Psychoactive Substances Bill [ Lords ] (Second sitting)

Owen Thompson Excerpts

Tuesday 27th October 2015 Public Bill Committees

[Mike Penning]

The Home Secretary’s powers within the Bill, should it become an Act, will enable us to ensure that sort of thing happens. I assure the hon. Gentleman that a close eye will be kept on all types of medicine. If what he mentioned was felt to be happening between now and Report, which I doubt, or as we go forward, there are powers within the Bill to make sure that those medicines are covered. I hope that alleviates his concerns.

Amendment 3 agreed to.

Amendment made: 4, page 38, in schedule 1, line 13, leave out paragraphs 3 to 5—(Mike Penning.)

This amendment is consequential on amendment 3. It removes the entries in paragraphs 3 to 5 of Schedule 1 in respect of investigational medicinal products, homoeopathic medicinal products and traditional herbal medicinal products, as these products fall within the revised definition of medicinal product inserted by that amendment.

[Owen Thompson (Midlothian) (SNP)]

I beg to move amendment 56, in schedule 1, page 39, line 23, at end insert—

“Miscellaneous

11 —alkyl nitrates”

This amendment seeks to implement a recommendation by the Home Affairs Select Committee that “poppers” should not be banned.

I will try to be succinct. We felt it was important to table this probing amendment following the evidence gathered by the Home Affairs Committee and published in its report last Friday. I am not looking to press the amendment to a vote, but it is something that should be taken into consideration as we move towards Report.

The Home Affairs Committee received evidence from the National AIDS Trust and the Gay Men’s Health Collective that seemed to suggest that there was no medical evidence to suggest that poppers are in any way harmful. I am not an expert so I am open to contrary arguments. In this, as in so many areas of the Bill, the amendment is trying to avoid the unintended consequences of action or inaction that might be taken.

We felt that the inclusion of this miscellaneous exemption under schedule 1 would help to prevent any such unintended consequences, such as driving these substances underground and the increasing reliance on class A and class B drugs and other things that could be far more harmful to individuals who currently use poppers. We would be keen to see further discussion on the inclusion of this very specific exemption under alkyl nitrates; however we would not be looking to press it to a vote at this stage but would look to take it forward on Report.

[Lyn Brown]

The amendment would specifically exempt poppers from the controls contained within the Bill. I am aware that the Home Affairs Committee, as the hon. Member for Midlothian stated, received plenty of evidence on the issue. It concluded that poppers ought to be excluded from the scope of the ban in the Bill. Organisations including the National AIDS Trust and the Gay Men’s Health Collective argued that harm from poppers was low due to the effective regulation of the compounds amyl nitrate and butyl nitrate. Not exempting poppers from the list of psychoactive substances would take the use of alkyl nitrates outside of any regulation.

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[Mike Penning]

The knowledge about poppers being part of the debate has been out there in the ether; it was actually partly discussed in Scotland, when the Scots carried out their review. It was certainly discussed when the Irish passed their legislation. It has been known, clearly, all the way through.

What I am saying, however, is that in what I am trying to do—I accept that this is a concern for individuals—this issue could be really difficult for this Bill. Of course, the substances that we are banning are not all the really horrible ones, and I am really genuinely worried that I would open up an opportunity for others to ask for exemptions in areas where we do not really want to have them.

I repeat what I said privately to the hon. Member for Midlothian, namely that I hope that people will understand that this process is about my trying to get a piece of legislation on the statute book that does the job we are asking it to do and that is not challenged in the wrong way.

[Owen Thompson]

I hear what the Minister is saying. However, it is one thing to say that there is reassurance for individuals who may take poppers, but how do they actually get them if we do not have an exemption for poppers? If we cover poppers in the ban that we are proposing in the Bill, they will become illegal and then those who would not be criminalised by using them cannot actually get them through any legal means. [Interruption.] I hear the Minister saying regularly that there is a blanket ban, but it is a blanket ban with the exception of controlled drugs, with the exception of medical products, with the exception of alcohol, with the exception of nicotine and tobacco, with the exception of caffeine, with the exception of food—

[Andrew Gwynne]

I appreciate that it is not proper form to respond to a Minister’s comment through a Member who is intervening on him, but if I were to do so I would point out that the Minister said from a sedentary position that that is not the experience in Ireland. Does the hon. Gentleman suspect that what might actually be happening in the Republic of Ireland is that people are going to Northern Ireland to purchase poppers legally, which they can then use themselves in the Republic of Ireland, and that might be why this has not been much of an issue south of the border?

[Owen Thompson]

I would suggest that there are probably a number of ways in which any individual could acquire substances; indeed, that is part of what we will come on to next.

[Mike Penning]

Perhaps there is a sensible way forward, not least because the Select Committee report is fairly recent and many colleagues in the House have not had an opportunity to read it. Of course, if we do not vote on this measure now, it can then be brought back for the House, rather than this Committee, to decide. I have concerns as a Minister, not in a personal capacity. However, perhaps it would be sensible if we took some time and took some stock to consider the other evidence, and then the House can decide on Report.

[Owen Thompson]

I would certainly welcome that approach. We have talked a lot about how we are building the Bill around the Irish experience, but I do not see any reason why we cannot look to that experience and make it better. I think that that is ultimately what we are all trying to do. I do not seek to press the amendment to a vote at this stage; I merely want us to make the arguments and discuss it, as we are doing. I will take the matter forward to Report, when we can discuss it in more detail. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1, as amended, agreed to.

Clause 4

Producing a psychoactive substance

Amendment made: 5, in clause 4, page 2, line 32, leave out from “subject to” to end of line 33 and insert “section (Exceptions to offences) (exceptions to offences).” —(Mike Penning.)

This amendment is consequential on amendment 11 and NC3.

Clause 4, as amended, ordered to stand part of the Bill.

Clause 5

Supplying, or offering to supply, a psychoactive substance

[Lyn Brown]

I beg to move amendment 46, in clause 5, page 2, line 36, at end insert “for personal gain”

This would restrict the offence of supplying psychoactive substances to those who do it for personal gain, as opposed to those who supply them for other purposes.

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[Andrew Gwynne]

It is a pleasure to follow my hon. Friend the Member for West Ham, with whom I agree that amendments 46 and 52 are so similar as to be almost indistinguishable. I very much hope that the Minister will consider adopting them.

I welcome this moment of harmony between Labour Members and our colleagues north of the border. Both amendments make a pertinent point: although it is right that the supply of existing drugs is considered an offence even if the supplier is not supplying them for personal gain, we should be very wary of criminalising those who are simply part of, say, a small group of individuals who have conspired to obtain psychoactive substances. That point was well made by my hon. Friend the Member for West Ham.

We are still in the early stages of controlling psychoactive substances. We should start from a presumption of ignorance for those not seeking to profit from the flow of such substances. My hon. Friend is absolutely right—I am sure that she does not speak from personal experience; she keeps protesting, so we will take her at her word—that the reality of drug experimentation, I am led to believe, is one of shared experiences. There is a qualitative difference between a group of young people procuring substances for shared use and a profiteer on the high street. The way in which clause 5 is currently drafted makes no distinction between those people and large-scale commercial suppliers; I have to say that that is just wrong. It is true that sometimes friends can be part of a supply chain, but they are right at the end of it. We should not, at this stage at least, impose a criminal record on a young person who gives some of these substances to their friends.

The Labour party is fully supportive of the principle of criminalising those who seek to make money from this pernicious trade. When someone is in the business of selling dangerous substances, we can assume they will be following developments regarding the illegality of their work, so I am firmly behind clause 5 in a general sense. Nevertheless, I urge the Minister to consider very carefully the fact that the amendment is intended to adopt a principle included in the 1971 Act: one of “personal gain”. Prosecutors could then still make a distinction regarding somebody who quite clearly profits from this trade, even if, as I said in an intervention, they happen to know the customer in a social capacity.

I note the reasoning behind subsection (3), and I approve of it. It must be made clear that the substance not being of a psychoactive nature is not a defence in itself if the supplier intimated that the substance would have such an effect, notwithstanding the fact that he or she would have no doubt trading standards on their case.

I urge the Minister to think carefully about this. The point made by my hon. Friend and, indeed, echoed by the SNP amendment is that we need to tread very carefully, so that we do not end up criminalising young people for the sake of it. We want to tackle the real issue, which is the supply of the psychoactive substances we want to ban.

[Owen Thompson]

I very much agree with the comments from Labour Members. It is not the intention behind any measures in the Bill to target these small groups of people. The Bill is very much aimed at those who put these substances in the marketplace and on high streets on a larger scale. That is the reasoning behind our amendment. If there are drafting issues, it is surely not beyond expert drafters, of whom I am not one, to come up with a form of wording that encompasses the aims of the three amendments we are discussing, while countering some of the issues raised by Government Members.

[Lyn Brown]

Does the hon. Gentleman agree that the Government have opened the door to this by not wanting to prosecute possession? The Government themselves are therefore saying that they want to get to certain classes of pusher and of people involved in psychoactive substances, not individuals who just possess a drug.

[Owen Thompson]

It largely comes down to another unintended consequence. We are not looking to target those individuals or small groups of friends, whatever the circumstances happen to be, who are not the object of the Bill. It is a question of how we capture that in a way that leads to successful prosecutions where necessary but manages to support people where it is not the mass-scale issues we have been talking about.

The amendment is a probing one. We will not push it to a vote, but I urge the Government to use it as an opportunity to seek an alternative and look at how best we can manage this aspect in a way that meets the genuine concerns raised by Government Members, while protecting young individuals who may find themselves charged with supply when, in fact, it is what anyone else would see as personal use.

[Mike Penning]

I fully understand what colleagues on both sides of the Committee are saying, but I have some real concerns. If we exempt a group—not because they are young; we keep saying that, but we are just old and they are all younger than us—we will open up a significant loophole in the Bill, not least because of what my hon. Friend the Member for Enfield, Southgate spoke about from personal knowledge. What is personal use? We have discussed that in lots of other areas. While I desperately do not want to criminalise young people, there is a whole set of measures in the Bill that will prevent us from getting to that position. That is why they are there.

I advise the Committee that some things that have been said are not quite factually correct. Supply does not need proof of payment under the 1971 Act, but proof of payment is a consideration in sentencing, which is exactly what we would look for in this measure. It is not for me to tell the Sentencing Council exactly what its guidelines should be. We have moved away from politicians doing that—it is now people who are much more expert than I am—but I have already committed to writing to the Sentencing Council once the Bill has completed its passage in order to advise it on the will of the House. We will return to that when we discuss children’s homes.

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[Lyn Brown]

Absolutely. I think that were this included in the Bill it could have a deterrent effect on those involved in supply and change the nature of the market towards less harmful psychoactive substances. I note that the Scottish National party has an alternative amendment which seeks to achieve a similar end. I will repeat what I said when we found ourselves in the same situation when discussing how to exclude social supply: I am very happy to work with other parties and with the Government in order to ensure that our shared goals are reached. I hope that they take this offer in the serious manner in which it is intended.

I look forward to the Government’s response with interest. They will know that this is an issue which has exercised supporters and opponents of the Bill alike, and that if a way round the problem can be reached, we ought to grasp it. Our amendment has the potential to bring even more consensus to the Bill.

[Owen Thompson]

Apologies for my slightly delayed return; I had to act as a Teller for the vote that has just happened. Our amendment 55 is an amendment to clause 9 not clause 6, although it does fit nicely with those that are here. Our approach is to look to ensure that there is a genuine protection in the concept of relative harm, as the shadow Minister mentioned prior to our suspension, and that the associated psychoactive substance is the subject matter of the offence, so that we do take account and any sentence handed down is relative to the offence. I accept that different sentencing regimes are in place within Scotland and the rest of the United Kingdom and I appreciate the points that the Minister will, I am sure, be making about that.

Our amendment is a probing one, but the fact that it mirrors those tabled by the Opposition suggests that the intent behind the amendments is consistent, regardless of which part of this island we happen to be presenting them from—[Interruption.] These islands. I apologise. I suggest that, as the Bill progresses, due consideration is given to the intent behind the relative harm aspects mentioned in the amendments.

[Mr Burrowes]

I wish to speak to the group of amendments, in particular amendment 55, which provides the opportunity to talk about how the courts would deal with the issue when it comes to sentencing. I accept that the Bill will hopefully help to revolutionise enforcement and provide tools for the police to get out there and deal appropriately and proportionally with getting psychoactive substances off the streets and out of harm’s way for hardworking citizens—all citizens, in fact. That is welcome. The Bill also recognises the civil sanctions and the civil regime regarding the seizure of such items.

When a prosecution comes before the courts—in Ireland there have not been many prosecutions and there may not be a huge number here—we want to ensure that the penalties are just and commensurate with the offence. We therefore have a problem, because the substances are different from controlled drugs, and the Misuse of Drugs Act 1971 contains a classification system that enables relative harm to be attached to a controlled drug, and that is then relevant to the sentence. Because of the blanket ban we do not have that, but I do not want to rehearse our previous debates on the matter.

It is important, nevertheless, not least for the courts because of proportionality, to be able to distinguish between psychoactive substances. No doubt the courts will take account of statutory and non-statutory aggravating factors—we will debate those factors later—and will consider the amount of drugs, the circumstances and the degree of sophistication, but they will also need to reach a judgment on the relative harm of the substance. I draw the Committee’s attention to page 13 of the Home Affairs Committee report, a report I know the Minister read avidly over the weekend—he could not put it down.

Chapter 5, on the concept of harm, draws reference to the evidence of Rudi Fortson, QC, who highlights the position, which the Minister reiterated to the Committee, that the Government do not wish to be disproportionate with sentencing—far be it from them to want to be disproportionate; they certainly do not. There is also wider consideration in case law, principles and conventions that would ensure that every penalty would be considered proportionally.

How, therefore, will the sentencing courts get that assistance? Rudi Fortson states that,

“in the absence of drug classification, or an expert’s opinion (if accepted) as to harm, the courts will have little option but to assume that all psychoactive substances are equally harmful”.

That is the problem we have, and it is why the debate on amendment 55 is welcome.

The Minster has already said that as soon as the Bill has completed its stages he will write to the Sentencing Council encouraging it to take action. The problem with that is that I know from experience that the council is not the quickest vehicle where taking action is concerned. On the desecration of war memorials, there was a commitment from a Justice Minister to write to the Sentencing Council, but it could be considered only when the council was to meet to consider amending its guidelines. I therefore encourage the Minister to make it clear that the process will be expedited.

The Minister and the Government have rightly taken an expedited view in relation to getting on the statute book the legislation regarding the enforcement tools, but we also need it to be fit for purpose for the courts. That is why I would like the Minster to communicate with the Sentencing Council and seek assurance that it will consider the matter in an expedited form so that we will get an answer quickly.

I also take comfort from the recent letter from the Advisory Council on the Misuse of Drugs to the Home Secretary, which now provides a clear scientific framework to establish that this issue can be proved in the lab in vitro. That will also provide an opportunity, with the benefit of evidence that I think is going to be resourced, whether that is from the forensic strategy or the Centre for Applied Science and Technology. That material will all come together to provide the body of evidence for the Sentencing Council to come to an informed judgment. However, that will all need to happen at quite a rapid pace. That is my first point.

The second point is that there will need to be some flexibility, because there are new psychoactive substances coming on stream. How quickly will the Sentencing Council be able to provide appropriate guidance to the sentencing courts for these new substances? I would have thought that there will be a whole new regime for the Sentencing Council to deal with this, given the way that it has taken its time before.

It is absolutely vital for public confidence and the interests of justice that this particular chapter in the Committee’s deliberations is taken to heart. We made a recommendation here that the Sentencing Council be requested to produce appropriate sentencing guidelines, taking account of relative harms. That was a specific recommendation; I think the Minister is intimating that he is on the same page on that one. It is very important that we have something that is fit for purpose, not just for the police but for the courts.

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[Lyn Brown]

I thank the hon. Gentleman for his intervention. I emphasise again that young people in care are vulnerable and need us as their parents, in loco parentis, to help them to say no to those who want to exploit them and prey on them with NPS and other drugs. They need support so that they can look out for themselves.

[Owen Thompson]

I very much agree with the principle behind the amendment. From the correspondence I have had, I know that agencies such as Who Cares? Scotland very much support the proposals. This is a particular problem, because young people in supported accommodation and the type of accommodation we are talking about require extra support, protection and help. The amendment would go a long way towards addressing some of their needs and dealing with that. I voice my support for the aims of the amendment.

[Carolyn Harris]

I have been greatly troubled by some of the stories I have heard in my constituency of Swansea East from the local police, social workers and organisations. Young women are now grooming other young women, with the fee being legal highs. Some of the stories are absolutely horrendous. The Children’s Society has done great work on that. For 63% of the housing providers who engaged in one of its surveys, the greatest problem they saw for these young people was involvement in legal highs.

[Owen Thompson]

That is very much the case. In many situations, the young people we are seeking to help and support are at a vulnerable stage of their development. There is a reason we need to give them extra help. It is about ensuring that a situation that has resulted in their being in secure or looked-after accommodation is not made worse by not putting in place extra protection to ensure we help, support and encourage their development towards the better future that I am sure we want for all young people.

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[Owen Thompson]

I will continue in the spirit of harmony and good will that has been a theme this afternoon. Our amendment 53 was identical to amendment 50, so great minds think alike.

The same reasoning lies behind amendments 50 and 54. Amendment 50 would ensure protection for people importing substances ordered online. Exporting is a slightly different situation, but the logic follows through. The spirit of the Bill is about ensuring that individual users are not criminalised; it is about addressing the wider industry and wholesale suppliers and dealers. Society is changing—in the way in which people approach everyday shopping, for example—so we have to take account of the fact that people approach things differently. It is not simply a case of going down the street to a head shop, or whatever it happens to be, to buy a substance. With every other aspect of life increasingly moving online, we must ensure that legislation keeps pace. These amendments would ensure that there is an eye towards that.

We will seek assurances from the Minister if he does not accept the amendment. This is a probing amendment, and we are trying to ensure that these elements are fully thrashed out before Report. As more and more happens online, we need to ensure that our legislation is keeping pace and taking account of changing trends in how people access substances such as NPS.

[Mike Penning]

Again, I thank both the shadow Minister and the SNP spokesman for indicating that these are probing amendments, so my colleagues can relax.

The shadow Minister summed up exactly why I will not accept the amendment. We are not trying to pick on individuals who purchase these products for personal use but, as we close head shops and other avenues, there will clearly be an increase, as the expert panel highlighted. As the Minister for Policing, Crime and Criminal Justice, the National Crime Agency is my responsibility. I have been working with the NCA and other agencies, and I have particularly been working with my colleague, the Minister for Immigration, because obviously Border Force will have a crucial role.

If we accepted the amendment, the debate would be about what is personal use. During this debate we have heard about cigarettes and alcohol. My family was in the pub trade for many, many years, and there has been an issue with Transit vans—I apologise for picking on Ford—and other large vans going across to Calais and coming back full of cigarettes and alcohol. When those vans are stopped by borders, immigration and customs, the driver says, “This is completely for personal use.” That opens up a difficult area.

The amendment would make it difficult for Border Force to do the job we need it to do. As has been highlighted, we absolutely need the expertise in that relevant area. On the point that the hon. Member for Midlothian made about the difficulties that exist online, some of the expertise that we increasingly need is there, but a lot of this is organised crime, and those are the people we are after. I am absolutely determined that the NCA and the other agencies should have the powers and the expertise they need to go after those people, not the little guy who is in possession for personal use.

The difficulty in law—this has been an issue in the courts—is personal use. It is a really difficult area, and that is why I sadly cannot support the amendments. I understand fully their probing nature. I always argue that it is all too easy to build up points as a constable by picking on the little guy, when the others are the guys that we want. I assure the Committee that we have introduced the measures to allow us to get the big guys, not to pick up the little guys. We will keep a close eye on the situation, but I think we have what we need.