Psychoactive Substances Bill [HL]
(9 years, 4 months ago)
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Baroness Hamwee
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 (Con)
My Lords, I think we all agree that the key element of this Bill is the provision of civil sanctions. These are important because they offer an alternative, flexible mechanism to tackle the trade in new psychoactive substances. The amendments in this group relate to the list of prohibited activities in Clause 11. These activities essentially cover the offences in Clauses 4, 5 and 8— namely, the production, supply, importation and exportation of a psychoactive substance—along with the secondary offences of assisting and encouraging those offences.
Amendment 53 seeks to remove paragraph (f) from Clause 11(1) and so remove from the list of “prohibited activity” activities which assist or encourage the production, supply, offering to supply, importation or exportation of a psychoactive substance. In the normal way, the secondary offences of assisting or encouraging a crime apply to each of the main offences in the Bill, which is why the Government have specifically included such conduct in the list of prohibited activity.
If this amendment were to be made it would not, for example, be possible to serve a prohibition notice on someone providing precursor chemicals to another person knowing that the other person intended to use them to produce psychoactive substances. Were that the case, the relevant law enforcement agency might then have no option but to charge that person with the criminal offence of assisting the commission of an offence under Clause 4. Amendment 53 could therefore have the opposite effect to the outcome that the noble Lord is seeking to achieve, as it would force law enforcement agencies down the prosecution route rather than deploying a civil sanction.
The noble Baroness has asked how assisting or encouraging a crime differs from aiding or abetting a crime. This is a complex subject, which has excited much debate within the legal community ever since the Serious Crime Act 2007 created the offence of encouraging or assisting. Perhaps it is simplest to acknowledge that there is potential crossover between the two concepts—on occasion it will be possible both to aid and abet, and encourage or assist—but there will also be offences where, because of the circumstances, it will be possible to encourage or assist, even though there is no aiding or abetting.
Amendment 54 seeks to make clear in the Bill that the provision of harm reduction advice or information does not constitute a prohibited activity. Let me assure noble Lords that giving such harm reduction advice will not be a criminal offence under the Bill. The Government have no desire to hinder the giving of such advice—the opposite is in fact true—but if someone were to publish a manual on the production of psychoactive substances, we would wish to see that activity prohibited. The Bill allows for this. For instance, guidance published by a charity which identifies and highlights the dangers of these substances will be seeking to reduce the harms of these substances and will not fall foul of the Bill. I hope that having that assurance on the record will allay any concerns that the noble Lords and the noble Baroness may have in this regard.
The Government recognise that this legislation is not the silver bullet to tackle psychoactive substance misuse. The Bill must be seen in the context of our wider strategy to tackle the harms they cause. We are also driving forward another key recommendation of the expert panel, that of enhancing our efforts to reduce demand, including through effective prevention programmes and by providing the right health-related services to support individuals recovering from substance misuse. This is, of course incredibly important. On the basis of that explanation and the assurance that I have given on Amendment 54, I hope that the noble Baroness will be content to withdraw her amendment.
Baroness Hamwee
My Lords, I certainly will. I am grateful for that explanation. I can understand the structure of the clause and its thrust rather better than I did, which was pretty stupid of me. When I looked up “aid and abet” on the internet to see what that told me, I was pointed straight to the CPS guidance, which seemed to deal with pretty much everything other than aiding and abetting. It starts with “assisting and encouraging”, so it is hardly surprising that some of us are confused. I did not know that there was such a major debate going on in the legal community; they must speak of little else. I am grateful for the clear explanation; I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) In the case of reasonable belief under subsection (3) that the person is likely to carry on the activity, the prohibition notice must set out the reasons for that belief.”
Baroness Hamwee
My Lords, in moving Amendment 55 I will speak to Amendments 58 and 60B in my name and that of my noble friend. The first amendment would add to one of the two conditions required for a prohibition notice not only that there must be a reasonable belief that a person is carrying on or likely to carry on a prohibited activity but that the notice must set out the reason for that belief. Clearly, that person should know the basis of it. I realise that this might be covered by Clause 14(2)(a), but I would be glad to have confirmation of that.
Amendment 58 is similar but in the context of a premises notice. Amendment 60B to Clause 14(2)(b)—where we are told that the notice,
“must … explain the possible consequences of not complying”,
with it—would add,
“based on the grounds in paragraph (a)”.
This is probing the extent of Clause 14(2)(b): what it is expected to cover, in what detail, and so on. I beg to move.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, as the noble Baroness explained, these amendments relate to the issuing of a prohibition notice and a premises notice under Clauses 12 and 13.
I begin by saying that the Government fully support the principle of these amendments, so much so that the Bill already contains similar provisions which seek the same thing. A prohibition notice can be issued under Clause 12 where a,
“senior officer or local authority reasonably believes that the person is carrying on, or is likely to carry on, a prohibited activity”,
and,
“that it is necessary and proportionate to give the prohibition notice for the purpose of preventing the person from carrying on any prohibited activity”.
A premises notice in Clause 13 can be issued where a senior police officer or local authority reasonably believes that a prohibited activity, as defined in Clause 11,
“is being, or is likely to be, carried on at particular premises, and … the person owns, leases, occupies, controls or operates the premises”.
Amendments 55 and 58 seek to amend Clauses 12 and 13 respectively to require the relevant senior police officer or local authority to set out the reasons in support of their reasonable belief that the respondent is carrying on, or is likely to carry on, a prohibited activity.
Clause 14 contains supplementary provisions in respect of prohibition notices and premises notices. In particular, subsection (2)(a) of Clause 14 requires that a notice must,
“set out the grounds for giving the notice”,
as well as the consequences of failure to comply. The Government envisage that the grounds specified in the notice will be those supporting the reasonable belief.
Amendments 57 and 60 seek to ensure that the respondent is fully informed of the consequences of a failure to comply with a notice. Again, this is already addressed in Clause 14—the relevant provision being in subsection (2)(b).
In relation to Amendment 60B, the possible consequences of a failure to comply with a notice are unlikely to vary according to the grounds on which a notice was issued. Essentially, the possible consequences are twofold: either a prosecution is pursued for the relevant offence in Clauses 4 to 8 of the Bill, or the relevant law enforcement agency makes an application for a prohibition order or premises order, as appropriate. On the basis that the Bill already delivers the outcome sought by these amendments, I trust that the noble Baroness, Lady Hamwee, will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, I am grateful for that response. The Minister’s comment that the explanation in the notice would vary according to the circumstances is an interesting one which I welcome because standard-form official explanations which are not designed for particular circumstances are often pretty much unreadable. One cannot necessarily work out quite how they apply. I hope that by highlighting that, I am not causing the hearts of people outside the immediate part of this Chamber to sink with the extra work that might be required in that regard. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving Amendment 55A, I will speak also to Amendments 60A and 71A, which stand also in my name and that of my noble friend. Again, the amendment deals with notices.
Amendment 55A would apply Clause 12(6) to people over 18 as well as to those under 18, and would mean that a prohibition notice must specify the period for which it is to have effect—certainty, although in a slightly different context, is something which we have touched on a good deal during the passage of this Bill—and that it must not have effect for more than three years.
I cannot envisage circumstances in which it would be appropriate to apply a prohibition notice to anybody for more than three years. I have my doubts about prohibition and premises notices anyway, but if there is a need to apply a prohibition notice for a longer period, surely the circumstances must be such as to suggest that there should be a prosecution—something rather tougher than a notice. At any age, certainty is important. Amendment 60A would apply both certainty and a statutory maximum to a premises notice.
In neither case has an offence been proved. I cannot see what a notice might do that would not be available under other legislation, particularly anti-social behaviour legislation such as a community protection notice. What is achieved by providing that somebody knows that he should not commit a crime and that the police and the local authority have got their eye on him? In a way, a premises notice is more important. I am assuming that if we are talking about head shops the intention is permanent closure. But the straightforward, honest course would be to address that directly with a proper hearing, giving the recipient of the notice more of a chance to deal with his business interests and have his representations heard in a proper way. I am concerned about the extent there.
Amendment 71A would add that what the court should do in an order should be proportionate as well as appropriate. I assume that that is implied because what courts do almost by definition has to be proportionate—but I am seeking confirmation of that at this point. I beg to move.
Lord Tunnicliffe
My Lords, I have some limited sympathy with these amendments. Any notice that has indefinite extent, which seems to be where the Bill is, has a certain discomfort about it. Clearly the Government share this discomfort because they are limiting the period of extent to three years for under 18 year-olds. I cannot see, having accepted that indefinite extent is inappropriate for under 18 year-olds, why it should not be inappropriate for those over 18. “Proportionate” is a word we all like to move around in legislation. I found that the Government have used it quite freely throughout the document. I will be interested in their response to Amendment 71A as well.
Baroness Chisholm of Owlpen
My Lords, I thank the noble Baroness for these amendments and the noble Lord, Lord Tunnicliffe, for his views. We see the civil sanctions as a useful tool to take proportionate action against offenders. The Bill contains two levels of sanctions: prohibition and premises notices, and prohibition and premises orders. Orders are the most severe, being imposed by a court and attracting a criminal offence for non-compliance.
Amendments 55A and 60A relate to prohibition notices as provided for in Clause 12 and premises notices in Clause 13. The Government have deliberately created the notice regime to be light touch, allowing a senior police officer or local authority officer to impose such a notice where they reasonably believe that a person is carrying on, or is likely to carry on, a prohibited activity as defined by Clause 11. In the case of a premises notice, the test is that there is reasonable belief that prohibited activity is being, or is likely to be, carried on at particular premises. There is no criminal sanction. The purpose of these notices is to try to stop further criminal behaviour occurring in the first instance. They are a form of final warning.
Amendment 55A seeks to remove the differentiation, so that the time limit will apply to all notices. Our starting point in relation to adults is that, as the primary aim of a prohibition notice is to stop an individual engaging in criminal conduct—something they should not be doing in any event—there was no need to impose a time limit. I remind the noble Baroness, Lady Hamwee, that other civil orders of this kind made against an adult—for example, anti-social behaviour injunctions—may also have an indefinite duration. I recognise that there are particular sensitivities about imposing civil sanctions on young people. For these reasons, we have restricted the duration of a notice issued to a person under 18 to a maximum of three years.
On Amendment 60A, a premises notice cannot be issued to an individual under the age of 18. Similar considerations apply here to those in Clause 12, so we feel that there is no need to put a time limit on premises notices.
Turning to Amendment 71A, we entirely agree that any prohibitions, restrictions or requirements contained in a prohibition order or premises order must be appropriate and proportionate. Proportionality will routinely be considered by a court as part of this decision. It is also important to remember that the court is bound by Section 6 of the Human Rights Act 1968 to act in accordance with the convention rights. Arguably, for the reasons I have given, it was not strictly necessary to include a proportionality test in Clauses 17 to 19 but we included it so that there was symmetry with the test applied by a senior officer or a local authority for the issuing of a prohibition notice or premises notice. I accept the spirit in which the amendment is intended but it is simply not necessary to amend Clause 21 to achieve this end. On the basis of this explanation, I hope the noble Baroness will be content to withdraw her amendment.
Lord Howarth of Newport
Did the Minister mean the Human Rights Act 1968 or that of 1998?
Baroness Hamwee
My Lords, I cannot say that I am comfortable about notices applying for an indefinite or unlimited period. There may be concerns about the detail of the notice. I obviously need to read the noble Baroness’s explanation. I should also wait to see what response we get to my later amendment, which is on appeals against notices. These issues all go together, and I would like then to consider where we have got to in the round. I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, the amendments in this group make a number of changes to the provisions in the Bill relating to notices and orders. The most significant amendments—Amendments 75, 76 and 77—insert three new clauses which make further provision in respect of access prohibitions.
Clause 21 enables a prohibition order or premises order to include an access prohibition, barring or restricting access to specified premises. Such a provision would, for example, enable the closure of a head shop selling psychoactive substances, initially for up to three months. This approach is based upon the provisions in the Anti-social Behaviour, Crime and Policing Act 2014 relating to anti-social behaviour closure powers. Although a number of elements of that regime are already in the Bill, the Government feel that a number of additional elements of the 2014 Act should also be replicated.
For the civil sanctions in the Bill to be effective, they must be adhered to. Therefore, sanctions must be included to deter those who would otherwise choose to breach the terms of an access prohibition.
The other amendments are largely of a technical or drafting nature, and I would be happy to provide further details if necessary. I trust noble Lords will agree that these are all sensible refinements to the existing provisions in the Bill and on that basis I beg to move.
Baroness Hamwee
My Lords, I have one or two questions on the amendments in this group. Amendment 75 deals with reimbursement of costs. Would the person being asked to make the payment have the opportunity to make representations with regard to what is being claimed—both about the principle and the amount that has been calculated and ordered?
Amendment 76 inserts a new clause on exemption from liability and refers to,
“an act or omission shown to have been in bad faith”.
I note that that does not extend to negligence. I looked at the Anti-social Behaviour, Crime and Policing Act, and we do not have negligence in there either, but it does not seem to me that not having it in that Act makes this right.
It is not quite a read-across, but Amendment 77 again applies similar provisions to those in the Anti-social Behaviour, Crime and Policing Act. Something struck me about this while reflecting on what happened during the last Government and the focus on the rehabilitation revolution and so on. I thought we were trying to avoid short-term prison sentences, and it felt uncomfortable to be providing for short-term prison sentences when we know that so often what happens is that the offender learns more about how to commit crime than he does about how not to commit crime.
Baroness Chisholm of Owlpen
My Lords, I reassure the noble Baroness that Amendment 75 makes provision to enable the relevant law enforcement agency to apply to the appropriate court for reimbursement of costs incurred in relation to the “clearing, securing or maintaining” of premises.
Amendment 76 makes provision to exempt the relevant law enforcement agency from civil liability for anything done or admitted to be done in the exercise of a power in relation to an access prohibition. The exemption does not apply when the act or omission was committed in bad faith or when the conduct was unlawful by virtue of Section 6(1) of the Human Rights Act 1998, acting incompatibly with the convention rights.
Amendment 77 creates an offence for a person, without reasonable excuse, to remain on or enter premises in contravention of an access prohibition or to obstruct an authorised person exercising powers under Clause 22(1). I understand the noble Baroness’s worries about the maximum penalty in England and Wales of six months’ imprisonment. I might need a little inspiration from my officials on that one, but perhaps we could write to the noble Baroness and make that a bit clearer.
Baroness Hamwee
This is really a broad matter of policy, and I appreciate that the provision on length of sentences replicates part of the Anti-social Behaviour, Crime and Policing Act 2014, although there are also provisions in there for different periods. I should have given the Government an indication of these questions, but I am afraid that I did not think of them until very shortly before we came into the Chamber. This may not be consoling to the noble Baroness, but I was listening in on a rather high-powered legal discussion the other day, where someone referred to what the Minister thought at four in the morning when questioned—
Baroness Chisholm of Owlpen
I am sorry to interrupt the noble Baroness, but I have a bit of clarification about Amendment 77. Six months is the standard maximum in a magistrates’ court.
Baroness Hamwee
I shall not continue with the anecdote, because I was only giving the noble Baroness an opportunity for inspiration to fly to her. I might tell her later.
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 Bates
I am grateful to the noble Lord for giving us an opportunity to look at this important area of trading standards. We expect businesses currently openly selling psychoactive substances to comply with the new law. We will be working with the police and local authorities in the lead-up to the provisions coming into force—which we aim to have happen on 1 April 2016 —to ensure that head shops and online traders operating in the UK are in no doubt that they must clear their shelves of these substances and clean up their websites by 31 March. If they do not, they can expect an early visit from the police or a local authority officer. For those who fail to comply with the law, prohibition orders will offer one possible tool with which law enforcement agencies can respond.
I am very much aware of the excellent work that trading standards officers do around the country. I have noticed their work many times, particularly in my former constituency, where they did tremendous work. Local authorities have overall responsibility for public health and spend around 25%—£760 million—of their health budget on dealing with drug and alcohol misuse. The introduction of the ban should reduce this expenditure, allowing councils to use funds to tackle other public health priorities. If it were the Government saying that, I would expect the noble Lord to say, “I’m not too sure about that”. In fact, the LGA is saying just that. It sees this as assisting councils in focusing on the other real problems in their areas which need to be tackled. Far from incurring cost, it sees the blanket ban as easing pressure.
The shop in Canterbury which I keep referring to, which is just across the road from the King’s School, was closed down by trading standards and reopened under a different name. As we have said all the way through, this kind of whack-a-mole game of cat and mouse that is going on between law enforcement agencies and the purveyors of new psychoactive substances goes to the very heart of what the Bill is about.
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.
Lord Bates
I reassure the noble Lord that evidence is coming from those in the front line, such as the police, who spend a great deal of time dealing with the side effects of these establishments, such as anti-social behaviour in the vicinity of these shops. We hear from the Local Government Association that it believes that a disproportionate amount of time is spent trying to tackle and regulate what they are doing. That could be spent elsewhere doing worthwhile things in the area of health. We may not disagree, but I will certainly reflect on the noble Lord’s important point about trading standards. We certainly want to make sure that we are working very closely to ensure that this is effectively implemented.
Lord Bates
Lord Bates
Lord Bates
( ) subject to subsection (8), sending it to the person by electronic means.”
“(8) A notice may be sent to a person by electronic means only if—
(a) the person has indicated that notices of the same description as a notice under section 12, 13 or 14 (as the case may be) may be given to the person by being sent to an electronic address and in an electronic form specified for that purpose, and(b) the notice is sent to that address in that form.(9) In subsection (8) “electronic address” means any number or address used for the purposes of sending or receiving documents or information by electronic means.”
Baroness Hamwee
“Appeals against notices
(1) A person issued with a prohibition notice or a premises notice may appeal to a magistrates’ court against the notice on any of the following grounds—
(a) that a prohibited activity or the prohibited activity specified in the notice—(i) has not been carried on,(ii) is not likely to be carried on, or(iii) in the case of a premises notice, is conduct that the person cannot reasonably be expected to control or effect;(b) that there is a material defect or error in, or in connection with, the notice;(c) that the notice was given to the wrong person.(2) An appeal must be made within the period of 21 days beginning with the day on which the person is given the notice.
(3) While an appeal against a notice is in progress—
(a) a requirement imposed by a premises notice to take any steps remains in effect, unless the court orders otherwise, but (b) any other requirement imposed by a notice is of no effect.(4) For the purpose of subsection (3) an appeal is “in progress” until it is finally determined or is withdrawn.
(5) A magistrates’ court hearing an appeal against a community protection notice must—
(a) quash the notice,(b) modify the notice (for example by extending a period specified in it), or(c) dismiss the appeal.”
Baroness Hamwee
My Lords, in moving my amendment I will speak also to my and my noble friend’s Amendments 65, 65A, 68, 68A, 85A, 85B and 85C. The first of these amendments would provide for a right of appeal against prohibition and premises notices, with judicial oversight. The amendment is based very closely on Section 46 of the Anti-social Behaviour, Crime and Policing Act, which provides for an appeal against community protection notices. I am not suggesting that a subject of the notice should have free rein to produce or supply a psychoactive substance, and so on, but it could be argued that the steps required by, let us say, a premises notice, are not reasonable.
We are talking, perhaps, about someone’s livelihood here. Whatever we might think about head shops, if what they are doing is legal, we need to be very careful about precluding someone from carrying on a business, and certainly we must be careful that we give him the opportunity to appeal when he considers that the notice is inappropriate and undeserved. I appreciate that a breach of a notice would take us through procedures to an application to the court for an order, with surrounding protections. However, an appeal against a notice seems to us to be right—and, properly, a right—and it should be available so that someone can avoid having what I could loosely call “a record”. It is not for us to argue for it; it is for the Government to explain why the right of appeal is not included.
The other amendments are all about the standard of proof for prohibition and premises orders and changing them from the civil to the criminal standard. The orders would be made by the criminal courts, and so the criminal rules of evidence, and so on, should apply. This is also the thrust of my Amendments 85A, 85B and 85C to Clause 28, which is about the nature of the proceedings—essentially turning them from civil to criminal proceedings. Again, given the subject matter of this, it is for the Government to explain why what they are proposing should not be required to meet the criminal standard of proof and be dealt with in the way that we are accustomed to through the criminal courts. I beg to move.
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 Bates
I shall respond, first, to the point made by the noble Lord, Lord Tunnicliffe. Clause 23 would require the higher criminal standard of “beyond reasonable doubt”, so that is how the matter would be dealt with.
Turning to the point about appeals, I believe that, as proposed, Amendment 64A would be disproportionate, given the nature of prohibition and premises notices. These notices are the first stage of our graded response to tackling the supply of new psychoactive substances. They are intended as a final warning and can be issued by a senior police officer or local authority requiring that the subject of the notice desist from any prohibited activities.
A prohibition notice can be issued only if the relevant officer reasonably believes that the respondent is carrying out, or is likely to carry out, prohibited activity. Therefore, it cannot be issued without good reason, and the issuing officer must also reasonably believe that it is a necessary and proportionate response, given the circumstances. As I have indicated, a notice acts as a final warning. Breach of a notice is not a criminal offence and there are no other direct sanctions flowing from a failure to comply.
The noble Baroness drew a parallel with community protection notices and pointed to the fact that the Anti-social Behaviour, Crime and Policing Act 2014 provides for a right of appeal against such notices. Indeed, this amendment largely mirrors Section 46 of the 2014 Act, but there is an important difference between a community protection notice and the notices provided for in the Bill, in that breach of the former is a criminal offence—hence the right of appeal.
I am not persuaded that, in the absence of a direct sanction for breach, a right of appeal is called for. If the respondent takes issue with a prohibition or premises notice, they can make representations to the issuing agency, which could then, if appropriate, withdraw the notice in accordance with the provisions in Clause 14.
Where the relevant enforcement agency concludes that a prohibition or premises notice had been breached, it could decide to pursue a prosecution for one of the main offences or make an application for a prohibition order or premises order, as the case may be. If the respondent is charged with an offence, they will be able to defend themselves in court in the normal way. If an application is made for a prohibition or premises order, again, the respondent will have his or her day in court and will also be able to appeal against the making of the order. We therefore have judicial oversight where it is appropriate.
I have tried to set out the nature of our graded response to the trade in new psychoactive substances and to state why I believe that an appeal process is unnecessary in the case of a prohibition or premises notice.
The other amendments in this group seek to provide for the criminal standard of proof, rather than the civil standard, to apply when a court is considering making either a prohibition or a premises order—a point on which the noble Lord, Lord Tunnicliffe, sought clarification.
Clauses 17 and 19, which Amendments 65, 65A, 68 and 68A seek to modify, make provisions for the application process for prohibition orders and premises orders, outlining a number of conditions that need to be met for an order to be made. Proceedings under Clauses 17 and 19 are civil proceedings. Accordingly, it follows that the civil standard of proof should apply. The noble Lord suggested that, as the proceedings are part of the criminal process, the criminal standard should apply, but this is based on a false premise. The whole point of the civil sanctions in the Bill is to enable law enforcement agencies to adopt a proportionate response to any offending behaviour and, in appropriate cases, to seek to tackle the behaviour by action short of a prosecution.
The application of the civil standard to such proceedings is not without precedent. Under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, the civil standard applies to proceedings in respect of anti-social behaviour injunctions. The civil standard also applies to proceedings under Section 34 of the Policing and Crime Act 2009 in respect of gang injunctions. Of course, if a prohibition order or premises order is breached, the criminal standard of proof would apply to any proceedings for an offence under Clause 23, as I stated.
One of the key purposes of these civil orders is to enable the police, local authorities and other law enforcement agencies to act promptly to nip problems in the bud before they escalate. If the criminal standard of proof were to apply, it would necessarily dictate that more time was required for evidence gathering and there might be little to be gained by applying for a prohibition order as opposed to pursuing criminal prosecution for an offence under Clauses 4 to 8. These amendments would circumscribe the current flexibility built into the enforcement powers in the Bill, to the detriment of communities and defendants alike.
Much the same arguments apply to Amendments 85A to 85C to Clause 28. The clause provides that proceedings before the court under Clause 18 or Clause 25 are civil proceedings—those clauses relate to the making or variation of orders on conviction. It is the case that such proceedings take place in a criminal court, but it is important to remember that a prohibition order or premises order, as with similar civil orders, is not a punishment. As such, they do not form part of the sentence of the court. These orders are preventive in nature and in these circumstances it is again appropriate that the civil standard of proof and the civil standard of evidence should apply. Given that these are quite properly civil proceedings, I hope that the noble Baroness and other noble Lords with amendments tabled in this group will, on reflection, consider that the civil standard should operate and, in the light of this explanation, that the noble Baroness will withdraw her amendment.
Baroness Hamwee
My Lords, the Minister said that it is not intended as a punishment—I think it was during the debate on a previous group that I wrote down that we heard from the Dispatch Box the term “sanction”. I will need to go back and have a look at that.
As to whether or not we are operating on the basis of a false premise, I do not think that it is quite that, but rather that we have different views as to whether there should be civil or criminal proceedings—it is not so much the premise as the approach.
A premises notice could be given when the activity is being carried on, thought to be carried on or likely to be carried on by somebody other than the premises owner. I am actually quite concerned about how these things interplay.
As regards an appeal, I am glad to hear that representations can be made to the police or the local authority about the notice being withdrawn. However, it does raise the question, certainly to me, of whether there should not be explicit provisions about the right to make representations and how representations should be considered, possibly by providing for a more senior officer to look at the matter. That is not necessarily a very satisfactory way of dealing with it, but there is something in there that we would like to think about—my noble friend is nodding encouragingly; I hope it is encouragingly—as to how to cover the right to make representations and how they can properly be dealt with. Between now and the next stage we will have a think about that—but of course I beg leave to withdraw the amendment.
Lord Bates
Lord Bates
Lord Bates
Lord Bates
“( ) An item that is handed over in compliance with a requirement imposed by virtue of subsection (4) may not be disposed of—
(a) before the end of the period within which an appeal may be made against the imposition of the requirement (ignoring any power to appeal out of time), or(b) if such an appeal is made, before it is determined or otherwise dealt with.”
“( ) Subsection (6) of section 13 (when a person “owns” premises) applies for the purposes of subsection (5) of this section as it applies for the purposes of that section.”
Lord Bates
(2A) Those persons are—
(a) the chief officer of police for a police area, in the case of an order made in England and Wales;(b) the chief constable of the Police Service of Scotland, in the case of an order made in Scotland;(c) the chief constable of the Police Service of Northern Ireland, in the case of an order made in Northern Ireland;(d) the chief constable of the British Transport Police Force, in the case of an order made in England and Wales or Scotland;(e) the Director General of the National Crime Agency;(f) the Secretary of State by whom general customs functions are exercisable.”
Lord Bates
“Access prohibitions: reimbursement of costs
(1) A person listed in subsection (2) that incurs expenditure for the purpose of clearing, securing or maintaining premises in respect of which an access prohibition is in effect (see section 21(5)) may apply to the court for an order under this section.
(2) Those persons are—
(a) a local policing body;(b) the Scottish Police Authority; (c) the chief constable of the Police Service of Northern Ireland;(d) the British Transport Police Authority; (e) the Director General of the National Crime Agency;(f) the Secretary of State by whom general customs functions are exercisable;(g) a local authority.(3) On an application under this section the court may make whatever order it considers appropriate for the reimbursement (in full or in part) by the person against whom the order imposing the access prohibition was made of the expenditure mentioned in subsection (1).
(4) An application for an order under this section may not be heard unless it is made before the end of the period of 3 months starting with the day on which the access prohibition ceases to have effect.
(5) An application under this section must be served on the person against whom the order imposing the access prohibition was made.
(6) In this section “the court” means—
(a) the court that made the prohibition order or the premises order imposing the access prohibition, except where paragraph (b) or (c) applies;(b) where the court that made the order was the Court of Appeal, the Crown Court;(c) where the court that made the order was a youth court but the person against whom the order was made is aged 18 or over at the time of the application, a magistrates’ court or, in Northern Ireland, a court of summary jurisdiction.”
“Access prohibitions: exemption from liability
(1) Neither an authorised person, nor the person under whose direction or control the authorised person acts, is to be liable in damages for anything done, or omitted to be done, by the authorised person in the exercise or purported exercise of a power under section 22.
(2) Subsection (1) does not apply to an act or omission shown to have been in bad faith.
(3) Subsection (1) does not apply so as to prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful by virtue of section 6(1) of the Human Rights Act 1998.
(4) This section does not affect any other exemption from liability (whether at common law or otherwise).
(5) In this section “authorised person” has the same meaning as in section 22.”
Lord Bates
“Offence of failing to comply with an access prohibition, etc
(1) This section applies where a prohibition order or a premises order imposes an access prohibition (see section 21(5)).
(2) A person, other than the person against whom the order was made, who without reasonable excuse remains on or enters premises in contravention of the access prohibition commits an offence.
(3) A person who without reasonable excuse obstructs a person acting under section 22(1) commits an offence.
(4) A person guilty of an offence under subsection (2) or (3) is liable—
(a) on summary conviction in England and Wales, to either or both of the following— (i) imprisonment for a term not exceeding 51 weeks (or 6 months, if the offence was committed before the commencement of section 281(5) of the Criminal Justice Act 2003);(ii) a fine;(b) on summary conviction in Scotland, to either or both of the following—(i) imprisonment for a term not exceeding 12 months;(ii) a fine not exceeding level 5 on the standard scale;(c) on summary conviction in Northern Ireland, to either or both of the following—(i) imprisonment for a term not exceeding 6 months;(ii) a fine not exceeding level 5 on the standard scale.”
Lord Bates
“( ) An order that has been varied under this section remains an order of the court that first made it for the purposes of—
(a) section (Access prohibitions: reimbursement of costs);(b) any further application under this section.”
Lord Bates
Lord Bates
“( ) An appeal under subsection (1) against the making of an order must be made before the end of the period of 28 days starting with the date of the order.”
Lord Bates
“( ) An appeal under subsection (1) against the making of a decision must be made before the end of the period of 28 days starting with the date of the decision.”
“( ) A prohibition order or a premises order that has been varied by virtue of subsection (4) remains an order of the court that first made it for the purposes of sections (Access prohibitions: reimbursement of costs) and 24.”
Lord Bates
Lord Bates
“( ) an individual against whom a prohibition order imposing an access prohibition has been made reaches the age of 18 whilst proceedings before a youth court under section (Access prohibitions: reimbursement of costs) are ongoing.”
Lord Paddick
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 Bates
My Lords, let me deal first with Amendments 87A and 89, which relate to the stop-and-search powers in the Bill. The noble Lord, Lord Paddick, has explained that Amendment 87A would remove the liability to stop and search persons suspected of committing the offence of failing to comply with a prohibition order or premises order. As I understand it, the case for the amendment is that any breach of a prohibition order or premises order would in itself constitute an offence under Clauses 4 to 8, and accordingly it is not necessary to apply the stop-and-search powers to the Clause 23 offence. Such reasoning seems to misunderstand the nature of the prohibition orders and the premises orders. As we have already debated, these orders may contain any prohibitions, restrictions or requirements that the court considers appropriate. Failure to comply with these would be a breach of the order and therefore constitute an offence under Clause 23, so a person could commit the Clause 23 offence without also committing one of the main offences under Clauses 4 to 8. It is therefore entirely appropriate that the stop-and-search powers extend to circumstances where a person is suspected of failing to comply with a prohibition or premises order. To remove the reference to the Clause 23 offence would weaken the enforcement powers in the Bill.
Amendment 89, in the name of the noble Lord, Lord Howarth, would require an annual report to Parliament on the exercise of the stop-and-search powers. We recognise the sensitivity surrounding the exercise of such powers, which is why my right honourable friend the Home Secretary is determined to reform the way that they are used. Indeed, our party manifesto included a commitment to legislate to mandate changes in police practices if stop and search does not become more targeted and stop-to-arrest ratios do not improve.
As to the specifics of the amendment, I advise the noble Lord that forces must already collect data on stop and search that are published annually for public scrutiny. Those data include the ethnicity of the individuals concerned. Forces are also required under the Best Use of Stop and Search Scheme to record additional data, such as the reason for the stop and search, the outcome and whether there is a connection between the two. This greater transparency enables greater scrutiny and accountability. I expect such data collections to include the stop-and-search powers provided for under the Bill. The noble Lord has raised some serious points. He is right that the stop-and-search powers in the Bill need to be properly monitored, but I hope I have been able to reassure him that there are already mechanisms in place to do just that.
Amendment 94A relates to Clause 46, which provides for a fast-track procedure for the disposal of seized psychoactive substances. The clause was included in the Bill at the direct request of the national policing lead on new psychoactive substances. Clause 46(1) outlines four conditions that, when met, allow a substance to be disposed of under the fast-track process.
Amendment 94A relates to the third condition—namely, that the officer reasonably believes that the seized item is a psychoactive substance but is not evidence of any offence under the Bill. Amendment 94A seeks to amend the condition so that a substance can be seized only where it is proved to be psychoactive. The procedure provided by the clause broadly mirrors the well-established process already in operation for temporary class drugs under Section 23A(4) and (5) of the Misuse of Drugs Act 1971. Section 23A(4) uses the same language as here—namely, a test of “reasonably believes”. For small quantities of seized substances, where there is no evidence of an offence under the Bill, this is an appropriate test. We must be mindful both of the need to protect the public—we do not want to be returning potentially harmful substances once seized—and to avoid tying up the police in unnecessary bureaucracy and the need for expensive forensic testing.
The amendment has the potential to severely restrict the utility of this power and questions the professional judgment of police and customs officers. An officer’s reasonable belief in this context could be based on the substance’s packaging, its markings or even whether the individual from whom it was seized appears intoxicated and the officer can infer that the substance found may be responsible. As demonstrated in the context of temporary class drug orders, requiring officers to make decisions based upon their reasonable belief is not new. The Home Office will continue to work with the national policing lead and the College of Policing to ensure that guidance is developed on this issue to assist officers.
The police rely on statutory stop-and-search powers. I refer noble Lords to annexe A of the Police and Criminal Evidence Act codes of practice for the full list. We need to add those statutory powers for the purposes of enforcing the provisions of this Bill. The Government are clear that the powers of stop and search, when used correctly, are vital in the fight against crime. However, when it is misused, stop and search is counterproductive and a waste of police time. That is why the proposal to introduce the best use of stop-and-search schemes and the publication of data, which the noble Lord requested, is such an important part of us monitoring how this legislation is implemented on the ground. That evidence will be collected and, therefore, able to be reviewed as this goes forward. I hope that, with that additional explanation, the noble Lord will feel able to withdraw his amendment.
I am conscious that a letter is on its way to noble Lords, which I promised after the interventions of the noble Lords, Lord Rosser and Lord Harris of Haringey, on the whole process of how one begins testing and determining whether what is there is a psychoactive substance. That is in train and will certainly be available to noble Lords ahead of Report stage. I hope that that will give further clarity on this matter.
Lord Paddick
I thank the Minister for his response. By changing horses half way through, I might have thrown the Minister in specifying Clause 23 and not specifying Clauses 4 to 8. Therefore, what the Minister read out was an assumption of what my thinking was, as opposed to what my thinking became when I presented it; namely, that if these are arrestable offences there is a power for the police, once the person is arrested, to detain and search them. Therefore, it would seem unnecessary to have the powers provided by Clause 32. I would not expect the noble Lord to respond now to that because it was my fault for misleading him in the way in which I presented the amendments.
On seizure and destruction of substances that an officer reasonably believes to be a psychoactive substance, my point was not about coming across a small amount in someone’s pocket that the officer could then seize and destroy. We were thinking more of where the substances were found in a head shop, for example, and turned out to be a large quantity which could or could not be a psychoactive substance. Those large quantities could be destroyed simply on the basis of the officer reasonably believing that they are something covered by this Bill, but which then turn out not to be.
Having further explained what I was getting at but did not make clear the first time around, perhaps the Minister will respond to me between now and Report stage. On that basis, I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, given the lateness of the hour, I do not propose to speak at length about this group of technical and drafting amendments. My noble friend Lord Bates has provided details of the amendments in two letters to the noble Lord, Lord Rosser, copies of which have been sent to all noble Lords who spoke at Second Reading. Copies of these letters have been placed in the Library. I would be happy to explain particular amendments if any noble Lord would like further details, but for now I beg to move.
Lord Bates
(0) a designated NCA officer authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a police or customs officer under this Act;”
Lord Bates
Lord Bates
“( ) In the case of an application made by a procurator fiscal, any requirement imposed on a person applying for a search warrant by this paragraph or paragraph 2 may be met by a relevant enforcement officer.”
“( ) In this paragraph “specific-premises warrant” and “all-premises warrant” have the meaning given by section 35(3).”
Lord Bates
“(3) If the court is satisfied that—
(a) the item is a psychoactive substance, and(b) at the time of its seizure, the item was not being used for the purposes of, or in connection with, an exempted activity (see subsection (12)) carried on by a person entitled to the item,the court must order the forfeiture of the item.(4) If the item is not a psychoactive substance,”
“(12) For the purposes of this section—
(a) an activity is an “exempted activity” in relation to a person if the carrying on of the activity by that person would not be an offence under this Act by virtue of regulations under section 10; (b) the persons “entitled” to an item are—(i) the person from whom it was seized;(ii) (if different) any person to whom it belongs.”
Lord Bates
Lord Bates
“( ) In this section “the court” means—
(a) the court by or before which the person is convicted of the offence, or(b) if the person is committed to the Crown Court to be dealt with for that offence, the Crown Court.”
Lord Bates
(a) a person proposes to give a prohibition notice,(b) a person makes an application for a prohibition order under section 17, or(c) a person mentioned in subsection (1)(a) or (2) of section 24 makes an application under that section for the variation of a prohibition order.”
(5A) The “relevant matters” are—
(a) in the case of a prohibition notice, the intention to give a prohibition notice containing the terms;(b) in the case of a prohibition order, the intention to apply for—(i) a prohibition order containing the terms, or(ii) the variation of a prohibition order so that it contains the terms;(c) in either of those cases, the terms. (6) In the case of a prohibition order, it does not matter for the purposes of sub-paragraph (5) whether the request or notification is made before or after the making of the application referred to in sub-paragraph (5A)(b).
(7) In this paragraph—
“non-UK service provider” means a service provider established in an EEA state other than the United Kingdom;“the relevant enforcement authority” means—(a) in the case of a prohibition notice to be given by a constable, the chief officer of police or chief constable (as the case may be) of the police force of which the constable is a member;(b) in the case of a prohibition notice to be given by a designated NCA officer, the Director General of the National Crime Agency;(c) in the case of a prohibition notice to be given by a general customs official, the Secretary of State by whom general customs functions are exercisable;(d) in the case of a prohibition notice to be given by a local authority, that local authority;(e) in the case of a prohibition order, the person applying for the order or for the variation of the order (as the case may be).”
Lord Bates
Lord Bates
“Police (Northern Ireland) Act 20032A In Schedule 2A to the Police (Northern Ireland) Act 2003 (powers and duties of community support officer), after paragraph 9 insert—
“Powers to seize and retain: psychoactive substances9A (1) If a CSO—
(a) finds a psychoactive substance in a person’s possession (whether or not the CSO finds it in the course of searching the person by virtue of any other paragraph of this Schedule), and(b) reasonably believes that it is unlawful for the person to be in possession of it,the CSO may seize it and retain it.(2) If a CSO—
(a) finds a psychoactive substance in a person’s possession (as mentioned in sub-paragraph (1)), or(b) reasonably believes that a person is in possession of a psychoactive substance,and reasonably believes that it is unlawful for the person to be in possession of it, the CSO may require the person to give the CSO his name and address.(3) If in exercise of the power conferred by sub-paragraph (1) the CSO seizes and retains a psychoactive substance, the CSO must—
(a) if the person from whom it was seized maintains that he was lawfully in possession of it—(i) tell the person where inquiries about its recovery may be made, and(ii) explain the effect of sections 45 to 47 and 49 of the Psychoactive Substances Act 2015 (retention and disposal of items), and(b) comply with a constable’s instructions about what to do with it.(4) Any substance seized in exercise of the power conferred by sub-paragraph (1) is to be treated for the purposes of sections 45 to 49 of the Psychoactive Substances Act 2015 as if it had been seized by a police or customs officer under section 32 of that Act. Section 46 of that Act applies in relation to any such substance as if the reference in subsection (1)(b) to the police or customs officer who seized it were a reference to the CSO who seized it.
(5) A person who fails to comply with a requirement under sub-paragraph (2) is guilty of an offence and is liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
(6) Paragraph 4 applies in the case of a requirement imposed by virtue of sub-paragraph (2) as it applies in the case of a requirement under paragraph 2(1).
(7) In this paragraph “police or customs officer” and “psychoactive substance” have the same meaning as in the Psychoactive Substances Act 2015.”
Lord Howarth of Newport
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.