Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2014

Baroness Hamwee Excerpts

Monday 12th May 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have difficulties with both the substance of the order and the amendment. It seems that we may be in a world of policy-based evidence and an amendment that is being brought to the House because the Opposition are looking for something to object to without objecting to the ban itself. The matters identified in the amendment seem to be good reasons to oppose the ban, but the Opposition support it.

The ACMD not only recommended no change in the status of khat—that it not be controlled under the Misuse of Drugs Act—but set out a number of other recommendations dealing with local needs assessments; education and prevention initiatives; culturally specific and tailored treatment and recovery services; partnership working; addressing the problems through engagement and dialogue with the local community and interagency working; working through community safety partnerships; and regular monitoring and returns. It also made a specific recommendation about data to form the basis of future research. Those would themselves have formed a very good amendment, but that is not what is before us.

The ACMD was quite clear on the merits of the ban. The Secretary of State, on the other hand, seems to be saying—if I can summarise it—that since it is banned in the rest of the EU, it must be banned here. The ban was announced last July. Will the Minister tell the House what evidence there has been of the drug’s use since that announcement? Some time has now gone by. Indeed, it has been banned in the rest of the EU since January of last year, so if there are concerns, some of those might have come to light.

One of the reasons that we are given for the proposed ban is the risk of this country becoming a regional hub or a haven for criminals. I was interested to read some of the characteristics of khat, one of which is that it has a very short life. The active ingredient declines a couple of days after being picked; it needs to be fresh for it to have an effect. I have no doubt that the users of it, as consumers, are as demanding as consumers of most products, so is it a genuine concern that we would become a regional hub, if what might be distributed through the hub has, in fact, lost its efficacy by the time it is traded on?

The risks identified from a ban include the users moving towards more addictive, harmful and expensive substances; a black market; and organised crime stepping in to supply the drug and criminalising—inevitably—the users. I appreciate the proposals about applying an escalator to how offences are dealt with, but we would be criminalising users and suppliers, and we know that one crime leads to another.

Of course, I am aware that the Minister in the Commons and the Home Secretary, in her response to the Home Affairs Select Committee, have presented the matter as finely balanced, and that the communities where use is widespread are divided. Looking at the reports, I have been wondering how broadly women in those communities want a ban and men do not. I wonder whether that is rather simplistic reporting. I find it difficult to believe that a ban would instantly lead to such a considerable behavioural change and make model husbands of former users. I have my doubts about that. There is one view that clearly comes from the Somali community, and that is that they would prefer their children to use khat rather than alcohol or tobacco. The ACMD has reported that the use of khat has been decreasing over recent years.

In the Commons, there was very little discussion—nothing from the Minister, I believe—about the broader issues of drugs policy or the wider context, to which reference has just now been made, of the economy of Kenya and the potential instability and risks associated with that. I would be very wary of banning something of cultural significance, with the risk of driving a wedge between the police and the already quite marginalised communities. The references in the reports to the use of khat at weddings made me think of sugared almonds at weddings in some other traditions and how one might respond to any suggestion that that tradition be changed. In summary, I am not persuaded by the orders, but I am not persuaded by the amendment: I would leave the balance as it is.

[Baroness Meacher (CB)]

My Lords, I support the amendment to the decision of Home Secretary to ban khat under the Misuse of Drugs Act 1971, although I identify with the comments of the noble Baroness, Lady Hamwee, in relation to the amendment. There are very good reasons to oppose this ban. I make clear at the outset that if khat presented a serious health risk to users, I would support a ban on the importation and sale of the substance. On the other hand, we now have sufficient evidence to show that banning the possession and use of psychoactive substances—even dangerous ones—is counterproductive. Of course, the excessive use of khat by small groups of Somalis needs to be tackled; the question is how. We know that bans on possession and use delay treatment. They divert resources away from public health and education initiatives and into the criminal justice system. We also know that a criminal record is extremely damaging to anyone’s employment prospects. The criminalisation of these people will therefore tend to lead them to continue with their drug habit or—if they ever get away from it—to return to it. There are very severe and negative consequences of banning, particularly on the consumer side.

That is the evidence framework within which I have thought about the Home Secretary’s decision to ignore the advice of the ACMD and ban not only the supply but the possession and use of khat. This is a most serious decision for the communities involved, people principally from Somalia, Yemen and Ethiopia. The small but vociferous group of campaigners from Somalia believe that a ban on khat will get rid of the problems as they perceive them—social problems within families and so on. In reality, those using khat will continue using the substance at a vastly increased price. The Home Affairs Select Committee’s ninth report suggested that a hundredfold increase in price could be expected from a ban on khat. The khat user who continued to use khat would also risk, as I said, a criminal record. The alternative, to which other noble Lords have alluded, is that khat would be replaced by alcohol in particular. We know that alcohol is far more dangerous and would have all sorts all sorts of consequences that khat does not have. Either alternative, therefore, would be much worse than the status quo. I am not suggesting that the status quo is wonderful, but it is nothing like as serious as the possible consequences of a ban. The idea that the household would have more cash to spend on food is, sadly, a delusion. Some women might see their husbands spending £25 on khat and think, “I could do with that to buy some shoes for the kids”, but it is a little more complex than that.

The ACMD had clear, scientific reasons for advising the Home Secretary that,

“the evidence of harms associated with the use of khat is insufficient to justify control and it would be inappropriate and disproportionate to classify khat under the Misuse of Drugs Act 1971”.

These are very strong words from the ACMD and, particularly, a council led by Professor Leslie Iversen, whom I know quite well and who is a highly regarded scientist known for his incredible moderation, gentleness and so on. He is not a wild man; if he allows such words to go forward to the Government, we really need to take note.

The two central findings concern the medical and social harms, as others have indicated. The ACMD concludes that khat has no direct causal link to adverse medical effects, other than a small number of reports of an association between khat use and significant liver toxicity—a small number and an association. In scientific lingo, as we know, “association” simply means that the two things tend to happen alongside each other. There is no indication of a causal link between the use of khat and medical consequences. On the question of anecdotal evidence of social harms, the ACMD concludes that its research into these has found no robust evidence that demonstrates a causal link between khat consumption and any of the harms indicated.

Professor Iversen emphasised in his letter to the Home Secretary that the council’s recommendations were based on a rigorous and systematic process of evidence-gathering and subsequent analysis of what was submitted and presented to it. In other words, as I understand it, the recommendations should not be set aside other than for matters of serious national security or national interest. Now my understanding is that the main reasons for the Home Secretary’s decision have nothing to do with medical and social risks, and are twofold. First, as others mentioned, Sweden and the Netherlands in particular have banned khat and would find it helpful if the UK took the same step in order to avoid this “hub”. The noble Baroness, Lady Hamwee, dealt very effectively with that point, bearing in mind the very short life of the substances within khat that people are interested in.

The other issue raised, which I find utterly peculiar, is that there is some relationship between khat use and terrorism. That is quite remarkable. I will deal with the terrorism issue very quickly. A very small trade in a perfectly legal, low-cost substance in a few BME communities is just not a serious candidate for a terrorist threat or interest. Indeed, the ACMD was not provided with any evidence of al-Shabaab or any other terrorist group’s involvement in the export or sale of khat, despite consultation with the relevant national and international official bodies. I understand that the Home Secretary has claimed that the ACMD would not have been aware of these things. However, it was aware of the people who are aware of them—and consulted them. The fact that the ACMD picked up nothing in this area should be taken seriously. On the other hand, banning a substance such as khat and increasing its value a hundredfold or more really might interest terrorists. Even on that count, this ban could be—and could be expected to be—counterproductive.

The first question one must ask on the hub possibility is whether the bans in these other countries are working. There is apparently no evidence that they are, or that they are even helpful. I would not expect them to be helpful. The idea that we follow other people simply because they want us to seems a little wrong.

I want to put a proposal with respect to khat. The Government introduced temporary-class drug orders for the purpose of controlling new psychoactive substances. I will not go on for very long on this but I want to put it forward. I applaud the Government for their policy. Its great strength is that these TCDOs do not criminalise the possession and use of these drugs while the TCDO remains in place. However, it provides for the ban of production and sale of substances that may prove dangerous. These orders were designed to enable the ACMD to analyse new drugs and determine whether a full ban under the Misuse of Drugs Act 1971 could be justified. The only possible justification given by the Government and Home Secretary—I emphasise that—for a ban of khat concerns the supply of khat to other European countries or supply involving terrorists, not that that point needs to be taken seriously. An order along the lines of a TCDO, which avoided criminalising users of khat, would fulfil the Government’s objectives while avoiding unnecessary and severe consequences for the BME communities affected.

The 12-month review proposed in the amendment would then evaluate a narrower issue: the supply ban and, for example, the price increase and illegal activity that will inevitably result. The ACMD could do that work, its findings could be put to the Home Secretary and, if the supply ban was seen not to be in the national interest, it could be dropped. If the ACMD recommended education and preventive initiatives, tailored treatments and other social interventions could then be funded instead of that money going into the criminal justice system. There is an awful lot to be said for that approach. The ACMD thought about this very carefully and that is what it came up with.

The above proposition is relevant even at this stage, if I may say so. We know that some 40% of legislation is never implemented. It is surely possible for the Government to implement only the supply side of their ban and defer—I hope indefinitely—the implementation of the ban on possession and use of khat. Such a plan would enable a more focused 12-month review, as I have already mentioned. I hope the Minister will be willing to take this idea away, even at this late stage: a supply ban only could be introduced and then evaluated to see whether it should continue.