Psychoactive Substances Bill [HL]

Baroness Hamwee Excerpts

Tuesday 14th July 2015 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have added my name to the noble Baroness’s Amendment 3, and my noble friend Lord Paddick and I have Amendments 4, 5, 8 and 9 in this group.

On the term “novel”, which is the subject of one of our amendments, the Secretary of State in her correspondence with the Advisory Council on the Misuse of Drugs has explained how difficult a term this would be in legislation. I entirely accept that point, but as it was raised by the ACMD, which said that the omission of the term widened the scope of the Bill beyond that originally intended and cautioned against a blanket ban on psychoactive substances—because, for reasons we have heard, it would be almost impossible to list all desirable exemptions—I thought it was appropriate to raise it. As the Secretary of State points out, one might ask: novel since when? The use of the term “novel” as used by the ACMD is in itself slightly novel, but it is a term that is widely used. We have talked throughout this Bill—the term has come into common usage—of “new” psychoactive substances. If “novel” means new, and we have been using the term “new” again today, I think that it deserves some explanation from the Minister.

Importantly, I support the noble Baroness with regard to the term “synthetic”, because surely that is what this Bill is really all about. The Minister spoke in Committee about producers of new psychoactive substances constantly looking for loopholes, and I of course understand that, but the term is more precise than “novel”. I hope the Government can consider some way of addressing concern about the breadth of the ban. To me, the term “synthetic” imports a notion of artificiality, of materials being brought together, a combination. That is probably what it means; I suspect one of those comes from the Greek and one from the Latin. It suggests imitating a natural product.

The Minister referred in defence of the Bill to natural products being available in head shops which are far from safe. He mentioned fly agaric mushrooms. I had a quick look at the Kew botanic gardens website this morning, which calls them,

“the most iconic of … toadstools … commonly depicted in children’s books and on Christmas cards”,

so let us be very careful where we tread. It refers to their hallucinogenic properties, which I do not doubt, but then states that they have been well-known for centuries. Much the same can be said about salvia divinorum. The second part of that name suggests that there are sacred aspects to that substance, as is the case. Again, it has been in use for centuries. So I question whether it is appropriate to ban such substances now through this mechanism. We have a lot of drugs legislation, as the noble Baroness said, and one has to accept that this is a fairly hastily prepared Bill. It is not, I would have thought, directed at natural, albeit dangerous, substances known for centuries.

Is there something about how these plants are treated that distinguishes them from other plant-based drugs which are covered by the Misuse of Drugs Act? In the case of a substance that is integral to a religion, like the variety of sage to which I have referred, is there a mechanism for permitting its use in a religious context?

The question of harm is fundamental to everything we are talking about. As has been said, this issue has been raised by the ACMD and we on these Benches—and, I am sure, the whole House—are concerned about ensuring that harm is the focus of the legislation. My noble friend and I are concerned about the whole premise of the Bill—we have debated this before—because we do not believe that a complete ban can work. Human beings do not take well to prohibitions and if new psychoactive substances become more difficult to get hold of, they will be driven underground or users will turn to more harmful substances. That is why we believe that harm should be the focus of the Bill.

I turn now, as I did at the previous stage, to the Misuse of Drugs Act. This established the Advisory Council on the Misuse of Drugs and gave it an advisory role where,

“the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem”,

and in,

“preventing the misuse of such drugs or dealing with social problems connected with their misuse”.

I thought it would be appropriate to import those words into the Bill and our amendments deal with that. We do not seek to put them into Clause 1, as the noble Baroness has done, because that is an overview. It points to the definition clause but we have included the words in our amendment to Clause 2, the definition clause, providing a requirement on Ministers to refer matters to the ACMD and allowing it to oppose exemptions on this basis. The Secretary of State’s letter to the ACMD refers to a discretion about the definition and scope of the exemptions. We want to make it clear that the basis should be harm, not an unqualified, undefined term but using the terms in established legislation.

I have just seen, as other noble Lords will have done, the ACMD’s letter of 13 July. I do not criticise it but I am sure that I am not the only noble Lord who thinks that we could have done a better job on this Bill if there had been consultation with the ACMD before it was published. The advisory council has moved very quickly—it cannot have been easy for it—but it refers in its letter to having had only a narrow window of opportunity to make recommendations for amendments and to begin to formulate advice. This House does its best work when we have a good basis to work from and are not trying to second-guess the experts in the field.

[Lord Howarth of Newport (Lab)]

My Lords, it is remarkable that the international community, having been increasingly aware of and alarmed by the dangers of new psychoactive substances, has none the less not so far succeeded in establishing a definition that is watertight in legal terms and available to the Government to use in their legislation as they seek to fulfil their manifesto pledge. The expert panel, on page 38 of its report, advised that the definitions in use in legislation would need to be robust. This group of amendments seeks to specify more closely the generic problem that we are seeking to address through this legislation.

In seeking to tighten and, in a sense, limit the scope of the Bill in this way, let me not give the impression—I know that other noble Lords who have supported these amendments would not want the impression to be given—that we in any way minimise the dangers from new psychoactive substances. This is a serious and challenging social problem.

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Moved by

[Baroness Hamwee]

5: Clause 2, page 1, line 15, leave out paragraph (a) and insert—
“(a) in the opinion of the Advisory Council on the Misuse of Drugs is capable of producing a psychoactive effect in a person who consumes it, and(aa) is, or appears to the Advisory Council on the Misuse of Drugs likely to be, misused and of which the misuse is having, or appears to them capable of having, harmful effects sufficient to constitute a social problem, and”

[Baroness Hamwee]

My Lords, before I speak to Amendment 5, perhaps I should say to noble Lords who are wondering what is happening, “Do not go away”. I did not wish to abuse the House by too much toing and froing during the exchange on the first group of amendments but some points came out in that debate that are relevant to Amendment 5.

The noble Lord, Lord Tunnicliffe, made some interesting points and analysis of the situation in regard to harm. I shall quote again from the ACMD’s letter of 2 July on the concept of harm. It stated:

“Without the inclusion of the words ‘harmful’ or ‘potentially harmful’, the ACMD can envisage situations whereby the supplier of benign or beneficial substances could be prosecuted under the Bill”.

It also stated that the expert panel set up to consider this issue,

“recommended the inclusion of the concept of harm and a ‘safety clause’”—

as it called it—

“whereby substances of low or no harm—

and we know the difficulties of setting a threshold—

“would be excluded from such a Bill”.

Self-harm has been raised. It is a social problem within the terminology I have used, which, as I have said, is lifted from the Misuse of Drugs Act.

Without wishing to expand on this, to think now of using this Bill to ban botanical substances—types of sage and mushroom have been mentioned—which have been legal for centuries raises questions about propriety and whether it is too authoritarian and so on. Perhaps that is not an issue for now.

I accept the point about the time taken to show harmful effects causing social problems but we have to put this in the context of the substance producing a psychoactive effect and the time and difficulty involved with that. My amendment would deal with the question of harm without sabotaging the direction of the Bill.

If amendments are made in the Commons, we may welcome them. However, if amendments are not made in the Commons, we will not have the basis for further discussion because at that stage we cannot reintroduce issues that are unrelated to amendments that the Commons have made. I therefore beg to move and I wish to test the opinion of the House.

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[Baroness Meacher]

My Lords, in moving Amendment 11 I shall also speak to Amendment 12, both of which we debated in Committee. I intend not to repeat anything of the arguments we used then but rather to reflect on developments since. The intention of the amendments is to ensure that all legitimate medicines and substances used for any form of legitimate research are exempted from the scope of this legislation.

I am most grateful for the Minister’s letter to the noble Lord, Lord Rosser, in which he says that the Government are looking again at the definition of medicinal products in Schedule 1 to ensure that it is fully aligned with existing medicines legislation. The question is what exactly that means. I seek only an assurance from the Minister that the definition will include all medicines prescribed on a named-patient basis and all unlicensed—or any other—psychoactive substances prescribed by a doctor on the basis that the prescription is believed by that doctor to be in the best interests of the patient. My clear understanding is that a doctor can prescribe any medication, even if it is unlicensed or not recognised, so long as they believe that it will help the patient. Many medicines come on to the market which may have been tested in other countries or in other ways but which have not been through UK systems.

Amendment 12 deals with research. It would be helpful to have an assurance that all legitimate research, including laboratory research, involving psychoactive substances in academic institutions or undertaken by industry will be fully exempted from the scope of the Bill. Alternatively, perhaps the Minister could assure the House that the Government will seek an assurance from the ACMD that whatever wording is used will achieve that objective. We just want all noble Lords to be completely satisfied that these two objectives will be achieved.

I have added my name to Amendment 24, tabled by the noble Lord, Lord Paddick. The aim here, as I understand it, would be to ensure that the regulations exempting medicines and research are in place by the implementation date of the legislation. The wording in the amendment itself is slightly different, but I am sure that that is the intention. No doubt the Minister will comment on this in her response to this group of amendments.

[Baroness Hamwee]

My Lords, Amendment 24, to which the noble Baroness has added her name, comes from my noble friend Lord Paddick and me. Like the noble Baroness, I will not spend long on this, because I am optimistic about where the Government are going with it. I was concerned that the current provisions of the Bill are too limited, because they are limited to medicines. However, I will repeat one comment that I made at the last stage. Professor Val Curran, in her report for the all-party parliamentary group that the noble Baroness chairs on regulating cannabis for medicinal use, referred to a “stranglehold on research”. She sets out, quite pithily, the “costly obstacle course” involved in undertaking any research, because of the time taken by licence applications. Import licences are being granted for so short a time that they expire before the arrangements for the research can be made, so I welcome the Government’s further consideration of this. As Professor Curran says, at the moment, UK research into this area is a “massive uphill struggle”.

[Lord Howarth of Newport]

My Lords, I am not sure that the issue of the medicinal use of cannabis is germane to this particular Bill—

[Baroness Hamwee]

I would just make it clear that I am talking about research. It happens to be in that context, but it is research.

[Lord Howarth of Newport]

I was not meaning in any way to attempt to refute or reject something that the noble Baroness had just said—I was apologising to the House for being about to mention the medicinal use of cannabis, because it is somewhat marginal to the Bill. However, ensuring that research for medical purposes, or indeed for other legitimate industrial purposes, is not inhibited by the provisions of this Bill certainly is germane, and it is rendered all the more important because of the difficulties that the Misuse of Drugs Act 1971 already places, in practice, on certain sorts of research that it is highly desirable should be pursued. I also have the report by Professor Val Curran and Mr Frank Warburton in my hands, and I was going to draw to the attention of the House the observations made by the authors of that report that there is what Professor Curran calls a “stranglehold on research”. She says in the report:

“Carrying out research into cannabis in the UK is a costly obstacle course. It involves a minimum outlay of £5,000 to cover licensing and security; licence applications take about a year”.

She broadens out what she says to deal with other substances in Schedule 1, saying:

“As a result of its Schedule 1 status in the UK only four hospitals have been granted a licence to hold stocks of cannabis although all of them are able to hold heroin”.

So it is a somewhat confused situation. I was encouraged to read in the Home Secretary’s letter to Professor Iverson of 11 July that the,

“Government’s intention is for all bona fide medical and other scientific research to be untouched by the provisions of this Bill”.

I simply draw to the attention of the Minister and the House that the provisions of the 1971 legislation already make for very considerable difficulty in pursuing bona fide research into certain substances in Schedule 1. I am very happy to know that the Government are consulting and looking to amend the provisions of this Bill in the House of Commons, and I hope that they take fully into account when they do the difficulties that the 1971 Act has already created.

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Moved by

[Baroness Hamwee]

15: Clause 5, page 3, line 7, leave out “is reckless as to” and insert “should know”

[Baroness Hamwee]

My Lords, the amendment is in the name of the noble Lord, Lord Lucas, who cannot be here today. One should perhaps keep one’s mouth shut, because when I said to him, “I think you have a point”, he said, “Will you move my amendment for me, then?”.

The amendment would change the requirement in the clause that the supplier “knows” or is being “reckless” as to whether the recipient would,

“be likely to consume the substance for its psychoactive effects”,

to a requirement that he “should know” that that was the case.

I have seen the letter from the Minister to the noble Lord, Lord Lucas. It seems to me that the examples drawn on by the Home Office to defend the recklessness provision are rather different from the situation envisaged by the Bill. Reference is made to two provisions in legislation where retailers are required to consider the age of a purchaser, and I know that the noble Lord is particularly concerned about retail. A third reference is made to the Licensing Act, under which retailers are prohibited from selling alcohol to people over 18 who are drunk—fair enough.

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[Lord Bates]

I thank the noble Baroness for presenting this amendment on behalf of the noble Lord, Lord Lucas, who clearly thought that discretion was the greater part of valour, being temporarily absent from your Lordships’ House. This is a subject that he feels very strongly about and one that he raised in Committee. We took that very seriously and it resulted in another letter, on 8 July, to which the noble Baroness has referred.

I signal to officials who may be listening to the debate that I want to respond particularly to the point about the guidance that will be developed as a result of the dialogue that is taking place with the Association of Convenience Stores. I say in parentheses that those stores are very supportive of what we are trying to do because a lot of criminal disruptive activity congregates in areas where there are head shops. That is of concern to their members who are in the vicinity of those shops from a public order point of view. I am therefore keen to be able to provide an answer to the question of when guidance might be available.

For a prosecution to be brought for the supply offence in clause 5(1), the prosecution must show, among other things, that the defendant knew, or was reckless as to whether, the psychoactive substance supplied was likely to be consumed by the person to whom it was supplied, or by another person, for its psychoactive effects. The mental element of the offer to supply offence in Clause 5(2) requires that the defendant knew, or was reckless as to whether, the substance that was being offered was likely to be consumed by the person to whom it was supplied, or by some other person, for its psychoactive effects. In formulating these offences, the mental elements were carefully considered. The Government considered whether the mental element should extend only as far as “knows” but we concluded that this could create an inappropriately high bar for prosecutors to overcome, with defendants arguing that they did not know for certain that the substance they were supplying was a psychoactive substance and likely to be consumed for its psychoactive effects. The Government settled on including the recklessness threshold. A test of “knows or is reckless” is commonly used in criminal law, both in the United Kingdom and other common law jurisdictions. Indeed, the formula is used in Ireland’s Criminal Justice (Psychoactive Substances) Act 2010.

Recklessness is where a person is aware of a risk that a result may occur and unreasonably decides to run that risk anyway. As recklessness involves an actual awareness of the risk, the person’s degree of knowledge, or at least understanding, would be relevant. For example, the degree of knowledge a supermarket worker would have about psychoactive products would be less than a member of staff in a household store used to selling solvents, and less still than a member of staff in a head shop, whose trade is predominately in these substances. The mental state of each would be considered separately.

In seeking to substitute a “should know” test, as the amendment proposes, my noble friend is intending to set a higher bar for prosecution and conviction. We need to bear in mind that the Bill is, in part, directed at stamping out the reckless retail trade in these potentially harmful substances. We know that head shops use a variety of ruses in order to stay on the right side of the law, including labelling their products as “plant food” or “not for human consumption” when they are fully aware that their customers are consuming these substances for their psychoactive effect. The recklessness test is directed at such ruses and, for that reason, we would not want to lose it.

This does not mean that everyone on a checkout at Tesco or Homebase needs to subject all customers buying tubes of glue to a full-on interrogation. But they will need to think twice if two or three young people attempt to buy multiple tubes of glue and nothing else or they are making repeated purchases. The Intoxicating Substances (Supply) Act 1985 already requires a retailer to be alert to such cases, and although that legislation applies only where the supply is to persons under 18, we do not envisage that this Bill will significantly change the burden on retailers. If that were the case, the Association of Convenience Stores would not be among those welcoming the Bill.

At this point I should make it clear that the Home Office intends to work with retail trade associations, such as the Association of Convenience Stores and the British Retail Consortium, on the legislation in the run-up to its implementation. We need to provide simple messaging to ensure that the requirements of the law are clear. As to the timing, we are working with the retail trade associations to produce guidance that meets their requirements. That work is ongoing and we need to see the final form of the Bill. I regret that I cannot commit to having draft guidance ready in time to share with noble Lords while the Bill is still going through its parliamentary stages.

Once retailers have knowledge of the law, we would expect them to consider whom they are selling the product to and make an assessment. For example, what product are they selling, what is its primary use, does it fit the profile of the customer and are there any wider considerations that the retailer can infer from the transaction? The guidance will illustrate the grounds that should be considered.

We need to be reasonable. If a retailer genuinely did not know the law, they need to be educated—the civil sanctions in the Bill allow for this, providing for a graduated response where appropriate—but where retailers either know or are reckless as to the consequences of their actions, they cannot be absolved of responsibility and action can and should be taken.

In any event, the proposed substitution of a “should know” test would be likely to capture some people who would not be caught by the recklessness test. This is because the “should know” test would capture someone who did not appreciate the risk but ought to have known that the substance was likely to be consumed for its psychoactive effects. Such a person would not be caught by the current recklessness test. This would appear to be contrary to the objectives of my noble friend and the noble Baroness who moved the amendment.

I hope that I have been able to satisfy noble Lords on the provisions of the Bill as it relates to retailers and therefore ask the noble Baroness to withdraw the amendment at this stage.

[Baroness Hamwee]

My Lords, it would be inappropriate for me to take the matter any further. I am sorry that the guidance—or guidelines; I am not quite sure which I should have said—will not be ready. I realised that it would not be ready before Third Reading, but I had hoped that it might be ready for the Commons to take some cognizance of it. I remain a little concerned, but, in the circumstances, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.