Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Tunnicliffe

Tuesday 30th June 2015 Lords Chamber

[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.

Psychoactive Substances Bill [HL]

Debate between Baroness Hamwee and Lord Tunnicliffe

Tuesday 23rd June 2015 Lords Chamber

[Baroness Hamwee]

My Lords, I very much support what has been said on this amendment and, indeed, the amendment itself, in particular because we want to avoid driving those human beings who will go on using drugs underground. One small point I want to mention, before I forget about it, is that the impact in Northern Ireland should be looked at, because I wonder what has been happening across the border. The report by Mark Easton yesterday, to which the noble Baroness, Lady Bakewell, referred, revealed the difficulty that the police have in proving that a substance has a psychoactive effect. That seems to me to be very much at the heart of this, with only four successful prosecutions in five years.

The expert panel talked about “robust” definitions and the Constitution Committee of your Lordships’ House reported, I think yesterday, on the need for certainty. The Joint Committee on Human Rights probably does not have its full membership yet, but no doubt it would have taken points on the importance of certainty in legislation—it did so for other legislation, particularly the recent anti-social behaviour Bill. The Constitution Committee said:

“The Bill inevitably exists in tension (at least to some extent) with the principle of legal certainty since its raison d’être is the regulation of activities in respect of substances that may not currently exist and whose nature and composition cannot readily be prescribed in advance with any accuracy”.

I thought that was very honest of it. However, it then went on to comment about not making,

“unacceptably broad inroads into the principle of legal certainty”.

We may come on to some of the detail of that on later amendments, but it seems to me to be very relevant to the point that the noble Baroness, Lady Meacher, has made with this amendment.

A proper, independent assessment would mean that we had advice that was not from those defending their own scheme, which can sometimes happen. I hope that we can hear sympathetically from the Minister on this, because I have absolutely no doubt that the noble Baroness will pursue this matter throughout the passage of the Bill and she will certainly have support from these Benches when—not if—she does that.

[Lord Tunnicliffe (Lab)]

My Lords, somebody has to give the Government some support on this. Amendment 3 talks in the first proposed subsection about an impact assessment and it being used to justify the commencement of the Act. I do not understand Amendment 109, but Amendment 114 is clearly about delaying the commencement of some provisions of the Act until the report of that assessment has been considered. Amendments 3 and 114 between them would delay the commencement of the Act.

Although the balance was a little uncomfortable, we had a very good Second Reading, in which it was clear that the central debate was about whether you believed banning produces a benign effect or not. That was the essence of the debate, as it has been of the debates we have had today. The position of the Government is that effective bans are benign in their effect; the position of Her Majesty’s Opposition is that effective bans will have a benign effect; and the position of the Liberal Democrats was—at least until the election, we thought—that effective bans had a benign effect.

[Baroness Hamwee]

My Lords, I wonder whether I can quickly try to squash this. A clamp-down on new psychoactive substances, which was in our manifesto, is not the same as a complete ban.

[Lord Tunnicliffe]

I thank the noble Baroness for that clarification. As I say, we are divided between those who believe that banning has a benign effect and those who do not.

This is a simple, fairly narrow Bill to close a loophole in the 1971 Act which is growing exponentially. We believe that it is appropriate that this loophole should be closed urgently and that there is sufficient evidence to proceed to close it with this Bill, which we believe should be introduced as soon as reasonably possible. We believe new psychoactive substances are not safe and we want them to be illegal as soon as reasonably possible.