by the Government. The Misuse of Drugs Act 1971 will remain the cornerstone of our response to dangerous drugs and the ACMD will continue to have the central statutory role in assessing the harms of specific new psychoactive substances and provide advice to Ministers.